In Re Marriage of Bentivenga

441 N.E.2d 336, 109 Ill. App. 3d 967, 65 Ill. Dec. 423, 1982 Ill. App. LEXIS 2381
CourtAppellate Court of Illinois
DecidedSeptember 16, 1982
Docket81-673
StatusPublished
Cited by49 cases

This text of 441 N.E.2d 336 (In Re Marriage of Bentivenga) 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 Bentivenga, 441 N.E.2d 336, 109 Ill. App. 3d 967, 65 Ill. Dec. 423, 1982 Ill. App. LEXIS 2381 (Ill. Ct. App. 1982).

Opinion

PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

Joan Bentivenga appeals from a judgment dissolving her marriage to Vincent Bentivenga, Jr. She challenges the classification and distribution of property, the award of attorney’s fees, denial of maintenance, and denial of support for a child who would be living at home while attending college.

The parties were married January 28, 1961. They have two children, Mark (age 20 at the time of trial) and Scott (age 19 at the time of trial).

The husband, an attorney, began work as an Assistant State’s Attorney in Cook County shortly after the marriage. He held the position for 12 years, after which he worked for the Cook County Sheriff’s Office for five years. He was elected a Circuit Court Judge of Cook County in 1976 and occupied that position at the time of trial. At the time of trial he was 44 years old and in good health. His annual gross salary was $42,500 in 1977 and 1978, and $50,500 in 1979 and 1980; his take-home pay at the time of trial was $2,445 per month.

The wife worked as a secretary for a real estate appraiser before the marriage and for about seven months thereafter. In 1975 she started working part-time as a legal secretary, becoming a full-time legal secretary about three months before the trial. She has some college credits but no degree. Her 1980 earned income was $9,966.92, and her estimated gross income for 1981 was $14,000. She was 45 and in good health at the time of trial. During the marriage she was primarily responsible for doing household chores and taking care of the children.

The parties disagreed over the extent to which the wife and her now-deceased father helped the husband obtain his job as Assistant State’s Attorney, the extent of her assistance with his campaign for the bench, and the amount of time they spent entertaining “business guests” at home.

The marital home was purchased in August 1968 at a price of $45,000. The husband made a downpayment of $15,000 from his own funds and obtained loans of $15,000 each from his aunt and father; the loans were combined into one mortgage instrument. At the time of trial, $9,600 remained due on the amount owing to his aunt; after he made one or two monthly payments of $103 to his father, they agreed that rather than repay the remainder the husband would deposit the money into a savings account to finance his children’s education.

At the time of trial, the wife and the two children lived in the family home; the husband had been living in a rented condominium since late 1980.

The wife inherited $13,000 from her father during the marriage. She gave $8,000 to her husband, who deposited the money into a savings account, and spent the rest on furniture and household improvements.

At the time of trial Mark was attending Loyola University in Chicago and living at home with the wife. Scott graduated from high school in June 1981 and attends Notre Dame University.

The wife filed her petition for dissolution, and -the husband counterpetitioned for dissolution. A judgment for dissolution was entered August 4, 1981.

I. Property Division

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The wife contends that the marital home and the furniture are overvalued, and that she receives $112,905 as against the husband’s $135,273. She argues that her share is insufficient for her future financial needs, and awarding her less than one-half of the marital property is inequitable because of her relatively low earning potential and opportunity for acquisition of capital assets, considering the length of the marriage and her contribution as a homemaker.

The trial court has broad discretion under the statute (Ill. Rev. Stat. 1979, ch. 40, par. 503(c)) to apportion marital property in “just proportions.” (In re Marriage of Aschwanden (1980), 82 Ill. 2d 31, 37.) An abuse of discretion occurs only when no reasonable man would take the view adopted by the trial court. In re Marriage of Lee (1979), 78 Ill. App. 3d 1123, 1127.

We find no abuse of discretion here. While the award does not appear generous, the decision is justified under the statute in view of the husband’s greater contribution to the marital estate, the wife’s greater share of property immediately capable of producing income, and the substantial value of the property awarded to the wife. By her own calculation the wife received $112,905 worth of marital property, or 42% of the total, contrasted with the husband’s 53%. By the court’s calculation she received 46%, her husband 49%. 1 Most of this property is in the form of cash, and invested at a return reflecting the fair earning power of money (see In re Marriage of Smith (1981), 100 Ill. App. 3d 1126, 1130) would produce over $10,000 per year, which, combined with the wife’s gross salary of $14,000 per year, would give her a gross annual income of over $24,000. This does not appear plainly inadequate for her support.

Concluding that the husband deserved a greater share of the marital property because of his greater contribution towards its acquisition, the court could properly take into account that all of the interest in the pension fund resulted from the husband’s salaries, the savings accounts were built up largely through his earnings, and he made a down payment of $15,000 on the marital home from nonmarital funds. While the wife contributed a part of her inheritance to the marriage, substantially contributed as a homemaker, contributed to the extent to which she advanced the husband’s career, which was disputed, and contributed the earnings from her employment, the court could properly conclude that the husband’s contribution was greater and that this justified his greater share in the distribution.

The wife places considerable reliance on In re Marriage of Smith (1979), 77 Ill. App. 3d 858. There the court reversed an even split of the proceeds from the sale of the marital home with a net worth of $55,000-$70,000, where the husband had been earning $50,000 a year before his voluntary retirement and later $200 a day, whereas the wife had earned little money during the marriage, and had little more than a high school education. Smith is distinguishable in that the wife there received far less marital property in absolute terms than here and had less earning potential and, furthermore, there was apparently no great disparity in the parties’ contributions to the marital property which consisted primarily of the home. While each case must rest on its facts, there is no requirement that the property distribution be even, where one of the spouses contributes a greater amount to the marital assets. In re Marriage of McMahon (1980), 82 Ill. App. 3d 1126, 1130; In re Marriage of Woodward (1980), 83 Ill. App. 3d 253; In re Marriage of Borg (1981), 96 Ill. App. 3d 282; In re Marriage of Swanson (1981), 100 Ill. App. 3d 824.

II. Interest on Nonmarital Property

The wife next argues that the classification of the interest on the husband’s nonmarital First Federal of Chicago savings account amounting to $7,801 as nonmarital property was in error. We agree.

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Bluebook (online)
441 N.E.2d 336, 109 Ill. App. 3d 967, 65 Ill. Dec. 423, 1982 Ill. App. LEXIS 2381, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-bentivenga-illappct-1982.