In re Marriage of Dhillon , 2014 IL App (3d) 130653 ( 2014 )

Illinois Official Reports
Appellate Court
In re Marriage of Dhillon, 2014 IL App (3d) 130653Appellate Court In re MARRIAGE OF INDERBIR S. DHILLON, Petitioner-Appellee
Caption and Cross-Appellant, and NAVNEET K. DHILLON, n/k/a Navneet
Kaur, Respondent-Appellant and Cross-Appellee.
District & No. Third District
Docket No. 3-13-0653
Filed November 7, 2014
Rehearing denied December 2, 2014
Held In an appeal from the dissolution of the childless marriage of an
(Note: This syllabus engineer and a wife who worked as an accountant, the appellate court
constitutes no part of the remanded the cause with directions to award the wife 50% of the
opinion of the court but marital funds held in a savings account at the account’s high point
has been prepared by the when the husband later dissipated that amount, and furthermore, the
Reporter of Decisions trial court was directed to consider whether the husband dissipated any
for the convenience of other funds up to the date the dissolution judgment was entered and to
the reader.) award the husband’s nonmarital estate a credit of $3,170.97 against
what he owed for the dissipation of the marital funds as
reimbursement for money he contributed to his 401(k) account prior to
the marriage and to take any further action required.
Decision Under Appeal from the Circuit Court of Peoria County, No. 07-D-519; the
Review Hon. Michael Risinger, Judge, presiding.
Judgment Affirmed in part and reversed in part; caused remanded with
directions.
Counsel on Michael A. Fleming (argued), of Michael A. Fleming, P.C., of Peoria,
Appeal for appellant.
Kirk W. Bode (argued), of Pekin, for appellee.
Panel JUSTICE CARTER delivered the judgment of the court, with opinion.
Justices McDade and Wright concurred in the judgment and opinion.
OPINION
¶1 After a bench trial in a marital dissolution proceeding, the trial court entered an order
dividing the parties’ property. Both parties appeal from that order, asserting that the trial
court erred in various aspects of its ruling. We agree with the parties that some of the trial
court’s ruling was erroneous. We, therefore, affirm the trial court’s property-division order in
part, reverse in part, and remand with directions.
¶2 I. FACTS
¶3 Husband, Inderbir S. Dhillon, and wife, Navneet K. Dhillon, now known as Navneet
Kaur, were married in 2002, had no children, and were separated in May 2007. Husband filed
for divorce in August 2007, and a bifurcated judgment of dissolution of marriage was entered
in July 2009.
¶4 A bench trial was held on property division in October 2012. The evidence presented at
the trial, which consisted of the testimony of husband and wife and numerous financial
documents that were admitted into evidence, can be summarized as follows. Prior to the
marriage, starting in about 2000, husband lived in an apartment in Michigan and worked as
an engineer for a company named Mahle. An account statement that was admitted into
evidence showed that husband had about $60,000 in one of his individual accounts at about
the time of the marriage. While husband was working at Mahle prior to the marriage, he
contributed to a 401(k) account. An account statement that was admitted into evidence
showed that about six months prior to the marriage, husband had $3,170.97 in his Mahle
401(k) account.
¶5 After the parties were married, wife moved into husband’s apartment in Michigan.
Husband managed all of the parties’ finances. Husband continued to work full time at Mahle,
and wife worked part-time as a cashier at Rite Aid, while she pursued a master’s degree in
business administration (MBA). Husband’s yearly income at that time was about $50,000.
Husband continued to contribute to his 401(k) during the marriage until he left his position at
Mahle in July or August 2005 to take a position with Caterpillar. When husband left his
position at Mahle, he was making about $54,000 per year and had about $19,000 in his
401(k) account.
¶6 In August 2005, husband began working for Caterpillar in Peoria and the parties moved
to that location. Husband’s starting salary with Caterpillar was about $62,000 or $63,000 per
year. For about the first five months that the parties lived in Peoria, wife did not work
because she was preparing for the certified public accountant (CPA) exam. In about January
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2006, wife began working part-time for an accounting firm as an intern and eventually, in
summer 2006, transitioned into a full-time job as a CPA with that same firm after she passed
the CPA exam. She was paid about $35,000 per year. The incomes of husband and wife
increased over time. In the last full year of the marriage, husband’s gross income was about
$82,000 and wife’s was about $49,000.
