{ "id": 2488688, "name": "MARY ZITO, Petitioner-Appellee, v. JOHN ZITO, SR., Respondent-Appellant", "name_abbreviation": "Zito v. Zito", "decision_date": "1990-04-16", "docket_number": "No. 1-89-0476", "first_page": "1031", "last_page": "1037", "citations": [ { "type": "official", "cite": "196 Ill. App. 3d 1031" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "499 N.E.2d 1042", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "148 Ill. App. 3d 792", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3643934 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/148/0792-01" ] }, { "cite": "518 N.E.2d 1316", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "165 Ill. App. 3d 273", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3615926 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ill-app-3d/165/0273-01" ] }, { "cite": "219 N.E.2d 68", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "72 Ill. App. 2d 51", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2585595 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/72/0051-01" ] }, { "cite": "427 N.E.2d 125", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1966, "opinion_index": 0 }, { "cite": "86 Ill. 2d 164", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5468851 ], "year": 1966, "opinion_index": 0, "case_paths": [ "/ill-2d/86/0164-01" ] }, { "cite": "440 N.E.2d 1028", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "pin_cites": [ { "page": "1030" } ], "opinion_index": 0 }, { "cite": "109 Ill. App. 3d 569", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5448350 ], "year": 1981, "pin_cites": [ { "page": "572-73" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/109/0569-01" ] } ], "analysis": { "cardinality": 578, "char_count": 12178, "ocr_confidence": 0.768, "pagerank": { "raw": 7.529347480852128e-08, "percentile": 0.4474164323865986 }, "sha256": "206368c1132149c83feaa0e573931bf470f600ab2e7963e3f5f53e56ed4b1229", "simhash": "1:02586dfa7635e1fe", "word_count": 2008 }, "last_updated": "2023-07-14T18:37:27.698771+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MARY ZITO, Petitioner-Appellee, v. JOHN ZITO, SR., Respondent-Appellant." ], "opinions": [ { "text": "JUSTICE EGAN\ndelivered the opinion of the court;\nThe respondent, John Zito, Sr., appeals from that part of a judgment of dissolution of marriage which disposed of the parties\u2019 property.\nThe respondent and the petitioner, Mary Zito, originally married on August 16, 1947, but were divorced in 1961. One child was born of this marriage, John Zito, Jr., who was emancipated at the time of trial.\nAfter the parties divorced, the petitioner and her father purchased a house in 1967; title to the house was in the petitioner\u2019s name only, but the father co-signed the mortgage note. Both the petitioner and her father made payments on the mortgage.\nOn November 24, 1974, the parties remarried. The respondent moved into the petitioner\u2019s house. At that time, the parties began paying the mortgage out of a checking account containing marital funds. Apparently, the checking account was in the petitioner\u2019s name but contained funds earned by the respondent during the marriage and was used to pay all household bills.\nIn 1979, the respondent\u2019s name was placed on the title and the parties refinanced the existing mortgage debt and added an additional debt of $18,000. The existing mortgage was retired, and the additional $18,000 was paid to the petitioner\u2019s brother to settle a pending lawsuit in which the brother claimed an interest in the property flowing from the father, who had died. The petitioner and respondent both signed the new note secured by the new mortgage and continued to make the new mortgage payments from the same checking account.\nSeveral improvements were made to the house during the parties\u2019 second marriage. A family room, a garage and driveway, a patio, and a sprinkler system were added. Also, the roof and central air conditioning were replaced, and part of the electrical system was rewired. Finally, the kitchen was remodeled and the house was tuck-pointed. Although the only evidence in support of these improvements was the parties\u2019 testimony (no documentation was offered), and although their testimony differed as to the value of the improvements and the source of funds for payment for the improvements, the trial judge concluded that the respondent, by his personal efforts, had made a special contribution to the house totalling $18,400.\nThe parties\u2019 separate tax returns for 1986 and 1987 were prepared by the same accountant. These returns showed that each party took deductions for one-half of the mortgage interest and one-half of the real estate taxes for each year shown.