Opinion
2-21-0354
03-18-2022
In re MARRIAGE OF ERIN MAPLE, Petitioner-Appellee, and DOUGLASS MAPLE, Respondent-Appellant.
This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Kendall County No. 19-D-74 Honorable Joseph R. Voiland, Judge, Presiding.
JUSTICE ZENOFF delivered the judgment of the court. Justices Jorgensen and Brennan concurred in the judgment.
ORDER
ZENOFF, JUSTICE
¶ 1 Held: The appellate court affirmed the trial court's judgment because the trial court's finding that respondent retained control of proceeds from the sale of marital real property was not against the manifest weight of the evidence, and the trial court did not abuse its discretion in allocating the marital property, which included an offset to petitioner from her 401(k) to account for the funds retained by respondent.
¶ 2 Respondent, Douglass Maple, appeals from the judgment for dissolution of marriage entered on June 1, 2021. Douglass argues that the trial court abused its discretion in allocating the marital property because the court improperly granted petitioner, Erin Maple, $350,009.20 from her 401(k) as an offset against marital funds retained by Douglass. We affirm.
¶ 3 I. BACKGROUND
¶ 4 Douglass and Erin were married on June 24, 2001. Two children were born of the marriage. On June 13, 2019, Erin filed a petition for dissolution of marriage. After filing a response, Douglass's attorney withdrew, and Douglass retained new counsel. On January 14, 2020, the parties entered into an agreement resolving all issues pertaining to the allocation of parental responsibilities and parenting time. On January 29, 2021, Douglass's counsel withdrew, and Douglass proceeded pro se. On March 26, 2021, Erin filed a "Notice of Dissipation Claim," which failed to allege the date or period during which the parties' marriage began undergoing an irretrievable breakdown, as required by section 503(d)(2)(ii) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/503(d)(2)(ii) (West 2018)). On April 5, 2021, the court ordered Erin's "Notice of Dissipation Claim" stricken for failing to comply with section 503(d) (2) (ii). A trial commenced on the same day.
¶ 5 The evidence showed that, during the parties' marriage, Erin worked as a fire claims adjustor for State Farm Insurance. In 2020, Erin earned $112,389.13 from that employment. She also maintained a 401 (k) account through her employer, which, at the time of trial, had a balance of $402,604.85. Douglass had managed an excavation company that he started in 2004 known as Bud's Bobcat & Hoe, Inc. (Bud's Bobcat), but he testified that he does not intend to continue operating it. Prior to trial, Douglass received job placement services, at Erin's expense, with Vocamotive Incorporated. Kari Stafseth, a rehabilitation counselor with Vocamotive, testified that, given Douglass's background in construction, he could likely obtain a job with an annual salary of between $70,000 and $90,000. In Stafseth's view, Douglass did not go "above and beyond" in trying to obtain a job, as he did not engage in Vocamotive's recommendations to regularly apply for jobs or to follow up with potential employers. Instead, Douglass accepted an operations manager job from a close friend with an annual salary of $43,680.
¶ 6 While Douglass and Erin were married, they shared a joint checking account through Heartland Bank and Trust Company. They deposited their earnings into that account and used it to pay the family's bills, except for the family's cell phone and internet payments, which were "run through" Bud's Bobcat.
¶ 7 The parties' marriage began an irretrievable breakdown in 2006 after their second child was born. Erin became "frustrated" that she was "doing all of the paying of the bills and supporting [the] family [while] also doing all the child care, cleaning, cooking, grocery shopping, [and] laundry." Erin, however, "stayed in [the] marriage to protect [her] children" because Douglass told her that if she tried to leave him, "he would take his children away and hide them where [she] would never find them again."
¶ 8 From 2008 through 2011, Douglass received approximately $358,000 from an inheritance. Douglass deposited the first $79,405.32 of that inheritance into the parties' joint checking account. In 2009, Douglass opened a joint money market account with Citizens First National Bank in both his and Erin's names. Douglass deposited the remaining amount of approximately $278,000 into that account. Douglass testified that he added Erin to the money market account because they "did not have wills or any way of protecting her and [their] family if something *** happened to [him]," and he "wanted them to have immediate access to that money." Erin noted that marital monies regularly transferred between the joint checking and joint money market accounts. She explained that, after the joint money market account was opened, she authorized mortgage payments for their marital home to be automatically deducted from it. Whenever the joint checking account had extra funds in it, she would transfer those funds to the joint money market account. Similarly, if the joint checking account needed money to pay the family's bills, Erin would transfer money to that account from the money market account.
