Find Legal Information

SECOND DIVISION
May 17, 2005

JUSTICE WOLFSON delivered the opinion of the court:

We are called on to decide high stakes issues that are thefallout from a failed marriage.

Petitioner Leslie Berger appeals the judgment of dissolutionof her marriage to respondent Robert Berger, challenging severalparts of the trial court's order. Leslie contends the trialcourt erred when it: (1) found the parties' antenuptialagreement, specifically the maintenance waiver, was valid and binding; (2) awarded the assets held in two joint bank accountsto Robert, finding they were his non-marital property; (3) failedto assign the proper values to the parties' estates by relying onthe asset disclosure statements; (4) ordered Robert to withhold$100,000 from Leslie's settlement due to her dissipation; and (5)denied Leslie's petition for attorney fees.

We affirm in part and reverse and remand in part.

FACTS

Leslie and Robert were married on August 20, 1982. A fewweeks earlier, Robert talked to Leslie about signing anantenuptial agreement. Leslie's attorney received a first draftof the proposed agreement on August 9, 1982. Robert and Leslieeventually signed the fourth draft of the antenuptial agreement(the Agreement) the day before their wedding.

Under the Agreement, neither party would have a right to"support, maintenance, or alimony" from the other in the event ofa divorce. If the marriage were dissolved, Leslie was entitledto half the value of the marital residence. They also agreed anyproperty each of them owned or acquired would not be maritalproperty and would remain the property of the respective owner. Paragraph 6(b) of the Agreement stated, "any assets or propertyto which either party may be entitled pursuant to a right ofsurvivorship or by contract or agreement created or entered intosubsequent to their marriage shall belong to the party entitledthereto and shall not be subject to this agreement."

At the time, Robert's net worth was more than $10 million,and he earned $450,000 annually from various investments. Lesliewas 27 and had a graduate degree. Her net worth was $149,000 andshe earned $30,000 annually as an advertising account executive. Leslie's attorney reviewed the Agreement and advised her not tosign it. She signed it anyway. Before they married, neitherparty intended to have children. Three years later, Robert andLeslie decided to have a child, and their daughter Erica was bornOctober 1, 1986.

For several years, Robert and Leslie kept their financesseparate, each controlling his or her own account. In October1994, the parties opened two joint checking accounts at Citibank, the '880 account and the '068 account. The accounts remained inexistence until June 1999. Account '880 was titled in Robert'sname first and Leslie's second, and Robert primarily wrote checkson that account. Account '068 was titled in Leslie's name firstand Robert's second, and Leslie primarily wrote checks on thataccount. The '068 account is not an issue in this appeal.

In February 1996, Robert changed the title of his AmericanNational Bank '451 account to add Leslie's name, with right ofsurvivorship. According to Robert, he created joint accountswith Leslie at Citibank because she was suffering from Crohn'sDisease, and she was concerned about her demise. She also wasconcerned about Robert's advancing age, and they agreed thatshould there be a problem, "immediate cash should be available,and in illness or in death, cash is most important." Robertadded Leslie to the American National Bank '451 account for the"same reasons." He said, "She wasn't getting any better in spiteof the operations, et cetera."

The '451 account:

The court found Robert made every deposit into the '451account from February 1996 through July 1999. The total amountof the deposits was $5,516,872. Over the same time period,Robert wrote checks on the account to cover the payment ofjointly filed tax obligations, a few investments in non-maritalproperty that he controlled, and, on occasion, to provide moneyfor the '880 account. On June 2, 1999, Leslie signed a requestto purchase a cashier's check from the '451 account in the amountof $103,000. She received the funds. Between February 1996 andJune 2, 1999, Leslie made no other withdrawals from the '451account. She wrote no checks on the account, nor did she have acheckbook or check register for the account. Only Robert and hisbookkeeper had access to the checkbook and check register for theaccount, and only Robert's name was printed on the checks. Between April 22, 1996, and June 22, 1999, Robert wrote 41 checkson the '451 account. The court found seven of the checks werefor Robert's personal use or for his non-marital property use. The seven checks totaled $322,490.56, or approximately 5.8% ofthe amount deposited into the account by Robert between 1996 and1999. On May 14, 1999, the '451 account had a $27,096.16balance.

