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In Re: the Marriage of Rebecca Berberet

August 10, 2012

IN RE: THE MARRIAGE OF REBECCA BERBERET,
PETITIONER-APPELLANT,
DAVID J. BERBERET, RESPONDENT-APPELLEE.



Appeal from Circuit Court of Sangamon County and No. 08D799 Honorable Steven H. Nardulli, Judge Presiding.

The opinion of the court was delivered by: Justice Cook

JUSTICE COOK delivered the judgment of the court, with opinion. Justices Steigmann and McCullough concurred in the judgment and opinion.

OPINION

¶ 1 On May 23, 2011, the trial court entered an order dissolving the marriage of petitioner, Rebecca Berberet, and respondent, David Berberet.

¶ 2 On appeal, Rebecca argues that the trial court (1) abused its discretion in deviating downward from the statutory guidelines David's child support obligation; (2) abused its discretion in equally allocating the tax exemptions for the parties' children; (3) abused its discretion in disregarding David's potential personal injury claim; (4) abused its discretion in failing to find David's use of $21,725.17 of a workers' compensation settlement constituted dissipation; (5) erred in determining that a series of certificates of deposit were non-marital property; (6) erred in determining that the certificates of deposit were not dissipated; (7) erred in valuing David's vehicle at $33,875 and not charging himwith dissipationfor the depreciation of the vehicle's value; (8) abused its discretion in dividing the marital estate without accounting for her outstanding attorney fees; and (9) erred in valuing and distributing the parties' retirement accounts. We affirm.

¶ 3 I. BACKGROUND

¶ 4 In October 1991, Rebecca and David were married. During their marriage, they had three children, Drake (born April 12, 1991), Benjamin (born July 3, 2000), and Meagan (born December 13, 2002). At the time of the dissolution hearing, Rebecca was 43 years old and David was 42 years old.

¶ 5 During the marriage, Rebecca was first employed by Memorial Health Systems. While working for Memorial Health Systems, Rebecca earned a master's degree in business administration. Rebecca then worked as a financial officer for Springfield Obstetric and Gynecological Associates (SOGA). In spring 2011, SOGA merged with Springfield Clinic.As a result of the merger, Rebecca is currently employed as a financial officer by Springfield Clinic. In 2010, Rebecca earned $88,969, including a $1,275 bonus from her employment with SOGA.

¶ 6 In terms of retirement funds, Rebecca has a SOGAprofit-sharing account. In 2009, the account had a value of $30,332. At the time of the dissolution hearing, Rebecca was 80% vested in the retirement account and scheduled to be fully vested in March 2011. Rebecca also has a 401k and profit-sharing account with Springfield Clinic. From her previous employment with Memorial Health Systems, Rebecca has a pension valued at $64,345.

¶ 7 Throughout the marriage, David was employed by the City of Springfield as a full-time police officer. He also worked part-time at Madison Park Place in Springfield. In 2010, David earned $71,744.99 working for the City of Springfield and $6,290 working for Madison Park Place.

¶ 8 David has a City of Springfield pension valued at $216,093. He also has a brokerage account with Edward Jones. He established the account with stock he inherited from his grandfather. At the time of the dissolution hearing, the account was valued at $241,409.

¶ 9 During the marriage, David received three gifts from his grandfather totaling $38,000. He received $12,000 on January 6, 2006; $13,000 on January 13, 2007; and $13,000 on January 13, 2008. Initially, David deposited the checks from his grandfather into the parties' joint account at Springfield City Employees Credit Union (Credit Union). The parties established the account in April 1997. David testified that he did not know that Rebecca's name was on the account; however, Rebecca's signature appears below David's on the documentation establishing the account. David used some of the money gifted to him by his grandfather to pay off the parties' second mortgage and credit card debt.

¶ 10 David also used the money gifted to him by his grandfather to purchase a series of certificates of deposit (CDs). On February 2, 2006, David purchased three CDs at the Credit Union. David withdrew $10,000 from the parties' joint account at the Credit Union to purchase the CDs. The CDs had the same account number as the parties' joint account. On August 2, 2007, David cashed in those CDs and opened two new CDs, one for $7,500 (CD No. 1562) and one for $2,500 (CD No. 1563). On November 5, 2008, David cashed in CD No. 1563. Rebecca's divorce petition was filed the next day. According to David, he used monies liquidated in 2008 to pay duck hunting lease fees of $1,250 and to pay a retainer to his attorney. David liquidated CD No. 1562 to open college funds for the parties' three children.