¶7 During the entire marriage, the parties lived very frugally. They owned no real estate,
lived in an apartment, and, for the most part, spent money only on necessities. Indeed, for the
last several months or year that the parties were together, they were able to live on wife’s
income alone and were able to save husband’s entire net income of over $4,000 per month. In
addition, for several months prior to that time, husband and wife were able to save $2,000 to
$3,000 per month.
¶8 Prior to the parties’ move, husband set up several bank accounts for them to use while
they lived in Peoria. One of the accounts was established jointly in husband and wife’s name,
another account was established jointly in the names of husband and his father, and two more
accounts were established in husband’s name alone. One of the accounts set up in husband’s
name alone, savings account 4863, is of special relevance to this appeal.
¶9 Account 4863 was opened in July 2005. Shortly after the account was opened or within
the first month thereafter, several large deposits were made to the account in the approximate
amounts of $80,000, $49,000, and $53,000, for a total of approximately $182,000. Because
wife was not involved in the parties’ finances, she was not aware of account 4863 or of the
amount of money it contained. Additional deposits were made to that account during the
course of the marriage, including husband’s paycheck and bonuses and other lump-sum
amounts, and despite occasional withdrawals, the balance in the account continued to grow.
According to the bank statements that were admitted at trial, over the course of about two
years, by March 2007, the account had grown in value to a high of $301,606.80, a substantial
portion of which appeared to be from husband’s earnings during the marriage.
¶ 10 During the course of the litigation in this case, husband changed attorneys several times,
represented himself pro se at times, and was not forthcoming with discovery as to his
financial information. Most of the financial information in this case was obtained by wife’s
attorney through subpoena. One of the financial documents that wife received from husband
was a copy of the parties’ joint tax return for 2006. When wife obtained a certified copy of
that same document from the IRS, however, it showed that $10,000 of interest income that
husband had received was not listed on the tax return that husband had provided to wife in
discovery but was listed on the tax return that husband had actually filed with the IRS.
Husband testified at trial that two versions of the return were prepared, one where he claimed
the interest and the other where his father claimed the interest, so that they could determine
which approach was the more tax advantageous. Husband indicated that he must have
tendered the wrong return to wife in discovery.
¶ 11 After wife subpoenaed the bank information, she learned of savings account 4863 and of
the substantial amount of money that it had contained prior to the parties’ separation. The
bank records showed that husband had essentially depleted the account in a few large
transfers over a short period in March 2007. Most of the funds were eventually transferred to
an account held in husband’s father’s name alone. Husband testified that the funds always
belonged to his father, that they were placed into account 4863 so that husband could make
transfers of money on his father’s behalf and so that his father would have money available
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to him at various times when he came to the United States from India. Husband testified
further that although his paycheck and bonuses were deposited into the account, transfers
were also made out of the account for marital expenses. Wife, on the other hand, testified that
she and husband were able to save a large amount of money on a monthly basis when they
were married, although she did not know how much; she was not aware of the large amount
of money in account 4863; and that it was possible that some of the money in account 4863
came from husband’s father or sister. Limited financial documents were admitted by husband
which showed that large deposits were made into a joint account of husband and his father
(or husband and his sister) in July 2005 and that those funds were transferred to account 4863
a short time later.
¶ 12 Regarding the status of the marriage, husband testified that there were no problems in the
relationship until wife left him in May 2007. Husband also denied that he ever struck wife or
that he was physically abusive. Wife, on the other hand, testified that as of the beginning of
2007, she was very depressed and unhappy about the marriage and believed that husband
knew that she felt that way. According to wife, there were several problems with the
marriage, and the marriage “just started falling.” At various times during wife’s testimony,
husband’s attorney objected when wife was asked questions relative to husband’s conduct
and to the status of the marriage. In ruling upon those objections, the trial judge stated that
the matter was clear to him, that he did not need a lot of evidence on the matter, and that he
did not know if husband’s attorney was even going to try to rehabilitate husband.
¶ 13 Testifying further, wife stated that husband was physically abusive and would hit her if
she objected to or disagreed with husband’s actions. Husband was mean to wife’s family and
would only allow wife’s family to stay for a day when they came to visit. In addition, there
was growing tension between husband and wife over the wedding of wife’s cousin that was
scheduled to take place in London in early June 2007. Although wife told husband that she
wanted to go to the wedding, husband failed to buy a plane ticket for wife to attend.
