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In re Marriage of Brackett

December 22, 1999


Appeal from the Circuit Court of McHenry No. 96-DV-1157 Honorable Gerald M. Zopp, Jr., Judge, Presiding.

The opinion of the court was delivered by: Justice Rapp

Respondent, Margaret Brackett, appeals from that part of the trial court's judgment concerning property distribution, maintenance, and attorney fees following dissolution of her marriage to petitioner, Thomas Brackett. Respondent raises multiple issues, contending that the trial court abused its discretion. Petitioner moved to dismiss this appeal, and we took the motion with the case. We deny the motion in part and reverse and remand.


After more than 20 years of marriage, the parties separated in August 1996. In December of that year, petitioner filed for dissolution of marriage under the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/101 et seq. (West 1996)). At trial, evidence was presented with respect to marital property, child support, maintenance, and attorney fees. The parties were the only witnesses to testify. The evidence revealed that at the time of trial petitioner and respondent were in their mid-forties and had two children. One child was an adult and one was a minor. The eldest child was attending college. Both children had college savings accounts worth more than $40,000 each.

Petitioner was the director of information services for Commonwealth Edison, having held the position for some time. His annual gross salary in 1997 was $90,688. Through his employer, petitioner had a 401(k) account worth slightly more than $44,000 and a pension with a current accrued monthly benefit of just over $3,000, based upon years of service to date. No evidence regarding the actual cash value of the pension was presented. Petitioner indicated that he planned to work an additional 15 years before retiring. During the early years of the marriage, respondent was a high school teacher, and later she was a substitute teacher and housewife. In 1993, respondent was diagnosed with multiple sclerosis, which caused her to be wheelchair-bound.

The parties owned a house in Cary, Illinois, valued between $280,000 and $300,000. There was a mortgage balance of approximately $149,000 with a monthly payment of $1,500. While the house was apparently fully furnished, no evidence as to the value of its contents was presented.

There were also two automobiles with a combined value of $12,000 and no encumbrances. In addition, there was credit card debt of approximately $11,000--around $6,000 on Visa and $5,000 on MasterCard.

At the close of the evidence, respondent filed a petition for contribution to attorney fees and costs pursuant to section 503(j) of the Act (750 ILCS 5/503(j)(West 1996)). No evidence was taken by the trial court on the petition, nor was a separate ruling on the petition ever issued. However, in the final judgment of dissolution of marriage the trial court ordered that "[e]ach [party] shall pay [his or her] own attorney's fees and costs herein. [The] Petition to [sic] Contribution is denied."

The trial court requested closing arguments to be submitted in writing. In her argument, respondent requested that: (1) she receive the proceeds from the sale of the marital home and the majority of its contents; (2) she receive half of petitioner's 401(k) account; (3) she be given occasional use of one of the automobiles; (4) both she and petitioner each keep [his or her] current savings and checking accounts; (5) she be designated as a beneficiary of petitioner's basic and supplemental life insurance policies; and (6) she receive $4,000 per month as permanent maintenance. Respondent argued that the high amount of maintenance was appropriate because she was unemployable due to her progressively worsening disease and her need for long-term medical assistance. Social Security and similar public assistance were unavailable. The argument conceded:

"Thomas should be awarded his Commonwealth Edison pension. This is a non income [sic] producing asset and would be the basis for Thomas to pay permanent maintenance upon his retirement. Margaret, unless she remarries, would have his spousal share of social security at the time she is 62."

In his argument, petitioner agreed that respondent should receive the proceeds from the sale of the marital home. He requested, however, that the proceeds be used to (1) pay the existing mortgage balance; (2) pay all real estate taxes due; (3) pay broker's commissions and closing costs; (4) pay both the Visa and MasterCard debts; and (5) pay repair and maintenance costs incurred while the home was on the market.

Petitioner argued that the balance of the proceeds should be applied to the acquisition of a new residence for respondent. Petitioner also requested a second mortgage be taken on respondent's new residence in the amount of $35,000 and be paid to him as reimbursement for his contribution to the marital residence. He also asked to be awarded his entire 401(k) account and to be allowed to keep his entire pension until he entered pay status, at which time he would pay respondent $1,032 per month as maintenance. Finally, petitioner agreed that respondent was entitled to permanent maintenance, "so long as her condition persists"; however, he believed that he should be obligated to pay only $115 per week for maintenance and $235 per week for child support. Respondent's response to petitioner's argument, stated "[respondent] requests this [c]court enter an [o]rder consistent with [respondent's] [c]losing [a]rgument."

