In Re Marriage of Gable

563 N.E.2d 1215, 205 Ill. App. 3d 696, 151 Ill. Dec. 109, 1990 Ill. App. LEXIS 1812
CourtAppellate Court of Illinois
DecidedNovember 29, 1990
Docket5-89-0568
StatusPublished
Cited by11 cases

This text of 563 N.E.2d 1215 (In Re Marriage of Gable) 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 Gable, 563 N.E.2d 1215, 205 Ill. App. 3d 696, 151 Ill. Dec. 109, 1990 Ill. App. LEXIS 1812 (Ill. Ct. App. 1990).

Opinions

JUSTICE RARICK

delivered the opinion of the court:

Amber R. Gable appeals from that portion of the judgment of dissolution of marriage to James J. Gable as entered by the circuit court of Fayette County pertaining to the division of marital property and the award of maintenance and attorney fees. We affirm in part, reverse in part and remand this cause for further proceedings.

The parties, Amber and James, were married in March of 1953. In 1985, the parties split the marital residence with each living separately in one half of the house. This arrangement continued up to the time of the hearing on Amber’s petition for dissolution of their marriage. After the hearing, the trial court ordered the marital residence and surrounding 42 acres, valued at $49,000, to be sold at public sale with the net proceeds to be awarded one-half to each party. No debt existed against this property. The trial court also awarded Amber $500 a month in maintenance until the sale of the marital residence. The amount was then to be reduced to $250 a month for as long as James was employed on a regular and continuing basis. James was then working as a correctional officer for the State, earning approximately $24,000 a year. Prior to this employment, James had been self-employed as a farmer and truck driver. James, however, continued to engage in some farming activities with varying amounts of success. Amber, on the other hand, has been, and still is, unemployed since the beginning of the marriage. She did, however, assist James in his farming operations over the years. Amber, now age 56, has no high school degree or training, suffers from various health problems, and has little in the way of nonmarital property. She claims she has had to borrow some $21,000 over the years from her parents in order to pay expenses. James, age 60, also has health concerns, but unlike Amber, also owns, as part of his nonmarital property, an additional 167 acres of farmland. As a further disposition of the marital estate, James was ordered to assume and hold Amber harmless on all debts, excepting the $21,000 loan from Amber’s parents which Amber was ordered to assume herself. Additionally, James was directed to pay $1,000 toward Amber’s attorney fees.

Amber argues on appeal the trial court erred in ordering the marital residence and surrounding acreage be sold and the proceeds divided equally between the parties. She believes, in light of her age, her lack of training and/or income, her health, James’ income potential, the value of his nonmarital property and the length of the marriage, she should have been awarded the marital residence. In other words, Amber contends a disparate division of the marital estate in her favor is warranted in this instance.

In general, the distribution of marital property is a matter that rests within the sound discretion of the trial court. Only when that discretion has been abused will we disturb the distribution. Such an abuse occurs when no reasonable person would take the view adopted by the trial court. (See, e.g., In re Marriage of Korper (1985), 131 Ill. App. 3d 753, 757, 475 N.E.2d 1333, 1336; In re Marriage of Greenberg (1981), 102 Ill. App. 3d 938, 944, 429 N.E.2d 1334, 1339.) We cannot say no reasonable person would take the view adopted here. The only major asset of this lengthy marriage was the house and surrounding acreage. Obviously the parties could no longer share the house, yet they both needed a place to live. The trial court reasonably could have concluded that selling the house and splitting the proceeds was the only practical way to deal with this asset. (See In re Marriage of Smith (1987), 162 Ill. App. 3d 792, 799, 516 N.E.2d 777, 782.) Since both had made substantial contributions to the marriage, the trial court also reasonably could have concluded it would be unfair to award either the house. (See In re Marriage of Miller (1980), 84 Ill. App. 3d 931, 936, 405 N.E.2d 1099, 1104. Cf. In re Marriage of Clearman (1981), 97 Ill. App. 3d 641, 648, 423 N.E.2d 283, 288; In re Marriage of Lloyd (1980), 81 Ill. App. 3d 311, 313, 401 N.E.2d 328, 329.) We therefore find no abuse of the court’s discretion with respect to the disposition of the marital residence and surrounding land. We also note the proceeds from the marital property awarded to James will not meet the marital debts assigned to him.

We do, however, find an abuse of the trial court’s discretion pertaining to the award of maintenance. Section 504 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 504) permits an award of maintenance when one spouse is unable to support himself or herself through appropriate employment or is otherwise without sufficient income. (See In re Marriage of Stallings (1979), 75 Ill. App. 3d 96, 101, 393 N.E.2d 1065, 1068.) Here, the court recognized Amber’s need for maintenance based on her lack of property, employment skills, age and health, but chose to reduce the amount of support once the marital residence was sold. While it is true once the house is sold, Amber will have some capital, she is not required to consume her share of the marital property in order to maintain herself. (See Greenberg, 102 Ill. App. 3d at 942, 946, 429 N.E.2d at 1338, 1341; Lloyd, 81 Ill. App. 3d at 313, 401 N.E.2d at 330.) Prior to the dissolution James was giving Amber approximately $600 a month for her support, even at times when his farming endeavors were unsuccessful. Once the house is sold, Amber’s expenses will be even higher, yet James’ maintenance obligations will be reduced to $250 a month. Such a reduction can only leave Amber without adequate support to meet her needs in the future. We therefore are compelled to remand this cause for a redetermination of the maintenance award.

Amber next contends the trial court abused its discretion in directing James to pay only $1,000 toward the $4,340 incurred in attorney fees and costs. To justify the allowance of attorney fees, the party seeking relief must show a financial inability to pay them himself or herself as well as the ability of the other spouse to do so. (See In re Marriage of Donahoe (1983), 114 Ill. App. 3d 470, 477, 448 N.E.2d 1030, 1035; Miller, 84 Ill. App. 3d at 937, 405 N.E.2d at 1104.) Financial inability exists when payment would strip that person of his or her means of support and undermine his or her economic stability. (See In re Marriage of Pitts (1988), 169 Ill. App. 3d 200, 210, 523 N.E.2d 664, 670; In re Marriage of Derning (1983), 117 Ill. App. 3d 620, 626, 453 N.E.2d 90, 94.) Clearly, Amber has shown a financial inability to pay her fees as compared to that of James. Amber is unemployed and virtually unemployable. James, on the other hand, not only has full-time employment with the State, he also has his farming business.

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In Re Marriage of Gable
563 N.E.2d 1215 (Appellate Court of Illinois, 1990)

Cite This Page — Counsel Stack

Bluebook (online)
563 N.E.2d 1215, 205 Ill. App. 3d 696, 151 Ill. Dec. 109, 1990 Ill. App. LEXIS 1812, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-gable-illappct-1990.