According to wife, as the wedding date got closer, she and husband had several arguments
over that matter and she insisted to husband that she was going to the wedding. Wife
eventually asked husband’s parents to intervene, and husband’s father agreed to buy wife a
plane ticket if husband failed to do so. Husband did not buy the ticket until the end of May
2007, only a day or two before the wedding. Wife took a bus to the airport and was very
angry and upset with husband when she left, although she was still planning on going back to
husband when the wedding was over. After wife arrived in London and spoke to several of
her family members, she decided not to return to husband. Instead, wife remained in London
for several weeks. Although husband called and tried to speak to wife, wife would not take
his calls.
¶ 14 The parties never reconciled or lived together as a married couple after that time. Thus,
for all practical purposes, husband and wife were separated as of the end of May or
beginning of June 2007. As noted above, husband formally filed for divorce in August 2007,
and a bifurcated judgment of dissolution of marriage was entered in July 2009.
¶ 15 At the conclusion of the evidence in the bench trial, the trial court took the case under
advisement. The parties submitted their written closing arguments. The trial court later issued
its property-division order. Of relevance to this appeal, in the order, the trial court found that:
(1) husband had no credibility; (2) all of the funds contained in account 4863 at its highpoint
in March 2007 were husband’s nonmarital property; (3) the marital estate was not entitled to
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reimbursement for the alleged dissipation of the funds from account 4863 because the funds
were nonmarital property and because the marriage was not undergoing an irreconcilable
breakdown “at the time most of the funds were deposited and later transferred back out”; and
(4) husband’s nonmarital estate was not entitled to reimbursement for contributions that were
made to husband’s 401(k) account prior to the marriage because those funds had lost their
identity and had become entirely marital property when they were rolled into the marital
retirement account at Caterpillar.1
¶ 16 More specifically as to account 4863, the trial court stated:
“There is no reimbursement ordered for the large deposits placed into Husband’s
marital bank account [account 4863]. The marriage was not undergoing a breakdown
at the time most of the funds were deposited and later transferred back out. Nor is
there any explanation how Husband and Wife could have generated such income (up
to $300,000) without the source being outside the marriage. Co-mingling [sic] of
these funds in a marital account was minimal and then they were withdrawn. There is
no way Wife can present evidence that the funds were not indeed a gift or a
temporary holding place. In this regard, it really benefited Husband that his father,
Jasbir, never testified because the Court never had the opportunity to judge the
credibility of Jasbir or have him testify to his business dealings. Mr. Fleming’s
[wife’s attorney] attempted explanation how the parties could have saved this amount
falls short. Thus Wife has not proved this claim.”
¶ 17 Wife and husband both filed motions to reconsider, which the trial court denied. Of
relevance to this appeal, in making its ruling on wife’s motion, the trial court stated:
“Regarding Wife’s request for half of the ‘$300,000,[’] Wife did not present
evidence at trial nor via argument on her Motion to Reconsider such that the Court
could trace such funds to deem the marriage to be a source of these funds. In fact the
Court jotted down this thought in its personal notes from trial, ‘H lived semi-frugally,
but even if he spent non [sic] of his paycheck, he wouldn’t have accumulated
$300,000.’ The Court believed then, and still believes today, that the source of the
funds came from outside the marriage, namely Husband’s father. Husband’s
explanation at trial that the funds came from his Father and were given back to his
father is logical. Previous in the marriage, the Husband had not hesitated to set up
accounts in his sole name or jointly with his wife. It is only logical that he would have
treated these funds, from which there is no explanation as to how they could have
been generated from the marriage, the same for banking purposes.”
¶ 18 This appeal and cross-appeal followed.
¶ 19 II. ANALYSIS
¶ 20 A. Burden of Proof
¶ 21 As her first point of contention on appeal, wife argues that the trial court erred in its
property division ruling by incorrectly placing the burden of proof on wife to show that
savings account 4863 was marital property. As evidence of that claim, wife points to the trial
court’s statements in the initial property division order and in the ruling on wife’s motion to
1
Some of the findings listed were implicit in the trial court’s ruling and were not stated expressly.
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reconsider where the trial court indicated that wife had failed to show that the funds in the
account were from a marital source. Wife asserts that those statements clearly establish that
the trial court incorrectly put the burden of proof on wife.
