In re MARRIAGE OF MARYSE CHARLES, Petitioner-Appellant, and FRANTZ CHARLES, Respondent-Appellee.
Fourth District No. 4-95-0813
Fourth District
Opinion filed October 24, 1996.
284 Ill. App. 3d 339
In People v. Weninger, 243 Ill. App. 3d 719, 726, 611 N.E.2d 77, 83 (1993), the court applied the predecessor statute, which, in the parts relevant to this case and Weninger, was virtually the same as the current statute. In Weninger, a mental health nurse did testify. However, in that case, the basis for allowing testimony by closed circuit television was that testimony in the courtroom was likely to cause the child to suffer severe adverse effects. That was a different basis than was used in this case. Here, the trial court found that testifying in the courtroom would result in the child suffering severe emotional stress such that she could not reasonably communicate. No abuse of discretion has been demonstrated with regard to the trial court‘s allowing W.S. to testify by closed circuit television.
The cause is remanded for the limited purpose of amending the sentencing order to reflect seven additional days’ credit. In all other respects, the judgment of the circuit court of Morgan County is affirmed.
Affirmed in part and reversed in part; cause remanded with directions.
GREEN and STEIGMANN, JJ., concur.
Diana N. Cherry, of Metnick, Wise, Cherry & Frazier, of Springfield, for appellant.
No brief filed for appellee.
JUSTICE McCULLOUGH delivered the opinion of the court:
In March 1994, the trial court entered a judgment dissolving the 19-year marriage of petitioner, Maryse Charles, and respondent, Frantz Charles, and reserving all other issues. In December 1994, the court entered a supplemental judgment, allocating marital assets and debts and ordering Frantz to pay $2,250 per month in child support. In September 1995, the court entered a judgment which, in relevant part, awarded Maryse $2,750 per month in maintenance, reviewable after three years.
Maryse appeals, arguing that the trial court erred (1) in allocating marital assets and debts because the court (a) did not consider Frantz‘s dissipation of marital assets, (b) did not consider the parties’ grossly disparate earning abilities; and (c) ordered that liquidated marital assets be used to pay Frantz‘s 1994 tax liability; (2) by ordering that liquidated marital assets be used to satisfy Frantz‘s attorney fees; (3) in awarding child support that was substantially below the statutory guidelines; and (4) in awarding maintenance that is inadequate to enable Maryse to enjoy a lifestyle consistent with the lifestyle she had enjoyed during the marriage. We reverse and remand.
Deference should be given to the work of the trial judge, and in the interest of judicial economy we are reluctant to reverse without giving consideration to the merits. See Daley v. Jack‘s Tivoli Liquor Lounge, Inc., 118 Ill. App. 2d 264, 273-75, 254 N.E.2d 814, 818-19 (1969) (cited as instructive in Talandis, 63 Ill. 2d at 131, 345 N.E.2d at 494). The record in this case is not so complicated as to prevent this court from reviewing the issues on the merits. We will consider the merits of the appeal.
Only those facts necessary to an understanding of this disposition will be discussed. As to the issues raised on appeal, the standard of review is whether the trial court‘s findings of fact are against the manifest weight of the evidence or whether the property distribution or awards of maintenance, child support, and attorney fees amounted to an abuse of discretion. In re Marriage of Swanson, 275 Ill. App. 3d 519, 528, 656 N.E.2d 215, 222 (1995) (property distribution); In re Marriage of Frey, 258 Ill. App. 3d 442, 448, 630 N.E.2d 466, 471 (1994) (property distribution including dissipation of assets); In re Marriage of Parker, 252 Ill. App. 3d 1015, 1022, 625 N.E.2d 237, 242 (1993) (attorney fees); In re Marriage of Harlow, 251 Ill. App. 3d 152, 156, 621 N.E.2d 929, 933 (1993) (maintenance); In re Marriage of Tietz, 238 Ill. App. 3d 965, 978, 605 N.E.2d 670, 680 (1992) (child support).
The first issue is whether the trial court‘s allocation of marital assets and debts was an abuse of discretion because the trial court did not appropriately consider Frantz‘s dissipation of marital assets. Maryse filed a petition for legal separation on June 4, 1991. An order was entered on July 29, 1991, granting her temporary custody, child support, maintenance, and use and possession of the marital residence and a 1990 Audi. She filed a petition for dissolution of marriage on March 6, 1992. At that time, the proceedings were consolidated.
