author: JUSTICE TRAPP

text:
      In re ESTATE OF R.H. LANTERMAN, a/k/a Robert Howard Lanterman, Deceased (Velma Eileen Smallman, Co-executor of the Estate of R.H. Lanterman, and Co-trustee of the Testamentary Trust created under the Last Will and Testament of R.H. Lanterman, Plaintiff-Appellant, v. Paul L. Lanterman, Co-executor of the Estate of R.H. Lanterman, and Ex’r of the Estate of Esther Pearl Lanterman, et al., Defendants-Appellees).
    Fourth District
    No. 4—83—0392
    Opinion filed March 30, 1984.

      Patrick James Smith, of Delano Law Offices, P.C., of Springfield, for appellant.
    E. Frederick C. Gain, of Springfield, for appellees.
   JUSTICE TRAPP

delivered the opinion of the court:

In this appeal which we allowed on plaintiffs application under Supreme Court Rule 308 (87 Ill. 2d R. 308) we are called upon to decide two questions certified by the trial court: (1) the right to maintain a partition action during the pendency of an estate in probate, and (2) the authority of the circuit court to stay a partition action pending the resolution of a will contest action involving the estate of one of the co-tenants. For the reasons given below, we affirm the trial court’s stay of the partition action until the estate is closed and the will contest is resolved.

The main thrust of this litigation involves a 269-acre tract of farmland situated in Sangamon County which originally was held by Robert Lanterman and his wife Pearl as tenants in common. The parties to the litigation are the children of Robert and Pearl, June, Eileen, Paul, Stanley, and a grandson, Phillip Weyer. On April 12, 1978, Robert died seized of a one-half interest in the land as a tenant in common with his wife. His will was admitted to probate on May 4, 1978, and the main asset of his estate was his interest in the farmland. Under his will, Pearl was granted property of an amount equal in value to the maximum estate tax marital deduction, and the residue of his estate was devised to Pearl Lanterman as trustee. Pearl was to receive the income from the residuary trust for her life and upon Pearl’s death, the principal was then to be distributed in nine equal parts, two parts to June, Eileen, Paul and Stanley, and one part to John Smallman as trustee for Phillip Weyer. No order of distribution was made in Robert’s estate, but on November 27, 1979, an order was entered closing the estate and discharging the executor.

On April 20, 1982, Pearl died and her will was admitted to probate on May 19, 1982. Under her will, Paul received all of Pearl’s interest in the south 189 acres of the Lanterman farm, personal and household effects, and the remainder of Pearl’s estate was devised to her descendants per stirpes. On November 9, 1982, Stanley filed a suit to contest the will on grounds of undue influence and lack of testamentary capacity, which suit is still pending. The will in dispute contains an in terrorem clause which disinherits anyone who contests it.

To clear up this tangled pair of estates, Paul had, in the meantime, filed a petition to reopen Robert’s estate to make distributions of the various interests set forth in his will as to what Pearl received individually and as trustee of the testamentary trust. Eileen also filed a complaint for an accounting in Robert’s estate on August 6, 1982, alleging that Paul had farmed the real estate after Robert’s death and refused to make an accounting to the other heirs of the rents and profits from the farm.

Finally, on March 16, 1983, Eileen filed the present suit to partition the Lanterman family farm alleging the following interests subject to division:

“2. That the interest of the Plaintiff and Defendants are as follows:
a. Velma Eileen Smallman and Paul L. Lanterman as Co-Executors of the Estate of R.H. Lanterman and as Co-Trustees of the Testamentary Trust created under the Last Will and Testament of R.H. Lanterman an undivided one-half (V2) interest;
b. Paul L. Lanterman as Executor of the Estate of Esther Pearl Lanterman an undivided one-half (V2) interest;
c. Velma Eileen Smallman, individually, Paul L. Lanterman, individually and as co-executor of the Estate of R.H. Lanterman, as co-Trustee of the Testamentary Trust created under the last will and testament of R.H. Lanterman, and as Executor of the Estate of Esther Pearl Lanterman, Vincent Stanley Lanterman, Phillip H. Weyer, June Sylvia Belucci and John E. Smallman, as Trustee for Phillip H. Weyer, have an interest as legatees and devisees under the Last Will and Testament of R.H. Lanterman and under the Last Will and Testament of Esther Pearl Lanterman.”

The present appeal arose when a motion to strike the complaint for partition, filed by Paul, came before the trial court on May 5, 1983. At that time, the trial court denied the motion, but on its own motion stayed the partition action until the conclusion of the will contest suit and the determination of the distributions in the estate of Robert Lanterman as to the interest which should have been distributed to Pearl Lanterman, individually, and as trustee of the residuary trust.

Plaintiff argues on appeal that she has an absolute right to partition the real estate and that the court erred in staying her action until the litigation between the Lanterman heirs is concluded. She suggests that the interests received by the parties can be determined in the partition proceeding and that the land can be divided so as to distribute the individual interest of Pearl Lanterman to her estate and the interests received by the beneficiaries of the testamentary trust.

Section 17 — 101 of the Code of Civil Procedure defines the circumstances under which land may be partitioned and declares that where lands are held in joint tenancy, or tenancy in common, whether acquired by purchase, legacy, or descent, any one or more interested persons may compel a partition. (Ill. Rev. Stat. 1981, ch. 110, par. 17— 101.) The statute has been interpreted to confer an absolute right to partition, but exceptions have arisen to this absolute right where partition is in violation of a person’s own agreement, or a restriction imposed upon the estate by a prior owner, or where partition would circumvent established principles of law and public policy. (Hill v. Reno (1883), 112 Ill. 154; Brod v. Brod (1945), 390 Ill. 312, 61 N.E.2d 675.) In the present cause, the will of R.H. Lanterman has imposed no restriction upon • partition, but, to the contrary, article five of his will gives express authority to the executors and trustees to partition, and gives further authority to make distribution to the legatees and devisees of their interest in cash, property, or undivided interests in property. The executors-trustees, Paul and Eileen, have not agreed upon a distribution to the legatees and devisees, and we note it merely to show the absence of a restriction upon partition by the testator, Robert Lanterman.

As to whether partition may be granted while an estate is in probate, we find that the supreme court has spoken to this question on several occasions and has indicated that a decree for partition while the estate is in probate is not reversible error although the practice is not approved prior to the settlement of estate claims. (Ellis v. Dumond (1913), 259 Ill. 483, 102 N.E. 801; Hall v. Gabbert (1904), 213 Ill. 208, 72 N.E. 806.) In Ellis, decedent left a will leaving his wife a homestead and 160 acres of land. Following testator’s death, but prior to the settlement of his estate, one of the children sought to partition a tract of real estate which the testator had purchased after his will was executed. The land was intestate property since it was not covered by any provision of his will. Testator’s wife had made a claim for a widow’s award which had not been distributed to her, and her claim was still pending when the partition suit was commenced. The trial court awarded partition, and on appeal the wife argued that the decree for partition was erroneous since the estate was not yet closed and her right to a widow’s award had not been determined. The supreme court stated:

“Mrs. Dumond does complain, however, that the decree for partition was premature, and that the proceeding should have been stayed until it had been determined in the proper form whether she was entitled to a widow’s award. While the practice of entering a decree for partition or sale before the estate is finally settled is not approved by this court, we have held that it is not reversible error to do so, but in case a sale is ordered the personal representative should be brought into court, and the court should so control the funds arising from the sale as to protect the interests of creditors of the estate. (Hall v. Gabbert, 213 Ill. 208; Watke v. Stine, 214 id. 563.) In this case the widow is a party, and in the event that the commissioners shall find the land to be indivisible and a sale is ordered, she has the right to be heard, before a distribution is made, as to any claim she has to any part of this fund as the widow of Jacob Dumond.” (Ellis v. Dumond (1913), 259 Ill. 483, 488, 102 N.E. 801, 803.)

Likewise, in Hall, the court expressed a similar view:

“If it had been the legislative intent that the right should only be exercised by those who derive title by descent after the period allowed by law for the filing of claims against the estate of the ancestor, that intention would have been manifested in some manner or by some language contained in the statute. Nothing of the kind appears, and we can find no warrant for the court reading into the statute additional requirements.” (Hall v. Gabbert (1904), 213 Ill. 208, 218, 72 N.E. 806, 809.)

In answer to the trial court’s first question, then, the fact that an estate is still unsettled in probate will not necessarily prevent the court from awarding a decree of partition.

