In re Marriage of Brill , 2017 IL App (2d) 160604 ( 2017 )

Digitally signed by
Reporter of Decisions
Reason: I attest to the
Illinois Official Reports accuracy and
integrity of this
document
Appellate Court Date: 2017.12.05
08:42:25 -06'00'
In re Marriage of Brill, 2017 IL App (2d) 160604
Appellate Court In re MARRIAGE OF AMY M. BRILL, Petitioner-Appellee, and
Caption RANDY L. BRILL, Respondent-Appellant.
District & No. Second District
Docket No. 2-16-0604
Filed July 13, 2017
Modified upon
denial of rehearing October 6, 2017
Decision Under Appeal from the Circuit Court of McHenry County, No. 15-DV-73;
Review the Hon. Christopher M. Harmon, Judge, presiding.
Judgment Affirmed as modified.
Counsel on Jennifer J. Gibson, of Zukowski, Rogers, Flood & McArdle, of Crystal
Appeal Lake, for appellant.
Cynthia J. Briscoe, of Briscoe Law Offices, of Crystal Lake, for
appellee.
Panel JUSTICE McLAREN delivered the judgment of the court, with
opinion.
Presiding Justice Hudson and Justice Jorgensen concurred in the
judgment and opinion.
OPINION
¶1 Respondent, Randy L. Brill, appeals from the McHenry County circuit court’s judgment
for dissolution of his marriage to petitioner, Amy M. Brill. Randy argues that the trial court
erred by (1) miscalculating Amy’s annual gross income for purposes of maintenance, (2)
incorrectly applying the statutory guidelines in calculating maintenance, (3) failing to impute
income to Amy for purposes of maintenance, (4) classifying as marital property Randy’s
interest in a house he bought with his girlfriend, and (5) valuing Randy’s interest in the house
he bought with his girlfriend and awarding Amy half that amount. For the following reasons,
we affirm as modified.
¶2 I. BACKGROUND
¶3 In July 1992, Amy and Randy were married in McHenry County. On January 30, 2015,
Amy filed a petition for dissolution of marriage. When Amy filed her petition, their son was 22
years old, and their daughter was 25 years old. On May 17 and 18, 2016, the trial court heard
testimony and received into evidence numerous exhibits. After the hearing, the trial court
distributed the parties’ marital and nonmarital property and awarded Amy maintenance in the
amount of $1840 a month for 96 months.
¶4 At the hearing, Amy testified as follows. She suffered from many health problems, having
been diagnosed with diabetes, hypertriglyceridemia, Barrett’s esophagus, hypertension,
hypercholesterolemia, and partial lipodystrophy. Amy had been diabetic for 20 years and used
an insulin pump. Her diabetes caused additional medical problems, including neuropathy, high
blood pressure, diabetic retinopathy, and portal vein hypertension. In 2014 Amy was
hospitalized twice, for pancreatitis and hypertriglyceridemia, for 9 or 10 days in May and for
two weeks in December. During the December hospitalization, she was in the intensive care
unit. Due to her illnesses, Amy was prescribed and took five medications daily.
¶5 Amy testified that she earned $23,000 a year at her current job at Mercy Health Systems.
She worked between 32 and 37 hours a week and occasionally worked overtime. Amy could
not work more hours and take care of her health. Amy’s biweekly paystubs dated March 31,
April 14, and April 28, 2016, were admitted into evidence, showing gross wages of
approximately $1041, $1260, and $1033, respectively. Amy’s paystubs also showed that she
was paid an hourly rate of $13.61. Amy’s April 28, 2016, paystub showed year-to-date gross
wages of $9006.
¶6 Amy began working at Mercy Health Systems in July 2015. Before that, she worked at the
Family Practice Center, in billing. Amy worked at the Family Practice Center from July 2014
until the day after Christmas 2014, at an annual salary of $40,000. Amy was “terminated” two
weeks after her hospitalization in December 2014 because she “couldn’t learn the computer
system like they expected” her to and, while she was in the hospital, “they outsourced her job.”
So, when Amy returned to work, her job was “no longer a full-time position.”
