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                                  Appellate Court                           Date: 2016.09.29
                                                                            10:03:18 -05'00'




                  In re Marriage of Vondra, 2016 IL App (1st) 150793



Appellate Court      In re MARRIAGE OF DAVID VONDRA, Petitioner-Appellee, and
Caption              MIKA J. VONDRA, Respondent-Appellant (Eugenia Sabadaszka,
                     Plaintiff; and David Vondra, Individually and as Trustee of the David
                     Vondra Revocable Trust, Dated November 20, 2007, Defendant).



District & No.       First District, First Division
                     Docket No. 1-15-0793



Filed                July 18, 2016



Decision Under       Appeal from the Circuit Court of Cook County, Nos. 10-D-10580,
Review               12-CH-06686 cons.; the Hon. Edward A. Arce, Judge, presiding.



Judgment             Affirmed.



Counsel on           Paul L. Feinstein, of Chicago, for appellant.
Appeal
                     Deutsch, Levy & Engel, Chtrd., of Chicago (Melvyn H. Berks and
                     Ryan D. Janski, of counsel), for appellee.



Panel                JUSTICE HARRIS delivered the judgment of the court, with opinion.
                     Presiding Justice Cunningham and Justice Connors concurred in the
                     judgment and opinion.
                                              OPINION

¶1       Respondent, Mika J. Vondra, appeals the circuit court’s judgment in a marriage dissolution
     proceeding, specifically the court’s characterization and distribution of various assets pursuant
     to section 503 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/503
     (West 2014)). On appeal, respondent contends (1) she is entitled to the reimbursement of
     $253,000 she contributed in nonmarital funds to pay down the mortgage on the marital
     residence and (2) the trial court erred in classifying respondent’s Madison Avenue IRA No.
     6863 (IRA 6863) and the American Enterprise CD No. 6714 (6714 CD) as marital property.
     For the following reasons, we affirm.

¶2                                           JURISDICTION
¶3       The trial court entered the final judgment for dissolution of marriage on February 17, 2015.
     Respondent filed her notice of appeal on March 18, 2015. Accordingly, this court has
     jurisdiction pursuant to Illinois Supreme Court Rules 301 and 303 governing appeals from
     final judgments entered below. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. May 30, 2008).

¶4                                          BACKGROUND
¶5       The following facts are relevant to this appeal. The parties were married on October 29,
     1988, and two children were born during the marriage. Both were emancipated at the time of
     the dissolution proceedings. Petitioner filed his petition for dissolution of marriage on October
     28, 2010, and a trial was held in which the court received evidence and heard testimony and
     arguments of counsel. Petitioner is employed as a documentation engineer earning
     approximately $92,000 per year. Respondent works several part-time jobs earning
     approximately $25,000 per year. During the marriage, the parties owned a residence located at
     703 Nichols Road in Arlington Heights, Illinois. An appraisal determined that the residence
     was worth $480,000 and had a mortgage balance of $24,936.16 at the time of trial.
¶6       At trial, respondent testified that in July of 1996, she received $200,000 which she placed
     into a First Security account (Sabadaszka gift). The amount consisted of a $175,000
     inheritance from her father and a $25,000 gift from her mother. She testified that she did not
     intend any gift to petitioner when she received this money. Respondent testified that she
     deposited $175,000 from the First Security account into a joint account to pay down the
     mortgage on the Nichols Road house, which she paid the following day. She informed
     petitioner of her actions. The payment, processed on July 29, 1996, reduced the mortgage
     balance from $310,950 to $135,950.
¶7       Respondent also received approximately $167,000 after the death of family friend Barbara
     Ganzert, which she placed in a trust account in her name (Ganzert funds). From this
     inheritance, respondent used $78,000 to further pay down the mortgage on the Nichols Road
     house. These payments were documented in respondent’s Exhibit 66 which showed the
     mortgage payment history on the house. Respondent testified that she did not intend any gift to
     petitioner when she made these payments from her trust account. Petitioner, however, had no
     recollection that respondent received the Sabadaszka gift or the Ganzert funds and did not
     recall whether respondent paid down the mortgage using those moneys.



