{ "id": 3777779, "name": "In re MARRIAGE OF PHYLLIS JANE BARNETT, Petitioner-Appellee, and SOL BARNETT, Respondent-Appellant", "name_abbreviation": "In re Marriage of Barnett", "decision_date": "2003-12-05", "docket_number": "No. 4-02-1073", "first_page": "1150", "last_page": "1157", "citations": [ { "type": "official", "cite": "344 Ill. App. 3d 1150" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "755 N.E.2d 522", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2001, "pin_cites": [ { "page": "528" } ], "opinion_index": 0 }, { "cite": "324 Ill. App. 3d 514", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 256275 ], "year": 2001, "pin_cites": [ { "page": "520" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/324/0514-01" ] }, { "cite": "665 N.E.2d 1260", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "pin_cites": [ { "page": "1274" } ], "opinion_index": 0 }, { "cite": "172 Ill. 2d 213", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 55976 ], "year": 1996, "pin_cites": [ { "page": "242" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/172/0213-01" ] }, { "cite": "499 N.E.2d 1042", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1986, "pin_cites": [ { "page": "1052", "parenthetical": "husband testified he transferred residence to wife only to protect the property from a malpractice action against him" }, { "page": "1052-53" }, { "page": "1052" } ], "opinion_index": 0 }, { "cite": "148 Ill. App. 3d 792", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3643934 ], "weight": 3, "year": 1986, "pin_cites": [ { "page": "807", "parenthetical": "husband testified he transferred residence to wife only to protect the property from a malpractice action against him" }, { "page": "807" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/148/0792-01" ] }, { "cite": "576 N.E.2d 44", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1991, "pin_cites": [ { "page": "50" }, { "page": "50-51" }, { "page": "50" } ], "opinion_index": 0 }, { "cite": "215 Ill. App. 3d 763", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5294196 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "771" }, { "page": "773" }, { "page": "772" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/215/0763-01" ] }, { "cite": "416 N.E.2d 1235", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "1237-38" }, { "page": "1237", "parenthetical": "wife who executed a quitclaim deed to husband testified \"she had been harassed by him on the matter, and that she executed the deed to please him and to save her marriage\"" } ], "opinion_index": 0 }, { "cite": "93 Ill. App. 3d 122", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3134317 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "125" }, { "page": "124" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/93/0122-01" ] }, { "cite": "728 N.E.2d 1230", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "pin_cites": [ { "page": "1232" } ], "opinion_index": 0 }, { "cite": "313 Ill. App. 3d 356", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 186484 ], "year": 2000, "pin_cites": [ { "page": "359" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/313/0356-01" ] }, { "cite": "692 N.E.2d 286", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "pin_cites": [ { "page": "291" } ], "opinion_index": 0 }, { "cite": "181 Ill. 2d 112", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 821416 ], "year": 1998, "pin_cites": [ { "page": "123" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/181/0112-01" ] }, { "cite": "670 N.E.2d 345", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "pin_cites": [ { "page": "349" } ], "opinion_index": 0 }, { "cite": "283 Ill. App. 3d 656", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 182771 ], "year": 1996, "pin_cites": [ { "page": "662" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/283/0656-01" ] }, { "cite": "585 N.E.2d 105", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "pin_cites": [ { "page": "112", "parenthetical": "practice of answering interrogatories with vague, general responses and attaching to them 23 pages of unverified, unidentified documents not specifically referred to or described in answer is not an acceptable substitute for answers required by court rule" } ], "opinion_index": 0 }, { "cite": "145 Ill. 2d 534", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5596285 ], "year": 1991, "pin_cites": [ { "page": "549", "parenthetical": "practice of answering interrogatories with vague, general responses and attaching to them 23 pages of unverified, unidentified documents not specifically referred to or described in answer is not an acceptable substitute for