In re Marriage of Yvanauskas

2022 IL App (3d) 200474-U

• Court: Appellate Court of Illinois
• Decided: February 8, 2022
• Docket: 3-20-0474
• Status: Unpublished

Opinion

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

2022 IL App (3d) 200474-U

Order filed February 8, 2022

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

In re MARRIAGE OF ) Appeal from the Circuit Court ) of the 12th Judicial Circuit, ) Will County, Illinois. ANTHONY JOHN YVANAUSKAS, ) ) Petitioner-Appellee, ) Appeal No. 3-20-0474 ) Circuit No. 18-D-1109 and ) ) CHERYL A. YVANAUSKAS, ) Honorable ) David Garcia, Respondent-Appellant. ) Judge, Presiding.

JUSTICE HAUPTMAN delivered the judgment of the court. Presiding Justice O’Brien and Justice McDade concurred in the judgment.

ORDER ¶1 Held: The circuit court’s finding that respondent failed to prove petitioner dissipated marital assets under section 503(d)(2) of the Illinois Marriage and Dissolution of Marriage Act, after a final hearing on a petition and counterpetition for dissolution of marriage, was not against the manifest weight of the evidence.

¶2 Petitioner, Anthony John Yvanauskas, and respondent, Cheryl A. Yvanauskas, filed a

petition and counterpetition for dissolution of marriage, respectively. After a final hearing, the

circuit court dissolved the parties’ marriage and found, inter alia, Cheryl failed to prove that

Anthony dissipated marital assets under section 503(d)(2) of the Illinois Marriage and

Dissolution of Marriage Act (Act). 750 ILCS 5/503(d)(2) (West 2020). Cheryl appeals. ¶3 I. BACKGROUND

¶4 The parties were married on September 1, 1991. In either early-2012 or early-2013, they

permanently separated. Five or six years later, on July 2, 2018, Anthony filed a petition for

dissolution of marriage. Anthony was unable to locate Cheryl, so he was granted leave to

effectuate service of process on Cheryl by publication. Cheryl’s attorney subsequently entered

her appearance in the circuit court. On January 23, 2019, Cheryl filed a counterpetition for

dissolution of marriage.

¶5 Thereafter, the parties participated in discovery, during which time Cheryl filed a motion

to compel discovery disclosures related to, among other things, any 401(k) plans, annuities, and

investments. Cheryl also filed a motion for discovery sanctions, arguing Anthony tendered

incomplete and misleading responses that impeded her right to identify marital assets. The circuit

court ordered Anthony to tender documents and produce the requested disclosures to Cheryl.

¶6 On January 24, 2020, Anthony filed an amended financial statement. Anthony stated he

received $2323.75 in pension and other retirement benefits and $1535.91 from social security.

He did not indicate any income from an annuity. Anthony listed one bank account, namely, a

checking account with a balance of $6228.38. In the section pertaining to retirement benefits,

which included pension plans, annuities, IRAs, and 401(k) plans, Anthony indicated he had a

“Railroad Retirement Board” retirement plan with an “Unknown” value and account balance.

¶7 That same day, January 24, 2020, Anthony filed an affidavit of compliance relating to

Cheryl’s request for production of documents. Anthony attested that his response to Cheryl’s

request for production of documents, which included his tax returns, amended financial

statement, and living trust documents, was complete. Anthony also filed an affidavit of

2 completeness relating to his responses to Cheryl’s request for interrogatories. Anthony attested

that those responses, which were produced on July 15, 2019, were complete.

¶8 On July 1, 2020, a hearing was held on the status of discovery. Despite prior discovery

disputes, the case was scheduled for a final hearing on September 28, 2020. On July 27, 2020,

Cheryl filed a notice of intent to claim dissipation under section 503. In that notice, Cheryl stated

the parties’ marriage began to irretrievably break down in April 2012. Between March 5, 2014,

and April 2, 2019, Anthony allegedly dissipated $401,711.39 in marital retirement funds. Cheryl

discovered the dissipation of retirement funds after reviewing bank documents disclosed by

Anthony on September 18, 2019. Those bank documents do not appear in the record on appeal.

