In re: Marriage of Samardzija

No. 3-04-0517
_________________________________________________________________
filed June 9, 2006.
IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2006
_________________________________________________________________

In re MARRIAGE OF ) Appeal from the Circuit Court
ROD SAMARDZIJA, ) of the 12th Judicial Circuit,
) Will County, Illinois,
Petitioner-Appellee, )
) No. 02-D-371
and )
)
LILLY SAMARDZIJA, ) Honorable
) Robert J. Baron,
Respondent-Appellant. )Judge, Presiding.
_________________________________________________________________

JUSTICE SLATER delivered the opinion of the court:
_________________________________________________________________

The marriage of petitioner Rod Samardzija and respondent Lilly Samardzija was

dissolved on February 27, 2004. Respondent raises various issues on appeal

concerning the distribution of the parties' property, the timing and permanency of

maintenance, payment of attorney fees and credit card debt, and the propriety of a

geographic limitation imposed by the trial court. We affirm in part and reverse in part

and remand.

Facts

To avoid repetition, we will initially present only a brief overview of the facts.

Additional testimony and other evidence will be set forth as necessary in the context of

resolving particular issues.
 The parties were married on September 8, 1996, and during most of the

marriage they resided in Orland Park, Illinois. Two children were born during the

marriage: Tanja, born June 18, 1997, and Maya, born January 7, 2000. Respondent

has a certificate as a lab technician from a community college in Yugoslavia. She

worked for 10 months in an oncology laboratory in Belgrade, analyzing blood samples.

After immigrating to the United States in 1992, she worked for two physicians in Ohio.

Respondent then worked for a modeling management agency for 10 months. After

getting married respondent worked in the jewelry department at Marshall Field's during

the Christmas season. She did no other work during the marriage because her

husband wanted her to stay at home and raise their children. Respondent was 35 years

old at the time the dissolution judgment was entered.

Petitioner is president of Gremp Steel Company, a corporation owned primarily

by petitioner and other family members. Petitioner owns 25% of the company's shares,

which were received from his parents. The company regularly paid "profit bonuses" to

shareholders. The company loaned petitioner $112,000, which was used in building a

home for the couple in Orland Park. Petitioner repaid the loan by returning the bonuses

he was given. According to Norman Diamond, the accountant for Gremp Steel, the

bonuses were paid to petitioner because he was a stockholder, not because of his

employment. Petitioner's salary was set annually by the board of directors, which

consists of petitioner, his mother, his brother, his uncle, and Norman Diamond. The trial

court found that petitioner's average annual salary was $160,000. Petitioner was 44

years old at the time the marriage was dissolved.

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 The primary marital asset was the Orland Park residence, which the parties

began building after they were married and which was completed in September of 1998.

The home, which was titled in petitioner's name only, was built on a lot purchased by

petitioner prior to the marriage. The lot was valued at $61,000 and the home was

valued at $360,000 by petitioner's appraiser, as of the date of completion. The

appraised value as of June, 2003, was $445,000. Petitioner testified that he received

$125,000 from the sale of his house in South Holland in December of 1997. He put

$50,000 in a certificate of deposit and $75,000 in a joint account, which was then used

to build the Orland Park home. That money, plus the $112,000 petitioner borrowed

from Gremp, constituted the majority of the funds used to build the home, which cost

nearly $300,000. The indebtedness was repaid by returning petitioner's profit bonuses

to Gremp, plus payments of $500 made from petitioner's paycheck.

The trial court divided the marital estate as follows:

Petitioner:

1/2 of the First Midwest checking account $3,300
Cash surrender value of the
ING life insurance policy $14,000
1/2 half of the marital portion of the
Gremp Steel retirement account $29,600
$46,900

Respondent:

Bank One checking account $500
1/2 of First Midwest checking account $3,300

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 1/2 of Gremp Steel retirement account $29,600
Honda Minivan $18,000
$51,400

The court also found that the Orland Park home was petitioner's non-marital

property, but ruled that $140,000 of marital funds should be reimbursed to the marital

estate. Those funds were distributed to respondent in the amount of $100,000, while

petitioner received $40,000. Each party was made responsible for their own attorney

fees and debts, including $38,000 in credit card debt accumulated by respondent since

the parties had separated. Petitioner received non-marital property, not including the

Orland Park house, valued at $417,000.

In addition to the above, the trial court ordered petitioner to pay 28% of his

income as child support, a monthly payment of $2,517. Petitioner was also ordered to

pay respondent $2,000 per month in rehabilitative maintenance for a period of 36

months.

