In re Marriage of Stuhr

2016 IL App (1st) 152370, 56 N.E.3d 525

• Court: Appellate Court of Illinois
• Decided: June 24, 2016
• Docket: 1-15-2370
• Status: Unpublished

Opinion

2016 IL App (1st) 152370 No. 1-15-2370 Fifth Division June 24, 2016 ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________

) In re MARRIAGE OF ) ) Appeal from the Circuit Court JUDITH K. STUHR, n/k/a Judith Gloe Keith, ) of Cook County. ) Petitioner-Appellee, ) No. 10 D 1743 ) and ) The Honorable ) Lisa Ruble-Murphy, RICHARD STUHR, ) Judge Presiding. ) Respondent-Appellant. ) ) ______________________________________________________________________________

JUSTICE GORDON delivered the judgment of the court, with opinion. Presiding Justice Reyes and Justice Lampkin concurred in the judgment and opinion.

OPINION

¶1 The instant appeal arises from the trial court’s entry of a judgment for dissolution of the

parties’ marriage. Respondent Richard Stuhr appeals the trial court’s classification of certain

property as marital property, its allocation of assets, and its award of temporary maintenance

to petitioner Judith Stuhr. For the reasons that follow, we affirm in part and reverse in part

and remand the cause to the trial court for consideration of the appropriate maintenance

award. No. 1-15-2370

¶2 BACKGROUND

¶3 I. Pretrial Proceedings

¶4 On February 19, 2010, petitioner filed a petition for dissolution of marriage, alleging

irreconcilable differences. 1 According to the petition, petitioner was a 57-year-old clinical

psychologist and respondent was a 59-year-old “Disabled Surgeon.” The parties had married

in 1991 in Alabama and no children were born to or adopted by the parties. As part of the

relief requested, petitioner asked for temporary and permanent maintenance from respondent.

¶5 On March 26, 2010, petitioner filed a verified petition for temporary maintenance and

attorney fees, alleging that respondent was living at the former marital residence and

petitioner was living at a different address. Petitioner claimed that she was employed as a

psychologist at Rush University Medical Center and earned a net monthly income of

approximately $4908, while respondent had been a surgeon and was now receiving a tax-free

disability income of approximately $20,932.38 per month; she further claimed that the parties

had “considerable marital assets,” including investment and retirement accounts. Petitioner

claimed that she had monthly expenses of approximately $10,949 per month, which reflected

the standard of living she enjoyed with respondent, and that she lacked sufficient assets and

income to provide for her maintenance and support without substantial contributions from

respondent. Accordingly, petitioner sought temporary maintenance from respondent, as well

as an order for respondent to pay petitioner’s attorney fees. As an exhibit to her petition for

temporary maintenance, petitioner attached a disclosure statement pursuant to circuit court of

Cook County rule 13.3.1 (13.3.1 disclosure statement) (Cook Co. Cir. Ct. R. 13.3.1 (Jan. 1,

1 A motion for consolidation in the record on appeal indicates that respondent had also filed a petition for dissolution of marriage, with his petition being filed on February 22, 2010. That petition does not appear in the record on appeal, but the two actions were consolidated on March 4, 2010.

2 No. 1-15-2370

2003)), itemizing her assets and expenses as of March 19, 2010. In September 2010, the trial

court entered an agreed order awarding petitioner $5600 per month in temporary

maintenance from respondent, with the issue of any retroactive maintenance reserved for

trial; the amount of temporary maintenance was increased to $8600 per month in November

2011.

¶6 On January 25, 2012, respondent filed a “Notice of [a] Claim of Dissipation,” in which he

claimed that petitioner had expended large sums of money by way of contributions to what

respondent characterized as a “Muslim sect or cult” known as Sufism, which respondent

claimed constituted dissipation.

¶7 On April 27, 2012, petitioner filed a motion for summary judgment, seeking, inter alia, a

designation of the payments that respondent received for disability as marital property. On

May 16, 2012, respondent filed a motion for partial summary judgment, seeking the entry of

an order finding that six financial accounts that were titled in his name were respondent’s

nonmarital property. On June 11, 2012, respondent filed a cross-motion for partial summary

judgment concerning his disability policies, seeking an order finding that the payments under

those policies were nonmarital income. On May 13, 2013, the trial court granted partial

summary judgment in respondent’s favor, finding that the payments under the disability

insurance policies constituted income and not property. 2

¶8 II. Trial

¶9 Trial commenced on June 9, 2014, and proceeded over five days. A total of four

witnesses testified at trial: petitioner; respondent; John Cook, respondent’s stockbroker; and

2 Although respondent’s motion for summary judgment sought a finding that the income was nonmarital income, the trial court’s order did not discuss whether such income would be considered marital or nonmarital.

3 No. 1-15-2370

Jeffrey Newman, an expert witness who testified on petitioner’s behalf concerning how much

income petitioner would require to maintain her current lifestyle. While the witness

testimony was extensive, we relate here only that testimony that relates to the issues on

appeal.

¶ 10 A. Petitioner

¶ 11 Petitioner testified that she was currently living in Atlanta, Georgia, where she moved in

December 2013, and was currently employed part-time at the Atlanta VA Medical Center as

a clinical psychologist with a specialty in sleep medicine. She testified that she held

bachelor’s degrees in nursing and anesthesia, as well as a master’s degree in psychology and

a Ph.D. in clinical psychology; she had obtained all of her degrees, other than the bachelor’s

degrees, while married to respondent. Petitioner had also obtained a master’s degree in

divinity since the filing of the petition for dissolution of marriage, which she received from

the University of Spiritual Healing and Sufism in 2013.

¶ 12 Petitioner testified that at the time of her 1991 marriage to respondent, she was employed

as a certified registered nurse anesthetist in Tuscaloosa, Alabama. In 1995, she decided to

switch careers, with respondent’s support, and enrolled in graduate school for her master’s in

psychology. Her clinical internship for her graduate program in psychology was at Rush

University Medical Center (Rush), which was the reason she and respondent moved to

Chicago. After the internship, she also completed her fellowship at Rush and then opened a

private practice in Chicago, where she worked for five years while also being an “affiliated

scientist and an independent contractor with Rush University Medical Center specifically for

their med peds program.” Petitioner explained that her divinity degree was relevant to her

work as a psychologist because “in the last twenty years, psychologists also include the

4 No. 1-15-2370

spiritual aspects of our clients,” so petitioner took a number of courses integrating spirituality

with psychology. She testified that through her private practice, she “realized that a lot of the

techniques and theories that I learned in graduate school didn’t help some folks. Some

people, the bottom line, their depression, their anxiety, the problems they were having, were

more of a spiritual nature.”

¶ 13 In December 2008, petitioner and her business partner began winding down their private

practice and petitioner accepted a part-time job at Rush in gero-rehab psychology. In July

2009, she began working full-time at Rush for approximately $80,000 a year, which

continued until 2010 or 2011, when her hours were cut by 25% due to a contraction of

operations at Rush. In March 2013, petitioner accepted a job at the Birmingham VA Medical

Center to work in telemental health; petitioner explained that she “was hired to work over

video, TV screen, to see veterans in Augusta, Georgia, for depression, anxiety, PTSD, and

individual psychotherapy.” She testified that she decided to leave Chicago and move south so

that she could be closer to her children, 3 one of whom lived in Memphis, Tennessee, one of

whom lived in Atlanta, Georgia, and one of whom attended Auburn University; Petitioner

explained that “Birmingham kind of seemed like a central location to be near them all.” Her

salary was approximately $95,000, and she was satisfied with the job, but not with living in

Birmingham, which she felt she had “outgrown” after living in Chicago for 11 years.

