dissenting:
A conveyance of real property can only be voided upon a showing of clear and convincing evidence that the transferor had no intent to convey any present interest in the property but, in fact, intended to retain complete ownership. (Hofmann v. Hofmann (1983), 94 Ill. 2d 205, 446 N.E.2d 499.) The setting aside of a conveyance is a harsh remedy in that it deprives one of the right of ownership of property, therefore, the burden is on the party attacking the conveyance to establish through clear and convincing evidence that the transfer was a sham.
Fryda’s evidence at trial consisted of her testimony that she overheard Mesbah stating that he wanted to “transfer” everything to Sabhi and leave her nothing. In her emergency petition for injunctive relief, she alleged that Mesbah was in the process of “selling” certain parcels of real estate acquired during the marriage in an attempt to deprive her of any marital rights she may have in the property.
This evidence, at best, merely shows that Mesbah may have intended to defeat any possible marital interest Fryda may have had in the property conveyed. However, as the majority correctly points out, Mesbah had the right to dispose of his property without the concurrence of Fryda even if the transfer may have been for the sole purpose of minimizing or defeating her marital rights in the property.
While it is true that conveyances among family members are subject to stricter scrutiny than arms-length transactions, the familial relationship alone does not raise the presumption that the conveyance was fraudulent. Sabhi testified that he agreed to buy the property from Mesbah for $80,000. The terms of the sale were that Sabhi was to assume the $50,000 mortgage on the property and pay the $30,000 balance to Mesbah in installments. The agreement was evidenced by a general assignment, signed by Mesbah and notarized by Sabhi’s attorney, which shows that Mesbah transferred his interest in the property to Sabhi. Also admitted was a consent to the assignment signed by the sole beneficiary of the land trust to the assignment from Mesbah to Sabhi. Sabhi and his nephew, Sabri, testified to a number of payments made by Sabhi to either Mesbah, or upon the direction of Mes-bah, to Sabri over several months amounting to approximately $30,000. Several cancelled checks were admitted into evidence which substantiated Sabhi’s testimony that he paid Mesbah nearly $30,000 for the property. While the majority may speculate as to the purpose of these payments, Fryda did not present any evidence that would contradict or “discredit” the testimony of Sabhi and his nephew.
The facts that Mesbah fled the country with the couple’s only son in violation of a custody order and that Mesbah also violated a court order restraining him from selling or transferring property pending the divorce action are circumstances which do not establish clearly and convincingly that Mesbah intended to retain ownership. Rather, the majority’s recitation of these facts, in effect, unfairly penalizes Sabhi for his brother’s misconduct and has no relevance to the issue of whether the transfer of property was a sham. In conclusion, the evidence Fryda produced at trial did not clearly and convincingly establish that the transaction was colorable or illusory and that Mesbah intended to retain ownership of the property. Accordingly, I would reverse the judgment.