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08/03/89 Estate of Ralph J. Dompke, v. Maebelle F. Dompke

August 3, 1989

ESTATE OF RALPH J. DOMPKE, DECEASED, BY CHRISTOPHER

v.

BROWN, ADM'R, PETITIONER-APPELLEE,

v.

MAEBELLE F. DOMPKE, RESPONDENT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

542 N.E.2d 1222, 186 Ill. App. 3d 930, 134 Ill. Dec. 715 1989.IL.1196

Appeal from the Circuit Court of Du Page County; the Hon. S. Keith Lewis, Judge, presiding.

APPELLATE Judges:

JUSTICE McLAREN delivered the opinion of the court. DUNN and LINDBERG, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCLAREN

Respondent, Maebelle F. Dompke, appeals from a grant of summary judgment entered in favor of petitioner, Christopher V. Brown. Respondent contends that: (1) summary judgment should not have been entered for petitioner; (2) summary judgment should have been entered for respondent; and (3) even if the grant of summary judgment was correct, the court erred in ruling that all of the property in question should be transferred to petitioner. We disagree and affirm.

Maebelle F. Dompke (Maebelle) and Ralph J. Dompke (Ralph) were husband and wife prior to December 31, 1981. Their marital property included stocks and a bond in a brokerage account owned as joint tenants. A judgment for dissolution of marriage was entered by the circuit court of Cook County on December 31, 1981. This judgment expressly incorporated a written property settlement agreement which specified, among other things, that the stocks and bond in Ralph's possession were to be Ralph's property. The agreement, which was to settle all matters between them for property rights, referred to no other stocks or bonds, although it did allocate between the parties several bank accounts, money market funds, and real estate. While all necessary conveyances of real estate were achieved, Maebelle never conveyed her interest in the stocks and bond (the securities) to Ralph. Ralph continued to receive statements and dividends from the brokerage account addressed to "Ralph J. Dompke and Mrs. Maebelle F. Dompke Jt. Ten." on a regular basis.

Ralph died intestate on December 4, 1986. Christopher V. Brown was appointed administrator of the estate of Ralph J. Dompke, deceased (Estate). Maebelle refused to transfer title of the securities to the Estate, and the Estate filed a citation to recover assets in the circuit court of Du Page County on December 21, 1987. Maebelle moved to dismiss the citation, but her motion was denied. Both parties then moved for summary judgment. The trial court granted the Estate's motion for summary judgment and denied Maebelle's motion. Maebelle appeals from this order.

A motion for summary judgment will be granted if the pleadings, depositions, admissions and affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (Ill. Rev. Stat. 1987, ch. 110, par. 2-1005.) "Merely alleging that a genuine issue of material fact exists without presenting any statement of fact to contradict the defendants' version, does not thereby create such an issue." (Peltz v. Chicago Transit Authority (1975), 31 Ill. App. 3d 948, 951.) Evidence is to be viewed in a light most favorable to the non-movant in determining whether a genuine issue of material fact exists. (Doherty v. Kill (1986), 140 Ill. App. 3d 158, 162.) If there are no such facts in dispute, inferences may be drawn from the undisputed facts to determine if respondent is entitled to judgment as a matter of law. If no fair-minded person could draw different inferences from these facts, then there is no triable issue and the motion for summary judgment should be granted. Peltz, 31 Ill. App. 3d at 951.

Respondent's argument, in essence, is that the Estate was unable to show, by clear and convincing evidence, that the joint tenancy in the securities was severed. Therefore, as surviving joint tenant, she would be sole owner of the securities.

The facts here are undisputed, so summary judgment is proper. The only question before the court is whether, as a matter of law, the joint tenancy in the securities was severed. If it was, the grant of summary judgment to the Estate was correct. If it was not, summary judgment should have been granted to Maebelle.

"When an agreement by divorcing spouses concerning property rights is approved by the court and incorporated into the divorce decree, it becomes merged in the decree and the rights of the parties thereafter rest upon the decree." (In re Estate of Coleman (1979), 77 Ill. App. 3d 397, 399.) Normal rules of contract construction should be applied in interpreting such an agreement. (Coleman, 77 Ill. App. 3d at 399.) The court should give effect to the intentions of the parties and the court, as determined from the language of the unambiguous instrument. Coleman, 77 Ill. App. 3d at 399.

The judgment of dissolution of marriage provides in relevant part:

"The parties have acknowledged and agreed that their marital property, exclusive of items of nominal value, is considered and disposed of in this Article and all other property not provided for in this Agreement, whether acquired before or during their marriage is non-marital. The intent of this paragraph is to divide the assets of the parties equally so that each will have property, although different in character, of equal value to be distributed in kind so that it will not be necessary to liquidate all of the family assets and divide the cash equally. On completion of the transfer required under this Agreement, as set forth in Exhibit A hereto, each party ...


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