In re: Marriage of Wanstreet

NOTICE NO. 5-05-0572
Decision filed 03/27/06. The text of
this decision may be changed or IN THE
corrected prior to the filing of a
Petition for Rehearing or the APPELLATE COURT OF ILLINOIS
disposition of the same.
FIFTH DISTRICT
________________________________________________________________________
In re MARRIAGE OF ) Appeal from the
) Circuit Court of
RONDA L. WANSTREET, ) Williamson County.
)
Petitioner-Appellee, )
)
and ) No. 03-D-105
)
JAMES R. WANSTREET, ) Honorable
) John Speroni,
Respondent-Appellant. ) Judge, presiding.
________________________________________________________________________
JUSTICE GOLDENHERSH delivered the opinion of the court:
Petitioner, Ronda L. Wanstreet, filed for a divorce from respondent, James R.
Wanstreet. After hearings, the circuit court of Williamson County entered an order awarding
petitioner the custody of the children and distributing marital property according to the
Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/101 et seq. (West
2004)). On appeal, respondent contends that the court (1) erred by not conducting an in
camera interview, (2) erred by awarding custody to petitioner, and (3) incorrectly determined
that certain real estate was marital property. We affirm.
FACTS
On December 22, 1985, the parties to this action were married. The product of their
union was two children, S.W., born in 1988, and G.W., born in 1991. The parties divorced in
2005.
Petitioner works full time in addition to taking college classes. Her job often forces
her to be away from home for overnight stays. The children had been residing with petitioner
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at the marital residence during the divorce proceedings. The children attend Marion schools.
Respondent testified that after separating from petitioner he lived in his grandmother's
cabin in Franklin County, Illinois, but intended to reside in the Marion school district should
he be awarded custody. Respondent worked full time but was off on the weekends.
Neither party contends that the other parent is unfit. Both parties contend they are
cooperative. Both parties seek custody.
At the second stage of the dissolution proceedings, respondent requested that the court
conduct an in camera interview of the two minors. Petitioner requested that any interview be
voluntary. The docket sheet indicates that the court originally took the motion for in camera
interviews under advisement. In a separate docket entry, the court ruled:
"The court has considered the request pursuant to [section 604(a) of the Act (750
ILCS 5/604(a) (West 2004))] to conduct an in camera interview of the parties' minor
children, the testimony [and] evidence submitted [at] the 2nd stage hearing, the
statute, the applicable law[,] [and] the statements of counsel and finds, in the exercise
of the court's discretion, that the request pursuant to [section 604(a)] should be, [and]
hereby[] is[,] denied."
The property in dispute on appeal consists of approximately 380 acres of real estate
and improvements. It was conveyed under what the parties call the Wanstreet Farms Land
Trust (Farm Trust). The Farm Trust was created on October 22, 1990, and respondent was
named as the trustee. There were three named beneficiaries in the trust: C. Monette
Wanstreet (respondent's mother), Terry L. Wanstreet (respondent's brother), and respondent.
On April 15, 1991, a warranty deed in trust for the farm property was recorded with
the office of the recorder for Franklin County. The deed stated:
"THIS INDENTURE WITNESSETH, That the Grantors, James L. Wanstreet,
2
and C. Monette Wanstreet, husband and wife, of the County of Franklin, State of
Illinois, for and in consideration of the sum of One Dollar and other good and
valuable consideration, CONVEY and WARRANT to James R. Wanstreet, Trustee
under a certain Trust Agreement dated the 22nd day of October, 1990[,] and
commonly known as Wanstreet Farms Land Trust, the following described real estate
***."
No documentary or transfer stamps are shown on the deed.
Respondent testified that by the time of the dissolution of the marriage, his mother, C.
