In re Marriage of Vondra

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Appellate Court Date: 2016.09.29
10:03:18 -05'00'
In re Marriage of Vondra, 2016 IL App (1st) 150793
Appellate Court In re MARRIAGE OF DAVID VONDRA, Petitioner-Appellee, and
Caption MIKA J. VONDRA, Respondent-Appellant (Eugenia Sabadaszka,
Plaintiff; and David Vondra, Individually and as Trustee of the David
Vondra Revocable Trust, Dated November 20, 2007, Defendant).
District & No. First District, First Division
Docket No. 1-15-0793
Filed July 18, 2016
Decision Under Appeal from the Circuit Court of Cook County, Nos. 10-D-10580,
Review 12-CH-06686 cons.; the Hon. Edward A. Arce, Judge, presiding.
Judgment Affirmed.
Counsel on Paul L. Feinstein, of Chicago, for appellant.
Appeal
Deutsch, Levy & Engel, Chtrd., of Chicago (Melvyn H. Berks and
Ryan D. Janski, of counsel), for appellee.
Panel JUSTICE HARRIS delivered the judgment of the court, with opinion.
Presiding Justice Cunningham and Justice Connors concurred in the
judgment and opinion.
OPINION
¶1 Respondent, Mika J. Vondra, appeals the circuit court’s judgment in a marriage dissolution
proceeding, specifically the court’s characterization and distribution of various assets pursuant
to section 503 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/503
(West 2014)). On appeal, respondent contends (1) she is entitled to the reimbursement of
$253,000 she contributed in nonmarital funds to pay down the mortgage on the marital
residence and (2) the trial court erred in classifying respondent’s Madison Avenue IRA No.
6863 (IRA 6863) and the American Enterprise CD No. 6714 (6714 CD) as marital property.
For the following reasons, we affirm.
¶2 JURISDICTION
¶3 The trial court entered the final judgment for dissolution of marriage on February 17, 2015.
Respondent filed her notice of appeal on March 18, 2015. Accordingly, this court has
jurisdiction pursuant to Illinois Supreme Court Rules 301 and 303 governing appeals from
final judgments entered below. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. May 30, 2008).
¶4 BACKGROUND
¶5 The following facts are relevant to this appeal. The parties were married on October 29,
1988, and two children were born during the marriage. Both were emancipated at the time of
the dissolution proceedings. Petitioner filed his petition for dissolution of marriage on October
28, 2010, and a trial was held in which the court received evidence and heard testimony and
arguments of counsel. Petitioner is employed as a documentation engineer earning
approximately $92,000 per year. Respondent works several part-time jobs earning
approximately $25,000 per year. During the marriage, the parties owned a residence located at
703 Nichols Road in Arlington Heights, Illinois. An appraisal determined that the residence
was worth $480,000 and had a mortgage balance of $24,936.16 at the time of trial.
¶6 At trial, respondent testified that in July of 1996, she received $200,000 which she placed
into a First Security account (Sabadaszka gift). The amount consisted of a $175,000
inheritance from her father and a $25,000 gift from her mother. She testified that she did not
intend any gift to petitioner when she received this money. Respondent testified that she
deposited $175,000 from the First Security account into a joint account to pay down the
mortgage on the Nichols Road house, which she paid the following day. She informed
petitioner of her actions. The payment, processed on July 29, 1996, reduced the mortgage
balance from $310,950 to $135,950.
¶7 Respondent also received approximately $167,000 after the death of family friend Barbara
Ganzert, which she placed in a trust account in her name (Ganzert funds). From this
inheritance, respondent used $78,000 to further pay down the mortgage on the Nichols Road
house. These payments were documented in respondent’s Exhibit 66 which showed the
mortgage payment history on the house. Respondent testified that she did not intend any gift to
petitioner when she made these payments from her trust account. Petitioner, however, had no
recollection that respondent received the Sabadaszka gift or the Ganzert funds and did not
recall whether respondent paid down the mortgage using those moneys.
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¶8 Evidence presented at trial showed that the 6714 CD was issued to “MIKA J. VONDRA or
DAVID W. VONDRA” on September 19, 2009, in the amount of $144,706. Respondent
testified that she gave petitioner permission to transfer $141,000 from her trust account to the
6714 CD. On March 19, 2011, respondent cashed the certificate and deposited $149,056.22
into a savings account in her name at Chase Bank. Respondent testified that the 6714 CD funds
came from a combination of money from the Sabadaszka gift and money she was holding for
her mother. The parties stipulated that after respondent cashed in the certificate, petitioner did
not have access to the funds. To rebut the presumption that the 6714 CD was marital property,
respondent submitted evidence that the funds used to purchase the CD came from her trust
account.
¶9 Also presented into evidence were a Madison Avenue Securities IRA in petitioner’s name
(No. 6855) with a value of $42,356.03 and a Madison Avenue Securities IRA in respondent’s
name (No. 6863) with a value of $79,189.61. Respondent testified that her Madison Avenue
IRA came from her employment at Urban Development, where she ceased working after her
child was born in 1991. She testified that she had this IRA prior to her marriage and, although
she made some contributions to it during the marriage, she had never taken money out.