The trial court first ordered that marital debts be satisfied from
Maryse‘s first issue concerns dissipation of marital assets by Frantz. Dissipation is a factor the trial court should consider in allocating marital property. In re Marriage of Lee, 246 Ill. App. 3d 628, 633, 615 N.E.2d 1314, 1319 (1993). Dissipation refers to the “‘use of marital property for the sole benefit of one of the spouses for a purpose unrelated to the marriage at a time that the marriage is undergoing an irreconcilable breakdown.‘” In re Marriage of O‘Neill, 138 Ill. 2d 487, 497, 563 N.E.2d 494, 498-99 (1990), quoting In re Marriage of Petrovich, 154 Ill. App. 3d 881, 886, 507 N.E.2d 207, 210 (1987). Whether a given course of conduct constitutes dissipation within the meaning of the Illinois Marriage and Dissolution of Marriage Act (Act) (
The orders of the trial court in this case do not address the question of dissipation of assets. No finding was made regarding whether there was dissipation. Nor do the trial court‘s orders indicate when the marriage began undergoing an irreconcilable breakdown. Maryse argues this began when Frantz began his extramarital relationship. The record indicates that Frantz gave money to and purchased trips and other items for his mistress beginning in September 1990 and continuing for some time during these proceedings. This was acknowledged by Frantz. There was testimony from certified public accountant Robert Disbrow and from Frantz from which the trial court could find that Frantz spent several tens of thousands of dollars on this woman, including credit card payments, cash, a house down payment, and mortgage payments. He was also paying her child support for their child. Maryse points to evidence showing Frantz spent in excess of $116,000 with respect to the extramarital
In In re Marriage of Hagshenas, 234 Ill. App. 3d 178, 197, 600 N.E.2d 437, 451 (1992), the court addressed the issue of dissipation through excessive expenditures for living expenses and wrote the following:
“It is entirely within the realm of possibility that one spouse‘s use of marital funds for his or her own living expenses at a time when the marriage is undergoing an irreconcilable breakdown could be shown to be so selfish and excessive and improper as to constitute an outright waste of marital funds.”
On the record before us, there was dissipation of marital assets by Frantz. Furthermore, between May 1991 and April 1993, the evidence shows Frantz liquidated investments. Maryse argues this amount exceeds $210,000. As the party charged with dissipation, Frantz had the burden to establish by clear and convincing evidence the disposition of these funds. The failure of the trial court to address the question of dissipation amounted to an abuse of discretion requiring reversal.
The record also supports a finding that Frantz dissipated marital funds when he failed to satisfy the 1991 tax debt, thereby incurring over $26,000 in interest and penalties. Although the 1991 federal income tax return was filed jointly, Maryse testified that Frantz controlled the family finances and she did not see the 1991 tax return before Frantz filed it. Frantz presented no evidence that Maryse had seen or signed the return, nor did he offer a reason for failing to satisfy the tax debt. In addition, the trial court could find that Frantz dissipated marital funds relating to the filing of income tax returns for 1992 and 1993.
Upon remand, the trial court should reconsider the distribution of marital assets and liabilities in light of the dissipation of marital assets by Frantz. Because this judgment is reversed, the remaining issues will be discussed to provide further guidance to the trial court on remand.
When Maryse and Frantz married in 1974, Maryse abandoned her medical studies. Although she subsequently acquired a bachelor‘s
At the August 21, 1995, hearing, the trial judge explained that it appeared to him the parties had more debts than assets, and although the medical practice was a high income producer, he was going to consider the debt-asset relationship in the award of maintenance. Courts have observed that, after a dissolution of marriage, there may not be sufficient funds to maintain both parties in the standard of living they previously enjoyed. However, one party should not be allowed to continue in that standard of living while the other party is forced to substantially reduce her standard of living. This principle applies whether the court is considering property distribution, dissipation of assets, or maintenance.
In reconsidering the distribution of marital property on remand, the trial court must also consider the parties’ grossly disparate earning abilities in determining an equitable distribution. Section 503(d) of the Act sets forth the factors to be used by the trial court to divide the marital property in just proportions.
It also appears the trial court erred in allocating marital assets and debts because the court ordered that marital assets be used to satisfy Frantz‘s estimated 1994 tax liability of $108,321, even though the court entered the dissolution judgment in March 1994. Since the parties’ marriage was dissolved in March 1994, it is clear that a portion of Frantz‘s income for 1994 is marital property which must be considered in the distribution of marital assets. Since no final judgment of legal separation was entered in this case, section 503(a)(3) of the Act is not invoked.
The trial court ordered that marital assets be used to satisfy Maryse‘s 1994 income tax liability. Her income consisted only of the maintenance she received during 1994, which did not represent the acquisition of a separate marital asset. The Internal Revenue Code of 1939 allows one spouse to deduct payments of separate maintenance to the extent those payments are includable in the gross income of the recipient spouse, provided a joint return is not filed. See
Concerning attorney fees, the trial court erred by ordering that liquidated marital assets be used to pay Frantz‘s attorney fees. This, in effect, required that Maryse contribute to Frantz‘s attorney fees. Under section 508(a)(1) of the Act, the trial court may order a party to pay all or part of the other party‘s attorney fees and costs incurred in maintaining an action under the Act.
The record does establish that Frantz is able to pay his attorney fees.
As to the award of child support, section 505(a) of the Act (
During the parties’ marriage, the children enjoyed an affluent lifestyle, including trips, parochial school, piano lessons, and restaurant meals. In awarding child support in this case, the trial court specifically found that Frantz is financially able to pay child support but failed to give any reason for its downward deviation from the statutory guidelines. The failure to explain the deviation alone warrants reversal.
