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No. 1-99-2564 FIRST DIVISION

December 26, 2000

JUSTICE COHEN delivered the opinion of the court:

After trial on his wife's petition for dissolution of marriage, respondent Martin W. Didier(Martin) appeals the judgment of the circuit court of Cook County. Martin asserts that the trialcourt erred in (1) classifying certain property as nonmarital and awarding that property topetitioner Gail A. Didier (Gail), and (2) awarding Martin inadequate maintenance. Gail cross-appeals, claiming that the trial court erred in (1) awarding Martin any maintenance "whatsoever,"(2) finding that certain funds that Gail transferred into Martin's business were a gift rather than aloan, and (3) relieving Martin of all child support obligations. We affirm in part, reverse in partand remand.

Martin Didier and Gail Adreani were married on February 14, 1976, in Chicago, Illinois. The couple had three children: Ryan, born May 3, 1980; Kelly, born May 22, 1982, and Kari,born April 26, 1985. At the time of their marriage, both Martin and Gail worked outside thehome. Gail stopped working when their first child was born in 1980. Both before and during themarriage, Gail acquired substantial corporate and partnership interests that provided investmentincome ranging from $600,000 to $850,000 per year. Gail's income was used to support thefamily, including Martin. Martin was employed by a succession of different corporationsbetween 1976 and 1990. Martin's highest W-2 income for any given year during this period wasapproximately $35,000. As of 1990, Martin became self-employed.

The parties were in agreement as to several issues related to the dissolution and stipulatedto the following facts before the trial court:

    A.    Gail is a mother and homemaker and works part-time for McDonald's. Gail resides at 4161 Terri-Lyn Lane, Northbrook, Illinois, with the parties' three children.

    B.    Martin is self-employed through Integration Technologies, Inc. (ITI), a subchapter"S" corporation incorporated by Martin in 1990.

    C.    Martin received as a gift from Gail's family 3.743%, or 5,600 shares, of capital stock in North Pier Terminal, Ltd., a closely held corporation. This stock is Martin's nonmaritalproperty and should be assigned to him.

    D.    Gail received as a gift from her family 3.743%, or 5,600 shares, of capital stock inNorth Pier Terminal, Ltd. This stock is Gail's nonmarital property and should be assigned to her.

    E.    In addition to her North Pier Terminal, Ltd., stock, Gail owns the followingcorporate and partnership interests:

Name                                      % Interest             # of Shares                   Date(s) Acquired

National Terminals Corp.            19.091353            38,484.4                   08-21-89 - 04-02-97

Norridge Development Corp.      10                              100                     12-08-92

Courts of Amber Woods, Inc.     10                              100                     08-21-89

Norwood Builders, Inc.              20                                20                     03-01-89

Norwood Plaza, Inc.                  20                              500                     08-25-89

Adreani Farms (partnership)        20                              n/a                      1974

Adreani Buildings (partnership)    20                              n/a                      1983

1. 1998 Ford Explorer
2. 1991 Ford Explorer
3. 1990 Ford Taurus
4. 1999 Toyota 4Runner
5. 1998 Saab 900

Gail is the titleholder for all of the aforementioned vehicles. The parties have entered into anagreed order whereby Gail has assigned title of the 1990 Ford Taurus to Martin, provided thatMartin takes all steps necessary to transfer title of said vehicle into his name with the IllinoisSecretary of State, and Martin agrees to indemnify and hold Gail harmless with respect to theownership and use of said vehicle.

G. Title to the residence located at 4161 Terri-Lyn Lane, Northbrook, Illinois (theNorthbrook home) is held in a land trust under trust agreement No. 8096 with Parkway Bank & Trust Company. Gail is the owner of 100% of the beneficial interest under said trust agreement. Martinstipulates that if the residence is found to be Gail's nonmarital asset, he will not make any claims thathe made marital contributions for which the marital estate is entitled to reimbursement. Thestipulated value of the property is $430,000. There has never been a mortgage on the property.

1. an ABN-AMRO brokerage account in the name of Gail A. Didier;
2. LaSalle Bank checking and savings accounts in the name of Gail A. Didier;
3. $5,000 life insurance policy; and
4. all furniture, furnishings, fixtures, appliances, jewelry, clothing and other personal property in the Northbrook home or in her possession.

J. In addition, Martin has the following assets:

1. LaSalle Bank checking and savings accounts in the name of Martin W.Didier;

2. a Charles Schwab IRA in the name of Martin W. Didier;

3. a MONY $25,000.00 death benefit life insurance policy; and

4. all furniture, furnishings, fixtures, appliances, jewelry, clothing and otherpersonal property in his possession.

The record before us on appeal is lengthy and fact-intensive. In the interests of brevity, weforego an initial recitation of the facts. Relevant facts will be discussed as we address each of theissues on direct and cross-appeal.

I. Classification of Marital Assets

Martin appeals the trial court's classification of the Northbrook home, Gail's corporate andpartnership interests and certain accounts purportedly containing investment income received fromthose interests as Gail's nonmarital assets. We first consider the classification of the Northbrookhome.

