¶1dissenting:
¶2I dissent for the reason that the principal opinion departs from the organized legal concepts established through a chain of case law construing the statutes relating to alimony and support in effect at the time evidence was heard and the decree was entered in this cause.
¶3The opinion correctly notes that no partition of real estate held in joint tenancy was sought and that for such reason the trial court was without authority to award partition. The opinion also correctly notes that the wife had failed to plead and prove special equities in the remainder of the property.
¶4The opinion concludes that alimony in gross can be transmogrified into a vehicle for the award of property as a form of equitable distribution, although such manner of distribution was not authorized by section 17 of the Divorce Act (Ill. Rev. Stat. 1975, ch. 40, par. 18) providing for the transfer of property by reason of special equities.
¶5The conclusion stated in the opinion is not supported by statute or by law. Section 18 of the Divorce Act (Ill. Rev. Stat. 1975, ch. 40, par. 19) provides that alimony in gross may be employed as an alternative to the award of periodic alimony. The court stated in McGaughy v. McGaughy (1951), 410 Ill. 596, 102 N.E.2d 806, that periodic alimony was a better method of providing for the support of the wife under the law and reversed an award of one-half of farm property as such award would have the effect of putting a husband out of business. Under the law as it existed at the time of this decree, judicial decisions have consistently determined that alimony in gross is to be awarded only upon a finding of circumstances which make periodic alimony unworkable.
¶6The circumstances which have been found to support alimony in gross as an alternative to periodic alimony may be categorized as those (1) where the husband was engaged in such a hazardous occupation that his ability to pay periodic alimony is uncertain (Rodely v. Rodely (1963), 28 Ill. 2d 347, 192 N.E.2d 347); (2) where the husband is in debt and has no present ability to pay periodic alimony (Lipe v. Lipe (1927), 327 Ill. 39, 158 N.E. 411; Miezio v. Miezio (1955), 6 Ill. 2d 469, 129 N.E.2d 20); (3) where the husband had such irregular income as to make him unable to pay periodic alimony (Hall v. Hall (1974), 18 Ill. App. 3d 583, 310 N.E.2d 186); and (4) where the husband had irregular employment or was frequently intoxicated and engaged in gambling (Persico v. Persico (1951), 409 Ill. 608, 100 N.E.2d 904; Dmitroca v. Dmitroca (1967), 79 Ill. App. 2d 220, 223 N.E.2d 545).
¶7The opinion cites Pérsico, wherein the reviewing court found that the trial court’s determination that periodic alimony was not feasible because of the husband’s infrequent employment and habitual intoxication was supported by the evidence.
¶8In what appears to be a second aspect, the opinion discusses the failure of the trial court to award “credit for her contributions” toward farm machinery, cattle or crops, so that there was a want of a “fair division” of property. The cited and quoted Gerhardt v. Gerhardt (1974), 18 Ill. App. 3d 658, 310 N.E.2d 224, was by its express terms directed to a consideration of pleadings and evidence upon a claim of special equities under section 17 of the Divorce Act (Ill. Rev. Stat. 1975, ch. 40, par. 18). Such reasoning is rationally inconsistent with the determination that the wife had failed to allege and prove any special equities in the property of the husband.
¶9I would affirm the decree of the trial court.