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January 28, 1994


Appeal from the Circuit Court of Madison County. No. 89-L-1717. Honorable Phillip J. Kardis, Judge Presiding.

Lewis, Chapman, Maag

The opinion of the court was delivered by: Lewis

PRESIDING JUSTICE LEWIS delivered the opinion of the court:

Defendants, Robert (Robert) and Paula (Paula) Swiecicki, appeal the trial court's order in which the court entered judgment against them and in favor of plaintiffs, Chester J. Swiecicki, Sr. (Chester), as guardian of the estate of Daniel Swiecicki, and Daniel Swiecicki (Daniel), in the amount of $20,000. It is noted that only one brief has been submitted; therefore, we review this case pursuant to the standards set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493. We affirm for the reasons set forth below.

Defendant raises two issues on appeal, to wit: (1) whether the trial court erred in finding that Chester had made a loan of $20,000, instead of a gift, to the defendants; and (2) whether the trial court erred in finding that the estate of Daniel Swiecicki made a loan of $20,000 to the defendants.

Chester filed a complaint, in his capacity as guardian of Daniel's estate, against defendants on December 11, 1989, alleging that he had loaned defendants $20,000, that he had demanded repayment of the $20,000, but that defendants had not repaid the loan. Defendants denied that the $20,000 was a loan and asserted that the money was a gift from Chester.

At the bench trial held on October 28, 1991, the following evidence was adduced: Robert testified that he is 48 years of age, is employed, and is married to codefendant Paula, and that Chester is his father. In September 1988, Robert and Paula were preparing to close on the purchase of a new home when it was discovered that there was a "judgment" against them. Consequently, they were unable to proceed with the purchase of the new home. Robert told his mother about the situation in a telephone conversation, and according to Robert, his mother said: "Don't worry about it. You come on over and things will be taken care of." Robert went over to his parents' home, and his mother handed him a cashier's check in the amount of $20,000. It was Robert's testimony that his father did not discuss repaying the $20,000 at that time.

Subsequently, at Christmas that year, there was a family argument. Robert stated that after that, he began to be "badgered" for the money. Chester asked Robert several times to return the money.

Robert stated that at the time his father gave him the money, his father was working part-time as a school crossing guard. To Robert's knowledge, his father's assets were "pretty substantial." In Robert's opinion, his parents were giving, loving people. Robert was aware that his father handled Daniel's finances; however, he denied that he knew that the $20,000 had come from Daniel's estate when Chester had given him the money. It was not until the spring of 1989 that Robert learned that the $20,000 was Daniel's. Robert recalled that his brother Chester, Jr., had talked to him about the $20,000, and that his brother had given him a blank promissory note to sign; however, Robert did not sign it.

Robert testified that his parents had given him a $20,000 cashier's check on September 19, 1988. Robert was amazed at the amount at the time of the transaction, as he and Paula needed only $14,000 to pay off a loan. He further admitted that he had not repaid the $20,000.

Chester testified that he is 75 years of age, and that he is the father of Robert, Chester, Jr., and William. He is also Daniel's natural grandfather, as well as the guardian of Daniel's estate. In September 1988, Chester's wife told him that Robert needed money to buy a house, so he cashed in a $25,000 certificate of deposit (CD), which he held as guardian of the estate of Daniel, to obtain the $20,000 for Robert. He admitted that he handed Robert a cashier's check for $20,000, but he stated that the money came from Daniel's estate. According to Chester, when he gave Robert the cashier's check, he asked Robert when he would pay the money back. Robert responded that he would repay the money within 90 days, after they had sold their house. Robert did not repay the money in 90 days and had repaid nothing as of the time of trial. Chester admitted that he did not obtain a written note from Robert for the $20,000, but he stated he had asked Robert for repayment of the money repeatedly.

Chester stated on cross-examination that he had loaned his other son Chester, Jr., $5,000 from Daniel's estate in the past. Chester, Jr., had given him a promissory note when Chester had loaned the money. Chester, Jr., had repaid the $5,000 loan without interest. Also on cross-examination, Chester admitted that, although Daniel is now 22 years of age, he has not given Daniel the remainder of his estate. In 1987, there had been $106,000 in Daniel's estate, but at present, there was nothing remaining. In Chester's opinion, he felt he had the right to make loans to family members out of Daniel's estate without court approval.

Chester's other two sons, Chester, Jr., and William, also testified that they had talked to Robert about the $20,000. Both brothers testified that they gave Robert a promissory note to sign for the money, but that Robert refused to sign.

Paula testified that Chester contacted her by telephone regarding the repayment of the $20,000 in February or March of 1989. She stated that they never sold their original home, but that they had moved back into it after living in their new home for about 15 months. They sold the new home for $64,000, but there was an ...

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