In re Marriage of Dickinson , 2021 IL App (5th) 200263-U ( 2021 )

2021 IL App (5th) 200263-UNOTICE
NOTICE
Decision filed 12/27/21. The
This order was filed under
text of this decision may be NO. 5-20-0263
Supreme Court Rule 23 and is
changed or corrected prior to
the filing of a Petition for not precedent except in the
Rehearing or the disposition of
IN THE limited circumstances allowed
the same. under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
In re MARRIAGE OF ) Appeal from the
) Circuit Court of
MELISSA DICKINSON, ) Williamson County.
)
Petitioner-Appellee, )
)
and ) No. 18-D-165
)
DAVID DICKINSON, ) Honorable
) Brad K. Bleyer,
Respondent-Appellant. ) Judge, presiding.
______________________________________________________________________________
JUSTICE VAUGHAN delivered the judgment of the court.
Justices Welch and Cates concurred in the judgment.
ORDER
¶1 Held: The trial court’s judgment for distribution is affirmed where the trial court’s
property distribution, awards of maintenance, and educational expenses were
not abuses of the discretion; however, we amend the maintenance termination
date from April 30, 2035, to April 30, 2034, nunc pro tunc.
¶2 Respondent, David Dickinson, appeals the trial court’s judgment for distribution
contending the trial court abused its discretion by attributing over $150,000 he removed from the
parties’ joint Vanguard account solely to him, by awarding petitioner statutory maintenance and
child support that exceeded one-half of David’s monthly net income, and prematurely awarding
educational expenses that required David to pay 50% of the expenses. For the following reasons,
we affirm.
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¶3 I. BACKGROUND
¶4 David and Melissa Dickinson were married on September 2, 1999. Eight children were
born of the marriage with the oldest born in 2000 and the youngest born in 2017. During the
marriage, David completed his education and became a podiatrist, while Melissa stayed at home
and homeschooled the children. On June 20, 2018, Melissa filed a petition for dissolution of
marriage. The trial court granted Melissa’s petition for temporary relief which allowed Melissa to
stay in the marital home and ordered David to pay Melissa $8500 a month for maintenance and
child support. On September 17, 2018, a guardian ad litem was appointed, and on March 18, 2019,
a section 604.10(c) (750 ILCS 5/604.10(c) (West 2018)) evaluation report was filed. A two-day
hearing was held on August 28 and August 29, 2019. On October 30, 2019, the parties entered into
a final parenting plan and judgment providing Melissa with residential custody of the seven minor
children along with parental responsibility for education and medical care of the children. The
dissolution of marriage was also granted as of October 30, 2019, via the trial court’s November
14, 2019, judgment.
¶5 Testimony at the August hearing revealed that during the pendency of the proceedings
David left the marital home, purchased a new home, purchased a vehicle, changed jobs, and made
numerous withdrawals from the parties’ joint Vanguard account that amounted to approximately
$158,000. David’s testimony revealed that he used a portion of the money as a down payment on
his new residence, purchased a 2005 Honda Pilot, furnished his home with furniture and beds for
the children, and purchased, inter alia, a television, a computer, a palm pilot, a scooter, a video
game console, a dune buggy, camping equipment, and bicycles for his new home. David also
testified that he used a portion of the money to pay maintenance to Melissa when his prior
employer did not pay him for three months. He further testified that he also used the funds to
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purchase malpractice insurance; fund two accounts for Melissa, one for repairs on the marital home
and the other to pay bills; and as payment for litigation fees and costs associated with the divorce.
¶6 On February 20, 2020, the trial court issued a judgment for distribution which awarded the
mortgage-free marital home with a fair market value of $202,000 to Melissa and David’s new
home with $50,000 equity to David. The court found that David was advanced marital funds during
the pendency of the proceedings and “this advance negates any discrepancy between the values of
the real estate and the furnishings awarded.” Melissa was awarded the 2015 Nissan NV, the 1999
Ford F-250, the 2011 Honda Odyssey, and the 2008 Honda Fit that had a total value of $29,000.1
David was awarded the 2010 Toyota Camry and 2005 Honda Pilot that had a total value of
$10,929. The trial court listed marital financial accounts totaling $772,700 and divided the
amounts equally between the parties. The trial court also ordered the parties, after any amount in
a child’s Brightstart 529 college account was expended, to split any remaining college expenses
with Melissa and the child each paying 25% of the expenses and David paying 50% of the
expenses. The parties were directed to tender a stipulated agreement regarding any other personal
property and each party was assigned their own credit card debt.
