In re Marriage of Gaumer

Case Date: 01/29/2003
Court: 5th District Appellate
Docket No: 5-01-0583 Rel

                NOTICE
Decision filed 01/29/03.  The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.

NO. 5-01-0583

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT


In re MARRIAGE OF
BARBARA J. GAUMER,

          Petitioner-Appellee,
and

WILLIAM R. GAUMER,

          Respondent-Appellant.

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Appeal from the
Circuit Court of
Madison County.

No. 99-D-705

Honorable
Clarence W. Harrison II,
Judge, presiding.



PRESIDING JUSTICE HOPKINS delivered the opinion of the court:

The respondent, William R. Gaumer, appeals from a final judgment of the trial courtin the dissolution of his marriage to the petitioner, Barbara J. Gaumer. The only issue iswhether the trial court abused its discretion in the distribution of the parties' property. Weaffirm.

FACTS

William and Barbara were married on September 8, 1962, and their marriage wasdissolved after 38 years, when Barbara was 66 years old and William 69 years old. Thejudgment distributing the parties' property, which is the order from which William appeals,was entered on February 26, 2001. At that time, both of the parties' children wereemancipated adults.

During the marriage, Barbara was a homemaker and did not work outside the home,with the exception of the years from 1962 until 1966. William worked at Granite City Steelas a salaried employee until his retirement in 1989 at the age of 56.

At the time of the hearing, Barbara's only source of income was social securitybenefits in the amount of $5,964 per year. Barbara's affidavit listed her expenses as $1,934per month. William had social security income of $12,093.60 per year, plus a pension fromGranite City Steel for $18,745.80 per year, for a total income of $30,839.40 per year. In hisaffidavit, William listed his expenses as $1,858 per month. The court awarded William hisentire pension, which the parties agreed was approximately 70% marital property. The court did not award Barbara maintenance.

After William retired, he worked part time as a real estate sales agent, but he did notreport income from real estate sales in 2000, the year of the dissolution. William testifiedthat he intended to return to selling real estate. The trial court found that both of the partieswere retired and that William was employed part time as a real estate agent but that hisincome from real estate sales was negligible. The parties' only other income is from aMerrill-Lynch account that generated $9,515 in interest in 1999. Of the interest paid on thataccount in 1999, $7,894 was tax exempt.

The parties had no significant debts other than their attorney fees. The court orderedeach party to pay for his or her own attorney fees and costs.

The court awarded the debt-free marital home to Barbara. The home appraised for$83,000 shortly before the hearing.

The court awarded William a 1990 Bass Tracker boat and its motor and trailer, a 1990Scanoe and all the related fishing equipment, a 1999 Chevrolet Suburban, and all the interestin all asbestos/personal-injury claims "except the roughly $250 that he indicated he held for[Barbara] and would give her after trial." The court found that under its division ofproperty, William received personal property worth $30,800 more than the amount awardedto Barbara. The personal property awarded to Barbara consisted mainly of a 1995 LincolnTown Car.

Each party claimed dissipation by the other, but the court did not find that either partyhad dissipated marital assets. Specifically, the court found as follows:

"6. In lieu of dissipation, the court finds that husband has received pre[]judgmentdistributions from the marital estate of approximately $7,800[,] beingcomprised [sic] of $6,000 in withdraws [sic] from the marital 'CMA' accountand the additional $1,800 which has been deposited with a third party for thebenefit of the husband.

7. The Court rejects the contention that the distribution of certain jewelryconstitutes dissipation and finds that such transfer was a gift from husband towife and then wife to child."

The court awarded Barbara all the Merrill-Lynch accounts, the total value of whichwas $223,000. The court also awarded Barbara a John Hancock annuity with a value ofapproximately $3,300. The court ordered the parties to equally divide their checkingaccounts.

On June 15, 2001, after arguments, the trial court denied William's posttrial motion. William now appeals.

ANALYSIS

William argues that the trial court abused its discretion by awarding Barbara 84% ofthe total assets awarded. Particularly, William argues that the court did not follow thedirective of the legislature to divide the property in "just proportions considering all relevantfactors" (750 ILCS 5/503(d) (West 2000)). Barbara contends that the trial court's award,while unequal, reflects the fact that the court did not award her maintenance.

The division of property in dissolution actions is governed by section 503(d) of theIllinois Marriage and Dissolution of Marriage Act, which provides that in a dissolutionproceeding, the court is to divide the parties' marital property without regard to maritalmisconduct and in just proportions considering all relevant factors. 750 ILCS 5/503(d)(West 2000). The relevant factors include each party's contribution to the marital estate, thedissipation of marital assets by either party, the value of the property assigned to each party,the duration of the marriage, the relevant economic circumstances of each party, "the age,health, station, occupation, amount and sources of income, vocational skills, employability,estate, liabilities, and needs of each of the parties," whether maintenance is awarded to eitherparty, and the reasonable opportunity of each spouse for the future acquisition of capitalassets and income. 750 ILCS 5/503(d) (West 2000). Section 503(d) includes other factors,but none are relevant to the facts presented herein.

In explaining his ruling, the trial judge stated that he understood that he could havedivided the property more equally but that, in order to do so equitably under thecircumstances, he would have had to award Barbara maintenance, since her monthly incomeis so much lower than William's. During the hearing on William's posttrial motion, the trialcourt judge explained his reasons for not splitting the property equally and not awardingBarbara maintenance:

"While that appears to be an equal distribution, the Court ultimately decidedthat such a distribution would be inequitable, not because of any preference for eitherof the parties, but it would fail to meet the Court's goal of permanently separating thelives of the parties as neatly and completely as possible.

