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Comstock v. Comstock

OPINION FILED DECEMBER 12, 1977.

DELORES A. COMSTOCK, PLAINTIFF AND COUNTERDEFENDANT-APPELLANT,

v.

EARNEST W. COMSTOCK, DEFENDANT AND COUNTERPLAINTIFF-APPELLEE.



APPEAL from the Circuit Court of Rock Island County; the Hon. ROBERT J. HORBERG, Judge, presiding.

MR. PRESIDING JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:

Plaintiff Delores Comstock appeals from a decree of the Circuit Court of Rock Island County following an action for divorce and a counterclaim for divorce as between the plaintiff and defendant, Earnest W. Comstock. While plaintiff Delores Comstock commenced the proceeding for divorce, the defendant filed a counterclaim for divorce and, following a dismissal of plaintiff's complaint, the divorce was granted to defendant without a contest on his counterclaim.

After a contested hearing on child support, alimony and property distribution, the trial court granted custody of the parties' child to plaintiff, awarded $40 per week child support to plaintiff, decreed that defendant should have, as his own separate property, certain real estate which had been held as joint tenants, denied plaintiff's claim for alimony, and ordered defendant to pay certain outstanding debts of the parties, and likewise ordered defendant to pay plaintiff's attorney's fees plus costs.

On appeal in this court, plaintiff contends that (1) the trial court erred in ordering the jointly held real estate transferred to the defendant, and (2) the trial court erred in denying alimony to plaintiff.

As noted in the record, the parties were married on May 4, 1964, and lived together as husband and wife until August 1976. One daughter, currently aged 12, was born of the marriage of the parties. On September 10, 1976, plaintiff filed her complaint for divorce, and defendant counterclaimed for divorce on November 3, 1976. The countercomplaint alleged that certain real property "should become the separate property of the defendant-counterplaintiff * * *," and also contained a count seeking partition of the real estate. Plaintiff dismissed her complaint on February 4, 1977, and, as we have noted, a divorce was granted to defendant on his counterclaim on the ground of mental cruelty.

The cause then proceeded to a contested hearing on child custody, child support, alimony, property settlement and allocation of responsibility for outstanding obligations and any other remaining problems as between the parties. The evidence at the hearing established that defendant had acquired certain real estate, improved with a residence, as a result of a prior divorce from another party. Plaintiff and defendant had resided at the property during their marriage. Approximately three to five years prior to the hearing, title to the property was transferred to plaintiff and defendant as joint tenants. Plaintiff testified that she recalled some discussion that her name "be put on the deed to the property," that the property was placed in both their names so that it would be one-half hers, and that she did not recall requesting that the property be put in both their names. Plaintiff indicated that defendant's ex-wife's name may still have been "on the deed" and that defendant had wanted to change the property over to include plaintiff in the title. Defendant testified that the property had been transferred at plaintiff's urging.

Additional testimony indicated that during the marriage, defendant had made various improvements to the house, including the installation of a new bathroom, repair on the heating unit, paneling, electrical work, and other work. Defendant testified that the purchase price of the house had been $13,200 and that the present balance on the real estate mortgage was $9,731.68. He also testified that the current market value of the property was between $24,000 and $26,000.

The evidence disclosed that defendant is employed as an electrician, and grossed $19,332 in 1975 and expected to gross between $18,000 and $19,000 in 1976. Defendant had been steadily employed during the marriage, and had normally put his entire paycheck into the parties joint checking account. During the course of the marriage, plaintiff had operated beauty parlors at five different locations and defendant had done all the work in preparing each location. Plaintiff's beauty shop operated at losses of $2,618, $2,464, and $1,656 for the respective years 1973, 1974, and 1975. The shop, however, had grossed $2,937 for the most recent five months, with expenses of $1,689.75, leaving a net profit of $1,247.25 for that period. Plaintiff works four days per week at the beauty shop.

Defendant testified that there was due on two loans to a credit union the sums of $2,988.77 and $965.85. It also was noted that the parties had on occasion borrowed money from the credit union to support plaintiff's beauty shop, but the last such loan had been about four years prior to the hearing. Other obligations included $1,090.30 to a bank on a loan secured by a Blazer automobile, and the outstanding mortgage on the real estate. Defendant testified that he owed $1,028 to Tri-City Motorcycle Shop, $275 to a friend, $173 to his sister, and $150 to a previously employed attorney. It was also noted that after plaintiff had moved out of the residence occupied by the parties, defendant had sold most of the household items to satisfy debts totaling approximately $5,000.

Following a hearing, the trial court granted custody of the child to the plaintiff and ordered defendant to pay $40 per week child support. Plaintiff was awarded the Blazer automobile, her beauty shop personal property, and any other personal property in her possession. The trial court decreed that the real estate should be the separate property of defendant. In addition to the real estate, defendant was awarded a motorcycle, a pickup truck and other personal property. Defendant was ordered to pay all the outstanding liabilities of the parties, and to pay plaintiff's attorney's fees of $1,000 and costs of $321.34.

Plaintiff first argues, on appeal, that the trial court erred in ordering the jointly held real estate transferred by plaintiff to the sole ownership of defendant. Under section 17 of the Divorce Act (Ill. Rev. Stat. 1975, ch. 40, par. 18) it is provided:

"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."

The Illinois Supreme Court, in referring to the provision for conveyance to the party entitled to the same, stated in Baker v. Baker (1952), 412 Ill. 511, 514-15, 107 N.E.2d 711:

"The mere circumstance that a husband purchased the property placed in joint tenancy with his wife does not make him the equitable owner of her interest. Property voluntarily conveyed by a husband to his wife, without fraud or coercion is presumed to be a gift, notwithstanding the fact the husband purchased the property with his own money, and the wife may hold the property against him. [Citations.] This presumption of fact is not conclusive but may be rebutted by proof. It can only be overcome by clear, convincing, and unmistakable ...


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