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April 21, 1994


Appeal from the Circuit Court of Madison County. No. 91-D-1280. Honorable Robert Hennessey, Judge Presiding.

Maag, Lewis, Chapman

The opinion of the court was delivered by: Maag

JUSTICE MAAG delivered the opinion of the court:

Respondent, Theodore Alvin Ferkel, appeals from an order entered by the circuit court of Madison County on April 30, 1992, awarding and allocating the marital assets, ordering the sale of the marital residence, denying his request for maintenance, and awarding and ordering the parties' attorney fees to be paid from the proceeds of the sale of the marital residence. For the reasons that follow, we reverse and remand this cause with directions.

Petitioner, Vera Gail Ferkel, and respondent, Theodore (Ted) Ferkel, were married on August 18, 1984. No children were born to this marriage. On September 25, 1991, Vera filed a petition for dissolution of her marriage to Ted. A judgment of dissolution was entered on January 2, 1992, and a trial on the division and Disposition of the property of the parties was held on April 2, 1992.

Prior to the trial, the parties entered into various stipulations regarding the value of certain property and the Disposition and responsibility for certain debts. Pursuant to the stipulations, Vera received a 1987 Chevrolet and its $2,200 debt. The parties testified that the value of the vehicle was $4,800 to $6,500. Ted received a 1984 Chevrolet with no indebtedness. It was valued at $2,800 to $3,800. Vera became responsible for the Mastercard debt of $1,200 and the debt to American General of $800, plus the debts that she incurred subsequent to the separation of the parties. Ted became responsible for the Discover card debt of $2,500, plus the debts that he incurred subsequent to the separation.

Ted testified that his only source of regular income is the disability benefit that he receives from social security in the sum of $755 per month. Ted also receives $142 a month from a contract for deed for a nonmarital residence that Ted sold for $13,000 in 1985. Payments on this contract are not regular. At the time of trial, the balance owing on the contract for deed was approximately $6,000. The transactions regarding the contract for deed are handled by a realty company. Ted testified that he has never attempted to foreclose on the property because of the cost associated with foreclosing as well as the buyer's right of redemption, although the payments are routinely two or three months in arrears.

At the time of trial, Ted was 60 years of age and receiving social security disability benefits because of his poor health. Ted testified that he had become disabled during the marriage and is suffering from a heart aneurism and diabetes rendering him unable to work. After Ted's disability, he cleaned the residence, cooked the meals, and did the laundry. In addition to these duties, he also painted the marital residence twice. Ted acknowledged that Vera helped with some of the maintenance of the marital residence.

When the judgment of dissolution was entered in January 1992, the marital residence of the parties had a mortgage indebtedness of $15,011.24. Ted has paid the mortgage payment of $296 per month since the entry of the judgment of dissolution because he has had the exclusive use and enjoyment of the property. Ted testified that his utility bills at the marital residence average $141 per month. Ted also incurs an average of $141 per month for prescription medications and uninsured medical expenses. Ted's total monthly living expenses, while living in the marital residence, average $1,064 per month. This sum does not include the debt owed to Sears for carpeting for the marital domicile. As of November 1991, the balance owed to Sears was $2,038.25. Neither party has made a payment to Sears since that date.

Ted acknowledged at trial that his 37-year-old adult son had been living with him in the marital residence for a few months prior to the hearing. Ted denied that he was supporting his son. He testified that the monthly expenses that he submitted into evidence are his individual expenses. Ted testified that his son pays for his own food and gives Ted $10 per week to enable Ted to go bowling.

Lastly, Ted testified that Vera mutilated some family photographs that were taken throughout the course of the parties' marriage. Vera admitted to destroying the photographs and testified that she did not know whether she had the negatives to replace them.

Vera testified that at the time of the trial she was 44 years of age and gainfully employed as a certified nurse's aide. To become a certified nurse's aide she attended six months of specialized training. Her 1991 income was $16,072 (gross), verified by income tax returns and a W-2 statement from her employer. Also introduced into evidence were copies of her 1991 paycheck stubs. The paycheck stub dated December 14, 1991, reflects that Vera's year-to-date gross wages were $20,398.12. All paycheck stubs submitted into evidence by Vera dated subsequent to mid-September 1991 indicate that Vera's gross income exceeded the gross income of $16,072 listed on her 1991 income tax returns and W-2 form. The 1991 income tax returns indicate that she received a refund of approximately $1,225 on her Federal return and a $60 refund from Illinois.

Vera testified that her year-to-date gross as of March 9, 1992, was $5,478.82, and she had no reason to expect that her income for 1992 would not be the same as it had been in 1991. She testified that her net pay was approximately $660 every two weeks or $1,339 per month. She also receives approximately $380-per-month social security for her minor daughter, Amy. She also receives $50-per-week child support for Amy. At the time of the trial, Vera had pending a petition to increase the child support she receives from her former spouse. From her income, Vera listed expenses totalling $1,725.23 per month for herself, Amy, and her 20-year-old adult daughter.

At the Conclusion of the trial, Ted's attorney testified that she charged Ted a total of $1,335.27 in fees and costs, and Vera's attorney testified that he charged Vera $1,400 in fees and costs with $300 representing the cost of having the marital domicile appraised. At the time of ...

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