In Re Marriage of Mouschovias

PRESIDING JUSTICE COOK

delivered the opinion of the court:

Petitioner, Janice V Mouschovias, and respondent, Telemachos Ch. Mouschovias, were married June 20, 1987. Three children were born as a result of the marriage, Alexander, born August 30, 1991, Margarita, born September 14, 1993, and Adonis, born May 22, 1996. Janice filed a petition for dissolution of marriage on September 17, 1996. On October 28, 2003, the court entered its final order on all remaining issues. Telemachos appeals. Janice cross-appeals. We affirm.

I. BACKGROUND

Janice, age 43, has a bachelor of science degree in physical education. She and the children reside in a single-family dwelling in Urbana, Illinois. She rents the dwelling from a land trust owned by her father. The court found that Janice was a “super hardworking primary caretaker of the home and the children.” The court found that Janice, relatively young and in good health, is clearly capable of supporting herself. During the 2002-03 school year, she was employed full-time at a local Catholic high school, at an annual salary of $24,307.

Telemachos, age 57, is a tenured professor at the University of Illinois (University), teaching in two departments (physics and astronomy). He continues to reside in the former marital residence in Urbana, which is his nonmarital property. The trial court found Telemachos to be “the super hardworking primary breadwinner in the family” and “an astute financial investor.” Telemachos has a pension plan administered by the State Universities Retirement System (SURS). He was first certified into the system August 21, 1980. Telemachos earned between $90,000 and $100,000 per year from the University.

The trial court noted that the parties engaged in one of the most miserly standards of living imaginable considering their income and assets. The court referred to testimony regarding the disrepair of appliances in the household, the lack of heat in the home, the fact that Janice did not have money to purchase necessary food items and had to submit receipts to be reimbursed for even minor household expenses, Janice’s lack of a vehicle for 14 months, Telemachos’s use of a 1980 vehicle that was highly unreliable and unsafe for the children, and the high state of disrepair and environmental hazards in the home. The year preceding the parties’ separation, the annual family expenses were a “miserly $22,000 for a family of five with a husband earning a substantial University income” and holdings of over $2 million in liquid assets.

The trial court denied Janice maintenance, noting the parties only lived together for nine years followed by five years of litigation; Janice had received “minimal” temporary maintenance of $500 per month during the litigation. The court also noted that as a part of its order Janice would receive marital assets valued at $522,745 in addition to her interest in Telemachos’s rather substantial retirement account.

Janice was awarded one-half of the marital portion of Telemachos’s SURS pension, “if, as[,] and when” the pension is received by Telemachos.

The trial court stated it would normally have considered an unequal distribution of the marital property in Janice’s favor because Telemachos’s contributions as breadwinner were offset by Janice’s contributions as homemaker, Telemachos was in a much better position to acquire future assets, and Telemachos had nonmarital property set off to him valued at $446,026 as opposed to $1,054 to Janice. The court chose not to do that in this case because of Telemachos’s substantial contribution of nonmarital funds to the marital estate, which were unable to be traced. The court calculated the total value of the marital property to be $1,141,204 and awarded 50%, $570,602, to each party. Janice’s share was reduced by a $47,857 attorney-fee reimbursement. Telemachos’s share was increased by that same amount.

To carry out its division, the trial court awarded nine marital accounts, with a value of $136,572, to Janice. The court awarded eight marital accounts, together with a nonmarital account that owed the marriage a $42,252 reimbursement, to Telemachos. The total value of those eight accounts was $1,004,631. Among those eight accounts were a Vanguard Prime Money-Market Fund, which had been opened by Telemachos before the marriage, and a Vanguard 500 Index Fund, which Telemachos had opened five days before the marriage. The Vanguard Prime Money-Market Fund had a current balance of $20,361. The Vanguard 500 Index Fund had a current balance of $527,072. To equalize the property settlement, Telemachos was ordered to pay Janice $386,172.