¶7 Thereafter, the trial court found the parties were married for 18 years, 9 months (225
months) and applied the statutory factor of .76. After noting David’s net monthly income of
$16,919 and Melissa’s lack of income, the court awarded Melissa statutory maintenance of $5640
effective February 1, 2020, until 171 months were paid. Maintenance would terminate “after all
current, timely payments to Melissa have been made for a period of 14.25 years, through April 30,
2035.” The trial court also noted that David’s child support was $2935 effective February 1, 2020.
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The parties submitted Joint Exhibit A which listed their assets and the estimated values of those
assets.
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David was ordered to pay $25,000 towards Melissa’s attorney fees, and any other outstanding costs
associated with the litigation would be split equally. David was to receive any refunds due from
the 2018 federal ($11,937) and state ($676) tax returns and was allowed to claim each of the minor
children on his taxes. David was also awarded $30,000 in nonmarital funds. Finally, David’s
lawsuit against his prior employer, if paid, would be split equally, after payment of attorney fees
and costs, between the parties. On March 19, 2020, David filed a motion for reconsideration, which
was denied by the trial court in a docket entry dated July 31, 2020. David timely appealed on
August 28, 2020.
¶8 II. ANALYSIS
¶9 On appeal, David contends that the trial court erred in its allocation of property by finding
that he was advanced over $150,000 in marital funds during the pendency of the proceedings and
“this advance negates any discrepancy between the values of the real estate and the furnishing
awarded” because attributing these funds double counted some of the assets against David and
created a windfall for Melissa. David also contends that the trial court erred in both the amount
and duration of Melissa’s maintenance, because the maintenance amount combined with the child
support equated to more than 50% of David’s net income. David additionally argues the
maintenance should terminate on April 30, 2034, not April 30, 2035, and the trial court erred by
not crediting David with the temporary maintenance and child support paid during the pendency
of the proceedings. Finally, David argues that the trial court erred in allocating the college expenses
of the minor children, contending the issue was premature because the trial court could not consider
the income, obligations, and assets of the parties, at the time the younger children would attend
college. Melissa requests affirmation of the trial court’s judgment for distribution.
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¶ 10 A. Property Distribution
¶ 11 “Distribution of marital property is a matter within the discretion of the trial court.” In re
Marriage of Hamilton, 2019 IL App (5th) 170295, ¶ 34. “On appeal, we will not disturb the court’s
distribution of assets absent an abuse of discretion.” Id. “An abuse of discretion occurs where no
reasonable [person] would take the view adopted by the trial court.” In re Marriage of Carpenter,
286 Ill. App. 3d 969, 973 (1997). “ ‘[T]he touchstone of proper apportionment is whether it is
equitable in nature,’ ” and each case rests on its own facts. In re Marriage of Heroy, 385 Ill. App.
3d 640, 661 (2008) (quoting In re Marriage of Drury, 317 Ill. App. 3d 201, 211 (2000)). An
equitable division does not necessarily mean an equal division, and “one spouse may be awarded
a larger share of the assets if the relevant factors warrant such a result.” In re Marriage of Henke,
313 Ill. App. 3d 159, 175 (2000).
¶ 12 The statute provides 12 relevant factors to consider when dividing the marital property in
“just proportions.” 750 ILCS 5/503(d) (West 2018). “A reviewing court applies the manifest
weight of the evidence standard to the factual findings for each factor on which a trial court may
base its property disposition ***.” In re Marriage of Vancura, 356 Ill. App. 3d 200, 205 (2005).
However, here, David does not argue that the trial court ignored or misinterpreted any of the
statutory factors. Instead, David argues that there was insufficient evidence presented at trial for
the court to find that over $150,000 was used solely by David during the pendency of the divorce
and, even if there was sufficient evidence, the trial court’s property disposition double counted
some of the assets to David’s detriment and Melissa’s favor.
