In re Marriage of Manker

NO. 4-06-0439 Filed 6/11/07

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In re: the Marriage of ) Appeal from the
ROBIN C. MANKER, ) Circuit Court of
Petitioner-Appellee ) Morgan County
and Cross-Appellant, ) No. 03D152
and )
PATRICIA J. MANKER, ) Honorable
Respondent-Appellant ) James W. Day,
and Cross-Appellee. ) Judge Presiding.

JUSTICE MYERSCOUGH delivered the opinion of the court:

In March 2006, the trial court dissolved the marriage

of petitioner, Robin Manker, and respondent, Patricia Manker.

Patricia appeals, arguing error in the trial court's decision (1)

to retain jurisdiction on the allocation of petitioner's

Teachers' Retirement System (TRS) pension until Patricia's TRS

pension is in pay status and (2) that Robin's automated teller

machine (ATM) withdrawals of funds from the marital checking and

savings account after the couple's separation were not

dissipation of marital funds. Robin cross-appeals, arguing that

(1) the trial court erred in its treatment of attorney fees as

dissipation of marital assets and (2) the maintenance award must

be modified if this court reverses on the issue of the trial

court's reservation of jurisdiction over the pensions. We affirm

in part, reverse in part, vacate in part, and remand with

directions.
 I. BACKGROUND

Robin and Patricia were married on June 5, 1971. Their

first son, Brad, was born in 1979. Their second son, Tyson, was

born in 1982. In February 1992, Robin began a relationship with

Karen Isom. That relationship lasted three months. On July 28,

2002, Robin moved out of the marital home. After Robin moved

out, he lived with his parents for three months. Robin testified

that he paid his parents $500 per month in rent. In 2003, Robin

began dating Isom again. On August 18, 2003, Robin filed a

petition for dissolution of marriage.

On December 7, 2004, Patricia filed a motion for

temporary relief stating that she was paying the mortgage and all

other household expenses. The motion requested that Robin's

benefit payments from TRS be divided equally so that Patricia

would receive $1,781.29 per month.

Also on December 7, 2004, Patricia filed a motion

requesting a preliminary injunction and reimbursement of assets

to the marital estate. The motion alleged that Robin had been

using marital funds to make rent payments to Isom. The motion

specifically referenced a $4,000 check written by Robin to Isom,

which was allegedly for 10 months' rent at the rate of $400 per

month. The motion also cited various expenditures made by Robin

from marital funds for improvements on Isom's home.

The motion requested that the trial court enter a

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preliminary injunction prohibiting Robin from paying marital

funds to Isom, or to any other individual or entity on her

behalf, throughout the course of the dissolution proceedings.

The motion requested the court enter an order for Robin to

reimburse the marital estate for the cost of the rent paid to

Isom and the cost of the improvements on her home. The motion

also requested Robin reimburse the estate for the cost of labor

expended in improving her home.

On January 31, 2005, the trial court entered an order

reflecting that the parties had stipulated that (1) Robin would

pay Patricia, as a marital property adjustment, $750 per month

retroactive to June 2, 2004, and continuing until the court

ordered otherwise; (2) Robin will not expend marital funds for

gifts to Isom; (3) Robin would cease any further cash payments to

Isom; (4) Robin would cease expending funds toward the repair,

upkeep, or improvement of Isom's residence or other property of

Isom's during the pendency of the dissolution proceedings; (5)

any expenses Robin contributes to Isom's household must be

reasonable; (6)reimbursement by Robin of amounts paid to Isom,

including the $4,000 in rent, will be reserved until further

order of the court; (7) Robin will pay Patricia $1,250,

representing half of the $2,500 expenditures Robin expended to

improve Isom's home; and (8) Patricia agreed to return 14

enumerated items of personal property to Robin that were in her

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possession at the time.

The trial court held a hearing on April 1, 2005. Robin

testified that he currently resided with his girlfriend, Isom.

He and Isom began living together in October 2003. Robin retired

on June 2, 2004. Robin testified that prior to the trial court's

order issued January 31, 2005, he had been paying Isom $400 per

month in rent which he paid in one lump sum in June 2004 in the

amount of $4,000 for 10 months' rent. After the court's order of

June 2, 2004, Robin agreed not to make any further rent payments

to Isom. Robin said he came to the $400 amount for rent by

comparing prices of apartments in the local paper.

