Court of Appeals of Illinois, First District, First Division
In re MARRIAGE OF MARGARETE EVANOFF, Petitioner-Appellee, and CLAYTON TOMASEK, Respondent-Appellant.
from the Circuit Court of Cook County, No. 10-D-11134; the
Hon. Dominique C. Ross, Judge, presiding.
Toback, of Chicago (Michael G. DiDomenico, of counsel), for
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.
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).
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
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
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,
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
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 ...