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In Re Marriage of Earl D. Lichtenauer v. Joanne Lichtenauer

March 9, 2011

IN RE MARRIAGE OF EARL D. LICHTENAUER,
PETITIONER-APPELLANT,
v.
JOANNE LICHTENAUER,
RESPONDENT-APPELLEE.



Appeal from the Circuit Court of the 13th Judicial Circuit, LaSalle County, Illinois, Honorable Joseph P. Hettel, Judge Presiding. No. 07--D--405

The opinion of the court was delivered by: Justice Wright

JUSTICE WRIGHT delivered the judgment of the court, with opinion.

Presiding Justice Carter and Justice Schmidt concurred in the judgment and opinion.

OPINION

Appellant Earl D. Lichtenauer and appellee Joanne Lichtenauer were married in 1976. Joanne originally filed a dissolution action in Will County, Illinois, in 2005, which she dismissed in 2007. Immediately thereafter, Earl filed a dissolution action in La Salle County, Illinois, in 2007. During a contested hearing in La Salle County, regarding the distribution of the marital assets, evidence was introduced showing that Earl sold his interest in Cipher, Ltd. (Cipher), and Baum Signs, Inc. (Baum Signs), during the course of the dissolution proceedings. Just prior to dissolving Baum Signs in March 2006, Baum Signs' corporate attorney, Mr. Joyner, formed the new corporation called Correct Electric, Inc. (Correct Electric). After selling Baum Signs, Earl became an employee of Correct Electric beginning in 2006 until the date of the contested hearing.

During the contested hearing, the court received evidence that Earl's live-in girlfriend, Linda Mauk, became the president of Correct Electric when it was formed and earned over $120,000 per year in spite of having no previous corporate executive experience or qualifications for this position. Mauk was also the major shareholder, and the shareholder's agreement allowed her to transfer her shares in the company to Earl at any time without the other shareholders' approval. Earl claimed no financial interest in Correct Electric beyond the approximate $70,000 annual salary he received as an employee.

The court found the circumstances surrounding the structure of Correct Electric were a "contrived" arrangement. The court considered Mauk's income when determining Earl's ability to earn income for purposes of setting a permanent maintenance award for Joanne. Based upon the section 504 factors of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/504 (West 2008)), the court awarded permanent maintenance to Joanne in the amount of $1,850 per month. Earl appeals the permanent maintenance awarded to Joanne. We affirm.

BACKGROUND

Appellant Earl D. Lichtenauer and appellee Joanne Lichtenauer were married on September 25, 1976. Joanne had originally filed a petition for dissolution in Will County in 2005. Several pretrial matters were addressed in that case, including an order for an agreed interim distribution of marital assets. The assets addressed in this interim order included proceeds from the sale of Earl's interest in his business corporation, Cipher, and the marital residence. Joanne voluntarily dismissed that case on August 2, 2007, just prior to proceeding to a trial.

As a result of that dismissal, Earl filed a petition for dissolution of marriage in La Salle County on August 9, 2007, when both parties were 48 years old and their only child was emancipated. Prior to trial, on August 11, 2008, the court ordered that funds received from the proposed sale of Baum Signs, another company partially owned by Earl, should be held in Earl's lawyer's trust fund until further order of the court. On August 27, 2008, the court awarded Joanne temporary maintenance of $1,200 per month.

On the date of the contested hearing, June 29, 2009, the parties jointly filed a "Final Pretrial Stipulation," which summarized the parties' current assets and liabilities, the values each party assigned to them, the parties' claims as to whether they were marital or non-marital assets and debts, and the disputed issues to address at the contested hearing.*fn1 This document listed the following marital assets titled in Earl's name:

American Funds $9,226.49 ING (City of Republic) $2,191.75 (an IRA with City of Republic) IBEW Local 201 $129,769.94 (a retirement savings plan) Sheridan Bank MM $15,005.33 First Bank MM $18,046.58 Citizens Bank $4,942.20 Baum Signs Contract $45,000 (Joanne listed value at $45,000 plus interest) 2008 Chevrolet vehicle Unknown value (Joanne listed value at $36,000)

