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In Re Marriage of Crouch

OPINION FILED SEPTEMBER 12, 1980.

IN RE MARRIAGE OF KATHLEEN S. CROUCH, PETITIONER-APPELLANT, AND DONALD E. CROUCH, RESPONDENT-APPELLEE.


APPEAL from the Circuit Court of McDonough County; the Hon. WILLIAM L. RANDOLPH, Judge, presiding.

MR. JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:

The Circuit Court of McDonough County dissolved the marriage of the petitioner-appellant, Kathleen S. Crouch, and the respondent-appellee, Donald E. Crouch, on September 18, 1978. The decree of dissolution awarded certain items of alleged non-marital property to the respondent, divided the marital property between the spouses, and allowed the respondent a credit for the temporary support that had previously been ordered. The petitioner, Mrs. Crouch, has appealed from that portion of the dissolution decree that divided the non-marital and marital property and claims the division was improper. Mrs. Crouch also appeals from the credit to her former husband of the temporary support by means of an offset against her award ordered by the court.

The petitioner first met Mr. Crouch at an art gallery in New York in early 1973, and he invited her to come work with him on his art projects in Macomb, Illinois. Mr. Crouch was employed as an art professor at Western Illinois University and owned and operated an art gallery. In early April of 1973 the petitioner arrived in Macomb, Illinois, and took up residence in one of the old out buildings at Mr. Crouch's art gallery and home. Soon thereafter she moved in and lived with Mr. Crouch in his home. They were ultimately married on August 21, 1973. Although the record contains considerable conflict as to the ownership of certain items of personal property alleged to be the non-marital property of Mr. Crouch, the trial court's ultimate decision that this disputed personal property was non-marital is a fair interpretation of the conflicting evidence.

During their premarital cohabitation certain art objects, paintings, etc., were purchased for Mr. Crouch's business.

During that same time period of premarital cohabitation, and after the marriage Mrs. Crouch spent much of her time and energies in running the art gallery for her husband on a gratuitous basis. During the course of the marriage from August 21, 1973, to September 18, 1977, the petitioner was absent from their Macomb home on three separate occasions. These absences of Mrs. Crouch were for extended periods of time. The first absence was from August 1974 through January 1975, the second was from May of 1975 through June of 1975, and the third absence of Mrs. Crouch, although disputed as to duration, lasted for at least several months.

The trial court found specifically that the items in the husband's art gallery business which were purchased prior to the marriage consisted of property valued at $28,370 and included the Pearlstein painting, the Perlis painting and the Casas Grande Serpent vessel, and granted that property to Mr. Crouch. The order of the trial court also found that Mrs. Crouch had performed certain work and helped with improvements on the non-marital real estate of Mr. Crouch for which a value of $2,000 was determined. Against this credit of $2,000 the trial court allowed an offsetting credit in Mr. Crouch's favor of $1085 for temporary support paid to Mrs. Crouch.

• 1, 2 Mrs. Crouch has phrased the first issue on appeal as whether the trial court's division of the marital and non-marital property is against the manifest weight of the evidence. The petitioner argues initially that the award of the non-marital property to Mr. Crouch was error. Although the evidence is somewhat conflicting, the record clearly supports a finding by the trial court that the various art objects and personal property in question in Mr. Crouch's art gallery business were acquired prior to the marriage of the parties. Section 503(b) of the Illinois Marriage and Dissolution of Marriage Act in pertinent part provides:

"All property acquired by either spouse after the marriage and before a judgment of dissolution 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." (Ill. Rev. Stat. 1977, ch. 40, par. 503(b).)

Property acquired by a party prior to the marriage is non-marital property. (Ill. Rev. Stat. 1977, ch. 40, par. 503(a)(6).) The record quite clearly reflects that the residence and art gallery were acquired by Mr. Crouch in 1965, long before the marriage to the petitioner. The purchases of various art objects in the art gallery including the Pearlstein painting, the Perlis painting, and the Casas Grande Serpent vessel were made prior to the marriage for the art gallery business of Mr. Crouch. These were properly found to be non-marital property by the trial court. Mrs. Crouch has argued that she contributed to the purchases of those various items of personal property in her husband's business and worked without pay in his business during their premarital cohabitation and accordingly she claims that the increase in the business equity and inventory which occurred prior to the marriage should nevertheless be considered marital property. In support of her argument she relies upon the case of Klingberg v. Klingberg (1979), 68 Ill. App.3d 513, 386 N.E.2d 517. Her theory is that the various art objects and other business inventory acquired prior to the marriage were commingled with the other marital property acquired after the marriage, thus evidencing an intent to have the former property treated as marital property. The Klingberg case is very distinguishable from the facts of the case now before us. The commingled property in Klingberg was money in a joint bank account, while the alleged commingling in the case at bar was with clearly identifiable and traceable art objects which do not lose their individual identity upon remaining in the husband's business inventory after the marriage. We hold the disputed personal property here was originally non-marital property and retained that status even after the marriage.

