Filed 1/23/08 NO. 4-07-0091
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In re: the Marriage of ) Appeal from MARIA C. ASHER-GOETTLER, ) Circuit Court of Petitioner-Appellant, ) Woodford County and ) No. 04D64 GOTTFRIED J. GOETTLER, ) Respondent-Appellee. ) Honorable ) John B. Huschen, ) Judge Presiding. _________________________________________________________________
JUSTICE COOK delivered the opinion of the court:
On June 24, 2004, petitioner, Maria C. Asher-Goettler,
petitioned for dissolution of her marriage to respondent,
Gottfried J. Goettler. The trial court entered orders dissolving
the marriage and entering judgment on all issues. Petitioner
appeals those issues dealing with the distribution of property
and amount of maintenance. We reverse and remand.
I. BACKGROUND
Petitioner and respondent were married on October 29,
1991, in Munich, Germany. During the marriage, the couple had
two children, Patricia Goettler (born April 14, 1992) and
Christoph Goettler (born October 18, 1994). The couple spent the
first several years of their marriage in Germany before moving
back to Illinois in 1997. During the entire marriage, petitioner
worked either as a stay-at-home mother or as a waitress at or
manager of restaurants. At the time of the hearing, petitioner had recently completed a program to become a paralegal and had a
part-time job with at a local firm. Except for some period of
time in Germany, respondent, who holds a master's degree in
physics, was employed in some capacity and was employed at Belcan
Engineering Group at the time of the hearings.
On July 9, 2004, an agreed order granted temporary
custody of the couple's children to petitioner and granted her
possession of the marital residence. The order granted respon-
dent visitation. On July 29, 2004, the trial court entered an
agreed order again awarding petitioner possession of the marital
residence, rescinding an order of protection against respondent,
entering a no-contact order, revising custody to joint temporary
custody, and modifying the visitation schedule. Petitioner was
not to receive any child support or temporary maintenance but was
allowed to maintain and use $8,300 of marital funds that were
previously withdrawn from unspecified joint accounts at the time
of the separation for her living expenses. Respondent was pro-
hibited from claiming dissipation or a credit in the final mari-
tal property settlement for these funds provided that petitioner
used the funds for reasonable and necessary living expenses only.
Respondent was to pay the minimum balance on all marital debts on
a temporary basis.
On October 12, 2004, the trial court entered an order
denying temporary maintenance and modifying the visitation sched-
- 2 - ule.
On December 7, 2004, the trial court appointed a child
representative and entered an agreed order. The order set tempo-
rary child support requiring respondent pay petitioner $100 a
week. Petitioner was allowed use of three "ING accounts," which
cumulatively had a balance of $4,830, but could use the funds at
a rate not greater than $200 a week. Respondent was prohibited
from claiming dissipation or a credit in the final marital prop-
erty settlement for these funds.
On March 9, 2005, pursuant to petitioner's petition for
order to show cause, the trial court held respondent in contempt
for failure to provide written discovery and fined him $500 for
attorney fees.
Per an agreed order entered July 19, 2005, the trial
court ordered respondent to pay $250 a week to petitioner for
temporary child support, ordered respondent not to increase his
credit lines, and ordered that respondent be allowed to use a
portion of the marital residence's garage for storage.
After an evidentiary hearing on November 10, 2005, on
January 26, 2006, the trial court granted petitioner sole custody
of the couple's two children and granted respondent specific
visitation.
A hearing on all remaining issues was held on August 3,
2006. Respondent appeared pro se.
- 3 - Petitioner testified that for the first six or seven
years of the marriage in Germany she was primarily a stay-at-home
mom but also worked as a waitress for a short time for respon-
dent's brother. When the couple moved to America, petitioner
worked primarily as a waitress. Petitioner had a bachelor of
arts degree in English from Eastern Illinois University and
minors in business administration and German.