The '880 Account:

Between October 1994 and June 2, 1999, Robert made all thedeposits into the '880 account, totaling $5,698,912. Of the1,497 checks written on the '880 account during that period,Leslie wrote a total of five checks, all for Rancho Miragehousehold expenses. The rest were written by Robert. The bulkof the checks written on the account were for family andhousehold expenses, and a few were written for Robert'sinvestment expenses. On May 11, 1999, the day before she filedfor dissolution of marriage, Leslie withdrew $60,000 from the'880 account. On June 7, 1999, she withdrew $50,000 from the'880 account. Other than the five checks she wrote, those twowithdrawals were the only withdrawals she made on the '880account. Her name was on the '880 account checks. Leslie nevermade any deposits into the account. Robert had possession of thecheckbook and check register for the account. Leslie had a debitcard linked to the '880 and '068 accounts, but never used it towithdraw money from the '880 account. On May 12, 1999, the '880account had a $61,248.50 balance.

Leslie filed her petition for dissolution of marriage on May12, 1999. In her amended petition, she alleged the Agreement wasprocured by fraud and duress.

Robert filed a motion for declaratory judgment on thevalidity of the Agreement.

Leslie testified the parties' wedding date was changed fromNovember to August 20, 1982, and the Agreement was signed one dayearlier, at a time when Robert was being investigated by thefederal government. She said she signed the Agreement underduress because Robert told her he could not get married withoutthe Agreement due to his business with his brothers, and he saidhis lawyers wanted him to get married before his indictment inorder to avoid a long sentence. He later pled guilty to a mailfraud charge.

Robert testified the wedding date was changed out ofLeslie's concern for her elderly grandmother, who would havedifficulty with colder November weather. He denied that thewedding date was changed because of his potential indictment orthe investigation. Robert also testified he wanted the Agreementto protect his assets for his children.

The trial court entered its order on June 6, 2002, statingthe Agreement was valid and binding on both parties. The courtsaid the Agreement was fair because Leslie signed the Agreementdespite her attorney's advice against it. At the time, she was27 years old, had obtained a graduate degree, and was confidentin her ability to support herself. Leslie told her attorneyRobert wanted the Agreement to protect the interests of hischildren from a former marriage and that she did not wantanything to upset their upcoming marriage. The court found theAgreement provided Leslie an equitable settlement--a minimum of$1.25 million from the marital residence, the $800,000 home shepurchased in Glencoe while they were separated, and $600,000 inother assets she had acquired.

The court found Robert's version of the events leading up totheir wedding more credible. The court concluded that althoughLeslie may have been under stress due to Robert's criminalinvestigations, she signed the Agreement because she wanted tomarry Robert and he would not get married without it.

After several days of testimony, another trial judge enteredthe judgment for dissolution of marriage. In that judgment, thecourt decided the Agreement's maintenance waiver was valid anddenied Leslie's request for maintenance. The court traced theassets in the parties' various joint bank accounts and determinedthey were not marital property. The '880 and '451 accounts wereawarded to Robert. The only marital property divided between theparties was their marital residence in Glencoe and the "FallenAngel Stock Fund." The marital home was valued at $2.8 million. Although Leslie was entitled to $1.4 million as her share of theproperty, the court reduced the amount Robert was to pay her by$100,000 as a result of her dissipation of the assets shewithdrew from the '880 and '451 accounts. The court deniedLeslie's petition for attorney fees.

DECISION

I. The Validity of the Antenuptial Agreement

Leslie contends the trial court erred when it found theAgreement was valid and binding. She asks this court to find theentire Agreement invalid, or, at a minimum, reverse the portionof the trial court's order upholding the validity of theAgreement's maintenance waiver. The parties' Agreement predatesIllinois' Uniform Premarital Agreement Act (750 ILCS 10/1 et seq.(West 2002)), so we must rely on common law when deciding theAgreement's validity.

