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In Re Marriage of Cook

OPINION FILED SEPTEMBER 6, 1983.

IN RE MARRIAGE OF JOANNE M. COOK, PETITIONER-APPELLEE, AND JOHN L. COOK, RESPONDENT-APPELLANT.


Appeal from the Circuit Court of Cook County; the Hon. John Reynolds, Judge, presiding.

JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:

Respondent, John L. Cook (John), appeals the property distribution portion of a judgment dissolving his marriage to petitioner, Joanne M. Cook (Joanne). On appeal, John contends that the trial court erred in finding that Joanne's interest in certain property was non-marital; in evaluating the property owned by the parties; in finding that the temporary maintenance order entered by the court "without prejudice" was proper and that Joanne should receive temporary maintenance; in finding that John had dissipated marital assets; in awarding to Joanne the majority of marital assets in lieu of permanent maintenance; and in directing John to contribute $30,000 to Joanne's attorney fees. For the reasons hereinafter stated, we affirm the judgment of the trial court.

John and Joanne were married on June 13, 1953. The marriage produced two sons, both now emancipated. On May 11, 1978, Joanne filed a petition for dissolution and for partition of the marital home. On May 25, 1978, John filed an answer to Joanne's petition, and on December 6, 1978, he filed a counterpetition for dissolution.

Both of the parties hereto filed numerous pretrial motions and petitions for rules to show cause, including a myriad of unsuccessful requests by Joanne for the production of documents seeking to establish John's financial status. On October 2, 1979, Joanne filed a petition for temporary maintenance and for "suit money." A temporary maintenance order was entered on December 14, 1979, directing John to pay to Joanne $500 semi-monthly "without prejudice pending a final determination relative to any award of temporary maintenance." John did not voluntarily comply with this or subsequently repeated maintenance orders, including some agreed to by both parties. The trial court noted that some 17 rules to show cause were requested by Joanne's attorneys in an attempt to compel John's compliance with temporary maintenance orders and on one occasion a body attachment order was entered.

On October 23, 1980, Joanne "confessed" to the grounds for dissolution alleged in John's amended counter-petition. The parties agreed to a bifurcated hearing (Ill. Rev. Stat. 1979, ch. 40, par. 401, as amended), and on November 17, 1980, the trial court entered an order dissolving their 27-year marriage. A property distribution hearing began in June 1981 but was continued until January 11, 1982, following a mistrial ordered after the judge originally assigned to this case was transferred.

The testimony established that Joanne, aged 49 and in apparent good health, held an undergraduate degree in recreation. She was a homemaker until 1969 when she was employed as the bookkeeper and later the general manager of Just-Rite Coffee Service Company, owned in part by Dr. Elmer J. Justema. In 1972, Joanne entered into a real estate investment partnership with Doctor Justema, designated "J & J # 1" (the partnership).

John, aged 53, also in apparent good health, held a degree in chemical engineering and had been engaged in the plastics business since 1958. He testified that he was employed as a manufacturer's representative for J.L. Cook Plastics and J.L. Cook Company (operated as one entity) of which he was sole owner. He also owned or had interests in several other businesses, including American Coil (of which he was sole proprietor); Metric Tool & Die Company (a screw machine company in which he owned a 50% interest); Cotronics, Inc. (a molding company in Logansport, Indiana); Tanfastic (a suntanning facility); and Alprod, Inc. and Porta-Chef Kane (the record does not establish the nature of these businesses).

Affidavits submitted by the parties indicate that at the time of trial John's monthly personal expenses totaled $2,738.53 and Joanne's monthly personal expenses were approximately $2,280. A credit application signed by Joanne in October 1978 and admitted into evidence indicates that while she was employed by Just-Rite Coffee Service, her monthly income was approximately $2,900 (including the $1,000 per month temporary maintenance to be paid by John). Joanne stated that she had not been employed since August 1979.

At the conclusion of 10 days of hearings, and following an exhaustive review of approximately 109 exhibits and a record in excess of 3000 pages, a task which the trial court labels "a long and laborious process," the trial court found that John's income from his various businesses was "unclear." *fn1 The court noted that John "has not filed any federal individual income tax returns since 1978. He has no personal checking account. He keeps no formal business records in regard to J.L. Cook Company and J.L. Cook Plastics. He personally keeps no check book, no ledger, and no journal * * *."

The court found that prior to October 1980 John maintained two business-checking accounts, one used for payroll and the other for the operation of J.L. Cook Plastics. Since October 1980, John has operated J.L. Plastics on a "cash basis." Bank deposit records of J.L. Cook Plastics produced by John indicate that total deposits of $261,379 were made in 1978 to the J.L. Cook Plastics account, whereas the 1978 Federal individual tax return prepared by John indicates that he earned only $29,000. Bank statements for 1979 reflect total deposits of $331,556 and for the first 10 months of 1980 total deposits of $270,588.

John failed to submit evidence to reconcile apparent discrepancies between reported income and bank deposit records. The limited financial data proffered by John consisted principally of a financial statement prepared by a certified public accountant, Thomas Lane (Lane), who had been hired by John's attorney in July 1980 to prepare "payroll sheets and financial statements" for use in the trial. Lane did no accounting for John's businesses prior to this time. The court noted that "Mr. Lane never took a physical inventory of the plant. He relied on [John's] representations in preparing the balance sheet and financial statements." Lane testified that he reviewed bank statements and cancelled checks for the business checking account prior to October 1980 and customer invoices and handwritten summaries prepared by John.

In making its findings and in rendering its decision the trial court noted that it had "taken into consideration all of the guidelines and factors delineated in the Illinois Marriage and Dissolution of Marriage Act, including the various subsections thereto, and arguments of counsel, cases cited therein * * *." Thereafter, the trial court found that marital assets, with a combined value in excess of $600,000, included the marital home at 801 Cleveland, Hinsdale, Illinois; a vacant lot in Vilas County, Wisconsin; an industrial building and real estate in Sandwich, Illinois, owned by J.L. Cook Plastics; certain furniture and furnishings in the marital home; two Cadillac automobiles; and John's various business interests.

The trial court found that Joanne owned non-marital property including her interest in J & J # 1 Partnership; her interest in certain household furniture and furnishings; jewelry; and approximately $50,000 in stock purchased by her with the inheritance received from her father's estate and held in her name alone. The trial court assigned this non-marital property to Joanne and in addition awarded to her, in lieu of maintenance, the marital home, the furniture and furnishings in the marital home not assigned to her as non-marital property, the Wisconsin property and her 1978 Cadillac automobile. The court awarded to John his various business interests, the industrial building and real estate in Sandwich, Illinois, and his 1979 Cadillac automobile.

After the parties waived a hearing on fees, the court allowed attorney fees based upon petitions filed by the attorneys for both parties. John was directed to contribute $30,000 toward Joanne's attorney fees and $30,000 to his attorney. Joanne was directed to pay $20,000 to her attorney. The court ordered John to sell his 700 shares of Cotronics, Inc., stock to pay the attorney fees, ...


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