The trial court took the matter under advisement and informed the parties that a decision would be forthcoming. A few days before the trial court was to render its decision, respondent filed an emergency petition asking the trial court to reopen the case because her condition had deteriorated to the point where she was in need of 24-hour-a-day care and her vision was greatly impaired. The trial court denied the motion, but at the hearing prior to rendering judgment, it took note of respondent's worsening condition. Through counsel, the trial court was informed that the Department of Rehabilitative Services (DORS) had authorized $1,583 per month to pay for someone to care for respondent. The trial court then stated:

"All right. Whatever the circumstances it's the opinion of this Court that we need to put Mrs. Brackett in a situation where her financial condition is known, and a state agency can deal with the problem due to the fact that a divorce is happening here."

On September 3, 1998, the trial court entered its written order. The marital residence was to be sold. Petitioner was to maintain health insurance for the children through college and pay $241 per week child support while the minor child was living with respondent or until the child reached the age of majority in February 2000. Petitioner was also required to pay the monthly mortgage on the marital residence until it was sold or until June 30, 1999, whichever came first. Commencing January 1, 1999, petitioner's payment of the mortgage would be considered maintenance. Petitioner was ordered to pay respondent $125 per week "as and for temporary maintenance" "until sale and closing of the marital home." Upon the sale of the home, maintenance was subject to modification.

The order entitled petitioner to take all appropriate tax deductions. He was awarded as his sole and separate property both automobiles but was required to make one available for family use. Finally, petitioner was awarded his entire pension but was required, upon his retirement, to pay respondent as maintenance 50% of the current monthly benefit, not to exceed $1,532 per month. The trial court stated that it did not

"want to see Mr. Brackett lose the totality of the benefit available under the pension plan in the event that Mrs. Brackett should die before attaining age 60 *** . Truly, Mrs. Brackett is entitled to a 50-50 split of that. And were this Court to give that to her at this point, that would be lost to Mr. Brackett. And in the event that she should die, that would not even be available to support him."

Respondent was awarded the bulk of the contents of the marital home as well as the net proceeds from the sale of the home. The trial court defined the net proceeds as the gross sales price of the house minus (1) the mortgage balance, (2) the closing costs, (3) reimbursement to petitioner for payment of the second installment of real estate taxes and maintenance and repair costs, (4) payment of a portion of the credit card debt, and (5) respondent's attorney fees and costs. The trial court also awarded respondent $10,000 from the 401(k) account. Both parties were allowed to keep monies currently held in their respective bank accounts or previously withdrawn from joint accounts.

Respondent filed a motion to reconsider on September 29, 1998, which was denied October 19, 1998. The motion asked the trial court to reconsider its "maintenance award and division of marital debts," but the court did not seek reconsideration of the division of marital assets, including the pension. On November 12, 1998, additional co-counsel entered an appearance on behalf of respondent and filed a "revised second motion to reconsider" the judgment. A notice of appeal was filed November 18, 1998, by respondent's original counsel. It stated that respondent was appealing the judgment and the "[o]rder entered October 19, 1998[,] denying Motion to Reconsider." The trial court dismissed respondent's "revised second motion to reconsider" as untimely because it was filed well past 30 days after judgment.

On appeal, respondent raises issues concerning maintenance, property distribution, and attorney fees. She argues that the trial court abused its discretion when it made public aid the goal of its maintenance award, when it failed to award an appropriate amount of maintenance, and when it awarded rehabilitative as opposed to permanent maintenance. She also argues that the trial court did not divide the marital assets and debts in just proportions, particularly because she was not awarded any property interest in the pension and was required to pay a number of debts out of her share. Finally, respondent contends that the trial court's failure to award attorney fees was an abuse of discretion. Petitioner filed a motion to dismiss this appeal, arguing that events occurring after the filing of the notice of appeal rendered certain issues moot or constituted a release of errors. We took the motion with the case. We now address the motion and the issues raised on appeal.


A. Motion to ...

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