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In Re Marriage of Flemming

OPINION FILED MAY 16, 1986.

IN RE MARRIAGE OF TIMOTHY PIERRE FLEMMING, PETITIONER AND COUNTERRESPONDENT-APPELLEE, AND PAULA WRENN FLEMMING, RESPONDENT AND COUNTERPETITIONER-APPELLANT.


Appeal from the Circuit Court of Rock Island County; the Hon. Jeffrey W. O'Connor, Judge, presiding.

JUSTICE HEIPLE DELIVERED THE OPINION OF THE COURT:

The parties to this appeal were married in 1965 and, 20 years later, the marriage was dissolved in 1985 by the circuit court of Rock Island County. The action below was brought as the second half of a bifurcated dissolution of marriage proceeding. The trial court entered an order and certain post-trial orders from which appeal is taken on the issues of classification and division of property, maintenance, child support and attorney fees.

On appeal the respondent contends that the trial court committed an abuse of discretion. In order to better address the narrow issues of law in this appeal, only those facts necessary to our decision will be set forth.

The following facts are pertinent. In 1966, the Flemmings moved to Illinois and Tim began working for John Deere and Company. From 1966 to 1967, Paula taught fourth grade at a public school in Moline. Paula has a Bachelor of Arts degree in education. In 1967, she quit to become a full-time wife and mother. In addition to her one year of teaching experience, Paula has 12 years of experience as a part-time travel agent. Three children were born to the marriage, two of whom were minors at the time of dissolution.

In 1977, Tim and his sister each received a one-fourth interest in a Moline home. On his mother's death in 1978, they each inherited an additional one-fourth interest. Tim also inherited roughly $57,000 in cash as well as stocks and securities worth over $35,000. Utilizing $45,000 of the $60,000 the parties realized on the sale of their previous marital home, they purchased Tim's sister's one-half interest in what would become their primary marital residence. In return, Tim's sister conveyed her one-half interest to Tim and Paula in joint tenancy. Tim then conveyed the entire property to himself and Paula in joint tenancy.

One year later, the parties acquired a condominium in Scottsdale, Arizona, as a vacation/retirement investment. Title to the condominium was placed in joint tenancy. Approximately $68,000 of Tim's inheritance was used to purchase the property. A mortgage was taken on the property and paid in part by marital funds and in part by the application of Tim's inherited money.

Tim has been employed at John Deere and Company as manager of the product engineering service since 1970. His gross income in the three years prior to the dissolution averaged about $60,000 per year. Tim receives about $6,000 a year in dividend income. At the time of trial, Tim also had certain pension entitlements.

In May of 1984, the parties agreed to a separation. Paula moved to Arizona to live with her mother and later a friend. She is currently employed in a stationery store in Scottsdale earning about $8,000 a year.

• 1 Paula'a first assertion is that the trial court abused its discretion in awarding marital and non-marital assets. Paula claims three errors in the award of the parties' marital and non-marital property. First, she argues that Tim waived his right to claim non-marital property by failing to raise this claim in the pleadings. Second, she asserts that the court erred in reimbursing Tim for his non-marital contributions to three marital assets: the marital residence, the Scottsdale condominium and a joint account at John Deere Credit Union. Third, she claims that the trial court erred in reserving jurisdiction over the division of Tim's pension.

Initially, we note that by requesting the trial court to identify and divide the parties' marital property, the petitioner asserted his right to claim non-marital property.

• 2 Under section 503(d) of the Illinois Marriage and Dissolution of Marriage Act, a trial court is directed to divide marital property upon dissolution of the marriage in "just proportions considering all relevant factors." (Ill. Rev. Stat. 1985, ch. 40, par. 503(d).) The Act does not mandate an equal division of the marital property. So long as the trial court has considered all the factors enumerated in section 503 of the Act, its discretion will only be reversed where no reasonable person would take the view adopted by the trial court. Thus, absent an abuse of discretion, a reviewing court will not reverse the trial court's disposition. In re Marriage of Shafer (1984), 122 Ill. App.3d 991, 994.

• 3 The trial court awarded the marital residence, with a median value of $109,750, to Tim with $45,000 of that amount as reimbursement. Tim was ordered to pay $41,925 to Paula for her equitable interest in the residence. The Scottsdale condominium, with a median value of $197,000, was ordered to be sold with $68,254 awarded to Tim as reimbursement. The balance after payment of the mortgage was to be split 65% to Paula, 35% to Tim.

Section 503(b) of the Act provides:

"For purposes of distribution of property pursuant to this Section, all property acquired by either spouse after the marriage and before a judgment of dissolution of marriage or declaration of invalidity of marriage, including non-marital property transferred into some form of co-ownership between the spouses, is presumed to be marital property, regardless of whether title is held individually or by the spouses in some form of co-ownership such as joint tenancy, tenancy in common, tenancy by the entirety, or community property. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection (a) of this Section." (Ill. Rev. Stat. 1985, ch. 40, par. 503(b).)

One of the ways this presumption of marital property can be overcome is by showing that the property was acquired by gift, legacy or descent. Ill. ...


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