\nThe petitioner filed a petition for dissolution of marriage on May 23, 1986. Following the entry of an ex parte order of protection, the court entered a default judgment against the respondent and ordered him to vacate the marital premises. The respondent then successfully motioned to have the default vacated and filed his appearance and answer in September 1986. On October 16, 1986, the court recognized the parties\u2019 stated desire to attempt a reconciliation and allowed them to resume cohabitation as husband and wife. However, on March 9, 1987, on the petitioner\u2019s motion, the court set the case for trial.\nThe petitioner testified that in September 1986, before the parties\u2019 temporary reconciliation, she found 22 bundles of cash totalling $22,000 in a box in the basement. She had her son\u2019s mother-in-law, Norine Silvestri, come to the house and take pictures of the bundles. Mrs. Silvestri testified that she took several pictures of the money, which were admitted into evidence. The petitioner further testified that, when the reconciliation was being discussed, she questioned the respondent about the cash, and he indicated that the money was his and that he intended to move it. He put the money in a can, and two days later the can was gone. The respondent subsequently told the petitioner that he had taken the money.\nThe respondent testified that the petitioner at one time asked him about $22,000 in cash that she found in the house. However, he denied any knowledge or ownership of the money and denied ever seeing or taking the money from the home.\nThe petitioner filed a pretrial memorandum in accordance with the circuit court rules and, following trial, filed a written closing statement pursuant to the court\u2019s instruction to both parties. The respondent did not file either a pretrial memorandum or a closing statement. In the judgment order, the judge made particular note of the fact that the respondent had not filed a pretrial memorandum or a closing statement. What has been called a \u201cclosing statement\u201d by the judge and the parties, we interpret to mean a written closing argument.\nThe judge\u2019s memorandum order made findings of fact and conclusions of law in classifying and distributing the property. He held that the petitioner, by \u201cclear and convincing evidence,\u201d had overcome the presumption that she intended to make a gift to her husband of a one-half interest in the marital home and classified the home as nonmarital property belonging to the petitioner. The respondent contends that the judge erred in classifying the marital residence as nonmarital property of the petitioner.\nThe respondent does not contest that before the transfer of title to him the property was the nonmarital property of the petitioner. Rather, he says, when \u201ca spouse owning separate nonmarital property performs the affirmative act of *** transferring title into a form of joint ownership *** such act creates the \u2018rebuttable presumption\u2019 of that party\u2019s intention to change the character of the property to marital.\u201d (In re Marriage of Wojcicki (1982), 109 Ill. App. 3d 569, 572-73, 440 N.E.2d 1028, 1030.) This presumption of transmutation may be rebutted by clear and convincing evidence that no gift to the marital estate was intended. In re Marriage of Emken (1981), 86 Ill. 2d 164, 427 N.E.2d 125; Bruin v. Bruin (1966), 72 Ill. App. 2d 51, 219 N.E.2d 68.\nThe trial judge found that the respondent relied solely on the presumption of transmutation to establish that the house became marital property, and that the petitioner established by clear and convincing evidence that the conveyance was for convenience and necessity in order to obtain $18,000 with which to settle the petitioner\u2019s brother\u2019s claim on the property. We must express disagreement with this finding of the trial judge. The petitioner testified that her husband\u2019s name was put on the title when they both refinanced the existing mortgage; the funds from the new mortgage were used to pay off the old mortgage and to pay her brother $18,000. She did not testify that her husband\u2019s name was put on the title in order to settle her brother\u2019s claim. We find it most significant that she was never asked any questions about her intent at the time her husband\u2019s name was put on the title. We do not believe that the petitioner\u2019s evidence was clear and convincing to rebut the presumption that she intended to make a gift, and, most important, the petitioner is wrong when she states that the respondent \u201cpaid no consideration when his name was placed on the title.\u201d The respondent provided consideration when he executed the mortgage note obligating himself to repay the money.