• 3, 4 Mrs. Crouch also argues that part of the purchase price for the disputed art objects was paid after the marriage and therefore these objects should be considered marital property. We reject this argument. The trial court had before it the business inventory, the income tax depreciation schedule of the respondent, and Mr. Crouch's testimony that the various art objects were purchased and placed in his solely owned art gallery business prior to the marriage. Mrs. Crouch has not disputed that the art gallery business itself was a non-marital asset of the respondent. The record clearly supports that the three major art objects, the Pearlstein painting, the Perlis painting, and the Casas Grande Serpent vessel were purchased and possessed in respondent's business inventory prior to the marriage. The checks in payment for these art objects were written on the business account, and in one instance the "Senufo Mask," which was purchased even prior to the first meeting of the parties, was exchanged as partial payment for the "Pearlstein painting." The testimony was hotly contested on the subject of ownership of the art objects in dispute. The trial court's finding that the disputed art objects were acquired in Mr. Crouch's business inventory prior to the marriage and hence acquired prior to the marriage is manifestly supported by the record. The judgment order of the trial court recited that:

"The court further finds that the value of all items acquired prior to August 21, 1973 [the date of the marriage] by respondent amounts to $28,370.00 and is to be the separate property of respondent and is non-marital property, and that said property is to specifically include the Pearlstein Painting, the Perlis Painting and the Casas Grande Serpent Vessel piece."

Admittedly some small portion of the purchase price was paid out of the business after the marriage. Such a fact has been held to be insufficient to cause non-marital property to be transmuted to marital property. (Davis v. Davis (Mo. App. 1976), 544 S.W.2d 259; cf. In re Marriage of Preston (1980), 81 Ill. App.3d 672, 402 N.E.2d 332 (non-marital property acquired with gift); Hull v. Hull (1979), 591 S.W.2d 376 (non-marital property acquired by gift).) However, the argument of Mrs. Crouch is based upon a partnership theory that survived into the marriage or alternatively upon a commingling of the business inventory after the marriage. We have rejected Mrs. Crouch's commingling theory. We also reject her partnership theory. No partnership tax return was filed for the year of the acquisition of the disputed art objects nor thereafter so far as we can determine. We do not believe a finding that the disputed assets are non-marital in this case will lead to inequitable results where a different rule may have been applied if the disputed assets had not been in the husband's business. The language of the statute provides for property "acquired" prior to the marriage to be non-marital property. Using the usual and customary meaning of the word "acquired" we conclude that the disputed property in this case was acquired in Mr. Crouch's business prior to the marriage.

• 5 The petitioner also claims that prior to their marriage Mr. Crouch told her she was a partner in his art gallery business, and that she actively participated as a partner in helping with the business during their premarital cohabitation. She further contends that her services to Mr. Crouch were valuable and advantageous to his business and were not intended to be gratuitous even though they were only then living together. She also emphasizes that she worked in the art gallery during their live-in relationship to her detriment, having left college and abandoned her own career to help Mr. Crouch in his career. While we do not dispute the value of Mrs. Crouch's work or the detriment she may have suffered therefrom, we cannot legally recognize her theory of her rights against Mr. Crouch. Mrs. Crouch has predicated her claims against Mr. Crouch in the context of a dissolution of marriage proceeding and has based her claims upon their premarital cohabitation relationship. While we might acknowledge that she was both a domestic associate and business associate of Mr. Crouch during their live-in relationship the arguments she has used are strikingly similar to those of the so-called palimony cases. Our supreme court has expressly declined to sanction such premarital property rights even when very persuasive arguments were presented. (Hewitt v. Hewitt (1979), 77 Ill.2d 49, 394 N.E.2d 1204.) The heart of the petitioner's claims to the disputed property is that she was in some form a partner in the art gallery business and in equity and good conscience should be compensated for her work benefiting the business prior to their marriage. Her plight, however compelling, has no available remedy under the Illinois Marriage and Dissolution of Marriage Act.

The trial court had before it considerable evidence including an inventory of the art gallery property which contained purchase and sale dates, as well as invoices and tax records. Although somewhat conflicting, the evidence presented allowed for a fair and reasonable classification of the disputed property as non-marital. Accordingly, we will not upset the decision of the trial court and conclude that the finding of the trial court with regard to this disputed non-marital property is manifestly supported by the evidence contained in the record.

• 6 The petitioner next argues that the trial court's division of the marital property was inequitable and contrary to the manifest weight of the evidence. In reviewing the division of the marital property, we are guided, as was the trial court, by section 503(c) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 503(c)), which provides:

"(c) In a proceeding for dissolution of marriage or declaration of invalidity of marriage, or in a proceeding for disposition of property following dissolution of marriage by a court which lacked personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property, the court shall assign each spouse's non-marital property to that spouse. It also shall divide the marital ...


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