There are differences in the present case from the facts in Hall and Ellis, though, which we believe require that the partition action be stayed. Hall and Ellis were concerned with satisfying creditors’ claims before the estate assets were partitioned between the heirs which is not alleged to be a problem here. What distinguishes those cases and makes partition premature in this cause is the fact that the interests of the parties are unascertained and not capable of being determined until the estate of Robert Lanterman is closed and an order of distribution is made. In both Hall and Ellis the property was intestate and would be distributed in fixed interests according to the laws of descent and distribution. Here, several complications prevent a determination of the exact interest taken by the parties. For one, it is not clear what amount should have been distributed to Pearl, individually, under the marital bequest portion of the will. Additionally, testator’s will provided that distribution to Pearl would be made “wholly or partly in kind by specific securities or other property at values current at the date of distribution.” Since no distribution was ever made in Robert’s estate it would seem necessary for the trial court to determine whether there was an implied distribution at the time the estate was originally closed, in which case the original appraisal of the land value would control, or whether distribution has not yet been made, in which case a further appraisal will have to be made to determine the exact quantum of interest received by Pearl, individually. It further appears from the record that Federal estate tax liabilities have yet to be satisfied in full, and until all of these questions are resolved there is no way for the court in the partition action to determine what interests are subject to partition. In some respects this case is more akin to the situation where partition is sought of a contingent remainder of property.

In Seymour v. Bowles (1898), 172 Ill. 521, 50 N.E. 122, a conveyance of real estate was made to Susan Bowles and her minor heirs, and in case of the death of either of the heirs without issue the property right to revert back to the surviving heirs. Before the death of Susan Bowles, three of her children filed suit for partition and a construction of the deed. The supreme court construed the deed as creating a life estate in Susan Bowles with contingent remainders in her children and on this construction, held that the partition action was premature and affirmed the dismissal of the bill. The court reasoned that, since it could not yet be determined who the heirs of Susan Bowles were, it would not be possible to make any determination of her children’s interests. We recognize that the interests here are vested, but by reopening Robert’s estate, the interests received by the trust beneficiaries will depend upon how the court resolves the questions which we have previously mentioned, and in this sense they are contingent in amount. While it is clear that the court in the partition action does have the right to determine disputed issues as to title (Ill. Rev. Stat. 1981, ch. 110, par. 17 — 105), nevertheless, we believe that these issues should be determined in the estáte proceeding before partition is allowed.

The more problematic issue, we believe, is whether the partition proceeding must be stayed until the will contest is settled. The defendant argues that the will contest suit should be determined first because the outcome of that proceeding will affect the parties’ interests in the farm. Their interests will be enlarged or diminished according to whatever distribution is made of Pearl’s one-half interest which she owned as a tenant in common and the interest she received from her husband’s estate. Until the will contest is concluded and her estate is closed, there is no way to ascertain the interests passing to the heirs of her estate. After distribution is made in her estate, it appears quite likely that a partition action would be required to divide the remaining interests in the farmland.

The defendants argue that a court of equity will not entertain multiple partition suits as to the same tract of land by the same parties, relying on Dickson v. Dickson (1908), 232 Ill. 577, 83 N.E. 1067. In Dickson it was claimed by one of the defendants that a partition action was improper because it did not include all the land held in tenancy in common between the parties to the suit. The supreme court found this issue without merit stating:

“A court of equity will not entertain a bill for partition of a tract of land held in common, by fragments. A suit for partition should always embrace the whole tract held by the co-tenancy, but it does not follow that those who are mutually desirous of continuing the relation of co-tenants in one tract cannot do so without foregoing their right to a partition of other distinct tracts as to which a partition is desirable.” (232 Ill. 577, 579-80, 83 N.E. 1067, 1068.)

Dickson is not similar to the situation here because there the defendants in partition were arguing that other separate tracts of land also held in common between the parties had to be included in the suit. Plaintiff’s present suit does not seek to partition only a fragment of the estate, but as framed, the petition seeks a partition of the entire tract of land held in tenancy in common.

A case representing a truly fragmented partition action is Nicklaus v. Daubs (1944), 385 Ill. 407, 52 N.E.2d 786. In Nicklaus, title to 140 acres of land was held by Cravens with a cotenant Knott. Cravens conveyed all of his interest in the south part of the 140 acres to one party, all of his interest in 24 acres of the north part to another, and then the original grantor Cravens, as well as his grantees, brought separate partition actions seeking a partition of their separate estates. The supreme court held that the actions should have been consolidated into one suit as the whole property originally held in common with the cotenants, whether consisting of one or a number of parcels, continued to be a unit and the subject matter of a single action. The facts before the court in Nicklaus are not the same as the case here, but we believe that the rationale of that decision requires a similar result. The outcome of the will contest case and the ultimate distribution in Pearl’s estate- will result in the Lanterman heirs receiving further distributions of interests in the farmland. In this case, recognizing plaintiff’s right to partition now would require a separate partition action regarding the same real estate at a later date. Such an inefficient procedure is not in our view warranted, would result in a waste of judicial resources, and we believe is contrary to the express language of section 17 — 105 of the Code of Civil Procedure which declares that the court in a partition action shall ascertain and declare the rights, titles, and interests of all the parties in such action. (Ill. Rev. Stat. 1981, ch. 110, par. 17 — 105.) In the instant partition action there is no way to declare the entire quantum of interests of the beneficiaries of the residuary trust until Pearl’s estate is settled.

In answer to the trial court’s second question, we conclude that the court has authority to stay the partition action until the will contest action is concluded. The power of a trial court to issue a stay order is an attribute of its inherent power to control the disposition of cases before it. (Oglesby v. Springfield Marine Bank (1944), 385 Ill. 414, 52 N.E.2d 1000; Landis v. North American Co. (1936), 299 U.S. 248, 81 L. Ed. 153, 57 S. Ct. 163.) We do not believe that the trial court abused its discretion by issuing a stay order on its own motion. The trial court has power to stay a separate action when both actions involve the same parties and subject matter so that the trial of one action will effectively dispose of the need for a trial in another action. (People ex rel. Department of Public Aid v. Santos (1982), 92 Ill. 2d 120, 440 N.E.2d 876; Medline Industries, Inc. v. Pascal (1974), 23 Ill. App. 3d 346, 319 N.E.2d 310.) The parties to both actions are the same and the essential subject matter of both actions is the same, i.e., the ultimate rights in the farmland. Staying the partition action will not eliminate the need for a trial of the will contest suit, but it will make unnecessary multiple partition actions to the same tract of land. Our opinion should not be interpreted as a holding that plaintiff’s complaint does not state a cause of action for partition as we are only determining whether the trial court abused its discretion in issuing a stay, and upon this question we find no abuse of discretion.

For the foregoing reasons the order of the circuit court of Sangamon County is affirmed.

Affirmed.

MILLS, P.J., and WEBBER, J., concur.


source: Caselaw Access Project

author: JUSTICE LINDBERG JUSTICE UNVERZAGT,

license: Public Domain

text:
      In re MARRIAGE OF DOROTHY MAE SHAFER, Petitioner-Appellant, and RAY E. SHAFER, Respondent-Appellee.
    Second District
    No. 83—276
    Opinion filed March 29, 1984.

      UNVERZAGT, J., dissenting.
    Ronald F. Coplan, of Morrison, for appellant.
    William R. Shirk, of Weinstine and Shirk, of Morrison, for appellee.
   JUSTICE LINDBERG

delivered the opinion of the court:

Petitioner, Dorothy Mae Shafer, appeals from that portion of a judgment of dissolution of marriage entered March 7, 1983, by the circuit court of Carroll County which provides for the distribution of the marital property of the petitioner and respondent, Ray E. Shafer. On appeal, petitioner raises the following issues: (1) whether the trial court’s distribution of marital property was inequitable; (2) whether the trial court’s valuation of the parties’ closely held business was against the manifest weight of the evidence; and (3) whether the trial court erred in not awarding maintenance to the petitioner.

The petitioner filed her petition for dissolution of marriage, and the respondent counterpetitioned for dissolution. A judgment of dissolution was entered on October 15, 1982. Petitioner and respondent were married on February 5, 1969. At the time of the entry of dissolution, the parties were both 40 years old and had three children, ages 16, 12, and eight. Petitioner, at the time of her marriage to respondent, had worked as a munitions handler for an army depot until she was laid off sometime in 1973. For the duration of the marriage, she was primarily responsible for household chores and the care of the couple’s children. Respondent, since 1966, had been employed as a police officer with the Savanna police department and, beginning in 1971, he also had worked for a garbage disposal company. After working at the company two years, he was made a partner. However, the partnership was put in petitioner’s name in order to avoid any possible conflict of interest situation due to his continued employment with the Savanna police department. In 1979, respondent purchased the business for $35,000. He submitted a bid and was awarded the garbage disposal contract with the city of Savanna, dated February 24, 1981, and due to expire on April 30, 1986. The contract was put in petitioner’s name and signed by her.

The record discloses that in the day-to-day operation of the business, respondent drove one of the garbage trucks, repaired and maintained the trucks and hired and fired the personnel. Petitioner did the company’s bookkeeping and accounting.

Respondent’s net income per month in 1981 from his jobs as a police officer and with the garbage company was $2,035.58. He earned $17,014.44 gross per year from his job as a police officer and drew $500 gross per week from the company. A 1981 Federal joint income tax return showed an adjusted gross income of approximately $39,000.

