In Re Marriage of Werries

616 N.E.2d 1379, 247 Ill. App. 3d 639, 186 Ill. Dec. 746, 1993 Ill. App. LEXIS 1078
CourtAppellate Court of Illinois
DecidedJuly 15, 1993
Docket4-92-0277
StatusPublished
Cited by72 cases

This text of 616 N.E.2d 1379 (In Re Marriage of Werries) 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 Werries, 616 N.E.2d 1379, 247 Ill. App. 3d 639, 186 Ill. Dec. 746, 1993 Ill. App. LEXIS 1078 (Ill. Ct. App. 1993).

Opinion

JUSTICE McCULLOUGH

delivered the opinion of the court:

Petitioner Donna Werries appeals the judgment of dissolution of her marriage to respondent Larry Werries, challenging the distribution of the marital property and award of maintenance. Respondent cross-appeals.

On appeal, the issues raised by the parties are (1) whether any or all of respondent’s partnership interest in a farm operation was a marital asset and, if not, whether the marital estate was entitled to reimbursement for contributions thereto; (2) assuming the marital estate did not include respondent’s farm partnership interest and was not entitled to reimbursement therefrom, whether the distribution of marital property was inequitable; (3) whether the award of maintenance was an abuse of discretion; and (4) whether the trial court committed an abuse of discretion by ordering respondent to pay $12,000 of petitioner’s attorney fees. We affirm.

The record in this case is substantial. A great deal of evidence and testimony was presented in the trial court. However, only those facts necessary to an understanding of this court’s decision will be set forth, and relevant facts will be discussed in the analysis of the issues to which they are pertinent.

I. General Background

The parties were married on July 2, 1967. The petition to dissolve the marriage was filed September 14, 1988. After grounds for dissolution were found to exist, a trial was conducted on the remaining issues on March 28, 29, and October 15 through 18, 1990. At the time the trial began, the children of the parties, Kristen and Neil, were 18 and 21 years of age, respectively. Respondent was director of intergovernmental affairs with the United States Department of Agriculture, having left a position as Director of the Illinois Department of Agriculture in 1989. Respondent became the Director of the Illinois Department of Agriculture in 1981. Petitioner was not employed outside the home.

II. Farm Partnership

Petitioner challenges the property distribution for three reasons: (1) the farm partnership of Leland Werries and Sons, or the partnership assets acquired after the marriage, should have been determined to be marital property; or (2) there should have been reimbursement to the marital estate for contributions to the nonmarital farm operation; and (3) even if this court rejects her arguments (1) and (2), the property distribution was inequitable.

Defendant was assigned his entire interest in the farm partnership as nonmarital property. Because the determination of whether an asset is a marital asset rests largely in the determination of the credibility of the witnesses, on review the trial court’s determination that an asset is nonmarital will be overturned only if that determination is against the manifest weight of the evidence. (In re Marriage of Leisner (1991), 219 Ill. App. 3d 752, 757, 579 N.E.2d 1091, 1094; In re Marriage of Flory (1988), 171 Ill. App. 3d 822, 826, 525 N.E.2d 1008, 1011.) The trial court’s finding on the tracing of marital or non-marital funds also will not be disturbed on review unless it is contrary to the manifest weight of the evidence. See Stacke v. Bates (1990), 200 Ill. App. 3d 85, 91, 557 N.E.2d 1305, 1309; In re Marriage of Preston (1980), 81 Ill. App. 3d 672, 679, 402 N.E.2d 332, 338.

All the property of the parties to a marriage belongs to one of three estates, the estate of the husband, the estate of the wife, or the marital estate. Property brought to the marriage by the husband belongs to him. Property brought to the marriage by the wife belongs to her. (Ill. Rev. Stat. 1991, ch. 40, par. 503(a)(6).) Property acquired during the marriage is presumed to be marital property unless clear and convincing evidence establishes otherwise. (In re Marriage of Cecil (1990), 202 Ill. App. 3d 783, 787, 560 N.E.2d 374, 376.) One exception to this presumption of marital property is property acquired by gift as set out in section 503(a)(1) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1991, ch. 40, par. 503(a)(1)). Property can be transferred between these estates, intentionally or unintentionally. Such transfers occur in two ways, gift or commingling. A husband (H) can, for example, make a gift of his nonmarital farm outright to his wife (W) or to the marital estate in some form of co-ownership. (Ill. Rev. Stat. 1991, ch. 40, par. 503(b).) If an asset is given to the marital estate, the characterization of the asset changes from nonmarital to marital property.

Commingling of assets can occur in two ways. First, one asset can be so intermingled with another as to lose its identity. This often occurs when cash is involved. H uses his personal savings account to buy the family station wagon after the kids are born. In this example, the cash loses its identity as a nonmarital asset. Second, assets from two different estates can be combined to acquire new property. H and W each sell nonmarital homes to buy a new home. The new homé becomes marital property. (Feldman & Fleck, Taming Transmutation: A Guide to Illinois’ New Rules on Property Classification and Division Upon Dissolution of Marriage, 72 Ill. B.J. 336 (1984).) While there is no right to reimbursement when a gift has been made, there is a right to reimbursement when assets have changed character by reason of commingling as long as the contributions between estates can be traced by clear and convincing evidence. (Ill. Rev. Stat. 1991, ch. 40, par. 503(c).) The determination of all issues regarding the credibility of the parties and their witnesses or the weight to give the evidence lies with the trier of fact. In re Marriage of Nagel (1985), 133 Ill. App. 3d 498, 502, 478 N.E.2d 1192, 1194.

Petitioner argues that because the business has experienced tremendous growth since the parties’ marriage, it was error for the trial court to find the partnership or its assets to be nonmarital property. Section 503(a) of the Act sets forth the following additional exceptions to the presumption of marital property:

“(7) the increase in value of [nonmarital property], 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; and
(8) income from [nonmarital property] if the income is not attributable to the personal effort of a spouse.” (Ill. Rev. Stat. 1991, ch. 40, pars. 503(a)(7), (a)(8).)

Section 503(c)(2) of the Act provides:

“When one estate of property makes a contribution to another estate of property, or when a spouse contributes personal effort to non-marital property, the contributing estate shall be reimbursed from the estate receiving the contribution notwithstanding any transmutation; provided, that no such reimbursement shall be made with respect to a contribution which is not retraceable by clear and convincing evidence, or was a gift, or, in the case of a contribution of personal effort of a spouse to non-marital property, unless the effort is significant and results in substantial appreciation of the non-marital property.

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Cite This Page — Counsel Stack

Bluebook (online)
616 N.E.2d 1379, 247 Ill. App. 3d 639, 186 Ill. Dec. 746, 1993 Ill. App. LEXIS 1078, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-werries-illappct-1993.