In re Marriage of Zweig

Case Date: 10/17/2003
Court: 5th District Appellate
Docket No: 5-02-0743 Rel

NOTICE
Decision filed 10/17/03.  The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.

NO. 5-02-0743

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

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In re MARRIAGE OF

LILLIAN CARLYENE ZWEIG,

          Petitioner-Appellant,

and

HENRY EUGENE ZWEIG, SR.,

          Respondent-Appellee

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Appeal from the
Circuit Court of
Madison County.

 

No.  97-D-387

Honorable
Ralph J. Mendelsohn,
Judge, presiding.

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JUSTICE KUEHN delivered the opinion of the court:

Lillian Carlyene Zweig appeals from the trial court's orders of January 10, 2002, and

November 1, 2002, which distributed the marital property and denied a motion to reconsiderthat distribution. We affirm.

Lillian Carlyene Zweig (Carlyene) and Henry Eugene Zweig, Sr. (Gene), took theirmarital vows on July 21, 1954. They had four children during the marriage, three of whichstill survive.

Carlyene was a homemaker until their youngest child was three. At that time sheentered the workforce-in about 1964. She worked in an accounting department and later asa bank teller. She worked until sometime shortly after August 1991.

Gene began work as a truck driver for Missouri Pacific Truck Lines at the end ofJanuary 1968. On August 2, 1991, when he was loading a piggyback trailer on a railroad car,a stanchion fell, causing Gene to fall. The fall resulted in a fracture of Gene's neck at the C5-6 level and rendered him a quadriplegic. He remained hospitalized for five months. Duringthis time, Carlyene quit her bank job in order to be able to take care of her husband.

Immediately after Gene's injury, Carlyene obtained a power of attorney so that shecould access and assert control over investment accounts held solely in Gene's name. Forreasons not entirely clear from the record, Carlyene took it upon herself in November 1993to try to secure control over Gene's estate through a court process in which she sought tohave him declared incompetent. This attempt was unsuccessful. Gene filed a request for anorder of protection, which was granted. The order of protection prevented Carlyene frominterfering with his personal liberty and controlling his person and assets. At the trial of thiscase, Carlyene denied ever having filed such an action, but she was impeached with thedocumentary proof.

Four years later, Gene finally was paid for his personal injury claims, in the amountof $1,744,843.15.

Gene testified that before he received his settlement, as a result of his variousdisability payments, his stream of monthly income was $4,120. The sources of this amountwere benefits from workers' compensation, social security disability, employment pension,and Veterans' Administration disability. What we do not know is how long it took after hisaccident to reach this level of income and whether he went without income for a period oftime immediately following his accident.

After Carlyene obtained control of Gene's investment assets, she liquidated them,transferred the money into accounts bearing only her name, and then ultimately purchasedtreasury bills. Interest on these treasury bills was credited to Carlyene's account. She didnot discuss any of these financial matters with Gene, who had no idea that his investmentaccounts had been liquidated. The monetary total of the investment accounts prior to theirliquidation was $235,496. Additionally, Carlyene liquidated her own 401(k) account, whichcontained $23,945. For the five years following this liquidation, Carlyene received interestpayments totaling $13,000 annually. When Gene requested financial information during thistime, Carlyene informed him that these matters were none of his concern.

That money is gone. The only accounting Carlyene provided the court was that sheutilized all the funds for household expenses. She did not provide line item entriesdescribing the precise distribution of these funds. Generally, she simply claims to haveutilized all the funds to keep the household running and to pay medical expenses. Duringcourt arguments, her attorney opined that the money could have been utilized to finance thenumerous cruises they took subsequent to Gene's accident. However, there was no evidenceintroduced at the trial relative to cruise expenses. Gene testified that he had a difficult timebelieving this claim because he had the $4,120 monthly income, which was an amountsubstantially in excess of the total household income prior to his accident, because hismedical bills were then being paid in full through workers' compensation benefits, andbecause the Zweigs had no house payment, no car payments, and no credit card payments.

