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December 20, 2000

No. 2--99--1019

IN THE

APPELLATECOURT OF ILLINOIS

SECONDDISTRICT

PRESIDING JUSTICE BOWMAN delivered the opinion of the court:

Petitioner, Shu Yuan Linda Cerven, appeals from that portion of the dissolution judgment entered by the circuit court of DuPage County finding that she dissipated marital assets and ordering that she reimburse the marital estate for the dissipation. On appeal petitioner raises five issues that are based essentially on one theory, i.e., that the trial court abused its discretionin determining that petitioner had dissipated marital funds when the evidence established that the funds in question hadserved a legitimate family purpose.

Petitioner and respondent, Robert Cerven, were married on May 8, 1973. Two children were born of the marriage, Gregoryand Michael, ages 23 and 19, respectively, at the time of the dissolution judgment. Petitioner filed a petition for dissolutionof marriage on May 6, 1996. The date established for the breakdown of the marriage was November 30, 1994.

The evidence presented at trial established that during the marriage petitioner and the two children attended services at theChurch of Jesus Christ of Latter Day Saints (Mormon church). According to petitioner, respondent never objected to thechildren's or her attendance and also never objected to his own attendance at special church events such as the children'sbaptisms, the spring social, and their son Greg's farewell service held prior to his mission.

After completing his first year at Brigham Young University, Greg had volunteered for a two-year church mission projectin Japan. He served on his mission from October 1994 to July 1996. Following the completion of his mission work, hereturned to college. It was petitioner's testimony that respondent was originally in favor of Gregory's going on a mission. Both Marilyn Brown, a member of petitioner's church congregation, and Dewitt Smith, bishop of the church's WheatonWard, testified regarding their recollection of respondent's presence at Greg's missionary farewell service. Brown recalled,as did Smith, that respondent was one of the speakers at the service. Brown related that respondent expressed hisappreciation to the congregation and specifically to those church leaders who had been instrumental in helping his son todecide to serve a mission. According to Brown, respondent appeared very pleased as he spoke.

Smith's testimony was similar to Brown's. Smith also stated that respondent thanked petitioner for her role in his children'sspiritual growth and development. At the time of the farewell service Smith wrote a missionary newsletter called the"Chicago Connection." In the September 1994 newsletter Smith described Greg's farewell service. Smith's account ofrespondent's remarks to the congregation was very similar to that of his testimony.

Brown also testified regarding respondent's attendance at church functions or events prior to Greg's farewell service. Brown stated that in a given year she attended approximately 50 events and that of those she attended respondent waspresent at about 4 to 6 functions. Petitioner would attend between 45 and 50 events per year.

Petitioner testified that both before and after the petition for dissolution was filed respondent never expressed any objectionregarding the church. According to petitioner, respondent's first objection occurred when the parties were called upon topay tithes to the church and to support Greg's mission.

Petitioner stated that she had been paying tithes to the church since 1984. A statement from the member and statisticalrecords division of the church's headquarters in Salt Lake City, which was admitted into evidence, indicated that petitionermade the following contributions from 1984 through 1987:

Year Tithing Total Contributions

1984 $216.32 $216.32

1985 $331.55 $331.55

1986 $102.32 $102.32

1987 $399.19 $399.19

In 1988, 1989, 1990, 1992, and 1993, petitioner gave no money to the church. In 1991 she gave $180. From 1994 through1997 the following contributions were indicated:

Year Tithing Total Contributions

1994 $1,236.35 $1,921.35

1995 $3,672.01 $7,475.01

1996 $3,853.56 $5,232.68

1997 $2,513.28 $2,513.28

Petitioner stated that her payments increased in 1994 because she felt stronger about the church.

Petitioner said that during 1995 and 1996 she made payments both for tithes and for her son's mission. Petitioner explainedthat the money for tithing was given to needy people throughout the world while the rest of her contribution to the churchwas for her son's living expenses while on his mission. Petitioner said that she gave no money directly to her son. Rather,she gave money to the church, and the church gave it to him. It was petitioner's testimony that the sums recorded as totalcontributions in 1994, 1995, and 1996 represented both the monies she gave for tithing and the monies she contributed todefray the cost of her son's mission during those respective years.

