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05/25/94 MARRIAGE ANN H. WAGGONER

May 25, 1994

IN RE MARRIAGE OF ANN H. WAGGONER, PETITIONER-APPELLEE, AND DARYL L. WAGGONER, RESPONDENT-APPELLANT.


Appeal from the Circuit Court of Lawrence County. No. 91-D-57. Honorable David M. Correll, Presiding Judge.

Chapman, Lewis, Maag

The opinion of the court was delivered by: Chapman

JUSTICE CHAPMAN delivered the opinion of the court:

Respondent, Daryl Waggoner (Husband), appeals the trial court's judgment of dissolution and the denial of Husband's petition to modify. The main issue is whether the trial court properly characterized Husband's pending workers' compensation claim as marital property. We affirm in part and reverse in part and remand with directions.

The parties were married on June 5, 1982. At the time of the marriage, Ann Waggoner (Wife) was employed at Suttle Apparatus. After Suttle Apparatus closed, Wife worked at various other jobs: cleaning houses, working in corn fields for Akin Seed Company, and tending bar for her brother. In May 1988, Wife began working at Syd's Tavern for $5.00 per hour, and she was employed there at the time of the dissolution proceedings.

Husband was employed by Bridgeport High School during the 1982-1983 school year. He was unemployed from 1983 through 1985. In 1985, Husband began working for the Illinois Department of Children and Family Services as a Child Welfare Specialist I. On January 28, 1988, Husband injured his back at work, and although he underwent two surgeries in an attempt to remedy his back injury, his treating physician testified that Husband is permanently and totally disabled as a result of his injury.

Husband filed a workers' compensation claim against the State of Illinois. At the time of the dissolution proceedings, he had been receiving an average of $1,216.68 per month in temporary total disability payments. Respondent was also receiving social security disability payments of $187.00 per month. Husband's permanent total disability workers' compensation claim was pending and undetermined at the time of trial.

In its judgment of dissolution, the trial court awarded Wife the parties' 1987 Mazda RX7 and 1978 Oldsmobile Cutlass, the parties' furniture, and all other personal property in her possession. Husband was awarded the 1984 Phoenix, his 1981 Chevy truck, his horse tack, and other personal property in his possession. Husband was also awarded his pension benefits and his nonmarital social security disability income. Husband was ordered to pay Wife $200.00-per-month maintenance for 18 months and one-half of his final workers' compensation award or settlement.

The parties' sole marital debt, notes relating to the purchase of the 1986 Mazda RX7 and the 1978 Oldsmobile Cutlass, was assigned to Husband, and any difference between the balance owed on February 18, 1993, and $3,755.22 was ordered paid by Husband to Wife.

Husband argues that: (1) the trial court's property division was inequitable and an abuse of discretion; (2) the trial court's assignment of the marital debt to Husband was inequitable and an abuse of discretion; (3) the maintenance award granted to Wife was inequitable, against the manifest weight of the evidence, and an abuse of discretion; and (4) the trial court's denial of Husband's petition to modify was an abuse of discretion and against the manifest weight of the evidence.

Husband argues that the property division made by the trial court was inequitable and an abuse of the court's discretion because Husband's workers' compensation claim is not marital property. In the alternative, Husband argues that, even if workers' compensation benefits are marital property, no part of them should be awarded to Wife.

Section 503 of the Illinois Marriage and Dissolution of Marriage Act (the Act) creates a rebuttable presumption that all property acquired after marriage is marital property. (Ill. Rev. Stat. 1991, ch. 40, par. 503; Hofmann v. Hofmann (1983), 94 Ill. 2d 205, 446 N.E.2d 499, 68 Ill. Dec. 593.) Therefore, a party claiming that property is nonmarital has the burden of proving its status by clear and convincing evidence. Hofmann, 94 Ill. 2d 205, 446 N.E.2d 499, 68 Ill. Dec. 593; In re Marriage of Werries (1993), 247 Ill. App. 3d 639, 616 N.E.2d 1379, 186 Ill. Dec. 747.

In support of her contention that the workers' compensation claim is marital property, Wife cites three Illinois cases: Lukas v. Lukas (1980), 83 Ill. App. 3d 606, 404 N.E.2d 545, 39 Ill. Dec. 161; In re Marriage of Dettore (1980), 86 Ill. App. 3d 540, 408 N.E.2d 429, 42 Ill. Dec. 51; In re Marriage of Thomas (1980), 89 Ill. App. 3d 81, 411 N.E.2d 552, 44 Ill. Dec. 430.

Lukas v. Lukas (1980), 83 Ill. App. 3d 606, 404 N.E.2d 545, 39 Ill. Dec. 161, held (1) that the injured spouse's workers' compensation award was marital property, and (2) that even if it was ...


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