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In Re Marriage of Smith

OPINION FILED OCTOBER 21, 1981.

IN RE MARRIAGE OF IONA SMITH, APPELLEE, AND GAINES N. SMITH, APPELLANT.


Appeal from the Appellate Court for the Fifth District; heard in that court on appeal from the Circuit Court of St. Clair County, the Hon. Robert J. Saunders, Judge, presiding.

MR. JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:

___ N.E.2d ___

Plaintiff, Iona Smith, and defendant, Gaines N. Smith, ended their 22-year marriage with a 1978 decree of dissolution entered in the St. Clair County circuit court, followed by a property division order several months later. A post-trial motion by plaintiff resulted in a further hearing and an amended order which plaintiff appealed, urging error in the assignment and division of property and denial of her request for maintenance and attorney fees. The appellate court affirmed in part, reversed in part, and remanded for further fact finding on several questions. (90 Ill. App.3d 168.) We allowed defendant's petition for leave to appeal.

As of the date of dissolution the parties owned, individually or jointly, four parcels of real property, various stocks and bank accounts, two retirement plans, a corporation, and a pickup truck, all in issue here. The appellate court opinion gives a detailed description of the properties. For our purpose a brief description of each will suffice.

The marital home was purchased in joint tenancy in 1959, after the marriage. Its current value was placed at about $48,000 by the defendant and about $70,000 by the plaintiff. The trial court found a value of $41,420 to be marital property, and, dividing it equally, ordered defendant to pay plaintiff $20,710 for her equity. Although the computations are not in the record, the trial court might have reached this $41,420 figure by deducting the percentage of non-marital property that defendant traced into the purchase price of the home from its value at the date of dissolution. The appellate court affirmed the order to plaintiff to convey her interest to defendant but remanded to the trial court to reconsider and establish the value of the home according to the evidence introduced at trial.

A 200-acre tract of farmland in Washington County was acquired by the parties in 1965 and is held in joint tenancy. Defendant traced funds which were originally non-marital into the down payment and a portion of the mortgage payments. The trial court ordered the property sold and gave to defendant a portion of the sales price proportionate to his contribution of non-marital assets, the remainder to be divided equally as marital property. The appellate court reversed the order insofar as it gave defendant more than a straight refund of his non-marital contribution and affirmed the remainder as marital property.

Defendant owns in his name a property which housed his office and two apartments which he rented out. The property was acquired in settlement of his mother's estate in 1966, and was valued at $45,000 at the time of dissolution; no figures were in evidence as to the value in 1966. Improvements totaling $3,800 were made to the property with marital funds. The trial court found the property itself to be non-marital and assigned it to defendant, and found the improvements to be marital, equally dividing the value. The appellate court affirmed.

Another residential property is owned in the name of a son (by a previous marriage) of the plaintiff in Indianapolis, Indiana, in which she resided after separation. The down payment of $4,000, plus another $4,000 in improvements, was made with her non-marital funds, as were rental payments to her son which approximated the monthly mortgage payment. The home was purchased in 1978 for $18,500 and was worth about $35,000 at the date of dissolution. The trial court awarded plaintiff $6,000 as her non-marital share and divided the net equity (value less remaining mortgage) equally as marital property. The appellate court reversed because the record owner was not a party to the proceedings and because the property was purchased with non-marital funds.

The parties also own various stocks. Among them are 2,220 shares of Ralston Purina — 2,100 in the name of defendant and 120 held jointly. Defendant testified that all 2,220 are a result of stock splits or stock dividends accruing to an original 38 shares which he owned since before marriage. Business records of Ralston Purina introduced by plaintiff at trial do not clearly show whether shares accumulated after marriage were the result of stock splits or stock dividends. Plaintiff claimed she bought the 120 shares with non-marital funds. The trial court assigned to defendant 2,000 shares as non-marital property and divided 120 shares equally as marital property. (One hundred shares were apparently a gift to the son and were not included in the trial court order.) The appellate court reversed and remanded for further inquiry into the acquisition of the stocks, holding that stock dividends would be considered marital property even though the principal stock was non-marital.

Plaintiff also owns, in her name individually, 25 shares of Bank of Belleville stock. Another 12 shares are owned by defendant individually. Defendant claims all stock was purchased as exchange for non-marital property (some Ralston Purina stock), while plaintiff claims she bought her 25 shares with non-marital funds. The trial court awarded defendant his 12 shares as non-marital property and found the other 25 shares to be marital property and divided them equally. The appellate court reversed and remanded, finding that 10 of the 25 shares were a gift to the plaintiff and that 10 of the 12 were defendant's non-marital property, but that further inquiry was necessary to determine whether the additional shares were due to stock splits or stock dividends.

The plaintiff alleges error in the failure of the trial court to divide proceeds from the sale of stocks which defendant testified he sold after separation. The appellate court disagreed because there was nothing in the record to indicate that the proceeds were used for other than marital purposes.

The disposition of various savings accounts from which defendant withdrew large sums after the separation is also disputed by the plaintiff. The trial court divided equally the balance as of the date of dissolution. The appellate court affirmed because there was adequate evidence that the funds were used to pay legitimate debts incurred during the marriage.

The trial court also divided equally the amounts, found to be marital property, in defendant's Keogh plan and plaintiff's IRA account. Plaintiff claims her account was not put into evidence; however, the appellate court affirmed, finding that the record did mention this account.

Plaintiff contests the trial court's decision that a pickup truck, bought with marital funds, had been given as a gift to plaintiff's and ...


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