¶ 14 Petitioner testified that she applied for, and received an offer for, a part-time sleep

medicine/behavioral health position in the VA in Atlanta, so she moved to Atlanta in

December 2013; she testified that her practice had never been limited to that discipline prior

to the job in Atlanta but that her focus of health psychology did include sleep medicine. She

3 Petitioner had three children from a previous marriage.

5 No. 1-15-2370

testified that she wanted to move to Atlanta because she was looking for a larger city and one

of her sons was moving to Atlanta, so she would have two children in the city and it “just

seemed like the perfect place to move.” Petitioner testified that she was currently satisfied in

this position, but that if she was offered a full-time position in Atlanta in the field of sleep

medicine, she would accept it. Her current salary was slightly over $50,000, and if her

position was full-time, it would be approximately $100,000 a year. She testified that when

she was looking for employment in Atlanta, she was looking for a full-time position and

believed that her current position was full-time until her job interview, when she was

informed that the hospital was hiring two part-time sleep psychologists and not one full-time

one; she further testified that there was no full-time position available. Petitioner testified that

there was “[v]ery much” a chance that she would be offered a full-time position, since the

sleep medicine department had expanded and was moving to a new building. She testified

that she was not currently looking for a full-time position because she was “satisfied with

where I am” and “[s]leep medicine has always been my dream job.”

¶ 15 Petitioner testified that she was a member of the Sufi religion, which was a mystical

branch of Islam. She converted to Sufism in the fall of 2007, while still living with

respondent, and also converted to the Muslim faith in the summer of 2008. 4 Petitioner

testified that she donated to Sufism while married to respondent and deducted her donations

on her tax returns with respondent. Petitioner further testified that respondent never objected

to her making donations to Sufism and that she participated in Sufi seminars and retreats

while she was living with respondent. Petitioner testified that she donated approximately

4 Petitioner testified that these were two separate conversions and that “[y]ou can be Sufi without being a Muslim.”

6 No. 1-15-2370

$600 a month to Sufism when she could afford it, $400 of which was “Zakat,” which was

similar to tithing.

¶ 16 B. Respondent

¶ 17 Respondent testified that he currently resided in the marital residence, where he had lived

alone since petitioner left in February 2010. He testified that he was currently 63 years old

and had been a surgeon until he retired in 2000 due to a knee injury that he had sustained in

1995; he earned approximately $300,000 a year as a surgeon. When he retired, he began

receiving payments from disability insurance policies that he had purchased, which were

approximately $25,500 gross per month; the payments were tax-free and would continue for

the duration of his lifetime. Respondent testified that he paid the premiums on his disability

policies from 1995 until he retired; prior to 1995, the premiums had been paid by a

professional corporation in which he was a partner. After 1995, he paid his premiums from

his joint account with petitioner.

¶ 18 Respondent testified that he had been previously divorced prior to his marriage to

petitioner, and the divorce decree 5 from his prior marriage had been entered early in the same

year as his marriage to petitioner. Respondent testified that the divorce decree split certain

assets as follows: a “Surgical Associates of Tuscaloosa, P.C. Money Purchase Pension Plan”

was equally divided between respondent and his ex-wife; Merrill Lynch IRA 0511 6 was

awarded to respondent; and Merrill Lynch “Cash Management Account” 5739 was awarded

to respondent. The divorce decree also awarded respondent his full ownership interest in

5 We note that, while in Illinois, a court enters a “judgment of dissolution of marriage” (750 ILCS 5/401(a) (West 2008)), in Alabama, where respondent’s first marriage ended, the court enters a “judgment of divorce” (Ala. Code § 30-2-1(b) (2008)). Accordingly, when discussing respondent’s first marriage, we refer to a “divorce” and not a “dissolution.” 6 With respect to bank and investment accounts, we refer to the account by the name of the bank or brokerage firm and the last four digits of the account.

7 No. 1-15-2370

several medical enterprises, namely, Surgical Associates of Tuscaloosa, P.C.; West Alabama

Physician’s Answering Service, Inc.; the Answering Service, Ltd.; Tuscaloosa Surgical

Center, Inc.; Tuscaloosa Surgical Center, Ltd.; Tuscaloosa Surgical Center Partnership; and

Southern Medical Testing Service, Inc. Respondent admitted that the divorce decree did not

include any specific valuation for any of the assets divided between respondent and his first

wife. Respondent further testified that he did not enter into a premarital agreement prior to

marrying petitioner because his attorney advised him that one would be unnecessary as long

as he kept his marital and nonmarital assets separate and that respondent followed that

advice.

¶ 19 Respondent testified his stockbroker for over 20 years had been John Cook and he had

begun working with Cook in 1991, approximately at the time of his first divorce. At that

point, Cook was a broker with J.C. Bradford, Inc., where he remained until the company was

purchased by PaineWebber approximately in 2000. After that, Cook moved from

PaineWebber to Morgan Keegan, another brokerage firm, which was bought out by

Raymond James. At the time of the divorce, respondent owned several accounts at Merrill

Lynch, which he transferred to Cook at J.C. Bradford.

¶ 20 Respondent testified that while there was documentation about the accounts at Morgan

Keegan in 2001, followed by Raymond James, there was no documentation of any of the

accounts from his 1991 divorce until the opening of the Morgan Keegan accounts in 2001

because “[t]hey don’t exist.” He testified that there would have been monthly brokerage

statements from J.C. Bradford and PaineWebber, but he did not have them and was unable to

obtain them because he was told by PaineWebber that such records had “been destroyed.”

8 No. 1-15-2370

¶ 21 However, respondent testified that he had created “essentially a spreadsheet that I

downloaded from my Microsoft Money program on my home computer in which I keep all

transactions in all accounts. So what I did was I downloaded this to Quicken as a spreadsheet

and printed it out showing what transactions were made in terms of cash flow in my old J.C.

Bradford account[s] starting from the early ‘90s, I think ‘93 or ‘4, when I first obtained a

computer.” On cross-examination, respondent was questioned about the information

contained in the spreadsheet, and testified that “[s]ome of it” was information that he had

manually input from brokerage statements that he had received, “some of it is just my

memory,” and some was input through electronic downloads from the brokerage firm.

¶ 22 With respect to certain of his assets, respondent testified that he had been a partner in a

practice called Surgical Associates of Tuscaloosa; he was a partner from his second year in

practice until 1998, when the practice merged with another practice and was renamed

Surgical Specialists of Alabama, PC, and respondent remained a partner in the new practice

until he retired in 2000. During his marriage to petitioner, respondent made contributions

through his medical practice to a money purchase pension plan with J.C. Bradford, which

was later designated a 401(k) plan; the practice made annual $30,000 contributions to this

plan until respondent retired. Respondent testified concerning an exhibit containing 401(k)

documents for this plan, the earliest of which showed that the account balance as of

November 1, 1996, was $38,097.13; respondent testified that there were no records in

existence covering the time period from his divorce until that earliest statement. Respondent

further testified that the exhibit showed an account balance of $956,865.82 as of December

31, 2001. “[A] year or so after [he] retired,” respondent placed these funds in a rollover IRA

with Morgan Keegan (Morgan Keegan IRA 4134), which was opened in 2001 with an

9 No. 1-15-2370

opening balance of “something under a million dollars.” As of January 4, 2012, the Morgan

Keegan account had an account value of $987,814.15. This account was later transferred to

Raymond James IRA 2427, which had a balance of $1,374,176 as of March 31, 2014.

¶ 23 With respect to Raymond James account 6117, respondent testified it was the same

account as Merrill Lynch account 5739, which he had been awarded in his prior divorce.

Respondent testified that the funds in this account came directly from the funds from Merrill

Lynch account 5739, which were transferred to J.C. Bradford and then to PaineWebber. The

funds were then transferred to Morgan Keegan account 7465 from 2001 through 2011, and

then became Raymond James account 6117. Again, respondent testified that he had no

documentation of the accounts between his 1991 divorce and the opening of the Morgan

Keegan account in 2001 because such documentation was no longer in existence. According

to his self-created spreadsheet, the account had a “running balance” of -$101,614.84 as of

September 24, 1991. Respondent testified to an exhibit that contained account statements

from Morgan Keegan account 7465, and testified that the first year’s statement showed a

zero opening balance and a “Market Value of Priced Assets” of $2,108,452.47 as of

December 31, 2001. Respondent further testified that there were also some funds in the

account that had been deposited into the account from “outside” sources. The largest was his

portion of the buyout of Tuscaloosa Surgical Center, which had been awarded to respondent

in his first divorce, by HealthSouth Corporation, which was in the amount of $279,227.12.

He also made several deposits from his and petitioner’s joint account into the account, as

well as $66,000 he received from selling his share of an outpatient surgical center to another

physician. According to the parties’ joint exhibit of marital assets, this account had a value of

$4,060,606 as of March 2014.

10 No. 1-15-2370

¶ 24 With respect to Raymond James IRA 2516, respondent testified that Merrill Lynch IRA

0511, which he had been awarded in his prior divorce, was the same funds as Morgan

Keegan IRA 4142, which later became Raymond James IRA 2516. Respondent testified that

several pages of his self-created spreadsheet concerned this account; according to the

spreadsheet, the opening balance of the account was $339.60 in September 1991 and the

balance as of January 2000 was $1805.02; 7 respondent testified that there were no

“documents that trace this account from [his] divorce in ‘91 to the opening of the Morgan

Keegan account in 2001.” He further testified that an additional exhibit showed the transfer

of the account from PaineWebber into Morgan Keegan in 2001; this exhibit consisted of

account statements from Morgan Keegan and the first account statement showed that as of

February 28, 2001, the balance in the account was $54,738.72. He testified that there were

three years in which he transferred money from the Morgan Keegan account 7465 (which

became Raymond James account 6117) and into the IRA. According to the parties’ joint

exhibit of marital assets, this account had a value of $121,637 as of March 2014.

¶ 25 With respect to Bank of Cashton account 6879, respondent testified that this account was

a health savings account that respondent established in 2005 or 2006 when he had a high-

deductible insurance plan. Respondent testified that every month, he would withdraw a check

from Morgan Keegan account 7465 (which became Raymond James account 6117) and

deposit it into the account. According to the parties’ joint exhibit of marital assets, this

account had a value of $40,111 as of March 2014.

7 We note that respondent’s testimony concerning this portion of the spreadsheet indicated that he was confused about it, with him testifying that “I can’t really say [what account the exhibit concerned] because it says on the cover sheet that this is the IRA which was transferred to J.C. Bradford, but some of the transactions at later dates were not in the IRA, so I don’t know what it is” and also testifying that the exhibit “doesn’t look familiar to me” but that “I must have [created the document in the exhibit] because I have the records on my computer.”

11 No. 1-15-2370

¶ 26 With respect to Citibank account 0067, respondent testified that this was a checking and

savings account 8 that was primarily funded by his disability payments. Some funds from this

account also came from the closing of a VP Bank savings account, which was a foreign bank

that “didn’t want to deal with Americans anymore” and returned the balance of his account,

which he then deposited into the Citibank account. Respondent testified that the VP Bank

account had been funded with funds from Merrill Lynch account 5739, which later became

Raymond James account 6117. According to the parties’ joint exhibit of marital assets, this

account had a value of $119,333 as of March 2014.

¶ 27 With respect to Capital One account 7666, respondent testified that this was a savings

account that contained distributions from Raymond James IRA 2427 and no other funds.

According to the parties’ joint exhibit of marital assets, this account had a value of $126,083

as of March 2014.

¶ 28 Respondent also testified that shortly after petitioner left in 2010, he prepared a list of

items that she had taken, including photo albums, furnishings, clothing, and her automobile.

On cross-examination, respondent testified that some of the values that were listed for the

particular items were not supported by appraisals.

¶ 29 Respondent testified that he had made payments on the marital residence since 2010,

including monthly payments to the mortgage company and monthly assessments to the

condominium association. He made the payments using his Citibank accounts, and the source

of the funds in those accounts was his monthly disability payments.

8 The parties’ joint exhibit of their marital assets states that there are two accounts, “Citi checking No. 0067” and “Citi Savings No. 0067,” but respondent refers to it as one account. The value we list for the account is a combination of the values for both accounts listed in the joint exhibit.

12 No. 1-15-2370

¶ 30 C. John Cook

¶ 31 John Cook testified that he was a stockbroker with Raymond James, which had acquired

his former firm, Morgan Keegan, at the beginning of 2013. Cook had worked at Morgan

Keegan since 2001. Prior to that, he had worked for 20 years at J.C. Bradford & Company,

which was acquired by PaineWebber, prompting Cook’s move to Morgan Keegan. Cook met

respondent in 1990 and characterized him as a “long-term friend of mine and a client of

mine.” Respondent became Cook’s client in 1991.

¶ 32 Cook testified that respondent’s approach to investing was “buy and hold long-term,”

meaning that he held stocks for 10 or more years. Cook characterized respondent as a “very

astute” and knowledgeable investor. Cook testified consistently with respondent’s testimony

about the sources of the funds in respondent’s various accounts.

¶ 33 Cook testified that there was no documentation on the accounts from the time he was at

Bradford because the firm no longer existed; the earliest documents were those from Morgan

Keegan beginning in 2001. However, Cook was able to remember the facts concerning the

transfers of each of the accounts because “I did them. I was there.” Cook did not have any

written notes of what he did, but testified that “it’s no problem for me to remember it at all”

because “I do this 24/7, this job. It’s something that’s in my brain all the time.” Cook

testified that since his community in Alabama was smaller, “[i]t’s just so much more

personal and hands-on, it’s just easy to remember all of this stuff.”

¶ 34 On cross-examination, Cook testified that when he began working with respondent at J.C.

Bradford, he had approximately 200 other clients.

13 No. 1-15-2370

¶ 35 D. Jeffrey Newman

¶ 36 Jeffrey Newman testified on petitioner’s behalf as an expert witness concerning

projections of respondent’s and petitioner’s future assets and income, and testified as to how

much income petitioner would require to maintain her lifestyle.

