Gottemoller v. Gottemoller

• Citation: 346 N.E.2d 393,37 Ill.App.3d 689
• Decision Date: 14 April 1976
• Docket Number: No. 74--383,74--383
• Parties: Dorothy GOTTEMOLLER, Plaintiff-Appellee, Counter Appellant, v. James GOTTEMOLLER, Defendant-Appellant, Counter Appellee.
• Court: United States Appellate Court of Illinois

Page 393

346 N.E.2d 393

37 Ill.App.3d 689

Dorothy GOTTEMOLLER, Plaintiff-Appellee, Counter Appellant, v. James GOTTEMOLLER, Defendant-Appellant, Counter Appellee.

No. 74--383.

Appellate Court of Illinois, Third District.

April 14, 1976.

Rehearing Denied May 25, 1976.

Gerald M. Hunter, Oglesby, of counsel, for defendant-appellant, counter appellee.

R. J. Lannon, Jr., LaSalle, of counsel, for plaintiff-appellee, counter appellant.

ALLOY, Presiding Justice:

Plaintiff Dorothy Gottemoller appeals from a decree of the Circuit Court of La Salle County in a divorce action with respect to a division of property owned by the parties. Defendant James Gottemoller has cross-appealed as to the custody of the three youngest children.

Plaintiff was awarded a divorce from her husband on the ground of mental cruelty. Custody of the three youngest minor children was given to the plaintiff, while custody of the three oldest minor children was vested in the father. The parties to the action were married on December 29, 1951, and lived together until approximately June 30, 1973, when plaintiff separated herself from defendant and moved to Urbana, Illinois. At the time of the divorce action the parties owned two parcels of real estate as tenants in common. This ownership consisted of the marital residence in Streator, Illinois, and a professional office building in Streator, Illinois.

The record in this case discloses that all monies invested in these parcels came from the earnings of defendant James Gottemoller, with the exception of down payments made with funds provided by plaintiff. With respect to the home-marital residence, plaintiff provided $15,000 (a gift from her father), as a down payment. Defendant testified that $4,000 of this sum was used to purchase furniture for the house. As to the professional building, plaintiff made a loan of $14,345.25 as against her interest in an insurance policy on the life of defendant. This policy had been given to her by defendant and all premiums thereon had been paid by defendant. The proceeds of the loan were used as a down payment on the professional building.

The trial court found the value of both properties to be in the total sum of $83,000 and determined that plaintiff had no special equity in either parcel over and above her one-half share in each. The parties had agreed in advance of the hearing that plaintiff would transfer her interest in both pieces of real estate to defendant, for reimbursement for the value of her share as determined by the court. Plaintiff was therefore ordered to transfer here interest in the property to the defendant in return for the payment by defendant to her of $41,500.

On appeal in this Court, plaintiff contends that the court was in error in not granting her homestead rights in the marital residence and in failing to consider her special equity in the properties by reason of the monies paid as down payments.

The concept of 'special equities' stems from Section 17 of the Divorce Act (Ill.Rev.Stat., 1973, ch. 40, § 18). On the basis of such provision, the trial court is authorized to order a transfer of property, aside from alimony or property settlement, where it appears that one party holds title to property which belongs equitably in whole or in part to the other. To obtain the transfer under Section 17, a party must show that he or she has furnished valuable consideration, such as money or services, over and above the usual contributions arising out of the marital relationship, which was directly or indirectly used to acquire or enhance the value of the property held in the name of the other. (Everett v. Everett (1962), 25 Ill.2d 342, 347, 185 N.E.2d 201).

The down payment on the marital residence could qualify as a special contribution under Section 17, if the premises were solely in the name of the defendant. The down payment on the office building (which stemmed from a gift plaintiff received from her husband--the insurance policy) would not have the equitable characteristics which would justify its classification in this manner. In any event, these contributions are reflected in the ownership of the land. Plaintiff and defendant each now own an undivided one-half interest in each parcel. It appears, therefore, in addition to the downpayments totalling $29,345.25, plaintiff had received a gift in the property from her husband sufficiently to vest her with a full one-half interest in the real estate worth $83,000. In the absence of some clear indication from the record that defendant intended to convey a half interest in both parcels to his wife, In addition to the interest represented by her monetary contributions, we believe that the trial court was clearly correct in ordering a division of the property into two equal shares.