Telemachos was also assigned seven nonmarital accounts valued at $446,026, plus his nonmarital residence with an equity of $81,680. Janice was assigned as her nonmarital property her Teacher’s Retirement System Account, valued at $1,054.

In its order of October 28, 2003, the trial court noted that the parties had allowed their hatred and bitterness for each other to inhibit any analysis or rational thinking. The result was an inability to agree on just about any issue, to litigate every conceivable issue, to take up huge amounts of court time, and to amass a small fortune in attorney fees and expenses incurred. Between June 13, 1997, and March 20, 1998, the trial court conducted some 15 hearings on temporary custody and visitation issues. Between February 2, 1999, and February 10, 2000, the court conducted another 18 hearings on permanent custody and visitation. Between February 20, 2001, and February 28, 2003, the trial court conducted 20 hearings on the remaining ancillary issues. On September 3, 2002, Telemachos’s attorney was granted leave to withdraw, and Telemachos represented himself, pro se, from that point in the litigation.

During the proceedings, the trial court awarded interim attorney fees and costs to Janice on six occasions, totaling $135,714. Telemachos initially paid that entire amount, but because the interim awards were considered an advance from the marital estate, Telemachos was given a credit in the final order. Although the court found both parties “share the blame for this war,” the court further found that Telemachos unreasonably continued the custody dispute after the court had ruled against him on temporary custody. Accordingly, the court ordered that Telemachos would be individually responsible for Janice’s attorney fees to the extent of $40,000 and the balance, $95,714, would be divided equally between the parties. As Telemachos had previously paid the $135,714, Janice was ordered to reimburse the marital estate $95,714 (reimburse Telemachos $47,857).

II. ANALYSIS

A. SURS Pension

Telemachos argues the trial court erred in awarding Janice a portion of his SURS pension benefits, “if, as[,] and when” those benefits are received. He also argues that if any part of his earnings after dissolution of the marriage were regarded as marital, that would amount to involuntary servitude in violation of the thirteenth amendment (U.S. Const., amend. XIII).

There are at least two alternate procedures for apportioning unmatured pensions upon dissolution. In re Marriage of Wisniewski, 286 Ill. App. 3d 236, 241, 675 N.E.2d 1362, 1366 (1997). Under one approach, the trial court, upon dissolution, determines the present value of the pension, determines the marital interest in the pension, and awards the nonpensioner spouse other marital property to compensate for the award of the entire pension to the pensioner spouse. Wisniewski, 286 Ill. App. 3d at 241, 675 N.E.2d at 1366-67. Under the second approach, the court does not immediately compensate the non-pensioner 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. In re Marriage of Hunt, 78 Ill. App. 3d 653, 663, 397 N.E.2d 511, 519 (1979). At the time of dissolution, the court can devise a formula that will later determine both the marital interest and the nonpensioner’s share in the benefits. This formula produces a percentage, which will be multiplied by the pension payments as they are actually received. Hunt, 78 Ill. App. 3d at 663, 397 N.E.2d at 519.

Both parties here asked for an immediate offset of the SURS pension. The trial court declined to do so for a number of reasons: (1) Telemachos’s retirement date was probably not close; (2) there was a tremendous discrepancy in the opinions of the present value of the pension, Telemachos’s expert valuing it at $124,116 and Janice’s expert valuing it at $669,498; (3) a “clean break” between the parties was impossible because their three children “will require, unfortunately, substantial involvement between the parties in the future”; and (4) Janice’s concerns that Telemachos would leave the country are speculative as Telemachos has appropriately complied with court orders, and in any event, SURS is based in Champaign and could possibly be joined as a third party if emergency circumstances occur. We conclude the trial court did not abuse its discretion in its choice of an apportionment method. See Wisniewski, 286 Ill. App. 3d at 244, 675 N.E.2d at 1368.

