In Re Marriage of Amato

399 N.E.2d 1018, 80 Ill. App. 3d 395, 35 Ill. Dec. 729, 1980 Ill. App. LEXIS 2218
CourtAppellate Court of Illinois
DecidedJanuary 21, 1980
Docket79-89
StatusPublished
Cited by30 cases

This text of 399 N.E.2d 1018 (In Re Marriage of Amato) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Marriage of Amato, 399 N.E.2d 1018, 80 Ill. App. 3d 395, 35 Ill. Dec. 729, 1980 Ill. App. LEXIS 2218 (Ill. Ct. App. 1980).

Opinion

Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

Bette A. Amato (the wife) appeals from the portion of the judgment entered November 6,1978, dissolving her marriage to Joseph Amato (the husband), relating to the disposition of property, the failure to award maintenance or adequate child support and the order of visitation.

The parties were married in 1962 and had three children, James, Thomas and Angele, whose ages at time of trial were 16, 14 and 13, respectively. The wife at time of trial was 44 and the husband 70 years of age.

The petition for dissolution was filed on June 6, 1978, and was uncontested as to the grounds for dissolution. The issues on appeal concern the division of property and the questions of maintenance and child support. The parties are in substantial agreement as to the value and extent of the following marital and nonmarital assets:

Harvard Race Track Property consisting of approximately

19 acres * 85,500

Two residential lots in Woodstock (“Big Foot”) 15,000

28 acres in the city of Woodstock 560,000

80 acre farm property and buildings in Harvard 200,000

Residence of the parties in

Barrington 328,000

Various shares of corporate stock 3,500

The court found that the Big Foot lots and the 28 acres in Woodstock were nonmarital property of the husband. It further found that the Harvard farm and Race Track were marital property and ordered them sold, with the proceeds to be divided equally between the parties. The court also found that the Barrington residence was the husband’s nonmarital property but that Bette and the children could reside there until Angele reaches age 22. It was further provided that if the husband dies before Angele reaches that age the residence would be sold and the proceeds placed in trust, the income to be used for the support and education of the children, the. corpus to be distributed to the children equally when Angele reaches 22. The court ordered the husband to pay the real estate taxes and fire insurance on the property while he ordered the wife to pay for maintenance and utilities.

Another asset of the parties was the McHenry County Tobacco Company, which was operated as a family business and provided much of the family income. In 1975, the husband conveyed the business to the wife apparently as an accounting procedure to allow the husband to receive social security. The wife testified that she paid the husband the stated consideration of *37,925 but that this was nearly all used for family expenses. In 1978 the wife sold the business for *60,000, receiving a *10,000 down payment with the balance payable in 5 years in monthly payments of *908.30. She testified that she had run the business since 1968; but the husband testified that he managed it and drew *300 in weekly salary from it until 1976. The court found that the proceeds of the McHenry County Tobacco Company was separate property of the wife.

Other assets included three automobiles, jewelry, extensive household furnishings, two horses, snowmobiles and various personal items. The wife also testified that she took *16,000 in cash from a joint safety deposit box in August 1976, which was used for family expenses.

The wife testified to the family living expenses which totaled *84,000 a year. She received *336 a month from the husband’s social security in addition to the monthly payments from the sale of the Tobacco Company.

The husband testified that he receives *388.40 per month as social security, and that his only other income is the *700 per month from rental of the race track and farm. He did not estimate his total living expenses although he testified as to certain regular expenses.

In summary, following the court order it appears that the wife will have approximately *130,000 in cash, being one-half of the net proceeds of the sale of the property designated as marital, some jewelry and a 1977 Ford station wagon. She and the children will have a rent-free residence, with taxes and insurance paid, but she must maintain the premises and pay utilities. The husband under the decree retains real estate valued at *575,000 in addition to the *130,000 in sale of proceeds. In addition, under the decree he must pay the attorney fees to the wife’s attorney in the amount of *5,000, taxes and insurance on the Barrington home as noted, the educational expenses of the children and their medical and dental expenses above *50 per episode. The husband was also given the right to approve the college which his children attend and was granted visitation rights.

The wife’s primary argument is that, aside from the resolution of the question of which assets are marital and which nonmarital, the court can make adequate provision for the support of the wife and the children and did not do so. Alternatively she contends that the court erred in finding that the Barrington residence was nonmarital property of the husband.

Under the statutory scheme of the Illinois Marriage and Dissolution of Marriage Act (see Ill. Rev. Stat. 1977, ch. 40, pars. 503,504), we must reach the question of the disposition of the assets of the parties before deciding on the question of maintenance, since the issues of maintenance and child support relate directly to the final property disposition. Under section 504, the court is to award maintenance only if the spouse seeking it lacks sufficient property and is unable to support herself. Referencing similar provisions under the Uniform Marriage and Divorce Act, the Commissioners’ Comments to section 308 state:

“The dual intention ” * ° is to encourage the court to provide for the financial needs of the spouses by property disposition rather than by an award of maintenance. Only if the available property is insufficient for the purpose and if the spouse who seeks maintenance is unable to secure employment appropriate to his skills and interests or is occupied with child care may an award of maintenance be ordered.” (9A Unif. Laws Annot. 161 (1979).)

Child support is, in turn, partially predicated upon the adequacy of the financial resources of the custodial parent. Ill. Rev. Stat. 1977, ch. 40, par. 505(2).

We therefore first consider whether the court erred in finding that the Barrington home was the nonmarital property of the husband. The title to that property was in a land trust in which the husband was the sole beneficiary and had complete power of direction including the right to designate his survivor in interest. He testified that he purchased the lots upon which the home was constructed in 1969 for *12,500, using part of the proceeds from the sale of land which he had owned prior to the marriage in Tucson, Arizona, and in Fox River Grove, Illinois. He said that he had spent some *145,000 to *150,000 in construction costs. A *30,000 mortgage was placed on the property, and there is no evidence that it was repaid from other than family funds. The wife testified that the initial cost was approximately *90,000 and related that she had general supervision over the construction and did some of the work herself.

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Bluebook (online)
399 N.E.2d 1018, 80 Ill. App. 3d 395, 35 Ill. Dec. 729, 1980 Ill. App. LEXIS 2218, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-amato-illappct-1980.