Monette Wanstreet, had conveyed 50% of her interest in the Farm Trust to him. This transfer
had taken place in 5% increments over the course of 10 years. Respondent's mother made an
"assignment" of 5% of her interest in the Farm Trust once every year beginning in 1991 and
ending in 2000. The form used each year read:
"ASSIGNMENT
FOR $1.00 and other good and valuable consideration received, I, C. Monette
Wanstreet, being of sound mind, and with full knowledge of the effect of this act, and
without any undue pressure from the intended donee, do hereby sell, assign, transfer[,]
and set over unto [respondent] 5% of my total beneficial interest and rights, power[,]
and privileges in and to that certain trust agreement dated the 22nd day of October,
1990, and commonly known as Wanstreet Farms Land Trust, including my interest in
the property held subject to said Trust Agreement."
Respondent testified that the farm property was 380 acres, and he estimated the value
of his share of the property at $285,000. He testified regarding the reason for setting up the
trust:
"At the time, my father was drinking heavily, had gotten a DUI. My mother was
afraid that he would be involved in an accident or do something that would cause him
3
to lose the farm ***."
The trial court entered a judgment awarding petitioner sole custody, subject to
visitation rights of respondent, and outlined the schedule of visitation to include weekends,
Wednesday evenings, six weeks in the summer, and certain holidays. The court found that
respondent had a 50% interest in the Farm Trust, and the court found that this interest was
marital property.
ANALYSIS
As a preliminary matter, we must address the timeliness of our opinion. Illinois
Supreme Court Rule 306A(f) provides that for final child custody orders:
"(f) Except for good cause shown, the appellate court shall issue its decision
within 150 days after the filing of the notice of appeal." Official Reports Advance
Sheet No. 8 (April 14, 2004), R. 306A(f), eff. July 1, 2004.
The notice of appeal in this case was filed on September 29, 2005. The circuit court
had entered the judgment for the dissolution of the marriage on July 1, 2005. The court
affirmed that order and denied all motions for reconsideration on August 31, 2005. The 150-
day mark was February 26, 2006. In our court, oral argument was not held until March 9,
2006.
There is good cause for issuing our decision after the 150-day deadline. Both parties
requested extensions: on December 1, 2005, respondent filed a motion for an extension of
time to file a brief, which was granted without an objection; on January 5, 2006, petitioner
filed a motion for an extension of time to file her brief, which was granted without an
objection. Both parties requested oral argument, which this court granted. Thus, there is
good cause for the timing of our decision, because both parties were given the opportunity to
develop and present their positions in briefs and oral argument.
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A. Custody
The Act provides:
"Interviews. (a) The court may interview the child in chambers to ascertain
the child's wishes as to his custodian and as to visitation. Counsel shall be present at
the interview unless otherwise agreed upon by the parties." 750 ILCS 5/604 (West
2004).
The decision of whether to conduct an in camera interview is a matter for the trial
court's discretion. In re Marriage of Bates, 212 Ill. 2d 489, 522, 819 N.E.2d 714, 732 (2004).
When a trial court finds good reason not to conduct an in camera interview, a reviewing
court will not substitute its judgment. In re Marriage of Johnson, 245 Ill. App. 3d 545, 554,
614 N.E.2d 1302, 1308 (1993).
In this case, the court was presented with evidence from both parties regarding the
interaction of the children with the parents. Respondent bases his call for an in camera
interview on what he believes were the wishes of the children. His contention that the
children would have testified in a way that would have supported his case is speculative. See
In re Marriage of Bates, 212 Ill. 2d at 522, 819 N.E.2d at 732.
A court does not need to interview a child in order to consider and weigh what it
considers to be the wishes of the child. 750 ILCS 5/602(a)(2) (West 2004); In re Marriage of
Hefer, 282 Ill. App. 3d 73, 76, 667 N.E.2d 1094, 1097 (1996); In re Marriage of Johnson,
245 Ill. App. 3d at 555, 614 N.E.2d at 1308; In re Marriage of Stuckert, 138 Ill. App. 3d 788,
790, 486 N.E.2d 395, 396 (1985). In this case, the court waited to rule on the motion for an
in camera interview until after the parties had presented evidence. That patience underscores
the sound discretion exercised by the court in the case at hand. See In re Marriage of
Stuckert, 138 Ill. App. 3d at 790, 486 N.E.2d at 396; In re Marriage of Padiak, 101 Ill. App.
