In re Foster

• Decision Date: 22 August 2014
• Docket Number: No. 1–12–3078.,1–12–3078.
• Parties: In re MARRIAGE OF Yvonne FOSTER, Petitioner–Appellant and Cross–Appellee, and James Foster, Respondent–Appellee and Cross–Appellant.
• Court: United States Appellate Court of Illinois

17 N.E.3d 781

In re MARRIAGE OF Yvonne FOSTER, Petitioner–Appellant and Cross–Appellee
and
James Foster, Respondent–Appellee and Cross–Appellant.

No. 1–12–3078.

Appellate Court of Illinois, First District, Sixth Division.

Aug. 22, 2014.

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Joel Ostrow, Bannockburn, IL, for Appellant.

Maureen A. Mitchel Law Offices, Maureen A. Mitchel, Chicago, IL, for Appellee.

OPINION

Justice REYES delivered the judgment of the court, with opinion.

¶ 1 Petitioner, Yvonne Foster (Yvonne), appeals from the entry of the judgment of dissolution of her marriage to respondent and cross-appellant, James Foster (James). On appeal, Yvonne contends that: (1) the trial court failed to award her a greater share of the marital estate as provided in the judgment of dissolution; (2) the trial court's determination that James did not dissipate marital assets was against the manifest weight of the evidence; (3) the trial court abused its discretion in awarding her only 30% of James's income from all sources in permanent maintenance; and (4) the trial court abused its discretion in awarding her only $25,000 towards contribution of her attorney fees.

¶ 2 James cross-appeals, contending that: (1) the trial court erred in determining his Scottrade account was marital property; and (2) the trial court abused its discretion by awarding Yvonne 30% of his nonmarital income towards maintenance.

¶ 3 For the reasons that follow, we reverse the trial court's ruling that the Scottrade account is marital property.¹ We affirm the trial court's determination that James's did not dissipate marital assets and also conclude the trial court did not err in awarding Yvonne a percentage of James's nonmarital income as maintenance. We remand the matter for reconsideration of the distribution of the assets, as well as for new determinations regarding

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maintenance and attorney fees based on the trial court's error in the determination of the value of the Scottrade account and our determination that the Scottrade account was nonmarital.

¶ 4 I. BACKGROUND

¶ 5 James and Yvonne were married on December 21, 1975. At the time of the entry of the judgment of dissolution, September 28, 2012, James was a 62–year–old software specialist, earning approximately $58,000 annually, and Yvonne was 63 years of age and was unemployed. The parties had no children. Throughout the proceedings James resided in the marital home located in Glenview, Illinois. In July of 2009, Yvonne commenced residing in an apartment located in Chicago, Illinois.

¶ 6 A. Pretrial Proceedings

¶ 7 On May 8, 2009, Yvonne filed a petition for dissolution of marriage in the circuit court of Cook County. On September 8, 2009, Yvonne filed a petition for temporary maintenance. On September 24, 2009, the trial court ordered James to pay temporary maintenance to Yvonne in the amount of $200 each week pending hearing on the petition. On October 28, 2009, after a hearing on the matter, James was ordered to pay $1,800 a month in temporary maintenance beginning November 1, 2009, to Yvonne.

¶ 8 On January 21, 2011, Yvonne filed a motion to modify her support order, asserting James had failed to disclose two bank accounts and, therefore, had sufficient funds to support her request for increased temporary maintenance to the amount of $4,570 per month. In support of her claim, Yvonne submitted an affidavit in which she averred her current living expenses were $4,570 each month. On May 20, 2011, the trial court ordered James to pay Yvonne $4,570 per month in temporary support retroactive to January 21, 2011, the date of her initial request. The trial court did not set forth a basis for granting Yvonne's request.

¶ 9 On June 30, 2011, Yvonne filed a petition for contribution towards interim attorney fees. On August 18, 2011, the trial court granted her request, ordering James to contribute $12,000 toward Yvonne's attorney fees.² The matter was then set for trial for the court to determine the distribution of marital assets and whether Yvonne would be awarded maintenance.

