Marriage of Schuster, In re

• Decision Date: 04 February 1992
• Docket Number: No. 2-90-1256,2-90-1256
• Citation: 167 Ill.Dec. 73,586 N.E.2d 1345,224 Ill.App.3d 958
• Parties: , 167 Ill.Dec. 73 In re MARRIAGE OF Andrea SCHUSTER, Petitioner-Appellee and Cross-Appellant, and Alan Schuster, Respondent-Appellant and Cross-Appellee.
• Court: United States Appellate Court of Illinois

Page 1345

586 N.E.2d 1345

224 Ill.App.3d 958, 167 Ill.Dec. 73

In re MARRIAGE OF Andrea SCHUSTER, Petitioner-Appellee and Cross-Appellant and Alan Schuster, Respondent-Appellant and Cross-Appellee.

No. 2-90-1256.

Appellate Court of Illinois,

Second District.

Feb. 4, 1992.

Ilene E. Shapiro, argued, Chicago, for Alan schuster.

Schiller, DuCanto & Fleck, Ltd., Timothy M. Daw, Sarane C. Siewerth, argued, Chicago, for Andrea M. Schuster.

Justice WOODWARD delivered the opinion of the court:

Respondent, Alan Schuster (Alan), appeals from certain portions of the judgment which dissolved his marriage to petitioner, Andrea Schuster (Andrea), who cross-appeals from certain portions of that judgment.

The parties were married on July 31, 1977. Two children were born to the marriage, namely, Charlie, born April 19, 1982, and Aaron, born July 3, 1986. The parties were awarded joint custody of the minor children.

Both parties are college educated. Andrea received a B.S. degree in education from the University of Wisconsin. Alan received a B.S. degree in metallurgical engineering from the University of Wisconsin. In addition, Alan received a J.D. degree from IIT/Chicago Kent law school and was licensed to practice law in 1980. Alan's law school education was financed through joint marital earnings and a student loan. In addition, Alan's parents gave him $5,000 which was used to make partial repayment of the student loan.

After being licensed to practice law, Alan worked for two law firms and did legal work on the side. Alan then went to work for Cozzi Iron and Metal as in-house counsel. By 1987, his salary from Cozzi had risen to $80,000 gross per year, and he earned $20,000 by practicing law on the side. By 1987, Andrea, who had begun working for Metropolitan Structure in 1981, was a senior vice-president. Her income is made up of a base salary plus commission. In 1986, she earned in excess of $168,000.

During the summer of 1987, Alan announced that he wished to begin trading commodities. According to Andrea, she was agreeable if it meant Alan would finally be happy doing this type of work. She felt he should try it for a year, which Alan thought was a reasonable amount of time. After the stock market crash in the fall of 1987, she asked Alan to defer his plan for a year, but he assured her that this was a good time to get started in commodities. From their joint funds, Alan took $60,000 which he needed for the security account he was required to keep and another $15,000 to $20,000 to start trading with. According to Andrea, after Alan started trading in January 1988, he would periodically be frustrated with that, and she would remind him that he had agreed to give trading a year's time.

In March 1988, the parties first discussed getting a divorce. It was not discussed again until August 1988. In September 1988, Andrea initially filed a praecipe for dissolution of the parties' marriage in Cook County. The cause was transferred to Lake County. Andrea filed a petition for dissolution of marriage in December 1988, and Alan filed a counterpetition for dissolution of marriage in September 1989. The grounds of irreconcilable differences were not contested. Custody and visitation issues were uncontested. The cause went to trial on the issue of division of marital property, spousal and child support and attorney fees. No issue is raised as to the award of attorney fees.

Each party presented an expert witness as to the value of the marital residence located at 1740 Rosemary, Highland Park, Illinois. Fred Eichmann testified on behalf of Andrea. He holds a B.S. degree in investment management, an MBA in finance from Northwestern University and an SRA (senior residential appraiser) designation, meaning that he has had the training to specialize in residential appraisals. He has been appraising real estate for over six years and has done thousands of appraisals. He appraised the property at 1740 Rosemary at $255,000 fair-market value.

