NO. 4-95-0813
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In Re: the Marriage of ) Appeal from
MARYSE CHARLES, ) Circuit Court of
Petitioner-Appellant, ) Macon County
and ) No. 92D153
FRANTZ CHARLES, )
Respondent-Appellee. ) Honorable
) Scott B. Diamond,
) Judge Presiding.
_________________________________________________________________
JUSTICE McCULLOUGH delivered the opinion of the court:
In March 1994, the trial court entered a judgment
dissolving the 19-year marriage of petitioner, Maryse Charles, and
respondent, Frantz Charles, and reserving all other issues. In
December 1994, the court entered a supplemental judgment, allocat-
ing marital assets and debts and ordering Frantz to pay $2,250 per
month in child support. In September 1995, the court entered a
judgment which, in relevant part, awarded Maryse $2,750 per month
in maintenance, reviewable after three years.
Maryse appeals, arguing that the trial court erred (1) in
allocating marital assets and debts because the court (a) did not
consider Frantz's dissipation of marital assets, (b) did not
consider the parties' grossly disparate earning abilities; and (c)
ordered that liquidated marital assets be used to pay Frantz's 1994
tax liability; (2) by ordering that liquidated marital assets be
used to satisfy Frantz's attorney fees; (3) in awarding child
support that was substantially below the statutory guidelines; and
(4) in awarding maintenance that is inadequate to enable Maryse to
enjoy a lifestyle consistent with the lifestyle she had enjoyed
during the marriage. We reverse and remand.
Preliminarily, we point out that Frantz did not file a
brief on appeal. In First Capitol Mortgage Corp. v. Talandis
Construction Corp., 63 Ill. 2d 128, 133, 345 N.E.2d 493, 495
(1976), the supreme court held that where the record is simple and
the claimed errors are such that the reviewing court can easily
decide them without the aid of the appellee's brief, the court
should decide the merits of the appeal. However, a reviewing court
should not be compelled to serve as appellee's advocate. Where the
issues on appeal cannot be easily evaluated, the appellant's brief
makes a prima facie showing of reversible error, and the record
supports the allegations of error, a reviewing court may reverse.
Talandis, 63 Ill. 2d at 133, 345 N.E.2d at 495.
Deference should be given to the work of the trial judge,
and in the interest of judicial economy we are reluctant to reverse
without giving consideration to the merits. See Daley v. Jack's
Tivoli Liquor Lounge, Inc., 118 Ill. App. 2d 264, 273-75, 254
N.E.2d 814, 818-19 (1969) (cited as instructive in Talandis, 63
Ill. 2d at 131, 345 N.E.2d at 494). The record in this case is not
so complicated as to prevent this court from reviewing the issues
on the merits. We will consider the merits of the appeal.
Only those facts necessary to an understanding of this
disposition will be discussed. As to the issues raised on appeal,
the standard of review is whether the trial court's findings of
fact are against the manifest weight of the evidence or whether the
property distribution or awards of maintenance, child support, and
attorney fees amounted to an abuse of discretion. In re Marriage
of Swanson, 275 Ill. App. 3d 519, 528, 656 N.E.2d 215, 222 (1995)
(property distribution); In re Marriage of Frey, 258 Ill. App. 3d
442, 448, 630 N.E.2d 466, 471 (1994) (property distribution
including dissipation of assets); In re Marriage of Parker, 252
Ill. App. 3d 1015, 1022, 625 N.E.2d 237, 242 (1993) (attorney
fees); In re Marriage of Harlow, 251 Ill. App. 3d 152, 156, 621
N.E.2d 929, 933 (1993) (maintenance); In re Marriage of Tietz, 238
Ill. App. 3d 965, 978, 605 N.E.2d 670, 680 (1992) (child support).
The first issue is whether the trial court's allocation
of marital assets and debts was an abuse of discretion because the
trial court did not appropriately consider Frantz's dissipation of
marital assets. Maryse filed a petition for legal separation on
June 4, 1991. An order was entered on July 29, 1991, granting her
temporary custody, child support, maintenance, and use and
possession of the marital residence and a 1990 Audi. She filed a
petition for dissolution of marriage on March 6, 1992. At that
time, the proceedings were consolidated.
The trial court first ordered that marital debts be
satisfied from the marital estate. These debts ($344,476.42 plus
any penalty from the early withdrawal of tax-sheltered investments)
included several years of tax liabilities, Frantz's 1994 estimated
Federal income tax, and payments of attorney fees for both parties.
