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In re Marriage of Hamilton

Court of Appeals of Illinois, Fifth District

June 5, 2019

In re MARRIAGE OF DONALD R. HAMILTON JR., Petitioner-Appellee and Cross-Appellant, and MARY L. HAMILTON, Respondent-Appellant and Cross-Appellee.

          Appeal from the Circuit Court of Monroe County. No. 13-D-13 Honorable Dennis B. Doyle, Judge, presiding.

          Jayni D. Lintvedt, Courtney Clark Law, P.C., 104 Attorney for Appellant

          Blake G. Meinders, Sprague and Urban, Attorney for Appellee

          JUSTICE CHAPMAN delivered the judgment of the court, with opinion. Justices Welch and Cates concurred in the judgment and opinion.



         ¶ 1 Both parties appeal portions of the judgment dissolving their marriage. The respondent, Mary L. Hamilton, argues that (1) the court erred in failing to consider the parties' daughter's activities involving horses as extracurricular activities, (2) the court abused its discretion in ordering the marital home to be sold, (3) the court erred in failing to assign all of the marital debt, (4) the court erred in finding that Mary failed to make a prima facie showing of dissipation, (5) the court erred in failing to award Mary a portion of two retirement accounts liquidated by the petitioner, Donald R. Hamilton Jr. (Don), and (6) the court abused its discretion in denying her request for attorney fees. Don argues that (1) the court abused its discretion in awarding permanent maintenance to Mary and (2) the court abused its discretion in ordering him to pay half of his daughter's private school tuition. We affirm in part, reverse in part, and remand for further proceedings.

         ¶ 2 I. BACKGROUND

         ¶ 3 The parties were married in 1988. They raised three children together: Mary's son from a previous marriage, Tom, and two children born to the parties during their marriage, Donny and Katelyn. When the parties were first married, both worked outside the home, and Mary took college classes. Mary worked for the City of Red Bud as an administrative assistant. Later, however, she took a job in St. Louis. Her employer there paid her tuition. Mary earned an associate's degree and continued to take classes toward a bachelor's degree. At some point, however, the parties decided that Mary should take a job closer to Red Bud, where both Tom and Donny attended school. Mary did so. She stopped taking classes, partly because she no longer had an employer paying her tuition and partly because it gave her more time to devote to her two sons. She never completed her degree.

         ¶ 4 Katelyn, the only child who was still a minor when these proceedings took place, was born in 2000. When she was a year old, the parties agreed that Mary would stop working outside the home and be a stay-at-home mother. Mary did not work outside the home from 2001 until after the parties separated. She did not work full-time until 2014, when she began working as a grant writer for the Lutheran Synod Missouri.

         ¶ 5 In 2010, the parties purchased two horses for Katelyn. There is no dispute that the parties made a joint decision to buy Katelyn her first horse, Star. Later that year, they bought a second horse, Chloe. According to Mary, they agreed to buy a second horse so that Katelyn, who was only 10 years old at the time, could have an adult ride with her. According to Don, the parties discussed buying a second horse for Katelyn because Star was an older horse and Katelyn's equestrian skills would likely improve. He claimed, however, that Mary made the ultimate decision to purchase Chloe before they came to an agreement.

         ¶ 6 The parties owned two pieces of real estate-their marital home and a rental house located on an adjoining property. The tenant in the rental home paid monthly rent of $625.

         ¶ 7 Don moved out of the marital home in November 2010, but did not immediately file a petition for dissolution. He moved back into the marital home in the summer of 2012, but left again three months later. He did not file a petition for dissolution until February 2013.

         ¶ 8 During the period the parties were separated, Mary worked at various temporary jobs, although it is not clear how much time she actually worked. She also applied for permanent jobs with no success. In the fall of 2011, the parties agreed that Mary would home-school Katelyn, who was then going into sixth grade. As mentioned earlier, Mary began working in a full-time position as a grant writer in June 2014. In the fall of 2014, Katelyn enrolled at Lutheran High School South, a private school in Missouri near Mary's workplace.

         ¶ 9 The procedural history of this case is long and complicated. Don filed a petition for dissolution in February 2013. In July 2013, Mary filed a counterpetition for legal separation and motions requesting temporary child support, temporary maintenance, and an award of interim attorney fees. In December 2013, the court ordered Don to pay child support of $971 per month and to pay certain debts owed by the parties, including overdue mortgage payments and property taxes. The court denied Mary's requests for temporary maintenance and interim attorney fees, but it provided that Mary was to retain all of the income from the rental house.