Petitioner testified that before her son went on his mission she found out from the church the cost of the mission. She thentold respondent she was going to start paying tithes every month. It was petitioner's testimony that respondent told her thathe did not care if she paid tithes to the church as long as she used only her money. Petitioner presented no evidence toshow how much she actually paid the church for Greg's mission work. The statement from the church regarding her tithesand total contributions stated that the church "provided no goods or services in consideration, in whole or in part, for thecontributions listed; but only intangible religious benefits."

Respondent testified that he had never been a member of the Mormon church. Prior to Greg's farewell service, respondenthad attended special events such as picnics a couple of times a year. He never attended a church service. Respondentstated that he had not wanted Greg to go on a mission and had not intended to go to Greg's farewell service. He finallyagreed to attend the service because Greg kept begging him to attend. Respondent said that he did not know that he wassupposed to speak in front of the congregation and would not have agreed to attend the service if he had known. He agreedto speak because his son expressed his desire that respondent say something to the congregation. Respondent recalled thathe wished his son good luck and expressed his sadness regarding Greg's departure. Respondent did not think he said whatwas reported in the Chicago Connection newsletter.

Respondent did not remember telling petitioner that it was "okay" to tithe with her money. According to respondent, therepresentatives of the Mormon church would regularly visit his home asking him to tithe. Respondent always told themthat he was not a member of the church and that he was not interested in tithing. Respondent stated that he never agreed togive money to the church to support his son while he was on his mission.

Respondent recalled that the parties received a letter from the church asking that they give a certain sum each monthbecause of their son's mission. Respondent stated that he told petitioner that he was not going to make any donations. Hedid not recall her saying that she intended to make the payments.

Quinton Smith, a friend and coworker of respondent's, testified that he had known respondent for about six years. Duringthat period of time, he and respondent had talked frequently about the Mormons. Smith said that respondent had expressedhis dislike of them and his unhappiness regarding his son "throwing away" his life to join the Mormon faith.

Jay Rickey, president of respondent's local union, testified that he had known respondent approximately 20 years. Rickeyrecalled having a conversation with respondent when respondent said that he did not like the idea that his wife was raisinghis children in the Mormon faith.

The trial court determined that the best evidence of the monies petitioner gave to the Mormon church was the statementfurnished by the church's headquarters in Salt Lake City. That statement showed that petitioner had made minimalpayments to the church prior to 1994. The court found that, given respondent's objection to the Mormon religion, thepayments petitioner made from November 30, 1994, to the present time were not for a family purpose and thereforeconstituted dissipation of the marital estate in the amount of $16,438.54. The court ordered petitioner to reimburse themarital estate in the amount of $7,397.34, which represented respondent's 45% portion of the marital assets.

Petitioner filed a motion to clarify the court's ruling prior to the entry of the dissolution judgment. Petitioner asked thecourt to distinguish the funds paid by petitioner for tithing from the funds paid for reimbursement of Greg's living expenseson his mission and to clarify whether the court intended that both were to be considered dissipation. The court denied themotion and subsequently entered the judgment for dissolution of marriage. This appeal ensued.

Initially, we note that respondent, as appellee, has not filed a brief on appeal. However, we find that the record andappellant's brief are sufficient to allow us to address the merits of this appeal without the benefit of an appellee's brief. SeeFirst Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976). We also note that, throughoutmost of the argument portion of her brief, petitioner fails to cite to the record so as to direct us to those places where herclaims can be substantiated. This is a violation of Supreme Court Rule 341(e)(7) (177 Ill. 2d R.341(e)(7)) and makes ourreview more onerous. We warn counsel for petitioner to adhere to Rule 341(e)(7) in the future.

Petitioner contends that the trial court abused its discretion in finding that the monies she contributed to her churchsubsequent to the breakdown of the marriage were not for a family purpose and, consequently, constituted dissipation of themarital assets.