¶ 22 Husband disagrees with that assertion and argues that the trial court correctly applied the
burden of proof in this case. According to husband, although there may have been some
confusion after the trial court’s initial order, it is clear from the trial court’s ruling on wife’s
motion to reconsider that the trial court correctly put the burden of proof on husband to show
that the funds in the account came from a nonmarital source and that the trial court ultimately
found that husband had satisfied that burden by clear and convincing evidence.
¶ 23 The application of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS
5/101 et seq. (West 2012)) is a question of law, which the appellate court reviews de novo on
appeal. Blum v. Koster, 235 Ill. 2d 21, 29 (2009). In addition, questions regarding the burden
of proof and whether it was applied correctly in the trial court are also questions of law that
are subject to de novo review on appeal. 1350 Lake Shore Associates v. Healey, 223 Ill. 2d
607, 627 (2006).
¶ 24 Under the Act, all property acquired by either spouse during the marriage and before a
judgment of dissolution is presumed to be marital property, regardless of how title is actually
held. 750 ILCS 5/503(b)(1) (West 2012); In re Marriage of Gattone, 317 Ill. App. 3d 346,
351-52 (2000). The presumption of marital property can be overcome only with a showing
by clear and convincing evidence that the property falls into one of the categories of
exceptions listed in section 503(a) of the Act. 750 ILCS 5/503(a), (b)(1) (West 2012);
Gattone, 317 Ill. App. 3d at 352. The burden to make that showing is on the party claiming
that the property is nonmarital. Id. Any doubts as to the classification of property will be
resolved in favor of finding that the property is marital property. Gattone, 317 Ill. App. 3d at
352.
¶ 25 In the present case, because account 4863 was opened during the marriage, the marital
presumption clearly applied to the account and to the funds therein. See 750 ILCS
5/503(b)(1) (West 2012); Gattone, 317 Ill. App. 3d at 351-52. It was husband’s burden,
therefore, to show by clear and convincing evidence that the funds in the account had come
from a nonmarital source since husband was seeking to have the funds classified as
nonmarital property. See 750 ILCS 5/503(b)(1) (West 2012); Gattone, 317 Ill. App. 3d at
352. However, as wife suggests, the trial court’s statements in both the initial
property-division order and in the order denying wife’s motion to reconsider indicate that the
trial court incorrectly interchanged the burden of proof and required wife to prove that the
account and the funds therein were marital property and not the separate nonmarital property
of husband. The clearest indication of that error was when the trial court stated in the orders
that the parties could not have saved such a large amount of money during the course of their
marriage, regardless of how frugal they were, and that the funds, therefore, must have come
from husband’s father. The trial court reached that conclusion despite the fact that the only
evidence that the funds came from husband’s father was husband’s testimony, which the trial
court found to be completely lacking in credibility. Although documentary evidence was
presented as to the matter, it provided no indication that the funds belonged to husband’s
father. Rather, the documentary evidence showed at best that the funds made a brief stop in
other accounts before the funds were transferred into account 4863. Although husband’s
father and sister had an interest in those accounts, husband, as a joint holder, had an interest
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as well. Faced with a lack of evidence to determine where the funds in account 4863 had
come from, the trial court made an assumption that it could not have come from the marriage
and had to have come from husband’s father. By making that assumption, the trial court in
effect incorrectly and erroneously put the burden of proof on wife. The trial court should
have found instead that because it had not been proven where the funds in account 4863 had
come from, husband, as the party with the burden of proof, had failed in that burden, and that
the funds, therefore, were deemed to be marital property. See 750 ILCS 5/503(b)(1) (West
2012); Gattone, 317 Ill. App. 3d at 351-52.
¶ 26 B. Classification of Funds in Account 4863
¶ 27 As her second point of contention on appeal, wife argues that the trial court erred in
finding that all of the funds in account 4863 were the nonmarital property of husband. In
support of that argument, wife asserts that: (1) the marital presumption applied to account
4863 and to the funds therein because the account was established during the marriage; (2)
when the burden of proof is correctly applied to husband, it is clear that husband did not
satisfy his burden to establish by clear and convincing evidence that the funds were acquired
from a nonmarital source because the only evidence in support of husband’s claim in that
regard was a few documents and husband’s own testimony, which the trial court found to be
completely lacking in credibility; (3) even if the trial court was correct in finding that the
initial large deposits to the account were nonmarital property, those funds were later
transmuted to marital property, subject to husband’s right of reimbursement, when they were
extensively commingled with marital funds (husband’s paycheck and bonuses) over a
two-year period; and (4) the trial court’s finding of nonmarital property was primarily the
result of its incorrect application of the burden of proof and was against the manifest weight
of the evidence.