answers required by court rule" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/145/0534-01" ] }, { "cite": "634 N.E.2d 448", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1994, "pin_cites": [ { "page": "458" } ], "opinion_index": 0 }, { "cite": "262 Ill. App. 3d 94", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2848889 ], "year": 1994, "pin_cites": [ { "page": "108" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/262/0094-01" ] }, { "cite": "629 N.E.2d 1216", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "1222" }, { "page": "1222" } ], "opinion_index": 1 }, { "cite": "258 Ill. App. 3d 454", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2881396 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "463" }, { "page": "463" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/258/0454-01" ] }, { "cite": "499 N.E.2d 1042", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "1052-53" }, { "page": "1052-53", "parenthetical": "finding a lack of donative intent where the respondent testified he transferred property to his spouse to protect it from a possible malpractice action" } ], "opinion_index": 1 }, { "cite": "148 Ill. App. 3d 792", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3643934 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "806-08" }, { "page": "807-08" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/148/0792-01" ] }, { "cite": "576 N.E.2d 44", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "49-51" }, { "page": "50" } ], "opinion_index": 1 }, { "cite": "215 Ill. App. 3d 763", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5294196 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "771-73" }, { "page": "773" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/215/0763-01" ] } ], "analysis": { "cardinality": 748, "char_count": 15517, "ocr_confidence": 0.745, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.11158835901243663 }, "sha256": "4f39d5fa2a1865bd37c15d282d3184bc0fb09aa53bd80b73ccda923c642dd08a", "simhash": "1:a23c39de7bd6cd04", "word_count": 2526 }, "last_updated": "2023-07-14T15:11:26.904766+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re MARRIAGE OF PHYLLIS JANE BARNETT, Petitioner-Appellee, and SOL BARNETT, Respondent-Appellant." ], "opinions": [ { "text": "JUSTICE COOK\ndelivered the opinion of the court:\nRespondent, Sol Barnett, appeals a judgment of dissolution of marriage entered by the circuit court of Champaign County on September 5, 2002. Respondent argues the trial court erred (1) in barring him from presenting certain evidence as a sanction for refusing to afford discovery and (2) in finding that his transfer of a joint tenancy Fidelity account to petitioner, Phyllis Jane Barnett, constituted a gift, rendering the account petitioner\u2019s nonmarital property. We affirm.\nPetitioner and respondent were married April 23, 1988. On February 29, 2000, petitioner filed a petition for dissolution of marriage. Shortly after the petition was filed, petitioner moved to California and respondent moved to North Dakota.\nPetitioner filed a request to produce and matrimonial interrogatories on April 5, 2000. Respondent filed a motion for an extension of time, and on June 27, 2000, the trial court entered an agreed order requiring respondent to furnish discovery within 60 days. When that was not done, the court, on January 25, 2001, ordered discovery be furnished within 10 days, warning that failure to do so would result in a default finding being entered, and assessed attorney fees. Respondent delivered a response of sorts on February 5, 2001. Many of respondent\u2019s answers, however, included the phrases \u201crecords for 2000 and 2001 are to be provided,\u201d \u201cdetails are unavailable to respondent at this writing,\u201d \u201crespondent has not been able to access all documents needed to complete this answer,\u201d \u201crespondent\u2019s efforts to complete a list, without access to records, continues,\u201d and \u201crecords are not available to me. Records are with accountant, Barb Lichti, petitioner, or in Champaign home.\u201d Lichti, however, stated that she informed respondent numerous times that she did not have the records he sought.\nAt a hearing on March 19, 2001, respondent\u2019s attorney advised the court that he had supplied petitioner with 15 pounds of discovery response and \u201cI kind of foresee the court having to look through a thousand pages of documents to reconcile this.\u201d The trial court denied respondent\u2019s motion for an extension of time to supplement discovery. At a later pretrial conference, the trial court advised the parties it would make a final ruling on discovery and \u201cI expect both of you to have everything that you want the court to see that day so I can make a call so that we can get on with this case.