Dissipation is generally defined as the use of marital property for the sole benefit of one of the spouses for a purposeunrelated to the marriage at a time that the marriage is undergoing an irreconcilable breakdown. In re Marriage of Charles,284 Ill. App. 3d 339, 343 (1996). A finding of dissipation is possible even if the dissipating party did not derive personalbenefit from the dissipation of the assets. In re Marriage of Gurda, 304 Ill. App. 3d 1019, 1025 (1999). Whether a givencourse of conduct constitutes dissipation depends upon the facts of each case. In re Marriage of Hahin, 266 Ill. App. 3d168, 171 (1994). The spouse charged with dissipation has the burden of proving, by clear and convincing evidence, howthe marital funds were spent. Gurda, 304 Ill. App. 3d at 1026. Based on the credibility of the witnesses, the trial courtdecides if the funds were spent for legitimate family expenses, which were necessary and appropriate. Gurda, 304 Ill. App.3d at 1026. The trial court's determination regarding dissipation will not be reversed on appeal absent an abuse ofdiscretion, which occurs only when no reasonable person could adopt the trial court's view. Hahin, 266 Ill. App. 3d at 171.

Petitioner maintains that the statement provided from the Mormon church regarding tithes and total contributions paid forthe years 1994 through 1996 established that the difference between the two amounts constituted the reimbursement ofliving expenses incurred by Greg during his mission in Japan and that this reimbursement was a legitimate and necessaryfamily expense. Petitioner, however, failed to prove by clear and convincing evidence that the difference between the twosums equaled monies for reimbursement. Except for the statement, petitioner provided no other evidence to show that, infact, she made payments for those expenses. No canceled checks for the years 1994 through 1996 were entered intoevidence to show what sums petitioner contributed to the church, how frequently they were contributed, and whether somemonies were earmarked specifically for tithing and others for the alleged reimbursement.

Moreover, the financial statement from the church on which petitioner relies states that the "Church provided no goods orservices in consideration, in whole or in part, for the contributions listed; but only intangible religious benefits." Such astatement would seem to belie petitioner's position that part of the money she was donating was for the purpose ofreimbursing the church for the housing and food the church provided for Greg during his mission. Furthermore, petitionertestified that she gave money to the church for her son and that the church gave the money to him. If this were true, therewould be no reason to reimburse the church.

We conclude that, because petitioner failed to prove that some of her total contributions to the church in 1994 through 1996were for the reimbursement of her son's living expenses in Japan, she did not establish that the difference between theamount for tithing and the amount for her total contribution during those years constituted a legitimate family expense.

Petitioner also maintains that the monies paid for reimbursement and tithing came from the income she received from heremployment. However, petitioner's income, as well as respondent's income, constituted property acquired during themarriage and therefore was part of the marital estate. In re Marriage of Werries, 247 Ill. App. 3d 639, 641-42 (1993). Consequently, unless petitioner could show that the monies expended to the church were for a family purpose, thepayments constituted dissipation. In this particular case, in order to show that the monies she paid to the Mormon churchwere for a family purpose, it would be necessary for petitioner to establish that respondent had agreed to her tithing andother contributions. The trial court found that respondent's past record of involvement with the Mormon church and histestimony showed that he objected to the Mormon religion and that, therefore, the funds expended after the breakdown ofthe marriage in 1994 could not be considered as for a family purpose. We agree.

The evidence established that respondent was not a member of the Mormon church, that he attended few Mormon functionsor events during a given year and none after his son's farewell service in August 1994, and that he had never attended achurch service. Respondent testified that, when representatives of the church visited the parties' home and asked him totithe, he expressed his disinterest. Although petitioner maintains she began tithing in 1984 and although there was noevidence indicating whether respondent objected to her tithing prior to the breakdown of the marriage, there was, as thetrial court correctly pointed out, no sufficient pattern of payment before the breakdown. Rather, petitioner made minimalcontributions from 1984 through 1987 and in 1991 and no contributions whatsoever in the years 1988, 1989, 1990, 1992,and 1993.

While petitioner testified that she had told respondent, prior to their son's mission, that she was going to start paying tithesevery month and that respondent had indicated that he did not object as long as she used her own money, respondenttestified that he did not recall making such a statement. At any rate, such a statement, if made, would demonstraterespondent's objection to the use of marital funds to pay for tithing to the Mormon church. Accordingly, petitioner did notestablish that respondent had agreed to her tithing and contributions and, thus, did not establish that these monies wereexpended for a family purpose.

Petitioner maintains that, based on the doctrine of equitable estoppel, respondent should have been precluded fromasserting that he objected to petitioner's donations and reimbursements to the Mormon church. Petitioner contends that thecourt erred in failing to apply the doctrine.

