Marriage of Getautas, In re
| Decision Date | 02 October 1989 |
| Docket Number | No. 2-88-1267,2-88-1267 |
| Citation | 189 Ill.App.3d 148,136 Ill.Dec. 509,544 N.E.2d 1284 |
| Parties | , 136 Ill.Dec. 509 In re MARRIAGE OF Frank R. GETAUTAS, Petitioner-Appellant, and Dorothy A. Getautas, Respondent-Appellee. |
| Court | United States Appellate Court of Illinois |
Letvin & Stein, David J. Letvin, David Mark Stein, Chicago, for Frank R. Getautas.
William J. Wylie & Associates, P.C., Mary K. Manning, Wheaton, Dorothy A. Getautas.
Petitioner, Frank R. Getautas (Frank), appeals from a final order entered by the trial court dissolving his marriage to respondent, Dorothy A. Getautas (Dorothy). On appeal, Frank contends that the trial court erred in finding that (1) no dissipation of marital assets occurred; (2) Frank owed a child support arrearage of $717.39; and (3) Dorothy was entitled to maintenance of $350 per month for three years. We affirm in part and vacate in part.
As the parties are familiar with the procedural history of this case and the voluminous exhibits admitted at trial, we need only set forth that evidence pertinent to resolving each of the issues raised.
Frank and Dorothy Getautas were married in 1968. During their marriage, they had three children, all of whom were emancipated at the time of trial. Although married for 20 years, both parties agree that the marriage was a troubled one. Within the first 10 years of the marriage, Dorothy filed two petitions to dissolve the marriage. The first was filed in 1973 or 1974, and the second in 1977. She voluntarily dismissed both petitions.
In 1977, Dorothy went to work part time as a clerk in a hospital. A few years later, she began working full time at the hospital and has continued to do so at various hospitals, except for a period of time while she was laid off in 1984. In addition to her work at the hospital, Dorothy began working for Frank's business in 1984 without pay. While working for him, her duties included opening the mail, receiving business checks, and making bank deposits on behalf of the business.
Frank has been employed at G & E Instruments, Inc. (G & E), since 1979. G & E is a close corporation engaged in the resale of industrial control instruments. Frank is the corporation's sole stockholder. While his income varies depending on the success of the business, the testimony revealed that he took home an estimated $2,000 a month during the marriage.
From the time they were married, Frank handled the financial affairs of the family penuriously. However, in 1981, Dorothy took over the family finances. Subsequently, the lifestyle of the family changed. Dorothy had a number of major improvements made to the marital residence; the children were enrolled in one of the best and most expensive private high schools in the area; gardeners and household help were employed; the children had orthodontia and dental surgeries; and the parties vacationed extensively.
Throughout the marriage there had been periods where the parties separated; however they had always reconciled. In February 1986, after an argument with Frank, Dorothy left the marital residence and went to live with her family in Minnesota. Frank alleged that it was during this separation that he first discovered financial irregularities in their marital assets and in the accounts receivable at G & E. Frank testified that when he confronted Dorothy with the irregularities she gave no explanation as to where the money had been spent.
At Frank's request, Dorothy returned to the marital home in July 1986. Frank filed for dissolution in December 1986, and Dorothy moved out of the marital residence the following year. The parties executed a written waiver of the two-year separation requirement contained in section 401 of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill.Rev.Stat.1987, ch. 40, par. 401(a)(2)). At an uncontested hearing in August 1988, the trial court found grounds for dissolution based upon irreconcilable differences.
A lengthy trial then ensued regarding the issue of property distribution. The trial court found that the marital property of the parties consisted of the following: (1) the marital residence in Naperville; (2) G & E Instruments, Inc.; (3) a 1981 Audi automobile; (4) a 1984 Trans Am Pontiac automobile; and (5) various household furnishings in the marital home. Further, the court found that Frank owned the following nonmarital property: (1) $8,500 worth of stock which he had to sell in February 1986 to pay for bills and expenses of the parties during 1986 and 1987; and (2) a joint account with his mother. There was no evidence of marital monies having been placed into this account.
