In Re Marriage of Toth

586 N.E.2d 436, 224 Ill. App. 3d 43, 166 Ill. Dec. 478, 1991 Ill. App. LEXIS 2126
CourtAppellate Court of Illinois
DecidedDecember 20, 1991
Docket1-90-0324
StatusPublished
Cited by10 cases

This text of 586 N.E.2d 436 (In Re Marriage of Toth) 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 Toth, 586 N.E.2d 436, 224 Ill. App. 3d 43, 166 Ill. Dec. 478, 1991 Ill. App. LEXIS 2126 (Ill. Ct. App. 1991).

Opinion

JUSTICE McNULTY

delivered the opinion of the court:

On December 28, 1989, the trial court entered a judgment for dissolution of marriage of Erna Toth and Tamas Toth. Tamas appeals that portion of the judgment that relates to the award of maintenance and the distribution of property. The issues presented on appeal are whether the trial court properly (1) determined that Erna did not dissipate marital assets; (2) awarded maintenance to Erna; and (3) awarded Erna exclusive possession of the marital residence.

Erna and Tamas were married on May 21, 1966. No children were born to or adopted by them. At the time of trial Erna was 61 years of age. She had been employed by the Chicago Northwestern Transportation Company for 42 years. Erna injured her back in 1987, while exiting a train, but the accident did not affect her job performance and she never requested light duty because of her injury. At the time of trial, the lawsuit she filed against the Northeastern Illinois Regional Commuter Corporation as a result of her back injury was still pending. In 1988, Erna earned a gross income of $29,182 and her gross earnings for the first five months of 1989 were $13,381.53. Erna's amended affidavit of expenses reflected monthly expenses of approximately $2,200. Erna testified that she is eligible for retirement from her job with the Chicago Northwestern Transportation Company when she reaches age 62 and plans to retire at that time. She expects to receive around $l,200-per-month income from her pension when she retires. She has no plans for employment after retirement. Erna suffers from osteoporosis and arthritis in her knees but does not take any prescribed medication from any physician for either ailment.

Tamas, at the time of trial, was 49 years of age and had been employed by Delta Airlines as an auto mechanic and auto body repairman since January 3, 1966. Tamas considers his health fairly good for his age, but suffers from a medical condition known as ankylosis spondylitis which has caused a deformity of his spine that has limited his spine and neck mobility. Tamas is under the care of a physician and has been taking a prescribed medication known as Indocin since 1979 for his condition. Tamas testified that as a result of his medical condition, he performs light duty work when such work is available. Tamas earned approximately $40,190 gross income in the year 1988 and received the same salary in 1989.

The parties lived together at the marital residence from the date of their marriage in May 1966, until January 1986, when Ta-mas vacated the premises. Erna testified that from January 1983 to January 1985, Tamas was not living at the marital residence on a full-time basis and only spent the night on occasion. A stipulation admitted at trial shows that the parties’ marital assets included the marital residence valued at $92,000 to $108,000, Delta Airlines savings plan valued at $23,147, Delta Airlines stock valued at $24,525, Chicago Northwestern stock valued at $14,475, an IRA account valued at $10,849, Delta Airlines credit pension plan valued at $22,788, Chicago & Northwestern pension plan valued at $59,177, Paine-Weber accounts/Dome Mining stock valued at $925, United States Savings Bonds valued at $9,878 and Chicago Northwestern credit union account valued at $11,415.

Erna admitted at trial that she liquidated the following assets. In December 1983, Erna withdrew $11,415 from her credit union account. Erna received $925 from the Paine-Weber account she liquidated in July 1983 and $9,130 in 1984 from the IRA account. Also in 1984, Erna received $9,878 from the liquidation of United States Savings Bonds. She received $10,000 from the liquidation of ten $1,000 certificates of deposit at Columbia National Bank. She also withdrew the sum of $5,005 from her savings account at Columbia National Bank.

On December 28, 1989, the trial court entered a judgment for dissolution of marriage between the parties, which included the following findings:

1. That marital and nonmarital assets were under Erna’s control and the monies spent by Erna were not distinguishable as marital and nonmarital property.

2. That the funds spent by Erna were not dissipation of assets by Erna.

3. That “[Erna] spent $17,049 and an additional $5,000 paid to the Internal Revenue Service from 1983 to the present to supplement [sic] her income.”

4. That there was no nonmarital property now in existence, other than a portion of Erna’s pension.

The trial court stated that “there is no finding that the Court approves the accounting essence and spending practice of [Erna].” The court made a further finding that the value of the marital residence was $105,000 and that the value of respondent’s tools was $2,000. The court awarded Erna the nonmarital portion of her Chicago & Northwestern pension valued at $51,459. The court awarded $141,774 in marital property to Erna and $124,960 to Tamas.

In addition, the court awarded Ema the sum of $350 per month as periodic maintenance to be reviewed in four years or sooner if either of the parties has a substantial change in circumstances. In addition, the court awarded Erna exclusive possession of the marital residence for four years after the entry of the judgment for dissolution. The court reserved jurisdiction as to the division of the proceeds as to Erna’s pending personal injury action against the Northeastern Illinois Regional Commuter Corporation.

Before addressing the merits of Tamas’ appeal, we must first consider Erna’s contention that we have no jurisdiction to hear this appeal. It is Erna’s contention that because the trial court reserved jurisdiction over the disposition of any recovery which Erna may receive from her pending personal injury suit, the judgment for dissolution of marriage was not a final and appealable order and Tamas’ appeal must therefore be dismissed. In support of her contention, Erna relies on In re Marriage of Leopando (1983), 96 Ill. 2d 114, 449 N.E.2d 137, in which the trial court entered an order dissolving the parties’ marriage and adjudicating the issue of permanent custody, but reserved for future consideration the issues of maintenance, property division and attorney fees. The supreme court in Leopando held that the order was not final and appealable since it failed to adjudicate all of the issues ancillary to the parties’ divorce. (Leopando, 96 Ill. 2d at 120, 449 N.E.2d at 140.) It is thus well settled that in a dissolution of marriage case, issues concerning property disposition or division are not separate claims, but instead, they are related, ancillary parts of a single petition for dissolution.

In applying the decision in Leopando, courts consider whether the public policy against fragmented litigation would be significantly undercut by granting finality to the judgment. In In re Marriage of Lord (1984), 125 Ill. App. 3d 1, 465 N.E.2d 151, the trial court entered an order of dissolution of marriage and reserved jurisdiction for two years on the issue of whether to award maintenance to the wife who had symptoms of Raynaud’s disease that might develop into a disabling disease.

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Cite This Page — Counsel Stack

Bluebook (online)
586 N.E.2d 436, 224 Ill. App. 3d 43, 166 Ill. Dec. 478, 1991 Ill. App. LEXIS 2126, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-toth-illappct-1991.