3d 306, 315, 427 N.E.2d 1372, 1378 (1981).
5
Respondent contends that the court erred by awarding petitioner sole custody. Joint
parenting likely would be inappropriate in this case. Although there is some indication that
the parties can cooperate, the lack of a proposed joint-parenting agreement and the matters
contested in litigation indicate that the parties lack the high level of cooperation necessary for
successful joint custody. See 750 ILCS 5/602.1 (West 2004); In re Marriage of Dobey, 258
Ill. App. 3d 874, 877, 629 N.E.2d 812, 815 (1994). Furthermore, the residential
circumstances of the parties weigh against joint custody. See 750 ILCS 5/602.1 (West 2004).
Respondent testified that he would move, but the court was free to give little weight to this
assertion.
Of most importance, the court determined that awarding petitioner sole custody was in
the best interests of the children. The Act sets forth several relevant factors for determining
what is in the best interest of a child. 750 ILCS 5/602 (West 2004). The court was presented
with conflicting evidence on several factors. Both parents expressed a desire to have custody
of the children. Both parents also presented testimony supporting their respective positions
that they have positive relationships and interactions with the children. The court was in the
best position to evaluate the credibility of the witnesses and weigh the evidence regarding
these factors. In re Marriage of Doty, 255 Ill. App. 3d 1087, 1097, 629 N.E.2d 679, 685
(1994).
Other factors strongly favor petitioner. The record supports the conclusion that
awarding petitioner custody would provide a stability of environment. See In re Marriage of
Hefer, 282 Ill. App. 3d at 77, 667 N.E.2d at 1097. The children have resided with petitioner
since the separation. Respondent was residing outside the school district at the time of the
hearings. This supports a finding that awarding custody to petitioner was beneficial to the
children's adjustment to their home, school, and community. See 750 ILCS 5/602(a)(4)
(West 2004). The court was presented with evidence that petitioner facilitated and
6
encouraged a close relationship with respondent during the period the children had primarily
been residing with her. See 750 ILCS 5/602(a)(8) (West 2004). The court's decision
regarding the best interests of the children is not against the manifest weight of the evidence.
See Connor v. Velinda C., 356 Ill. App. 3d 315, 323, 826 N.E.2d 1265, 1271 (2005). The
record supports the court's award of custody.
B. Property
Respondent contends the court erred by awarding petitioner an interest in the Farm
Trust property. In order to dispose of property in a dissolution of marriage, the court must
first classify the property as marital or nonmarital. 750 ILCS 5/503 (West 2004); In re
Marriage of Hegge, 285 Ill. App. 3d 138, 140, 674 N.E.2d 124, 126 (1996). Respondent
contends that the Farm Trust property was a gift and, therefore, outside the marital estate.
We first look to the documents transferring interests in the property. Petitioner admits
that the farm property was placed in the Farm Trust. She contends, however, that the
property became a part of the marital estate through an assignment for consideration. The
warranty deed conveyed and warranted the property to the trust "for and in consideration of
the sum of One Dollar and other good and valuable consideration." See 26A C.J.S. Deeds
'31 (2001) (an inadequacy of consideration will not normally affect the validity of a deed).
Respondent's mother transferred her interest in the trust property at the rate of 5% a year
using a document entitled "ASSIGNMENT." The assignment was "FOR $1.00 and other
good and valuable consideration received." Under the assignment, respondent's mother
purported to "sell, assign, transfer[,] and set over" her interest. This language indicates an
assignment. Northwest Diversified, Inc. v. Desai, 353 Ill. App. 3d 378, 387, 818 N.E.2d 753,
761 (2004); In re Estate of Waggoner, 5 Ill. App. 2d 130, 139, 125 N.E.2d 154, 158 (1955).
