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January 31, 1996


Appeal from Circuit Court of Macon County. No. 94D442. Honorable John L. Davis, Judge Presiding.

As Amended February 16, 1996. Released for Publication March 1, 1996.

Justices: Honorable Frederick S. Green, J., Honorable Robert W. Cook, P.j., Honorable Rita B. Garman, J., Concurring, Justice Green delivered the opinion of the court: Cook, P.j., and Garman, J., concur.

The opinion of the court was delivered by: Green

The Honorable Justice GREEN delivered the opinion of the court:

On April 28, 1995, the circuit court of Macon County entered a judgment of dissolution of marriage dissolving the marriage of petitioner John Wayne Snow and respondent Ludene C. Snow and resolving disputed issues concerning the distribution of marital property, maintenance, child support, and the payment of attorney fees. Respondent appeals, contending that the trial court abused its discretion in failing (1) to award her sufficient marital property and/or maintenance and child support to meet her reasonable needs and those of the parties' three children; and (2) to order petitioner to pay her attorney fees. We affirm in part, reverse in part and remand.

The parties were married in 1984; petitioner is approximately 50 years old, and respondent is approximately 39 years old. The parties have three minor children; the oldest child is 10 years old, and the twins are age 4. Respondent was awarded custody of the children by agreement of petitioner. Petitioner has a high school degree and since 1975 he has primarily worked in the insurance business as an agent for various brokers. Between jobs, the parties borrowed money from their respective families to purchase two businesses, the Paul Davis System and Chrysler Beauty Academy; both businesses were unsuccessful. For the last year and a half, petitioner had been the sole owner of an insurance agency known as Snow and Turner, Inc., d/b/a Market Place Insurance. Petitioner testified that the value of the insurance business was $25,000, although he acknowledged that insurance businesses which have been in existence for 5 to 10 years were normally valued at 1 1/2 times the gross income.

In 1994, petitioner's agency had $51,000 in gross commission income but had $80,000 in expenses. Presently petitioner earns between $4,000 and $4,500 a month in gross commissions. Petitioner projected that in 1995, the agency's commissions would increase 50%. In 1993, petitioner's gross income was $123,000. This consisted of a capital gain of approximately $117,000 in sale of Reliv International, Inc. (Reliv), stock, $725 in business income and $5,369 in interest income. Petitioner was also employed to sell stock to raise money for the formation of a computer company, and he believed he would earn $2,000 per month in that endeavor. Petitioner's financial affidavit indicated his monthly expenses were $2,235.

Respondent has a high school diploma and has received some cosmetology training. Prior to the parties' marriage, from 1979 until 1981, respondent worked as a cosmetology instructor at the Chrysler Beauty Academy. From 1981 until 1990, when the twins were born, she worked at the Chrysler Beauty Academy at the management level as a financial aid officer. Respondent continued to work as a financial administrator at another cosmetology school until her position was eliminated in 1992. Since 1992, respondent has not worked outside the home. Presently respondent is attending Lincoln Land Community College to obtain a nursing degree. As a nurse, respondent will be able to earn approximately $15 to $20 per hour as compared to her salary as a financial aid officer of $5 to $6 per hour.

Respondent testified that she and the parties' children presently live in an apartment owned by her sister, and she lives on the money she receives from child support, public aid and money she has borrowed from her family. Respondent wanted to continue to attend school full-time in order to obtain a degree quicker.

During the marriage the parties lived in a home which petitioner had purchased prior to the marriage and was indisputably his nonmarital property. The parties paid a $25,000 mortgage on the home with marital funds. Respondent testified she invested $12,000 to $13,000 of her nonmarital funds in improving and finishing the house and that she personally did much of the finishing work herself. Petitioner acknowledged respondent's contributions to the house but claimed only $9,000 of respondent's nonmarital funds were used. The marital residence has a market value of between $50,000 and $90,000 and a home equity loan of $19,185. Petitioner also owned approximately 40 acres of farmland which were nonmarital property.

During the marriage, the parties purchased four rental properties, which were valued in total at $43,000 less a $10,519.51 debt, leaving $32,480 in equity. The parties also purchased approximately 10,550 shares of Reliv stock. Three thousand four hundred shares of Reliv stock remained valued at approximately $2 per share for a total value of $8,500. Those shares were restricted and could not be sold for two years. Petitioner admitted that within 60 days of the hearing he sold 7,150 shares of unrestricted Reliv stock for approximately $17,000. Petitioner did not give respondent any money from the sale, but claimed he used the funds to pay necessary expenses and child support. Petitioner submitted an exhibit listing the deposits from the sale of the Reliv stock and the expenses paid from those funds.

The parties owned $17,500 in personal property, including automobiles, boats, and household furnishings. The parties had several notes receivable totaling $9,636; however, petitioner testified that approximately $5,400 of that amount was not collectable. The parties had approximately $9,000 in cash remaining from the sale of the Reliv stock. These funds were kept in a checking account under the name "Snow Enterprises," which was used mainly in connection with the rental property. Each party had an individual retirement account (IRA), petitioner's was valued at $4,500 and respondent's was valued at $5,500.

The parties had a significant amount of debt accumulated during the marriage. The parties had credit card debt totaling $56,850, notes payable totaling $45,139, and bank loans totaling $23,185. The evidence established that $53,422 of credit card debt was accumulated by petitioner without respondent's knowledge, apparently used for business expenses and loans to petitioner's family and friends. Respondent used two credit cards on which she owed $3,428. Regarding the notes payable, $1,473 was borrowed from respondent's family for respondent's breast implants, $20,421 was borrowed from respondent's family to purchase Chrysler Beauty Academy, $5,371 was borrowed from respondent's family to purchase one of the rental properties, and $17,874 was borrowed from petitioner's family to purchase a partnership in Paul Davis Systems.

The court ordered respondent to pay child support in the amount of $125 per week and denied any award of maintenance. The court awarded petitioner the residence as his nonmarital property and directed him to pay respondent $4,500 for her "equitable interest therein." The court also awarded petitioner the farmland as his nonmarital property. The court divided the marital assets and debts as follows:



Rental real estate $16,240

1,700 shares of Reliv 4,250

Snow and Turner Insurance 25,000

Notes receivable 9,636

Personal property ordered sold and divided

(boats) ...

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