The focus of the evidence presented at trial centered on the valuation of the garbage disposal business, known as Savanna Disposal Company. Evidence depositions from the parties’ experts presented to the court valued the company at $32,784, $38,000, and $120,000.

In a letter of opinion, the trial court awarded petitioner custody of the three children and found the following property of the parties to be marital and awarded to the petitioner: (1) the marital residence valued at $46,200, subject to an outstanding mortgage of $8,300, $5,300 of which is to be paid by respondent; (2) a 1982 Chevrolet Blazer valued at $10,000, subject to a lien of $8,500; (3) household goods and furnishings valued at $3,000; and (4) a 1968 school bus valued at $1,000. The trial court determined petitioner’s marital property was valued at $48,700. The trial court awarded respondent a gun collection, valued at $1,000 and the garbage disposal company valued by the trial court at $55,000. The court ordered respondent to pay the 1982 and 1983 real estate taxes ($1,600) as well as $65 per week per child in child support. Respondent’s award of marital property was valued at $49,100. In order to equalize the division in marital property, the trial court ordered respondent to pay $400 toward petitioner’s attorney fees. The trial court did not award petitioner maintenance stating that petitioner had not requested maintenance. In awarding the business to respondent, the trial judge explained that his findings were based on his conclusion that the value of the business was dependent on respondent’s personal services and his contributions to the business. The provisions of the memorandum opinion were incorporated into a written order, and petitioner filed a timely notice of appeal.

DISTRIBUTION OF MARITAL PROPERTY

Petitioner maintains in this appeal that the marital property was not distributed in just proportions under section 503 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 503(c)). Petitioner argues that her award of marital property is insufficient for her financial needs because the marital residence she received is an asset she cannot maintain due to her low earning potential and is non-income producing. The court’s award of child support, payment of a portion of the mortgage and payment of real estate taxes for 1982 and 1983 is insufficient to rectify the inequality of the property award according to petitioner.

The distribution of marital property rests within the sound discretion of the trial court and a reviewing court will not reverse absent an abuse of discretion. (In re Marriage of Sevon (1983), 117 Ill. App. 3d 313, 453 N.E.2d 866; In re Marriage of Rothbardt (1981), 99 Ill. App. 3d 561, 425 N.E.2d 1146; In re Marriage of McMahon (1980), 82 Ill. App. 3d 1126, 403 N.E.2d 730.) An abuse of discretion occurs only where no reasonable man would take the view adopted by the trial court. In re Marriage of Bentivenga (1982), 109 Ill. App. 3d 967, 971, 441 N.E.2d 336, 339; In re Marriage of Lee (1979), 78 Ill. App. 3d 1123, 1127, 398 N.E.2d 126, 129.

Under section 503(c) of the Illinois Marriage and Dissolution of Marriage Act a court is directed to divide marital property upon dissolution of the marriage in “just proportions considering all relevant factors.” (Ill. Rev. Stat. 1981, ch. 40, par. 503(c).) In dividing marital property, the trial court need not make specific findings as to the factors set out in section 503 of the Act where the evidence supports the property division and the record allows a court of review a basis to review the propriety of the division. (In re Marriage of Walsh (1982), 109 Ill. App. 3d 171, 176, 440 N.E.2d 310, 313.) Furthermore, the Act does not prescribe an equal division of the marital property. (In re Marriage of Aschwanden (1980), 82 Ill. 2d 31, 37; In re Marriage of Sevon (1983), 117 Ill. App. 3d 313, 318, 453 N.E.2d 866, 869.) Thus, if the court has considered all the factors enumerated in section 503 of the Act, its discretion will only be reversed where no reasonable person would take the view adopted by the trial court.

After reviewing the record and the factors found in section 503(c) to be considered in the division of marital property, the apportionment of marital property made by the trial court in this case did not constitute an abuse of discretion. While the trial court did not state the relevant factors it considered in making the division, the record does reflect the value of the parties’ resources, the age of the parties, the duration of the marriage, petitioner’s homemaking contributions, the disparity of the parties’ earning potential subsequent to the dissolution, the custodial award of the children to petitioner, and respondent’s more substantial role in the operation of the business. The trial court calculated what he thought would represent an equitable distribution. Each party received 50% of the net assets and was awarded one of the two principal marital assets.

The trial court, after carefully and extensively reviewing the values submitted, awarded the respondent the business because of his greater contribution toward its acquisition and maintenance. While petitioner contributed her labors and earnings from her employment, the court could properly conclude that respondent’s contributions were greater and that this justified awarding him the business rather than petitioner; therefore, it cannot be said that no reasonable person would take the view adopted by the trial court.

VALUATION OF THE GARBAGE DISPOSAL COMPANY

In addition to her contention that the trial court failed to properly consider the statutory factors in dividing the marital property, petitioner contends that the trial court’s valuation of the garbage disposal company was against the manifest weight of the evidence. Petitioner submitted the evidence deposition of an expert who opined that the company had a fair market value of between $100,000 and $120,000. Respondent’s experts valued the business at between $32,000 and $38,000. The trial court valued the company at $55,000. Petitioner contends that the trial court’s valuation of the business at $55,000 is arbitrary and unsupported by the evidence presented.

In order to apportion marital assets under section 503 of the Illinois Marriage and Dissolution of Marriage Act, the proper value of such assets must be established. (In re Marriage of Wilson (1982), 110 Ill. App. 3d 809, 813, 443 N.E.2d 31, 34.) The trial court need not make specific findings of fact as to the value of the marital assets, so long as the evidence of value in the record is sufficient to enable a court of review to analyze the propriety of the trial court’s disposition. In re Marriage of Voight (1982), 111 Ill. App. 3d 623, 628, 444 N.E.2d 694, 697.

Here, there was competent evidence as to the fair market value of the business from which the court could make an informed division and which was sufficient to support the trial court’s valuation. Compare In re Marriage of Wilson (1982), 110 Ill. App. 3d 809, 443 N.E.2d 31.

MAINTENANCE

Petitioner next argues that the trial court erred in not awarding her maintenance. Petitioner argues that she is without sufficient income in order to maintain herself in the standard of living established during the marriage.

Section 504 of the Act provides for the award of maintenance if the spouse lacks sufficient property to provide for reasonable needs, is unable to support herself through appropriate employment, or is otherwise without sufficient income. (Ill. Rev. Stat. 1981, ch. 40, pars. 504(a)(1), (2), (3).) The necessity for maintenance is within the trial court’s discretion which will not be reversed unless contrary to the manifest weight of the evidence. In re Marriage of Bentivenga (1982), 109 Ill. App. 3d 967, 972, 441 N.E.2d 336, 340; In re Marriage of Smith (1979), 77 Ill. App. 3d 858, 862, 396 N.E.2d 859, 862.

It appears from the record that petitioner’s financial resources are limited. The marital residence awarded to her is valued at $46,200 subject to a lien of $8,300. She was awarded household furnishings valued at $3,000 as well as a car valued at $10,000 subject to a lien of $8,500 and a bus valued at $1,000.

Conversely, respondent was awarded the disposal business which generates an annual gross income of $26,000 and has a fair market value at $55,000. Respondent’s net income is $2,035.58 per month from his employment as a police officer and with the disposal company. The trial court ordered respondent to pay $195 per week or $838.50 per month in child support, the first $5,300 remaining to be paid on the mortgage ($140 per month) and the 1982 and 1983 real estate taxes due in 1983 ($800) and 1984 ($800).

Under section 504(b) the spouse’s “ability to meet his needs independently” is one of the factors to be considered in awarding maintenance. (Ill. Rev. Stat. 1981, ch. 40, par. 504(b)(1).) Further, section 504(b)(6) of the Act lists one of the factors to be considered is “the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.” (Ill. Rev. Stat. 1981, ch. 40, par. 504(b)(6).) A party’s reasonable needs are determined in light of his overall circumstances including the standard of living during the marriage. (Ill. Ann. Stat., ch. 40, par. 504, Supp. to Historical & Practice Notes, at 83 (Smith-Hurd 1983 Supp.); In re Marriage of Simmons (1980), 87 Ill. App. 3d 651, 409 N.E.2d 321.) The act provides that self-sufficiency should be established through a just division of assets wherever possible, rather than through maintenance. (In re Marriage of Smith (1981), 100 Ill. App. 3d 1126, 427 N.E.2d 1262.) The denial of maintenance will not be reversed absent an abuse of discretion. Smith.

One of the central considerations in construing section 504(a)(1) is whether the property has sufficient income-producing potential to provide for the spouse’s reasonable needs. (Ill. Ann. Stat., ch. 40, par. 504, Supp. to Historical & Practice Notes, at 82 (SmithHurd 1983 Supp.).) A spouse need not sell assets nor impair capital to provide for his support. (In re Marriage of Thornton (1980), 89 Ill. App. 3d 1078, 412 N.E.2d 1336; In re Marriage of Lloyd (1980), 81 Ill. App. 3d 311, 401 N.E.2d 328.) These generalized statements, however, must not be taken too literally. In a property distribution where the parties have very few assets and one spouse is forced because of the paucity of assets awarded him to deplete his capital to pay his current living expenses, an award of maintenance is appropriate.

