*1 HART, In rе MARRIAGE OF BARBARA Petitioner-Appellant, ANN HART,Respondent-Appellee. ROBERT Fourth District No. 4 — 89—0238 22, 1990. Opinion February filed *3 appellant. Charleston, Tulin, Tulin,Ltd., for Ronald Ronald Mattoon, appellee. for Logue, of Logue, Thomas J. of Glenn & the court: the opinion JUSTICE McCULLOUGH delivered for petition filed Hart, age On November Barbara September Hart, 52. On age to Robert dissolution of her marriage marriage, di- dissolving 11, 1988, the trial an order court entered mainte- denying support, setting child viding property, discre- its court abused arguing nance. Petitioner appeals, the trial pension, respondent’s in not her one-half awarding tion purposes for net in calculating respondent’s court erred her denying its discretion abused and the trial court support, child maintenance. rehabilitative
We reverse remand.
Background three have 11, 1968, and February were married on 14, and 12 are The children children, Eric, Michael, Shannon. age, respectively. INCOME she worked marriage, her After nurse. registered Petitioner the birth Subsequent born. part time until her first child was In No- and riders. horses children, training her she time part worked nursing home. nurse at a as a staff began vember she work works month. She per nets She earns hour and per $860 $10 testified she Petitioner daytime. during hours two every weeks wanted school. She return to improve wanted to her skills to apply be able so she would nursing earn a bachelor’s degree re- investigated She position. a supervisory paying or better position plan not She did plans. made turning any to school but had time be- the present hours at return to her work school or increase return to stated her Petitioner cause the supervision. children needed dissolu- to the adjustment school was the children’s dependent upon school return to in order to She tion. needed maintenance temporary full time. home. She the marital
Petitioner awarded requested she be tax, and mоrtgage, monthly stated she could not afford the *4 to the home month per insurance She contributed payment. $500 a home. it to rent would her a amount cost similar He in Link Clinic. a partner and was Respondent surgeon is a and pe- Respondent 1978. had been Link since associated with Clinic tax shows that he had a joint part- titioner’s Federal income return $142,000 of a certified nership Doehring, income 1987. Donald returns, accountant, re- public who tax stated parties’ prepared $149,506 was in 1987. He spondent’s gross income from all sources had prepared purposes an exhibit to show income for respondent’s income $23,370 instant cause. stated was Doehring income from the sale 2% interest in the nonrecurring partner- of a ship. Doehring professional expenses this amount and subtracted from income from respondent’s income. He then added received con- sulting $119,948. The net was From professional fees. income this Doehring taxes, leaving $93,610. then Doehring deducted deducted $15,742, represented repayment part which of the the par- debts ties had incurred to a pursuant bankruptcy reorganization plan. Doehring premiums $2,546. then deducted totalling medical insurance Finally, Doehring $17,050, represented subtracted which re- money spondent had borrowed taxes pay his 1987 and interest on that amount. stated
Doehring net income for respondent’s purposes this $58,272. case $16,000 was he Doehring admitted that had subtracted of the income tax twice and that was liability this not sound account- ing practice. Doehring gross testified respondent’s $6,000 $8,000 would be less than his income in gross 1987.
Link Clinic with Carle merged agree- Clinic 1988. All of the ments signed However, had been as of the re- day hearing. spondent guaranteed $140,000. was a minimum gross salary As part merger, respondent was insur- responsible malpractice ance $100,000. premiums totalling His share in Link Clinic, at $38,962, valued part was used to offset The liability. balance would be from deducted from Carle in install- salary Clinic $23,000 ments of the first year the second year. Respond- ent that it generate testified was he possible could income above the minimum salary. Carle Clinic had a pension profit-sharing pro- However, gram. respondent was uncertain about the specifics this program. merger decision, The Carle with Clinic was business which would future eliminate his income. competition protect ASSETS AND LIABILITIES
The parties submitted statements of marital assets and liabilities. of several of personal value items varied in the docu- submitted tо The following mentation court. table roughly All summarizes information. of the marital debt is not summa- rized.
