In re Marriage of Dickinson

2021 IL App (5th) 200263-U

• Court: Appellate Court of Illinois
• Decided: December 27, 2021
• Docket: 5-20-0263
• Status: Unpublished

Opinion

2021 IL App (5th) 200263-U NOTICE NOTICE Decision filed 12/27/21. The This order was filed under text of this decision may be NO. 5-20-0263 Supreme Court Rule 23 and is changed or corrected prior to the filing of a Petition for not precedent except in the

Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1). APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

In re MARRIAGE OF ) Appeal from the ) Circuit Court of MELISSA DICKINSON, ) Williamson County. ) Petitioner-Appellee, ) ) and ) No. 18-D-165 ) DAVID DICKINSON, ) Honorable ) Brad K. Bleyer, Respondent-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE VAUGHAN delivered the judgment of the court. Justices Welch and Cates concurred in the judgment.

ORDER

¶1 Held: The trial court’s judgment for distribution is affirmed where the trial court’s property distribution, awards of maintenance, and educational expenses were not abuses of the discretion; however, we amend the maintenance termination date from April 30, 2035, to April 30, 2034, nunc pro tunc.

¶2 Respondent, David Dickinson, appeals the trial court’s judgment for distribution

contending the trial court abused its discretion by attributing over $150,000 he removed from the

parties’ joint Vanguard account solely to him, by awarding petitioner statutory maintenance and

child support that exceeded one-half of David’s monthly net income, and prematurely awarding

educational expenses that required David to pay 50% of the expenses. For the following reasons,

we affirm.

1 ¶3 I. BACKGROUND

¶4 David and Melissa Dickinson were married on September 2, 1999. Eight children were

born of the marriage with the oldest born in 2000 and the youngest born in 2017. During the

marriage, David completed his education and became a podiatrist, while Melissa stayed at home

and homeschooled the children. On June 20, 2018, Melissa filed a petition for dissolution of

marriage. The trial court granted Melissa’s petition for temporary relief which allowed Melissa to

stay in the marital home and ordered David to pay Melissa $8500 a month for maintenance and

child support. On September 17, 2018, a guardian ad litem was appointed, and on March 18, 2019,

a section 604.10(c) (750 ILCS 5/604.10(c) (West 2018)) evaluation report was filed. A two-day

hearing was held on August 28 and August 29, 2019. On October 30, 2019, the parties entered into

a final parenting plan and judgment providing Melissa with residential custody of the seven minor

children along with parental responsibility for education and medical care of the children. The

dissolution of marriage was also granted as of October 30, 2019, via the trial court’s November

14, 2019, judgment.

¶5 Testimony at the August hearing revealed that during the pendency of the proceedings

David left the marital home, purchased a new home, purchased a vehicle, changed jobs, and made

numerous withdrawals from the parties’ joint Vanguard account that amounted to approximately

$158,000. David’s testimony revealed that he used a portion of the money as a down payment on

his new residence, purchased a 2005 Honda Pilot, furnished his home with furniture and beds for

the children, and purchased, inter alia, a television, a computer, a palm pilot, a scooter, a video

game console, a dune buggy, camping equipment, and bicycles for his new home. David also

testified that he used a portion of the money to pay maintenance to Melissa when his prior

employer did not pay him for three months. He further testified that he also used the funds to

2 purchase malpractice insurance; fund two accounts for Melissa, one for repairs on the marital home

and the other to pay bills; and as payment for litigation fees and costs associated with the divorce.

¶6 On February 20, 2020, the trial court issued a judgment for distribution which awarded the

mortgage-free marital home with a fair market value of $202,000 to Melissa and David’s new

home with $50,000 equity to David. The court found that David was advanced marital funds during

the pendency of the proceedings and “this advance negates any discrepancy between the values of

the real estate and the furnishings awarded.” Melissa was awarded the 2015 Nissan NV, the 1999

Ford F-250, the 2011 Honda Odyssey, and the 2008 Honda Fit that had a total value of $29,000.1

David was awarded the 2010 Toyota Camry and 2005 Honda Pilot that had a total value of

$10,929. The trial court listed marital financial accounts totaling $772,700 and divided the

amounts equally between the parties. The trial court also ordered the parties, after any amount in

a child’s Brightstart 529 college account was expended, to split any remaining college expenses

with Melissa and the child each paying 25% of the expenses and David paying 50% of the

expenses. The parties were directed to tender a stipulated agreement regarding any other personal

property and each party was assigned their own credit card debt.