Under Illinois decisional law, antenuptial agreementsdetermining rights to property and maintenance are valid andenforceable as long as three conditions are met: (1) theagreement does not create an unforeseen condition of penury dueto one spouse's lack of property or employability; (2) theparties entered into the agreement with full knowledge, free offraud, duress, or coercion; and (3) the agreement is fair andreasonable. Warren v. Warren, 169 Ill. App. 3d 226, 230, 523N.E.2d 680 (1988). Although maintenance waivers are disfavoredin Illinois, a waiver will be enforced if it was given inexchange for significant financial consideration. In re Marriageof Martin, 223 Ill. App. 3d 855, 857, 585 N.E.2d 1158 (1992).

Leslie does not contend she will suffer a condition ofpenury as a result of the Agreement. Nor does she dispute thetrial court's finding that she was not subject to any fraud,duress, or coercion at the time she signed the agreement. Instead, she contends the agreement should not be enforcedbecause it is not fair and reasonable.

In Warren, 169 Ill. App. 3d 226, and Kolflat v. Kolflat, 636So. 2d 87 (1994), the courts struck down maintenance waivers inantenuptial agreements after finding them unfair or unreasonable. In Warren, the court found the wife signed the antenuptialagreement willingly, without fraud, duress, or coercion, and hadfull knowledge of her future husband's assets at the time. Although her assets were modest, they were sufficient to keep herfrom suffering the condition of penury. Nonetheless, thereviewing court found the maintenance waiver unfair due to thewife's financial circumstances. Warren, 169 Ill. App. 3d at 231. She had not worked since before the couple was married and hadapproximately $33,000 in assets, including a $30,000 house. Incomparison, her husband was worth $1.5 to $2 million, with$700,000 in debts. The court based its finding of unfairness ontwo circumstances: (1) the agreement's complete lack of afinancial settlement for the wife; and (2) the lavish lifestylethe couple enjoyed together for many years, which the wife had nohope of continuing on her own. Warren, 169 Ill. App. 3d at 231.

The court in Warren distinguished that case from In reMarriage of Burgess, 138 Ill. App. 3d 13, 485 N.E.2d 504 (1985),where the court upheld a maintenance waiver, based on thedifferent financial circumstances of the aggrieved parties. InBurgess, the woman seeking maintenance had a net worth of$412,000 before her marriage and earned $38,000 annually at thetime of the dissolution. Burgess, 138 Ill. App. 3d at 15.

In Kolflat, the District Court Of Appeals of Florida appliedIllinois law to determine the validity of an antenuptialagreement. As in Warren, the agreement met the first twoconditions. After reviewing the parties' financial circumstancesand income potential, the court decided the maintenance waiverwas unfair. The husband had a net worth of over $4.7 million,while the wife had $109,000 in assets. The wife was over 50 atthe time of the divorce and lacked a college education or anyspecific work skills. Because the agreement provided absolutelyno financial support for the wife, and both enjoyed anextravagant lifestyle during the marriage, the court found themaintenance waiver was not enforceable. Kolflat, 636 So. 2d at90.

We find important differences between the facts in this caseand the facts in Warren and Kolflat. Here, the Agreement did notleave Leslie without a financial settlement. Under theAgreement, she was entitled to one-half the value of the maritalresidence. If the parties had divorced early in their marriage,Leslie would have received approximately $150,000--her share ofthe $300,000 condominium they shared. The residence at the timeof dissolution was a $2.8 million house in Glencoe. As a result,Leslie was awarded $1.4 million. In addition, she kept her non-marital assets, valued at approximately $322,000 on her assetdisclosure statement, and the $800,000 home she purchased whileseparated from Robert.

Unlike the women in Warren and Kolflat, Leslie has agraduate degree in advertising and is self-employed. At the timeof the parties' marriage, Leslie was employed by Leo Burnett asan account supervisor on the RCA account. Subsequently, Leslieworked for J. Walter Thompson as an account supervisorresponsible for the Kraft Foods account. Although Leslie stoppedworking for several years to raise Erica, she now owns her ownbusiness, Idea Resources. The business's tax returns showedtotal incomes ranging from $118,447 in 1997 to $232,646 in 2000. Leslie's personal tax returns showed Leslie had an adjusted grossincome of $147,366 in 1998, $87,534 in 1999, $158,769 in 2000,and $92,175 in 2002. Although her asset disclosure statementstated her monthly income was $5,883, she listed her monthlyincome as $28,000 on her mortgage application, which was filedtwo weeks before she filed her petition for dissolution.