¶ 37 E. Trial Court Judgment

¶ 38 On July 23, 2015, the trial court entered a judgment for dissolution of the parties’

marriage. In the judgment, as to maintenance, the trial court found that the evidence

established that petitioner was in need of maintenance from respondent in order to support

herself at the standard of living enjoyed by the parties during the marriage, that respondent

maintained the financial ability to pay maintenance, and that petitioner was not intentionally

underemployed. The trial court then examined: (1) petitioner’s age, health, income, earning

capacity, and impairment; (2) respondent’s income and property; (3) petitioner’s needs; (4)

the duration of the marriage and standard of living; (5) the property of the parties; (6) the tax

consequences of the property division; and (7) any agreement between the parties. After

considering these factors, the court found that it was appropriate for respondent to pay

petitioner reviewable maintenance in the amount of $8600 per month, with the maintenance

obligation subject to review five years after the date of the judgment for dissolution of

marriage.

¶ 39 As to the six accounts that respondent maintained were nonmarital assets, the trial court

found that all six accounts would be classified as marital property. With respect to Raymond

James account 2427, the court found that other than his testimony, respondent did not present

any evidence tracing the source of the funds and that, “[a]fter a careful review of the

evidence, *** [respondent] failed to meet his burden of clear and convincing evidence as to

14 No. 1-15-2370

the non-marital source of the funds in [Raymond James account 2427 (RJ 2427)].” The court

found:

“First, [respondent] failed to provide any clear or convincing evidence tracing the

non-marital source of the other funds in RJ 2427. There is no evidence regarding the

value of [the] purchase pension plan at the time of [respondent’s] First Divorce

Decree. There is no evidence regarding the value of the purchase pension plan at the

time of [respondent’s] marriage to [petitioner]. [Respondent] did not even testify as to

his estimate of the value of the purchase pension plan at the time of his marriage to

[petitioner]. Second, [respondent] testified that a portion of the funds in RJ 2427 were

pension contributions based upon his earnings during his marriage to [petitioner] and

obviously marital property. So even if [respondent] had presented clear and

convincing evidence tracing the non-marital source of some of the funds in the

account, there is no evidence upon which the Court could rely to differentiate which

funds in RJ 2427 are marital and which are non-marital. The case law is clear that it is

[respondent’s] burden to present clear and convincing evidence to support his claim

that these funds, or at a minimum a portion of the funds, constitute non-marital

property. [Citation.] It is not appropriate for the Court to accept blindly [respondent’s]

self-serving and unsubstantiated testimony. Accordingly, the Court classifies RJ 2427

as marital property.”

¶ 40 With respect to Raymond James account 6117, the court similarly found that other than

his testimony, respondent did not provide any evidence tracing the source of finds used to

establish the account and, accordingly, failed to meet his burden of clear and convincing

evidence as to the nonmarital source of the funds in that account. The court noted that there

15 No. 1-15-2370

was no evidence regarding the value of the account at the time of the first divorce decree, nor

was there any evidence regarding the value of the account at the time of respondent’s

marriage to petitioner; “[t]he only evidence presented to the Court is the value of the Morgan

Keegan Account 7465 in January, 2001, at a time after the parties had been married for

almost 10 years, and the activity in the account from the date of its establishment.” The court

rejected evidence of respondent’s personal recordkeeping:

“[Respondent] presented evidence regarding some of his personal recordkeeping

[citations]. [Respondent] testified that he created these spreadsheets ‘probably four

years ago’ in Microsoft Money and transferred the records to Quicken Spreadsheets

in order to print out the records [citation]. [Respondent] also testified that he first

purchased a computer in 1993 or 1994 [citation]. So, although these spreadsheets

include transactions dated from 1991 through 2001, [respondent] could not have

entered the transactions until 1993 or thereafter. During the trial, [respondent’s]

testimony was very unclear about his familiarity with the information contained in

these spreadsheets [citation]. These spreadsheets do not identify the account to which

the transactions apply. Rather, the identification purportedly linking the transactions

to the accounts is a cover sheet to the Tab in which the spreadsheet is located when

the spreadsheets were introduced into evidence at trial. However, even assuming that

[respondent’s] testimony and the evidence were clear, the fact remains that these

spreadsheets do not trace the source of the funds used to establish Morgan Keegan

Account 7465, or any other account for that matter, and do not indicate the balance in

any account prior to the date the parties were married. Therefore, the Court does not

16 No. 1-15-2370

ascribe any weight to the information contained in these spreadsheets.” (Emphasis in

original.)

Again, the court found that “[i]t is not appropriate for the Court to accept blindly

[respondent’s] self-serving and unsubstantiated testimony” and found the account to be

marital property.

¶ 41 With respect to Raymond James account 2516, the trial court similarly found that

respondent had failed to provide clear and convincing evidence tracing the nonmarital source

of funds in the account, pointing to the fact that there was no evidence regarding the value of

the account at the time of the first divorce decree and no evidence regarding the value of the

account at the time of respondent’s marriage to petitioner. The court noted that “[respondent]

did not even testify as to his estimate of the value of the IRA at the time of his marriage to

[petitioner].” Again, the court indicated that it was “not appropriate for the Court to accept

blindly [respondent’s] self-serving and unsubstantiated testimony.” Accordingly, the court

found the account to be marital property.

¶ 42 With respect to Cashton account 6879 and Capital One account 7666, the court found that

these accounts were marital property because the only source of funding for those accounts

were accounts that the court had determined were marital property. For both accounts, the

court found that “the fact that this account is titled only in [respondent’s] name [is] irrelevant

for purposes of classifying this asset.” The court reached the same conclusion with respect to

Citibank account 0067, finding that the deposits into the account were from an account that

the court had determined was marital property and from respondent’s disability income,

which was also marital.

17 No. 1-15-2370

¶ 43 The court then assigned all nonmarital property and allocated the parties’ marital

property, awarding petitioner $472,219.70 in accounts in which petitioner had a 100%

interest; a 50% interest in the six disputed accounts at issue on appeal, which had a combined

value of $6,562,316.87 as of the end of November 2014; and “all the furniture, furnishings,

automobiles, clothes, personal items and jewelry currently in her possession.” Respondent

was awarded the marital residence, with a stipulated value of $527,000 and net equity of

$492,000; “all the furniture, furnishings, automobiles, clothing, jewelry and personal items in

his possession”; a 100% interest in his disability income; a 50% interest in the six disputed

accounts at issue on appeal; and a 100% interest in a nonmarital investment account with a

value of $8,249,106.11 as of the end of November 2014.

¶ 44 The court denied respondent’s request for reimbursement of the funds that respondent

had expended in maintaining the marital residence during the pendency of the case, noting

that respondent alone had been residing in the residence since petitioner left it in February

2010 and the parties agreed that respondent would be awarded the marital residence in

connection with the judgment.

¶ 45 Finally, the court denied respondent’s request for a finding of dissipation as to

petitioner’s contributions to the Sufi religion, finding that, “[f]irst, prior to the breakdown of

the parties’ marriage, the parties made donations to the Sufi religion and, therefore,

[petitioner’s] contributions to the Sufi religion constitute an extension of patterns of practice

established during the marriage. Second, the Court declines to characterize the Sufi religion

as a ‘cult’ as argued by [respondent] and finds that it is not dissipation for [petitioner] to

support charitable and religious activities that she determines to be appropriate.”