844 AND LIABILITIES
ASSETS Value Indebtedness 92,500 87,342 Marital home $ $
(first mortgage) 24,000 27,604 Adjoining 10-acre (first mortgage acreage; tract and barn home,
second mortgage mortgage) hereinafter second 4,500 disputed Porsche 1978 Dodge disputed 1981 disputed
1978 Truck Ford disputed
1972 unvalued
three horses 3,677
IRA’s
Household
furnishings Disputed
Equipment
Interest in 38,962 $12,000 to 96,393 contribution profit Pension share +1988
15,000 month per creditors Unsecured 1989) (Until August the amount subtracted repayment loan Respondent testified the of business Doehring repayment was for by from to fi- money He from several sources petitioner debts. borrowed Part of the purchase purposes. nance for investment airplanes primary tract and barn. The loan was also to 10-acre purchase marital home and a on the mortgage loan was secured a second by referred to as second (hereinafter first on the tract mortgage 10-acre He this a business loan. borrowed stated was mortgage). Respondent The debt to the Mat- an additional for the 10 acres. money amount The third debt was for plane. toon National Bank was for a second the insur- on monies borrowed from twin-engine use tax plane. As expenses. were for companies against ance benefits policy the various witness, he have an adverse admitted did in his mind. money segregated amounts and loans shown plane were Petitioner admitted the ranch operation she stated reluc- as business tax Petitioner purposes. investments for signed notes. agreed twin-engine plane tantly purchase However, he loved plane fly- she felt because respondent bought twin-engine ing. plane. Respondent pilot was not qualified In filed a which involved parties reorganization plan, both debts. The first on the marital personal mortgage business plan, home was not Pursuant to the by reorganization. affected $50,000, in 48 mortgаge, second at was to be off paid valued $1,104.17. installments of After the creditor was to monthly payment, release the second the marital home and the mortgage mortgage on on the 10-acre un- Additionally, required pay tract. were 22, 1986, secured creditors for 36 per beginning August month $310 months. The parties’ joint debts at the time of the were bankruptcy $318,000. approximately Their assets were joint. approximately $138,000. The reorganization plan stated the in the bank- property ruptcy estate would become the debtors’ after payment *6 the amount shown in the plan.
The trial court in a letter to the stated the primary prob- lem wаs whether the home acreage with the should be sold to pay debts or by retained the The petitioner. court noted the children should, if possible, live the home. family Respondent was the pri- source of the mary parties’ income as as the well source of primary the The debts. court then stated that if it were best for the children home, to live in the it was family respondent best that have exclusive rights pension. to his The letter offered several respondent options.
On September the trial court entered an order dissolv- the ing and marriage awarding of the custody petitioner. children to The court found respondent was the source of primary income for the the family, debts, main cause of some of the and would be the main source of college funds for the children. The court stated since respondent debts, must the bulk pay he given was a choice of various division property options.
Petitioner was awarded of the home possession acreage and until Shannon was 18 years old and out of school. high Petitioner received the furnishings and equipment, except glass the cut vase and the fur- niture respondent brought into the marriage. She received the vehi- cles the except Porsche.
Respondent was ordered to the pay mortgage, taxes, insurance, repairs and on the marital home. The marital home was to be sold af- ter Shannon reached 18 and out of age high was school. The equity was to be divided between the equally parties. re- Respondent ceived the mortgage deduction, interest pension clinic, through Porsche, and subject to its debt. court respondent The noted was to receive any interest from his in Link partnership share Clinic. In dis- cussing support, child court found the interest was a since wasted asset it would be used to insurance pay respondent’s Thе court all debts. respondent pay unpaid costs. ordered marital $1,760 The court set child at month until support per September $2,180 1989, $1,825 per September per month until and then at $1,760 net month. The court on a figure projected based as The suggested by respondent. court or- approximately with existing dered to maintain insurance ex- respondent policies, beneficiaries, to maintain insurance for isting adequate medical $3,415.70 respondent pay children. court further ordered $1,428.70 petitioner’s public certified petitioner’s attorney maintenance, than Finally, prop- accountant. the court denied other capable in lieu of maintenance. The noted was erty petitioner court full time chose not to do so. the court de- working Subsequently, but petitioner’s nied motion reconsideration.
Opinion argues the trial court’s division marital
Initially, petitioner applied was and the trial court inequitable, improperly 503(d) of the Illinois and Dissolution Marriage factors stated section 503(d)). Act Rev. Stat. Peti- (Act) profit-sharing plan only tioner contends the was real pension residence and ad- parties’ asset in the since marital possession, Therefore, acreage were encumbered. received joining pension profit-sharing both his interest in Link Clinic and her Petitioner did not determine the value of use plan.
residence. home the marital has argues benefit
Respondent in- argues must Respondent secondly worth- which be calculated. received *7 in Link Clinic not which be- property terest is the received value for it. contends division Respondent cause he no abuse of was not an discretion. the court must calculate the reply brief, petitioner
In her contends in the home the detriment to cash value of marital present in as increase Petitioner probable pension. well as respondent, value of alterna- consequences present then contеnds tax cash must calculated. dispositions tive be Act the court discretion divide 503(d)
Section allows proportions, considering it just in considers property marital what 1987, Rev. Stat. ch. relevant matters. factors and all other listed 273, 3d (1988), App. 165 Ill. 40, Marriage In Benz 503(d); re par. of the value of non- 1316.) consider: The court should 518 N.E.2d of in party each acquir contribution property; marital and marital contribution; age, health, homemaker any ing including property,
847
each
occupation,
income,
party,
source
of
employability
of
findings are
whether
is also to be awarded. No specific
maintenancе
645,
Ill.