Although Robert's personal wealth is much greater thanLeslie's, we find the maintenance waiver is fair and reasonablein the circumstances of this case.

II. Classification of Bank Accounts as Non-Marital Property

The question we must decide is whether Robert intended tomake a gift to the marriage when he created the joint bankaccounts with right of survivorship.

Leslie contends paragraph 6(b) of the Agreement is thebeginning and end of the inquiry. That is, she says theparagraph should be read to mean any asset placed in jointtenancy after the marriage necessarily becomes marital property,with no further analysis required. We do not agree with Leslie'sstrict reading of the paragraph. At the same time, considerableattention must be paid to the paragraph in light of Robert'sdecisions to establish a right of survivorship in the accounts in1994 and 1996, twelve and fourteen years after the marriage. That paragraph, after all, was drafted by Robert's lawyer andvirtually made a condition precedent for the marriage ceremony. It represents an exception to the parties' stated intent to keeptheir property separate.

Until the joint tenancies were created, Robert was able toclaim complete protection for his non-marital assets. He knewhow to do that. As an astute and successful investor, he musthave known he was abandoning the protection of the Agreement whenhe established accounts '880 and '451. We have been searchingfor an answer to the question of why he would take the risk ofbringing the accounts outside the protective cover of theAgreement if he did not intend making a gift to the marriage. Wehave been unable to find a reasonable answer.

In this lengthy record the only explanation Robert gave forcreation of the joint accounts is:

"Well, she was suffering from herCrohn's. It's a disease that apparently wasdiagnosed in '93, but she had it since shewas a teenager. She was afraid. She hurt. She was concerned about her demise. It is aserious illness, and it is on the internet, awhole full description. She was concernedabout my advancing age, and we agreed thatshould there be a problem, that immediatecash should be available. And in illness orin death unless anybody doesn't recognize it,cash is most important."

The failure to say something when the appropriate momentarrives for saying it is telling. He said nothing aboutprotecting his ability to make investments with his non-maritalfunds. He never said the accounts were set up for hisconvenience or for any business purpose. In fact, he never saidhe did not intend to make a gift to the marriage or give Lesliean interest in the funds.

This was not the deposit of a single asset, as occurred inIn re Marriage of Guerra, 153 Ill. App. 3d 550, 505 N.E.2d 748(1987), where the husband said he arranged the joint accountsfrom the proceeds of his non-marital asset in order to makefurther investments. Nor is it In re Marriage of Rink, 136 Ill.App. 3d 252, 483 N.E.2d 316 (1985), where the husband was blindand testified he set up a joint account for the sake of hisconvenience, with no intent to give his wife an ownershipinterest.

In In re Marriage of Wojcicki, 109 Ill. App. 3d 569, 440N.E.2d 1028 (1982), relied on by Robert, the husband testified heplaced non-marital properties into joint tenancy in an attempt toinsulate himself and his wife from title transfer difficulties inthe event one of them died. His testimony persuaded the trialcourt and then the appellate court that the presumption of a giftwas overcome.

None of the husbands in Guerra, Rink, Wojcicki, or any otherIllinois case we have been able to find intentionally triggeredan escape hatch from an antenuptial agreement when establishingjoint interests.

Here, we have a series of deposits and withdrawals,extending over a period of five years. Although Leslie did notuse her debit card for account '880, she had the power to do so. When she wanted to withdraw funds from either account in 1999,she did so, in large amounts. Robert had not set up anymechanism to stop her, even when the marriage started to unravel.

We note Robert was substantially impeached when he filedwith the court a statement putting his net worth at $23,347,000,while in 2001 his financial statement at the bank put his networth at $46,446,308. We also believe a statement reflecting the"historical cost" of assets, rather than their fair market value,is a disingenuous approach to financial fact submission to acourt.

