specially concurring:
Upon consideration of the petition for rehearing filed by Edmund B. Thornton, I would join in denying the petition.
Upon consideration of the petition for rehearing filed by Elizabeth Thornton, I find it essential that this court’s opinion be modified, clarified or supplemented in certain respects.
A
Occupancy of the marital residence:
Elizabeth first asks that this court modify or supplement its opinion so as to provide that Elizabeth and the parties’ four minor children be permitted to occupy the parties’ marital residence (Thomwood) pending the conclusion of the trial court hearings on remand.
This court’s opinion ruled that the trial court’s supplemental judgment concerning the division of the parties’ marital property, as well as those provisions concerning maintenance and support for Elizabeth and the children, were erroneously inadequate. Previously, this court had entered its order staying, pending the disposition of this appeal, the trial court’s direction that Elizabeth and the minor children vacate the marital residence at a time certain as designated by the trial court. During the course of this appeal this court also entered its order compelling the payment by Edmund, during the pendency of this appeal, of certain allowances on behalf of Elizabeth and the children.
It appears, if the need arises, that the trial court, upon proper petition, will take cognizance of all relevant previous proceedings and adopt its actions to the relief that may be requested bearing in mind the prevailing circumstances. Presently, there is no valid reason indicated to support the request that this court provide express directions to the trial court to allow Elizabeth and the children to continue their residency in Thornwood pending the conclusion of the hearings on remand.
B
Allocation of the household furnishings:
Elizabeth also asks that this court modify, clarify or supplement its opinion which in effect affirmed the trial court’s award of the household furnishings to Elizabeth subject to certain exceptions and conditions.
The household furnishings were found by the trial court to be marital property and to have a value of $200,000.00. Further, the trial court’s supplemental judgment provided that the household furnishings were assigned to Elizabeth, with the exception of the “personal items which have been inherited heretofore by [Edmund Thornton] or brought into the marriage by him or are of a particularly personal interest to him.” (Supp. Judg., par. 4(d).) On appeal, Elizabeth argued that such an award was illusory and therefore erroneous. I would agree that not only is the form of the assignment of the household furnishings to Elizabeth deceptive and unreal, but unless that judgmental provision is modified, it will inevitably lead to further time consuming, expensive, and acrimonious court action in a quest for clarification and implementation of the provision leading to an equitable division of the personalty. Now would be the opportune time, considering the need for both litigant and judicial economy, to remand to the trial court the question of the specific award and distribution of the household furnishings in the context of other significant property and valuation issues which are to be considered on remand.
While the record appears to disclose that the parties were already involved in some proceedings before the trial court as to the division of the household furnishings, no final determination was made, and this appeal was perfected before the precise issue relating to the household furnishings could be brought to this court. What is clear is that the very nature of the language allocating the division of the household furnishings was already breeding discontent and additional litigation.
The reason for the conflict is the trial court’s judgment provision that grants Edmund the right to such of the household furnishings that “are of a particularly personal interest to him.” This provision is clear, precise and definite. What is of “personal interest” to Edmund is strictly subjective to him. He can pick and choose without restriction or limitation and with a totality of freedom that cannot be questioned. He can, should he alone so desire, effectively take total ownership of some $200,000 of marital property and thereby thwart the needs of Elizabeth and the children and at the same time destroy the equitable division of marital property that the trial court believed it was invoking under the appropriate standards set forth in the Illinois Marriage and Dissolution of Marriage Act. (111. Rev. Stat. 1977, ch. 40, par. 503(c).) Surely, the trial court is not “dividing” the marital property “in just proportions” when one of the parties to the division can frustrate the trial court’s implicit intention to effectuate an equitable division. Additionally, the ability of the trial court to make an appropriate award of maintenance and support is blurred where before it can make such an award it must have resolved the assignment and equitable division of the marital property and it turns out that that division is not fixed and exactly determined. 111. Rev. Stat. 1977, ch. 40, par. 504(b).
Nor would I agree that an undue burden is placed on the trial court when called upon to make a precise and certain allocation of the household furnishings to the respective parties. Trial courts historically have met that burden where required in those few instances where the parties, despite the assistance of their counsel, have been unable to resolve their differences on the division of their household furnishings and effects.
I would have the remand order include the direction to the trial court to allocate the household furnishings precisely and, if necessary, to indicate based upon the evidence presented, the approximate dollar value of the shares allocated to each party.
C
Coin, stamp and gun collections:
Elizabeth further requests that this court’s opinion be modified so that the trial court be directed, on remand, to determine the values of the coin, stamp and gun collections and order an appropriate division. The trial court had found these collections to be marital property; had set a zero value on them; and awarded them to Edmund outright. Elizabeth contends the trial court was under a duty either to require valuations of the collections or alternatively to divide the collections. I agree.
This court’s opinion suggests that the record fails to disclose a request by Elizabeth for a division of the collections and thus indicates that the issue was waived. However, Elizabeth points to the record where counsel for Elizabeth did ask the trial court either to divide the collections equally or order that evidence as to their values be presented. Further, it is clearly of record that Elizabeth in her original dissolution petition sought “such other relief as may be equitable.” Under this broad request the trial court had the authority to act. In re Marriage of Woolsey (1980), 85, Ill. App. 3d 636, 406 N.E.2d 1142.
