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In re Marriage of Evanoff

Court of Appeals of Illinois, First District, First Division

June 27, 2016

In re MARRIAGE OF MARGARETE EVANOFF, Petitioner-Appellee, and CLAYTON TOMASEK, Respondent-Appellant.

         Appeal from the Circuit Court of Cook County, No. 10-D-11134; the Hon. Dominique C. Ross, Judge, presiding.

          Lake Toback, of Chicago (Michael G. DiDomenico, of counsel), for appellant.

          Appeal Weiman Silberman, LLC, of Chicago (Michael A. Weiman, of counsel), for appellee.

          JUSTICE HARRIS delivered the judgment of the court, with opinion. Presiding Justice Cunningham and Justice Connors concurred in the judgment and opinion.



         ¶ 1 In September 2014, the circuit court entered a judgment dissolving the marriage of petitioner, Margarete Evanoff, and respondent, Clayton Tomasek. In its judgment, the court made several factual findings, ordered maintenance be paid to respondent, and divided the marital assets and debts. The court found respondent to be earning $28, 500, but based on his skills, age, and experience imputed an additional $11, 500 to him for a total income of $40, 000. Based on this, the court awarded respondent $4300 a month in permanent maintenance. The circuit court ordered the parties to equally split the proceeds from the sale of the marital residence. The circuit court rejected respondent's dissipation claim regarding the use of stock obtained during the marriage to fund the parties' children's college education. The court also rejected his dissipation claim related to petitioner's use of funds from the home equity line of credit. With the exception of the two pieces of real property owned by the parties, the court divided the marital assets roughly 60/40 in favor of respondent. During the proceedings, petitioner acknowledged she received distributions on an irregular basis as a former partner at Arthur Andersen. The judgment did not address these payouts but on respondent's motion to reconsider, the court ordered the proceeds split 50/50. This same order also vacated the portion of the divorce judgment which allowed petitioner to claim the dependency tax exemptions. After reconsideration, the court decided to defer to the Internal Revenue Service guidelines on the subject.

         ¶ 2 Respondent challenges virtually every aspect of the judgment on appeal. He argues the circuit court (1) erred in imputing income to him, (2) erred in not averaging the income of Evanoff, (3) erred in the valuation of the martial residence, (4) erred in the calculation of Evanoff's capital account, (5) erred in finding no dissipation on the part of Evanoff, (6) erred in its distribution of the martial estate, (7) erred in its maintenance award to Tomasek, (8) erred in the awarding of attorney fees, (9) erred in the allocation of dependency tax exemptions, and (10) erred in failing to require Evanoff to provide notice to Tomasek of when distributions are made from Arthur Andersen. For the following reasons we affirm the judgment of the circuit court in all respects.

         ¶ 3 JURISDICTION

         ¶ 4 The circuit court entered its judgment for dissolution of marriage on September 24, 2014. On October 14, 2014, respondent filed a motion to reconsider the judgment and a motion to reopen the proofs. On December 4, 2014, the circuit court denied the motion to reopen proofs, but took the motion to reconsider under advisement. On January 5, 2015, respondent filed his first notice of appeal. On January 25, 2015, the circuit court entered an order disposing of the motion to reconsider. On February 13, 2015, respondent filed his second notice of appeal. On March 11, 2015, we granted respondent's motion to consolidate the two appeals. Accordingly, this court has jurisdiction over this matter pursuant to article VI, section 6, of the Illinois Constitution and Illinois Supreme Court Rules 301 and 303. Ill. Const. 1970, art. VI, § 6; Ill. S.Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. May 30, 2008).

         ¶ 5 BACKGROUND

         ¶ 6 The petitioner, Margarete Evanoff (Evanoff), and respondent, Clayton Tomasek (Tomasek), were married on July 7, 1990. They have three children, all of whom are now emancipated. At the time of the marriage, both parties were pursuing independent careers, with Evanoff pursuing a career in financial services consulting and Tomasek pursuing his career as a professional musician and recording artist.

         ¶ 7 Evanoff filed a petition for a dissolution of marriage on November 15, 2010. Tomasek filed his response on December 9, 2010. By agreement, the parties separated in September, 2011. The parties then proceeded with three years of prejudgment litigation. On February 15, 2013, Tomasek filed a notice of intent to claim dissipation. It alleged that from November 16, 2010, to December 9, 2013, Evanoff withdrew $121, 092 from the parties' Wells Fargo account and deposited it into a 529 college account for one of the parties' daughters. It further alleged that from November 16, 2010, to December 9, 2013, she also withdrew $126, 316.25 from the parties' Wells Fargo account and deposited it into a 529 college account for the parties' other daughter. On February 20, 2013, Evanoff filed her response denying the allegations of dissipation. The case proceeded to trial on October 8, 2013. Only three witnesses were called to testify at trial: Tomasek, Evanoff, and a third party, Laura Baratto.[1]

         ¶ 8 The parties agreed that Evanoff was the primary bread winner for the family throughout the marriage. Evanoff became employed at Arthur Andersen as a consultant prior to the marriage, eventually reaching the level of partner. Evanoff lost her job when Arthur Andersen collapsed following the Enron scandal in 2002. After the collapse of Arthur Andersen, Evanoff became employed at KPMG BearingPoint. Evanoff was at KPMG BearingPoint for three years before moving to a position at Accertive Health, a small privately held corporation. As part of her compensation for agreeing to work there, Evanoff received stock options that she could exercise if the company ever went public. Evanoff was at Accertive Health for about a year before losing her position. After a brief gap in her employment, Evanoff became a partner at Deloitte, where she currently works.