¶ 13 We disagree with David’s argument regarding the sufficiency of the evidence supporting
the $150,000. While $15,000 was removed prior to the filing of the divorce petition, this amount
was removed after Melissa requested and received the order of protection filed in advance of the
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dissolution proceeding. In any event, the amount is de minimis when considered in conjunction
with the remaining funds David removed from the Vanguard account and the total value of the
marital estate. David’s testimony revealed that he alone removed the money and transferred the
funds to his personal checking accounts. We note that little underlying documentation was
submitted in support of where the money was spent, but according to David’s testimony, $30,000
was used as a down payment on his new house, $12,000 was used to purchase the 2005 Honda
Pilot, $30,000 was placed in an account to be used for repairs on the marital home, $20,000 was
used to pay his malpractice insurance, and $11,000 was placed in a joint account to pay bills. David
concedes on appeal that “only $52,424.86 was unaccounted for” and now claims this amount was
used to pay the costs of litigation, including attorney fees, GAL fees, and the custodial evaluation,
as well as maintenance to Melissa when David was not paid by his employer.
¶ 14 What is not mentioned by David on appeal is what was listed in his March 19, 2019,
financial affidavit and his testimony regarding same. The affidavit claimed that David spent
$9144.06 in personal expenses listed under “other,” which included a headset, phone, pens, palm
pilot, planner, computer, and monitor. When questioned about this entry, David stated that he took
the total costs for these items over three months and divided them by three to reach this amount.
Therefore, based on David’s testimony, he spent $27,432.18 on electronic equipment for his
personal use. David also testified that he spent a little less than $9000 replacing the heating and air
conditioning unit at his new house and purchased a $2000 scooter, a $200-300 television, beds,
mattresses, bookshelves, books, electronic equipment, camping equipment, games, and bicycles
for the children to use at his home. Although a value was not provided for each item, the values
provided, including those related to his litigation expenses, amount to $60,700 and further reveal
that David spent at least $200,000 in the 20 months after he left the marital residence on his own
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personal liabilities and enjoyment. As such, the evidence was sufficient to support the trial court’s
finding that David was advanced marital funds during the pendency of the proceedings, and this
finding is not against the manifest weight of the evidence.
¶ 15 David also contends that even if the evidence sufficiently supported the advanced marital
funds, the trial court’s attribution of approximately $150,000 of these funds was an abuse of
discretion because the attribution resulted in “double counting” which favored Melissa and was
unfair to David. Double counting occurs when the value of a marital asset is counted twice. In re
Marriage of Schacht, 343 Ill. App. 3d 348, 352 (2003) (citing In re Marriage of Talty, 166 Ill. 2d
232, 236 (1995)). Here, David claims that the trial court’s attribution of over $150,000 results in
double counting because the $30,000 used as a down payment on the house and the $12,000 used
to purchase the Honda Pilot were counted twice. However, the record reveals that David spent at
least $200,000 during the pendency of the proceedings, and therefore, the $42,000 paid toward his
house and car may not have been included in the $150,000 attributed to David.
¶ 16 David also claims that the $30,000 put into the account for repairs of the marital home, the
$11,000 placed into a joint account to pay bills, and the $20,000 paid to his malpractice carrier
should not have been attributed solely to him but equally attributed to both parties because there
was no notice of dissipation filed by Melissa. However, David provides no argument or reasoning
why it was an abuse of discretion for the trial court to attribute the funds solely to him when he
was the party who removed the funds from the Vanguard account, he was the sole income producer
during the marriage, and Melissa had no current or future employment prospects due to her
continued homeschooling of the minor children.
