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In Re Marriage of Nagel

OPINION FILED MAY 22, 1985.

IN RE MARRIAGE OF CHERYL SUE NAGEL, PETITIONER-APPELLEE, AND DEAN ARTHUR NAGEL, RESPONDENT-APPELLANT.


Appeal from the Circuit Court of McLean County; the Hon. Wayne C. Townley, Jr., Judge, presiding.

JUSTICE MCCULLOUGH DELIVERED THE OPINION OF THE COURT:

The parties were married in January 1973. The marriage was dissolved on October 4, 1983, with written judgment of dissolution entered on December 22, 1983, reserving child custody and property issues. After further hearings, the court resolved the reserved issues by written opinion of May 31, 1984, and entered a written order thereon on July 3, 1984, awarding custody of the parties' three children to petitioner and apportioning the property. Respondent appeals from the order of the circuit court of McLean County, specifically, the finding that respondent failed to rebut the presumption of a gift to the marital estate of the marital residence purchased in November 1979 with title taken in joint tenancy.

The salient facts with regard to the real estate were succinctly stated by the court in its written opinion dated May 31, 1984:

"At the time of the marriage of the parties the Respondent was purchasing a home which they then lived in until 1979. From 1973 to 1975 marital funds of $100 per month for 14 months were used to pay mortgage payments when due. * * * The non-marital estate was not transmuted by the application of a portion of the payment that was used to reduce the principal.

In 1975 funds were paid to the Respondent in satisfaction of his share of his father's estate. The parties' joint checking account was used as a conduit through which the balance of the mortgage was retired. By this deposit to the joint account the non-marital funds became a contribution to the marital estate. The Respondent built a garage using non-marital materials, his own labor, and approximately $1,000.00 of marital funds. This did not result in a transmutation of the estate into a marital one.

In 1979 after the property had appreciated in value it was sold for $42,000.

The parties' present home was purchased for $60,000 contemporaneous with the sale of the former home. Title to this real estate was taken in the names of both Petitioner and Respondent as joint tenants with right of survivorship and not as tenants in common.

The amendments to sec. 503(c)(2) do not alter the rule that property obtained by gift is not subject to the requirement that reimbursement is to be made for contributions to the marital estate.

To negate the presumption of gift the donor must establish by clear and convincing evidence that a gift was not intended. [Citations.] The testimony in this case fails to overcome the presumption of gift.

The Court will, therefore, find the real estate to be marital property with a value of $60,000 encumbered with a marital debt of $13,794.13 and taxes for the year 1983 payable in 1984."

The court awarded the residence, the sole substantial item of marital property, to respondent, and awarded the petitioner the sum of $20,000 as her share of the marital estate, imposing a lien on the real estate in that amount.

Respondent maintains that the court's finding that the presumption of gift was not rebutted was against the manifest weight of the evidence, and that he is entitled to reimbursement for his non-marital interest.

• 1 He first contends that his testimony concerning lack of donative intent at the time title was taken was sufficient to overcome the presumption of gift. He testified that the lending institution wanted both of the parties' signatures on the mortgage, but that he had not intended to make a gift to petitioner. Both of the parties' names were on the deed, mortgage application, and the loan. The record contains the following testimony:

"Q. [By respondent's counsel] * * * When did the bank tell you that Cheryl's name had to be on the deed to the house as well as on the mortgage application?

A. [By respondent] I don't know whether they told me it had to be on the deed, but it had to be — okay, when we went over to [the lending institution] to make this out — * * * and [an official of the lending institution] come up to me and said he wanted both our names on that, you know, for the mortgage purposes ...


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