In Re Marriage of Meyer

557 N.E.2d 242, 197 Ill. App. 3d 975, 145 Ill. Dec. 472, 1990 Ill. App. LEXIS 593
CourtAppellate Court of Illinois
DecidedApril 27, 1990
Docket1-89-2630
StatusPublished
Cited by16 cases

This text of 557 N.E.2d 242 (In Re Marriage of Meyer) 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 Meyer, 557 N.E.2d 242, 197 Ill. App. 3d 975, 145 Ill. Dec. 472, 1990 Ill. App. LEXIS 593 (Ill. Ct. App. 1990).

Opinion

JUSTICE McNAMARA

delivered the opinion of the court:

Phillip A. Meyer, petitioner and counterrespondent in a marriage dissolution proceeding, appeals from an interlocutory order permitting his wife, Leanne V. Meyer, respondent and counterpetitioner, to use $510,000 of the marital assets to purchase a home. Respondent counters that this court has no jurisdiction to hear the appeal under Supreme Court Rule 307(a) (107 Ill. 2d R. 307(a)). We agree with respondent.

The parties were married on August 3, 1963. They have eight children, four of whom are still minors and reside with respondent, along with two college-age children. On February 17, 1988, petitioner filed this dissolution of marriage action.

On July 27, 1989, respondent sought emergency relief, asking the court to enter an order, pursuant to section 501(a)(3) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 501(a)(3)), directing that the proceeds of the sale of the parties’ real estate be made available to her for the purchase of a certain residence for her and the children, and for such further relief as the court deemed just and equitable.

The motion alleged that the parties had acquired three parcels of real estate in or near Barrington Hills. One house had been sold for $300,000 in cash. A 10-acre parcel of vacant land had been sold for $255,000 in cash. The marital residence was up for sale for $1.1 million. All three pieces of property were unmortgaged.

The motion stated further that in October 1988, the 46-year-old respondent was diagnosed as suffering from a muscle degenerative illness. The disease is called amytrophic lateral sclerosis (ALS), and is commonly known as Lou Gehrig’s Disease. The motion attached an affidavit of respondent’s physician, Dr. Scott Heller, stating that her disease had progressed quickly and that the deterioration in muscle strength and function would continue.

The motion listed the physical difficulties respondent experienced in being confined to a wheel chair in a two-story home where the minor children, including a 7-year-old and 10-year-old, had bedrooms upstairs. Respondent asked that she be permitted to use the cash from the sale of the two pieces of real estate, which constituted approximately 30% to 40% of the value of the marital estate, to buy a $510,000 ranch home in Inverness. That home could accommodate her physical needs.

On August 1, 1989, the petitioner moved to strike the motion for temporary relief, arguing that it was a request for “an allocation of marital assets prior to any hearing determining the respective rights and interests of the parties in and to any property in either of the parties’ names.”

On August 1, 1989, a hearing was held on the motion for temporary relief. Respondent testified that in the past 30 days her condition had deteriorated rapidly. She no longer had complete use of her right hand, right arm, or either leg. She could not stand, turn over in bed, go to the bathroom, or perform other daily functions without significant help. The physical layout of the marital residence further impaired her ability to move from room to room, to get into the bathroom, or even to get out of the house if a fire should occur. The Inverness home which she wished to purchase could accommodate all the necessary physical changes, and the younger children’s bedrooms would be on the same level as the master bedroom.

On August 15, 1989, after considering briefs and memoranda, the court orally announced its findings and rulings, and on September 6, 1989, it entered a written order. The court found that respondent “possesses a clearly ascertainable right to the use of the marital estate” along with petitioner; that in view of respondent’s severe physical disability, she and the two youngest children would suffer “irreparable harm” in the absence of the relief she requested; that she had “no adequate remedy at law”; that she was “likely to be successful on the merits in a trial of this action” because she would likely be awarded at least 38% of the marital estate, which included real estate valued at $1,340,000; and that respondent’s need for the relief “far outweighs any possible prejudice that [petitioner] may suffer as a result of granting the relief requested.”

The court denied petitioner’s motion to strike and granted respondent’s motion for temporary relief. It ordered that “$510,000 of the proceeds of the sale of the real estate owned by the parties shall be applied to the purchase of the real estate and improvements thereon located” in Inverness. It also ordered that the balar" of the proceeds would be held in escrow pending the trial of this cause, and that the Inverness home was to be “titled jointly in the names” of both parties pending further order of the court. This interlocutory appeal followed.

Respondent contends that this court does not have jurisdiction to hear petitioner’s interlocutory appeal. Petitioner counters that the order was in fact an injunction, from which an interlocutory appeal can be taken under Supreme Court Rule 307(a) (107 Ill. 2d R. 307(a)).

The threshold issue, then, is to determine whether the order appealed from may be properly characterized as an injunction. (See JFS v. ABMJ (1983), 120 Ill. App. 2d 261, 458 N.E.2d 76; Bullard v. Bullard (1978), 66 Ill. App. 3d 132, 383 N.E.2d 684.) Tests and definitions regarding which orders are interlocutory or appealable must be considered in light of the facts and relief sought in each case. In re Organization of Fox Valley Community Airport Authority (1974), 23 Ill. App. 3d 168, 318 N.E.2d 496.

In marital dissolution proceedings, the court may grant temporary relief in the nature of (1) temporary maintenance or child support; (2) preliminary injunction; or (3) “other appropriate temporary relief.” (Ill. Rev. Stat. 1987, ch. 40, par. 501(a).) Section 501(a)(3) is an all-inclusive provision which allows a party to move for any other appropriate temporary relief, such as temporary custody; exclusive possession of the marital residence; sequestration of assets; and temporary attorney fees. (Ill. Ann. Stat., ch. 40, par. 501, Historical and Practice Notes, at 377 (Smith-Hurd 1980).) Temporary relief afforded under section 501 is often in the form of neither a temporary restraining order nor a preliminary injunction. Ill. Ann. Stat., ch. 40, par. 501, Supplement to Historical and Practice Notes, at 39 (Smith-Hurd Supp. 1989).

In a dissolution of marriage case, issues concerning property disposition or division are not separate claims. Instead, they are related, ancillary parts of the single petition for dissolution. (In re Marriage of Leopando (1983), 96 Ill. 2d 114, 449 N.E.2d 137.) “In fact, it is difficult to conceive of a situation in which the issues are more interrelated than those involved in a dissolution proceeding.” (In re Marriage of Leopando, 96 Ill.

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Cite This Page — Counsel Stack

Bluebook (online)
557 N.E.2d 242, 197 Ill. App. 3d 975, 145 Ill. Dec. 472, 1990 Ill. App. LEXIS 593, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-meyer-illappct-1990.