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03/31/94 MARRIAGE CATHERINE M. MURPHY v. MICHAEL R.

March 31, 1994

IN RE: THE MARRIAGE OF CATHERINE M. MURPHY, N/K/A CATHERINE M. MADONIA, PETITIONER-APPELLANT,
v.
MICHAEL R. MURPHY, RESPONDENT-APPELLEE.



Appeal from Circuit Court of Sangamon County. No. 90D611. Honorable George H. Ray, Judge Presiding.

Petition for Rehearing Denied May 5, 1994. As Corrected April 29, 1994. Second Correction May 9, 1994. Petition for Leave to Appeal Denied October 6, 1994.

Honorable James A. Knecht, J., Honorable Robert W. Cook, J., Honorable Robert J. Steigmann, J.

The opinion of the court was delivered by: Knecht

JUSTICE KNECHT delivered the opinion of the court:

On July 17, 1990, petitioner, Catherine Murphy, filed a petition in the circuit court of Sangamon County seeking dissolution of her marriage to respondent, Michael Murphy.

The largest asset of the parties is a personal injury settlement obtained by them as a result of respondent being shot in the parking lot of a Hardee's restaurant in Springfield on January 17, 1985. A lump-sum payment of $800,000 was made to the parties jointly as well as annuity payments of $90,000 guaranteed for 20 years beginning August 15, 1990. In addition, for each year respondent lives after August 15, 2009, the parties were to be paid an additional $90,000.

A judgment of dissolution was entered on November 13, 1992, which (1) provided for joint custody of the minor child with physical custody awarded to petitioner; (2) ordered respondent to pay child support of $600 per month and pay all tuition and fees for a parochial school education for the child as well as provide medical insurance for him; (3) awarded the marital residence and its contents to petitioner; (4) denied maintenance to both parties; and (5) awarded petitioner $220,000 from the personal injury award (this included the $90,000 1992 annuity payment). Respondent was awarded the remainder of the annuity payments as his sole and separate property. The marital debts were divided fairly evenly as were the parties' automobiles, bank accounts, insurance and pension plans.

Petitioner appeals, contending the trial court erroneously failed to find dissipation and abused its discretion in allocating the personal property. We disagree and affirm.

Petitioner first argues respondent dissipated the assets received from the personal injury settlement. While the accounts holding these assets were in the name of both parties as joint tenants with right of survivorship, the respondent was the only one using the accounts. The accounts were frozen by court order January 6, 1992, after respondent filed a petition for temporary relief alleging petitioner had attempted to assert exclusive control over the accounts.

Dissipation means the use of marital property for the sole benefit of one of the spouses for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown. ( In re Marriage of O'Neill (1990), 138 Ill. 2d 487, 497, 563 N.E.2d 494, 498-99, 150 Ill. Dec. 607.) In support of her claim, petitioner cites respondent's own exhibit indicating for the period from January 2, 1990, through December 31, 1990, funds expended from the cash management account containing the personal injury proceeds totalled $28,328.20. Petitioner's petition for dissolution was filed on July 17, 1990. For calendar year 1991, withdrawals from the account increased dramatically and totalled $96,845.94.

Petitioner argues respondent's financial affidavit listed his personal monthly expenses for 1991 as $3,183.93. She then points out respondent testified he paid a total of $16,049.60 or $1,604.96 monthly for petitioner's expenses the first 10 months of 1991. For the last two months of 1991, respondent paid her only $600 per month in child support, for a total of $1,200. Petitioner notes respondent's same financial affidavit shows net income for 1991 totalling $34,862.16 and expenses in the amount of $36,221.24, providing a shortfall of less than $1,400, which did not require the withdrawal of $96,000 from the invested funds.

The evidence as to respondent's actual monthly expenses is not clear. The affidavit to which petitioner refers is unsigned and was filed during pretrial discovery. Respondent referred to another affidavit during his testimony at trial and another affidavit was filed by him after the evidence was heard. The figures in all three affidavits differ. The monthly expenses seemed to increase with each succeeding affidavit.

Once a prima facie case of dissipation is made, the party charged with dissipation must establish by clear and convincing evidence how the funds were spent; general and vague statements are not enough. ( In re Marriage of Partyka (1987), 158 Ill. App. 3d 545, 549-50, 511 N.E.2d 676, 680, 110 Ill. Dec. 499.) Assuming petitioner made such a prima facie case with the figures she has chosen to use, respondent was questioned extensively and answered in great detail on the use he made of the funds he withdrew from the settlement accounts. Some of the expenses respondent testified to were not covered on the monthly expenses. For instance, petitioner testified despite the fact many improvements were made to the marital residence to accommodate respondent's disability, it was agreed she and their son Bobby would remain there and respondent would have to find another residence when they separated. Respondent paid $20,000 down on a condominium as his new residence. He then paid $5,985 for new appliances and $1,500 for landscaping. When respondent moved out of the marital residence he took with him only a small dresser, a desk, a personal computer, a kitchen table, hunting clothes and equipment and some of his clothing. He then paid over $25,000 to furnish the condominium, including furnishing a bedroom for Bobby when he came for visitation. He testified also to spending almost $1,800 on patio furniture.

Other expenditures to which respondent testified included over $2,700 for a television, compact disk player and tape deck, a telephone for $145.58, over $2,200 for new clothes, an aquarium for Bobby, monthly piano lessons for Bobby in an unspecified amount and at least $736 paid on the outstanding balances of marital credit card accounts. Respondent's testimony also included approximately $5,200 paid for vacation trips taken with his girlfriend as well as gifts for her. ...


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