NO. 4-06-0439 Filed 6/11/07
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In re: the Marriage of ) Appeal from the ROBIN C. MANKER, ) Circuit Court of Petitioner-Appellee ) Morgan County and Cross-Appellant, ) No. 03D152 and ) PATRICIA J. MANKER, ) Honorable Respondent-Appellant ) James W. Day, and Cross-Appellee. ) Judge Presiding.
JUSTICE MYERSCOUGH delivered the opinion of the court:
In March 2006, the trial court dissolved the marriage
of petitioner, Robin Manker, and respondent, Patricia Manker.
Patricia appeals, arguing error in the trial court's decision (1)
to retain jurisdiction on the allocation of petitioner's
Teachers' Retirement System (TRS) pension until Patricia's TRS
pension is in pay status and (2) that Robin's automated teller
machine (ATM) withdrawals of funds from the marital checking and
savings account after the couple's separation were not
dissipation of marital funds. Robin cross-appeals, arguing that
(1) the trial court erred in its treatment of attorney fees as
dissipation of marital assets and (2) the maintenance award must
be modified if this court reverses on the issue of the trial
court's reservation of jurisdiction over the pensions. We affirm
in part, reverse in part, vacate in part, and remand with
directions. I. BACKGROUND
Robin and Patricia were married on June 5, 1971. Their
first son, Brad, was born in 1979. Their second son, Tyson, was
born in 1982. In February 1992, Robin began a relationship with
Karen Isom. That relationship lasted three months. On July 28,
2002, Robin moved out of the marital home. After Robin moved
out, he lived with his parents for three months. Robin testified
that he paid his parents $500 per month in rent. In 2003, Robin
began dating Isom again. On August 18, 2003, Robin filed a
petition for dissolution of marriage.
On December 7, 2004, Patricia filed a motion for
temporary relief stating that she was paying the mortgage and all
other household expenses. The motion requested that Robin's
benefit payments from TRS be divided equally so that Patricia
would receive $1,781.29 per month.
Also on December 7, 2004, Patricia filed a motion
requesting a preliminary injunction and reimbursement of assets
to the marital estate. The motion alleged that Robin had been
using marital funds to make rent payments to Isom. The motion
specifically referenced a $4,000 check written by Robin to Isom,
which was allegedly for 10 months' rent at the rate of $400 per
month. The motion also cited various expenditures made by Robin
from marital funds for improvements on Isom's home.
The motion requested that the trial court enter a
- 2 - preliminary injunction prohibiting Robin from paying marital
funds to Isom, or to any other individual or entity on her
behalf, throughout the course of the dissolution proceedings.
The motion requested the court enter an order for Robin to
reimburse the marital estate for the cost of the rent paid to
Isom and the cost of the improvements on her home. The motion
also requested Robin reimburse the estate for the cost of labor
expended in improving her home.
On January 31, 2005, the trial court entered an order
reflecting that the parties had stipulated that (1) Robin would
pay Patricia, as a marital property adjustment, $750 per month
retroactive to June 2, 2004, and continuing until the court
ordered otherwise; (2) Robin will not expend marital funds for
gifts to Isom; (3) Robin would cease any further cash payments to
Isom; (4) Robin would cease expending funds toward the repair,
upkeep, or improvement of Isom's residence or other property of
Isom's during the pendency of the dissolution proceedings; (5)
any expenses Robin contributes to Isom's household must be
reasonable; (6)reimbursement by Robin of amounts paid to Isom,
including the $4,000 in rent, will be reserved until further
order of the court; (7) Robin will pay Patricia $1,250,
representing half of the $2,500 expenditures Robin expended to
improve Isom's home; and (8) Patricia agreed to return 14
enumerated items of personal property to Robin that were in her
- 3 - possession at the time.
The trial court held a hearing on April 1, 2005. Robin
testified that he currently resided with his girlfriend, Isom.
He and Isom began living together in October 2003. Robin retired
on June 2, 2004. Robin testified that prior to the trial court's
order issued January 31, 2005, he had been paying Isom $400 per
month in rent which he paid in one lump sum in June 2004 in the
amount of $4,000 for 10 months' rent. After the court's order of
June 2, 2004, Robin agreed not to make any further rent payments
to Isom. Robin said he came to the $400 amount for rent by
comparing prices of apartments in the local paper.
