{ "id": 2690273, "name": "Shabon L. Lawyer, Plaintiff and Counterdefendant-Appellant, v. Delmar C. Lawyer, Defendant and Counterplaintiff-Appellee", "name_abbreviation": "Lawyer v. Lawyer", "decision_date": "1974-05-29", "docket_number": "No. 72-355", "first_page": "571", "last_page": "575", "citations": [ { "type": "official", "cite": "19 Ill. App. 3d 571" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "5 Ill.App.3d 581", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2524912 ], "pin_cites": [ { "page": "589" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/5/0581-01" ] }, { "cite": "130 Ill.App.2d 762", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2824914 ], "pin_cites": [ { "page": "767" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/130/0762-01" ] }, { "cite": "412 Ill. 511", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2666018 ], "weight": 2, "pin_cites": [ { "page": "515" }, { "page": "516" } ], "opinion_index": 0, "case_paths": [ "/ill/412/0511-01" ] }, { "cite": "10 Ill.App.3d 366", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5391446 ], "pin_cites": [ { "page": "368" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/10/0366-01" ] }, { "cite": "375 Ill. 551", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2536086 ], "pin_cites": [ { "page": "555" } ], "opinion_index": 0, "case_paths": [ "/ill/375/0551-01" ] }, { "cite": "372 Ill. 254", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2527676 ], "year": 1941, "opinion_index": 0, "case_paths": [ "/ill/372/0254-01" ] }, { "cite": "305 Ill. 216", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2430173 ], "year": 1939, "opinion_index": 0, "case_paths": [ "/ill/305/0216-01" ] }, { "cite": "6 Ill.App.3d 1086", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2470326 ], "year": 1922, "pin_cites": [ { "page": "1089-1090" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/6/1086-01" ] }, { "cite": "409 Ill. 608", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5310119 ], "year": 1972, "pin_cites": [ { "page": "610" } ], "opinion_index": 0, "case_paths": [ "/ill/409/0608-01" ] }, { "cite": "2 Ill.2d 104", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 12122393 ], "year": 1951, "pin_cites": [ { "page": "109" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/2/0104-01" ] }, { "cite": "43 Ill.App.2d 214", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5246341 ], "weight": 2, "pin_cites": [ { "page": "219" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/43/0214-01" ] }, { "cite": "94 Ill.App.2d 138", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2479258 ], "pin_cites": [ { "page": "141" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/94/0138-01" ] }, { "cite": "10 Ill.App.3d 666", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5396802 ], "year": 1968, "pin_cites": [ { "page": "668" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/10/0666-01" ] }, { "cite": "9 Ill.App.3d 568", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2847026 ], "year": 1973, "pin_cites": [ { "page": "570" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/9/0568-01" ] }, { "cite": "333 Ill.App. 68", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5030456 ], "year": 1973, "pin_cites": [ { "page": "85" } ], "opinion_index": 0, "case_paths": [ "/ill-app/333/0068-01" ] }, { "cite": "41 Ill.2d 177", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2853252 ], "year": 1947, "pin_cites": [ { "page": "187" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/41/0177-01" ] }, { "cite": "41 Ill.2d 87", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2853495 ], "year": 1968, "pin_cites": [ { "page": "90" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/41/0087-01" ] } ], "analysis": { "cardinality": 570, "char_count": 10635, "ocr_confidence": 0.753, "pagerank": { "raw": 3.372919850474092e-07, "percentile": 0.8759134219794281 }, "sha256": "60998c74886a00e9d36bd1b8aee056f6578ac2b8c21dd967039651311e39aeeb", "simhash": "1:1078641616451b7c", "word_count": 1800 }, "last_updated": "2023-07-14T16:53:04.796688+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Shabon L. Lawyer, Plaintiff and Counterdefendant-Appellant, v. Delmar C. Lawyer, Defendant and Counterplaintiff-Appellee." ], "opinions": [ { "text": "Mr. JUSTICE RECHENMACHER\ndelivered the opinion of the court:\nPlaintiff (wife) appeals from a judgment granting a divorce to defendant-counterplaintiff (husband) awarding to the husband her interest in jointly owned marital real estate, granting to him custody of their minor son, Mark, and denying her any visitation rights for 1 year with respect to Mark, and from the trial court\u2019s denial of a verified petition for a change of venue.\nThe wife filed a complaint for divorce on January 6, 1972, charging mental cruelty. On January 11 the husband filed his answer and the wife presented for hearing her motion before Judge James E. Bales for temporary alimony, child support, attorney fees, and exclusive possession of the marital home. At that hearing the wife included in her testimony statements concerning the husband\u2019s conduct toward a minor son, Paul, his constant criticism of Paul and herself, his numerous accusations as to her \u201cinfidelity\u201d and the effect of that conduct on Paul and herself in making her \u201cnervous and upset\u201d. The husband also testified at that hearing. On the following day Judge Bales filed a memorandum of decision, denying the wife\u2019s motion, and on January 17 entered the order of denial.