In re Marriage of Juiris

2018 IL App (1st) 170545

Opinion

2018 IL App (1st) 170545

FIRST DIVISION

January 22, 2018

No. 1-17-0545

In re Marriage of ) Appeal from the ) Circuit Court WILLIAM STEVEN JUIRIS, ) Cook County. ) Petitioner-Appellee, ) ) No. 13 D 10549 and ) ) HEIDI LYNN JUIRIS, ) Honorable ) David E. Haracz, Respondent-Appellant. ) Judge Presiding.

JUSTICE HARRIS delivered the judgment of the court, with opinion. Presiding Justice Pierce and Justice Simon concurred in the judgment and opinion.

OPINION

¶1 In September 2016, the trial court entered a judgment dissolving the marriage of William

S. Juiris and Heidi L. Juiris. In its judgment, the court made several factual findings, ordered

maintenance be paid to petitioner, ordered petitioner to pay child support, and divided the marital

assets and debts.

¶2 In the judgment, the court determined that petitioner earned approximately $49,000,

while respondent earned approximately $105,000. After reviewing the statutory guidelines, the

court determined petitioner was entitled to permanent maintenance retroactive to November

2013. The court determined respondent was self-supporting and did not require maintenance.

The court set petitioner’s future child support obligation, but denied respondent’s request for

temporary back child support. The trial court found that respondent had dissipated approximately

$9000 in marital assets by improperly removing petitioner from health insurance coverage. The No. 1-17-0545

court rejected all other claims of dissipation and divided the marital estate equitably. Each party

was made responsible for the debt in their name and their own attorney fees. After the parties

filed their respective motions to reconsider, the court determined respondent’s income to be

$117,700 and ordered petitioner’s maintenance recalculated based on this figure.

¶3 Respondent challenges three aspects of the judgment on appeal. She argues that the trial

court erred when (1) it denied her request for retroactive child support, (2) it awarded petitioner

retroactive maintenance, and (3) it found her Mercedes had $20,000 in equity.

¶4 For the reasons stated more fully below, we affirm the judgment for dissolution of

marriage in all respects.

¶5 JURISDICTION

¶6 The trial court entered its judgment for dissolution of marriage on September 7, 2016.

Respondent filed a motion to reconsider on October 4, 2016, while petitioner filed his motion to

reconsider on October 5, 2016. After briefing from the parties, the trial court entered an order

resolving all the issues presented in each motion to reconsider on January 24, 2017. On February

21, 2017, respondent filed her notice of appeal. Accordingly, this court has jurisdiction over this

matter pursuant to article VI, section 6 of the Illinois Constitution, and Illinois Supreme Court

Rules 301 and 303. Ill. Const. 1970, art. VI, § 6; Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); Ill. S. Ct. R.

303 (eff. Jan. 1, 2015).

¶7 BACKGROUND

¶8 The parties do not challenge several aspects of the divorce judgment, so we recite only

those facts necessary for the disposition of the issues raised in this appeal. The petitioner,

William S. Juiris, and respondent, Heidi L. Juiris, were married on August 18, 1990. During the

marriage, two children were born, JJ (born 1996) and MJ (born 2003). JJ obtained the age of

majority during the prejudgment litigation. -2­ No. 1-17-0545

¶9 Petitioner filed for divorce on November 27, 2013. The parties then proceeded with three

years of litigation. The parties did not separate at that time and continued to reside in the marital

residence with their children until the start of trial in October 2015. During the interim, petitioner

filed two motions of intent to claim dissipation of marital assets, which respondent denied.

Petitioner filed a motion for temporary support on November 27, 2013, seeking temporary

maintenance, statutory child support, and attorney fees. Respondent filed her own motion for

temporary relief on October 3, 2014, seeking temporary child support. For reasons not stated in

the record, both motions for temporary support were entered and continued until trial. Trial

commenced on October 26, 2015, with additional hearings taking place on November 12, 2015,

March 8 through March 10, 2016, June 10, 2016, and June 15, 2016. Petitioner and respondent

both testified, as did two home appraisers and petitioner’s sister. Because of the issues raised,

only the parties’ testimony is relevant to the disposition of this appeal.

¶ 10 After hearing from the above individuals, the trial court entered its judgment for

dissolution of marriage on September 7, 2016. In entering its judgment, the court made several

factual findings that guided its decisionmaking. The court found respondent to not be a credible

witness. It further determined that the record also contained several examples of respondent’s

“demeaning and unsupportive conduct, including the financial manipulation of the husband.”

