{ "id": 3524188, "name": "In re MARRIAGE OF DONNA JEAN SMITH, Petitioner-Appellee, and CARROLL EUGENE SMITH, Respondent-Appellant", "name_abbreviation": "In re Marriage of Smith", "decision_date": "1984-11-28", "docket_number": "No. 2\u201483\u20140907", "first_page": "1017", "last_page": "1028", "citations": [ { "type": "official", "cite": "128 Ill. App. 3d 1017" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "409 N.E.2d 321", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "87 Ill. App. 3d 651", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3180521 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/87/0651-01" ] }, { "cite": "419 N.E.2d 924", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "94 Ill. App. 3d 361", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3124707 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/94/0361-01" ] }, { "cite": "468 N.E.2d 490", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "495" } ], "opinion_index": 0 }, { "cite": "127 Ill. App. 3d 102", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3563335 ], "pin_cites": [ { "page": "110" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/127/0102-01" ] }, { "cite": "407 N.E.2d 1045", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "85 Ill. App. 3d 773", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3192595 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/85/0773-01" ] }, { "cite": "443 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "6" } ], "opinion_index": 0 }, { "cite": "110 Ill. App. 3d 838", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2999641 ], "weight": 2, "pin_cites": [ { "page": "845" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/110/0838-01" ] }, { "cite": "462 N.E.2d 30", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "37-38" } ], "opinion_index": 0 }, { "cite": "122 Ill. App. 3d 1001", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3521985 ], "pin_cites": [ { "page": "1012-13" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/122/1001-01" ] }, { "cite": "102 S. Ct. 1751", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1984, "opinion_index": 0 }, { "cite": "72 L. Ed. 2d 162", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1984, "opinion_index": 0 }, { "cite": "456 U.S. 905", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6199776, 6200192, 6201027, 6199945, 6201484, 6201709, 6200404, 6200629, 6200828, 6201212, 6199583 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/us/456/0905-02", "/us/456/0905-04", "/us/456/0905-08", "/us/456/0905-03", "/us/456/0905-10", "/us/456/0905-11", "/us/456/0905-05", "/us/456/0905-06", "/us/456/0905-07", "/us/456/0905-09", "/us/456/0905-01" ] }, { "cite": "87 Ill. 2d 174", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3031137 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/ill-2d/87/0174-01" ] }, { "cite": "427 N.E.2d 1262", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "1267" } ], "opinion_index": 0 }, { "cite": "100 Ill. App. 3d 1126", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5497771 ], "weight": 2, "pin_cites": [ { "page": "1132" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/100/1126-01" ] }, { "cite": "398 N.E.2d 126", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "78 Ill. App. 3d 1123", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5602393 ], "pin_cites": [ { "page": "1127" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/78/1123-01" ] }, { "cite": "457 A.2d 688", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 7989274 ], "opinion_index": 0, "case_paths": [ "/a2d/457/0688-01" ] }, { "cite": "280 S. C. 347", "category": "reporters:state", "reporter": "S.C.", "case_ids": [ 2150204 ], "weight": 2, "pin_cites": [ { "page": "585" } ], "opinion_index": 0, "case_paths": [ "/sc/280/0347-01" ] }, { "cite": "652 S.W.2d 690", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9950479 ], "weight": 2, "pin_cites": [ { "page": "692" } ], "opinion_index": 0, "case_paths": [ "/sw2d/652/0690-01" ] }, { "cite": "514 S.W.2d 114", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10121530 ], "weight": 3, "pin_cites": [ { "page": "115" }, { "page": "115" } ], "opinion_index": 0, "case_paths": [ "/sw2d/514/0114-01" ] }, { "cite": "386 N.E.2d 517", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "68 Ill. App. 3d 513", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3305975 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/68/0513-01" ] }, { "cite": "441 N.E.2d 1283", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "110 Ill. App. 3d 864", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2997388 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/110/0864-01" ] }, { "cite": "448 N.E.2d 545", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "548" } ], "opinion_index": 0 }, { "cite": "114 Ill. App. 3d 47", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3591057 ], "weight": 2, "pin_cites": [ { "page": "50" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/114/0047-01" ] }, { "cite": "465 N.E.2d 151", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "pin_cites": [ { "page": "154" } ], "opinion_index": 0 }, { "cite": "125 Ill. App. 3d 1", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3633869 ], "weight": 4, "pin_cites": [ { "page": "6" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/125/0001-01" ] }, { "cite": "429 N.E.2d 1334", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "1339" } ], "opinion_index": 0 }, { "cite": "102 Ill. App. 3d 938", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3074135 ], "weight": 2, "pin_cites": [ { "page": "944" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/102/0938-01" ] }, { "cite": "464 N.E.2d 795", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "124 Ill. App. 3d 401", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3430197 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ill-app-3d/124/0401-01" ] }, { "cite": "463 N.E.2d 773", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1984, "opinion_index": 0 }, { "cite": "123 Ill. App. 3d 710", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5678853 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/ill-app-3d/123/0710-01" ] }, { "cite": "410 N.E.2d 572", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "88 Ill. App. 3d 380", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3176564 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/88/0380-01" ] }, { "cite": "453 N.E.2d 1357", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1980, "opinion_index": 0 }, { "cite": "117 Ill. App. 3d 844", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3481234 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-app-3d/117/0844-01" ] }, { "cite": "453 N.E.2d 866", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1983, "opinion_index": 0 }, { "cite": "117 Ill. App. 3d 313", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3483210 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/ill-app-3d/117/0313-01" ] }, { "cite": "426 N.E.2d 1087", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "opinion_index": 0 }, { "cite": "100 Ill. App. 3d 452", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5501239 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/ill-app-3d/100/0452-01" ] } ], "analysis": { "cardinality": 1135, "char_count": 29494, "ocr_confidence": 0.751, "pagerank": { "raw": 4.5236044836091766e-07, "percentile": 0.9237090656636738 }, "sha256": "689c5d4f1236162fe1e3ce66cb126d0ab04c0b5d4551ed29c8d8d04d2a16ba05", "simhash": "1:1f8eb01c3143ce66", "word_count": 4746 }, "last_updated": "2023-07-14T16:34:57.846352+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re MARRIAGE OF DONNA JEAN SMITH, Petitioner-Appellee, and CARROLL EUGENE SMITH, Respondent-Appellant." ], "opinions": [ { "text": "JUSTICE LINDBERG\ndelivered the opinion of the court:\nRespondent, Carroll Eugene Smith, 55, appeals from an order of the circuit court of Winnebago County which dissolved his marriage to petitioner-appellee Donna Jean Smith, 54, apportioned their marital property and obligated respondent to pay $3,500 to petitioner\u2019s attorney. Respondent contends the trial court abused its discretion in concluding that he dissipated at least $50,000 in marital assets, in apportioning the parties\u2019 marital property, and in ordering him to pay one-half of petitioner\u2019s attorney fees. Since we conclude the trial court committed no reversible error, we affirm.\nPetitioner and respondent were married on May 27, 1949. The parties\u2019 three children all have attained the age of majority, but one child continues to live with petitioner. Neither party began the marriage with any assets. Petitioner worked full-time outside the home for one year and then became a homemaker for the duration of their marriage. Respondent worked as a tool and die maker until 1973, when he quit that work to manage the parties\u2019 real estate assets on a full-time basis. Starting in 1958, the parties began acquiring and renovating real estate. Respondent performed almost all of the construction, renovation, management and handling of their properties. Petitioner testified she answered phone calls and collected rents from the tenants on occasion.