¶ 10 At the proceedings, respondent made a claim for the reimbursement of $253,000,
representing the amount of nonmarital funds she used to pay down the mortgage. The trial
court determined that the funds comprising the Sabadaszka gift and Ganzert funds were
nonmarital property pursuant to section 503(a)(1) of the Act. It denied respondent’s claim,
however, finding that pursuant to section 503(c)(1) and (2), she transmuted those funds into
marital property by “(a) depositing the Sabadaszka Gift into the joint checking account and
paying down the mortgage balance and (b) Using the Ganzert funds to pay down the mortgage
balance on the marital residence.”
¶ 11 The trial court also determined that the 6714 CD was marital property because it was
originally opened “under both parties’ names.” Although the trial court found it “probable that
some or even most of the funds” used to purchase the 6714 CD came from respondent’s
nonmarital trust account, respondent failed to rebut the presumption that the 6714 CD was
marital property. It reasoned that “[t]he act of purchasing [the 6714 CD] and placing ownership
of that certificate in the parties’ joint names creates the presumption of a gift to the marital
estate. There is frankly no evidence which rebuts this presumption.” The trial court also noted
that the 6714 CD was held jointly from September 19, 2009, to March 19, 2011. Regarding the
parties’ Madison Avenue IRAs, the trial court’s order stated that “[t]he parties stipulate that the
entire interest in the plan is marital property subject to division by the court.” Respondent filed
her timely appeal.
¶ 12 ANALYSIS
¶ 13 Respondent first contends that the trial court erred in denying her reimbursement claim for
the $253,000 she used from the Sabadaszka gift and Ganzert funds to pay down the mortgage
on the marital residence during the parties’ marriage. The trial court determined that all funds
from the marital residence were marital property. A reviewing court will not disturb the trial
court’s classification of property unless its determination is against the manifest weight of the
evidence. In re Marriage of Blunda, 299 Ill. App. 3d 855, 861 (1998). A ruling is against the
manifest weight of the evidence if the opposite conclusion is clearly evident or the findings are
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unreasonable, arbitrary, or not based on the evidence. Maple v. Gustafson, 151 Ill. 2d 445, 454
(1992).
¶ 14 Section 503(a) of the Act provides that “[f]or purposes of the Act, ‘marital property’ means
all property *** acquired by either spouse subsequent to the marriage.” 750 ILCS 5/503(a)
(West 2014). However, “property acquired by gift, legacy or descent” or property acquired in
exchange for such property is nonmarital property. 750 ILCS 5/503(a)(1) (West 2014).
Furthermore, “[w]hen marital and non-marital property are commingled by contributing one
estate of property into another resulting in a loss of identity of the contributed property, the
classification of the contributed property is transmuted to the estate receiving the
contribution.” 750 ILCS 5/503(c)(1) (West 2014). Transmutation is based on the presumption
that the owner of the nonmarital property intended to make a gift of it to the marital estate. In re
Marriage of Benz, 165 Ill. App. 3d 273, 279 (1988). Thus, the placement of nonmarital
property in joint tenancy or other form of joint ownership with a spouse “will raise a
presumption that a gift was made to the marital estate, and the property will become marital
property.” Id. at 280. The donor spouse, however, may rebut this presumption with clear and
convincing evidence. Id.
¶ 15 Here, the trial court properly found that the Sabadaszka gift and Ganzert funds were
respondent’s nonmarital property. It also properly found that by using those moneys to pay
down the mortgage on the jointly held marital residence, a presumption arose that respondent
intended to make a gift to the marital estate. See In re Marriage of Durante, 201 Ill. App. 3d
376, 382 (1990) (use of nonmarital funds to purchase ownership in a residence which was
conveyed to both parties as joint tenants created a rebuttable presumption of transmutation and
gift to the marital estate). The question is whether respondent presented sufficient evidence to
rebut this presumption.
¶ 16 The only evidence respondent presented to rebut the presumption of transmutation is that
she did not intend for the payments to be gifts. However, although respondent testified that she
told petitioner of her payments, she did not state that she informed him at the time that she did
not intend for the payments to be gifts to the marital estate. Petitioner testified that he had no
knowledge of whether respondent received the Sabadaszka gift or the Ganzert funds or
whether she paid down the mortgage using money from those nonmarital funds. Such evidence
is insufficient to overcome the presumption of transmutation. See In re Marriage of Hacker,
239 Ill. App. 3d 658, 664-65 (1992) (presumption not rebutted where the only evidence
presented was testimony that at the time the parties purchased the marital residence,
respondent did not intend to make a gift of his contribution); Durante, 201 Ill. App. 3d at 382
(presumption not rebutted where respondent testified that although she placed her nonmarital
property in joint tenancy, she intended for the property to stay in the family).
