dissenting:
I cannot agree with the majority opinion, which reverses and remands this case to the trial court for a redetermination of the allocation of property and debts, maintenance, attorney fees, and college expenses originally made by the trial court. I would affirm the judgment of the trial court in its entirety. As the majority itself initially notes, the findings of the trial court in this type of case will not be disturbed absent a clear abuse of discretion. (In re Marriage of Pahlke (1987), 154 Ill. App. 3d 256, 507 N.E.2d 71.) I do not find that the trial judge abused his discretion as to the resolution of the above matters in this case. To reverse this case for further proceedings is contrary to the interests of judicial economy.
The majority specifically bases its reversal on what it contends was the trial judge’s erroneous finding that the respondent had dissipated certain of the marital assets. This finding was erroneous, the majority states, because the respondent had supplied the court with “exhaustive proof as to the dispersal of said funds for marital purposes.” (176 Ill. App. 3d at 728.) However, this “exhaustive proof” of the respondent’s payments of expenses is based almost exclusively on respondent’s self-serving statements and a check register prepared by respondent, since respondent, although an experienced and successful matrimonial attorney himself, maintained no business records. On the other hand, I believe that the other proper evidence presented to the trial court provided a valid factual basis for the trial court’s finding that the respondent had dissipated the marital assets.
The evidence presented by the petitioner, Sherry Calisoff, established that respondent failed to pay personal income tax obligations which resulted in a Federal tax lien on the marital home in which petitioner and the children resided. This lien ultimately resulted in a forced tax sale of the home, which required the petitioner to subsequently repurchase the home from the tax buyer, and, in order to do this, she had to take a loan of $40,000 and incur an interest obligation of an additional $3,000. The respondent had, Sherry Calisoff testified, threatened this very action when she told him she wanted a divorce in July 1981. At that time, he said he would stop paying his taxes and cause her and the children to lose the marital home. This is, of course, exactly what happened. Thus, after the house had been repurchased, and during the pendency of these proceedings, the petitioner paid the real estate taxes on the home herself.
Although respondent denied that he intentionally reduced his income to avoid paying his taxes or to decrease petitioner’s settlement award, the evidence clearly shows that respondent’s adjusted gross income, after the divorce papers were filed in 1982, dropped by over $30,000, despite a steady increase in his adjusted gross income in the prior years. His business expenditures, however, during this same period, continued to increase and became a larger percentage of his gross income. While this phenomenon was taking place, the evidence further established that the respondent began receiving a substantial amount of “loans,” from his parents, and from his paralegal and purported girlfriend, Ms. Blair. Furthermore, regarding the monies allegedly loaned by Ms. Blair, even the majority notes that “[i]t is unclear whether the money [which] respondent received from Ms. Blair constituted his [respondent’s] own earned client fees which Ms. Blair was holding during that time or [whether the loans were] from her own funds.” (176 Ill. App. 3d at 724.) Accordingly, there is evidence from which the trial court could have concluded that these loans were really a subterfuge to hide his income. In fact, respondent himself later, as noted by the majority, admitted that on occasion he had manipulated transfers of funds to hide them from the IRS. 176 Ill. App. 3d at 727.
Nevertheless, respondent claims that it was these “loans” that provided the monies necessary to meet the discrepancy between his adjusted gross income and his nonbusiness expenditures. It was also these loans, he testified, that allowed him to continue his memberships in the Standard Club, and other clubs, pay for his “business trips” to Florida, and to pay $78,543.61 of business expenses in 1984 when he allegedly earned only $39,422. But, even with these loans, that assertedly allowed him to pay his nonbusiness expenses, he says he could not pay his income taxes. As a result of respondent’s failure to pay his Federal taxes, the monies contained in the parties’ HR-10 fund accumulated during the marriage, amounting to approximately $54,000, were taken by the government to satisfy respondent’s personal tax obligations. Interestingly, prior to the separation, the respondent had faithfully paid his taxes on time by making appropriate payments as required to the Federal and State governments each year. Furthermore, during this same period, substantial funds in different savings bank accounts accumulated during the marriage were individually utilized by respondent. The bulk of the funds were dispersed into a business checking account of respondent and expended by him for his own purposes. Based upon these and other facts presented,2 I believe the trial court, which viewed the evidence and the parties first hand, had a valid basis for its finding that respondent had dissipated marital assets. Under the circumstances here, I find it incredulous that the majority holds that the meager, self-serving evidence presented by respondent met the standard of proof required and established that he had properly spent these funds.
As this court stated in In re Marriage of Smith (1984), 128 Ill. App. 3d 1017, 471 N.E.2d 1008, “the person charged with the dissipation [of marital assets] is under an obligation to establish by clear and specific evidence how the funds were spent. General and vague statements that the funds were spent on marital expenses or to pay bills are inadequate to avoid a finding of dissipation.” (In re Marriage of Smith (1984), 128 Ill. App. 3d 1017, 1022, 471 N.E.2d 1008, 1013.) It can hardly be argued here that the “proof” offered by respondent met this standard.
