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10/24/96 MARRIAGE MARYSE CHARLES

October 24, 1996

IN RE: THE MARRIAGE OF MARYSE CHARLES, PETITIONER-APPELLANT, AND FRANTZ CHARLES, RESPONDENT-APPELLEE.


Appeal from Circuit Court of Macon County. No. 92D153. Honorable Scott B. Diamond, Judge Presiding.

Released for Publication October 24, 1996. As Corrected January 3, 1997.

Honorable John T. McCullough, J., Honorable Rita B. Garman, J. - Concur, Honorable Robert J. Steigmann, J. - Special Concurrence. Justice McCULLOUGH delivered the opinion of the court.

The opinion of the court was delivered by: Mccullough

JUSTICE McCULLOUGH delivered the opinion of the court:

In March 1994, the trial court entered a judgment dissolving the 19-year marriage of petitioner, Maryse Charles, and respondent, Frantz Charles, and reserving all other issues. In December 1994, the court entered a supplemental judgment, allocating marital assets and debts and ordering Frantz to pay $2,250 per month in child support. In September 1995, the court entered a judgment which, in relevant part, awarded Maryse $2,750 per month in maintenance, reviewable after three years.

Maryse appeals, arguing that the trial court erred (1) in allocating marital assets and debts because the court (a) did not consider Frantz's dissipation of marital assets, (b) did not consider the parties' grossly disparate earning abilities; and (c) ordered that liquidated marital assets be used to pay Frantz's 1994 tax liability; (2) by ordering that liquidated marital assets be used to satisfy Frantz's attorney fees; (3) in awarding child support that was substantially below the statutory guidelines; and (4) in awarding maintenance that is inadequate to enable Maryse to enjoy a lifestyle consistent with the lifestyle she had enjoyed during the marriage. We reverse and remand.

Preliminarily, we point out that Frantz did not file a brief on appeal. In First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133, 345 N.E.2d 493, 495 (1976), the supreme court held that where the record is simple and the claimed errors are such that the reviewing court can easily decide them without the aid of the appellee's brief, the court should decide the merits of the appeal. However, a reviewing court should not be compelled to serve as appellee's advocate. Where the issues on appeal cannot be easily evaluated, the appellant's brief makes a prima facie showing of reversible error, and the record supports the allegations of error, a reviewing court may reverse. Talandis, 63 Ill. 2d at 133, 345 N.E.2d at 495.

Deference should be given to the work of the trial judge, and in the interest of judicial economy we are reluctant to reverse without giving consideration to the merits. See Daley v. Jack's Tivoli Liquor Lounge, Inc., 118 Ill. App. 2d 264, 273-75, 254 N.E.2d 814, 818-19 (1969) (cited as instructive in Talandis, 63 Ill. 2d at 131, 345 N.E.2d at 494). The record in this case is not so complicated as to prevent this court from reviewing the issues on the merits. We will consider the merits of the appeal.

Only those facts necessary to an understanding of this disposition will be discussed. As to the issues raised on appeal, the standard of review is whether the trial court's findings of fact are against the manifest weight of the evidence or whether the property distribution or awards of maintenance, child support, and attorney fees amounted to an abuse of discretion. In re Marriage of Swanson, 275 Ill. App. 3d 519, 528, 656 N.E.2d 215, 222, 212 Ill. Dec. 62 (1995) (property distribution); In re Marriage of Frey, 258 Ill. App. 3d 442, 448, 630 N.E.2d 466, 471, 196 Ill. Dec. 531 (1994) (property distribution including dissipation of assets); In re Marriage of Parker, 252 Ill. App. 3d 1015, 1022, 625 N.E.2d 237, 242, 192 Ill. Dec. 277 (1993) (attorney fees); In re Marriage of Harlow, 251 Ill. App. 3d 152, 156, 621 N.E.2d 929, 933, 190 Ill. Dec. 476 (1993) (maintenance); In re Marriage of Tietz, 238 Ill. App. 3d 965, 978, 605 N.E.2d 670, 680, 178 Ill. Dec. 876 (1992) (child support).