¶ 17 Respondent, however, argues that she sufficiently rebutted the presumption because the
nonmarital funds she used were traceable and she placed the funds in a joint account
temporarily as a conduit to make the payments. As support, respondent cites a list of cases,
including In re Marriage of Heroy, 385 Ill. App. 3d 640, 673 (2008), in which this court held
that “[a]lthough the placement of nonmarital funds into a joint checking account may
transmute the nonmarital funds into marital property [citations], nonmarital funds that are
placed into a joint account merely as a conduit to transfer money will not be deemed to be
transmuted into marital property. [Citations.]” In Heroy and the other cases cited in
respondent’s brief, the party took nonmarital funds, placed those funds temporarily in a joint
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account and then used the funds to purchase nonmarital property. These cases are inapposite.
Unlike Heroy, respondent here took nonmarital funds and used those funds to pay the
mortgage on property jointly held by both parties. In this situation, a rebuttable presumption
arises that the nonmarital property transmutes into marital property. Benz, 165 Ill. App. 3d at
280. As discussed above, respondent did not rebut the presumption with clear and convincing
evidence. We find that the trial court’s denial of her claim for reimbursement was not against
the manifest weight of the evidence.
¶ 18 Likewise, respondent has failed to rebut the presumption that the 6714 CD was marital
property. Although respondent testified that the money used to purchase the 6714 CD came
from her nonmarital funds (Sabadaszka gift and money from respondent’s mother), the CD
was issued to “MIKA J. VONDRA or DAVID W. VONDRA.” The CD was jointly held by the
parties for almost two years until March 19, 2011, when respondent cashed the certificate and
deposited $149,056.22 into a savings account in her name at Chase Bank. To rebut the
presumption that the 6714 CD was marital property, respondent presented evidence showing
that the funds used to purchase the CD came from her trust account, and she testified that she
did not intend a gift to the marital estate; instead, petitioner purchased the CD on his own. As
discussed above, the use of nonmarital funds to purchase jointly held property during the
marriage does not rebut the presumption; rather, it creates a rebuttable presumption of a gift to
the marital estate. See Durante, 201 Ill. App. 3d at 381-82; Benz, 165 Ill. App. 3d at 280.
Furthermore, respondent testified that she gave permission for petitioner to purchase the
jointly held 6714 CD using funds from her trust account. Although respondent contends that
she did not intend to make a gift, it is the function of the trial court to resolve conflicting
testimony, assess the credibility of the witnesses, and give weight to their testimony. Benz, 165
Ill. App. 3d at 280. Here, the trial court resolved any conflicts on this issue in favor of
petitioner, and its finding is not against the manifest weight of the evidence.
¶ 19 Respondent also argues that the proceeds from the 6714 CD “no longer exist[ ]” and the
trial court erred in distributing proceeds that no longer exist. Respondent presents this
argument without citation to authority or more extensive analysis in violation of Illinois
Supreme Court Rule 341(h)(7) (eff. Jan. 1, 2016) (argument “shall contain the contentions of
the appellant and the reasons therefor, with citations of the authorities and the pages of the
record relied on”). In her reply brief respondent does cite two cases, with no analysis, that we
find are distinguishable from this case. In any event, points not argued in respondent’s main
brief “are waived and shall not be raised in the reply brief.” Ill. S. Ct. R. 341(h)(7) (eff. Jan. 1,
2016). For these reasons, the trial court’s designation of the 6714 CD as marital property was
not against the manifest weight of the evidence.
¶ 20 Respondent’s final contention is that the trial court erred in finding that, by stipulation of
the parties, respondent’s Madison Avenue IRA from her former employer was marital
property. She argues that she acquired the IRA prior to her marriage and she never took any
distributions or loans from the account. She further contends that no stipulation can be found in
the record, proving that the stipulation never existed.
¶ 21 In general, “a party cannot dispute on appeal matters to which he has stipulated.” Charter
Bank & Trust of Illinois v. Edward Hines Lumber Co., 233 Ill. App. 3d 574, 580 (1992). In
reviewing the parties’ arguments on the issue in the record, there was a question as to whether
a portion of respondent’s Madison Avenue IRA was marital property. The parties argued the
issue in closing arguments, but the trial court did not make a determination at that time.
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Instead, the court informed the parties that it would not make any rulings without first
conducting a hearing on the fee petitions which it would do at a future date. We presume the
trial court held those hearings and made its rulings, although no transcript of the proceedings is
in the record. Respondent as appellant has the duty to present a complete record on appeal,
“and in the absence of an adequate record, it will be presumed that the trial court’s judgment
conforms to the law and has a sufficient factual basis.” Salazar v. Wiley Sanders Trucking Co.,
216 Ill. App. 3d 863, 868 (1991). The trial court’s February 17, 2015, order states that the
parties stipulated that their respective Madison Avenue IRAs were marital property. Since
respondent failed to include a record for the proceeding in which that stipulation may have
occurred, any resulting doubt is resolved against respondent as appellant. Id.
¶ 22 For the foregoing reasons, the judgment of the circuit court is affirmed.
¶ 23 Affirmed.
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