Robin testified that after he moved out, Patricia was

concerned about being able to pay her bills. Robin offered to

pay the remainder of the loan balance left on her car. The

payment was $500 per month, and Robin testified he made payments

until the loan was paid in full on Patricia's car.

Patricia testified that she was currently employed as

an elementary school teacher at Washington School in School

District 117 in Jacksonville. She had worked for the past eight

years at District 117 and for five years from 1974 through 1979

(at the end of 1979 she took maternity leave and then resigned).

Patricia testified that she currently had a total of 13

years of service at District 117 and that she had been given some

credit for years she spent substitute teaching in the district.

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Patricia testified she was buying back credit for the time she

spent on maternity leave. She was purchasing the maximum amount

of credit she could, three years, for $12,000 plus $3,900 in

interest for a total of $15,900. Patricia testified that her

total years of service after buying the 3-year credit will be 16

years.

James K. Hagerman, a certified public accountant with

Kerber, Eck, and Braeckel, testified that he specialized in the

area of tax investments and financial planning. He testified for

respondent; however, it was Patricia's attorney who originally

asked him to render his opinion on the valuation of each party's

TRS pensions.

He testified that in calculating the projected value of

Patricia's pension, he assumed a retirement age of 60. On June

30, 2004, the time Hagerman made his valuation of Patricia's

pension, Patricia had accumulated 13.78 years of service credit.

In 1998, Patricia applied for an annuity benefit that would

increase the return rate on her investment in her TRS benefit

plan. She had been making payments to purchase the improved

return rate since 1998.

Hagerman explained that, to project a value for

Patricia's pension, he started with the monthly annuity, then

based on the retirement date (which for Patricia would be March

2009 based on a retirement age of 60) he would "run a stream of

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payments" from the retirement date until the end of the life-

expectancy factor. In this case, Hagerman said that it consisted

of a series of monthly payments of $1,005.15. Hagerman said he

took this stream and used an interest rate to "bring that number

back into today's dollars, which is the present value." The

reason for this is that the number is not a sum of the projected

monthly annuity, but instead it is based upon an assumed interest

rate. Hagerman said that another way of explaining the process

was that it is the amount of dollars it would take today invested

over the period of her life expectancy to earn interest at an

assumed rate that would result in the total sum, including

principal and interest, to make that series of monthly payments.

Hagerman testified that he did not take into account

any survivor benefit when calculating the projected value of

Patricia's pension. Hagerman agreed that if there were an

additional benefit for a surviving spouse included in Patricia's

pension, it would increase substantially in value. Hagerman also

acknowledged that there were other options to increase the

pension, which included buying back time taken on maternity leave

or while substitute teaching.

Hagerman said that the assumed 5.3% interest rate he

used in his calculation was based on a 30-year treasury rate as

of June 30, 2004. Hagerman said that he believed that this long-

term rate was the appropriate rate to use for the period of

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Patricia's life expectancy. Robin entered Hagerman's estimate of

the present net value of Patricia's pension as of June 30, 2004,

as respondent's exhibit No. 1. In that document, Hagerman

calculated the net value of Patricia's pension to be $161,199.

Hagerman considered this to be the marital portion of her annuity

since it was confined to the time Patricia worked as a teacher

during her marriage to Robin. Hagerman also explained that,

should Patricia die before the estimated life-expectancy date,

she would not realize the full value of her annuity. Also, if

she were to live past that date, she would realize more than the

projected value.

Hagerman then testified that joint exhibit No. 7 was a

notice of first payment by TRS to Robin. This document indicated

that Robin's gross monthly benefit was $3,562.58. Hagerman

testified that Robin's pension was in pay status, which meant the

amount represented on the exhibit was the actual amount he

receives, not an estimate.

Hagerman said that after January 1, 2010, the monthly

gross amount of Robin's pension would increase to $4,159.38.

