APPEAL from the Circuit Court of Du Page County; the Hon.
GORDON MOFFETT, Judge, presiding.
MR. JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
This appeal is taken from an order entered in the contested divorce action. The only question on review is whether the trial court properly distributed the marital estate.
The parties were married in November 1966 and the plaintiff filed suit for divorce in June 1973. Pursuant to a stipulation between the parties, the trial court heard evidence on the issue of divorce only and on April 23, 1974, entered a decree of divorce in favor of the plaintiff. Subsequently, evidence was taken in regard to the distribution of the marital estate and on December 24, 1974, the trial court entered a decree which awarded the defendant substantially the entire marital estate. On January 13, 1975, the trial court refused to vacate the decree. The plaintiff appealed from the December 24, 1974, decree and the January 13, 1975, order.
The record reveals that each party entered the marriage with their own personal assets. The defendant had a net worth of approximately $90,000, comprised of a retail jewelry store valued at approximately $80,000 and $10,000 worth of miscellaneous assets. The plaintiff owned a furnished home in Hinsdale valued at approximately $19,000. She also entered the marriage with less than $50 in cash. During their marriage the parties accumulated various other assets, part of which title was held in joint tenancy and the other part title was held by a California corporation. In 1967 the parties purchased a home in Clarendon Hills, Illinois, and title was placed in joint tenancy. The plaintiff testified that the purchase money for this property was taken from the joint savings account of the parties. Sometime in 1967-68 the parties made a down payment on a date ranch in California with money from the profits of the jewelry store business. Title to that property was held in the California corporation called Rancho Dominique Enterprises, Inc. This corporation was set up by the defendant. The incorporators were defendant, plaintiff and one of plaintiff's daughters from a prior marriage. The incorporators also were named as the board of directors. Defendant was named president and plaintiff was named secretary and treasurer. It is interesting to note that at no time was the corporation run as a business: no meetings were held, no business was conducted by defendant as president of the corporation and no stock was ever issued. In 1968 plaintiff sold her home in Hinsdale under a contract to a third party for $19,000. Pursuant to the contract terms plaintiff received monthly installment payments of $127.82. Part of these checks were deposited in the checking account of the jewelry store and part of them were cashed by the plaintiff and used for her own personal use. In January 1971 the defendant sold the jewelry store business for a price of $50,000. He received $40,000 in cash and a $10,000 note made payable to both the defendant and the plaintiff. Also in January 1971 the parties sold their home in Clarendon Hills on Harris Street for a price of $27,000. The parties comingled the proceeds from these sales with other monies that the parties had. They purchased a truck which they used to move to California. Upon arriving in California they deposited $22,447.42 in a joint savings account in LaCoachella Valley Savings and Loan Association in Indio, California. Defendant testified that the funds deposited in the joint savings account were from both the sale of the house on Harris Street and the jewelry store business. While in California in 1971 the parties proceeded to purchase approximately $35,000 worth of stocks and bonds held in joint tenancy and a home in LaQuinta, California, with a purchase price of $44,715.03 on which the parties made a down payment of $17,000 and signed a mortgage of $27,715.03. The LaQuinta property was held in joint tenancy. They also purchased a vacant lot in Indio, California, for a purchase price of $25,075 as well as making the final payment on the date ranch. Title to both pieces of property was held in the Rancho Dominique Enterprises, Inc. In October 1971 the date ranch was sold for a purchase price of $90,000. The parties received $15,000 in cash, two notes for $43,281.22 made payable to the corporation and the purchasers assumed the existing mortgages. In April 1972 the parties purchased a mobile home and drove back to Illinois. After living in the mobile home in the driveway of plaintiff's daughter for a number of weeks, the parties sold the mobile home. They then rented a home on Western Avenue in Clarendon Hills. In May 1973 the parties purchased a home on West 56th Street in Clarendon Hills held in joint tenancy.
At the time that plaintiff filed for divorce in June 1973 the parties owned the following properties in joint tenancy: the home on West 56th Street in Clarendon Hills, the home in LaQuinta, California, with an outstanding mortgage of approximately $26,000 and the stocks and bonds purchased in California in 1971. Title to other property which the parties purchased was held by the Rancho Dominique Enterprises, Inc. The corporation's assets at the time plaintiff filed for divorce consisted of the vacant lot which was purchased for $25,075, the balance due on the two notes from the sale of the date ranch, and a checking account with $19,000 in it. After filing for divorce, the plaintiff withdrew the $19,000 from the corporate checking account and placed it in her own account. The trial court ordered that plaintiff deposit the $19,000 in a joint account that the parties had in a local Illinois bank pending its decision. The parties also owned personal property, including two dogs, the furniture in the LaQuinta home, the furniture in the Clarendon Hills home and several items of jewelry and jewelry equipment.
