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08/26/94 MARRIAGE NONA WILSON ALBRECHT

August 26, 1994

IN RE: THE MARRIAGE OF NONA WILSON ALBRECHT, PETITIONER-APPELLANT, AND FRANK ALBRECHT, RESPONDENT-APPELLEE.


Appeal from Circuit Court of Sangamon County. No. 92D1051. Honorable Thomas R. Appleton, Judge Presiding.

Honorable James A. Knecht, J., Honorable Robert J. Steigmann, J., Concurring, Honorable Robert W. Cook, J., Dissenting

The opinion of the court was delivered by: Knecht

JUSTICE KNECHT delivered the opinion of the court:

Petitioner, Nona Wilson Albrecht, appeals portions of the judgment dissolving her marriage to respondent, Frank Albrecht. Petitioner argues the trial court abused its discretion in classifying and dividing the marital property and denying maintenance. We affirm in part, reverse in part, and remand.

Petitioner contends the trial court failed to reimburse the marital estate for marital funds contributed to respondent's nonmarital residence. The parties agree improvements were made to the residence where they lived during the course of the marriage and the improvements were paid for with marital funds. Some of the funds were expended on improvements, and some of the funds were expended on maintenance. Petitioner presented evidence as to the total amount expended on improvements and, additionally, attempted to prove an increase in fair market value for the home as a whole. Respondent disagreed with some of the monetary figures used by petitioner and an increase in fair market value was never proved by competent evidence. The trial court ruled there was no proof of an increase in fair market value attributed to the improvements and gave no contribution to the marital estate for the improvements made to the residence before awarding the residence to respondent as his nonmarital property.

Section 503(c)(2) of the Illinois Marriage and Dissolution of Marriage Act (Act) provides a right to reimbursement for contributionsmade by one estate which have enhanced the value of an item of property classified as belonging to another estate. (Ill. Rev. Stat. 1991, ch. 40, par. 503(c)(2).) The reimbursement is made to the contributing estate, not to the contributing spouse. ( In re Marriage of Morse (1986), 143 Ill. App. 3d 849, 855, 493 N.E.2d 1088, 1092, 98 Ill. Dec. 67.) Reimbursement requires a contribution be traceable by clear and convincing evidence. ( In re Marriage of Guntren (1986), 141 Ill. App. 3d 1, 6, 489 N.E.2d 1120, 1123, 95 Ill. Dec. 392.) Evidence of appreciation in value to a nonmarital residence is not necessary under section 503(c)(2) where a marriage is of short duration and clear and convincing evidence of contributions of marital funds exists. In re Marriage of Adams (1989), 183 Ill. App. 3d 296, 304-05, 538 N.E.2d 1286, 1292, 131 Ill. Dec. 730.

Petitioner's failure to prove the nonmarital residence appreciated in value because of the improvements does not mean the marital estate cannot be reimbursed for contributions to the nonmarital estate. To the extent marital funds were expended to maintain the residence, the marital estate (petitioner and respondent as a couple) derived the benefit of living in a well-maintained and comfortable home. Improvements, which the marital estate also derived some benefit from, will remain with the nonmarital residence after the dissolution. Those improvements may have some value even if they do not cause the nonmarital residence to appreciate in value. Contributions by a marital estate to a nonmarital residence may be reimbursed to the marital estate if proved by clear and convincing evidence, and the contributing estate has not already been compensated. Simply put, it is not equitable to permit the former spouse who owns the nonmarital residence to enjoy the improvements made by marital funds without some reimbursement or credit to the marital estate.

Here, the marriage lasted only six years and petitioner presented evidence in the form of receipts for at least some of the improvements she claims were made. The trial court must determine based on the evidence already presented whether those contributions the marital estate made to respondent's nonmarital residence were clearly proved, and whether the marital estate has already been compensated. The amounts proved as contributed to respondent's house and uncompensated should be credited to the marital estate and divided according to the provisions of section 503 of the Act. Ill. Rev. Stat. 1991, ch. 40, par. 503.

