Wood v. Wood

Annotate this Case
NO. 4-95-0945




VICTOR T. WOOD and EMILY M. WOOD, ) Appeal from
Plaintiffs-Appellants, ) Circuit Court of
v. ) Mason County
SANDRA D. WOOD, ) No. 95LM18
Defendant-Appellee. )
) Honorable
) Thomas L. Brownfield,
) Judge Presiding.

PRESIDING JUSTICE COOK delivered the opinion of the
Victor and Emily Wood are the parents of George Wood.
They brought this forcible entry and detainer action to evict
Sandra Wood (their daughter-in-law) from the home in which she
and George had both lived until she obtained an order of protec-
tion against him. Victor and Emily claim a right to possession
through a quitclaim deed George executed and gave them two days
before the marriage. The deed was given in exchange for their
forgiveness of a debt George owed them. The trial court found
the sale a sham, held title never passed from George to his par-
ents, and accordingly entered judgment for Sandra on the forcible
entry and detainer action. Victor and Emily appeal. We affirm.
George and Sandra Wood were first married in October
1990 and divorced in March 1995. George received sole possession
and ownership of their residence in that dissolution. On April 20 or 21, approximately six weeks later, Sandra moved back in
with George and agreed to remarry him. She testified she only
did so because it was easier than enduring the constant harass-
ment to which George was subjecting her. They remarried on April
However, two days before the remarriage, George was
fired. That same day he executed a quitclaim deed conveying the
residence to Victor and Emily. George signed the deed before a
notary public, who completed an acknowledgment clause. Both the
deed and the acknowledgment clause were executed in the presence
of Victor and Emily. After the documents were filled out, George
gave Victor and Emily the deed, and they took it home and put it
in their safe. Neither ever visited the house after they bought
it; Victor testified that he could not enter the house because
"[t]he judge wouldn't let [him]."
The deed was not recorded until June 12. Victor
testified he waited to file the deed because the mortgage on the
property provided that title could not be transferred until the
mortgage was paid off, and the delay was caused by the processing
time for him to get a home equity loan on his home with which to
pay off George's mortgage. George and his parents testified that
in exchange for the house they agreed to pay the approximately
$8,000 balance due on the mortgage and forgave a debt of over
$8,000 he owed them.
Victor testified he and George further agreed that
George and Sandra would rent the house from him and would start
paying rent when George found work. George had not done so by
August 22, the date of the hearing in this case. George testi-
fied he did not know when he was going to start paying rent, nor
how much the rent would be. He said there was an understanding
that Victor would never rent the house to anyone else as long as
George was living there with Sandra. However, he said Victor
could have evicted him at any time after April 26.
Sandra testified that before their remarriage George
told her that once they married the house would be theirs togeth-
er, and he never mentioned having sold the house to his parents.
She also testified that on May 19, she and George went to Heights
Finance Company and paid the mortgage payments for May and June.
George admitted he took Sandra to make a payment on that date and
that he had sold his Corvette to come up with the money.
On June 2, Sandra obtained an emergency order of
protection against George, which inter alia granted her exclusive
possession of their residence. Sandra signed a criminal com-
plaint against George for violation of the order at some point
after June 2. She was unsure of the exact date on which she did
so, but remembered it was very near the time his parents first
started attempting to evict her.
Victor and Emily served Sandra with a "Landlord's
Seven[-]Day Notice of Termination of Tenancy" on June 14. On
July 6, they served her with a "Demand for Possession of Premis-
es." On July 19 they filed the instant complaint under the Forc-
ible Entry and Detainer Act (735 ILCS 5/9-101 et seq. (West
1994)). The complaint admitted Sandra came upon the premises
peaceably but alleged she was in possession without permission,
by lease or otherwise, paid no rent, and "wrongfully withholds
possession from the Plaintiffs."
There was a hearing on Victor's and Emily's complaint
on August 22. Victor and Emily asserted ownership and right to
possession through the quitclaim deed, while Sandra defended on
the grounds the alleged sale from George to his parents was a
"fraud and sham," because there was no intent that ownership
truly pass. In addition to testimony by Victor, Emily, George,
and Sandra, James Hutchinson testified that on July 3 George
showed him some sort of deed relating to the residence in ques-
tion, and said it was George's house, and he was going to get it
back. He did not know the date on the paper. The trial court,
after hearing the evidence, directed the parties to submit
closing arguments in writing, and informed them that its opinion
was that the outcome of the case depended on the validity of the
transaction between George and his parents. It prevented Sandra
from inquiring into Victor's knowledge of George's alleged
physical abuse of Sandra, which it deemed irrelevant.
