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September 15, 1994


Appeal from the Circuit Court of Winnebago County. No. 91-D-1657. Honorable Richard W. Vidal, Judge, Presiding.

Released for Publication October 18, 1994.

Colwell, Quetsch, PECCARELLI

The opinion of the court was delivered by: Colwell

JUSTICE COLWELL delivered the opinion of the court:

Petitioner, Charles Morris, married respondent, Mercedes Thomas Morris, on July 1, 1967. On June 29, 1993, the trial court entered a judgment which dissolved the marriage and ordered a distributionof the couple's marital property. The trial court awarded respondent 6% of one of petitioner's pensions but no share of petitioner's other pension or his lottery winnings. Respondent was also awarded her retirement fund which she had already liquidated. Respondent appeals, contending that the trial court's apportionment of the marital property constituted an abuse of discretion. We reverse and remand.

Petitioner and respondent lived together after their marriage in 1967 for approximately two years. After that time, the couple agreed to live separately. In 1991, petitioner filed for dissolution of marriage, alleging that the couple had no children, that as a result of irreconcilable differences the parties had separated and were not living together, and that the parties had not acquired any property jointly or as a result of mutual effort or contribution since their separation. Respondent did not appear at the hearing and a default judgment was entered. Thereafter, respondent appeared and moved to vacate the default. The trial court granted the motion to vacate and the cause proceeded to a hearing.

Although the parties' testimony differs as to the extent of contact they maintained over the years, both parties agree that neither obtained financial assistance from the other through the years that followed their separation. Respondent did say that, if she needed financial support from her husband, he refused to give it to her. The couple kept in touch by telephone, and, according to respondent, they met and engaged in sexual relations with each other on a number of occasions until 1989. During the years that the couple lived independently, respondent was involved in other relationships with men. Specifically, she admitted to two long-term relationships, although she did not live with the men or receive support from them.

Respondent testified that she was presently employed in the mortgage department of Chase Manhattan Bank and was making approximately $13,000 per year. Before that, she worked for the Social Security Administration from 1972 until 1981 and made approximately $8,000 per year. When she left that job, she liquidated her retirement fund which had approximately $4,000. At the time of the hearing, respondent testified that she was currently unable to work because she had undergone arthroscopic knee surgery and that her father was helping her financially. She also testified that she had heart problems and hypertension. Respondent lived in Rockford, Chicago, California, and Florida during the years that the couple were separated.

Petitioner testified that, other than a few communications, the couple had not been in touch in the interim since their separationover 20 years before. According to petitioner, respondent had not asked for support in all that time, and neither party had given property to the other. Respondent had not done any household chores for petitioner since their physical separation.

Petitioner had worked for W.F. and John Barnes (Barnes) for 19 1/2 years until the company went out of business. Then petitioner worked for Ingersoll for eight years. He had a pension plan at Barnes and was unsure if he had one at Ingersoll, but he knew that he could not collect until he was 62 years old from the Barnes pension and 65 years old from the Ingersoll pension. At the time of the hearing in March 1993, petitioner was 51 years old. Petitioner had not told his employers that he was married and, in fact, had signed a document while at Ingersoll stating that he was not married. Petitioner had designated his aunt as the beneficiary of the pension plans. Neither side introduced evidence to establish the value of petitioner's pension rights.

Petitioner's main asset was his income from winning the Illinois State lottery. The lottery jackpot was $2.9 million dollars, with petitioner's sister receiving 35% and petitioner receiving the other 65%. Petitioner would collect payments of approximately $70,000 after taxes for 20 years. He received his first payment in November 1992. With the winnings, he bought a $25,000 car, made a $20,000 payment on a house for his mother, and put $35,000 into a savings account. Petitioner also helped two of his children (not respondent's), born during his marriage to respondent, pay for their education. He was also paying child support for a third child, also born during petitioner's marriage to respondent.

Petitioner testified that, other than his pensions and lottery winnings, he had a 1992 Buick and a rather minimal amount of furniture. He earned approximately $22,000 in 1989 and $24,000 in 1991 and 1992. Respondent testified that in 1989 she took a pay stub from petitioner's apartment. The stub was introduced into evidence and reflected that on December 22, 1989, petitioner had earnings that year totalling $28,400. Petitioner testified that he had "lung problems," and he stated that one of his lungs had collapsed a year before.

According to petitioner, he had sought a divorce several years after they separated, but respondent said that she would not give him a divorce. It was further established that respondent had previously seen an attorney about instituting divorce proceedings, but petitioner did not have half of the money to pay for the divorce and the couple never obtained the divorce.

The trial court specifically found petitioner's lottery winnings tobe marital property, but because there was no "shared enterprise," the court awarded the total winnings to petitioner. The trial court found the petitioner's contract to share the lottery winnings with his sister and petitioner's support of his children were not dissipation of a marital asset. The trial court found respondent's liquidation of her retirement fund was not dissipation, and the court awarded the fund to respondent. Finally, the trial court awarded respondent 6% of petitioner's pension with Barnes and stated that the percentage was arrived at by first dividing the total years of contribution by the ...

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