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April 14, 1994


Appeal from Circuit Court of Morgan County. No. 91D107. Honorable Tim P. Olson, Judge Presiding.

As Corrected May 13, 1994. Released for Publication June 1, 1994.

Honorable Robert W. Cook, J., Honorable Carl A. Lund, J., Specially Concurring, Honorable Robert J. Steigmann, Specially Concurring

The opinion of the court was delivered by: Cook

JUSTICE COOK delivered the opinion of the court:

Petitioner Ward R. Dunseth appeals from the trial court's division of marital property, direction that he pay respondent Barbara H. Dunseth $1,700 monthly in permanent maintenance, and order sentencing him to 30 days in jail for contempt. We affirm in part, reverse in part, and remand to the trial court.

Ward and Barbara were married in Las Vegas, Nevada, in 1978. That was the second marriage for both, and no children were born of the marriage. The parties separated at the end of July 1991, when Ward was 67 and Barbara was 57 years old. Ward worked as a doctor prior to and throughout the marriage, practicing surgery at Passavant Hospital in Jacksonville, Illinois, and consulting and performing minor surgeries in private offices in Jacksonville and Springfield, Illinois. In July 1991, Ward's privileges at Passavant Hospital were restricted due to the death of a patient. The restrictions required Ward to consult with another surgeon before every operation. Ward refused to practice under those conditions and moved his practice to Doctors Hospital in Springfield, but later agreed to the conditions. The number of surgeries he performed at Passavant, however, rapidly decreased. In February 1992, Ward's surgical privileges at Passavant were suspended and he began to practice exclusively at Doctors Hospital. About the same time, Ward closed his Jacksonville office and opened an office in Carlinville, Illinois.

Ward collected antiques and Indian artifacts and during the marriage he bought a Lincoln desk at a two-day auction. Barbara took the desk with her when she moved out of the former marital home, stating, "I felt as though he bought the desk for me." Ward and Barbara purchased a cabin which they filled with antiques, an antique sleigh, and two antique wagons; they collected cranberry glassware throughout the marriage. The couple owned five lawnmowers, including one worth $5,000 on which a $4,700 debt remained. Ward testified he owned 200 of 650 shares in a medical corporation consisting of two buildings, a heliport, and a complete medical facility in Jacksonville from which he ran his practice. In his lifetime, he had owned three helicopters and one plane, as well as two motor homes. In addition, the parties owned five Cadillac automobiles, including a 1989 Cadillac Ward had bought for Barbara, upon which he still owed approximately $15,000 and on which he paid $478 per month. Ward owned property which was formerly occupied by a gas station, and he leased very expensive medical equipment for his practice, including a $20,000 complex of laparoscopy instruments leased in March 1991. Ward testified the value of such equipment depreciated almost as soon as it was acquired, much like the value of a new car. Nevertheless, Ward signed a contract on October 24, 1991, to lease surgical equipment over five years at a cost of $45,000. Monthly payments for that equipment totaled $1,350, and he had additional monthly equipment lease payments of $357.49.

Ward's adjusted gross income, as reported on his income tax returns for the years 1987 through 1990, was $102,497 in 1987, $230,573 in 1988, $216,801 in 1989, and $246,937 in 1990. Ward's gross income in 1991 was $454,971. In September 1991, the Internal Revenue Service (IRS) filed claims for Federal tax liens against Ward and Barbara for the years 1987 through 1990, totaling $281,834. Ward testified he did not pay all of his taxes in those years and used his available funds primarily for business expenses, since he was operating at a loss.

Ward left Barbara in July 1991, taking his girlfriend, Debbie Morrell, on a four-day weekend vacation in his motor home. Debbie was an employee in Ward's office whom he claimed had hospital experience, although she was not a licensed nurse. She received a 25% salary increase in September 1991, which brought her salary to $1,600 a month. Debbie accompanied Ward to New York City in October 1991, where the couple stayed at the Waldorf Astoria for seven nights while Ward attended a medical conference. Ward claimed he was required to attend this conference to keep current on his continuing medical education credits; nevertheless, while in New York, Ward dined with Debbie at the Russian Tea Room, and spent $294 on theatre tickets and approximately $3,000 on the entire trip. In 1992, Debbie accompanied Ward to medical conferences at the Mayo Clinic and in Luxembourg, where Ward spent another $1,800 over the period of a week. Debbie moved into the marital residence with Ward after he received exclusive temporary possession of the home through a stipulated order in August 1991. Debbie lived there rent-free but paid for some food expenses. Ward stated Debbie did not receive a paycheck in December 1991, and on various other occasions due to his declining income. Ward gave Debbie a $1,400 ring and agreed to have the former marital residence painted and carpeted, although he claimed Debbie paid for the remodeling expenses. Shortly after he closed his Jacksonville office and opened the officein Carlinville, Ward made plans to move into Debbie's newly purchased $114,000 home in Carlinville.

After graduation from high school, Barbara worked for Caterpillar Tractor Company as a switchboard operator until she was married and had children. In 1967, she began working for the First Baptist Church as a secretary, quitting in 1976. She then worked briefly for Ward in his office as a receptionist until they married. Soon after the marriage, the parties sold Barbara's home for $38,900, and Barbara turned over the proceeds to Ward. Barbara testified Ward gave her 1975 Mustang to his son shortly after the marriage. Ward was "very generous" with his money, buying jewelry and spending $3,000 at a time on designer outfits for Barbara. Ward estimated he spent a total of $30,000 to $40,000 on Barbara's clothes during the marriage. He also gave her between $1,000 and $2,000 in cash every month, out of which Barbara was expected to pay for utilities, garbage pickup, food, and any personal necessities. The couple ate out often and went on vacation approximately four times a year because Ward needed to get away. The parties visited Edinburgh, Scotland, twice in 1990 and stayed there for three weeks at a time, while Ward took an examination so he could become a Fellow of the Royal College of Surgeons and add this membership to his letterhead. The parties had planned a trip to Europe for July 1991, but after Ward moved out of the marital residence, Barbara cashed in her $1,300 plane ticket and placed the money in escrow with her attorney pending the property settlement.

