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03/02/94 MARRIAGE JANE L. WEILER NOW KNOWN AS JANE

March 2, 1994

IN RE MARRIAGE OF JANE L. WEILER, NOW KNOWN AS JANE L. PARSONS, PETITIONER-APPELLANT AND CROSS-APPELLEE, AND JAMES R. WEILER, RESPONDENT-APPELLEE AND CROSS-APPELLANT.


Appeal from the Circuit Court of Edwards County. No. 91-D-1. Honorable John I. Lundmark, Presiding Judge.

Maag, Chapman, Goldenhersh

The opinion of the court was delivered by: Maag

JUSTICE MAAG delivered the opinion of the court:

Petitioner, Jane L. Parsons, appeals from the final judgment of dissolution of marriage entered on April 28, 1992. On appeal, petitioner raises the following issues:

(1) Whether the trial court erred in the valuation of the marital property interest in respondent's profit-sharing plan.

(2) Whether the trial court abused its discretion in the division of the marital assets.

(3) Whether the trial court erred in finding that petitioner's nonmarital estate was not entitled to a $4,000 reimbursement from her individual retirement account by reason of an interspousal gift.

(4) Whether the trial court erred in finding that respondent had not dissipated marital assets.

Additionally, respondent raises an issue by cross-appeal alleging that the trial court erred when it found that petitioner had not dissipated marital assets.

The parties were married on December 18, 1966, with the marriage being registered in Wayne County, Illinois. An action for dissolution was filed by the petitioner on January 7, 1991. A judgment for dissolution was entered on September 24, 1991. All other issues were reserved. Ultimately, a trial on the remaining issues was held.

Petitioner's employment was terminated on October 21, 1991. This was subsequent to the trial but prior to the court's ruling. The evidence was later reopened, and on November 26, 1991, additional evidence was heard. On March 17, 1992, the trial court entered its memorandum of decision, and on April 28, 1992, the final judgment of dissolution of marriage was entered.

At the time of the judgment of dissolution the petitioner was 44 years of age, with a high school diploma and some college credit. Except for one year early in the marriage, she continuously worked outside the home. Petitioner began working as a secretary at the Wayne County Bank and Trust and after 18 years had worked herself up to the position of loan officer. At the time of the original trial she was earning $36,100 per year. After petitioner's employment was terminated, the trial court provided for maintenance.

At the time of the judgment of dissolution, respondent was 51 years of age with a bachelor's degree in marketing from Southern Illinois University. He had been employed at Southern Wholesale Lumber prior to and during the marriage. At the time of the trial he was a director and general manager of Southern Wholesale Lumber. He had held that position for five years. In addition to his salary, respondent had an automobile furnished for his use. He also earned $100 per month in director fees and received an annual bonus at the end of the fiscal year.

Respondent testified at trial regarding his interest in the Lumberman's Employee's Trust Plan (Plan). During the marriage, he contributed 5% of his salary and bonuses to the plan. Respondent's employer also contributed to the Plan. The employer's accrued period for contribution ended on July 31 of each year, but the employer's contributions were not made until October or November of eachyear. The Plan itself operated on a calendar year basis, and the earnings of the Plan could not be determined until after December 31. As of December 31, 1990, respondent's interest in the Plan was $218,277.87.

According to respondent's calculations, his nonmarital interest in the Plan was $13,203.79. He arrived at this result by taking the sum of $1,937.24, which was the amount in the Plan as of December 31, 1966 (the parties were married December 18, 1966), and adding $120.59. This represented the growth for 1967. In applying the earnings for 1967 respondent relied upon article XII, section 12.1, of the Plan which provides: "The earnings of the fund shall be allocated to the credit of the Parties of the First Part, at December 31st in proportion to their balances at January 1st of that year. For this purpose, any amounts due from the Party of the Second Party (Employer) shall not be included in the employer's account."

The record reflects that subsequent to 1966 respondent took the current-year earnings of the Plan and divided it by the previous year-end balance in the Plan and achieved a rate of return which he multiplied by the alleged nonmarital portion of the Plan to determine the growth of the nonmarital portion of the Plan.

Respondent's mother had died prior to the trial, leaving a large estate to be divided equally between respondent and his brother. Respondent's mother owned certificates of deposit totalling $58,000, as well as other liquid assets and stocks. After the parties separated but prior to the judgment of dissolution, respondent placed $1,275 into his mother's bank account. Also, after the parties separated but prior to the judgment of dissolution, the respondent made two trips. Respondent spent $1,200 on air fare, hotel expenses, and other items on a trip to San Francisco and an additional $500 in journeying to the Indianapolis 500.

Respondent testified that in 1985 he wrote a $2,000 check to petitioner for an individual retirement account (I.R.A.) contribution. In 1986 respondent wrote a $4,000 check for contributions to his and petitioner's separate individual retirement accounts. During cross-examination respondent testified as follows:

"Q. Okay. Now, the I.R.A. accounts * * * you funded on a couple of occasions, you remember those checks?

[Respondent] A. Yes.

Q. All right. When you put $2,000.00 in [petitioner's] I.R.A. account, you knew that it was [petitioner's] I.R.A. account and not yours.

A. That's correct.

Q. You knew that you did not have an ownership interest in that account when you deposited the money.

A. That's correct.

Q. You knew when you deposited the money it would be under her sole control and direction.

A. That's correct.

Q. And that she had the authority to withdraw it if ...


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