The first issue is whether the trial court's allocation of marital assets and debts was an abuse of discretion because the trial court did not appropriately consider Frantz's dissipation of marital assets. Maryse filed a petition for legal separation on June 4, 1991. An order was entered on July 29, 1991, granting her temporary custody, child support, maintenance, and use and possession of the marital residence and a 1990 Audi. She filed a petition for dissolution of marriage on March 6, 1992. At that time, the proceedings were consolidated.

The trial court first ordered that marital debts be satisfied from the marital estate. These debts ($344,476.42 plus any penalty from the early withdrawal of tax-sheltered investments) included several years of tax liabilities, Frantz's 1994 estimated federal income tax, and payments of attorney fees for both parties. After debt satisfaction, the trial court awarded Maryse $49,000 in personal property she had taken to Florida. Frantz was awarded two homes and the debts thereon, a 1991 Nissan Pathfinder and the debt thereon, and his medical practice. The trial court's orders contain no findings as to the values of the assets awarded to Frantz.

Maryse's first issue concerns dissipation of marital assets by Frantz. Dissipation is a factor the trial court should consider in allocating marital property. In re Marriage of Lee, 246 Ill. App. 3d 628, 633, 615 N.E.2d 1314, 1319, 186 Ill. Dec. 257 (1993). Dissipation refers to the "'use of marital property for the sole benefit of one of the spouses for a purpose unrelated to the marriage at a time that the marriage is undergoing an irreconcilable breakdown.'" In re Marriage of O'Neill, 138 Ill. 2d 487, 497, 563 N.E.2d 494, 498-99, 150 Ill. Dec. 607 (1990), quoting In re Marriage of Petrovich, 154 Ill. App. 3d 881, 886, 507 N.E.2d 207, 210, 107 Ill. Dec. 543 (1987). Whether a given course of conduct constitutes dissipation within the meaning of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/503(d)(2) (West 1992)) depends upon the facts of the particular case. Lee, 246 Ill. App. 3d at 633, 615 N.E.2d at 1319. The spouse charged with dissipation has the burden of proving, by clear and convincing evidence, how the marital funds were spent. Based on the credibility of the witnesses, the trial court determines whether the funds were spent for legitimate family expenses which were necessary and appropriate. Tietz, 238 Ill. App. 3d at 983-84, 605 N.E.2d at 683.

The orders of the trial court in this case do not address the question of dissipation of assets. No finding was made regarding whether there was dissipation. Nor do the trial court's orders indicate when the marriage began undergoing an irreconcilable breakdown. Maryse argues this began when Frantz began his extramarital relationship. The record indicates that Frantz gave money to and purchased trips and other items for his mistress beginning in September 1990 and continuing for some time during these proceedings. This was acknowledged by Frantz. There was testimony from certified public accountant Robert Disbrow and from Frantz from which the trial court could find that Frantz spent several tens of thousands of dollars on this woman, including credit card payments, cash, a house down payment, and mortgage payments. He was also paying her child support for their child. Maryse points to evidence showing Frantz spent in excess of $116,000 with respect to the extramarital relationship. Frantz purchased a second home for himself after the parties separated. For this second home, he made a downpayment of $11,000 and secured a $175,000 mortgage. From April 1993 through November 1993, he made monthly mortgage payments of $1,500. He also purchased furniture for himself. While Maryse testified that Frantz had removed several valuable household items from the marital home when the parties initially separated, there was no evidence of the value of these assets. Nor was there evidence of the value of the personal property Maryse sold to pay for her move to Florida.

In In re Marriage of Hagshenas, 234 Ill. App. 3d 178, 197, 600 N.E.2d 437, 451, 175 Ill. Dec. 506 (1992), the court addressed the issue of dissipation through excessive ...


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