The trial court could have concluded that the plain language of the documents clearly
established an assignment for consideration. The court, however, was silent on whether it
7
considered the contract ambiguous. Certain language gives us pause. Respondent points out
that the assignment states that the transfer was made "without any undue pressure from the
intended donee." Thus, a look at evidence outside the four corners of the documents appears
warranted.
The Act creates a rebuttable presumption that all property acquired after the date of
the marriage, but before the entry of the judgment of dissolution, is marital property
regardless of how title is held. 750 ILCS 5/503(b) (West 1998). In order to overcome this
presumption, the party challenging it must present clear and convincing evidence that the
property falls within one of the statutory exceptions listed in the Act. In re Marriage of
Hegge, 285 Ill. App. 3d at 141, 674 N.E.2d at 126.
On the other hand, a transfer from a parent to a child is presumed to be a gift. In re
Marriage of Hagshenas, 234 Ill. App. 3d 178, 186, 600 N.E.2d 437, 443 (1992). Normally,
this presumption can only be overcome with clear and convincing evidence. In re Marriage
of Heinze, 257 Ill. App. 3d 782, 790, 631 N.E.2d 728, 734 (1994).
In In re Marriage of Blunda, the Second District held that a trial court dividing assets
should presume that any transfer from a parent to a child is a gift. In re Marriage of Blunda,
299 Ill. App. 3d 855, 866, 702 N.E.2d 993, 1001 (1998). In In re Marriage of Blunda, a
daughter testified that stock originally owned by her father was a gift to her. The daughter
presented her father's filing for a gift tax return. The court found that the trial court had not
abused its discretion in awarding the daughter the property, because it had been a gift. The
court discussed the presumption of a gift as follows:
"Property acquired during marriage by means of a gift is to be classified as
nonmarital property. [Citations.] In a dissolution of marriage proceeding, there must
be proof of donative intent for a gift to be valid. [Citation.] Donative intent is
presumed where the transfer of property is from a parent to a child. [Citation.] Thus,
8
it is the burden of the party challenging the gift to present evidence that the parent
making the transfer lacked donative intent. A trial court's discretion on such
determinations will not be disturbed unless it is contrary to the manifest weight of the
evidence. [Citation.]" In re Marriage of Blunda, 299 Ill. App. 3d at 866-67, 702
N.E.2d at 1001.
Contrary precedent was set in In re Marriage of Didier, 318 Ill. App. 3d 253, 258, 742
N.E.2d 808, 813 (2000). In In re Marriage of Didier, the First District discussed both the
presumption of a gift when property is transferred from a parent to a child and the
presumption that property acquired during the course of a marriage is marital property. In re
Marriage of Didier found that these conflicting presumptions cancelled each other out. The
court stated:
" 'In cases where a determination of the nature of the property at issue [is] found to be
subject to these conflicting presumptions, the presumptions are considered to cancel
each other out, and a simple manifest weight of the evidence standard is applied.
[Citations.]' [Citation.] 'That is, the presumption of a gift to a child is canceled out by
the conflicting presumption that all property acquired after marriage is marital
property, and, thus, the trial court is free to determine the issue of whether the asset in
question was marital or nonmarital property without resort to the presumption.'
[Citation.]
Therefore, without the benefit of the presumption of gift, pursuant to statute it
was Gail's burden at trial to establish by the manifest weight of the evidence that she
acquired the 'property at 4161 Terri-Lyn Lane' as a gift from her father." In re
Marriage of Didier, 318 Ill. App. 3d at 258-59, 742 N.E.2d at 813.
In re Marriage of Didier criticized the lack of analysis in In re Marriage of Blunda.
