Miller v. Miller
| Decision Date | 05 September 2018 |
| Docket Number | NO. 4-17-0932,4-17-0932 |
| Citation | 2018 IL App (4th) 170932 -U |
| Parties | In re MARRIAGE OF JENNIFER MILLER, Petitioner-Appellant, and ALAN MILLER, Respondent-Appellee. |
| Court | United States Appellate Court of Illinois |
NOTICE
This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Morgan County
Honorable David R. Cherry, Judge Presiding.
¶ 1 Held: The appellate court affirmed in part, reversed in part, and remanded to the trial court for the award of maintenance to petitioner.
¶ 2 In December 2017, the trial court entered a judgment for dissolution of marriage between petitioner, Jennifer Miller, and respondent, Alan Miller, and distributed certain marital and nonmarital property.
¶ 3 On appeal, Jennifer argues the trial court (1) abused its discretion in denying her maintenance and erred in (2) its disposition of property and debts, (3) not ordering Alan to provide life insurance, (4) not allocating medical expenses, and (5) not ordering Alan to contribute to her attorney fees. We affirm in part, reverse in part, and remand the cause to the trial court for consideration of an appropriate maintenance award.
¶ 5 In February 1993, Jennifer and Alan were married in Jacksonville, Illinois. Two children were born during the marriage, namely J.M., born in 1993, and G.M., born in 1999. In April 2014, Jennifer filed a petition for dissolution of marriage. At that time, Jennifer was 41 years old and not employed outside the home. Alan was 52 years old and employed by Ameren Corporation (Ameren) as an electrical supervisor of construction services. In her petition, Jennifer asked that Alan be ordered to maintain a life-insurance policy with her as beneficiary and pay maintenance, attorney fees, and child support.
¶ 6 In October 2016, the trial court conducted a hearing on the dissolution petition. The parties stipulated to the values of certain properties, including the Gardendale apartment complex ($181,500), 16 acres in Morgan county ($48,000), and Jennifer's residence (the Finley residence) ($130,000).
¶ 7 Along with J.M. and G.M., Alan testified he has two children from a previous marriage. At the time of the hearing, Alan lived in Jacksonville at the Gardendale apartments, which he and Jennifer owned. He also rented an apartment in Peoria, where he worked. In 1985, Alan began working in a union position as a meter reader for Illinois Power (which later became Ameren) in and around the Jacksonville area. He later served in a gas apprenticeship and then a line apprenticeship. Between 1994 and 2012, Alan worked in the power line department. In 2012, Alan began a management position with Ameren in Washington, Illinois. Although the family originally intended to move to Washington, Jennifer decided not to move, so Alan rented an apartment. In 2016, he became the construction services supervisor in Peoria. During the marriage, Alan would undergo training in Decatur and oftentimes be gone one to two weeks.
¶ 8 Alan's base salary at the time of trial was $98,700, and he received a "management incentive" of $11,228.16 in 2016. When he started with Illinois Power, Alanmade contributions to a 401k plan by contributing 3% of his income, and the company matched the 3%. He continued the contributions until December 2005, at which time the money was rolled over and invested with Berthel Fisher & Company (Berthel Fisher) in an individual retirement account (IRA). Alan also had a pension funded by Illinois Power, which was converted to a cash-savings pension plan in January 2015. As of October 31, 2016, Alan's cash-savings pension plan had a value of $220,558.26. Alan also has an Ameren savings and investment plan with a balance of $177,000, which was funded during the marriage.
¶ 9 Alan claimed a portion of his Ameren cash-savings pension plan and a portion of the Berthel Fisher IRA constituted nonmarital property. Alan stated he made repeated attempts to secure information from Ameren as to the value of the 401k plan and his pension at the time of his marriage to Jennifer. However, Ameren did not maintain such records. Alan stated he retained the necessary records during the marriage and kept them in a filing cabinet. After the parties separated, Jennifer moved the filing cabinet to the garage. Alan's search of the cabinet failed to turn up the records.
¶ 10 In June 2015, Alan engaged the services of a psychiatrist due to depression. One of the treatment recommendations involved him doing "something positive" in his life. To that end, Alan took flying lessons, totaling $657.16.