Robin testified that after he moved out, Patricia was
concerned about being able to pay her bills. Robin offered to
pay the remainder of the loan balance left on her car. The
payment was $500 per month, and Robin testified he made payments
until the loan was paid in full on Patricia's car.
Patricia testified that she was currently employed as
an elementary school teacher at Washington School in School
District 117 in Jacksonville. She had worked for the past eight
years at District 117 and for five years from 1974 through 1979
(at the end of 1979 she took maternity leave and then resigned).
Patricia testified that she currently had a total of 13
years of service at District 117 and that she had been given some
credit for years she spent substitute teaching in the district.
- 4 - Patricia testified she was buying back credit for the time she
spent on maternity leave. She was purchasing the maximum amount
of credit she could, three years, for $12,000 plus $3,900 in
interest for a total of $15,900. Patricia testified that her
total years of service after buying the 3-year credit will be 16
years.
James K. Hagerman, a certified public accountant with
Kerber, Eck, and Braeckel, testified that he specialized in the
area of tax investments and financial planning. He testified for
respondent; however, it was Patricia's attorney who originally
asked him to render his opinion on the valuation of each party's
TRS pensions.
He testified that in calculating the projected value of
Patricia's pension, he assumed a retirement age of 60. On June
30, 2004, the time Hagerman made his valuation of Patricia's
pension, Patricia had accumulated 13.78 years of service credit.
In 1998, Patricia applied for an annuity benefit that would
increase the return rate on her investment in her TRS benefit
plan. She had been making payments to purchase the improved
return rate since 1998.
Hagerman explained that, to project a value for
Patricia's pension, he started with the monthly annuity, then
based on the retirement date (which for Patricia would be March
2009 based on a retirement age of 60) he would "run a stream of
- 5 - payments" from the retirement date until the end of the life-
expectancy factor. In this case, Hagerman said that it consisted
of a series of monthly payments of $1,005.15. Hagerman said he
took this stream and used an interest rate to "bring that number
back into today's dollars, which is the present value." The
reason for this is that the number is not a sum of the projected
monthly annuity, but instead it is based upon an assumed interest
rate. Hagerman said that another way of explaining the process
was that it is the amount of dollars it would take today invested
over the period of her life expectancy to earn interest at an
assumed rate that would result in the total sum, including
principal and interest, to make that series of monthly payments.
Hagerman testified that he did not take into account
any survivor benefit when calculating the projected value of
Patricia's pension. Hagerman agreed that if there were an
additional benefit for a surviving spouse included in Patricia's
pension, it would increase substantially in value. Hagerman also
acknowledged that there were other options to increase the
pension, which included buying back time taken on maternity leave
or while substitute teaching.
Hagerman said that the assumed 5.3% interest rate he
used in his calculation was based on a 30-year treasury rate as
of June 30, 2004. Hagerman said that he believed that this long-
term rate was the appropriate rate to use for the period of
- 6 - Patricia's life expectancy. Robin entered Hagerman's estimate of
the present net value of Patricia's pension as of June 30, 2004,
as respondent's exhibit No. 1. In that document, Hagerman
calculated the net value of Patricia's pension to be $161,199.
Hagerman considered this to be the marital portion of her annuity
since it was confined to the time Patricia worked as a teacher
during her marriage to Robin. Hagerman also explained that,
should Patricia die before the estimated life-expectancy date,
she would not realize the full value of her annuity. Also, if
she were to live past that date, she would realize more than the
projected value.
Hagerman then testified that joint exhibit No. 7 was a
notice of first payment by TRS to Robin. This document indicated
that Robin's gross monthly benefit was $3,562.58. Hagerman
testified that Robin's pension was in pay status, which meant the
amount represented on the exhibit was the actual amount he
receives, not an estimate.
Hagerman said that after January 1, 2010, the monthly
gross amount of Robin's pension would increase to $4,159.38.
