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June 26, 1996


Appeal from Circuit Court of De Witt County. No. 93D15. Honorable Stephen H. Peters, Judge Presiding.

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

The opinion of the court was delivered by: Garman

The Honorable Justice GARMAN delivered the opinion of the court:

Respondent Kaye Koberlein appeals from an order of the circuit court of De Witt County granting petitioner Dennis Koberlein's petition for dissolution, arguing that the trial court erred in awarding her only 51% of the marital estate and denying her request for permanent maintenance and attorney fees. We affirm.

The parties were married in 1962. In 1972, the parties purchased a grain and livestock farm, and Dennis had maintained the farming operations since that time. Kaye's primary role in the marriage was that of a homemaker. The parties separated in October 1993. At the time of trial, the parties had children ages 9, 25, and 28. Both parties were 51 years of age and in overall good health at the time the judgment for dissolution was entered in 1994.

Kaye currently works full-time as a teacher's assistant at a day-care facility. She takes home approximately $180 per week. Kaye worked a variety of part-time jobs during her marriage to Dennis. She was employed as a teacher's aide at different schools and had done alterations on a commission basis previously, in addition to working on the farm for a period of time. Although she had been living rent free in a rental house on the farm after her separation from Dennis, Kaye testified she felt it would be better if she moved farther away from Dennis. Kaye testified she expected to pay $550 to $600 per month for rent if she moved. Assuming no monthly rent obligations, her financial affidavit showed estimated monthly living expenses of $2,157.

Dennis' net profits from operation of the farm over the last five years have varied from $13,218 to $35,227 annually. He testified the sharp swings were attributable to the cyclical nature of the hog market. Dennis' financial affidavit listed $1,951 in average monthly income and $2,070 in average monthly expenses. He admitted his current banking account contained approximately $20,000 but explained this balance was the result of his currently low inventory levels. According to Dennis' testimony, any accumulation of money which existed in this account was the result of his 20 years of farm operation.

In a written memorandum of decision dated September 14, 1994, the trial court awarded custody of the parties' nine-year-old son, Phillip, to Dennis, subject to reasonable visitation by Kaye. Kaye was ordered to pay $36 per week in child support. The trial court found Kaye had nonmarital property consisting of a one-sixth interest in 120 acres of land and one-half interest in 40 acres of land. The court found the major asset of the marriage was the farm, which the court found had a net worth of $168,911, and awarded Kaye $91,000 of this net worth. Rather than requiring Dennis to sell the farm, the trial court ordered Dennis to pay Kaye the balance of $66,000 at 9% interest over 10 years, in addition to an agreed-upon lump-sum payment of $25,000 to be paid to Kaye on October 31, 1994. The court also awarded Kaye the parties' Plymouth Voyager, debt free, as well as some $24,000 in investments. The division of marital property resulted in Dennis receiving 49% of the couple's assets while Kaye received 51%. The court found maintenance was warranted and ordered Dennis to pay Kaye $200 per month for 18 months. The trial court refused to award Kaye her attorney fees.

Kaye contends the trial court erred in two respects in awarding temporary maintenance but refusing an award of permanent maintenance. She claims (1) the trial court erred by applying an outdated section of the Illinois Marriage and Dissolution of Marriage Act (Act) (see 750 ILCS 5/504 (West 1994)) and (2) the trial court's decision denying permanent maintenance was against the manifest weight of the evidence. It is clear from its written memorandum of decision the trial court did apply the former version of section 504 of the Act, which was substantially revised in 1993 by Public Act 87-881. Pub. Act 87-881, eff. January 1, 1993 (1992 Ill. Laws 1019, 1023-24). The court stated it could not award maintenance unless it found Kaye:

"(1) lacked sufficient property, including marital property apportioned to her, to provide for her reasonable needs, and

(2) [was] unable to support herself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home, or

(3) [was] otherwise without sufficient income."

See Ill. Rev. Stat. 1991, ch. 40, par. 504(a); In re Marriage of Kerber, 215 Ill. App. 3d 248, 252, 574 N.E.2d 830, 832, 158 Ill. Dec. 717 (1991). In determining the amount and duration of a maintenance award, the court then summarized the seven factors pursuant to section 504(b) of the Act as they appeared prior to the 1993 revisions. These factors included:

"(1) the financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;

(2) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;

(3) the standard of living established during ...

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