After receiving Sandra's closing argument (Victor and
Emily did not submit one) the court ruled in her favor, finding:
"the evidence fails to establish by a prepon-
derance of the evidence that the purported
grantor, George Wood, had any intent to con-
vey legal title to the premises at the time
of execution of the quit claim deed, but
rather executed such in an attempt to protect
his interest in the property in the event his
impending remarriage to the Defendant
It continued by labeling the transaction a "sham," which "[b]oth
law and equity dictate *** cannot be utilized to evict the
Defendant from the premises herein." Victor and Emily appeal.
The trial court erred in its conclusion that there was
no valid transfer of title from George to his parents. We
nonetheless affirm the result--that Sandra prevails in this
forcible entry and detainer action--because we find that eviction
would violate Sandra's order of protection. It is not necessary
to resolve the rights of Victor and Emily between themselves and
George in order to protect the rights of Sandra. As a reviewing
court we may sustain a decision on any grounds called for by the
record, regardless of the original basis for the decision and
regardless of the accuracy of its reasoning. Leonardi v. Loyola
University, 168 Ill. 2d 83, 97, 658 N.E.2d 450, 457 (1995).
A. Validity of Deed
It was proper for the trial court to consider the
validity of the deed. While forcible entry and detainer proceed-
ings "determine which party has a right to possession of and not
title to real estate" (Noe v. Clemons, 174 Ill. App. 3d 223, 230,
528 N.E.2d 257, 262 (1988)), equitable defenses may be raised if
"germane" to the action (Rosewood Corp. v. Fisher, 46 Ill. 2d 249, 256-57, 263 N.E.2d 833, 838 (1970)). This rule extends to
allowing determination of ownership. Rodriguez v. Owaynat, 137
Ill. App. 3d 1017, 1022, 485 N.E.2d 438, 442 (1985). However, we
find the court erred in concluding that the deed was not effec-
tive. We may be critical of George's motives in arranging the
transfer, but the transfer was not a sham.
George had the right to transfer the property, whatever
his motives. In Illinois, the general rule is that an owner of
property has an absolute right to dispose of his property during
his lifetime in any manner he sees fit. Johnson v. La Grange
State Bank, 73 Ill. 2d 342, 357, 383 N.E.2d 185, 192 (1978).
This rule holds even when the transfer is conducted in order to
minimize or defeat a spouse's statutory marital ownership inter-
ests under the Probate Act of 1975 (see 755 ILCS 5/2-1(a),(c)
(intestate share of surviving spouse); 2-8(a) (renunciation of
will by spouse) (West 1994)) in the property conveyed. Johnson,
73 Ill. 2d at 357, 383 N.E.2d at 192. Even where property titled
in the name of one spouse might be considered marital property,
the titleholder has complete power to dispose of that property
during the marriage as he or she sees fit. Kujawinski v.
Kujawinski, 71 Ill. 2d 563, 573, 376 N.E.2d 1382, 1386 (1978)
("[o]peration of the term 'marital property' under the Act is not
triggered until the time of dissolution"). The fact that the
titleholder has represented to his spouse that the property will
be marital does not deprive him of that power. The transfer of
property, even nonmarital property (see 750 ILCS 5/503(d)(2)
(West 1994); In re Marriage of Cecil, 202 Ill. App. 3d 783, 791,
560 N.E.2d 374, 379 (1990)), for inadequate consideration may
constitute dissipation, and it may be possible to enjoin an
attempted dissipation of assets, but that is not an issue in this
case. The only issue in this case is whether Sandra, or Victor
and Emily, have a superior right to possession. It is irrelevant
whether we would characterize George's motives as improper so
long as he actually intended to make a transfer and did not
intend the transfer to be one in form only. See Johnson, 73 Ill. 2d at 359, 383 N.E.2d at 193. An intention to protect the
property in the event the impending remarriage failed does not
render the transfer a sham.