¶ 28 Husband argues that the trial court’s ruling was proper and should be affirmed. Husband
asserts that: (1) although the account was established during the marriage, it was opened in
husband’s name alone with the clear purpose of being a repository for nonmarital money that
came from husband’s father and sister; (2) because the account was never placed into some
form of co-ownership, it maintained its status as nonmarital property; (3) to the extent that it
was husband’s burden to establish that the initial large deposits came from nonmarital
sources (husband’s father and sister), husband did so by clear and convincing evidence as the
funds were directly traceable to those nonmarital sources; (4) wife’s efforts to attribute the
funds to the savings from the parties’ frugal lifestyle were totally without merit and were
rejected by the trial court; (5) wife even acknowledged in her own testimony during the
bench trial that she did not know about the money in the account and that some of the funds
may have come from the husband’s father and sister; (6) when the small amount of marital
funds were added to, and commingled with, the much larger nonmarital funds in the account
over a short period of time, the marital funds were transmuted to nonmarital property (the
receiving estate), subject to the marital estate’s right of reimbursement, if wife could
establish by clear and convincing evidence that reimbursement was due and the appropriate
amount of reimbursement; and (7) although marital funds were placed into the account,
comparable amounts were transferred out of the account and used for marital expenses, so
that the marital transfers into and out of the account essentially netted out, as the trial court
found.
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¶ 29 In a dissolution of marriage proceeding, a trial court’s factual findings–such as whether
property is marital or nonmarital, the fair market value of property, whether reimbursement is
appropriate, or whether dissipation has occurred–will not be reversed on appeal unless they
are against the manifest weight of the evidence. See Gattone, 317 Ill. App. 3d at 351
(classification); In re Marriage of Hubbs, 363 Ill. App. 3d 696, 699-700 (2006) (valuation
and dissipation); In re Marriage of Vancura, 356 Ill. App. 3d 200, 205 (2005) (dissipation);
In re Marriage of Ford, 377 Ill. App. 3d 181, 185-86 (2007) (reimbursement). A finding is
against the manifest weight of the evidence only if it is clearly apparent from the record that
the trial court should have reached the opposite conclusion or if the finding itself is arbitrary,
unreasonable, or not based upon the evidence presented. Best v. Best, 223 Ill. 2d 342, 350
(2006).
¶ 30 Before property can be assigned or divided in a dissolution of marriage proceeding, it
must first be classified by the trial court as either marital or nonmarital. Gattone, 317 Ill.
App. 3d at 351; In re Marriage of Cecil, 202 Ill. App. 3d 783, 787 (1990). As noted above, a
presumption of marital property applies to all property acquired during the marriage, which
may be rebutted by clear and convincing evidence to the contrary. See 750 ILCS 5/503(a),
(b)(1) (West 2012); Gattone, 317 Ill. App. 3d at 351-52. Any doubts as to the classification
of property will be resolved in favor of finding that the property is marital property. Gattone,
317 Ill. App. 3d at 352. One of the listed categories of exceptions is property acquired by
gift, legacy or descent. 750 ILCS 5/503(a)(1) (West 2012). Thus, property acquired during
the marriage by one of the spouses by gift is generally the nonmarital property of the spouse
that received the gift. See id.
¶ 31 In the present case, although husband occasionally referred to the large deposits that were
initially made into account 4863 as a gift from his father, it is clear from the record and from
husband’s arguments before the trial court and this court that husband is not contending that
the funds were a gift. Rather, husband is contending that the funds always belonged to his
father and were only placed in account 4863 as a matter of convenience so that husband
could transfer money on his father’s behalf and so that husband’s father would have money
available to him when he was living or staying in the United States. Thus, we do not believe
that the gift presumption would apply in this case and that the only presumption that is
applicable here is the marital presumption. See In re Marriage of Hagshenas, 234 Ill. App.
