In re Marriage of Polsky

• Decision Date: 26 November 2008
• Docket Number: No. 1-07-1799.,1-07-1799.
• Citation: 899 N.E.2d 454
• Parties: In re MARRIAGE OF Maya POLSKY, Petitioner-Appellee and Cross-Appellant, and Michael Polsky, Respondent-Appellant and Cross-Appellee.
• Court: United States Appellate Court of Illinois

899 N.E.2d 454

In re MARRIAGE OF Maya POLSKY, Petitioner-Appellee and Cross-Appellant, and Michael Polsky, Respondent-Appellant and Cross-Appellee.

No. 1-07-1799.

Appellate Court of Illinois, First District, Fourth Division.

November 26, 2008.

Rehearing Denied December 30, 2008.

Winston & Strawn, L.L.P., Chicago, IL, Dan K. Webb, Linda T. Coberly, of Counsel, Joseph E. Tighe, P.C., Chicago, IL, Joseph E. Tighe, of Counsel, Beerman Swerdlove, L.L.P., Chicago, IL, Miles N. Beerman, Howard A. London, of Counsel, for Respondent-Appellant and Cross-Appellee.

Quinlan & Carroll, Ltd., Chicago, IL, William R. Quinlan, Martin J. O'Hara, Michael T. Beirne, Sarah R. Brietlander, of

Counsel, for Petitioner-Appellee and Cross-Appellant.

Presiding Justice O'BRIEN delivered the opinion of the court:

Respondent, Michael Polsky, appeals the final judgment of dissolution awarding the petitioner, Maya Polsky, more than $183 million. Michael contends the trial court erred by: (1) awarding Maya $183 million out of a roughly $367 million estate, when nearly all of the wealth was acquired through Michael's efforts while both spouses were separately engaged in business pursuits outside the home; (2) requiring Michael to bear all the costs of liquidating the estate to generate cash for Maya; (3) awarding postjudgment interest in Maya's favor for the entire period of liquidation; (4) failing to award Michael one-half of a $649,767 tax refund received by Maya; (5) failing to consider certain liabilities of Michael's company, Invenergy, when dividing the marital estate; and (6) awarding retroactive interest from the date of the original judgment, October 2006, even on the portion of the award that was added on June 4, 2007, as a result of the motions to reconsider. We affirm the property distribution and the award of postjudgment interest pending satisfaction of the judgment. We reverse the order of retroactive interest on the portion of the June 4, 2007, award that was added as a result of the motions to reconsider.

Maya cross-appeals, contending the trial court erred in its amended judgment by failing to award her $18.8 million of the $38.6 million Invenergy had received as a result of a financing transaction. We affirm on the cross-appeal.

At trial, the evidence established that Maya first met Michael in February 1975 in Kiev. Maya had obtained a bachelor's degree in English as a second language from Teacher's College of Foreign Languages in Kiev and was teaching English courses at the Pordigorgical Institute. At the time, Maya intended to pursue a doctorate degree, and she was preparing for an examination that was required for entry into the doctorate program.

Michael was formally trained as an engineer, having earned a master's degree in mechanical engineering in Kiev in 1973. Michael decided to leave the Soviet Union because he was ambitious and saw no future for himself there. Michael intended to emigrate to Canada because he had a cousin there. Maya decided to forego her doctorate degree and instead emigrate with Michael.

On June 28, 1975, Maya and Michael were married in Kiev. Shortly after their marriage, they applied for permission to leave the country. In January 1976, they left the Soviet Union. They had only four or five duffel bags of clothes, $100, and some things that Maya's father gave them to sell for additional money.

To leave the Soviet Union, Maya and Michael embarked on a train from the town of Chop in the Western Ukraine. The train from Chop took them to Vienna, Austria. In Vienna, they were met by a Jewish organization that assisted individuals who were leaving the Soviet Union for Israel. However, since Maya and Michael intended to go to Canada rather than Israel, they sought assistance from the Joint Distribution Committee in Vienna, a group that could assist them in getting to Canada. After staying in Vienna for one week, the Joint Distribution Committee sent them to Italy.

Upon arriving in Rome, Maya and Michael were provided temporary lodging by the Joint Distribution Committee. Thereafter, they found an apartment in Ostia Lido, Italy, which they shared with another family.