We note that petitioner sought maintenance in her complaint for dissolution. The trial court awarded temporary support for petitioner and the minor children October 15, 1982, pending resolution of the property issues. Thereafter, the cause was taken under consideration on the affidavits of income, expenses, assets and liabilities of the parties, expert valuation testimony, income tax returns and memoranda of argument of counsel.

Respondent’s memorandum filed February 9, 1983, suggested “rehabilitative maintenance payments [to petitioner] for a period of two years in the amount of $30.00 per week.” He also stated that he “has really been providing rehabilitative maintenance to Mrs. Shafer the last seven months, or since they separated in July, 1982.”

Petitioner’s memorandum of February 14, 1983, stated she “is unemployed except for the disposal company. She has no other means of support or income and no reasonable opportunity for the future acquisition of capital assets or income.”

In a section of her memorandum labeled “Proposal” she proposed that she be awarded two-thirds of the marital property including the disposal business; that respondent’s interest be paid to him over a period of five years (i.e., a buy-out of his one-third interest); she occupy the marital residence until the youngest child’s emancipation or petitioner’s remarriage whichever occurs first; furnishings remain with the home; the children’s custody be in petitioner; child support be based upon the net disposable income of respondent but not less than $250 per week; a formula for increasing child-support payments; she receive a vehicle; each party pay his attorney fees and costs; the cost of evidence depositions be divided equally and that “maintenance is not requested.”

The petitioner contends on appeal that the trial court misconstrued the statement in her proposal that “maintenance is not requested” as a waiver of her request for maintenance. We agree with petitioner.

It is apparent that petitioner’s statement that “maintenance is not requested” was in the context of her “proposal,” which suggested she be awarded two-thirds of the parties’ marital property which included, significantly, the disposal business. It is understandable that petitioner would not need maintenance under the court’s adoption of her proposal. Since the disposal business was awarded to the respondent, it is obvious the trial court did not accept her proposal.

Our interpretation is buttressed by the respondent’s proposal that petitioner receive $30 per week for rehabilitative maintenance. Further, respondent on appeal does not contend that petitioner waived consideration by the trial court of an award of maintenance to petitioner.

Thus, the factors listed in section 504(b) to be considered in awarding maintenance cannot be said to have been, considered in the instant case where the trial court found no maintenance had been requested. We remand this issue to the trial court for a determination of the amount of maintenance, if any, that would be appropriate considering the circumstances of the respective parties.

In so doing we recognize that at the present time respondent’s resources from which he can pay a significant amount of maintenance are very limited. Nonetheless, we do not believe that such a limitation should necessarily permanently bar petitioner from maintenance. Regardless of whether the court grants or denies maintenance it may consider taking a reserved-jurisdiction approach to maintenance. This would encourage the former spouse to seek employment while providing the court the opportunity to review the award at the end of a fixed period to determine what efforts the spouse has made toward achieving self-sufficiency and whether those efforts have been successful. (See In re Marriage of Asch (1981), 100 Ill. App. 3d 293, 426 N.E.2d 1066; see also In re Marriage of Rothbardt (1981), 99 Ill. App. 3d 561, 425 N.E.2d 1146.) Since petitioner has custody of the parties’ minor children it is unlikely on this record that she will be able to achieve full self-sufficiency during their minority.

Further, reserving jurisdiction has the advantage under the record in this case, of permitting the trial court another opportunity to assess respondent’s ability to pay maintenance. For these reasons the judgment of the circuit court of Carroll County is affirmed in all respects except as to the issue of maintenance. The cause is remanded for consideration of petitioner’s request for maintenance.

Affirmed in part and remanded.

REINHARD, J., concurs.

JUSTICE UNVERZAGT,

dissenting:

The majority decision, after much circumnavigation of the facts, fails to accurately state the position of the parties in the trial court on the question of maintenance.

The majority labors mightily but unconvincingly to create what does not exist in this record. The plaintiff-appellant’s position in the trial court was that maintenance was not requested.

Plaintiff’s trial counsel, who is also her appellate counsel, closed his written argument to the trial court with this paragraph:

“Maintenance is not requested. Each party should pay his or her attorney’s fees, costs, C.P.A. costs and divide evenly the cost of the evidence depositions.”

The trial judge’s memorandum opinion stated that: “No maintenance has been requested by the Petitioner, so none is awarded.” He was correct.

No proofs were adduced on the subject. It cannot be awarded.

It is well settled that the theory upon which a case is tried in the lower court may not be changed on appeal, and that an issue not presented to or considered by the trial court cannot be raised for the first time on review. (Kravis v. Smith Marine, Inc. (1975), 60 Ill. 2d 141, 147.) It is required that the points argued on appeal be commensurate with the issues presented at trial. (In re Estate of Leichtenberg (1956), 7 Ill. 2d 545, 548-49.) Where a proposition is not urged or argued in the trial court, it will not be considered on review, for a party cannot argue one thing in the trial court and another to the appellate court. (Westlake v. Moffitt (1975), 30 Ill. App. 3d 597.) Dissolution proceedings are not sui generis, and these rules even apply to such proceedings. (Bergan v. Bergan (1976), 42 Ill. App. 3d 740.) Our court has long given validity to these necessary rulings. Cornell v. County of DuPage (1977), 58 Ill. App. 3d 230; First National Bank & Trust Co. v. City of Rockford (1977), 47 Ill. App. 3d 131.

As Justice Reinhard recently pointed out, “[a party] may not ask the court to proceed in a given manner and then assign as error in a court of review the ruling or action which he procured.” People v. Miller (1983), 120 Ill. App. 3d 495, 501.

Furthermore, it is firmly established that this court has jurisdiction only over those matters which are raised in the notice of appeal. (Harvey v. Carponelli (1983), 117 Ill. App. 3d 448.) Maintenance was not specifically raised in the notice of appeal, and we should not consider the issue.

In the case at hand, no reversal and remand for a determination of maintenance is warranted.

I therefore dissent.


author: JUSTICE LINDBERG

text:
      In re MARRIAGE OF DOROTHY HOLMAN, Petitioner-Appellee and Cross-Appellant, and JOHN C. HOLMAN, Respondent-Appellant and Cross-Appellee.
    Second District
    No. 83—206
    Opinion filed March 29, 1984.

      Melvyn H. Berks, of Berks, Berks & Marcus, Ltd., of Des Plaines, for appellant.
    James P. Morgan & Associates, of Hinsdale, and John R. MacKay, of Wheaton, for appellee.
   JUSTICE LINDBERG

delivered the opinion of the court:

Respondent-appellant-cross-appellee John C. Holman appeals from an order of the circuit court of Du Page County which dissolved his 10-year marriage to petitioner-appellee-cross-appellant Dorothy J. Holman, distributed the parties’ marital and nonmarital property and awarded maintenance to Dorothy. John challenges the trial court’s award of maintenance and its characterization of certain assets as Dorothy’s nonmarital property. Dorothy cross-appeals, raising as error the trial court’s allocation of the parties’ marital property. We affirm.

Dorothy, age 56 at the time of trial, and John were married on July 4, 1970, in LaGrange, Illinois. Both parties had been married previously; Dorothy had five daughters from her first marriage and John's first marriage produced two sons. Upon the death of her first husband, Dorothy acquired by survivorship a home in LaGrange, Illinois. John and his two sons moved into this residence after the marriage. Dorothy also acquired the beneficial interest in a testamentary trust upon her first husband’s death. During their marriage, Dorothy paid the mortgage on the residence from income generated by the trust. The real estate taxes and insurance payments on the residence were paid directly by the trustee, LaGrange State Bank. Dorothy’s primary source of income during the years of the parties’ marriage was from the trust. John was employed throughout the marriage, owning a variety of businesses which provided his means of support.

On September 25, 1980, Dorothy filed her dissolution petition, and after John filed his answer, the trial court ordered John to pay temporary monthly maintenance of $950, which was later reduced to $700. After hearing testimony for three days, the trial court on November 18, 1982, issued a ruling by letter which divided the parties’ nonmarital and marital property and awarded Dorothy permanent maintenance. The letter was subsequently incorporated into a judgment of dissolution. On February 4, 1983, John filed a post-trial motion seeking modification or amendment of the judgment, which the court denied. Thereafter, John filed a timely notice of appeal and Dorothy filed a cross-appeal.

John raises as his first assignment of error that the trial court incorrectly characterized the trust and the LaGrange residence as non-marital property. While he asserts these designations are erroneous, he does not seek a different allocation of the property. Rather, he requests only that this court redesignate the trust and the house as marital property in the judgment of dissolution. In her cross-appeal, however, Dorothy does challenge the trial court’s allocation of the marital property. Since inclusion of the beneficial trust interest and the residence in the marital estate would affect this court’s review of the trial court’s marital property allocation, we proceed to determine if the court correctly characterized the trust and residence as non-marital property.