Analysis

Respondent first contends that the trial court erred in classifying the Orland Park

home as non-marital. Respondent argues that the use of some non-marital funds to

build the home did not overcome the presumption that it was marital property. We

agree.

Section 503(a) of the Illinois Marriage and Dissolution of Marriage Act (Marriage

Act) (750 ILCS 5/503(a) (West 2004)) provides that all property acquired by either

spouse during marriage is marital property unless it was acquired in certain specified

ways, such as by gift or devise. Section 503(b)(1) creates a presumption that property

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acquired during marriage is marital, regardless of how title is held. In addition, section

503(c)(1) states that "if marital and non-marital property are commingled into newly

acquired property resulting in a loss of identity of the contributing estate, the

commingled property shall be deemed transmuted to marital property." 750 ILCS

5/503(c)(1) (West 2004). The trial court's classification of property as marital or non-

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

re Marriage of Johns, 311 Ill. App. 3d 699, 724 N.E.2d 1045 (2000).

In this case the trial court found that the home "was not transmuted" and

"remain[ed]" non-marital property, although the court also ordered $140,000 to be

contributed back to the marital estate. It appears that the court believed that because

the house was titled in petitioner's name, and because he contributed a substantial

amount of non-marital funds towards the cost of building the house, it was

presumptively non-marital. However, the presumption that property acquired during the

marriage is marital applies "regardless of whether title is held individually or by the

spouses in some form of co-ownership." 750 ILCS 5/503(b)(1) (West 2004); see In re

Marriage of Ohrt, 154 Ill. App. 3d 738, 507 N.E.2d 160 (1987) (finding home was marital

despite fact that husband's name alone was on title). Moreover, "[a] marital residence

owned by both spouses, even if one spouse has furnished all the consideration for it out

of non-marital funds, will be presumed to be marital property absent clear and

convincing rebutting evidence." Marriage of Johns, 311 Ill. App. 3d at 703, 724 N.E.2d

at 1048.

Accordingly, we find that the Orland Park home, built by the parties during the

marriage, was presumptively marital property. Although petitioner contributed non-

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marital funds towards the home's construction, as well as the lot on which it was built,

marital funds from petitioner's paychecks were used to partially satisfy the loan from

Gremp Steel. Under the circumstances, the presumption of marital property has not

been overcome. We therefore reverse the trial court's finding that the home was non-

marital. We remand for recalculation of the home's value and for determination by the

court regarding any credit due for contributions of non-marital funds. We note that on

remand the trial court is not bound by its original proportions in distributing the equity in

the marital home. We also reject respondent's argument that, because she has custody

of the parties' children, the trial court abused it's discretion in not awarding her the

marital home. Although it is desirable to keep children in the family home for the

stability it affords, that factor may be outweighed by the need to give the parties

sufficient income with which to rebuild their lives. In re Marriage of Clabault, 249 Ill.

App. 3d 641, 619 N.E.2d 163 (1993). The Orland Park home was, by far, the primary

asset of the marital estate. Awarding it to respondent would potentially have required

respondent to reimburse a substantial amount to petitioner's non-marital estate, a

seemingly unrealistic proposition. We find no abuse of discretion.

Respondent next contends that the profit bonuses which petitioner loaned back

to Gremp Steel were a marital asset which should have been included in the division of

marital property. We disagree. Norman Diamond, the accountant for Gremp Steel,

testified that the shareholders, including petitioner, would sometimes receive "profit

bonuses" which they would then loan back to the company. According to Diamond, the

bonuses were only given to stockholders and were not based on employment. Since it

is undisputed that the Gremp Steel stock was a gift from petitioner's parents, it was non-

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marital property, as was the income, or "bonuses" flowing from that property. See ILCS

5/503(a)(1),(8) (West 2004) (income from property acquired by gift is non-marital

property). In addition, Diamond testified that he did not believe that petitioner had ever

put any money into the company other than loaning back the profit bonuses and

dividends. Respondent mistakenly relies on In re Marriage of Schneider, 214 Ill. 2d

152, 824 N.E.2d 177 (2005), in which the court held that accounts receivable should be

included in determining the value of a dental practice. The issue in Schneider was the

proper valuation of a marital asset, not the effect of loans by a spouse of non-marital

funds to a non-marital asset. We find no error.

Respondent next asserts that the trial court abused its discretion in failing to

make the award of maintenance retroactive to the date of filing of the petition for

dissolution. She also maintains that the trial court should have awarded permanent

maintenance.