¶ 17 The statute does not require the trial court’s distribution to be equal, only equitable, and it
is well-settled that a distribution may provide a larger share to the non-income-producing spouse
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and still be equitable. See In re Marriage of Romano, 2012 IL App (2d) 091339, ¶¶ 122, 124
(affirming distribution of marital estate with 23% to Daniel and 77% to Cynthia); see also In re
Marriage of Henke, 313 Ill. App. 3d at 175-77 (affirming distribution of marital estate with 30%
to Marvin and 70% to Adele). Here, without the attribution of the $152,000, David received 43%
of the marital assets and Melissa received 57%. With the trial court’s attribution, the parties each
received 50% of the marital property. While David contends it was inequitable to attribute some
of the amounts solely to him, he fails to explain why such division would be inequitable when the
trial court’s decision resulted in David receiving $10,823.07 back from the $30,000 home repair
account, the full amount of the $12,600 refund from the 2018 taxes in addition to his retention of
the $30,000 account containing his nonmarital funds. As such, we find that the trial court’s
property distribution was not an abuse of discretion and affirm the distribution.
¶ 18 B. Maintenance and Child Support
¶ 19 A maintenance award will not be disturbed on appeal absent an abuse of discretion. In re
Marriage of Schiltz, 358 Ill. App. 3d 1079, 1084 (2005). Here, there is no dispute that the trial
court’s award of maintenance ($5640) and child support ($2935.90) were correctly calculated
pursuant to the statute. Instead, David argues that the trial court erred by not deviating from the
statutory amount to reduce the amount of his maintenance since the combined amount of child
support and maintenance was over 50% of his net income and further erred by failing to credit him
the amount of maintenance paid during the pendency of the proceedings. Finally, David argues
that the trial court erred by setting the termination date of the maintenance as April 30, 2035,
instead of April 30, 2034.
¶ 20 Section 504 of the Illinois Marriage and Dissolution of Marriage Act (Act) provides
guidelines for determining the amount and duration of maintenance. It states, inter alia, “If the
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application of guideline maintenance results in a combined maintenance and child support
obligation that exceeds 50% of the payor’s net income, the court may determine non-guideline
maintenance in accordance with paragraph (2) of this subsection (b-1), non-guideline child support
in accordance with paragraph (3.4) of subsection (a) of Section 505, or both.” 750 ILCS 5/504(b-
1) (West 2018).
¶ 21 “The fundamental rule of statutory construction is to ascertain and give effect to the
legislature’s intent.” Nowak v. City of County Club Hills, 2011 IL 111838, ¶ 11. The intent should
be determined primarily by examining the plain and ordinary meaning of the statutory language.
Lucas v. Lakin, 175 Ill. 2d 166, 171 (1997). “Whether a statutory provision is mandatory or merely
directory depends upon the intent of its drafters.” People v. Reed, 177 Ill. 2d 389, 393 (1997). “An
important aid in determining legislative intent is the nature of the auxiliary verb used in the
statute.” Id. “Legislative use of the word ‘may’ is generally regarded as indicating a permissive or
directory reading, whereas use of the word ‘shall’ is generally considered to express a mandatory
reading.” Id. A statute should be read with all relevant parts considered. Kraft, Inc. v. Edgar, 138
Ill. 2d 178, 189 (1990). Our interpretation of this section, which used the word “may,” allows a
trial court to deviate from the statutorily calculated maintenance but does not require the deviation.
As such, we continue our review to determine if the trial court abused its discretion by failing to
deviate from the statutory guidelines.
¶ 22 Here, the trial court found the parties were married for 225 months and used the statutory
factor of .76 to determine the duration of maintenance at 171 months. The court noted that
throughout “the entirety of their marriage, while eight (8) children were born to the marriage,
Melissa remained at home, and was the children’s primary caregiver, homeschooling the children.”
The court noted that Melissa had no outside source of income, and it would be unreasonable to
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impute income to her since she continued to homeschool the children and the youngest was only
two years old. The court further found that David was the sole income earner. Thereafter, the court
stated that “[g]iven the significant disparity of income between Melissa and David,” David was to
pay $5640 in statutory maintenance for 171 months (14.25 years) beginning February 1, 2020, and
terminating on April 30, 2035.
¶ 23 David does not argue that an award of maintenance was inappropriate. Instead, David
claims the maintenance amount should have been reduced, claiming the award creates a windfall
for Melissa because her award ($8575.90) exceeded her monthly living expenses ($7414.71). In
support, David cites In re Marriage of Nord, 402 Ill. App. 3d 288, 293 (2010), contending the trial
court should consider the reasonable needs of the recipient of the support while taking into
consideration the living established during the marriage.