We find nothing in the record, however, to indicate that the theory of equitable estoppel was raised in the trial court. Ifpetitioner argued that theory in her closing argument, that is not apparent to us. The court ordered the parties to submitwritten closing arguments. The record contains respondent's closing argument but not petitioner's. The record containsonly a notice that petitioner filed the closing argument. The appellant bears the burden of providing a sufficient record tosupport a claim of error. In re Marriage of Delk, 281 Ill. App. 3d 303, 307 (1996). Also, a theory not espoused in the trialcourt may not be considered on review. Allen v. Allen, 226 Ill. App. 3d 576, 587 (1992). Accordingly, we will not addresspetitioner's equitable estoppel issue.

Petitioner also contends that the court erred in accepting the veracity of respondent's testimony regarding his objection tothe Mormon church in light of the testimony of other witnesses, in particular respondent's witnesses, Jay Rickey andQuinton Smith, and petitioner's witness, Marilyn Brown. However, our review of the record convinces us that petitionerhas been very selective in presenting only those portions of the witnesses' testimony that favor her. Also, she has distortedtestimony in an effort to demonstrate that respondent testified falsely. For example, petitioner states that respondenttestified that he had "no involvement with the church" and cites to a page in the record in support of this statement.(Emphasis added.) However, the page cited does not support petitioner's statement. Petitioner then states that respondent'salleged testimony that he had no involvement with the church was proven false by his subsequent admission that he hadattended his son Greg's farewell service. However, prior to this testimony, respondent admitted that, before the breakdownof the marriage, he had attended a couple of special functions or events each year. Consequently, we do not believe hetestified that he had no involvement as petitioner claims.

Additionally, some of petitioner's statements regarding respondent's credibility, e.g., that he testified falsely when he saidthat "he did not attend Greg's farewell service," are not supported by any citation to the record. From our review of therecord, we did locate a response by respondent wherein he denied attending the farewell service. However, his subsequentresponses to questions regarding his attendance indicates some confusion regarding the year to which petitioner's counselwas referring when she posed her original question pertaining to his attendance. Once it was established that she wasreferring to 1994, respondent admitted attending the service and speaking after his son Greg requested that he do so. Wedo not believe that this testimony placed his credibility into issue as petitioner claims.

It is the trial court's function to resolve conflicting testimony by assessing the credibility of the witnesses and the weight tobe accorded their testimony, and this court will not disturb the trial court's finding in this regard unless it is against themanifest weight of the evidence. In re Marriage of Landfield, 209 Ill. App. 3d 678, 697 (1991). Here, it is clear from thetrial court's findings that it chose to believe respondent rather than petitioner regarding the issue of his objection to theMormon church. After careful review of the record, we find that the record contains sufficient evidence to support the trialcourt's conclusion.

Last, we address petitioner's contention that the trial court interfered in her free exercise of religion when it found that tithepayments made to the Mormon church constituted dissipation. According to petitioner, such payments were a requirementof her religion because she was not allowed "to go to temple" if she did not pay her tithes.

There is no indication in the record whether petitioner argued to the trial court that a finding that her tithe paymentsconstituted dissipation would preclude her from freely exercising her choice of religion. In one brief paragraph in hermotion for clarification of the trial court's ruling, petitioner merely states that the court "blurred" the separation betweenchurch and state when it found that monies she donated to the church and paid for reimbursement for her son Greg's livingexpenses constituted dissipation. Petitioner presented no argument on this point nor cited any case law.

Here, on appeal, petitioner presents a theory that, based on the record before us, was never really raised in the trial court. As noted earlier in this disposition, a theory not espoused in the trial court may not be considered on review. Allen, 226 Ill.App. 3d at 587. At any rate, petitioner has cited no relevant case law. Petitioner's reference to a bankruptcy case where thecourt determined that not allowing the plaintiffs to tithe would substantially burden the plaintiffs' exercise of their religionis inapposite to our case. In the present case the court did not determine that petitioner was not allowed to tithe but onlythat she could not tithe with monies that were part of the marital assets. Consequently, we do not believe that the court'sdetermination amounted to a substantial burden on petitioner's religious observance.

Based on the record before us, we cannot conclude that no reasonable person could adopt the trial court's view regardingpetitioner's dissipation of the marital estate.

Accordingly, for the reasons set forth above, we affirm the judgment of the circuit court of Du Page County.

Affirmed.

GEIGER and HUTCHINSON, JJ., concur.