*1 victim. Accordingly, because the of child pornography offenses exploitation sexual of a legislature child—as defined our not —are identical, we proportionate-penalties conclude that the clause was not violated. We thus four-year prison further conclude that defendant’s sentence not unconstitutional under the third test of the proportionate-penalties clause.
III. CONCLUSION stated, For the reasons we affirm the judgment. trial court’s Affirmed. EJ.,
COOK, McCULLOUGH, J., concur. MOUSCHOVIAS, In re MARRIAGE OF Petitioner-Appellee, JANICE V. MOUSCHOVIAS, TELEMACHOS CH. Respondent-Appellant. 4—03—1038, Fourth District Nos. — 0063 cons. 4—04 Opinion July 14, filed Rehearing August denied 2005. *2 APPLETON, J., dissenting. *3 Mouschovias, Urbana, pro
Telemachos Ch. of se. Erwin, Tinney, Cole, Ltd., B. Champaign, Sarah of Martinkus of for & Janice V Mouschovias.
PRESIDING JUSTICE opinion COOK delivered the of the court: Petitioner, Mouschovias, Janice V respondent, and Telemachos Ch. Mouschovias, were married June 1987. Three children were born Alexander, August 30, 1991, as a result of the marriage, Marga- born rita, 14, 1993, Adonis, born September May and born 1996. Janice a petition September filed for of on On dissolution remaining October court final all the entered its order on is- appeals. cross-appeals. sues. Telemachos Janice We affirm.
I. BACKGROUND Janice, age degree physical of in educa- has bachelor science Urbana, a single-family dwelling tion. She and the children reside in in dwelling by Illinois. She rents the from a land trust owned her father. “super hardworking primary The court found that Janice was a Janice, of home and the The that caretaker children.” court found health, and relatively young good clearly capable supporting in is of year, employed she was full-time 2002-03 school During herself. $24,307. salary school, at an annual of high a local Catholic Il- University at the of Telemachos, professor a tenured age (physics and departments in (University), teaching two linois in residence in the former marital astronomy). continues to reside He trial court found Urbana, The which is hardworking primary breadwinner super be “the Telemachos to pension financial has a family” and “an astute investor.” System Retirement by the State Universities plan administered (SURS). 21, 1980. system August first certified into the He was $90,000 $100,000 per year from and Telemachos earned between University. of most parties engaged in one
The court noted that trial their living imaginable considering of income miserly standards ap- regarding disrepair of testimony The referred to assets. home, in household, in lack heat the fact pliances of and had money purchase necessary did food items Janice not have for minor household receipts to be reimbursed even to submit months, Telemachos’s use expenses, Janice’s lack of a vehicle for children, highly and unsafe for the a 1980 vehicle unreliable hazards in the high disrepair and the state of and environmental family separation, the annual year preceding parties’ home. The family five with a husband expenses “miserly were a for a mil- earning University holdings of over $2 substantial income” liquid lion assets. maintenance, noting parties only trial court denied Janice litigation; together by years nine followed five Janice years
lived month temporary per had received “minimal” maintenance of $500 part of its order litigation. The court also noted that as $522,745 in Janice would assets addition receive marital valued her interest in Telemachos’s rather retirement account. substantial portion of Telema-
Janice was awarded one-half of the marital as[,] by pension, “if, pension chos’s is received SURS when” Telemachos. normally considered an
The trial court stated it would have unequal Janice’s favor because distribution offset Janice’s Telemachos’s contributions breadwinner were *4 homemaker, posi- much as Telemachos was in a better contributions assets, acquire tion to future and had nonmarital Telemachos $446,026 $1,054 The opposed set off to him to to Janice. valued at court chose not to do that this case because of Telemachos’s estate, funds the marital substantial contribution of nonmarital to which were to the total value of unable be traced. The court calculated $1,141,204 50%, $570,602,
the marital to be and awarded to party. each Janice’s share by was reduced a attorney-fee reimbursement. Telemachos’s was by share increased that same amount. carry division,