¶ 24 We agree with the premise in Nord but find David’s factual argument lacking. First,
nothing in David’s argument addressed the trial court’s findings related to Melissa’s lack of current
or future income, his own income as a podiatrist, or the disparate income difference between the
parties. Second, while Melissa’s June 18, 2018, financial affidavit listed her total monthly living
expenses as $7414.71, Melissa’s more recent August 27, 2019, financial affidavit listed her total
monthly living expenses as $8587.71. By awarding Melissa the statutory amount, Melissa is close
to meeting her monthly expenses, which is extremely relevant considering that she has no income
other than David’s maintenance payment.
¶ 25 Conversely, David’s August 30, 2018, financial affidavit revealed $5227 in available
monthly income after David’s monthly expenses, including maintenance and child support, were
paid. While David’s February 28, 2019, financial affidavit contended his total income available
each month was a deficit of $11,250.77, his testimony revealed that numerous items set forth in
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the later financial affidavit were not recurring monthly expenses or contained erroneous amounts.
These items included the $9144.06 for electronic equipment and legal fees, $2016.23 for tuition
paid out of the Brightstart 529 account, a reduction in the monthly amount for FICA from $1628.77
to $686.65, and $1002.37 for extracurricular activities which primarily involved one-time
purchases of recreational equipment for the children while they were at his home. Considering
David’s testimony, in conjunction with the trial court’s maintenance and child support award,
David would have at least $1778.11 remaining after payment of his monthly financial
responsibilities and living expenses. As such, we find the trial court did not abuse its discretion in
awarding Melissa the statutory amount for maintenance despite the amount being more than 50%
of David’s net income.
¶ 26 David also argues that the trial court erred by failing to credit him with the amounts of
maintenance previously paid during the pendency of the proceedings. The relevant statutory
provisions states, “In the discretion of the court, any term of temporary maintenance paid by court
order under Section 501 may be a corresponding credit to the duration of maintenance set forth in
subparagraph (b-1)(1)(B).” 750 ILCS 5/504(b-1)(1.5) (West 2018). Here, David contends the trial
court “should have made the 171 months of maintenance effective [in] November of 2018” when
David began paying temporary maintenance to Melissa but provides no argument and cites no case
law in support of the position.
¶ 27 Illinois Supreme Court Rule 341(h)(7) states that the argument section of an appellant’s
brief “shall contain the contentions of the appellant and the reasons therefor, with citation of the
authorities and the pages of the record relied on. *** Points not argued are forfeited and shall not
be raised in the reply brief, in oral argument, or on petition for rehearing.” Ill. S. Ct. R. 341(h)(7)
(eff. Oct. 1, 2020). Under Rule 341(h)(7), the reviewing court is entitled to have clearly defined
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issues presented with cohesive argument and pertinent authority. Obert v. Saville, 253 Ill. App. 3d
677, 682 (1993). An appellant forfeits any contention that is not supported by argument or by
citation to authority. Id. As such, pursuant to Rule 341(h)(7), we find this issue was forfeited and
affirm the trial court’s effective date for the maintenance period as February 1, 2020.
¶ 28 David also argues that even if the duration is affirmed, the termination date is incorrect
because 171 months from the effective date of February 1, 2020, would be April 30, 2034, not
April 30, 2035. No argument to the contrary was provided by Melissa, and therefore, we find that
the trial court’s use of the 2035 date was a clerical error. “The function of a nunc pro tunc order is
merely to correct the record of the judgment and not to alter the judgment actually rendered.”
Dauderman v. Dauderman, 130 Ill. App. 2d 807, 809 (1970). As such we amend the trial court’s
judgment setting the termination date of April 30, 2035, nunc pro tunc, to April 30, 2034.
¶ 29 C. Educational Expenses
¶ 30 Finally, David argues that the trial court’s allocation of college expenses for all the parties’
minor children was premature and was error because the allocation could not consider the income,
obligations, and assets of the parties at the time of judgment as required by section 513 of the Act.
