In re Marriage of Johns, No. 2-99-0162

2nd District, 10 February 2000

JUSTICE THOMAS delivered the opinion of the court:

The petitioner, Clarence C. Johns, appeals from the judgment of dissolution of his marriage to the respondent, GenevieveJohns, contending that the trial court erred in giving Genevieve a $9,500 credit for property she owned prior to marriagethat was later placed in joint tenancy with her husband. We reverse and remand for further proceedings.

The record shows that the parties were married on August 2, 1966, and had their marriage dissolved on January 22, 1999.During the course of their 32-year marriage, no children were born to the parties. At the time of dissolution, Clarence was96 years old and Genevieve was 83 years old. Both parties retired from their jobs in the mid-1970s, although Clarencecontinued to work part time.

At the time they were married, Genevieve owned a lot located at 104 Calumet Street, in Savanna, Illinois, which shepurchased prior to the marriage. She had constructed a garage on that lot prior to the marriage. Shortly after they weremarried, the parties constructed a residence on the lot. The parties contributed equally to that endeavor, each paying $7,000toward the cost of construction. Clarence also paid $2,000 toward Genevieve's car loan with funds he earned prior to themarriage. The parties did not take out a mortgage on the property on which they built their residence, and the constructioncosts were paid in full by October 1966. Genevieve then placed the title to the entire property, including the lot and thegarage, into joint tenancy with her husband. The marital residence was occupied by both parties from the beginning of theirmarriage until the date of their separation in May 1998, and both parties contributed to the management and upkeep of theproperty throughout the marriage. Additionally, the real estate taxes on the property were paid from marital funds. Theparties also executed wills, each of which left the parties' assets to the surviving spouse. The marital residence located at104 Calumet Street, including the lot and garage, had an appraised value at the time of dissolution of $58,500.

The trial court found that the total value of the property located at 104 Calumet Street, including the house and the parties'riding lawn mower, was $59,250. The court further found that, excluding the house, the current value of the lot and garageat 104 Calumet Street was $9,500. The court ruled that Genevieve was entitled to "an offset against the current value of themarital residence in the amount of $9,500." The court then awarded the marital residence to Genevieve and ordered her topay Clarence one-half the value of the property after deducting the $9,500 setoff. The court equally divided the remainderof the parties' assets, which included more than $133,000 in checking and savings accounts.

In his motion to reconsider, Clarence argued that Genevieve should not be awarded $9,500 for the value of the property thatshe brought into the marriage. Clarence pointed out that the property was placed in joint tenancy, creating a presumption ofa gift to the marital estate. The trial court rejected Clarence's argument by stating, "I think by statute the presumption is thatit is to be marital, but I think the court can decline to accept that presumption and I did give her credit for contributing thatpart of the residence and I will keep that in effect."

On appeal, Clarence argues that the trial court erred in awarding Genevieve $9,500 for contributing the lot and garage to themarriage. Clarence argues that the act of placing Genevieve's nonmarital property in some form of co-ownership raised apresumption that the property became marital and that the presumption was not overcome by the requisite clear andconvincing evidence showing that the property was not intended to be a gift to the marital estate. Clarence further arguesthat the parties' nonmarital contributions to the marriage were roughly equal because he paid $2,000 of his nonmarital fundstoward Genevieve's car at the time they were married, while it is doubtful that the value of Genevieve's lot and garage in1966 exceeded $2,000.

Initially, we note that Genevieve has not filed a brief on appeal. We therefore review this appeal under the standards setforth in First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128 (1976).

All the property of the parties to a marriage belongs to one of three estates, namely, the estate of the husband, the estate ofthe wife, or the marital estate. In re Marriage of Werries, 247 Ill. App. 3d 639, 641-42 (1993). In order to distributeproperty upon dissolution of marriage, a trial court must first classify that property as either marital or nonmarital. In reMarriage of Hegge, 285 Ill. App. 3d 138, 140 (1996). A trial court's classification of property will not be disturbed unless itis contrary to the manifest weight of the evidence. In re Marriage of Perlmutter, 225 Ill. App. 3d 362, 365 (1992).

Section 503(a) of the Illinois Marriage and Dissolution of Marriage Act (the Act) (750 ILCS 5/503(a) (West 1998))provides that all property acquired by either spouse during marriage is marital property except for property acquired incertain specified ways, such as by gift or devise. In re Marriage of Hunter, 223 Ill. App. 3d 947, 951 (1992). Section 503(b)of the Act provides: