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NO. 4-99-1015

6 December 2000

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

JUSTICE MYERSCOUGH delivered the opinion of the court:

In October 1998, petitioner, Constance Carter, filed a petition for dissolution of her 26-year marriage with respondent,David Carter. At a hearing in August 1999, the trial court found that David's mental cruelty constituted grounds fordissolving the marriage and took the case under advisement. In November 1999, the trial court entered a final judgmentdissolving the marriage, allocating marital assets and debts, granting custody of a minor child to Constance, and orderingDavid to pay $75 per week in child support. The trial court also ordered the parties to obtain a mortgage loan on themarital residence to pay off marital debts and to sell the marital residence when the parties' remaining minor child turns 18years old or graduates from high school, whichever occurs last. Constance appeals, arguing that the trial court (1) abusedits discretion in burdening her with David's gambling debts in its division of marital property, (2) abused its discretion infinding that David did not dissipate marital assets, (3) erred in finding that the marriage underwent an irreconcilablebreakdown in July 1999, (4) and was without authority to consolidate David's gambling debts into a new mortgage securedby the marital residence. We reverse and remand.

I. BACKGROUND

David and Constance married in 1973. They had one minor child, aged 17 years, at the time of the August 1999 hearing. Constance worked at a bank, earning $400 gross income per week. David worked as a counselor, earning $322 grossincome per week. In addition, David officiated high school and youth sporting events, earning an additional $500 permonth.

During the marriage, the parties lived in a home that they purchased together. The marital residence had a market valuebetween $50,000 and $55,000 according to Constance's estimate. David estimated the value of the home to be $65,000. Constance paid off the mortgage by July 1998. Each party owned an automobile subject to a car loan. Their checking orsavings accounts amounted to no more than a few hundred dollars each. Each party had an individual retirement account(IRA) amounting to about $5,000. Constance had a 401(k) retirement plan worth almost $47,000. David's retirement planwas worth about $11,600. Each party had monthly expenses, excluding debt repayment, of $900 to $1,000 each.

The parties had previously separated in April 1992, when Constance received a telephone bill for over $3,700 in tollcharges that David incurred on their home telephone by calling several "900" numbers to play games and receive gambling-related sports information. David told Constance that he would pay off the bill. However, David established a credit cardaccount with Ameritech (later MBNA America) in April 1992 to borrow $500 toward paying off the telephone bill. Daviddid not make any additional charges to that account. Nonetheless, the July 1999 outstanding balance was $1,100.

In April 1992, Constance filed a petition for dissolution of marriage. In December 1992, David admitted incurring debtsrelated to his gambling. He agreed to stop gambling and amassing debts so that he could move back in with Constance. Constance then had her April 1992 dissolution petition dismissed.

After David returned to the marital residence in December 1992, the parties lived mostly separate lives. They ate separatemeals. David often stayed out late at night, and Constance took care of the children. For the most part, David slept on thecouch, but he occasionally slept with Constance. They maintained individual checking, savings, and credit card accounts. David agreed to pay the power bill and to continue to pay Constance $110 per week, an amount that he had been ordered topay her for child support in the 1992 dissolution proceedings. David did not discuss his credit situation with Constancebecause "she more or less lived her life and [he] was living [his] life."

This arrangement continued until July 1998 when David stopped contributing to household expenses. Constance suspectedthat David was in financial difficulty when she received telephone calls from his creditors. In October 1998, Constanceobtained David's credit report and was shocked to discover that he had accumulated over $45,000 in debts. She did notrecognize much of that debt as relating to household expenses, so she assumed that David was gambling again. Shedecided to separate from David because he had hidden these debts from her. On October 27, 1998, Constance filed theinstant petition for dissolution based on the grounds of mental cruelty. David moved out of the marital residence onNovember 1, 1998.

David's credit card and other unsecured debts increased by approximately $25,000 from his December 1992 total balance ofapproximately $13,500 to his July 1999 total balance of nearly $38,500. In December 1992, David owed $7,500 on hisChase Visa credit card. By December 1992, he had a $6,000 balance in cash advances on a line of credit from ProvidianNational Bank obtained in October 1991. According to David, Constance knew about these two accounts in December1992.

David claimed that he incurred debts after 1992 for "household expenses" and "repairs." He referred to an exhibit thatlisted his accounts and a brief explanation of the nature of the charges. However, David's exhibit accounted for only$7,652 in household expenses out of the $25,000 increased debt incurred from December 1992 to July 1999: he paid$1,823 in income taxes in 1995 and 1996; $829 for three car insurance payments; $300 for car repairs; $1,900 for an airconditioner and furnace in the marital residence; $1,100 at Sears for a microwave and Christmas presents; $900 to IllinoisPower and his weekly contributions to household expenses; and $800 at Menard's for a storm door for the maritalresidence. He also claimed that he spent an unspecified amount for gas, officiating expenses, and miscellaneous items. Helisted from memory the expenses that he paid, but he said that he could not account for every dime that he owed because hecould not remember everything since 1992. David attached credit card statements that established only the balances that heowed as of July 1999, but he did not produce any itemization, receipts, or other statements to support his claim that heborrowed and then spent money for household expenses.

David's credit card balances increased in part because he made only minimum payments on his accounts. In July 1999, histotal minimum monthly credit cards payments were at least $1,000. He realized that he did not pay anything on the actualdebts because his minimum payments were often insufficient to meet credit fees and periodic finance charges. In July1999, for example, David incurred multiple $30 monthly fees for making late payments, having checks returned, andexceeding his credit limits. David also incurred periodic finance charges at effective annual rates exceeding 20%, which hecharacterized as being "exorbitant." The only way that he tried to reduce his debt burden was to transfer the balances toother credit card accounts. For instance, he created an American Express account in November 1995 to transfer balances of$3,000 from his Chase Visa account and $2,000 from his Bank One First USA MasterCard account.

All of David's credit card balances included credit fees, although he itemized in his exhibit only $1,000 in fees for 2 ofhis 10 accounts. David did not indicate how much of his balances resulted from accumulated interest. David never soughtto reduce his borrowing costs by obtaining a home equity loan even though David owned the marital residence in jointtenancy with Constance.

At the August 1999 hearing, Constance argued that David's debts resulted from his past and continuing gambling activities. David maintained that his debts resulted from cash advances to pay household expenses, credit fees, and "exorbitant"interest rates. The trial court found that all of David's debts were marital and that none of the amounts representeddissipation. It also found no evidence that David's debt was attributable to a gambling problem. By docket entry, the trialcourt denied Constance's motion for reconsideration and entered a finding that the marriage was irreconcilably broken inJuly 1999.

The trial court ordered the parties to obtain a mortgage loan and pay all marital debts, excluding automobile debts. Constance received the exclusive use of the marital residence until the minor child becomes 18 years old or graduates fromhigh school, whichever occurs last. At that time the residence would be sold, with net proceeds applied to pay debts, butthe trial court did not specify how excess proceeds, if any, would be divided. Each party would pay one-half of the monthlypayment to amortize the mortgage debt. Constance had to pay for all real estate taxes and routine repairs, except the partieswould each pay one-half of all individual repairs exceeding $500.

The trial court divided the remaining marital assets and debts as follows: each party received his/her own IRA, checking,and savings accounts; each party received his/her own automobile and accompanying debt; the parties would equally dividetheir retirement accounts according to a qualified domestic relations order; and Constance received all household goodsexcept a television, videotapes, microwave oven, and some furniture.