\u201d On October 2, 2001, the court made its final ruling on discovery. The court stated \u201cI believe \u2018details are unavailable at this time\u2019 is in fact an improper answer. It\u2019s a euphemism for saying I am not going to get around to answering your question yet.\u201d Accordingly, the court imposed a sanction, barring respondent from presenting any further evidence relating to financial information, and awarding attorney fees.\nRespondent argues the trial court erred in sanctioning him on October 2, 2001, because by that time he was in compliance with petitioner\u2019s discovery requests. An appellate court will not overturn a trial court\u2019s sanction absent an abuse of discretion. See Ciampi v. Ogden Chrysler Plymouth, Inc., 262 Ill. App. 3d 94, 108, 634 N.E.2d 448, 458 (1994). Respondent\u2019s \u201c15 pounds of discovery\u201d response was inadequate. In re Blank, 145 Ill. 2d 534, 549, 585 N.E.2d 105, 112 (1991) (practice of answering interrogatories with vague, general responses and attaching to them 23 pages of unverified, unidentified documents not specifically referred to or described in answer is not an acceptable substitute for answers required by court rule). Failure to comply is unreasonable if it is a \u201cdeliberate, contumacious, or unwarranted disregard of the court\u2019s authority.\u201d Blott v. Hanson, 283 Ill. App. 3d 656, 662, 670 N.E.2d 345, 349 (1996). A just sanction is one which, \u201cto the degree possible, insures both discovery and a trial on the merits.\u201d Skimanovsky v. General Motors Corp., 181 Ill. 2d 112, 123, 692 N.E.2d 286, 291 (1998). The purpose of the sanction is to coerce compliance with discovery orders, not to punish the remiss party. In re Marriage of Booher, 313 Ill. App. 3d 356, 359, 728 N.E.2d 1230, 1232 (2000). When it becomes apparent that a party will not afford discovery, however, the trial court must devise some fair method to complete the case.\nApplying these factors and principles to the present case, we find the trial court did not abuse its discretion by barring respondent from presenting additional evidence of financial matters. An enormous potential for prejudice lies if financial information is missing due to respondent\u2019s failure to comply with discovery. The court here was forced to make a number of rulings without sufficient financial information. For example, although the court awarded the value of respondent\u2019s medical practice to him, the court was unaware of the value of that asset. Petitioner claimed more than once that she did not know the extent of respondent\u2019s wealth and she believed he was hiding money and transferring money often. From the record it is clear respondent was a wealthy man with various assets and money placed in numerous accounts. The trial court considered the potential for prejudice to respondent and found the potential prejudice to petitioner due to respondent\u2019s concealment of information more compelling. The court imposed a sanction proportionate to the gravity of respondent\u2019s discovery violations.\nRespondent was allowed to testify and present additional evidence regarding a disputed $1,551,616.48 Fidelity account No. X53094005. At one time, this account contained respondent\u2019s premarital funds and was a joint account between the parties. In 1995, however, respondent transferred the account solely to petitioner. Respondent testified he transferred the account to petitioner to protect the account from two malpractice actions then pending against him. He anticipated the account would be returned to joint ownership upon his retirement in November 1999. Respondent admitted he understood when he transferred the account into petitioner\u2019s name that it was no longer a joint account and that he did not have any ownership interest in it. Petitioner testified respondent gave her the account as a gift because \u201che\u2019s substantially older than me; and he wanted me to feel secure\u201d and \u201cat that time he cared about me.\u201d Respondent argued, however, that petitioner did not claim the account as her nonmarital property in her response to his interrogatories and first did so in her supplemental pretrial memorandum.\nThe trial court found that respondent made a gift of the account to petitioner and that the account was petitioner\u2019s nonmarital property. In doing so, the court stated \u201con my assessment of the credibility of the witnesses, I believed more likely her version of the events and determined that amount, that fund to be nonmarital property, so I awarded it to her.