The facts established that, after the dissolution proceeding was initiated, respondent refused to

communicate with petitioner regarding their children, despite residing in the same home. The

court cited examples including, but not limited to, respondent’s failure to inform petitioner of the

date of parent-teacher conferences, her failure to discuss the length of MJ’s summer camp stay,

and her refusal to discuss the divorce proceedings in a reasonable manner. Petitioner was found

to have always attempted to stay involved with the minors and to have made attempts to include

respondent in parenting decisions. -3­ No. 1-17-0545

¶ 11 While acknowledging that both parties worked full time during the marriage, the court

concluded that respondent was the primary wage earner during the majority of the marriage.

Petitioner’s income was found to be approximately $49,000. Given his age and education, it was

not likely to increase in the future. Respondent’s gross income was determined to be $105,000,

with $100,000 coming from her current employer and an annual gift of $5,000 from her parents.

The court rejected petitioner’s claim that the rental income from respondent’s Fargo

condominium should be included in her gross income. The court also rejected petitioner’s

dissipation claims except a claim related to respondent’s removal of petitioner from the family

insurance plan. The court ordered respondent to pay $9010, the total amount it cost petitioner to

obtain health insurance from the date of his removal until the entry of the judgment.

¶ 12 The court then discussed petitioner’s claim for temporary and permanent maintenance.

After noting the relevant guidelines, the court determined petitioner was entitled to permanent

maintenance retroactive to November 2013. Respondent was ordered to pay petitioner $1,050 per

month with the retroactive portion totaling $35,700. The court denied respondent’s request for

maintenance. Respondent was given residential custody of MJ but the parties were to equally

share parenting decisions. Petitioner owed a duty of child support, and based on an approximate

net income of $43,120, his payments were set at $718.66 per month. The court concluded that

respondent’s Mercedes was marital property and had $20,000 in equity. Respondent was directed

to pay petitioner $10,000 as his share of the Mercedes. Finally, the court ordered that the parties

were responsible for their own attorney fees and the debts in their name. 1

¶ 13 Each party brought a motion to reconsider. Petitioner argued that the court erred (1) in

finding the rental income from the Fargo condominium was not marital property, (2) concluding

1 The court also addressed several issues related to MJ, but we omit those portions because neither party challenges those aspects of the judgment. -4­ No. 1-17-0545

respondent’s use of certain credit cards were for reasonable living expenses, (3) denying his

request for attorney fees, (4) dividing the marital estate, and (5) not considering the best interest

of MJ when setting the holiday visitation schedule. In respondent’s motion to reconsider, she

argued that the court erred in (1) awarding retroactive maintenance, (2) denying retroactive child

support, (3) finding dissipation related to the medical insurance coverage, (4) valuing both

parties’ cars, and (5) not considering the best interest of MJ when setting the holiday visitation

schedule.

¶ 14 The court heard argument on both motions on January 24, 2017. As to petitioner’s

motion, the court granted count I and imputed an additional $12,700 to respondent’s gross

income (for a new total of $117,700). The court ordered petitioner’s maintenance recalculated

based on this figure. 2 The court denied the dissipation claim related to the credit cards and again

denied petitioner’s request for attorney fees. The court allowed a revision to the holiday schedule

and concluded that the son’s ATV and snowmobile that had been included in the marital estate

would be excluded as the son’s property. Respondent’s motion was denied in total.

¶ 15 Respondent filed this appeal and argues that the trial court erred when it (1) denied her

request for retroactive child support, (2) awarded petitioner retroactive maintenance, and (3)

found her car had $20,000 in equity.

¶ 16 ANALYSIS

¶ 17 In her first issue, respondent argues that the trial court erred in denying her request for

temporary child support. 3 On October 3, 2014, respondent filed a motion seeking temporary

child support from petitioner. While acknowledging that both respondent and petitioner

continued to reside in the marital residence together, the motion alleged that respondent paid all

2 The new maintenance figure is not a part of the record. 3 Respondent does not challenge the award of permanent future child support that petitioner is required to pay. -5­ No. 1-17-0545

household and child expenses. Respondent further claimed that petitioner did not contribute

anything to either the household or the children’s expenses. Respondent attached her Rule

13.3(b) disclosure to her motion, which showed she spent $4032.93 on household expenses and

$1400 on the children’s expenses. The trial court did not discuss respondent’s motion in the

judgment of dissolution and it made no award of temporary back child support in respondent’s

favor.

¶ 18 The decision to award retroactive child support rests within the sound discretion of the

trial court. In re Marriage of Sawicki, 346 Ill. App. 3d 1107, 1119 (2004). In support of her

argument that the court abused its discretion, respondent relies on the fact that the court made no

mention of this claim in the judgment of dissolution and on the following court comment at the

motion to reconsider hearing. At the hearing, the court stated, “I understand that there may be a

couple of things here that the appellate court may not agree with me on.”