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¶8         Evidence presented at trial showed that the 6714 CD was issued to “MIKA J. VONDRA or
       DAVID W. VONDRA” on September 19, 2009, in the amount of $144,706. Respondent
       testified that she gave petitioner permission to transfer $141,000 from her trust account to the
       6714 CD. On March 19, 2011, respondent cashed the certificate and deposited $149,056.22
       into a savings account in her name at Chase Bank. Respondent testified that the 6714 CD funds
       came from a combination of money from the Sabadaszka gift and money she was holding for
       her mother. The parties stipulated that after respondent cashed in the certificate, petitioner did
       not have access to the funds. To rebut the presumption that the 6714 CD was marital property,
       respondent submitted evidence that the funds used to purchase the CD came from her trust
       account.
¶9         Also presented into evidence were a Madison Avenue Securities IRA in petitioner’s name
       (No. 6855) with a value of $42,356.03 and a Madison Avenue Securities IRA in respondent’s
       name (No. 6863) with a value of $79,189.61. Respondent testified that her Madison Avenue
       IRA came from her employment at Urban Development, where she ceased working after her
       child was born in 1991. She testified that she had this IRA prior to her marriage and, although
       she made some contributions to it during the marriage, she had never taken money out.
¶ 10       At the proceedings, respondent made a claim for the reimbursement of $253,000,
       representing the amount of nonmarital funds she used to pay down the mortgage. The trial
       court determined that the funds comprising the Sabadaszka gift and Ganzert funds were
       nonmarital property pursuant to section 503(a)(1) of the Act. It denied respondent’s claim,
       however, finding that pursuant to section 503(c)(1) and (2), she transmuted those funds into
       marital property by “(a) depositing the Sabadaszka Gift into the joint checking account and
       paying down the mortgage balance and (b) Using the Ganzert funds to pay down the mortgage
       balance on the marital residence.”
¶ 11       The trial court also determined that the 6714 CD was marital property because it was
       originally opened “under both parties’ names.” Although the trial court found it “probable that
       some or even most of the funds” used to purchase the 6714 CD came from respondent’s
       nonmarital trust account, respondent failed to rebut the presumption that the 6714 CD was
       marital property. It reasoned that “[t]he act of purchasing [the 6714 CD] and placing ownership
       of that certificate in the parties’ joint names creates the presumption of a gift to the marital
       estate. There is frankly no evidence which rebuts this presumption.” The trial court also noted
       that the 6714 CD was held jointly from September 19, 2009, to March 19, 2011. Regarding the
       parties’ Madison Avenue IRAs, the trial court’s order stated that “[t]he parties stipulate that the
       entire interest in the plan is marital property subject to division by the court.” Respondent filed
       her timely appeal.

¶ 12                                           ANALYSIS
¶ 13       Respondent first contends that the trial court erred in denying her reimbursement claim for
       the $253,000 she used from the Sabadaszka gift and Ganzert funds to pay down the mortgage
       on the marital residence during the parties’ marriage. The trial court determined that all funds
       from the marital residence were marital property. A reviewing court will not disturb the trial
       court’s classification of property unless its determination is against the manifest weight of the
       evidence. In re Marriage of Blunda, 299 Ill. App. 3d 855, 861 (1998). A ruling is against the
       manifest weight of the evidence if the opposite conclusion is clearly evident or the findings are