Section 503(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat., 1982 Supp., ch. 40, par. 503(a)) (IMDMA) designates property acquired by certain means as nonmarital. The trial court in section 503 is directed to “assign each spouse’s non-marital property to that spouse.” (Ill. Rev. Stat., 1982 Supp., ch. 40, par. 503(d).) The statute then directs the court to apportion the marital property in just proportions considering as one factor the value of the nonmarital property set apart to each spouse. Ill. Rev. Stat., 1982 Supp., ch. 40, par. 503(d)(2).

The trust which is the subject of this appeal was established in 1966 by Dorothy’s first husband. The trust beneficiaries are Dorothy and her five daughters. The trust agreement established two funds: the marital fund (Trust A) and the residual fund (Trust B). Dorothy was entitled to all of the income and up to $5,000 in principal from Trust A and by 1977, the marital fund was exhausted. Dorothy is entitled to the income from Trust B and may receive distribution of the principal if the trustee, LaGrange State Bank, determines the sums are necessary for her reasonable support and comfort. Judith French, a trust administrator at the bank, testified that Dorothy is required to make an application for principal distribution and the decision whether to grant the application is within the discretion of the trustee bank. French stated preservation of the trust corpus for the remaindermen was one factor to be considered in deciding upon a request to distribute principal.

Neither party disputes that the trust was Dorothy’s nonmarital property at the beginning of the marriage. John contends, however, that the trust was transmuted into marital property based on two theories. First, John contends he enhanced the value of the trust by paying the State and Federal taxes due on the income produced from the trust. John argues that had the trust been required to pay the taxes, at least the interest and perhaps some of the principal from the trust would have been expended. Dorothy responds that she paid the taxes on the trust income in 1973 and 1975, and furthermore, that John’s payment of the parties’ State and Federal income tax liability did not increase the value of the trust corpus.

We conclude that John’s payment of the parties’ income tax liability is insufficient to effect a transmutation. John does not cite any decision which has addressed his transmutation theory. Supportive of Dorothy’s theory is In re Marriage of Jones (1982), 104 Ill. App. 3d 490, 432 N.E.2d 1113. There, the husband entered the marriage with a stock trust. During the marriage, he reinvested most of the dividends in additional stocks, kept the trust assets segregated from the parties’ marital property, and reported the income earned by the stock trust on their joint tax returns. In defense of the trial court’s characterization of the trust as nonmarital, the husband argued that “the payment of taxes does not constitute the preservation or enhancement of the stock trust.” (104 Ill. App. 3d 490, 497; 432 N.E.2d 1113, 1118.) On appeal, the court agreed that the trust was nonmarital. The court found significant that the husband segregated the trust from marital funds, reinvested most of the dividends, and did not commingle the trust income with marital property. As in Jones, the parties here reported the trust income on their joint income tax returns. The trust was always segregated from the parties marital property, and the trust income was used almost exclusively to make the mortgage, insurance and property tax payments on the La-Grange residence. We find Jones persuasive and conclude that John’s payment of the income tax liability on the income from the trust did not transmute the trust corpus into marital property. See also In re Marriage of Wojcicki (1982), 109 Ill. App. 3d 569, 440 N.E.2d 1028 (property retained its nonmarital character even though marital funds were used to pay real estate taxes on the property).

As his second transmutation theory, John contends the commingling of trust income with trust principal transformed the trust into marital property. John’s argument is unpersuasive. The record demonstrates the trust income was not commingled with trust principal. Trust administrator French testified that in certain years, when not all of the trust income was distributed to Dorothy, the accumulated income was deposited into an account separate from that containing the principal cash because the latter was used for investment. Since the funds were not commingled, John’s transmutation argument is without merit.

John next contends the trial court erroneously concluded that the LaGrange house was Dorothy’s nonmarital property. After John and Dorothy were married, Dorothy maintained the house in her name alone until she transferred the title to the LaGrange State Bank in trust on February 13, 1976, retaining the sole beneficial interest and naming her five daughters as remaindermen. Dorothy testified that on February 14, 1970, the parties had a discussion in which Dorothy agreed to pay the monthly expenses on the home including the mortgage, real estate taxes, and the insurance payments. In return for these payments, Dorothy stated, John agreed to pay the utilities on the house and the parties’ grocery bills. In his testimony, John confirmed that this understanding existed between the parties. Although the parties dispute who paid for certain maintenance expenses on the residence, the terms of their agreement were adhered to by the parties. Dorothy testified that the trust department of the bank would deposit $450 monthly into a checking account at the LaGrange State Bank held jointly by John and Dorothy. The bank then would automatically withdraw from the account the funds necessary to pay the mortgage. John testified that he never contributed any funds to the La-Grange State Bank checking account which he regarded as her account. He also stated he never contributed any funds toward the mortgage, real estate taxes or insurance on the residence. Similarly, Dorothy testified she never contributed any funds to this account and the only funds ever deposited there were from her trust. John testified that he paid the utilities and grocery bills from his Edgewater Bank account which both John and Dorothy testified was his account. Dorothy never made a withdrawal from or deposit to this account during their marriage.

John argues, however, that the simple fact that the trust income was placed in a marital account which was then used to pay the mortgage on the LaGrange home transmuted the residence into marital property. Transmutation can occur when nonmarital property is commingled with marital property, thereby converting the entire non-marital property into marital property. The supreme court has specifically recognized the transmutation-of-property theory. (In re Marriage of Smith (1981), 86 Ill. 2d 518.) In Smith, the court stated “where a spouse who holds nonmarital property causes it to be commingled with marital property, or with nonmarital property of the other, we hold that the commingled property is presumed to be marital property.” 86 Ill. 2d 518, 529.

Dorothy persuasively asserts, however, that the evidence rebutted any presumption that the house was marital property. The record establishes that the trust income was nonmarital. (See In re Marriage of Jones (1982), 104 Ill. App. 3d 490, 432 N.E.2d 1113; but see In re Marriage of Reed (1981), 100 Ill. App. 3d 873, 427 N.E.2d 282 (interest earned during the marriage on nonmarital certificate of deposit is marital property).) This income was deposited by the trustee bank monthly into the checking account in both parties’ names. That fact raises the presumption that the account was marital property. (See In re Marriage of Emken (1981), 86 Ill. 2d 164.) The uncontradicted testimony of both John and Dorothy, however, rebuts the marital presumption. Dorothy and John testified concerning their agreement regarding which expenses each party would assume in connection with the LaGrange residence. Dorothy testified she told John prior to the marriage that she wanted to continue paying the mortgage, insurance premiums and real estate taxes. Dorothy’s expressed intention to maintain the residence as her separate property was evidenced by her placing in trust the title to the LaGrange residence with her daughters as beneficiaries. Consistent with the parties’ agreement, Dorothy made these payments out of the LaGrange checking account or had the bank pay the creditors directly. John testified that he never made a withdrawal from or a deposit to this account, and Dorothy testified that she never deposited any funds in this account. The only deposits were made directly by the LaGrange State Bank. This testimony rebuts the presumption of marital property raised because the account was in the names of both parties.

John unpersuasively contends that this court cannot consider whether the LaGrange checking account was characterized incorrectly as marital property by the trial court because Dorothy failed to challenge the characterization in her notice of appeal. In his notice of appeal, John challenged “the Court’s findings and orders entered on the same day relative to the designation and assignment of non-marital and marital property owned by the parties.” This broad language empowers this court to consider all decisions of the trial court relative to the characterization of the marital and nonmarital property. John raises in his appellate brief the trial court’s characterization of the trust and residence as nonmarital property. The interrelationship of the LaGrange checking account with these two assets necessarily requires this court to consider whether the account was marital or non-marital and thus, that issue is properly before this court.

Since the funds used to reduce the mortgage obligation were nonmarital and the account from which the mortgage was paid also was nonmarital, the trial court properly characterized the La-Grange residence as Dorothy’s nonmarital property. Transmutation can occur when a party expends marital funds to preserve or repair a nonmarital asset. (In re Marriage of Olson (1983), 96 Ill. 2d 432.) The trust income was nonmarital, and thus the residence maintained its nonmarital character when the bank applied the trust income to reduce the mortgage obligation. Even if a marital presumption were to be raised concerning the residence, such a presumption would be rebutted based upon the evidence in the record. Dorothy’s intention to maintain the house as her nonmarital property is evidenced by her retention of the title to the property in her name alone after the marriage and her transfer of title to the LaGrange State Bank as trustee with only herself and her daughters as beneficiaries. Dorothy’s insistence on paying the mortgage, insurance and taxes on the property from her trust income alone further indicates that Dorothy from the inception of the marriage intended to retain the house as her separate property. The totality of this evidence convinces us that Dorothy rebutted any marital presumption concerning the LaGrange residence.