\nPetitioner filed her petition for dissolution of marriage on November 19, 1982. At trial, the court after reviewing the evidence found that respondent had dissipated between $50,000 and $80,000 in marital assets. Based in part upon this finding, the trial judge stated that he was awarding petitioner approximately $290,000 or 63% of the marital property and was awarding respondent approximately $160,000 or 37% of the parties\u2019 property. The parties stipulated that the court\u2019s apportioning of the marital property would provide petitioner with rental income of $2,750 monthly and respondent with $1,400 monthly. The court also ordered respondent to pay one-half or $3,500 of petitioner\u2019s attorney fees and barred both parties from receiving maintenance. Respondent filed a timely notice of appeal from the trial court\u2019s order entered on September 23, 1983.\nThe first argument advanced by respondent is that the trial court erred in concluding that he dissipated assets of the marital estate. The trial court expressly apportioned a larger percentage of the marital estate to petitioner because it concluded respondent \u201cimproperly spent\u201d funds and \u201chadn\u2019t accounted for all funds sufficiently to the Court.\u201d Petitioner responds that the trial court\u2019s finding that respondent dissipated marital assets is supported by the record.\nSection 503(c)(1) of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) (now codified as section 503(d)(1)) directs the court to consider in dividing marital property \u201cthe contribution or dissipation of each party in the acquisition, preservation, or depreciation or appreciation in value, of the marital and non-marital property, including the contribution of a spouse as a homemaker or to the family unit ***.\u201d (Ill. Rev. Stat. 1981, ch. 40, par. 503(c)(1).) Dissipation of marital assets by one spouse is not an acceptable practice. (In re Marriage of Hellwig (1981), 100 Ill. App. 3d 452, 426 N.E.2d 1087.) Dissipation has been defined as \u201cthe use of marital property for the sole benefit of one of the spouses for a purpose unrelated to the marriage at a time that the marriage is undergoing an irreconcilable breakdown.\u201d (Ill. Ann. Stat., ch 40, par. 503(d)(1), Supp. to Hist. & Prac. Notes, at 57 (Smith-Hurd Supp. 1984-85), citing In re Marriage of Sevon (1983), 117 Ill. App. 3d 313, 453 N.E.2d 866; In re Marriage of Cook (1983), 117 Ill. App. 3d 844, 453 N.E.2d 1357; In re Marriage of Schriner (1980), 88 Ill. App. 3d 380, 410 N.E.2d 572.) A finding of dissipation is possible even though the act occurred prior to the commencement of the dissolution proceedings (see In re Marriage of Hellwig (1981), 100 Ill. App. 3d 452, 426 N.E.2d 1087), and the dissipating party need not derive personal benefit from the dissipation of the asset to be held accountable. (In re Marriage of Siegel (1984), 123 Ill. App. 3d 710, 463 N.E.2d 773.) The trial court\u2019s finding regarding the allocation of marital property including making allowances for dissipation will not be reversed absent an abuse of discretion. In re Marriage of Hilkovitch (1984), 124 Ill. App. 3d 401, 464 N.E.2d 795; In re Marriage of Greenberg (1981), 102 Ill. App. 3d 938, 429 N.E.2d 1334.\nEssentially, respondent attacks the trial court\u2019s finding as unsupported by the evidence. In discussing the specific assets which were at least partially dissipated, respondent asserts that Illinois courts consistently have required positive proof that marital property was dissipated. Implicit is respondent\u2019s contention that petitioner was obligated to establish how the funds were spent. Our research has disclosed no Illinois decision which has specifically assigned to either party the burden of proving for what purposes the funds were spent. We suspect the paucity of discussion on this issue is caused perhaps by the fact that in almost every case involving an alleged dissipation, the party charged with the dissipation instinctively comes forth with at least some evidence concerning the expenditure of the funds. This case is unique in that respondent in most cases has offered no evidence on how he spent funds received from the liquidated assets.\nWhile Illinois courts have not precisely addressed this question, several decisions provide guidance. In In re Marriage of Lord (1984), 125 Ill. App. 3d 1, 465 N.E.2d 151, this court affirmed the trial court\u2019s finding that the husband had dissipated marital assets by cashing in life insurance policies with a value of $13,900 and by withdrawing $16,000 from the parties\u2019 joint savings account. This court noted that the husband\u2019s explanation of how the funds were spent requires the trial court to make a determination as to his credibility, and concluded that the trial court\u2019s disbelief of the husband\u2019s explanation did not constitute error. (125 Ill. App. 3d 1, 6, 465 N.E.2d 151, 154.) Similarly, in In re Marriage of Smith (1983), 114 Ill. App. 3d 47, 448 N.E.2d 545, the trial court found that the husband had dissipated $15,000 in marital assets by withdrawing that amount from his credit union account and using it for nonmarital purposes. In contrast to the absence of testimony from respondent here, the husband in Smith testified he used the money to finance a trip to Las Vegas, and \u201cfor the payment of taxes and attorney fees, and for the purchase of various household appliances and furniture for the apartment in which he lived after he ceased living with the family.