¶9 Cheryl attached an exhibit 1 to the notice of intent to claim dissipation, which was a

tabulation of the assets allegedly dissipated by Anthony. Cheryl indicated Anthony dissipated

“$325,000.00 (estimate)” from “Husband’s 401k assets” on an “unknown” date. Cheryl indicated

Anthony dissipated $51,511.39 by making 13 “Unknown retirement investment withdrawals

[that were] deposited into Husband’s Checking Account xxxxxx7552” in 2014, 2015, 2016,

2018, and 2019. The “Unknown retirement investment withdrawals” were related to “New York

Life NYL ANN” or “Integrity.” Cheryl indicated Anthony dissipated $25,200 by making 23

“Web transfers into Husband’s checking account xxxxxx7552,” related to “Unknown bank

account #xxxxxx5438 assets,” in 2016, 2017, and 2018. Exhibit 1 is depicted below.

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Cheryl’s Exhibit 1

¶ 10 On September 28, 2020, the parties appeared in the circuit court for a final hearing. At

the outset, Cheryl’s attorney made an oral motion to exclude Anthony’s testimony on the claim

of dissipation. Cheryl’s attorney argued, “my client has subpoenaed everything within her

financial means to obtain *** [Anthony’s] full retirement assets,” yet Anthony failed to

completely tender documentation related to his retirement investments. Anthony’s attorney did

not object to Anthony being excluded from testifying on the claim of dissipation.

¶ 11 Cheryl’s mother, Roberta Martin, testified at the final hearing. Roberta was asked if she

knew of retirement benefits, other than a railroad pension, possessed by Anthony. 1 Roberta

answered, “at one time *** [Anthony] told [me] while we were visiting and we were talking

about money *** ‘you’ll never have to worry about Cheryl because I have her on my 401K.’ ”

¶ 12 Cheryl also testified at the final hearing. Cheryl stated exhibit 1 contained true and

correct information. When asked how she estimated the $325,000 dissipated from Anthony’s

401(k) plan, Cheryl stated: “he had a 401K plan and I knew how much was in it when I left and

through the years, so I know over time how much he gained there now so it’s an estimate.”

1 Anthony’s “Railroad Retirement Board” retirement plan is not at issue on appeal. 4 Cheryl knew Anthony had an annuity with New York Life Insurance, but she did not remember

the value of that annuity. Cheryl stated documents related to the annuity and 401(k) plan were

not produced by Anthony during discovery. Cheryl was not aware Anthony had investments with

“Integrity.” She discovered those investments only after receiving Anthony’s bank statements.

¶ 13 On cross-examination, Cheryl was asked if she had proof to support her claim that

Anthony dissipated $325,000 from a 401(k) plan. Cheryl answered, “No[,] [i]t was known how

much *** had been in this over the years and *** what had been accrued in there.” When asked

if she had documentation related to a 401(k) plan, Cheryl stated “no” because Anthony “would

not tender any.” Cheryl testified that she prepared exhibit 1. Cheryl stated she had documentation

“showing Integrity *** [and] New York Life.”

¶ 14 During closing arguments, Anthony’s attorney argued Cheryl had not “come close to

proving dissipation.” In his view, “[t]he only thing *** [Cheryl] presented [on that claim] was a

ledger that Cheryl *** put together with her own writing.” In response, Cheryl’s attorney argued,

“the court record will show *** [Anthony] has hid everything with *** retirement, retirement

benefits, assets *** and he has refused even when the court ordered him to turn the documents

over.” Further, Cheryl’s attorney argued Cheryl “testified that everything was correct and clear”

on the face of exhibit 1. Cheryl’s attorney indicated the documentation relevant to exhibit 1 was

obtained after Anthony subpoenaed and then produced his bank records. No bank records were

produced at the final hearing. Likewise, no bank records are included in the record on appeal.

