{ "id": 4136697, "name": "In re MARRIAGE OF LESLIE BERGER, Petitioner-Appellant, and ROBERT BERGER, Respondent-Appellee", "name_abbreviation": "In re Marriage of Berger", "decision_date": "2005-05-17", "docket_number": "No. 1-04-0499", "first_page": "651", "last_page": "663", "citations": [ { "type": "official", "cite": "357 Ill. App. 3d 651" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "824 N.E.2d 177", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2005, "opinion_index": 0 }, { "cite": "214 Ill. 2d 152", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 8450779 ], "weight": 3, "year": 2005, "pin_cites": [ { "page": "174" }, { "page": "174-75", "parenthetical": "no abuse of discretion where party seeking fees failed to show inability to pay" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/214/0152-01" ] }, { "cite": "593 N.E.2d 747", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "228 Ill. App. 3d 820", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5220125 ], "year": 1992, "pin_cites": [ { "page": "824" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/228/0820-01" ] }, { "cite": "605 N.E.2d 670", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "238 Ill. App. 3d 965", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5155919 ], "year": 1992, "pin_cites": [ { "page": "984" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/238/0965-01" ] }, { "cite": "234 Ill. App. 3d 178", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5186396 ], "year": 1992, "pin_cites": [ { "page": "194" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/234/0178-01" ] }, { "cite": "739 N.E.2d 998", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2000, "opinion_index": 0 }, { "cite": "317 Ill. App. 3d 346", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1026023 ], "weight": 3, "year": 2000, "pin_cites": [ { "page": "353" }, { "page": "354" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/317/0346-01" ] }, { "cite": "427 N.E.2d 125", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "86 Ill. 2d 164", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5468851 ], "weight": 3, "year": 1981, "pin_cites": [ { "page": "166" }, { "page": "166" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/86/0164-01" ] }, { "cite": "427 N.E.2d 1239", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "86 Ill. 2d 518", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5469902 ], "year": 1981, "pin_cites": [ { "page": "529" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/86/0518-01" ] }, { "cite": "674 N.E.2d 124", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "opinion_index": 0 }, { "cite": "285 Ill. App. 3d 138", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1295596 ], "year": 1996, "pin_cites": [ { "page": "141" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/285/0138-01" ] }, { "cite": "577 N.E. 1334", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1991, "pin_cites": [ { "parenthetical": "a trial judge's non-marital-property determination was against the manifest weight of the evidence" } ], "opinion_index": 0 }, { "cite": "218 Ill. App. 3d 312", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8498672 ], "year": 1991, "pin_cites": [ { "page": "317", "parenthetical": "a trial judge's non-marital-property determination was against the manifest weight of the evidence" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/218/0312-01" ] }, { "cite": "560 N.E.2d 374", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "202 Ill. App. 3d 783", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2588554 ], "year": 1990, "pin_cites": [ { "page": "788" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/202/0783-01" ] }, { "cite": "603 N.E.2d 508", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "151 Ill. 2d 445", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3292317 ], "year": 1992, "pin_cites": [ { "page": "454" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/151/0445-01" ] }, { "cite": "711 N.E.2d 339", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1999, "opinion_index": 0 }, { "cite": "304 Ill. App. 3d 1019", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 564647 ], "year": 1999, "pin_cites": [ { "page": "1023-24" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/304/1019-01" ] }, { "cite": "440 N.E.2d 1028", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "109 Ill. App. 3d 569", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5448350 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/ill-app-3d/109/0569-01" ] }, { "cite": "483 N.E.2d 316", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "136 Ill. App. 3d 252", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3564394 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/ill-app-3d/136/0252-01" ] }, { "cite": "505 N.E.2d 748", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "153 Ill. App. 3d 550", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3609460 ], "year": 1987, "opinion_index": 0, "case_paths": [ "/ill-app-3d/153/0550-01" ] }, { "cite": "485 N.E.2d 504", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "138 Ill. App. 3d 13", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8498422 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "15" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/138/0013-01" ] }, { "cite": "636 So. 2d 87", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 11714609 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "90" } ], "opinion_index": 0, "case_paths": [ "/so2d/636/0087-01" ] }, { "cite": "585 N.E.2d 1158", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "223 Ill. App. 3d 855", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5255741 ], "year": 1992, "pin_cites": [ { "page": "857" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/223/0855-01" ] }, { "cite": "523 N.E.2d 680", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1988, "opinion_index": 0 }, { "cite": "169 Ill. App. 3d 226", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3550458 ], "weight": 4, "year": 1988, "pin_cites": [ { "page": "230" }, { "page": "231" }, { "page": "231" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/169/0226-01" ] } ], "analysis": { "cardinality": 1150, "char_count": 28822, "ocr_confidence": 0.714, "pagerank": { "raw": 1.2876780929041636e-07, "percentile": 0.619094395078632 }, "sha256": "51d7570ee2d1bed737f715a9494785471e1fe093dfb37ddad58d7c5d70b199d7", "simhash": "1:e928bd5a5b43c35d", "word_count": 4818 }, "last_updated": "2023-07-14T22:31:24.775353+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re MARRIAGE OF LESLIE BERGER, Petitioner-Appellant, and ROBERT BERGER, Respondent-Appellee." ], "opinions": [ { "text": "JUSTICE WOLFSON\ndelivered the opinion of the court:\nWe are called on to decide high stakes issues that are the fallout from a failed marriage.\nPetitioner Leslie Berger appeals the judgment of dissolution of her marriage to respondent Robert Berger, challenging several parts of the trial court\u2019s order. Leslie contends the trial court erred when it: (1) found the parties\u2019 antenuptial agreement, specifically the maintenance waiver, was valid and binding; (2) awarded the assets held in two joint bank accounts to Robert, finding they were his nonmarital property; (3) failed to assign the proper values to the parties\u2019 estates by relying on the asset disclosure statements; (4) ordered Robert to withhold $100,000 from Leslie\u2019s settlement due to her dissipation; and (5) denied Leslie\u2019s petition for attorney fees.\nWe affirm in part and reverse and remand in part.\nFACTS\nLeslie and Robert were married on August 20, 1982. A few weeks earlier, Robert talked to Leslie about signing an antenuptial agreement. Leslie\u2019s attorney received a first draft of the proposed agreement on August 9, 1982. Robert and Leslie eventually signed the fourth draft of the antenuptial agreement (the Agreement) the day before their wedding.\nUnder the Agreement, neither party would have a right to \u201csupport, maintenance, or alimony\u201d from the other in the event of a divorce. If the marriage were dissolved, Leslie was entitled to half the value of the marital residence. They also agreed any property each of them owned or acquired would not be marital property and would remain the property of the respective owner. Paragraph 6(b) of the Agreement stated, \u201cany assets or property to which either party may be entitled pursuant to a right of survivorship or by contract or agreement created or entered into subsequent to their marriage shall belong to the party entitled thereto and shall not be subject to this agreement.\u201d\nAt the time, Robert\u2019s net worth was more than $10 million, and he earned $450,000 annually from various investments. Leslie was 27 and had a graduate degree. Her net worth was $149,000 and she earned $30,000 annually as an advertising account executive. Leslie\u2019s attorney reviewed the Agreement and advised her not to sign it. She signed it anyway. Before they married, neither party intended to have children. Three years later, Robert and Leslie decided to have a child, and their daughter Erica was born October 1, 1986.\nFor several years, Robert and Leslie kept their finances separate, each controlling his or her own account. In October 1994, the parties opened two joint checking accounts at Citibank, the \u2019880 account and the \u2019068 account. The accounts remained in existence until June 1999. Account \u2019880 was titled in Robert\u2019s name first and Leslie\u2019s second, and Robert primarily wrote checks on that account. Account \u2019068 was titled in Leslie\u2019s name first and Robert\u2019s second, and Leslie primarily wrote checks on that account. The \u2019068 account is not an issue in this appeal.\nIn February 1996, Robert changed the title of his American National Bank \u2019451 account to add Leslie\u2019s name, with right of survivorship. According to Robert, he created joint accounts with Leslie at Citibank because she was suffering from Crohn\u2019s disease, and she was concerned about her demise. She also was concerned about Robert\u2019s advancing age, and they agreed that, should there be a problem, \u201cimmediate cash should be available, and in illness or in death, cash is most important.