In re Marriage of Miller

445 N.E.2d 811, 112 Ill. App. 3d 203, 68 Ill. Dec. 167, 1983 Ill. App. LEXIS 1430
CourtAppellate Court of Illinois
DecidedJanuary 28, 1983
DocketNo. 81-1806
StatusPublished
Cited by32 cases

This text of 445 N.E.2d 811 (In re Marriage of Miller) 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 Miller, 445 N.E.2d 811, 112 Ill. App. 3d 203, 68 Ill. Dec. 167, 1983 Ill. App. LEXIS 1430 (Ill. Ct. App. 1983).

Opinion

JUSTICE MEJDA

delivered the opinion of the court:

Respondent Alex Miller appeals from that portion of a judgment for dissolution of marriage dividing marital property and from subsequent orders against him for failure to comply with such provisions. Petitioner has filed a motion to dismiss respondent’s appeal.

The issues here presented are: (1) whether the disposition of marital property was an abuse of discretion and contrary to law; (2) whether the orders relating to contempt are void for lack of jurisdiction; and (3) whether respondent’s appeal should be dismissed.

Marilyn (petitioner) and Alex Miller were married in 1963. They have two children, Nathan, born in 1965, and Elissa, born in 1970.

Petitioner completed one year of college and worked from the time of her marriage until Nathan was born. The parties stipulated that petitioner was a full-time homemaker during the period of the marriage. At the time of trial petitioner was employed part-time by a market research firm. In 1980, her gross income was approximately $2,500.

At the time of trial respondent was the president, sole employee and sole shareholder of the Argosy Marketing and Development Corporation (Argosy). He draws a salary of $2,000 per month and, in addition, the corporation pays his rent, provides him with an automobile, and pays for numerous personal living expenses.

On June 22, 1981, the court entered a judgment for dissolution of marriage which provided, in part, for a disposition of marital property as follows:

1. That respondent pay petitioner a sum equal to one-half of the total funds in Argosy, the total funds being not less than $75,000. Payment is to be made within 10 days from the date of entry of the judgment. Respondent is to pay all taxes due thereon.

2. That respondent pay petitioner a sum equal to one-half of the total dollar value of all assets contained in the Argosy Pension and Profit Sharing Trust. Payment is to be made within 10 days from the date of entry of the judgment. Respondent is to pay all taxes due thereon.

3. Petitioner is awarded exclusive use of the marital home until the younger of the parties’ children becomes of legal age or has completed her education, whichever occurs last. The property is to remain in joint tenancy. However, if respondent or petitioner dies during the minority of one or both of the children herein, a trust is impressed upon the surviving joint tenant to the extent of one-third of the value of the home, as then determined, “for the benefit of the minor child or children.”

At any time prior to the emancipation or completion of education of the younger of the parties’ children, whichever is the last to occur, petitioner may choose to sell the marital home or purchase respondent’s interest therein. The house must be sold or respondent’s interest purchased upon the last of the children’s reaching the legal age of emancipation or upon the completion of either child’s education, whichever occurs last. Upon sale of the home, the net proceeds shall be divided equally, giving petitioner credit for mortgage payments made.

4. The parties shall divide equally the entire proceeds, at maturity, of a savings certificate with a face amount of $23,000.

Respondent was also ordered to make child support payments. Both parties were barred from any further claim to maintenance.

The value of each party’s share of the assets is as follows:

Petitioner

50% equity in marital home $58,000

50% of certificate of deposit 11,500

Amount equal to 50% of funds in Argosy 37,50o1

Amount equal to 50% of funds in Argosy

pension plan 70,000

Home furnishings 3,000

Savings account 3,500

Total $173,500

Respondent

50% equity in marital home 58,000

Remaining 50% of funds in Argosy 37,500

Remaining 50% of pension funds 70,000

Checking account 1,800

Individual Retirement Account 5,000

Other corporate funds assigned to Alex 15,000

Total $198,800

Following respondent’s failure to produce the requisite funds, on July 6, 1981, the trial court issued a rule to show cause and a restraining order against him. On July 17, 1981, respondent timely filed a notice of appeal of the court’s June 22, 1981, judgment and July 6, 1981, order. Subsequently, on July 21, 1981, the trial court held him in contempt of court and stayed sanctions. This court on September 2, 1981, granted respondent's motion to stay enforcement of the judgment. Petitioner’s motion to dismiss the instant appeal, alleging that respondent accepted certain benefits of the judgment from which he appealed, was taken for ruling herein.

Opinion

The first issue raised by respondent is whether the disposition of property was an abuse of discretion and contrary to law. The distribution of marital property rests within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion. (In re Marriage of Hellwig (1981), 100 Ill. App. 3d 452, 426 N.E.2d 1087.) Such an abuse of discretion occurs only where no reasonable person would take the view adopted by the trial court. In re Marriage of Lee (1979), 78 Ill. App. 3d 1123, 398 N.E.2d 126.

In the instant case respondent argues not that petitioner received a disproportionate share of the marital assets but that the method of payment is erroneous in law and unworkable in practice. He first contends that the court abused its discretion by requiring him to pay petitioner from funds that do not exist. Respondent states that in order to comply with the order of the trial court, he would be forced either to borrow from Argosy’s pension plan or to invade corporate funds. He argues that borrowing from the pension plan is precluded because he is not vested in the plan and has no assets with which to collateralize a loan from the plan and that invasion of corporate funds would have “grave tax consequences.” He states that the order of such a large amount in one payment requires him to perform an impossible task and that the length of time allowed for the payment is unreasonable.

The judgment required respondent to pay petitioner $107,500 within ten days of the order. The evidence shows that respondent had access to assets in an amount sufficient to comply with the order. The order of the trial court did not require an invasion of corporate assets or an illegal use of the funds in the pension plan. We do not find that the amount of the payment ordered by the trial court or the time allowed therefor were unreasonable. Such matters are discretionary with the trial court; we find no abuse of that discretion.

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Cite This Page — Counsel Stack

Bluebook (online)
445 N.E.2d 811, 112 Ill. App. 3d 203, 68 Ill. Dec. 167, 1983 Ill. App. LEXIS 1430, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-miller-illappct-1983.