¶ 15 After receiving closing arguments, the circuit court found, on the record, Cheryl failed to

prove her claim of dissipation. The circuit court stated as follows:

“I didn’t see any evidence of any 401K. It’s not just enough for ***

[Cheryl] to say I knew it existed ***[.] I didn’t hear anywhere in the testimony

5 that she was an expert on retirement[,] where she could guesstimate that it’s

325,000 which was the biggest bulk of her thing she put together, but that’s not

evidence. It’s not evidence at all.”

The circuit court continued by stating: “You know, this is a trial. This is speculation. One side he

said there isn’t. She says there is. How do you see any evidence? You know, you say *** his

counsel should have subpoenaed. You could have subpoenaed these documents.”

¶ 16 On October 29, 2020, the circuit court entered a judgment of dissolution of marriage,

formally finding, inter alia, “CHERYL did not prove her Dissipation Claim.” The circuit court

reasoned, “ANTHONY was precluded from testifying in regard to CHERYL’s dissipation claim”

but “CHERYL did not tender any evidence of a 401K owned by ANTHONY.” The circuit court

stated Cheryl “is not an expert on retirement where she could guesstimate that it’s $325,000.00.”

¶ 17 Cheryl filed a timely notice of appeal on November 12, 2020.

¶ 18 II. ANALYSIS

¶ 19 On appeal, the sole issue is whether the circuit court erred by finding Cheryl failed to

prove Anthony dissipated marital assets under section 503(d)(2). That provision states:

“(d) In a proceeding for dissolution of marriage ***, the court shall assign

each spouse’s non-marital property to that spouse. It also shall divide the marital

property without regard to marital misconduct in just proportions considering all

relevant factors, including:

***

(2) the dissipation by each party of the marital property, provided

that a party’s claim of dissipation is subject to the following conditions:

6 (i) a notice of intent to claim dissipation shall be given no

later than 60 days before trial or 30 days after discovery closes, whichever is later;

(ii) the notice of intent to claim dissipation shall contain, at

a minimum, a date or period of time during which the marriage began undergoing

an irretrievable breakdown, an identification of the property dissipated, and a date

or period of time during which the dissipation occurred;

(iii) a certificate or service of the notice of intent to claim

dissipation shall be filed with the clerk of the court and be served pursuant to

applicable rules;

(iv) no dissipation shall be deemed to have occurred prior

to 3 years after the party claiming dissipation knew or should have known of the

dissipation, but in no event prior to 5 years before the filing of the petition for

dissolution of marriage.” 750 ILCS 5/503(d)(2) (West 2020).

In this case, the circuit court found Cheryl failed to prove the allegations made in the notice of

intent to claim dissipation under section 503(d)(2)(ii).

¶ 20 Relevantly, dissipation occurs if a spouse, at a time when the marriage is undergoing an

irretrievable breakdown, uses marital assets for his or her sole benefit and for a purpose unrelated

to the marriage. See id.; In re Marriage of Dhillon, 2014 IL App (3d) 130653, ¶ 36; accord In re

Marriage of Awan, 388 Ill. App. 3d 204, 215 (2009). A period of dissipation is calculated from

the date the parties’ marriage began to undergo an irretrievable breakdown and not from the date

the marriage was irretrievably broken. In re Marriage of Sinha, 2021 IL App (2d) 191129, ¶ 33.

¶ 21 Importantly, the spouse alleging dissipation must make a preliminary or prima facie

showing of dissipation. See id.; In re Marriage of Budorick, 2020 IL App (1st) 190994, ¶ 88.

7 Such a showing can be made with evidence of large withdrawals of cash from the parties’ bank

accounts, losses to the marital estate that were caused by the mismanagement of marital assets

over time, or cash withdrawals or expenditures that add up to a substantial amount over months

or years. See In re Marriage of Hamilton, 2019 IL App (5th) 170295, ¶¶ 80-82. A preliminary or

prima facie showing of dissipation can also be made with evidence that a spouse used marital

funds for living expenses that were selfish, excessive, and improper. See id. ¶ 81.