¶ 11 Jennifer testified she works part-time as a licensed practical nurse (LPN) making $16.50 per hour. Through October 14, 2016, her year-to-date earnings totaled $14,812.62. Her earnings totaled $11,161.28 in 2015 and $3882.23 in 2014. When the parties got married, Jennifer worked part-time for Illinois Express Eye Care and part-time for a dentist. When J.M. was born, Jennifer stayed home before returning to work at a hospital. In 1996, she worked 28 to 32 hours per week at the Southern Illinois University division of ophthalmology and one night aweek as a hostess at the Holiday Inn. After G.M. was born in 1999, Jennifer worked for an ophthalmologist. During the marriage, she was offered additional employment but did not take the jobs because of the hours and her need to take care of the children. When G.M. started kindergarten, Jennifer babysat and then worked for six months at a travel agency. When G.M. was in second or third grade, Jennifer went back to school to become a certified nursing assistant (CNA). The parties agreed Jennifer would go back to school "as long as it didn't interfere with everything else that was going on." She attended classes "one at a time" and became an LPN in 2010 or 2011. At the time of the hearing, she was taking classes to become a registered nurse (RN) and hoped to find a full-time job.
¶ 12 Jennifer testified Alan took trips to Decatur during the marriage for work training. While he was away, she would take care of her stepchildren. The parties would take weekend trips to St. Louis and had taken vacations to Hawaii, Jamaica, and Riviera Maya.
¶ 13 Jennifer testified she was diagnosed with depression in 1994 after the birth of J.M. and continues to see a doctor twice a year, sees a therapist "off and on," and takes medication. In 1995, she was diagnosed with interstitial cystitis, which is a scarring of the lining of the bladder that mimics a urinary tract infection. While it is "very painful," she does not take any medication unless she has a flare-up. In 2004, Jennifer donated her kidney to Alan's brother. In 2015, she was diagnosed with breast cancer and then had a lumpectomy on her right breast. After taking medication, her "kidney function dropped very low." She discontinued the medication but was "very anemic." She took iron supplements and then had iron injections. In 2015, she had "trouble" with her left arm and shoulder and her upper neck and back. She received steroid injections. Jennifer also stated she has had psoriasis "for years" and was eventually diagnosed with psoriatic arthritis. "Years ago," she was diagnosed with idiopathicpruritus, which is "basically hives," and she puts ice on her herself every day and takes antihistamines. She stated nothing related to her physical health prevented her from working full-time.
¶ 14 Jennifer stated the Berthel Fisher account had approximately $250,000. She stated the money in the account had been rolled over from money in Alan's Illinois Power retirement account. She denied removing the records from the filing cabinet.
¶ 15 Jennifer stated the breakdown in the marriage occurred in 2010 or 2011. The parties met with an attorney in April 2013 to talk about a divorce. The parties sold their house, and Jennifer and G.M. moved into the Finley residence in March 2014. Prior to the breakdown, the parties had an Edward Jones account that totaled "$47,000 and something." Jennifer testified to four occasions where money ($10,000, $7522, $19,904.25, and $4500) was taken out of the Edward Jones account and deposited into Alan's account. Jennifer deposited $15,440.64 from a joint account into her own account, and she used a large portion to pay down her credit card debt. Jennifer stated Alan had not reimbursed her for G.M.'s medical expenses from April 2014 to January 2016. He eventually paid $360.
¶ 16 In December 2017, the trial court issued the judgment for dissolution of marriage. The court found a maintenance award to Jennifer was not appropriate. The court noted there had been "a great disparity in incomes of the parties," but the division of assets "makes an equal and equitable distribution of the marital estate accumulated by the parties during the marriage." Moreover, Alan's income will decrease upon his retirement and Jennifer's income "may increase as she takes advantage of her training and education to this point." The court noted "[b]oth parties will have substantial assets to sustain each of them, as well as the incomes which each of them will provide for themselves." While there did not "appear to be an extravagant life[]styleto which Alan and Jennifer have become accustomed," the court found Jennifer's "testimony was less than credible and not clear or convincing as to her 'needs.' " Nothing indicated Jennifer could not be employed full-time, and "she did not present any medical evidence which could support a claim of unemployability."
¶ 17 In regard to the Berthel Fisher IRA, the trial court found the value to be $250,031.71 for purposes of the distribution calculation. Of that amount, $90,920.62 (88 nonmarital months out of 242 total months, or 36.36%) constituted nonmarital property and was awarded to Alan. The marital...
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