Marriage of Glessner, In re

• Decision Date: 08 November 1983
• Docket Number: No. 82-2221,82-2221
• Parties: , 74 Ill.Dec. 809 In re the MARRIAGE OF Mary R. GLESSNER, Petitioner-Appellant, and Thomas O. Glessner, Respondent-Appellee.
• Court: United States Appellate Court of Illinois

Page 311

456 N.E.2d 311

119 Ill.App.3d 306, 74 Ill.Dec. 809

In re the MARRIAGE OF Mary R. GLESSNER, Petitioner-Appellant and Thomas O. Glessner, Respondent-Appellee.

No. 82-2221.

Appellate Court of Illinois First District, Second Division.

Nov. 8, 1983.

Donald Schultz and Nicholas B. Comerford, Chicago, for petitioner-appellant.

Bianco & Szygowski, Chicago (Peter Bianco, Jr., Chicago, of counsel), for respondent-appellee.

PERLIN, Justice:

Petitioner, Mary R. Glessner (Mary), appeals from the supplemental judgment entered by the circuit court of Cook County on August 13, 1982, apportioning the marital property, awarding to her maintenance of $400 per month for one year and designating certain property non-marital and assigning it to respondent, Thomas O. Glessner (Thomas).

On appeal, Mary contends that because neither party allegedly prayed for partition of the marital home, the trial court erred in ordering its sale. Mary further contends that the trial court erred in failing to consider evidence or make a finding as to the value of Thomas' accounting business; in awarding the accounting business to Mary while awarding to Thomas the accounts receivable or payable of that business; in accepting, as probative of value, Thomas' testimony with respect to the market value of the Hoffman Estates condominium in which he resides and in evaluating certain Florida property claimed by Thomas to be non-marital; in finding that the condominium where Thomas resides and the Florida property were non-marital; in finding that certain funds acquired during the marriage, and placed in trust by Thomas for the benefit of three of the parties' children, constituted a gift and that the condominium in which Thomas resides, purchased in part with those trust funds, was non-marital property; in failing to find that Thomas' act of placing funds in trust was a dissipation of marital assets; in failing to consider or dispose of certain stock; in failing to dispose of the marital property in just proportions; and in limiting to one year the award to Mary of $400 per month as "rehabitated [sic] maintenance."

The parties were married on June 6, 1953. The marriage produced six children, all of whom were, at the time the supplemental judgment was entered on August 13, 1982, emancipated. The parties' two youngest children were, on that date, living with Mary in the marital home.

On September 27, 1977, Mary filed a "Complaint for Separate Maintenance, Injunction and Other Equitable Relief." On October 14, 1977, three of the parties' children were not yet emancipated and were living with Mary when she was awarded $750 per month as temporary maintenance and child support. On February 17, 1978, the amount of this award was reduced by the trial court to $400 per month. On February 26, 1980, following an uncontested hearing, a judgment of dissolution was entered dissolving the parties' 24-year-marriage and reserving for future determination "all matters concerning the questions of the custody, visitation and support of the minor children of the parties, the maintenance of the petitioner, the respective rights of each party in and to the property * * * including a division of all marital and non-marital property, awarding attorney fees and other matters."

The record indicates that a hearing on those "reserved issues" was continued from time to time until August 7, 1981, when, as a result of Mary's failure to act, the case was dismissed for want of prosecution. On December 23, 1981, Thomas filed a petition to vacate the court's dismissal order and requested that the cause be reinstated. The court granted Thomas' petition to vacate the August 7, 1981 dismissal order and reinstated the case.

When trial began on March 31, 1982, Mary, in apparent good health, was 56 years old, a high school graduate. During the first year of the marriage she was employed as a legal secretary. Thereafter she was a homemaker until 1971 when she became employed part-time as a clerk for Sears, Roebuck & Company. At the time of trial, and for the preceding three years, Mary was employed as a secretary in the legal department of Sears, Roebuck & Company. Her net income was approximately $225 per week ($967.50 per month) and she estimated her expenses were approximately $1,713 per month. ¹

Thomas, an accountant, was, at the time of trial, 58 years old and apparently in poor health. The record indicates that he was taking medication for diabetes, high blood pressure and a heart condition which, in 1976, necessitated open-heart surgery. Thomas was sole proprietor of an accounting and tax service known as Thomas O. Glessner and Associates. Thomas stated that his annual net income approximated $16,000 ($1,333 per month) and his annual expenses were approximately $14,000. His 1981 federal income tax return indicates gross receipts of $47,230 and an adjusted gross income of $19,099. A profit and loss statement submitted by Thomas indicates that in 1981 he had a "net profit after income taxes" of $16,199.