The actual amount of Robert's net worth matters, because thesize of the husband's net worth in relation to the joint assetwas an important factor in Guerra, where the percentage was 44percent. Here, if we take Robert's statement to the bank astrue, the percentage of total deposits is about 25 percent--stilla large amount, but leaving about $35 million outside of thejoint accounts.

We are aware that we must apply a manifest weight of theevidence standard to the trial court's findings on the existenceof marital and non-marital property. In re Marriage of Gurda,304 Ill. App. 3d 1019, 1023-24, 711 N.E. 2d 339 (1999). Adecision is against the manifest weight of the evidence when theopposite conclusion is clearly evident or where it isunreasonable, arbitrary, and not based on the evidence. Maple v.Gustafson, 151 Ill. 2d 445, 454, 603 N.E. 2d 508 (1992).

Even though property might be considered non-marital undersection 503(a) (750 ILCS 5/503(a) (West 2002)), courts willpresume a spouse who placed non-marital property in joint tenancywith the other spouse intended to make a gift to the maritalestate. In re Marriage of Cecil, 202 Ill. App. 3d 783, 788, 560N.E.2d 374 (1990).

Robert had the burden of rebutting the presumption of giftwith evidence that not only is "clear and convincing," but also"unmistakable." In re Marriage of Orlando, 218 Ill. App. 3d 312,317, 577 N.E. 1334 (1991) (a trial judge's non-marital propertydetermination was against the manifest weight of the evidence).

We have said: "Any doubts as to the nature of the propertyare resolved in favor of finding that the property is marital." In re Marriage of Hegge, 285 Ill. App. 3d 138, 141, 674 N.E.2d124 (1996). Further, there is a "legislative preference,expressed in section 503, for the classification of property asmarital." In re Marriage of Smith, 86 Ill. 2d 518, 529, 427N.E.2d 1239 (1981).

The mere fact that all funds deposited in a jointly heldaccount came from the husband's non-marital assets was not enoughto rebut the presumption that he intended a gift to the marriagein In re Marriage of Emken, 86 Ill. 2d 164, 427 N.E.2d 125(1981). There, the supreme court observed that the husband knewhow to retain sole ownership of a time deposit certificate whenhe wanted to. The court said:

"The deposit of certain funds in thejoint account out of which household expensesof the parties are paid while retaining soleownership of other funds tends to prove thatit was respondent's intent that the jointlyheld funds be marital property." Emken, 86Ill. 2d at 166.

Here, Robert maintained the American National BankSafekeeping Investment Account 703466 and several other accountsin his name only, effectively invoking the protection of theAgreement. The bulk of the funds from the '880 account were usedby Robert for household and family expenses.

While the trial court relied almost entirely on the Guerradecision, it ignored another Second District decision thatdistinguished Guerra. In In re Marriage of Gattone, 317 Ill.App. 3d 346, 739 N.E.2d 998 (2000), all of the funds used topurchase a house in joint tenancy came from the husband's non-marital assets. The court noted that the size of the purportedgift in relation to the husband's entire estate was only a singlefactor that does not, standing alone, determine whether propertyis marital or non-marital. Gattone, 313 Ill. App. 3d at 353. There, as here, the husband used an unacceptable method ofcalculating his estate. Finding the presumption of a gift wasnot rebutted, the court found no facts in the record thatdemonstrated the husband's intent to keep his non-marital assetsseparate from marital assets. That is, "There are steps [thehusband] could have taken to make sure his non-marital assetsretained their distinct identity, if that was his desire." Gattone, 313 Ill. App. 3d at 354. Robert's steps were in theopposite direction.

True, the Gattone case involved a marital home. But oursupreme court has said, "We fail to perceive a distinctionbetween a jointly held marital residence and a jointly heldaccount." Emken, 86 Ill. 2d at 166.

Given the particular circumstances of this case, viewed fromthe aperture of paragraph 6(b) of the Agreement, we conclude thetrial court erred when it held the deposits made in the '451 and'880 accounts were Robert's non-marital property. The trialcourt did not give due weight to the presumption of marital giftthat arose when Robert arranged for Leslie to have a right ofsurvivorship in 1994 and 1996. It should not be easy to overcomethat presumption. If it were, an unnecessary failure ofcertainty and predictability would enter the financialrelationships of spouses and would create wasteful and cumbersomelitigation, as happened here.