To its out the trial court nine ac- awarded counts, $136,572, with eight a value to Janice. The court awarded accounts, together nonmarital account that owed $42,252 reimbursement, marriage a The total Telemachos. value $1,004,631. eight those was Among eight accounts those accounts Vanguard Fund, Prime Money-Market opened were which had been Fund, Vanguard Telemachos and a before Index opened days had the marriage. which Telemachos five before The Vanguard Money-Market Fund Prime had a current balance of $20,361. Vanguard 500 Index Fund had a current balance $527,072. settlement, equalize To Telemachos was $386,172. pay ordered to Janice assigned
Telemachos also seven nonmarital accounts valued $446,026, plus $81,680. residence equity nonmarital with an assigned Janice was as her her Teacher’s Retire- Account, $1,054. System ment valued at 28, 2003, In its order of October the trial noted par- that the had ties allowed their hatred and bitterness for each other to inhibit any analysis thinking. inability or rational The result agree was an just issue, every issue, up about any litigate on conceivable to take huge time, attorney amounts of court and to amass a small fortune in 13, 1997, 20, and expenses fees incurred. June and March Between 1998, custody the trial 15 hearings temporary court conducted some on and visitation and February February issues. Between permanent custody 18 hearings court conducted another on 20, 2001, February and visitation. Between February hearings remaining ancillary trial court conducted 20 on the issues. September granted On Telemachos’s attorney was leave withdraw, se, himself, from represented pro point litigation. attorney
During proceedings, the trial court awarded interim occasions, $135,714. Janice on totaling fees costs to six Telema- amount, initially paid chos that entire but the interim because awards estate, considered an advance from the marital Telemachos was were Although found given credit in the final order. the court both war,” “share the blame for this the court further found Telema- after custody dispute continued the the court had unreasonably chos against temporary custody. Accordingly, him on the court ordered ruled individually responsible for at- that Telemachos would be Janice’s
353 $95,714, $40,000 balance, would the to the extent of and torney fees previously parties. As Telemachos had equally be the divided between marital estate $135,714, to reimburse the paid Janice was ordered (reimburse $95,714 $47,857). Telemachos
II. ANALYSIS SURS Pension A. por- awarding in Janice argues trial erred
Telemachos court benefits, “if, as[,] and those benefits pension when” tion of his SURS earnings if of his after dis- argues any part are He received. also marital, amount regarded as that would solution of the were amendment of the thirteenth involuntary to servitude violation (U.S. XIII). Const., amend. apportioning procedures are alternate for
There
at least two
Wisniewski,
re
pensions upon
Marriage
dissolution. In
unmatured
of
(1997).
241,
1362,
one
ap
286
675 N.E.2d
1366
Under
Ill.
proach,
court,
dissolution,
present
value
upon
the trial
determines
pension,
interest
in the
pension,
determines
compensate
nonpensioner spouse
awards the
other marital
spouse.
pension
to the pensioner
the award of the entire
Under
Wisniewski,
Ill.
at 1366-67.
286
immediately
the non-
compensate
second
court does not
approach, the
Instead,
pay the
pensioner spouse.
employee spouse
it orders that the
“if, as,
portion
nonemployee spouse his or her
of the marital share
Hunt,
pension
Marriage
when” the
becomes
In re
78
plan
mature.
time of
At the
dis
App. 3d
solution, the court
will
determine both
can devise formula that
later
nonpensioner’s
interest
share in
benefits. This
and the
pen
produces
percentage,
multiplied
formula
which will be
Hunt,
actually
sion
as
3d at
payments
they are
received.
663,
Both here an (1) reasons: pension. trial so for a number of court declined do (2) close; there was a probably date was not Telemachos’s retirement opinions present value discrepancy tremendous and Janice’s pension, expert valuing it Telemachos’s (3) $669,498; expert valuing it at a “clean break” between require, “will unfortu impossible because their three children future”; parties in the nately, substantial involvement between (4) country are Janice’s concerns that Telemachos would leave court speculative complied has with appropriately Telemachos event, pos and could orders, any Champaign and in SURS is based if occur. We joined party emergency as a third circumstances sibly be conclude the trial did not abuse its discretion in its choice of an apportionment Wisniewski, method. See 286 Ill. App. 3d at N.E.2d at 1368. disagree
We
argument
Telemachos’s
that consideration of
any part of his earnings after the
improper.
dissolution is
Part of the
benefits that Telemachos will accrue after the dissolution will be due
contributions,
contributions he
made
the marriage.