It is notable that plaintiff, in effect, contends that defendant gave her a one-half share of his interest in the property (the interest in the property represented by payments from his earnings), but that she, the plaintiff, did not intend the same result with her interest in the property (represented by her contributions). Nothing in the record sustains such contention which would treat the two parties' financial contributions differently. The trial court ruling, that plaintiff had received a share of the property representing her actual monetary contribution plus a further gift on the part of defendant to create an equal ownership of the property, is supported by the record. We do not believe it is equitable, on the basis of the record that plaintiff receive a further share under Section 17 of the Divorce Act.

Plaintiff also complains that the trial court failed to award her a right of homestead in the marital residence or a monetary amount commensurate therewith. In view of the fact that the parties had agreed that defendant would continue to occupy the marital residence (since plaintiff had moved to Urbana), what plaintiff is actually seeking is an award of $10,000 against her husband, representing the full extent of the homestead exemption provided by statute. (Ill.Rev.Stat., 1973, ch. 52, § 1). It is difficult to divine upon what basis plaintiff relies for her contention that the trial court could award her $10,000, presumably representing the homestead estate. The Homestead Act provides that, in a divorce case, the court may dispose of the homestead estate according to the equities (Ill.Rev.Stat., 1973, ch. 52, § 5). The term 'homestead estate' could refer to the exemption provided in § 1 of the Act, or to the marital residence. In the event the reference is to the marital residence, the section would not be authority for the divorce court to order defendant to pay plaintiff a sum representing the homestead exemption, over and above such share in the residence as plaintiff is otherwise found to be entitled.

Plaintiff cites Klebba v. Klebba (5th Dist., 1969), 108 Ill.App.2d 32, 246 N.E.2d 681, in support of her theory. In that case the court said that where an innocent wife obtains a divorce and custody of the children, and Continues to occupy the premises, she is entitled to the homestead exemption therein even though title to the residence remains in the husband. This follows from the definition of the homestead exemption in chapter 52, § 1 (Ill.Rev.Stat., 1973, ch. 52, § 1). A householder having a family and occupying the premises as a residence is entitled to the homestead exemption. Under the rule referred to, the claim of exemption would be related to possession of the premises. The court in Klebba, however, went on to attempt to explain the rule and said that if the wife is 'innocent' and is given custody of the children, but the trial court finds it necessary to allow the husband to remain in the marital residence, the court must balance the equities 'in such a manner as to compensate plaintiff for her loss of homestead.' (108 Ill.App.2d 38, 246 N.E.2d 683).

The Klebba case does not expressly authorize an award to the wife equal to the homestead exemption as a means of such compensation, and, in fact, such an award might not be sufficient in some cases. A further distinguishing factor, with which the court was apparently concerned in the instant case, was that plaintiff did not receive custody of all the children but only three of the eight. Defendant is continuing to occupy the marital residence in Streator with several of the children and would still be entitled to a homestead exemption under the Homestead Act, unlike the husband in Klebba. In the Klebba case, the court found that the wife was now the householder and the husband was not. In the case before us we could, at the most, theoretically determine that both parties are now householders, since two families have been created out of one, and each is entitled to a homestead exemption under the Act.

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.

In the earlier case of La Placa v. La Placa (1955), 5 Ill.2d 468, 126 N.E.2d 239, in which the court determined that where the separated parties occupied different portions of the residence, in which they had roughly equal investments and held in joint tenancy, neither was entitled to assert the homestead exemption as against the other. Even if the homestead exemption was considered a concrete right in the situation before us, which is to be awarded to the appropriate party, we believe that the court effectively followed the rule of balancing the equities in finding that plaintiff was entitled to compensation for a full one-half...