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       unreasonable, arbitrary, or not based on the evidence. Maple v. Gustafson, 151 Ill. 2d 445, 454
       (1992).
¶ 14        Section 503(a) of the Act provides that “[f]or purposes of the Act, ‘marital property’ means
       all property *** acquired by either spouse subsequent to the marriage.” 750 ILCS 5/503(a)
       (West 2014). However, “property acquired by gift, legacy or descent” or property acquired in
       exchange for such property is nonmarital property. 750 ILCS 5/503(a)(1) (West 2014).
       Furthermore, “[w]hen marital and non-marital property are commingled by contributing one
       estate of property into another resulting in a loss of identity of the contributed property, the
       classification of the contributed property is transmuted to the estate receiving the
       contribution.” 750 ILCS 5/503(c)(1) (West 2014). Transmutation is based on the presumption
       that the owner of the nonmarital property intended to make a gift of it to the marital estate. In re
       Marriage of Benz, 165 Ill. App. 3d 273, 279 (1988). Thus, the placement of nonmarital
       property in joint tenancy or other form of joint ownership with a spouse “will raise a
       presumption that a gift was made to the marital estate, and the property will become marital
       property.” Id. at 280. The donor spouse, however, may rebut this presumption with clear and
       convincing evidence. Id.
¶ 15        Here, the trial court properly found that the Sabadaszka gift and Ganzert funds were
       respondent’s nonmarital property. It also properly found that by using those moneys to pay
       down the mortgage on the jointly held marital residence, a presumption arose that respondent
       intended to make a gift to the marital estate. See In re Marriage of Durante, 201 Ill. App. 3d
       376, 382 (1990) (use of nonmarital funds to purchase ownership in a residence which was
       conveyed to both parties as joint tenants created a rebuttable presumption of transmutation and
       gift to the marital estate). The question is whether respondent presented sufficient evidence to
       rebut this presumption.
¶ 16        The only evidence respondent presented to rebut the presumption of transmutation is that
       she did not intend for the payments to be gifts. However, although respondent testified that she
       told petitioner of her payments, she did not state that she informed him at the time that she did
       not intend for the payments to be gifts to the marital estate. Petitioner testified that he had no
       knowledge of whether respondent received the Sabadaszka gift or the Ganzert funds or
       whether she paid down the mortgage using money from those nonmarital funds. Such evidence
       is insufficient to overcome the presumption of transmutation. See In re Marriage of Hacker,
       239 Ill. App. 3d 658, 664-65 (1992) (presumption not rebutted where the only evidence
       presented was testimony that at the time the parties purchased the marital residence,
       respondent did not intend to make a gift of his contribution); Durante, 201 Ill. App. 3d at 382
       (presumption not rebutted where respondent testified that although she placed her nonmarital
       property in joint tenancy, she intended for the property to stay in the family).
¶ 17        Respondent, however, argues that she sufficiently rebutted the presumption because the
       nonmarital funds she used were traceable and she placed the funds in a joint account
       temporarily as a conduit to make the payments. As support, respondent cites a list of cases,
       including In re Marriage of Heroy, 385 Ill. App. 3d 640, 673 (2008), in which this court held
       that “[a]lthough the placement of nonmarital funds into a joint checking account may
       transmute the nonmarital funds into marital property [citations], nonmarital funds that are
       placed into a joint account merely as a conduit to transfer money will not be deemed to be
       transmuted into marital property. [Citations.]” In Heroy and the other cases cited in
       respondent’s brief, the party took nonmarital funds, placed those funds temporarily in a joint