At some time after the accident, Gene and Carlyene ceased living together as husbandand wife, although they remained in the same residence.

On April 11, 1997, Carlyene filed a petition seeking a dissolution of the marriage. A reconciliation attempt occurred in 1997 or 1998, at which time Carlyene sold maritalfurniture in anticipation of a marital residence move to Arizona. That attempt failed, and theparties renewed their interest in obtaining a divorce.

Carlyene continued to live in the marital residence until October or November 1999. Carlyene moved to Waterloo, Illinois, planning to reside with a daughter, but she ended uponly living with her daughter for approximately one week. She moved from her daughter'shome into the home of a male friend, with whom she had developed a personal relationshipallegedly within that one week. She contributes $1,600 per month toward the livingexpenses she and her male friend incur. The couple has no present marital plans.

Gene remains a quadriplegic. He lives in the marital residence, which has beenmodified to meet his needs. He has an in-home nurse for about four hours each day, whichcosts about $1,400 per month. Gene continues to take care of his health, although he mustbe hospitalized a couple of times each year for various ailments. The expenses of Gene'shospitalizations are almost completely covered by Medicare Complete. His other medicalexpenses are covered at about 80%. In-home nursing care is paid entirely by Gene. Hisaffidavit of assets and liabilities lists monthly out-of-pocket expenses at $3,039. Intestimony, he indicated that some of these expenses were somewhat inflated and that a moreaccurate amount for out-of-pocket expenses is $2,636. His present monthly income is$2,400. He anticipates, based upon his conversations with various treating physicians, thathis medical condition will deteriorate over time. If Gene's medical situation ultimatelynecessitates round-the-clock nursing care, he will pay for such care, because he has nodesire to be placed in a nursing home. A life-care plan prepared on Gene's behalf determinedthat he could need as much as $180,019.72 per year for medical and medical-relatedexpenses. Carlyene testified that she did not believe that Gene would ever spend that levelof income on his own care. Gene testified that he might do so, if the expenditures wouldresult in helping him "quite a bit," but he acknowledged that he had not spent any money onitems referenced in the plan in the six to eight months since he had received the plan. Theexpert who created Gene's life-care plan also compiled lists of charges for area nursinghomes for quadriplegic care. The lowest cost was $73.43 per day, and the highest cost was$167 per day.

Carlyene suffers from allergies, asthma, and bronchitis. She also suffers from sometype of movement disorder resulting in hand tremors and uncontrolled head motion, forwhich she is presently under treatment at Washington University School of Medicine and forwhich she might need brain surgery. She takes several medications for her conditions. Carlyene's health insurance through Gene's union lapsed on July 1, 2001. She testified thatbecause she was not yet old enough for Medicare, she obtained her own private insuranceat an annual cost of approximately $3,911, or about $326 per month. She averages about$293 per month in medical costs and $550 per month in prescription costs.

On January 10, 2002, the trial judge entered an order distributing the parties' property. He allowed each party to retain ownership of his or her vehicle and to retain any personalproperty within his or her possession. The court determined that Carlyene took the $324,442in investment funds at a time when the marriage was undergoing an irreconcilable breakdownand that, therefore, she should be charged with the dissipation of marital assets in thatamount. The value of the house was in dispute because Carlyene provided testimony orevidence that the property was worth anywhere from $60,000 to $337,000 and Geneprovided testimony and evidence that the property was worth between $176,000 and$186,000. Carlyene desired this home, suggesting that Gene could move to a nursing home,but the trial court determined that because Carlyene had dissipated marital funds, becauseGene wanted to remain in the home and because the home had been modified to meet hismedical needs, the home should be awarded to Gene at the value to which he testified,$186,000. The judge found that the ongoing income of the parties was a marital asset,ordering Gene to pay Carlyene $875 per month as her share of the marital income, to bereduced to $787 per month when Carlyene turns 65 and begins receiving her pension. Carlyene received her $32,000 IRA account, and Gene received his $9,000 IRA account. The income from the personal injury settlement, $875,128, was to be divided equallybetween them. Regarding the corpus of the settlement, in a lengthy discussion, the trial courtconsidered all the relevant statutory factors, as well as Gene's pain, suffering, and disability,and concluded that the personal injury settlement of $1,744,843 should be awarded to Gene. Carlyene was awarded prescription reimbursement expenses of $531.32 but was denied a$400 reimbursement for expenses associated with a vacation to Aruba. Each party wasordered to be responsible for his or her own health insurance and attorney fees.