\u201d\nThe Illinois Marriage and Dissolution of Marriage Act (Dissolution Act) specifically provides that \u201cnon[ ]marital property transferred into some form of co-ownership between the spouses\u201d is presumed to be marital property. 750 ILCS 5/503(b)(l) (West 2000). It has been held that the converse is also true: that it is possible for one spouse to make a gift to the other of marital property, which the recipient could claim then as nonmarital. In re Marriage of Severns, 93 Ill. App. 3d 122, 125, 416 N.E.2d 1235, 1237-38 (1981). Even where title is placed solely in one person\u2019s name, however, there is a presumption that the property is marital property, which presumption can be overcome only by clear, convincing, and unmistakable evidence. In re Marriage of Davis, 215 Ill. App. 3d 763, 771, 576 N.E.2d 44, 50 (1991).\nUnder the Dissolution Act, the preference is certainly for marital property. Nonmarital property will be found only where the requirements of the Dissolution Act are specifically met. There would seem to be a difference between the situation where marital property is placed in the name of the dominant spouse and the situation where marital property is placed in the name of the nondominant spouse. Compare Severns, 93 Ill. App. 3d at 124, 416 N.E.2d at 1237 (wife who executed a quitclaim deed to husband testified \u201cshe had been harassed by him on the matter, and that she executed the deed to please him and to save her marriage\u201d), with In re Marriage of Leff, 148 Ill. App. 3d 792, 807, 499 N.E.2d 1042, 1052 (1986) (husband testified he transferred residence to wife only to protect the property from a malpractice action against him). The cases, however, have not made that distinction.\nDavis reversed a finding that the husband intended a gift where he transferred a residence to his wife. The evidence in that case established that the conveyance was part of an estate-tax planning scheme. The husband continued to control the home by making payments for mortgages, taxes, insurance, and by making improvements. Davis, 215 Ill. App. 3d at 773, 576 N.E.2d at 50-51. The trial court in Davis erred as a matter of law by relying on a federal decision that gave controlling weight to the fact of conveyance. Davis, 215 Ill. App. 3d at 772, 576 N.E.2d at 50. In Leff, the court agreed with the trial court\u2019s finding of no donative intent when the husband transferred title to the residence to his wife\u2019s name. Leff, 148 Ill. App. 3d at 807-OS, 499 N.E.2d at 1052-53. In Leff, the mortgage to the residence was in both names, and the husband continued to make all mortgage, tax, and insurance payments on the property. Leff, 148 Ill. App. 3d at 807, 499 N.E.2d at 1052.\nIn the present case, the trial court did not rely on the mere fact of transfer. The trial court found, by clear and convincing evidence, that respondent had a donative intent to vest title absolutely and irrevocably in the donee. The asset in the present case was not a residence over which the donor continued to exercise dominion. It was an account, which respondent did not deal with after it was transferred. The court made it clear that it did not believe respondent\u2019s testimony regarding the account. Even if respondent\u2019s testimony were accepted, that he transferred the account to protect it from creditors, it does not necessarily follow that respondent expected the account to be returned to him. Perhaps it was sufficient that petitioner and not the creditors have the account.\nRespondent essentially argues that he was lying to his creditors when he transferred the account in 1995, that he did not really intend to give up his interest in the account. Was the respondent lying then or is he lying now? The decision was one for the trial court, and the court resolved it against respondent. A decision is contrary to the manifest weight of the evidence when an opposite conclusion is apparent or when the findings are unreasonable, arbitrary, or not based on the evidence. Rhodes v. Illinois Central Gulf R.R., 172 Ill. 2d 213, 242, 665 N.E.2d 1260, 1274 (1996). There was certainly some evidence in the present case to support the trial court\u2019s decision. It is the province of the trial judge to determine the credibility of the witnesses. In re Marriage of Barnes, 324 Ill. App. 3d 514, 520, 755 N.E.2d 522, 528 (2001).\nThe trial court did not abuse its discretion by barring respondent from presenting additional financial evidence at trial. The trial court\u2019s decision to classify the $1,551,616.48 Fidelity account No. X53094005 as petitioner\u2019s nonmarital property was not against the manifest weight of the evidence. We affirm.