In Re Marriage of Nicks

531 N.E.2d 1069, 177 Ill. App. 3d 76, 126 Ill. Dec. 442, 1988 Ill. App. LEXIS 1683
CourtAppellate Court of Illinois
DecidedDecember 7, 1988
Docket4-88-0212
StatusPublished
Cited by7 cases

This text of 531 N.E.2d 1069 (In Re Marriage of Nicks) 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 Nicks, 531 N.E.2d 1069, 177 Ill. App. 3d 76, 126 Ill. Dec. 442, 1988 Ill. App. LEXIS 1683 (Ill. Ct. App. 1988).

Opinions

JUSTICE KNECHT

delivered the opinion of the court:

The respondent, John Nicks (John), appeals from portions of a judgment for dissolution of marriage entered by the circuit court of Sangamon County on June 24, 1986, and modified on January 6, 1988. Respondent contends the trial court abused its discretion in awarding the petitioner, Ernestine Nicks (Ernestine), (1) certain property which was inherited by respondent, but held by the parties in joint tenancy and (2) maintenance of $200 per month for 36 months. We affirm in part and vacate and remand in part.

After 20 years of marriage, Ernestine filed a petition for dissolution of marriage on July 2, 1986. The grounds were not contested and are not at issue in this appeal. A hearing on all remaining issues, including property division and maintenance, was held on December 1, 1986, and a transcript of the proceedings is part of the record on appeal. The court reserved judgment until further evidence of the value of the parties’ real estate was presented.

The docket sheet reflects the court heard arguments on June . 24, 1987, and a judgment for dissolution of marriage was entered the same day. By agreement of the parties, the judgment was modified on January 6, 1988. There is no transcript of the June 24, 1987, or January 6, 1988, proceedings on record, but both the original and modified orders indicate the parties’ real property was divided in relevant part as follows.

The court awarded Ernestine 115 shares of bank stock, title to the marital home, title to real estate located at 1909 East Jackson Street in Springfield, Illinois, a Federal tax refund in the amount of $980, and $5,000 in exchange for her share of the title to real estate (two vacant lots) located in North Carolina. In addition, petitioner was allowed maintenance of $200 per month for 36 months. John was awarded title to the parties’ commercial property (a tavern) and the North Carolina real estate.

After the January 6, 1988, order was issued, John filed a petition to reconsider, alleging the maintenance award was excessive. Ernestine filed a rule to show cause for John’s failure to comply with the court’s order regarding the property division. Ernestine also filed a petition for modification of the judgment of dissolution of marriage which requested title to the tavern property. On March 7, 1988, the court made the following docket entry:

“Cause called for hearing on Petition for Rule to Show Cause and Motion to Reconsider. By agreement of the parties, Rule issued. John Nicks ordered to pay one-half of his income from the tavern which total $500, the amount of $250 per month to the Plaintiff, Ernestine Nicks. The tavern has been listed with John B. Clark and if sold, Defendant agrees to pay all obligations, both present and future, pursuant to judgment upon sale. All other obligations under the present judgment are abated at this time pursuant to agreement.”

John first contends the trial court erred in awarding Ernestine the property located at 1909 East Jackson Street. John argues that property was inherited by him after the marriage, thus it should have been classified as nonmarital property under the Illinois Marriage and Dissolution of Marriage Act (Act). (Ill. Rev. Stat. 1985, ch. 40, par. 101 et seq.) We disagree.

The classification of property as either marital or nonmarital is governed by section 503 of the Act. (Ill. Rev. Stat. 1985, ch. 40, par. 503.) Generally, all property, including nonmarital property transferred into a form of coownership between the parties, which was acquired by either spouse after the marriage, but prior to a judgment of dissolution, is presumed to be marital property. Ill. Rev. Stat. 1985, ch. 40, par. 503(b); In re Marriage of Rogers (1981), 85 Ill. 2d 217, 422 N.E.2d 635.

Section 503(b) declares the presumption may be overcome by a showing the property is nonmarital because it was “acquired by gift, legacy or descent.” (Ill. Rev. Stat. 1985, ch. 40, par. 503(a)(1); see In re Marriage of Benz (1988), 165 Ill. App. 3d 273, 518 N.E.2d 1316.) When the property is acquired subsequent to the marriage, this burden of proof rests with the claimant spouse by “clear, convincing and unmistakable evidence.” In re Marriage of Severns (1981), 93 Ill. App. 3d 122, 125, 416 N.E.2d 1235, 1238.

It was unnecessary for John to prove the Jackson Street property was inherited when, as the record indicates, the parties agreed John’s parents gave him the Jackson Street property while he was married to Ernestine. It is also undisputed John placed title to his inherited property in joint tenancy with Ernestine. This court must initially determine the effect of that act.

“[T]he failure of a nonmarital property holder to segregate that property will give rise to the rebuttable presumption that the nonmarital property has been transmuted, regardless of the status of title.” (In re Marriage of Smith (1981), 86 Ill. 2d 518, 531-32, 427 N.E.2d 1239, 1245-46.) A transmutation occurs when the contributing spouse evidences his intent to make a gift of the nonmarital property to the marriage by significantly changing the character of the property to marital. (In re Marriage of Olson (1983), 96 Ill. 2d 432, 451 N.E.2d 825; Smith, 86 Ill. 2d 518, 427 N.E.2d 1239; Benz, 165 Ill. App. 3d 273, 518 N.E.2d 1316; In re Marriage of Preston (1980), 81 Ill. App. 3d 672, 402 N.E.2d 332.) The affirmative act of placing title to nonmarital property in joint tenancy or some other form of coownership with a spouse will support a presumption of gift to the marital estate. (Smith, 86 Ill. 2d 518, 427 N.E.2d 1239; In re Marriage of Wojcicki (1982), 109 Ill. App. 3d 569, 440 N.E.2d 1028; Benz, 165 Ill. App. 3d 273, 518 N.E.2d 1316.) This presumption of marital property may be rebutted by clear, convincing, and unmistakable evidence presented by the “donor” spouse. In re Marriage of Rink (1985), 136 Ill. App. 3d 252, 483 N.E.2d 316.

Here, the property John inherited during the marriage was technically nonmarital property under the Act until John placed title to the property in joint tenancy. The affirmative act by John raised a presumption the Jackson Street property was transmuted into marital property, subject to John’s rebuttal of that presumption by clear and convincing evidence. The question then becomes one of proof. Did John present sufficient evidence to the trial court to rebut the presumption, or conversely, was the court convinced he intended to gift his inherited property to the marriage?

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Cite This Page — Counsel Stack

Bluebook (online)
531 N.E.2d 1069, 177 Ill. App. 3d 76, 126 Ill. Dec. 442, 1988 Ill. App. LEXIS 1683, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-nicks-illappct-1988.