¶7 Before working at the Family Practice Center, Amy worked at Spinal Sports Rehab for 8 to
10 years, until she was terminated in June 2014, two weeks after she was hospitalized. Amy
did the billing, and when she was hospitalized, “the billing just basically stopped,” so her
employer “outsourced” the billing and terminated Amy.
-2-
¶8 Amy was content to stay at her current job because “they provide good health insurance,
which I’ve never had on my own before.” The other practices Amy worked for did not offer
health insurance benefits. Amy was currently covered by Randy’s health insurance. If she
continued to work at Mercy, she could obtain health insurance as an employee. Amy paid for
disability insurance through Mercy.
¶9 Amy received $1000 a month in temporary maintenance from Randy. For approximately
the past two years, beginning about mid- to late 2014, she was “short” in paying her bills by
about $1000. Her medications cost about $300 a month. Amy’s hospital bills were
“astronomical,” and although she made small payments on them, most of them were in
collection. Because she needed a special diet due to her illnesses, her grocery bill was about
$800 a month. Amy’s parents helped pay her bills, including for rent, medications, a new
insulin pump, travel to Iowa to attend the parties’ son’s graduation, work uniforms, moving
expenses, and groceries. Amy’s parents did not support Amy while she and Randy were
“together.” Amy did not think that she could get a job making more money because she did not
know the new billing and medical-coding systems and she could not work more hours while
taking care of her health. At her current job at Mercy, Amy was a receptionist.
¶ 10 During cross-examination, Amy testified that she owed her parents “a lot of money.” The
“debts” section of her financial affidavit, however, did not list any money owed to her parents.
Amy’s parents “possibly” had provided her with $30,000, or about $1875 a month, in the past
16 months.
¶ 11 Steven Crowley, Amy’s father, testified as follows. In the past 18 months, Crowley had
provided Amy with approximately $34,536, of which $32,387 was loans and $2149 was gifts.
Amy did not sign promissory notes for the loans, but Crowley believed that she would pay him
back “if and when she could.” Crowley also agreed that, if Amy could not pay him back, “she
just won’t.” Although Crowley had no plans at “this minute” to say no to Amy if she needed
financial assistance, he probably would not continue to give Amy money in the future because
he was going to retire at the end of the year.
¶ 12 Randy testified as follows. Randy had worked as an estimator and project manager for the
same company for the past 20 years and currently earned $91,000 a year. Randy and his
girlfriend, Stephanie Bailey, closed on a house located in Island Lake (the Island Lake house)
in April 2015. The down payment for the house came from Stephanie’s 401(k) account. Randy
did not contribute any money to the down payment. The outstanding mortgage on the house
was approximately $320,000. Randy opined that the current value of the house was
approximately $300,000, based on a listing of an “exact same house” in the same subdivision
that he believed was listed for under $320,000 and had been on the market for “quite a while.”
¶ 13 During cross-examination, Randy testified that on his financial affidavit he valued the
Island Lake house at $350,000.
¶ 14 During redirect examination, Randy testified that he and Stephanie had “an arrangement”
that when the Island Lake house was sold Stephanie would receive her 401(k) money back. If
there were proceeds left over, she and Randy would split them “50/50.”
¶ 15 Stephanie testified as follows. Stephanie and Randy lived together in the Island Lake
house, which they owned together. An agreement for the purchase of the Island Lake house
was admitted into evidence. The agreement was signed by Stephanie and Randy in August
2014 and showed $17,860 in deposits and down payments on the house. Stephanie testified
that the $17,860 came from her 401(k) account; Randy provided none of it. A “HUD
-3-
Settlement Statement” was admitted into evidence. The statement indicated that Stephanie and
Randy closed on the house in April 2015, and it showed deposits and down payments totaling
$17,860. Stephanie and Randy shared a joint checking account. They deposited their
paychecks into that account and paid the household bills from it. Randy paid half of the
mortgage payments on the Island Lake house.
¶ 16 During cross-examination, Stephanie testified that she deposited the funds from her 401(k)
account into her and Randy’s joint checking account. The Island Lake house was a
single-family ranch house and cost $355,000. In August 2014, before Stephanie had received
the money from her 401(k) account, Stephanie and Randy paid the first earnest-money deposit
of $2000 from their joint checking account. In September 2014, Stephanie and Randy paid the
$16,860 balance of the earnest money out of their joint checking account.