The record reflects that, after their marriage in 1976, the parties lived in a condominiumcomplex known as "Washington Golf" in Niles, Illinois. Gail testified that one of the condominiumunits in the complex was a gift to her from her father, Raymond Adreani (Adreani). Adreani wasthe developer responsible for building the complex. Gail further testified that title to thecondominium was held in her name only and that Martin's name had never been on the title. Martinoffered no testimony to the contrary. In 1983, the parties began construction of the Northbrook homeon a lot owned by Adreani in another of his real estate developments. In 1984, construction of theNorthbrook home was completed and the family moved in. There was conflicting testimony as tothe degree of Martin's involvement in the construction process. Although the trial court made nospecific findings of fact on this point, Gail testified that she sold her condominium and used theproceeds of the sale to finance the construction of the Northbrook home. Gail further testified thatin 1986, she paid Adreani $29,870 for the lot upon which the house was built. In 1986, Adreaniexecuted a quitclaim deed transferring title to the Northbrook home to the Parkway Bank and TrustCompany as trustee for Gail and named Gail as the 100% owner of the beneficial interest in a landtrust. Gail testified that Martin's name had never been on the title to the Northbrook home. TheNorthbrook home never had a mortgage. Although Martin testified that he turned his paychecks overto Gail, Gail testified that all of the household expenses were paid from her nonmarital income. Thetrial court found that "Gail acquired the property at 4161 Terri-Lyn Lane, Northbrook by gift fromher father," and assigned that property to Gail as her nonmarital asset.

"Before a court may dispose of property upon dissolution of marriage, the property must beclassified as either marital or nonmarital. [Citation.] The trial court's classification will not bedisturbed on appeal unless it is contrary to the manifest weight of the evidence." In re Marriage ofGurda, 304 Ill. App. 3d 1019, 1023-24 (1999). Under the Illinois Marriage and Dissolution ofMarriage Act (the Dissolution Act) (750 ILCS 5/101 et seq. (West 1998)), there is a rebuttablepresumption that all property acquired by either spouse after the date of marriage but before the entryof judgment of dissolution is marital property, regardless of how title is held. 750 ILCS 5/503(b)(West 1998). "The presumption can only be overcome with a showing, by clear and convincingevidence, that the property falls within one of the statutory exceptions listed in subsection [503](a)[of the Dissolution Act]. [Citations.] The party claiming that the property is nonmarital has theburden of proof. [Citation.] Any doubts as to the nature of the property are resolved in favor offinding that the property is marital." In re Marriage of Hegge, 285 Ill. App. 3d 138, 141 (1996); 750ILCS 5/503(a) (West 1998).

"There is another presumption that a transfer from a parent to a child is presumed to be a gift,and that presumption may be overcome by clear and convincing evidence to the contrary." In reMarriage of Hagshenas, 234 Ill. App. 3d 178, 186 (1992). "In cases where a determination of thenature of the property at issue [is] found to be subject to these conflicting presumptions, thepresumptions are considered to cancel each other out, and a simple manifest weight of the evidencestandard is applied. [Citations.]" Hagshenas, 234 Ill. App. 3d at 186-87. "That is, the presumptionof a gift to a child is canceled out by the conflicting presumption that all property acquired aftermarriage is marital property, and thus, the trial court is free to determine the issue of whether theasset in question was marital or nonmarital property without resort to the presumption." Hagshenas,234 Ill. App. 3d at 187.

Therefore, without the benefit of the presumption of gift, pursuant to statute it was Gail'sburden at trial to establish by the manifest weight of the evidence that she acquired the "property at4161 Terri-Lyn Lane" as a gift from her father. 750 ILCS 5/503(a)(2) (West 1998).⁽¹⁾ "A gift is avoluntary gratuitous transfer of property from donor to donee where the donor manifests an intentto make such a gift and absolutely and irrevocably delivers the property to the donee." In re Estateof Poliquin, 247 Ill. App. 3d 112, 115 (1993); In re Marriage of Agazim, 147 Ill. App. 3d 646, 648-49 (1986).

The case at bar presents us with an unusual situation: two individuals (Gail and Adreani)attempted two separate conveyances of a residential home and the lot upon which it was constructed. From our reading of the record, the apparent understanding of the trial court and the parties was thatAdreani allowed Gail and Martin to construct a house on Adreani's land in Northbrook. Two yearsafter the house was completed, during which time Gail and her family lived in the house, Gail paidto Adreani the sum of $29,870 (ostensibly, at least in part, from the proceeds of the sale of hernonmarital condominium) for the lot only. The trial court concluded that Adreani had gifted thehouse to Gail by deeding the land upon which it rests to the Parkway Bank and Trust Company astrustee of a land trust and naming Gail as 100% owner of the beneficial interest. The trial court ruledpredicated on that conclusion, and the parties' briefs in this appeal were consistent with this scenario.

Upon analysis, however, the matter is not so neatly resolved. The general rule derived fromreal property law is that "buildings and other structures placed on or affixed to the soil become partof the land and belong to its owner." 41 Am. Jur. 2d Improvements