On November 1, 2002, the trial court denied Carlyene's posttrial motions.

From these two orders, Carlyene appeals. On appeal, she argues that the trial courtshould not have found that she had dissipated marital assets because the time during whichshe allegedly had dissipated the assets was before she filed the divorce petition and beforethe parties physically separated. She also argues that the trial court's statement that she eitherhid or disposed of these assets was an erroneous statement and should be reversed. Shecontends that in allocating the parties' assets the trial court erroneously relied upon the expertwho had created Gene's life-care plan. Finally, she argues that the trial court's allocation ofassets was improper and should be reversed.

We first look at the more specific issue involving the dissipation of marital assets. Individing marital property, the trial court is required to consider the dissipation of the valueof marital and nonmarital property. 750 ILCS 5/503(d)(2) (West 1996). Dissipation hasbeen defined by the Illinois Supreme Court as the " 'use of marital property for the solebenefit of one of the spouses for a purpose unrelated to the marriage at a time that themarriage is undergoing an irreconcilable breakdown.' " In re Marriage of O'Neill, 138 Ill.2d 487, 497, 563 N.E.2d 494, 498-99 (1990) (quoting In re Marriage of Petrovich, 154 Ill.App. 3d 881, 886, 507 N.E.2d 207, 210 (1987)). Whether a certain utilization of maritalassets constitutes dissipation is a question of fact. In re Marriage of Tietz, 238 Ill. App. 3d965, 984, 605 N.E.2d 670, 683 (1992). The use of the marital funds in issue for legitimateliving expenses is not a dissipation of assets. In re Marriage of Tietz, 238 Ill. App. 3d at983, 605 N.E.2d at 683. "The spouse charged with dissipation of marital funds has theburden of showing, by clear and specific evidence, how the marital funds were spent." Inre Marriage of Tietz, 238 Ill. App. 3d at 983, 605 N.E.2d at 683. "General and vaguestatements that the funds were spent on marital expenses or to pay bills are inadequate toavoid a finding of dissipation." In re Marriage of Petrovich, 154 Ill. App. 3d at 886, 507N.E.2d at 210. The explanation provided by the spouse accused of dissipation requires thetrial court to make a credibility determination. In re Marriage of Tietz, 238 Ill. App. 3d at983-84, 605 N.E.2d at 683. Because the question of dissipation is a factual one, we will notdisturb a trial court's finding of dissipation unless the trial court abused its discretion. SeeIn re Marriage of Petrovich, 154 Ill. App. 3d at 886, 507 N.E.2d at 210. An abuse ofdiscretion occurs only when no reasonable person could adopt the trial court's view. In reMarriage of Hahin, 266 Ill. App. 3d 168, 171, 644 N.E.2d 4, 7 (1994).

There is no question that Carlyene fails in her vague attempts to establish that themoney at issue was spent on household and medical expenses. She provided no evidence ofwhere one cent of the money was spent. She produced no documentary proof of herexpenditures. Surely there was a trail created by her claimed expenditure of more than$300,000. Credit card receipts, bank statements, bills, or cancelled checks are only a fewof the documentary possibilities. Nothing was entered into evidence at the trial. Her only"evidence" was her testimony to that effect. Carlyene's testimony was severely tainted byher perjurious testimony denying any legal attempt to obtain control over Gene's assets andlife in general. However, determining that the money was unaccounted for is not the onlyfact that must be proven.

