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In Re Marriage of Aslaksen

OPINION FILED OCTOBER 31, 1986.

IN RE MARRIAGE OF JAMES G. ASLAKSEN, PETITIONER-APPELLANT, AND CONSTANCE M. ASLAKSEN, RESPONDENT-APPELLEE.


Appeal from the Circuit Court of Kane County; the Hon. James M. Wilson, Judge, presiding.

JUSTICE WOODWARD DELIVERED THE OPINION OF THE COURT:

Petitioner, James Aslaksen, brought this action to dissolve his marriage to respondent, Constance M. Aslaksen. The trial court dissolved the marriage and subsequently entered a supplemental judgment with respect to the property rights of the parties, custody of the parties' minor children and support. The petitioner appeals from the entry of that supplemental judgment, contending that the trial court erred in finding him guilty of dissipation of marital assets, erred in awarding maintenance to the respondent, and erred in awarding attorney fees to the respondent in the form of maintenance.

The parties were married in 1970. Two children were born to the marriage and were minors at the time of the petition for dissolution of marriage. The petitioner was employed by O'Brien Company as national sales manager and earned approximately $60,000 gross per year. The respondent was employed part-time as a nurse, earning approximately $16,000 to $17,000 per year gross. The major assets of the marriage were the marital residence, which was sold during the proceedings for $159,000, and a money market account at A.G. Edwards in the amount of $14,030.33. There were two mortgages on the marital residence, requiring monthly payments of $1,944.88 in total.

In November 1982, petitioner filed a petition for dissolution of the parties' marriage. On respondent's petition for temporary allowance, the court ordered petitioner to continue making both mortgage payments and to pay respondent $200 per month support.

In April 1983, the respondent filed a petition for rule to show cause alleging that the petitioner had not paid the mortgages and that the loans would be called. The parties entered into an agreed order which permitted the respondent to invade the A.G. Edwards account to bring the mortgage current and to list the marital residence for sale. On June 22, 1983, respondent filed another rule to show cause, again alleging that the petitioner had not made the monthly payments. Petitioner filed a petition asking that the support and mortgage payments be modified because he was financially unable to make the payments. The trial court ordered petitioner's wages garnished in the amount of the mortgage and support payments, and authorized respondent to withdraw $5,025 from the A.G. Edwards account to bring the mortgages current again.

In September 1983, petitioner lost his job and remained unemployed until January 1984, when he was employed by AGA Gas Incorporated at a salary of approximately $35,000 per year. During his unemployment, petitioner received $200-per-week unemployment compensation, termination pay in the amount of $6,400 gross and withdrew $2,417.31 from his pension fund. Petitioner had also received a bonus of $7,500 gross, which was paid in April 1983.

On October 4, 1983, a hearing as to grounds only was held, and the trial court entered a judgment for dissolution of marriage. The case was continued for trial on the remaining issues. On March 23, 1984, the trial court entered an order providing that petitioner was to continue to pay the support of $200 per month and to "use best efforts to pay expenses."

The closing of the sale of the marital residence took place on June 12, 1984. According to the payoff letters, the first mortgage to Allstate had not been paid since October 1983, and the second mortgage to Lomas & Nettleton had not been paid since August 1983.

At trial, petitioner, who had remarried, testified that he had used his best efforts to pay bills. He admitted that he had paid his present wife's attorney fees and had repaid loans to his sister and his new wife's mother. In addition, since his separation from respondent, he had taken trips with his present wife to Hawaii, Europe and California, which he characterized as "business trips," as well as a honeymoon trip to Mexico. He maintained that his present wife had reimbursed him for the attorney fees he had paid on her behalf and had paid for the honeymoon trip to Mexico, as well as all of her own expenses on the business trips.

In its letter opinion, the trial court began by characterizing the testimony of the respondent as credible and that of the petitioner as not credible. The trial court found that petitioner failed to use the monies received by him to satisfy the mortgage payments, which he was under a court order to pay. The trial court concluded that the petitioner had dissipated the major marital assets: the marital residence by failing to make the mortgage payments, thus putting the property into foreclosure; and the A.G. Edwards account since the resulting mortgage deficiencies were made up from that account.

The trial court then determined that, based upon the disparity of the parties' income, the respondent should receive 60% of the marital assets and the petitioner 40%.

The trial court determined that the petitioner had dissipated the proceeds that should have been received from the sale of the marital residence in the amount of $20,343.87. The amount of the dissipation was calculated by subtracting the encumbrances of $124,726.13 as listed on Exhibit A of petitioner's July 6, 1983, petition for modification of an agreed temporary relief order and the real estate broker's commission of $9,594 from the sales price of $159,900. The trial court then reduced the amount of dissipation by giving petitioner credit for $5,236, which was the actual cash left after the closing on the marital residence.

The trial court then awarded respondent 60% of the dissipated funds, or $12,206.32. The trial court also awarded her 60% of the original amount in the A.G. Edwards money market fund less a withdrawal of $5,498 she made for purchasing an automobile. The trial court also awarded her $4,000 in attorney fees for a total of $21,704.32. The trial court then credited her with $5,236 (the actual net proceeds from the sale of the marital residence) and $800 (the approximate amount remaining in the A.G. Edwards account), leaving a total balance due to her of $15,668.32. The trial court then determined that ...


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