¶7 Thereafter, the trial court found the parties were married for 18 years, 9 months (225

months) and applied the statutory factor of .76. After noting David’s net monthly income of

$16,919 and Melissa’s lack of income, the court awarded Melissa statutory maintenance of $5640

effective February 1, 2020, until 171 months were paid. Maintenance would terminate “after all

current, timely payments to Melissa have been made for a period of 14.25 years, through April 30,

2035.” The trial court also noted that David’s child support was $2935 effective February 1, 2020.

1 The parties submitted Joint Exhibit A which listed their assets and the estimated values of those assets. 3 David was ordered to pay $25,000 towards Melissa’s attorney fees, and any other outstanding costs

associated with the litigation would be split equally. David was to receive any refunds due from

the 2018 federal ($11,937) and state ($676) tax returns and was allowed to claim each of the minor

children on his taxes. David was also awarded $30,000 in nonmarital funds. Finally, David’s

lawsuit against his prior employer, if paid, would be split equally, after payment of attorney fees

and costs, between the parties. On March 19, 2020, David filed a motion for reconsideration, which

was denied by the trial court in a docket entry dated July 31, 2020. David timely appealed on

August 28, 2020.

¶8 II. ANALYSIS

¶9 On appeal, David contends that the trial court erred in its allocation of property by finding

that he was advanced over $150,000 in marital funds during the pendency of the proceedings and

“this advance negates any discrepancy between the values of the real estate and the furnishing

awarded” because attributing these funds double counted some of the assets against David and

created a windfall for Melissa. David also contends that the trial court erred in both the amount

and duration of Melissa’s maintenance, because the maintenance amount combined with the child

support equated to more than 50% of David’s net income. David additionally argues the

maintenance should terminate on April 30, 2034, not April 30, 2035, and the trial court erred by

not crediting David with the temporary maintenance and child support paid during the pendency

of the proceedings. Finally, David argues that the trial court erred in allocating the college expenses

of the minor children, contending the issue was premature because the trial court could not consider

the income, obligations, and assets of the parties, at the time the younger children would attend

college. Melissa requests affirmation of the trial court’s judgment for distribution.

4 ¶ 10 A. Property Distribution

¶ 11 “Distribution of marital property is a matter within the discretion of the trial court.” In re

Marriage of Hamilton, 2019 IL App (5th) 170295, ¶ 34. “On appeal, we will not disturb the court’s

distribution of assets absent an abuse of discretion.” Id. “An abuse of discretion occurs where no

reasonable [person] would take the view adopted by the trial court.” In re Marriage of Carpenter,

286 Ill. App. 3d 969, 973 (1997). “ ‘[T]he touchstone of proper apportionment is whether it is

equitable in nature,’ ” and each case rests on its own facts. In re Marriage of Heroy, 385 Ill. App.

3d 640, 661 (2008) (quoting In re Marriage of Drury, 317 Ill. App. 3d 201, 211 (2000)). An

equitable division does not necessarily mean an equal division, and “one spouse may be awarded

a larger share of the assets if the relevant factors warrant such a result.” In re Marriage of Henke,

313 Ill. App. 3d 159, 175 (2000).

¶ 12 The statute provides 12 relevant factors to consider when dividing the marital property in

“just proportions.” 750 ILCS 5/503(d) (West 2018). “A reviewing court applies the manifest

weight of the evidence standard to the factual findings for each factor on which a trial court may

base its property disposition ***.” In re Marriage of Vancura, 356 Ill. App. 3d 200, 205 (2005).

However, here, David does not argue that the trial court ignored or misinterpreted any of the

statutory factors. Instead, David argues that there was insufficient evidence presented at trial for

the court to find that over $150,000 was used solely by David during the pendency of the divorce

and, even if there was sufficient evidence, the trial court’s property disposition double counted

some of the assets to David’s detriment and Melissa’s favor.