¶ 17 During Stephanie’s redirect examination, statements and cancelled checks from Stephanie
and Randy’s joint checking account and checks issued to Stephanie from her 401(k) account
fund manager, Charles Schwab (Schwab), were admitted into evidence. A Schwab check stub
dated August 27, 2014, indicated that a check was issued to Stephanie in the amount of
$18,000. The bank statements showed that on September 3, 2014, $18,000 was deposited into
Stephanie’s and Randy’s joint checking account. A check in the amount of $16,860, dated
September 6, 2014, was made payable to the builder of the Island Lake house. Stephanie
testified that this check was for the second earnest-money payment. The bank statements also
showed that on March 24, 2015, $25,000 was deposited into the joint account. Stephanie
testified that the source of the money was her 401(k) account. The bank statements also
showed two separate withdrawals on April 23, 2015, for $3000 and $14,000. Stephanie
testified that “they” needed the $3000 because “they” were originally told to bring $14,000 to
the closing and then “they” were told to bring $17,000.
¶ 18 On July 7, 2016, the trial court issued a “Memorandum Decision and Order” containing a
summation of the evidence, the court’s findings of fact, and its rulings regarding, inter alia, the
classification and distribution of assets and the duration and amount of maintenance awarded
to Amy.
¶ 19 Regarding the Island Lake house, the trial court found that Randy’s undivided one-half
interest in that property was marital property. The trial court stated that the evidence
established:
“[A]lthough all the deposits utilized for the purchase of the home came from Randy
and Stephanie’s joint bank account, the source of all the funds originated from
Stephanie. *** That said, the testimony presented and exhibits received into evidence
also established that Randy’s paychecks are deposited into his and Stephanie’s joint
bank account, Randy pays his one-half (1/2) share of the mortgage from their joint bank
account ***. Additionally[,] there was no clear and convincing evidence *** which
would establish that the funds provided by Stephanie for the purchase of the home were
intended to be a gift to Randy.”
¶ 20 Therefore, the trial court found that Randy failed to rebut the presumption that the Island
Lake house—acquired during the course of the marriage—was marital property. The trial court
found that the value of Randy’s 50% undivided interest in the Island Lake house was $13,500,
based on the purchase price of $355,000 minus the outstanding mortgage of $328,000, which
totals $27,000, 50% of which equals $13,500. The trial court awarded Amy $6750,
representing 50% of Randy’s interest in the Island Lake house.
-4-
¶ 21 Regarding maintenance, the trial court considered the factors provided in section 504(a) of
the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/504(a) (West 2016)).
The trial court found that Amy earned an approximate gross annual income of $26,135 while
Randy earned $91,000. The trial court stated:
“Based upon the formula set forth in Section 504(b-1), the statutory amount of
maintenance awarded to Amy per month is $1,840.00 for a duration of 270 months.
The Court heard no credible evidence, nor received any exhibits into evidence, which
would compel the Court to deviate from the statutory formula it is required to utilize in
making the determination for the monthly amount of maintenance.
Regarding the 270-month duration of maintenance pursuant to the formula set forth
in Section 504(b-1)(1)(B), the Court finds it appropriate to deviate from the statutory
guidelines based upon the testimony presented and exhibits entered into evidence
including, but not limited to, the relative young age of the parties; the allocation of the
marital property and assignment of the marital debt; Amy’s marginal
underemployment and her proven ability to earn an approximate gross annual income
of $39,600.00, the financial assistance which Amy received(s) from her parents; as
well as the other statutory factors set forth in Section 504 of the [Act].
Based upon the foregoing, the Court awards to Amy reviewable maintenance at the
properly calculated monthly amount pursuant to Section 504(b-1) of $1,840.00 for a
duration of ninety-six (96) months from Randy ***.”
¶ 22 On July 26, 2016, the trial court entered the judgment dissolving the parties’ marriage.
Randy filed a notice of appeal on July 29, 2016.
¶ 23 II. ANALYSIS
¶ 24 A. Maintenance
¶ 25 Randy argues that the trial court’s maintenance award of $1840 per month was an abuse of
discretion and that its findings were against the manifest weight of the evidence. Specifically,
Randy contends that the trial court erred (1) by finding that Amy’s gross yearly income was
approximately $26,135, (2) by incorrectly applying the guidelines in section 504(b-1)(1)(A) of
the Act (750 ILCS 5/504(b-1)(1)(A) (West 2016)) in calculating maintenance, and (3) by
failing to impute income to Amy because she has failed to take advantage of employment
opportunities.
