In re Marriage of Smith

427 N.E.2d 1262, 100 Ill. App. 3d 1126, 56 Ill. Dec. 716, 1981 Ill. App. LEXIS 3460
CourtAppellate Court of Illinois
DecidedOctober 15, 1981
DocketNo. 81-26
StatusPublished
Cited by21 cases

This text of 427 N.E.2d 1262 (In re Marriage of Smith) 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 Smith, 427 N.E.2d 1262, 100 Ill. App. 3d 1126, 56 Ill. Dec. 716, 1981 Ill. App. LEXIS 3460 (Ill. Ct. App. 1981).

Opinion

Mr. PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

Joanne D. Smith (the wife) appeals from a portion of the judgment of dissolution of marriage which disposed of marital property, and from the award of child support, maintenance and attorney’s fees. Andrew P. Smith (the husband) cross-appeals from the portion of the judgment which awarded certain marital property to the wife or directly to the children, and the child support award.

The judgment appealed from was entered on December 12, 1980. Based on our view of the record, we have stated the property division decreed by the court in the following outline:

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The husband is a licensed professional engineer in his own business with two small municipalities as his principal clients. The parties were married on September 11, 1954, eight children being born of the marriage, seven of whom are surviving; five children live in the marital residence, three of whom are minors; he is age 53 and she, 48; before and for a short time after their marriage she was a private secretary. The parties’ tax returns for 1974-1979 were admitted into evidence. The 1978 return reflected net income of approximately $38,000 and that of 1979 approximately $34,000.

Business income was augmented by stock dividends, interest income and a capital gain from sale of stock. Because the wife was awarded all the stock, most of this income will no longer accrue to the husband. The husband paid almost $2,000 social security in 1979. Thus, if the husband earns similar amounts in 1980, he would have about $32,000 disposable income before payment of Federal and State income taxes. He testified that he would earn substantially less in 1980 than in 1979, however.

The husband was ordered to maintain his life insurance policies for the benefit of the minor children until the youngest child graduates from college, with yearly premiums amounting to $3,500. The husband was also ordered to pay parochial school tuition for the youngest child while she is in grade school. Tuition was estimated at $400 a year. He was also required to maintain health insurance for the minor children and pay extraordinary medical and dental costs. The husband was further ordered to pay $1,200 per month ($14,400 annually) to the wife, to be reduced in the future by various means. The result is that the husband’s monthly payments would drop to $700 a month in May of 1981 and, further, would drop to $400 per month in August of 1982. The court denied maintenance, noting that the monthly award to the wife was to give her time to readjust, to secure additional vocational training and “to provide some funds for such purpose and for support for the children.”

The wife was awarded $93,000 in income-producing assets. Her present income is about $1,500 a year. Her annual income at the time of the decree was $14,400 from the husband, plus $1,500, or a total of $15,900. Additional amounts would be realized from the investment of the $93,000 at a reasonable rate of return. She testified to monthly expenses approximately totaling $1,800 with additional expenses associated with the house totaling $520.

The trial judge in a thorough memorandum stated his basic concept that each was an equal partner and that equality was the basic consideration in the division of the marital property. He also took into account the stipulation of the parties that the wife would shortly receive assets of a value of $100,000 from an inheritance from her family.

In her argument that the court based its decision on improper considerations, the wife first argues that the judge improperly relied upon the return on investment which she could realize from the stock and sale of the house with no evidence having been adduced as to the investment value or fair market rental value of the home. It appears from the judge’s memorandum that in denying the wife’s request to reside in the marital residence until the youngest child reached 18 he concluded that when factors such as taxes, insurance, as well as income lost from the retention of the residence “the cost of such a procedure will approximate at least $1,000 monthly on a house of such value.”

Section 503 of the Marriage and Dissolution of Marriage Act permits the court to consider “relevant economic circumstances” in disposing of the property and determining whether there is sufficient property to provide for a spouse’s reasonable needs without awarding maintenance. (Ill. Rev. Stat. 1979, ch. 40, par. 503(c)(4).) We believe that it is thus contemplated that the court must make some approximation of the income available to a party in order to determine whether the marital home should be sold or maintenance should be awarded. We reject the wife’s argument that inferentially suggests that expert witnesses must be called to testify regarding return on investment. In this regard the judge as the finder of fact is able to and in fact required to take notice of “relevant economic circumstances.” It fairly appears from the record that the court was using an estimate of approximately 8 percent which, as a matter of common knowledge, is conservative and not an abuse of discretion. In 1919 the Illinois Supreme Court found that “[i]t is a matter of common knowledge, of which this court may take cognizance, that well secured six per cent first mortgage loans on Illinois farm land are not usually sold at a large discount.” (Kirby v. Judy (1918), 286 Ill. 200, 208.) Generally, a court may take judicial notice of the fair earning powers of money or invested capital in a certain time period. See 29 Am. Jur. 2d Evidence §82 (1967). See also In re Kees Estate (1948), 293 Iowa 287, 293, 31 N.W.2d 380, 383; Fortman v. Manthey (N.D. 1976), 248 N.W.2d 821, 823; Trailer Train Co. v. State Board of Equalization (N.D. Cal. 1981), 511 F. Supp. 553, 558. And cf. Island Lake Water Co. v. Illinois Commerce Com. (1978), 65 Ill. App. 3d 853, 857.

The wife also contends that it was error for the trial court, in considering relative economic circumstances, to take into account income which would probably be received from inheritance to the wife. It was undetermined as to when the assets would come to the wife because of probate procedures and whether or not they were income producing. However, the wife stipulated that the estate had assets of about $800,000 and that under the will she would receive one-sixth of the estate after the expenses and taxes were paid, or approximately $100,000. The Act requires the court to consider nonmarital property, even where the non-marital property will be received in the future when it determines the “relevant economic circumstances of each spouse” (Ill. Rev. Stat. 1979, ch. 40, par. 503(c) (4)) and the “amount and sources of income” of the parties (Ill. Rev. Stat. 1979, ch. 40, par. 503(c)(7)), as well as “the reasonable opportunity of each spouse for future acquisition of capital assets and income.” (Ill. Rev. Stat. 1979, ch. 40, par. 503(c) (10).) It is a fair inference from the record that the court implicitly recognized that the inheritance might not be received for some time by awarding the wife an additional $300 a month until August 1, 1982. We find no error in the court’s consideration of the future inheritance in the circumstances of this case.

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Bluebook (online)
427 N.E.2d 1262, 100 Ill. App. 3d 1126, 56 Ill. Dec. 716, 1981 Ill. App. LEXIS 3460, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-smith-illappct-1981.