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In re Marriage of Christine Gurda

April 23, 1999

IN RE MARRIAGE OF CHRISTINE GURDA, PETITIONER-APPELLEE,
v.
JOZEF GURDA, RESPONDENT-APPELLANT



The opinion of the court was delivered by: Justice Buckley

Appeal from the Circuit Court of Cook County Charles E. Porcellino, judge Presiding

In 1994, Christine Gurda filed a petition for dissolution of her marriage to Jozef Gurda. After a trial in the circuit court of Cook County, domestic relations division, the trial Judge decided the following: (1) the content of Jozef's individual retirement account (IRA) is marital property; (2) all remaining property is marital property subject to a distribution in the amount of $218,927.80; (3) Jozef dissipated net funds totaling $188,100.57; (4) Christine should be paid rehabilitative maintenance in the amount of $400 biweekly; and (5) Jozef was ordered to surrender his passport to the clerk of the circuit court until the terms of the judgment were satisfied. Jozef appeals the judgment of the circuit court and maintains: (1) the circuit court erred in finding the IRA to be marital property; (2) the circuit court erred in finding that he dissipated $188,100.57; (3) the circuit court erred in awarding rehabilitative maintenance; (4) the circuit court erred in excluding evidence of whether he knew of his former attorney's five-year suspension from the practice of law; and (5) the circuit court improperly impounded his passport. For the following reasons, we affirm in part and reverse in part.

BACKGROUND

Christine and Jozef married in 1975. Each had one child from a prior marriage. Together they had one child, Michelle, who was 20 years old at the time of the trial and emancipated from her parents. Christine had previously filed dissolution proceedings in 1985 and 1991 but withdrew both petitions.

Both Christine and Jozef worked while they were married. Jozef worked as a crane operator, as a machine operator, and most recently, as a serviceman for United Airlines (United). His gross monthly pay at United was $3,932.77. Christine first worked as a cleaning person and then later as an assembler. Her gross pay at the time of trial was $2,127.86 per month.

While working as a crane operator, Jozef suffered an injury which led to the loss of a finger and loss of use of another finger. He received $131,000 as settlement of a product liability lawsuit and another $39,200 for settlement of his workers' compensation claim. Jozef testified at trial that he never told Christine about receipt of either settlement.

In 1991, Christine and Jozef sold real estate that they owned together and deposited the proceeds in Jozef's credit union account. After making the deposit, there was $126,000 in the account, but Jozef withdrew approximately $120,000 and deposited it in an account at Northwest Savings and Loan. He testified that he never told Christine he had withdrawn the funds from the credit union account. In 1992, Jozef applied for a home equity loan. He ultimately received a $53,000 loan but never told Christine what he was doing with the money.

After Christine dismissed her second dissolution petition, Jozef made several investments with the assistance of his attorney, James Reagan (Reagan). According to testimony elicited at trial, Jozef opened an account in the Cayman Islands in 1992 and invested $321,000 in a company called Miller Draperies Manufacturing, Incorporated (Miller, Inc.).*fn1 He later received notice that Miller, Inc., was going through bankruptcy and that Reagan was a shareholder in Miller, Inc., but he never filed an appearance in the bankruptcy action. Jozef only received $39,436.69 in principal payments and $90,614.19 in interest payments in return for his investments.

On April 21, 1993, Jozef arranged a new mortgage on the marital residence. As part of the transaction, he placed the property in a land trust and named himself as the sole beneficiary. He authorized the trustee to deed the property to United Limited, a limited partnership. He never told Christine about this transaction and in 1995, Jozef signed a deed as president of United Limited, deeding the marital residence back into the names of both Jozef and Christine.

Following presentation of this evidence, the circuit court entered a judgment of dissolution of marriage and ordered Jozef to pay Christine $218,927.80.

ANALYSIS

I. IRA

Jozef first argues that the circuit court erred in classifying his IRA as marital property. Specifically, he asserts that Christine signed a consent form relinquishing her interest in the IRA. We disagree.

Before a court may dispose of property upon dissolution of marriage, the property must be classified as either marital or non-marital. In re Marriage of Jelinek, 244 Ill. App. 3d 496, 503 (1993). The trial court's classification will not be disturbed on appeal unless it is contrary to the manifest weight of the evidence. Jelinek, 244 Ill. App. 3d at 503.

Section 503 of the Illinois Marriage and Dissolution of Marriage Act (the Dissolution Act) provides that " 'marital pro-perty' means all property acquired by either spouse subsequent to the marriage, except *** property excluded by valid agreement of the parties." 750 ILCS 5/503(a)(4) (West 1996). The statute creates a presumption that "all property acquired by either spouse after the marriage and before a judgment of dissolution of marriage or declaration of invalidity of marriage *** is presumed to be marital property." 750 ILCS 5/503(b) (West 1996). This presumption is only overcome by a ...


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