\u201d Robert added Leslie to the American National Bank \u2019451 account for the \u201csame reasons.\u201d He said, \u201cShe wasn\u2019t getting any better in spite of the operations, et cetera.\u201d\nThe \u2019451 Account:\nThe court found Robert made every deposit into the \u2019451 account from February 1996 through July 1999. The total amount of the deposits was $5,516,872. Over the same time period, Robert wrote checks on the account to cover the payment of jointly filed tax obligations, a few investments in nonmarital property that he controlled, and, on occasion, to provide money for the \u2019880 account. On June 2, 1999, Leslie signed a request to purchase a cashier\u2019s check from the \u2019451 account in the amount of $103,000. She received the funds. Between February 1996 and June 2, 1999, Leslie made no other withdrawals from the \u2019451 account. She wrote no checks on the account, nor did she have a checkbook or check register for the account. Only Robert and his bookkeeper had access to the checkbook and check register for the account, and only Robert\u2019s name was printed on the checks. Between April 22, 1996, and June 22, 1999, Robert wrote 41 checks on the \u2019451 account. The court found seven of the checks were for Robert\u2019s personal use or for his non-marital-property use. The seven checks totaled $322,490.56, or approximately 5.8% of the amount deposited into the account by Robert between 1996 and 1999. On May 14, 1999, the \u2019451 account had a $27,096.16 balance.\nThe \u2019880 Account:\nBetween October 1994 and June 2, 1999, Robert made all the deposits into the \u2019880 account, totaling $5,698,912. Of the 1,497 checks written on the \u2019880 account during that period, Leslie wrote a total of five checks, all for Rancho Mirage household expenses. The rest were written by Robert. The bulk of the checks written on the account were for family and household expenses, and a few were written for Robert\u2019s investment expenses. On May 11, 1999, the day before she filed for dissolution of marriage, Leslie withdrew $60,000 from the \u2019880 account. On June 7, 1999, she withdrew $50,000 from the \u2019880 account. Other than the five checks she wrote, those two withdrawals were the only withdrawals she made on the \u2019880 account. Her name was on the \u2019880 account checks. Leslie never made any deposits into the account. Robert had possession of the checkbook and check register for the account. Leslie had a debit card linked to the \u2019880 and \u2019068 accounts, but never used it to withdraw money from the \u2019880 account. On May 12, 1999, the \u2019880 account had a $61,248.50 balance.\nLeslie filed her petition for dissolution of marriage on May 12, 1999. In her amended petition, she alleged the Agreement was procured by fraud and duress.\nRobert filed a motion for declaratory judgment on the validity of the Agreement.\nLeslie testified the parties\u2019 wedding date was changed from November to August 20, 1982, and the Agreement was signed one day earlier, at a time when Robert was being investigated by the federal government. She said she signed the Agreement under duress because Robert told her he could not get married without the Agreement due to his business with his brothers, and he said his lawyers wanted him to get married before his indictment in order to avoid a long sentence. He later pled guilty to a mail fraud charge.\nRobert testified the wedding date was changed out of Leslie\u2019s concern for her elderly grandmother, who would have difficulty with colder November weather. He denied that the wedding date was changed because of his potential indictment or the investigation. Robert also testified he wanted the Agreement to protect his assets for his children.\nThe trial court entered its order on June 6, 2002, stating the Agreement was valid and binding on both parties. The court said the Agreement was fair because Leslie signed the Agreement despite her attorney\u2019s advice against it. At the time, she was 27 years old, had obtained a graduate degree, and was confident in her ability to support herself. Leslie told her attorney Robert wanted the Agreement to protect the interests of his children from a former marriage and that she did not want anything to upset their upcoming marriage. The court found the Agreement provided Leslie an equitable settlement \u2014 a minimum of $1.25 million from the marital residence, the $800,000 home she purchased in Glencoe while they were separated, and $600,000 in other assets she had acquired.\nThe court found Robert\u2019s version of the events leading up to their wedding more credible. The court concluded that although Leslie may have been under stress due to Robert\u2019s criminal investigations, she signed the Agreement because she wanted to marry Robert and he would not get married without it.