         ¶ 9 As part of becoming a partner at Deloitte, Evanoff was required to borrow approximately $400, 000 to fund the formation of her capital account. Evanoff testified that her compensation from Deloitte and the value of her capital account vary based on the number of "units" the partnership committee assigned to her. Evanoff testified that the number of "units" she receives is based on her performance as evaluated by the committee. She explained that she does not participate in the evaluation and has no input over whether her "units" are increased or decreased. As an example, Evanoff testified that at the beginning of 2011 she had 500 units but that was subsequently reduced by the committee to 400 before the end of the year. At the time of trial, the parties stipulated she earned $348, 880 annually.

         ¶ 10 When the parties first met, Tomasek worked as a box office manager at The Vic theater in Chicago. Shortly before marriage, Tomasek's band, Slammin Watusis, signed a record contract with Epic Records. Tomasek was also part of a band named Green. As part of both bands, Tomasek toured both nationally and internationally. Evanoff and the parties' minor son joined Tomasek on many of the international tours, though after 1995 his career began to wane. The parties disputed the length of Tomasek's musical career but agreed that if he made any money, it was nominal at best. During the divorce proceedings itself, Tomasek was employed by Cora Italian Specialties in "warehouse/sales, " for which he received both an hourly wage and a commission from his sales. When the judgment was entered, he was making $28, 500 annually.

         ¶ 11 The parties had three children during the course of the marriage: DCT (23 years old when the judgment was entered), AMT (20 years old when the judgment was entered), and ADT (18 years old when the judgment was entered). The circuit court found that while the children were young, the parties shared domestic responsibilities. The testimony of the parties at trial confirmed this. Tomasek bore the responsibilities of raising the children during the day, while Evanoff would often watch the children at night and weekends while Tomasek performed or practiced with his bands. While finding that the parties shared domestic responsibilities, the circuit court acknowledged that Tomasek often took on a larger portion of those domestic responsibilities.

         ¶ 12 In 2003, the parties moved to the marital residence in Riverside, Illinois. The parties lived a comfortable, but not extravagant lifestyle. The testimony of the parties demonstrated that Evanoff's income was used to support the family. She also was responsible for handling the family's finances and investment with little input from Tomasek. The record reflects that Tomasek rarely concerned himself with the finances of the family and never objected to Evanoff's handling of them.

         ¶ 13 Child support was not an issue as the parties' children were no longer minors. However, the parties disputed how they would fund the daughters' college education. During the breakdown of the marriage, Evanoff did use the sale of the Accertive Health stock to fund the daughters' college funds. Based on this, Tomasek filed a notice of dissipation alleging that the transfer of the funds to the daughter's 529 accounts constituted dissipation under the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/101 et seq. (West 2012)). Also included in this motion was a claim for dissipation related to Evanoff's purchase of a new Porsche after the breakdown of the marriage.

         ¶ 14 At trial, Evanoff testified that during the marriage, the parties discussed and agreed to using the Accertive Health stock to fund the children's college expenses. Tomasek acknowledged having such discussions, but disputed that the parties ever came to an agreement. However, he admitted that he did not want his children to have to take out loans to fund their education but had not personally made any provisions for paying the cost of college. At the start of trial, he testified that their education could be funded from marital assets but later stated the funds should come from wife's future income and not from the marital estate.

         ¶ 15 Based upon the testimony of the parties and the evidence presented at trial, the circuit court entered a divorce judgment dissolving the marriage. The judgment awarded Tomasek $4300 a month in permanent maintenance. As part of this, the court imputed an additional $11, 500 to Tomasek's income based on his education, skill, and experience. The court ordered a 50/50 split of the proceeds from the sale of the marital residence along with the sale of unimproved land the parties owned in Colorado. The court held Evanoff responsible for all costs related to the residence until it was sold. The court awarded Tomasek the following assets: (1) Evanoff's Wells Fargo 401(k)-$512, 654.57; (2) Vanguard Deloitte Profit Sharing-$237, 339.07; (3) Tomasek's Wells Fargo 401(k) $2, 181.06 and; (4) 2011 GMC Acadia-$21, 320. Evanoff was awarded the following: (1) Vanguard Deloitte Profit Sharing-$244, 609.79; (2) Wells Fargo Command Savings-$24, 801.12; Wells Fargo Command Checking-$1, 817.41; Wells Fargo Command Investments $29, 610.91; Chase Bank Savings-$2, 274.91; Deloitte Capital Account $162, 750; and 2012 Porsche Cayenne-$49, 799. This represented a roughly 60/40 split of the marital assets in favor of Tomasek.

         ¶ 16 The court denied Tomasek's claim of dissipation related to the use of the Accertive Health stock to fund the daughters' college education. The court also rejected his claim of dissipation related to the purchase of the Porsche. The circuit court found that outside of the debt related to the marital residence, the marital debt was $14, 500 on Tomasek's Capital One credit card and Evanoff's capital account loan. The credit card debt was for Tomasek's attorney fees incurred during the proceedings, and the court ordered him solely responsible for paying it off. The court awarded Tomasek $15, 000 toward his attorney fees.

         ¶ 17 The court ordered each party responsible for maintaining his or her own medical coverage, but Evanoff remained solely responsible for obtaining health insurance for the children until their graduation from college. The parties are held jointly responsible for any uncovered medical expenses. Finally, the ...

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