Marriage of Tatham, In re, 5-87-0359

• Decision Date: 22 August 1988
• Docket Number: No. 5-87-0359,5-87-0359
• Citation: 173 Ill.App.3d 1072,123 Ill.Dec. 576,527 N.E.2d 1351
• Parties: , 123 Ill.Dec. 576 In re the MARRIAGE OF Jane Elizabeth TATHAM, Petitioner-Appellee, Cross- Appellant, and Jonathan Edward Chase Tatham, Respondent-Appellant, Cross-Appellee.
• Court: United States Appellate Court of Illinois

Page 1351

527 N.E.2d 1351

173 Ill.App.3d 1072, 123 Ill.Dec. 576

In re the MARRIAGE OF Jane Elizabeth TATHAM Petitioner-Appellee, Cross- Appellant and Jonathan Edward Chase Tatham, Respondent-Appellant, Cross-Appellee.

No. 5-87-0359.

Appellate Court of Illinois Fifth District.

Aug. 22, 1988.

Bruce D. Stewart, Harrisburg, for respondent-appellant, cross-appellee.

Kenneth R. Hughes and William L. Broom, III, Barrett, Twomey, Morris, Broom & Hughes, Carbondale, for petitioner-appellee, cross-appellant.

Justice LEWIS delivered the opinion of the court:

Jonathan Edward Chase Tatham (respondent) appeals from a judgment of the circuit court of Johnson County denying his post-trial motion and from the judgment dissolving his marriage to Jane Elizabeth Tatham (petitioner) entered on January 21, 1987. After consideration of respondent's post-trial motion filed on February 20, 1987, an amended judgment for dissolution was entered on April 13, 1987. Respondent appeals the amended judgment of dissolution as it pertains to the issues of the reimbursement of the marital estate for contributions from the non-marital estate, of the award of a homemaker's contribution to petitioner, of the classification as marital property and valuation of certain items of personalty, and of the determination of the amount of child support to be paid by the respondent. Petitioner cross-appeals the judgment of dissolution with regards to the circuit court's denial of the award of maintenance and to the amount of petitioner's attorney fees that the circuit court ordered respondent to pay. We will not set out a statement of facts at this juncture, but delineate the pertinent facts as the issues are discussed.

The first issue respondent raises on appeal is that the circuit court erred when it ordered respondent to pay petitioner one-half of $65,600, the amount of the salary that respondent forwent soon after the parties marriage in June 1977. He argues that respondent's personal efforts as farm manager on his father's farm were to non-owned property as opposed to non-marital property and therefore not subject to reimbursement to the marital estate. Alternatively, he contends that if the property was non-marital that respondent's personal efforts were neither significant nor did his efforts result in substantial appreciation of the farm.

The evidence adduced at trial established that respondent's father, Arthur E. Tatham, purchased a 1006 acre farm in Vienna, Johnson County, Illinois in 1954. Although the farm was titled in respondent's father's name, respondent had lived on the farm since 1966. Respondent became manager of the farm in 1968 or 1969 and he continued in this employment after he and petitioner married. Respondent and petitioner were married on June 25, 1977, and they resided on the farm during the entire period of their marriage. Prior to the parties' marriage, respondent received a salary of $800 per month for his employment but shortly after their marriage, respondent elected not to receive this salary.

In December 1979, respondent's father established the Arthur E. Tatham trust (the trust). When the trust was created, Arthur Tatham transferred all of his assets into the trust, including the assignment of the title to the farm. Under the terms of the trust, Arthur Tatham was to be the sole beneficiary and the trustee of this revocable trust. However, upon his death, the remainder of the trust was to be divided equally between his three children, with a special provision that as part of his one-third share of the trust, if respondent was living 30 days after Arthur Tatham's death, respondent was to receive the farm. Upon Arthur Tatham's death, respondent and his two sisters were to become co-trustees of the trust if Arthur Tatham's wife were no longer living, with Jane Tatham Johnson to be acting trustee. Although Arthur Tatham made four amendments to the trust, at no time did he alter the provision regarding the farm, and thus this provision for the farm remained as stated in the original trust document at Arthur Tatham's death on September 5, 1985. Arthur Tatham's will provided that the residue of his estate, comprising of the trust assets, was to be distributed in accordance with the provisions of the trust. A trustee's deed giving respondent title to the farm was executed on December 8, 1986, and was duly recorded on December 10, 1986, after the hearings regarding the division of marital property had been conducted but before the judgment of dissolution was entered.

