In re Marriage of Asher-Goettler (Goettler)

• Citation: 378 Ill.App.3d 1023,883 N.E.2d 564
• Decision Date: 23 January 2008
• Docket Number: No. 4-07-0091.,4-07-0091.
• Parties: In re the MARRIAGE OF Maria C. ASHER-GOETTLER, Petitioner-Appellant, and Gottfried J. GOETTLER, Respondent-Appellee.
• Court: United States Appellate Court of Illinois

883 N.E.2d 564

378 Ill.App.3d 1023

In re the MARRIAGE OF Maria C. ASHER-GOETTLER, Petitioner-Appellant, and Gottfried J. GOETTLER, Respondent-Appellee.

No. 4-07-0091.

Appellate Court of Illinois, Fourth District.

January 23, 2008.

Justice COOK delivered the opinion of the court:

On June 24, 2004, petitioner, Maria C. Asher-Goettler, petitioned for dissolution of her marriage to respondent, Gottfried J. Goettler. The trial court entered orders dissolving the marriage and entering judgment on all issues. Petitioner appeals those issues dealing with the distribution of property and amount of maintenance. We reverse and remand.

I. BACKGROUND

Petitioner and respondent were married on October 29, 1991, in Munich, Germany. During the marriage, the couple had two children, Patricia Goettler (born April 14, 1992) and Christoph Goettler (born October 18, 1994). The couple spent the first several years of their marriage in Germany before moving back to Illinois in 1997. During the entire marriage, petitioner worked either as a stay-at-home mother or as a waitress at or manager of restaurants. At the time of the hearing, petitioner had recently completed a program to become a paralegal and had a part-time job with at a local firm. Except for some period of time in Germany, respondent, who holds a master's degree in physics, was employed in some capacity and was employed at Belcan Engineering Group at the time of the hearings.

On July 9, 2004, an agreed order granted temporary custody of the couple's children to petitioner and granted her possession of the marital residence. The order granted respondent visitation. On July 29, 2004, the trial court entered an agreed order again awarding petitioner possession of the marital residence, rescinding an order of protection against respondent, entering a no-contact order, revising custody to joint temporary custody, and modifying the visitation schedule. Petitioner was not to receive any child support or temporary maintenance but was allowed to maintain and use $8,300 of marital funds that were previously withdrawn from unspecified joint accounts at the time of the separation for her living expenses. Respondent was prohibited from claiming dissipation or a credit in the final marital property settlement for these funds provided that petitioner used the funds for reasonable and necessary living expenses only. Respondent was to pay the minimum balance on all marital debts on a temporary basis.

On October 12, 2004, the trial court entered an order denying temporary maintenance and modifying the visitation schedule.

On December 7, 2004, the trial court appointed a child representative and entered an agreed order. The order set temporary child support requiring respondent pay petitioner $100 a week. Petitioner was allowed use of three "ING accounts," which cumulatively had a balance of $4,830, but could use the funds at a rate not greater than $200 a week. Respondent was prohibited from claiming dissipation or a credit in the final marital property settlement for these funds.

On March 9, 2005, pursuant to petitioner's petition for order to show cause, the trial court held respondent in contempt for failure to provide written discovery and fined him $500 for attorney fees.

Per an agreed order entered July 19, 2005, the trial court ordered respondent to pay $250 a week to petitioner for temporary child support, ordered respondent not to increase his credit lines, and ordered that respondent be allowed to use a portion of the marital residence's garage for storage.

After an evidentiary hearing on November 10, 2005, on January 26, 2006, the trial court granted petitioner sole custody of the couple's two children and granted respondent specific visitation.

A hearing on all remaining issues was held on August 3, 2006. Respondent appeared pro se.

Petitioner testified that for the first six or seven years of the marriage in Germany she was primarily a stay-at-home mom but also worked as a waitress for a short time for respondent's brother. When the couple moved to America, petitioner worked primarily as a waitress. Petitioner had a bachelor of arts degree in English from Eastern Illinois University and minors in business administration and German.

Petitioner submitted documents describing all of the assets and debts of which she was aware and supporting documentation for each asset or debt. Petitioner believed the marital residence had a market value of $270,000, a mortgage balance of $75,385, and a home equity loan balance of $49,858. Neither party was living in the marital residence at the time of the hearing. Petitioner requested that she receive the proceeds from the sale of the marital residence. The couple owned a mobile home worth $3,000 that they rented for $576 a month. Petitioner requested respondent retain the mobile home.

