*1 816 aggravated
Defendant’s battery conviction upon was based his spitting arrest, on one of the prior officers to his while his conviction resisting peace officer was upon struggling based kicking during the officer Accordingly, arrest. we find that each upon conviction was based a different act. People
Defendant cites v. King 66 Ill. 2d 838, in support argument, of his but that case does not apply because primarily it multiple addresses upon convictions based the same physical act. argues, As the State the time interval between (the spitting defendant’s on the officer constituting act aggravated battery) (the and defendant’s efforts prevent being handcuffed acts officer) constituting resisting a peace may short, have been but those acts still "separate constitute physical acts” holding within the King. People See v. 172, 184-85, Sutton (multiple proper convictions where the defendant commits several interrelated acts if each supports act a different offense).
IV. CONCLUSION stated, For the reasons we affirm defendant’s convictions for both aggravated battery resisting peace officer.
Affirmed. LUND, JJ.,
KNECHT and concur. DUNSETH, In re MARRIAGE OF WARD R. Petitioner Counterrespondent-Appellant, DUNSETH, and BARBARA HAZELRIGG Re-
spondent Counterpetitioner-Appellee.
Fourth District No. 4 — 93 — 0365
Opinion April filed *2 LUND, J., specially concurring.
STEIGMANN,J., concurring. specially Schickedanz,
Philip Springfield, appellant. for Scott, Gregory Scott, P.C., Springfield, appellee. A. & Scott for opinion JUSTICE COOK delivered court: Petitioner Ward appeals R. Dunseth trial court’s property, division of marital pay respondent direction that he Barbara H. Dunseth monthly permanent sentencing order days him 30 affirm jail We contempt. part, in part, reverse and remand to the trial court. Nevada,
Ward and Vegas, Barbara were married in Las in 1978. That both, was the second and no were born children marriage. parties separated July 1991, at the end of when years Ward was 67 and old. Ward as a worked doctor prior throughout marriage, practicing surgery to and at Passa- Jacksonville, Illinois, Hospital consulting vant performing surgeries private minor Springfield, offices in Jacksonville July privileges Hospital Illinois. In at Passavant were restricted a patient. due the death of The restrictions surgeon Ward to consult with every operation. another before *3 practice practice refused to under those his conditions and moved Hospital Springfield, agreed in Doctors but later to the conditions. surgeries performed Passavant, however, rapidly number he at 1992, surgical February In at privileges decreased. Ward’s Passavant suspended began exclusively were and practice he at Doctors time, Hospital. About the same Ward closed his Jacksonville office Carlinville, and an Illinois. opened office in during Ward collected and Indian antiques artifacts and bought a two-day he a Lincoln desk auction. took the with out desk her when she moved of the former marital home, stating, though bought "I felt as he the desk for me.” Ward purchased they antiques, and Barbara a cabin which filled with sleigh, antique antique wagons; they cranberry and two collected glassware throughout marriage. couple owned five lawnmow- ers, $5,000 $4,700 including one a worth on which debt remained. corporation he in a Ward testified owned 200 of 650 shares medical a a consisting buildings, heliport, complete two and medical facil- ity practice. lifetime, in Jacksonville from which he ran his In his he had three and as as two helicopters plane, owned one well motor addition, automobiles, homes. In five Cadillac parties owned Barbara, bought upon which including a Cadillac Ward had $15,000 paid and which he approximately he $478 still owed gas formerly occupied by a was month. Ward owned which station, very for his expensive equipment he leased medical $20,000 including a instruments practice, complex laparoscopy equipment in 1991. Ward testified the value such leased March much like the acquired, as as it was value depreciated almost soon 1991, 24, Nevertheless, signed a a contract on October car. Ward new $45,000. years five at a cost of surgical equipment to lease over had Monthly and he equipment for that totaled monthly payments of equipment $357.49. additional lease income, reported as on his tax adjusted gross Ward’s income through 1990, years returns for the was in 1988, $216,801 in in in 1990. Ward’s $454,971. gross In the Internal September income in 1991 was (IRS) against tax Revenue filed claims for Federal liens Ward Service through totaling the years and Barbara for years did his and used Ward testified he not all of taxes those primarily expenses, he was his available funds for business since operating at a loss. July taking girlfriend, Barbara in Debbie
Ward left Morrell, four-day on a in his Debbie weekend vacation motor home. ex- employee hospital was an office whom he claimed had perience, although not a 25% she was a licensed nurse. She received salary brought salary which her September increase City accompanied month. Debbie to New York Ward couple stayed October where the at the Waldorf Astoria nights seven while Ward attended medical conference. Ward keep claimed he this conference current on attend credits; nevertheless, in New continuing medical education while York, Room, spent Tea Ward dined with Debbie at the Russian approximately trip. on theatre on the entire $294 tickets at the accompanied to medical conferences Debbie Mayo Luxembourg, spent and in where another Clinic period of a into the marital residence over week. Debbie moved with possession Ward after received exclusive August through stipulated home 1991. Debbie lived there order did paid expenses. rent-free Debbie but for some food stated *4 paycheck not receive a and on various other December $1,400 gave declining to his Debbie a occasions due income. Ward painted and ring agreed and to the marital residence have former although paid remodeling expen- for the carpeted, he claimed Debbie of- Shortly opened after he his Jacksonville office and the ses. closed Carlinville, fice made to plans newly Ward move into Debbie’s $114,000 purchased home in Carlinville. graduation high school,