In re Marriage of Didier stated in a footnote:
9
"We decline to follow the rule set forth in the recent Second District case of In
re Marriage of Blunda, 299 Ill. App. 3d 855[, 702 N.E.2d 993] (1998), in which the
court held, in reference to a gift during the marriage, that 'it [was] the burden of the
party challenging the gift to present evidence that the parent making the transfer
lacked donative intent.' (Emphasis added.) [Citation.] This ruling fails to consider
the effect of the conflicting presumptions of marital property and gift (as set forth in
the earlier Second District case of Hagshenas, 234 Ill. App. 3d at 186-87[, 600 N.E.2d
at 443-44]), which is to negate the otherwise presumed donative intent of the parent[]
and reverses the burden of proof. We believe that the better approach in
circumstances involving these conflicting presumptions is to require the proponent, as
the party claiming that property is nonmarital, to prove the elements of gift by the
manifest weight of the evidence. [Citations.]" (Emphasis in original.) In re Marriage
of Didier, 318 Ill. App. 3d at 259 n.1, 742 N.E.2d at 813 n.1.
In re Marriage of Didier is the more persuasive precedent. In re Marriage of Blunda
does not discuss how the presumptions conflict. In contrast, In re Marriage of Didier
provides sound reasoning for the roles of the presumptions. Because the presumptions
conflict, neither party should have to prove his or her case by clear and convincing evidence.
See M. Graham, Cleary & Graham's Handbook of Illinois Evidence '302.9 (8th ed. 2004);
C. McCormick, McCormick on Evidence ''319, 320 (1954) (contrasting the burden of
persuasion by clear and convincing evidence with the burden of preponderance of evidence).
This is similar to the approach taken when the presumption of donative intent from the
creation of a joint tenancy conflicts with the presumption of fraud in a gift to a fiduciary. In
re Estate of Harms, 236 Ill. App. 3d 630, 639, 603 N.E.2d 37, 44 (1992); see In re Estate of
Miller, 334 Ill. App. 3d 692, 701, 778 N.E.2d 262, 269 (2002) (discussing the effect of
presumptions when the transfer is after the formation of a fiduciary relationship). As was
10
stated in In re Estate of Harms:
"Our view with regard to the application of conflicting presumptions is that they
perform a dual role. The presumptions first establish each of the parties' prima facie
obligation and second negate the necessity for conclusive rebuttal evidence, leaving
the trial court free to make a determination based on the facts and credibility of
witnesses. [Citations.] The conflicting presumptions cancel each other. Decisions
made by the trial court under these circumstances will not be disturbed on review
unless they are contrary to the manifest weight of the evidence." In re Estate of
Harms, 236 Ill. App. 3d at 639-40, 603 N.E.2d at 44.
In re Marriage of Blunda relied on our precedent in In re Marriage of Simmons, 221
Ill. App. 3d 89, 92, 581 N.E.2d 716, 719 (1991). In In re Marriage of Simmons, the trial
court found that certain real estate had been transferred by a father to his son as a gift. We
affirmed the trial court, stating:
"In a dissolution of marriage proceeding, for a gift to be valid, there must be proof of
donative intent. Such intent is presumed where, as here, the transfer is from parent to
child. [Citation.] Juli Simmons was required to present sufficient evidence to
convince the trial court that Lee Simmons acted without donative intent. [Citation.]
The mere execution of a mortgage note is not sufficient to turn nonmarital property
into marital property. [Citation.] It has been held that the evidence most relevant in
determining donative intent is the donor's own testimony. [Citation.] Lee Simmons'
testimony was that he made a gift, and the trial court obviously found this evidence
persuasive. We hold that the trial court's ruling that the two tracts of land were
nonmarital was not against the manifest weight of the evidence." In re Marriage of
Simmons, 221 Ill. App. 3d at 92, 581 N.E.2d at 719-20.
In re Marriage of Simmons does not stand for the principle that every time a parent
11
transfers property to a child, a court sitting in a divorce action must presume that the
transaction was a gift and the presumption can only be overcome by clear and convincing
evidence. In In re Marriage of Simmons there was competing evidence. The daughter-in-
law presented evidence of a mortgage note, but the son presented testimony from his father.
In re Marriage of Simmons, 221 Ill. App. 3d at 92, 581 N.E.2d at 719. Our decision was
based on a failure by the daughter-in-law to counteract the testimony of the transferring
father. We found that the evidence presented by the daughter-in-law was insufficient to
overcome the testimony of the father.
