In Re Marriage of Deem

463 N.E.2d 1317, 123 Ill. App. 3d 1019, 79 Ill. Dec. 542, 1984 Ill. App. LEXIS 1790
CourtAppellate Court of Illinois
DecidedMay 7, 1984
Docket4-83-0172
StatusPublished
Cited by14 cases

This text of 463 N.E.2d 1317 (In Re Marriage of Deem) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Marriage of Deem, 463 N.E.2d 1317, 123 Ill. App. 3d 1019, 79 Ill. Dec. 542, 1984 Ill. App. LEXIS 1790 (Ill. Ct. App. 1984).

Opinion

JUSTICE TRAPP

delivered the opinion of the court:

The parties were married on March 24, 1956. The marriage was dissolved on September 28, 1978, with written judgment of dissolution upon the counterpetition filed on October 27, 1978. Maintenance and property matters were reserved. Respondent was 73 and petitioner was 60 years old. In October 1981, petitioner set ancillary matters on the counterpetition for hearing on December 16, 1981. Petitioner testified at the hearing; respondent was represented by counsel but was not present. The trial court awarded petitioner the following as her nonmarital property: a residence in Champaign, Illinois; a lot and cottage in Shelby County, Illinois, at Lake Mattoon; furniture she owned prior to this marriage; the balance in her Investor’s Diversified Services’ (I.D.S.) account; and other property in her possession. The court awarded respondent furniture purchased during the marriage in Louisville, Kentucky, as marital property. The court further awarded him other property standing in his name. The court denied respondent’s request for a lien against petitioner’s real estate for his contributions increasing its value. On January 20, 1983, the trial judge entered a written order on respondent’s motion for reconsideration classifying the Champaign residence as marital property, awarding it to petitioner, and otherwise denying the motion. Respondent appeals from the judgment of the circuit court of Champaign County. Respondent died during the time that this appeal was pending. This court allowed the appellant’s motion for substitution of administrator for the deceased party, over objection. We affirm in part, reverse in part, and remand the cause.

Respondent raises three issues on appeal: (1) whether the trial court erred in classifying the Shelby County property and the furniture petitioner brought to the marriage as petitioner’s nonmarital property, (2) whether the court erred in awarding petitioner the balance of her I.D.S. account, including interest earned during the marriage, and (3) whether the court erred in its allocation of marital property given the lack of evidence on the value of the parties’ marital and nonmarital assets at the time of dissolution, the lack of evidence of his economic and physical circumstances at the time of the hearing, and the court’s reference to an alleged loan from petition to respondent.

We first consider respondent’s argument that the trial court erred in classifying the Shelby County property as petitioner’s nonmarital property. This property was acquired during the marriage as an unimproved lot. It was purchased with $1,200 of petitioner’s nonmarital funds. Title was taken by the parties as joint tenants. Several years later, petitioner’s nephew assisted respondent in building a cottage on the property. Both parties supplied materials. Asked whether respondent was paid for work on the cottage, petitioner answered affirmatively. She later clarified her testimony, saying respondent was paid for repairs to her home prior to their marriage; thereafter he was paid when he had help.

On January 3, 1962, the parties executed and recorded a warranty deed conveying the property to petitioner in consideration of “one dollar and Love and Affection.” Petitioner did not testify as to their intention in executing this deed but said respondent had told her at the time that he might take bankruptcy.

On appeal, respondent argues that evidence presented on the Shelby County property was not sufficient to support a finding that the transfer constituted a gift, given the presumption of marital property of section 503 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981, ch. 40, par. 503). We agree.

The party seeking to establish that property acquired after marriage is not marital property has the burden of proving that the property in question was intended to be a gift. (Hofmann v. Hofmann (1983), 94 Ill. 2d 205, 446 N.E.2d 499; In re Marriage of Severns (1981), 93 Ill. App. 3d 122, 416 N.E.2d 1235.) The presumption of marital property is overcome upon a showing by clear, convincing, and unmistakable evidence that the property was a gift. (Severns.) Mere proof that title to a tract was placed in one party’s name does not rebut the presumption of section 503. (In re Marriage of Wittenauer (1981), 103 Ill. App. 3d 53, 430 N.E.2d 625; see also In re Marriage of Parr (1981), 103 Ill. App. 3d 199, 430 N.E.2d 656 (quitclaim deed or interest of one’s spouse in condominium executed in favor of other spouse insufficient to rebut marital property presumption; both parties testified transfer was made primarily for business and tax purposes).) We conclude that the deed itself was insufficient to show the transfer was a gift. Therefore, on remand the Shelby County property should be treated as marital property.

Respondent also contends that the trial court improperly classified furniture petitioner brought to the marriage as her nonmarital property, since it had been used in the same rooms as furniture purchased during the marriage. Respondent cites In re Marriage of Smith (1981), 86 Ill. 2d 518, 427 N.E.2d 1239, in support of his theory that this furniture was transmuted into marital property. We disagree and decline to give Smith such an expansive interpretation.

A theory similar to respondent’s was eschewed in In re Marriage of Crouch (1980), 88 Ill. App. 3d 426, 410 N.E.2d 580. In Crouch, the wife theorized that various art objects and business inventory acquired prior to the marriage had been commingled with other marital property acquired after the marriage thus evidencing an intent to have the former property treated as marital property. The reviewing court held that the disputed personal property, originally nonmarital property, retained that status after the marriage. By contrast, in In re Marriage of Westphal (1981), 99 Ill. App. 3d 1042, 426 N.E.2d 303, the reviewing court held that certain nonmarital assets — $1,600 worth of tools and equipment used in the husband’s business — had irretrievably lost a separate identity through commingling with tools and equipment purchased after the remarriage of the parties. No difficulty was raised below in identifying furniture petitioner brought to the marriage as separate and distinct from items purchased during the marriage.

Respondent next maintains that the trial court erred in finding the interest earned during the marriage on petitioner’s I.D.S. account was her nonmarital property. Upon review of the record, we conclude that the trial judge regarded respondent as having a burden to establish the existence of such a marital asset, i.e., accumulated interest. Given the posture of this issue, we find this question is controlled by the recent amendment of section 503(a)(7) of the Illinois Marriage and Dissolution of Marriage Act. (Ill. Rev. Stat. 1983, ch. 40, par.

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Bluebook (online)
463 N.E.2d 1317, 123 Ill. App. 3d 1019, 79 Ill. Dec. 542, 1984 Ill. App. LEXIS 1790, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-deem-illappct-1984.