Petitioner submitted documents describing all of the
assets and debts of which she was aware and supporting documenta-
tion for each asset or debt. Petitioner believed the marital
residence had a market value of $270,000, a mortgage balance of
$75,385, and a home equity loan balance of $49,858. Neither
party was living in the marital residence at the time of the
hearing. Petitioner requested that she receive the proceeds from
the sale of the marital residence. The couple owned a mobile
home worth $3,000 that they rented for $576 a month. Petitioner
requested respondent retain the mobile home.
Petitioner's car had a value of $745, and respondent's
car had a value of $320.
Petitioner submitted that after all debts were paid,
including a debt owed to her parents in the amount of $46,746.91
and guardian ad litem (GAL) fees in the amount of $2,865, the
marital estate was worth $225,424.66.
Petitioner testified that the money from four ING
- 4 - accounts, valued at $6,229.73 was spent during the first year of
litigation for living expenses. Three of the ING accounts total-
ing approximately $4,830 were the accounts the court ordered for
her use on December 7, 2004. Petitioner claimed that as to the
remaining accounts, even if accounts were in her name, respondent
controlled all stock accounts, NetBank accounts, ING accounts,
investment accounts, and on-line accounts. Petitioner submitted
she had nothing to do with any accounts except those she was
allowed by court order to use.
Petitioner claimed respondent cashed in a German life-
insurance policy receiving $26,000 and giving none of that to
petitioner. A second German life-insurance policy valued at
$5,000 was not cashed in, and petitioner asked that it be awarded
to her because it was her nonmarital property.
Petitioner did not know whether income-tax returns had
been filed for 2003, 2004, or 2005 and stated that she received
none of the $6,000 refund due for 2002.
Petitioner requested 50% of the marital portion of
respondent's German pension.
Petitioner claimed respondent suddenly started contrib-
uting funds totaling approximately $7,700 to a church after they
separated and that they did not contribute money to a church or
go to a church on a regular basis before the separation.
Petitioner submitted a depiction of all the money her
- 5 - parents loaned her over the past two years for attorney fees,
living expenses, tuition for a paralegal program, automobile
repairs, and a new washing machine. Petitioner also submitted an
itemization of her attorney fees in excess of $24,000. Peti-
tioner submitted a general framework for dividing up all assets
and debts and for child support, maintenance, and health insur-
ance. Other than by selling the house, petitioner claimed she
had no ability to pay off attorney fees or credit cards if they
were assigned to her.
Petitioner believed respondent had bank accounts that
he had not disclosed and that he was transferring money out of
her ING accounts on a regular basis.
Respondent appeared pro se. Respondent testified the
couple made agreements under German law concerning their separate
money before they were married. Respondent discussed German
contracts the couple made during their marriage while in Germany.
Respondent also testified that while he had all the figures
regarding assets and debts, he did not have the figures at the
hearing. Respondent volunteered to bring them at a later time to
work out how to split them evenly. Respondent agreed that the
house was worth $280,000 and stated it was the only asset.
Respondent agreed his current gross income was $81,848 and that
he cashed in a German life-insurance policy in the amount of
approximately $26,000. Respondent acknowledged he controlled the
- 6 - accounts petitioner claimed he controlled and that he used some
of the proceeds from the $26,000 life-insurance policy to pay a
loan from a colleague.
The trial court took the matter under advisement and on
November 28, 2006, entered the final judgment for dissolution of
marriage. The court gave petitioner sole legal and physical
custody of the children and respondent visitation as shown in
attached exhibits. For child support, respondent was ordered to
pay $693 every two weeks representing 28% of his net income
pursuant to statute.
Each party was awarded life-insurance policies and any
cash value in his or her own name. Respondent was to pay peti-
tioner $200 a month as permanent maintenance. Respondent was to
pay $4,305.58 to petitioner as a portion of her attorney fees.
Each party was to pay half of the GAL fees. Each party was to
keep the car in his or her possession.
Respondent was to retain the marital residence and pay
petitioner her share of the net equity in the home by paying her
$64,502.50 within 60 days. If respondent was unable to secure
the funds, the parties must sell the home at $260,000. Each
month after listing, the list price is ordered reduced $10,000
until the property is sold. Upon the sale of the home, the
parties shall equally share the net proceeds of the sale. Until
respondent pays petitioner or the home is sold, respondent is to
- 7 - make all mortgage, insurance, and real-estate payments. Respon-
dent retained the mobile home.
