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Leone v. Leone





APPEAL from the Circuit Court of La Salle County; the Hon. THOMAS R. FLOOD, Judge, presiding.


The Circuit Court of La Salle County entered a decree granting plaintiff Evelyn Leone a divorce from defendant Harvey J. Leone. Plaintiff appeals from the trial court's order denying her any property interest in assets owned solely by defendant. Plaintiff also appeals from the alimony award of $1,500 per month, and defendant cross-appeals from the award of alimony and plaintiff's attorney's fees.

Plaintiff and defendant were married in 1946 and are the parents of two children, both of whom were adults living away from home at the time of the divorce. Plaintiff had savings of $2,000 and defendant had $250 saved at the time they were married. After the marriage defendant was employed in the grain elevator business owned by plaintiff's father, and after the father's death, he purchased the business in 1951 for $12,000. Prior to the purchase of the business, plaintiff had worked outside the home for periods totaling more than two years until the couple's second child was born in 1951. Her earnings during this time totaled about $6,000. In 1956 plaintiff returned to work part time at the elevator where she did the bookkeeping, prepared reports, and participated in the major decisions involving expansion of the business. Occasionally she opened up the office, weighed grain, and did other work. She stopped work at the elevator when the defendant left home in 1971, but resumed work again in 1973. She has received no pay for this work which averaged about 10 hours per week for 17 years. Throughout the marriage plaintiff took care of the family and home with no outside help, and managed the family finances in a thrifty manner. The parties pooled all of their earnings and savings in a common fund used for both family and business purposes.

Plaintiff received a gift from her mother and an inheritance from an aunt, totaling $5,000 which were also placed in the common pool of funds. Using business profits and savings, the elevator business was expanded between 1951 and 1971 with the purchase of additional land and erection of new buildings. The parties also invested in stocks and bonds, and real estate. The business was incorporated in 1967, with defendant as president and plaintiff serving as corporate secretary. In addition to her personal funds and labor, plaintiff contributed her share of the rental income from one piece of jointly owned elevator property and her share of the proceeds from a sale of stock to the common fund.

Defendant worked long hours in the business, ranging from 60 to 100 hours per week in the busy season. Much of his work was physical, and the volume of business was greatly expanded under his management. Besides storing and drying grain, the business now sells seed and fertilizer. His personal efforts have been largely responsible for the growth and success of the business.

At the time of the divorce, the parties owned assets having a total value of $444,150. Plaintiff owned shares of stock and a certificate of deposit with a value of $4,500 in her name alone. The parties jointly owned some shares of stock, bank accounts, equity in a residence, one parcel of real estate which was rented to the elevator ckrporation, and a one-half interest in an island in Canada, all of which have a total value of $108,000. Defendant held title in his name alone to shares in two grain companies, having a value of $260,000, and other property, including one-half interest in an airplane, life insurance policies, an elevator building, and promissory notes, totaling $71,600 in value. The total value of property in defendant's name was $331,600. Defendant's adjusted gross income for tax purposes was $35,300 in 1971; $40,100 in 1972; and $59,400 in 1973.

After hearing all the evidence, the trial court awarded plaintiff $1,500 per month alimony plus the assets owned by her alone, and a one-half share in all the jointly owned assets, except the elevator property. Because the buildings on the property were essential to the elevator business, the trial court found that defendant had a special equity, and ordered plaintiff to convey her interest to defendant upon his payment to her of $5,000. The court found that plaintiff had special equities in defendant's property arising from the savings she brought to the marriage and her inheritance and gift, in the amount of $7,000. The court also ordered defendant to pay plaintiff's attorney's fees in the sum of $4,250.

Plaintiff's primary contention on appeal is that the trial court erred in refusing to recognize her special equities in the property owned by defendant in excess of $7,000.

The statutory provision which authorizes a court to divide property equitably (Ill. Rev. Stat. 1975, ch. 40, par. 18) is as follows:

"Whenever a divorce is granted, if it shall appear to the court that either party holds the title to property equitably belonging to the other, the court may compel conveyance thereof to be made to the party entitled to the same, upon such terms as it shall deem equitable."

• 1 In applying this provision to the circumstances of a particular case, it has been held that the spouse seeking a part or all of the property in the name of the other must allege and prove that he or she has furnished valuable consideration such as money or services other than those normally performed in the marriage relation which has directly or indirectly been used to acquire or enhance the value of the property. Everett v. Everett (1962), 25 Ill.2d 342, 185 N.E.2d 201; Alvarado v. Alvarado (3d Dist. 1974), 22 Ill. App.3d 10, 316 N.E.2d 561.

In Cross v. Cross (1955), 5 Ill.2d 456, 466, 125 N.E.2d 488, the court reiterated the general rule as follows:

"[W]here a wife has from equitable considerations other and additional interests in her husband's property than such as attack to her status as a wife, such as where her money comes into the hands of her husband and is invested in real estate to which he holds title; or if realty represents joint earnings, work or savings of husband and wife; or if her earnings or savings have gone into his possession and aided him in acquiring the real estate; the court may then properly decree, when dissolving the marriage relation, that the wife shall be vested with title in fee to such realty as will effect an equitable and fair adjustment of the property rights of the parties. [Citations.]"

In Cross, the Supreme Court reversed the trial court and found the wife to be entitled to a conveyance of her one-half interest in the marital home because of her contributions to the family income derived from her outside employment, cash gifts from her family, and her good management and frugality. ...

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