750 ILCS 5/513 (West 2018). Section 513 states:
“In making awards under this Section *** the court shall consider all relevant factors that
appear reasonable and necessary, including:
(1) The present and future financial resources of both parties to meet their needs,
including, but not limited to, savings for retirement.
(2) The standard of living the child would have enjoyed had the marriage not been
dissolved.
(3) The financial resources of the child. [and]
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(4) The child’s academic performance.” Id. § 513(j)(1)-(4).
¶ 31 The trial court’s award of educational expenses is reviewed for an abuse of discretion. In re
Marriage of Budorick, 2020 IL App (1st) 190994, ¶ 83. “A trial court abuses its discretion only
where no reasonable person would take the view adopted by the trial court.” In re Marriage of
Schneider, 214 Ill. 2d 152, 173 (2005).
¶ 32 First David argues that the trial court failed to consider the factors found in section 513. In
support, David claims “[n]othing in the determination *** shows that the Trial Court considered
the substantial payment the Husband was paying to Wife for maintenance, the assets awarded to
the parties, the home without a mortgage awarded to Wife, the need for Husband to start over,
incur a mortgage and buy a home, and the substantial payment for child support from Husband to
Wife.” David further contends that, economically, Melissa “has more net income than [David]
with no debts and an investment portfolio,” while David must “pay double the amount of the
educational expenses of the children at 50% of all costs.”
¶ 33 We disagree with David’s claim that the trial court ignored the statutory factors. The
purpose of the educational expense provision “is to authorize a discretionary award *** to
guarantee that funds are available if the need arises.” In re Marriage of Dieter, 271 Ill. App. 3d
181, 190 (1995). Here, there was no dispute that David was the sole income earner and Melissa’s
opportunity to earn income in both the present and future was hampered by the fact that she would
continue to homeschool the minor children, the youngest being 2½ years old at the time the
judgment was rendered. As such, the present and future earnings of the parties at the time most of
the children would attend college was known and addressed by the court. Further, while David
claimed that Melissa’s net income was greater than his, based on the financial affidavits and
David’s testimony, Melissa had no income after paying her expenses, while David had income
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remaining after all his expenses were paid. David’s testimony revealed his belief that all the
children were college candidates based on their intelligence, his desire for all the children to attend
college, and his preference that each child have some responsibility in paying for college. Given
the financial disparity between the parties, as well as David’s desire for the children to attend
college, we cannot say the trial court abused its discretion in requiring David to contribute more
than Melissa or the child toward each child’s college education.
¶ 34 Finally, David claims the trial court’s allocation of education expenses for the children who
had not yet entered primary school was improper as there was no ability for the trial court to
ascertain the future costs of postsecondary education, the income/assets of the child, nor the
financial abilities of the parties to pay said funds at that time. We note, however, that the record
reveals that no such argument was ever presented to the trial court. Arguments not raised in the
trial court are generally forfeited on appeal. U.S. Bank Trust, N.A. v. Colston, 2015 IL App (5th)
140100, ¶ 20. We further note that David never objected to the trial court’s authority to address
the children’s educational expenses, conceded the trial court had “the authority to direct the support
of the children provided they complied with [the] requirements under 750 ILCS 5/513,” and
thereafter requested the trial court split any educational expenses after exhaustion of a child’s 529
account “in equal thirds between mother, father, and the student.” “ ‘It is fundamental to our
adversarial process that a party waives his right to complain of an error where to do so is
inconsistent with the position taken by the party in an earlier court proceeding.’ ” McMath v.
Katholi, 191 Ill. 2d 251, 255 (2000) (quoting Auton v. Logan Landfill, Inc., 105 Ill. 2d 537, 543
(1984)). “A party cannot complain of error which he induced the court to make or to which he
consented.” Id. Based on David’s concessions before the trial court, we find this issue forfeited.
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¶ 35 III. CONCLUSION
¶ 36 For the reasons stated herein, we affirm the trial court’s property disposition and its awards
of maintenance and educational expenses and amend the trial court’s April 30, 2035, maintenance
termination date, nunc pro tunc, to April 30, 2034.
¶ 37 Affirmed in part and amended in part.
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