3d 178, 186-87 (1992) (noting that in a situation where both the gift presumption and the
marital presumption apply to the property to be classified, the two presumptions cancel each
other out, and a simple manifest weight of the evidence standard applies). Husband seems to
recognize as much as husband acknowledges in his appellate brief that it was his burden to
show by clear and convincing evidence that the funds in question were directly traceable to
his father’s money.
¶ 32 While we agree with husband’s statement in that regard, we find that the trial court’s
conclusion–that the funds in account 4863 were not marital property–was against the
manifest weight of the evidence. As noted above, in making its determination, the trial court
incorrectly placed the burden of proof on wife to establish that the funds were marital
property, despite the fact that the account was opened during the marriage. The main
evidence that husband presented to establish that the funds belonged to his father and were
placed in the account as a matter of convenience for his father was husband’s own testimony,
which the trial court found to be completely lacking in credibility. Husband’s testimony,
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therefore, could not have served as the basis for the finding that the funds in account 4863
were nonmarital property. In addition, as noted previously, the documentary evidence
presented by husband in support of his claim of nonmarital property was completely
insufficient to establish that contention. The bank statements that husband provided showed
only that the funds in question made a brief stop in the joint account of husband and his
father (or husband and his sister) before being transferred shortly thereafter to account 4863.
Husband provided no further documentation to support his claim, nor is there any dispute in
this case that the lack of financial records was solely attributable to husband. Furthermore,
the fact that husband tendered to wife in discovery a tax return that failed to show over
$10,000 that husband had received in interest income from the account serves to bolster the
trial court’s conclusion that husband had no credibility. A copy of the actual tax return
received by wife from the IRS listed the $10,000 as interest income. The actual return
provides some indication that the funds belonged to husband and not to husband’s father, as
husband was the person who had apparently received the interest and was claiming the
interest for tax purposes. Husband also seems to ignore the fact that he held a joint interest in
the accounts where the money first appeared before it was transferred to account 4863 and
presents nothing that would negate his interest in those accounts. Based on all of the evidence
presented and the burden of proof in this case, it is clearly apparent that the trial court should
have found that the initial large deposits into account 4863 were marital property. The trial
court’s conclusion to the contrary, therefore, was against the manifest weight of the evidence.
See Gattone, 317 Ill. App. 3d at 351; Best, 223 Ill. 2d at 350. It follows, then, that the
remaining funds that were added to the account over time during the marriage and which
primarily consisted of husband’s paycheck and work bonuses remained marital property
when they were added to the account. The trial court erred in concluding to the contrary. See
id. We, therefore, reverse the trial court’s finding in that regard and conclude that all of the
$301,606.80 in account 4863 at its high point in March 2007 was marital property inasmuch
as the presumption of marital property was not rebutted by clear and convincing evidence.
¶ 33 C. Dissipation of Funds in Account 4863
¶ 34 As her third point of contention on appeal, wife argues that the trial court erred in failing
to find that husband had dissipated the funds in account 4863 by transferring a substantial
amount of those funds to his father’s account and eventually closing account 4863. Wife
asserts that the trial court’s error in that regard was based primarily upon two incorrect
determinations that the trial court made: (1) that the marriage was not undergoing a
breakdown at the time most of the funds were deposited and were later transferred back out;
and (2) that the funds were not marital property and belonged to husband’s father. Wife
contends that both of those determinations were contrary to the evidence presented, the trial
court’s comments in ruling upon objections during the trial, and the trial court’s finding that
husband was completely lacking in credibility.
¶ 35 Husband argues that the trial court’s implicit ruling on dissipation was proper and should
be affirmed. Husband asserts that the two underlying determinations cited by wife were
correctly made by the trial court and that they ultimately justified the trial court’s ruling on
this issue. As we have already concluded that all of the funds in account 4863 were marital
property (and that the trial court’s conclusion to the contrary was against the manifest weight
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of the evidence), we will address only the remaining determination–that the marriage was not
undergoing an irreconcilable breakdown at the time that account 4863 was depleted.