¶ 10 B. Trial

¶ 11 Trial was held on February 21–22, March 13–14, and April 2, 2012. The majority of the testimony at trial related to James's nonmarital income, his current bank accounts, and the parties' lifestyle between 1994 and 2003. Prior to the commencement of trial, the parties stipulated the value of the marital residence was $222,599.00 with an outstanding mortgage balance of $44,506.53, resulting in a net equity of $177,993.47.³ The parties further stipulated the following assets were marital: Yvonne's Harris Bank account; the parties' Charles Schwab One account No. 6275 (the Schwab investment account); Yvonne's Schwab individual retirement account (IRA); the parties' Charles Schwab rollover IRA account No. 6286; James's Teacher Retirement System pension;

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James's Illinois Municipal Retirement Fund (IMRF) pension; James's New Trier Retirement Incentive Plan; James's 2006 Jeep Grand Cherokee; Yvonne's 1996 BMW; and James's 1991 Jeep.⁴ The parties also stipulated to James's nonmarital property as follows: an undivided one-third interest in certain real property located in Lipscomb County, Texas, along with three active oil and gas lease interests with a stipulated value of $1,030,979; an undivided one-third interest in certain real property located in Harper County, Oklahoma with a stipulated value of $54,000; an undivided one-third interest in 100 acres of real property located in Prosser, Washington. Lastly, the parties stipulated to the authenticity of all financial account statements admitted as exhibits.

¶ 12 1. The Parties' Employment History

¶ 13 James testified that in 1975 when the parties were first married, he was employed as a teacher at Washburn Junior High School. Subsequent to his employment at Washburn, he was employed by Huguley Systems Corporation from 1978 through 1981.⁵ Thereafter, he was employed by Baxter Travonal Laboratories earning $40,000 annually. From July of 1987 until December of 1994, James was employed by Abbott Laboratories making $70,000 annually. In 1994 James began a company, Applied Technology, which focused on technical writing for the sport aviation community. In 2003, James terminated his business and gained employment as a substitute teacher for New Trier Township High School (New Trier) earning $10 per hour. In 2006, James became a full-time employee at New Trier earning under $30,000 annually. As of trial, James was employed by New Trier as a software specialist earning $58,000 annually.

¶ 14 Yvonne testified when she married James in 1975 she was employed as a substitute teacher. Thereafter, she held various office positions until 1994 when she graduated with a masters of arts in guidance and counseling. In 1994 Yvonne opened her own office and was a counselor for one year until she decided it “wasn't a good fit” for her, and closed the business with James's approval. Thereafter, she assisted James with his work for Applied Technology by reading and editing his work product. Throughout the majority of the marriage, Yvonne was a homemaker.

¶ 15 2. James's Inheritance

¶ 16 James testified that in the early 1990s he received an inheritance from his father's cousin, Beatrice Bonk, which included a one-third interest in three properties. James further testified at that time he also inherited $200,000 in cash from the Beatrice Bonk estate, which he deposited in the couple's Schwab investment account.

¶ 17 In the early 1990's James also received $30,000 from Linn Energy, a company which was testing the property he inherited for natural gas. Thereafter, the amount of income he received from Linn Energy “rapidly dropped off.” Through the time of trial, James continued to receive checks from Linn Energy, which were directly deposited in his Chase checking account. James also received insubstantial payments from PVR Midstream,

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LLC, a company involved in pipeline production.

¶ 18 James further testified he first began receiving funds from the Chalker oil well leases on the inherited property in December of 2010, when he received $18,914. From December of 2010 through trial, James had been receiving monthly checks from Chalker in varying amounts. In 2011, James earned over $400,000 from Chalker.

¶ 19 In addition to the inheritance from his father's cousin, James also testified he received a quarterly payment from his mother's trust. The amount varied; however, the most recent payment received at the time of the trial was “over 2 but less than $3,000.” When James opened the Chase checking account in August 2009 all of his nonmarital inheritance income was deposited into that account.

¶ 20 3. The Parties' Schwab Investment Accounts

¶ 21 James testified that with $100,000 of the inheritance he received in the early 1990s he opened the Charles Schwab One account No. 6275 (the Schwab investment account). Six months later, he deposited another $100,000 into the Schwab investment account. James testified the Schwab investment account was a margin account, which is “an investment account where you hold stocks, and it could be...