Petitioner's car had a value of $745, and respondent's car had a value of $320.

Petitioner submitted that after all debts were paid, including a debt owed to her parents in the amount of $46,746.91 and guardian ad litem (GAL) fees in the amount of $2,865, the marital estate was worth $225,424.66.

Petitioner testified that the money from four ING accounts, valued at $6,229.73 was spent during the first year of litigation for living expenses. Three of the ING accounts totaling approximately $4,830 were the accounts the court ordered for her use on December 7, 2004. Petitioner claimed that as to the remaining accounts, even if accounts were in her name, respondent controlled all stock accounts, NetBank accounts, ING accounts, investment accounts, and on-line accounts. Petitioner submitted she had nothing to do with any accounts except those she was allowed by court order to use.

Petitioner claimed respondent cashed in a German life-insurance policy receiving $26,000 and giving none of that to petitioner. A second German life-insurance policy valued at $5,000 was not cashed in, and petitioner asked that it be awarded to her because it was her nonmarital property.

Petitioner did not know whether income-tax returns had been filed for 2003, 2004, or 2005 and stated that she received none of the $6,000 refund due for 2002.

Petitioner requested 50% of the marital portion of respondent's German pension.

Petitioner claimed respondent suddenly started contributing funds totaling approximately $7,700 to a church after they separated and that they did not contribute money to a church or go to a church on a regular basis before the separation.

Petitioner submitted a depiction of all the money her parents loaned her over the past two years for attorney fees, living expenses, tuition for a paralegal program, automobile repairs, and a new washing machine. Petitioner also submitted an itemization of her attorney fees in excess of $24,000. Petitioner submitted a general framework for dividing up all assets and debts and for child support, maintenance, and health insurance. Other than by selling the house, petitioner claimed she had no ability to pay off attorney fees or credit cards if they were assigned to her.

Petitioner believed respondent had bank accounts that he had not disclosed and that he was transferring money out of her ING accounts on a regular basis.

Respondent appeared pro se. Respondent testified the couple made agreements under German law concerning their separate money before they were married. Respondent discussed German contracts the couple made during their marriage while in Germany. Respondent also testified that while he had all the figures regarding assets and debts, he did not have the figures at the hearing. Respondent volunteered to bring them at a later time to work out how to split them evenly. Respondent agreed that the house was worth $280,000 and stated it was the only asset. Respondent agreed his current gross income was $81,848 and that he cashed in a German life-insurance policy in the amount of approximately $26,000. Respondent acknowledged he controlled the accounts petitioner claimed he controlled and that he used some of the proceeds from the $26,000 life-insurance policy to pay a loan from a colleague.

The trial court took the matter under advisement and on November 28, 2006, entered the final judgment for dissolution of marriage. The court gave petitioner sole legal and physical custody of the children and respondent visitation as shown in attached exhibits. For child support, respondent was ordered to pay $693 every two weeks representing 28% of his net income pursuant to statute.

Each party was awarded life-insurance policies and any cash value in his or her own name. Respondent was to pay petitioner $200 a month as permanent maintenance. Respondent was to pay $4,305.58 to petitioner as a portion of her attorney fees. Each party was to pay half of the GAL fees. Each party was to keep the car in his or her possession.

Respondent was to retain the marital residence and pay petitioner her share of the net equity in the home by paying her $64,502.50 within 60 days. If respondent was unable to secure the funds, the parties must sell the home at $260,000. Each month after listing, the list price is ordered reduced $10,000 until the property is sold. Upon the sale of the home, the parties shall equally share the net proceeds of the sale. Until respondent pays petitioner or the home is sold, respondent is to make all mortgage, insurance, and real-estate payments. Respondent retained the mobile home.

Respondent's work 401(k) accounts were to be divided equally. Petitioner retained the following accounts:

"1. Bank Plus Checking Account * * * with an approximate value of $278.73.

2. ING Savings Account * * * with an approximate value of $2,392.68.

3. ING Savings Account * * * with an approximate value of $1,880.21.

4. ING Savings Account * * * with an approximate value of $558.68.

5. ING Savings Account * * * with an approximate value of $1,398.16.

6. Vanguard Account * * * with an approximate value of...