We must initially determine whether Carlyene took this money at a time when themarriage was undergoing an irreconcilable breakdown. If the issue were controlled by thefact that Carlyene did not file her petition seeking a divorce until six years after Gene'saccident, there would be no doubt that the taking of the assets could not be a chargeabledissipation. This is the theory Carlyene advances. Gene contends that because he was notaware that Carlyene was liquidating and spending their investment accounts, the court couldproperly conclude that the lack of cooperation signaled a breakdown in the marriage. Certainly by 1993 when Carlyene sought legal control over the assets, which forced Geneto ask the court for protection from Carlyene and her actions, the marriage was undergoingan irreconcilable breakdown. The fact that Carlyene continued living in the marital homeand delayed filing for divorce does not mean that the marriage remained sound until shedecided to file the petition.

In re Marriage of Petrovich supports this conclusion. In that case, the husband wasretired from his employment in 1971, and in his retirement he had become an at-homeinvestor. In re Marriage of Petrovich, 154 Ill. App. 3d at 884, 507 N.E.2d at 208-09. Hiswife worked outside the home as a self-employed psychiatrist. In re Marriage of Petrovich,154 Ill. App. 3d at 884, 507 N.E.2d at 208. The Petrovich couple separated in 1979, withthe petition for divorce filed in December of 1979. In re Marriage of Petrovich, 154 Ill.App. 3d at 884, 507 N.E.2d at 209. Over the years, the wife gave the husband a documented$368,000 for investments in the stock market. He advised her when to write out thesechecks, and she complied. The husband maintained exclusive control over the accounts andmade all the investment decisions. On somewhat rare occasions, he would tell her how theinvestments were faring. She did not discontinue giving him money for investments until1981. Unbeknownst to her, by May 1981, their monetary investments had risen in value tomore than $2 million. She did not learn this fact until May 1983. In 1982, the husbandasked the wife to remortgage the marital home for investment purposes-a request she denied. By the time of the trial in their dissolution proceedings in October 1984, the value of theirinvestment accounts had dwindled from the high of $2 million to only somewhere between$14,000 and $20,000. The husband acknowledged poor investments as the cause for thisdramatic drop in value. The husband was unable to identify what he had done with themoney provided to him by the wife for investment. He acknowledged that after their 1979separation, he started moving the money into accounts he had opened in his own name andotherwise moved the money from accounts to "some other places" and that he removed cashfrom these accounts frequently. In re Marriage of Petrovich, 154 Ill. App. 3d at 884-85, 507N.E.2d at 209. He did not create a monetary trail in his testimony during the divorceproceedings and could not even identify in what companies he had invested the money. Inthe supplemental judgment for the dissolution of the marriage, the trial court concluded thatthe husband had dissipated marital funds exceeding $2 million. In re Marriage of Petrovich,154 Ill. App. 3d at 885, 507 N.E.2d at 209.

On appeal, the court affirmed this dissipation finding, concluding that the fact that thewife had given the husband more than $360,000 over the course of the marriage was not indispute. In re Marriage of Petrovich, 154 Ill. App. 3d at 886, 507 N.E.2d at 210. Criticalto this conclusion was that the husband had controlled all the manners and methods ofinvestment without the wife's knowledge. The husband's inability to explain where themoney had been placed or what had happened to the investments to cause such a decline invalue cemented the appellate court's determination. In re Marriage of Petrovich, 154 Ill.App. 3d at 886-87, 507 N.E.2d at 210.

In this case, the bright-line date of the marital separation was not as important as theactions taken by the parties. The wife provided the money both before and after theseparation. The investments occurred both before and after the separation. While some ofthe questionable actions did take place subsequent to their separation, the dominating featurewas the husband's control over the investments and his total lack of fiduciary reporting to hiswife regardless of whether the news would have been good or bad.