Maya and Michael remained in Ostia Lido for six months. While there, Maya was able to find employment with the Joint Distribution Committee doing translation work. Maya used all the money that she received from the Joint Distribution Committee for the needs of Michael and herself. Michael was unable to obtain employment in Ostia Lido. Instead, he tried to raise money by selling the few things they were able to bring from the Soviet Union. During the six months they lived in Ostia Lido, Maya and Michael survived primarily on the money Maya earned doing translations, as well as the money Michael was able to get from selling their things. During this six-month period in Ostia Lido, Maya became pregnant with their first child.

While living in Italy, Maya and Michael were informed that they were denied entry into Canada. As a result, they applied for entry into the United States instead. In June 1976, Maya and Michael gained entry into the United States as refugees from the Soviet Union. They had nothing with them except $500 and some clothing.

Maya and Michael initially settled in Detroit, Michigan, and found an apartment. While Michael looked for work, they received charity assistance from the Hebrew Immigrant Aid Society. As Michael testified at trial, he was told there were only four jobs available in Detroit, and he was encouraged to take a job as a painter. Michael refused because he "was determined to be who [he] was which was an engineer, so [he] went to the library, research[ed] books every day, * * * found companies in [his] field and * * * sent over a period of probably a month, month and a half about 200 resumes." Eventually, Michael received two job offers, and he accepted a job as an engineer with Bechtel Corporation in Ann Arbor, Michigan.

The couple's first child, Alan, was born in November 1976, and shortly thereafter they moved to Ann Arbor to be nearer to Michael's job at the Bechtel Corporation. While living in Ann Arbor, Maya stayed home to care for Alan and the family home. Maya testified that she "learned how to cook, how to clean, how to do everything, and basically, [she] was taking care of the baby and Michael." Michael earned approximately $15,000 per year, and Maya described their lifestyle at that time as "modest." During this time, Maya and Michael began taking walks together, which Maya characterized as a "tradition" that lasted until their separation. On average, the walks would last an hour, during which time they talked about "kids, [her] work when [she] worked, his work, [their] friends, everything."

After living in Ann Arbor for approximately 1½ years, Maya and Michael moved to St. Cloud, Minnesota, where Michael took a job with Brown Bovery. Maya worked part-time as a Russian language teacher at St. Cloud State University for one semester. In May 1979, Maya gave birth to their second son, Gabriel. Maya and Michael purchased a house, and Maya served as homemaker and took care of Alan and Gabriel.

In 1980, when Alan was four years old and Gabriel was a newborn, Michael accepted a position with Fluor Daniel Corporation in Chicago to work in the area of cogeneration. Cogeneration involves harnessing the thermal energy created when electrical energy is produced and then piping it to an industrial user, which uses that steam power to run industrial plants. This position returned Michael to his area of expertise and offered him more money than his previous employment.

After renting a townhouse for six months, Maya and Michael purchased a home in Glencoe. While Michael worked at Fluor Daniel Corporation, Maya tended to the household chores and took care of the children. Maya testified that she "did everything. The boys [became] involved in [sports] a lot and all of these children's activities. * * * Alan actually was playing hockey at that time. So it [was] just all the chores, you know, again, keeping the house, cleaning the house, doing the laundry, cooking. * * * Driving the boys, you know, to play [with other] kids, having kids over at the house, what mothers do."

Maya also took some courses and worked in real estate for approximately one year. Also, when Gabe was four years old and attending school, Maya worked for a short time as a make-up artist at Saks Fifth Avenue. However, Gabe began having difficulties at school. Maya quit her job to stay home and take care of the family.

By 1985, Michael decided that he wanted to pursue his own business. Maya supported Michael's decision. While Maya took care of the children and the couple's home, Michael explored opportunities and eventually decided to co-found Indeck Energy Services with Gerald Forsythe. Indeck was a company that specialized in cogeneration projects.

Cogeneration requires both a purchaser of thermal energy (a steam host) and an outlet for the electrical energy (accomplished through a power purchase agreement.) One of Michael's central roles in Indeck was to find steam hosts. Michael testified that he "had to find the steam host, [he had] to be able to negotiate with them a deal for the land, [he] had to negotiate with [them] a deal for sale of materials, [he] had to find purchase of electricity." Michael explained he had to find a company that would "build a plant, negotiate construction [contract]" and he had to "file, apply for all the permits necessary to build a plant. [He had] to find the money to finance the plant * * * and then [he and Forsythe had] to operate and maintain the plant. So the development process is * * * an involved process."

Michael cited the example of the Yerkes power plant:

"I met a person from DuPont at a conference and he said that they are thinking about building cogeneration plant, but they were already in the process of agreeing with somebody and I said listen, just trust me, we can do it...