In Re Marriage of Smith

412 N.E.2d 985, 90 Ill. App. 3d 168, 45 Ill. Dec. 403, 1980 Ill. App. LEXIS 3908
Appellate Court of Illinois·Decided October 15, 1980·No. 79-303·Published·Cited by 13 cases

Opinions

Mr. JUSTICE KASSERMAN

delivered the opinion of the court:

Petitioner, Iona Smith, appeals from the April 25, 1979, order of the St. Clair County Circuit Court with respect to the assignment and division of property and the denial of petitioner’s prayer for the award of maintenance and attorney fees in a proceeding for dissolution of marriage.

The parties, Iona Smith and Gaines N. Smith, were married October 13, 1956. One child, Gaines B. Smith, was born of the marriage. The parties separated on September 8, 1977, and a decree of dissolution of marriage was entered October 12,1978. Subsequently, a hearing was held on October 26, 27, and 30, 1978; and the trial court entered its order on January 3, 1979, relative to all issues other than the dissolution of marriage. Petitioner filed a post-trial motion, and a hearing was held on it on February 22, 1979. The trial court entered an amended judgment on April 25,1979, correcting certain omissions in the original order. It is from this order that petitioner appeals.

During the marriage, respondent was engaged in the sale of insurance and mutual funds. He suffered a heart attack in November 1977, and since that time has been forced to limit his work. Petitioner is currently residing in Indianapolis, where she is employed as an executive secretary. Since 1974, petitioner has held various secretarial positions. Petitioner had two children, William and Candace Koriath, by a previous marriage. William resides in Indianapolis, and her daughter, Candace, was killed in an automobile collision in 1972. As a result of that collision, petitioner received approximately $17,000 in insurance proceeds, which were subsequently either placed in bank accounts or invested in stocks.

The evidence adduced at the hearing disclosed that the parties had acquired various parcels of real estate and various stocks and bank accounts during the marriage. On appeal petitioner raises numerous assignments of error relating to the assignment and division of the parties’ real property, stocks, bank accounts, pickup truck, and pension plans. She also urges that the trial court erred in denying her request for maintenance and attorney fees.

With respect to the disposition of the parties’ real property, petitioner contends (1) that the court erred in fixing the value of the marital home at $41,420 and ordering petitioner to convey her interest in such home to respondent in exchange for one-half that value to be paid by him; (2) that the trial court incorrectly considered 46.89% of a 200-acre tract of land in Washington County to be respondent’s nonmarital property; (3) that the trial court erred in awarding respondent an interest in certain property in Indianapolis, Indiana; (4) that the court erred in finding that a combination office and apartment designated as 117 W. Washington St., Belleville, Illinois, was respondent’s nonmarital property.

The marital home at 421 Missouri Avenue, Belleville, Illinois, was purchased in 1959. Respondent testified that its current value was between $46,000 and $48,000. Petitioner in her testimony estimated the value to be $70,000. In its order the court found the value of the home to be $41,420, found it to be marital property, and awarded it to respondent. The trial court ordered petitioner to convey her interest in the home to respondent, and respondent was ordered to pay her $20,710 for such interest. Petitioner asserts that the trial court erred in finding the value of the home to be $41,420 and in not ordering it to be sold and the proceeds divided rather than ordering her to convey her interest to respondent.

We find no error in ordering petitioner to convey her interest in the marital residence to respondent. The distribution of marital property is within the discretion of the trial court, and it will not be disturbed except for a clear abuse of discretion. (In re Marriage of Thornqvist (1979), 79 Ill. App. 3d 791, 399 N.E.2d 176; In re Marriage of McMahon (1980), 82 Ill. App. 3d 1126, 403 N.E.2d 730.) In the case at bar respondent planned on remaining in the Belleville area while petitioner had moved to Indianapolis. The parties’ son was also still in Illinois attending college. Based on these considerations it was reasonable for the court to permit respondent to retain the marital home and to require petitioner to convey her interest to respondent in return for her being compensated for one-half of the value of the property rather than to require the property to be sold and the proceeds divided. However, there is no evidence in the record to substantiate the court’s finding the value of the house to be $41,420. Respondent, who is also a licensed real estate broker, estimated the value to be between $46,000 and $48,000, while petitioner testified that the value was $70,000. The court in In re Marriage of Evans (1980), 85 Ill. App. 3d 260, 406 N.E.2d 916, refused to disturb the trial court’s finding as to the value of the home of the parties where it was within the range of value presented at trial; however, in the case at bar the trial court fixed the value at a figure almost $5,000 lower than the lowest estimation of its value. Therefore, this cause must be remanded for the trial court to establish the value of the home on the evidence introduced at trial.

The parties owned in joint tenancy a 200-acre tract of land in Washington County, Illinois. The property was acquired by the parties in 1965 for $12,900. Respondent testified that $2,036.89 of the down payment was made from his nonmarital funds. He stated that $1,000 of the down payment was a gift from his mother and $1,036.89 was from the proceeds of the sale in 1965 of property on Bel Air Drive that the parties owned in joint tenancy. Respondent testified that $1,036.89 of the funds used to purchase the Bel Air Drive property in 1957 also had been a gift from his mother. Respondent further testified that $3,670.15 of his inheritance from his mother was used to make mortgage payments on the property. Respondent estimated the value of the land to be $72,500, while petitioner valued it at $200,000.

The trial court ordered the 200 acres in Washington County to be sold and ordered respondent to be paid 46.89 percent of the proceeds of sale of the property as his nonmarital property. The court found that the respondent’s payments on the original purchase price and his payments on the mortgage from his own funds represented 46.89 percent of the purchase price of $12,900 and that he consequently is entitled to 46.89 percent of the sale proceeds. The trial court further ordered that the remaining 53.11 percent of the proceeds of sale of the property was marital property to be divided equally between the parties.

Petitioner contends that the trial court improperly awarded respondent 46.89 percent of the proceeds of sale of the 200-acre farm as his nonmarital property. We agree.

Respondent is entitled to a refund of the amount of identifiable nonmarital funds he paid towards the acquisition of the 200 acres in Washington County. (In re Marriage of Preston (1980), 81 Ill. App. 3d 672, 402 N.E.2d 332; In re Marriage of Dietz (1979), 76 Ill. App.

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In Re Marriage of Smith, 412 N.E.2d 985, 90 Ill. App. 3d 168, 45 Ill. Dec. 403, 1980 Ill. App. LEXIS 3908 (Ill. Ct. App. 1980).

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