¶ 19 Initially, we reject respondent’s attempt to utilize the comment made by the court as a

means to show it abused its discretion. On appeal, the relevant inquiry is not whether the

appellate court would have come to a different conclusion; it is whether “no reasonable person

would take the view adopted by the court.” In re Marriage of Toole, 273 Ill. App. 3d 607, 618

(1995). Moreover, a review of the transcript demonstrates that the trial court’s statement was not

directed at any specific aspect of the judgment of dissolution. In its next comment, the court

stated, “I tried to make it as equitable a decision as possible. And I know you both have some

problems with that.”

¶ 20 Setting aside the comment made by the court, we find no abuse of discretion in not

awarding respondent temporary child support. In support of her motion, respondent attached her

Rule 13.3 disclosure statement. At trial, the disclosure statement was greatly discredited. The

court heard that despite listing a mortgage payment of $2847.93 as part of household expenses, -6­ No. 1-17-0545

respondent had stopped paying it in May 2013. Respondent testified this money was spent on the

children, but provided no receipts or other documentation to substantiate the claimed expenses.

The court heard further testimony that respondent liquidated $113,000 from the parties’

retirement plans without petitioner’s knowledge. Respondent testified that this went toward

household and child expenses. Despite finding that respondent forged petitioner’s signature in

order to liquidate the funds, the court concluded respondent was honest about spending them on

the children and their use did not constitute dissipation.

¶ 21 Since half the money liquidated was petitioner’s ($56,500), the trial court could readily

conclude this represented his temporary support obligation. 750 ILCS 5/503(b)(2) (West 2016)

(pension benefits tied to contributions made during the marriage are marital property). Under the

guidelines in place during this proceeding, section 505 would have required petitioner to pay

28% of his net income based on having two children. 750 ILCS 5/505(a)(1) (West 2016). The

court found petitioner had a net income of $43,120, which would translate into $12,073 per year

in child support. Therefore, if the court had ordered petitioner to pay the guideline amount, he

would have owed approximately $36,220 in back child support. Because respondent converted

$56,500 of petitioner’s marital estate to household and child expenses, respondent actually

received more in child support than she would have been awarded had the court followed the

guidelines. Based on the above facts, the trial court did not abuse its discretion in denying

respondent’s request for temporary child support.

¶ 22 In the next issue, respondent claims the trial court erred in awarding petitioner temporary

maintenance in the amount of $35,700. Respondent argues that the pair cohabitated together for

two of the three years of the divorce proceeding, and therefore the trial court should only have

awarded maintenance for the last year when petitioner resided with his mother. Respondent

-7­ No. 1-17-0545

argues that pursuant to section 510(c) (750 ILCS 5/510(c) (West 2016)), their cohabitation

barred the trial court’s award of maintenance during the two years of cohabitation.

¶ 23 Normally, an award of maintenance is within the discretion of the trial court, and it will

not be disturbed on review absent an abuse of that discretion. In re Marriage of Schneider, 214

Ill. 2d 152, 173 (2005). However, respondent is raising a question of statutory construction,

which we review de novo. In re Marriage of Lubbs, 313 Ill. App. 3d 968, 969 (2000).

¶ 24 Based on the language contained in section 510(c), respondent’s claim that petitioner

should not have received temporary maintenance during the cohabitation period is rejected.

Section 510(c) states in relevant part:

“Unless otherwise agreed by the parties in a written agreement set forth in the

judgment or otherwise approved by the court, the obligation to pay future

maintenance is terminated upon the death of either party, or the remarriage of the

party receiving maintenance, or if the party receiving maintenance cohabits with

another person on a resident, continuing conjugal basis. A payor’s obligation to

pay maintenance or unallocated maintenance terminates by operation of law on

the date the recipient remarries or the date the court finds cohabitation began.”

(Emphases added.) 750 ILCS 5/510(c) (West 2016).

A reading of the statute shows that the cohabitation provision does not apply to respondent’s

situation. The section deals with terminating future maintenance, not temporary-past

maintenance, when “the party receiving maintenance cohabits with another person on a resident,

continuing conjugal basis.” 750 ILCS 5/510(c) (West 2016). Respondent cites to neither a case

nor a different part of the statute to demonstrate that “another person” includes the current, yet to

be divorced, spouse. Moreover, respondent cites to nothing in the record showing they were in

-8­ No. 1-17-0545

engaging in conjugal activities during this time. Respondent’s claim based on section 510(c)

finds no support in the text of the statute and is rejected.