Hagerman was unsure why Robin's pension would not increase every
year by 3% like Patricia's would, but that TRS's information did
not grant Robin's first 3% increase until 2010. However, after
2010, Robin's would also increase 3% annually. Hagerman's
personal calculation of Robin's pension was entered as
- 7 - respondent's exhibit No. 3. Hagerman used the exact same
computations to gain a present value of Robin's pension as he did
to attain the value of Patricia's. The only difference was that
Robin's life expectancy was estimated to be four years shorter
than Patricia's. Hagerman testified that this would affect the
present value of the pensions such that if a portion of
Patricia's were to be assigned to Robin, it would actually be
worth less because of his shorter life expectancy.
Hagerman also testified that the TRS estimate of
Robin's pension on June 30, 2003, before he retired, was
considerably less than what he actually received upon retirement.
The estimate at that time was $3,086.54, when he actually
received $3,562.58. Hagerman testified that Patricia's pension
would also increase due to added years of service and salary
increases after June 30, 2004. Hagerman then testified to
respondent's exhibit No. 12. Robin's attorney explained that
exhibit No. 12 was a demonstrative exhibit to show what the
historical increases in salary have been and projecting them
forward at the same percentage through 2009, Patricia's expected
retirement date. Patricia's attorney objected, stating that
Patricia's contract expired in 2005 and any increases in salary
were speculative. In the new estimate, Hagerman applied a
service credit of 18.468 years. The result was an estimate of
$1,344.57 for the marital portion of Patricia's pension.
- 8 - On July 21, 2004, the trial court issued its memorandum
of decision. The court found that Robin's $4,000 check to Isom
for rent was a legitimate living expense and did not constitute
dissipation of marital assets. The court found that Patricia had
failed to present a prima facie case for dissipation regarding
the ATM withdrawals and the withdrawals from the savings account
made by Robin during the couple's separation. The court believed
Robin's testimony that these withdrawals were used for regular
living expenses. However, the court did find that Robin had
dissipated marital assets in the form of gifts to Isom, Isom's
use of Robin's gas card, Robin's brother's use of Robin's gas
card, and trips with Isom to Colorado, Atlanta, Indianapolis, and
Kansas City. Including the costs of meals and hotels, the court
found Robin owed $2,374.05 to the marital estate. Regarding the
trips, the trial court found that half the expenses incurred on
the trips were dissipation since Robin was going to visit his
family and it could be inferred he would have made these trips
regardless but Isom would not.
The trial court divided the assets as follows:
Patricia Robin
160 East Pennsylvania Ave. $86,000.00
Mortgage (23,439.25)
2000 Pontiac Bonneville 7,700.00
1996 S-10 Truck $3,800.00
- 9 - Tractor 2,400.00
Tax-sheltered annuity (Robin) 57,197.38
Tax-sheltered annuity (Patricia) 1,842.33
JSB-checking (Patricia) 0
JSB-savings (Patricia) 370.79
JSB-checking (Robin) 5,230.85
JSB-savings (Robin) 1,767.83
Personal property 5,562.00 215.00
14 Northvale 875.00
Camera 350.00
Miscellaneous tools 100.00
Air compressor 250.00
Computer software 354.95 ___________ __________ TOTAL $78,035.87 $74,915.06
The trial court reserved jurisdiction on both Robin's
and Patricia's TRS pensions. The court stated that it intended
to divide the pensions upon Patricia's retirement using the
formula articulated by the court in In re Marriage of Wisniewski,
286 Ill. App. 3d 236, 675 N.E.2d 1362 (1997).
The order stated:
"[Patricia's] TRS plan will be divided by a
Qualified Illinois Domestic Relations Order
[(QILDRO)] in accordance with the
proportionality rule propounded in Marriage
- 10 - of Wisniewski, 286 Ill. App. 3d 236, 243, 675
N.E.2d 1362, 1368, (1997), requiring payment
of 50% of the marital portion of the then
current and all future benefits, including
post[]dissolution increases, to [Robin]. The
marital portion of her plan shall be
determined by multiplying the benefit by a
fraction, the numerator of which shall be the
number of whole months from the date of the
marriage of the parties through the date of
this [o]rder and the denominator of which
shall be the number of whole months from the
date of the marriage of the parties through
the commencement of pay status of her plan."
(Emphasis added.)
Pending Patricia's retirement, the trial court ordered
Robin to pay Patricia $1,000 per month in maintenance. The court
found that the attorney fees of each party were approximately the
same and, in conformance with its intention to divide the marital
property 50-50, ordered the parties to pay their own attorney
fees.