We disagree with Telemachos’s argument that consideration of any part of his earnings after the dissolution is improper. Part of the benefits that Telemachos will accrue after the dissolution will be due to marital contributions, contributions he made during the marriage. The trial court was not required to ignore those marital contributions. Wisniewski, 286 Ill. App. 3d at 243-47, 675 N.E.2d at 1368-70.

B. Classification of Marital and Nonmarital Property

Telemachos argues the trial court erred in classifying the Vanguard Prime Money-Market Fund and the Vanguard 500 Index Fund, both of which had been opened by him before the marriage, as marital property. Even if the court erred in its classification, however, we see no error. The court is required to “assign each spouse’s non- [ Imarital property to that spouse.” 750 ILCS 5/503(d) (West 2002). That was done here. The two funds were awarded to Telemachos. Classification of the accounts as marital arguably resulted in Janice receiving a greater share of the other marital assets. The court is allowed to take nonmarital property into consideration, however, in determining what share of the marital property should be awarded the parties. The court shall divide marital property in just proportions considering all relevant factors, including “the value of the property assigned to each spouse.” 750 ILCS 5/503(d)(3) (West 2002). The trial court stated it would have awarded a greater share of the marital assets to Janice but for “the nonmarital property contributed to the marital funds by [Telemachos] which were unable to be traced.” The court was well aware of the parties’ marital and nonmarital contributions. The court’s distribution of marital assets was proper even if its classification of the two accounts was not and there were fewer marital assets than the court had calculated.

However, we conclude the two funds were properly classified as marital. “[P]roperty acquired before the marriage” constitutes non-marital property. 750 ILCS 5/503(a)(6) (West 2002). “Property,” however, must have some identity, some integrity. A mere receptacle (a bucket?), owned by a party before the marriage, into which he places marital property, is not sufficient to invoke the rule that “contributing one estate of property into another resulting in a loss of identity of the contributed property” transmutes the classification of the contributed property to that of the estate receiving the contribution. 750 ILCS 5/503(c)(l) (West 2002). “We believe that to hold that those funds were transmuted to nonmarital property would contravene the intent behind section 503(c) of the [Illinois Marriage and Dissolution of Marriage] Act [(Dissolution Act)] (750 ILCS 5/503(c) (West 1998)).” In re Marriage of Henke, 313 Ill. App. 3d 159, 168, 728 N.E.2d 1137, 1143 (2000). Henke involved a checking account that was in existence prior to the parties’ marriage. In holding that the funds in the account were marital, the trial court relied on the facts that the amount of marital funds contributed greatly exceeded the amount of nonmarital funds initially present, and funds were deposited and withdrawn during the marriage and used to pay family expenses. Henke, 313 Ill. App. 3d at 168, 728 N.E.2d at 1144. Henke recognized that the right of reimbursement could be of little value with such an asset after a marriage of 16 years. Henke, 313 Ill. App. 3d at 167, 728 N.E.2d at 1143; cf. 1 H. Gitlin, Gitlin on Divorce § 8 — 10(c), at 8 — 57 n.40 (May 2002) (Second District in Henke did not adhere to the statutory prescription of section 503(c)(1)).

We agree with Henke. A party should not be allowed to defeat the fundamental concept that all property acquired during the marriage is marital property by opening a checking account in his name and placing a meager amount in that account before the marriage, then depositing all his paychecks into that account after the marriage. We recognize Henke did not employ this precise analysis. Henke stressed the fact that the parties did not dispute the checking account at issue, in existence prior to the parties’ marriage, was initially nonmarital property. Henke, 313 Ill. App. 3d at 167, 728 N.E.2d at 1143. Other cases addressing the issue have also assumed that the account itself took on the identity of either a marital or a nonmarital asset based on the type of funds used to initially establish the account. See In re Marriage of Phillips, 229 Ill. App. 3d 809, 594 N.E.2d 353 (1992); In re Marriage of Perlmutter, 225 Ill. App. 3d 362, 587 N.E.2d 609 (1992). The parties here did dispute whether these accounts were nonmarital property.