¶ 25 Respondent also argues that there were certain tax implications the trial court failed to

consider. A review of the record demonstrates that respondent never raised any tax issue before

the trial court in relation to the temporary maintenance award. It is well settled that “[i]ssues not

raised in the trial court are waived and cannot be argued for the first time on appeal.” In re

Marriage of Minear, 181 Ill. 2d 552, 564 (1998). At no point during the underlying proceedings

did respondent raise the issue of possible tax consequences, and she has therefore waived review

of this argument.

¶ 26 Even if not waived, we find respondent’s argument to be without merit. She argues that,

under 26 U.S.C. § 215(a) (2012), her payment of maintenance is tax deductible, but 26 U.S.C.

§ 71(b)(1)(C) (2012) requires that the payee spouse and the payor spouse not be members of the

same household when the payment was made. Petitioner counters that respondent has not yet

made the payment, and since the parties no longer live together, that section will not be

implicated. We agree with petitioner that since the parties are no longer in the same household

and respondent has yet to make a payment, section 71(b)(1)(c) will not be implicated.

¶ 27 Finally, respondent claims that the differential ruling on retroactive maintenance and

child support was the trial court’s way of punishing her for certain conduct during the course of

the proceedings. We find nothing in the record to support such a claim. While the trial court

repudiated respondent for several actions taken during these proceedings, there is no evidence in

the record that would demonstrate the court punitively penalized her for such actions by denying

her temporary child support. We reject respondent’s assertion the trial court’s denial of

temporary child support was punitive in nature.

-9­ No. 1-17-0545

¶ 28 In her last issue, respondent argues that the trial court erred in valuing her Mercedes. At

trial on June 15, 2016, respondent testified that the Mercedes had about 87,000 miles on it and a

value of $20,000-$23,000. She presented no evidence to support either claim concerning the

mileage or value. While the record indicates she did try to submit some website printouts, the

trial court rejected their admission as hearsay. She did submit evidence showing an

approximately $19,000 outstanding lien on it. On cross-examination, respondent admitted that at

her deposition on November 4, 2014, she claimed it was worth $40,000. Petitioner testified that

he believed it was worth $30,000 but presented no evidence to support this claim.

¶ 29 In divorce proceedings, it is the obligation of the parties to present to the court evidence

to support their claim as to the value of marital property. In re Marriage of Courtright, 155 Ill.

App. 3d 55, 59 (1987). A court’s determination as to the value to be given a piece of marital

property will not be disturbed unless it is against the manifest weight of the evidence. In re

Marriage of Grunsten, 304 Ill. App. 3d 12, 17 (1999).

¶ 30 Given the evidence and testimony heard by the trial court, its valuation of the Mercedes

was not against the manifest weight of the evidence. Respondent presented no evidence

regarding the Mercedes value except for her own unsubstantiated opinion. Before this court,

respondent argues automobiles depreciate so it is expected the value changed between November

2014 and June 2016. While this court is familiar with the concept of depreciation, respondent

presented no evidence concerning how her Mercedes depreciated over that time period.

Depreciation is not a universally applied concept because numerous and distinct factors may go

into calculating an automobile’s depreciation rate. The trial court did not have to accept

respondent’s contention, offered without evidence, that her car was worth only $20,000-$23,000.

¶ 31 In support of her argument, respondent cites to In re Marriage of Berberet, 2012 IL App

(4th) 110749. In that case, the appellate court found that the trial court did not abuse its - 10 ­ No. 1-17-0545

discretion when it valued the husband’s car at $33,875, despite having been purchased only eight

months earlier for $43,855. Id. ¶¶ 66-68. The appellate court noted that the husband offered into

evidence, without objection, the present Kelly Blue Book value of his car in “good condition.”

Id. ¶ 68. The wife did not present any evidence to dispute the husband’s evidence. Id. Unlike the

husband in Berberet, respondent placed no evidence into the record substantiating her valuation.

Id. Also unlike Berberet, respondent did not present any evidence showing the purchase price.

Id. ¶ 66. Thus, Berberet does not provide any support to respondent.

¶ 32 Given respondent’s credibility issues and the lack of evidence she provided, the trial

court could reasonably conclude that the valuation given at respondent’s deposition represented

the most accurate assessment. Therefore, the trial court’s determination as to the value to give to

respondent’s Mercedes was not against the manifest weight of the evidence.

¶ 33 In conclusion, petitioner makes a claim for attorney fees for defending this appeal. We

decline petitioner’s request to award him attorney fees in the defense of this appeal; however,

petitioner is free to bring an attorney fee motion pursuant to section 508(a)(3) (750 ILCS

5/508(a)(3) (West 2016)) in the trial court. Our denial of his request should not act as a bar to

such a subsequent claim or a determination of its merits.

¶ 34 CONCLUSION

¶ 35 For the reasons stated above, the judgment appealed from is affirmed.

¶ 36 Affirmed.

- 11 ­