The trial court
required
was not
ignore
those marital contributions.
Wisniewski,
Ill. App.
243-47,
B. Classification of Marital and Nonmarital Property argues the trial court erred in classifying the *6 Vanguard Money-Market Prime Fund and Vanguard the 500 Index Fund, both of which had opened been himby before marriage, property. marital Even if the classification, court erred in however, its we see no error. The court is required “assign spouse’s each non- 5/503(d) (West [ property spouse.” to that 750 ILCS Imarital That was done here. The two funds were awarded to Telemachos. Classification of the accounts as marital arguably resulted in Janice receiving a greater share of the other marital assets. The court is al lowed to take nonmarital property into consideration, however, in determining what share of the marital property should be awarded the parties. The court shall divide just proportions considering factors, all relevant including “the value of the property 5/503(d)(3) (West 2002). assigned to each spouse.” 750 ILCS The trial court stated it would have greater awarded a share of the marital as sets to Janice but for “the nonmarital property contributed to the by marital funds [Telemachos] which were unable to be traced.” The court was well aware of parties’ marital and nonmarital contribu tions. The court’s distribution of marital assets if proper was even its classification of the two accounts was not and there were fewer marital assets than the court had calculated.
However, we conclude two funds were properly classified as marital. “[P]roperty acquired before marriage” constitutes non- 5/503(a)(6) (West 2002). marital property. 750 ILCS “Property,” however, (a must have identity, some some A integrity. receptacle mere bucket?), owned party a before marriage, into which he places property, is not sufficient to invoke “contributing the rule that one estate of resulting into another in a of identity loss contributed property” transmutes the classification of the contributed property to that of the estate receiving the contribution. 750 ILCS (West 5/503(c)(l) 2002). “We believe that to hold that those funds were transmuted to nonmarital would contravene the intent
355 503(c) of Mar Marriage Dissolution [Illinois behind section 1998)).” (West (750 5/503(c) [(Dissolution Act)] In re ILCS riage] Act 1137, 1143 Henke, N.E.2d App. 313 Ill. Marriage of prior in existence that was checking a account Henke involved in the account were marriage. holding that the funds to the In parties’ facts the amount marital marital, court relied on the the trial of nonmarital funds greatly funds exceeded amount contributed during the initially deposited and withdrawn present, funds were Henke, Ill. 3d at pay family expenses. marriage and used recognized right of reimburse at Henke marriage of 16 little such an asset after ment could be of value with 1143; H. Git years. Henke, Ill. 728 N.E.2d at cf. 2002) (Second lin, 10(c), (May § 8—57 Divorce n.40 Gitlin on 8— statutory prescription did not to the of sec District in Henke adhere 503(c)(1)). tion Henke. A should not be allowed defeat agree party
We
acquired during
concept
fundamental
that all
checking
plac
in his name and
property by opening
ing
marriage,
then
meager amount
in that account before the
depositing
paychecks
marriage.
into that account after the
We
all
recognize
employ
precise analysis.
Henke did not
this
Henke stressed
issue,
dispute
checking
account at
fact that
did not
initially
prior
parties’
existence
nonmarital
Henke,
at 1143. Other
cases addressing the issue
also assumed that the account itself
have
took on the
a marital or a
asset based on
either
type
initially
of funds used
establish the account. See
re Mar
riage
(1992);
In re
*7
Phillips,
3d
The trial findings court made several regarding these accounts. First, it was never clear to the presented court from the evidence exactly immediately what funds were owned prior Second, marriage. myriad among transfers occurred the various during marriage. Third, accounts many of the investments were during funded marriage by withdrawals from Telemachos’s check- ing account where his University paycheck Fourth, deposited. was evidence years showed that the nine par- of the expended very ties little of Telemachos’s University income. Telema- chos’s University period income over the of the and the period between the filing entry judgment dissolution and the of the on grounds certainly would substantial amount of the investments.