¶ 26 Generally, a trial court’s award of maintenance is presumed to be correct. In re Marriage of
Nord, 402 Ill. App. 3d 288, 292 (2010). The amount of a maintenance award lies within the
sound discretion of the trial court, and this court must not reverse that decision unless it is an
abuse of discretion. In re Marriage of Schneider, 214 Ill. 2d 152, 173 (2005). A court abuses its
discretion where its findings are arbitrary or fanciful (Blum v. Koster, 235 Ill. 2d 21, 36 (2009))
or where no reasonable person would agree with its position (Schneider, 214 Ill. 2d at 173).
¶ 27 Section 504(a) of the Act provides that, in a proceeding for dissolution of marriage, a trial
court “may grant a maintenance award for either spouse in amounts and for periods of time as
the court deems just.” 750 ILCS 5/504(a) (West 2016). Section 504(a) lists several factors that
a trial court must consider, where relevant, when determining a maintenance award: (1) the
income and property of each party, including the marital property apportioned and the
nonmarital property assigned to the party seeking maintenance; (2) the needs of each party; (3)
-5-
the present and future earning capacity of each party; (4) any impairment of the realistic
present and future earning capacity of the party seeking maintenance due to that party’s
devoting time to domestic duties or having forgone or delayed education or training,
employment, or career opportunities due to the marriage; (5) any impairment of the realistic
present or future earning capacity of the party against whom maintenance is sought; (6) the
time necessary to enable the party seeking maintenance to acquire appropriate education,
training, and employment, and whether that party is able to support himself or herself through
appropriate employment; (7) the standard of living established during the marriage; (8) the
duration of the marriage; (9) the age, health, occupation, amount and sources of income,
employability, and liabilities of each party; (10) all sources of public and private income
including, without limitation, disability and retirement income; (11) the tax consequences of
the property division; (12) the contributions and services by the party seeking maintenance to
the education, training, or career potential of the other party; (13) any valid agreement between
the parties; and (14) any other factor that the trial court finds just and equitable. Id.
¶ 28 Trial courts have wide latitude in considering which factors should be used in determining
reasonable needs, and the court is not limited to the factors listed in the statute. In re Marriage
of Brankin, 2012 IL App (2d) 110203, ¶ 10. No single factor is determinative of the propriety
of a maintenance award once it has been determined that an award is appropriate. Id.
¶ 29 Randy contends that the trial court’s finding that Amy’s gross yearly income was
approximately $26,135 was against the manifest weight of the evidence because (1) the trial
court miscalculated Amy’s wages, using her three most recent paystubs, and (2) the trial court
failed to include approximately $15,349 a year that Amy received from her parents.
¶ 30 When, as here, a party challenges a trial court’s factual findings regarding maintenance, we
will not reverse those findings unless they were against the manifest weight of the evidence.
See Nord, 402 Ill. App. 3d at 294. Findings are “against the manifest weight of the evidence
where the opposite conclusion is clearly evident or where the court’s findings are
unreasonable, arbitrary, and not based on any of the evidence.” (Internal quotation marks
omitted.) Id.
¶ 31 Randy argues that the trial court’s finding that Amy’s gross annual income was
approximately $26,135 has no basis in the evidence. Randy contends that the three paystubs
Amy submitted to the court showed an average of $1111.40 per two-week pay period, which,
multiplied by 26 pay periods, would constitute a gross annual income of $28,896.40. Randy
argues in the alternative that, if Amy’s gross pay as shown on her April 28, 2016, pay stub
represents her pay through one-third of the year, multiplying by three would show a gross
annual income of $27,018.