The trial court has broad discretion in determining the propriety, amount and

duration of a maintenance award, and its judgment will not be disturbed absent an

abuse of discretion. In re Marriage of Rogers, 352 Ill. App. 3d 896, 817 N.E.2d 562

(2004). In addition, whether to make a modification of maintenance retroactive is also a

decision within the trial court's discretion. Brandt v. Brandt, 99 Ill. App. 3d 1089, 425

N.E.2d 1251 (1981). In this case the record shows that an order of temporary

maintenance in the amount of $150 per week was entered in August of 2001. That

obligation was modified in April of 2002 to $300 per week in unallocated family support.

In the dissolution judgment, respondent was awarded rehabilitative maintenance of

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$2,000 per month for 36 months. This was in addition to child support paid by petitioner

in the amount $2,517 per month.

With regard to the issue of retroactivity, the essence of respondent's argument is

that the initial amounts were too low, which resulted in an overuse of credit cards and

cash advances, totaling $38,000. She asserts that she does not have the financial

ability to pay off the credit card debt, thereby justifying an award of retroactive

maintenance. However, the trial court specifically addressed the issue of respondent's

credit card debt, finding that "the credit card bills that were run up *** were outside the

scope of what she should have done in this case without court permission. It was sort

of a frolic on her own. I just think she is going to assume those own [sic] bills herself."

The record supports the court's ruling, given respondent's testimony that among the

items charged were a $1,300 suit of clothes, a $1,900 fur coat, $879 in sportswear, a

$939 crystal ball, and over $600 for two wedding gifts. We find no abuse of discretion.

With regard to the permanency issue, section 504 of the Marriage Act sets forth

various factors to be considered in awarding maintenance, including the income and

property of each party, their present and future earning capacity, the time necessary to

acquire appropriate education, training and employment, a party's ability to support

herself, the duration of the marriage and the standard of living established during it, the

age and physical and emotional conditions of the parties, and any other factor that the

court finds to be just and equitable. 750 ILCS 5/504(a) (West 2004). A court is not

required to give equal weight to each factor, so long as the balance struck by the court

is reasonable. In re Marriage of Miller, 231 Ill. App. 3d 480, 595 N.E.2d 1349 (1992).

Respondent argues that permanent maintenance should have been awarded because

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she has never earned more than eight dollars per hour and she has some difficulty

speaking English.

Maintenance is intended to be rehabilitative in nature to allow a dependent

spouse to become financially independent. Permanent maintenance is appropriate,

however, where a spouse is unemployable or employable only at an income

substantially lower than the previous standard of living. Nevertheless, the recipient

spouse has a good faith obligation to become self-sufficient, while using the

maintenance award to help during the transition period. In re Marriage of Haas, 215 Ill.

App. 3d 959, 574 N.E.2d 1376 (1991). Under the abuse of discretion standard, the

question is not whether this court might have decided the issue differently, but whether

any reasonable person could have taken the position adopted by the trial court. See

Marriage of Miller, 231 Ill. App. 3d 480, 595 N.E.2d 1349.

The trial court found that respondent was "college educated and is a bright,

resourceful and employable person." The court commented on respondent's work

experience in the medical laboratory field and stated that she was capable of earning

income. The court also noted that the duration of the marriage was not long. These

observations are supported by the record and provide insight into the court's rationale,

which cannot be characterized as unreasonable. We find no abuse of discretion.

Respondent next contends that the trial court abused its discretion in denying her

motion to allow her, three weeks prior to trial, to seek new counsel. The trial court noted

in the dissolution judgment that respondent "employed five attorneys during the course

of these proceedings, resulting in delays in resolving the issues and increased cost to

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both parties due to the time required by each new attorney to familiarize himself or

herself with the case." We find no abuse of discretion.

In a related issue, respondent also argues that the trial court should have

ordered petitioner to pay her attorney fees. Generally, attorney fees are the

responsibility of the party who incurred them, although section 508 of the Marriage Act

does allow the court to order a party to pay another party's fees. In re Marriage of Keip,

332 Ill. App. 3d 876, 773 N.E.2d 1227 (2002); see 750 ILCS 5/508(a) (West 2004). The

trial court's decision with regard to the payment of fees will not disturbed absent an

abuse of discretion. Marriage of Keip, 332 Ill. App. 3d 876, 773 N.E.2d 1227.

In finding that respondent should be responsible for her own attorney fees, the

trial court ruled that she had engaged in actions "designed to delay and harass"

petitioner, including the failure to comply with discovery orders and orders for

depositions, thereby prolonging the case and causing petitioner additional expense.

The court also noted that petitioner had contributed $3,500 towards the fees of one of

respondent's attorneys, and that the parties 2001 income tax return of $22,000 was

equally divided for the purpose of paying attorney fees. Under the circumstances, we

find no abuse of discretion.