Hagerman was unsure why Robin's pension would not increase every

year by 3% like Patricia's would, but that TRS's information did

not grant Robin's first 3% increase until 2010. However, after

2010, Robin's would also increase 3% annually. Hagerman's

personal calculation of Robin's pension was entered as

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respondent's exhibit No. 3. Hagerman used the exact same

computations to gain a present value of Robin's pension as he did

to attain the value of Patricia's. The only difference was that

Robin's life expectancy was estimated to be four years shorter

than Patricia's. Hagerman testified that this would affect the

present value of the pensions such that if a portion of

Patricia's were to be assigned to Robin, it would actually be

worth less because of his shorter life expectancy.

Hagerman also testified that the TRS estimate of

Robin's pension on June 30, 2003, before he retired, was

considerably less than what he actually received upon retirement.

The estimate at that time was $3,086.54, when he actually

received $3,562.58. Hagerman testified that Patricia's pension

would also increase due to added years of service and salary

increases after June 30, 2004. Hagerman then testified to

respondent's exhibit No. 12. Robin's attorney explained that

exhibit No. 12 was a demonstrative exhibit to show what the

historical increases in salary have been and projecting them

forward at the same percentage through 2009, Patricia's expected

retirement date. Patricia's attorney objected, stating that

Patricia's contract expired in 2005 and any increases in salary

were speculative. In the new estimate, Hagerman applied a

service credit of 18.468 years. The result was an estimate of

$1,344.57 for the marital portion of Patricia's pension.

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 On July 21, 2004, the trial court issued its memorandum

of decision. The court found that Robin's $4,000 check to Isom

for rent was a legitimate living expense and did not constitute

dissipation of marital assets. The court found that Patricia had

failed to present a prima facie case for dissipation regarding

the ATM withdrawals and the withdrawals from the savings account

made by Robin during the couple's separation. The court believed

Robin's testimony that these withdrawals were used for regular

living expenses. However, the court did find that Robin had

dissipated marital assets in the form of gifts to Isom, Isom's

use of Robin's gas card, Robin's brother's use of Robin's gas

card, and trips with Isom to Colorado, Atlanta, Indianapolis, and

Kansas City. Including the costs of meals and hotels, the court

found Robin owed $2,374.05 to the marital estate. Regarding the

trips, the trial court found that half the expenses incurred on

the trips were dissipation since Robin was going to visit his

family and it could be inferred he would have made these trips

regardless but Isom would not.

The trial court divided the assets as follows:

Patricia Robin

160 East Pennsylvania Ave. $86,000.00

Mortgage (23,439.25)

2000 Pontiac Bonneville 7,700.00

1996 S-10 Truck $3,800.00

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Tractor 2,400.00

Tax-sheltered annuity (Robin) 57,197.38

Tax-sheltered annuity (Patricia) 1,842.33

JSB-checking (Patricia) 0

JSB-savings (Patricia) 370.79

JSB-checking (Robin) 5,230.85

JSB-savings (Robin) 1,767.83

Personal property 5,562.00 215.00

14 Northvale 875.00

Camera 350.00

Miscellaneous tools 100.00

Air compressor 250.00

Computer software 354.95
___________ __________
TOTAL $78,035.87 $74,915.06

The trial court reserved jurisdiction on both Robin's

and Patricia's TRS pensions. The court stated that it intended

to divide the pensions upon Patricia's retirement using the

formula articulated by the court in In re Marriage of Wisniewski,

286 Ill. App. 3d 236, 675 N.E.2d 1362 (1997).

The order stated:

"[Patricia's] TRS plan will be divided by a

Qualified Illinois Domestic Relations Order

[(QILDRO)] in accordance with the

proportionality rule propounded in Marriage

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 of Wisniewski, 286 Ill. App. 3d 236, 243, 675

N.E.2d 1362, 1368, (1997), requiring payment

of 50% of the marital portion of the then

current and all future benefits, including

post[]dissolution increases, to [Robin]. The

marital portion of her plan shall be

determined by multiplying the benefit by a

fraction, the numerator of which shall be the

number of whole months from the date of the

marriage of the parties through the date of

this [o]rder and the denominator of which

shall be the number of whole months from the

date of the marriage of the parties through

the commencement of pay status of her plan."

(Emphasis added.)

Pending Patricia's retirement, the trial court ordered

Robin to pay Patricia $1,000 per month in maintenance. The court

found that the attorney fees of each party were approximately the

same and, in conformance with its intention to divide the marital

property 50-50, ordered the parties to pay their own attorney

fees.