¶ 32 Although Randy’s alternative calculations of Amy’s gross annual income might be
reasonable, that does not mean that the trial court’s finding was against the manifest weight of
the evidence. The trial court’s finding that Amy’s gross annual income was approximately
$26,135 was supported by the evidence. Amy testified that she earned $23,000 a year at her
current job at Mercy Health Systems. Amy’s paystubs indicated that her hourly rate was
$13.61. Amy also testified that she was scheduled to work between 32 and 37 hours a week and
that, although she occasionally worked overtime, she could not work more hours and take care
of her health. If Amy worked 37 hours a week for 50 weeks, her gross annual income would be
$25,178.50. Thus, the trial court’s finding that Amy’s gross annual income was $26,135 was
not against the manifest weight of the evidence.
-6-
¶ 33 Next, Randy argues that, when calculating Amy’s gross annual income, the trial court
should have included the approximately $15,349 a year Amy received from her parents. Randy
argues that the money Amy received from her parents must be considered income for purposes
of maintenance because the money was a gift.
¶ 34 The record indicates that the trial court considered Amy’s parents’ financial assistance in
accordance with the Act. Section 504(b-1)(1) provides:
“(b-1) Amount and duration of maintenance. If the court determines that a
maintenance award is appropriate, the court shall order maintenance in accordance
with either paragraph (1) or (2) of this subsection (b-1):
(1) Maintenance award in accordance with guidelines. In situations when the
combined gross income of the parties is less than $250,000 and the payor has no
obligation to pay child support or maintenance or both from a prior relationship,
maintenance payable after the date the parties’ marriage is dissolved shall be in
accordance with subparagraphs (A) and (B) of this paragraph (1), unless the court
makes a finding that the application of the guidelines would be inappropriate.
(A) The amount of maintenance under this paragraph (1) shall be calculated
by taking 30% of the payor’s gross income minus 20% of the payee’s gross
income. The amount calculated as maintenance, however, when added to the
gross income of the payee, may not result in the payee receiving an amount that
is in excess of 40% of the combined gross income of the parties.
(B) The duration of an award under this paragraph (1) shall be calculated by
multiplying the length of the marriage at the time the action was commenced by
whichever of the following factors applies: 5 years or less (.20); more than 5
years but less than 10 years (.40); 10 years or more but less than 15 years (.60);
or 15 years or more but less than 20 years (.80). For a marriage of 20 or more
years, the court, in its discretion, shall order either permanent maintenance or
maintenance for a period equal to the length of the marriage.” (Emphasis
added.) 750 ILCS 5/504(b-1)(1) (West 2016).
¶ 35 Here, the guidelines set forth in section 504(b-1)(1)(B) indicate that Amy should have
received maintenance for 270 months. However, the trial court deviated downward from the
guidelines, granting Amy maintenance for 96 months. The trial court based its deviation, in
part, on “the financial assistance which Amy received(s) from her parents.” Thus, the trial
court considered Amy’s parents’ financial assistance by limiting the duration of maintenance,
in accordance with section 504(b-1)(1) of the Act.
¶ 36 Randy cites In re Marriage of Rogers, 213 Ill. 2d 129 (2004), to support his argument. In
Rogers, the supreme court ruled that monetary gifts are to be considered income for purposes
of child support and that all of the funds in question constituted gifts. Id. at 137. In Rogers, the
father testified that “the gifts and loans from his family ‘represent a steady source of
dependable annual income *** he has received each year over the course of his adult life.’ ” Id.
at 134.
¶ 37 Unlike in Rogers, here, there was no evidence that Amy’s parents had provided her with
financial assistance every year of her entire adult life. Rather, the evidence showed that Amy’s
parents began to provide her with money when the parties separated. Further, there was
-7-
evidence that the financial assistance might not continue in the future. Thus, this case is
factually distinguishable from Rogers.
¶ 38 Further, the Rogers court explained:
“[W]e hasten to add that the nonrecurring nature of an income stream is not irrelevant.
Recurring or not, the income must be included by the circuit court in the first instance
when it computes a parent’s ‘net income’ and applies the statutory guidelines for
determining the minimum amount of support due under section 505(a)(1) of the Act. If,
however, the evidence shows that a parent is unlikely to continue receiving certain
payments in the future, the circuit court may consider that fact when determining,
under section 505(a)(2) of the Act (750 ILCS 5/505(a)(2) (West 2002)), whether, and
to what extent, deviation from the statutory support guidelines is warranted.” Id. at 139.
