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In Re Marriage of Smith

OPINION FILED DECEMBER 23, 1981.

IN RE MARRIAGE OF JANIS L. SMITH, PETITIONER-APPELLANT, AND DONALD SMITH, RESPONDENT-APPELLEE.


APPEAL from the Circuit Court of Cook County; the Hon. IRVING R. LANDESMAN, Judge, presiding.

JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:

This appeal is taken from a supplemental judgment entered by the trial court subsequent to the entry of a judgment of dissolution of the marriage of Janis L. Smith, the petitioner, and Donald Smith, the respondent. The petitioner contends that the trial court committed error in awarding the family residence to the respondent as non-marital property and in failing to make a specific finding that the respondent's military pension was marital property. We will discuss only that testimony which is relevant to a determination of these issues.

The parties to this appeal became engaged in October 1963 and were married on March 15, 1964. Three children were born to the parties during their marriage. In February 1964, Donald purchased a home in Arlington Heights. They resided in this home from the date of their marriage until October 1978, when Janis and the children moved into a rented home.

Janis testified that she aided Donald in the search for the home and that she and Donald had decided not to set a wedding date until after a home was purchased. She did not see the home before it was purchased and did not discover that Donald had put it in a land trust until a few years after their marriage.

Donald testified that he searched for a home before and after his engagement to Janis. He signed the purchase agreement for the Arlington Heights home individually and used funds for its purchase from the sale of a home he had acquired during a prior marriage. Donald also stated that he signed the mortgage agreement and made the mortgage payments from his income. Title to that home was held in a land trust in which Donald was the primary beneficiary and Monique, his daughter from the prior marriage, was the contingent beneficiary. Donald testified that he told Janis of this arrangement before their marriage.

Donald further testified that he was retired and was receiving social security and civil service and military retirement payments. His gross income was $3,830 per month and $183.30 was deducted for survivors' benefits and medical expenses for his children. Income taxes were also deducted from his retirement payments. The gross military retirement payment was $1,533.97, and after deductions the net amount was $1,295.69. Donald testified that he was driving a 1976 Lincoln automobile, valued at $4,500 but subject to a lien of $2,600. He possessed furniture valued at $500 and a recreational camper valued at $6,000 but subject to a $3,500 lien.

The trial court held that the Arlington Heights home was Donald's non-marital property. In addition to the home, Donald was awarded the following marital property: the recreational camper and the 1976 Lincoln automobile with their respective liens and the household furnishings in his possession. As her portion of the marital property, Janis was awarded the 1973 Volkswagen automobile and the household furnishings in her possession. As unallocated support for Janis and the minor children, Donald was ordered to pay $1,160 per month, based on the parties' respective incomes at the time of the supplemental judgment.

The Illinois Marriage and Dissolution of Marriage Act (the Dissolution Act) provides in pertinent part that:

"(a) For purposes of this Act, `marital property' means all property acquired by either spouse subsequent to the marriage, except the following, which is known as `non-marital property':

(1) property acquired by gift, bequest, devise or descent;

(2) property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, bequest, devise or descent;

(3) property acquired by a spouse after a judgment of legal separation;

(4) property excluded by valid agreement of the parties;

(5) the increase in value of property acquired before ...


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