In re Marriage of Holthaus

• Decision Date: 18 November 2008
• Docket Number: No. 2-07-0562.,2-07-0562.
• Citation: 899 N.E.2d 355
• Parties: In re MARRIAGE of Angeline HOLTHAUS, Petitioner and Counterrespondent-Appellant and Cross-Appellee, and Nicholas Holthaus, Respondent and Counterpetitioner-Appellee and Cross-Appellant.
• Court: United States Appellate Court of Illinois

899 N.E.2d 355

In re MARRIAGE of Angeline HOLTHAUS, Petitioner and Counterrespondent-Appellant and Cross-Appellee, and

Nicholas Holthaus, Respondent and Counterpetitioner-Appellee and Cross-Appellant.

No. 2-07-0562.

Appellate Court of Illinois, Second District.

November 18, 2008.

Paul J. Bargiel, Paul J. Bargiel, P.C., Donald E. Puchalski, Law Offices of Donald E. Puchalski, Chicago, for Angeline Holthaus.

Howard A. London, Beermann Swerdlove LLP, Chicago, for Nicholas Holthaus.

Presiding Justice ZENOFF delivered the opinion of the court:

On May 10, 2007, the circuit court of Du Page County entered a judgment dissolving the marriage between petitioner, Angeline Holthaus, and respondent, Nicholas Holthaus. Angeline appealed, arguing that the trial court erred in (1) striking her response to Nicholas's request to admit, (2) finding that she dissipated $118,688, and (3) failing to treat the parties' attorney fees as advances on their respective shares of the marital estate. Nicholas filed a cross-appeal, arguing that the trial court erred in finding that Angeline dissipated only $118,688. For the following reasons, we reverse and remand for further proceedings.

BACKGROUND

Angeline and Nicholas were married on June 21, 1961. They had two children during the marriage, both of whom were emancipated by the time of trial.

During the course of the marriage, Angeline, who was in charge of the parties' finances, gambled at area casinos. Nicholas testified that she told him that the funds for the gambling came from the money she earned preparing tax returns for people and that, when he asked Angeline whether she had won or lost, she would tell him that she had broken even. Angeline testified that, when she went to the casinos, she would often spend "a few hundred dollars," which she obtained by cashing a check or withdrawing money from the ATM. According to her, she would "come away with money."

According to Nicholas, in 1997 the parties ceased having a "romantic relationship"¹ and in 1998 the parties ceased sharing a bedroom. Nicholas began to sleep in the rec room while Angeline slept upstairs in the master bedroom. Nicholas described the environment in the home at the time as hostile. In 2001, the parties were no longer sharing meals. Although Angeline would cook the meals or the parties would order food in, Nicholas would take his plate and eat in the rec room, away from Angeline.² Further, in 2001, the parties not only slept in separate parts of the house but also lived in separate parts of the house. Nicholas testified that the parties lived and ate separately because every conversation between them ended in an argument. Although there were times he thought things might get better, they always became worse and there was eventually a point where the parties "just didn't communicate at all."

At trial, Nicholas described an incident that occurred in October 2001. After discovering two ATM withdrawals made at the Grand Victoria Casino in Elgin, totaling $6,000, he confronted Angeline. Her only response at the time was that she wanted a divorce. The following month, Angeline gave Nicholas a letter in which she outlined her "plan" for the future. She stated that she wanted the house and that she would be responsible for paying the equity loan if Nicholas did not want to contribute. In addition, she stated that she would be responsible for all credit card debt. She asked that Nicholas inform her of his plans for paying other household and car expenses and asked that, in any case, he continue paying such expenses until March 2002 so that she could get her "affairs in order." Angeline further stated in the letter that she and Nicholas could use the time "as a cooling off period or a settling of affairs period, whichever would apply," depending upon whether they chose to stay together or to separate. She concluded the letter by asking Nicholas to communicate with her in writing, "as communication [had] completely broken down between [them]."

After 2001, the parties together attended their son's wedding, made appearances at family events, and went out to dinner several times. In addition, Nicholas testified that he went to casinos with Angeline several times in order to help with Angeline's mother, who accompanied them.