¶ 36 Dissipation occurs when one spouse uses a marital asset for his or her sole benefit and for
a purpose unrelated to the marriage at a time when the marriage is undergoing an
irreconcilable breakdown. In re Marriage of Tietz, 238 Ill. App. 3d 965, 983 (1992). The
issue of dissipation is generally a fact-intensive inquiry that calls upon the trial court to make
a credibility determination as to the explanation given by the spouse charged with dissipation
as to how the funds were used. See id. at 983-84. A trial court’s ruling on dissipation,
therefore, will not be reversed on appeal unless it is against the manifest weight of the
evidence. Vancura, 356 Ill. App. 3d at 205; Tietz, 238 Ill. App. 3d at 983-84.
¶ 37 Having thoroughly reviewed the evidence presented in the instant case, we find that the
trial court’s determination–that the marriage was not undergoing an irreconcilable breakdown
when the funds were transferred out of account 4863–was against the manifest weight of the
evidence. The evidence presented at trial established that by at least the start of 2007, wife
was very upset and depressed about the marriage because, among other things, husband was
very controlling and was physically abusive. As the year continued, wife grew more and
more angry and upset with husband as husband continued to delay in purchasing a plane
ticket for wife to attend her cousin’s wedding in London, an event that was very important to
wife to attend. The situation deteriorated to the point where wife eventually had to ask
husband’s parents to intervene, and husband’s father agreed to purchase the ticket if husband
did not do so. Most telling, however, is the fact that during a short period in March 2007,
while all of the other problems were occurring, husband withdrew or transferred the majority
of the funds out of account 4863, a marital account as we noted above, with no explainable
reason. Based on all of the credible evidence presented, it is apparent from the record that the
marriage was in fact undergoing an irreconcilable breakdown when the marital funds were
withdrawn from account 4863. Indeed, the trial judge seemed to reach that same conclusion
as the trial judge made various comments in ruling upon objections at the bench trial
indicating that the status of the parties’ relationship at that time was very clear to him, that he
did not need a lot of evidence on that issue, and that he did not know if husband’s attorney
was even going to try to rehabilitate husband.
¶ 38 The only evidence to the contrary presented at trial was husband’s testimony that there
was nothing wrong with the relationship during that time period, testimony which the trial
court found to be completely lacking in credibility and which, therefore, could not have
supported the trial court’s determination as to the absence of a breakdown in the relationship
at that time. Although wife testified that she did not make the decision to leave husband until
she was in London for the wedding and had spoken to members of her family, that fact, in
and of itself, is not dispositive of this issue because the law on dissipation requires only that
the marriage had begun to undergo an irreconcilable breakdown, not that the marriage had
reached its final breaking point. See In re Marriage of Holthaus, 387 Ill. App. 3d 367, 375
(2008). We believe that it was clearly obvious from the evidence presented in the instant
case, as the trial court seemed to indicate at times, that the parties’ marriage was undergoing
an irreconcilable breakdown at the time the funds were removed from account 4863. The trial
court’s ruling to the contrary was against the manifest weight of the evidence. See Gattone,
317 Ill. App. 3d at 351; Best, 223 Ill. 2d at 350.
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¶ 39 As set forth above, we have concluded that account 4863, and the funds therein, were
marital property. We have also concluded that the marriage was undergoing an irreconcilable
breakdown in March 2007 and thereafter when husband withdrew or transferred over
$300,000 out of the account. We find, therefore, that husband dissipated marital funds when
he depleted the account and that the trial court’s implicit ruling to the contrary was against
the manifest weight of the evidence. See Vancura, 356 Ill. App. 3d at 205; Tietz, 238 Ill.
App. 3d at 983-84. Husband provided no explanation for the use of the funds, other than he
was returning the money to his father, an explanation that we have rejected, as indicated
above, based upon the trial court’s determination that husband’s testimony had no credibility
and also based upon the lack of any other evidence.
¶ 40 We remand this case for the trial court to order husband to pay reimbursement to wife of
$150,803.40 (one-half of $301,606.80, the high point in account 4863 in March 2007) for the
marital funds that were dissipated from account 4863. Our direction in that regard is
consistent with the trial court’s manner of dividing the marital property evenly between the
parties in this case. The trial court should also consider whether any marital funds were
dissipated from March 2007 up until July 2009, when the judgment for dissolution of
marriage was entered.