\nAfter the husband served notice of his motion (to be heard February 16) for leave to file his counterclaim for divorce, wife filed her petition on that day for change of venue, alleging her belief that Judge Bales \u201cis prejudiced\u201d against her. In denying her petition Judge Bales stated in his memorandum of decision: \u201cThis court always allows a request for change of venue under the proper circumstances\u201d but that in this case \u201cthe court has already heard testimony\u201d and that to grant the petition now \u201cwould open the door to shopping\u2019 for a change.\u201d The wife\u2019s petition for a change of venue was not filed until the trial court had heard testimony of the parties on substantial issues such as alimony, child support, custody, and the wife\u2019s allegation of mental cruelty, and after the court by its ruling indicated his attitude with respect to the issues. Under such circumstances the petition for change of venue was not filed at the earliest practicable moment and was properly denied. Hildebrand v. Hildebrand (1968), 41 Ill.2d 87, 90; People v. Speck (1968), 41 Ill.2d 177, 187; Russell v. Russell (1947), 333 Ill.App. 68, 85; Peck v. Rockford Life Insurance Co. (1973), 9 Ill.App.3d 568, 570; People v. Savaiano (1973), 10 Ill.App.3d 666, 668; Miller v. Miller (1968), 94 Ill.App.2d 138, 141; Ill. Rev. Stat. 1971, ch. 146, par. 3.\nThe wife relies on Miller v. Miller (1963), 43 Ill.App.2d 214, 219. The opinion in that case does not reflect that the trial court had heard testimony on substantial issues. It merely refers to \u201cappearances\u201d in court regarding temporary alimony and child support prior to the filing of the petition for a change of venue. However, the court states that none of the \u201cpreliminary matters considered or ruled on by the court had any direct bearing on the substantive issues presented in the complaint.\u201d That is a far cry from the instant case where the trial court heard direct testimony and made rulings on substantive issues.\nThe wife contends that the court erred in denying her complaint for divorce and in awarding a divorce to her husband. The husbands counterclaim for divorce on the ground of mental cruelty was amended by leave of court to add the charge of adultery, of which charge the trial court found her guilty. In our opinion no useful purpose would be served by reciting the evidence adduced in support of the charge. Suffice it to note that the trial court observed and heard the witnesses and we are unable to say, after a thorough review of the record, that the evidence does not support the court\u2019s determination.\nThe wife also complains of the trial court\u2019s award to the husband pf her interest in their jointly owned marital real estate. The husband\u2019s counterclaim merely alleged as to that real estate that he was its \u201cequitable owner\u201d and asks that the wife \u201cbe barred from all interest in the real estate of the parties\u201d. -\nThe parties were married in June 1959. The husband adopted his wife\u2019s son, Paul, who was bom in 1957. In October of 1959 their son, Mark, was bom. In October of 1960 as \u201cjoint tenants\u201d they entered into a contract for a deed to buy their marital home in Dixon. The husband made all payments on that house, as well as taxes and interest thereon. Upon the husband\u2019s payment of the contract balance, title was conveyed to them as joint tenants by deed dated December 2, 1969 and was so held by them at the time of this proceeding.\nThe divorce decree awarding the marital real estate to the husband \u201cbarred\u201d each party from asserting any claim to alimony. It made no finding of fact relating to the real estate. However, in the memorandum of decision the trial court stated that \u201cit does not appear that the plaintiff [wife] contributed to the purchase of the real estate,\u201d that the husband \u201cfinanced\u201d all repairs and improvements \u201cas well as the purchase price and payments,\u201d that the husband and Mark reside in the home, and therefore awarded the real estate to the husband. These are the only statements in the court\u2019s memorandum bearing on the award to the husband of the marital real estate.