In some respects the factual setting of this case is stronger than that which existed in In re Marriage of Petrovich. The holding in In re Marriage of Petrovich could beextrapolated into inappropriate situations when husbands or wives with dominant controlover the finances during a marriage make suspect investment decisions, when consideredwith the benefit of hindsight. In this case, Carlyene seized control of the assets at a timewhen it became necessary to do so-when Gene had his horrific accident. What she did withthat power remains a mystery, since the money is apparently gone and there is no record ofits demise. Further attempts to seize even more control through the court system and withoutGene's consent failed when Gene protested. Gene was completely unaware of Carlyene'sfinancial transactions and testified that if he inquired about the money, Carlyene deflectedthe conversation and provided no answers. Even after the failed court attempt, when it wasclearly obvious that the couple was at odds with each other, Carlyene continued living in themarital home. Only finding dissipation in actions taken by Carlyene after she had filed fordivorce would countenance absurd results, given the marital situation. An irreconcilablebreakdown of a marriage does not necessarily require a separation or a filing for divorce by one spouse.

Carlyene cites this court's decision in In re Marriage of Hazel, 219 Ill. App. 3d 920,579 N.E.2d 1265 (1991), in support of her cause. Without delving into every aspect of thatcase, the case actually could be cited in the contrary argument, because the appellate courtacknowledged that dissipation could be found five months prior to the date when a petitionfor divorce was filed. In re Marriage of Hazel, 219 Ill. App. 3d at 922, 579 N.E.2d at 1267. We were concerned that if accepted, the dissipation argument advanced would require courtsto analyze every financial transaction over the course of the marriage without regard to atime when the marriage could be described as undergoing an irreconcilable breakdown. Inre Marriage of Hazel, 219 Ill. App. 3d at 921-22, 579 N.E.2d at 1266-67.

Each dissipation situation is individual and requires a careful factual analysis. Wefind that the trial court made such an analysis and that the trial court's determination thatCarlyene should be charged with the dissipation of marital assets does not constitute anabuse of discretion.

Carlyene also argues that the trial judge's finding that Carlyene possibly "secreted"away the money in question was improper speculation. The trial judge made this statementbecause of the evidence he heard. Specifically, he heard testimony that household incomeprior to this accident was in the $2,000-per-month range with no house or automobile loansand no credit card or revolving type of debt. He also heard testimony that after the accident,the income rose to $4,120 per month and that all of Gene's medical bills were being paid byworkers' compensation coverage. The money appears to be gone. Carlyene presented noevidence of where the money went. She gave ambiguous testimony that the money wasspent on household expenses and medical bills, but she provided no documentary evidenceto back up her claim. In light of these facts, the trial judge found that the money had beeneither spent or "secreted" away. We cannot find that such a statement was purelyspeculative. The facts support the conclusion that all the money simply could not have beenutilized in the illogical manner to which Carlyene testified.

We next turn to the broader issue of the division of the marital assets. The trial court'sdetermination relative to property division is only constrained by reason and will not beoverturned unless it can be shown that the trial court abused its discretion. In re Marriageof Siddens, 225 Ill. App. 3d 496, 500, 588 N.E.2d 321, 324 (1992). The issue for thereviewing court is not whether it necessarily agrees with the trial court's marital assetdivision. Rather, the issue is whether the trial court acted arbitrarily without employingconscientious judgment or whether, in view of all the circumstances of the case, the trialcourt exceeded the bounds of reason so that no reasonable person would follow the trialcourt's position. In re Marriage of Siddens, 225 Ill. App. 3d at 500, 588 N.E.2d at 324.

Section 503(d) of the Illinois Marriage and Dissolution of Marriage Act requires amarital property division in just proportions. 750 ILCS 5/503(d) (West 1996). Aproportional asset division does not require mathematical equality. In re Marriage of Doty,255 Ill. App. 3d 1087, 1097-98, 629 N.E.2d 679, 686 (1994). The trial court may award anunequal distribution of property if it properly applies the section 503(d) guidelines. 750ILCS 5/503(d) (West 1996); In re Marriage of Doty, 255 Ill. App. 3d at 1097-98, 629 N.E.2dat 686. The guidelines to be considered in determining a marital property division includethe contribution of a spouse to the marriage, the duration of the marriage, the amounts andsources of each spouse's income, the age, occupation, vocational skills, employability, andneeds of each spouse, the reasonable opportunity for each spouse's future acquisition ofassets and income, whether the apportionment is in lieu of or in addition to maintenance, thetax consequences of the property division, the dissipation of marital or nonmarital property,any antenuptial agreement of the parties, and the value of the property set aside for eachspouse. 750 ILCS 5/503(d)(1) through (d)(12) (West 1996).

