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03/13/87 In Re Marriage of Barbara J. Guerra

March 13, 1987



and JOHN GUERRA, Respondent-Appellant

505 N.E.2d 748, 153 Ill. App. 3d 550, 106 Ill. Dec. 201 1987.IL.306

Appeal from the Circuit Court of McHenry County; the Hon. Ward Arnold, Judge, presiding.


Justice Inglis delivered the opinion of the court. Woodward and Reinhard, JJ., concur.


After a bench trial, the court found that certain property purchased by the husband during the marriage was marital property and awarded some of that property to the wife. The husband appeals this award and the award of the wife's maintenance. We reverse.

On February 25, 1985, John Guerra (John) and Barbara Guerra (Barbara) were divorced. This was John's fourth marriage, and it was Barbara's second marriage. The parties had been married less than nine years. John had four children by his previous marriages; Barbara had five children. The parties' current marriage produced one child, Nicola, born June 6, 1977. John was a full-time employee, stockholder, and officer of Executive Aircraft Maintenance Corp. , a company which he had founded in April 1956. At the time of their marriage, his assets consisted of his EAMC stock and some personal items. He never put Barbara's name on his EAMC stock.

Barbara brought into the marriage a house and certificates of deposit which, together, had a value of $55,000. In addition to this she received, throughout the marriage, a widow's pension from the plumber's union and social security payments for her children totalling approximately $95,000. Barbara kept ownership of these assets in her own name and received the proceeds and earnings therefrom. Eventually she liquidated her property. The sale proceeds of the property and her pension and social security benefits were used to pay for the family's living expenses.

The parties resided on EAMC property throughout their marriage until they moved to the Swarthmore residence in December 1980. While they lived on the airport property, EAMC paid for the mortgage on the property, some auto repairs, improvements to the house, gasoline for their automobiles, their utility bills and insurance.

During almost the entire marriage, the parties each used and controlled separate checking and bank accounts. John used and controlled the accounts referred to in the parties' trial court stipulation as the "blue" accounts; Barbara used and controlled the accounts referred to as the "pink" accounts. Both parties' names were on all of the accounts up till and after the parties' marital problems culminated in April 1983. His name was printed on his checks; her name was on her checks. She testified that she deposited her social security checks into the account that she was using. She also assumed that John was depositing his money from the airport sale into the account he was using. Barbara would write checks on the "blue" account only when John would give her a check and instruct her to write it for a specific purpose. John never wrote checks on the "pink" account. He testified that Barbara never tried to withdraw money from his "blue" account. Further, Barbara testified that John always carried his checkbook for his accounts,; while she carried her checkbook for her accounts. One of the "blue" accounts used by John had Barbara's name on it, not as joint tenant, but with power of attorney to sign.

In 1981, John liquidated EAMC, and the proceeds of the sale were paid (and are payable) pursuant to an installment note. As John received his share of the installment payments, he deposited them into his "blue" account, using the account as a temporary repository. With these stock proceeds he purchased other assets, always in his name alone, and always using his "blue" accounts for these purchases. He stated that the only reason he deposited his airport stock proceeds into his "blue" account was so that he would have a place to put them so he could write checks to make other purchases. These deposits and purchases were made pursuant to his preconceived plan of exchanging his premarital airport stock for other similar non-marital assets.

The parties otherwise separated their financial affairs and dealt at arm's length. Barbara testified that she always maintained her premarital certificates of deposit in her separate name throughout the marriage. Her interest checks from those certificates were payable to her. Both parties testified as to Barbara's controlling the investment of the certificates and the interest from them.

Barbara also testified that she made two loans to the airport. These were repaid with interest, except for approximately $4,000 which John testified was used to pay interest on the joint loan of the parties for the purchase of another property. Barbara was given promissory notes in exchange for the loans she gave. John testified that he was always able to obtain outside financing for EAMC, but he offered Barbara the chance to make greater amounts of interest from these loans to EAMC. She also used her certificates of deposit as collateral for EAMC loans. These were returned to her, and none ...

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