\u201d (114 Ill. App. 3d 47, 50, 448 N.E.2d 545, 548.) Finding, as this court did in Lord, that the spouse\u2019s explanation is a question of credibility, the appellate court concluded that the trial court\u2019s finding that the entire $15,000 was dissipated was adequately supported by the evidence. Compare In re Marriage of Sevon (1983), 117 Ill. App. 3d 313, 453 N.E.2d 866 (appellate court affirmed trial court\u2019s finding that wife had not secreted assets, where the record contained a complete list of the wife\u2019s expenditures for herself and the marital residence and where appellate court found that the record contained no other evidence indicating wife had spent the money for purposes unrelated to the marriage).\nThe appellate court in In re Marriage of Greenberg (1981), 102 Ill. App. 3d 938, 944, 429 N.E.2d 1334, 1339, likewise affirmed the trial court\u2019s finding that the husband had dissipated marital assets because of the inadequacy of the husband\u2019s proof, stating that the husband had cashed in securities \u201cwithout completely accounting for proceeds of sale.\u201d (Cf. In re Marriage of Block (1982), 110 Ill. App. 3d 864, 441 N.E.2d 1283 (remandment required where husband vaguely testified that he used funds from second mortgage to finance parties\u2019 affluent lifestyle and where husband did not show the specific disposition of the funds).) Even in the two cases cited by respondent, In re Marriage of Hellwig (1981), 100 Ill. App. 3d 452, 426 N.E.2d 1087, and Klingberg v. Klingberg (1979), 68 Ill. App. 3d 513, 386 N.E.2d 517, the court did not impose the burden of tracing the dissipated assets on the spouse alleging dissipation. In Hellwig, the dissipating spouse offered the explanation regarding the reasons for the transfers of funds and realty, and in Klingberg, the dissipating spouse admitted he withdrew marital funds to pay child support to a wife of a former marriage and the only issue for the reviewing court to resolve was whether the dispersal was for a marital purpose.\nThe common element in these decisions is that the party charged with dissipating assets offered some explanation as to the disposition of the funds. If the expenditures were not documented adequately, the courts affirmed the findings of dissipation with the exception of In re Marriage of Block (1982), 110 Ill. App. 3d 864, 441 N.E.2d 1283, where this court had already determined that another issue necessitated remandment and thus, remanded the dissipation issue because of the inadequacy of the proof. Courts in other jurisdictions also have required the party charged with dissipation to come forward with specific evidence concerning the disposition of the funds. In Barriger v. Barriger (Ky. 1974), 514 S.W.2d 114, for example, the Court of Appeals of Kentucky affirmed the trial court\u2019s finding that the husband had dissipated $25,000 in marital assets. The evidence showed the husband had spent some of the funds on a trip to Las Vegas, had lost some of the money gambling, and \u201c[h]e was unable to account for the remainder of the funds except to say that he paid a lawyer $1,100 and spent the remainder on \u2018entertainment\u2019.\u201d (514 S.W.2d 114, 115.) The Barriger court noted that although the husband was an accountant, \u201che was unable to reconstruct the financial records to the satisfaction of the trial court.\u201d (514 S.W.2d 114, 115.) The court in Bland v. Bland (Mo. App. 1983), 652 S.W.2d 690, likewise found inadequate the husband\u2019s proof offered in defense of a charge of dissipation. There, the husband contended he used the $10,800 withdrawn from joint savings accounts to pay marital expenses. In affirming the trial court\u2019s finding of dissipation, the' Missouri Court of Appeals noted that the trial court was free to believe or disbelieve the husband\u2019s explanation, and after reviewing the husband\u2019s proffered evidence, the reviewing court stated:\n\u201cIn light of the vague and indefinite testimony of the husband in this regard, unsupported by any form of receipts or recorded account, we cannot say the rejection by the trial court of this explanation was unjustified.\u201d (652 S.W.2d 690, 692.)