“A trial
court’s
classification will not be disturbed unless
it
contrary
weight
Henke,
to the manifest
of the evidence.”
App. 3d
At multipage showing Telemachos offered a document his growth calculations of the marital and assets various accounts. The trial court excluded the document on the basis timely assuming it had not been disclosed. Even court erred trial document, excluding op- we are confident Telemachos had a full portunity present theory lengthy proceed- of the case in these ings. *8 Estate the Marital
C. Reimbursement him ordered improperly the trial court argues that Telemachos Vanguard $45,252 from his nonmarital estate the marital to reimburse (IRA). argues that Janice He retirement individual Windsor convincing clear and “by marital contributions any to retrace failed compound-interest relied on expert Janice’s and that evidence” salary from Telemachos’s stocks. formula, inappropriate for which was any marriage, and during the only income University was pos It is from that source. had to come to the account contributions non- from other received transfers account could have sible that the transfers that such accounts, has not shown but Telemachos accountant McGrath, public a certified expert, Mary Janice’s occurred. accounts, such that stock planner, financial testified and certified compound-interest- IRA, from were different Vanguard Windsor fixed rate of interest accounts had no bearing accounts. Stock of the shares. McGrath fluctuating on the value depended their value stocks, “more performs her calculations that in the case of she testified basis, original investment and accounting following on an actual properly trial court ordered growth appears on it.” It reimbursement. Attorney
D. Fees fees and costs to Janice The trial court awarded interim from $135,714, designated as an advance amount of which the court 5/501(c 1)(2) (West 2002) (interim the marital estate. See 750 ILCS — parties’ advances from the shall be deemed to have been awards estate). case, the trial court ordered At the conclusion of the $40,000 paid from the marital estate of those fees would not be (West 2002) for 5/503(j) (petition 750 ILCS but Telemachos. See closed). have proofs contribution to fees and costs after $25,000 in pay ordered him to complains that when the trial court marital funds under his July interim fees on he had no more $25,000 ac pay had out of a nonmarital control and therefore reimburse his nonmarital He asks that Janice be ordered to count. Telema in fact ordered to reimburse estate in that amount. Janice was $47,857. If it is Telema chos’s nonmarital estate the amount power to order the trial did not have argument chos’s disagree. $40,000 entirety, in their him of Janice’s fees we pay hearing [s]ection under this any “If at time a court finds that a the court shall al improper purpose, precipitated any or conducted for or hearing party of all locate fees costs (West 5/508(b) improperly.” 750 ILCS counsel found to have acted unreasonably continued found that Telemachos The court custody dispute against temporary after the court had ruled him on custody and that in attorney fees was incurred for that reason. *9 Cross-Appeal
E. Janice’s In cross-appeal, complains Janice that the trial did not attorney paid by consider the fees and costs Telemachos on his own behalf argues as an advance from the marital estate. Janice Telemachos paid attorney his own fees in the amount of estate, from the marital only remaining marital estate was equally parties. contrast, divided attorney paid between fees behalf, $95,714, on Janice’s added were back to the marital estate before the estate was divided. Janice raised in a posttrial this issue argued, motion to reconsider. When the motion to reconsider was complained issue, trial court that Janice never raised that which was dissipated somewhat nature of a claim that Telemachos had marital assets by paying attorney his own fees. No evidence showed the source of payments, proving Telemachos’s and the burden of dis sipation party alleging is on the it. In re Marriage Zweig, See (2003). say We cannot that the trial in denying posttrial court abused its discretion Janice’s motion. The trial court was satisfied with its division of even precisely if its division was not 50/50.