¶ 13 We disagree with David’s argument regarding the sufficiency of the evidence supporting

the $150,000. While $15,000 was removed prior to the filing of the divorce petition, this amount

was removed after Melissa requested and received the order of protection filed in advance of the

5 dissolution proceeding. In any event, the amount is de minimis when considered in conjunction

with the remaining funds David removed from the Vanguard account and the total value of the

marital estate. David’s testimony revealed that he alone removed the money and transferred the

funds to his personal checking accounts. We note that little underlying documentation was

submitted in support of where the money was spent, but according to David’s testimony, $30,000

was used as a down payment on his new house, $12,000 was used to purchase the 2005 Honda

Pilot, $30,000 was placed in an account to be used for repairs on the marital home, $20,000 was

used to pay his malpractice insurance, and $11,000 was placed in a joint account to pay bills. David

concedes on appeal that “only $52,424.86 was unaccounted for” and now claims this amount was

used to pay the costs of litigation, including attorney fees, GAL fees, and the custodial evaluation,

as well as maintenance to Melissa when David was not paid by his employer.

¶ 14 What is not mentioned by David on appeal is what was listed in his March 19, 2019,

financial affidavit and his testimony regarding same. The affidavit claimed that David spent

$9144.06 in personal expenses listed under “other,” which included a headset, phone, pens, palm

pilot, planner, computer, and monitor. When questioned about this entry, David stated that he took

the total costs for these items over three months and divided them by three to reach this amount.

Therefore, based on David’s testimony, he spent $27,432.18 on electronic equipment for his

personal use. David also testified that he spent a little less than $9000 replacing the heating and air

conditioning unit at his new house and purchased a $2000 scooter, a $200-300 television, beds,

mattresses, bookshelves, books, electronic equipment, camping equipment, games, and bicycles

for the children to use at his home. Although a value was not provided for each item, the values

provided, including those related to his litigation expenses, amount to $60,700 and further reveal

that David spent at least $200,000 in the 20 months after he left the marital residence on his own

6 personal liabilities and enjoyment. As such, the evidence was sufficient to support the trial court’s

finding that David was advanced marital funds during the pendency of the proceedings, and this

finding is not against the manifest weight of the evidence.

¶ 15 David also contends that even if the evidence sufficiently supported the advanced marital

funds, the trial court’s attribution of approximately $150,000 of these funds was an abuse of

discretion because the attribution resulted in “double counting” which favored Melissa and was

unfair to David. Double counting occurs when the value of a marital asset is counted twice. In re

Marriage of Schacht, 343 Ill. App. 3d 348, 352 (2003) (citing In re Marriage of Talty, 166 Ill. 2d

232, 236 (1995)). Here, David claims that the trial court’s attribution of over $150,000 results in

double counting because the $30,000 used as a down payment on the house and the $12,000 used

to purchase the Honda Pilot were counted twice. However, the record reveals that David spent at

least $200,000 during the pendency of the proceedings, and therefore, the $42,000 paid toward his

house and car may not have been included in the $150,000 attributed to David.

¶ 16 David also claims that the $30,000 put into the account for repairs of the marital home, the

$11,000 placed into a joint account to pay bills, and the $20,000 paid to his malpractice carrier

should not have been attributed solely to him but equally attributed to both parties because there

was no notice of dissipation filed by Melissa. However, David provides no argument or reasoning

why it was an abuse of discretion for the trial court to attribute the funds solely to him when he

was the party who removed the funds from the Vanguard account, he was the sole income producer

during the marriage, and Melissa had no current or future employment prospects due to her

continued homeschooling of the minor children.