\nSee also Cooksey v. Cooksey (1984), 280 S. C. 347, _, 312 S.E.2d 581, 585 (recognizing that courts of other jurisdictions have ruled that a spouse who removes marital property in contemplation of divorce is required to either account for it or have some part of its value charged against that spouse\u2019s share of marital property); E.E.C. v. E.J.C. (Del. 1983), 457 A.2d 688 (husband\u2019s explanation that his salary was spent during the parties\u2019 separation to pay expenses for two households was inadequate to avoid finding of dissipation).\nFrom these Illinois and foreign jurisdiction cases, we can extract the general principle that the person charged with the dissipation is under an obligation to establish by clear and specific evidence how the funds were spent. General and vague statements that the funds were spent on marital expenses or to pay bills are inadequate to avoid a finding of dissipation. In the case at bar, petitioner established and respondent admitted that certain marital assets were liquidated by respondent. The trial court specifically found that respondent dissipated assets of the marital estate with a value between $50,000 and $80,000. We proceed to examine the evidence offered by defendant as to each of the liquidated assets. The assets consisted of real estate, stock, certificates of deposit and vehicles.\nReal Estate\nDefendant testified that five months prior to the dissolution proceedings, he sold one real estate property, received $14,000 which he did not deposit into any bank account, and acknowledged that \u201cI spent it, I guess.\u201d He expressly stated he did not give any of the money to petitioner. These funds should be included as dissipated property.\nOn November 5, 1983, respondent sold a property by agreement for deed and received $2,500, which respondent testified was used to satisfy the existing balance due on the property and to pay the real estate broker. Since these payments were for marital expenses, this amount should not be included as dissipated property.\nOn November 1, 1983, respondent sold property pursuant to an agreement for deed and received $2,600 as a down payment, which respondent testified he used to pay bills. Respondent could not recall which bills he paid, stated he did not deposit the funds into any account, and admitted he gave petitioner none of the money. This amount should be included as dissipated marital property.\nOn June 8, 1982, respondent received $1,387 as a down payment on a property. Respondent testified that he did not deposit the funds into a bank account, spent the money, and did not give petitioner any of the funds. This amount should be included as dissipated marital assets.\nStock\nIn June 1983, respondent sold 1,100 shares of Southern Company stock for approximately $17,000 and deposited the funds into an account at the North Towne Bank, Rockford, Illinois. Respondent testified that the defendant\u2019s group exhibit No. 2 contained cancelled checks which he wrote on the stock proceeds to pay marital debts and expenses. Our review of the exhibit confirms his assertion that most of the checks were written to pay marital debts: the Internal Revenue Service ($6,183.57), the Illinois Department of Revenue ($1,054), Douglas R. Aurand, county collector ($283.26; $8,067.84), and an insurance agency ($670.94). However, respondent\u2019s attorney, Alex M. Abate, was also paid $3,000 from this account. Since the expenditures on marital debts exclusive of the amount paid to respondent\u2019s attorney approximately equals the amount received from the sale of the stock, the $17,000 should not be included as a dissipated asset.\nCertificates Of Deposit\nRespondent testified that after the dissolution proceedings had commenced, he cashed in four certificates of deposit totaling $40,000 plus interest. The amount of the interest was not specified at trial. The trial judge stated that he was taking notice of the fact that the liquidation of the certificates of deposit occurred after commencement of the dissolution proceedings. Respondent stated that he paid bills with the money, but the only specific expenditures he could remember were for a 1966 Dodge motorhome ($5,300) and a $2,000 loan to his son for the purchase of the son\u2019s house. Based on these two marital expenditures, respondent asserts in his appellate brief that the trial court at most could have found the dissipation of $32,700. The only evidence introduced concerning how the $32,700 was spent was respondent\u2019s testimony that he spent $3,900 on vacations with his girlfriend, Shirley, during 1983, and less than $500 monthly on her living expenses during 1982. On direct examination, respondent testified that he paid for some of the parties\u2019 living expenses out of the $40,000 or out of the income from the rental properties, but testified he did not know how much was spent and did not identify any specific marital expenses which he paid. Since respondent was unable to explain where the remainder of the $32,700 received from the certificates was spent, the entire $32,700 amount should be included as a dissipated asset.