dissenting:
I disagree in part with the conclusions of my colleagues. I agree the case should be remanded for further consideration of the circumstances surrounding the appellee’s ownership of property previously undisclosed to the appellant. However, I would also remand this case for reconsideration of the division of property because I believe the trial court erred in classifying substantial portions of the farmlands as nonmarital property.
At the outset, I agree the decisions of our appellate courts are in hopeless disarray on the subject of whether nonmarital property changes its character when marital property is combined with it. Since some of these cases are presently pending before the Illinois Supreme Court, it is anticipated the conflicts may be in the process of resolution. The majority of the court in this case have followed that line of cases which hold that if property is initially nonmarital property it forever retains that characterization even though the property may be substantially increased in value by combination with marital property or income. Contrary to the majority, I believe that the enhancement or increase in value of nonmarital property by combination with marital property should change the character of the property to marital property.
Of course the Marriage and Dissolution of Marriage Act does not use the term “transmutation,” nor indeed does the Act even by way of general principle offer much assistance or guidance. We are in an evolutionary phase of changing our traditional concepts of dividing property when a marriage has ended. We can say however that there is no estate or interest in property denoted marital or nonmarital. The old ways of owning property remain the same, and while we may speak loosely of the marital estate or the nonmarital estate, we are not describing any special interest in property but only a manner or method of resolving disputes regarding the division of such property upon termination of a marriage. As is often the case, courts tend to adopt new ideas slowly and just as often tend to apply the new ideas as if no changes were made and old concepts continue with their viability unaltered.
Under the former law we were concerned with legal ownership and special equities. The present law focuses on the economic aspects of marriage as a shared enterprise, a mutual endeavor, a domestic partnership or an economic unit. In a very real sense the economic health and benefits resulting from the efforts of both ought to be considered as belonging to both in broad terms, and whether property should be regarded as derived for the benefit of the economic community and therefore marital property ought not depend on the financial contribution of each party but should be viewed as the joint benefit of combined effort.
I do not make these observations particularly in defense of any theory of property division but rather to suggest that our primary concern should be the economic benefits of the marriage which under the circumstances of cases such as this one are not necessarily related to matters of time of acquisition and title to real estate, but rather the inquiry should be directed toward the basis of the values at the time division is required. Where, as in this case, the operation of the farm was a part of the economic activity of the marriage unit and the farms were paid for substantially from marital income, it seems to me the farms should have the characteristics of marital property.