Marriage of Leff, In re, s. 2-85-0777

• Citation: 148 Ill.App.3d 792,499 N.E.2d 1042
• Decision Date: 29 October 1986
• Docket Number: Nos. 2-85-0777,2-86-0031 and 2-86-0157,2-85-0953,s. 2-85-0777
• Parties: , 102 Ill.Dec. 262 In re the MARRIAGE OF Marsha D. LEFF, Petitioner-Appellant, and Alan H. Leff, Respondent-Appellee.
• Court: United States Appellate Court of Illinois

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499 N.E.2d 1042 148 Ill.App.3d 792, 102 Ill.Dec. 262 In re the MARRIAGE OF Marsha D. LEFF, Petitioner-Appellant,
and
Alan H. Leff, Respondent-Appellee. Nos. 2-85-0777, 2-85-0953, 2-86-0031 and 2-86-0157. Appellate Court of Illinois,
Second District. Oct. 29, 1986.

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[148 Ill.App.3d 794] [102 Ill.Dec. 264] Rosing Applehans & Smith, Ltd., Stephen G. Applehans, William G. Rosing, Waukegan, for petitioner-appellant.

Stephen H. Katz, Ltd., Stephen H. Katz, Deborah S. Daly, Waukegan, for respondent-appellee.

[148 Ill.App.3d 795] Justice UNVERZAGT delivered the opinion of the court:

The appellant, Marsha D. Leff (Marsha), appeals from the judgment of the circuit court of Lake County and from the subsequent amendments and revisions thereto, granting her counter-petition for legal separation which was filed in response to the petition for dissolution filed by her husband, Alan H. Leff (Alan), appellee herein. She contends that portion of the trial court's judgment which ordered the sale and division of marital property was entered without statutory authority and must be vacated. In the alternative, she contends the court's valuation and division of property was an abuse of discretion and its award of maintenance was not equitable. She also contends the court's award of custody of Randee Leff, one of the parties' three children, to Alan was based on improper evidence and was an abuse of discretion. On her motion, notices of appeal filed by her from the trial court's original and amended judgments were consolidated.

After hearing before the trial court, judgment was entered granting the parties legal separation. The judgment included the determination that the parties' previously shared residence was marital property, ordered its immediate sale and set forth a division of the net proceeds. It also set forth the division of the remainder of the parties' marital property, awarded Alan the sole care, custody, control and education of the parties' three minor children, and awarded Marsha maintenance of $182.50 per week. Marsha filed an "Emergency Motion to Stay Entry of Judgment and for New Trial" which, inter alia, challenged the trial court's authority to divide and award the marital property in a legal separation proceeding.

Marsha argues that cases decided prior to enactment of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) (Ill.Rev.Stat.1977, ch. 40, par. 101 et seq.) which recognized the right of the trial court to adjudicate the property interests of parties to a proceeding for legal separation no longer provide authority for such adjudication. In particular, she argues the exception recognized in Anderson v. Anderson (1975), 28 Ill.App.3d 1029, 329 N.E.2d 523, which was relied upon by the trial court as the basis for its authority to make the awards, no longer obtains under the IMDMA since the "[o]peration of the term 'marital property' is not triggered until the time for dissolution." Kujawinski v. Kujawinski (1978), 71 Ill.2d 563, 573, 17 Ill.Dec. 801, 376 N.E.2d 1382.

In Anderson, the plaintiff contended that Illinois law did not authorize the court

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[102 Ill.Dec. 265] to determine property interests in a separate maintenance action. (Ill.Rev.Stat.1973, ch. 68, par. 22 et seq., now codified as Ill.Rev.Stat.1985, ch. 40, par. 402.) The court found, however, that "when parties ask the trial court for relief as to certain property [148 Ill.App.3d 796] and join issue, they have submitted their property rights to the court which may then enter a decree concerning that property. Shapiro v. Shapiro (1st Dist.1969), 113 Ill.App.2d 374, 380-82, 252 N.E.2d 93." 28 Ill.App.3d 1029, 1033, 329 N.E.2d 523; see also O'Donnell v. O'Donnell (1972), 5 Ill.App.3d 870, 877-78, 284 N.E.2d 682; Boyd v. Boyd (1965), 58 Ill.App.2d 1, 11-12, 207 N.E.2d 350.

Marsha argues that other decisions after the IMDMA's enactment also support her view that the exception is now precluded, citing In re Estate of Chandler (1980), 90 Ill.App.3d 674, 46 Ill.Dec. 46, 413 N.E.2d 486, In re Marriage of Schwartz (1985), 131 Ill.App.3d 351, 86 Ill.Dec. 698, 475 N.E.2d 1077, and In re Marriage of Pahlke (1983), 120 Ill.App.3d 1009, 76 Ill.Dec. 487, 458 N.E.2d 1141.