\nVehicles\nRespondent testified he sold a truck and a boat after the dissolution proceedings commenced and received $1,000. He stated he spent the money and did not give any of the proceeds to petitioner. Respondent unpersuasively argues these funds were not proved by petitioner to have been dissipated. Petitioner established she did not receive any of the money, and respondent was unable to establish that the money was expended for a marital purpose. Therefore, the $1,000 should be included as dissipated funds.\nBased upon the above conclusions, respondent dissipated at \u2022least $51,687. Additionally, the record contains evidence that respondent withdrew more than $14,000 in marital funds from bank accounts in his name alone. Although some of these funds may have been used to pay bills on the rental properties, determination of the amount spent for marital purposes is made impossible by respondent\u2019s total lack of proof on this issue. Also, Richard Awlward, petitioner\u2019s expert in determining the parties\u2019 1982 income, concluded after examining the parties\u2019 1982 tax returns and bank statements that their net cash income (rental income minus business expenses exclusive of sales of property) was $45,000. No evidence was presented that any of this sum was deposited into a bank account, and respondent did not know where he spent the approximately $45,000 in net cash income. He did admit, however, that he contributed \u201csomething more than $1,000 a month\u201d toward the living expenses of girlfriend Doris for a six-year period during his marriage to petitioner. Based upon our review of the evidence, the trial court\u2019s estimate that respondent had dissipated marital assets with a value between $50,000 and $80,000 is supported by the evidence.\nRespondent next asserts that the trial court erred in apportioning the marital property between the parties. Specifically, respondent argues based upon the statutory factors contained in section 503(c) (Ill. Rev. Stat. 1981, ch. 40, par. 503(c)), that an award of 63% of the marital property to petitioner and 37% to respondent constitutes an abuse of discretion. In conjunction with his assertion, respondent argues the trial court erred in using the fact that he dissipated marital assets twice: first to counterbalance its finding that respondent was responsible for the accumulation of the parties\u2019 capital and then again to justify a weighted property distribution favoring petitioner.\nAs respondent concedes, the appellate standard of review is abuse of discretion, and \u201cthe question is not whether the reviewing court agrees with the trial court but rather did the trial court in the exercise of its discretion act arbitrarily without the employment of conscientious judgment or, in view of all the circumstances, exceed the bounds of reason and ignore recognized principles of law so that substantial injustice resulted.\u201d (In re Marriage of Lee (1979), 78 Ill. App. 3d 1123, 1127, 398 N.E.2d 126.) Section 503(c) directs the court to divide the parties\u2019 property in just proportions. In dividing the marital property, the court is obligated to consider all relevant statutory factors which would affect the fairness of the distribution. In re Marriage of Smith (1981), 100 Ill. App. 3d 1126, 427 N.E.2d 1262.\nRespondent contends, and petitioner does not dispute, that he received approximately 37% and petitioner 63% of the marital property. Illinois courts have upheld distributions awarding even larger percentages of marital property to one spouse. (See Atkinson v. Atkinson (1981), 87 Ill. 2d 174, cert. denied (1982), 456 U.S. 905, 72 L. Ed. 2d 162, 102 S. Ct. 1751; In re Marriage of Holman (1984), 122 Ill. App. 3d 1001, 1012-13, 462 N.E.2d 30, 37-38, and cases cited therein.) Respondent refers, however, to the statutory factors to buttress his conclusion that the trial court abused its discretion. His argument is unconvincing. The trial court found, and we agree, that respondent\u2019s contribution to the parties\u2019 asset accumulation was negated by his dissipation of these same assets. This fact justifies a larger award to petitioner (see In re Marriage of Lord (1984), 125 Ill. App. 3d 1, 465 N.E.2d 151), even though, as respondent emphasizes, courts have found it equitable to apportion property accumulated during longer marriages in equal proportions. (See Ill. Ann. Stat., ch. 40, par. 503(d), Supp. to Hist. & Prac. Notes, at 53 (Smith-Hurd Supp. 