¶ 17 The statute does not require the trial court’s distribution to be equal, only equitable, and it

is well-settled that a distribution may provide a larger share to the non-income-producing spouse

7 and still be equitable. See In re Marriage of Romano, 2012 IL App (2d) 091339, ¶¶ 122, 124

(affirming distribution of marital estate with 23% to Daniel and 77% to Cynthia); see also In re

Marriage of Henke, 313 Ill. App. 3d at 175-77 (affirming distribution of marital estate with 30%

to Marvin and 70% to Adele). Here, without the attribution of the $152,000, David received 43%

of the marital assets and Melissa received 57%. With the trial court’s attribution, the parties each

received 50% of the marital property. While David contends it was inequitable to attribute some

of the amounts solely to him, he fails to explain why such division would be inequitable when the

trial court’s decision resulted in David receiving $10,823.07 back from the $30,000 home repair

account, the full amount of the $12,600 refund from the 2018 taxes in addition to his retention of

the $30,000 account containing his nonmarital funds. As such, we find that the trial court’s

property distribution was not an abuse of discretion and affirm the distribution.

¶ 18 B. Maintenance and Child Support

¶ 19 A maintenance award will not be disturbed on appeal absent an abuse of discretion. In re

Marriage of Schiltz, 358 Ill. App. 3d 1079, 1084 (2005). Here, there is no dispute that the trial

court’s award of maintenance ($5640) and child support ($2935.90) were correctly calculated

pursuant to the statute. Instead, David argues that the trial court erred by not deviating from the

statutory amount to reduce the amount of his maintenance since the combined amount of child

support and maintenance was over 50% of his net income and further erred by failing to credit him

the amount of maintenance paid during the pendency of the proceedings. Finally, David argues

that the trial court erred by setting the termination date of the maintenance as April 30, 2035,

instead of April 30, 2034.

¶ 20 Section 504 of the Illinois Marriage and Dissolution of Marriage Act (Act) provides

guidelines for determining the amount and duration of maintenance. It states, inter alia, “If the

8 application of guideline maintenance results in a combined maintenance and child support

obligation that exceeds 50% of the payor’s net income, the court may determine non-guideline

maintenance in accordance with paragraph (2) of this subsection (b-1), non-guideline child support

in accordance with paragraph (3.4) of subsection (a) of Section 505, or both.” 750 ILCS 5/504(b-

1) (West 2018).

¶ 21 “The fundamental rule of statutory construction is to ascertain and give effect to the

legislature’s intent.” Nowak v. City of County Club Hills, 2011 IL 111838, ¶ 11. The intent should

be determined primarily by examining the plain and ordinary meaning of the statutory language.

Lucas v. Lakin, 175 Ill. 2d 166, 171 (1997). “Whether a statutory provision is mandatory or merely

directory depends upon the intent of its drafters.” People v. Reed, 177 Ill. 2d 389, 393 (1997). “An

important aid in determining legislative intent is the nature of the auxiliary verb used in the

statute.” Id. “Legislative use of the word ‘may’ is generally regarded as indicating a permissive or

directory reading, whereas use of the word ‘shall’ is generally considered to express a mandatory

reading.” Id. A statute should be read with all relevant parts considered. Kraft, Inc. v. Edgar, 138

Ill. 2d 178, 189 (1990). Our interpretation of this section, which used the word “may,” allows a

trial court to deviate from the statutorily calculated maintenance but does not require the deviation.

As such, we continue our review to determine if the trial court abused its discretion by failing to

deviate from the statutory guidelines.

¶ 22 Here, the trial court found the parties were married for 225 months and used the statutory

factor of .76 to determine the duration of maintenance at 171 months. The court noted that

throughout “the entirety of their marriage, while eight (8) children were born to the marriage,

Melissa remained at home, and was the children’s primary caregiver, homeschooling the children.”

The court noted that Melissa had no outside source of income, and it would be unreasonable to

9 impute income to her since she continued to homeschool the children and the youngest was only

two years old. The court further found that David was the sole income earner. Thereafter, the court

stated that “[g]iven the significant disparity of income between Melissa and David,” David was to

pay $5640 in statutory maintenance for 171 months (14.25 years) beginning February 1, 2020, and

terminating on April 30, 2035.

¶ 23 David does not argue that an award of maintenance was inappropriate. Instead, David

claims the maintenance amount should have been reduced, claiming the award creates a windfall

for Melissa because her award ($8575.90) exceeded her monthly living expenses ($7414.71). In

support, David cites In re Marriage of Nord, 402 Ill. App. 3d 288, 293 (2010), contending the trial

court should consider the reasonable needs of the recipient of the support while taking into

consideration the living established during the marriage.

