In Re Marriage of Kamp

557 N.E.2d 999, 199 Ill. App. 3d 1080, 146 Ill. Dec. 57, 1990 Ill. App. LEXIS 1055
CourtAppellate Court of Illinois
DecidedJuly 18, 1990
Docket3-89-0649
StatusPublished
Cited by9 cases

This text of 557 N.E.2d 999 (In Re Marriage of Kamp) 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 Kamp, 557 N.E.2d 999, 199 Ill. App. 3d 1080, 146 Ill. Dec. 57, 1990 Ill. App. LEXIS 1055 (Ill. Ct. App. 1990).

Opinion

JUSTICE BARRY

delivered the opinion of the court:

The six-year marriage of Brad Raymond Kamp and Lisa Diane Kamp was dissolved on May 13, 1987. At issue in this appeal is the trial court’s classification and distribution of Brad’s interest in certain farm property.

The record on appeal reveals the following facts relevant to the inquiry before us. The parties were married on February 14, 1981. At that time Brad and his twin brother, Bruce, were farming a 240-acre parcel owned by Bill Dietrich. The brothers also helped their father, Raymond, farm about 500 acres of land. They used their father’s machinery and equipment in both operations. Brad and Bruce maintained a joint bank account and had business accounts with grain elevators and fertilizer dealers in the name “Kamp Brothers.” Brad and Bruce kept a record book of their accounts and shared all farm profits and expenses on a 50/50 basis. Their agreement between 1975 and 1986 was oral. When the brothers weren’t farming, Brad took seasonal employment in other businesses.

In 1982, Raymond picked up another 240 acres to farm. Then he and the twins farmed all 980 acres together, sharing expenses and profits equally — a third for Raymond and two thirds for the twins. For bookkeeping purposes, the brothers continued to maintain their own records in a book separate from their father’s.

Raymond retired effective February 1984, and Brad and Bruce purchased his farm equipment and machinery for $100,000. According to the testimony of record, the value of the tools and equipment owned by the brothers prior to their father’s retirement was minimal. The brothers continued to purchase farm equipment and increased the acreage that they farmed.

Then in January 1986, they entered into a written partnership agreement with John Dietrich. Because of Dietrich’s relative inexperience in the farm business, the partners agreed to include approximately $60,000 of “good will” in valuating the Kamp Brothers’ machinery and equipment, which they fixed at approximately $288,000. At the time of trial, the Kamp Brothers partnership farmed in excess of 1,800 acres on a tenant basis.

Based on the evidence presented at trial, the court determined that Brad’s individual interest in Kamp Brothers partnership was worth $93,578 at the time the parties’ marriage was dissolved. The court determined that Brad’s interest was marital property and awarded Lisa $31,192.66 as her share of the asset.

In this appeal, Brad argues first that the court erred in finding that his interest in the Kamp Brothers partnership was a marital asset. Brad further contends that in the event this court should determine that the classification of the property was erroneous, then we should resolve as well the parties’ dispute over whether the marital estate is entitled to reimbursement from the partnership interest qua nonmarital asset.

Central to Brad’s argument that the partnership was non-marital property is the fact that the evidence strongly indicates that a partnership known as Kamp Brothers was in existence several years before 1981, when the parties were married. Brad correctly states that in this State a partnership may be formed when two or more persons join forces “to carry on a trade or venture for their common benefit, each contributing property or services, and having a community of interest in the profits. As between the [partners], the existence of a partnership relation is a question of intention to be gathered from all the facts and circumstances. Factors to consider are profit sharing, written articles of agreement, the mode in which the parties have dealt with each other and others, and the use of the firm name.” Hoover v. Crippen (1987), 163 Ill. App. 3d 858, 862, 516 N.E.2d 722, 725, citing Rizzo v. Rizzo (1954), 3 Ill. 2d 291, 120 N.E.2d 546.

Notwithstanding Lisa’s suggestion to the contrary, we agree with Brad that the mere fact that the brothers had not entered into a formal written partnership agreement or filed Federal partnership tax returns prior to 1981 does not defeat a finding that a farming partnership existed prior to the parties’ marriage.

We further agree with Brad that the partnership interest is non-marital property. Our analysis of the issue is guided by the court’s decision in In re Marriage of Wilder (1983), 122 Ill. App. 3d 338, 461 N.E.2d 447, and section 503(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 503(a)).

Section 503(a) recites that nonmarital property includes “(2) property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, legacy or descent; *** (6) property acquired before the marriage; [and] (7) the increase in value of property acquired by a method listed in [the foregoing] paragraphs ***, irrespective of whether the increase results from a contribution of marital property, non-marital property, the personal effort of a spouse, or otherwise, subject to the right of reimbursement provided in subsection (c) of this Section.” (Ill. Rev. Stat. 1987, ch. 40, pars. 503(a)(2), (a)(6), (a)(7).) This statute leaves no doubt but that a business property interest owned by one spouse prior to the parties’ marriage, such as the partnership here at issue, is nonmarital property and retains its nonmarital classification despite the addition of a third partner and a significant increase in its value during the marriage.

In an analogous situation, the court in Wilder found that stock in a professional corporation was nonmarital property. There, the husband had developed a sole proprietorship practice of retinal surgery over a 10-year period prior to the parties’ marriage. Two years after the marriage, the form of the business was changed to that of a professional corporation. The instrument of conveyance executed at the time of the conversion recited that the husband was to receive 50% of the stock of the new corporation and a note for $5,000 in exchange for his office equipment and furniture. As in this case, the wife in Wilder argued that the value of the husband’s business had increased significantly during the parties’ marriage. Nonetheless, both the trial court and the court on review rejected the wife’s position that the husband’s business property interest had lost its identity as nonmarital property. Wilder, 122 Ill. App. 3d at 343-44, 461 N.E.2d at 452, citing Ill. Rev. Stat. 1981, ch. 40, par. 503(a)(2); In re Marriage of Smith (1981), 86 Ill. 2d 518, 427 N.E.2d 1239.

For purposes of the instant appeal, Wilder is further instructive in that the court there observed that in some cases the trial court’s classification, even if in error, will not require a reversal if no prejudice is shown, i.e., where the outcome would be no different had the error not occurred. (Wilder, 122 Ill. App. 3d at 345, 461 N.E.2d at 451-52.) It is with this proposition in mind that we pursue our analysis of Brad’s second issue concerning possible reimbursement from the nonmarital asset.

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Bluebook (online)
557 N.E.2d 999, 199 Ill. App. 3d 1080, 146 Ill. Dec. 57, 1990 Ill. App. LEXIS 1055, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-kamp-illappct-1990.