On April 27, 1982, following three days of testimony, the trial court took the case under advisement and on August 13, 1982 entered its "Supplemental Judgment for Dissolution of Marriage," including the court's written findings and order.

The record indicates that, because the parties by agreement disposed of certain marital assets during the pendency of these proceedings, these assets were excluded from consideration by the court and no finding as to the total value of the marital estate was made. The trial court's written findings, however, included certain evaluations and characterizations of the parties' assets. The court found that "the improved real property constituting the former marital home of the parties * * * [had] an appraised value stipulated by the parties to be $86,000 * * * and is free and clear of any encumbrances." The court also found: on December 1, 1977 (65 days after Mary's initial complaint was filed), Thomas established two trust accounts at Austin Federal Savings in Schaumburg, each in the amount of $10,000, designating three of the parties' children as beneficiaries and naming his sister, Nancy Weber, and a friend, Walter Klink, as co-trustees of those accounts; that after the parties were divorced in February 1980, Thomas asked the co-trustees to purchase with the trust funds (certificates of deposit), plus interest accrued, a condominium in Hoffman Estates, title to which was again placed in trust for the three children; that the original money used to establish the trust was a gift by Thomas to his children and, therefore, the condominium was non-marital property; that each party was "approximately equal in his or her income production"; and that on July 25, 1980 Thomas "paid no money" to his mother or to his sister when they transferred to him their entire interest in certain improved real estate in Florida, and, as a result, that property was non-marital.

The court awarded to Mary the Thomas O. Glessner & Associates accounting business "by the agreement of the parties at the trial * * * less the cash balance on hand and less the accounts payable and accounts receivable of the said business." The court further ordered that the former marital home of the parties should be sold and the proceeds, after payment of costs and expenses of sale, should be divided equally between the parties; that Thomas be awarded "any cash he has on hand and the cash balance that he * * * has accumulated for his business"; that Mary be awarded her interest in the Sears savings and profit sharing plan, including all stocks and cash in the said plans ² and any cash which she has on hand; that each party pay any or all of his or her own debts, liabilities and obligations and his or her own attorney fees and costs; and that Thomas pay to Mary "the sum of $400 per month as and for rehabilitaded [sic] maintenance for a period of one year."

Mary appeals from the findings of the circuit court and from the Supplemental Judgment for Dissolution of Marriage.

Mary initially contends that because neither she nor Thomas prayed for partition of the marital home, the trial court erred in ordering its sale.

Section 514 of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill.Rev.Stat.1979, ch. 40, par. 514) provides:

"A court having jurisdiction in an action for dissolution of marriage may, upon petition of one of the parties, hear and decide an action for partition subject to the provisions of 'An Act in relation to the partition of real estate [Ill.Rev.Stat.1979, ch. 106, par. 44 et seq.] * * * except as otherwise provided in this Act.' "

This section apparently authorizes a trial court, as a matter of judicial economy, to consider, where requested, the partition of marital real estate in the course of a dissolution of marriage action. (See Ill.Rev.Stat.1979, ch. 40, par. 503(c), 514, Historical and Practice Notes (Smith-Hurd).) Thus it has been held that in dividing real estate which is classified as marital property under section 503 of the Dissolution Act, the court is empowered to order the sale of co-owned real estate without the need for a separate partition action, provided one of the parties has petitioned for such partition. In re Marriage of Pieper (1979), 79 Ill.App.3d 835, 838, 34 Ill.Dec. 877, 398 N.E.2d 868.

Thomas contends that he in fact petitioned the trial court here when, in his counterpetition for dissolution filed on February 17, 1978, he prayed for "a reasonable division of marital property and other equitable relief." He argues that this prayer qualified as a petition for partition as set forth in Pieper.

In In re Marriage of Peoples (1981), 96 Ill.App.3d 94, 96, 51 Ill.Dec. 514, 420 N.E.2d 1072, the respondent contended, as Mary does here, that "in the absence of a specific prayer for sale of the marital home, the court is without the authority to order what, in effect, is a partition of the property." The court there...