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In Re Marriage of Uluhogian

OPINION FILED JULY 23, 1980.

IN RE MARRIAGE OF VIRGINIA ULUHOGIAN, PETITIONER-APPELLEE, AND VAHRAM ULUHOGIAN, RESPONDENT-APPELLANT.


APPEAL from the Circuit Court of Clinton County; the Hon. ARTHUR G. HENKEN, Judge, presiding.

MR. JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:

Petitioner, Virginia Uluhogian, was granted a judgment of dissolution of marriage from respondent, Vahram Uluhogian, in the Circuit Court of Clinton County. Respondent appeals from the circuit court's subsequent orders of October 31, 1978, with respect to the disposition of property and child custody.

On appeal, respondent contends: (1) that the trial court erred in its award of certain jewelry; (2) that the trial court erred in considering respondent's pension plan as marital property; and (3) that the trial court erred in awarding custody of the youngest child to petitioner.

Petitioner and respondent were married September 6, 1960, and three children were born of the marriage. At the time of trial the children, Charles, Stephanie, and Suzette, were 16, 15, and 10 respectively. Respondent is a physician who was employed by the State of Illinois until his discharge in February of 1978. Petitioner is employed as a sales clerk at J.C. Penney earning a salary of $3.65 an hour.

Respondent initially contends that the court erred in designating a gold cross as petitioner's non-marital property and certain other jewelry as marital property.

The evidence disclosed that the jewelry in question consisted of a gold bracelet, earrings, a hand carved brooch and certain jewelry charms of a total appraised value of $3100. Petitioner testified that this jewelry, with the exception of the gold bracelet, was brought to the United States from Italy by respondent in 1965. She testified that the gold bracelet was given to her by respondent's uncle, Archbishop Stephan Uluhogian, on the occasion of the birth of their first child, Charles. Petitioner further testified that the gold cross was given to her by respondent shortly after they were married. While petitioner takes no appeal from the trial court's ruling, in opposition to respondent's appeal, she contends that the balance of such jewelry was also given to her by respondent.

Respondent testified that all the jewelry, with the exception of the gold cross, was purchased by him in Italy around 1965. He stated that the purchase was made by him with funds acquired by him and deposited in the Italio-American Bank in Venice, Italy, prior to his marriage to petitioner. He specifically denied making a gift of any of the jewelry to petitioner and contended that the gold cross was given to him by his uncle, the archbishop, prior to the marriage. He further testified that although he permitted his wife to wear the cross, he did not make a gift of it to her. He also testified that he purchased the jewelry as an investment and for security purposes.

In the trial court's findings of fact the court stated with respect to the jewelry:

"The jewelry as appraised and photographed is marital property. While it is true that the husband mentions these items in the interrogatories as a gift, he also qualifies that and says he bought it because of her want of security, the desire for investment and appreciation in value. The jewelry appears to have been purchased with money he still had in Italy. The nature of the jewelry, along with a ring purchased, bears this out. If there was a gift intended, the court finds from the evidence that it was not an exclusive gift to her as non-marital property, but as a purchase of valuable items from pre-marriage funds in Italy as an investment for the marriage assets. She claims the bracelet as a gift from the archbishop, but with contrary evidence it seems to be quid pro quo for the $2000.00 given to the archbishop and of the same genre as the other jewelry brought back at the same time. The court makes these findings from the evidence as a whole also, that is, considering his general transactions."

We conclude from this portion of the trial court's order that it determined that the jewelry, including the bracelet, was marital property and none of it the separate non-marital property of respondent.

The trial court in its division of the marital property awarded petitioner the jewelry as a portion of her share of the marital property. The court also set off to her the gold cross as her separate non-marital property, indicating that it was a gift to her from the respondent.

Respondent contends that by virtue of section 503(a)(2) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 503(a)(2)), the jewelry must be considered as his separate non-marital property, since it was property acquired in exchange for property acquired before the marriage.

The trial court expressly found that respondent purchased the jewelry with non-marital funds and that he intended no gift of the jewelry to petitioner. Based on this court's recent decisions in In re Marriage of Dietz (1979), 76 Ill. App.3d 1029, 395 N.E.2d 762, and In re Marriage of Preston (1980), 81 Ill. App.3d 672, 402 N.E.2d 332, we conclude that the jewelry in dispute is the separate non-marital property of respondent. This court in Preston stated:

"We think, therefore, that the legislature intended property acquired exclusively with non-marital property to remain non-marital property, so long as the source of funds can be traced to the initial non-marital asset without affirmative proof of an intention to `transmute,' as the cases say, the non-marital property into marital ...


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