Petitioner also contends the trial court abused its discretion when it awarded the marital property of the parties. The court awarded each party the personal property in his or her possession finding neither party had presented evidence of the fair market valueof the property. The court also awarded petitioner 52% of the marital property other than personal property, or $23,000, payable in monthly installments of $350.

Petitioner testified at the time the parties separated she used respondent's pickup truck and a van to remove personal property from the marital residence. After two trips, respondent would no longer allow her to use his truck. There was no evidence respondent refused to let petitioner remove any more property, only that he would no longer let her use his truck. Petitioner presented the court with a lengthy list of all property still in respondent's possession with monetary values attached to each item and another list with items in her possession. The lists included appliances, furniture, home furnishings, tools and "collections." Petitioner testified some of the values were obtained from original receipts, some from replacement costs. None of the values were current values for the used items. Respondent disagreed with many values and also disputed whether many items were actually purchased during the marriage. It is the obligation of the parties to provide the trial court with sufficient evidence of the value of property. In re Marriage of Wolf (1989), 180 Ill. App. 3d 998, 1006, 536 N.E.2d 792, 797-98, 129 Ill. Dec. 742.

The trial court gave each party the personal property in his or her possession (including motor vehicles), and his or her pension, deferred compensation plan, and bank accounts. Petitioner also received both marital and nonmarital savings bonds. Respondent was ordered to continue making the $411-per-month payments on petitioner's car. The court then looked at the amounts contributed to each party's savings and retirement plans during the marriage, found the contributions to respondent's plans exceeded those to petitioner's, and reimbursed the marital estate for the amount by which respondent's contributions exceeded petitioner's. The court then gave petitioner 52% of the marital estate, or $23,000.

Section 503(d) of the Act directs the court to divide the marital property in "just proportions" after considering all relevant factors, including the value of the property set apart to each spouse, the duration of the marriage, the economic circumstances of each spouse, the reasonable opportunity of each spouse for future acquisition of capital assets and income and each spouse's age, health, employability and sources of income. (Ill. Rev. Stat. 1991, ch. 40, par. 503(d).) Just proportions does not mean strict equality but only an equitable division. ( In re Marriage of Cheger (1991), 213 Ill. App. 3d 371, 381, 571 N.E.2d 1135, 1142, 157 Ill. Dec. 116.) A trial court's distribution of marital property will not be disturbed unless it is an abuse of discretion. In re Marriage of Orlando (1991), 218 Ill. App. 3d 312, 319, 577 N.E.2d 1334, 1340, 160 Ill. Dec. 763; In re Marriage of Partyka (1987), 158 Ill. App. 3d 545, 550, 511 N.E.2d 676, 680, 110 Ill. Dec. 499.

The parties here were married only six years. Most of their capital assets had been acquired prior to the marriage as they were 55 and 56 years old at the time the petition for dissolution was filed. Petitioner was not in good health prior to the marriage and her health problems continued during the marriage. These problems did not prevent her from holding down a job, however, and she testified she had planned to work until 1998 despite her health and only took early retirement along with respondent at his request. Petitioner was no longer employed, while respondent worked part-time as a self-employed handyman earning $300 to $500 monthly.

Petitioner notes respondent received far more items of personal property than she did as more were in his possession. However, parties should not be allowed to benefit on review from failure to introduce evidence at trial ( In re Marriage of Smith (1983), 114 Ill. App. 3d 47, 54, 448 N.E.2d at 545, 550); therefore, a reviewing court will not reverse a trial court where parties have failed to produce evidence of value when there was ample opportunity to do so. ( Wolf, 180 Ill. App. 3d at 1006, 536 N.E.2d at 798.) Respondent's pension and savings plans are greater than petitioner's but most of the contributions to those were made before the marriage. The trial court gave petitioner a greater ...


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