In the judgment of dissolution entered on April 13, 1987, the circuit court determined that respondent had been receiving a salary of $800 per month as farm manager prior to the parties' marriage but that after the marriage, respondent voluntarily ceased to collect this salary. The circuit court held that had respondent continued to collect this salary that this salary would have been part of the marital estate. Therefore, the circuit court found that respondent's refusal to accept a salary was a contribution by the marital estate to non-marital property of the respondent for which the marital estate was entitled to reimbursement and that respondent's personal efforts were significant and resulted in substantial appreciation of the non-marital property. For those reasons, the circuit court ordered respondent to pay petitioner $32,800.00 (one-half of the amount of salary that would have been paid had respondent continued to collect this salary during the entire marriage).

Respondent contends that the circuit court erred in determining that respondent's personal efforts were a contribution of the marital estate to the non-marital estate. He argues that because title to the farm remained in the trust until December 1986, that respondent's personal efforts can only be viewed as personal efforts to non-owned property as opposed to non-marital property and therefore outside the purview of the statute. We do not agree.

Respondent's reasoning is erroneous for several reasons. Section 503(b) of the Illinois Marriage and Dissolution of Marriage Act states:

"For purposes of distribution of property pursuant to this Section, all property acquired by either spouse after the marriage and before a judgment of dissolution of marriage or declaration of invalidity of marriage, including non-marital property transferred into some form of co-ownership between the spouses, is presumed to be marital property, regardless of whether title is held individually or by the spouses in some form of co-ownership such as joint tenancy, tenancy in common, tenancy by the entirety, or community property. The presumption of marital property is overcome by a showing that the property was acquired by a method listed in subsection (a) of this Section." (Ill.Rev.Stat. 1987, ch. 40, par. 503(b).)

From the language of the statute, for the purposes of distribution, consideration must be given to all property acquired by the parties of the marriage after the marriage and before the date of dissolution. In this case, the date of dissolution of the parties' marriage was April 13, 1987. If consideration is given to the transfer of title to the farm as indicative of when respondent acquired legal ownership of the farm, then the date of acquisition was December 8, 1986, before the date of dissolution. Thus the farm must be considered in the circuit court's distribution of property, either as marital property or as non-marital property, as it was owned by respondent at the date of dissolution. Next, we must determine if the farm was non-marital property or marital property.

Under Section 503(b), property acquired by the parties after a marriage and before the date of dissolution is presumed to be marital property. This presumption can be overcome by showing that the property was acquired in one of the methods set forth in Section 503(a) of the Illinois Marriage and Dissolution of Marriage Act. (Ill.Rev.Stat.1987, ch. 40, par. 503(a).) Section 503(a)(1) provides that the presumption that property acquired after the marriage is marital property is overcome by a showing that the property was acquired by gift, legacy or descent. (Ill.Rev.Stat.1987, ch. 40, par. 503(a)(1).) Since the evidence in this case demonstrated that respondent's father's will directed that the residue of his estate be distributed in accordance with the provisions of the trust, and since the trust provided that respondent was to receive the legal ownership of the farm as part of his distributive share of the trust assets, respondent met the burden of overcoming the presumption that the farm was marital property. Therefore, the circuit court correctly categorized the farm as respondent's non-marital property at the date of dissolution. However, our analysis of the nature of respondent's interest in the farm cannot cease here.

Under the terms of Arthur Tatham's trust, respondent obtained a future interest in the farm at the time of the creation of the trust. The trust provided that Arthur Tatham enjoyed a life estate in the farm and that respondent was to receive the farm by remainder in fee simple upon Arthur Tatham's death with the proviso that respondent survive his father by thirty days. Thus respondent acquired a beneficial interest, and therefore a property right, in the farm on December 11, 1979, the date of the creation of the trust. The granting of respondent's beneficial interest in the farm through the trust was equivalent to a "gift" as that term appears in the statute, so the beneficial interest was respondent's non-marital property. Thus even if respondent had not had legal ownership of the farm at the date of dissolution, he had a beneficial interest in the farm, a sufficient interest in the property upon which to reimburse the marital estate for respondent's personal efforts contributed to that property. Under either analysis, the circuit court's determination that the farm was non-marital property and...