After debt satisfaction, the trial court awarded Maryse $49,000 in
personal property she had taken to Florida. Frantz was awarded two
homes and the debts thereon, a 1991 Nissan Pathfinder and the debt
thereon, and his medical practice. The trial court's orders
contain no findings as to the values of the assets awarded to
Frantz.
Maryse's first issue concerns dissipation of marital
assets by Frantz. Dissipation is a factor the trial court should
consider in allocating marital property. In re Marriage of Lee,
246 Ill. App. 3d 628, 633, 615 N.E.2d 1314, 1319 (1993). Dissipa-
tion refers to the "'use of marital property for the sole benefit
of one of the spouses for a purpose unrelated to the marriage at a
time that the marriage is undergoing an irreconcilable breakdown.'"
In re Marriage of O'Neill, 138 Ill. 2d 487, 497, 563 N.E.2d 494,
498-99 (1990), quoting In re Marriage of Petrovich, 154 Ill. App.
3d 881, 886, 507 N.E.2d 207, 210 (1987). Whether a given course of
conduct constitutes dissipation within the meaning of the Illinois
Marriage and Dissolution of Marriage Act (Act) (750 ILCS
5/503(d)(2) (West 1992)) depends upon the facts of the particular
case. Lee, 246 Ill. App. 3d at 633, 615 N.E.2d at 1319. The
spouse charged with dissipation has the burden of proving, by clear
and convincing evidence, how the marital funds were spent. Based
on the credibility of the witnesses, the trial court determines
whether the funds were spent for legitimate family expenses which
were necessary and appropriate. Tietz, 238 Ill. App. 3d at 983-84,
605 N.E.2d at 683.
The orders of the trial court in this case do not address
the question of dissipation of assets. No finding was made
regarding whether there was dissipation. Nor do the trial court's
orders indicate when the marriage began undergoing an irreconcil-
able breakdown. Maryse argues this began when Frantz began his
extramarital relationship. The record indicates that Frantz gave
money to and purchased trips and other items for his mistress
beginning in September 1990 and continuing for some time during
these proceedings. This was acknowledged by Frantz. There was
testimony from certified public accountant Robert Disbrow and from
Frantz from which the trial court could find that Frantz spent
several tens of thousands of dollars on this woman, including
credit card payments, cash, a house down payment, and mortgage pay-
ments. He was also paying her child support for their child.
Maryse points to evidence showing Frantz spent in excess of
$116,000 with respect to the extramarital relationship. Frantz
purchased a second home for himself after the parties separated.
For this second home, he made a downpayment of $11,000 and secured
a $175,000 mortgage. From April 1993 through November 1993, he
made monthly mortgage payments of $1,500. He also purchased
furniture for himself. While Maryse testified that Frantz had
removed several valuable household items from the marital home when
the parties initially separated, there was no evidence of the value
of these assets. Nor was there evidence of the value of the
personal property Maryse sold to pay for her move to Florida.
In In re Marriage of Hagshenas, 234 Ill. App. 3d 178,
197, 600 N.E.2d 437, 451 (1992), the court addressed the issue of
dissipation through excessive expenditures for living expenses, and
wrote the following:
"It is entirely within the realm of possibil-
ity that one spouse's use of marital funds for
his or her own living expenses at a time when
the marriage is undergoing an irreconcilable
breakdown could be shown to be so selfish and
excessive and improper as to constitute an
outright waste of marital funds."
On the record before us, there was dissipation of marital assets by
Frantz. Furthermore, between May 1991 and April 1993, the evidence
shows Frantz liquidated investments. Maryse argues this amount
exceeds $210,000. As the party charged with dissipation, Frantz
had the burden to establish by clear and convincing evidence the
disposition of these funds. The failure of the trial court to
address the question of dissipation amounted to an abuse of
discretion requiring reversal.
The record also supports a finding that Frantz dissipated
marital funds when he failed to satisfy the 1991 tax debt, thereby
incurring over $26,000 interest and penalties. Although the 1991
Federal income tax return was filed jointly, Maryse testified that
Frantz controlled the family finances and she did not see the 1991
tax return before Frantz filed it. Frantz presented no evidence
that Maryse had seen or signed the return, nor did he offer a
reason for failing to satisfy the tax debt. In addition, the trial
court could find that Frantz dissipated marital funds relating to
the filing of income tax returns for 1992 and 1993.
Upon remand, the trial court should reconsider the
distribution of marital assets and liabilities in light of the
dissipation of marital assets by Frantz. Because this judgment is
reversed, the remaining issues will be discussed to provide further
guidance to the trial court on remand.
