Marriage of Schmidt, In re
| Decision Date | 19 April 1993 |
| Docket Number | No. 4-91-0948,4-91-0948 |
| Citation | 182 Ill.Dec. 804,610 N.E.2d 673,242 Ill.App.3d 961 |
| Parties | , 182 Ill.Dec. 804 In re the MARRIAGE OF Robert Henry SCHMIDT, Petitioner-Appellant, and Lynn I. Schmidt, Respondent-Appellee. |
| Court | United States Appellate Court of Illinois |
Steven Nardulli, argued, Stratton, Dobbs & Nardulli, Springfield, for petitioner-appellant.
Thomas R. Appleton, argued, Elizabeth W. Anderson, Morse, Giganti & Appleton, Springfield, for respondent-appellee.
Donald LoBue, Springfield, Guardian ad Litem.
Robert Henry Schmidt (Robert) appeals a judgment of the circuit court of Sangamon County dissolving his marriage to Lynn I. Schmidt (Lynn). On appeal, Robert argues (1) the trial court's distribution of assets was against the manifest weight of the evidence, (2) the trial court erred in ordering him to pay a portion of Lynn's attorney fees, (3) the trial court should have found dissipation and directed Lynn to reimburse the marital estate for the cash assets she had in her possession at the time of the separation, (4) the trial court erred in its order altering the visitation that existed during the separation, and (5) the trial court erred in ordering him to pay medical expenses incurred by Lynn during the separation. We affirm and remand.
Robert and Lynn were married July 8, 1978, in Menard County, Illinois. A child, Lauren, was born to them September 10, 1980. The parties separated September 19, 1986. Robert filed a petition to dissolve the marriage and Lynn filed a counterpetition. Robert's petition was later dismissed and the parties proceeded on Lynn's counterpetition. A judgment of dissolution of marriage was entered September 26, 1991.
Robert runs the day-to-day operation of his father's roofing and sheet metal business, Schmidt Brothers Roofing. According to Robert, he makes approximately $600 per week or $31,200 per year. From 1980 through 1985 (the years before the separation), Robert made $56,500, $56,000, $56,000, $61,000, $61,925, and $69,581 per year, respectively, or an average of $60,186 per year. From 1986 through 1991 (the years after the separation), Robert made $36,800, $31,200, $31,200, $31,200, $31,800 per year, respectively, or an average of $32,440 per year. Robert claims that much of his income in the early 1980's came from bonuses but, because the roofing business has taken a downturn, he had not received a bonus since 1985. Lynn works as a real estate salesperson for John B. Clark, Realtor, in Springfield. From 1987 through 1990, her income was $38,141, $38,789, $33,649, and $30,804 per year, respectively.
During the marriage, the parties lived in a home that Lynn had purchased with her prior husband. It had been awarded to her in the dissolution of that marriage, subject to the payment of $5,400 to the former husband as his share of the real estate. Robert paid Lynn's former husband $1,300 in partial payment, and the balance came from forgiveness of past-due child support and maintenance. Title was transferred to Robert and Lynn in joint tenancy. Lynn estimated that at the time of her marriage to Robert the house was worth between $76,000 and $79,000. At that time, Robert and Lynn obtained a new mortgage of approximately $50,500.
During the marriage Robert and Lynn embarked on an extensive and costly remodeling of the house. Lynn claimed the project got out of control and that Robert "ran the show." Over a period of eight years the parties wrote checks to different suppliers in an amount exceeding $132,000. Included in that amount was $11,767.55 paid to Schmidt Brothers for roofing work. Robert also claims that between 1978 and 1981 the parties ran $41,984.99 through the books of Schmidt Brothers for subcontractors and materials for the house, which was paid by the execution of a promissory note dated November 21, 1986, from Robert to Schmidt Brothers. Robert claims the total of the amounts expended on the house for remodeling was $185,752.54. Lynn argues that much of the money filtered through Schmidt Brothers was not spent on home improvement but on other items, such as the payment of Robert's parking tickets, car insurance, camera purchases, and for other, unknown purposes. Lynn testified that although the account had apparently been opened in 1979, she was not made aware of it until after the account had a balance due of over $41,000 which, according to the ledger sheet, was in 1982.
