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In Re Marriage of Scott

OPINION FILED JULY 7, 1980.

IN RE MARRIAGE OF ROBERT W. SCOTT, PETITIONER AND COUNTERRESPONDENT-APPELLEE, AND RUBY JANE SCOTT, RESPONDENT AND COUNTERPETITIONER-APPELLANT.


APPEAL from the Circuit Court of Kane County; the Hon. BARRY PUKLIN, Judge, presiding.

MR. JUSTICE WOODWARD DELIVERED THE OPINION OF THE COURT:

This action was commenced by Robert W. Scott in July 1977 by his filing of a complaint for divorce. Ruby Jane Scott filed a counterpetition for legal separation and subsequently filed an amended counterpetition for dissolution of marriage, or in the alternative, for legal separation, in March of 1978. After an uncontested hearing on the grounds a trial was had on the balance of the issues. Robert and Jane each appeal from the judgment of the court with respect to the issues of property distribution, maintenance and support, and attorneys' fees. There is no issue as to the judgment of dissolution of marriage.

Robert and Jane were married on November 1, 1952. The one child born as a result of their marriage is now emancipated. Robert is 52 years old and is self employed in a business known as Scott's Art Shop in Batavia, Illinois. Jane is 49 years old and is unemployed, as she was during the course of the marriage (except for a brief period of employment in 1952). The parties possess substantial assets with a total value of over $1 million, including real estate, securities, stamp and coin collections, and various other valuable properties. The trial court awarded Robert a total of approximately $858,972 in marital and non-marital assets, and awarded Jane approximately $273,800 in marital and non-marital assets. The court also awarded Jane periodic maintenance of $1200 per month and ordered Robert to pay $8984 of a total of $14,375 in attorneys' fees to Jane's attorneys.

On appeal, the parties essentially disagree on five points: (1) the classification of certain assets as marital or non-marital property; (2) the classification as marital or non-marital of the increase in value of non-marital property acquired after the marriage; (3) the distribution of marital property; (4) the award and amount of maintenance; and (5) the award and amount of attorneys' fees.

The disposition of property upon dissolution of marriage is governed by section 503 of the Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 503). Subparagraphs (a) and (b) of the statute call for classification of property held by the parties as follows:

"(a) For purposes of this Act, "marital property" means all property acquired by either spouse subsequent to the marriage, except the following, which is known as `non-marital property';

(1) property acquired by gift, bequest, devise or descent;

(2) property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, bequest, devise or descent;

(3) property acquired by a spouse after a judgment of legal separation;

(4) property excluded by valid agreement of the parties;

(5) the increase in value of property acquired before the marriage; and

(6) property acquired before the marriage.

(b) All property acquired by either spouse after the marriage and before a judgment of dissolution of marriage or declaration of invalidity of marriage is presumed to be marital property, regardless of whether title is held individually or by the spouses in some form of co-ownership such as joint tenancy, tenancy in common, tenancy by the entirety, or community property. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection (a) of this Section."

The trial court found the following property to be the parties' non-marital property: Jane — securities with a value of $21,000, received as an inheritance; Robert — $322,400 worth of securities and cash, received as an inheritance; certain securities and real property traced to non-marital sources of funds; certain coins acquired before the marriage; certain stamps acquired before the marriage; certain property located in Aurora; and landscaping equipment worth $8,000. The parties do not dispute the classification of the inheritances as non-marital property under section 503(a)(1). The parties do disagree as to the sufficiency of the tracing of funds which purchased certain real estate and stocks to Robert's non-marital funds, and the commingling of non-marital with marital funds. Jane contends that the court erred in finding that Robert sufficiently traced the purchase of the real estate and certain stock (Dr. Pepper, Pepsi, Eastern Airlines, Mass. Mutual, Fruehauf, International Investors, and Chromalloy) to his non-marital ...


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