E Restrictions on Visitation argues Telemachos the trial court erred when it included the following provision awarding custody provid its order to Janice and ing prohibited taking “[Telemachos] for visitation: is from the children outside the continental during any period. United States visitation attorney is any passports [Telemachos] to continue to hold provides minor children.” The Dissolution Act that “the court parent’s rights shall not restrict a visitation unless it finds that mental, endanger seriously physical, visitation would the child’s 5/607(c) (West 2002). moral[,] or emotional health.” 750 ILCS Not meaning every limitation on visitation is a “restriction” within the 607(c) 607(c), preserve designed section however. Section is visitation, aspects grant standard not to the noncustodian unusual visitation, right including A rights. unsupervised noncustodian’s home, 607(c), protected by section but overnight visitation in his Barton, See Gibson v. beyond little is covered. and has standard
Telemachos resides Illinois visitation with country, children. If should choose to visit his native he Telemachos agree- Janice. If an may attempt arrangements to work out the trial court for reached, may petition ment cannot be Telemachos blanket grant declined to permission. properly The court country with the leave, trip, to leave the any planned in advance of children.
III. CONCLUSION remaining arguments, many of Telemachos’s We have considered legal authority. reject We supported by explanation or which are not arguments. those judgment. affirm the trial court’s
We Affirmed.
McCullough, j, concurs. APPLETON, dissenting:
JUSTICE majority. I I respectfully dissent from the decision of the While can, statute, offending up concur that Janice without end with the her, court, by major- same amount awarded to the trial as affirmed *10 ity, wrong path took the to arrive at that result. proceeding marriage,
In a
for
the trial court must
dissolution of
assign
spouse’s
property
spouse
first
each
nonmarital
to that
and then
5/503(d)
property
just proportions.
divide the marital
into
750 ILCS
(West 2002);
Phillips,
Section of the Dissolution Act property”: between “marital” and “nonmarital “(a) Act, purposes property’ For of this ‘marital means all property acquired by subsequent spouse either to the except following, property’: ‘non[]marital which is known as
[***] (2) property acquired exchange in property acquired before ***; * * * (6) marriage; property acquired before the (7) acquired by in method property the increase value of (1) (6) subsection, paragraphs through irrespec- in of this listed tive of the increase from a contribution of whether results property, property, personal non[ ]marital effort of a otherwise, spouse, subject right or to the of reimbursement (c) [sjection; provided in subsection of this (8) property acquired by from a method listed in income (1) (7) if paragraphs through of this subsection the income is not personal spouse.” attributable 5/503(a) to the effort of a 750 ILCS (West entirely of either property Under section each item two, entirely nonmarital, of the and that rule holds hybrid or not commingling Sec- despite true of marital and 503(c) provides: tion “(c) jmarital Commingled property non[ marital and shall be manner, agreed by the following
treated in the unless otherwise spouses:
(1) property commingled non[ ]marital When marital and are resulting in by contributing one estate of into another of identity property, a loss of of the contributed the classification receiving the contributed is transmuted to the estate (2) contribution, subject paragraph provisions to the subsection; provided non[ ]marital if this that marital resulting commingled newly acquired property into property are estates, commingled contributing a loss of subject property, be deemed transmuted to marital shall (2) provisions paragraph of this subsection. (2) one estate of makes a contribution When personal property, spouse or when a contributes another estate contributing property, non[ estate shall be ]marital effort to receiving notwith- from the estate the contribution reimbursed transmutation; standing any provided, that no such reimburse- not respect made to a contribution which is ment shall be evidence, or, gift, or convincing retraceable clear *11 personal spouse non[ ] effort of a to the case of a contribution of significant and results in property, unless the effort is marital property. Personal non[ ]marital appreciation substantial the marital spouse deemed a contribution the effort of a shall be may for reimbursement out provide The court estate. against lien by imposing divided or property to be marital received the contribution.” 750 property which non[ ]marital (c)(2) (West 5/503(c)(l), ILCS 503(c)(1), commingling of marital and
Thus,
under section
transmutations,
in
property
nonmarital
will result
either
two
If,
commingling
in
of the two
depending
identity.
on the loss of
receiving
estates,
contributing
loses its
and the
estate
contributing estate is transmuted to the
identity,
estate retains its
property and
receiving
commingle
If both estates
into new
estate.
