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In re Marriage of Gattone

November 15, 2000


Appeal from the Circuit Court of Carroll County. Nos. 98--D--25 98--D--37 Honorable Richard E. DeMoss, Judge, Presiding.

The opinion of the court was delivered by: Presiding Justice Bowman

On September 7, 1999, the circuit court of Carroll County entered a judgment dissolving the marriage of petitioner, Michael Gattone (Michael), and respondent, Connie Gattone (Connie). Michael appeals, arguing that the trial court erred by (1) designating certain real estate and a joint stock account as marital property; (2) awarding Connie a larger share of the marital estate than Michael; (3) awarding Connie maintenance and ordering Michael to pay for her health insurance; and (4) ordering Michael to pay $9,500 toward Connie's attorney fees as a sanction for violating a court order that prohibited dissipation of the marital estate. We affirm the trial court in part and reverse in part.

Michael and Connie met in October 1994 and married on January 14, 1995. Michael filed a petition for dissolution on June 26, 1998, and Connie filed her own petition for dissolution on July 29, 1998. They did not have any children together but each had children by a prior marriage. At the time of the dissolution, Michael was 53 and Connie was 52.

The parties' testimony revealed that prior to the marriage Connie lived and worked in Wisconsin. She owned a house there and a car. She worked two part-time jobs at a hospital. Through her employment she had health insurance and a retirement plan. When Connie married Michael, she quit her jobs and moved to Michael's house in New Lenox, Illinois. Connie testified that she wanted to find new employment but Michael insisted that she stay at home. After she and Michael separated, Connie worked as a bartender.

When the parties met, Michael was recuperating from injuries he sustained in a car accident that occurred on July 4, 1994. The accident claimed the life of Michael's then wife, Lynne. After the accident, Michael retired from his job with Ameritech and took a lump-sum settlement of $180,000 from his retirement plan. He placed those funds in an individual retirement account (IRA) in his name. The IRA remained in Michael's name throughout his marriage to Connie. At the time of the dissolution, the value of Michael's IRA was $800,000. Michael received monthly distributions from his IRA in the amount of $1,500.

Michael also received a settlement of approximately $175,000 as a result of the accident. He deposited the settlement funds in a joint stock account, which the parties referred to as the "Active Assets Account" (AAA account). The AAA account was in both Michael's and Connie's names. The parties stipulated that the AAA account had a value of $130,000 at the time of the dissolution.

Shortly after Michael and Connie married, Michael sold his home in New Lenox as well as property he owned in Wisconsin. He received approximately $180,000 from the sale of these properties. In August 1995, Michael and Connie bought a house in Savanna, Illinois, for which they paid $57,500. They later bought an adjacent piece of property and built a carriage house on it. They spent $75,000 for improvements on the home and the carriage house (collectively, the Savanna property). Michael testified that all of the funds used for the purchase and improvement of the Savanna property came from the sale of the properties he owned prior to the marriage. Because Michael was physically unable to do so, Connie performed most of the maintenance on the Savanna property, including mowing part of the lawn, shoveling snow, cleaning the gutters, and cleaning the inside of the house. At the time of the dissolution, the value of the Savanna property was $175,000.

Approximately one year into the marriage, Connie sold her house in Wisconsin and received proceeds of $28,600 from the sale. Connie testified that Michael did not want to keep any of the furniture or household items from her Wisconsin house, so she gave them away. After paying bills, she initially put the remaining money in an account solely in her name. She later transferred the money, about $17,000, to the AAA account.

The parties owned a number of different vehicles at the time of the marriage's dissolution. One of those vehicles was a 1994 Lexus. The Lexus was the last in a succession of vehicles the parties bought and then traded in for different vehicles. Prior to the marriage, Connie owned a Toyota Camry. When she moved to Illinois, Michael told Connie to leave the Camry in Wisconsin, which she did. When Connie sold her Wisconsin home, she and Michael used the Camry as a trade-in on a new car, a Corvette that Michael selected. They later traded in the Corvette for a Lincoln Towncar, and then traded the Towncar in for the Lexus. Connie testified that she wanted another Toyota Camry instead of a Lexus, but Michael insisted on buying a more expensive car. Connie said that Michael did not let her drive the Lexus. It was titled in both parties' names.