When Maryse and Frantz married in 1974, Maryse abandoned
her medical studies. Although she subsequently acquired a
bachelor's degree in chemistry in 1993, she had not work outside
the home for a number of years and remained the primary caregiver
for their two children. During their marriage, Frantz established
a profitable medical practice. During the first six months of
1995, his net business income was $116,577. There is evidence
Frantz has substantial future earning ability. The trial court
committed an abuse of discretion by awarding Frantz, after debt
satisfaction, the bulk of the marital assets. It is likely Frantz
will be awarded the medical practice. The trial court should award
Maryse other marital property as an offset or order Frantz to make
payments to her. See Tietz, 238 Ill. App. 3d at 969-70, 605 N.E.2d
at 674; In re Marriage of Scafuri, 203 Ill. App. 3d 385, 389, 561
N.E.2d 402, 405 (1990).
At the August 21, 1995, hearing, the trial judge
explained that it appeared to him the parties had more debts than
assets, and although the medical practice was a high income
producer, he was going to consider the debt-asset relationship in
the award of maintenance. Courts have observed that, after a
dissolution of marriage, there may not be sufficient funds to
maintain both parties in the standard of living they previously
enjoyed. However, one party should not be allowed to continue in
that standard of living while the other party is forced to
substantially reduce her standard of living. This principle
applies whether the court is considering property distribution,
dissipation of assets, or maintenance.
In reconsidering the distribution of marital property on
remand, the trial court must also consider the parties' grossly
disparate earning abilities in determining an equitable distribu-
tion. Section 503(d) of the Act sets forth the factors to be used
by the trial court to divide the marital property in just propor-
tions. 750 ILCS 5/503(d) (West 1992). When it is necessary to
award large or income-producing assets to one spouse, the court may
achieve an equitable distribution by authorizing off-setting
payments to the other spouse. Swanson, 275 Ill. App. 3d at 528,
656 N.E.2d at 222.
It also appears the trial court erred in allocating
marital assets and debts because the court ordered that marital
assets be used to satisfy Frantz's estimated 1994 tax liability of
$108,321, even though the court entered the dissolution judgment in
March 1994. Since the parties' marriage was dissolved in March
1994, it is clear that a portion of Frantz's income for 1994 is
marital property which must be considered in the distribution of
marital assets. Since no final judgment of legal separation was
entered in this case, section 503(a)(3) of the Act is not invoked.
750 ILCS 5/503(a)(3) (West 1992). However, the tax liability on
only that portion of Frantz's 1994 income which was earned prior to
the dissolution of marriage is a marital liability. The fact that
the parties were living separately does not change the marital
nature of the income of either party, nor does it change the
marital nature of the income tax liability on that income, although
the incurring of penalties and interest by one party may be deemed
dissipation of assets. On remand, the trial court must make a
determination as to how much of Frantz's 1994 income, and there-
fore, how much of the 1994 tax liability, is included in the
marital estate and may allocate these assets and liabilities to the
parties.
The trial court ordered that marital assets be used to
satisfy Maryse's 1994 income tax liability. Her income consisted
only of the maintenance she received during 1994, which did not
represent the acquisition of a separate marital asset. The
Internal Revenue Code of 1939 allows one spouse to deduct payments
of separate maintenance to the extent those payments are includable
in the gross income of the recipient spouse, provided a joint
return is not filed. See 26 U.S.C. §§71, 215 (1994). However,
this does not control the determination of whether the income is a
marital asset or the resultant liability is a marital liability
under state law. It would not be an abuse of discretion for the
trial court to order each party to pay his or her own income tax
liability after separation in light of the disparity in income to
each. Nor would it be an abuse of discretion to have the liabili-
ties paid from the marital estate to the extent the incomes of each
party are substantially equivalent. However, when the income and
tax liability of one party far exceeds the income and tax liability
of the other party, it may be an abuse of discretion to order
payment of both parties' income taxes out of the marital funds
because this inadvertently penalizes the party with the lower
income. Here, the parties should have been ordered to pay his or
her own 1994 federal income tax liability.
Concerning attorney fees, the trial court erred by
ordering that liquidated marital assets be used to pay Frantz's
attorney fees. This, in effect, required that Maryse contribute to
Frantz's attorney fees. Under section 508(a)(1) of the Act, the
trial court may order a party to pay all or part of the other
party's attorney fees and costs incurred in maintaining an action
under the Act. 750 ILCS 5/508(a)(1) (West 1992). However, the
party seeking attorney fees must show an inability to pay the fees
and an ability of the other spouse to pay the fees. In re Marriage
of Riech, 208 Ill. App. 3d 301, 312, 566 N.E.2d 826, 832 (1991).