¶ 9 In August of 2013, Douglass purchased real property located at 12903 Budd Road in Yorkville (the Budd Road property) for approximately $189,000. Douglass used funds from the parties' joint money market account for the down payment. Over the next two years, Douglass improved the Budd Road property, and the mortgage, insurance, utilities, and improvement expenses associated with it were also paid out of the joint money market account.
¶ 10 In October 2015, Douglass sold the Budd Road property for $354,009.20 without first conferring with Erin. Erin did not learn of the sale until November 2015, after she overheard Douglass speaking with her father about it. When Erin asked Douglass about the conversation, Douglass confirmed that the property had been sold. Erin testified that she asked Douglass where he put the proceeds of the sale and that Douglass responded that it was "none of [her] business and that [she] had [her] 401(k) for retirement and that was his retirement money." Following that conversation, Erin was afraid that "money would also disappear" from the joint checking account. With Douglass's agreement, they eventually removed his name from that account.
¶ 11 In December of 2015, Douglass opened a new account at First Midwest Bank in his name only and deposited the Budd Road property sale proceeds into it. Douglass, however, claimed that he "did not want to leave [the proceeds] in the banks," because he had "lost faith in the banking systems" after his experience in stock trading. Thus, Douglas testified, from December of 2015 through November of 2016, he made cash withdrawals of the funds several times a month in $10,000 increments-the most the bank would allow him to withdraw at a time-and put the cash in a bank envelope in a basement closet of the marital residence. Douglass did not tell Erin that he kept the cash there, because he did not feel that she was entitled to it. Douglass testified that "it was [his] inheritance," and he intended to use it "for [his] retirement." Douglass testified, however, that, in reality, he was not using the money for his retirement, because the money was "gone." He asserted that he spent the cash on home improvements, family and living expenses, vacations, taxes, and attorney's fees. Douglass, however, presented no testimony regarding specific expenditures and provided no supporting documents to substantiate the claimed expenses.
¶ 12 Erin testified, without objection from Douglass, that she believed the sale proceeds were "hidden somewhere." According to Erin, contrary to Douglass's claim, she "paid [their] expenses up until he moved out of the house in around [sic] March 2019. So he didn't really have any expenses to pay." Erin testified that, since 2015, she had been paying the household bills, mortgage, utilities, insurance, and home repair expenses. She presented an April 2017 statement for the parties' joint checking account showing withdrawals for the mortgage, utility payments, groceries, insurance payments, and credit card payments. Erin explained that the credit card payments included expenses for a trip to Myrtle Beach and for a retreat for their sons in Colorado. She also introduced credit card statements showing lodging and travel expenses. The family's internet and phone bills were paid "through [Douglass's] business," and Douglass paid property taxes of "about $8,000 a year" for several years. Moreover, Erin claimed that Douglass was "very frugal" and did not make large purchases often.
¶ 13 During closing argument, Erin's counsel argued that Douglass "hid" the Budd Road property sale proceeds and that he still "has that money." Erin's counsel noted that there were "no expenses [Douglass could] explain" that added up to $354,009.20. Erin's counsel contended that the evidence showed that the expenses Douglass claimed he had paid for using the cash proceeds were actually paid out of the parties' joint checking account. Erin's counsel asserted, therefore, that the Budd Road property sale proceeds "should be deemed [a marital] asset."
¶ 14 On June 1, 2021, the court entered its judgment for dissolution of marriage, which distributed the parties' marital property. As is relevant here, the court found, inter alia, that the proceeds of the sale of the Budd Road property constituted marital property. The court reasoned that Douglass's inheritance was a marital asset because Douglass commingled his inheritance with marital funds in the joint checking and money market accounts. The court found that, because the commingled funds were then used to purchase the Budd Road property, the Budd Road property and the proceeds from its sale also constituted marital property. The court further found that Douglass "is still in possession of [those] funds." The court explained that Douglass's testimony "that the money is gone is devoid of any credibility" because he presented no evidence accounting for the purported expenditure of the funds. Instead, the evidence showed that Douglass's claimed expenses were actually paid out of the parties' joint checking account. The court found that Douglass "remains in possession of the monies," given the "clandestine manner in which the funds were withdrawn" and the lack of evidence as to how they were spent. The court also found that Douglass was underemployed, since his experience rendered him capable of earning at least $70,000 per year, but he accepted a position with an annual salary of $43,680.