We see no reason George could not sell the house to his
parents even after the order of protection had been entered. The
sale itself was not an eviction. Rather, the eviction was
instituted by George's parents and was a separate action from the
transfer of title. Section 214(b)(2) of the Illinois Domestic
Violence Act of 1986 (Act) (750 ILCS 60/214(b)(2) (West 1994))
explicitly states that orders of protection which issue thereun-
der will not affect title to real estate.
Given that George had the right to transfer the proper-
ty, the next question is whether he in fact did so. To be valid
a deed must be both executed and delivered. Whether a deed has
been delivered is a question of the grantor's intent, as "mani-
fested by his acts or words and determined by the facts and
circumstances at the time and subsequent to the alleged deliv-
ery." In re Estate of Rohrer, 269 Ill. App. 3d 531, 536, 646 N.E.2d 17, 20 (1995). The trial court found no delivery because
Victor and Emily never "exercise[d] any evidence whatsoever of
ownership," and George continued to do so. This ignores several
uncontroverted facts which weigh heavily in favor of finding
delivery. First, George physically gave the only original copy
of the deed to his parents immediately after it was filled out.
Second, a notary public executed an acknowledgment clause in the
deed which stated George "signed, sealed and delivered" the deed
that day. Third, Victor and Emily did eventually record the
deed. This forcible entry and detainer action is not the appro-
priate case to discuss the weight and rebuttal of presumptions of
delivery, but we find the trial court erred in finding the deed
not to have been delivered in this case in light of these facts.
B. Forcible Entry and Detainer
Our finding Victor and Emily have title to the property
does not end the case. The question remains whether they had the
right to evict Sandra. We find they did not.
Before the eviction was commenced, Sandra had obtained
an emergency order of protection against George which granted her
exclusive possession of the house. Under section 214(b)(2) of
the Act a petitioner may be granted exclusive possession of a
residence if he or she has a right to occupancy thereof. 750
ILCS 60/214(b)(2) (West 1994). A party has a right to occupancy
if, inter alia, the residence is "solely or jointly owned or
leased by that party[] [or] that party's spouse." 750 ILCS
60/214(b)(2)(A) (West 1994). The order granting exclusive
possession was proper even if George and Sandra were leasing the
property. The provisions of the Act are to be liberally con-
strued and applied to promote its underlying purposes, which
include helping victims of domestic violence to avoid further
abuse because of fear of retaliation or loss of accessible hous-
ing. 750 ILCS 60/102(4) (West 1994).
Clearly, if George had never deeded the house to his
parents and had himself brought a forcible entry and detainer
action against Sandra, he would have been unsuccessful. The
question before us is whether George can successfully violate the
order of protection by enlisting the aid of Victor and Emily.
For purposes of issuing and enforcing orders of protection,
article 5 of the Criminal Code of 1961 applies (720 ILCS 5/5-1
through 5-5 (West 1994)). 750 ILCS 60/216 (West 1994). Under
article 5, a person is accountable for the conduct of another
when, "with the intent to promote or facilitate such commission,"
he aids in the commission of the offense. 720 ILCS 5/5-2(c)
(West 1994). If Victor and Emily intentionally aided George in
his violation of the order of protection, they are equally guilty
of violating that order.
If George had mortgaged the property to a bank, knowing
that the bank would foreclose and that Sandra would be evicted,
the bank would not be barred from foreclosure. The bank would
not be acting with the intent to promote or facilitate any
violation of the order of protection. The bank would be acting
only to protect its own interests, and would be indifferent to
the effect of its actions on Sandra. In a different factual
setting, Victor and Emily might be considered to be much like an
independent third-party bank, with the intent to protect only
their own interests, and no intent to assist George in a viola-
tion of the order of protection.
The trial court found the transaction between George
and his parents was a sham. It seems clear the court considered
George and his parents to have been acting with the same intent,
although it did not explicitly so hold. It is appropriate to
regard transactions between a spouse and his or her parents with
some degree of skepticism. Hofmann v. Hofmann, 94 Ill. 2d 205,
222, 446 N.E.2d 499, 506 (1983); In re Marriage of Schmidt, 242
Ill. App. 3d 961, 968, 610 N.E.2d 673, 678 (1993) (noting the
incentive "for both sides of the transfer, the parents making it
and the litigant receiving it, to conform their testimony to the
disadvantage of the other litigant"). Accordingly, we hold that
Victor and Emily are bound by the order of protection granting
Sandra exclusive possession just as George is bound by that
order. As Sandra's right to possession is superior to that of
Victor and Emily, the trial court properly entered judgment for
Sandra in the forcible entry and detainer action.