¶ 39 We note that, in Rogers, child support was at issue pursuant to section 505(a) of the Act,
whereas here, maintenance was at issue pursuant to section 504(b-1)(1). These are different
statutory schemes. Regarding child support, a deviation is permitted only in the second step,
pursuant to section 505(a)(2). Regarding maintenance, a deviation is permitted as to both the
amount and the duration, where “the court makes a finding that the application of the
guidelines would be inappropriate,” pursuant to section 504(b-1)(1) (750 ILCS 5/504(b-1)(1)
(West 2016)). In this regard, Rogers is inapplicable to this case.
¶ 40 Randy also argues that the trial court erred in calculating statutory maintenance pursuant to
section 504(b-1)(1)(A) of the Act. In construing a statute, our primary goal is to ascertain and
give effect to the intent of the legislature. MidAmerica Bank, FSB v. Charter One Bank, FSB,
232 Ill. 2d 560, 565 (2009). The best evidence of the legislature’s intent is the language in the
statute, given its plain and ordinary meaning. In re Marriage of Turk, 2014 IL 116730, ¶ 15.
Statutory construction is a question of law, which we review de novo. See id. ¶ 14.
¶ 41 Here, there is no dispute that the parties’ combined gross income was less than $250,000.
The trial court found that Randy’s and Amy’s annual gross incomes were $91,000 and $26,135
respectively, for a combined gross income of $117,135. Further, Randy had no obligation to
pay child support or maintenance from a prior relationship. Therefore, absent a finding that the
application of the guidelines would be inappropriate, the trial court’s maintenance award, in
amount and duration, was required “to be in accordance with subparagraphs (A) and (B)” of
section 504(b-1)(1). 750 ILCS 5/504(b-1)(1) (West 2016).
¶ 42 Regarding the amount of maintenance, Randy contends that the trial court erred by failing
to apply the 40% cap provided in the second sentence of section 504(b-1)(1)(A). Amy counters
that the trial court did not err if her gross annual income was $23,200.
¶ 43 Initially, we note that the trial court expressly found that Amy’s gross annual income was
$26,135. Further, the trial court awarded Amy maintenance in the amount of $1840 per month
for 96 months, stating that it had “properly calculated [the] monthly amount pursuant to
Section 504(b-1).”
¶ 44 It appears from the record that the trial court calculated the amount of maintenance by
applying the formula provided in only the first sentence of section 504(b-1)(1)(A), which
provides, “The amount of maintenance *** shall be calculated by taking 30% of the payor’s
gross income minus 20% of the payee’s gross income.” 750 ILCS 5/504(b-1)(1)(A) (West
2016). The trial court found that Randy’s gross income was $91,000 (30% = $27,300) and that
-8-
Amy’s gross income was $26,135 (20% = $5227). Subtracting $5227 from $27,300 equals
$22,073 (or approximately $1840 a month).
¶ 45 The record thus supports Randy’s contention that the trial court failed to apply the second
sentence of section 504(b-1)(1)(A), which caps maintenance in the following manner:
“The amount calculated as maintenance, however, when added to the gross income of
the payee, may not result in the payee receiving an amount that is in excess of 40% of
the combined gross income of the parties.” Id.
¶ 46 Here, the trial court’s award exceeds the 40% cap. According to the record and the trial
court’s findings, 40% of the parties’ combined gross annual income is $46,854. However, the
trial court awarded Amy $1840 per month or $22,080 annually, and her maintenance added to
her gross annual income equals $48,215.
¶ 47 To be clear, section 504(b-1)(1) does not mandate strict compliance with these formulas in
every case. Rather, the statute provides that the guidelines must be followed “unless the court
makes a finding that the application of the guidelines would be inappropriate.” 750 ILCS
5/504(b-1)(1) (West 2016). Here, as to the duration of maintenance, the trial court deviated
downward from the guideline set forth in section 504(b-1)(1)(B), from 270 to 96 months. In
doing so, the trial court properly made findings in support of this deviation.
¶ 48 Regarding the amount of maintenance, however, the trial court found no evidence to
support a deviation from the guideline set forth in section 504(b-1). The trial court applied the
formula provided in the first sentence of section 504(b-1)(1)(A) but failed to apply the 40% cap
required by the second sentence. Accordingly, pursuant to our authority under Illinois
Supreme Court Rule 366(a)(5) (eff. Feb. 1, 1994), we reduce the trial court’s award of
maintenance to $1727 per month.