Respondent's work 401(k) accounts were to be divided
equally. Petitioner retained the following accounts:
"1. Bank Plus Checking Account ***
with an approximate value of $278.73.
2. ING Savings Account *** with an
approximate value of $2,392.68.
3. ING Savings Account *** with an
approximate value of $1,880.21.
4. ING Savings Account *** with an
approximate value of $558.68.
5. ING Savings Account *** with an
approximate value of $1,398.16.
6. Vanguard Account *** with an
approximate value of $4,229.94.
7. E*Trade Roth IRA Account *** with
an approximate value of $13,726.74.
8. The children's accounts shall be
maintained in the children's names, and under
[petitioner's] control."
Respondent retained the following accounts:
"1. Bank Plus Savings Account ***
with an approximate value of $1,047.00.
- 8 - 2. Bank Plus Checking Account ***
with an approximate value of $100.00.
3. E*Trade Checking Account *** with
an approximate value of $602.89.
approximate value of $422.68.
approximate value of $4,153.28.
6. ING Savings Account *** with an
approximate value of $256.75.
7. ING Savings Account *** with an
approximate value of $766.16.
8. ING Savings Account *** with an
approximate value of $146.40.
9. ING Savings Account *** with an
approximate value of $328.51.
10. ING Savings Account *** with an
approximate value of $24.66.
11. ING Savings Account *** with an
approximate value of $5.86.
12. E*Trade Stock Account with an
approximate value of $25,448.00.
13. Vanguard Account *** with an
approximate value of $1,786.82.
- 9 - 14. E*Trade Money Market Account ***
with an approximate value of $2,581.76.
15. E*Trade Roth IRA Account *** with
an approximate value of $19,017.21.
16. E*Trade Roth IRA Account *** with
an approximate value of $11,122.80."
Petitioner was to pay the following debts:
"1. Associated Bank Visa Account ***
in the approximate amount of $4,658.51.
2. Capital One TJX Visa Account ***
in the approximate amount of $1,350.95."
3. A.D. Asher in the approximate amount
of $46,746.91."
Respondent was to pay the following debts:
"1. American Express Account *** in
the approximateamount of $10,901.91.
2. Bank of America Visa Account ***
in the approximate amount of $5,470.00
3. Capital One MasterCard account ***
in the approximate amount of $1,396.36.
4. Chase MasterCard Account *** in
the approximate amount of $5,122.34.
5. Chase Amazon Account *** in the
approximate amount of $1,882.76.
- 10 - 6. Citi-AT&T Account *** in the
approximate amount of $4,754.49.
7. Citi Platinum Account *** in the
approximate amount of $10,291.01.
8. Citi-Quicken MasterCard Account ***
in the approximate amount of $7,230.41.
9. Citi Platinum Select Account ***
in the approximate amount of $3,643.18.
10. Discover Account *** in the
approximate amount of $9,007.54.
11. First National Account *** in the
approximate amount of $13,449.08.
12. National City Visa Account *** in
the approximate amount of $6,830.54.
13. Sears Gold Master Card Account ***
in the approximate amount of $4,220.82."
The trial court specifically noted that before the separation,
the debts of the parties, aside from the mortgage, were just over
$80,000. Two years after the separation, the debts of the par-
ties rose to over $125,000. During the same time, the marital
assets fell from $40,482 to $7,489. In addition, petitioner
incurred over $40,000 in debt to family members. The court
determined that both parties made financial decisions that could
be defined as dissipation, including respondent's charitable
- 11 - contributions totaling $7,700. According to the court's figures,
petitioner received $131,181.87 in assets and $52,756.37 in debts
with a net asset distribution of $78,425.50. These figures did
not count the GAL fees to be split or the $4,305.58 respondent
was to pay petitioner for attorney fees. Respondent received
$382,600.01 in assets and $289,697.94 in debts with a net asset
distribution of $92,902.07. These figures did not count respon-
dent's responsibility to pay the mortgage, insurance, and real-
estate payments connected to the house, the permanent maintenance
payments of $200 a month, or the child-support payments of $1,386
a month.