Eichmann testified further that the marital residence was a 14-year-old bi-level with six rooms, including three bedrooms and two baths above grade (above ground level). The residence also had a family room on the lower level (the level just below ground level) and a subbasement lower than the family room. In arriving at the appraised valuation, Eichmann utilized three comparables. The first one was three-quarters of a mile away from the marital residence, was of a similar age and lot size and had a recreation room in the lower level. It sold for $250,000. The second comparable was one-fourth of a mile away and sold for $251,500 in July 1989. It was 20 years old and a two-story colonial, but Eichmann was of the opinion that, with the proper adjustments, it was a good indicator of the value of the marital residence. The third comparable was over a mile away from the marital residence, but Eichmann testified that he selected it because it was a tri-level style, which had similar functional utilities with the multilevel aspects. It differed from the marital residence in that it had a family room at grade level behind the garage and there was a subbasement somewhat in the style of the marital residence under the second level. The third comparable sold for $282,500.

Eichmann further testified that he calculated the gross living area of the marital residence to be 2,075 square feet above the grade. He established the first comparable to have 2,050 square feet of living space and the second comparable to have 2,300 square feet. The gross living area of the third comparable was 2,980 square feet, which he derived from information from the Society of Real Estate Appraisers.

Eichmann testified that he had reviewed the comparables relied on by William Schwandt, Alan's appraiser. The first was located at 337 Sumac, Highland Park. It was a 1920 vintage Tudor-style home. According to Eichmann, he would not have used it as a comparable since older homes have superior construction. The second comparable was located at 1505 Ridge, Highland Park, and was a 1920 vintage center entrance colonial or Georgian style. Although the Ridge home was updated, Eichmann would not have used it as a comparable because there would be considerably more depreciation in an older home than a new one.

On cross-examination, Eichmann testified that the marital residence did not appear to have been decorated in some time and that the appliances appeared to be the originals, although the washer and dryer might be newer. He estimated that the Sumac and Ridge properties were within a mile of the marital residence. Eichmann explained that although he had deducted points in his appraisal based upon the gross living area and the number of rooms, this was not a double deduction, but rather a splitting between the square footage and how he considered the house function. He agreed that the lower level contained a fireplace, a half bath and would be considered a family room rather than a den. According to Eichmann, an MAI designation was higher than an SRA.

On redirect examination, Eichmann testified that his appraisal would not be altered if the trim of the marital residence had been painted in the beginning of 1989. According to Eichmann, the difference between the MAI and SRA designation was that an MAI was qualified to do industrial and commercial appraisals. He described the marital residence as in very average condition.

William Schwandt testified on behalf of Alan. He has been in real estate since 1946 and has an MAI designation, which he received in 1971. He valued the marital residence at $315,000.

Schwandt testified that in arriving at the value he used the aforementioned properties on Sumac and Ridge and a third property located six blocks northwest of the marital residence in Deerfield. He felt proximity was an appropriate criteria for a comparable. Although his comparables were two-story, not bi-levels, there were few bi-levels in Highland Park. He felt the Sumac and Ridge properties were comparables to the marital residence because even though they were older, they had been updated as had the marital residence.

On cross-examination, Schwandt testified that he had not observed any paint chipping or flaking of the exterior of the marital residence. In choosing his comparables, because of the lack of bi-level-style houses in the area, he, theoretically, cut the marital residence in half and raised one half of it and, then, found comparables. Schwandt agreed that the Sumac property, which sold for $305,000, had a total of 3,364 square feet. According to Schwandt, he would make adjustments due to the variance in square footage but that the adjustments were subjective.

Linda Sizemore, a clinical psychologist, testified that she began treating Alan in September 1988. She diagnosed Alan as suffering from obsessive compulsive personality disorder and depression. Although the depression immediately stems from the dissolution proceedings, Alan has a history of depression. According to Dr. Sizemore, Alan has a great deal of difficulty functioning occupationally because of his depression. He suffers from sleeplessness, fatigue, irritability and anxiety, and he has an inability to concentrate. Alan remains under her care.

On cross-examination, Dr. Sizemore testified that she did not know for how long Alan had suffered from depression, but it was present during his marriage. Other than the dissolution proceeding, Alan's difficulty with his father also triggered periods of depression. Also, difficulties with his employment triggered depression periods.

Dr. Sizemore testified further that therapy-wise Alan is in much the same place as he was in September 1988. He has not emotionally separated from his wife and has not been able to move on. While Dr. Sizemore believed that once the dissolution process was over it would be easier for Alan to move on, he moves more slowly in his therapy than most people do.

Dr. Sizemore...