In re Marriage of Didier is in accord with In re Marriage of Simmons and does not
criticize that opinion. Indeed, In re Marriage of Didier quotes In re Marriage of Simmons
for the proposition that the " 'evidence most relevant in determining donative intent is the
donor's own testimony' (emphasis added)." In re Marriage of Didier, 318 Ill. App. 3d at 263,
742 N.E.2d at 816 (quoting In re Marriage of Simmons, 221 Ill. App. 3d at 92, 581 N.E.2d at
720). The crucial distinction between the two cases is who testified. In In re Marriage of
Simmons, the transferring parent testified. In In re Marriage of Didier, he did not.
The trial court was free to assume that the testimony of Monette would have been
adverse to respondent. Respondent's mother was a missing witness. See Illinois Pattern Jury
Instructions, Civil, No. 5.01 (2005) (hereinafter IPI Civil (2005) No. 5.01). Respondent does
not contend that it would have taken more than reasonable diligence to present his mother as
a witness. See Coupon Redemption, Inc. v. Ramadan, 164 Ill. App. 3d 749, 756, 518 N.E.2d
285, 290 (1987). Instead, respondent contends that his mother was equally available to
petitioner. This assertion flies in the face of reason. It is settled law that a witness is not
equally available to a party if there is a likelihood that the witness would be biased against
him, as, for example, a relative of the other party. Moore v. Bellamy, 183 Ill. App. 3d 110,
118-19, 538 N.E.2d 1214, 1219 (1989); Chapman v. Foggy, 59 Ill. App. 3d 552, 559, 375
12
N.E.2d 865, 870 (1978); IPI Civil (2005) No. 5.01, Comment, at 33.
In re Marriage of Didier stands for the proposition that neither party in a dissolution
of marriage case must present clear and convincing evidence to overcome a presumption.
We agree with In re Marriage of Didier that these presumptions cancel each other out and
that neither party should have to prove his or her case by clear and convincing evidence. In
In re Marriage of Simmons, we pointed out that the most relevant evidence is the testimony
of the transferring parent. The absence of that testimony in the case at hand could properly
be seen as the strongest indication of the nature of the transaction. This does not mean that
the testimony of the transferring parent is always necessary to prove that a transfer was a gift.
See In re Marriage of Didier, 318 Ill. App. 3d at 258, 742 N.E.2d at 813; In re Marriage of
Blunda, 299 Ill. App. 3d at 866, 702 N.E.2d at 1001 (tax filings for a gift). In this case,
however, there is no strong evidence of a gift, and the language transferring the interest
suggests an assignment for value. Thus, we cannot say the court's decision was against the
manifest weight of the evidence.
CONCLUSION
Accordingly, the order of the circuit court is hereby affirmed.
Affirmed.
CHAPMAN and HOPKINS, JJ., concur.
13
NO. 5-05-0572
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
___________________________________________________________________________________
In re MARRIAGE OF ) Appeal from the
) Circuit Court of
RONDA L. WANSTREET, ) Williamson County.
)
Petitioner-Appellee, )
)
and ) No. 03-D-105
)
JAMES R. WANSTREET, ) Honorable
) John Speroni,
Respondent-Appellant. ) Judge, presiding.
___________________________________________________________________________________
Opinion Filed: March 27, 2006
___________________________________________________________________________________
Justices: Honorable Richard P. Goldenhersh, J.
Honorable Melissa A. Chapman, J., and
Honorable Terrence J. Hopkins, J.,
Concur
___________________________________________________________________________________
Attorney Frederick Turner, Jr.
for P.O. Box 512
Appellant Golconda, IL 62938
___________________________________________________________________________________
Attorney Joshua M. Bradley, Law Offices of Harvey & Bradley, LLC, 2029 Broadway,
for Mt. Vernon, IL 62864
Appellee
___________________________________________________________________________________