\nAfter several days of testimony, another trial judge entered the judgment for dissolution of marriage. In that judgment, the court decided the Agreement\u2019s maintenance waiver was valid and denied Leslie\u2019s request for maintenance. The court traced the assets in the parties\u2019 various joint bank accounts and determined they were not marital property. The \u2019880 and \u2019451 accounts were awarded to Robert. The only marital property divided between the parties was their marital residence in Glencoe and the \u201cFallen Angel Stock Fund.\u201d The marital home was valued at $2.8 million. Although Leslie was entitled to $1.4 million as her share of the property, the court reduced the amount\nRobert was to pay her by $100,000 as a result of her dissipation of the assets she withdrew from the \u2019880 and \u2019451 accounts. The court denied Leslie\u2019s petition for attorney fees.\nDECISION\nI. The Validity of the Antenuptial Agreement\nLeslie contends the trial court erred when it found the Agreement was valid and binding. She asks this court to find the entire Agreement invalid, or, at a minimum, reverse the portion of the trial court\u2019s order upholding the validity of the Agreement\u2019s maintenance waiver. The parties\u2019 Agreement predates Illinois\u2019 Uniform Premarital Agreement Act (750 ILCS 10/1 et seq. (West 2002)), so we must rely on common law when deciding the Agreement\u2019s validity.\nUnder Illinois decisional law, antenuptial agreements determining rights to property and maintenance are valid and enforceable as long as three conditions are met: (1) the agreement does not create an unforeseen condition of penury due to one spouse\u2019s lack of property or employability; (2) the parties entered into the agreement with full knowledge, free of fraud, duress, or coercion; and (3) the agreement is fair and reasonable. Warren v. Warren, 169 Ill. App. 3d 226, 230, 523 N.E.2d 680 (1988). Although maintenance waivers are disfavored in Illinois, a waiver will be enforced if it was given in exchange for significant financial consideration. In re Marriage of Martin, 223 Ill. App. 3d 855, 857, 585 N.E.2d 1158 (1992).\nLeslie does not contend she will suffer a condition of penury as a result of the Agreement. Nor does she dispute the trial court\u2019s finding that she was not subject to any fraud, duress, or coercion at the time she signed the agreement. Instead, she contends the agreement should not be enforced because it is not fair and reasonable.\nIn Warren, 169 Ill. App. 3d 226, 523 N.E.2d 680, and Kolflat v. Kolflat, 636 So. 2d 87 (Fla. App. 1994), the courts struck down maintenance waivers in antenuptial agreements after finding them unfair or unreasonable. In Warren, the court found the wife signed the antenuptial agreement willingly, without fraud, duress, or coercion, and had full knowledge of her future husband\u2019s assets at the time. Although her assets were modest, they were sufficient to keep her from suffering the condition of penury. Nonetheless, the reviewing court found the maintenance waiver unfair due to the wife\u2019s financial circumstances. Warren, 169 Ill. App. 3d at 231. She had not worked since before the couple was married and had approximately $33,000 in assets, including a $30,000 house. In comparison, her husband was worth $1.5 to $2 million, with $700,000 in debts. The court based its finding of unfairness on two circumstances: (1) the agreement\u2019s complete lack of a financial settlement for the wife; and (2) the lavish lifestyle the couple enjoyed together for many years, which the wife had no hope of continuing on her own. Warren, 169 Ill. App. 3d at 231.\nThe court in Warren distinguished that case from In re Marriage of Burgess, 138 Ill. App. 3d 13, 485 N.E.2d 504 (1985), where the court upheld a maintenance waiver, based on the different financial circumstances of the aggrieved parties. In Burgess, the woman seeking maintenance had a net worth of $412,000 before her marriage and earned $38,000 annually at the time of the dissolution. Burgess, 138 Ill. App. 3d at 15.\nIn Kolflat, the District Court Of Appeals of Florida applied Illinois law to determine the validity of an antenuptial agreement. As in Warren, the agreement met the first two conditions. After reviewing the parties\u2019 financial circumstances and income potential, the court decided the maintenance waiver was unfair. The husband had a net worth of over $4.7 million, while the wife had $109,000 in assets. The wife was over 50 at the time of the divorce and lacked a college education or any specific work skills. Because the agreement provided absolutely no financial support for the wife, and both enjoyed an extravagant lifestyle during the marriage, the court found the maintenance waiver was not enforceable. Kolflat, 636 So. 2d at 90.\nWe find important differences between the facts in this case and the facts in Warren and Kolflat. Here, the Agreement did not leave Leslie without a financial settlement. Under the Agreement, she was entitled to one-half the value of the marital residence. If the parties had divorced early in their marriage, Leslie would have received approximately $150,000 \u2014 her share of the $300,000 condominium they shared. The residence at the time of dissolution was a $2.8 million house in Glencoe. As a result, Leslie was awarded $1.4 million. In addition, she kept her nonmarital assets, valued at approximately $322,000 on her asset disclosure statement, and the $800,000 home she purchased while separated from Robert.