Appeal from the Circuit Court of Cook County; the Hon. Allen
F. Rosin, Judge, presiding.
JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
Petitioner, Arlene Wojcicki, filed a petition for dissolution of her marriage to respondent, Robert Wojcicki. Grounds for dissolution were proved up without contest. After a full hearing, the trial court determined the property rights of the parties in various items of personalty, realty and cash, barred both parties from receiving maintenance and held the parties responsible for their own attorney fees. Petitioner appeals from the court's findings and orders with respect to all of the above, exclusive of the grounds for dissolution.
Robert and Arlene Wojcicki were married in August of 1975 and resided as husband and wife until August of 1979, at which time petitioner vacated the marital home. No children were born to the marriage. It was the second marriage for both of the parties, and each entered into it with substantial property.
Respondent was the sole owner of a residence in Schaumburg, Illinois, in which the parties resided during their marriage. Principal due on the then existing mortgage had been reduced to under $2,500. The stipulated value as of November 1978 of said residence was $123,000. Respondent also owned 120 acres of real estate in the Wisconsin Dells upon which he had constructed a shell of a residence, and an additional 20 acres which was divided into four lots, all of which were vacant in 1975. Shortly after the parties' marriage, respondent transferred title to the above properties into joint tenancy with petitioner. In addition, respondent entered the marriage with over $10,000 in savings, which was deposited in the parties' joint account.
Petitioner owned free and clear a residence in Des Plaines, Illinois, valued at approximately $69,000 and various items of personal property.
During the pendency of the marriage, certain improvements were made to the real estate and the parties' assets were augmented by both sales and rental income. Specifically, a garage was constructed on the 120 acres of Wisconsin property, financed in part with funds from the parties' joint bank account and mortgaged in part. The 20-acre tract of Wisconsin property was sold as four lots in 1977 for cash and on contract. Petitioner received rental income of $395 per month from her Des Plaines residence up until 1977, when said residence was sold, realizing $65,000 after expenses.
Apart from $5,000 which petitioner used to repay a personal loan, it is undisputed that all monies received from the above properties were placed in one or another of the parties' joint bank accounts, as were salary checks of both parties. Similarly, all taxes and mortgage payments on the properties were paid from a joint account.
Other property acquired during the marriage included $18,500 which petitioner had received as settlement for a personal injury claim, a truck and van purchased for use in respondent's business and a $2,821 tax refund. Each party also owned a pension fund of approximately equal value. In addition, petitioner purchased a 1980 Plymouth automobile during the pendency of the dissolution proceedings.
After a full hearing, the trial court made specific findings and ordered the following distribution of property, to which petitioner objects: The court found the Schaumburg residence and the Wisconsin properties to be non-marital, awarding same to respondent. The proceeds from the sale of petitioner's residence were also held non-marital and awarded exclusively to petitioner. The parties each received their interests in their respective pension funds, which were marital property to the extent of contributions made during the marriage. Both the van and the truck (having over 90,000 miles and being of uncertain value) were found to be marital and awarded to respondent. Petitioner was awarded the Plymouth automobile, valued at $5,000, to be credited against her interest in the parties' marital property. Remaining marital property included the tax refund, which had previously been applied to cover respondent's prospective liability, and the proceeds from the personal injury settlement. Petitioner was awarded the $69,000 to $70,000 which had been in her constructive possession at the time of hearing (these funds representing the remaining proceeds from the sale of her home and the personal injury settlement) and an additional $5,000 to be paid by respondent in monthly installments without interest.
• 1 Petitioner first argues that the classifying of the Schaumburg and Wisconsin properties as non-marital and awarding same to respondent was improper, and relies on the theory of transmutation set forth in the recent case of In re Marriage of Smith (1981), 86 Ill.2d 518, 427 N.E.2d 1239. While the court in Smith did recognize a "legislative preference" for classifying property as marital under the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 101 et seq.), it also recognized the legislative intent to preserve the character of non-marital property where the actions of the parties have not created ambiguity in that regard. (86 Ill.2d 518, 530.) The Smith court held that where, as here, a spouse owning separate non-marital property performs the affirmative act of either transferring title into a form of joint ownership or augmenting the non-marital property by commingling it with marital property, such act creates the "rebuttable presumption" of that party's intention to change the character of the property to marital. Thus, transmutation is not absolute and non-marital property may still retain its character despite a contribution of marital funds. (86 Ill.2d 518, 531.) In another recent decision, In re Marriage of Rogers (1981), 85 Ill.2d 217, 422 N.E.2d 635, the court clearly stated that the Illinois Marriage and Dissolution of Marriage Act does not purport to change the law regarding inter-spousal transfers of property owned individually, nor does the Act indicate any dissatisfaction with prior cases in which the intention of a spouse conveying property was ascertained. (85 Ill.2d 217, 223.) In dissolution proceedings, where the subject matter is property acquired prior to the marriage, the controlling presumption will be the common law presumption of gift which the "donor" spouse may rebut with "clear, convincing and unmistakable evidence." In re Marriage of Severns (1981), 93 Ill. App.3d 122, 126, 416 N.E.2d 1235.
In the instant case, the trial court heard conflicting testimony with regard to respondent's intentions at the time he transferred the property into joint tenancy and found respondent's testimony to be the more credible. Respondent had emigrated from Poland and had limited education. His first wife died after a lengthy marriage, and he testified that he had encountered difficulties succeeding to title in the Schaumburg and Wisconsin properties upon her death. His motivation at the time of transferring title, and that which he conveyed to the attorneys preparing the documents, was to insulate himself and petitioner from similar difficulties in the event of the death of one or the other.
In contrast, petitioner denied respondent's stated intent, although she admitted that respondent had indicated the same to the attorneys involved. It was, and still is, petitioner's contention that respondent intended to convey a present interest in the properties to her by transferring title. Interestingly, petitioner does not assert a similar intent on her part when she commingled the proceeds from the sale of her residence in joint marital accounts, nor does she contest the trial court's finding that said proceeds were her sole non-marital property.
• 2 It is the trial court's function to resolve conflicting testimony by assessing the credibility of witnesses and the weight to be accorded their testimony, and the court's findings will not be disturbed unless against the manifest weight of the evidence. (Stallings v. Stallings (1979), 75 Ill. App.3d 96, 100, 393 N.E.2d 1065.) Given the fact that the parties here were the only witnesses to testify, the trial court's determination as to credibility was central to its adjudication of the issue. The record is replete with instances of evasive and inconsistent testimony by petitioner; the trial court, and even petitioner's own attorney, were forced to admonish her for being unresponsive. Under the circumstances, we do not find the court's decision to accept respondent's testimony over that of petitioner an abuse of discretion.
In addition to the parties' testimony, several factors have been deemed significant where a spouse who has paid the purchase price for property seeks to overcome the common law presumption of a gift. Among those factors are the making of improvements, payment of taxes and the mortgage debt, occupancy of the premises as a home and place of business, and the exercise of control and management of the property. Coates v. Coates ...