         ¶ 10 In July 2014, Mary filed a petition for civil contempt, alleging that Don failed to make the mortgage and property tax payments as ordered. The court found Don in contempt and ordered him to make the payments, totaling $14, 003.11. In October 2014, Don indicated that he was in the process of withdrawing funds from his retirement accounts in an effort to comply with the court's order. Mary filed a motion to deposit funds. She alleged that she received documents from Don requesting her signature so that he could withdraw a total of $21, 150.38 from two retirement accounts, which exceeded the debt Don was ordered to pay by $7147.27. She asked the court to order Don to deposit the excess funds into the trust account of either party's attorney in order to protect her marital interest in the funds. The court granted the motion, but Don never deposited the funds.

         ¶ 11 The matter first came for a trial on all issues in April 2015. However, after the hearing, the matter was continued for nearly a year to allow the parties to complete further discovery. During this period, Mary filed various motions to compel discovery and motions for sanctions. Don also filed at least one motion for sanctions against Mary. The court ordered Don to pay $400 of Mary's attorney fees, but otherwise denied all motions for sanctions. Temporary child support was raised to $1435 per month in January 2016 due to an increase in Don's income. The parties finally completed discovery in March 2016, and the court held two additional hearings in March and July 2016.

         ¶ 12 Evidence presented at the three hearings showed that Mary's gross income from her job was $4119 per month. Don had a base salary of $4000 per month, but he also earned commissions. His income from commissions fluctuated. The evidence Don presented to the court showed that he had a gross monthly income of $5258 in 2014 and a gross monthly income of $11, 185 in 2015. Don testified, however, that the 2015 figure included a signing bonus from his new job. We will discuss other relevant evidence, along with our discussion of the numerous issues the parties raise.

         ¶ 13 The trial court entered a judgment dissolving the parties' marriage in May 2017. The court incorporated Mary's proposed parenting plan, which gave Mary the majority of parenting time with Katelyn and all decision-making responsibility. The court ordered Don to pay child support and permanent maintenance. In calculating the amount of maintenance, the court found that Don's gross monthly income was $8221, a figure derived from the average of the two years for which he provided income information. In addition to child support, the court ordered Don to pay half of Katelyn's education expenses, but it found that the activities related to Katelyn's interest in horses did not constitute extracurricular activities, and it did not order Don to contribute to the expenses for those activities. The court divided the parties' vehicles and personal property pursuant to the parties' agreement. It awarded both parties their own retirement accounts. It ordered the parties to sell the two pieces of real estate and divide the proceeds after paying any remaining debt. The court divided some of the parties' debts, but Mary contends that it did not divide all of their debts. The court denied Mary's request for attorney fees and rejected her claim of dissipation.

         ¶ 14 Both parties filed motions to reconsider, which the court denied. Both parties then filed timely notices of appeal.

         ¶ 15 II. ANALYSIS

         ¶ 16 A. Expenses for Katelyn's Horses and Related Activities

         ¶ 17 Mary first argues that the court erred in finding that the expenses related to Katelyn's interest in horses did not constitute expenses for extracurricular activities. She acknowledges that whether to order a parent to pay a portion of a child's extracurricular activity expenses is a matter within the discretion of the trial court. She argues, however, that the court did not exercise this discretion due to its erroneous conclusion that Katelyn's horse-related activities were not extracurricular activities. We agree.

         ¶ 18 At trial, Mary, Katelyn, and Don all testified about Katelyn's interest in horses. When Katelyn began her testimony, the court asked Mary's attorney about the relevance of his questions about Katelyn's horses. Counsel explained that Mary was requesting that Don be ordered to pay for half of Katelyn's extracurricular activity expenses. The court asked, "Is it related to school in some way?" Counsel responded, "I don't want to say her scholastic school, no, but it's related to a very big part of her life ***." When Mary testified about Katelyn's activities at a subsequent hearing, the court stated, "I would define extracurricular activities as something to do with education but not being on the curriculum. So hobbies I don't think would be included ***."

         ¶ 19 Katelyn was a 15-year-old high school freshman when she testified at the April 2015 hearing. She testified that she hoped to become an equine veterinarian. To that end, she was involved in hippology, which is the study of all things related to horses. Katelyn took riding lessons and participated in horse camps and drill teams even before her parents bought Star and Chloe for her. Katelyn testified that she and Mary helped care for her horses, which reduced the cost of stabling them somewhat.

         ¶ 20 At a subsequent hearing, Mary testified that Katelyn participated in a hippology program through the 4-H program. She explained that the 4-H program was run by the University of Illinois. Mary further testified that Katelyn competed in statewide competitions related to hippology. These included giving speeches on topics related to horses and participating in a "horse bowl," which is similar to a "scholar bowl." Mary was specifically asked how Katelyn's care for her own horses related to her interest in becoming an equine veterinarian. Mary explained that Katelyn helped care for the horses. She noted that when Star had a deep puncture wound, Katelyn helped the veterinarian by handling the tools used to suture his wound. She also noted that Katelyn massaged Star's wound as it healed, and she administered medication to Chloe. Both Mary and Katelyn acknowledged that Katelyn could participate in many horse-related activities without owning her own horses, and Katelyn acknowledged that she could "probably" volunteer to care for horses at a stable.

         ¶ 21 Even Don acknowledged the importance of horses and horse-related activities to Katelyn. He testified that Katelyn was attached to her horses, and that she was involved in multiple activities related to horses. He noted that he participated in some of these activities with her before the parties separated. Don was specifically asked about Katelyn's participation in extracurricular activities. He replied, "As far as I know, hippology, 4-H. I guess that-that school has a 4-H club. If not, she's doing the 4-H in Waterloo."

         ¶ 22 Mary argues that the court incorrectly defined "extracurricular activities" to include only those activities that relate "specifically to Katelyn's education." She further argues that, even accepting the court's definition of extracurricular activities, Katelyn's horse-related activities fall within that definition. We agree.

         ¶ 23 Resolution of this question requires us to construe the pertinent statute. Our primary goal in statutory construction is to ascertain and effectuate the legislature's intent. The most reliable indicator of that intent is the language of the statute itself. In re Marriage of Suriano, 324 Ill.App.3d 839, 846 (2001). If the statutory language is clear and unambiguous, we must enforce it as written without resort to additional aids of statutory construction. Because statutory construction is a question of law, our review is de novo. Id.

         ¶ 24 The version of the statute in effect when these proceedings took place provided that trial courts may, in their discretion, "order either or both parents *** to contribute to the following expenses, if determined by the court to be reasonable: (a) health needs not covered by insurance; (b) child care; (c) education; and (d) extracurricular activities." 750 ILCS 5/505(a)(2.5) (West 2014). The statute did not define "extracurricular activities."

         ¶ 25 Where there is no statutory definition for a term, it must be given its plain and ordinary meaning. Alvarez v. Pappas, 229 Ill.2d 217, 228 (2008). As Mary notes in her brief, Merriam-Webster's Online Dictionary defines "extracurricular" as "not falling within the scope of a regular curriculum" or "of or relating to officially or semiofficially approved and usually organized student activities (such as athletics) connected with school." See Merriam-Webster's Online Dictionary, (last visited May 30, 2019) []. As both parties note, however, other dictionaries define the term more broadly. For example, defines the term "extracurricular" to mean "outside the regular curriculum or program of courses." See, (last visited May 30, 2019) []. Although these definitions are similar, they differ in one respect-the degree to which an activity must be connected with the participant's school. We will therefore look to other aids of statutory construction.

         ¶ 26 One such aid is subsequent statutory amendments, which may indicate that the legislature intended to clarify the law. See In re Marriage of Blaisdell, 142 Ill.App.3d 1034, 1041 (1986). The version of the child support statute now in effect provides that a court may order a parent to contribute to "the reasonable school and extracurricular activity expenses incurred which are intended to enhance the educational, athletic, social, or cultural development of the child." 750 ILCS 5/505(a)(3.6) (West Supp. 2017). This language reveals a legislative intent to clarify that activities serving the specified purposes fall within the purview of "extracurricular activities" whether or not they are directly connected with a child's school. Because this statutory amendment was intended to clarify the existing statute, it may be applied in this case. See Blaisdell, 142 Ill.App.3d at 1041.

         ¶ 27 We believe that Katelyn's horse-related activities fall within this definition. The activities are clearly intended to enhance Katelyn's educational development, as she pursues her goal of becoming an equine veterinarian. In particular, her participation in contests where she answers questions about hippology or gives speeches about horse-related topics is an activity that is inherently educational in nature, even though it may not be directly related to her current school curriculum. Katelyn's riding activities are also clearly intended to enhance her athletic development. It is worth noting that the 4-H program Katelyn participates in is run through the University of Illinois.