¶ 22 If a spouse establishes a preliminary or prima facie case of dissipation, then the burden

shifts to the other spouse to prove, by clear and specific evidence, how the marital assets were

spent. See Awan, 388 Ill. App. 3d at 216; accord Sinha, 2021 IL App (2d) 191129, ¶ 33. If the

spouse charged with dissipation does not meet the burden of adequately documenting that his or

her use of the marital assets was for a legitimate family expense, then the circuit court must find

a dissipation of the marital estate. See Awan, 388 Ill. App. 3d at 215-17; Budorick, 2020 IL App

(1st) 190994, ¶ 88. However, dissipation is merely one factor considered during the division of

marital property. In re Marriage of Berberet, 2012 IL App (4th) 110749, ¶ 51. If dissipation is

established, the circuit court may, but is not required, to charge the dissipating party. See id.;

accord In re Marriage of Foster, 2014 IL App (1st) 123078, ¶ 108; Awan, 388 Ill. App. 3d at

217. A ruling on a claim of dissipation will not be reversed unless it is against the manifest

weight of the evidence, meaning it is clearly apparent the circuit court should have reached the

opposite conclusion or the ruling was arbitrary, unreasonable, or not based on the evidence.

Dhillon, 2014 IL App (3d) 130653, ¶¶ 29, 36; accord Sinha, 2021 IL App (2d) 191129, ¶ 32.

¶ 23 Here, Cheryl argues exhibit 1 and her unrebutted testimony at the final hearing proved a

prima facie case of dissipation against Anthony. As such, Cheryl argues the allegations in the

notice of intent to claim dissipation, as supported by her testimony at the final hearing, should

8 have been taken as true unless disproved by contrary evidence. Cheryl posits Anthony could not

disprove her prima facie case of dissipation since he was excluded from testifying on that claim.

Therefore, Cheryl argues the circuit court was required to enter a finding of dissipation,

especially in light of Anthony’s alleged refusal to produce documents related to that claim.

¶ 24 Anthony responds by arguing, other than exhibit 1, which was drafted by Cheryl with

various “unknowns,” no evidence was presented to establish a prima facie case of dissipation.

Anthony argues Cheryl “failed to provide any evidence of the purported dissipation and [instead]

relied on a document,” exhibit 1, “that she herself typed.” Anthony emphasizes that there was no

evidence of a 401(k) plan, bank statements, or other documentation to support exhibit 1 or

identify the alleged dissipation. On the issue of his compliance in discovery, Anthony notes he

submitted affidavits of compliance and completeness with no knowledge of any 401(k) plan.

¶ 25 After our careful review of the record and the transcript of the final hearing, we conclude

the circuit court’s finding that Cheryl failed to prove Anthony dissipated marital assets under

section 503(d)(2) was not against the manifest weight of the evidence. Initially, the only

evidence of a 401(k) plan possessed by Anthony was exhibit 1, an out-of-court statement by

Anthony that was relayed by Roberta, and Cheryl’s own testimony. Exhibit 1, however, is a

wholly inadequate and self-serving tabulation that was admittedly prepared by Cheryl. That

tabulation does not specify the 401(k) plan at issue or provide anything other than an “unknown”

date of dissipation and an estimate of the funds dissipated. Moreover, the circuit court was not

bound by Roberta’s recounting of Anthony’s statement that “ ‘you’ll never have to worry about

Cheryl because I have her on my 401K’ ” or Cheryl’s testimony that Anthony “had a 401K plan

and I knew how much was in it when I left and through the years.” The circuit court was correct

that Cheryl was not, nor did she claim to be, an expert with the experience or qualifications to

9 opine on the approximate increasing value of the unidentified 401(k) plan to estimate, over the

course of years, the dissipation by Anthony. See People v. Lerma, 2016 IL 118496, ¶ 23.

