APPEAL from the Circuit Court of Cook County; the Hon. EDWARD
E. PLUSDRAK, Judge, presiding.
MR. JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:
This is an appeal by the former husband (respondent) from the supplement to judgment for dissolution of marriage. The issues raised are: (1) Was the circuit court's order, finding that the petitioner (former wife) owned as her non-marital property a bracelet she received as a gift from the respondent's mother and directing respondent to deliver the bracelet to the petitioner, contrary to the manifest weight of the evidence? Our answer is yes, and we reverse this portion of the supplement. (2) Did the trial court abuse its discretion in the following respects: (i) In ordering a division of marital property? The division ordered was proper except that the trial judge abused his discretion by failing to afford the respondent the privilege of purchasing the petitioner's interest as tenant in common of vacant land that was marital property. (ii) In ordering the respondent to pay the petitioner maintenance of $530 per month? We believe the maintenance award was erroneously computed. In addition some of the expenses on which the circuit court award was based were exaggerated. We modify the award of maintenance by reducing it to $248.50 per month. (iii) In ordering the respondent to pay two-thirds of the petitioner's attorneys' fees? In view of the parties' income and expenses this was not an abuse of discretion.
THE MARRIAGE AND DISSOLUTION
The parties were married for 16 years. At the time of the hearing, he was 55, she was 49. They had no children. A judgment of dissolution of marriage was entered. Approximately 11 months later the court entered the supplement to judgment for dissolution of marriage.
The bracelet originally belonged to the respondent's mother. Petitioner testified that she received the bracelet as a gift from her mother-in-law in 1973, approximately 3 years before the complaint for dissolution of the marriage was filed. The extent of the gift is disputed. Respondent testified that his wife was only to have the use of the bracelet. He said that while the bracelet was in his wife's possession, his mother carried insurance on it with herself as the beneficiary. A year or two before the petitioner brought her action to dissolve the marriage, she returned the bracelet to the respondent. The precise circumstances surrounding the return of the bracelet are unclear — whether the respondent requested its return by telephone or in person, and why it was returned. However, respondent testified that he in turn returned the bracelet to his mother and that it was in his mother's possession at the time of trial. This testimony was unchallenged. Petitioner asserts she received the bracelet as a gift to her from the respondent's mother. She testified that she thanked her mother-in-law for the bracelet the night that she received it.
• 1, 2 It is not certain that a gift to petitioner from her husband or her husband's mother would necessarily be petitioner's non-marital property, as she assumes. But there is no need to consider that issue. The petitioner had the burden of establishing by clear and convincing evidence that a gift was made to her. (Bray v. Illinois National Bank (1976), 37 Ill. App.3d 286, 289, 345 N.E.2d 503, 505; Rinehart v. Rinehart (1957), 14 Ill. App.2d 116, 121, 143 N.E.2d 398, 401.) This burden required the petitioner to show not only delivery, but also that the delivery of the bracelet was made "with the intention of vesting the title absolutely and irrevocably in the donee." (Rinehart, 14 Ill. App.2d 116, 121, 143 N.E.2d 398, 400; In re Estate of Meyer (1942), 317 Ill. App. 96, 101, 45 N.E.2d 495, 498.) The intent to pass title is a separate element of proof of a gift, delivery in itself not being conclusive as to whether a gift has been made, especially where the gift is contended to be non-marital property. Before a delivery constitutes a gift, "the donor must relinquish all present and future dominion and power over the subject matter of the gift." (Rinehart, 114 Ill. App.2d 116, 121, 143 N.E.2d 398, 400; In re Estate of Meyer (1942), 317 Ill. App. 96, 101-02, 45 N.E.2d 495, 498.) The trial court satisfied itself with respect to donative intent by applying the presumption that a gift occurs when one spouse delivers property to another.
Neither the testimony, the physical evidence nor the effect of legal presumptions can support the proposition that delivery of the bracelet was made "with the intention of vesting title absolutely and irrevocably" in the petitioner or that the petitioner's mother-in-law relinquished "all present and future dominion and power" over the bracelet. The petitioner relies on Illinois cases stating that delivery of property from one spouse to another or from parent to child raises the presumption of a gift (Lawyer v. Lawyer (1974), 19 Ill. App.3d 571, 574, 312 N.E.2d 7, 10), although in the case of spouses it is not clear whether the gift becomes marital or non-marital property. This rule, however, might not be applicable to ancestral jewelry, which respondent cannot very well wear himself. The most obvious way for respondent to get any value out of such property short of selling it is to let his wife wear it. The inference that he or his mother intended to do more seems weak.
In any event the presumption has no relevance here for this case does not involve a gift from one spouse to another. Although the respondent delivered the bracelet to his wife, delivery was on behalf of his mother. The bracelet came from the mother rather than from the respondent. The presumption of gift on which the petitioner relies is thus not applicable in this case. Moreover, if such a presumption were appropriate here, would not the same presumption also apply to the petitioner's return of the bracelet to the respondent? In either case the presumption would not entitle the petitioner to the bracelet.
The most persuasive evidence that a gift was not made to the petitioner is that her mother-in-law insured the bracelet all the time it was in the petitioner's possession and the mother, not the petitioner, was named as the beneficiary of the policy. Had the bracelet been stolen or lost, the mother-in-law would have received reimbursement under the insurance policy and the petitioner would have received nothing.
In addition, respondent testified that the bracelet was given to his wife for her use, and not as a gift. This testimony is consistent with the petitioner's willingness to return the bracelet to the respondent, voluntarily and without question, a year or two prior to the dissolution proceedings. After returning the bracelet, the petitioner never mentioned it until she filed her action for dissolution of her marriage; her conduct is inconsistent with her position that the bracelet belonged to her.
Even assuming that the evidence could be read to show that the petitioner received the bracelet as a gift, that same evidence leads to the inevitable conclusion that she gave it back. As previously set forth, the petitioner did not object to the return of the bracelet to her mother-in-law, and there is no evidence she ever asked for or mentioned it again until she filed this action.
• 3 The circuit court's conclusion that the bracelet belonged to the petitioner is contrary to the manifest weight of the evidence.
The circuit court's order is also both erroneous and impractical, as a matter of law, for it commands the respondent to deliver to the petitioner a bracelet which is in his mother's possession and control. The respondent has been ordered to perform an act which he lacks the power to either perform himself or compel his mother to perform. Courts> are not authorized in divorce proceedings to order disposition of property interests of third persons who are not parties to the proceeding. (See Ylonen v. Ylonen (1954), 2 Ill.2d 111, 124, 117 N.E.2d 98, 105; Chamberlin v. Chamberlin (1969), 119 Ill. App.2d 295, 298, 256 N.E.2d 159, 160; Knol v. Knol (1912), 171 Ill. App. 412, 413.) This view was emphasized in Kujawinski v. Kujawinski (1978), 71 Ill.2d 563, 574, 376 N.E.2d 1382, 1387, which rejected the proposition that the marital property ...