The record does establish that Frantz is able to pay his
attorney fees.
As to the award of child support, section 505(a) of the
Act (750 ILCS 5/505(a) (West 1992)) creates a rebuttable pre-
sumption that a specified percentage of a noncustodial parent's
income represents an appropriate child support award. In re
Marriage of Freesen, 275 Ill. App. 3d 97, 105, 655 N.E.2d 1144,
1150 (1995). Section 505(a)(1) of the Act provides that, in the
case of two children, the minimum amount of child support which the
trial court should order is 25% of the noncustodial parent's net
income. 750 ILCS 5/505(a)(1) (West 1992). The court may award
less child support if, after considering all relevant statutory
factors, it finds a reason for deviating from the guidelines. 750
ILCS 5/505(a)(2) (West 1992). When determining whether to deviate
from the statutory guidelines, a trial court's consideration of the
factors set forth in section 505 of the Act is mandatory, not
directory. Freesen, 275 Ill. App. 3d at 105, 655 N.E.2d at 1150.
In addition, the trial court must make express findings when it
orders child support that is below the statutory minimum. In re
Marriage of Morgan, 219 Ill. App. 3d 973, 974, 579 N.E.2d 1214,
1215 (1991). In determining the child support obligation of a
high-income parent, the court must balance competing concerns.
Lee, 246 Ill. App. 3d at 643, 615 N.E.2d at 1326. On one hand,
child support awards are not intended to be windfalls. Lee, 246
Ill. App. 3d at 644, 615 N.E.2d at 1326. On the other hand, the
court must consider the standard of living the children would have
enjoyed absent parental separation and dissolution. Lee, 246 Ill.
App. 3d at 643-44, 615 N.E.2d at 1326.
During the parties' marriage, the children enjoyed an
affluent lifestyle, including trips, parochial school, piano
lessons, and restaurant meals. In awarding child support in this
case, the trial court specifically found that Frantz is financially
able to pay child support, but failed to give any reason for its
downward deviation from the statutory guidelines. The failure to
explain the deviation alone warrants reversal.
For the purpose of calculating child support, the
supporting parent's net income, as defined in section 505(a)(3) of
the Act, must be calculated. 750 ILCS 5/505(a)(3) (West 1992).
Although, in calculating net income, federal and state income taxes
are deducted, we conclude the penalties and interest incurred for
the late and nonpayment of such taxes are not deductible in
arriving at a supporting parent's net income under the Act. The
record does show that Frantz is financially able to pay child
support (in 1992, Frantz earned $225,820; in 1993, more than
$258,000; and in 1994, more than $292,000).
Prior to the trial court in this case setting the child
support award, all of the factors enumerated in section 505(a)(3)
of the Act should be considered in determining net income.
Finally, we consider whether the trial court committed an
abuse of discretion by awarding Maryse $2,750 per month in mainte-
nance reviewable after three years. Once a trial court determines
that a maintenance award is appropriate under section 504(a) of the
Act, the court must consider relevant statutory factors to
determine the amount and duration of the award. 750 ILCS 5/504(a)
(West 1992). Those factors include the resources of the party
seeking maintenance (including apportioned marital property), the
standard of living established during the marriage and its
duration, and the financial ability of the party from whom
maintenance is being sought to meet his needs as well as meeting
those of his former spouse. 750 ILCS 5/504(a) (West 1992).
In determining the amount and duration of maintenance,
the trial court must balance the realistic ability of the spouse to
support herself in some approximation of the standard of living
enjoyed during their marriage against a goal of financial inde-
pendence. Harlow, 251 Ill. App. 3d at 158, 621 N.E.2d at 934. In
addition, when former spouses have grossly disparate earning
potentials, the goal of financial independence may not be achiev-
able because of the dependent former spouse's inability to maintain
the standard of living shared during the marriage. Harlow, 251
Ill. App. 3d at 159, 621 N.E.2d at 935.
Although Maryse testified she planned to attend graduate
school, there was no evidence she had applied, been accepted, or
what course of study she would take.