After Caterpil- from Barbara worked for Company lar Tractor operator as a switchboard she until was married and had In began working children. she Baptist for the First secretary, Church as a quitting in 1976. She then for briefly worked receptionist they Ward in his office as a until married. Soon the after marriage, parties the sold Barbara’s for home and Barbara proceeds turned to gave over the Ward. Barbara Ward her testified Mustang shortly marriage. "very to his son after the Ward was generous” buying $3,000 money, jewelry spending with his and aat designer spent time on outfits for Barbara. Ward estimated a total during marriage. to on Barbara’s clothes He the gave every month, also her between and in cash out of utilities, expected garbage which Barbara was to for pickup, food, any personal couple and necessities. The ate often out and went year approximately on vacation four times a to because needed get away. parties Scotland, Edinburgh, visited twice 1990 and stayed time, there for three at a weeks while Ward took an examina- College so Royal tion he could become a Fellow of the of Surgeons and add this membership parties planned letterhead. The had trip Europe July but after Ward out of mar- moved the residence, $1,300 plane ital Barbara in her placed cashed ticket and attorney money pending in escrow with her the settlement. during
Barbara handled all stated Ward financial matters obtaining loans, leasing never and consulted her about selling equipment, buying helicopter. Regarding medical returns, parties’ "signed income tax Barbara stated she acknowledged dotted line” because Ward told her to do so. She she signed equipment one of his medical leases in she added signed money "would anything.” have Barbara knew there were marriage, problems relatively early as had borrowed addition, her mother in 1983. In she admitted at one hearing years, they emptied she had known about the IRS for as had checking savings accounts had taken a certificate de- her acquired prior marriage. spring posit she had which signed note to borrow Ward indicated would However, go any to the IRS. she was unaware made agent IRS. Barbara an IRS her and said testified visited work, garnishee wages if Barbara went to the IRS would her liability. tax She then admitted she had not couple’s separation. attempted parties’ to find work since the *5 August temporary to a order on parties agreed $1,250 in for maintenance provided would Barbara which the of each due 15th August September payment with and temporary mainte- agree upon future parties month. If the could not hearing a petition the court to conduct payments, nance either could granted Barbara was September between 15 and October Cadillac, ordered to of the 1989 and Ward was possession exclusive Bank, checks, separate payable to Farmers State in the forward two granted monthly was payment. amount of the car’s loan home, temporary possession of marital while certain exclusive the Barbara had taken from that residence personal property items party from enjoined to order each were ordered returned Ward. The resi- removing any property or from the marital marital nonmarital encumbering, destroying any concealing, dence from or such and order of the court. until further petition September filed a for rule show cause Barbara to alleging August temporary failed make mainte- Ward had to payment by nance amount and failed 15th altogether August petitioned to make the car Barbara also payment. temporary support. for extension of
On September the trial court heard evidence on petitions. August temporary Ward testified made the maintenance August payment September and the and car but did not September payment make the because Barbara had not personal property. Regarding petition returned all of his Barbara’s significant temporary support, for Ward testified there had been a prior as few to physician decrease in his income a within the months July separation. Following July partial his parties’ income, gross which had suspension Hospital, from Passavant Ward’s averaged month, per per approximately decreased to gross based on August month. In income was months, gross his previous collection from but of accounts receivable 27th, $18,842. through the Ward stated September, income for was expenses; September not cover his current business his income would might fact, staff, reducing further reductions be he was and liens, had offered necessary. indicated he Ward mentioned IRS home, debt, sale, for and his motor on which he owed substantial approximately marital home remained stated the debt on the former fact, parties owned was virtually everything a claimed he was mortgaged placed upon had lien it. Ward had He stated he payments on the 1989 Cadillac. then unable to continue minimum, Debbie, not and expenses supporting keeping only payments. was behind IRS only maintenance Barbara received Ward was her
