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In Re Marriage of Sharyl L. Smith

December 18, 2012


Appeal from the Circuit Court of McHenry County. No. 08-DV-1193 Honorable Michael J. Chmiel Judge, Presiding.

The opinion of the court was delivered by: Justice Birkett

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

Presiding Justice Burke and Justice Schostok concurred in the judgment and opinion.


¶ 1 Respondent, Lloyd A. Smith, appeals from an order of the trial court granting petitioner Sharyl L. Smith's petition for dissolution of marriage. On appeal, Lloyd contends that the trial court erred in granting him maintenance of only $200 per month for two years. On cross-appeal, Sharyl argues that the trial court erred in: (1) granting Lloyd child support equal to 20% of her net income, when the parties shared custody of their minor child; and (2) in response to Lloyd's posttrial motion for reconsideration, distributing her 401(k) equally between the parties, without first reevaluating the parties' property distribution. For the following reasons, we affirm the trial court's order granting Lloyd maintenance in the amount of $200 per month for two years. However, we reverse the trial court's orders awarding Lloyd child support equal to 20% of Sharyl's income and dividing Sharyl's 401(k) equally between the parties. Finally, we remand this cause for further proceedings consistent with this opinion.

¶ 2 I. FACTS

¶ 3 The record reflects that the parties married on August 2, 1982. Three children were born to the marriage, but at the time of trial, only one child was a minor, 12-year-old Alyssa. Sharyl filed a petition for dissolution of marriage on December 19, 2008. On December 2, 2009, the parties entered into a joint parenting order, which designated neither party as the primary residential parent and allowed each party visitation on alternating weekends and half the week days.

¶ 4 On April 9, 2010, Sharyl's counsel submitted to the trial court a "joint trial memorandum," which outlined the contested and noncontested issues for trial. In that memorandum, the parties stipulated that Lloyd was "disabled and receiving Social Security benefits." The memorandum did not indicate whether Lloyd's disability was temporary or permanent. The memorandum was not signed by the parties or their counsel.

¶ 5 In opening statements at trial, Sharyl's counsel represented that Sharyl had stipulated that Lloyd was currently disabled. Sharyl testified that she was 47 years old, she had a high school education, and she had attended two years of technical school at the SwedishAmerican Hospital in Rockford. She received a certification in radiology and was currently employed as a registered computerized tomography (CT) technologist at Centegra Hospital.

¶ 6 Sharyl testified that she suffers from several diseases. She has a medical condition known as idiopathic thrombocytopenia (ITP), which causes her platelets to drop. At the time of trial, Sharyl's platelets were stable, but lower than normal. She said that, if her platelets were to drop to zero, she might have to go through a round of chemotherapy or have her spleen removed. She also has a liver disease, which was triggered by a portal vein thrombosis. Further, she is in the early stages of cirrhosis, but it is not alcohol-related. Sharyl also has diabetes, high blood pressure, and gastroesophageal reflux disease. Finally, she said that she has a hiatal hernia that needs to be fixed, and she has a lap band that needs to be surgically removed because it is causing nausea and vomiting.

¶ 7 According to Sharyl, her liver condition is possibly life-threatening. She might need a liver transplant in the future due to her cirrhosis. She believes that her health is worse than Lloyd's health. She is nauseated on a daily basis and she vomits all the time. She is able to work, but it is very difficult. With regard to medications, she is currently taking Lantus, Novolog, Bystolic, Aciphex, and Reglan. She is an insulin-dependent diabetic and takes insulin after every meal and at nighttime.

¶ 8 Sharyl has worked full time for Centegra for 271/2 years. She typically works 80 hours per pay period (every two weeks), with overtime. Her current rate of pay is $37.13 per hour. Beginning on April 1, 2010, however, her employer cut her hours to 72 per pay period. She also said that she is not currently able to get overtime. She has been the primary provider for the family during the entire marriage.

¶ 9 Although she stipulated that Lloyd is currently disabled, Sharyl does not believe that he is permanently disabled. She thinks that he could get a "desk job" where he would be allowed to get up and go to the restroom as needed. He also could work out of the home as a medical coder if he were trained. She said that the last time Lloyd worked was in April 2000. Throughout the marriage Lloyd was employed "off and on." When he was working, he was a warehouseman at Tru Serve and made $12 per hour. Sharyl thinks that the most money Lloyd ever made in one year was around $16,000. She worked overtime so that they could pay the bills.

