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In Re Marriage of Linda Mcbride v. Kevin Mcbride

May 14, 2013

IN RE MARRIAGE OF LINDA MCBRIDE, PETITIONER-APPELLEE,
v.
KEVIN MCBRIDE, RESPONDENT-APPELLANT.



Appeal from the Circuit Court of Cook County. No. 09 D 3441 Honorable Renee Goldfarb, Judge Presiding.

The opinion of the court was delivered by: Justice Simon

JUSTICE SIMON delivered the judgment of the court, with opinion.

Presiding Justice Harris and Justice Quinn concurred in the judgment and opinion.

OPINION

¶ 1 Petitioner Linda McBride filed a petition for dissolution of marriage against respondent Kevin McBride on April 14, 2009. Following extensive discovery and motion practice, a trial was held concerning issues relating to the care of the parties' three children and the division of assets. Judgment for dissolution was granted on July 8, 2011.

¶ 2 Respondent now appeals, challenging portions of the trial court's conclusions concerning the division of property. Respondent first claims that the trial court erred in ruling that petitioner did not evidence an intent to gift the estate by signing a quitclaim deed to the 3312 North Seeley Avenue, Chicago, Illinois, property (3312 North Seeley) which she purchased prior to the marriage and classifying the property as non-marital property. Next, he asserts that the trial court erred in determining that petitioner's loans to family were not a dissipation of marital funds. Respondent also contends that the trial court erred in considering a predissolution agreement of the parties evenly dividing the funds from their joint brokerage account. For the following reasons, we affirm in part and reverse in part the judgment of the trial court and remand with directions.

¶ 3 I. BACKGROUND

¶ 4 On April 14, 2009, petitioner filed the underlying petition for dissolution of marriage. Petitioner alleged that the parties were married on September 18, 1993, but had separated in March 2008 when she and the parties' three adopted sons moved out. Respondent remained in the marital residence at 3316 North Seeley Avenue, Chicago, Illinois. Petitioner alleged that irreconcilable differences had caused an irretrievable breakdown of the marriage and sought, inter alia, dissolution of the marriage, a fair and reasonable sum of maintenance for petitioner and support for the children from respondent, assignment of non-marital property, and an award of a just proportion of the marital property. Petitioner also asserted a count sounding in breach of fiduciary duty and fraud, claiming that, through the fiduciary relationship of the parties, respondent deceived petitioner into signing a quitclaim deed for her non-marital property at 3312 North Seeley, thereby placing the property into joint tenancy.

¶ 5 On July 13, 2010, petitioner filed an amended petition for dissolution of marriage. Petitioner deleted the second count for breach of fiduciary duty and fraud. Petitioner did not mention the 3312 North Seeley property in the amended petition. However, she also filed a petition for partition of real estate seeking her just proportion of the properties located at 3312 and 3316 North Seeley Avenue, stating that the parties became co-owners by a deed of conveyance.

¶ 6 On August 16, 2010, petitioner filed a second amended petition. Petitioner alleged that the 3312 and 3316 North Seeley properties had appraised for $320,000 and $400,000, respectively, and a potential buyer had offered to purchase both for $825,000, but respondent had dissipated marital assets by refusing to sign a contract for that sale. Petitioner also filed an emergency petition to mandate respondent to sign real estate contracts, or have the court execute the contracts, for the 3312 and 3316 North Seeley properties to accept a new offer for $900,000 for the two properties. That emergency petition was denied and the matter advanced to trial without either property being sold.*fn1

¶ 7 At trial, the evidence showed that petitioner purchased 3312 North Seeley in 1988 for $49,900. Petitioner purchased the property with her own funds and in her own name. Respondent moved in with petitioner at 3312 North Seeley in 1990 and they were married in September 1993. Before the marriage, petitioner paid for all of the house expenses from her own bank account, including while she and respondent lived there. After their marriage, the parties set up a joint account, deposited their paychecks into that account and paid for all their expenses from that account.

¶ 8 On the date of their marriage, respondent's personal bank account had a value of approximately $142,000. In January 1994, respondent withdrew $42,762.78 from that account to pay off petitioner's mortgage on 3312 North Seeley. In 1996, the parties purchased the adjacent property at 3316 North Seeley Avenue. Title in that property was in both parties' names and they moved into the house on that property. In 2002, the parties adopted their three sons from Russia and the family resided at 3316 North Seeley.

¶ 9 During the course of the marriage, petitioner maintained the couple's checking account and paid all the bills, with the exception of occasional checks that respondent would write for Boy Scout outings or similar events. Marital funds were utilized to pay the real estate taxes, utilities, repairs and improvements on both their properties. Title to 3312 North Seeley remained solely in petitioner's name.

¶ 10 In 2006, the parties mutually agreed to loan $8,600 to an acquaintance that was never repaid. Also around this time, petitioner lent her brother Steven a total of $5,000 and her brother Jim $1,200 without respondent's knowledge. Petitioner testified that those funds were repaid in 2006.*fn2

¶ 11 In March 2007, petitioner moved $50,000 of marital funds, without respondent's knowledge, into a new bank account in Michigan with her mother and brothers listed as account owners. At trial, $30,000 remained in this account after petitioner had withdrawn $8,000 to pay real estate taxes for 3312 North Seeley and $10,000 to pay attorney fees.

¶ 12 Petitioner testified that she retained a divorce attorney in January 2008. She met again with her attorney in March 2008 before telling respondent that she wanted a separation. That same month, petitioner and the children moved out of the marital residence. Respondent remained at the marital residence.

ΒΆ 13 On October 4, 2008, petitioner incorporated her business, PMJ Lexical, Inc., and set up a business checking account. All of her earnings were subsequently deposited into that account. Later that month, without discussion with respondent, petitioner utilized $12,000 in marital funds to ...


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