II. ANALYSIS

A. Division of Marital Property

Constance argues that the trial court abused its discretion in burdening her with David's gambling debts in its division ofmarital property. In her brief, Constance conclusively states that the trial court abused its discretion in inequitablyallocating half of David's "inordinate" debt to her. Supreme Court Rule 341(e)(7) (177 Ill. 2d R. 341(e)(7)) provides thatan appellate brief shall contain the contentions of the appellant and the reasons therefor, with citations to authority. However, the first section of argument in Constance's brief makes a cross-reference to the third section of her argument ondissipation. Thus, her contention regarding the trial court's abuse of discretion in dividing marital property does not seemindependent of her argument that the trial court erred in not finding dissipation. See In re Marriage of Forbes, 251 Ill. App.3d 133, 135, 621 N.E.2d 996, 998 (1993) (no forfeiture even though brief could have been more aptly structured). Therefore, we will consider whether the trial court erred in failing to consider the statutory factor of dissipation (750 ILCS5/503(d)(2) (West 1998)).

B. Dissipation

Dissipation is one of the statutory factors in section 503(d) of the Illinois Marriage and Dissolution of Marriage Act (Act)(750 ILCS 5/503(d)(2) (West 1998)) that the trial court should consider to divide equitably marital property in justproportions. Dissipation is defined as the use of marital property for one spouse's benefit or for a purpose unrelated to themarriage at a time when the marriage is undergoing an irreconcilable breakdown. In re Marriage of Partyka, 158 Ill. App.3d 545, 549, 511 N.E.2d 676, 680 (1987). The issue of dissipation is generally a question of fact, and the trial court'sfinding concerning dissipation will not be disturbed unless it is against the manifest weight of the evidence or an abuse ofdiscretion. In re Marriage of Tietz, 238 Ill. App. 3d 965, 984, 605 N.E.2d 670, 683-84 (1992).

Whether a given course of conduct constitutes dissipation depends upon the facts of the particular case; a spouse does notdissipate when spending marital assets for legitimate family expenses and necessary and appropriate purposes. Tietz, 238Ill. App. 3d at 983, 605 N.E.2d at 683. However, a court may still find dissipation where a spouse's "use of marital fundsfor his or her own living expenses *** could be shown to be so selfish and excessive and improper as to constitute anoutright waste of marital funds." In re Marriage of Hagshenas, 234 Ill. App. 3d 178, 197, 600 N.E.2d 437, 451 (1992). Afinding of dissipation is possible even though the dissipating party did not derive personal benefit from the dissipation ofthe asset. In re Marriage of Gurda, 304 Ill. App. 3d 1019, 1025, 711 N.E.2d 339, 343 (1999).

The spouse charged with dissipation of marital funds has the burden of showing, by clear and specific evidence, how themarital funds were spent. Tietz, 238 Ill. App. 3d at 983, 605 N.E.2d at 683. Vague and general testimony that maritalfunds were used for marital expenses is inadequate to meet that burden, and the trial court is required to find dissipationwhen the spouse charged with dissipation fails to meet that burden. Partyka, 158 Ill. App. 3d at 552, 511 N.E.2d at 681-82.

The trial court set July 1999 as the date for the "irreconcilable breakdown" of the parties' marriage. This determination wasagainst the manifest weight of the evidence. The parties separated and Constance filed the present petition for dissolutionof marriage near the end of October 1998. Clearly, the marriage was undergoing an irreconcilable breakdown at least bythat time.

The marriage was irreconcilably broken as far back as 1992, when the parties separated and Constance filed the firstdissolution petition. They separated in 1992 because David incurred gambling-related debts. David moved back into themarital residence in December 1992 on the condition that he not incur more debts. Although he occasionally slept withConstance, they lived separate lives for the most part. Their finances were at arm's length, and they did not share meals orchild-rearing responsibilities. Because David secretly continued to incur debts in spite of agreeing not to do so, thepurported reconciliation in December 1992 was pretextual. Thus, even though David returned to the marital residence inDecember 1992, the marriage was undergoing an irreconcilable breakdown. See Gurda, 304 Ill. App. 3d at 1022, 1026,711 N.E.2d at 341, 343 (date of irreconcilable breakdown set four years prior to final dissolution petition and one year priorto earlier dissolution petition that had been dismissed).