identities,
thereby
property
property.
lose their
the new
is marital
before the
parties agree
The
that the Portfolio account existed
that,
commingled
marriage
after the
marital assets were
(Telemachos
the transfers
argued
with it.
in trial court that “most of
***
in nature.”
into this
but be nonmarital
[could not]
account
added.))
marriage”
is non-
(Emphasis
“[P]roperty acquired before
5/503(a)(6) (West 2002).
found—and
marital. 750 ILCS
The trial court
marriage, Telema
supports
finding that, during
the evidence
—
additional shares in the
earnings
professor
buy
chos used his
as a
earnings
property.
Portfolio
Those
See 750 ILCS
account.
were
5/503(a) (West 2002).
Davis,
763,
authority
App.
On the
215 Ill.
44,
argues
commingling
Janice
of marital and non-
funds
Portfolio account transmuted
Davis,
767,
47,
App.
215 Ill.
3d at
576 N.E.2d at
J. Nathaniel
Davis,
(Nat),
Jr.
during
marriage
inherited assets from his mother
open money-market
and used the inheritance to
account with Mer
Lynch.
later,
rill
A year
he inherited assets from his
father
deposited
Davis,
that inheritance into the account as well.
215 Ill.
767,
later,
App. 3d at
reasoning, items of both marital and nonmarital were com mingled property, resulting type into new in the third of transmuta 503(c)(1). Davis, tion section 215 Ill. 3d at N.E.2d account, By depositing money-market bought 48. funds into he had account, Lynch shares in the and Merrill in turn had used those shares Davis, buy new stock and bonds. Although initially the shares the account were *12 362
property,
began buying
he later
more
marital property.
shares with
Davis,
769,
App.
impossible
215 Ill.
3d at
576 N.E.2d at
It was
“to
***
distinguish
purchase
used to
additional
which
shares were
stocks
Davis,
769,
“Thus,
or
215
at
at 48.
App.
bonds.”
Ill.
3d
newly
being.
created assets came
Once
and
into
marital
nonmarital
commingled
identity through acquisition
funds are
and lose their
aof
Davis,
newly
marriage,
created asset
the asset is marital.”
769,
215 Ill.
at
App. 3d
Davis irreconcilable with section Nat estab Lynch lished the Merrill account with assets he had inherited from his parents. Therefore, property. was his nonmarital When he deposited account, later marital funds lost funds into those their account, however, identity. identity. retained its It remained account; only the changed. same number of shares At the instant of account, their into the marital deposit funds were transmuted to property (subject Nat’s nonmarital estate). to reimbursement of marital 503(c)(1). 40, 1987, par. Ill. Rev. See Stat. ch. WfiienMerrill Lynch bonds, used the in the account buy turn shares to stocks (to using it the marital Nat’s nonmarital which funds transmuted). already Only contributing had been if both estates lost acquisition they their in the new property were transmuted 503(c)(1). 40, 1987, par. Stat. property. See Ill. Rev. ch. Instead, That, happened apparently, was not what in Davis. property upon funds their were transmuted nonmarital account, and, transmutation, deposit Lynch into the after that Merrill buy used the funds account to other securities. held, repeatedly deposit the Second has of marital
As
District
those
funds into a nonmarital
investment account transmutes
funds
812,
Ill.
594
Phillips,
App.
In
229
3d at
N.E.2d
nonmarital
355,
example,
Phillips participated
ownership
at
in a stock
Ann
began participating in the
plan through
employment.
plan,
her
She
accumulating
therein,
marriage. Phillips,
her
stock
before
229
App.