On August 18, 2005, Patricia filed a motion for

reconsideration alleging that the trial court erred in retaining

jurisdiction over the parties' pensions. Patricia argued that

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the court failed to state findings as to why immediate allocation

of both pensions was inappropriate. Patricia argued that by not

allocating Robin's pension, the court left undetermined how the

payments Robin received between July 2004 and Patricia's

retirement would be treated. Patricia argued that while Robin

was given the opportunity to invest and create wealth with the

current payments, she was deprived of this opportunity. Patricia

argued that half of Robin's monthly pension payment should be

allocated to her retroactive to July 2004 and, upon her

retirement, half of her pension be allocated to Robin less the

percentage of the pension attributable to Patricia's nonmarital

effort.

On March 13, 2006, the trial court entered an amended

judgment of dissolution of marriage. The court's order, in

addition to the earlier findings in its memorandum decision that

remained unchanged, ordered Robin to pay Patricia $12,117.73 to

equitably divide the paid and unpaid attorney fees. The court

found that the attorney fees already paid by both parties

constituted dissipation of marital assets and that the unpaid

fees were marital debt.

With respect to the TRS pensions, the trial court found

(1) both plans were fully vested and entirely marital property;

(2) Patricia's pension is not in pay status and "significant

actuarial uncertainties" set forth in the record make

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determination of present value for her plan "speculative and

uncertain"; (3) Robin's pension is in pay status and "significant

actuarial uncertainties" set forth in the record make

determination of a present value for his plan "speculative and

uncertain"; (4) actuarial uncertainties preclude treating the

plans as equivalents for the purpose of offsetting the value of

one plan against the other; (5) there are insufficient marital

assets to fully offset the value of Robin's plan to allow him to

retain his entire plan; (6) there are insufficient marital assets

to fully offset the value of Patricia's plan to allow her to

retain her entire plan; and (7) reserving jurisdiction until

Patricia's plan is in pay status will enable the court to

equitably divide both plans.

With regard to both Patricia's and Robin's TRS plans,

the court found, "The plan[s] [have] value only as a stream of

future, monthly income payments, the amount and commencement of

which is uncertain."

Robin filed a motion for modification of the court's

allocation of attorney fees. On May 2, 2006, the trial court

denied Robin's motion for modification in its entirety.

This appeal followed.

II. ANALYSIS

A. The Trial Court Erred in Reserving Jurisdiction Over Robin's
TRS Pension

On appeal, Patricia argues that the trial court's

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reservation of jurisdiction over Robin's matured and vested

pension was an abuse of discretion. Patricia argues that not

receiving her share of the funds from Robin's pension deprives

her of the ability to invest her share of the pension and create

wealth.

"This court will not reverse the trial court's choice

of an apportionment method absent an abuse of discretion."

Wisniewski, 286 Ill. App. 3d at 243, 675 N.E.2d at 1368. The

trial court stated its intention was to divide the property

equally between the parties. However, it reserved jurisdiction

over the parties' pensions, which comprises a bulk of the marital

assets. The court stated that it intended to reserve

jurisdiction until the time of Patricia's retirement. However,

Patricia's retirement date was uncertain. At the time of the

hearing she was 56 years old and had no present plan to retire.

By reserving jurisdiction over both parties' pensions,

the trial court created an undesirable situation in which this

dissolution proceeding would linger for years before

apportionment applied. See Wisniewski, 286 Ill. App. 3d at 243,

675 N.E.2d at 1367 ("Disputes such as this one should not be

allowed to linger for over a decade"). "Finality, both to avoid

future court intervention and to allow the parties to plan their

futures with some certainty, is also a goal to be achieved by the

allocation and division of property." In re Marriage of Moll,

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232 Ill. App. 3d 746, 757, 597 N.E.2d 1230, 1237 (1992).

The reserved-jurisdiction approach was not appropriate

in this case when Robin's pension had matured and was in pay

status. In Wisniewski, 286 Ill. App. 3d at 241, 675 N.E.2d at

1366, this court held that when it is too difficult to assign a

present value to the marital interest in the pension or when the

"cash-out" approach is otherwise an impractical solution, the

court may reserve jurisdiction. "Under such an approach, the

court does not immediately compensate the nonpensioner spouse.

