Marriage of Marsh, In re

• Decision Date: 06 October 1978
• Docket Number: No. 14853,14853
• Citation: Marriage of Marsh, In re, 381 N.E.2d 804, 64 Ill.App.3d 572, 21 Ill.Dec. 477 (Ill. App. 1978)
• Parties: , 21 Ill.Dec. 477 In re the MARRIAGE OF Janice MARSH and Frederick E. Marsh and the support and custody of Curtis Lewis Marsh and Janice Lynn Marsh. Janice MARSH, Petitioner-Appellant, v. Frederick E. MARSH, Respondent-Appellee.
• Court: Appellate Court of Illinois

Page 804

381 N.E.2d 804

64 Ill.App.3d 572, 21 Ill.Dec. 477

In re the MARRIAGE OF Janice MARSH and Frederick E. Marsh and the support and custody of Curtis Lewis Marsh and Janice Lynn Marsh Janice MARSH, Petitioner-Appellant, v. Frederick E. MARSH, Respondent-Appellee.

No. 14853.

Appellate Court of Illinois, Fourth District.

Oct. 6, 1978.

Rehearing Denied Nov. 8, 1978.

Hatch & Baker, Champaign, for petitioner-appellant.

Rosenberg, Rosenberg, Bickes & Johnson, Chartered, Decatur, for respondent-appellee.

GREEN, Presiding Justice:

On December 27, 1977, a decree was entered in the circuit court of Douglas County dissolving the marriage of petitioner Janice Marsh and respondent Frederick E. Marsh, providing for the custody of their children, dividing their property and awarding petitioner child support and maintenance. Petitioner appeals from the portion of the decree awarding respondent an 8-acre tract of land. Respondent cross-appeals from the award of maintenance to petitioner.

Petitioner asserts that (1) the trial court's application of the Illinois Marriage and Dissolution of Marriage Act (Ill.Rev.Stat.1977, ch. 40, pars. 101 Et seq.) to the disposition of property deprived her of due process of law, (2) she was the beneficiary of a resulting trust of the 8-acre tract, (3) the court's finding that respondent had repaid her for money she advanced to buy the tract was contrary to the manifest weight of the evidence, and (4) respondent should not have been permitted to introduce evidence of repayment because he had not pleaded it. Respondent maintains that no proper showing was made that petitioner was entitled to maintenance.

The new Act took effect on October 1, 1977. Section 801(b) of that Act (Ill.Rev.Stat.1977, ch. 40, par. 801(b)) requires that issues pending in the trial court on that date shall be decided according to the Act. Here, the complaint had been filed on March 22, 1977, but no hearing on the merits was held until October 7, 1977, and a written judgment order was filed thereafter. Petitioner's due process argument is that operation of the new law unconstitutionally deprives her of special equities in the 8-acre tract which she would have had if the marriage had been terminated and property distributed under prior law.

The same argument based upon similar facts was rejected by the supreme court in Kujawinski v. Kujawinski (1978), 71 Ill.2d 563, 17 Ill.Dec. 801, 376 N.E.2d 1382. The court noted that under neither the old law nor the new does the statute purport to affect the property rights of a party to a marriage until that marriage has been dissolved by the court. They also noted that the old law provided that a party's property could be invaded upon a grant of divorce for the purpose of recognizing special equities in the property or to award alimony in gross. They reasoned that the new provisions permit the court, upon dissolution of a marriage to give one party's property to the other in similar ways. The court concluded that the new procedures merely "enhanced a remedy already available to the non-property-owning spouse" under the old law (71 Ill.2d 563, 17 Ill.Dec. 801, 807, 376 [64 Ill.App.3d 574] N.E.2d 1382, 1388) and thus did not deprive a party of due process. The trial court properly applied the new law to the distribution of property here and petitioner was not deprived of due process.

The 8-acre tract was purchased under a contract which provided that title be taken in the name of respondent. That petitioner advanced the sum of $12,243.68 toward the payment of the purchase price is not disputed. The court awarded the tract to respondent on its finding that he had repaid petitioner that sum of money. Respondent testified to delivering $10,000 toward the repayment to petitioner in the last few days of 1975 or the first few of 1976. He had no records to support this other than a cancelled note given by him to a bank in January 1976. He stated that the money was used for the first payment on a contract of purchase for an adjoining 16-acre tract which was awarded to petitioner.

Petitioner, on the other hand, denied receiving the money. Her records, introduced into evidence, indicated that she placed $9000, given to her by her parents, into her personal savings account and on December 30, 1975, placed it in a joint account of the parties. On that same day she wrote a check for a $10,000 initial payment on the 16-acre tract. However, no ledger of the joint account was produced and without it no conclusive showing could be made as to whether both petitioner's $9000 and respondent's $10,000 had been placed in the joint account before the $10,000 check for the down payment on the 16-acre tract had been made. The trial court's finding of repayment was not contrary to the manifest weight of the evidence.

Petitioner's assertion that repayment should have been pleaded is based upon section 43(4) of the Civil Practice Act (Ill.Rev.Stat.1977, ch. 110, par. 43(4)), made applicable to procedures under the Marriage and Dissolution of Marriage Act by section 105 of that Act (Ill.Rev.Stat.1977, ch. 40, par. 105). Section 43(4) requires any affirmative defense such as payment to be "plainly set forth in the answer or reply."

The instant case was initiated by petitioner's complaint for separate maintenance. After various pleadings and counterpleadings, petitioner was permitted to file an amended count III, to...