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11/27/95 MARRIAGE IRMA JEAN HOMANN v. MARTIN DAN

November 27, 1995

IN RE: THE MARRIAGE OF IRMA JEAN HOMANN, PETITIONER-APPELLANT,
v.
MARTIN DAN HOMANN, RESPONDENT-APPELLEE.



Appeal from Circuit Court of Coles County. No. 94D126. Honorable Tracy W. Resch, Judge Presiding.

Released for Publication January 4, 1996. As Corrected January 9, 1996.

Justices: Honorable James A. Knecht, P.j., Honorable Robert W. Cook, J., Honorable Frederick S. Green, J., Concurring. Presiding Justice Knecht delivered the opinion of the court:

The opinion of the court was delivered by: Knecht

PRESIDING JUSTICE KNECHT delivered the opinion of the court:

Petitioner, Irma Jean Homann, appeals from the order of the trial court denying her maintenance and ordering partition of the condominium she owned as a tenant in common with the respondent, Martin Homann. Petitioner argues, first, the trial court's order to partition the condominium contravened an agreement not to partition the property implied in an antenuptial agreement between the parties and, second, the trial court's decision denying maintenance was against the manifest weight of the evidence. We affirm.

The parties were married on March 19, 1988. Each had been married previously, and each had survived his or her former spouse. Both petitioner and respondent had children from their previous marriages. On March 18, 1988, the day before the parties were to be married, the couple entered into an antenuptial agreement. This agreement dealt only with disposition of property in the event of death of one or both of the parties. The antenuptial agreement does not refer to the possibility of divorce, the unforeseen eventuality with which we are now concerned. Both parties agree divorce was not contemplated in forming the antenuptial agreement.

Overall, the agreement evinces a scheme to keep all property separate. Any property acquired by either party during the marriage was to be treated as if it had been acquired by that party prior to the marriage. The agreement only provides if one party predeceases the other, the surviving spouse would have a life estate in the condominium, and all other property would remain separate.

The condominium, the property which the respondent sought tohave partitioned during the dissolution proceedings, was originally owned by the petitioner and her children. As part of the antenuptial agreement, respondent agreed to purchase the one-half interest in the condominium from petitioner's children. Shortly thereafter respondent purchased the one-half interest in the condominium, and the couple occupied the property as tenants in common until their separation in June 1994. Petitioner filed for dissolution on March 23, 1994, and respondent filed a complaint for partition of the condominium on August 3, 1994. Dissolution was granted, and the condominium was ordered partitioned on June 7, 1995, after a bench trial.

On appeal, petitioner argues the trial court's order partitioning the condominium violated an implied agreement in the antenuptial agreement not to partition the property. Petitioner contends an implied agreement not to partition can be found in the antenuptial agreement since each party agreed in the document to allow the other to live out his or her life in the condominiumfollowing the death of one of them. We agree with the trial court. No such agreement can be implied.

Generally, tenants in common have an absolute right to partition. ( Heldt v. Heldt (1963), 29 Ill. 2d 61, 63, 193 N.E.2d 7, 8-9; Rosenberg v. Rosenberg (1952), 413 Ill. 343, 346, 108 N.E.2d 766, 768.) While agreements between co-tenants not to partition are valid, the facts must show a basis from which an agreement not to partition may be implied. ( Rosenberg, 413 Ill. at 346, 108 N.E.2d at 768.) In this case, no such facts exist.

While there may have been an implied agreement not to partition the condominium had the parties remained married, any such agreement was impliedly conditioned on a harmonious marriage continuing until the death of one of the parties. Both parties in this case, as well as the attorney who drafted the agreement, admitted dissolution was never considered in drafting the antenuptial agreement. Both parties intended any provision of support in favor of a spouse in the event of the death of the other should be impliedly revoked by a later dissolution of the marriage. The antenuptial agreement in this case was operatively similar to a will--it operated to dispose of property in the event of death. Just as dissolution operates automatically to revoke testamentary gifts in favor of spouses under Illinois law (755 ILCS 5/4-7(b) (West 1994)), the parties to this agreement intended dissolution would impliedly revoke any provision they had made for each other in the event of one of their deaths. Finding the parties had agreed not to partition the condominium, even in the event of dissolution, would lead to a nonsensical result--both parties, if they wished to keep their interest, must live together in the condominium following the dissolution of their marriage, until one of them passed away. Respondent paid a fair price ($38,500) for his interest in the condominium. Both parties admit dissolution was not contemplated in drafting the antenuptial agreement.

Petitioner also argues on appeal the trial court's denial of maintenance was an abuse of discretion and against the manifest weight of the evidence. After analyzing the evidence in light of the statutory factors set out in section 504 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/504 (West 1994)), the trial court found an award of maintenance was unwarranted. Based on the evidence disclosed at trial, the trial court's decision denying maintenance did not amount to an abuse of discretion.

At the time of trial, petitioner was 67 years old and respondent was 84. Neither party was employed at the time of trial. Petitioner had recently quit a part-time secretarial job at St. Paul's Lutheran Church (church) after the church requested she work more hours. Petitioner testified she quit work so she could travel to see her daughter in Belgium. Respondent is a farmer who retired prior to the marriage.

Both parties have considerable assets, although respondent has substantially more than petitioner. Respondent testified he received approximately $14,000 per year as income from his farm, $5,400 per year in interest, and $11,700 per year in social security. He testified he was also the beneficiary of two trusts established by his deceased wife in his favor in the amount of $16,000 per year. Respondent's financial affidavit showed some $228,000 in savings and share accounts. Respondent estimated his monthly income to be approximately $3,370. He estimated his expenses at $2,045 per month. In computing these expenses, respondent included $116 per month as gifts to his church and $1,000 per month as gifts to his children. He testified he was giving his daughter $10,000 per year as the ...


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