When a brokerage account is established during a marriage with nonmarital funds and marital funds are later added to that account, you do not have a situation where one estate of property is contributed “into another resulting in a loss of identity of the contributed property.” 750 ILCS 5/503(c)(1) (West 2002). Instead, you have a situation where “marital and non[ ]marital property are commingled into newly acquired property resulting in a loss of identity of the contributing estates.” 750 ILCS 5/503(c)(l) (West 2002); In re Marriage of Davis, 215 Ill. App. 3d 763, 770, 576 N.E.2d 44, 48-49 (1991). There is not a loss of identity by one estate; there is a loss of identity by both estates. In that situation, “the commingled property shall be deemed transmuted to marital property.” 750 ILCS 5/503(c)(1) (West 2002). Unlike, for example, the situation where $100,000 of nonmarital funds are used to purchase a residence and then $100,000 of marital funds are used over the years to maintain the residence, it makes little difference whether $100,000 of marital funds are placed in an account before or after $100,000 of nonmarital funds are placed in that account. The exact same asset has been contributed by each estate, and the result is newly acquired property, not a loss of identity of the contributed property while the receiving property maintains its identity. We do not see it as particularly significant that the brokerage account in Davis was opened after the marriage while the accounts here were opened prior (in one case five days prior) to the marriage. We should ignore the receptacle and look to the funds.

The trial court made several findings regarding these accounts. First, it was never clear to the court from the evidence presented exactly what funds were owned by Telemachos immediately prior to the marriage. Second, myriad transfers occurred among the various accounts during the marriage. Third, many of the investments were funded during the marriage by withdrawals from Telemachos’s checking account where his University paycheck was deposited. Fourth, evidence showed that during the nine years of the marriage, the parties expended very little of Telemachos’s University income. Telemachos’s University income over the period of the marriage and the period between the dissolution filing and the entry of the judgment on grounds would certainly account for a substantial amount of the investments.

“A trial court’s property classification will not be disturbed unless it is contrary to the manifest weight of the evidence.” Henke, 313 Ill. App. 3d at 166, 728 N.E.2d at 1143. A court’s decision is contrary to the manifest weight of the evidence where the opposite conclusion is clearly evident or where its findings are unreasonable, arbitrary, and not based upon any of the evidence. Maple v. Gustafson, 151 Ill. 2d 445, 454, 603 N.E.2d 508, 512-13 (1992). The trial court carefully considered the voluminous testimony in this case, made detailed findings, and entered a thorough, reasoned order. The trial court’s decision was well-supported by the evidence.

At trial, Telemachos offered a multipage document showing his calculations of the growth of marital and nonmarital assets in the various accounts. The trial court excluded the document on the basis it had not been timely disclosed. Even assuming the trial court erred in excluding the document, we are confident Telemachos had a full opportunity to present his theory of the case in these lengthy proceedings.

C. Reimbursement of the Marital Estate

Telemachos argues that the trial court improperly ordered him to reimburse the marital estate $45,252 from his nonmarital Vanguard Windsor individual retirement account (IRA). He argues that Janice failed to retrace any marital contributions “by clear and convincing evidence” and that Janice’s expert relied on a compound-interest formula, which was inappropriate for stocks. Telemachos’s salary from the University was his only income during the marriage, and any contributions to the account had to come from that source. It is possible that the account could have received transfers from other non-marital accounts, but Telemachos has not shown that such transfers occurred. Janice’s expert, Mary McGrath, a certified public accountant and certified financial planner, testified that stock accounts, such as the Vanguard Windsor IRA, were different from compound-interest-bearing accounts. Stock accounts had no fixed rate of interest and their value depended on the fluctuating value of the shares. McGrath testified that in the case of stocks, she performs her calculations “more on an actual accounting basis, of following the original investment and growth on it.” It appears the trial court properly ordered the reimbursement.