18 No. 1-15-2370

¶ 46 ANALYSIS

¶ 47 On appeal, respondent argues that the trial court erred in (1) classifying six accounts

titled in his name as marital property; (2) not ordering reimbursement for expenses

respondent paid for the marital residence; (3) finding no dissipation in petitioner’s

contributions to Sufism; (4) omitting the value of personal property awarded to petitioner

when dividing the marital estate; and (5) awarding petitioner maintenance or, alternatively,

not basing the maintenance award on petitioner’s “actual needs for a limited and finite period

of time.” We consider each argument in turn.

¶ 48 I. Classification of Accounts as Marital Property

¶ 49 First, respondent argues that the trial court erred in classifying the following six accounts

as marital property instead of nonmarital: (1) Raymond James account 6117, worth

$4,060,606; (2) Raymond James IRA 2516, worth $121,637; (3) Raymond James IRA 2427,

worth $1,374,176; (4) Cashton account 6879, worth $40,111; (5) Citibank account 0067,

worth $117,848; and (6) Capital One account 7666, worth $126,083. The disposition of

property is governed by section 503 of the Illinois Marriage and Dissolution of Marriage Act

(Act) (750 ILCS 5/503 (West 2008)). In re Marriage of Lundahl, 396 Ill. App. 3d 495, 502

(2009). “Before a court may distribute property upon the dissolution of a marriage, it must

first classify the property as either marital or nonmarital.” In re Marriage of Faber, 2016 IL

App (2d) 131083, ¶ 3. Generally, the trial court’s classification of an asset as marital or

nonmarital will not be disturbed unless it is contrary to the manifest weight of the evidence.

In re Marriage of Wendt, 2013 IL App (1st) 123261, ¶ 15. “[A] decision is against the

manifest weight of the evidence only when an opposite conclusion is clearly apparent or

when the court’s findings appear to be unreasonable, arbitrary, or not based upon the

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evidence.” Faber, 2016 IL App (2d) 131083, ¶ 3 (citing In re Marriage of Romano, 2012 IL

App (2d) 091339, ¶ 44).

¶ 50 Section 503(a) of the Act defines nonmarital property as:

“(1) property acquired by gift, legacy or descent;

***

(6) property acquired before the marriage;

(7) the increase in value of property acquired by a method listed in paragraphs (1)

through (6) of this subsection, irrespective of whether the increase results from a

contribution of marital property, non-marital property, the personal effort of a spouse,

or otherwise, subject to the right of reimbursement provided in subsection (c) of this

Section; and

(8) income from property acquired by a method listed in paragraphs (1) through

(7) of this subsection if the income is not attributable to the personal effort of a

spouse.” 750 ILCS 5/503(a) (West 2008).

Respondent argues that all six of the accounts at issue should have been classified as

nonmarital property and that the trial court erred in finding that it was marital property. We

do not find this argument persuasive.

¶ 51 Under section 503 of the Act, “all property acquired by either spouse after the marriage

and before a judgment of dissolution of marriage or declaration of invalidity of marriage,

including non-marital property transferred into some form of co-ownership between the

spouses, is presumed to be marital property, regardless of whether title is held individually or

by the spouses in some form of co-ownership such as joint tenancy, tenancy in common,

tenancy by the entirety, or community property.” 750 ILCS 5/503(b)(1) (West 2008). Such a

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presumption may be overcome by showing that the property was acquired by a method listed

in section 503(a). 750 ILCS 5/503(b)(1) (West 2008). The party claiming that the property is

nonmarital has the burden of rebutting the presumption by clear and convincing evidence,

and any doubts as to the classification of property will be resolved in favor of finding that the

property is marital property. In re Marriage of Dhillon, 2014 IL App (3d) 130653, ¶ 24.

¶ 52 “Tracing of funds is a procedure which allows the court to find that property which

would otherwise fall within the definition of marital property is actually nonmarital property

under one of the statutory exceptions.” In re Marriage of Jelinek, 244 Ill. App. 3d 496, 504

(1993) (citing In re Marriage of Scott, 85 Ill. App. 3d 773, 777 (1980)). “ ‘Tracing requires

that the source of the funds be identified.’ ” In re Marriage of Demar, 385 Ill. App. 3d 837,

851 (2008) (quoting In re Marriage of Davis, 215 Ill. App. 3d 763, 770 (1991)).

¶ 53 In the case at bar, all six accounts were opened during the marriage and, therefore, the

marital presumption applies to the accounts. See Dhillon, 2014 IL App (3d) 130653, ¶ 25

(“because account 4863 was opened during the marriage, the marital presumption clearly

applied to the account and to the funds therein”). However, respondent claims that he

properly traced the source of the funds in the six accounts through his testimony and the

testimony of Cook, his financial advisor, and that this testimony was sufficient to prove by

clear and convincing evidence that the source of the funds in the accounts was nonmarital.

We do not find this argument persuasive.

¶ 54 With respect to the three Raymond James accounts, the trial court found that respondent

had failed to establish by clear and convincing evidence that the funds were nonmarital

property, primarily because (1) there was no record establishing the value of the accounts at

the time of his prior divorce in 1991 or at the time of his marriage to petitioner later in 1991

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and (2) there were no records concerning the accounts until they were transferred to Morgan

Keegan in 2001. We cannot find that this conclusion was against the manifest weight of the

evidence.

¶ 55 In the case at bar, the sole evidence as to any of the Raymond James accounts prior to

2001 came from respondent’s and Cook’s testimonies. Respondent claims that these

testimonies were sufficient to trace the accounts to a nonmarital source and that no further

documentation was necessary. Respondent is correct that a party’s testimony may be

sufficient to trace whether marital funds were contributed to nonmarital property. See, e.g.,

In re Marriage of Henke, 313 Ill. App. 3d 159, 174 (2000) (finding that the trial court had

properly classified a certain amount of property as marital where the wife’s testimony

concerning contributions “was sufficient to trace the contributions of the marital estate to the

nonmarital property by clear and convincing evidence”). However, “[w]itness credibility and

the resolution of conflicts in evidence are matters within the discretion of the trial judge and

should not be disturbed upon review.” Moniuszko v. Moniuszko, 238 Ill. App. 3d 523, 530

(1992). Indeed, “[e]ven uncontradicted testimony, if inherently unreasonable or improbable,

need not be believed.” In re Marriage of Pittman, 212 Ill. App. 3d 99, 103 (1991) (citing

In re Marriage of Hilkovitch, 124 Ill. App. 3d 401, 415 (1984)).

¶ 56 Respondent claims that the trial court did not make any findings as to his credibility and

that his credibility and Cook’s credibility were “never questioned by the circuit court.”

However, in the judgment for dissolution of marriage, the trial court expressly noted that it

would not “accept blindly [respondent’s] self-serving and unsubstantiated testimony”

concerning the source of funds in the accounts. Thus, the trial court did make several

comments indicating its view of respondent’s testimony. We will not second-guess the trial

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court’s decision not to “accept blindly” respondent’s testimony, especially in light of the trial

court’s presence during respondent’s lengthy trial testimony.