¶ 24 We agree with the premise in Nord but find David’s factual argument lacking. First,

nothing in David’s argument addressed the trial court’s findings related to Melissa’s lack of current

or future income, his own income as a podiatrist, or the disparate income difference between the

parties. Second, while Melissa’s June 18, 2018, financial affidavit listed her total monthly living

expenses as $7414.71, Melissa’s more recent August 27, 2019, financial affidavit listed her total

monthly living expenses as $8587.71. By awarding Melissa the statutory amount, Melissa is close

to meeting her monthly expenses, which is extremely relevant considering that she has no income

other than David’s maintenance payment.

¶ 25 Conversely, David’s August 30, 2018, financial affidavit revealed $5227 in available

monthly income after David’s monthly expenses, including maintenance and child support, were

paid. While David’s February 28, 2019, financial affidavit contended his total income available

each month was a deficit of $11,250.77, his testimony revealed that numerous items set forth in

10 the later financial affidavit were not recurring monthly expenses or contained erroneous amounts.

These items included the $9144.06 for electronic equipment and legal fees, $2016.23 for tuition

paid out of the Brightstart 529 account, a reduction in the monthly amount for FICA from $1628.77

to $686.65, and $1002.37 for extracurricular activities which primarily involved one-time

purchases of recreational equipment for the children while they were at his home. Considering

David’s testimony, in conjunction with the trial court’s maintenance and child support award,

David would have at least $1778.11 remaining after payment of his monthly financial

responsibilities and living expenses. As such, we find the trial court did not abuse its discretion in

awarding Melissa the statutory amount for maintenance despite the amount being more than 50%

of David’s net income.

¶ 26 David also argues that the trial court erred by failing to credit him with the amounts of

maintenance previously paid during the pendency of the proceedings. The relevant statutory

provisions states, “In the discretion of the court, any term of temporary maintenance paid by court

order under Section 501 may be a corresponding credit to the duration of maintenance set forth in

subparagraph (b-1)(1)(B).” 750 ILCS 5/504(b-1)(1.5) (West 2018). Here, David contends the trial

court “should have made the 171 months of maintenance effective [in] November of 2018” when

David began paying temporary maintenance to Melissa but provides no argument and cites no case

law in support of the position.

¶ 27 Illinois Supreme Court Rule 341(h)(7) states that the argument section of an appellant’s

brief “shall contain the contentions of the appellant and the reasons therefor, with citation of the

authorities and the pages of the record relied on. *** Points not argued are forfeited and shall not

be raised in the reply brief, in oral argument, or on petition for rehearing.” Ill. S. Ct. R. 341(h)(7)

(eff. Oct. 1, 2020). Under Rule 341(h)(7), the reviewing court is entitled to have clearly defined

11 issues presented with cohesive argument and pertinent authority. Obert v. Saville, 253 Ill. App. 3d

677, 682 (1993). An appellant forfeits any contention that is not supported by argument or by

citation to authority. Id. As such, pursuant to Rule 341(h)(7), we find this issue was forfeited and

affirm the trial court’s effective date for the maintenance period as February 1, 2020.

¶ 28 David also argues that even if the duration is affirmed, the termination date is incorrect

because 171 months from the effective date of February 1, 2020, would be April 30, 2034, not

April 30, 2035. No argument to the contrary was provided by Melissa, and therefore, we find that

the trial court’s use of the 2035 date was a clerical error. “The function of a nunc pro tunc order is

merely to correct the record of the judgment and not to alter the judgment actually rendered.”

Dauderman v. Dauderman, 130 Ill. App. 2d 807, 809 (1970). As such we amend the trial court’s

judgment setting the termination date of April 30, 2035, nunc pro tunc, to April 30, 2034.

¶ 29 C. Educational Expenses

¶ 30 Finally, David argues that the trial court’s allocation of college expenses for all the parties’

minor children was premature and was error because the allocation could not consider the income,

obligations, and assets of the parties at the time of judgment as required by section 513 of the Act.