D. Attorney Fees

The trial court awarded interim fees and costs to Janice in the amount of $135,714, which the court designated as an advance from the marital estate. See 750 ILCS 5/501(c — 1)(2) (West 2002) (interim awards shall be deemed to have been advances from the parties’ marital estate). At the conclusion of the case, the trial court ordered that $40,000 of those fees would not be paid from the marital estate but by Telemachos. See 750 ILCS 5/503(j) (West 2002) (petition for contribution to fees and costs after proofs have closed). Telemachos complains that when the trial court ordered him to pay $25,000 in interim fees on July 16, 2002, he had no more marital funds under his control and therefore had to pay the $25,000 out of a nonmarital account. He asks that Janice be ordered to reimburse his nonmarital estate in that amount. Janice was in fact ordered to reimburse Telemachos’s nonmarital estate in the amount of $47,857. If it is Telemachos’s argument that the trial court did not have the power to order him to pay the $40,000 of Janice’s fees in their entirety, we disagree. “If at any time a court finds that a hearing under this [s]ection was precipitated or conducted for any improper purpose, the court shall allocate fees and costs of all parties for the hearing to the party or counsel found to have acted improperly.” 750 ILCS 5/508(b) (West 2002). The court found that Telemachos unreasonably continued the custody dispute after the court had ruled against him on temporary custody and that the $40,000 in attorney fees was incurred for that reason.

E. Janice’s Cross-Appeal

In a cross-appeal, Janice complains that the trial court did not consider the attorney fees and costs paid by Telemachos on his own behalf as an advance from the marital estate. Janice argues that Telemachos paid his own attorney fees in the amount of $184,324 from the marital estate, and only the remaining marital estate was divided equally between the parties. In contrast, the attorney fees paid on Janice’s behalf, $95,714, were added back to the marital estate before the estate was divided. Janice raised this issue in a posttrial motion to reconsider. When the motion to reconsider was argued, the trial court complained that Janice never raised that issue, which was somewhat in the nature of a claim that Telemachos had dissipated marital assets by paying his own attorney fees. No evidence showed the source of Telemachos’s payments, and the burden of proving dissipation is on the party alleging it. See In re Marriage of Zweig, 343 Ill. App. 3d 590, 596, 798 N.E.2d 1223, 1229 (2003). We cannot say that the trial court abused its discretion in denying Janice’s posttrial motion. The trial court was satisfied with its division of property even if its division was not precisely 50/50.

E Restrictions on Visitation

Telemachos argues the trial court erred when it included the following provision in its order awarding custody to Janice and providing for visitation: “[Telemachos] is prohibited from taking the children outside the continental United States during any visitation period. The attorney for [Telemachos] is to continue to hold any passports of the minor children.” The Dissolution Act provides that “the court shall not restrict a parent’s visitation rights unless it finds that the visitation would endanger seriously the child’s physical, mental, moral[,] or emotional health.” 750 ILCS 5/607(c) (West 2002). Not every limitation on visitation is a “restriction” within the meaning of section 607(c), however. Section 607(c) is designed to preserve the standard aspects of visitation, not to grant the noncustodian unusual rights. A noncustodian’s right to unsupervised visitation, including overnight visitation in his home, is protected by section 607(c), but little beyond that is covered. See Gibson v. Barton, 118 Ill. App. 3d 576, 580, 455 N.E.2d 282, 284 (1983).

Telemachos resides in Illinois and has standard visitation with his children. If Telemachos should choose to visit his native country, he may attempt to work out the arrangements with Janice. If an agreement cannot be reached, Telemachos may petition the trial court for permission. The court properly declined to grant Telemachos blanket leave, in advance of any planned trip, to leave the country with the children.

III. CONCLUSION

We have considered Telemachos’s remaining arguments, many of which are not supported by explanation or legal authority. We reject those arguments.

We affirm the trial court’s judgment.

Affirmed.

McCullough, j, concurs.