¶ 11 On February 8, 2007, David purchased with funds from the parties' joint account at the Credit Union a CD for $5,000 (CD No. 1492)and rolled over the CD (CD No. 1654). On May 5, 2008, David closed CD No. 1654.

¶ 12 On March 16, 2007, David purchased with funds from the parties' joint account a CD for $10,000 (CD No. 1507) and eventually purchased CD No. 1690 for $3,000 and CD No. 1691 for $2,000. A check was issued for $5,000 on April 2, 2008. CD No. 1691 was closed on July 27, 2009. David testified that he used the money to take the children on a vacation to Minnesota. On November 25, 2008, CD No. 1690 was closed.

¶ 13 On September 19, 2007, David purchased CD No. 1586 for $2,500. Approximately a month later, the CD was closed to help fund the children's college fund.

¶ 14 On November 6, 2008, Rebecca filed a petition for dissolution of marriage. In June 2009, the couple started living in separate homes.

¶ 15 On August 5, 2009, the trial court issued a temporary order setting forth David's child support obligation. The court determined that David's net monthly income from his City of Springfield job was $4,033 and set his temporary child support obligation at $1,290 per month. At that time, the court also denied David's request for a downward deviation in child support.

¶ 16 In February 2010, the City of Springfield paid David a workers' compensation settlement of $46,786.81, because of a shoulder injury he received while undergoing police training in March 2006. On February 18, 2010, after attorney fees were paid, David deposited the remaining $36,401.05 from his workers' compensation settlement into a Credit Union account. From that account, David made numerous cash withdrawals. David testified that he made the withdrawals to pay rent, attorney fees, credit card debit, and normal expenses. He also claims that he used the money to take three vacations, including a family trip to Minnesota. As of the end of 2010, there was $14,675.88 in the account.

¶ 17 In July 2010, after his vehicle was totaled in a car accident, David purchased a 2010 Chevy Tahoe for $43,855. The cash price was reduced by $4,496.79, because David received an allowancefrom points on the parties' joint GM credit card. David also applied insurance proceeds of $24,000 to the vehicle's purchase price. The court valued David's vehicle at $33,875, the Kelly Blue Book value for the vehicle in "good condition."

¶ 18 At the time of the dissolution hearing, David had talked to an attorney about the success of filing a personal injury claim to recover damages for the back pain he experienced after the car accident. David testified that, as of the dissolution hearing, his attorney had not taken any action on his behalf.

¶ 19 In September 2010, Rebecca opened a Bank of Springfield account with $29,085.46 in settlement proceeds she received from a personal injury claim against Bausch & Lomb. That same month, she also purchased a 2010 Honda Odyssey for $31,926. The court valued Rebecca's vehicle at $31,945.

¶ 20 On January 7 and 11, 2011, a dissolution hearing was held.

¶ 21 On January 19, 2011, Rebecca filed a motion for contribution to attorney fees. At the time, Rebecca owed $11,455.50 in attorney fees and had paid $6,440 in fees. No hearing was conducted on the motion.

¶ 22 On April 5, 2011, the trial court issued a memorandum of opinion. The court concluded that Rebecca's salary was $7,321.97 per month and David's salary was $5,987.75 per month from the City of Springfield. In addition to his salary as a police officer, David earned $524.17 per month from Madison Park Place and $3,808 in yearly income from non-marital assets.The court determined that David's net pay was $4,479 per month and the guideline amount of child support for the three children was $1,433.

¶ 23 The trial court ordered David to pay Rebecca $1,000 per month in child support, which amounted to a downward deviation from the 32% required under section 505(a)(1) of the Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/505(a) (West 2008)). The court stated that it was deviating from the statutory guidelines, because "application of the child support guidelines would result in two extremely disparate financial households." In making its determination, the court found that, before the award of child support, Rebecca's net income exceeded David's net income by $1,123 per month. The court further determined that awarding Rebecca the guideline amount of support would result in her net monthly income exceeding David's by $4,000 (difference between $7,035 per month and $3,046 per month). The court also found that "[i]f the support guidelines were applied, David would be substantially unable to participate in the children's school, athletic and social activities or to enjoy any recreational activities with the children."In addition to his child support payment, the court ordered David to continue providing health insurance coverage for the children.

¶ 24 The trial court allotted David and Rebecca each one child as a tax dependency exemption and ordered that the exemption for the third child be alternated, from year to year, between them.

ΒΆ 25 Thetrial court intended to apportion the marital estate equally between the parties. The court divided ...


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