3d
Marriage
App.
In
144
necessary.
Mayzner (1986),
re
of
the trial court
Clinic,
did not consider
interest in Link
partnership
$38,962,
anas
asset having
Respondent applied
real worth.
that value
debt,
reduce
insurance liability
part
which was incurred as a
of Link
merger
Clinic with Carle Clinic. The merger was not final
ized at
dissolution,
the time of the
its terms
but
were set. Generally,
property acquired
marriage,
after
inapplicable
with certain
excep
tions, is
presumed
be marital
v.
property. (Hofmann Hofmann
(1983), 94 Ill.
205,
499;
40,
2d
N.E.2d
Ill. Rev. Stat.
ch.
par.
503(a).)The business interest
a spouse acquired
to mar
subsequent
riage constitutes marital
property subject
equitable distribution
upon dissolution. In re Marriage
Stone
155 Ill.
3d
Respondent concedes the value interest in Link Clinic was a marital asset. 503(d)(1) Section of the Act (Ill. Rev. 503(d)(1))provides the court shall mari divide tal just proportions, considering relevant factors. Among those factors is each to or party’s contribution of the mari dissipation tal use property. “Dissipation” is of marital spouse’s assets one sole benefit or for a purpose unrelated to the marriage at time when the marriage undergoing is an (In irreconcilable breakdown. re Partyka (1987), N.E.2d 676.) Where a party dissipated assets, has the trial court may charge the amount dissipated against the offending party’s share of the marital so the other property, party compensated. Partyka,
848 545,
Ill.
3d
We valuation just prop- determination of a reaching ties will assist the court in its many a value for items division. The trial court did not set erty *9 is a case, personal personal property In this valuation property. settle- property the fairness of a determining to necessary predicate involved, the ob- primary ment. are We note also that where children (Stone, for them. jective support of the court is to provide adequate 75, The trial court on remand 908.) 155 Ill. 3d at 507 N.E.2d at light will an to reassess division opportunity have of the Act reconsider a division of all factors stated section 504 and the parties’ assets and liabilities. calculating
Petitioner next the court erred in child argues trial allowing and a de- support by using past by rather than future income argues duction for certain debts. future income for child Respondent deducted support purposes speculative correctly is and the trial court amounts used to income. generate
Section 505 of the Act for the of child provides imposition and determines the amount support obligations upon statutory based criteria. The minimum amount for the of three children is support 32% of the net income. ch. supporting party’s Rev. “Net as income from all par. 505(a)(1).) income” is defined total sources, tax; (a) tax; (b) (c) minus: Federal State income social secu dues; (d) contributions; rity; mandatory (e) (f) depen retirement union dent and health premiums; (g) prior obligations individual insurance support order; for the paid pursuant (h) expenditures court аnd re payment of represent necessary expenses debts reasonable for the production income. Ill. Rev. Stat. 505(a)(3); In re Adams
N.E.2d 1075.
Respondent began as an associate of Carle employment Clinic on the hearing. date of the He testified his mini guaranteed $140,000. mum gross urges was Petitioner this court to take salary $140,000 less taxes and social and use the resul salary security tant figure as the base for calculations. Petitioner’s ar salary support gument insurance, does not consider deductions for health deductions for expenses, business The trial court did err in using and debts. not the 1987 income as figure calculating support the base for child amounts.