The pretrial document listed the values of assets in Joanne's name, as follows: 2000 Mitsubishi vehicle Unknown value (Joanne listed value at $4,900) Stofan, Agazzi & Co. $2,520.18 Integra Bank IRA $3,356.48 Cipher 401(k) $8,724.99 Tellabs 401(k) $5,296.26 AIG 401(k) $1,429.66 Valic 401(k) $2,057.49

Residence (Joanne's) $191,000 (Joanne listed value at $184,000 - disputed) National City MM $49,000 National City CD $31,661 Chase $2,800 West Coast Ins. $2,800 (Joanne listed none because it is term life account)

The debts listed in this joint pretrial document were, as follows:

Earl as debtor: Streator Onized (auto) $36,614.17 Mark Anderson $15,500 George E. Rydman & Assoc. $825 Wade Joyner $4,500 Joanne as debtor: United - Chase CC $1,870.95 Best Buy CC $719.98 Macy's CC $41.22 Carson Pirie Scott $723.74 Attorney Fees & Costs $12,500 (estimated) Residential Mortgage $142,000 (disputed)

Also in this pretrial stipulation, Earl claimed a Wachovia Securities account in his name, valued at $1,112.63, was his non-marital property and Joanne claimed an account she had at First National Bank, valued at $13,962, was her non-marital property.

The hearing on the contested financial issues began on June 29, 2009. Earl testified that, in 2006, he and another partner, Koby Elleby, sold their interests in Cipher for $528,000 plus full interest in Baum Signs, a subsidiary of Cipher. Both men split the cash equally and each took one-half interest in Baum Signs.

Earl stated that the Baum Signs stock purchase agreement, plaintiff's exhibit 7, dated August 2, 2007, showed the sale of his interest in Baum Signs for $60,000 to Mark Coyle. The $60,000 was to be paid to Earl in five installment payments of $12,000, with the first being paid in the fall of 2009. Earl testified that he opened a new money market account at the Sheridan Bank, where he deposited the first installment from the Baum Signs sale, and said he has not deposited or withdrawn any funds from that account since that deposit. Prior to dissolving Baum Signs, in March 2006, the corporate attorney, Mr. Joyner, formed the new corporation called Correct Electric, Inc. (Correct Electric), Earl's current place of employment. Earl was shown respondent's exhibit 6, the articles of incorporation for Correct Electric filed on March 1, 2006, which listed two directors for Correct Electric, Earl and Elleby. Earl stated that he was mistakenly listed as a director and that the document was later amended. He testified that he did not have a financial interest in Correct Electric and was only an employee of the company.

According to Earl, since March 2006, he has been employed by Correct Electric as a senior project manager and earns an hourly rate of $34. Earl testified that, prior to 2006, Earl partially owned and worked solely at Cipher receiving gross annual wages of $99,944 (2002); $94,953 (2003); $76,664 (2004); $76,856 (2005).*fn2

In 2006, Earl said he worked part of the year at Cipher and worked the remainder of the year at Correct Electric, after selling his interest in Cipher. Earl earned combined gross wages of $70,792 from both Cipher and Correct Electric for in 2006. Earl testified that, in 2007, he earned annual wages at Correct Electric of $70,750 and $71,372 in 2008. Earl testified that, in 2009, his gross income was $71,000, but his annual net income was approximately $50,000, making his monthly net wages from Correct Electric approximately $4,167.

Earl testified about the sale of the marital residence which was authorized through the earlier divorce proceeding in Will County. He stated that he filed a motion in that earlier case asking that the marital residence be listed for sale. At that time, Joanne had been living in the marital residence while Earl was living with Mauk, his girlfriend, at her residence. After the marital home was on the market for a period of time, Earl asked ...


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