In re Marriage of Billington

• Citation: 2022 IL App (2d) 210370 U
• Decision Date: 23 November 2022
• Docket Number: 2-21-0370
• Parties: In re MARRIAGE OF MONICA I. BILLINGTON, Petitioner-Appellee and Cross-Appellant, and JAMES E. BILLINGTON, Respondent-Appellant and Cross-Appellee.
• Court: United States Appellate Court of Illinois

2022 IL App (2d) 210370-U

In re MARRIAGE OF MONICA I. BILLINGTON, Petitioner-Appellee and Cross-Appellant, and JAMES E. BILLINGTON, Respondent-Appellant and Cross-Appellee.

No. 2-21-0370

Court of Appeals of Illinois, Second District

November 23, 2022

This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Du Page County. No. 19-D-1949 Honorable Michael W. Reidy, Judge, Presiding.

JUSTICE HUTCHINSON delivered the judgment of the court. Justices Schostok and Birkett concurred in the judgment.

ORDER

HUTCHINSON JUSTICE

¶ 1 Held: The trial court did not err in the amount of its maintenance award based on respondent's gross income over his base salary amount, nor did it err in imposing no income cap upon which the percentage of his gross income would apply. The allocation of the parties' assets and debts was not against the manifest weight of the evidence presented. Petitioner's claim of dissipation was properly denied. The trial court's classification of the maintenance award as "reviewable and modifiable" was an abuse of discretion.

¶ 2 Respondent, James Billington, appeals from the judgment for dissolution of the parties' marriage, contending that the trial court erred by (1) deviating from the guidelines in section 504(b-1)(1)(A)

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of the Illinois Marriage and Dissolution of Marriage Act (IMDA) in calculating a maintenance award based on James' gross income; (2) imposing no income cap upon which the percentage of his gross income would be applied to the maintenance award; and (3) deviating from the parties' agreement in the allocation of assets and debts. Petitioner, Monica Billington, cross-appeals from the dissolution judgment, contending that the trial court erred by (1) awarding her "reviewable and modifiable" as opposed to indefinite maintenance; and (2) disallowing her dissipation claim. For the reasons that follow, the trial court's dissolution judgment is affirmed in part, vacated in part, and remanded for further proceedings.

¶ 3 I. BACKGROUND

¶ 4 On October 10, 2019, Monica filed a petition for dissolution of the parties' marriage.^[1] At the time of filing, both parties were 57 years of age. Three children, triplets, were born to the parties as a result of their July 6, 1991, marriage, and Monica's older child was adopted by James. All children had since been emancipated.

¶ 5 On August 4, 2020, Monica filed an amended notice of intent to claim dissipation. She alleged that James unilaterally withdrew funds from the parties' Chase Bank account on 14 separate occasions between January 10, 2020, and April 30, 2020. Monica alleged that James unilaterally withdrew funds from that same Chase Bank account numerous times in 2019. Other allegedly unilateral withdrawals from the Chase Bank account alleged to have been made by James between 2015 and 2018 were cited in the notice. Finally, two allegedly unilateral withdrawals by James in May and December 2019 from a Visa Slate Credit Card were listed. Monica's notice

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admitted that some of the voluminous 2019 transactions were transfers to the accounts of the parties' children but alleged that James had "surreptitiously transferred funds into the children's accounts and then used the funds to pay for things like mechanic work on his personal vehicles, in effect laundering his dissipation activities through the children."

¶ 6 On September 17, 2020, the parties proceeded to a bench trial limited to the issues of allocation of debt^[2], dissipation, and attorney's fees. Before presenting evidence on the relevant issues, the parties' counsel and the trial court engaged in the following exchange regarding maintenance:

"THE COURT: Then it is 5,000 [monthly] for maintenance

[MONICA'S COUNSEL DEMLING]: 5,000 plus a percentage of gross over his salary of - - is it 253?

[MONICA'S COUNSEL STELLA]: 257,800.

[MONICA'S COUNEL DEMLING]: I think they were at 33 percent of net. We wanted 30 percent of gross. You know, I would suggest a number between 25 and 30 percent of gross is fair.

THE COURT: 27.5.

[MONICA'S COUNSEL DEMLING]: There you go.

[JAMES' COUNSEL ROE]: And my suggestion was to operate off that and then define that the way [section] 505 [of the IMDMA] does.

[MONICA'S COUNSEL DEMLING]: You know, gross is so much easier.

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THE COURT: It is really easier with gross.