source of income. Barbara was unemployed and did not know how operate processor, a word had back problems history and a of cancer which had necessitated a hysterectomy, lived with her mother and slept on a bed prior moving fold-out her four-room apartment. pounds She had requested "lost 20 over this” and mainte- $2,000 month, nance of including over $400 month food and lunches, a month for per $50 month for payment, $510 the car insurance, gas, repairs. $250 month On November the trial court ordered Ward to $2,000 per month in addition insurance, payment, any repairs car car. on the The court further parties incurring any ordered the to refrain from unneces- *6 debts, sary expenditures including necessary or not ordinary and expenses practice, prohibited attendant to Ward’s medical and parties transferring, concealing, selling any property or without the written consent of other party. Although to ei- it refused find party contempt, ther in payment September the court ordered of the payment p.m. maintenance 4by payment that afternoon and of future on of maintenance checks the 15th each month. 26, 1991,
On petition December Ward to modify filed order, asserting change a substantial in circumstances precluded him from paying the December maintenance in full. Ward paid only only had Barbara paid for December and had portion interest payment. peti- the December car Barbara filed a 6, 1992, January alleging nonpayment tion for to show on rule cause December payment. entire maintenance January hearing, agent At the Ward stated IRS gave visited his office on December and he her a check for agent dispose personal property, IRS instructed Ward to real estate, and all but two in to payment vehicles order facilitate to the why pay agent, IRS. When asked did to he not refuse Ward cross-examination, responded, IRS, don’t On "I refuse the sir.” Ward days admitted the check after was dated December four the main- due, payment tenance was but his 15 bank insisted December bal- approximately ance of did for which had not account checks yet to be cleared. $31,926.66 $39,851.23 in practice September,
Ward’s in collected October, November, $19,094.13 $26,605.55 in and in December 1991. operate He his office was stated the minimum amount month, approximately he did not make the per court- ordered in he lacked the December because fact, money pay funds. In from a credit card to borrowed IRS insurance, stated he knew the January due 1. He malpractice would was unaware it going office December 15 but to visit his against bank account money spot; usually on it levied request surgical restric- agreeing consultation after such visit. After tion, only Hospital at performed surgeries had two Passavant in months. four failed petition modify, stating Ward
The court denied Ward’s change in circum- proving to meet his burden of that a substantial month The court had a bad stances had occurred. found Ward had modify the for the court to but stated that was not sufficient evidence Ward in temporary support. The court further found ruling failing on maintenance on December 15 reserved sanctions. petition filed a modification of the court’s second al-
temporary support again on he order March which leged a decrease income and the IRS on his stated had levied surgical Hospital accounts receivable and his privileges Passavant Following had suspended. nonpayment been Ward’s permanently payment, peti- the March 1992 maintenance Barbara filed another rule to tion for show cause. hearing April 21,
A petitions on these was held 1992. Ward months, preceding testified that due of income he to loss in the few could not to Barbara the 15th full April, March and paid period. so he instead for each gross $24,814.35 $29,945.64 January, February, income was $24,139.10 $454,971.09, in March 1992. His total income in 1991 was approximately month. Ward stated the number surgeries performed majors had from one or decreased two *7 day a three or a majors two minors to two or and two three minors surgeries week. He his decrease to the attributed in restrictions on, permanent of, surgical placed subsequent suspension and the his privileges Passavant. 1992, requested all
In March the IRS had a list of Ward’s accounts indicating levy patients, and receivable sent notices to all Ward’s $324,000 directing and the Dunseths owed the IRS almost garnisheed The IRS patients pay to IRS rather than Ward. also checking account, all would despite plea that these levies his business likely bankruptcy. monthly lead to his basic testified $27,300 to his expenses pay totaled and he unable in full had been Regarding Barbara’s support obligation April. in March child $2,000 stated, I don’t pay "I month. cannot equipment his medical lease have it.” made March, monthly to April. but could not for He continued meet his
mortgage payment, $1,500 charged worth of furniture to his credit card September bought October over worth of $500 music equipment November, paid a salary Debbie February $679 only and was a month or two behind on car payments for the cars in possession. parties stipulated the February payment maintenance 25, $1,000
was made February payment was made March and a $1,000 payment second was April made 1992. Barbara testified appropriated IRS in her checking $100 account and the $400 in an individual retirement account which she opened try had to obtain medical high-risk insurance for herself as a patient through pool. State The bank which owned the note on the 1989 Cadillac contacted Barbara $1,700 and demanded payment of because the last payment had been made in December 1991.
