Berg v. Berg

• Decision Date: 28 January 1977
• Docket Number: No. 76--40,76--40
• Citation: 359 N.E.2d 892,45 Ill.App.3d 422,4 Ill.Dec. 59
• Parties: , 4 Ill.Dec. 59 Edward BERG, Plaintiff-Appellee, v. Rosa Lee BERG, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 892

359 N.E.2d 892

45 Ill.App.3d 422, 4 Ill.Dec. 59

Edward BERG, Plaintiff-Appellee, v. Rosa Lee BERG, Defendant-Appellant.

No. 76--40.

Appellate Court of Illinois, Second District, First Division.

Jan. 28, 1977.

Berry & Berry, James A. Piszczor, Rockford, for defendant-appellant.

Rolland J. McFarland, Rockford, for plaintiff-appellee.

GUILD, Justice.

The sole question presented this court is whether there may be a monetary award for homestead in a partition sale between joint tenants.

The parties herein were divorced on January 10, 1973. Disposition of the real property was reserved for the further order of the court. Edward Berg, the plaintiff, resided in the residence, title to which was in the defendant, Rosa Lee Berg, plaintiff's former wife, and plaintiff, as joint tenants. Some months later Edward Berg filed a suit for partition and a decree of partition was entered on November 7, 1974, ordering that each party was entitled to one-half of the proceeds from the sale of the premises. On July 24, 1975 the plaintiff moved to vacate the decree for partition contending that he was entitled to a homestead of $10,000. The court granted the motion and ordered that $10,000 be set aside from the proceeds for his homestead. A motion to vacate this order was denied and the defendant appeals, alleging that neither party could assert any right to homestead against the other.

At the outset there appears to be somewhat of a conflict of authority in the State of Illinois on the question of a monetary award for homestead. This is particularly so in cases involving parties who were formerly husband and wife, one of whom resides in the joint tenancy property of the parties at the time of the divorce or subsequent thereto. The conflict stems from the interpretation of Ill.Rev.Stat. (1973), ch. 52, § 1. The statute presently reads as follows:

'Every householder having a family shall be entitled to an estate of homestead to the extent in value of $10,000, in the farm or lot of land and buildings thereon owned or rightly possessed by lease or otherwise and occupied by him or her as a residence; and such homestead, and all right and title therein, shall be exempt from attachment, judgment, levy or execution sale for the payment of his debts or other purposes and from the laws of conveyance, descent and devise, except as hereinafter provided or as provided in Section 234 of the Probate Act, as heretofore or hereafter amended. This section is not applicable as between joint tenants or tenants in common but it is applicable as to any creditors of such persons.' (Emphasis added.)

The last sentence of this section was added by the legislature in 1965. In this court's opinion the statute provides for an exemption of the homestead from attachment, judgment, levy or execution sale for the payment of debts or other purposes just as the title of the chapter reads. It is not a monetary award of homestead which may be asserted between the parties. As pointed out in Gottemoller v. Gottemoller (1976), 37 Ill.App.3d 689, 693, 346 N.E.2d 393, 396:

'The exemption which we have been discussing is actually created as a protection against third-party creditors, and is not an interest to be recognized as between joint tenants or tenants in common (Ill.Rev.Stat.1973, ch. 52, § 1). We, therefore, tend to question whether the homestead estate or exemption is even a cognizable interest to be bandied about between husband and wife, when they are equal owners of the property.'

With this we agree, notwithstanding the fact that many courts have in fact discussed the homestead interest based upon the exemption against creditors cited above.

In connection with this issue counsel for the plaintiff has cited the following cases as perhaps controlling: Brod v. Brod (1945), 390 Ill. 312, 61 N.E.2d 675; Wiegand v. Wiegand (1952), 410 Ill. 533, 103 N.E.2d 137; Taylor v. Bukowski (1960), 19 Ill.2d 586, 169 N.E.2d 89; Heldt v. Heldt (1963), 29 Ill.2d 61, 193 N.E.2d 7. We do not find these cases applicable to the case before us because...