Marriage of Uphoff, In re

• Decision Date: 07 December 1982
• Docket Number: No. 482-0260,482-0260
• Citation: 66 Ill.Dec. 404,442 N.E.2d 965,110 Ill.App.3d 608
• Parties: , 66 Ill.Dec. 404 In re the MARRIAGE OF Cynthia Kay UPHOFF, Petitioner-Appellant and Cross- Appellee, and David Michael Uphoff, Respondent-Appellee and Cross-Appellant.
• Court: United States Appellate Court of Illinois

Page 965

442 N.E.2d 965

110 Ill.App.3d 608, 66 Ill.Dec. 404

In re the MARRIAGE OF Cynthia Kay UPHOFF Petitioner-Appellant and Cross- Appellee and David Michael Uphoff, Respondent-Appellee and Cross-Appellant.

No. 482-0260.

Appellate Court of Illinois,

Fourth District.

Dec. 7, 1982.

Rehearing or Alternative Relief Denied

Dec. 30, 1982.

Duane D. Young, Costello, Young & Metnick, Springfield, for petitioner-appellant and cross-appellee.

Thomas J. Logue, Glenn & Logue, Mattoon, for respondent-appellee and cross-appellant.

WEBBER, Presiding Justice:

Both parties appeal from a judgment order of the circuit court of Coles County making a property distribution and awarding maintenance and child support. No appeal is taken from the order of dissolution.

Before proceeding to the merits of the case, we must first dispose of a question of this court's jurisdiction. The second part of the bifurcated proceedings commenced on September 1, 1981, and terminated with the final order, which is the subject of this appeal, entered on January 4, 1982. Both parties filed post-trial motions attacking various aspects of the order: the husband's (respondent-appellee-cross-appellant) was filed January 22, 1982; the wife's (petitioner-appellant-cross-appellee) was filed February 5, 1982; the trial court denied both motions on March 26, 1982; the wife filed her notice of appeal at 8:30 a.m. on April 22, 1982; the husband filed his notice of cross-appeal at 1:15 p.m. on the same date. This court, on its own motion, entered a rule to show cause on the wife as to why her appeal should not be dismissed: her post-trial motion was filed more than 30 days after final judgment and was therefore untimely under section 68.3 of the Civil Practice Act (Ill.Rev.Stat.1979, ch. 110, par. 68.3) now section 2-1203 of the Code of Civil Procedure (Ill.Rev.Stat.1981, ch. 110, par. 2-1203); the motion being untimely, the judgment was not stayed and a notice of appeal on April 22 from a judgment entered January 4 was likewise untimely. The wife filed a response to the rule which we have taken with the case.

The response in substance makes the argument that if any party files a post-trial motion, jurisdiction remains in the trial court and any party may then appeal within apt time following disposition of the motion; in short, a "coat-tail" argument. We do not agree. The response cites City of DeKalb v. Anderson (1974), 22 Ill.App.3d 40, 316 N.E.2d 653; and Jurgens v. Eads (1978), 67 Ill.App.3d 52, 23 Ill.Dec. 132, 383 N.E.2d 1003, for this proposition. Those authorities are inapposite. In DeKalb both parties had filed timely post-trial motions and the question became whether one side could appeal while the other's motion was still pending and undisposed of below. This matter was settled by the supreme court in Elliott v. Willis (1982), 92 Ill.2d 530, 65 Ill.Dec. 852, 442 N.E.2d 163. In Jurgens the court held that one side's motion filed 87 days after final judgment could not be considered by the trial court.

Elliott made clear that the trial court retains jurisdiction to dispose of all timely post-trial motions, even though the dispositions are seriatim. It did not say that the trial court retains general jurisdiction until all such timely motions are disposed of; in fact, in Elliott a notice of appeal had been filed following the ruling on the first post-trial motion considered by the trial court and the principal question was the status of other post-trial motions not yet considered. It did not alter the fundamental principle that after a final judgment is entered a party has 30 days in which either: (1) to appeal, or (2) to file a post-trial motion, or (3) to seek an extension of time in which to file a post-trial motion. We note in passing that in a nonjury case, such as the case at bar, a post-trial motion is not required, the statute being permissive; and under Supreme Court Rule 366(b)(3)(ii) (87 Ill.2d R. 366(b)(3)(ii)) the scope of review is not limited either by the filing or the failure to file a post-trial motion.

It appears implicit in the wife's argument that she could not intelligently appeal until the husband's post-trial motion had been ruled upon. The remedy is specifically provided for in Supreme Court Rule 303(c)(4):

"The notice of appeal may be amended without leave of court within 30 days after the entry of the judgment, or, if a timely post-trial motion directed against the judgment is filed, whether in a jury or a nonjury case, within 30 days after the entry of the order disposing of the motion." 87 Ill.2d R. 303(c)(4).

For the foregoing reasons, the wife's appeal is dismissed for lack of jurisdiction in this court. We therefore construe the husband's cross-appeal, filed later on the same day, as an original appeal and consider the case on that basis.

The evidence demonstrated that the parties have acquired a very substantial amount of assets, something in excess of $550,000, but all of them are heavily encumbered, so that their net worth is about $28,000. This latter figure was found by the trial court and is not seriously disputed. The husband farms 670 acres which he rents; he has acquired a one-third interest in 195 acres of farm land, encumbered to the Federal Land Bank; he has a one-third interest in a seed company, the other interests being owned by his brothers; he owns considerable farm machinery; and there is a marital residence of moderate value, also largely encumbered.

The wife has not been employed outside the home, except for two brief periods, during the marriage. She has no employable skills. Three children were born to the marriage, two of whom were still minors on the date of the order.

Much evidence was received concerning the parties' income. The wife testified that she believed it to be from $40,000 to $50,000 per year. A certified public accountant, testifying on her behalf, stated that he had examined the parties' income tax returns and noted that income from farming operations fluctuated. As an example, he stated that their 1980 return showed income of only $1,766, but if grain had been sold in that year, the income would have been $127,000. He believed that their "disposable" income for the years 1977 through 1980 was between $45,000 and $48,000 annually.

The husband's brother, who has an accounting degree, testified on his behalf that he had examined the tax returns and that the "disposable" income after taxes averaged from $13,000 to $15,000 annually for the years 1977 through 1980.

In its judgment order the trial court found that the husband's income was "from $13,000 to $45,000 to $48,000," and that the net marital assets were $28,000. It then awarded $28,000 in marital assets to the wife, together with a 1981 automobile valued at $12,500. The remainder of the marital assets was awarded to the husband. Child support was fixed at $450 per month for each of two minor children with payments to be made to the clerk of the court. Maintenance for the wife was fixed at $600 per month with payments to be made to the clerk of the court. Use of the marital home was awarded to the wife and children with all expenses thereof, mortgage payments, taxes, insurance and repairs, to be paid by the husband. The $900 child support payment was to be reduced each month by two-thirds of the mortgage, tax and insurance payment, if made by the husband; the $600 maintenance payment was to be reduced by the remaining one-third of any such mortgage, tax and insurance payment. The husband was ordered to assume and pay all of the debts of the wife. These amounted to about $17,360 which included approximately $5,200 in attorneys' fees and witness fees.

A variety of issues are raised on appeal, including the allocation of marital property, the allowance of maintenance and child support, the allowance of fees; but the principal issue on which all else depends, in our judgment, is the curious finding, in reality no finding at all, concerning the husband's income.

The Illinois Marriage and Dissolution of Marriage Act (the Act) requires that the trial court consider the ability of the husband to pay when making an award of maintenance or child support. Section 504(b)(6) of the Act (...