After the final judgment was entered, petitioner filed
a posttrial motion. In the motion, petitioner included as exhib-
its copies of bills she began receiving after the trial was
completed. Petitioner claimed she had no prior knowledge of the
existence of the credit-card debt and respondent had not dis-
closed this debt in his financial affidavit or trial testimony.
The trial court denied petitioner's motion, character-
izing the case as "highly litigated." The court noted that
petitioner was now on her third lawyer and respondent went
through three lawyers before proceeding pro se. The court ac-
knowledged that petitioner had difficulty obtaining respondent's
financial information throughout the proceedings. The court
further noted that petitioner's attorney refused to discuss
- 12 - values and valuation dates with respondent per petitioner's
instructions not to speak with respondent unless he agreed to pay
her attorney fees. The court felt a meaningful meeting between
the parties was impossible and did not require one. The court
used petitioner's values and valuation dates and acknowledged
possible errors in those values but found petitioner's objection
to the values waived as she presented them. Because of "the
parties' refusal to cooperate in establishing values and
[r]espondent's reluctance to comply with discovery requests," the
court determined that it would not "receive any better values
then previously received." At the hearing on the motions to
reconsider, petitioner could not assure the court she would be
able to obtain more accurate values from respondent.
This appeal followed.
II. ANALYSIS
On appeal, petitioner argues the trial court erred in
seven different ways. First, the court erred in its consider-
ation of dissipation. Second, the court's handling of the mari-
tal residence was inappropriate. Third, the final order does not
include substantial assets and debts, such as German pensions, a
loan against respondent's 401(k) plan, and credit-card debts not
known at the time of the hearing. Fourth, the court erred in
requiring petitioner repay the loan from her parents. Fifth, the
maintenance award was insufficient. Sixth, the court should have
- 13 - ordered child support to be retroactive. Seventh, respondent
should have been required to pay more of petitioner's attorney
fees and GAL fees. Petitioner requests a new trial on all issues
other than custody, visitation, and amount of current child
support. Respondent did not file a brief.
We recognize that the parties were not cooperative in
working together to determine all marital assets and debts.
Because of this, the trial court had a difficult time sorting
through the numbers to determine how to equitably divide the
marital estate. On appeal, the main issues include the court's
handling of the parties' dissipation of marital assets, the
handling of the marital residence, and of the assigning empty
accounts to petitioner that the court had previously ordered
would be hers for support. Because of the handling of these
issues, remand is warranted. Upon remand, the court should also
address the new marital debts petitioner brought to the court's
attention after the final judgment. The issues connected to
maintenance, child support, GAL fees, attorney fees, and the loan
to petitioner's parents may be reevaluated once the property
distribution is redrafted to comply with this opinion.
A. Dissipation
Petitioner argues respondent clearly dissipated marital
assets when he made the following financial decisions: (1)
cashed in a German life-insurance policy worth $26,000 to repay a
- 14 - friend and pay other vague expenses; (2) spent $6,000 of the tax
refund from 2002 without disclosing for what the money was used
or giving half to petitioner; (3) donated $7,700 to a church of
which he became a member after the couple's separation; and (4)
took out a loan approximating $30,000 on his work 401(k) to
"refinance high interest cards," for "divorce costs" and for
"property tax." She also claims that despite the trial court's
statement that "both parties made financial decisions affecting
the marital state which could be defined as dissipation," she did
not dissipate any funds.
