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In re Marriage of Slesser

Court of Appeals of Illinois, Second District

September 10, 2019

In re MARRIAGE OF DONNA SLESSER, Petitioner-Appellee, and JAMES D. SLESSER, Respondent-Appellant.

          Appeal from the Circuit Court of Du Page County. No. 15-D-2434 Honorable John W. Demling, Judge, Presiding.

          JUSTICE HUTCHINSON delivered the judgment of the court, with opinion. Presiding Justice Birkett and Justice Schostok concurred in the judgment and opinion.



         ¶ 1 Respondent, James D. Slesser, appeals the trial court's findings in its judgment for the dissolution of his marriage to petitioner, Donna Slesser. Specifically, respondent contends that the trial court (1) incorrectly interpreted his authority pursuant to his father's trust, the Revocable Living Trust of James A. Slesser; (2) incorrectly interpreted his authority under his mother's trust, the Revocable Living Trust of Dorothy M. Slesser; (3) ignored his responsibilities as trustee of both trusts; (4) applied the wrong legal standard when it looked beyond the "four corners" of lien documents in determining that the validity of alleged loans had not been shown by a preponderance of the evidence; and (5) erred in determining the fair-market value of marital property known as Lot 7. For the reasons that follow, we affirm.

         ¶ 2 I. BACKGROUND

         ¶ 3 Petitioner and respondent were married on September 27, 1980. In late 1991 or early 1992, respondent incorporated JDS Homes, a construction business. In 2006, JDS Homes purchased a parcel of land in Burr Ridge known as the Crosscreek Subdivision. The land was divided into 10 separate lots. With the exception of Lot 7, all of the lots were developed and sold. In 2012, respondent incorporated JDS Home Builders. Lot 7 is the primary asset of JDS Homes and JDS Home Builders.

         ¶ 4 On December 1, 2015, petitioner filed for dissolution of the marriage. On July 27, 2017, respondent filed an amended petition for declaratory judgment. In his petition, respondent alleged:

"During the development of the Crosscreek Subdivision, hundreds of thousands of dollars were loaned to JDS by two trusts established by [respondent's] parents, the Revocable Living Trust of James A. Slesser dated December 13, 1991[, ] and the Dorothy M. Slesser Trust dated December 13, 1991, *** and were used by JDS to make interest and required principal payments on the Hinsdale Bank loan, real estate tax payments on the Crosscreek Subdivision property, and fees and miscellaneous expenses related to the Hinsdale Bank loan."

         Respondent further alleged that the funds from his parents' trusts were "transferred to collateral accounts established at Wayne Hummer for the benefit of each trust, then to a holding account at Hinsdale Bank and, finally, disbursed as needed for the various expenses related to the Hinsdale Bank loan and the development of the Crosscreek Subdivision property." Respondent then averred that "the loans from the Slesser Trusts to JDS were memorialized in two separate mortgages for $300, 000 each, both of which were recorded against the undivided Crosscreek land parcel on or about February 5, 2010." Respondent sought a declaration that the funds transferred from his parents' trusts created valid and enforceable liens for $300, 000 each against Lot 7, "as marital liabilities subject to equitable allocation between the parties as part of the overall division of the marital estate."

         ¶ 5 On August 23, 2017, petitioner filed her response to respondent's petition. She denied its allegations and demanded strict proof, as respondent had not provided copies of bank statements reflecting that the funds were loaned from the trusts and that deposits were made into either a collateral account or a holding account. Petitioner further stated that the mortgages recorded against Lot 7 were not legitimate loans, because they were intended to benefit respondent.

         ¶ 6 The trial court ordered respondent's petition for declaratory judgment to be taken with the trial. The trial was held October 2 through 5, 2017. The trial court's findings on the effect and validity of the liens recorded against Lot 7 are the crux of this appeal. We will limit our recitation of the facts and the evidence presented at trial to those surrounding that issue.

         ¶ 7 Respondent's Exhibit No. 30 was his father's trust. Respondent's father was named trustee, with respondent named as trustee in the event that his father was unable to properly manage his affairs. Under article I of the trust, the trustee was provided with the power to "withdraw any part of all of the net income or principal of the trust."

         ¶ 8 Respondent's Exhibit No. 31 was the first amendment to his father's trust, dated July 2, 1998. The amendment replaced the second paragraph of article V with the following provision: "If I predecease my spouse, at the time of my death the trustee shall divide the trust property into two separate trusts known as the Marital Trust and the Family Trust ***."

         ¶ 9 Respondent's Exhibit No. 32 was a 2005 amendment to his father's trust. In that amendment, respondent's father changed the trustee designation to name himself and respondent as co-trustees. That amendment also deleted article I of the trust in its entirety and replaced it with the following:

"The trustee shall have the power to withdraw any part or all of the net income and principal of the trust for any benefit. Any net income not withdrawn shall be added to the principal. *** In all cases, any acting trustee may sign for my trust, solely and without the signature of the other trustee. Only one signature of an acting trustee is ...

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