Angeline's mother, Marie, lived with the parties for 16 years until she passed away in March 2006. While living with the parties, Marie owned a house in Chicago. In 2003, Angeline and Nicholas performed some repair and remodeling work on the house. Nicholas testified that he did much of the physical labor involved in repairing the house (the other portion of the physical labor was performed by contractors), while Angeline mostly wrote the checks to cover the costs of the repairs. He also testified that the repairs and remodeling were paid for out of the parties' joint account. Nicholas testified that he and Angeline repaired Marie's house to prepare it for sale. Angeline testified that, although Nicholas did perform some of the work on Marie's home, he did not do so to the extent that he claimed. Instead, contractors did much of the physical labor. She also testified that the repairs and remodeling were paid for from the proceeds of an insurance claim Marie had made for hail damage to the house sometime after 2000 and that, at the time the insurance claim was made, the parties did not intend to sell the house. Angeline did admit, however, that the parties had twice attempted to sell Marie's home.

According to Nicholas, while Marie lived with him and Angeline, Marie did not have the assets to cover her living expenses and, in return for paying for Marie's living expenses, he believed he and Angeline would receive Marie's house. In the end, Marie's house did not sell, and Angeline inherited the house when Marie died. Angeline testified that there was never an agreement that Marie would give the house to Angeline and Nicholas.

In November 2004, Nicholas began to move some of his personal effects out of the marital home. Angeline testified that, as of January 2005, she was doing the cooking, cleaning, and shopping for the household. In February 2005, the parties got into an argument after which Nicholas left the marital home permanently. He returned several times in the weeks following his departure, to retrieve some of his personal items.

Nicholas testified that he believed "irreconcilable differences happened" as of October 2001. Angeline testified that she believed the marriage was "irretrievably broken" as of February 2005, when Nicholas moved out of the marital home. When presented with her deposition transcript in which she stated that she believed the marriage was irreconcilably broken as of 1999 and that there was no hope for rehabilitation at that time, Angeline admitted that she had made those statements during the deposition. She also stated, however, that she did not remember being asked those questions and that she misunderstood the question regarding whether she believed there was hope to rehabilitate the marriage in 1999.

Angeline filed a petition for dissolution of the parties' marriage on March 10, 2005, in case number 05-D-553. Four days later, on March 14, 2005, Nicholas filed his own petition for dissolution of the marriage in case number 05-D-583. The trial court consolidated the two cases on April 13, 2005.

On March 24, 2006, Nicholas served Angeline with a request to admit facts, pursuant to Supreme Court Rule 216 (134 Ill.2d R. 216), which was delivered to Angeline by Federal Express on March 27, 2006. The request asked Angeline to admit that she had withdrawn certain amounts of money for gambling purposes from various accounts held by the parties, as detailed in Exhibit A attached to the request to admit. Exhibit A was a copy of Nicholas's "Amended Notice of Intent to Claim Dissipation of Assets," which detailed all of the alleged withdrawals from the parties' various accounts. Angeline served her answer to Nicholas's request to admit facts on April 26, 2006. Nicholas subsequently filed a motion to strike Angeline's answer, arguing that the answer was served two days after the 28-day deadline provided for in Rule 216(c) and that Angeline thus should be deemed to have admitted all of the facts contained in the request. The trial court granted Nicholas's motion to strike on June 5, 2006.

Following trial, on April 24, 2007, the trial court issued a letter order announcing its decision on the issues presented at trial. The letter stated, in relevant part:

"Elemental to the disposition of this case is the issue of dissipation, the date on which the marriage was irretrievably broken, and the validity of a request to admit facts that Ms. Holthaus failed to timely answer. First, the court concludes that the request to admit is indeed valid; while some of the facts sought may be characterized as `ultimate facts' such facts are appropriately the subject of a request to admit.

Next, the court fixes the date of irretrievable breakdown as February[] 2005, the date of physical separation. It may be true that the irretrievable breakdown need not be the date of physical separation or filing. Yet whenever dissipation is claimed the court hears mostly self-serving testimony about how the relationship had deteriorated years in advance. A more objective determinant, though not required, is certainly helpful. Here, for instance, despite Mr. Holthaus's testimony concerning the irretrievable breakdown occurring in 2001, he and Ms. Holthaus worked together (actually he says he did the work) to remodel/repair her mother's house well into 2003. So when was the breakdown? There was no testimony of any `triggering' event after the 2003 joint effort to repair Ms. Holthaus's mother's house. Under the circumstances February 2005 is the date that the marriage was irretrievably broken. Therefore the amount of dissipation set forth in the Request to Admit Facts (and coincidentally supported) is...