In Re Marriage of Smith

471 N.E.2d 1008, 128 Ill. App. 3d 1017, 84 Ill. Dec. 242, 1984 Ill. App. LEXIS 2528
Appellate Court of Illinois·Decided November 28, 1984·No. 2-83-0907·Published·Cited by 47 cases

Opinion

JUSTICE LINDBERG

delivered the opinion of the court:

Respondent, Carroll Eugene Smith, 55, appeals from an order of the circuit court of Winnebago County which dissolved his marriage to petitioner-appellee Donna Jean Smith, 54, apportioned their marital property and obligated respondent to pay $3,500 to petitioner’s attorney. Respondent contends the trial court abused its discretion in concluding that he dissipated at least $50,000 in marital assets, in apportioning the parties’ marital property, and in ordering him to pay one-half of petitioner’s attorney fees. Since we conclude the trial court committed no reversible error, we affirm.

Petitioner and respondent were married on May 27, 1949. The parties’ three children all have attained the age of majority, but one child continues to live with petitioner. Neither party began the marriage with any assets. Petitioner worked full-time outside the home for one year and then became a homemaker for the duration of their marriage. Respondent worked as a tool and die maker until 1973, when he quit that work to manage the parties’ real estate assets on a full-time basis. Starting in 1958, the parties began acquiring and renovating real estate. Respondent performed almost all of the construction, renovation, management and handling of their properties. Petitioner testified she answered phone calls and collected rents from the tenants on occasion.

Petitioner filed her petition for dissolution of marriage on November 19, 1982. At trial, the court after reviewing the evidence found that respondent had dissipated between $50,000 and $80,000 in marital assets. Based in part upon this finding, the trial judge stated that he was awarding petitioner approximately $290,000 or 63% of the marital property and was awarding respondent approximately $160,000 or 37% of the parties’ property. The parties stipulated that the court’s apportioning of the marital property would provide petitioner with rental income of $2,750 monthly and respondent with $1,400 monthly. The court also ordered respondent to pay one-half or $3,500 of petitioner’s attorney fees and barred both parties from receiving maintenance. Respondent filed a timely notice of appeal from the trial court’s order entered on September 23, 1983.

The first argument advanced by respondent is that the trial court erred in concluding that he dissipated assets of the marital estate. The trial court expressly apportioned a larger percentage of the marital estate to petitioner because it concluded respondent “improperly spent” funds and “hadn’t accounted for all funds sufficiently to the Court.” Petitioner responds that the trial court’s finding that respondent dissipated marital assets is supported by the record.

Section 503(c)(1) of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) (now codified as section 503(d)(1)) directs the court to consider in dividing marital property “the contribution or dissipation of each party in the acquisition, preservation, or depreciation or appreciation in value, of the marital and non-marital property, including the contribution of a spouse as a homemaker or to the family unit ***.” (Ill. Rev. Stat. 1981, ch. 40, par. 503(c)(1).) Dissipation of marital assets by one spouse is not an acceptable practice. (In re Marriage of Hellwig (1981), 100 Ill. App. 3d 452, 426 N.E.2d 1087.) Dissipation has been defined as “the use of marital property for the sole benefit of one of the spouses for a purpose unrelated to the marriage at a time that the marriage is undergoing an irreconcilable breakdown.” (Ill. Ann. Stat., ch 40, par. 503(d)(1), Supp. to Hist. & Prac. Notes, at 57 (Smith-Hurd Supp. 1984-85), citing In re Marriage of Sevon (1983), 117 Ill. App. 3d 313, 453 N.E.2d 866; In re Marriage of Cook (1983), 117 Ill. App. 3d 844, 453 N.E.2d 1357; In re Marriage of Schriner (1980), 88 Ill. App. 3d 380, 410 N.E.2d 572.) A finding of dissipation is possible even though the act occurred prior to the commencement of the dissolution proceedings (see In re Marriage of Hellwig (1981), 100 Ill. App. 3d 452, 426 N.E.2d 1087), and the dissipating party need not derive personal benefit from the dissipation of the asset to be held accountable. (In re Marriage of Siegel (1984), 123 Ill. App. 3d 710, 463 N.E.2d 773.) The trial court’s finding regarding the allocation of marital property including making allowances for dissipation will not be reversed absent an abuse of discretion. In re Marriage of Hilkovitch (1984), 124 Ill. App. 3d 401, 464 N.E.2d 795; In re Marriage of Greenberg (1981), 102 Ill. App. 3d 938, 429 N.E.2d 1334.

Essentially, respondent attacks the trial court’s finding as unsupported by the evidence. In discussing the specific assets which were at least partially dissipated, respondent asserts that Illinois courts consistently have required positive proof that marital property was dissipated. Implicit is respondent’s contention that petitioner was obligated to establish how the funds were spent. Our research has disclosed no Illinois decision which has specifically assigned to either party the burden of proving for what purposes the funds were spent. We suspect the paucity of discussion on this issue is caused perhaps by the fact that in almost every case involving an alleged dissipation, the party charged with the dissipation instinctively comes forth with at least some evidence concerning the expenditure of the funds. This case is unique in that respondent in most cases has offered no evidence on how he spent funds received from the liquidated assets.

While Illinois courts have not precisely addressed this question, several decisions provide guidance. In In re Marriage of Lord (1984), 125 Ill. App. 3d 1, 465 N.E.2d 151, this court affirmed the trial court’s finding that the husband had dissipated marital assets by cashing in life insurance policies with a value of $13,900 and by withdrawing $16,000 from the parties’ joint savings account. This court noted that the husband’s explanation of how the funds were spent requires the trial court to make a determination as to his credibility, and concluded that the trial court’s disbelief of the husband’s explanation did not constitute error. (125 Ill. App. 3d 1, 6, 465 N.E.2d 151, 154.) Similarly, in In re Marriage of Smith (1983), 114 Ill. App. 3d 47, 448 N.E.2d 545, the trial court found that the husband had dissipated $15,000 in marital assets by withdrawing that amount from his credit union account and using it for nonmarital purposes.

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In Re Marriage of Smith, 471 N.E.2d 1008, 128 Ill. App. 3d 1017, 84 Ill. Dec. 242, 1984 Ill. App. LEXIS 2528 (Ill. Ct. App. 1984).

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