John raises as an additional argument that his contributions to and improvements on the house transmuted the character of the property. In support of his theory, John refers to his testimony wherein he stated he remodeled the side porch, replaced the deck, the stairs and the pillar supports, replaced all of the front porch screens, repainted the outside and inside of the house, replaced window panes and sash cords, tarred and sealed the balcony of the den, put in a new front and back yard lawn and installed a new water heater. John stated he bought the materials with marital funds and received no funds from Dorothy. John also testified he purchased a dishwasher, stove and refrigerator for the residence. In contrast, Dorothy testified she bought the materials when John repainted the deck, stairs and support beams in 1975. Dorothy stated she paid for the materials used in repairing the screens, the windows and the balcony den and purchased most of the paint used for the inside and outside of the house. She further testified that John only painted the outside of the house once during the marriage.

John relies on In re Marriage of Lee (1981), 87 Ill. 2d 64, for the proposition that repairs paid out of marital funds on a home previously owned as nonmarital property by one spouse creates the rebuttable presumption that the property is marital. In Lee, the husband entered the marriage with a house valued at $12,500. During the parties’ five-year marriage, they expended $20,000 for improvements on the house; $20,000 from marital funds and $8,000 loaned from a bank. The trial court valued the home at $32,500 (the value of the home prior to the marriage plus the $20,000 in improvements) and ruled that the $12,500 acquisition price was the husband’s nonmarital property. The appellate court disagreed, concluding the entire value of the property became transmuted because of the use of marital funds to pay the mortgage. In affirming the appellate court, the supreme court in Lee emphasized that the increase in value of the house was attributable in part to the wife’s employment earnings and household duties. These facts compelled the court to conclude that the contribution of marital funds created the rebuttable presumption, unrebutted by the husband, that the entire residence was transmuted into marital property. Unlike Lee, the facts here do not create a rebuttable presumption that the house is marital property. John introduced no evidence of the value of the repairs or the amount he expended for repairs and materials. Furthermore, while not expressly relied on by the supreme court in Lee, the improvements there constituted almost two-thirds of the total value of the house. Here, even if we were to have evidence of value, the improvements would not, we believe, amount to a significant percentage of the $108,000 net value of the LaGrange residence.

The supreme court’s recent decision in In re Marriage of Olson (1983), 96 Ill. 2d 432, also supports the conclusion that a transmutation of the LaGrange home did not occur. Prior to her marriage, the wife in Olson owned the residence with her parents in a land trust. During the marriage, the couple extensively remodeled the house. The husband, who was in the construction business, did a “substantial amount of this work” and his subcontractors donated their services. In the marriage’s early years, the husband deposited his paycheck into a joint checking account from which the mortgage payments were made. In concluding that the home retained its nonmarital character, the Olson court, as noted by John here, did not determine that the husband’s improvements were insufficient to raise a presumption of marital property. Rather, the court held only that the wife’s evidence rebutted any presumption which might have arisen. Nevertheless, langauge in Olson directly addresses John’s transmutation argument:

“Every act of commingling or every use of marital funds for the maintenance of nonmarital property, however, should not work a transmutation. Such a strict reading of our holding in Smith would practically render the concept of nonmarital property illusory. The commingling of marital and nonmarital assets, and the contribution of marital assets to nonmarital property must be sufficiently significant to raise a presumption of a gift of the property to the marital estate. Thus, the making of or paying for repairs and maintenance on the house that do not materially add to its value or payments that do not reduce the indebtedness of the mortgage should not raise the presumption of transmutation.” (96 Ill. 2d 432, 440.)

Here, John did not establish that his repairs materially added to the value of the house and thus, his evidence of repairs is insufficient to raise the rebuttable marital property presumption.

Even were a presumption to arise, Dorothy’s evidence here rebutted any presumption that the house was marital property. The Olson court found as persuasive rebuttal evidence the following facts:

“Geraldine’s refusal to place the house in joint tenancy with her husband, her insistence that the house belonged to her parents, and the continuation of the title to her beneficial interest in her name completely rebuts any presumption that she intended to make a gift of the house or her interest in it to the marital estate.” (96 Ill. 2d 432, 441.)

Likewise, here Dorothy maintained the home in her name alone, and eventually authorized the bank as trustee to hold title for the benefit of herself and her daughters. These facts rebut any marital property presumption.

The next issue is Dorothy’s assertion in her cross-appeal that the trial court erred in apportioning the marital property. Dorothy argues that John was awarded 92% and that she was awarded only 8% of the marital property. Dorothy emphasizes she made significant contributions to the marriage as homemaker which freed John to focus all of his efforts toward his business endeavors. (See Ill. Rev. Stat., 1982 Supp., ch. 40, par. 503(d)(1).) Dorothy highlights her station in life; her bad health, her advanced age, her absence from the work force, and her high expenses as factors militating against awarding all of the marital property to John. In contrast, she asserts, John is in good health, has maintained gainful employment throughout the marriage, and earns income substantially in excess of his living expenses. On the basis of the statutory factors, Dorothy contends the property was not distributed in just proportions.

Section 503 of the IMDMA requires that marital property be distributed in just proportions. (Ill. Rev. Stat. 1981, ch. 40, par. 503.) The statute requires the trial court to first determine if any of the property is nonmarital and then to award that property to the proper spouse. In apportioning the marital property, the court is directed specifically to consider the “value of the property set apart to each spouse.” (Ill. Rev. Stat., 1982 Supp., ch. 40, par. 503(d)(2).) This factor is especially significant in this case. Dorothy received as nonmarital property a residence with a net value of $108,000 and her beneficial interest in a trust with a market value of $116,000. In contrast, John received only $14,040 in nonmarital property. Dorothy’s significant amount of nonmarital property justified an award of most of the marital property to John. See Atkinson v. Atkinson (1981), 87 Ill. 2d 174, cert, denied (1982), 456 U.S. 905, 72 L. Ed. 2d 162, 102 S. Ct. 1751.

Examination of the marital property buttresses the conclusion that the trial court’s award was in just proportions. Of the $121,455 in total marital property, $85,000 or 70% is represented by John’s business, The Big Gallon, a gas station and food store in Cicero, Illinois. The source of the funds for the business can be traced in large part to property and assets owned by John before the marriage. In 1969, prior to the parties’ marriage, John sold a home for a $15,000 profit and invested $5,000 of that amount in a milk business partnership, placing the remaining $10,000 in a Cicero, Illinois, bank account. After the marriage, John sold his interest in the first partnership, established another partnership with his cousin and later sold his interest in the second partnership for approximately $30,000. John invested some of these funds in a new business, and then he withdrew the funds from that venture and invested in The Big Gallon. From December 1977 through October 1978, John rented the property on which he operated this business. Thereafter, he received a loan for $46,000 from the LaGrange State Bank. He also invested in his business $38,000 of his own funds accumulated from the sales of his non-marital house and his previous businesses. At the time of trial, John testified the mortgage balance on the property had been reduced to $21,000. The only evidence of Dorothy’s contribution to the business was that she worked part-time for approximately one year as a clerk in the food store prior to the time John purchased the property. While neither party disputes that The Big Gallon is marital property' because John’s salary was used to reduce the mortgage balance, the record makes clear that John’s efforts and funds were responsible for the creation and continuation of the business. (See Ill. Rev. Stat., 1982 Supp., ch. 40, par. 503(d)(1).) The business is also John’s means of income. We conclude the trial court properly awarded the entire business to John.

The remaining marital property is valued at $36,455 of which only $4,400 is income-producing. Since Dorothy was awarded a significant amount of nonmarital property, the trial court awarded John most of the marital property including much of the parties’ vacant land which is relatively illiquid. Recognizing that Dorothy’s income was inadequate to meet her reasonable needs, however, the court required John to pay permanent monthly maintenance of $625. While the IMDMA encourages a trial court to provide for a spouse’s reasonable needs through its distribution of marital property rather than through an award of maintenance (In re Marriage of Sevon (1983), 117 Ill. App. 3d 313, 453 N.E.2d 866), given the nature of the marital assets and the income needs of the parties, we conclude the award was in just proportions.

Our supreme court affirmed an award of almost all of the marital property to one spouse in Atkinson v. Atkinson (1981), 87 Ill. 2d 174, cert, denied (1982), 456 U.S. 905, 72 L. Ed. 2d 162, 102 S. Ct. 1751. There, the husband owned more than $500,000 in nonmarital assets which produced annual dividend income of $27,800. Apart from the husband’s Individual Retirement Account, the only marital asset was the marital home. Specifically relying on the facts that the husband had substantial nonmarital assets and income from those assets, the appellate court upheld the award of the marital home to the wife. Like the husband in Atkinson, Dorothy here has substantial assets, one of which generates $10,000 in annual income. However, Atkinson is dissimilar to the facts in the case at bar in that in Atkinson, the court found that the husband had a greater opportunity for future acquisition of capital assets and income. Here, John would appear to be better able to acquire future assets based upon his business. Nevertheless, the principal factor motivating the award of most of the assets to one spouse in Atkinson was the substantial amount of non-marital assets of the other spouse, and thus, Atkinson supports the trial court’s allocation of property in the case at bar.