On August 18, 2005, Patricia filed a motion for
reconsideration alleging that the trial court erred in retaining
jurisdiction over the parties' pensions. Patricia argued that
- 11 - the court failed to state findings as to why immediate allocation
of both pensions was inappropriate. Patricia argued that by not
allocating Robin's pension, the court left undetermined how the
payments Robin received between July 2004 and Patricia's
retirement would be treated. Patricia argued that while Robin
was given the opportunity to invest and create wealth with the
current payments, she was deprived of this opportunity. Patricia
argued that half of Robin's monthly pension payment should be
allocated to her retroactive to July 2004 and, upon her
retirement, half of her pension be allocated to Robin less the
percentage of the pension attributable to Patricia's nonmarital
effort.
On March 13, 2006, the trial court entered an amended
judgment of dissolution of marriage. The court's order, in
addition to the earlier findings in its memorandum decision that
remained unchanged, ordered Robin to pay Patricia $12,117.73 to
equitably divide the paid and unpaid attorney fees. The court
found that the attorney fees already paid by both parties
constituted dissipation of marital assets and that the unpaid
fees were marital debt.
With respect to the TRS pensions, the trial court found
(1) both plans were fully vested and entirely marital property;
(2) Patricia's pension is not in pay status and "significant
actuarial uncertainties" set forth in the record make
- 12 - determination of present value for her plan "speculative and
uncertain"; (3) Robin's pension is in pay status and "significant
determination of a present value for his plan "speculative and
uncertain"; (4) actuarial uncertainties preclude treating the
plans as equivalents for the purpose of offsetting the value of
one plan against the other; (5) there are insufficient marital
assets to fully offset the value of Robin's plan to allow him to
retain his entire plan; (6) there are insufficient marital assets
to fully offset the value of Patricia's plan to allow her to
retain her entire plan; and (7) reserving jurisdiction until
Patricia's plan is in pay status will enable the court to
equitably divide both plans.
With regard to both Patricia's and Robin's TRS plans,
the court found, "The plan[s] [have] value only as a stream of
future, monthly income payments, the amount and commencement of
which is uncertain."
Robin filed a motion for modification of the court's
allocation of attorney fees. On May 2, 2006, the trial court
denied Robin's motion for modification in its entirety.
This appeal followed.
II. ANALYSIS
A. The Trial Court Erred in Reserving Jurisdiction Over Robin's TRS Pension
On appeal, Patricia argues that the trial court's
- 13 - reservation of jurisdiction over Robin's matured and vested
pension was an abuse of discretion. Patricia argues that not
receiving her share of the funds from Robin's pension deprives
her of the ability to invest her share of the pension and create
wealth.
"This court will not reverse the trial court's choice
of an apportionment method absent an abuse of discretion."
Wisniewski, 286 Ill. App. 3d at 243, 675 N.E.2d at 1368. The
trial court stated its intention was to divide the property
equally between the parties. However, it reserved jurisdiction
over the parties' pensions, which comprises a bulk of the marital
assets. The court stated that it intended to reserve
jurisdiction until the time of Patricia's retirement. However,
Patricia's retirement date was uncertain. At the time of the
hearing she was 56 years old and had no present plan to retire.
By reserving jurisdiction over both parties' pensions,
the trial court created an undesirable situation in which this
dissolution proceeding would linger for years before
apportionment applied. See Wisniewski, 286 Ill. App. 3d at 243,
675 N.E.2d at 1367 ("Disputes such as this one should not be
allowed to linger for over a decade"). "Finality, both to avoid
future court intervention and to allow the parties to plan their
futures with some certainty, is also a goal to be achieved by the
allocation and division of property." In re Marriage of Moll,
- 14 - 232 Ill. App. 3d 746, 757, 597 N.E.2d 1230, 1237 (1992).
The reserved-jurisdiction approach was not appropriate
in this case when Robin's pension had matured and was in pay
status. In Wisniewski, 286 Ill. App. 3d at 241, 675 N.E.2d at
1366, this court held that when it is too difficult to assign a
present value to the marital interest in the pension or when the
"cash-out" approach is otherwise an impractical solution, the
court may reserve jurisdiction. "Under such an approach, the
court does not immediately compensate the nonpensioner spouse.