Instead, it orders that the employee spouse pay the nonemployee

spouse his or her portion of the marital share 'if, as, and when'

the pension plan becomes mature." Wisniewski, 286 Ill. App. 3d

at 241, 675 N.E.2d at 1366, quoting In re Marriage of Hunt, 78

Ill. App. 3d 653, 663, 397 N.E.2d 511, 519 (1979).

The reserved-jurisdiction approach should be used in

"situations where the amount of the retirement benefits which

will actually be paid out cannot be calculated with any certainty

at the time of dissolution of the marriage." In re Marriage of

Whiting, 179 Ill. App. 3d 187, 191, 534 N.E.2d 468, 471 (1989).

The reason for reserving jurisdiction is to avoid speculation

about the future stream of pension payments. Whiting, 179 Ill.

App. 3d at 191, 534 N.E.2d at 471.

There is no question in this case if and when Robin's

pension will mature. He was receiving, and continues to receive,

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monthly pension payments. Moreover, Robin cites no authority

supporting his position that the trial court may properly reserve

jurisdiction over his matured pension.

The trial court did provide for the method of

apportionment of Robin's and Patricia's pensions. The court

would divide Robin's pension by the QILDRO requiring 50% of the

then-current and future benefits, including postdissolution

increases, to be paid to Patricia. The court would also divide

Patricia's pension by the QILDRO in accordance with the

proportionality rule set forth in Wisniewski. Wisniewski, 286

Ill. App. 3d at 240-43, 675 N.E.2d at 1366-68. However, the fact

that Patricia's pension had not yet matured did not prevent the

court from being able to apply the formula to equitably divide

Robin's pension. The trial court heard expert testimony

regarding the present value and projected future value of her

pension. The court could choose to offset that value now and

perhaps modify the judgment if the pay out is larger or smaller

than the expert's projections when Patricia's pension matures and

goes into pay status.

Expert testimony established an approximate value of

Patricia's plan. Robin's plan was already in pay status and the

value was known with only the inherent uncertainties of life

expectancy in question. The trial court concluded:

"[T]he actuarial uncertainties of valuing the

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 defined benefit TRS pension plans of the

parties and given that different

uncertainties apply to valuation of each

plan, the [c]ourt finds it is not equitable

or actuarially possible to treat the plans as

equivalents for the purpose of offsetting the

value of one plan against the other to effect

a division of these two items of marital

property."

The trial court's characterization of Robin's pension

as "uncertain" is contrary to case law. "The value of the

retirement benefits is determined simply by how much is actually

paid out." Whiting, 179 Ill. App.3d at 191, 534 N.E.2d at 471;

see also In re Marriage of Ramsey, 339 Ill. App. 3d 752, 760, 792

N.E.2d 337, 344 (2003) ("[a]lthough the reserved-jurisdiction

method is not the only acceptable way to value a pension, when it

is used, the amount divided is the amount actually received").

Since Robin's pension is being paid out, the value of the benefit

is easily ascertainable. Robin's benefit is wholly marital too,

which makes apportioning the value of the benefit even easier

since the entire pension is marital property. The trial court

seems to have assumed that it could not treat the pensions

separately. However, by retaining jurisdiction over only

Patricia's pension, the court does not deprive either party of

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the marital portion of that benefit. Patricia receives nothing

from her pension now, nor does Robin. Contrarily, Robin is

receiving a benefit from his pension now and Patricia is

receiving nothing.

The trial court could have also used the "cash-out"

approach to determine the present value of the marital portion of

Patricia's pension and offset that with marital property, thereby

compensating Robin for awarding Patricia her entire benefit.

Either approach would have been an equitable division of the

assets by the trial court.

By reserving jurisdiction, however, the trial court has

deprived Patricia of the time-value of her portion of Robin's

pension. In other words, Patricia does not have the ability to

invest her portion of Robin's pension now in order to accumulate

wealth for later. In Wisniewski, the supreme court held that

"Illinois law has long recognized the time value of money."

Wisniewski, 286 Ill. App. 3d at 244, 675 N.E.2d at 1369.