¶ 15 In distributing the marital property, the court considered the factors enumerated in section 503(d) of the Act (750 ILCS 5/503(d) (West 2018)). The court found several factors "particularly relevant," including the contribution of each party to the acquisition, preservation, and increase or decrease in value of the marital or non-marital property; the value of the property assigned to each spouse; the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of the parties; and the reasonable opportunity of each spouse for future acquisition of capital assets and income. After considering these factors, the court deducted $350,009.20 from the value of Erin's 401 (k) account and equally divided the remaining value between the parties. The court explained that the deduction served to "offset Douglass' retention and control" of the Budd Road property sale proceeds. As to the remaining property, the trial court distributed it in the following manner. Erin received (1) all personal property in her possession, (2) the parties' 2013 Dodge Journey, (3) all bank accounts in her name or possession, (4) three life insurance accounts she acquired prior to the marriage, except that she would pay Douglass one-half of the increase in the accounts' cash values that accrued during the marriage, (5) two savings accounts she created for the children to retain for their sole benefit, (6) one-half of the sale proceeds of the marital home, which had been sold during the pendency of the proceedings, (7) one-half of both an IRA and a pension plan Erin had with State Farm Insurance, and (8) one-half of the sale proceeds of property in the Estates of Millbrook that the parties had obtained during the marriage. Douglass received (1) all personal property in his possession, (2) the parties' 2001 BMW 740il, (3) all bank accounts in his name or possession, (4) all interest in Bud's Bobcat, except that he would pay Erin $15,740.00, representing one-half of the value of the business's assets, (5) one-half of the proceeds from the sale of the marital home, (6) one-half of both Erin's IRA and her pension plan, and (7) one-half of the proceeds of the sale of the Estates of Millbrook property. Douglass timely appealed.
Although the evidence showed that Douglass received $354,009.20 from the sale of the Budd Road Property, the trial court's offset to Erin accounted for only $350,009.20 of those funds. The parties did not file any post-trial motions to address this $4000 discrepancy, and they do not raise it in their briefs. In any event, because the $4000 discrepancy was in Douglass's favor, he would not be permitted to complain that it was erroneous. See Material Service Corp. v. Department of Revenue, 98 Ill.2d 382, 386 (1983) (party cannot complain of error which does not prejudicially affect it); and In re Marriage of Willis, 234 Ill.App.3d 156, 160-61 (1992) (reviewing court will not disturb a trial court's decision unless the party asserting the error clearly demonstrates that he was prejudiced). Accordingly, we will not address the discrepancy further.
¶ 16 II. ANALYSIS
¶ 17 Douglass argues that the trial court abused its discretion in allocating the marital property. Specifically, he contends that the trial court's $350,009.20 offset to Erin from her 401 (k) account was a "mathematical error" stemming from the court's incorrect finding that he still possessed the Budd Road property sale proceeds. Douglass asserts that this error resulted in a windfall for Erin. Erin responds that the trial court's finding that Douglass still possessed the sale proceeds was not against the manifest weight of the evidence and that the trial court did not abuse its discretion in distributing the property.
¶ 18 Section 503(d) of the Act requires the trial court to divide marital property in "just proportions," considering (1) each party's contribution to the acquisition, preservation, or increase or decrease in value of the marital or non-marital property, (2) the dissipation by each party of the marital property, (3) the value of the property assigned to each spouse, (4) the duration of the marriage, (5) the relevant economic circumstances of each spouse when the division of property is to become effective, (6) any obligations and rights arising from a prior marriage of either party, (7) any prenuptial or postnuptial agreement of the parties, (8) the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of each of the parties, (9) the custodial provisions for any children, (10) whether the apportionment is in lieu of or in addition to maintenance, (11) the reasonable opportunity of each spouse for future acquisition of capital assets and income, and (12) the tax consequences of the property division upon the respective economic circumstances of the parties. 750 ILCS 5/503(d) (West 2018).
¶ 19 "The test of proper apportionment is whether it is equitable, and each case rests on its own facts." In re Marriage of Smith, 2012 IL App (2d) 110522, ¶ 71. "An equitable division does not necessarily mean an equal division, and one spouse may be awarded a larger share of the assets if the relevant factors warrant such a result." In re Marriage of Romano, 2012 IL App (2d) 091339, ¶ 121. "A reviewing court applies the manifest-weight-of the-evidence standard to the trial court's factual findings on each factor, but it applies the abuse-of-discretion standard in reviewing the trial court's final property disposition." Smith, 2012 IL App (2d) 110522, ¶ 71. A factual finding is against the manifest weight of the evidence if the opposite conclusion is clearly evident or the finding is arbitrary, unreasonable, or not based in evidence. In re Marriage of Holthaus, 387 Ill.App.3d 367, 374 (2008). "A trial court abuses its discretion only where no reasonable person would have distributed the property as the trial court did." Romano, 2012 IL App (2d) 091339, ¶ 121.