Instead, it orders that the employee spouse pay the nonemployee
spouse his or her portion of the marital share 'if, as, and when'
the pension plan becomes mature." Wisniewski, 286 Ill. App. 3d
at 241, 675 N.E.2d at 1366, quoting In re Marriage of Hunt, 78
Ill. App. 3d 653, 663, 397 N.E.2d 511, 519 (1979).
The reserved-jurisdiction approach should be used in
"situations where the amount of the retirement benefits which
will actually be paid out cannot be calculated with any certainty
at the time of dissolution of the marriage." In re Marriage of
Whiting, 179 Ill. App. 3d 187, 191, 534 N.E.2d 468, 471 (1989).
The reason for reserving jurisdiction is to avoid speculation
about the future stream of pension payments. Whiting, 179 Ill.
App. 3d at 191, 534 N.E.2d at 471.
There is no question in this case if and when Robin's
pension will mature. He was receiving, and continues to receive,
- 15 - monthly pension payments. Moreover, Robin cites no authority
supporting his position that the trial court may properly reserve
jurisdiction over his matured pension.
The trial court did provide for the method of
apportionment of Robin's and Patricia's pensions. The court
would divide Robin's pension by the QILDRO requiring 50% of the
then-current and future benefits, including postdissolution
increases, to be paid to Patricia. The court would also divide
Patricia's pension by the QILDRO in accordance with the
proportionality rule set forth in Wisniewski. Wisniewski, 286
Ill. App. 3d at 240-43, 675 N.E.2d at 1366-68. However, the fact
that Patricia's pension had not yet matured did not prevent the
court from being able to apply the formula to equitably divide
Robin's pension. The trial court heard expert testimony
regarding the present value and projected future value of her
pension. The court could choose to offset that value now and
perhaps modify the judgment if the pay out is larger or smaller
than the expert's projections when Patricia's pension matures and
goes into pay status.
Expert testimony established an approximate value of
Patricia's plan. Robin's plan was already in pay status and the
value was known with only the inherent uncertainties of life
expectancy in question. The trial court concluded:
"[T]he actuarial uncertainties of valuing the
- 16 - defined benefit TRS pension plans of the
parties and given that different
uncertainties apply to valuation of each
plan, the [c]ourt finds it is not equitable
or actuarially possible to treat the plans as
equivalents for the purpose of offsetting the
value of one plan against the other to effect
a division of these two items of marital
property."
The trial court's characterization of Robin's pension
as "uncertain" is contrary to case law. "The value of the
retirement benefits is determined simply by how much is actually
paid out." Whiting, 179 Ill. App.3d at 191, 534 N.E.2d at 471;
see also In re Marriage of Ramsey, 339 Ill. App. 3d 752, 760, 792
N.E.2d 337, 344 (2003) ("[a]lthough the reserved-jurisdiction
method is not the only acceptable way to value a pension, when it
is used, the amount divided is the amount actually received").
Since Robin's pension is being paid out, the value of the benefit
is easily ascertainable. Robin's benefit is wholly marital too,
which makes apportioning the value of the benefit even easier
since the entire pension is marital property. The trial court
seems to have assumed that it could not treat the pensions
separately. However, by retaining jurisdiction over only
Patricia's pension, the court does not deprive either party of
- 17 - the marital portion of that benefit. Patricia receives nothing
from her pension now, nor does Robin. Contrarily, Robin is
receiving a benefit from his pension now and Patricia is
receiving nothing.
The trial court could have also used the "cash-out"
approach to determine the present value of the marital portion of
Patricia's pension and offset that with marital property, thereby
compensating Robin for awarding Patricia her entire benefit.
Either approach would have been an equitable division of the
assets by the trial court.
By reserving jurisdiction, however, the trial court has
deprived Patricia of the time-value of her portion of Robin's
pension. In other words, Patricia does not have the ability to
invest her portion of Robin's pension now in order to accumulate
wealth for later. In Wisniewski, the supreme court held that
"Illinois law has long recognized the time value of money."
Wisniewski, 286 Ill. App. 3d at 244, 675 N.E.2d at 1369.