In addition to the proper finding regarding dissipation, I believe that the trial court, based on the facts and circumstances, also properly and equitably allocated the assets and liabilities. The allocation of marital assets must be equitable, but it need not be an equal division, and the court may properly award one spouse a greater amount, if the relevant factors warrant such a division. (In re Marriage of Rossi (1983), 113 Ill. App. 3d 55, 446 N.E.2d 1198; see Ill. Rev. Stat. 1985, ch. 40, par. 503.) The relevant factors in the situation here support the trial court’s allocation of assets and liabilities. The respondent is clearly in a superior financial position, with a superior earning capability as compared to the petitioner. The respondent enjoyed a “lucrative matrimonial practice” while the petitioner, after receiving a bachelor’s degree in education in 1960, had taught for only a few years before her marriage and spent the next 19 years as wife, homemaker and mother. In 1981, petitioner received a certificate as a paralegal and returned to the work force when the marriage was breaking up. The respondent, conversely, had graduated from Yale Law School in 1962, continuously practiced law for 25 years, specializing in domestic relations law, and, as respondent himself had testified, achieved a substantial prominence in the field, earning over $150,000 immediately prior to the separation.3 Moreover, petitioner only worked three or four days a week and did not even anticipate earning more than $12,000 a year. Furthermore, as the trial court specifically found, the respondent had dissipated the marital assets, and his asserted recent substantial decrease in his income was either “by design,” or was merely a “temporary set-back.” These facts provided an additional basis, in my opinion, for the court’s allocation of the assets and liabilities.4 I find no abuse of discretion in the trial court’s distribution of the marital property and debts between the parties here in such a situation.
I further believe that the trial court’s award of maintenance in the amount of $832 per month was proper and in accordance with section 504(a) of Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1985, ch. 40, par. 504(a)), as well as the case of In re Marriage of Wade (1987), 158 Ill. App. 3d 255, 511 N.E.2d 156, relied on in the majority opinion. The majority itself believes that the disparate circumstances between the parties warranted a maintenance award and only takes exception with the amount of the award. However, as the majority notes, this award is subject to review after two years, and thus, at that time, if the petitioner is back on her feet financially, the court could modify the amount of maintenance, if justified. Consequently, I find no abuse of discretion by the trial judge in this regard either.
Concerning the payment of the children’s college expenses, I also believe that the trial court did not abuse its discretion when it ordered respondent to pay the children’s college expenses at the University of Southern California. It is apparent that the Calisoff family had enjoyed a high standard of living prior to the divorce. Furthermore, at that time of the divorce, Joy was already attending the University of Southern California, and Adam was a junior in high school. Presently, both children are enrolled at the University of Southern California, but, as noted in the majority opinion, for the year 1986-87, Joy received a substantial scholarship award from the university. Thus, given the fact of the respondent’s proven earning capabilities, and the fact that he had experienced what appears, from the evidence, to be only a temporary reversal in his earnings, it was not unreasonable for the court to require respondent to pay these expenses. Petitioner clearly does not have sufficient funds to pay for the children’s schooling based on her meager earnings. On the other hand, the respondent, who has had a successful law practice for years, a practice that enabled him and his family to maintain a high living standard during the marriage, should be able to continue to meet his obligations, including those for the children’s schooling at the University of Southern California. The trial court is, as recognized by the majority, accorded discretion in requiring parents to pay for their children’s college expenses. (In re Support of Pearson (1986), 111 Ill. 2d 545, 490 N.E.2d 1274.) Consequently, the trial court here, based on its findings of fact, the record presented, and the prior marital history of the parties, had a reasonable basis for ordering respondent to pay the college expenses of the two children, and did not, in my judgment, abuse its discretion. Additionally, this award is also subject to review, if circumstances should radically change.
Finally, the trial court’s allocation of attorney fees, which required the respondent to pay 75% of the petitioner’s fee, was not, I believe, unreasonable. Again, in light of the trial court’s findings of fact, no abuse of discretion occurred here. The majority opinion itself finds, and I agree, that the amount of fees was reasonable. Thus, in light of the great disparate financial resources and earning potential of the parties, the allocation of petitioner’s fees to the respondent here, I believe, was proper. (See In re Marriage of Pahlke (1987), 154 Ill. App. 3d 256, 507 N.E.2d 71.) Additionally, I believe that the trial court’s determination was especially proper in this case, where the evidence clearly permits the conclusion that the respondent did everything he could to make the marital dissolution more difficult, including dissipating marital funds, concealing assets, and to a large extent, extending, unnecessarily, the proceedings at trial by his recalcitrant and uncooperative behavior.
For these reasons, I would affirm the decision of the trial court in its entirety.
There was also evidence that dividends of certain Abbell investments, jointly owned, were kept and utilized solely by respondent, that an auto insurance settlement received by Sherry Calisoff was deposited by and used by respondent, and, petitioner further asserted, that a hospital insurance settlement of a medical claim of hers was also kept by respondent.
It is interesting to note that the respondent’s adjusted gross income for the years immediately prior to the separation was in 1979, $81,441; in 1980, $93,000; and in 1981, $95,863; and, after the separation, in 1982, $62,918; in 1983, $69,042; and in 1984, $49,422. The divorce proceedings were instituted by petitioner in January 1982 and continued through 1984.
Actually, the initial distribution of assets by the court resulted in the petitioner receiving approximately 56V2% of the marital property and, only by subsequently giving minimal value or no value to respondent’s law practice was there any great disparity in the percentages of the marital property distributed to the parties. Nevertheless, the distribution remained fair under the circumstances presented here.