Granted, the issue in Wisniewski was whether the earlier marital

contributions to a pension entitled the nonpensioner spouse to

reap the benefits of the accrued interest in that money over

time. However, the principle is the same. Patricia's present

inability to invest her portion of Robin's pension works to her

financial detriment. Therefore, the trial court's failure to

divide Robin's matured pension, which was in pay status and

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continues to be in pay status, was an abuse of discretion. On

remand, we direct the trial court to divide Robin's pension

according to the QILDRO. Because Robin's pension is entirely

marital, Patricia is entitled to 50% of the monthly payments.

Patricia should also receive her portion of the payments Robin

received since the date of judgment, less the $1,000 maintenance

award.

With regard to Patricia's pension, we affirm the

reservation of jurisdiction over Patricia's plan, which is not

yet in pay status. We also affirm the trial court's order

directing Patricia's pension to be allocated using the QILDRO and

the formula used in Wisniewski to determine the marital portion

of Patricia's pension belonging to Robin. However, we note that

the trial court erred in its description of the formula used in

Wisniewski. The order states:

"[Patricia's] TRS plan will be divided by a

[QILDRO] in accordance with the

proportionality rule propounded in

[Wisniewski] requiring payment of 50% of the

marital portion of the then[-]current and all

future benefits, including post[]dissolution

increases, to [Robin]. The marital portion

of her plan shall be determined by

multiplying the benefit by a fraction, the

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 numerator of which shall be the number of

whole months from the date of the marriage of

the parties through the date of this [o]rder

and the denominator of which shall be the

number of whole months from the date of the

marriage of the parties through the

commencement of pay status of her plan."

(Emphasis added.)

However, the proportionality rule in Wisniewski takes

the total monthly payout of the pension and determines the

marital portion to be the number of years of marriage that the

pensioner spouse participated in the plan as the numerator, and

the total years of service as the denominator. The trial court

then multiplies these two numbers to obtain the marital interest

in each monthly payment. Finally, the court multiplies that

number by .50 to obtain the nonpensioner spouse's share (before

taxes). This is the formula that should be applied to determine

Robin's portion of Patricia's monthly pension payments.

Therefore, we reverse the trial court's description of the

Wisniewski formula to the extent it varies from the actual

formula enunciated in Wisniewski.

B. Trial Court's Conclusions on Dissipation of Marital Assets Was
Not Against the Manifest Weight of the Evidence

Patricia argues that the trial court erred in finding

that Robin's $4,000 payment to Isom for rent was not dissipation

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of marital assets. Patricia also argues that Robin dissipated

marital funds by paying an additional $400 per month in rent

payments that totaled $2,400 to Isom, $8,450 in withdrawals from

the marital checking account, and $3,500 in withdrawals from the

marital savings account. Patricia claims that Robin failed to

establish how these funds were spent for marital purposes or

reasonable living expenses. Patricia argues that these

expenditures were made by Robin at a time when the marriage was

suffering from an irretrievable breakdown and the parties were

not living together.

Because determinations regarding dissipation of marital

assets are factual, the trial court's decision will not be

reversed unless it is against the manifest weight of the

evidence. In re Marriage of Vancura, 356 Ill. App. 3d 200, 205,

825 N.E.2d 345, 349 (2005).

Patricia argues that the fact that the initial $4,000

check for rent paid to Isom was written 10 months after Robin had

moved into Isom's home indicates it was not a necessary living

expense. In its memorandum decision, the trial court found that

Robin had dissipated $2,374.05 from marital accounts. It found

that half the expenses incurred by Robin when he took Isom on

trips were dissipation. In regard to the rent payments, the

court found that rent is a legitimate living expense and did not

constitute dissipation. See In re Marriage of Hagshenas, 234

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Ill. App. 3d 178, 197, 600 N.E.2d 437, 451 (1992). The court

held that the fact that the rent was paid to Robin's paramour did

not mandate a finding of dissipation. The nature of the payment

being one lump sum does not render the trial court's finding

contrary to the manifest weight of the evidence. Rent is a

legitimate living expense. Whether the $4,000 check in this case

constituted rent was an issue for the trial court to resolve. In

light of the evidence that Robin's rent was based on comparable

housing in the area and the fact that Robin attested to paying

his parents rent for the months he lived with them, the trial

court's finding is not without support in the record.

