In Re Marriage of Wilder

461 N.E.2d 447, 122 Ill. App. 3d 338, 77 Ill. Dec. 824, 1984 Ill. App. LEXIS 2715
CourtAppellate Court of Illinois
DecidedApril 6, 1984
Docket82-1740
StatusPublished
Cited by85 cases

This text of 461 N.E.2d 447 (In Re Marriage of Wilder) 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 Wilder, 461 N.E.2d 447, 122 Ill. App. 3d 338, 77 Ill. Dec. 824, 1984 Ill. App. LEXIS 2715 (Ill. Ct. App. 1984).

Opinion

JUSTICE SULLIVAN

delivered the opinion of the court:

This appeal is from a supplemental judgment entered in an action for dissolution of marriage. Petitioner raises numerous issues concerning (1) the trial court’s classification and valuation of marital and non-marital property; (2) the award of rehabilitative rather than permanent maintenance and the sufficiency thereof; (3) the sufficiency of child support and the trial court’s failure to require respondent to provide security therefor; (4) the denial of her petition for attorney fees; and (5) the denial of recovery on alleged arrearages in temporary maintenance and child support.

On November 5, 1981, a judgment was entered granting dissolution of the parties’ marriage but reserving the issues of child support, maintenance, property disposition, and attorney fees. Respondent did not contest petitioner’s request for dissolution, and no questions pertaining thereto are raised in this appeal. Subsequently, hearings were held on the remaining issues, and the evidence introduced established that the parties were married in 1968 and had three children: Kelly, a 20-year-old college student (petitioner’s child from a former marriage, legally adopted by respondent); Leslie, 13; and Amy, 11. By agreement, petitioner was granted custody of the minor children. Petitioner, a 41-year-old housewife, had training and worked as an electronmicroscope technician prior to the marriage but had not been employed outside the home during the marriage. Respondent, 58 years of age, was an opthalmologist specializing in retinal surgery and was employed by Drs. Wilder and Vygantas, Ltd., a professional corporation formed in 1970 in which he held 50% of the stock. The parties also presented testimony and evidence with regard to their property, both marital and nonmarital, and the valuation thereof, their current and future financial needs, and the needs of the children. That evidence is voluminous and, in most cases, conflicting; therefore, we shall set forth only such portions thereof as are relevant to the particular issues raised as they are discussed.

On June 17, 1982, the trial court entered its written order resolving the disputed issues. The following disposition of property was made:

PETITIONER

Nonmarital property:

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In addition, several investments of unknown value, described as tax shelters, were divided in kind; and respondent was ordered to pay petitioner $20,000, assume sole liability for $118,000 in debts, most of which were incurred by him after the parties separated, and release a debt of $3,000 owed to him by petitioner. Petitioner was awarded rehabilitative maintenance in the amount of $2,400 per month for five years, and the court ordered respondent to pay $500 per month per child for the support of the minor children, all of their reasonable medical and college expenses, and 60% of Kelly’s college expenses during her final year. Petitioner’s request for attorney fees was denied, as was her petition for recovery of arrearages allegedly due under an order for temporary maintenance and child support, and this appeal followed.

Opinion

Petitioner first contends that the trial court erred in finding that respondent’s interest in Drs. Wilder and Vygantas, Ltd. (the stock) was nonmarital property. In the alternative, she maintains that the stock was transmuted into marital property because its increase in value resulted entirely from contributions made during the marriage. She asserts that this erroneous characterization of the stock requires redetermination of all of the property and support issues, and the judgment therefore must be reversed and remanded.

Before reaching the merits of petitioner’s contention, we note that the trial court, after finding that the stock was respondent’s non-marital property, went on to say that “[t]his finding of the Court, if it were contrary and found to be marital, would have little or no effect on the total property disbursements as it is the Court’s intention to make an equitable distribution of property to the parties.” It appears that even if the trial court had found the stock to be marital, as petitioner asserts, its distribution of property would have been unaffected, since it had considered the value of all property, whether marital or nonmarital, in dividing the marital property, as it is required to do under section 503(d) of the Illinois Marriage and Dissolution of Marriage Act (the Act). Ill. Rev. Stat. 1981, ch. 40, par. 503(d); see In re Marriage of Thornton (1980), 89 Ill. App. 3d 1078, 412 N.E.2d 1336.

In light of the court’s statement, we question whether reversal on this issue would be required even if we were to find that the trial court erred in categorizing the stock as nonmarital property. The cases cited by petitioner for this proposition are distinguishable. In In re Marriage of Peshek (1980), 89 Ill. App. 3d 959, 412 N.E.2d 698, the judgment of the trial court was reversed and the cause remanded for redetermination of the property issues where the court failed to value or apportion a significant marital asset. Similarly, in In re Marriage of Olsher (1979), 78 Ill. App. 3d 627, 397 N.E.2d 488, while the trial court had correctly found that certain stock was marital property and had apportioned it to one of the spouses, it had failed to make any finding as to the value thereof. We reversed and remanded for re-determination of the property issues, noting that “without evidence of the respective values of the various items of the marital property it was impossible for the court to divide the marital property in ‘just proportions’ as required by the statute.” 78 Ill. App. 3d 627, 636, 397 N.E.2d 488, 495.

Here, unlike either Peshek or Olsher, the trial court did classify and value the property in question, and affirmatively stated that it considered that value in apportioning the marital property. Furthermore, it made a specific alternative finding that even if the property were marital, the division it made would be unaffected, or at least that any effect would be de minimus. This situation appears to be unique; the parties have not cited, nor has our own research discovered, any case in which such an alternative finding has been made, nor are we aware of any case wherein a trial court’s error in classifying property as nonmarital has been found harmless based on its statement that the determination would be the same even if the property in question were found to be marital. Nevertheless, we may be guided in this instance by the general rule that not every error committed by the trial court in a civil case leads to reversal (Svenson v. Miller Builders, Inc. (1979), 74 Ill. App. 3d 75, 392 N.E.2d 628); rather, there must be some showing that the appellant has been prejudiced by that error (County of Cook v. Patka (1980), 85 Ill. App. 3d 5, 405 N.E.2d 1376), and. reversal is required only where it appears that the outcome might have been different had the error not occurred (Canales v. Dominick’s Finer Foods, Inc. (1981), 92 Ill. App. 3d 773,

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Bluebook (online)
461 N.E.2d 447, 122 Ill. App. 3d 338, 77 Ill. Dec. 824, 1984 Ill. App. LEXIS 2715, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-wilder-illappct-1984.