1984-85). Petitioner established her monthly expenses to be $1,620, while respondent demonstrated he would only need $1,200 monthly. This factor also supports petitioner\u2019s larger award. (Ill. Rev. Stat. 1981, ch. 40, par. 503(c)(7).) Each party established that he suffered from certain health problems, so this factor does not favor either party. (Ill. Rev. Stat. 1981, ch. 40, par. 503(c)(7).) The larger award to petitioner is further justified by the trial court\u2019s stated intention to award her a large proportion of the assets so that she would not be dependent upon respondent for maintenance. (See Ill. Rev. Stat. 1981, ch. 40, par. 503(c)(9).) The final relevant statutory factor \u2014 each spouse\u2019s reasonable opportunity for the acquisition and accumulation of capital assets and income (Ill. Rev. Stat. 1981. ch. 40, par. 503(c)(l0))\u2014 clearly weighs in favor of the larger award to petitioner. Petitioner completed school only through the ninth grade and had not worked full-time outside the home since 1950. Despite the parties\u2019 significant real estate holdings, she further testified she did not fix, maintain or manage their real estate property. Therefore, her lack of work experience and education make unlikely her employment in more than an entry level position, and her inexperience in the real estate business would likely preclude her from profitably buying, renovating and selling properties.\nIn contrast, the court found, and respondent concedes, that he was responsible for accumulating and managing the parties\u2019 substantial real estate portfolio. His experience and skills in renovating real estate established that he has the greater opportunity to acquire and accumulate assets and has greater income potential. As the trial court stated in awarding respondent a smaller percentage of the marital estate:\n\u201cI think that Mr. Smith is being awarded a smaller segment of property I\u2019m acknowledging the fact that in spite of what I think was his misappropriation of marital assets and his dissipation of marital assets to his benefit and completely against the benefit of Mrs. Smith that I am acknowledging the fact that Mr. Smith is an industrious and capable and intelligent individual who probably in the years to come will be able to reestablish himself. He\u2019s got enough to live on and probably enough to do exactly what he was doing before, which is rebuilding his estate.\u201d\nOur review of the statutory factors convinces us that the trial court did not abuse its discretion in apportioning the larger percentage of property to petitioner, especially in light of its finding that respondent dissipated marital assets. See In re Marriage of Lord (1984), 125 Ill. App. 3d 1, 465 N.E.2d 151 (trial court did not err in finding that husband had dissipated marital assets or in charging amount dissipated against husband\u2019s share of marital property); see also In re Marriage of Cook (1983), 117 Ill. App. 3d 844, 453 N.E.2d 1357.\nWe also find unpersuasive respondent\u2019s argument that the court improperly used the dissipation criterion twice in apportioning the property. Respondent interprets too restrictively the court\u2019s authority. In apportioning the property, the court did \u201cnet out\u201d respondent\u2019s contribution to and dissipation of the marital assets. The court did not, however, rely exclusively upon respondent\u2019s dissipation of assets to award a larger percentage to petitioner. The court also recognized her contribution as a homemaker, his greater opportunity to accumulate capital and earn income, her higher income needs, and the denial of maintenance to both parties. Furthermore, nothing in the statute or case law prevents the court from finding one factor especially significant in allocating the property to each spouse in just proportions. The property distribution here was in just proportions.\nThe final argument advanced by respondent is that the trial court abused its discretion in ordering him to pay one-half of petitioner\u2019s attorney fees. Section 508 of the IMDMA empowers the court \u201cafter considering the financial resources of the parties\u201d to order one spouse to pay all or a portion of the reasonable attorney fees and costs incurred by the other spouse in the maintenance or defense of any proceeding under the IMDMA. (Ill. Rev. Stat. 1981, ch. 40, par. 508(a)(1).) An award of attorney fees under section 508 \u201cis justified when the party seeking relief demonstrates financial inability to pay coupled with the ability of the former spouse to do so.