Because the marriage was undergoing an irreconcilable breakdown since at least 1992, the trial court should have requiredDavid to show, by clear and specific evidence, how he spent marital funds represented by the marital debts that he owed. Although David accounted for a portion of his debts as representing legitimate household expenditures, his explanation ofhow he spent the rest of the money for "household expenses" and "repairs" was too general and vague to satisfy his burden. Also, David dissipated marital funds by paying what he called "exorbitant" interest and credit fees, and he offered no reasonwhy he could not have satisfied his delinquent credit card debts out of his assets. See In re Marriage of Charles, 284 Ill.App. 3d 339, 344, 672 N.E.2d 57, 61 (1996). Thus, the trial court abused its discretion in not considering David'sdissipation of marital assets in equitably distributing marital property in just proportions. Upon remand, the trial courtshould reconsider the distribution of marital assets and liabilities in light of David's dissipation of marital assets.

C. Mortgage on Marital Residence

Constance also argues that the trial court did not have authority to order her to participate in obtaining a mortgage loan onthe marital residence. We note that the trial court clearly had authority to order a sale of the marital residence and to applythe proceeds to pay the marital debts. 750 ILCS 5/503(i) (West 1998). However, we must consider whether the trial courtcould also order that a marital asset be mortgaged and that marital debts be paid out of those proceeds. We conclude thatthe trial court had that authority.

Section 503(i) of the Act (750 ILCS 5/503(i) (West 1998)) provides:

"(i) The court may make such judgments affecting the marital property as may be just and may enforce such judgments byordering a sale of marital property, with proceeds therefrom to be applied as determined by the court."

The trial court's power to order a party to pay marital debts by borrowing against marital assets is authorized as a judgment"affecting the marital property as may be just." 750 ILCS 5/503(i) (West 1998). The trial court is not limited to distributingmarital assets and debts (750 ILCS 5/503(d) (West 1998)) and ordering that the assets be sold (750 ILCS 5/503(i) (West1998)). To hold otherwise would render the phrase in section 503(i), "such judgments affecting the marital property as maybe just," mere surplusage. 750 ILCS 5/503(i) (West 1998). The next phrase in section 503(i), "and may enforce suchjudgments by ordering a sale of marital property," elaborates on the trial court's powers and does not limit them. 750 ILCS5/503(i) (West 1998). Thus, we interpret section 503(i) as according the trial court statutory authority to order parties tomortgage marital property.

Constance maintains that the trial court does not have a general power under section 503(i) to order parties to reorganizedebts. In re Marriage of Foran, 225 Ill. App. 3d 756, 758, 587 N.E.2d 570, 572 (1992) ("jurisdiction in a dissolution ofmarriage action is conferred only by statute, and *** [a trial court] may not rely upon its general equity powers"). However, the trial court did not attempt to exercise general equity powers because its judgment clearly "affect[ed] themarital property" according to section 503(i). 750 ILCS 5/503(i) (West 1998).

Although we hold that the trial court had authority to order the parties to mortgage the marital residence, that powershould be cautiously employed in effectuating a debt reorganization. Parties may lose bargaining power vis-a-vis theircreditors if they must settle unsecured debts by incurring new secured debts. Also, parties' rights to bankruptcy or theirhomestead exemption may be implicated.

The trial court ordered that the proceeds of a mortgage loan be applied to pay the parties' debts, excluding automobileloans. Because this order was a part of the trial court's division of marital property, we remand for the trial court toreconsider this portion of its order in light of the dissipation of marital assets by David.

III. CONCLUSION

For the reasons stated, we reverse the trial court's judgment. The cause is remanded for further proceedings consistent withthis order.

Reversed and remanded.

McCULLOUGH and COOK, JJ., concur.