The court found there had change not been a substantial in cir- support cumstances petition modify and found Ward’s monthly fairly constant and in excess of the December .income 1991 income that was the petition basis of the first modify. Given average gross Ward’s 1992 monthly $25,000, income of the court determined the monthly payment to Barbara was less than 8% of Ward’s income and could not find payment such a unreason- able. The court then took petition Barbara’s for rule to show cause under advisement. July
On attorney Barbara’s forwarded to the an order for cause, rule to show and the court entered that order on July hearing A on this July rule was held 1992. Ward testified by he was overdrawn bank, at his he was behind total of offices, on rent for his two the IRS had levied his February bank account and the State of Illinois did so in June 1992, obtaining about only pay he could afford to Barbara keep He continued to mortgage payment and lease payments for medical equipment current. court found Ward in failing to abide
court’s orders and ordered pay per Ward to month in maintenance thereafter. The court also found Ward arrears in the amount of in maintenance and ordered him this arrearage days, within 45 and the arrearage on Barbara’s car within eight days. The court entered order on finding October Ward in contempt entering judgment in favor of Barbara for $6,000 in temporary through maintenance September 1992, and attorney $2,492.50 for Barbara’s through fees of July addition, hearing. the court ordered Ward to month arrearage on the bring the loan on Barbara’s car current. *8 was remaining issues and all support, hearing property, on
A of- bookkeeper at Ward’s Gregory, a 17, 1992. Colleen held November 1992. Financial income for to his business fice, testified as and Ward into evidence. introduced practice were his medical records from to date of earnings in 1992 gross 1No. showed Plaintiff’s exhibit $190,602.27. Plaintiffs exhibit $236,604.13 expenses of and business in the amount business to Ward from the No. 2 showed amount, $13,000 temporary Barbara as went to $42,788.45. From paid for support Ward maintenance, $3,672 child was court-ordered $1,159.61 on spent was Ward’s marriage, and previous child from a disposable $24,956.84 was Ward’s balance medical insurance. income to date for 1992. $95,641.63 $121,830.89, were of which
Accounts receivable totaled accounts again placed a lien on these days The IRS had over 90 old. addition, Leasing, of the lessors of one taxes. In Professional for back his had a lien on notified Ward it equipment, medical all leased repossess it would receivable and indicated accounts the for- payments. He testified equipment if continued to miss any being and the IRS would receive residence was sold mer marital mortgages the real estate. payment of on proceeds net after his accounts re- of Revenue had also attached Department Illinois on his back State and had Ward to ceivable At the his medical license. suspend taxes or it would take action to $368,636.04. IRS was hearing, the total amount owed the time January at over million. listed his total debts as of $1 staff, in his medical office was behind He had further reduced his malpractice his insurance for equipment payments, lease and stated $32,000. due December payment, amount The first 1993 would $8,000. 1992, would be living expenses were monthly her testified current her mother and
$2,113. approximately She had borrowed bills. The 1989 Ca- gas and electric had insufficient funds to bank, was without by the so she repossessed had been dillac to the of certain parties stipulated then as value transportation. The dispute. of which was rightful owner personal property items December under advisement. On The court took the matter payment hearing at a to review stayed contempt but days jail to 30 for his
sentenced Ward hearing. further mittimus until January contempt was held hearing
A further sentence days first 17 of December testified his income for the 1993. Ward December, again levied on the IRS had He receivable, overdrawn. and his bank account remained accounts process moving was still in the practice from Jacksonville to that, Carlinville and indicated outstanding due to overdue loans at various area banks and those banks’ press charges, decisions to *9 prospects obtaining had no of money purge the due to himself of in the near stayed future. The court the mittimus to allow Ward another practice month to determine whether his in Carlin- ville would succeed. a February 18, 1993, court filed memorandum decision on
which it determined nothing Barbara had had little or to do with dealings Ward’s financial inequitable and therefore deemed it to hold responsible her payment any noted, however, of debts. The court lavishness, the overindulgence, was one based on and lack responsibility of parties. Although both definitely this was a case the court indicated suggest there was no evidence to regain Barbara could not employment similar to her former positions help expenses. with her credibility The court found Ward’s concerning "suspect his financial situation at best” and ordered Ward the entire marital indebtedness and the entire indebtedness to governments, the State and Federal to reimburse Barbara for all accounts, garnisheed convey from her and to monies his stock Development Corporation by Medical to Barbara execution of a stock transfer. The court also awarded Barbara one-half of the re- accounts prior 15, 1992, ceivable on medical services to November not seized IRS, month, and awarded payable maintenance of month, commencing