¶ 10 Sharyl's group exhibit 9, which contained copies of the parties' joint tax returns, was then entered into the record. Their 2007 tax return indicated that Sharyl's gross income for that year was $72,465, and Lloyd received $13,196 from Social Security. In 2008, Sharyl's gross income was $76,030, and Lloyd received $13,817 from Social Security. In 2009, Sharyl's gross income was $74,928; Lloyd received $14,621 from Social Security. In addition, Lloyd receives a Social Security allotment for Alyssa because he is receiving Social Security disability. At the time of trial, Lloyd was receiving $609 per month from Social Security for Alyssa. Sharyl said that Alyssa's Social Security allotment goes into the parties' joint checking account, which she does not use. The money in the joint checking account is for Lloyd's use only and he is supposed to be using the money for Alyssa and himself. Sharyl does not use those funds to pay any of the bills. Sharyl said that her income would be lower in 2010 because her hours were reduced by 10%. In addition to this reduction, her employer is now sending her home on "low census" days. She sometimes has to use her vacation time to supplement her pay.

¶ 11 Sharyl currently lives in the marital residence in Harvard. It is a ranch house with cedar siding. The siding needs to be stained and part of it needs to be replaced. There are boards pulling away from the house that need to be replaced. Sharyl thought that the parties could partially repair and stain the boards to make the house look decent if it had to go on the market, but she estimated that it would cost at least $500 to $1,000. The house also has windows that leak air, and the carpet is in bad shape. The parties purchased the home in May 1998. Sharyl said that it still has the original roof, which will eventually need to be replaced.

¶ 12 Sharyl testified that she and Lloyd bought the marital house for $115,000 and took out a $107,000 mortgage on it. The original mortgage payment was $950 per month. They currently owe $102,900 on the first mortgage, and $25,000 on a second mortgage. The interest rates are 9.8% on the first mortgage and 12% on the second mortgage. Currently, the payment on the first mortgage is $990, and the payment on the second mortgage is $629.33. Taxes are an additional $300 per month. According to Sharyl, their total mortgage balance increased since 1998 because of the money Lloyd had taken out for gambling. Sharyl said that if the court ordered her to pay $1,000 per month for child support and maintenance she would lose the house.

¶ 13 Sharyl said that in 1998 or 1999 she came home from work one day and noticed a credit card with her name on it that she did not know she had. According to Sharyl, Lloyd "took it out" and had put her name on it. Sharyl said that at one point they had $35,000 in credit card debt and that she had incurred only $1,000 to $2,000 of that amount.

¶ 14 Sharyl had discussed with Lloyd his gambling at the dog track. In response, she said, Lloyd told her that he could go to the dog track anytime he wanted. He went to the dog track at least three to four times a week. In 2006, the parties filed for bankruptcy. According to Sharyl, medical bills, Lloyd's gambling debt, and their credit card debt caused the bankruptcy. Between $40,000 and $50,000 in debt was discharged through the bankruptcy in 2007.

¶ 15 Sharyl testified that she had a 401(k) through her employer. On two occasions, she took loans against her 401(k). In December 1999, she took out $12,427 for a hardship loan that she did not have to pay back. She needed the hardship loan in order to save the house, because the parties were late on their mortgage payment. If she had not gotten the loan, they would have lost the house.

¶ 16 In 2000, Sharyl took out another loan of $15,000 for home improvement, but only $8,000 was used for that purpose. The remainder of the loan money was used to pay a few bills, and the rest was squandered on Lloyd's gambling debts. Sharyl paid back that loan by having $132 withdrawn from each paycheck for five years.

¶ 17 From 1998 until around 2003 Lloyd received $300 a week in temporary disability payments from workers' compensation. Lloyd used a portion of that money to pay the second mortgage and he used the rest as he deemed fit. Sharyl said that Lloyd told her that it was his money and he could do whatever he wanted with it. He used the money for gambling. In 2003, Lloyd received a lump sum of around $12,000 from Social Security. With that money he bought his oldest daughter a car for $5,000. The remainder was spent on gambling at the dog track.

¶ 18 Sharyl said that Lloyd receives $1,109 every month from Social Security, plus Alyssa's $609 per month. Lloyd uses about half that amount to pay household bills, but Sharyl does not know what he does with the remainder of the money. She has asked him for more help financially, but he has refused.

¶ 19 Sharyl identified exhibit 16, which was her financial affidavit, listing all her expenses. She said that she makes a decent amount of money, but she barely has any left over at the end of the month because of all the bills she must pay. She also identified exhibit 22, which was a summary of the parties' joint checking account. She did not write any of the checks listed in the exhibit; some were checks that Lloyd wrote to himself for cash each month, and the amount varied from $200 to $600. Lloyd never told Sharyl what he did with the money, and he never gave her any of the cash to pay household expenses.

¶ 20 Sharyl also identified exhibit 13, which showed her gross pay year-to-date figure of $21,087.04 as of April 3, 2010. When asked whether that figure accurately reflected an annual salary of $82,760.96, Sharyl responded that she disagreed with that computation because it was based upon an 80-hour pay period, and as of April 1, 2010, she was down to a 72-hour per pay period. The reduction in work hours would result in an annual salary of about $69,500, with an additional amount in 2010 because she was able to work 80 hours per pay period from January through April 1 of 2010.

