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11/07/88 In Re Marriage of Janice L. Agazim

November 7, 1988

IN RE MARRIAGE OF JANICE L. AGAZIM, PETITIONER-APPELLEE AND


APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

Cross-Appellant, and JOHN A. AGAZIM,

Respondent-Appellant and Cross-Appellee

530 N.E.2d 1110, 176 Ill. App. 3d 225, 125 Ill. Dec. 701 1988.IL.1619

Appeal from the Circuit Court of Lake County; the Hon. Terrence J. Brady, Judge, presiding.

APPELLATE Judges:

JUSTICE WOODWARD delivered the opinion of the court. NASH and REINHARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD

This is a second appeal in a divorce proceeding that was commenced in 1983. In In re Marriage of Agazim (1986), 147 Ill. App. 3d 646, this court reversed the trial court's judgment and held that the wife's interest in an apartment complex acquired during the marriage was marital property. The husband now appeals from the distribution of marital property as determined by the trial court on remand. We affirm.

John Agazim (John) and Janice Serafine (Janice) were married 11 years, from May 18, 1974, to May 14, 1985. Two children, Andrew and Erik, aged 8 and 11, respectively, were born of this marriage. In the original judgment for dissolution of marriage entered May 14, 1985, the trial court found that an interest in Whitehall Manor (Whitehall), a four-building complex which was part of a larger 18-apartment complex, was the separate property of Janice. On September 26, 1986, this court held that Janice's interest in the apartment complex was marital property, and this cause was remanded for a redetermination of an equitable distribution.

On December 22, 1987, the trial court entered its second supplemental judgment, which is the subject of this appeal. This judgment provided in pertinent part: (1) the marital residence, located at 740 South Ridge Road in Lake Forest, Illinois, has a $340,000 value as of date of dissolution of marriage with an existing first mortgage of $85,314; (2) the residence contains furniture and furnishings of $49,000; (3) that Janice's one-half interest in Whitehall is valued at $648,463, and that one-half interest is marital property; (4) the marital estate has a value of $952,463, which consists of Whitehall ($648,463), the net equity in the marital residence ($255,000) and the furniture and furnishings ($49,000); (5) the marital debts are approximately $112,000, leaving a net marital estate for distribution of approximately $840,000; (6) John has a net income of $30,000; (7) Janice's 1985 income from Whitehall was $80,000, and her 1986 income was $100,000; (8) Janice's 1985 expenses were approximately $4,300 per month and her 1987 expenses were approximately $5,000 per month; (9) John's 1983 income was $92,000 with cash payouts of $270,000 and a shortfall of $178,000; (10) John's outstanding loans for business purposes were $78,000, and his other debts were $34,000, for a total of $112,000; (11) Janice is 37 years of age and she has knee, foot, and ankle injuries; (12) any ownership interest in Whitehall by John would be clearly antagonistic to Janice as well as her father, Joseph Serafine (Joseph), "who would do all in his power to compete with the separate ownership interest and eventually drive those ownership interests into the ground and out of competition"; (13) Whitehall was primarily and substantially contributed from sources provided by Janice; (14) the equity in the marital residence was furnished by the joint efforts of the parties; (15) John has greater ability to acquire assets from "greater income producing capability" and "a skill or talent to borrow money"; (16) Janice has the ability to derive income from the apartment buildings; (17) John will receive 24% of the marital assets and the "lion's share" of the hard (liquid) assets; and Janice will receive 76% of the assets.

The trial court ordered that (1) John pay child support of $625 per month; (2) no maintenance be awarded to either party; (3) each party pay his or her own fees; (4) John provide insurance for extraordinary medical and dental expenses for the children; (5) Janice be awarded the entire interest in Whitehall, as well as $49,000 of personal property; (6) the marital residence be sold and John be awarded the first $225,000 and Janice the next $30,000; (7) Janice be given the option of buying the house from John for $225,000 within 60 days of the entry of the judgment for dissolution; and (8) John pay the $112,000 of marital debts.

In 1977, Janice and her sister, Karen Considine, each bought a one-half interest in Whitehall through articles of agreement with their father, Joseph, as seller. Whitehall was part of an 18-building apartment complex owned and operated by Joseph. Neither Janice nor her sister paid any money down for the property. All payments for Whitehall were made with rental income from the apartments. Joseph continued to manage the property; he received from the rental income a management fee of between $1,200 and $1,600 per month. On or about February 24, 1987, Joseph sent a notice of declaration of forfeiture to Karen Considine and Janice. The declaration stated that Joseph had elected to declare the agreement "null and void as of March 31, 1987, and the interest of the Purchasers in said apartment buildings, by virtue of said Articles of Agreement, forfeited and determined." No notice was sent to John, even though the supposed basis for the forfeiture was that there had been a forbidden transfer to John.

The only claimed basis for Joseph's declaration of forfeiture was that this court's decision in the first appeal, classifying Janice's interest in Whitehall as marital property, violated the following provision of the agreement:

"The Purchasers shall not transfer, pledge or assign this Agreement, or any interest herein or hereunder without first obtaining the prior written consent of the Seller; nor shall the Purchasers lease said premises or any part thereof for a period greater than two (2) years without first obtaining the prior written consent of the Seller. Any violation or breach or attempted violation or breach of the provisions of this paragraph by Purchasers or any acts inconsistent herewith, shall vest no right, title or interest herein or hereunder or in the said real estate or in any such transferee, pledge, assignee or lessee, but Seller may, at his exclusive option, declare this Agreement to be null and void and invoke the provisions of this Agreement relating to forfeiture hereof."

After declaring the forfeiture, Joseph replaced Janice's lost income by advancing her loans to cover living expenses. Joseph advanced Janice an average of $9,000 per month after the purported forfeiture.

John learned of the declaration of forfeiture for the first time on October 1, 1987, when Janice testified during a hearing on the equitable distribution of marital property. On October 7, 1987, the trial court granted John leave to file a supplemental and third-party complaint, joining Joseph as a defendant and alleging that the purported forfeiture was a sham and a ...


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