One of the primary problems the Court encountered in the case was that anequal division of the pension is not truly equal because it remains dependent on Mr.Gaumer's life. In the event he would pass, it would result in a sudden decline in Mrs.Gaumer's financial status without any doing on her part. ***

*** One of the things the Court, therefore, looked at was using the real estatein lieu of any maintenance, which leaves Mr. Gaumer with approximately sixthousand dollars a year additional money in social security [greater] than Mrs.Gaumer receives, which the Court believed in general terms would be sufficient toprovide him approximately five hundred dollars a month towards rent.

The real problem in the case was what to do with the equity of the house. Isaw no easy or simple way to divide that, so the home was left with Mrs. Gaumer tomake sure that both parties would have residential capacity. Unfortunately, given theage of the parties ***, the Court had to be concerned with the potential that Mrs.Gaumer may significantly outlive Mr. Gaumer and that she will continue to haveneeds for her upkeep beyond his passing.

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With that in mind, the Court will deny the posttrial motion. I realize that thereare many other suggested outcomes that may well have been reasonably found byothers, but I believe the judgment that I ultimately entered, given the uniquecircumstances of the two parties and particularly the unique circumstances of thepension in this case[-]that this was a reasonable resolution."

We find that the trial court's disposition of the parties' property is in just proportionsconsidering all relevant factors. See 750 ILCS 5/503(d) (West 2000). William workedoutside the home to acquire a secure pension, but Barbara worked at home, which supportedWilliam's efforts in earning that pension. The marriage was lengthy, and the parties are notyoung. Neither of them can look forward to earning even a moderate income throughoutside employment, so the distribution of their assets was the only realistic way to providefor their futures.

The trial court recognized that Barbara is in need of maintenance but that maintenance would cease upon William's death, potentially leaving Barbara withoutsufficient resources at the end of her life. The court also recognized that finality and acomplete separation of the parties' lives are worthy goals for formerly married couples, goalsthat are more difficult to achieve the longer the parties have been married.

William argues that the distribution of the parties' property leaves William withoutfunds sufficient to maintain the standard of living he enjoyed during the marriage. Williamcontends that Barbara will be able to "go on with the lifestyle she had before dissolution,including all of the financial security she previously enjoyed," but that William has so littleincome that a "modest financial crisis could wipe him out." The record does not support thisargument.

Under the court's order, Barbara's guaranteed income is less than $6,000 per year. She has the potential to earn interest income from the Merrill-Lynch accounts, but even ifthe accounts earn the same every year in the future, that will provide her with only about$9,500 additional income per year. Barbara listed her expenses at $1,934 per month. Withthe additional money from the Merrill-Lynch accounts, Barbara still has a deficit of morethan $600 per month. If the Merrill-Lynch accounts are devalued on the stock market, herincome will diminish further.

William, on the other hand, claimed expenses of $1,858 per month, and he has amonthly income of $2,570 per month, leaving him with an extra $712 per month, and moreif he continues his work as a real estate sales agent. The record indicates that Barbara ismuch more vulnerable to a "modest financial crisis" than William, since the majority of herincome came from stock market investments.

The reasoning of this court in an earlier case is instructive herein:

"The division of marital property in 'just proportions,' however, does not mean thatthe property must be divided with mathematical equality. [Citation.] An unequaldivision may be made where the court has properly applied the statute. [Citation.] In fact, an approximate equality is equitable, especially in longer marriages.[Citation.] *** Thus, the court has broad discretion under section 503(d) to makean equitable apportionment of marital property [citations], and abuse of discretionoccurs only when no reasonable man could take the view adopted by the trial court.[Citation.] 'As we have stated countless times before, a trial court's resolution ofproperty division is fettered only by the range of reason. [Citation.] ***.' In reMarriage of Siddens (1992), 225 Ill. App. 3d 496, 500, 588 N.E.2d 321, 324." In reMarriage of Eidson, 235 Ill. App. 3d 907, 911 (1992).

Applying that reasoning to the case at bar, we find that the trial court did not abuseits discretion in its division of the parties' property. The trial court clearly applied therelevant factors listed in section 503(d) and equitably divided the property.

CONCLUSION

The judgment of the circuit court is affirmed.

Affirmed.

GOLDENHERSH, J., concurs.


JUSTICE WELCH, dissenting:

I do not believe that the trial court's distribution of property was equitable. Petitionerwas awarded the parties' marital home (valued at $83,000), investment accounts (valuedover $226,300), and about a third of the remaining marital property (which had a total valueof approximately $100,000). This amounts to petitioner receiving nearly 500% more of theproperty than respondent. I agree with respondent's arguments that an 84% to 16% split ofthe property is not equitable. Although I acknowledge that the trial court did not awardmaintenance and awarded respondent his entire pension, which results in respondent'sannual income being substantially higher than that of petitioner's, even considering thegreater annual income awarded to respondent, I do not believe that an 84% to 16% split ofthe property is equitable. I believe that this lopsided division of property amounts to anabuse of discretion and that the trial court should have made a better effort to evenlydistribute the property such that both parties could begin their new lives as close as possibleto the standard of living that each enjoyed during the marriage, even if this requires an awardof maintenance. For these reasons, I must respectfully dissent.