Granted, the issue in Wisniewski was whether the earlier marital
contributions to a pension entitled the nonpensioner spouse to
reap the benefits of the accrued interest in that money over
time. However, the principle is the same. Patricia's present
inability to invest her portion of Robin's pension works to her
financial detriment. Therefore, the trial court's failure to
divide Robin's matured pension, which was in pay status and
- 18 - continues to be in pay status, was an abuse of discretion. On
remand, we direct the trial court to divide Robin's pension
according to the QILDRO. Because Robin's pension is entirely
marital, Patricia is entitled to 50% of the monthly payments.
Patricia should also receive her portion of the payments Robin
received since the date of judgment, less the $1,000 maintenance
award.
With regard to Patricia's pension, we affirm the
reservation of jurisdiction over Patricia's plan, which is not
yet in pay status. We also affirm the trial court's order
directing Patricia's pension to be allocated using the QILDRO and
the formula used in Wisniewski to determine the marital portion
of Patricia's pension belonging to Robin. However, we note that
the trial court erred in its description of the formula used in
Wisniewski. The order states:
[QILDRO] in accordance with the
proportionality rule propounded in
[Wisniewski] requiring payment of 50% of the
marital portion of the then[-]current and all
future benefits, including post[]dissolution
increases, to [Robin]. The marital portion
of her plan shall be determined by
multiplying the benefit by a fraction, the
- 19 - numerator of which shall be the number of
whole months from the date of the marriage of
the parties through the date of this [o]rder
and the denominator of which shall be the
marriage of the parties through the
commencement of pay status of her plan."
However, the proportionality rule in Wisniewski takes
the total monthly payout of the pension and determines the
marital portion to be the number of years of marriage that the
pensioner spouse participated in the plan as the numerator, and
the total years of service as the denominator. The trial court
then multiplies these two numbers to obtain the marital interest
in each monthly payment. Finally, the court multiplies that
number by .50 to obtain the nonpensioner spouse's share (before
taxes). This is the formula that should be applied to determine
Robin's portion of Patricia's monthly pension payments.
Therefore, we reverse the trial court's description of the
Wisniewski formula to the extent it varies from the actual
formula enunciated in Wisniewski.
B. Trial Court's Conclusions on Dissipation of Marital Assets Was Not Against the Manifest Weight of the Evidence
Patricia argues that the trial court erred in finding
that Robin's $4,000 payment to Isom for rent was not dissipation
- 20 - of marital assets. Patricia also argues that Robin dissipated
marital funds by paying an additional $400 per month in rent
payments that totaled $2,400 to Isom, $8,450 in withdrawals from
the marital checking account, and $3,500 in withdrawals from the
marital savings account. Patricia claims that Robin failed to
establish how these funds were spent for marital purposes or
reasonable living expenses. Patricia argues that these
expenditures were made by Robin at a time when the marriage was
suffering from an irretrievable breakdown and the parties were
not living together.
Because determinations regarding dissipation of marital
assets are factual, the trial court's decision will not be
reversed unless it is against the manifest weight of the
evidence. In re Marriage of Vancura, 356 Ill. App. 3d 200, 205,
825 N.E.2d 345, 349 (2005).
Patricia argues that the fact that the initial $4,000
check for rent paid to Isom was written 10 months after Robin had
moved into Isom's home indicates it was not a necessary living
expense. In its memorandum decision, the trial court found that
Robin had dissipated $2,374.05 from marital accounts. It found
that half the expenses incurred by Robin when he took Isom on
trips were dissipation. In regard to the rent payments, the
court found that rent is a legitimate living expense and did not
constitute dissipation. See In re Marriage of Hagshenas, 234
- 21 - Ill. App. 3d 178, 197, 600 N.E.2d 437, 451 (1992). The court
held that the fact that the rent was paid to Robin's paramour did
not mandate a finding of dissipation. The nature of the payment
being one lump sum does not render the trial court's finding
contrary to the manifest weight of the evidence. Rent is a
legitimate living expense. Whether the $4,000 check in this case
constituted rent was an issue for the trial court to resolve. In
light of the evidence that Robin's rent was based on comparable
housing in the area and the fact that Robin attested to paying
his parents rent for the months he lived with them, the trial
court's finding is not without support in the record.