With regard to the ATM withdrawals, the trial court

found that Patricia had listed the amounts Robin withdrew and

claimed that it is Robin's burden to prove how the funds were

spent. The court held that "[i]t is more equitable to require a

preliminary showing of dissipation before the burden shifts to

the party charged with dissipation to refute the accusations."

The court cited In re Marriage of Murphy, 259 Ill. App. 3d 336,

339, 631 N.E.2d 893, 895 (1994). However, once a prima facie

case for dissipation has been made, the burden shifts to the

party charged with dissipation to prove by clear and specific

evidence how the funds were spent. In re Marriage of Jerome, 255

Ill. App. 3d 374, 394, 625 N.E.2d 1195, 1210 (1994). At trial,

Robin presented receipts that he claimed were a "representative

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sample" of his expenditures. He did not have documentation to

support every withdrawal. The court found that Patricia had

failed to establish a prima facie case for dissipation. The

court held that Robin testified to his routine use of the ATM and

savings account and the court believed Robin's testimony that the

money was used for regular living expenses.

The trier of fact is charged with assessing the

credibility of testimony at trial. In re Marriage of Murphy, 359

Ill. App. 3d 289, 302, 834 N.E.2d 56, 67 (2005). A reviewing

court will defer to the trial court's findings because the trial

court, "by virtue of its ability to actually observe the conduct

and demeanor of witnesses, is in the best position to assess

their credibility." In re Commitment of Sandry, 367 Ill. App.

3d 949, 980, 857 N.E.2d 295, 319 (2006).

The trial court emphasized that it "believed" Robin's

testimony regarding the withdrawals from the ATM and savings

account. Even if it found that Patricia had made a prima facie

case for dissipation, the court clearly believed Robin's

testimony that the funds were used for legitimate living

expenses. "On appeal, a reviewing court will take questions of

witness credibility as resolved in favor of the prevailing party

and must draw from the evidence all reasonable inferences that

support the judgment." Flynn v. Henkel, 369 Ill. App.3d 328,

333, 859 N.E.2d 1063, 1067 (2006). Therefore, we defer to the

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trial court's finding of credibility and affirm the court's

finding that Robin's use of marital funds for rent and living

expenses was reasonable and did not constitute dissipation.

C. The Trial Court's Treatment of Attorney Fees Was Proper

Robin argues that the trial court erred in implementing

its plan to divide the attorney fees equally between the parties.

This court will reverse a trial court's decision regarding the

division of marital assets only if it finds the trial court

abused its discretion. In re Marriage of Suriano, 324 Ill. App.

3d 839, 846, 756 N.E.2d 382, 388 (2001).

During the hearing on Robin's motion to reconsider, the

trial court said:

"I think the attorney[-]fee adjustment and

the allocation is an extremely interesting

issue that should be decided by the appellate

court. So[,] I am not going to grant the

[m]otion for [m]odification, so each side can

appeal and get this thing resolved."

The trial court found that Robin incurred $23,652.04 in

attorney fees and costs during the course of the litigation and

paid $23,414.54 from marital funds. That left an unpaid balance

of $237.50. Patricia incurred $34,130.68 in attorney fees and

costs and paid from marital funds $4,797.40. This left an unpaid

balance of $30,332.78. In its memorandum decision, the trial

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court stated that the parties' attorney fees were approximately

equal. The memorandum decision stated, "It is the intent of the

court to reach a 50/50 division of assets." The court directed

each party pay his/her own attorney fees "[c]onsidering the value

of the assets and a 50/50 division."

Robin argues the trial court made a mathematical error

when it considered the paid attorney fees as dissipation of

marital assets and allocated the unpaid attorney fees as marital

debt. Robin argues "The trial [c]ourt clearly intended that the

parties share these fees equally." However, the trial court's

order did not say that its intent was to divide the fees equally.

The memorandum decision clearly states its "intent" was to divide

the assets equally. Robin argues that "by treating the paid fees

as dissipation without also recognizing them as marital debt, the

trial [c]ourt mistakenly required Robin to pay more than one-half

of the total fees incurred." The trial court's memorandum

decision, entered before full disclosure of each party's attorney

fees, did not, however, state that the court intended each party

to pay one-half of the fees incurred; it stated its intent was to

divide the assets equally.