¶ 57 Respondent also argues multiple times in his brief that “[petitioner] offered no testimony

or other evidence to contradict [respondent’s] evidence regarding the funding of [the]

account[s]” and that “[w]ith no evidence to the contrary,” he showed the nonmarital origins

of the accounts. However, as noted, in order to rebut the presumption that the property was

marital, respondent had the burden of proving that the source of funds was nonmarital by

clear and convincing evidence. See Dhillon, 2014 IL App (3d) 130653, ¶ 25. Petitioner had

no obligation to present any evidence or to contradict respondent’s evidence. See In re

Marriage of Didier, 318 Ill. App. 3d 253, 265 (2000) (“Although Martin offered no evidence

to dispute Gail’s assertion that the accounts were her nonmarital property, it was not his

burden to do so.” (Emphasis in original.)). In the case at bar, the trial court was clearly

troubled by the fact that there was no evidence apart from respondent’s and Cook’s

testimonies that provided any information about the funds in the Raymond James accounts

until the creation of the Morgan Keegan accounts in 2001. Therefore, in light of the

presumption in favor of finding property to be marital, we cannot find that the trial court’s

conclusion that the Raymond James accounts were marital property to be against the

manifest weight of the evidence. See In re Marriage of Hubbs, 363 Ill. App. 3d 696, 702

(2006) (noting that where no documentary evidence of a loan was presented and there was no

other evidence that the loan had been repaid, “the existence and repayment of the ‘loan’

hinges on the circuit court’s determination of [the husband’s] credibility” and finding that the

court was “entitled to conclude that the loan was made but never repaid, because [the

husband] has failed to present any evidence of either, apart from his testimony”). Indeed, we

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note that it would be reversible error for a court to not find the property to be marital in light

of a lack of evidence tracing the source of funds. See Dhillon, 2014 IL App (3d) 130653,

¶ 25 (finding reversible error where, “[f]aced with a lack of evidence to determine where the

funds in account 4863 had come from, the trial court made an assumption that it could not

have come from the marriage and had to have come from husband’s father” and noting that

“[t]he trial court should have found instead that because it had not been proven where the

funds in account 4863 had come from, husband, as the party with the burden of proof, had

failed in that burden, and that the funds, therefore, were deemed to be marital property”).

¶ 58 With respect to Cashton account 6879, Capital One account 7666, and Citibank account

0067, the court found that these accounts were marital property because the only source of

funding for those accounts were accounts that the court had determined were marital

property, namely, the Raymond James accounts. 9 As we have just concluded, the trial court’s

determination that those accounts were marital property was not against the manifest weight

of the evidence. Accordingly, it was also not against the manifest weight of the evidence for

the court to conclude that the accounts funded by those Raymond James accounts were also

¶ 59 Therefore, since the trial court’s classification of these six accounts as marital property

was not against the manifest weight of the evidence, we affirm the trial court’s judgment on

this issue.

9 With respect to the Citibank account, the court also found that it was funded through respondent’s disability income, which it concluded was marital. However, even if the disability income was nonmarital, the presence of marital funds via the Raymond James account would render this account marital.

24 No. 1-15-2370

¶ 60 II. Reimbursement

¶ 61 Respondent’s next argument on appeal is that he is entitled to the reimbursement of the

funds that he spent on the marital residence after petitioner moved out. “Section 503(c) of the

Act provides, under certain circumstances, for reimbursement to the nonmarital estate of a

spouse for contributions made to the marital estate. [Citation.] For reimbursement to be

required, the contribution must be traceable by clear and convincing evidence and must not

have been intended as a gift to the marital estate.” Dhillon, 2014 IL App (3d) 130653, ¶ 46.

“A trial court’s determination that one estate of property is entitled to reimbursement from

another will not be reversed unless it is against the manifest weight of the evidence.” In re

Marriage of Ford, 377 Ill. App. 3d 181, 185-86 (2007). As noted, “[a] finding is against the

manifest weight of the evidence only if it is clearly apparent from the record that the trial

court should have reached the opposite conclusion or if the finding itself is arbitrary,

unreasonable, or not based upon the evidence presented.” Dhillon, 2014 IL App (3d) 130653,

¶ 29. The burden of proof to establish that reimbursement is appropriate is on the party

seeking reimbursement. Dhillon, 2014 IL App (3d) 130653, ¶ 46.

¶ 62 In the case at bar, respondent argues that he is entitled to be reimbursed for the mortgage

payments and association fees he paid on the marital residence because he made those

payments from his disability income, which he claims is nonmarital income. The trial court

denied respondent’s request for reimbursement of the funds that respondent had expended in

maintaining the marital residence during the pendency of the case, noting that respondent

alone had been residing in the residence since petitioner left it in February 2010 and the

parties agreed that respondent would be awarded the marital residence in connection with the

judgment. We cannot find this decision to be against the manifest weight of the evidence.

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¶ 63 In the context of a marital estate contributing to the upkeep of nonmarital real property,

our supreme court has noted with approval that “Illinois courts have previously held that a

marital estate is not entitled to reimbursement for mortgage payments toward nonmarital

property when the marital estate has already been compensated for its contributions by use of

the property during marriage.” In re Marriage of Crook, 211 Ill. 2d 437, 454 (2004) (finding

that the trial court abused its discretion in ordering reimbursement because the marital estate

had reaped the benefits of the wife’s nonmarital contributions). See also Ford, 377 Ill. App.

3d at 187 (vacating trial court’s order of reimbursement and finding that “the benefit of the

use of the Port Barrington property fully compensated the marital estate for its contribution

and that the marital estate is not entitled to reimbursement”); In re Marriage of Snow, 277 Ill.

App. 3d 642, 650 (1996) (“Here, the parties lived in petitioner’s nonmarital residence for at

least 10 years during the marriage. Accordingly, because the parties benefited from living in

the house for a substantial period of time, the court could reasonably have found that the

marital estate had already been compensated for its contributions.) Similarly, in the case at

bar, respondent continued to live in the marital residence from the time petitioner left in 2010

through the time of the entry of the judgment for dissolution in 2015, and the parties agreed

that respondent would be awarded the property. Thus, respondent received the benefit of

living in the marital residence for at least five years after petitioner left the residence.

Accordingly, we cannot find that it was against the manifest weight of the evidence for the

trial court to conclude that respondent had been sufficiently compensated for his payments of

the mortgage and association fees through his use of the marital home and affirm the trial

court’s judgment on this issue.

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¶ 64 III. Dissipation

¶ 65 Respondent next argues that the trial court erred in finding that petitioner’s expenditures

on Sufism did not constitute dissipation. “Dissipation occurs when one spouse uses a marital

asset for his or her sole benefit and for a purpose unrelated to the marriage at a time when the

marriage is undergoing an irreconcilable breakdown.” Dhillon, 2014 IL App (3d) 130653,

¶ 36 (citing In re Marriage of Tietz, 238 Ill. App. 3d 965, 983 (1992)). “The spouse charged

with dissipation of marital funds has the burden of showing, by clear and specific evidence,

how the marital funds were spent.” In re Marriage of Tietz, 238 Ill. App. 3d 965, 983 (1992).

This is “generally a fact-intensive inquiry that calls upon the trial court to make a credibility

determination as to the explanation given by the spouse charged with dissipation as to how

the funds were used.” Dhillon, 2014 IL App (3d) 130653, ¶ 36. Accordingly, a trial court’s

ruling on dissipation will not be reversed on appeal unless it is against the manifest weight of

the evidence. Dhillon, 2014 IL App (3d) 130653, ¶ 36. As noted, “[a] finding is against the

manifest weight of the evidence only if it is clearly apparent from the record that the trial

court should have reached the opposite conclusion or if the finding itself is arbitrary,

unreasonable, or not based upon the evidence presented.” Dhillon, 2014 IL App (3d) 130653,

¶ 29.

