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12/07/88 In Re Marriage of Ernestine S. Nicks

December 7, 1988

IN RE MARRIAGE OF ERNESTINE S. NICKS, PETITIONER-APPELLEE,


APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

and JOHN NICKS, Respondent-Appellant

531 N.E.2d 1069, 177 Ill. App. 3d 76, 126 Ill. Dec. 442 1988.IL.1774

Appeal from the Circuit Court of Sangamon County; the Hon. James Fox, Judge, presiding.

APPELLATE Judges:

JUSTICE KNECHT delivered the opinion of the court. GREEN, J., concurs. JUSTICE McCULLOUGH, Concurring in part and Dissenting in part.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KNECHT

The respondent, John Nicks (John), appeals from portions of a judgment for dissolution of marriage entered by the circuit court of Sangamon County on June 24, 1986, and modified on January 6, 1988. Respondent contends the trial court abused its discretion in awarding the petitioner, Ernestine Nicks (Ernestine), (1) certain property which was inherited by respondent, but held by the parties in joint tenancy and (2) maintenance of $200 per month for 36 months. We affirm in part and vacate and remand in part.

After 20 years of marriage, Ernestine filed a petition for dissolution of marriage on July 2, 1986. The grounds were not contested and are not at issue in this appeal. A hearing on all remaining issues, including property division and maintenance, was held on December 1, 1986, and a transcript of the proceedings is part of the record on appeal. The court reserved judgment until further evidence of the value of the parties' real estate was presented.

The docket sheet reflects the court heard arguments on June 24, 1987, and a judgment for dissolution of marriage was entered the same day. By agreement of the parties, the judgment was modified on January 6, 1988. There is no transcript of the June 24, 1987, or January 6, 1988, proceedings on record, but both the original and modified orders indicate the parties' real property was divided in relevant part as follows.

The court awarded Ernestine 115 shares of bank stock, title to the marital home, title to real estate located at 1909 East Jackson Street in Springfield, Illinois, a Federal tax refund in the amount of $980, and $5,000 in exchange for her share of the title to real estate (two vacant lots) located in North Carolina. In addition, petitioner was allowed maintenance of $200 per month for 36 months. John was awarded title to the parties' commercial property (a tavern) and the North Carolina real estate.

After the January 6, 1988, order was issued, John filed a petition to reconsider, alleging the maintenance award was excessive. Ernestine filed a rule to show cause for John's failure to comply with the court's order regarding the property division. Ernestine also filed a petition for modification of the judgment of dissolution of marriage which requested title to the tavern property. On March 7, 1988, the court made the following docket entry:

"Cause called for hearing on Petition for Rule to Show Cause and Motion to Reconsider. By agreement of the parties, Rule issued. John Nicks ordered to pay one-half of his income from the tavern which total $500, the amount of $250 per month to the Plaintiff, Ernestine Nicks. The tavern has been listed with John B. Clark and if sold, Defendant agrees to pay all obligations, both present and future, pursuant to judgment upon sale. All other obligations under the present judgment are abated at this time pursuant to agreement."

John first contends the trial court erred in awarding Ernestine the property located at 1909 East Jackson Street. John argues that property was inherited by him after the marriage, thus it should have been classified as non-marital property under the Illinois Marriage and Dissolution of Marriage Act (Act). (Ill. Rev. Stat. 1985, ch. 40, par. 101 et seq.) We disagree.

The classification of property as either marital or nonmarital is governed by section 503 of the Act. (Ill. Rev. Stat. 1985, ch. 40, par. 503.) Generally, all property, including non-marital property transferred into a form of co-ownership between the parties, which was acquired by either spouse after the marriage, but prior to a judgment of dissolution, is presumed to be marital property. Ill. ...


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