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07/13/89 In Re Marriage of Stephen W. O'neill

July 13, 1989

IN RE MARRIAGE OF STEPHEN W. O'NEILL, PETITIONER-APPELLEE,


APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

and CAROLE SUE O'NEILL, Respondent-Appellant

541 N.E.2d 828, 185 Ill. App. 3d 566, 133 Ill. Dec. 617 1989.IL.1098

Appeal from the Circuit Court of Sangamon County; the Hon. Roger W. Holmes, Judge, presiding.

APPELLATE Judges:

JUSTICE LUND delivered the opinion of the court. KNECHT and GREEN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND

Respondent Carole O'Neill appeals from the trial court's order, which disposed of the marital property, and determined maintenance, child support, and payment of attorney fees. In its order, the trial court found no dissipation of assets and denied respondent's claim for petitioner Stephen O'Neill's share of the residence.

Respondent argues on appeal that the trial court erred in not finding dissipation by petitioner, and in not awarding the entire residence asset to her, pursuant to the provisions of sections 504(b) and 503(g) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1987, ch. 40, pars. 504(b), 503(g)). Because of our holding below, we need not specifically discuss the court's division of the marital residence.

During the marriage, petitioner was charged with attempt to commit rape. He declared his innocence to his wife and, with her approval, used $15,000 of marital funds to hire defense counsel. He was convicted and, subsequently, admitted his guilt. The evidence given at the hearing on the property division did not indicate the marriage was undergoing an irreconcilable breakdown at the time of the $15,000 expenditure for attorney fees. Respondent, in answer to the court's question, stated that she did not know if she would have approved the $15,000 payment had she been aware of her husband's guilt. Two of the factors the trial court is to consider in dividing marital property are the "contribution or dissipation of each party." Ill. Rev. Stat. 1987, ch. 40, par. 503(d)(1).

The trial court determined there was no dissipation. The main asset was the equity in the family home, and this real estate interest was split equally between the parties, subject, however, to respondent's use of the property for the benefit of the children under the provisions of section 503(d)(4) of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 503(d)(4)).

It is unclear whether the trial court's decision was based on the various appellate court cases inferring dissipation is limited to a period of time when there was an irreconcilable breakdown of the marriage (see In re Marriage of Partyka (1987), 158 Ill. App. 3d 545, 549, 511 N.E.2d 676, 680; In re Marriage of Aslaksen (1986), 148 Ill. App. 3d 784, 788, 500 N.E.2d 91, 93-94; In re Marriage of Sevon (1983), 117 Ill. App. 3d 313, 317, 453 N.E.2d 866, 869; In re Marriage of Smith (1983), 114 Ill. App. 3d 47, 51, 448 N.E.2d 545, 548; In re Marriage of Hellwig (1981), 100 Ill. App. 3d 452, 462, 426 N.E.2d 1087, 1094; Klingberg v. Klingberg (1979), 68 Ill. App. 3d 513, 517, 386 N.E.2d 517, 521), or on the fact that respondent had approved the expenditure. We now find the trial court erred, and we repudiate any ruling that says dissipation is limited in time to conduct which takes place during an irreconcilable breakdown of the marriage.

The reputed theory or, as some may say, rule of law, evolved from an innocuous statement in Klingberg. In that case, it was clear the husband wrongfully used marital funds to prepay child support payments that were an obligation from a prior marriage. This wrongful use took place when the parties of the current marriage were separated. The statement from Klingberg is as follows:

"Rather, the respondent's action was designed to use marital property for his sole benefit and for a purpose unrelated to the marriage, at a time that the marriage was undergoing an irreconcilable breakdown." (Emphasis added.) (Klingberg, 68 Ill. App. 3d at 517, 386 N.E.2d at 521.)

This statement is consistent with the case law prior to the October 1, 1977, effective date of the Act, as is illustrated by Gercke v. Gercke (1928), 331 Ill. 413, 163 N.E. 323. See also In re Estate of Chandler ...


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