¶ 20 Douglass argues that the trial court's $350,009.20 offset to Erin from her 401(k) account was based upon an erroneous finding that Douglass still possessed the Budd Road property sale proceeds. Douglass contends that no evidence supported the court's finding that he still had those funds and that his testimony that the money is "gone" precluded such a finding. From that premise, Douglass asserts that, because the trial court apparently intended to distribute the marital estate "as equal[ly] as possible," the trial court should have awarded Erin only $175,004.60 from the first $350,009.20 of the 401(k) account. He concludes that, by giving a credit to Erin representing the full value of the sale proceeds, including the marital portion that Douglass no longer possesses, the trial court committed a "mathematical oversight" that reduced the amount of marital assets awarded to him and resulted in a $175,004.60 windfall for Erin.
¶ 21 The premise underlying Douglass's argument is misguided. Contrary to Douglass's claim, the trial court reasonably concluded that he "remains in possession of the monies" from the Budd Road property sale. Douglass testified that, after selling the Budd Road property, he deposited the sale proceeds into an account in his name alone. Erin testified that she did not learn of the sale until after the fact. She also testified that when she asked Douglass about the proceeds, he told her that it was "none of [her] business and that [she] had [her] 401 (k) for retirement and that was his retirement money." Douglass admitted that he intended to use the proceeds "for [his] retirement" and that he withdrew the proceeds from his account without informing Erin. Douglass further conceded that he hid the cash in the basement of the marital residence. Erin testified, without objection from Douglass, that she believed that the proceeds were "hidden somewhere" because she paid the family's expenses out of the parties' joint checking account. Erin presented documentation showing that payments for the mortgage, utilities, groceries, insurance, and travel were made from that account. Moreover, Erin testified that Douglass was "very frugal," such that he did not make large purchases often. Although Douglass testified that the money from the sale of the Budd Road property was "gone," the trial court found that testimony to be "devoid of any credibility." We will not disturb that determination, as it is the function of the trial court to resolve conflicting testimony by assessing the credibility of the witnesses and the weight to be given to their testimony. In re Marriage of Cerven, 317 Ill.App.3d 895, 903 (2000); see also In re Marriage of Georgiades, 2021 IL App (2d) 200677, ¶ 5 (trial court's finding that husband's testimony as to value of vehicle was not credible "eliminated the only evidence to contradict [wife]'s repair estimate"). We thus hold that the trial court's finding that Douglass remains in possession of the Budd Road property sale proceeds was not against the manifest weight of the evidence. See In re Marriage of Zweig, 343 Ill.App.3d 590, 599 (2003) (trial court's finding that wife "secreted" away money was proper where wife's testimony that money was spent on household expenses and medical bills was ambiguous, and no documentary evidence was presented to substantiate her claim).
¶ 22 Furthermore, we cannot say that the court's distribution of marital property was erroneous. The court noted that it found several section 503(d) factors to be "particularly relevant," including (1) the contribution of each party to the acquisition, preservation, and increase or decrease in value of the marital or non-marital property; (2) the value of the property assigned to each spouse; (3) the economic circumstances of each spouse; (4) the age, health, station, occupation, amount and sources of income, vocational skills, employability, estate, liabilities, and needs of the parties; and (5) the reasonable opportunity of each spouse for future acquisition of capital assets and income. The court considered those factors in light of Douglass's retention of the full value of the Budd Road property sale proceeds. The court determined that, to account for Erin's inability to obtain her portion of those marital funds, she should receive a credit from her 401(k) account, representing her share of the proceeds, before equally dividing the remaining balance. Accordingly, the trial court's offset merely negated Douglass's retention of the Budd Road property sale proceeds and placed the parties on similar footing. It did not, as Douglass argues, result in a $175,004.60 windfall for Erin. The trial court also considered that, while Erin made $112,389.13 from her employment in 2020, Douglass was underemployed in that he intended to start a job that paid $43,680 per year despite having the experience to obtain a job paying an annual salary of between $70,000 and $90,000. In light of these considerations, the trial court divided much of the remaining marital estate equally. Given the relevant statutory factors and our review of the record, we cannot say that the trial court abused its discretion in distributing the marital property. See In re Marriage of Hubbs, 363 Ill.App.3d 696, 705 (2006) (in light of statutory factors, trial court did not abuse its discretion in dividing marital property such that husband and wife received 47% and 53% of the marital property respectively); In re Marriage of Harris, 178 Ill.App.3d 282, 285, 287 (1988) (trial court did not abuse its discretion in ordering wife to pay husband $115,500 that represented husband's portion of the marital property in wife's possession).
¶ 23 III. CONCLUSION
¶ 24 For the foregoing reasons, we affirm the judgment of the circuit court of Kendall County.
¶ 25 Affirmed.