With regard to the ATM withdrawals, the trial court
found that Patricia had listed the amounts Robin withdrew and
claimed that it is Robin's burden to prove how the funds were
spent. The court held that "[i]t is more equitable to require a
preliminary showing of dissipation before the burden shifts to
the party charged with dissipation to refute the accusations."
The court cited In re Marriage of Murphy, 259 Ill. App. 3d 336,
339, 631 N.E.2d 893, 895 (1994). However, once a prima facie
case for dissipation has been made, the burden shifts to the
party charged with dissipation to prove by clear and specific
evidence how the funds were spent. In re Marriage of Jerome, 255
Ill. App. 3d 374, 394, 625 N.E.2d 1195, 1210 (1994). At trial,
Robin presented receipts that he claimed were a "representative
- 22 - sample" of his expenditures. He did not have documentation to
support every withdrawal. The court found that Patricia had
failed to establish a prima facie case for dissipation. The
court held that Robin testified to his routine use of the ATM and
savings account and the court believed Robin's testimony that the
money was used for regular living expenses.
The trier of fact is charged with assessing the
credibility of testimony at trial. In re Marriage of Murphy, 359
Ill. App. 3d 289, 302, 834 N.E.2d 56, 67 (2005). A reviewing
court will defer to the trial court's findings because the trial
court, "by virtue of its ability to actually observe the conduct
and demeanor of witnesses, is in the best position to assess
their credibility." In re Commitment of Sandry, 367 Ill. App.
3d 949, 980, 857 N.E.2d 295, 319 (2006).
The trial court emphasized that it "believed" Robin's
testimony regarding the withdrawals from the ATM and savings
account. Even if it found that Patricia had made a prima facie
case for dissipation, the court clearly believed Robin's
testimony that the funds were used for legitimate living
expenses. "On appeal, a reviewing court will take questions of
witness credibility as resolved in favor of the prevailing party
and must draw from the evidence all reasonable inferences that
support the judgment." Flynn v. Henkel, 369 Ill. App.3d 328,
333, 859 N.E.2d 1063, 1067 (2006). Therefore, we defer to the
- 23 - trial court's finding of credibility and affirm the court's
finding that Robin's use of marital funds for rent and living
expenses was reasonable and did not constitute dissipation.
C. The Trial Court's Treatment of Attorney Fees Was Proper
Robin argues that the trial court erred in implementing
its plan to divide the attorney fees equally between the parties.
This court will reverse a trial court's decision regarding the
division of marital assets only if it finds the trial court
abused its discretion. In re Marriage of Suriano, 324 Ill. App.
3d 839, 846, 756 N.E.2d 382, 388 (2001).
During the hearing on Robin's motion to reconsider, the
trial court said:
"I think the attorney[-]fee adjustment and
the allocation is an extremely interesting
issue that should be decided by the appellate
court. So[,] I am not going to grant the
[m]otion for [m]odification, so each side can
appeal and get this thing resolved."
The trial court found that Robin incurred $23,652.04 in
attorney fees and costs during the course of the litigation and
paid $23,414.54 from marital funds. That left an unpaid balance
of $237.50. Patricia incurred $34,130.68 in attorney fees and
costs and paid from marital funds $4,797.40. This left an unpaid
balance of $30,332.78. In its memorandum decision, the trial
- 24 - court stated that the parties' attorney fees were approximately
equal. The memorandum decision stated, "It is the intent of the
court to reach a 50/50 division of assets." The court directed
each party pay his/her own attorney fees "[c]onsidering the value
of the assets and a 50/50 division."
Robin argues the trial court made a mathematical error
when it considered the paid attorney fees as dissipation of
marital assets and allocated the unpaid attorney fees as marital
debt. Robin argues "The trial [c]ourt clearly intended that the
parties share these fees equally." However, the trial court's
order did not say that its intent was to divide the fees equally.
The memorandum decision clearly states its "intent" was to divide
the assets equally. Robin argues that "by treating the paid fees
as dissipation without also recognizing them as marital debt, the
trial [c]ourt mistakenly required Robin to pay more than one-half
of the total fees incurred." The trial court's memorandum
decision, entered before full disclosure of each party's attorney
fees, did not, however, state that the court intended each party
to pay one-half of the fees incurred; it stated its intent was to
divide the assets equally.