An award of nearly all of the marital property to one spouse was also discussed in In re Marriage of Hapaniewski (1982), 107 Ill. App. 3d 848, 438 N.E.2d 466. There, the trial court had awarded the two parcels of marital real estate which had an equity value of approximately $50,000 to the wife. The parties had no other marital assets of consequence. While reversing and remanding the property award because the husband’s nonmarital assets had not been valued, the appellate court in Hapaniewski expressly stated that the award of the marital property to one spouse was not necessarily unjust.

“We do not mean to intimate, however, that the marital properties of the parties could never be awarded in their entirety to the petitioner. There is no requirement in Illinois that marital property be divided equally [citation], and it is possible for one party to receive all of the marital assets as his or her ‘just proportion’ [citation].” (107 Ill. App. 3d 848, 854, 438 N.E.2d 466, 470.)

See also In re Marriage of Sevon (1983), 117 Ill. App. 3d 313, 453 N.E.2d 866 (award to wife of home valued at $133,500, car and her pension in lieu of maintenance was in just proportions even though husband only received his automobile and a small insurance policy); In re Marriage of Schriner (1980), 88 Ill. App. 3d 380, 410 N.E.2d 572 (significant amount of nonmarital property of husband justified award of substantially all of marital property to wife). We conclude the trial court’s allocation of the marital property was not an abuse of discretion.

John’s final contention is the trial court erred in requiring him to pay Dorothy $625 in permanent monthly maintenance. Section 504 of the IMDMA authorizes a trial court to award maintenance only if it finds that the spouse seeking maintenance:

“(1) lacks sufficient property, including marital property apportioned to him, to provide for his reasonable needs, and,
(2) is unable to support himself through appropriate employment or is the custodian of a child whose condition or circumstances make it appropriate that the custodian not be required to seek employment outside the home, or,
(3) is otherwise without sufficient income.” (Ill. Rev. Stat., 1982 Supp., ch. 40, par. 504.)

As with the court’s decision whether to award maintenance, the amount of the maintenance award lies within the discretion of the trial court and its decision will not be set aside unless contrary to the manifest weight of the evidence or amounting to an abuse of discretion. In re Marriage of Johnson (1982), 106 Ill. App. 3d 502, 436 N.E.2d 228.

John argues the maintenance award was an abuse of discretion because Dorothy’s nonmarital property is sufficient to provide for her reasonable needs. Specifically, John contends the terms of the trust obligate the trustee to distribute principal necessary for her reasonable support and comfort. Because of the significant amount of non-marital property possessed by Dorothy, John argues the trial court erred in concluding that she lacked sufficient property including marital property apportioned to her to provide for her reasonable needs.

Subsection (a)(1) of section 504 employs the term “reasonable needs” of a spouse seeking maintenance as a benchmark for determining the sufficiency of the property of the spouse seeking maintenance, and a party’s reasonable needs are determined in light of his or her overall circumstances including the standard of living during the marriage. (Ill. Ann. Stat., ch. 40, par. 504, Supp. to Hist. & Prac. Notes, at 83 (Smith-Hurd Supp. 1983); In re Marriage of Simmons (1980), 87 Ill. App. 3d 651, 409 N.E.2d 321.) A spouse need not sell assets nor impair capital to provide for his support. (In re Marriage of Thornton (1980), 89 Ill. App. 3d 1078, 412 N.E.2d 1336.) Dorothy adequately demonstrated that she did not have unlimited access to the principal of the trust and further demonstrated that her annual income from the trust is insufficient to meet her annual expenses. Even with her trust income, her standard of living will decrease significantly without an award of maintenance. Therefore, she has established her entitlement to maintenance.

Two of the factors to be considered by a court in determining the amount of maintenance are the financial resources of a spouse seeking maintenance and the ability of the spouse from whom maintenance is sought to meet his reasonable needs as well as his maintenance obligation. (Ill. Rev. Stat., 1982 Supp., ch. 40, pars. 504(d), 405(b)(6).) Dorothy filed an affidavit listing her monthly expenses at $1,574.81. The trust in 1981 earned $10,705 or $892 monthly. She also receives $130 monthly from her mother who lives with her. We recognize that Dorothy’s mortgage obligation will terminate within a short period of time, but even without a mortgage payment, Dorothy’s expenses will exceed her income. Additionally, the marital property awarded her is nonincome-producing except for a small amount of stock and a one-half interest in a savings account.

The record indicates John is able to make the maintenance payment and still meet his needs. In 1981, the only year for which we have clear and specific evidence, John’s net business income was $34,770. After adding back depreciation of $9,351 in interest and dividends of $321, John’s income for 1981 was approximately $44,442. By affidavit, John stated his monthly living expenses totaled $2,207.75. While he stated his income had declined substantially since 1981, John offered insufficient evidence of the amount of his income reduction. John testified only that his income had declined 20% during the first three months of 1982 because he was selling fewer gallons of gasoline than during the same period in 1981. Additionally, John cites no case where the appellate court reversed an order of the trial court awarding maintenance. John relies upon In re Marriage of Emken (1980), 89 Ill. App. 3d 667, 411 N.E.2d 599, aff’d in part, rev’d in part and remanded on other grounds (1981), 86 Ill. 2d 164, as most directly analogous to the case at bar. In Emken, both parties had been married previously, and each owned a nonmarital farm. After awarding each party his or her respective farm, the trial court denied the wife’s request for maintenance, in part because she was only supporting herself and was employed. These facts distinguish Emken from the instant case. Here, Dorothy worked only for a brief period as a clerk in John’s business and has no employment skills. Additionally, both her 92-year-old mother and disabled daughter live with her. Finally, in Emken the appellate court affirmed a denial of maintenance, and did not reverse an order granting maintenance; the latter being the relief sought by John here. While we affirm the maintenance award, we note that should either party’s circumstances change, he or she can petition the trial court to modify the maintenance obligation. See Ill. Rev. Stat. 1981, ch. 40, par. 510.

Accordingly, we affirm the judgment of the circuit court of Du Page County.

Affirmed.

SEIDENFELD, P.J., and VAN DEUSEN, J., concur.


author: PRESIDING JUSTICE SEIDENFELD

text:
    Du PAGE BANK & TRUST COMPANY, Plaintiff, v. Du PAGE BANK & TRUST COMPANY, Trustee, et al., Defendants (E. P. Doyle and Son, Inc., Counterplaintiff-Appellant, v. Du Page Bank & Trust Company et al., Counterdefendant-Appellee).
    Second District
    No. 83—345
    Opinion filed March 29, 1984.

      John J. Mangan and Nancy A. McKeating, both of Rooks, Pitts, Fullagar & Poust, of Wheaton, for appellant.
    Dale W. Bruckner, of Peregrine, Stime, Newman & Ritzman, Ltd., of Wheaton, for appellee.
   PRESIDING JUSTICE SEIDENFELD

delivered the opinion of the court:

E. P. Doyle and Son (contractor), counterplaintiff in an action filed by the Du Page Bank & Trust Company (lender) to foreclose a trust deed against property held by the Du Page Bank & Trust Company as trustee under trust No. 2195 with John F. Daniels as sole beneficiary (owner), appeals from a judgment finding that the lender held a lien prior to that of the contractor.

On May 19, 1979, the owner entered into a contract with the contractor to build a restaurant in Glen Ellyn to be called “Track 29,” for a construction cost of $474,580. The contract described the work to be done by referring to the architects’ plans, by listing the inclusions, exclusions, and changes from those plans, and by providing for possible future change orders at additional cost to the owner.

On August 18, 1979, the owner executed a trust deed, secured by the restaurant to be built. That day, the bank issued a note for $500,000 to the owner personally guaranteed by the beneficiary of the trust. The mortgage was recorded on August 21,1979.

After the contractor began work, he and the owner executed two change orders, one on January 15, 1980, and one on April 28, 1980, and agreed to additional expenses incurred, bringing the total contract changes to $47,896.48 and bringing the total construction price to exceed the loan amount by $22,476.48.

On June 25, 1980, the owner and the contractor executed an agreement affirming the original contract, agreeing by implication that the contractor had received $500,000, agreeing that $22,476.48 was still owed, and providing that interest would accrue on the unpaid balance at 15% per year beginning June 25. The lender disputes whether these orders form part of the original contract.

On October 30, 1980, the contractor arranged for a plumber to move some vent pipes at the restaurant. The lender disputes whether this work constituted completion of the contract or minor repair and maintenance for the purpose of determining when the contractor’s time to file his lien began to run.

On January 7, 1981, the contractor filed his mechanics’ lien claim in Du Page County on the Track 29 property, reciting that the last day of work pursuant to contract was October 30, 1980, and claiming $22,476.48 plus interest computed from June 25,1980.