\nUnlike the women in Warren and Kolflat, Leslie has a graduate degree in advertising and is self-employed. At the time of the parties\u2019 marriage, Leslie was employed by Leo Burnett as an account supervisor on the RCA account. Subsequently, Leslie worked for J. Walter Thompson as an account supervisor responsible for the Kraft Foods account. Although Leslie stopped working for several years to raise Erica, she now owns her own business, Idea Resources. The business\u2019s tax returns showed total incomes ranging from $118,447 in 1997 to $232,646 in 2000. Leslie\u2019s personal tax returns showed Leslie had an adjusted gross income of $147,366 in 1998, $87,534 in 1999, $158,769 in 2000, and $92,175 in 2002. Although her asset disclosure statement stated her monthly income was $5,883, she listed her monthly income as $28,000 on her mortgage application, which was filed two weeks before she filed her petition for dissolution.\nAlthough Robert\u2019s personal wealth is much greater than Leslie\u2019s, we find the maintenance waiver is fair and reasonable in the circumstances of this case.\nII. Classification of Bank Accounts as Nonmarital Property\nThe question we must decide is whether Robert intended to make a gift to the marriage when he created the joint bank accounts with right of survivorship.\nLeslie contends paragraph 6(b) of the Agreement is the beginning and end of the inquiry. That is, she says the paragraph should be read to mean any asset placed in joint tenancy after the marriage necessarily becomes marital property, with no further analysis required. We do not agree with Leslie\u2019s strict reading of the paragraph. At the same time, considerable attention must be paid to the paragraph in light of Robert\u2019s decisions to establish a right of survivorship in the accounts in 1994 and 1996, twelve and fourteen years after the marriage. That paragraph, after all, was drafted by Robert\u2019s lawyer and virtually made a condition precedent for the marriage ceremony. It represents an exception to the parties\u2019 stated intent to keep their property separate.\nUntil the joint tenancies were created, Robert was able to claim complete protection for his nonmarital assets. He knew how to do that. As an astute and successful investor, he must have known he was abandoning the protection of the Agreement when he established accounts \u2019880 and \u2019451. We have been searching for an answer to the question of why he would take the risk of bringing the accounts outside the protective cover of the Agreement if he did not intend making a gift to the marriage. We have been unable to find a reasonable answer.\nIn this lengthy record the only explanation Robert gave for creation of the joint accounts is:\n\u201cWell, she was suffering from her Crohn\u2019s. It\u2019s a disease that apparently was diagnosed in \u201993, but she had it since she was a teenager. She was afraid. She hurt. She was concerned about her demise. It is a serious illness, and it is on the internet, a whole full description. She was concerned about my advancing age, and we agreed that should there be a problem, that immediate cash should be available. And in illness or in death unless anybody doesn\u2019t recognize it, cash is most important.\u201d\nThe failure to say something when the appropriate moment arrives for saying it is telling. He said nothing about protecting his ability to make investments with his nonmarital funds. He never said the accounts were set up for his convenience or for any business purpose. In fact, he never said he did not intend to make a gift to the marriage or give Leslie an interest in the funds.\nThis was not the deposit of a single asset, as occurred in In re Marriage of Guerra, 153 Ill. App. 3d 550, 505 N.E.2d 748 (1987), where the husband said he arranged the joint accounts from the proceeds of his nonmarital asset in order to make further investments. Nor is it In re Marriage of Rink, 136 Ill. App. 3d 252, 483 N.E.2d 316 (1985), where the husband was blind and testified he set up a joint account for the sake of his convenience, with no intent to give his wife an ownership interest.\nIn In re Marriage of Wojcicki, 109 Ill. App. 3d 569, 440 N.E.2d 1028 (1982), relied on by Robert, the husband testified he placed non-marital properties into joint tenancy in an attempt to insulate himself and his wife from title transfer difficulties in the event one of them died. His testimony persuaded the trial court and then the appellate court that the presumption of a gift was overcome.\nNone of the husbands in Guerra, Rink, Wojcicki, or any other Illinois case we have been able to find intentionally triggered an escape hatch from an antenuptial agreement when establishing joint interests.\nHere, we have a series of deposits and withdrawals, extending over a period of five years. Although Leslie did not use her debit card for account \u2019880, she had the power to do so. When she wanted to withdraw funds from either account in 1999, she did so, in large amounts. Robert had not set up any mechanism to stop her, even when the marriage started to unravel.