In determining how to divide marital property, the
trial court shall consider, among other relevant factors, "the
dissipation by each party of the marital or non-marital prop-
erty." 750 ILCS 5/503(d)(2) (West 2004). "Where a spouse uses
marital property for his own benefit and for a purpose unrelated
to the marriage at a time in which the marriage is undergoing an
irreconcilable breakdown, the court may consider that conduct and
compensate the disadvantaged spouse when apportioning the marital
property." In re Marriage of Block, 110 Ill. App. 3d 864, 870,
441 N.E.2d 1283, 1288 (1982). Whether the use of marital prop-
erty amounts to dissipation depends on the facts of the case. In
re Marriage of Rai, 189 Ill. App. 3d 559, 565, 545 N.E.2d 446,
449 (1989). If the spouse charged with dissipation cannot show
by clear and specific evidence that the funds were spent for a
- 15 - legitimate family expense, a finding of dissipation is appropri-
ate. Rai, 189 Ill. App. 3d at 565, 545 N.E.2d at 449-50. The
trial court's finding regarding dissipation will not be disturbed
unless it is against the manifest weight of the evidence. Rai,
189 Ill. App. 3d at 565, 545 N.E.2d at 450.
In this case, the trial court stated that both parties
made financial decisions that "could be defined as dissipation"
and referred specifically to respondent's $7,700 contribution to
a church. The court made no mention of respondent's admission
that he cashed in $26,000 in a German life-insurance policy after
the separation to pay a "loan" from a "colleague." The court
also did not address the missing $6,000 from the 2002 tax refund.
Finally, in a posttrial motion, respondent admitted his 401(k)
was no longer worth what it used to be. Petitioner argues the
evidence shows that the 401(k) plan was initially worth
$82,938.46 but is now worth $52,695.53. Petitioner also attached
an unfiled, unverified financial affidavit wherein respondent
admitted repaying $761.15 a month on the loan from the 401(k) and
claimed the loan was used to refinance high-interest cards, for
divorce costs, and for property tax. As respondent could not
present clear and specific evidence that the funds from the life-
insurance policy, tax refund, and 401(k) loan were used for
legitimate family expenses, the court's failure to specifically
find dissipation regarding these assets was against the manifest
- 16 - weight of the evidence.
The trial court rightly categorized the $7,700 church
contribution as dissipation but did not use the figure when
dividing the assets and debts. Presumably, the court did not use
the figure because of the vague finding that petitioner also
dissipated assets. The record does not show, though, what assets
the court considered petitioner to have dissipated. If on remand
it can be specifically shown what assets petitioner dissipated,
the decision not to use the $7,700 in dividing the assets may be
justified. As the record stands now, though, the decision not to
figure in the $7,700 dissipation was against the manifest weight
of the evidence.
B. Marital Residence
Petitioner argues the trial court made many errors in
handling the marital residence. First, the court awarded the
residence to respondent despite petitioner's request--to which
respondent did not specifically object--that she be awarded the
residence. We note that at the time of the hearing, neither
party was living in the home and respondent requested that he
have permission to live in it. Petitioner agreed that respondent
could live in the house.
Second, petitioner claims the trial court used the
wrong valuation date in determining her share of the net equity
of the home. The court valued the home at $270,000, a price
- 17 - petitioner presented as the current market value of the home.
Respondent agreed the home had a current market value of around
$280,000. The court used the mortgage amount from the date of
separation, $140,995, resulting in a net equity of $129,005 and
her half being $64,502.50. Petitioner argues the court should
have used the mortgage amount as of the date of the hearing,
$125,243, resulting in a net equity of $144,757 and her half
being $72,378.50, which is $7,876 more than respondent was in-
structed to pay petitioner.
Third, petitioner contends that the system of selling
the home if respondent was unable to pay her $64,502.50 within 60
days was detrimental to her. According to petitioner, respondent
had incentive to be "unable" to pay the amount and list the house
for sale under the court's order. The trial court ordered that
the house be listed at a price that was $10,000 less than peti-
tioner stated the house was worth. If the house did not sell the
first month, the price of the house would be reduced by $10,000
each month until it sold. Under this scheme, respondent, who was
living in the residence, was to make mortgage payments each
month, increasing equity in the house. Ultimately, respondent
would only have to split the reduced sales price with petitioner.
Further, the ordered reduction in price did not account for the
possibility of an increasing local housing market. Finally,
petitioner argues nothing prevented respondent from avoiding a
- 18 - sale and then buying the house himself or having another buy the
house after the price had been reduced for a few months.