the 20th of each with March 1993. Barbara was Cadillac, awarded antique wagons, antiques the 1972 in the shed, desk, sleigh, cranberry glassware, the Lincoln her refund, policy, plane insurance and the ticket while Ward was artifacts, awarded his Indian pole, the totem the notes to Medical Development automobiles, Corporation, the 1973 and 1978 his insur- policy, Municipal ance pension, Illinois Retirement Fund and the lawnmower, payments. newest on which he was to make dissipated The court had found Ward marital assets and dissipation by January ordered him to for this attorney days. toward her fees within 180 To Ward, payment by placed ensure the court a lien in favor of Barbara Development Corporation on Ward’s Medical notes and his Indian artifacts, including Judgment 8, pole. the totem was entered March 1993. hearing matters, pending arguments
On March on all days’ were heard and the to 30 court sentenced Ward incarceration Morgan County jail. in the provided purge Ward could by making by April all due payment himself full of maintenance motions, including to reconsider a motion post-trial 1993. Ward’s April followed. On appeal This contempt, were denied. sentence bond set at stay pending appeal with the court ordered posted the bond. accept his two argues court’s failure first the trial error. The maintenance was requests for modification the burden of order has seeking of maintenance party modification justified. change in maintenance is the trial court that a persuading (In 103 Ill. 2d Logston re moving justified only where the change A in maintenance (750 change in circumstances.” party can a "substantial demonstrate 5/510(a) (West 1992).) showing significant A some ILCS will always misfortune mean maintenance place taken does not has modify maintenance is within be terminated. The decision to appeal be disturbed on absent discretion of the trial court and will not Roach an abuse of discretion. In re petition The trial court denied initial for modification of *10 proved had not a temporary maintenance because it determined he change Despite the reduction in Ward’s substantial circumstances. only surgery practice and his December 1991 income of and, merely dipped court found Ward’s income had December evidence, change. At without further could find no such substantial levy hearing, testified to the IRS the second modification where Ward receivable, determined no substantial on his accounts the court hearing, change had last modification as Ward’s occurred since the average monthly income in the first few months of 1992 was a agree payor’s that when a maintenance income fluctuates We temporary always decline does not necessitate modification. The trial change a properly proving court here left the burden of substantial Ward, say that of circumstances to and we cannot its determination change an no such occurred was abuse of discretion. maintenance, awarding question temporary whether an order
We refusing modify temporary a award of or an order to certainly may appealed may Temporary orders not be appealed. be basis, interlocutory entry of a final or immediately, on an before the (See 192, 194, (1984), Marriage App. 126 Ill. 3d der. In re Kitchen of injunction not an (temporary support child order 467 N.E.2d 346 (134 307(a)(1) Ill. Supreme under Court Rule appealed which could be (a)(1))).) be assumed final is entered it must 2d R. 307 Once the order any in its thereby adjusted inequity the trial court has (See (1990), App. Ill. Marriage Meyer In 197 temporary orders. re of 245.) 975, 979, appeal we should consider 3d 557 N.E.2d On order, whether the trial court’s its overall resolution of the final issues, erroneous, is part not whether some thereof is erroneous. An favoring award petitioner part may by on one case be balanced an award respondent to on another. challenges modify temporary the court’s refusal to its support contempt
orders in order to his attack on the court’s order. contempt proceeding In most cases a cannot be used as method for final, attacking a court’s order which has become unless that order is (In (1990), 26, 62, Marriage App. void. 404, re Betts 200 Ill. 3d 558 N.E.2d (erroneous obeyed); People Rodriguez orders must be v. (void order).) (1988), 131, 139, App. 169 Ill. 3d 523 N.E.2d (at area) contempt proceedings Most civil least in the enforcement orders, deal with final because most orders are not enforceable until they Temporary are final. orders in dissolution of cases present exception; they enforceable, though they may are even appealable. may not then be final or We conclude that Ward attack modify temporary the court’s refusal to its maintenance orders as part upon finding of his attack the court’s order him to be gains great advantage in contempt. inability no that because always contempt. Apart question a defense to civil contempt, temporary appealable only we hold that a order is extent it is continued effect the court’s final order. by finding next contends the trial court erred him in
contempt
failing
the full amount of
mainte
nance,
by failing
opportunity
purge
him an
to offer
himself of
penalties
only
contempt. The
assessed in
civil
case can
order,
comply
they
serve to coerce the contemnor to
with a court
(In
complies.
must cease when the contemnor
re
Carpel
Betts,
App.
citing
232 Ill.
3d
597 N.E.2d
words,
App.
any
558 N.E.2d at
other
a court in
contempt proceeding
civil
allow the contemnor an opportunity
must
(In
purge
contempt.
re
Betts
any
purging provision
civil
nonpayment
contempt sanction for
must be based on
contemnor’s
*11
(Betts,
44,
Betts,
416;
ability
pay.
App.