For the purpose of calculating child support, the supporting parent‘s net income, as defined in section 505(a)(3) of the Act, must be calculated.
Prior to the trial court in this case setting the child support award, all of the factors enumerated in section 505(a)(3) of the Act should be considered in determining net income.
Finally, we consider whether the trial court committed an
In determining the amount and duration of maintenance, the trial court must balance the realistic ability of the spouse to support herself in some approximation of the standard of living enjoyed during the marriage against a goal of financial independence. Harlow, 251 Ill. App. 3d at 158, 621 N.E.2d at 934. In addition, when former spouses have grossly disparate earning potentials, the goal of financial independence may not be achievable because of the dependent former spouse‘s inability to maintain the standard of living shared during the marriage. Harlow, 251 Ill. App. 3d at 159, 621 N.E.2d at 935.
Although Maryse testified she planned to attend graduate school, there was no evidence she had applied, been accepted, or what course of study she would take.
In the present case, the parties have grossly disparate earning potentials. Frantz has substantial income and future earning ability, fostered by the award of his medical practice. He testified his net business income for 1994 was $292,940. In addition, there had been testimony in this case relating to interest and dividend income, although no mention of that was made at the hearing on maintenance. Frantz is able to meet not only his needs but those of Maryse. Maryse, the children, and her sister lived in her mother‘s home. Although Maryse had obtained a bachelor‘s degree in chemistry, she had not yet completed an internship and did not have a job. In addition, she was the primary caregiver to the parties’ children. During the marriage, Frantz and Maryse enjoyed an affluent lifestyle. Maryse‘s realistic ability to support herself in some approximation of the standard of living enjoyed during the marriage is minimal. The trial court expressly found that the parties had “an opulent style of life” and lived beyond their means. We recognize the trial court in this case made every effort to be fair and that Maryse‘s proof on maintenance was somewhat less than adequate. She projected a “rent” of $1,500 per month based on what she thought it would cost to obtain a house
The judgment of the circuit court of Macon County is reversed. The cause is remanded for further proceedings consistent with this opinion.
Reversed and remanded.
GARMAN, J., concurs.
JUSTICE STEIGMANN, specially concurring:
Although I do not disagree with the majority‘s decision to reverse or anything it says in reaching that decision, I disagree that it should be saying any of this in the first place. The majority claims to be giving deference to Talandis, which held that, in the absence of an appellee‘s brief, a reviewing court should reverse (1) if the appellant‘s brief demonstrates prima facie evidence of reversible error, (2) the record supports the appellant‘s allegations, and (3) a reviewing court cannot easily evaluate the issues on appeal. Talandis, 63 Ill. 2d at 133, 345 N.E.2d at 495. The majority then concludes that “[t]he record in this case is not so complicated as to prevent this court from reviewing the issues on the merits.” 284 Ill. App. 3d at 342. I respectfully disagree.
The record in this case is not simple, and the claimed errors are not such that we can easily decide them without the aid of the appellee‘s brief. The 22-volume record consists of over 2,500 pages. Further, the scrutiny the majority was required to give this record in order to decide this case and to prepare its carefully detailed opinion belies the majority‘s assertion regarding the uncomplicated nature of this record.
I agree with the majority that an analysis of the record reveals prima facie evidence of reversible error. Maryse‘s brief clearly supports her challenges to the propriety of the trial court‘s rulings, with appropriate citations to the record and case authority. Accordingly,
It is somewhat ironic that part of the explanation the majority provides for its willingness to address this case on the merits is its wish to give deference to the work of the trial judge. See 284 Ill. App. 3d at 342. I suggest that the majority‘s willingness to decide this case on the merits in the absence of an appellee‘s brief—which might have addressed some of the majority‘s concerns regarding the trial court‘s rulings—runs contrary to the deference the majority claims to show. No trial court likes to get reversed, but it would be far more palatable to be reversed because the appellee simply failed to show up at the appellate court than to be reversed—purportedly on the merits—when no one defended the trial court‘s rulings in the appellate court. As the majority correctly points out, “a reviewing court should not be compelled to serve as appellee‘s advocate.” 284 Ill. App. 3d at 342. So, if this court does not serve as appellee‘s advocate, and the appellee elects not to appear himself, then who is supposed to defend the trial court‘s rulings?
I indicated earlier that I had no disagreement with the majority on the merits, but in so stating I should clarify that this concurrence is based upon the majority‘s assessment of the record and the trial court‘s rulings in the absence of anyone appearing in this court to argue that those rulings were correct. Under Talandis, we need be satisfied only that the record reveals prima facie evidence of reversible error—a standard I think this record clearly shows. Nonetheless, it is at least possible that had the trial court had someone defending its rulings before us, our assessment of some (or even all) of those rulings might have changed. Speaking only for myself, it often happens that I am much more impressed with an appellant‘s arguments after having read only the appellant‘s brief than I am after I have also read the appellee‘s brief.