Contrary to Robin's argument, the trial court did not

make a mathematical error when it ordered Robin to pay Patricia

$9,308.32 for his net dissipation of marital funds.

Together, Patricia and Robin paid $28,211.94 in marital

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funds on attorney fees. Patricia paid $4,797.40 and Robin paid

$23,414.54. The court subtracted the amount Patricia paid from

what Robin paid to find the difference between Robin's and

Patricia's. That amount was $18,617.14. The trial court divided

this amount in half as half the marital funds belonged to Robin,

$9,308.32. Therefore, Robin owed Patricia $9,308.32 in funds

that would have been rightfully hers had no dissipation occurred.

Effectively, each party's apportionment of the total marital

estate is increased by $9,308.32. However, Robin has already

used his portion of the funds. If Robin had not used the money

to pay his attorney, the debt would increase by $18,617.14 and

the parties would divide that equally; however, there would be

$18,617.14 more in the marital estate to divide. Therefore, the

outcome would have been the same.

The trial court did not abuse its discretion by

allocating the remaining debt between the parties and ordering

Robin to reimburse the marital estate for $9,308.32, representing

half the funds he used from the marital account to pay his

attorney prior to the final allocation of the marital property.

D. The Trial Court's Award of Maintenance Was Not an Abuse of
Discretion But May Be Reconsidered on Remand

The trial court indicated that the $1,000 monthly

maintenance award to Patricia accounted for the court's

reservation of jurisdiction of Robin's pension. Robin does not

contest this award of maintenance, but he argues that if this

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court remands or reverses any portion of the property division,

including the TRS pension plans, the maintenance award should be

reevaluated by the trial court as well. Patricia argues that in

addition to one-half Robin's TRS pension, she should also receive

maintenance under the factors set forth in section 504 of the

Illinois Marriage and Dissolution of Marriage Act. 750 ILCS

5/504(a) (West 2004). Specifically, Patricia cites her greater

need, Robin's greater earning capacity, the impairment of her

present and future earning capacity due to her devoting time to

domestic duties and having foregone employment or career

opportunities due to marriage, the standard of living during the

marriage, and the duration of the marriage.

A reviewing court will not overturn a trial court's

award of maintenance absent a finding that either the trial court

abused its discretion or that the award of maintenance was

against the manifest weight of the evidence. In re Marriage of

Harlow, 251 Ill. App. 3d 152, 156, 621 N.E.2d 929, 933 (1993)

("The award of maintenance to a spouse is a matter within the

sound discretion of the trial court, and on appeal, we will not

reverse its decision unless it constitutes and abuse of

discretion or is against the manifest weight of the evidence."

(emphasis added)). Section 504(a)(1) lists "the income and

property of each party, including marital property apportioned

and non[]marital property assigned to the party seeking

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maintenance" as a factor courts should consider when determining

whether, and how much, maintenance to order one spouse pay the

other spouse. 750 ILCS 5/504(a)(1) (West 2004). The trial court

properly waited until after it divided the assets to award

maintenance in this case. See 750 ILCS 5/504(a)(1) (West 2004).

The trial court did not abuse its discretion when it

ordered Robin to pay Patricia $1,000 monthly maintenance award.

The trial court's comments in this case indicate the $1,000 award

of maintenance to Patricia was intended to compensate her for the

trial court's decision to reserve jurisdiction on Robin's

pension. In light of our foregoing findings that the decision to

reserve jurisdiction over Robin's pension was incorrect, the

trail court's maintenance award is vacated. After the division

of Robin's pension, the trial court should reevaluate whether

maintenance should be awarded using the factors set forth in

section 504. We note courts may consider several factors under

section 504 when awarding maintenance, and our holding here is

limited to the extent that after the allocation of Robin's

pension, the court should reevaluate its award in light of the

statutory factors.

III. CONCLUSION

Therefore, for the foregoing reasons, we reverse the

trial court's reservation of jurisdiction over Robin's pension

and remand for apportionment of this marital property, affirm the

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trial court's findings with regard to dissipation and attorney

fees, and vacate the order of maintenance. We otherwise affirm.

Affirmed in part, reversed in part, and vacated in

part; cause remanded with directions.

STEIGMANN, P.J., and APPLETON, J., concur.

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