750 ILCS 5/513 (West 2018). Section 513 states:

“In making awards under this Section *** the court shall consider all relevant factors that

appear reasonable and necessary, including:

(1) The present and future financial resources of both parties to meet their needs,

including, but not limited to, savings for retirement.

(2) The standard of living the child would have enjoyed had the marriage not been

dissolved.

(3) The financial resources of the child. [and]

12 (4) The child’s academic performance.” Id. § 513(j)(1)-(4).

¶ 31 The trial court’s award of educational expenses is reviewed for an abuse of discretion. In re

Marriage of Budorick, 2020 IL App (1st) 190994, ¶ 83. “A trial court abuses its discretion only

where no reasonable person would take the view adopted by the trial court.” In re Marriage of

Schneider, 214 Ill. 2d 152, 173 (2005).

¶ 32 First David argues that the trial court failed to consider the factors found in section 513. In

support, David claims “[n]othing in the determination *** shows that the Trial Court considered

the substantial payment the Husband was paying to Wife for maintenance, the assets awarded to

the parties, the home without a mortgage awarded to Wife, the need for Husband to start over,

incur a mortgage and buy a home, and the substantial payment for child support from Husband to

Wife.” David further contends that, economically, Melissa “has more net income than [David]

with no debts and an investment portfolio,” while David must “pay double the amount of the

educational expenses of the children at 50% of all costs.”

¶ 33 We disagree with David’s claim that the trial court ignored the statutory factors. The

purpose of the educational expense provision “is to authorize a discretionary award *** to

guarantee that funds are available if the need arises.” In re Marriage of Dieter, 271 Ill. App. 3d

181, 190 (1995). Here, there was no dispute that David was the sole income earner and Melissa’s

opportunity to earn income in both the present and future was hampered by the fact that she would

continue to homeschool the minor children, the youngest being 2½ years old at the time the

judgment was rendered. As such, the present and future earnings of the parties at the time most of

the children would attend college was known and addressed by the court. Further, while David

claimed that Melissa’s net income was greater than his, based on the financial affidavits and

David’s testimony, Melissa had no income after paying her expenses, while David had income

13 remaining after all his expenses were paid. David’s testimony revealed his belief that all the

children were college candidates based on their intelligence, his desire for all the children to attend

college, and his preference that each child have some responsibility in paying for college. Given

the financial disparity between the parties, as well as David’s desire for the children to attend

college, we cannot say the trial court abused its discretion in requiring David to contribute more

than Melissa or the child toward each child’s college education.

¶ 34 Finally, David claims the trial court’s allocation of education expenses for the children who

had not yet entered primary school was improper as there was no ability for the trial court to

ascertain the future costs of postsecondary education, the income/assets of the child, nor the

financial abilities of the parties to pay said funds at that time. We note, however, that the record

reveals that no such argument was ever presented to the trial court. Arguments not raised in the

trial court are generally forfeited on appeal. U.S. Bank Trust, N.A. v. Colston, 2015 IL App (5th)

140100, ¶ 20. We further note that David never objected to the trial court’s authority to address

the children’s educational expenses, conceded the trial court had “the authority to direct the support

of the children provided they complied with [the] requirements under 750 ILCS 5/513,” and

thereafter requested the trial court split any educational expenses after exhaustion of a child’s 529

account “in equal thirds between mother, father, and the student.” “ ‘It is fundamental to our

adversarial process that a party waives his right to complain of an error where to do so is

inconsistent with the position taken by the party in an earlier court proceeding.’ ” McMath v.

Katholi, 191 Ill. 2d 251, 255 (2000) (quoting Auton v. Logan Landfill, Inc., 105 Ill. 2d 537, 543

(1984)). “A party cannot complain of error which he induced the court to make or to which he

consented.” Id. Based on David’s concessions before the trial court, we find this issue forfeited.

14 ¶ 35 III. CONCLUSION

¶ 36 For the reasons stated herein, we affirm the trial court’s property disposition and its awards

of maintenance and educational expenses and amend the trial court’s April 30, 2035, maintenance

termination date, nunc pro tunc, to April 30, 2034.

¶ 37 Affirmed in part and amended in part.