Respondent also asserts that petitioner should have been ordered to pay the

$38,000 in credit card debt accumulated during the parties' separation. As we noted in

our discussion of retroactive maintenance, the trial court was skeptical of the necessity

of much of that debt, characterizing it as a "frolic." We find no abuse of discretion.

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 Finally, respondent maintains that the trial court erred in ordering her not to move

the childrens' residence more than 25 miles from Orland Park without petitioner's

consent or by court order. We agree.

In general, a parent with primary physical custody of the children need not obtain

judicial approval before moving to another location within Illinois (In re Marriage of

Seitzinger, 333 Ill. App. 3d 103, 775 N.E.2d 282 (2002); In re Marriage of Wycoff, 266

Ill. App. 3d 408, 639 N.E.2d 897 (1994)), although the parties can impose geographic

limitations by agreement Marriage of Seitzinger, 333 Ill. App. 3d 103, 775 N.E.2d 282; In

re Marriage of Means, 329 Ill. App. 3d 392, 771 N.E.2d 501 (2002)). In addition,

consistent with the trial court's broad powers in custody matters, it may condition

custody upon the custodian living within a reasonable distance from the non-custodial

parent to facilitate visitation. Marriage of Seitzinger, 333 Ill. App. 3d 103, 775 N.E.2d

282; In re Marriage of Manuele, 107 Ill. App. 3d 1090, 438 N.E.2d 691 (1982).

The only two reported cases in Illinois which directly address the propriety of

court-imposed geographical restrictions both reversed the trial court. The Manuele

court rejected a limitation to Sangamon county as unreasonably restrictive, while

Seitzinger ruled that a restriction to Sangamon or Cass county was arbitrary because

geographic location did not necessarily determine ease of visitation. Neither case

provides much guidance in evaluating the reasonableness of a geographical restriction.

Nevertheless, we believe that such limitations should only be imposed where the

evidence presented establishes a specific need to do so. This is consonant with the

principle that "[c]ustodial parents should not be expected to give up careers for the sake

of remaining in the same geographical location." Marriage of Wycoff, 266 Ill. App. 3d at

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416, 639 N.E.2d at 904, quoting In re Marriage of Good, 208 Ill. App. 3d 775, 778, 566

N.E.2d 1001, 1003 (1991). This is also in keeping with the general rule of allowing a

custodial parent to move freely within the state. See Marriage of Means, 329 Ill. App.

3d at 397, 771 N.E.2d at 505 (describing "general rule" that custodial parent may move

anywhere in Illinois without judicial approval).

The only justification offered by petitioner in support of the restriction imposed by

the court is a provision in the joint parenting order granting petitioner a "right of first

refusal" to take care of the children on those occasions where respondent would be

away for more than two hours and would have engaged a babysitter. Petitioner argues

that without the 25-mile restriction he would be unable to reach the children promptly,

and his right to care for the children would be meaningless.

Assuming for the sake of argument that moving beyond the 25-limit would

interfere with petitioner's ability to care for the children in respondent's absence, we do

not believe that it justifies a preemptive geographic restraint. The case law suggests a

presumption in favor of allowing freedom of movement within the state, and overcoming

that presumption requires a more compelling reason than simply avoiding

inconvenience to the non-custodial parent. As nothing else in the record appears to

support the 25-mile restriction, we find that imposing it was an abuse of discretion, and

it is reversed. We point out, however, that our ruling has no preclusive effect with

regard to future determinations by the trial court concerning any relocation by

respondent. See, e.g., In re Marriage of Main, 361 Ill. App. 3d 983, 838 N.E.2d 988

(2005) (in considering change of custody, trial court may consider whether custodial

parent's decision to move to distant location within Illinois was motivated by desire to

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frustrate non-custodial parent's visitation rights). We also note that our reversal on this

issue and on the classification of the parties' home should not be construed as a

criticism of the trial court. On the contrary, the court's professionalism and

thoroughness was evident from its extensive notes and detailed judgment.

In summary, we reverse the trial court's classification of the Orland Park home as

non-marital property. We remand for recalculation of the home's value, for a

determination of any credits due to petitioner's non-marital estate, and for equitable

distribution of the home as a marital asset. We also reverse the 25-mile residence

restriction imposed on respondent. The remainder of the trial court's judgment is

affirmed.

For the reasons stated above, the judgment of the circuit court is affirmed in part,

reversed in part and remanded.

Affirmed in part and reversed in part; cause remanded.

McDADE and LYTTON, J.J., concur.

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