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       account and then used the funds to purchase nonmarital property. These cases are inapposite.
       Unlike Heroy, respondent here took nonmarital funds and used those funds to pay the
       mortgage on property jointly held by both parties. In this situation, a rebuttable presumption
       arises that the nonmarital property transmutes into marital property. Benz, 165 Ill. App. 3d at
       280. As discussed above, respondent did not rebut the presumption with clear and convincing
       evidence. We find that the trial court’s denial of her claim for reimbursement was not against
       the manifest weight of the evidence.
¶ 18        Likewise, respondent has failed to rebut the presumption that the 6714 CD was marital
       property. Although respondent testified that the money used to purchase the 6714 CD came
       from her nonmarital funds (Sabadaszka gift and money from respondent’s mother), the CD
       was issued to “MIKA J. VONDRA or DAVID W. VONDRA.” The CD was jointly held by the
       parties for almost two years until March 19, 2011, when respondent cashed the certificate and
       deposited $149,056.22 into a savings account in her name at Chase Bank. To rebut the
       presumption that the 6714 CD was marital property, respondent presented evidence showing
       that the funds used to purchase the CD came from her trust account, and she testified that she
       did not intend a gift to the marital estate; instead, petitioner purchased the CD on his own. As
       discussed above, the use of nonmarital funds to purchase jointly held property during the
       marriage does not rebut the presumption; rather, it creates a rebuttable presumption of a gift to
       the marital estate. See Durante, 201 Ill. App. 3d at 381-82; Benz, 165 Ill. App. 3d at 280.
       Furthermore, respondent testified that she gave permission for petitioner to purchase the
       jointly held 6714 CD using funds from her trust account. Although respondent contends that
       she did not intend to make a gift, it is the function of the trial court to resolve conflicting
       testimony, assess the credibility of the witnesses, and give weight to their testimony. Benz, 165
       Ill. App. 3d at 280. Here, the trial court resolved any conflicts on this issue in favor of
       petitioner, and its finding is not against the manifest weight of the evidence.
¶ 19        Respondent also argues that the proceeds from the 6714 CD “no longer exist[ ]” and the
       trial court erred in distributing proceeds that no longer exist. Respondent presents this
       argument without citation to authority or more extensive analysis in violation of Illinois
       Supreme Court Rule 341(h)(7) (eff. Jan. 1, 2016) (argument “shall contain the contentions of
       the appellant and the reasons therefor, with citations of the authorities and the pages of the
       record relied on”). In her reply brief respondent does cite two cases, with no analysis, that we
       find are distinguishable from this case. In any event, points not argued in respondent’s main
       brief “are waived and shall not be raised in the reply brief.” Ill. S. Ct. R. 341(h)(7) (eff. Jan. 1,
       2016). For these reasons, the trial court’s designation of the 6714 CD as marital property was
       not against the manifest weight of the evidence.
¶ 20        Respondent’s final contention is that the trial court erred in finding that, by stipulation of
       the parties, respondent’s Madison Avenue IRA from her former employer was marital
       property. She argues that she acquired the IRA prior to her marriage and she never took any
       distributions or loans from the account. She further contends that no stipulation can be found in
       the record, proving that the stipulation never existed.
¶ 21        In general, “a party cannot dispute on appeal matters to which he has stipulated.” Charter
       Bank & Trust of Illinois v. Edward Hines Lumber Co., 233 Ill. App. 3d 574, 580 (1992). In
       reviewing the parties’ arguments on the issue in the record, there was a question as to whether
       a portion of respondent’s Madison Avenue IRA was marital property. The parties argued the
       issue in closing arguments, but the trial court did not make a determination at that time.

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       Instead, the court informed the parties that it would not make any rulings without first
       conducting a hearing on the fee petitions which it would do at a future date. We presume the
       trial court held those hearings and made its rulings, although no transcript of the proceedings is
       in the record. Respondent as appellant has the duty to present a complete record on appeal,
       “and in the absence of an adequate record, it will be presumed that the trial court’s judgment
       conforms to the law and has a sufficient factual basis.” Salazar v. Wiley Sanders Trucking Co.,
       216 Ill. App. 3d 863, 868 (1991). The trial court’s February 17, 2015, order states that the
       parties stipulated that their respective Madison Avenue IRAs were marital property. Since
       respondent failed to include a record for the proceeding in which that stipulation may have
       occurred, any resulting doubt is resolved against respondent as appellant. Id.
¶ 22        For the foregoing reasons, the judgment of the circuit court is affirmed.

¶ 23      Affirmed.




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