812,
bought
After the
she
ad
3d at
N.E.2d at 358-59. decision explained: District 503(c)(1) Act, the [Dissolution] section stock
“Under
asset
increased after
ownership plan is a nonmarital
salary,
on Ann’s
a marital asset. As
through contributions based
shares,
such,
be classified
plan,
the entire stock
all 137.682
should
subject to
as nonmarital
reimbursement
plan during
estate for
made
marriage.”
contributions
Phillips,
229 Ill.
3d at
N.E.2d 785 Joseph Angelo N. Di profit-sharing had a ac count through employment, and immediately marriage, before his the account had a cash value. After the marriage, profit- he rolled the sharing account into an Angelo, IRA. Di App. 295, 159 Ill. 3d at 512 N.E.2d at 785. Because in exchange obtained for nonmarital (Ill. property was nonmarital property 1985, 40, Rev. Stat. ch. par. 503(a)(2)), the IRA was Joseph’s nonmarital property, as the trial correctly held. Di Angelo, 159 App. 295-96, Ill. 3d at 512 N.E.2d at During 785. marriage, value, and, the IRA increased in as the held, court also correctly that increase in value Joseph’s nonmari 503(a)(7) (Ill. tal property under section 1985, 40, Rev. Stat. par. ch. 503(a)(7)) regardless of whether the source of the increase was — marital or nonmarital. Di Angelo, App. 296, 159 Ill. 3d at 512 N.E.2d at 785. But the court erred in stopping there. As the Second District explained: problem “The lies in the court’s failure findings regard to make ***
ing the source of the increase in the value of the
IRA ***. This
problem because,
is a
while the
increase
value is [Joseph’s] non-
marital
irrespective
source,
‘subject
of its
it
right
503(c)
(Ill.
provided
reimbursement
in’ section
[Act]
of the
Rev.
503(c)(2))
1985,
40,
Stat.
par.
ch.
Angelo,
***.” Di
Ill. App.
159
3d
296-97,
at
In
present
Perlmutter,
rather than
Phillips,
follow
Di Angelo, the trial court and the majority rely on another Second
case, Henke,
District
App.
159,
1137,
313 Ill.
3d
728 N.E.2d
to hold
that
the Portfolio
Henke,
account was marital
In
property.
Ill.
313
App.
163,
3d at
1140,
728
Henke, Jr.,
N.E.2d at
farmer,
Marvin W
had
checking
name,
account in his
and the account existed before
his marriage to Adele. Marvin testified
he
deposited his farm earnings
checking account,
into the
from which he
paid family expenses
Henke,
expenses.
business
164, earnings Henke, 1141. property. N.E.2d at Those were marital 728 167-68, 313 at at App. Ill. 3d application District The Second conceded “under a strict 503(c)(1) Act,” [Dissolution] section of marital the contribution checking earnings to the nonmarital account would have caused those earnings lose their as and become to added.) (Emphasis to transmuted Marvin’s nonmarital 503(c)(2) Henke, 167, App. Ill. 3d 1143. Section 313 at at would insomuch she only have allowed reimbursement Adele as contribution, evidence, convincing retraced each such clear and to a Henke, 3d at N.E.2d App. marital source. 313 Ill. 728 at 1143. years, retracing for 16 Considering that had been married checking of marital funds into the account would have deposits been, matter, Henke, 313 Ill. practical impossible App. Adele. N.E.2d at 1143. 728 view, legislature
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In the Portfolio the trial court Henke to in paragraph of Henke which the Second to have overlooked the Perlmutter. The Second expressly distinguished Phillips District appear [Phillips Perlmutter] District said: “It does not in either or accounts funds were ever withdrawn from the nonmarital or pay family from the used to funds nonmarital accounts were ever Henke, 168-69, expenses.” household 728 N.E.2d at present distinguishable case is from Henke for similar reasons. of purports “[m]ovement exhibit No. Janice to describe the during [in account] monies the Portfolio other than exhibit, According period income reinvested.” to this of 30, 1987, in through April bought June shares times, exchanged the Portfolio account a total of 59 and he shares for other shares 8 times. The exhibit one only redemption” shows “check nearly 10-year period: May 11, 1998, for that entire on in it was $31,000. amount learn from Nos. We exhibit 72 and 83 that (as Henke) purpose solitary this “check was not redemption” rather, pay family expenses but, or buy household in differ- shares (Index account, ent Vanguard investment Trust Index 500 account account). from Vanguard Group Statements of Investment Companies (Vanguard) show the transaction.