On March 4, 1974, after the plaintiff had filed suit for divorce but before the trial court entered the decree of divorce, the plaintiff filed for a partition of the marital home on West 56th Street in Clarendon Hills, held in joint tenancy. The trial court entered an order granting the partition and the marital home was sold to the defendant. Plaintiff received $7,000 proceeds from the sale. Plaintiff has not appealed from this order.
The order from which the plaintiff has appealed is that which awarded the defendant title to the corporate assets, the home in LaQuinta, California, the stocks and bonds held in joint tenancy and most of the personal property. That order also granted the defendant a $7,615.16 lien on the plaintiff's property in Hinsdale for money that defendant advanced plaintiff on expenses incurred in paying the existing mortgage, real estate taxes, attorney's fees and other similar bills. The plaintiff was awarded one bedroom suite of furniture from the LaQuinta home and the monthly installment payments on the contract sale of her home in Hinsdale.
• 1 On appeal plaintiff's principal contention is that the findings of the trial court are against the manifest weight of the evidence and that the evidence does not support the judgment. Plaintiff's argument is twofold. Initially, plaintiff argues that she established by evidence that she acquired special equities in all of the disputed property and monies pursuant to section 17 of the Divorce Act (Ill. Rev. Stat. 1973, ch. 40, par. 18). Plaintiff argues that the evidence proved that she made financial contributions, both direct and indirect, to the jewelry store business beyond the normal services performed by the wife in the marriage. She says that these contributions increased the assets of the business and that it was the proceeds from the sale of the business and the marital home which provided the funds to purchase the disputed property. Plaintiff concludes that since she has clearly maintained the special interest in all of these properties during the duration of the marriage she is entitled to one-half interest in the entire marital estate at issue. Secondly, the plaintiff argues that the evidence clearly shows that part of the property was held in joint tenancy. She notes that in Illinois when husband and wife hold property in joint tenancy a rebuttable presumption arises that the spouse actually furnishing the consideration for the property makes a gift to the other spouse of an undivided one-half interest in that property. The burden of rebutting the presumption is on the party contesting the gift and must be overcome by clear, convincing and unmistake evidence. (Lawyer v. Lawyer (1974), 19 Ill. App.3d 571, 312 N.E.2d 7.) Plaintiff concludes that the defendant failed to overcome the presumption and therefore the trial court erred in not recognizing her undivided one-half interest in the joint tenancy property.
Initially we note that the reviewing court has a duty to reverse the judgment of the trial court when the trial court's findings are contrary to the manifest weight of the evidence. (Wallace v. Blue Cross Hospital Service, Inc. (1973), 13 Ill. App.3d 803, 300 N.E.2d 531.) In order for a reviewing court to reverse it must determine that the opposite conclusion is clearly evident. (Thomas v. Burkian (1973), 10 Ill. App.3d 742, 295 N.E.2d 313.) We shall analyze each of plaintiff's contentions individually to determine if an opposite conclusion is clearly evident.
Plaintiff's first contention is that she alleged and proved her special equities in the marital property giving her an undivided one-half interest in all of the property. Section 18 of the Divorce Act vests the trial court with authority to award interest in the marital property to a spouse where she alleges and proves special equities by way of her financial contributions beyond her marital duties. Financial contributions have been divided into two categories, direct and indirect.
Here the evidence reveals that the plaintiff made no direct financial contribution to the marital property. Plaintiff deposited in the jewelry store's checking account some of the monthly checks which she received from the sale on contract of her Hinsdale property. Plaintiff argues that this was a direct financial contribution to the assets of the parties beyond her marital obligations. In rebuttal defendant testified that the checks that were deposited in the store's account by the plaintiff were merely repayment of advances he made to the plaintiff on expenses incurred on the Hinsdale property which she owned. Based upon that testimony, it is clear plaintiff made no direct financial contribution to the jewelry store.
Plaintiff presented evidence of an indirect financial contribution to the jewelry store which was inclusive of whether or not plaintiff created special equities in the joint tenancy property as well as the corporation's assets. Plaintiff testified that she worked in the store during the marriage as a manager, jeweler and bookkeeper. She testified that she worked long hours, seven days a week without a regular salary. However, the evidence also showed that during her employment at the store she had authority to and did withdraw any monies from the store's funds necessary to meet her daily expenses. Whether that benefit was actually equivalent to a regular salary or more is not clear from the evidence. Similiarly to what extent it was an indirect financial contribution to the store is indeterminable from the evidence.
We therefore hold that the trial court should hold further hearings on this question of whether plaintiff has created special equities in the marital property by indirect financial contribution.
Second, plaintiff argues that since the evidence clearly shows that the parties held certain property in joint tenancy that a rebuttable presumption arose that defendant made a gift of an undivided one-half interest in such property which defendant failed to ...