¶ 41 D. Failure to Award Wife a Substantial Portion of the Funds in Account 4863
¶ 42 As her fourth point of contention on appeal, wife argues that the trial court abused its
discretion in failing to award her a substantial portion of the funds from account 4863. Wife’s
entire argument on that issue is premised upon the conclusion that the funds in account 4863
were marital property. As we have already found in favor of the wife in support of that
conclusion, we need not rule upon this issue further. This case is remanded for the trial court
to award wife 50% of the funds that were in account 4863 as of its high point in March 2007,
which is consistent with the manner in which the trial court divided the other marital property
in this case, and for the trial court to consider whether additional marital funds were
dissipated after that time and up until the point when the judgment for dissolution of
marriage was entered.
¶ 43 E. Failure to Award Husband’s Nonmarital Estate
Reimbursement for Premarital Contributions to His 401(k) Account
¶ 44 As the final issue, we must address the contention raised by husband in his
cross-appeal–that the trial court erred in finding that his entire 401(k) account was marital
property, including a portion that had been accumulated prior to the marriage. Husband
asserts, although somewhat implicitly, that his nonmarital estate should have been
reimbursed for the contributions that were made to the 401(k) account prior to the marriage,
which husband claims were clearly traceable to the rollover of his Mahle 401(k) account.
¶ 45 Wife disagrees with that assertion and contends that the Mahle rollover, which included
both nonmarital and marital funds, was placed into husband’s Caterpillar 401(k) account and
later commingled with the subsequent, entirely marital contributions to that account to the
extent that there was a loss of identity between the two contributing estates. Thus, according
to wife, any nonmarital funds in the account were transmuted to marital property, as the trial
court correctly found.
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¶ 46 As noted above, a trial court’s factual findings in a marriage dissolution proceeding–such
as whether property is marital or nonmarital or whether reimbursement is appropriate–will
not be reversed on appeal unless they are against the manifest weight of the evidence. See
Ford, 377 Ill. App. 3d at 185-86; Gattone, 317 Ill. App. 3d at 351. Section 503(c) of the Act
provides, under certain circumstances, for reimbursement to the nonmarital estate of a spouse
for contributions made to the marital estate. See 750 ILCS 5/503(c)(2) (West 2012). For
reimbursement to be required, the contribution must be traceable by clear and convincing
evidence and must not have been intended as a gift to the marital estate. 750 ILCS
5/503(c)(2) (West 2012). The burden of proof to establish that reimbursement is appropriate
is on the party seeking reimbursement. In re Marriage of Werries, 247 Ill. App. 3d 639, 644
(1993).
¶ 47 In the present case, the evidence established that husband’s Mahle 401(k) account, which
included both marital and nonmarital contributions, was rolled into husband’s Caterpillar
401(k) account and that numerous contributions of marital funds were made to that account
over the next several years up until the point that the judgment for dissolution was entered in
July 2009. The evidence presented by husband to establish the amount of nonmarital funds
added to the account consisted of his testimony and a previous statement showing the balance
in his Mahle 401(k) some months prior to the marriage and another statement showing the
total amount of the rollover, a few years after the marriage. Although the trial court found
that husband’s testimony was not credible, the documentary evidence established the exact
amount that husband had contributed to his 401(k) account shortly before the marriage. The
trial court, therefore, erred when it determined that the entire Caterpillar 401(k) was marital
property and that husband’s nonmarital estate was not entitled to reimbursement. We reverse
that portion of the trial court’s property-division order and remand for the trial court to order
a credit of $3,170.97 to husband’s nonmarital estate (the nonmarital portion of husband’s
401(k) account) by awarding husband a credit of $3,170.97 against what husband owes for
the dissipation of the marital funds in account 4863.
¶ 48 III. CONCLUSION
¶ 49 For the foregoing reasons, we reverse those parts of the trial court’s property-division
order noted above and affirm the remaining parts of the trial court’s property-division order.
We remand the case for the trial court to: (1) award wife reimbursement for 50% of the
marital funds that were held in account 4863 at its high point in March 2007 (50% of
$301,606.80), which were later dissipated by husband; (2) consider whether any other marital
funds were dissipated after that time and up until the time when the judgment for dissolution
was entered in July 2012; (3) award husband’s nonmarital estate $3,170.97 as a credit against
what husband owes for the dissipation of the marital funds in account 4863 as reimbursement
for funds contributed to husband’s 401(k) account prior to the marriage; and (4) take any
other further action as necessitated by, and consistent with, this opinion.
¶ 50 Affirmed in part and reversed in part; caused remanded with directions.
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