200 Ill.
3d at
When pay orders, ordered him to contempt him in with its it found payments, arrearage in maintenance per month on the with the arrearage and to continue payments, in car plus 1993, when In March monthly temporary payments. maintenance arrearage had risen Morgan County jail provided but days him to 30 in the sentenced 10, 1993. arrearages by April all purge by paying himself Ward could because given keys "the to his cell” Although asserts he was not pay off the accrued maintenance he had no funds with which to continued to payments, the trial court found otherwise. Ward car leases, large mortgage, equipment make toward insurance, enough food and malpractice and he made certain he had receivable, his accounts money Despite for utilities. the IRS lien on enabled to collect sufficient funds which would have Ward continued or so to pay him to month and the additional $600 simply payments; make Barbara’s car the trial court found he prioritized payments. prioritization other Ward contends this interests, suggesting if he failed to attend both his and Barbara’s best continuing medical education keep medical conferences and current, and if he jeopardy, credits his medical license would be keep equipment payments, failed to current on his lease of these cir- equipment repossessed. would be Ward asserts either However, earning ability. the evidence cumstances would curtail his continuing enough indicated had more than medical education addition, probably practice credits. In testified he could without although strongly hospitals’ equipment equipment, felt was inferior. support payments is
Noncompliance with a court order to make (Lyons, App. 155 Ill. 3d at prima contempt. evidence facie pay failure to has been demon N.E.2d at Once court finds strated, alleged prove contemnor to the burden then shifts to the (In Cierny App. 187 Ill. conduct was not wilful. re A defense to exists 3d 543 N.E.2d clear insolvency obey pay is due to person’s where a failure to order of a misfortune, inability is the result or other unless that Betts, wrongful illegal App. act. 155 Ill.
922, citing Sullivan v. Sullivan wilful and insists that Ward contends his failure to was not *12 payments, since he was unable to make the maintenance the trial contempt court’s decision to hold him in was error. At the first hearing, testimony modification the trial court heard paid that Ward November; salary Debbie a in took her trip on October, they stayed New York in where at the Waldorf Astoria and show; gave days saw a check to the IRS four after the $294 due; payment single- December maintenance and continued to handedly mortgage pay utility payments, though even Deb- living hearing, bie was with At the him. second modification spent $1,500 heard evidence that Ward had on furniture in St. Louis, Debbie, equipment, ring on music on a $500 January had taken a cash advance in 1992. While Ward had months, not made on Barbara’s car for over four he was only one or two months behind on his car payments, and had found salary by February. January in for Debbie the end of $679 Luxembourg Debbie, trip the court heard Ward had taken a with above, spent on which he As mentioned the court found Ward was able to make payment spend to Barbara but had chosen to money ways. in other The trial court’s determination that Ward’s certainly against failure to was wilful was not the manifest facts, weight say of the evidence. Given these we cannot the trial finding court abused its discretion sentencing days jail contempt. him 30 for that finding dissipated
Ward next asserts the trial court erred ordering in marital assets and him to reimburse Dissipation one-half of that amount. is defined as the use of marital spouse’s purpose for one for a benefit unrelated to marriage undergoing at a time when the an irreconcilable (In (1990), Marriage breakdown. re O’Neill 138 Ill. 2d of 498-99; App. In re Tietz 238 Ill. 3d 683.) given 605 N.E.2d Whether a course of conduct (Tietz, dissipation depends upon constitutes the facts of each case. 683.) spouse charged with App. 238 Ill. 3d at 605 N.E.2d at showing, dissipation of marital funds has the burden of clear and evidence, (Tietz, convincing spent. how the marital funds were 683.) App. vague at General and statements 3d 605 N.E.2d at spent expenses marital are inade that funds were bills or on (Tietz, at quate finding dissipation. App. avoid a 238 Ill. 3d given by spouse charged explanation 605 N.E.2d at spent requires as to how funds were the trial court dissipation with 983-84, (Tietz, credibility. App. his or her 238 Ill. to determine reviewing A court should not reverse trial 605 N.E.2d In re finding dissipation absent an abuse of discretion. court’s 992, 994-95, Thomas 585, 587. argue failing trial to state what Ward seems to court erred A dissipation conduct constituted and how it arrived at the amount. when specific trial court is not to make such a statement finding which to base dissipation. ample The court had evidence on finding ostensibly to dissipation: expensive trips, its Ward took two credits, continuing spent which he maintain his medical education *13 $5,000 nearly employment; bought his and lost two weeks of girlfriend ring, equipment and spent a on music $500 furniture, refusing claiming pay while the IRS and insufficient maintenance; sign, pay funds to his wife’s continued to and make on, leases for thousands of dollars worth of medical though equipment, practice declining; even was and took a advance, cash sold one of the Cadillacs for and received lease, disposing money in cash from of this without accounting opportunity for it. The trial court had the to view Ward credibility, nothing and assess his and we find in the record to determining indicate court abused its discretion Ward had dissipated marital assets. property
Ward contends the court erred in its
division and
503(d)
Marriage
debt allocation. Section
of the Illinois
and Dissolution
(Act) (750
5/503(d) (West 1992))
Marriage
Act
ILCS
requires the
(Thom
just
trial court
property
proportions.
to divide the marital
587.)
as,
App.