We conclude Robert did not overcome the presumption that thedeposits were gifts to the marriage. We reverse the trialcourt's findings and remand this cause for the purpose ofdetermining how the marital funds deposited in the two accountsare to be apportioned between Robert and Leslie. When doing so,the trial court should reassess its uncritical acceptance ofRobert's net worth statement and should apply a fair market valuestandard to the assets of both parties.

III. Dissipation of Assets

In a dissolution of marriage proceeding, the Act requires acourt to divide marital property in just proportions, consideringall relevant factors, including "the dissipation by each party ofthe marital or non-marital property." 750 ILCS 5/503(d)(2) (West2002). The court found Leslie dissipated Robert's non-maritalestate in the amount of $213,000--the total amount of her threewithdrawals from the '880 and '451 accounts in May and June 1999. The court found Leslie made the withdrawals at a time when themarriage between the parties was undergoing an irreconcilablebreakdown, and she used the withdrawals for purposes unrelated tothe marriage. The court held:

"After considering all appropriatefactors under Section 503, the Court willallow Robert to credit the payment he is tomake to Leslie under the AntenuptialAgreement in the amount of $100,000 as aresult of her dissipation. Thus, the totalpayment due to Leslie from Robert, whichshall be paid in 35 days from the date of theFindings, is $1,300,000."

A party charged with dissipating marital assets mustestablish by clear and convincing evidence how those funds werespent. General and vague statements that the funds were spent onmarital expenses or to pay bills are not enough to avoid afinding of dissipation. Hagshenas, 234 Ill. App. 3d at 194. Theissue of dissipation is a question of fact, and the trial court'sfinding will not be disturbed unless it is against the manifestweight of the evidence and thus an abuse of discretion. In reMarriage of Tietz, 238 Ill. App. 3d 965, 984, 605 N.E.2d 670(1992); In re Marriage of Seversen, 228 Ill. App. 3d 820, 824,593 N.E.2d 747 (1992).

At trial, Leslie testified she used the money to pay livingexpenses, take her daughter on a trip to Europe, and purchasesome items for her new home. Her statement that the money wasused for living expenses was too general and vague to prove thefunds were spent on marital expenses. We affirm the trialcourt's finding that Leslie dissipated the funds when she madethe withdrawals from the joint accounts.

IV. Attorney Fees

Leslie contends the trial court erred when it denied herpetition for attorney fees. Leslie's petition sought $340,795 infees. She contends "requiring her to pay all of her ownattorney[] fees and costs would significantly reduce herrelatively meager estate."

Under Illinois law, each party pays his or her own attorneyfees unless the party seeking fees is unable to pay and the otherspouse has the ability to do so. In re Marriage of Schneider,214 Ill. 2d 152, 824 N.E.2d 177 (2005); see 750 ILCS 5/508 (West2002). We will not reverse the trial court's decision to denyfees unless we find the court abused its discretion. Schneider,214 Ill. 2d at 174.

We find no abuse of discretion. We agree with the trialcourt's decision because Leslie failed to show she was unable topay her own fees. See Schneider, 214 Ill. 2d at 174-75 (no abuseof discretion where party seeking fees failed to show inabilityto pay). Furthermore, we do not agree with Leslie's contentionthat requiring her to pay her own fees will deplete her estate,especially in light of our disposition of the joint bank accountsissue. After paying the remaining $340,795 in fees, Leslie willstill have more than $1 million in assets in addition to herportion of the joint accounts. Moreover, Robert paid $197,470.07to Leslie's attorneys and $13,000 to her opinion witness ininterim fees and costs. We affirm the trial court's decision todeny Leslie's petition for attorney fees.

CONCLUSION

We affirm the trial court's findings related to theAgreement, the maintenance waiver, dissipation, and attorneyfees. We reverse the finding that the '451 and '880 accountswere Robert's non-marital property and remand for furtherproceedings consistent with this opinion.

Affirmed in part and reversed in part; cause remanded.

BURKE, P.J., and GARCIA, J., concur.