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In Re Marriage of Drennan

OPINION FILED MARCH 2, 1981.

IN RE MARRIAGE OF GARNET DRENNAN, PETITIONER-APPELLEE AND CROSS-APPELLANT, AND CHARLES DRENNAN, RESPONDENT-APPELLANT AND CROSS-APPELLEE.


APPEAL from the Circuit Court of Ford County; the Hon. WILLIAM M. ROBERTS, Judge, presiding.

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

Petitioner, Garnet Drennan, and respondent, Charles Drennan, were married on June 15, 1974. Judgment of dissolution was entered on November 9, 1978, at which time the wife was 34 years of age and the husband 43 years old. Prior to their separation, the parties had been married for three years and nine months.

The central dispute at trial and on appeal is whether the marital residence should be classified as marital or non-marital property for the purpose of a property division between the parties. The land on which the marital residence was built was purchased in 1963 and the house built in 1968. At the time the house was built, the husband borrowed funds from his parents to build the house and executed a note in their favor. He made no payments to his parents on the note until after his marriage. Shortly after their marriage, the parties executed a mortgage note on the marital residence for $18,000. The proceeds of the note were used to repay the husband's parents for the money previously borrowed to finance the construction of the house. Immediately prior to the property division hearing in this case, in May 1979, the remaining unpaid balance on the mortgage loan was $14,969.76. From this record, it appears that apart from the value of the land purchased separately, the income after marriage to be treated as marital property invested in the house barely exceeded $3,000.

The wife testified that it was explained to her that the note the husband executed in his parents' favor would become due when he remarried. She testified that after the marriage, the parents requested payment of the loan and that the husband told her that they would be required to borrow money and that it would be necessary that she join in the note and mortgage. She admitted on cross-examination that the savings and loan association from which they acquired the mortgage required her to join in the note and mortgage as a prerequisite for obtaining the loan.

The husband testified that he never transferred title to the house to the petitioner and that it remained in his name throughout the marriage. He further testified that he never intended to transfer title or promised the wife that he would transfer title to the property into her name. He admitted that the mortgage payments were made during the marriage from joint marital funds.

The wife testified that several improvements were made to the property during the marriage. She stated that central air conditioning, new carpeting, new draperies, and redecorating were all purchased for the house during the marriage, using joint funds. She also testified that an addition to the land itself was acquired during the marriage. A 25-foot strip of land was acquired during the marriage by the parties from the husband's mother who sold it to him for $400. None of the wife's statements with regard to improvements to the house or the addition to the land itself were contradicted by the husband. At the time of the hearing on property division, she estimated the value of the house to be between $50,000 and $55,000, while he, in his affidavit, estimated the value of the house to be $40,000.

According to the wife, during the parties' marriage she was employed part-time for 14 months, earning $65 per week. According to the husband, she earned $30 to $35 per week. Subsequent to the parties' separation, she testified that she had become employed as a waitress and that her total monthly income was $725 per month, which sum included $270 per month in child support she received for her two children from prior marriages.

The husband testified that he was presently employed as a parts manager for an automobile dealership where he had worked for the past 13 years. His present gross income, at the time of trial, was $1,360 per month.

The parties owned two cars and some household furniture, but the marital residence and land constituted the greatest asset owned by the parties and virtually the only asset of substantial monetary value.

The trial court determined at the close of the hearing that neither party should receive maintenance. The trial court, with regard to the marital residence, made the following findings:

"When the respondent and petitioner jointly come up with $18,000.00 to pay off the pre-existing debt on the home, they were in essence jointly purchasing the home from the respondent who continued to hold title as trustee for both of them. The home is marital property in which the respondent's prior equity is so commingled as to lose its character as non-marital property. The home is ordered sold and after payment of the remaining mortgage balance and costs of sale the net proceeds are ordered distributed 25% to petitioner and 75% to respondent."

The husband argues that the foregoing determination by the trial court was erroneous as the property, both the house and the land, was "acquired" prior to marriage and therefore should have been characterized as non-marital property. Property acquired before marriage is, by definition, non-marital property under the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1979, ch. 40, pars. 503(a)(6), (b)). The statute defines marital property only for purposes of division at dissolution and does not prevent separate ownership during the span of marriage.

It appears that the wife concedes that the property was "acquired" before marriage; but asserts, based upon the trial court's determination, that the non-marital property was transmuted into marital property by the joint execution of the note and mortgage. Thus, we are not presented with the problem of determining when property is "acquired" for the purposes of section 503, as the court was in In re Marriage of Crouch (1980), 88 Ill. App.3d 426, 410 N.E.2d 580, but we may assume that the property was acquired prior to marriage.

The husband notes that the title to the property always remained in his name and asserts that the mere execution of the mortgage note is simply not sufficient evidence of any intent to transfer ...


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