concurring in part and dissenting in part:
I agree with the majority’s overall classification and distribution of the property in this cause; however, I disagree that the $10,400 down payment applied to the purchase of the residence should be reimbursed to Vernon as a nonmarital contribution.
As the majority points out, Vernon used his equity in the first residence to purchase a new home titled in both parties’ names, thereby commingling the properties so as to transmute his equity into marital property. (Ill. Rev. Stat. 1985, ch. 40, par. 503(c)(1); Atkinson v. Atkinson (1981), 87 Ill. 2d 174, 179, 429 N.E.2d 465, 467; In re Marriage of Mayzner (1986), 144 Ill. App. 3d 645, 649, 494 N.E.2d 615, 618.) However a residence purchased during the marriage and owned by both spouses, even if one spouse has furnished all of the consideration for the residence out of nonmarital funds, will be presumed “in fact” as marital property, absent convincing rebutting evidence. (In re Marriage of Rogers (1981), 85 Ill. 2d 217, 225, 422 N.E.2d 635, 638.) The presumption of marital property is overcome upon a showing by clear, convincing and unmistakable evidence that the property was a gift. (In re Marriage of Deem (1984), 123 Ill. App. 3d 1019, 1021, 463 N.E.2d 1317, 1320.) The trial court found that Vernon did not meet his burden and that finding is not against the manifest weight of the evidence.
Several factors have been deemed significant where a spouse who has paid the purchase price for property seeks to overcome the common law presumption of a gift. In addition to the parties’ testimony, factors include the size of the gift relative to the entire estate; when the property was purchased; who paid the purchase price, made improvements and paid the taxes; and who exercised control and management over the property. (In re Marriage of Guerra (1987), 153 Ill. App. 3d 550, 555, 505 N.E.2d 748, 752.) It is true that approximately one-fourth of the purchase price for the residence came from Vernon’s nonmarital assets. However, this factor by itself is not enough to overcome the presumption of a gift. Furthermore, it is undisputed that the residence was purchased during the marriage, thereby supporting the presumption that Vernon intended to make a gift to the marital estate.
The majority stresses that prior to 1984 all of the mortgage payments were made from the Thacker Painting checking account, but all mortgage payments made after the incorporation of Thacker Painting in 1984 came from a joint checking account. In addition, the majority fails to give credence to the Illinois Marriage and Dissolution of Marriage Act, which dictates that the parties’ income during the marriage is considered marital property. Classifying the earnings of one spouse made during the marital relationship as being separate and distinct from the earnings of the other spouse is inconsistent with the Act. (Ill. Rev. Stat. 1985, ch. 40, par. 503(a).) Although the mortgage payments made prior to 1984 came from the Thacker Painting checking account, the moneys represented “marital income” regardless of which bank account it was deposited into. The mortgage payments paid after 1984, coming from the parties’ joint checking account, also consisted of “marital income,” which was income earned by both spouses.
The majority places great emphasis on the presumption that Vernon provided the majority of the physical labor used to make improvements to the property. This presumption is misplaced. Testimony at trial indicated that both JoAnn and Vernon exerted physical efforts in improving the property. Of course, if the majority suggests that the labor and time Vernon spent on the home during the marriage was somehow a contribution of a nonmarital asset, then the logical conclusion would be that the time, labor and efforts of the wife were also contributions of nonmarital assets. This is clearly not the intent of the Illinois Marriage and Dissolution of Marriage Act. The majority fails to recognize that while the wife did not advance any money toward the acquisition of the property she did perform services, and the presumption of a gift has not been overcome. Bruin v. Bruin (1966), 72 Ill. App. 2d 51, 58, 219 N.E.2d 68, 72.
Furthermore, Vernon’s testimony as to his original intent in titling the property should not be given the weight the majority gives it, since obviously the trial court did not give credence to Vernon’s testimony. The fact that the residence was taken in joint tenancy raised a presumption of gift to the marital estate. (In re Marriage of Flemming (1986), 143 Ill. App. 3d 592, 597, 493 N.E.2d 666, 670.) Vernon testified that he titled the residence in joint tenancy because he did not have a will, but desired to provide for the disposition of his estate. He stated that he at no time intended to make a gift to JoAnn or to the marital estate. The trial judge obviously did not accept Vernon’s explanation and he is in the best position to judge the credibility of the witnesses.
The trial court’s division of property will be reversed only where “no reasonable man would take the view adopted by the trial court.” (In re Marriage of Pancner (1983), 111 Ill. App. 3d 546, 550, 444 N.E.2d 653, 656.) Given the fact that the parties here were the only witnesses to testify, the trial court’s determination as to credibility was central to its adjudication of the issue. It is well known that credibility issues are reserved to the province of the trial court, which had the opportunity to hear the testimony and observe the demeanor of the witnesses. (In re Marriage of Nagel (1985), 133 Ill. App. 3d 498, 502, 478 N.E.2d 1192, 1194.) When the evidence is considered as a whole, I do not find the trial court’s decision holding that Vernon did not overcome the presumption of gift to be an abuse of discretion.