\nAffirmed.\nMcCullough, j., concurs.", "type": "majority", "author": "JUSTICE COOK" }, { "text": "JUSTICE TURNER,\nspecially concurring in part and dissenting in part:\nI respectfully dissent from that portion of the majority order finding the $1,551,616.48 Fidelity account No. X53094005 was petitioner\u2019s nonmarital property.\nAs the majority notes, to rebut the presumption the account at issue was marital property, petitioner bore the burden of proving by clear, convincing, and unmistakable evidence that she acquired the account as a gift from respondent. The fact the account was listed in petitioner\u2019s name only was insufficient to rebut the marital property presumption. Thus, petitioner had to prove respondent transferred the account to her with a donative intent to pass title and relinquish all present and future dominion over the account. See 344 Ill. App. 3d at 1154. I find petitioner\u2019s testimony was not clear, convincing, and unmistakable evidence and thus was insufficient to rebut the marital property presumption.\nThe facts of this case are similar to those in both Davis, 215 Ill. App. 3d at 771-73, 576 N.E.2d at 49-51, and Leff, 148 Ill. App. 3d at 806-08, 499 N.E.2d at 1052-53, where the courts found the property was marital property. See 344 Ill. App. 3d at 1155. Here, respondent testified he transferred the account into petitioner\u2019s name to protect the account from his pending malpractice lawsuits. See Leff, 148 Ill. App. 3d at 807-08, 499 N.E.2d at 1052-53 (finding a lack of donative intent where the respondent testified he transferred property to his spouse to protect it from a possible malpractice action). He anticipated the account would be returned to joint ownership when he retired. Contrary to the majority\u2019s finding, respondent continued to deal with the account after the transfer by depositing his paycheck into the account until the parties separated.\n\u00edn this case, the trial court took judicial notice of two medical malpractice cases that were pending against respondent at the time of the transfer. That evidence supports respondent\u2019s testimony that the transfer was for asset protection purposes. Also, as in Davis, 215 Ill. App. 3d at 773, 576 N.E.2d at 50, respondent filed no gift tax return.\nMoreover, petitioner did not assert the account at issue was her nonmarital property in both her response to respondent\u2019s interrogatories and her initial prejudgment pretrial memorandum. It was not until her supplemental pretrial memorandum that she alleged the account was a gift.\nPetitioner cites In re Marriage of Weiler, 258 Ill. App. 3d 454, 463, 629 N.E.2d 1216, 1222 (1994), wherein the Fifth District distinguished the respondent donor\u2019s motive for transferring his property from his intent for making the transfer. The court found that \u201c[mjotive is what prompts a person to act or fail to act, and intent refers only to the state of mind with which the act is done or omitted.\u201d Weiler, 258 Ill. App. 3d at 463, 629 N.E.2d at 1222. I am unconvinced and discern no reason to distinguish motive and donative intent as they are the same concept.\nThe majority intimates its disapproval of respondent\u2019s attempt to hide his assets from potential creditors. See 344 Ill. App. 3d at 1155. This is certainly understandable, but by recognizing the transfer here as a completed gift, the majority\u2019s ruling tends to give credence to the practice of hiding assets from creditors rather than discouraging it.\nFor the reasons stated, I would reverse the trial court\u2019s classification of the $1,551,616.48 Fidelity account No. X53094005.", "type": "concurring-in-part-and-dissenting-in-part", "author": "JUSTICE TURNER," } ], "attorneys": [ "Stephen R. Ryan (argued), of Ryan, Bennett, Radloff & O\u2019Brien, of Mat-toon, for appellant.", "Rebecca E.E Wade (argued), of Meyer Capel, EC., of Champaign, for ap-pellee." ], "corrections": "", "head_matter": "In re MARRIAGE OF PHYLLIS JANE BARNETT, Petitioner-Appellee, and SOL BARNETT, Respondent-Appellant.\nFourth District\nNo. 4-02-1073\nArgued August 20, 2003.\nOpinion filed December 5, 2003.\nRehearing denied January 29, 2004.\nTURNER, J., specially concurring in part and dissenting in part.\nStephen R. Ryan (argued), of Ryan, Bennett, Radloff & O\u2019Brien, of Mat-toon, for appellant.\nRebecca E.E Wade (argued), of Meyer Capel, EC., of Champaign, for ap-pellee." }, "file_name": "1150-01", "first_page_order": 1168, "last_page_order": 1175 }