\nThose facts are not sufficient for a determination that the husband is the equitable owner of the interest of the wife in the marital home, title to which was taken in joint tenancy, and which was purchased by them in 1960 as joint tenants. The allegation in the husband\u2019s counterclaim that he was the equitable owner was unsupported by any specific allegations of special equities to justify divesting the wife of her interest. To justify the conveyance of one spouse\u2019s interest to the other in property, the special equities or special circumstances -must be specifically alleged in the complaint and established by the evidence. In the absence of such allegations relief cannot be granted. (Cross v. Cross (1954), 2 Ill.2d 104, 109; Persico v. Persico (1951), 409 Ill. 608, 610; Overton v. Overton (1972), 6 Ill.App.3d 1086, 1089-1090.) Even in Gilbert v. Gilbert (1922), 305 Ill. 216, relied on by the husband, there were allegations and proof of fraud by the husband in obtaining the deed. Likewise in Walsh v. Walsh (1939), 372 Ill. 254, and in Bissett v. Bissett (1941), 375 Ill. 551, 555, it was pointed out that specific allegations of fact must be made and proven to warrant relief.\nWhen the husband voluntarily conveys property to his wife or provides therefor by conveyance by joint tenancy, as the husband did here, without fraud or coercion, a gift thereof is presumed notwithstanding the fact that the husband paid for the property with his own funds. (Larocco v. Larocco (1973), 10 Ill.App.3d 366, 368.) That presumption can be overcome only by clear, convincing and unmistakable evidence that no gift was intended. (Baker v. Baker (1952), 412 Ill. 511, 515.) There is nothing in this record- that indicated, either in 1960 when the parties as joint tenants contracted to buy the property, or in 1969 when tide was so conveyed to them, tiiat the wife was other than a dutiful wife. Subsequent acts of misconduct not shown to be in contemplation at the time of purchase or conveyance would not warrant cancellation of die wife\u2019s interest in the marital home. (Baker v. Baker (1952), 412 Ill. at 516; Kratzer v. Kratzer (1971), 130 Ill.App.2d 762, 767.) The cases cited by the husband are therefore inapposite. The trial court erred in awarding to the husband the wife\u2019s interest in the jointly owned marital home and in failing to award to her her one-half interest in that real estate.\nFinally, the wife argues that the trial court abused its discretion in awarding custody of their minor son, Mark, to the husband and in restricting her visitation rights. The divorce decree awarded to the wife custody of the other minor son, Paul, and ordered the husband to make reasonable child support payments, but Mark\u2019s custody was awarded to the husband with the denial of the mother\u2019s visitation rights for 1 year. The record in this case and the trial court\u2019s memorandum of decision clearly show that the trial judge gave thorough and careful consideration to the best interests of both children in determining custody and visitation rights. Moreover, both parties and their counsel stipulated prior to the court\u2019s ruling on custody and visitation, that the court\u2019s discussion with Mark, with a school social worker, and with a probation officer would be taken into consideration, along with all of the other evidence, by the court in deciding \u201cthe question of the mother\u2019s visits with the boy.\u201d We find nothing in the record to show that there was any abuse of discretion either in the award of Mark\u2019s custody or in denying the wife\u2019s visitation rights for 1 year, at the expiration of which the court would reconsider that subject. Mogged v. Mogged (1972), 5 Ill.App.3d 581, 589.\nTherefore we affirm that portion of the judgment which awards the divorce to the husband on his counterclaim, awards Mark\u2019s custody to the husband and restricts the wife\u2019s visitation rights, but we reverse and remand that portion of the judgment which awards the wife\u2019s interest in the marital home to the husband for further proceedings consistent with this opinion.\nAffirmed in part, reversed in part, and remanded with directions.\nT. MORAN, P. J., and GUILD, J., concur.\nThe opinion in Miller (43 Ill.App.2d 214) states that the petition for a change of venue included an allegation that knowledge of the judge\u2019s prejudice did not come to the petitioner until a date subseqeunt to the hearings, but makes no disclosures of any specifics of such knowledge.\nThus the trial court\u2019s award to the husband of the wife\u2019s interest in the real estate must have been intended to be made not as alimony in gross under section 18 of the Divorce Act (Ill. Rev. Stat. 1971, ch, 40, par. 19) but under section 17 (Ill. Rev. Stat. 1971, ch. 40, par. 18). Section 17 provides, \u201cWhenever a divorce is granted, if it shall appear to the court that either party holds the title to property equitably belonging to the other, the court may compel conveyance thereof to be made to the party entitled to the same, upon such terms as it shall deem equitable.\u201d", "type": "majority", "author": "Mr. JUSTICE RECHENMACHER" } ], "attorneys": [ "Wadsworth, Hornsby & Williamson, of Dixon (David R. Williamson, of counsel), for appellant.", "Gunner, Keller & Magdich, of Dixon, for appellee." ], "corrections": "", "head_matter": "Shabon L. Lawyer, Plaintiff and Counterdefendant-Appellant, v. Delmar C. Lawyer, Defendant and Counterplaintiff-Appellee.\n(No. 72-355;\nSecond District\nMay 29, 1974.\nWadsworth, Hornsby & Williamson, of Dixon (David R. Williamson, of counsel), for appellant.\nGunner, Keller & Magdich, of Dixon, for appellee." }, "file_name": "0571-01", "first_page_order": 595, "last_page_order": 599 }