¶ 49 Next, Randy argues that the trial court erred in calculating maintenance by failing to
impute income to Amy due to her underemployment. The trial court’s downward deviation
from the statutory guideline of 270 months to 96 months was due in part to “Amy’s marginal
under-employment and her proven ability to earn an approximate gross annual income of
$39,600.” Thus, the trial court considered Amy’s underemployment and greatly limited the
duration of Randy’s maintenance obligation. Accordingly, the trial court did not abuse its
discretion regarding this issue.
¶ 50 B. Distribution of Marital Property
¶ 51 Randy argues that the trial court erred by classifying as marital property Randy’s interest in
the Island Lake house. Randy contends that his interest in the house was a gift and therefore
nonmarital because it was purchased with funds from Stephanie’s 401(k) account.
¶ 52 It is undisputed that Randy acquired his interest in the Island Lake house during the parties’
marriage. Accordingly, the interest is presumptively marital. 750 ILCS 5/503(b) (West 2016)
(property acquired by either spouse during the marriage is presumed to be marital property
regardless of how title is actually held); see also In re Marriage of Dann, 2012 IL App (2d)
100343, ¶ 74. This presumption includes property held solely in one party’s name. 750 ILCS
5/503(b) (West 2016); see also In re Marriage of Foster, 2014 IL App (1st) 123078, ¶ 69. To
overcome the presumption that his interest in the house was marital Randy had to produce clear
and convincing evidence that he acquired his interest by one of the means specified in section
503(a) of the Act. Foster, 2014 IL App (1st) 123078, ¶ 74. At trial, Randy relied on section
-9-
503(a)(1) of the Act, which provides that nonmarital property includes “property acquired by
gift.” 750 ILCS 5/503(a)(1) (West 2016). But the trial court found that Randy’s interest in the
house was not a gift and therefore was marital property. We will not disturb the trial court’s
classification of property unless the decision was against the manifest weight of the evidence.
In re Marriage of Romano, 2012 IL App (2d) 091339, ¶ 44.
¶ 53 Randy urges us to review de novo the trial court’s classification of the Island Lake house as
marital property. Randy cites In re Marriage of Joynt, 375 Ill. App. 3d 817 (2007), to support
his argument. In Joynt, the facts were undisputed. Id. at 819. But in this case the parties dispute
whether Randy’s interest in the Island Lake house was a gift from Stephanie. Thus, Joynt is
distinguishable from this case.
¶ 54 A “gift” is defined as a “ ‘voluntary, gratuitous transfer of property by one to another,’ ”
and it is “ ‘essential to a gift that it should be without consideration.’ ” Provena Covenant
Medical Center v. Department of Revenue, 236 Ill. 2d 368, 401 (2010) (quoting Martin v.
Martin, 202 Ill. 382, 388 (1903)); see also In re Marriage of Agazim, 147 Ill. App. 3d 646,
648-49 (1986) (defining a “gift” as “a voluntary, gratuitous transfer of property by one to
another where the donor evidences an intent to make such a gift and absolutely and irrevocably
delivers the property to the donee”); Black’s Law Dictionary 619 (5th ed. 1979) (“[a gift] is a
voluntary transfer of property to another made gratuitously and without consideration”).
¶ 55 The facts support the trial court’s finding that the money provided by Stephanie for the
purchase of the house was not intended to be a gift to Randy. “A gift to a donee is not shown
unless the donor has relinquished all present and future dominion and power over the subject
matter of the gift.” (Emphasis added.) Hall v. Country Casualty Insurance Co., 204 Ill. App. 3d
765, 778 (1990). Randy testified that he and Stephanie had “an arrangement” that when the
house was sold Stephanie would receive her 401(k) money back and, if any proceeds
remained, she and Randy would split them. Because Stephanie did not absolutely and
irrevocably relinquish future dominion of the 401(k) money used to purchase the house, the
money was not a gift to Randy. Further, neither Stephanie nor Randy testified that the money
was a gift to Randy. Accordingly, the trial court’s finding that Randy’s interest in the Island
Lake house was marital was not against the manifest weight of the evidence.