239 Ill.
3d at
608 N.E.2d at
It is well settled that
just proportions
necessarily
mathematically equal
does not
mean
(Thomas,
588;
App.
shares.
239 Ill.
3d at
608 N.E.2d at
In re
App.
Hacker
239 Ill.
3d
606 N.E.2d
many
requires
The Act
a trial court to consider
factors when
dividing
including
marriage,
marital property,
the duration of the
living
during
marriage,
the standard of
established
the value of
property
each spouse,
awarded to
the relevant economic circum
spouse,
stances of each
or in
apportionment
whether
is
lieu of
health,
age,
occupation, employabil
addition to
and the
liabilities,
(Thomas,
ity,
party.
sources of income and needs of each
588; Hacker,
App.
App.
239 Ill.
666,
3d at
Individuals sometimes
decisions.
spouses benefit from those
great profits,
in
and their
result
losses,
spouses are harmed. A
great
Other decisions result
of
an individual
dissolution
penalize
trial court should not
a.
Only
during marriage.
judgment order for mistaken decisions
for one’s
dissipation,
the use of
conduct which amounts
marriage, may be
to the
purpose
and for a
unrelated
sole benefit
may not
dissipation
awarding
property.
marital
Even
considered
marriage,
during the
and not
simply
it
occurred
be considered where
"
undergoing
irreconcilable
an
a time that
the
'at
” (In
497,
O’Neill,
833
finally
awarding
per
asserts the court erred
$1,700 per
manent maintenance
in the amount of
month. The
awarding and modification of
sound
maintenance rests within the
discretion
an
of the trial court and will not be disturbed absent
abuse
(In
(1992),
952,
App.
of discretion.
re
Pedersen
237 Ill.
3d
956,
629, 632;
828,
App.
605 N.E.2d
3d at
N.E.2d
Carpel, 232 Ill.
597
863.)
at
appropriate
Maintenance for an indefinite term is
where it is
recipient
spouse
unemployable
employable
evident
is either
only
living
at an income considerably lower than the standard of
during
marriage. (Pedersen,
App.
established
237 Ill.
3d at
633-34.) However,
605
spouse
N.E.2d at
even a
awarded indefinite
good-faith obligation
becoming
maintenance has a
to work toward
(Pedersen,
634;
App.
self-sufficient.
237 Ill.
3d at
(1991),
371, 380,
re Marriage
Cheger
App.
213 Ill.
3d
571 N.E.2d
1141.)
obligation,
recipient
To fulfill this
spouse must seek
(In
accept appropriate
employment.
re Marriage
Lenkner
App.
Ill.
3d
goal
608 N.E.2d
establishing
spouse’s
financial independence "must be balanced
against a
appraisal
realistic
spouse
likelihood that the
will be
support
able to
herself in some
approximation
reasonable
of the stan
living
during
dard of
marriage”
established
(Cheger,
App.
213 Ill.
1140),
3d at
571 N.E.2d at
and is thus not
in all cases.
(Lenkner,
App.
903-04,
Ill.
3d at
citing
608 N.E.2d at
In re
Marriage Hensley
App.
dependent
spouse
former
is entitled
continue
approximation
live
some
living
to the standard of
established
during
marriage,
payor spouse’s
unless the
financial situation
Lenkner,
indicates otherwise.