[JAMES' COUNSEL ROE]: Okay. I am - - we're making a record, so I want to make sure that I am making the proper counter.

[MONICA'S COUNSEL DEMLING]: 27.5 percent of gross over the 250 - -THE COURT: 257,800.

[MONICA'S COUNSEL STELLA]: 257,800.

[JAMES' COUNSEL ROE]: And there is a request for an annual true-up once the parties have their tax returns prepared that they true up.

[MONICA'S COUNSEL DEMLING]: And they have to exchange tax returns. [MONICA'S COUNSEL STELLA]: And end of the year pay stubs, 1099s, all that good stuff.

[JAMES' COUNSEL ROE]: Everything that is conventional."

Following discussion of the matters agreed to by the parties, the trial court remarked to Monica and James as follows:

"All right. Good morning again, folks. I know we talked last week. We were close. And I want to tell you again your attorneys have done an excellent job. Things break down all the time. I don't hold it against either side.

We really narrowed the issues. We have got some that are left to my decision making, which I will do, and they have made the arguments for you. Some of which has to be presented via evidence and that is mostly the dissipation claim. So, we're going to have some evidence presented today.

I can tell you with 100 percent certainty [that] your attorneys have saved you thousands and thousands of dollars by what they have done so far. I know that may be hard

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to believe, but I can tell you that if this had to go into a full-blown trial, you were looking at four to five full days, and that could have depleted almost all of your assets.

So, I know that it is hard to see right now, but I am telling you with utmost sincerity that your attorneys, and with the assistance of the Court in these pretrial conferences, have limited your exposure as far as what you owe."

¶ 7 Trial began with the issue of dissipation. On adverse direct examination, James testified that the parties' triplets began attending Illinois Wesleyan University in 2015 and each received approximately $20,000 in academic scholarship funds and $3,000 in state grants. Before their matriculation, James established 529 accounts for the children through the Nevada College Savings Trust Fund which he funded on a single occasion for their benefit. The accounts no longer existed at the time of trial. Petitioner's Exhibit 11 was introduced and showed a series of withdrawals in 2017 by James from the Nevada College Savings Trust Fund 529 accounts, totaling $359,871.51. James maintained that the withdrawals were made for the purpose of the children's education. He recalled that tuition for each child was between $50,000 and $60,000 per year. He also provided for their room, board, and books. Petitioner's Exhibit 12 showed a series of 2018 withdrawals from the same 529 accounts, totaling $215,983.40. James testified that those funds were used for the same purposes as the 2017 withdrawals.

¶ 8 James then testified to his history as an entrepreneur in which he would start companies, raise financing to build the companies, and then sell the companies before taking a percentage of the total sale. He last sold a company in 2007 and received approximately $6.9 million dollars. Additionally, James received a $700,000 severance from that company. The money James received from that sale had run out some time not long before Monica filed her petition for dissolution of

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marriage, prompting him to reenter his old field of entrepreneurship and build a new company. James indicated that his current salary was $257,800, eligible for additional bonuses.

¶ 9 On cross-examination, James' counsel introduced Respondent's Exhibit 15, a document prepared by James along with statements from the parties' joint Chase Bank checking account. The exhibit detailed how the 2017 withdrawals from the Nevada College Savings Trust Fund 529 accounts were deposited into the parties' joint Chase Bank checking account before being dispersed. The documents showed that when James withdrew more than the amount of the children's college expenses, it was recorded as to what amount was a qualified 529 educational expense versus those that were not qualifying 529 expenses. James testified that a February 15, 2017, nonqualifying withdrawal of $51,000 from the parties' checking account was transferred to the parties' joint Vanguard account while additional withdrawals of $51,000 and $43,000 were used to buy either an ETF or mutual fund. James stated that all funds withdrawn from the 529 accounts were deposited into the parties' joint checking account, and what was not used for the children's educational expenses was used for his and Monica's everyday expenses. He was unaware of any funds from the joint checking account being used for something other than family expenses.

¶ 10 Respondent's Exhibit 16, also prepared by James, detailed the activity related to the 2018 withdrawals from the 529 accounts. As with the transactions contained in Respondent's Exhibit 15, James was unaware of any funds being used for something other than family expenses. James was shown Petitioner's Exhibit 75, a copy of Monica's amended notice to claim dissipation. James reviewed the notice and testified that none of the claims of dissipation noted therein were payments or transfers unrelated to a family expense or family purpose.

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¶ 11 Monica then testified on direct examination that the parties' children were awarded...