Robert claims that the remodeling was generally financed with money that came from his parents, as well as money he had prior to the marriage. At the time of the marriage, Robert had cash in checking and savings accounts in excess of $31,000, all of which he claims to have put into the remodeling of the house. Lynn contends that part of the remodeling was financed with money she had prior to the marriage and with money from their second mortgage on the house. At the time of the trial two mortgages existed against the real estate, one for $28,356 and one for $8,200, for a total mortgage indebtedness of $36,556. Robert had the house appraised at $157,000, and Lynn had the house appraised at $173,000.
Between the date of the marriage and the separation, Robert's parents made $38,600 in gifts to Robert and Lynn on special occasions such as birthdays, anniversaries and holidays. In addition to those gifts, Robert's parents allegedly loaned substantial sums of money to Robert and Lynn. These alleged loans may be placed into two categories. The first is a category where notes were obtained at the time of the transfers; the second is a category where no notes were obtained until after the parties' separation. The first category amounted to a total of $35,000, plus $22,284.99 of interest as of the trial. The second category amounted to a total of $30,500, plus $9,290.71 of accumulated interest on previous loans (as mentioned within the note) and $10,555.56 of accumulated interest from the time of the note's execution through trial.
The first category of transfers is comprised of seven notes, each for $5,000, bearing a 6% interest rate, and signed by Robert and Lynn. Lynn testified to signing one of the notes while "holding a baby in one hand and frying chicken in the other." She said that Robert told her the documents were to memorialize the fact that his parents were giving more money to them than to Robert's brother and his wife. Lynn further testified that there was no intent to repay Robert's parents and that no interest rate was filled in on the documents at the time she signed them.
As to the second category of transfers, Robert contends that he and Lynn frequently approached his parents for additional money. Lynn testified, however, that she could not remember a single instance when Robert asked his parents for money in her presence. Robert's parents transferred, by checks made out to Robert and dated before 1985, an additional $30,500 to Robert and Lynn. Robert's father testified that he prepared a note regarding these transfers and had it signed by Robert after the separation. The amounts of these loans, unlike those in the first category, varied from $1,000 to $5,000 each.
At the time of the separation, Robert and Lynn had just over $4,500 in their joint checking account, of which Lynn removed $4,500. During the separation Robert borrowed over $45,000 from Magna Bank. Robert contends this money was spent on attorney fees, State and Federal taxes, interest on his accumulating debt, insurance on the home, real estate taxes, and a child therapist for Lauren. Robert also accumulated retirement funds totaling approximately $47,000, of which he contends $26,410 is marital property.
The trial court did not differentiate marital from nonmarital property or specify any values for the marital assets in its memorandum opinion and the subsequent judgment order. The court did not specifically address whether the transfers of monies from Robert's parents were gifts or loans, but assigned responsibility for the notes and loans payable to Schmidt Brothers and to Velma and Ed Schmidt to Robert. Robert made no request that the trial court specifically identify or value marital property or explain whether the transfers were loans or gifts. The court awarded each party the things in his or her possession, apart from specific items and half the photographs which were awarded to Lynn. The court ordered the house be sold and the net proceeds divided, and provided alternatively that if Robert wanted to purchase the house, he could buy Lynn's share for $65,000. The court did not compute the net marital estate. The court order did not require payment of maintenance to either party and awarded permanent custody of Lauren to Lynn with visitation rights to Robert. Robert was ordered to pay $425 per month to Lynn for child support and he was also ordered to keep and maintain a policy of medical insurance covering Lauren. Based upon Lynn's request that she be awarded attorney fees, Robert was ordered to pay $12,500 of Lynn's $28,000 attorney fees. Robert filed a post-trial motion seeking reconsideration of the issues raised on appeal. The trial court denied the motion.
Initially, Robert contends the trial court erred in its distribution of assets in holding him individually responsible for the debts to his parents and Schmidt Brothers. A trial court's distribution of marital property should not be reversed absent a showing that the trial court abused its discretion, i.e., no reasonable person could adopt the trial court's position. (In re Marriage of Kerber (1991), 215 Ill.App.3d 248, 254, 158 Ill.Dec. 717, 721, 574 N.E.2d 830, 834; see also In re Marriage of Wade (1987), 158 Ill.App.3d 255, 268, 110 Ill.Dec. 321, 330, 511 N.E.2d 156, 165.) Section 503(d) of the Illinois Marriage and Dissolution of Marriage Act (Act) provides that marital property shall be divided in "just proportions"...
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