¶ 66 In the case at bar, the trial court denied respondent’s request for a finding of dissipation

as to petitioner’s contributions to the Sufi religion, finding that, “[f]irst, prior to the

breakdown of the parties’ marriage, the parties made donations to the Sufi religion and,

therefore, [petitioner’s] contributions to the Sufi religion constitute an extension of patterns

of practice established during the marriage. Second, the Court declines to characterize the

Sufi religion as a ‘cult’ as argued by [respondent] and finds that it is not dissipation for

27 No. 1-15-2370

[petitioner] to support charitable and religious activities that she determines to be

appropriate.” We cannot find this conclusion to be against the manifest weight of the

¶ 67 Respondent argues that this case is analogous to In re Marriage of Cerven, 317 Ill. App.

3d 895 (2000), in which donations to a church were determined to constitute dissipation.

However, we agree with petitioner that Cerven is factually distinguishable from the case at

bar. In Cerven, the wife and children attended services at the Church of Jesus Christ of Latter

Day Saints and the husband did not object to their attendance and also attended special

church events such as the children’s baptisms. Cerven, 317 Ill. App. 3d at 897. The wife

began paying tithes to the church beginning in 1984, which was the first time the wife

claimed that the husband objected to anything concerning the church. Cerven, 317 Ill. App.

3d at 897. From 1984 to 1987, the wife made contributions ranging from $102.32 to $399.19,

and did not make any contributions from 1988 to 1993, other than a $180 contribution in

1991. Cerven, 317 Ill. App. 3d at 898. According to the wife’s petition for dissolution of

marriage, the marriage broke down at the end of 1994. Cerven, 317 Ill. App. 3d at 897.

Thereafter, from 1994 to 1997, the wife began tithing between $1236.35 and $3853.56

“because she felt stronger about the church.” Cerven, 317 Ill. App. 3d at 898. The trial court

concluded that the wife’s contributions to the church constituted dissipation, and the wife

appealed.

¶ 68 On appeal, the appellate court affirmed the finding of dissipation, finding that the wife

had failed to prove by clear and convincing evidence that the funds were expended for a

family purpose. Cerven, 317 Ill. App. 3d at 902. The court indicated that in order to show

that the money was for a family purpose under the facts of the case before it, the wife would

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have needed to show that the husband had agreed to her tithing and other contributions.

Cerven, 317 Ill. App. 3d at 901. However, the court noted that the husband was not a member

of the church and there was “no sufficient pattern of payment before the breakdown” of the

marriage, since the wife had made minimal contributions from 1984 to 1987 and had made

no contributions whatsoever in the years 1988, 1989, 1990, 1992, and 1993. Cerven, 317 Ill.

App. 3d at 902. Accordingly, the appellate court agreed with the trial court that the wife had

failed to show that the funds were expended for a family purpose. Cerven, 317 Ill. App. 3d at

902.

¶ 69 In the case at bar, it is not clear whether respondent objected to petitioner’s involvement

in Sufism while the marriage was ongoing; petitioner testified that respondent never objected

to her making donations to Sufism, while respondent testified that he did not approve of her

involvement with the religion. This type of credibility determination lies squarely within the

province of the trial court, and we will not disturb it on appeal. In re Marriage of Manker,

375 Ill. App. 3d 465, 477 (2007) (“The trier of fact is charged with assessing the credibility

of testimony at trial. [Citation.] 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.’ ” (quoting In re Commitment

of Sandry, 367 Ill. App. 3d 949, 980 (2006))). Additionally, we note that petitioner converted

to the Sufi religion in 2007 and testified that she participated in Sufi seminars and retreats

while she was living with respondent and that while respondent testified that he did not

approve of the Sufi religion, he admitted that he had traveled with petitioner on Sufi-related

trips. Petitioner further testified that she donated to Sufism while married to respondent and

deducted her donations on her tax returns with respondent. Thus, we cannot find that the trial

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court erred when it determined that the expenditures on Sufism were merely a continuation of

a pattern that had existed during the marriage.

¶ 70 Petitioner also testified that her religious education was useful in her practice, because

some patients sought a more spiritual approach and psychologists were increasingly

integrating spirituality with psychology. We agree with petitioner that anything that benefited

petitioner’s employment prospects would benefit the marriage, as it would increase the value

of the marital estate. Thus, her studies in Sufism could be characterized as being for a family

purpose, as opposed to being for her sole benefit, and we accordingly cannot find that it was

against the manifest weight of the evidence for the trial court to conclude that petitioner’s

expenditures on Sufism did not constitute dissipation.

¶ 71 IV. Division of Property

¶ 72 Respondent next argues that the trial court erred in omitting the value of personal

property awarded to petitioner when dividing the marital estate. As noted, under the Act, a

court must classify property as either marital or nonmarital before it may dispose of property

upon a dissolution of marriage. 750 ILCS 5/503(c) (West 2008). After classifying the

property, the trial court gives to each spouse his or her nonmarital property, and the marital

property is divided into “just proportions.” 750 ILCS 5/503(d) (West 2008). In order to

divide the marital property in just proportions, the trial court first must establish the value of

the parties’ marital and nonmarital assets. In re Marriage of Cutler, 334 Ill. App. 3d 731, 736

(2002). However, the Act does not require the court to place a specific value on each item of

property. In re Marriage of Hagshenas, 234 Ill. App. 3d 178, 200 (1992). “We will not

disturb a trial court’s division of marital property unless an abuse of discretion is shown.

[Citation.] A trial court does not abuse its discretion unless, in view of all of the

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circumstances, its decision so exceeded the bounds of reason that no reasonable person

would take the view adopted by the trial court. [Citations.]” In re Marriage of Demar, 385

Ill. App. 3d 837, 852 (2008).

¶ 73 In the case at bar, respondent claims that the trial court failed to consider the value of a

2008 Lexus automobile (valued by respondent at $25,985), two outstanding promissory notes

(valued by respondent at $8865), personal clothing (valued by respondent at $10,000), and

items taken by petitioner when she left the marital residence (valued by respondent at

$52,000). However, in the judgment for dissolution of marriage, the trial court expressly

assigned to petitioner “all the furniture, furnishings, automobiles, clothes, personal items and

jewelry currently in her possession.” Thus, there is no indication that the trial court “omitted

the value” of any of the listed assets. Furthermore, we note that during trial, respondent

admitted that some of the values he ascribed to the items that petitioner had taken were not

based on appraisals, meaning that the trial court was not obligated to accept respondent’s

valuations. Finally, as noted, the Act does not require the court to place a specific value on

each item of property. Hagshenas, 234 Ill. App. 3d at 200. Accordingly, we cannot find the

trial court’s division of property to be against the manifest weight of the evidence.

¶ 74 V. Maintenance

¶ 75 Finally, respondent argues that the trial court erred in awarding petitioner maintenance.

