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06/29/89 In Re Marriage of Jackie Cullman

June 29, 1989

IN RE MARRIAGE OF JACKIE CULLMAN, PETITIONER-APPELLANT AND


APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

Cross-Appellee, and PHILIP CULLMAN,

Respondent-Appellee and Cross-Appellant

541 N.E.2d 1274, 185 Ill. App. 3d 1029, 133 Ill. Dec. 836

Appeal from the Circuit Court of Cook County; the Hon. Barbara J. Disko, Judge, presiding. 1989.IL.1033

APPELLATE Judges:

JUSTICE LINN delivered the opinion of the court. JOHNSON and McMORROW, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINN

Jackie Cullman appeals from portions of the trial court's judgment in the dissolution of her marriage to Philip. Specifically, she challenges the court's determination that the marital residence was Philip's separate, non-marital property. She further contends that the trial court erroneously limited her recovery of attorney fees by misinterpreting the parties' prenuptial agreement. Philip cross-appeals from the partial award of attorney fees to Jackie and also from the order denying his motion for fees under section 2-611 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-611).

We reverse in part, affirm in part, and remand.

Background

On October 3, 1979, three days before their marriage, Jackie and Philip executed a prenuptial agreement. Philip's assets included shares of common stock valued at over one-half million dollars, representing his interest in his family-owned business, Cullman Wheel. He also owned a home in Deerfield, Illinois, valued at $145,000. His total assets were listed as $778,625 and his net as $687,625. Jackie's assets, including equity in a condominium, totaled $43,000.

The prenuptial agreement specifies that each party's listed assets were to be considered as his or her non-marital property. Further, the agreement stated that property acquired "in exchange for" nonmarital property or "acquired with the proceeds from the sale of" nonmarital property "and the increase in value of" non-marital property would retain its non-marital treatment.

The prenuptial agreement further provided that, if the parties divorced within five years, Jackie would receive $10,000, paid in three equal annual installments, in lieu of any marital rights to maintenance or support. After five years of marriage, but before 10, the sum would increase to $25,000, payable in equal annual installments over five years. After the tenth year of marriage, the agreement would terminate.

At the time the divorce proceedings began the parties had been married for over five years. Jackie filed, on grounds of physical cruelty, and Philip did not contest the action. Jackie did not dispute the validity or general interpretation of the prenuptial agreement. However, she claimed that the house in which the couple were living, placed in joint tenancy, was marital property. The trial court agreed with Philip, however, that the house was his non-marital property and awarded it to him.

The evidence reveals that when the parties were married in 1979, Philip owned as his non-marital property the Deerfield house. In 1981 he sold it and put $75,000 of the sales proceeds towards the purchase of the house in Kildeer. Title was taken in the names of Jackie and Philip, in joint tenancy. To obtain the $110,000 balance of the purchase price, the parties acquired a mortgage loan. Both signed the mortgage documents, which included the sale contract, mortgage, note, warranty deed, and bill of sale. The title insurance policy showed both parties as owners.

Jackie testified that she believed that she was an owner of the Kildeer home when they purchased it in May 1981. She did not furnish any of the purchase money but she did pay the fee for the mortgage papers. Philip did not tell her when they purchased the property that he did not intend for her to acquire an interest in ...


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