In re Marriage of Cerven

• Decision Date: 20 December 2000
• Docket Number: No. 2-99-1019.,2-99-1019.
• Citation: 252 Ill.Dec. 93,317 Ill.App.3d 895,742 N.E.2d 343
• Parties: In re MARRIAGE OF Shu Yuan Linda CERVEN, Petitioner-Appellant, and Robert Cerven, Respondent-Appellee.
• Court: United States Appellate Court of Illinois

742 N.E.2d 343

317 Ill.App.3d 895

252 Ill.Dec. 93

In re MARRIAGE OF Shu Yuan Linda CERVEN, Petitioner-Appellant, and

Robert Cerven, Respondent-Appellee.

No. 2-99-1019.

Appellate Court of Illinois, Second District.

December 20, 2000.

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 Du Page 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 discretion in determining that petitioner had dissipated marital funds when the evidence established that the funds in question had served a legitimate family purpose.

Petitioner and respondent, Robert Cerven, were married on May 8, 1973. Two children were born of the marriage, Gregory and Michael, ages 23 and 19, respectively, at the time of the dissolution judgment. Petitioner filed a petition for dissolution of 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 the Church of Jesus Christ of Latter Day Saints (Mormon church). According to petitioner, respondent never objected to the children's or her attendance and also never objected to his own attendance at special church events such as the children's baptisms, 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 project in Japan. He served on his mission from October 1994 to July 1996. Following the completion of his mission work, he returned 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 Wheaton Ward, 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 his appreciation to the congregation and specifically to those church leaders who had been instrumental in helping his son to decide 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's spiritual 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 of respondent'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 was present 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 objection regarding the church. According to petitioner, respondent's first objection occurred when the parties were called upon to pay 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 statistical records division of the church's headquarters in Salt Lake City, which was admitted into evidence, indicated that petitioner made 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 through 1997 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 explained that the money for tithing was given to needy people throughout the world while the rest of her contribution to the church was 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 total contributions in 1994, 1995, and 1996 represented both the monies she gave for tithing and the monies she contributed to defray 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 then told respondent she was going to start paying tithes every month. It was petitioner's testimony that respondent told her that he did not care if she paid tithes to the church as long as she used only her money. Petitioner presented no evidence to show how much she actually paid the church for Greg's mission work. The statement from the church regarding her tithes and total contributions stated that the church "provided no goods or services in consideration, in whole or in part, for the contributions 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, respondent had attended special events such as picnics a couple of times a year. He never attended a church service. Respondent stated that he had not wanted Greg to go on a mission and had not intended to go to Greg's farewell service. He finally agreed to attend the service because Greg kept begging him to attend. Respondent said that he did not know that he was supposed to speak in front of the congregation and would not have agreed to attend the service if he had known. He agreed to speak because his son expressed his desire that respondent say somthing to the congregation. Respondent recalled that he wished his son good luck and expressed his sadness regarding Greg's departure. Respondent did not think he said what was reported in the Chicago Connection newsletter.

Respondent did not remember telling petitioner that it was "okay" to tithe with her money. According to respondent, the representatives of the Mormon church would regularly visit his home asking him to tithe. Respondent always told them that he was not a member of the church and that he was not interested in tithing. Respondent stated that he never agreed to give 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 month because of their son's mission. Respondent stated that he told petitioner that he was not going to make any donations. He did 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. During that period of time, he and respondent had talked frequently about the Mormons. Smith said that respondent had expressed his 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. Rickey recalled having a conversation with respondent when respondent said that he did not like the idea that his wife was raising his children in the Mormon faith.

The trial court determined that the best evidence of the monies petitioner gave to the Mormon church was the statement furnished by the church's headquarters in Salt Lake City. That statement showed that petitioner had made minimal payments to the church prior to 1994. The court found that, given respondent's objection to the Mormon religion, the payments petitioner made from November 30, 1994, to the present time were not for a family purpose and therefore constituted dissipation of the marital estate in the amount of $16,438.54. The court ordered petitioner to reimburse the marital 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 the court to distinguish the funds paid by petitioner for tithing from the funds paid for reimbursement of Greg's living expenses on his mission and to clarify whether the court intended that both were to be considered dissipation. The court denied the motion 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 and appellant's brief are sufficient to allow us to address the merits of this appeal without the benefit of an appellee's brief. See First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill.2d 128, 133, 345 N.E.2d 493 (1976). We also note that, throughout most of the argument portion of her brief, petitioner fails to cite to the record so as to direct us to those places where her claims can be substantiated. This is a violation of Supreme Court Rule 341(e)(7) (177 Ill.2d R.341(e)(7)) and makes our review more onerous. We warn counsel for petitioner to adhere to Rule 341(e)(7) in the...