The lender filed a complaint to foreclose its mortgage February 25, 1981. The contractor filed a petition to intervene, an answer, and a counterclaim, claiming that the owner owed money on the contract and that the contractor’s mechanics’ lien had priority over the lender’s mortgage to the extent of the amount due.

The trial court entered an order January 27, 1983, holding that the contractor possessed a “valid mechanics’ lien” and that the lien was “subordinate, inferior, and subject to the first mortgage” of the lender.

On March 16, 1983, the court denied the contractor’s motion to reconsider, entered the decree of foreclosure, found a valid mechanics’ lien for the contractor, subject to the trust deed lien, and ordered the property sold. The lender purchased at the sale bidding the approximate balance on its mortgage.

I

The lender claimed priority on the theory that the change orders were supplemental contracts and not entitled to the priority of the contractor’s lien based on the original contract. The court concluded that the mortgage lien had priority over the amounts due the contractor under the change orders which were executed after the mortgage was recorded. The contractor argues, however, that the change orders were executed pursuant to the provisions of the general contract which was recorded prior to the mortgage and therefore the amounts claimed form part of the prior lien based on that contract.

Change order No. 2, dated April 25, 1980, included changes in paneling, bar fixtures, additional booths, the kind of tile, additional plumbing and heating work, and attendant labor amounting to $30,896.38. A further change order dated June 25, 1980, included additional electrical work, shelving, glass, decorating, Formica table tops, overage on hardware, and exterior stone and asphalt amounting to $7,476.48. The total lien claims, with the balance of $15,000 unpaid on change order No. 2, came to $22,476.48. There is no dispute as to the priority of the mortgage lien as to the $500,000 paid out on the loan; the dispute concerns the balance due the contractor as a result of these last two change orders.

It is undisputed that the lien of the May 19, 1979, construction contract attached on that date. (Ill. Rev. Stat. 1981, ch. 82, par. 1.) It is also clear that a contract which predates the recording date of a mortgage lien is a prior lien, provided the contractor’s claim has been timely filed. Pittsburgh Plate Glass Co. v. Kransz (1919), 291 Ill. 84, 89-90.

The construction contract provides that the owners shall pay the contractor the contract sum “subject to additions and deductions by Change Order as provided in the Conditions of the Contract ***.” Article 15 of the general conditions contains the provision:

“The Owner, without invalidating the Contract, may order extra work or make changes by altering, adding to or deducting from the work, the Contract Sum being adjusted accordingly. All such work shall be executed under the conditions of the original contract except that any claims for extension of time caused thereby shall be adjusted at the time of ordering such change.”

The parties have not cited any Illinois cases directly deciding the issue of priority between the mortgagor and a contractor as to additional liens resulting from change orders contemplated in the original contract. The contractor relies principally on the case of Haffner & Taylor v. Perloff (1932), 174 La. 687, 141 So. 377. In Haffner, the contractor sought to establish mechanics’ lien claims for extra work done under a construction contract. The supreme court noted that the contract provided for making alterations or doing additional work with the consent of the owner of the building and that as to the items which had gone into the new building the contractor was entitled to a lien “resulting from the registry of the original contract.” (174 La. 687, 691, 141 So. 377, 378.) As the lender points out, Haffner involved a claim between a contractor and an owner and did not deal with the question of priorities between the contractor and the lender with the mortgage lien. However, the Haffner court’s conclusion that the additional work would be considered part of the original contract when provision had been made for changes in the contract is contrary to the lender’s underlying contention that change orders amount to supplemental contracts. Where a contract expressly provides for alterations and changes and such changes are agreed to and made, they are a part of the original contract and form part of the lien. Brown v. Lowell (1875), 79 Ill. 484, 486.

We conclude that in this case the contractor’s lien for the additional work done and unpaid under the construction contract with the owner has priority over the lender’s trust deed lien. The additional work was related in all respects to the building of the restaurant contemplated in the construction contract. The restaurant building in completed form, together with the land, was the contemplated security for the trust deed. The lender, making disburséments under a construction loan, was bound by the provisions of the construction contract which provided expressly for change orders. The lender could have protected itself from being subordinated to the contractor’s lien for unpaid extras and changes by so providing in its contract with the owner-borrower, but did not do so.

The Mechanics’ Lien Act (Ill. Rev. Stat. 1981, ch. 82, par. 1 et seq.) is construed strictly as to requirements which bring one within the terms of the statute. (See Charles A. Hohmeier Lumber Co. v. Knight (1932), 350 Ill. 248, 252-53; Robinette v. Servite Fathers (1977), 49 Ill. App. 3d 585, 586.) The rule of strict construction, however, applies only to the requirements upon which the right to a lien depends, and is not used to invalidate a lien which has properly attached. (Watson v. Auburn Iron Works, Inc. (1974), 23 Ill. App. 3d 265, 273.) The statute will not be applied to thwart just claims and it is not to be construed so as to create pitfalls for the unwary (United Cork Cos. v. Volland (1937), 365 Ill. 564, 572), but is construed so as to do substantial justice, once the statutory notice requirements have been strictly complied with. Armco Steel Corp. v. La Salle National Bank (1975), 31 Ill. App. 3d 695, 699.

Healy Ice Machine Co. v. Parks (1910), 155 Ill. App. 232, relied upon by the lender, does not call for a different conclusion. In Healy, there was a dispute between the owner and the contractor as to whether the original contract was fully completed. A supplemental contract was entered into with the contractor to finish the work and to extend the time for completion. The court held that the supplemental contract was part of the original contract and that the contractor’s claim was prior to the mortgage recorded after the original contract but before the supplemental contract. (155 Ill. App. 232, 237.) The lender here relies on comments in Healy that the supplemental contract “did not cast any additional burden upon the premises” (155 Ill. App. 232, 237). The lender argues from this dicta that if a change does create an additional burden the priority is lost. That, however, was not the actual ruling of the ease. In any event, we do not consider the dicta persuasive under the circumstances before us.

In National Bank of Republic v. Wells-Jackson Corp. (1934), 358 Ill. 356, the majority concluded that an agreement, of which the lender had no knowledge, between a tenant and a vendor, that a sprinkler system should not become a fixture but should remain personal property, was superior to the claim of the lender that his mortgage lien embraced the sprinkler system. It was noted that the system had been made a part of the building but could be removed without material injury to the building or to the system. (358 Ill. 356, 364-65.) The dissenting view in National Bank of Republic placed considerable emphasis on the fact that the agreement between the tenant and the owner was secret as far as the lender was concerned. (358 Ill. 356, 370 (Shaw, J., dissenting).) Here, we charge the lender with knowledge of the original construction contract which specifically provided that changes could be made.

II

The lender also argues that even if the change orders are considered a part of the original contract so as to antedate the mortgage, the decision of the trial court may be sustained on the basis that the contractor’s lien was not filed within four months of the completion of the work, a statutory requirement to effect priority against parties other than the owner. (See Ill. Rev. Stat. 1981, ch. 82, par. 7.) The lender contends that the contractor, by having stated in the change orders that the work had been performed prior to June 25, 1980, and seeking interest after that date, implicitly acknowledged that all work was completed more than four months prior to the filing of the lien on January 7, 1981.

The contractor relies on work done on October 30, 1980, consisting of having a plumber move vent stacks at the request of the owner. The original location of the stacks resulted in a serious ventilation problem in the restaurant. The contractor notes that he was obligated under the general conditions of the contract to remedy the defect as a part of his requirement to perform in a good and workmanlike manner, and that the work was done at the request of the owner.

The four-month period runs from the date the contract is completed. (Ill. Rev. Stat. 1981, ch. 82, par. 7.) Thereafter, trivial work in the nature of repairs or minor changes will not extend the time for filing a mechanics’ lien. (Alexander Hendry Co. v. Mooar (1926), 242 Ill. App. 516, 519-20. See also Miller Brothers Industrial Sheet Metal Corp. v. La Salle National Bank (1969), 119 Ill. App. 2d 23, 29-30; De Anguera v. Arreguin (1968), 92 Ill. App. 2d 381, 384-85.) However, substantial work done at the request or demand of the owner, without which the contract cannot be considered completed, will extend the date of completion. St. Louis National Stockyards v. O’Reilly (1877), 85 Ill. 546, 554. See also Decatur Bridge Co. v. Standart (1917), 208 Ill. App. 592, 597.

Here, the evidence shows that although the restaurant had opened for business the owner had a problem with gas odors that did not dissipate into the air, making the building unsuitable for its intended use until the ventilation problem had been corrected. The work was substantial, required to complete the contract, and therefore extended the time for filing the lien. The contractor’s lien is prior to the lender’s lien.

The judgment of the circuit court of Du Page County, subordinating the lien of the contractor E. P. Doyle and Son, Inc., to the first mortgage lien of the Du Page Bank & Trust Company, is reversed.

Reversed.

LINDBERG and VAN DEUSEN, JJ., concur.