\nThe petitioner relies on In re Marriage of Benz (1988), 165 Ill. App. 3d 273, 518 N.E.2d 1316, and In re Marriage of Leff (1986), 148 Ill. App. 3d 792, 499 N.E.2d 1042. Both cases are factually inapposite. In Benz, the wife testified specifically that it was never her intent to make a gift. She also established that she had resisted transferring the property held in her name to a joint trust with her husband for a period of time, that her husband kept \u201cpestering\u201d her to place the property in a marital trust and that she finally agreed in order to keep peace in the family because her husband had become increasingly verbally abusive. In Leff the husband, who was a doctor, testified that he put property in his wife\u2019s name only to protect himself from a possible malpractice suit. He expressly said that he did not intend the property to be a gift.\nWe repeat that in this case the petitioner significantly was not asked any questions about her reason for putting her husband\u2019s name on the title. The petitioner testified that part of the funds raised through the refinancing were used to settle her brother\u2019s asserted interest in the property, but no evidence was offered to show that the petitioner could not obtain the additional funds without adding the respondent\u2019s name to the record title on the property. Moreover, strengthening the presumption of a gift, the testimony of both parties indicated that they paid the monthly payments on both the original and the refinanced mortgages from marital funds, and their separately filed tax returns showed that they each claimed one-half of the mortgage interest and real estate taxes as deductions in 1986 and 1987. Most important, however, we repeat, the respondent assumed an obligation under the new mortgage. For these reasons, we judge that the trial judge abused his discretion in concluding that the petitioner had overcome the presumption of a transmutation of the interest in the house by clear and convincing evidence. The marital residence should have been classified as marital property.\nThe respondent next argues that the judge abused his discretion by failing to consider the petitioner\u2019s dissipation of assets in dividing the marital property. We agree with the petitioner\u2019s argument that the respondent waived his claim of any alleged dissipation of marital assets by the petitioner. The trial judge made express reference to the fact that no claim of dissipation had been made by either party.\nThe respondent\u2019s argument centers on the five separate accounts totalling $11,350 about which the petitioner testified. In the pretrial memorandum filed by the petitioner she claimed that all of the funds in the accounts were her property alone. At no time did the respondent suggest to the court that the petitioner used the funds for a nonmarital purpose or otherwise raise the issue of dissipation. The respondent failed to file a required pretrial memorandum (see Cook County Cir. Ct. R. 13.4(h)(iv)), despite the judge\u2019s specific instruction that he do so. Such a memorandum would have put the court and the petitioner on notice that the respondent intended to charge dissipation or, at least, to claim that he was entitled to one-half of the funds in the accounts. To illustrate, the petitioner did file a pretrial memorandum that listed $22,000, which the husband had removed from the house, as a marital asset; she thus put the court and the respondent on notice that she was claiming half of that property. We conclude that the respondent\u2019s failure to file a pretrial memorandum claiming an interest in the accounts and his failure to argue the matter constitute a waiver. For these reasons, we must reject the respondent\u2019s claim that the judge erred.\nThe judge ordered that the respondent be reimbursed the sum of $18,400 representing \u201cspecial contributions\u201d he had made to the house. It is at least highly probable that such an order would not have been made if the judge had held that the residence was marital property. Our holding that the residence is to be properly classified as marital property requires that we vacate that part of the order that the respondent be reimbursed for special contributions and that the case be remanded to the trial court for further proceedings.\nIn sum, that part of the judgment holding that the residence was nonmarital property of the petitioner is reversed; that part of the judgment ordering reimbursement to the respondent of $18,400 is vacated. In all other respects the judgment is affirmed. This cause is remanded to the trial court for any further necessary proceedings consistent with this opinion.\nJudgment affirmed in part, reversed in part, vacated in part and remanded.\nLaPORTA, P.J., and McNAMARA, J., concur.", "type": "majority", "author": "JUSTICE EGAN" } ], "attorneys": [ "Nicholas M. Spina and Joseph B. Taconi, Jr., both of Chicago, for appellant.", "Joel S. Ostrow, of Chicago, for appellee." ], "corrections": "", "head_matter": "MARY ZITO, Petitioner-Appellee, v. JOHN ZITO, SR., Respondent-Appellant.\nFirst District (6th Division)\nNo. 1\u201489\u20140476\nOpinion filed April 16, 1990.\nNicholas M. Spina and Joseph B. Taconi, Jr., both of Chicago, for appellant.\nJoel S. Ostrow, of Chicago, for appellee." }, "file_name": "1031-01", "first_page_order": 1053, "last_page_order": 1059 }