¶ 21 Sharyl had $128,000 in her Fidelity retirement account at the time of trial. This was the only investment account that Sharyl owned.

¶ 22 Lloyd testified that he was 50 years old and he had three years of college education. From around 1987 until 2000 he worked as a warehouseman at Tru Serve in Harvard. He earned $12 per hour, which was approximately $20,000 per year. Around April 3, 2000, he was pulling a chimney pot off a pallet onto a cart and his back "went out." As a result of the accident he received a lump sum of $18,000 in Social Security benefits in 2003. When asked what he did with the money, Lloyd said that he bought his oldest daughter a car with some of it, and used the remainder to finish the basement of the marital home.

¶ 23 Lloyd said that he began receiving workers' compensation payments for his injuries in April 2000. About six months before trial, he received a lump-sum workers' compensation settlement of around $114,000. Pursuant to an agreement with Sharyl, each of the parties took $10,000, and the balance of $94,397.51 remained on deposit at First Midwest Bank. Lloyd testified that his net monthly income after federal taxes was $1,471.35 and that $600 of that amount was allotted for Alyssa.

¶ 24 Lloyd testified that he receives Medicare Parts A and B, which provide coverage for hospitals and doctors. He thought he was eligible for Medicare Part D, which would cover prescriptions, but he had not applied for it, because it was too expensive. He did not know the cost of Medicare Part D, but he knew that he would have to spend $4,500 out-of-pocket before any benefits would begin. He spent between $300 and $400 per month on prescriptions.

¶ 25 Lloyd said that from 2000 to 2005 he went to the dog track two to three times per week. He spent about $40 to $60 each time he went to the track. He said that he generally broke even on his bets, but he estimated that he won over $600 on around 20 occasions. However, those winnings were split with a friend.

¶ 26 Lloyd testified about the figures listed in his financial affidavit. Lloyd explained that his $800-a-month grocery bill was high because Alyssa was very picky and liked fast food. According to the figures, Lloyd's monthly expenses exceeded his available income by $4,800. He was requesting permanent maintenance because he will never be able to work again.

¶ 27 Lloyd said that he was planning to use the money he received from the workers' compensation settlement as a down payment on a house that he had picked out. The house was listed at $118,000 and he was going to put in an offer of $100,000 for it. He said that he was willing to go as high as $108,000 to purchase the home. He acknowledged that since there was only $94,000 left in the workers' compensation settlement he would have to get a mortgage to make up the difference for the cost of the house. The utility expenses set forth in his financial affidavit were estimates based upon what he believed he would be spending in his new home, in light of the utility expenses in the marital home. Since his financial affidavit showed a $4,800-a-month deficit and he was going to use all of his workers' compensation settlement to purchase a new house, he would need maintenance from Sharyl to meet his monthly living expenses.

¶ 28 Lloyd then testified about his health and the effect that it had on his ability to provide for himself. He has degenerative disc disease, specifically, a failed fusion at L5/S1, and a bulging disc at L4/L5. That condition causes his left foot to go numb on occasion. He also has lumbar neurogenic bladder, which was caused when nerves were cut during surgery on his back in 2001. As a result, he has to use the restroom around every 30 minutes. He also has high blood pressure, diabetes, gastroesophageal reflex disease (GERD), depression, and asthma. Further, he listed one of his medical conditions as arachnoiditis, although he could not define that condition. According to Lloyd, as a result of these ailments, he is unable to earn a living. He disagrees with Sharyl that he could hold a job. He said that he has been adjudicated disabled by the Social Security Administration, but he did not believe that the Social Security payments he received were sufficient for him to live on. When asked by his counsel what he thought was the purpose of the workers' compensation settlement, Lloyd answered that he believed that the money was to be used to live on for the rest of his life because he can no longer work.

¶ 29 On cross-examination, Lloyd testified that he knew that Sharyl took out two loans against her 401(k) and that she paid bills with the money, but he did not know if she paid off credit card debt with the money. With regard to Sharyl's testimony that she found a credit card in her name that she knew nothing about, Lloyd said that he did not recall that event. He also did not recall Sharyl giving him information on state programs that could potentially cover his prescriptions. He admitted that she had talked to him about the state programs, but he said that she never gave him any information on them.

ΒΆ 30 Lloyd admitted that at the time of trial Sharyl paid almost all the bills with her salary, except for the cable and the garbage bills. He also admitted that although his financial affidavit listed his monthly expenses as $4,800 in excess of his income, that total was based upon expenses that he would have if he purchased a home. When asked whether he had ever given Sharyl money from his Social Security payments to help pay the household expenses, he ...

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