Even if Victor and Emily acted independently of George,
such that they could not be accountable for George's actions,
Sandra might have a valid defense of retaliatory eviction.
Retaliatory eviction is a legitimate defense to forcible entry
and detainer. Clore v. Fredman, 59 Ill. 2d 20, 26-27, 319 N.E.2d 18, 21-22 (1974); People ex rel. Department of Transportation v.
Walliser, 258 Ill. App. 3d 782, 791, 629 N.E.2d 1189, 1196
(1994), appeal denied, 157 Ill. 2d 520, 642 N.E.2d 1301 (1994).
To date, the retaliatory eviction defense has generally been
recognized in the context of a landlord's retaliation for a
tenant's complaints to governmental authorities regarding build-
ing codes, based on the Retaliatory Eviction Act (Eviction Act)
(765 ILCS 720/0.01 through 1 (West 1994)). However, Illinois has
never decided the defense is limited to that recognized in the
Eviction Act. Seidelman v. Kouvavus, 57 Ill. App. 3d 350, 354,
373 N.E.2d 53, 56 (1978). The Seidelman court noted the "possi-
bility that circumstances may arise, in future cases, where a
landlord's action in seeking to evict a tenant would be so
invidiously motivated and would so contravene the public policy
of our State that we would not permit our courts to implement the
eviction in a forcible entry and detainer proceeding."
Seidelman, 57 Ill. App. 3d at 354-55, 373 N.E.2d at 57. It
violates public policy to evict a woman from her home merely
because she got an order of protection against her husband who
was physically abusing her.
Mobile home landlords are expressly prohibited from
evicting tenants in response to any "effort[s] to secure or
enforce any rights under *** the laws of the State of Illinois"
(765 ILCS 745/16(a) (West 1994)), but the legislature has not
affirmatively extended this protection beyond mobile homes (see
765 ILCS 720/1 (West 1994)). Section 102 of the Act explicitly
notes one of the Act's purposes is to prevent victims of domestic
abuse from being "trapped in abusive situations by fear of ***
loss of accessible housing or services." 750 ILCS 60/102(4)
(West 1994). It might be that Sandra has a valid defense of
retaliatory eviction even if Victor's and Emily's suit was not
prompted by George, if their reason for bringing it was her
exercise of her rights under the Act.
Victor and Emily complain that upholding the trial
court's result would in effect "grant[] [Sandra] permanent
possession of the house rent-free." A plenary order of protec-
tion may endure at most for two years (750 ILCS 60/220(b) (West
1994)), and Victor and Emily's concern about rent is legitimate.
However, they did not request rent in this action, only recovery
of possession. Victor testified he had intended to allow George
and Sandra to retain possession rent-free until George found a
job. We express no opinion whether Victor and Emily are entitled
to receive rent, nor whether George or Sandra would be the more
appropriate party to be charged with paying it.
C. Standing and Fraud
We find no merit to the other two objections Victor and
Emily raise on appeal. Their claim that Sandra lacks standing to
challenge the deed was waived when it was not raised before the
trial court (Greer v. Illinois Housing Development Authority, 122 Ill. 2d 462, 508, 524 N.E.2d 561, 582 (1988)), and further is
meritless. As noted, while a forcible entry and detainer suit is
not the appropriate forum to try title, the deed was the basis
for their claim of possession, and Sandra had the right to
inquire into its validity.
Victor and Emily argue that fraud is an affirmative
defense which must be specifically pleaded, that Sandra did not
do so, and she should have been prevented from raising it. We
are not convinced that Sandra's defense was fraud, but we need
not decide that question. Supreme Court Rule 181(b)(2) provides
that the defendant in forcible entry and detainer actions need
not file an answer unless ordered by the court, and when no
answer is ordered, "any defense may be proved as if it were
specifically pleaded." 134 Ill. 2d R. 181(b)(2). There being no
indication the court requested Sandra to file an answer, there is
no reason she could not attempt to prove a defense of fraud.
For the reasons above stated, we affirm the judgment of
the circuit court of Mason County.
STEIGMANN and KNECHT, JJ., concur.