In Re Marriage of McCune

408 N.E.2d 319, 86 Ill. App. 3d 311, 41 Ill. Dec. 897, 1980 Ill. App. LEXIS 3247
CourtAppellate Court of Illinois
DecidedJuly 17, 1980
Docket79-778
StatusPublished
Cited by12 cases

This text of 408 N.E.2d 319 (In Re Marriage of McCune) 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 McCune, 408 N.E.2d 319, 86 Ill. App. 3d 311, 41 Ill. Dec. 897, 1980 Ill. App. LEXIS 3247 (Ill. Ct. App. 1980).

Opinion

Mr. PRESIDING JUSTICE ALLOY

delivered the opinion of the court:

This is an appeal by both parties from orders of the trial court in a dissolution of marriage proceeding.

The marriage of the parties was dissolved on April 13,1978. On June 6, 1979, after six separate hearings, the court issued an order distributing the property of the parties and granting custody of their two sons to Mr. Milo McCune. Both parties appeal from the judgment.

The order of June 6,1979, awarded Mr. McCune some stock, which the court found to be his separate property. Mrs. McCune was found to own no separate property. The rest of the parties’ property was deemed marital property. The items in contention were distributed as follows: Mrs. McCune was awarded a 160-acre farm valued at $424,000. This farm had been held in joint tenancy by the parties. Mr. McCune was awarded a 500-acre farm, which had been the family residence. Title to it was in a land trust for the sole benefit of Mr. McCune. The farm was valued at $975,000. In addition, Mr. McCune was awarded grain, farm machinery, and livestock valued at $387,300 and some corporate stock valued at $1,300. The farm and associated personal property were subject to encumbrances of $379,000. Therefore, the net value of Mr. McCune’s share in the marital property was $984,600. Mr. McCune was ordered to pay a $30,000 mortgage debt on the 160-acre farm awarded to Mrs. McCune. He was ordered to pay his former wife’s attorneys’ fees of $15,000. In addition, he was ordered to pay Mrs. McCune $100 per week maintenance for two years. The court characterized the transfer of the jointly held farm to Mrs. McCune’s sole ownership as a taxable event, and ordered Mr. McCune to pay any income tax liability that might result. Mr. McCune was awarded custody of the couple’s two sons, James, age 15, and Harry, age 13.

Mr. McCune appeals (1) the award of maintenance, (2) the order that he pay the outstanding balance of $30,000 on the mortgage encumbering the 160-acre farm awarded Mrs. McCune, and (3) the order that he pay his former wife’s attorneys’ fees. In addition, he asks this court to strike, from the order, a finding by the trial court that “[t]he awarding of the one hundred and sixty (160) acre farm to Lucille McCune is a taxable event and the evidence together with schedules admitted into evidence shows a substantial tax liability upon Milo McCune based on the appreciation in value of the farm land,” and to substitute in lieu thereof “that said award is a division of jointly acquired property in a fair and equitable manner, between common owners, under the evidence, as a result of their joint efforts.”

The McCunes had been married for 15 years. Mrs. McCune is 51 years old. She has completed two years of high school. She has worked part-time as a beautician out of a shop in the marital home, and earned a maximum of $15 per week at this trade. The court, in awarding maintenance, found that Mrs. McCune “lacks sufficient property, including marital property to be apportioned to her, to provide for her reasonable needs, and is unable to support herself through appropriate employment, and is otherwise without sufficient income, and after considering all relevant facts, [the court] finds a maintenance award appropriate.” (See Ill. Rev. Stat. 1979, eh. 40, par. 504(a).) “The awarding of [maintenance] is a matter within the sound discretion of the trial court and will not be disturbed unless it amounts to an abuse of discretion or is against the manifest weight of the evidence.” (Schuppe v. Schuppe (1979), 69 Ill. App. 3d 200, 203, 387 N.E.2d 346.) The court’s finding is consistent with the weight of the evidence. The award of maintenance in this case is temporary, to last only two years. It is clear that Mrs. McCune possesses only limited marketable skills. She surely cannot live on a $15 per week income from setting hair. Even this meager income is currently unavailable to her, as her “shop,” the marital home, was awarded to her ex-husband. She will have to provide herself with another dwelling.

During the couple’s separation, but prior to their divorce, she purchased a house in the town of Mineral. This property was awarded to her. It is, however, subject to a mortgage for which she is liable. Therefore, she will still have to bear the expense of her housing. She also needs cash for the other necessities of life. Mr. McCune argues that the 160-acre farm awarded to Mrs. McCune has a net rental value of $85 per acre, or $13,600 per year. However, this figure is somewhat speculative, as the farm was not rented for cash, but has been farmed by Mr. McCune. The court did not abuse its discretion in guaranteeing for Mrs. McCune an income of $100 per week for a limited period, during which time the income-producing potential of her marital property award might be fully realized.

Similarly, Mrs. McCune should not be forced by necessity into an immediate disposition of the farm if its value can be more fully realized by waiting a reasonable length of time. An award of temporary maintenance is consistent with the full realization of the value of the real property awarded to Mrs. McCune. While our new Marriage and Dissolution of Marriage Act favors the termination of marital ties, such as maintenance, preferring that the parties find their fresh start through the just division of marital property (In re Marriage of Lee (1979), 78 Ill. App. 3d 1123,1132-33, 398 N.E.2d 126), the Act does provide for maintenance in appropriate circumstances. (111. Rev. Stat. 1979, ch. 40, par. 504.) Here, where the former wife is without work or qualifications for work, and where the considerable property which she was awarded is nevertheless nonliquid, a temporary award of maintenance is consistent with the purposes of the Act. Such an award was neither contrary to the weight of the evidence in this case, nor was it an abuse of discretion by the trial court.

Because Mr. McCune will continue to enjoy the income he derives from the operation of the 500-acre farm (plus additional acreage which he rents from his mother), while Mrs. McCune is without income, the order that Mr. McCune pay the $30,000 mortgage balance on the 160-acre farm awarded to Mrs. McCune is consistent with the weight of the evidence, and not an abuse of discretion. It is an appropriate means which the court chose to protect the value of the award to Mrs. McCune. It is consistent with the goal of avoiding a forced sale, at a depressed price, of her marital award.

Similarly, the award of attorneys’ fees to Mrs. McCune is consistent with the weight of the evidence and not an abuse of the court’s discretion. Any spouse may be ordered to pay. a reasonable amount for the costs and attorney’s fees necessarily incurred by the other spouse. The court may make such order “after considering the financial resources of the parties.” (111. Rev. Stat. 1979, ch. 40, par. 508(a).) Mr. McCune was awarded the bulk of the marital property, in the main, consisting of a working, residential farm. Mrs. McCune was awarded only nonliquid assets. Mrs. McCune is virtually without cash and is, for the immediate future, almost entirely dependent upon the maintenance award of $100 per week for her income.

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Bluebook (online)
408 N.E.2d 319, 86 Ill. App. 3d 311, 41 Ill. Dec. 897, 1980 Ill. App. LEXIS 3247, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-mccune-illappct-1980.