Petitioner next the court allowed re argues erroneously an spondent pay deduct 1987 taxes and amount borrowed those taxes from his income. The record does not this gross support contention. subtracted the taxes and a Although Doehring income, respondent’s gross sup- debt them from the amount of pay $16,000 to port by respond- awarded the trial court shows it added contention, ent’s net income as Petitioner’s by Doehring. calculated thus, is supported not record. by in
Petitioner next contends deductions from allowing gross come for twin-engine plаne for debts incurred purchase three debts these other was Petitioner contends were improper. pur The trial found the was specifically plane business debts. court chased investment. Part of the money as a business borrowed on acreage by mortgage was secured second plane adjoining her tes acreage. the home and the first on Petitioner in mortgage as on tax returns. timony was shown an investment agreed plane horses, riders, ranch also trained and used the boarded testified that operation Respondent as business deduction. the ranch. plane amount of the seсond was used for the mortgage Thus, court’s that these were we cannot find trial determination contrary weight the manifest the evidence. business debts court Petitioner next contends allowed deduction *10 as in ordinary bankruptcy pro for all debts unsecured combined Respondent pro The record does not this conclusion. ceeding. support four from One gross for debts his income. involved posed deductions The plane to and ranch. mortgage, purchase second incurred trial tax on the The plane liability plane. other three involved the for of finding expenditures repayment court not еrr in these were did income. produce debts incurred case,
However, the instant we be- by under the facts presented from respondent’s lieve the amounts should not have been deducted Here, obligation. calculating support income of child purposes for had the the marital assets because he received the bulk of respondent Thus, a amounts used to deducting repay debt. duty repay of child purposes support marital debt from income for portion him awarded to a double The allows benefit. Thus, trial erred court could been used to these debts. repay have child supрort. for of determining purposes net income court used the trial figures by we note Additionally, of in 1987 included deduction respondent’s based on not provide of the Act does 505(a)(1) Section nonrecurring for income. net income for calculating income in nonrecurring deduction 1987, 40, 505(a)(1).) par. ch. (Ill. child Rev. support. purposes for 1988 will be actual income respondent’s that on remand We note The its determination. support court in child use by available for payments as child support is to determine responsibility trial court’s required section 505 of the Act. by argues denying
Petitioner next
the trial court’s order
her
rehabilitative maintenance for two
is
contrary
$500-a-month
weight
manifest
of the evidence. Petitioner stated she needed the
update
degree.
award to return to school and
her
An award of main
tenance within
the discretion
the trial court and will not be re
versed on
it
appeal unless
constitutes an abuse of discretion or is
against
the manifest weight
(In Marriage
of the evidence.
re
566,
Zummo
167 Ill.
3d
621.)
521 N.E.2d
We do
adopt the
as to maintenance.
courts
concurring opinion
Reviewing
should be
trial
for mainte
wary
directing
courts to make provisions
nance not requested by
parties.
Marital miscоnduct and morality
are not considered.
standard of
during
established
“[T]he
marriage” is a proper
(Emphasis added.) (Ill.
consideration.
Rev. Stat.
40,
ch.
par. 504(b)(3).)Awards of maintenance under the Act are
governed
the criteria of
by
(Ill.
section 504 of the Act.
Rev. Stat.
504.)
ch.
amount marital
property apportioned
each spouse is one of the
factors
be considered in deciding whether
to grant an award of maintenance under section
the Act
Rev. Stat.
par. 504). Because we are remanding for a
division of marital property, reconsideration of maintenance is neces
545,
Reversed and remanded.
GREEN, J., concurs. STEIGMANN,
JUSTICE specially concurring: I in the opinion concur reached of the court. I by majority write because I separately inequities believe the this case are repre- inequities sentative of similar that occur all too frequently dissolu- *11 State, in tion this with to mainte- proceedings particularly regard nance.
Maintenance is an part public policy of this State important ought not be with As the in majority viewed disfavor. states its an award of maintenance is within the discretion of the trial opinion, court and will not be reversed on unless it constitutes an appeal abuse of is against weight discretion or manifest of the evidence. I con- clude the trial court in case grossly this abused its discretion.