¶ 26 Further, despite Anthony’s exclusion from testifying on the claim of dissipation, the

testimony on the 401(k) plan was not entirely unrebutted. During cross-examination, Cheryl

admitted she had no proof, other than exhibit 1 and the aforementioned testimony, Anthony

dissipated $325,000 from a 401(k) plan. See Sweilem v. Illinois Department of Revenue, 372 Ill.

App. 3d 475, 485 (2007) (stating, a fact finder may discount witness testimony after an

impeachment, contradiction by positive evidence or circumstance, or a finding of inherent

probability). In other words, even assuming Cheryl and Roberta knew of an alleged 401(k) plan,

the existence of which Anthony denies, Cheryl admitted she had no proof of the date or the

amount of the dissipation from that 401(k) plan. Without further corroboration of the claimed

dissipation of the alleged 401(k) plan under section 503(d)(2)(ii), it is not clearly apparent, even

in the context of a prima facie case, the circuit court should have reached the opposite

conclusion. See Dhillon, 2014 IL App (3d) 130653, ¶¶ 29, 36; Sinha, 2021 IL App (2d) 191129,

¶ 32.

¶ 27 With respect to the alleged “Unknown retirement investment withdrawals” and “Web

transfers,” the evidentiary deficiencies related to exhibit 1 are central to our conclusion that the

circuit court’s finding was not against the manifest weight of the evidence. Exhibit 1 was not

substantiated at the final hearing with the very evidence that Cheryl claims, for the most part,

resulted in its creation. Cheryl failed to admit Anthony’s bank statements, which allegedly

notified Cheryl of the bulk of the information contained in exhibit 1, to corroborate the figures

contained in that self-serving tabulation. In the same vein, Cheryl’s evidentiary oversight failed

to substantiate the claim that Anthony was noncompliant during discovery. Cheryl claimed to

10 possess Anthony’s bank statements, which allegedly proved the existence of a New York Life

annuity and “Integrity” investments, yet Cheryl did not admit those bank statements as evidence

validating exhibit 1 at the final hearing. Even if Cheryl’s testimony about the existence of those

assets is taken as true, there is no reliable evidence of dissipation. See Budorick, 2020 IL App

(1st) 190994, ¶ 91 (holding husband failed to set forth a prima facie case of dissipation, where he

“failed to introduce account statements or other evidence in support of his claims” and relied on

testimony of withdrawals without “attempt[ing] to tie th[e] withdrawals to those he alleged in his

notices of intent to claim dissipation”). Therefore, in relation to the “Unknown retirement

investment withdrawals” and “Web transfers,” we conclude it is not clearly apparent, even in the

context of a prima facie case, the circuit court should have reached the opposite conclusion. See

Dhillon, 2014 IL App (3d) 130653, ¶¶ 29, 36; Sinha, 2021 IL App (2d) 191129, ¶ 32.

¶ 28 Finally, we address Cheryl’s suggestion that our court should be persuaded by Anthony’s

alleged noncompliance during discovery, which resulted in Cheryl’s motion to compel discovery

disclosures and motion for discovery sanctions. It is true, in the context of a dissipation claim,

“[a]n enormous potential for prejudice lies if financial information is missing due to *** [a]

failure to comply with discovery.” In re Marriage of Brown, 2015 IL (5th) 140062, ¶ 58 (quoting

In re Marriage of Barnett, 344 Ill. App. 3d 1150, 1153 (2003)). However, here, Anthony filed

affidavits of compliance and completeness, attesting to the fact that he complied with Cheryl’s

requests for production and interrogatories. Anthony also denied having a 401(k) plan and the

record does not indicate that plan exists. Despite the parties’ conflicting positions, we conclude

the circuit court could properly find Cheryl failed to prove a prima facie case of dissipation.

¶ 29 III. CONCLUSION

¶ 30 The judgment of the circuit court of Will County is affirmed.

11 ¶ 31 Affirmed.