\u201d (In re Marriage of Macaluso (1982), 110 Ill. App. 3d 838, 845, 443 N.E.2d 1, 6.) However, financial inability is a relative term (In re Marriage of Scott (1980), 85 Ill. App. 3d 773, 407 N.E.2d 1045), and is not to be equated with destitution. (In re Marriage of Siegel (1984), 123 Ill. App. 3d 710, 463 N.E.2d 773.) Financial inability for purposes of awarding attorney fees in a divorce proceeding exists when payment of fees would strip the individual of his or her means of support and undermine his or her economic stability. (In re Marriage of Macaluso (1982), 110 Ill. App. 3d 838, 443 N.E.2d 1.) Even where a spouse is awarded sufficient marital property to pay her own fees, the other spouse can be ordered to pay them so that she is not required to deplete her capital assets. (In re Marriage of Smith (1981), 100 Ill. App. 3d 1126, 1132, 427 N.E.2d 1262, 1267.) The allowance of attorney fees is a decision resting within the sound discretion of the trial court, and a fee award will not be reversed on appeal unless an abuse of discretion is shown. In re Marriage of Melnick (1984), 127 Ill. App. 3d 102, 110, 468 N.E.2d 490, 495.\nApplying these principles here, neither party was allocated significant liquid assets to satisfy petitioner\u2019s fees obligation. Petitioner was awarded life insurance valued at $3,500 and $2,923 in a savings account; respondent was awarded $3,500 in life insurance and $1,557 in a savings account. Petitioner had projected annual income of $33,000 and expenses of $19,440. Respondent had projected annual income of $16,800 and expenses of $14,400. Despite petitioner\u2019s greater investment income, three factors support the court\u2019s order requiring respondent to contribute toward payment of petitioner\u2019s fees. First, the record demonstrates that respondent paid $3,000 to his own attorney during the pendency of this proceeding from marital funds. Our calculation that defendant dissipated more than $50,000 in marital assets does not include this payment by defendant of $3,000 from marital funds to his attorney. Therefore, the trial court equalized the property distribution by ordering respondent to pay $3,500 toward her attorney fees obligation. Second, the trial judge specifically ordered respondent to pay one-half of petitioner\u2019s attorney fees because he didn\u2019t believe she should have to dissipate the marital assets to pay the fees. Third, as acknowledged by the trial court, respondent had the better opportunity to accumulate assets. Since the parties are nearing their retirement age, the trial court recognized that petitioner must conserve the assets and income awarded her to meet her retirement needs.\n\u201cI think the Court has relieved her of a substantial concern over her future financial security and I think that she\u2019s going to have to live within her means. She\u2019s going to have to set aside money for future years. I think with the income I\u2019ve awarded her she should be able to establish a general savings plan, she should be able to establish IRA\u2019s she should be able to make some decent conservative investments.\u201d\nHer need to conserve funds is made greater because she was denied maintenance and because her 20-year absence from the work force will likely mean that her entitlement to Social Security benefits will be modest. Her potential employment income until retirement also will be limited because of her age, and by her lack of educational background and work experience. These factors support the trial court\u2019s conclusion that petitioner was unable on a relative basis to pay all of her own attorney fees without depleting her capital assets. (See Bellow v. Bellow (1981), 94 Ill. App. 3d 361, 419 N.E.2d 924 (husband ordered to pay wife\u2019s attorney fees even though wife awarded alimony in gross of $500,000); In re Marriage of Simmons (1980), 87 Ill. App. 3d 651, 409 N.E.2d 321 (husband required to pay a portion of ex-wife\u2019s attorney fees even though she possessed $90,000 in liquid assets).) Based on these factors, the trial court\u2019s order requiring respondent to pay $3,500 of petitioner\u2019s attorney fees was not an abuse of discretion.\nThe order of the circuit court of Winnebago County is affirmed.\nAffirmed.\nSCHNAKE and REINHARD, JJ., concur.", "type": "majority", "author": "JUSTICE LINDBERG" } ], "attorneys": [ "Alex M. Abate, of Abate & Pirello, of Rockford, for appellant.", "David L. Martenson, of Martens on & Alexander, P.C., of Rockford, for appellee." ], "corrections": "", "head_matter": "In re MARRIAGE OF DONNA JEAN SMITH, Petitioner-Appellee, and CARROLL EUGENE SMITH, Respondent-Appellant.\nSecond District\nNo. 2\u201483\u20140907\nOpinion filed November 28, 1984.\nAlex M. Abate, of Abate & Pirello, of Rockford, for appellant.\nDavid L. Martenson, of Martens on & Alexander, P.C., of Rockford, for appellee." }, "file_name": "1017-01", "first_page_order": 1039, "last_page_order": 1050 }