Alan distinguishes Kujawinski and Chandler on their facts, noting that neither case dealt with the exception identified in Anderson, nor did Kujawinski overrule such an exception. Likewise, we note Schwartz relied on Pahlke for the general proposition that the court has power to adjust and determine the rights of one party and the property of the other only where a divorce has been granted, and Pahlke, in turn, relied on Chandler and Kujawinski for that general proposition. Accordingly, Alan argues the exception to the rule which permits the parties, in effect, to confer subject matter jurisdiction on the trial court still operates. Alan further argues that Marsha waived her right to object to the court's classification and division of property by not raising the issue until she filed her post-trial motion. Alan asserts that the exception to the rule against division of marital property in a legal separation proceeding was validly applied here where Marsha filed her petition for legal separation and proceeded to participate in an evidentiary hearing without any objection to the court's jurisdiction until after the court had announced its judgment dividing the property. Marsha testified at the hearing, which hearing was described in the record as "the second part of a bifurcated trial to determine division of assets, assignment of debts, maintenance and child support." Marsha offered affirmative evidence with regard to the ownership of the marital home and testified the home was a gift to her "to secure her future" as against Alan's claim that he quitclaimed the residence to her only as a hedge against a potential malpractice action against him. She testified to her monthly mortgage and utility expenses and about repair, remodeling and decorating projects she performed on the house. She also testified concerning her health, debts owed, the extent to which she assisted Alan with his business, and that she had hired two accountants to establish the value of Alan's accountancy practice. "Closing Arguments" were submitted by the parties' respective attorneys by way of letter to the court. Each suggested a proposed[148 Ill.App.3d 797] distribution of the parties' property; Alan's suggested the marital residence be sold and that all of the parties' debts be paid; further, that no maintenance be awarded and that the question of child support be reserved. Marsha's suggested a 50-50 split of marital and nonmarital property, sought maintenance, and sought child support for those times when the children would be visiting her. In particular, Marsha's suggested equitable distribution of the property was set forth "pursuant to section 503 [Ill.Rev.Stat.1985, ch. 40, par. 503]," and suggested that she receive the residence at 839 Edgewood Court in Highland Park, the marital residence, furniture and furnishings in the residence, the 1979 Bonneville automobile, her engagement ring, jewelry, fur coat and other personal property. She suggested that Alan receive the residence at 1393 Ridge Road in Highland Park, the home he purchased so that he and the children would have a place to live, the furniture and furnishings in the residence, his interest in the partnership of Leff &

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[102 Ill.Dec. 266] Klein, Ltd., cash, certificates of deposit and other assets, the Buick and Pinto automobiles. It was after the court announced its decision by letter with direction to Alan's attorney to draft an order, that Marsha filed her emergency motion to stay the entry of the judgment and for a new trial.

Marsha argues here that the evidence she offered by way of her testimony should not be viewed as her having "joined the issue" of the property division with Alan, since she contends such evidence was "necessary to be adjudicated in order for the court to fairly and equitably award possession of the property and separate maintenance during the period of separation." Further, she argues she should not be held to have waived her objection to the trial court's jurisdiction in view of her post-trial motion, since it was implied in Anderson that such a motion would preserve the objection.

We agree with Alan that the previously recognized exception to the court's lack of authority to divide assets in an action for legal separation may still be established even under the present provisions of the IMDMA. In Kujawinski, the court was addressing a challenge to section 801 of the IMDMA wherein it was alleged by the plaintiff that section 801 retrospectively applied the "marital property" provisions of section 503(b) and thereby precipitated an unconstitutional impairment of the obligation of contracts and an unconstitutional deprivation of property without due process of law. Plaintiff there contended that the effect of that section was to convey to a spouse a partnership interest in property which became operative during the marriage and was effective regardless of whether the marriage was ever dissolved. Pointing out that plaintiff conceded section 503(b) must be read in consort[148 Ill.App.3d 798] with sections 503(a) and 503(c), the court noted:

"[Those] three provisions are based on former section 307 of the Uniform Marriage and Divorce Act. The explanatory note accompanying that section clearly establishes its limited function. It resolves that 'marital property' is defined 'only for the purposes of division on dissolution of marriage or legal separation. No attempt is made to regulate the respective interests of the spouses in property during the existence of the marriage.' (Uniform Marriage and Divorce Act (U.L.A.) sec. 307, Commissioners' Note, at 492 (1973).) This function comports with the legislative purposes enunciated in section 102 of the Illinois act. These...