Contrary to Robin's argument, the trial court did not
make a mathematical error when it ordered Robin to pay Patricia
$9,308.32 for his net dissipation of marital funds.
Together, Patricia and Robin paid $28,211.94 in marital
- 25 - funds on attorney fees. Patricia paid $4,797.40 and Robin paid
$23,414.54. The court subtracted the amount Patricia paid from
what Robin paid to find the difference between Robin's and
Patricia's. That amount was $18,617.14. The trial court divided
this amount in half as half the marital funds belonged to Robin,
$9,308.32. Therefore, Robin owed Patricia $9,308.32 in funds
that would have been rightfully hers had no dissipation occurred.
Effectively, each party's apportionment of the total marital
estate is increased by $9,308.32. However, Robin has already
used his portion of the funds. If Robin had not used the money
to pay his attorney, the debt would increase by $18,617.14 and
the parties would divide that equally; however, there would be
$18,617.14 more in the marital estate to divide. Therefore, the
outcome would have been the same.
The trial court did not abuse its discretion by
allocating the remaining debt between the parties and ordering
Robin to reimburse the marital estate for $9,308.32, representing
half the funds he used from the marital account to pay his
attorney prior to the final allocation of the marital property.
D. The Trial Court's Award of Maintenance Was Not an Abuse of Discretion But May Be Reconsidered on Remand
The trial court indicated that the $1,000 monthly
maintenance award to Patricia accounted for the court's
reservation of jurisdiction of Robin's pension. Robin does not
contest this award of maintenance, but he argues that if this
- 26 - court remands or reverses any portion of the property division,
including the TRS pension plans, the maintenance award should be
reevaluated by the trial court as well. Patricia argues that in
addition to one-half Robin's TRS pension, she should also receive
maintenance under the factors set forth in section 504 of the
Illinois Marriage and Dissolution of Marriage Act. 750 ILCS
5/504(a) (West 2004). Specifically, Patricia cites her greater
need, Robin's greater earning capacity, the impairment of her
present and future earning capacity due to her devoting time to
domestic duties and having foregone employment or career
opportunities due to marriage, the standard of living during the
marriage, and the duration of the marriage.
A reviewing court will not overturn a trial court's
award of maintenance absent a finding that either the trial court
abused its discretion or that the award of maintenance was
against the manifest weight of the evidence. In re Marriage of
Harlow, 251 Ill. App. 3d 152, 156, 621 N.E.2d 929, 933 (1993)
("The award of maintenance to a spouse is a matter within the
sound discretion of the trial court, and on appeal, we will not
reverse its decision unless it constitutes and abuse of
discretion or is against the manifest weight of the evidence."
(emphasis added)). Section 504(a)(1) lists "the income and
property of each party, including marital property apportioned
and non[]marital property assigned to the party seeking
- 27 - maintenance" as a factor courts should consider when determining
whether, and how much, maintenance to order one spouse pay the
other spouse. 750 ILCS 5/504(a)(1) (West 2004). The trial court
properly waited until after it divided the assets to award
maintenance in this case. See 750 ILCS 5/504(a)(1) (West 2004).
The trial court did not abuse its discretion when it
ordered Robin to pay Patricia $1,000 monthly maintenance award.
The trial court's comments in this case indicate the $1,000 award
of maintenance to Patricia was intended to compensate her for the
trial court's decision to reserve jurisdiction on Robin's
pension. In light of our foregoing findings that the decision to
reserve jurisdiction over Robin's pension was incorrect, the
trail court's maintenance award is vacated. After the division
of Robin's pension, the trial court should reevaluate whether
maintenance should be awarded using the factors set forth in
section 504. We note courts may consider several factors under
section 504 when awarding maintenance, and our holding here is
limited to the extent that after the allocation of Robin's
pension, the court should reevaluate its award in light of the
statutory factors.
III. CONCLUSION
Therefore, for the foregoing reasons, we reverse the
trial court's reservation of jurisdiction over Robin's pension
and remand for apportionment of this marital property, affirm the
- 28 - trial court's findings with regard to dissipation and attorney
fees, and vacate the order of maintenance. We otherwise affirm.
Affirmed in part, reversed in part, and vacated in
part; cause remanded with directions.
STEIGMANN, P.J., and APPLETON, J., concur.
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