Barbara stated Ward handled all financial matters during the marriage and never consulted her about obtaining loans, leasing medical equipment, or buying and selling his helicopter. Regarding the parties' income tax returns, Barbara stated she "signed on the dotted line" because Ward told her to do so. She acknowledged she signed one of his medical equipment leases in 1990 and added she "would have signed anything." Barbara knew there were money problems relatively early in the marriage, as Ward had borrowed $23,000 from her mother in 1983. In addition, she admitted at one hearing she had known about the IRS for years, as they had emptied her checking and savings accounts and had taken a certificate of deposit she had acquired prior to the marriage. In the spring of 1991, Barbara signed a note to borrow $50,000 which Ward indicated would go to the IRS. However, she was unaware of any payments made by Ward to the IRS. Barbara testified an IRS agent visited her and said if Barbara went to work, the IRS would garnishee her wages to pay for the couple's tax liability. She then admitted she had not attempted to find work since the parties' separation.

The parties agreed to a temporary order on August 12, 1991, which provided Ward would pay Barbara $1,250 in maintenance for August and September 1991, with payment due the 15th of each month. If the parties could not agree upon future temporary maintenance payments, either could petition the court to conduct a hearing between September 15 and October 1, 1991. Barbara was granted exclusive possession of the 1989 Cadillac, and Ward was ordered to forward two separate checks, payable to Farmers State Bank, in the amount of the car's monthly loan payment. Ward was granted exclusive temporary possession of the marital home, while certain items of personal property Barbara had taken from that residence were ordered returned to Ward. The order enjoined each party from removing any marital or nonmarital property from the marital residence and from concealing, encumbering, or destroying any such property until further order of the court.

Barbara filed a petition for rule to show cause in September 1991, alleging Ward had failed to make the August temporary maintenance payment by the 15th in the amount required and failed altogether to make the August car payment. Barbara also petitioned for an extension of temporary support.

On September 27, 1991, the trial court heard evidence on the petitions. Ward testified he made the August temporary maintenance payment and the August and September car payments but did not make the September maintenance payment because Barbara had not returned all of his personal property. Regarding Barbara's petition for temporary support, Ward testified there had been a significant decrease in his income as a physician within the few months prior to the parties' July 1991 separation. Following his July 1991 partial suspension from Passavant Hospital, Ward's gross income, which had averaged $40,000 per month, decreased to approximately $20,000 per month. In August 1991, Ward's gross income was $35,000, based on collection of accounts receivable from previous months, but his gross income for September, through the 27th, was $18,842. Ward stated his September income would not cover his current business expenses; in fact, he was reducing his staff, and further reductions might be necessary. Ward mentioned the IRS liens, indicated he had offered his motor home, on which he owed substantial debt, for sale, and stated the debt on the former marital home remained approximately $128,000. In fact, virtually everything the parties owned was mortgaged or had had a lien placed upon it. Ward claimed he was unable to continue payments on the 1989 Cadillac. He then stated he was keeping his expenses to a minimum, not supporting Debbie, and was behind only on the IRS payments.

The maintenance Barbara received from Ward was her only source of income. Barbara was unemployed and did not know how to operate a word processor, had back problems and a history of cancer which had necessitated a hysterectomy, and lived with her mother and slept on a fold-out bed prior to moving to her four-room apartment. She had "lost 20 pounds over this" and requested maintenance of over $2,000 a month, including $400 a month for food and $50 a month for lunches, $510 per month for the car payment, and $250 per month for insurance, gas, and repairs.

On November 26, 1991, the trial court ordered Ward to pay Barbara $2,000 per month in temporary maintenance, in addition to the car payment, insurance, and any repairs on the car. The court further ordered the parties to refrain from incurring any unnecessary expenditures or debts, not including the ordinary and necessary expenses attendant to Ward's medical practice, and prohibited the parties from transferring, concealing, or selling any property without the written consent of the other party. Although it refused to find either party in contempt, the court ordered payment of the September maintenance payment by 4 p.m. that afternoon and payment of future maintenance checks on the 15th of each month.

On December 26, 1991, Ward filed a petition to modify the temporary order, asserting a substantial change in circumstances precluded him from paying the December maintenance in full. Ward had paid Barbara only $1,000 for December and had only paid the interest portion of the December car payment. Barbara filed a petition for rule to show cause on January 6, 1992, alleging nonpayment of the entire December maintenance payment.

At the January 15, 1992, hearing, Ward stated an IRS agent visited his office on December 15 and he gave her a check for $3,000. The IRS agent instructed Ward to dispose of personal property, real estate, and all but two vehicles in order to facilitate payment to the IRS. When asked why he did not refuse to pay the agent, Ward responded, "I don't refuse the IRS, sir." On cross-examination, Ward admitted the check was dated December 19, four days after the maintenance payment was due, but insisted his December 15 bank balance of approximately $7,000 did not account for checks which had yet to be cleared.

Ward's practice collected $39,851.23 in September, $31,926.66 in October, $26,605.55 in November, and $19,094.13 in December 1991. He stated the minimum amount required to operate his office was approximately $24,000 per month, and he did not make the court-ordered payments to Barbara in December because he lacked the funds. In fact, Ward borrowed money from a credit card to pay hismalpractice insurance, due January 1. He stated he knew the IRS was going to visit his office December 15 but was unaware it would request money on the spot; it usually levied against his bank account ...

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