At the hearing, petitioner testified that a realtor
told her the most they could sell the house for if everything was
fixed up to perfect top-notch condition was $290,000. The
realtor warned, though, that because of the number of homes being
built in the area, "there is an eight-month supply of brand new
homes, and [the Goettlers'] home is in--not in that good of
condition." Before the house could be listed, petitioner claimed
the realtor said a lot of work needed to be done.
We agree that at the very least, the trial court used
improper valuation dates for determining the value of the marital
residence. Section 503(f) of the Illinois Marriage and Dissolu-
tion of Marriage Act (750 ILCS 5/503(f) (West 2004)) states that
"in determining the value of the marital and non[]marital prop-
erty for purposes of dividing the property," the court "shall
value the property as of the date of trial or some other date as
close to the date of trial as is practicable." Petitioner testi-
fied to the mortgage as of the time trial, but the court valued
the mortgage at the date of separation 26 months earlier. This
resulted in respondent receiving a larger portion of the equity
in the marital residence despite the court's effort to divide the
equity 50/50. Thus, the portion of the final judgment distribut-
ing the equity in the marital residence was in error and should
- 19 - be reconsidered on remand.
Also on remand, the trial court should reconsider the
method it ordered for the sale of the house should it determine
that awarding the home to respondent is still the most equitable
decision. The court should consider whether petitioner's argu-
ment is legitimate when she contends that respondent may have
incentive not to cooperate in securing funds or in selling the
home in an effort to reduce petitioner's share of the equity and
increase his share.
C. Empty Support Accounts
The trial court awarded to petitioner three ING ac-
counts, the second, third, and fourth accounts listed above,
based on the amount they contained in 2004. The order failed to
acknowledge, though, that a previous agreed order awarded those
amounts to her for her and the children's support pending the
dissolution. Petitioner was not awarded temporary child support
or maintenance in exchange for the accounts and respondent was
not allowed to argue a dissipation or credit connected to the
accounts. The final judgment, though, simply awarded the now
empty three accounts to petitioner as part of her property dis-
tribution and did not acknowledge that the accounts were empty
because they were ordered for her support.
This is clearly an error as the agreed order granting
petitioner the accounts specifically stated that respondent was
- 20 - not allowed to argue a dissipation or credit connected to the
accounts. By awarding the accounts to petitioner and considering
them part of her share of the marital estate, the trial court
implicitly credited petitioner or implicitly found dissipation.
D. Additional Issues To Resolve on Remand
On remand, the trial court should consider and address
the following issues depending on how the court decides to redis-
tribute the marital property.
1. Assets/Debts Not Included in Final Judgment
Petitioner argues that the final judgment does not
account for certain assets and debts.
First, the judgment does not mention the German pension
plans even though petitioner presented paycheck stubs from Ger-
many that she translated to show that 10.15% of respondent's
paychecks went into a pension plan. Petitioner asks that if and
when respondent receives his pension fund, she be awarded her
share of the marital portion. Petitioner has no evidence,
though, of what the pension is worth and respondent did not
disclose this asset in his financial affidavit or answers to
interrogatories. Petitioner also has a German pension plan with
some unknown amount in it from before the couple was married that
she requests be awarded to her.
Second, in her posttrial motion, petitioner presented
the trial court with evidence of three credit cards in her name
- 21 - that respondent opened, used, and on which he incurred signifi-
cant debt, but which were not part of the final judgment. The
first account, a Discover account, was one petitioner told the
court respondent used and paid, but she was not aware at the
hearing that the account had a balance of $9,414.24. The second
account was a Discover account of which petitioner had never been
aware. She received a statement for the first time after the
trial showing a balance of $9,999.89. The third card was a
CitiCard account that petitioner did not include at trial because
respondent had previously been ordered to pay on the account and
all statements had been sent to him. Unbeknownst to petitioner,
the account carried a balance of $7,407.20. All three accounts,
totaling $26,821.33, are in petitioner's name but, according to
petitioner, respondent incurred the debt. As the cards are in
her name, petitioner will have to pay them as the judgment did
not mention them.