The trial wisely permanent entered an order of mainte- nance in major this case. The question here is whether will be him, able to problems recover which have beset award of provides necessary flexibility provide for Barbara’s needs to the extent allowed Ward’s income. Ward challenges month, amount of as but accurately excessive it is difficult to determine the net income of self-employed individual. Such determination is one for the trial court. In this case Ward continued to receive substantial amounts as gross living lifestyle. income prior and seemed able to continue at his *15 questions credibility. Substantial The trial were raised as to Ward’s required accept court was not to assertion that he could not pay $l,700-per-month say afford to maintenance. We cannot that the although trial court’s improper, award maintenance was of course with its reconsider that award in connection the trial court must now again note that even property and debt division. We new decision on maintenance to spouse permanent who is entitled to employment. seek reasonable modify its
Accordingly, we affirm the trial court’s refusal order, finding in its order temporary maintenance contempt, and its de- 30-day jail of a sentence for that imposing the trial marital assets. We reverse dissipated termination Ward and debt and remand with parties’ property court’s division equitably be- and debt more instructions to reallocate may any make other the trial court parties. tween the On remand warranted, including a changes judgment its which it deems change maintenance. to its order of part in and remanded. part;
Affirmed in reversed LUND, concurring: specially JUSTICE suggests change Steigmann’s special Justice concurrence (see January Pub. Act 87— Act eifective section 504 of the (1992 1023-24)), "deprives January Ill. Laws eff. (260 continuing validity.” progeny its Mittra —and —of changed legislature has has that since 1977 He concluded I do not find favoring maintenance. disfavoring maintenance conclusion. justification for that intended, intended, permanent and is now is that has been
What However, negate that does not given proper cases. be maintenance partial seek or full recipient obligation by the maintenance by repeating what print I need waste cases. not self-support proper subject. on this by our and others continually been set forth has (See Lenkner, Three members App. 3d Cook, validity of Mittra court, recognized the including Justice our recognition by same emphasize and I opinion, Lenkner in this case. concurring opinion Cook’s with Justice changes section 504 since Having carefully examined holding justification for through changes, I find no inception the latest longer validity. has Mittra no STEIGMANN, concurring: specially
JUSTICE everything almost result and with Although agree fully I with the major- it, because reaching specially I write majority says no of law I believe a doctrine life into ity opinion purports to breathe spouse "even a states that majority longer Specifically, valid. obligation to work good-faith has a indefinite awarded *16 (260 833.) Further, becoming App. toward self-sufficient.” Ill. 3d at majority by writing, again the that opinion concludes the “We note spouse even a who is permanent required entitled to maintenance is (260 employment.” to seek App. reasonable Ill. 3d at For the follow, disagree reasons that I with these statements. support statements, In majority of the above the cites Pedersen
(237 958, 634), App. Ill. 3d 605 N.E.2d at which in turn cites In re 855, 860, 1158, App. Martin 223 Ill. 3d of good-faith Martin states that “[t]he failure to make efforts to goal future], achieve becoming financially independent [the in the following a reasonable time during objective frame which the should accomplished, might be petition form the for a basis for modification.” (Martin, App. 860, 223 Ill. authority, 3d at 585 N.E.2d at As Martin 627, cites In re App. Mittra 114 Ill. 1229, which support holding Martin, does the but was 504(b)(2) (and premised upon section of the Act the committee thereto) comments as that section then existed.
This court based its decision in upon original Mittra the intent of the Act in replace which was to maintenance with property possible. division to the extent legislature In clearly the viewed disfavor, maintenance with some and that disfavor is the source of the Mittra rule that spouse "even a awarded indefinite maintenance good-faith has a obligation to work becoming toward self-sufficient.” 3d at 833. later, years Sixteen through Act, its 1993 amendments to the legislature has equally longer made clear that it no views mainte nance with disfavor. January legislature Effective gutted (See section 504 of the Act and rewrote it. Pub. Act eff. 87 — (1992 1023-24).) January Ill. Laws Because this court premised Mittra so strongly upon section 504 and its committee (see Mittra, 634-35, comments 114 App. 1234), 450 N.E.2d at rewriting of section deprives progeny Mittra —and its —of continuing now, validity. suggest does, To majority as the that a spouse receiving permanent maintenance is still to seek rea sonable employment is to treat section 504 of the if Act as legislature had never revised and rewritten it. 504(b)(2)
Note specifically that the “old” section section — the before Public Act 87 — 881 following amended it—defined the as a rel evant necessary acquire factor: “the time sufficient education or training party seeking to enable the appropriate maintenance to find (Ill. 504(b)(2).) employment.” 40, par. Rev. Stat. ch. As a result 504(b)(2) 504(a)(5) of Public Act section became section 87 — now reads as necessary follows: "the time party seeking to enable the education, training, acquire appropriate support able to party whether that
employment, and himself the custodian a child employment or is herseljf through appropriate employment.” seek the custodian not making appropriate it that 1992).) 5/504(a)(5) (West added.) (750 suggest I that ILCS (Emphasis language legislature with this new changes sought by the one majority today that of the Mittra doctrine was the elimination maintenance order this good Note also that the claims is still law. date of February after the effective entered on case was Public Act 87—881. section to section recent amendment
As a result of the receiving maintenance spouse regarding what is now neutral judgment and discretion do, leaving matter to the sound must thinks it words, judge in this case if the trial trial court. other mainte- recipient permanent respondent, appropriate to order *17 becoming goal nance, toward employment to seek reasonable us does not need self-sufficient, judge can so order. He then the the issue shoulder, telling how he should view him peering over adjudicating. spent has months in a case he of maintenance HOLMES, Robyn Way, LYNN OF ROBYN In re MARRIAGE n/k/a (The Depart HOLMES, Petitioner, Respondent-Appellee LEE and ROBIN Aid, Intervenor-Appellant). ment of Public 4 — 93 — 0516 District No. Fourth April Opinion filed