Alternatively, respondent argues that the maintenance award of $8600 per month was too

high, arguing that if petitioner was entitled to receive maintenance, it “should have been

based on [petitioner’s] actual needs for a limited and finite period of time.” Under the Act, a

court may grant temporary or permanent maintenance for a spouse “in amounts and for

31 No. 1-15-2370

periods of time as the court deems just.” 750 ILCS 5/504(a) (West 2008). Section 504(a)

further lists relevant factors to consider in determining maintenance, including:

“(1) the income and property of each party, including marital property

apportioned and non-marital property assigned to the party seeking maintenance;

(2) the needs of each party;

(3) the present and future earning capacity of each party;

(4) any impairment of the present and future earning capacity of the party seeking

maintenance due to that party devoting time to domestic duties or having forgone or

delayed education, training, employment, or career opportunities due to the marriage;

(5) the time necessary to enable the party seeking maintenance to acquire

appropriate education, training, and employment, and whether that party is able to

support himself or herself through appropriate employment or is the custodian of a

child making it appropriate that the custodian not seek employment;

(6) the standard of living established during the marriage;

(7) the duration of the marriage;

(8) the age and the physical and emotional condition of both parties;

(9) the tax consequences of the property division upon the respective economic

circumstances of the parties;

(10) contributions and services by the party seeking maintenance to the education,

training, career or career potential, or license of the other spouse;

(11) any valid agreement of the parties; and

(12) any other factor that the court expressly finds to be just and equitable.” 750

ILCS 5/504(a) (West 2008).

32 No. 1-15-2370

“ ‘Maintenance issues are presented in a great number of factual situations and resist a simple

analysis.’ ” In re Marriage of Reynard, 344 Ill. App. 3d 785, 790 (2003) (quoting In re

Marriage of Mayhall, 311 Ill. App. 3d 765, 769 (2000)). “The trial court has discretion to

determine the propriety, amount, and duration of a maintenance award. A reviewing court

will not reverse the trial court’s maintenance determination absent an abuse of discretion.”

Reynard, 344 Ill. App. 3d at 790 (citing In re Marriage of Dunlap, 294 Ill. App. 3d 768, 772

(1998)).

¶ 76 In the case at bar, the trial court concluded that petitioner was entitled to receive a

reviewable maintenance award in the amount of $8600 per month, subject to review five

years from the date of the judgment. Respondent’s main issue with the trial court’s award of

maintenance is the fact that petitioner changed jobs from a full-time position paying $95,000

per year to a part-time position paying $50,000 per year. Respondent argues that petitioner is

currently fully capable of supporting herself but chose to earn far less than she was capable

of earning.

¶ 77 “Under the Act, a spouse requesting maintenance has ‘an affirmative duty *** to seek

and accept appropriate employment.’ [Citation.] Where a spouse has the means of earning

more income, he or she may not use self-imposed poverty as a basis for claiming

maintenance. [Citation.]” In re Marriage of Patel, 2013 IL App (1st) 112571, ¶ 87 (quoting

In re Marriage of Schuster, 224 Ill. App. 3d 958, 970 (1992)). “An award of maintenance to

a spouse capable of improving his income can be an abuse of discretion.” Schuster, 224 Ill.

App. 3d at 970.

¶ 78 In the case at bar, we agree with respondent that the trial court should have considered

petitioner’s previous income in setting the amount of maintenance and that its failure to do so

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constituted an abuse of discretion. Petitioner testified that in March 2013, she accepted a

position in Birmingham to work in telemental health, a position which paid approximately

$95,000 per year. However, in December 2013, she applied for and accepted a part-time job

in sleep medicine in Atlanta which paid only slightly more than $50,000 per year and

testified that she was not currently looking for a full-time position. We note that the trial

court found that petitioner was not intentionally underemployed, a position that we will not

second-guess on appeal, although we further note that the acceptance of both petitioner’s

position in Birmingham and her current position in Atlanta occurred during the pendency of

the instant dissolution proceedings. Nonetheless, section 504(a) of the Act asks a court to

examine “the present and future earning capacity of each party” in setting a maintenance

award. 750 ILCS 5/504(a)(3) (West 2008). In the case at bar, it is clear that petitioner has a

higher earning capacity than is reflected in her $50,000-per-year part-time job, especially

since petitioner was actually receiving a salary of approximately $95,000 immediately prior

to accepting the $50,000 position. Accordingly, the trial court should have considered

petitioner’s actual earning capacity in setting maintenance, not merely the amount she

happened to be earning at the time. See, e.g., Schuster, 224 Ill. App. 3d at 971 (in affirming a

denial of maintenance, pointing out that “throughout the hearings in the cause, *** [the

husband] emphasized that he not only held full-time demanding jobs but also worked at night

doing legal work on the side. Regardless of whether he enjoyed it or not, this demonstrates

that he is capable of such employment as will enable him to continue to enjoy the lifestyle he

had during his marriage to [the wife].”).

¶ 79 In the case at bar, the trial court should not have considered respondent’s $50,000 salary

in a vacuum, with no regard to either her past proven earning capacity or her anticipated

34 No. 1-15-2370

future earnings. We also note that, as discussed earlier in our analysis, petitioner was

awarded a substantial sum from accounts that respondent claimed were nonmarital on the

sole basis that respondent was unable to trace the source of funds to those accounts. While

this is not a separate basis for reversal, on remand, the trial court should take the funds

awarded to petitioner into consideration in setting an appropriate maintenance award, as the

Act expressly asks a court to consider “marital property apportioned and non-marital

property assigned to the party seeking maintenance” in setting a maintenance award. 750

ILCS 5/504(a)(1) (West 2008). Accordingly, we reverse the trial court’s award of

maintenance and remand for the trial court to consider all of the statutory factors, including

petitioner’s earning capacity, in setting any maintenance award.

¶ 80 With respect to respondent’s additional arguments concerning maintenance, we do not

find persuasive respondent’s remaining arguments concerning the trial court’s calculation of

the maintenance award, namely, that the trial court should have considered the different

standards of living in Chicago and Atlanta, and also should not have considered several of

petitioner’s expenditures in determining the maintenance award. As noted, the trial court

stated that it considered all of the statutory factors in setting the amount of maintenance owed

to petitioner, and set an award of maintenance that it determined was reasonable. We have

discussed the problematic aspects of the trial court’s determination and other than those

aspects, we cannot find that its calculation was an abuse of the trial court’s discretion.

¶ 81 Finally, we find no merit to respondent’s argument that the trial court should have

considered maintenance already paid by respondent. Respondent cites no authority for this

proposition, and we will not consider an unsupported argument on appeal. Ill. S. Ct. R.

341(h)(7) (eff. Feb. 6, 2013) (an appellant’s brief must “contain the contentions of the

35 No. 1-15-2370

appellant and the reasons therefor, with citation of the authorities and the pages of the record

relied on”).

¶ 82 CONCLUSION

¶ 83 The trial court’s judgment for dissolution of marriage is affirmed where the trial court did

not err in (1) classifying six accounts as marital property; (2) denying respondent’s request

for reimbursement for funds spent on the marital residence; (3) finding no dissipation in

petitioner’s expenditures on the Sufi religion; and (4) dividing the marital estate. However,

the trial court abused its discretion in not considering petitioner’s past earnings in awarding

petitioner maintenance, and, accordingly, the cause is remanded to the trial court in order for

it to consider all of the statutory factors, including these earnings, in setting any maintenance

award.

¶ 84 Affirmed in part and reversed in part; cause remanded.