Initially, Carlyene argues that in allocating the assets between the couple the trialcourt improperly considered the expert testimony about a life-care plan for Gene. Thattestimony was provided by Sharon Hughes, who is employed by England & Company andhas great experience in working with persons with injured spinal cords. One of the factorsthat the trial court must consider in determining asset allocation is the age, health, and needsof the parties. 750 ILCS 5/503(d)(8) (West 1996). There was no dispute that Gene'scondition renders him totally dependent upon assistance for his daily needs. He has nobowel or bladder control, is unable to get in or out of his bed or chair, and is otherwisephysically dependent upon others for all aspects of his life. Sharon Hughes provided hertestimony regarding what Gene would require. She was cross-examined by Carlyene'sattorney. We find no error in the trial court's consideration of this evidence.

Finally, Carlyene contends that the trial court abused its discretion in its marital assetdistribution. Taking into account the dissipation findings, the trial court awarded 75% of theassets to Gene and 25% to Carlyene, without factoring in the present cash value of thenontaxable marital income split. The major assets at issue were the home and the personalinjury settlement.

In reviewing the trial court's order, we find that the court adequately considered allthe elements necessary to a proper determination. The trial court had the opportunity to viewthe witnesses and consider their demeanor when testifying. Gene received substantially moreof the marital assets than Carlyene, but we find no error in looking at the relative status ofthe parties. As the appellate court noted in In re Marriage of Murphy, a case involving aparaplegic:

"[T]he trial court may consider the pain, suffering[,] and disability of aninjured spouse when making a division of property. ***

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*** [A]ll the risks of loss of income and increased costs of living and medicalexpenses that stem from the injury will now be borne by respondent alone. Petitionerleaves the marriage the same way she entered it: an employed, healthy, able-bodiedperson. *** As a spouse she did suffer, but respondent will live with the paralysisfor the remainder of his life. He not only endured pain and suffering at the time ofthe initial injury but has the ongoing absence of normal bodily function below thechest level with all of the risks and hazards in both health and personal life attendantupon such paralysis. This paralysis was the basis for the personal injury award andthat which the trial court could rightfully consider when dividing the maritalproperty." In re Marriage of Murphy, 259 Ill. App. 3d 336, 342-43, 631 N.E.2d 893,897-98 (1994).

While Gene may not presently be spending the money contemplated in his life-careplan, no one has a crystal ball capable of projecting Gene's future needs. What the trial courtknew was that Gene's physicians believed that Gene's condition would worsen over time. The amount of money estimated by Sharon Hughes in the end might not come close tocovering Gene's actual costs. Gene must be financially prepared for this possibility.

Despite the disparity in the percentage of assets awarded, Carlyene received a fairamount of assets, including a property distribution in the form of monthly payments for life;$875 per month and will be reduced to $787 per month when she turns 65. She also received$437,564 in a nontaxable lump sum, representing her one-half of the increase in the valueof his invested personal injury settlement proceeds.

While a property distribution is meant to be in "just proportions," that does not meanthat the division must be equal. In re Marriage of Murphy, 259 Ill. App. 3d at 344, 631N.E.2d at 898. An award of a greater percentage of assets does not necessarily mean that thetrial court abused its discretion.

Accordingly, we find that the trial court did not err in dividing the marital assets asit did.

For the foregoing reasons, the judgment of the circuit court of Madison County ishereby affirmed.

Affirmed.

MAAG and DONOVAN, JJ., concur.