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.
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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
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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.
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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.
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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
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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.
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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.”
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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.
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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.
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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
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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
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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
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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.
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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.”
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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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No. 1-15-2370
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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No. 1-15-2370
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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No. 1-15-2370
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
22
No. 1-15-2370
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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No. 1-15-2370
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
marital property.
¶ 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.
25
No. 1-15-2370
¶ 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.
26
No. 1-15-2370
¶ 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
evidence.
¶ 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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No. 1-15-2370
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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No. 1-15-2370
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
30
No. 1-15-2370
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).
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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
33
No. 1-15-2370
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
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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.
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