¶ 56 Next, Randy argues that the trial court erred by valuing his interest in the Island Lake house
at $13,500. Generally, the valuation of a marital asset is an issue of fact, and the trial court’s
ruling will not be disturbed unless it was against the manifest weight of the evidence. See In re
Marriage of Hubbs, 363 Ill. App. 3d 696, 699-700 (2006). Decisions concerning the
distribution of marital property lie within the sound discretion of the trial court and will not be
disturbed absent an abuse of that discretion. Joynt, 375 Ill. App. 3d at 822. The Act does not
require the trial court to distribute property with mathematical equality; rather, “[t]he
touchstone of proper apportionment is whether it is equitable in nature.” In re Marriage of
Drury, 317 Ill. App. 3d 201, 211 (2000).
¶ 57 Here, the trial court found that the equity in the house was $27,000: the difference between
what Randy and Stephanie paid for the house, $355,000, and the principal balance on their
mortgage, $328,000. The trial court then found that half of the equity, $13,500, was marital
property and awarded Amy half of that, $6750.
¶ 58 Randy contends that the trial court abused its discretion by awarding Amy any part of the
equity in the Island Lake house because all of the equity in the house belongs solely to
Stephanie, as she contributed all of the down payment from her 401(k) account and Randy and
- 10 -
Stephanie agreed that Stephanie would get her 401(k) money back before Randy would be
entitled to any money from the home.
¶ 59 We disagree with Randy. Randy presumes that the house would be sold and that his
purported agreement with Stephanie would be enforceable. There is a dearth of evidence
supporting the agreement. We recognize that Randy testified that he and Stephanie had the
agreement. But Randy did not testify as to how, when, or where this purported agreement was
entered into or when or whether he and Stephanie agreed to sell the house. Further, the record
contains no testimony from Stephanie regarding the agreement, no written agreement, and no
evidence of a lien against the property. The record contains evidence that the fair market value
of the house was $355,000 and that the balance on the mortgage was $328,000. Therefore, we
cannot say that the trial court erred in finding that the value of Randy’s interest in the house
was half of the equity in the house, or $13,500, and awarding half of that to Amy.
¶ 60 Randy also argues that the trial court abused its discretion by awarding Amy any part of the
equity when Amy contributed nothing to the house. Randy correctly notes that one of the
factors a trial court is to consider when distributing marital property is each party’s
contribution to the acquisition or increase in value of the marital property. See 750 ILCS
5/503(d)(1) (West 2016).
¶ 61 Initially, we note that Stephanie is not a party here. Thus, the trial court was not required to
consider her contribution to the acquisition of the Island Lake house. Further, a party’s
“financial contribution to the acquisition of marital assets is only one of several factors to be
considered by the trial court in determining the equitable distribution of marital assets.” In re
Marriage of Lee, 246 Ill. App. 3d 628, 638 (1993) (rejecting the husband’s claim that the trial
court’s awarding the wife a greater percentage of the marital assets was an abuse of discretion
simply because he made a greater financial contribution to the acquisition of the assets). A
party’s greater financial contribution might support a disproportionate property award in favor
of the contributing spouse. See, e.g., In re Marriage of Jones, 187 Ill. App. 3d 206 (1989); In re
Marriage of Guntren, 141 Ill. App. 3d 1 (1986). But “a spouse’s greater financial contributions
do not necessarily entitle him or her to a greater share of the marital assets.” In re Marriage of
Scoville, 233 Ill. App. 3d 746, 758 (1992). When dividing marital property, a trial court must
consider all relevant factors listed in section 503(d) of the Act, including “the duration of the
marriage” and each party’s age, health, occupation, amount and sources of income, and needs.
750 ILCS 5/503(d)(4), (8) (West 2016).
¶ 62 Considering the 22½-year duration of the marriage and Amy’s significant health issues, we
cannot say that the trial court abused its discretion by awarding Amy $6750, representing half
of Randy’s interest in, or the marital portion of, the Island Lake house.
¶ 63 III. CONCLUSION
¶ 64 We affirm the trial court’s judgment, but pursuant to our authority under Rule 366(a)(5),
we modify the judgment to reflect an award of maintenance in the amount of $1727 a month.
¶ 65 Affirmed as modified.
- 11 -