In its disposition of the marital estate, the court ordered, in pertinent part, that the marital residence be sold and the proceeds allocated first to reimburse Frank for the $8,500 of nonmarital property he had been forced to liquidate, with the remainder being allocated 60% to Dorothy and 40% to Frank. G & E Instruments, Inc., and the 1981 Audi were awarded to Frank, with Dorothy being awarded the 1984 Trans Am. The court ordered that the household furnishings be sold at public auction absent an agreement between the parties as to an equitable division. Additionally, the court ordered that Frank pay a child support arrearage in the amount of $717.39 and pay Dorothy maintenance of $350 per month for three years.
In distributing the marital property, the trial court specifically found that Dorothy had not dissipated any marital assets. This finding was made despite numerous exhibits presented by Frank in attempting to show that Dorothy liquidated nearly $150,000 by closing many of the parties' bank accounts and cashing checks made payable to G & E without his knowledge. The court found that virtually all of the alleged acts of dissipation occurred prior to the irreconcilable breakdown of the marriage and, further, that Dorothy had not used any marital funds for purposes unrelated to the marriage. Frank filed this timely appeal.
Section 503(d)(1) of the Act provides:
Dissipation of marital assets occurs when a spouse uses marital property for his or her own benefit for a purpose unrelated to the marriage at a time when the marriage is in serious jeopardy or undergoing an irreconcilable breakdown. (In re Marriage of Petrovich (1987), 154 Ill.App.3d 881, 886, 107 Ill.Dec. 543, 507 N.E.2d 207; In re Marriage of Los (1985), 136 Ill.App.3d 26, 31, 90 Ill.Dec. 739, 482 N.E.2d 1022.) Whether a given course of conduct constitutes dissipation depends upon the facts of each case. (In re Marriage of Westcott (1987), 163 Ill.App.3d 168, 174, 114 Ill.Dec. 411, 516 N.E.2d 566.) The trial court's finding that no dissipation occurred will not be reversed on appeal absent an abuse of discretion. (Petrovich, 154 Ill.App.3d at 886, 107 Ill.Dec. 543, 507 N.E.2d 207.) An abuse of discretion occurs only where no reasonable person could take the view adopted by the trial court. In re Marriage of Kaplan (1986), 149 Ill.App.3d 23, 31, 102 Ill.Dec. 719, 500 N.E.2d 612.
At trial, Dorothy admitted to closing many of the parties' bank accounts and cashing checks made payable to G & E. However, the trial court found that the assets in question were not dissipated. The basis for the court's finding was twofold. First, virtually all of the alleged dissipation occurred prior to the irreconcilable breakdown of the marriage; and second, Dorothy had not used any marital funds for purposes unrelated to the marriage.
By its very definition, dissipation occurs after the marriage is irreconcilably broken down. The trial court found that the breakdown occurred in the latter months of 1986, either in November or December. Frank contends that the court erred in this finding and argues that the breakdown occurred in 1979, or at least by 1984.
We do not believe that the trial court abused its discretion in the instant case. As to the factual history and breakdown of the marriage, the court had to base its finding upon scant testimony presented at trial. That testimony revealed that the marriage was a troubled one precipitated in great part by the differing attitudes of the parties with respect to the expenditures of marital funds. While there had been periods of separation throughout the marriage, the parties had always reconciled. Indeed, upon Frank's request, Dorothy returned home after the February 1986 separation. It was not until December 1986 that Frank filed for dissolution. While it is possible to find an irreconcilable breakdown prior to commencement of dissolution proceedings (In re Marriage of Smith (1984), 128 Ill.App.3d 1017, 1019, 84 Ill.Dec. 242, 471 N.E.2d 1008), there is no indication that such finding is warranted here.
The second basis for the trial court's holding of no dissipation was the finding that no marital funds were used for purposes unrelated to the marriage. The point of inquiry is that period of time after the marriage has irreconcilably broken down. The party who is charged with dissipation is under an obligation to establish by clear and specific evidence how those funds were spent. (In re Marriage of Petrovich (1987), 154 Ill.App.3d 881, 886, 107 Ill.Dec. 543, 507 N.E.2d 207; Smith, 128 Ill.App.3d at 1022, 84 Ill.Dec. 242, 471 N.E.2d 1008.) General and vague statements that the funds were spent on marital expenses or to pay bills are inadequate to avoid a finding of...
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