2. Loan from Petitioner's Parents
Petitioner took out loans from her parents for her and
the children's support after she used all of the money from the
ING accounts. The loans also paid for her paralegal training and
attorney fees. Petitioner presented a breakdown of what portion
of the loan went to perceived "family support," attorney fees,
and paralegal training costs. At the hearing, petitioner re-
quested that she be assessed this loan and the court complied.
- 22 - In the final judgment, the trial court indicated some doubt as to
whether this loan needed to be repaid, stating "[a]lthough peti-
tioner is receiving a lesser amount of net marital property, a
majority of her debt is to her parents and family members, which
may or may not be repaid."
Despite her previous request that she be assessed the
loan, petitioner argues this loan is marital debt that should be
shared by the parties. Petitioner argues it is not equitable for
her to have to pay this loan and the three credit cards in her
name that were not included in the judgment and be credited with
the three empty ING accounts that she used per court order for
her and the children's support.
3. Maintenance
Petitioner argues the maintenance amount did not ac-
count for her need to work part time to fulfill her role as a
parent or account for respondent's financial superiority. Also,
the trial court did not consider COBRA for health insurance for
petitioner. Further, the maintenance is inappropriate because of
the overall inequitable property division. Finally, petitioner
argues that the $200 a month in permanent maintenance was insuf-
ficient as it was not ordered retroactive to the date of the
petition.
4. Child Support
Petitioner argues that the child support should have
- 23 - been ordered retroactive with credit for any amounts paid.
5. Attorney Fees and GAL Fees
The trial court ordered respondent pay $4,305.58 of
petitioner's attorney fees. This was the amount of outstanding
legal fees at the time of the hearing. Petitioner spent over
$31,000 in attorney fees. Most of petitioner's fees were paid by
the loan from petitioner's parents. Petitioner claims because
respondent caused the fees with his constant arguing, and because
of respondent's financial means, he should be required to con-
tribute a greater percentage. Finally, petitioner argues respon-
dent caused the need for GAL fees, so respondent should have to
pay a greater portion.
III. CONCLUSION
For the reasons stated, we reverse the trial court's
judgment and remand for a new trial on the issues of property
division and maintenance.
Reversed and remanded.
MYERSCOUGH, J., concurs.
McCULLOUGH, J., dissents.
- 24 - JUSTICE McCULLOUGH, dissenting:
I respectfully dissent. As the trial court found in
the order on the motion to reconsider:
"This was a highly litigated case. At
the time of the final hearing, Petitioner was
on her second lawyer (third currently) and
Respondent after using three different law-
yers elected to proceed pro se. Throughout
the proceedings Petitioner had difficulty
obtaining Respondent's financial information
and Respondent was once found in contempt for
failure to comply with discovery. Early on
in the proceeding, Respondent took the posi-
tion the documents were not required to be
provided because of a German pre-marital
agreement, or the materials were previously
provided to Petitioner in digital form. Dur-
ing the pendency of the proceeding,
Petitioner's attorney refused to discuss with
Respondent values and valuation dates as
prior meetings had digressed into emotional
tyraids [sic] against Petitioner's character.
As a result, Petitioner instructed her attor-
ney to refuse to discuss the case with Re-
- 25 - spondent unless Respondent agreed to pay for
her attorneys fees. Based on the Court's own
observations of the parties, a meaningful
meeting between the parties was impossible,
and as a result, this Court waived the re-
quirement of a four-way meeting as required
by the Court's pretrial order. At the hear-
ing on remaining issues, Petitioner's values
and valuation dates were used and although
this Court acknowledges errors in those val-
ues, Petitioner's objection to the valuation
and valuation dates are therefore waived.
Also, due to the parties' refusal to cooper-
ate in establishing values and Respondent's
reluctance to comply with discovery requests,
this Court is not convinced it would receive
any better values then previously received.
At the hearing on the Motions to Reconsider,
Petitioner was unable to assure the Court she
would be able to obtain more accurate values
from Respondent."
As is apparent, this case was a nightmare for the trial
judge. He spent considerable time trying to resolve the issues
between the parties, and his decision should be affirmed.
- 26 -