In re Marriage of Stuhr , 2016 IL App (1st) 152370 ( 2016 )

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Appellate Court Date: 2016.08.29
12:24:40 -05'00'
In re Marriage of Stuhr, 2016 IL App (1st) 152370
Appellate Court In re MARRIAGE OF JUDITH K. STUHR, n/k/a Judith Gloe Keith,
Caption Petitioner-Appellee, and RICHARD STUHR, Respondent-Appellant.
District & No. First District, Fifth Division
Docket No. 1-15-2370
Filed June 24, 2016
Decision Under Appeal from the Circuit Court of Cook County, No. 10-D-1743; the
Review Hon. Lisa Ruble-Murphy, Judge, presiding.
Judgment Affirmed in part and reversed in part; cause remanded.
Counsel on Jay A. Frank and Julie A. Neubauer, both of Aronberg Goldgehn
Appeal Davis & Garmisa, of Chicago, for appellant.
Linda S. Kagan, of Chicago, for appellee.
Panel 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.
¶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, 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
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.
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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 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 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
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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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
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 $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;
3
Petitioner had three children from a previous marriage.
Petitioner testified that these were two separate conversions and that “[y]ou can be Sufi without
4
being a Muslim.”
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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 decree5 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 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.”
¶ 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
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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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 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.
¶ 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
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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.
¶ 26 With respect to Citibank account 0067, respondent testified that this was a checking and
savings account8 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.
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.”
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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¶ 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.
¶ 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.
¶ 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
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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 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 funds 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
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
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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
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.
¶ 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.
- 10 -
¶ 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.”
¶ 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 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
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(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 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 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
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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
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 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
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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.
¶ 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.
¶ 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
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.
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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.
¶ 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 [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
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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 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
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
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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 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 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;
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(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).
“ ‘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
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
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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 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
appellant and the reasons therefor, with citation of the authorities and the pages of the record
relied on”).
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¶ 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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