NO. 4-02-1073

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH DISTRICT

In re: the Marriage of				)	Appeal from

PHYLLIS JANE BARNETT,				)	Circuit Court of

		Petitioner-Appellee,		)	Champaign County

		and						)	No. 00D139

SOL BARNETT,						)

		Respondent-Appellant.		)	Honorable

								)	Michael Q. Jones,

								)	Judge Presiding.

_________________________________________________________________

		JUSTICE COOK delivered the opinion of the court:

		Respondent, Sol Barnett, appeals a judgment of dissolu

tion of marriage entered by the Ccircuit Ccourt 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's nonmarital property.  We affirm. 

		Petitioner 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.

		Petitioner 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's

answers, however, included the phrases "records for 2000 and 2001

are to be provided," "details are unavailable to respondent at

this writing," "respondent has not been able to access all

documents needed to complete this answer," "respondent's efforts

to complete a list, without access to records, continues," and

"records are not available to me.  Records are with accountant,

Barb Lichti, petitioner, or in Champaign home."  Lichti, however,

stated that she informed respondent numerous times that she did

not have the records he sought.        

		At a hearing on March 19, 2001, respondent's attorney

advised the court that he had supplied petitioner with 15 pounds

of discovery response and "I kind of foresee the court having to

look through a thousand pages of documents to reconcile this." 

The trial court denied respondent's 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 "I 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."  On October 2, 2001, the court

made its final ruling on discovery.  The court stated "I believe

'details are unavailable at this time' is in fact an improper

answer.  It's a euphemism for saying I am not going to get around to answering your question yet."  Accordingly, the court imposed

a sanction, barring respondent from presenting any further

evidence relating to financial information, and awarding attorney

fees.

		Respondent argues the trial court erred in sanctioning

him on October 2, 2001, because by that time he was in compliance

with petitioner's discovery requests.  An appellate court will

not overturn a trial court's sanction absent an abuse of discre

tion.  See Ciampi v. Ogden Chrysler Plymouth, Inc., 262 Ill. App. 3d 94, 108, 634 N.E.2d 448, 458 (1994).  Respondent's "15 pounds

of discovery" 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 specifi

cally 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 "deliberate, contumacious, or

unwarranted disregard of the court's authority."  Blott v. Hanson, 283 Ill. App. 3d 656, 662, 670 N.E.2d 345, 349 (1996).  A just sanction is one which, "to the degree possible, insures both

discovery and a trial on the merits."  Shimanovsky 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 discov

ery 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.  

				Applying 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 finan

cial matters.  An enormous potential for prejudice lies if

financial information is missing due to respondent's 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's

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's 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's concealment of

information more compelling.  The court imposed a sanction

proportionate to the gravity of respondent's discovery viola

tions.

		Respondent was allowed to testify and present addi

tional evidence regarding a disputed $1,551,616.48 Fidelity

account No. X53094005.  At one time, this account contained

respondent's 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 trans

ferred the account into petitioner's 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 "he's substantially older than me; and he wanted me

to feel secure" and "at that time he cared about me."  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.

		The trial court found that respondent made a gift of

the account to petitioner and that the account was petitioner's

nonmarital property.  In doing so, the court stated "on 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."  

		The Illinois Marriage and Dissolution of Marriage Act

(Dissolution Act) specifically provides that "non[]marital

property transferred into some form of co-ownership between the

spouses" is presumed to be marital property.  750 ILCS

5/503(b)(1) (West 2000).  It has been held that Tthe converse is

also true:,:  that  it is possible for one spouse tocan make a gift to

the other of marital property, which the recipient could then 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's name, however, there is a presump

tion 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).

		Under 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 "she had been harassed by him on the matter,

and that she executed the deed to please him and to save her

marriage"), with In re Marriage of Leff, 148 Ill. App. 3d 792, 807, 499 N.E.2d 1042, 1052 (1986) (husband testified he trans

ferred residence to wife only to protect the property from a

malpractice action against him).  The cases, however, have not

made that distinction.

		Davis 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's finding of no donative intent when the husband transferred title to the

residence to his wife's name.  Leff, 148 Ill. App. 3d at 807-08, 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 mort

gage, tax, and insurance payments on the property.  Leff, 148 Ill. App. 3d at 807, 499 N.E.2d at 1052.

		In 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 contin

ued 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's testimony regarding

the account.  Even if respondent's 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.       				      

		Respondent 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 evi

dence.  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's deci

sion.  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).                     

     	The trial court did not abuse its discretion by barring respondent from presenting additional financial evidence at

trial.  The trial court's decision to classify the $1,551,616.48

Fidelity account No. X53094005 as petitioner's nonmarital prop

erty was not against the manifest weight of the evidence.  We

affirm.

		Affirmed.

		McCULLOUGH, J., concurs.

		TURNER, J., specially concurs in part and dissents in

part.

		JUSTICE TURNER, specially concurring in part and dissenting in part:

		I respectfully dissent from that portion of the major

ity order finding the $1,552,616.48 Fidelity account No.

X53094005 was petitioner's nonmarital property.

		As 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's 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 slip op. at 5-6.  I find peti

tioner's testimony was not clear, convincing, and unmistakable

evidence and thus wsas insufficient to rebut the marital property

presumption.

		The 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 slip op. at

6-7.  Here, respondent testified he transferred the account into

petitioner's name to protect the account from his pending mal

practice 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's finding, respondent continued to deal

with the account after the transfer by depositing his paycheck

into the account until the parties separated. 

		In this case, the trial court took judicial notice of

two medical malpractice cases that were pending against respon

dent at the time of the transfer.  That evidence supports respon

dent's 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.

		Moreover, petitioner did not assert the account at

issue was her nonmarital property in both her response to respon

dent's interrogatories and her initial prejudgment pretrial

memorandum.  It was not until her supplemental pretrial memoran

dum that she alleged the account was a gift.

		Petitioner 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's motive for trans

ferring his property from his intent for making the transfer. 

The court found that "[m]otive 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."  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.  

		The majority intimates its disapproval of respondent's

attempt to hide his assets from potential creditors.  See slip

op. at 7-8.  This is certainly understandable, but by recognizing

the transfer here as a completed gift, the majority's ruling

tends to give credence to the practice of hiding assets from

creditors rather than discouraging it. 

		For the reasons stated, I would reverse the trial

court's classification of the $1,552,616.48 Fidelity account No.

X53094005.