dissenting:
The wife asserts that the trial court abused its discretion in the distribution and allocation of marital assets, debts and attorney fees. She asserts that the trial court erred as a matter of law in finding that the pro forma account was not income for purposes of determining child support.
The record in this case approaches 1,200 pages, including 25 exhibits received in evidence, many of which are complicated accounting matters. The hearings before the trial court covered a period from February to December 1991.
After a painstaking and meticulous determination of judgment by the able and experienced trial judge, the majority reverses the judgment and sends the whole thing back to the trial court to be redone.
In my view, the majority is committing serious error which will cost the parties dearly in time, effort, aggravation and expense. Little improvement can be expected upon retrial.
The distribution of marital property rests within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. (In re Marriage of Scafuri (1990), 203 Ill. App. 3d 385.) I am of the opinion that the trial court’s decision regarding the distribution of assets is a proper exercise of its broad discretion.
Initially, I note that the trial court’s judgment appealed from placed no value on the furniture in the marital home. The husband testified it was worth $40,000, and the wife testified it was worth no more than $15,000, and later $8,515. In any event it is no small amount. The trial court provided that if the parties could not agree upon a value the property should be sold at public auction and the proceeds divided 60% to the wife and 40% to the husband. The parties neither agreed to a value nor was a public auction held. The court’s judgment is therefore nonfinal in that regard. The wife asks that we award the furniture and furnishings to her. The majority finds no error in the trial court’s failure to assign a value to the parties’ automobiles and marital furnishings, or a division of those assets. I therefore assume there will be a public auction and the proceeds divided 60-40 according to the court’s judgment.
The majority states that broadly speaking “we find that as a whole, the court’s distribution of assets and debts represents an abuse of discretion.” (239 Ill. App. 3d at 281.) I take issue with this determination. First, the majority discussed the trial court’s determination that 60% of the pro forma account is to be turned over to the wife. The majority acknowledges that when this happens the account is converted to income and thus taxable to the husband, although received by the wife. That of course is one of the reasons the trial court awarded the property as it did.
The majority next discusses the award of the $72,000 savings account to the husband which the trial court remarked was earmarked for the payment of taxes. The majority quite incomprehensibly states “We find no reason to adjust our evaluation of the equity in this asset in assessing the relative equity amounts received by the parties.” (239 Ill. App. 3d at 282.) Hardly convincing and hardly supporting reversal of the trial court award.
Section 503(d) of the Act (Ill. Rev. Stat. 1989, ch. 40, par. 503(d)) allows the trial court discretion to divide marital property into “just proportions,” taking into consideration all of the factors listed as well as any others deemed relevant to the case. (In re Marriage of Aschwanden (1980), 82 Ill. 2d 31, 37.) The touchstone of proper apportionment is whether it is equitable in nature, with each case resting on its own facts. (In re Marriage of Hart (1990), 194 Ill. App. 3d 839, 847.) The division need not be equal to be equitable. (In re Marriage of Riech (1991), 208 Ill. App. 3d 301.) The trial court’s discretion in these matters will not be disturbed absent clear abuse. Discretion has been abused where no reasonable man could adopt the trial court’s position. Hart, 194 Ill. App. 3d at 847.
Here, it cannot be said that no reasonable man would adopt the trial court’s distribution. The majority should therefore affirm.
The majority also confuses the issues of tax refunds. The trial court clearly provided that the husband would be entitled to any refunds for the periods he filed singularly. The trial court provided for the division of refunds for those refunds for returns where the parties filed jointly. The majority again incomprehensibly states: “Although the court’s restriction could be appropriate in the context of an otherwise just division, we do not consider it defensible in this case.” 239 Ill. App. 3d at 283.
Finally, the allowance of attorney fees and the proportion to be paid by each party are within the trial court’s discretion and will not be disturbed on appeal absent an abuse of discretion. In re Marriage of Scafuri (1990), 203 Ill. App. 3d 384.
The majority alleges that “[t]he record strongly suggests that her repayment of her rather extensive attorney fees would significantly undermine her financial stability.” (239 Ill. App. 3d at 284.) It should be noted that the wife never complained of these fees and agreed to them. There was no adversarial hearing in this regard. Certainly, when the trial court was awarding the wife 60% of most of all the available assets, the provision that each party pay its own fees was not an abuse of discretion.
The majority’s failure to come to grips with the pro forma account as it relates to income is another reason to affirm the judgment below.
The trial court awarded the available pro forma account like an asset, at 60-40 division. It provided for notice to the wife as to when future pro forma amounts would be requested. Thus, the amount could at that point be declared income or it could be available as it was intended by the partnership as a capital account subject to calls. There was no error in the trial court’s determination.
The judgment of the circuit court of Du Page County should be affirmed.