Thus, according evidence, undisputed this case lacks the “unique circumstances” of Henke. The Portfolio account not a checking (or, account which the parties routinely appears, from it ever) paid expenses. household This case to Phillips, is closer Perlmut- ter, Angelo and Di than to Henke. only distinguishable,
Not is Henke respectfully disagree but I because, Davis, plain, that decision like it is irreconcilable with the 503(c)(1). unambiguous language section Gitlin observes: opinion appellate “While the Henke states the court is not mak- 503(c)(1), ing application a ‘strict’ of [section] [sec- the fact is that 503(c)(1) simply applied by appellate tion] was not court. While classifying checking appears as marital to be funds *** equitable, the [S]econd [District did not adhere to the statu- 503(c)(1).” tory Gitlin, prescription [section] 1 H. on Gitlin 10(c), § Divorce (May 8—57 n.40 8— 503(c)(1) duty We have a apply provisions clear of section reading exceptions without the statute any into or limitations— regardless given of whether think the is a bad we statute idea *15 114, Inc., 92, case. See 204 Ill. 2d 787 Heritage Enterprises, Eads v. 771, N.E.2d Nowhere say inapplicable 783 does the statute it is pay expenses. to accounts used household Nowhere does the statute 366 began it is nonmarital accounts that with a low
say inapplicable to grew during marriage because of marital contribu- balance and tions. no of
The marital funds had effect on contributions of lost deposits identity, the Portfolio account. The their but account Portfolio account remained the same account —with same number, shareowner, company, the same investment the same changed, The number of shares but not same contractual terms. identity of the account. The Portfolio account is Telema- essential subject property, chos’s nonmarital to reimbursement the marital convincing are estate for contributions that retraceable clear evidence, including See ILCS Telemachos’s earned income. 750 (c) (West 2002). 5/503(a)(7), crystal-clear language The of sections 503(a)(6) (c)(1) admits of no other conclusion. The classification weight is of the against this account as marital manifest evidence. Henke, the trial court classified Index 500
Also in reliance on 984196452-6, account, will refer to as account No. which we this account on opened The court found that Telemachos property. 15, it marriage. Ergo, before the is Telemachos’s days June 1987—five (see 5/503(a)(6) (West 2002)), subject ILCS (c) (West (see ILCS reimbursement of the marital estate 5/503 2002)). against is the manifest Its classification as marital weight of the evidence. erroneously that classified argues
Telemachos also the trial (Portfolio Money-Market Prime IRA Vanguard his IRA) Reserves Portfolio this on opened He contends that he account property. as marital account, $2,000 from a nonmarital December account, 83, the Portfolio pertaining Portfolio account. Exhibit No. showing a transfer on December an account statement contains to an which will $2,000 from the Portfolio account account we which is the account number refer to as No. pertaining in exhibit IRA. The first statement No. Portfolio “trade on the IRA, “beginning balance” Portfolio shows a is Property acquired date” of December presumption can but one rebut presumed property, to be marital listed in section acquired by method by showing was (750 5/503(a) (West 2002)). 503(a) ILCS Dissolution Act (West 2002). 5/503(b)(l) Vanguard, from statements ILCS “property Portfolio IRA prove 6 and in exhibit Nos. marriage.” See before the exchange property acquired acquired (2) 5/503(a) (West Therefore, Telemachos rebutted ILCS and it should property, IRA that the Portfolio presumption been classified as nonmarital have *16 short, the trial court should have reimbursed the marital estate three accounts to the extent that Janice retraced the marital these evidence, convincing by
contributions clear and then the court “just” would been proportions have free to divide the marital estate par- arrive at same or similar total asset allocation between the special ties. The use of Henke not match circumstances do presented by ones facts of case simply shortcut to avoid the analysis required the statute. OSMAN,Independent
NANCY Laughlin, Adm’x of the Estate Shannon A. Deceased, Plaintiff-Appellant, COMPANY, v. FORD MOTOR Defendant-
Appellee. Fourth District No. 4 — 04—0601 Argued Opinion June August filed 2005.