In the present case, the parties have grossly disparate
earning potentials. Frantz has substantial income and future
earning ability, fostered by the award of his medical practice. He
testified his net business income for 1994 was $292,940. In
addition, there had been testimony in this case relating to
interest and dividend income, although no mention of that was made
at the hearing on maintenance. Frantz is able to meet not only his
needs but those of Maryse. Maryse, the children, and her sister
lived in her mother's home. Although Maryse had obtained a
bachelor's degree in chemistry, she had not yet completed an
internship and did not have a job. In addition, she was the
primary caregiver to the parties' children. During the marriage,
Frantz and Maryse enjoyed an affluent lifestyle. Maryse's realis-
tic ability to support herself in some approximation of the
standard of living enjoyed during the marriage is minimal. The
trial court expressly found that the parties had "an opulent style
of life" and lived beyond their means. We recognize the trial
court in this case made every effort to be fair and that Maryse's
proof on maintenance was somewhat less than adequate. She
projected a "rent" of $1,500 per month based on what she thought it
would cost to obtain a house in Florida. As it appears Frantz was
paying $1,500 per month on his mortgage for his new house, that
does not appear to be unrealistic. In addition, she projected
utility bills ($225) based on what her mother was paying. Maryse's
most recent financial affidavit concluded she required $6,982.67
for monthly living expenses. There is a significant difference
between her expenses and the maintenance to be paid by Frantz. The
award of maintenance in this case was inadequate. Because this
case is remanded for reconsideration of property distribution,
there must also be reconsideration of the amount of maintenance and
whether permanent maintenance for Maryse would be appropriate.
The judgment of the circuit court of Macon County is
reversed. The cause is remanded for further proceedings consistent
with this opinion.
Reversed and remanded.
GARMAN, J., concurs.
STEIGMANN, J., specially concurs.
JUSTICE STEIGMANN, specially concurring:
Although I do not disagree with the majority's decision
to reverse or anything it says in reaching that decision, I
disagree that it should be saying any of this in the first place.
The majority claims to be giving deference to Talandis, which held
that, in the absence of an appellee's brief, a reviewing court
should reverse (1) if the appellant's brief demonstrates prima
facie evidence of reversible error, (2) the record supports the
appellant's allegations, and (3) a reviewing court cannot easily
evaluate the issues on appeal. Talandis, 63 Ill. 2d at 133, 345
N.E.2d at 495. The majority then concludes that "[t]he record in
this case is not so complicated as to prevent this court from
reviewing the issues on the merits." Slip op. at 2. I respect-
fully disagree.
The record in this case is not simple, and the claimed
errors are not such that we can easily decide them without the aid
of the appellee's brief. The 22-volume record consists of over
2,500 pages. Further, the scrutiny the majority was required to
give this record in order to decide this case and to prepare its
carefully detailed opinion belies the majority's assertion
regarding the uncomplicated nature of this record.
I agree with the majority that an analysis of the record
reveals prima facie evidence of reversible error. Maryse's brief
clearly supports her challenges to the propriety of the trial
court's rulings, with appropriate citations to the record and case
authority. Accordingly, we should take the supreme court at its
word in Talandis, reverse the trial court's judgment, and remand
with directions that the trial court grant Maryse all of the relief
she requested on appeal. We should do so without ever addressing
the merits of the trial court's order.
It is somewhat ironic that part of the explanation the
majority provides for its willingness to address this case on the
merits is its wish to give deference to the work of the trial
judge. See slip op. at 2. I suggest that the majority's willing-
ness to decide this case on the merits in the absence of an
appellee's brief--which might have addressed some of the majority's
concerns regarding the trial court's rulings--runs contrary to the
deference the majority claims to show. No trial court likes to get
reversed, but it would be far more palatable to be reversed because
the appellee simply failed to show up at the appellate court than
to be reversed--purportedly on the merits--when no one defended the
trial court's rulings in the appellate court. As the majority cor-
rectly points out, "a reviewing court should not be compelled to
serve as appellee's advocate." Slip op. at 2. So, if this court
does not serve as appellee's advocate, and the appellee elects not
to appear himself, then who is supposed to defend the trial court's
rulings?
I indicated earlier that I had no disagreement with the
majority on the merits, but in so stating I should clarify that
this concurrence is based upon the majority's assessment of the
record and the trial court's rulings in the absence of anyone
appearing in this court to argue that those rulings were correct.
Under Talandis, we need be satisfied only that the record reveals
prima facie evidence of reversible error--a standard I think this
record clearly shows. Nonetheless, it is at least possible that
had the trial court had someone defending its rulings before us,
our assessment of some (or even all) of those rulings might have
changed. Speaking only for myself, it often happens that I am much
more impressed with an appellant's arguments after having read only
the appellant's brief than I am after I have also read the
appellee's brief.