         ¶ 28 We also note that Katelyn's activities are similar to the kinds of extracurricular activities courts have addressed in the past. See, e.g., In re Marriage of Sorokin, 2017 IL App (2d) 160885, ¶ 11 (considering a parent's obligation to contribute to the cost of the children's tutoring, sports programs, clubs, and summer camps); In re Marriage of Moorthy, 2015 IL App (1st) 132077, ¶ 28 (considering a parent's obligation to pay for a child's classes in various sports, hobbies, and academic interests, some of which were offered by the child's school while others were offered elsewhere); In re Marriage of Florence, 260 Ill.App.3d 116, 122 (1994) (addressing a parent's obligation to contribute to the cost of the child's volleyball, softball, swimming, and clarinet lessons). We find that the court erred in determining that Katelyn's horse-related activities were not extracurricular activities.

         ¶ 29 Don argues, however, that "regardless of the definition of the term extracurricular," we may uphold the court's ruling as a proper exercise of its discretion. We disagree.

         ¶ 30 As both parties point out, the decision to order a parent to contribute to expenses incurred for a child's extracurricular activities is a matter within the trial court's discretion. 750 ILCS 5/505(a)(2.5)(d) (West 2014). In addition, the court may only order a parent to contribute to expenses it finds to be reasonable. Id. Here, however, the court did not exercise its discretion at all because it incorrectly determined that Katelyn's activities involving horses were not extracurricular activities. For the same reason, the court did not consider whether any or all of the expenses related to these activities were reasonable.

         ¶ 31 Where, as here, a trial court fails to exercise its discretion due to an erroneous conclusion that it has no discretion, its decision must be reversed. In re Marriage of Wisniewski, 286 Ill.App.3d 236, 243 (1997). We must therefore reverse the portion of the court's order finding that the activities related to Katelyn's interest in horses were not extracurricular activities. On remand, the court must determine whether all or some portion of those expenses are reasonable and whether, in the exercise of its discretion, Don should be ordered to contribute to those expenses.

         ¶ 32 B. Valuation and Disposition of Real Estate

         ¶ 33 Mary next argues that the court erred in ordering the parties to sell the marital home and the rental house. The court ordered this disposition because it found that the parties did not present any competent evidence as to the value of the properties. Mary argues that the court erred in so finding because each of the parties presented evidence of value that was consistent with the evidence presented by the other party. That evidence consisted of Don's testimony as to what he believed the two properties were worth and tax assessment notices for the properties submitted by Mary. Mary further argues that the court abused its discretion in ordering the sale of the marital home because it had been in her family for over 90 years and because awarding the home to Mary, the custodial parent, would have been in Katelyn's best interest. We disagree.

         ¶ 34 Distribution of marital property is a matter within the discretion of the trial court. On appeal, we will not disturb the court's distribution of assets absent an abuse of that discretion. In re Marriage of Tietz, 238 Ill.App.3d 965, 979 (1992). The distribution of assets must be equitable in nature. Id. Although equal distribution "is generally favored" (In re Marriage of Minear, 287 Ill.App.3d 1073, 1083 (1997)), the division "need not be mathematically equal to be equitable" (Tietz, 238 Ill.App.3d at 979).

         ¶ 35 In effectuating an equitable division of property, it is generally helpful for the court to make specific findings as to the value of large assets, such as real estate. See In re Marriage of Woolsey, 85 Ill.App.3d 636, 637 (1980) (explaining that "it would have been preferable for the court to make a specific finding as to the value of the residence"). However, the court is not required to value every asset. In re Marriage of Jerome, 255 Ill.App.3d 374, 392-93 (1994); Woolsey, 85 Ill.App.3d at 637.

         ¶ 36 Valuation of a marital asset is a question of fact to be determined by the trial court. Tietz, 238 Ill.App.3d at 975. In order to determine the value of marital assets, the court must have before it competent evidence of value. In re Marriage of Stone, 155 Ill.App.3d 62, 70 (1987). While there is no rule of law regarding what type of evidence constitutes "competent evidence" of value, the value of real estate is ordinarily proven through the testimony of expert witnesses who have conducted appraisals of the property. See, e.g., In re Marriage of Liszka, 2016 IL App (3d) 150238, ¶ 69; In re Marriage of Schuster, 224 Ill.App.3d ...

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