In Re Marriage of Durante

559 N.E.2d 56, 201 Ill. App. 3d 376, 147 Ill. Dec. 56, 1990 Ill. App. LEXIS 992
CourtAppellate Court of Illinois
DecidedJune 29, 1990
Docket1-89-0917
StatusPublished
Cited by17 cases

This text of 559 N.E.2d 56 (In Re Marriage of Durante) 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 Durante, 559 N.E.2d 56, 201 Ill. App. 3d 376, 147 Ill. Dec. 56, 1990 Ill. App. LEXIS 992 (Ill. Ct. App. 1990).

Opinion

PRESIDING JUSTICE DiVITO

delivered the opinion of the court:

Respondent Maureen Durante (Maureen) seeks review of a portion of the circuit court’s judgment of the dissolution of her marriage to petitioner Carl Durante (Carl). She appeals from that portion of the judgment which distributed marital and nonmarital property and barred maintenance support. The issues presented are whether: (1) Maureen rebutted the presumption of a gift which arose from the placing of title to nonmarital property in joint tenancy; (2) the circuit court erred in barring Maureen from receiving or seeking maintenance and in failing to give adequate consideration to her contribution as a homemaker; (3) the circuit court gave adequate consideration to Maureen’s gifts to the children from her nonmarital funds; and (4) the circuit court properly considered Carl’s attempt to dissipate assets and income in apportioning the marital assets.

Carl and Maureen were married on August 18, 1956, and were the parents of two daughters who are now adults. At the time of dissolution, they were 54 years of age, and they had lived together in excess of 30 years.

At the time of dissolution, Carl was employed as a carpenter. Based on wages of $19.25 per hour, his 1987 tax return reflected a gross income of $39,039, which was the highest income he had earned during the marriage. Maureen, a homemaker who had cared for the children, did baby sitting and worked occasionally during summers and Christmas holidays at various retail stores.

Carl testified that he and Maureen were both in good health. Maureen testified that she had “middle age medical problems” which included bladder difficulty, hoarseness, breast cysts, cystic disease, and asthma; she was on medication for estrogen replacement and for a hive condition. She testified that her current physical condition would allow her to work part time in employment which did not require her to be on her feet.

In August 1960, the parties moved into a new home which Carl had built on vacant property in Northbrook, Illinois. The property had been purchased with money given to them by Maureen’s parents for that purpose. The parties stipulated that the home was worth $160,000 to $165,000 at the time of dissolution and that the mortgage had been paid.

In 1978 the parties acquired a one-half interest in a multi-apartment building located in Palatine, Illinois. The other half was held jointly by Carl’s parents. The building, subject to two mortgage liens totalling $165,000, was valued at $375,000 to $395,000. Although in their pretrial memoranda both parties classified the building as a marital asset, during the trial the parties disagreed as to whether the building was marital property. Maureen contended that Carl withdrew $15,000 from a marital account containing $30,000, that she gave him $2,300 to purchase the property, and that she used the remaining $15,000 from the account to pay for various trips and vacations which she took with her daughters. Carl maintained that both parties agreed to equally split the $30,000; he took his portion, plus $8,000 earned from side jobs, and borrowed $2,300 from Maureen to purchase his half of the building. On the cashier’s check for the $2,300, Maureen had written, “My loan to Carl for downpayment on his building.” Carl maintained and repaired the building, and Maureen has never seen it. The rental income of the building paid all its expenses.

In 1981, Maureen’s parents died. As a part of her inheritance, Maureen received a half interest in her parents’ home located in Wilmette, Illinois; the other half went to her sister. At that time, the house was valued at $129,000. When Maureen purchased the other half of the house from her sister, using $64,500 of the money from her inherited nonmarital funds, the Wilmette property was conveyed by Maureen and her sister to Carl and Maureen, as joint tenants with rights of survivorship. In 1982, the parties moved into the Wilmette residence and Carl’s mother and stepfather moved into the Northbrook house, pursuant to an agreement between the parties. At the time of dissolution, the Wilmette house was valued at $270,000.

Upon his death, Maureen’s father, Eugene F. Galin, left her a share in a trust worth $73,000, payable upon her 55th birthday in January 1989; $7,408 in an IRA account; and cash, stocks, bonds, and other securities in another trust valued at $422,721. Maureen’s income from this nonmarital property in 1987 was $13,432 from interest; $10,312 in dividends; and $12,765 in capital gains from stock sales.

Carl inherited $15,000 from the estate of Maureen’s father. These funds were deposited into a joint checking account in the names of both parties at Horizon Federal Savings. At the time the parties separated, there was $4,652.90 remaining in the account.

In September 1986, while Maureen and their daughters were vacationing in Europe, Carl moved back into the Northbrook house and withdrew the $4,652.90 from the joint account at Horizon. Later, his mother closed out a bank account which she held jointly with him at Great American Federal Savings. Additionally, Carl had $8,000 in cash which he kept in a drawer of his dresser.

The judgment for dissolution set the value of the various properties, classified them, and distributed them in the following manner:

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The circuit court also ordered that the parties were forever barred from seeking or receiving maintenance from each other. Maureen appeals from that portion of the circuit court’s judgment relating to property distribution and permanent denial of maintenance.

I

Maureen maintains that the circuit court erred when it deter-, mined that she had not rebutted the presumption of a gift to the marital estate of the Wilmette home, and when it failed to consider and account for her contribution of funds to the property which it should have balanced against all other factors listed in section 503 of the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1987, ch. 40, par. 503).

Prior to assigning or dividing property upon dissolution of marriage under section 503 of the Act, the court must classify it as either marital or nonmarital. Normally, . property acquired by either spouse after the marriage prior to the judgment of dissolution is presumed marital property regardless of how title is held. (Ill. Rev. Stat. 1987, ch. 40, par. 503(b); In re Marriage of Rogers (1981), 85 Ill. 2d 217, 422 N.E.2d 635.) Property obtained by gift, legacy, or descent, however, is excepted from marital property and is classified as non-marital property. (Ill. Rev. Stat. 1987, ch. 40, par. 503(a)(1).) Thus, the property received by Maureen upon the death of her father falls within the exception and was properly classified as nonmarital. As the circuit court correctly determined, however, once the Wilmette home was transferred to Carl and Maureen in joint tenancy, a presumption of transmutation and of gift to the marital estate arose. (Ill. Rev. Stat. 1987, ch. 40, par. 503(b); Atkinson v. Atkinson (1981), 87 Ill. 2d 174, 429 N.E.2d 465, cert. denied (1982), 456 U.S.

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Cite This Page — Counsel Stack

Bluebook (online)
559 N.E.2d 56, 201 Ill. App. 3d 376, 147 Ill. Dec. 56, 1990 Ill. App. LEXIS 992, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-durante-illappct-1990.