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Olson v. Olson

DECEMBER 30, 1965.

RUBY E. OLSON, PLAINTIFF-APPELLANT,

v.

PETER H. OLSON, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of DeKalb County; the Hon. CARL A. SWANSON, Judge, presiding. Decree affirmed and expanded.

MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.

This is an appeal, by plaintiff, from a divorce decree entered in her favor, with reference to its provisions regarding property rights and alimony. Plaintiff seeks a reversal of that part of the decree which awarded the household furnishings to her in lieu of alimony, and which decreed that the last half of the 1963 taxes on plaintiff's 172-acre farm in DeKalb County and the interest on the mortgage thereon to March 1, 1964, were the joint obligations of both parties.

Plaintiff contends that the farm was operated as a partnership; that one-half of the mortgage indebtedness thereon, which was incurred during the marriage, is the defendant's obligation; and that the defendant should be decreed to pay one half thereof either as alimony or in settlement of property rights.

It is the defendant's contention that no partnership existed in connection with the operation of the farm; that the funds of the parties were so commingled that it was impossible to determine the amount of money spent for farm business purposes and for living expenses; that the mortgage indebtedness was the result of the plaintiff's personal expenditures and her contribution to the living expenses of the family unit; and that since the defendant has no interest in the farm, he should not be held liable for one half the mortgage thereon.

The plaintiff, a widow with three young daughters, and the defendant, who had one daughter, were married July 21, 1948. As issue of the marriage, a daughter, Deborah Olson, was born. They all lived together as a family unit, apparently without differentiation in the treatment of the children. The decree for divorce was entered December 9, 1964.

At the time of the marriage, plaintiff owned a 120-acre farm in DeKalb County, which she sold in 1952, for $54,000. In November of 1951, she purchased the 172-acre DeKalb County farm which she now owns, and title thereto was taken in the DeKalb Trust and Savings Bank, as Trustee, with plaintiff as the beneficiary under this land trust. Plaintiff had other funds and, with the aid of a temporary advancement from her father, paid for the farm with her own money. She testified that she had approximately $8,000 left after buying the 172-acre farm, which sum was deposited in her personal account, but eventually went into the common account of the parties; and that at the time of the trial the farm was probably worth $750 per-acre, or $129,000.

Thereafter, in 1954, plaintiff encumbered this farm for $25,000 without the knowledge or signature of the defendant, and used this money to buy a house, which was subsequently sold for $24,000. Plaintiff testified that this sum was likewise deposited in her personal account and subsequently transferred into the common account. To clear up the interest due on the $25,000 loan and to pay other outstanding debts, a new mortgage was placed on the farm in 1961, in the sum of $35,000. Both plaintiff and defendant signed this mortgage and note, and the balance presently due thereon is $33,000.

Plaintiff testified that she had a complete line of furniture when the parties were married in 1948; and that when she purchased the 172-acre farm in 1951, plaintiff and defendant purchased additional furniture located at the farm, and got a bill of sale for it. The record contains no further evidence concerning the acquisition of further items of furniture.

The parties operated the farm as a grain and stock farm. In addition, the plaintiff worked as a secretary, and the defendant did carpentry work between 1961 and 1963. These earnings also went into the common account. The defendant had no bank account other than the common account.

The testimony is at variance relative to the machinery which was purchased in connection with the operation of the farm, but it appears to have been a full line of farm machinery. The bulk of the machinery, which plaintiff owned at the time of the marriage, was old and obsolete. The new machinery was paid for from the common account.

The plaintiff kept the records and made the deposits, but she did not keep a set of books. While both parties drew checks on the common account, plaintiff also maintained a separate account. When she sold the house aforementioned, the proceeds were placed in her separate account. She testified that she transferred sums therefrom to the common account, from time to time, to meet family and farm expenses, but offered no evidence as to the time and amounts of such transfers.

The farm operation apparently did not prosper. In seven out of eleven years, for which tax returns were available, the farm operated at a loss. The losses were largely due to a break in prices which caused cattle feeders across the country to suffer financial difficulties. However, such losses also reflected depreciation on the buildings and equipment which accounted for about one half thereof.

The defendant built a 24' x 32' addition to the farm house on the 172-acre farm, which he estimated to cost $10,000. He was not paid for his work, and the materials were paid for from the common account. On the same basis, he repaired the corn crib and put a new roof on the machine shed. In certain instances he had to have help in ...


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