Michael testified that prior to the marriage he owned a 1961 Corvette with current value of $20,000. After he and Connie married, he added Connie's name to the title. During the marriage, he purchased a pontoon boat for $17,000 and a jet ski for which he paid $7,500.

Both parties testified that they had some health problems during the marriage. When Michael and Connie met, Michael was still recuperating from the injuries he sustained in the car accident and was in a wheelchair. He had surgery one week after he and Connie were married and was on crutches for several months. Later, he broke his leg in two places and was incapacitated for almost a year because he had a difficult time healing.

Connie testified that the health problems she experienced during the marriage included depression that required hospitalization, asthma, and a prolapsed heart valve. She stated that she took thyroid medication and antidepressants. Connie testified that she expected to have to return to work and that there was no reason why she could not work.

On cross-examination, Michael acknowledged that he had incurred credit card debt after he and Connie separated. After the petitions for dissolution were filed, the parties agreed that each would take $15,000 from the AAA account for their living expenses. Later, they each took an additional $5,000. In addition, Michael received $1,500 per month from his IRA.

After he and Connie separated, Michael bought his girlfriend a fur coat and a ring, lent his girlfriend $6,000 toward the purchase of a car, and paid for the first six months of her car insurance. He also spent over $2,000 on jewelry for his girlfriend's daughter. Michael admitted that he had paid approximately $24,000 on his credit cards since the separation. He testified that the funds he used to make these payments came either from the $20,000 he received pursuant to the parties' agreement or from the income he received from his IRA.

After hearing the parties' testimony, the court declared that the IRA worth $800,000 was Michael's non-marital property and awarded it to him. The court further determined that the Savanna property and the AAA account were marital property. Connie received the Savanna property in its entirety and $50,000 from the AAA account. Michael received the remaining $80,000 from the AAA account. The court awarded the Lexus to Connie and ordered Michael to make the remaining payments on it. Michael received the pontoon boat, jet ski, and 1961 Corvette. The court ordered Michael to pay Connie maintenance of $1,000 for 72 months and to maintain medical insurance for Connie until she qualifies for Medicare or is able to obtain medical insurance through employment. Michael filed a timely notice of appeal from the trial court's judgment of dissolution.


Michael disputes the trial court's classification of the Savanna property and the AAA account as marital property. He argues that the money that funded the AAA account and was used to purchase the Savanna property was traceable entirely to his non-marital assets; therefore, the court should have deemed the Savanna property and the AAA account non-marital property.

Before disposing of property upon a dissolution of marriage, the trial court must first classify the property as marital or non-marital. In re Marriage of Hagshenas, 234 Ill. App. 3d 178, 186 (1992). A reviewing court will not disturb the trial court's classification unless it is contrary to the manifest weight of the evidence. Hagshenas, 234 Ill. App. 3d at 186.

Pursuant to section 503(b)(1) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/503(b)(1) (West 1998)), there is a rebuttable presumption that all property acquired by either spouse after the marriage and before a judgment of dissolution of marriage, including non-marital property transferred into some form of co-ownership between the spouses, is marital property. A party may overcome this presumption by showing by clear and convincing evidence that the property falls into one of the categories listed in section 503(a) of the Act (750 ILCS 5/503(a) (West 1998)). Hagshenas, 234 Ill. App. 3d at 186. One such category is "property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, legacy or descent." 750 ILCS 5/503(a)(2) (West 1998).

Property designated as non-marital under section 503(a) may still be presumptively transmuted into marital property by an affirmative act of the contributing spouse, such as placing non-marital property in joint tenancy or some other form of co-ownership with the other spouse. In re Marriage of Cecil, 202 Ill. App. 3d 783, 787 (1990). This raises the presumption that the contributing spouse made a gift of the property to the marital estate. Cecil, 202 Ill. App. 3d at 787. The contributing spouse may overcome this presumption by presenting clear and convincing evidence that he or she did not intend to make a gift of the non-marital property. Cecil, 202 Ill. App. 3d at ...

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