Section 504 of the Illinois and Dissolution of Marriage Marriage 40, forth the stand- 1987, 504) sets par. ch. (Act) (Ill. Act Rev. is war- maintenance An award of awarding for maintenance. ards maintenance seeking that the party ranted where the court finds to property apportioned including lacks sufficient property, to her- support and is unable her, reasonable needs to for her provide Marriage In re 1987, 40, 504(a)(1),(a)(2); pars. Rev. Stat. ch. (Ill. self. 156, 255, 269, 166.) N.E.2d Ill. 3d (1987), Wade of *** reasonable to provide “lacks sufficient phrases [her] mean cannot [herself],” support “is unable to needs” and however! maintenance becomes reduced to before penury that a must be party appropriate. un- apprOpriaté maintenance is understanding of when
A proper the factors description-of from the 504(a) obtained may der section be amount of determining 504(b) considered under section to be 1987, 40, 504(a), pars. ch. (Ill. Rev. Stat. to be ordered. maintenance sufficient to should be 504(b), maintenance Accоrding section (b).) living of established the standard it with spouse seeking provide the pay- situation of the financial except where during marriage, of either party or the health marriage, the duration ing spouse, It 504(b).) makes Rev. Stat. indicates otherwise. not entitled to maintenance because a party no sense to that say subsistence, and then to of herself at some level to support she is able an amount maintenance, it be in should if is entitled that she say living factors, “the standard consistent, with among [estab- other Holman In re See marriage.” during lished] 1013-14, 38-39. 462 N.E.2d children, and three marriage case, after 18 years In the instant work began part She then for dissolution. filed a petition petitioner month. home, netting per nursing only $860 a staff nurse at time as a bache- to school to obtain a desire to return indicated Although she (much this goal income to achieve nursing, she had no lor’s degree had ac- grown that she in the standard herself) less support on surgeon. Respondent, to as the wife an established customed with the surgeon As a affiliated hand, has substantial income. other gross guaranteed had a minimum Urbana, respondent Carle Clinic of potential and has the $140,000, starting July salary earn much more. consider counsel was asked respondent’s arguments,
At oral dissolu- these four after respective positions cir- possible conceded under best of their He marriage. tion as a able to cumstances, gross year be might petitioner circumstances, possible nurse, worst while under
853 surgeon. as a a gross year would continue to these marriage, par- their to the dissolution prior Immediately favorable in a most light marriage. a Viewed ties had of that partnership, the dissolution to four after respondent, years $180,000. income gross a combined earning former will be partners former part- However, best, only is to receive 22% at petitioner remaining 78% to Respondent gets enjoy ners’ total earnings. must, get to in order as through retraining, petitioner need not suffer it. financially. but only morally, is a not
Marriage partnership, recognized as services must be are and homemaker Spouses coequals, are determined. of divorce when the economic incidents significant assign- her having performed penalized Petitioner should be It is family. of labor within agreed-upon ment under the division with the burden to petitioner dissolution saddle inequitable upon continue in respondent and to allow earning potential her reduced their efforts. through jоint he reached advantageous position more case all the maintenance this makes the denial of What family of this of life all of members quality is the which egregious and which will marriage dissolution enjoyed prior they features of how A few of the more notable enjoy. still continue 1986) a are bankruptcy to the (and prior lived dissolution prior and barn 10-acre tract adjoining marital home with an following: a vehicles, thereon; including motor three maintained four horses (includ- over the Porsche; and several airplanes purchased is a pilot. for the who ing twin-engine plane) respondent, onе ev- directed take additional remand, the trial court has been On and needs future financial status idence to ascertain the current and trial court use income so, may I conclude the doing of both In parties. hearing (In re actual on the date rather than potential 450 N.E.2d Ill. 3d (1983), Mittra Marriage of and, predictions of financial 1229, 1232); given certainty relative so. trial court not to do case, viewed as error for the in this it bemay earning of the fair addition, take notice may judicial In the court (In time re period. a certain capital or invested over money power 599, 612, 527 N.E.2d Ryman should presented, the evidence court, upon based 26.) Thus, the future, consumer using into eight years income four and project of income will enable This approximation index price adjustment. the par- resources of real financial consider the trial court to properly hear- time of the are at the be, they as well as what ties as will they ing. eight years (at look four and the trial court should
Directing what an order appropriate the future as it determines least) into as such an requiring should not be understood maintenance should be Rather, an approach the facts of this case. such only on approach it to be utilized. required permits whenever the evidence earlier, directs that maintenance “shall be 504(b) As stated section of time as the court deems periods and for such in such amounts 504(b).) That section further (Ill. Rev. Stat. just.” alia, in factors, inter decid- following directs the court to consider *13 the amount of maintenance: ing mainte- seeking of the party resources “(1) financial [T]he *** ***; independently to meet his needs ability
nance and his marriage; during established (3) the standard of marriage; of the (4) the duration condition of both and emotional (5) age physical parties; [and] from whom maintenancе spouse of the
(6) ability meeting spouse his needs while those to meet sought pars. maintenance.” Rev. seeking (b)(4),(b)(5),(b)(6).) 504(b)(1),(b)(3), focus of should remand, particular factors be above-quoted On will be so the trial court bet- focusing, attention. By the trial court’s regard with both equity positions these place ter able cir- future financial and their financial circumstances present to their cumstances as well. In my judg- outrageous. in this case is of maintenance denial paltry was too for maintenance
ment, original request petitioner’s need reveals the get requested not even what she sum; that she did brought often attitudes too to reexamine bar for trial courts issue of maintenance. to the resolution