What is troublesome is the fact that the trial court necessarily was resolving the issues of property division and maintenance and support without actual knowledge of the value of certain property that conceivably could be of great worth and of significant nature in determining the ultimate property division and award of allowances. It is evident that by placing a zero value on the collections and awarding them totally to Edmund, Elizabeth may have suffered a substantial financial loss because of a disparite division of marital property that did not take into consideration the value of the collections. See In re Marriage of Clearman (1980), 85 Ill. App. 3d 584, 407 N.E.2d 189.
While a valuation of the collections may have been essential in this case, it does not follow that all property over which an issue as to value is raised, must be valuated. What is required is sufficient awareness by the trial court that certain marital property which is to be allocated may have a substantial recognized value so as to demand the presentation of evidence of value as a means of insuring the trial court’s proper division of all of the marital assets of the parties. In re Marriage of Olsher (1979), 78 Ill. App. 3d 627, 397 N.E.2d 488 (in the absence of evidence of stocks value, trial court’s division of the property was an abuse of discretion).
For the foregoing reasons, I would, in the remand direction, order the trial court to either divide the collections between the parties or take evidence of their value so that the division of the marital property can be accomplished by the trial court in a manner consistent with the requirement of the law.
Accordingly, I would, on the petition for rehearing requested by Elizabeth, deny a rehearing but I would modify, clarify and supplement the opinion in the manner noted.
I note that in this court’s modified opinion on the denial of rehearing Justice Jiganti writes:
“Matters relating to the property division and maintenance award have been remanded to the trial court. In reconsidering these interrelated issues the trial court may request additional evidence on the value of the collections and the dates of acquisition. Similarly, the trial court may consider Elizabeth Thornton’s request that the orders disposing of the parties’ household furnishings specify which items are assigned to each of the parties.”
While less than mandatory in tone, I find the court’s expression as furthering the views expressed in this special concurrence and at least opening the door to the trial court to take such action as will lead to an equitable division of the marital property and a proper award of maintenance and support for the children.
APPENDIX
SUMMARY OF PERTINENT TRUST PROVISIONS
Trust No. 18294
Income: Net income to Edmund B. Thornton after he reaches age 30.
Principal: Trustee has the discretion to pay principal for Edmund B. Thornton’s “comfortable maintenance, medical care, education and welfare.”
Termination: Upon the death of Edmund B. Thornton to or for the benefit of his descendants as he may appoint by will, except that he may appoint up to one-half of income to his spouse until death or remarriage. If power is not exercised principal vests in his descendants, per stirpes, with distribution at age 30.
Trust No. 22716
Income: During the lifetime of Edmund B. Thornton income may be paid to or for his benefit or for his descendants and his wife (if living with him) for their needs, best interests and welfare in the discretion of the trustee.
Principal: Trustee has discretion to pay principal for Edmund B. Thornton’s “comfortable maintenance, medical care, education and welfare.”
Termination: Upon the death of Edmund B. Thornton to his descendants, per stirpes at age 30.
Trust No. 25277
Income: Trustee has discretion to pay amounts from income to Edmund B. Thornton during his lifetime, subject to $2,000 annual payment to charity.
Principal: To pay annuity only.
Termination: On December 31, 1978, with distribution to the descendants of the grantor (Edmund Thornton’s father), per stirpes.
Trust No. 26851
Income: $2,000 per year to named charity. Balance up to one-half of remaining income to the descendants of the grantor (Edmund B. Thornton’s father) for best interests and welfare. Balance accumulates. Principal: To Pay annuity only.
Termination: On December 31, 1975, with distribution to the descendants of the grantor (Edmund Thornton’s father) per stirpes.
Trust No. 24631
Income: Trustee has discretion to pay income to Edmund B. Thornton during his lifetime, but subject to instruction to provide for Suzanne Thornton during her lifetime.
Principal: Trustee has discretion to pay principal to Edmund B. Thornton for his “best interests and welfare.”
Termination: On the death of a son his share shall be distributed to or for the benefit of his descendants, as he may appoint by will, except that he can appoint income only to his wife until her death or remarriage. To the extent that the power is not exercised to his descendants, per stirpes, with distribution at age 30.
Trust No. 37723
Income: Part or all of the net income can be paid to Edmund B. Thornton or to his descendants for their best interests and welfare at the discretion of the trustee.
Principal: Principal can be paid at the discretion of the trustee as is provided for income.
Termination: Upon the death of Edmund B. Thornton the principal shall be distributed to or for the benefit of his descendants as he may appoint by will, except that he may appoint income only to his wife for life or until remarriage. If power is not exercised distribution to his descendants at 30 years of age.
Trust No. 37724
Income: Subject to the payment of $40,000 annually to charity, one-third of the income may be paid in the trustee’s discretion to Edmund B. Thornton. Charitable payments cease May 1, 1990.
Principal: To pay annuity only.
Termination: Twenty years after the death of Elizabeth T. Wheeler (5-28-90) with distribution to the general fund.
Trust Nos. 31750, 32913, 34233, 35521
Income/Principal: Any income not paid for charitable purposes and such amounts of principal as the trustee deems necessary can be paid to Phyllis M. Woodward, Edmund B. Thornton, James W. Thornton or to their respective descendants for needs, best interests and welfare (one-third each). Any undistributed income accumulates.
Termination: Upon the deaths of Phyllis M. Woodward, Edmund B. Thornton and James W. Thornton their respective shares will distribute to or for the benefit of their descendants as they may appoint by will, except that they may appoint income to a surviving spouse until death or remarriage. If power is not exercised distribution to their respective descendants at 30 years of age.