\nWe note Robert was substantially impeached when he filed with the court a statement putting his net worth at $23,347,000, while in 2001 his financial statement at the bank put his net worth at $46,446,308. We also believe a statement reflecting the \u201chistorical cost\u201d of assets, rather than their fair market value, is a disingenuous approach to financial fact submission to a court.\nThe actual amount of Robert\u2019s net worth matters, because the size of the husband\u2019s net worth in relation to the joint asset was an important factor in Guerra, where the percentage was 44%. Here, if we take Robert\u2019s statement to the bank as true, the percentage of total deposits is about 25% \u2014 still a large amount, but leaving about $35 million outside of the joint accounts.\nWe are aware that we must apply a manifest weight of the evidence standard to the trial court\u2019s findings on the existence of marital and nonmarital property. In re Marriage of Gurda, 304 Ill. App. 3d 1019, 1023-24, 711 N.E.2d 339 (1999). A decision is against the manifest weight of the evidence when the opposite conclusion is clearly evident or where it is unreasonable, arbitrary, and not based on the evidence. Maple v. Gustafson, 151 Ill. 2d 445, 454, 603 N.E.2d 508 (1992).\nEven though property might be considered nonmarital under section 503(a) of the Illinois Marriage and Dissolution of Marriage Act (the Act) (750ILCS 5/503(a) (West 2002)), courts will presume a spouse who placed nonmarital property in joint tenancy with the other spouse intended to make a gift to the marital estate. In re Marriage of Cecil, 202 Ill. App. 3d 783, 788, 560 N.E.2d 374 (1990).\nRobert had the burden of rebutting the presumption of gift with evidence that not only is \u201cclear and convincing,\u201d but also \u201cunmistakable.\u201d In re Marriage of Orlando, 218 Ill. App. 3d 312, 317, 577 N.E. 1334 (1991) (a trial judge\u2019s non-marital-property determination was against the manifest weight of the evidence).\nWe have said: \u201cAny doubts as to the nature of the property are resolved in favor of finding that the property is marital.\u201d In re Marriage of Hegge, 285 Ill. App. 3d 138, 141, 674 N.E.2d 124 (1996). Further, there is a \u201clegislative preference, expressed in section 503, for the classification of property as marital.\u201d In re Marriage of Smith, 86 Ill. 2d 518, 529, 427 N.E.2d 1239 (1981).\nThe mere fact that all funds deposited in a jointly held account came from the husband\u2019s nonmarital assets was not enough to rebut the presumption that he intended a gift to the marriage in In re Marriage of Emken, 86 Ill. 2d 164, 427 N.E.2d 125 (1981). There, the supreme court observed that the husband knew how to retain sole ownership of a time deposit certificate when he wanted to. The court said:\n\u201cThe deposit of certain funds in the joint account out of which the household expenses of the parties were paid while retaining sole ownership of other funds tends to prove that it was respondent\u2019s intent that the jointly held funds be marital property.\u201d Emken, 86 Ill. 2d at 166.\nHere, Robert maintained the American National Bank Safekeeping Investment Account 703466 and several other accounts in his name only, effectively invoking the protection of the Agreement. The bulk of the funds from the \u2019880 account were used by Robert for household and family expenses.\nWhile the trial court relied almost entirely on the Guerra decision, it ignored another Second District decision that distinguished Guerra. In In re Marriage of Gattone, 317 Ill. App. 3d 346, 739 N.E.2d 998 (2000), all of the funds used to purchase a house in joint tenancy came from the husband\u2019s nonmarital assets. The court noted that the size of the purported gift in relation to the husband\u2019s entire estate was only a single factor that does not, standing alone, determine whether property is marital or nonmarital. Gattone, 317 Ill. App. 3d at 353. There, as here, the husband used an unacceptable method of calculating his estate. Finding the presumption of a gift was not rebutted, the court found no facts in the record that demonstrated the husband\u2019s intent to keep his nonmarital assets separate from marital assets. That is, \u201cThere are steps [the husband] could have taken to make sure his nonmarital assets retained their distinct identity, if that was his desire.\u201d Gattone, 317 Ill. App. 3d at 354. Robert\u2019s steps were in the opposite direction.\nTrue, the Gattone case involved a marital home. But our supreme court has said, \u201cWe fail to perceive a distinction between a jointly held marital residence and a jointly held account.\u201d Emken, 86 Ill. 2d at 166.\nGiven the particular circumstances of this case, viewed from the aperture of paragraph 6(b) of the Agreement, we conclude the trial court erred when it held the deposits made in the \u2019451 and \u2019880 accounts were Robert\u2019s nonmarital property. The trial court did not give due weight to the presumption of marital gift that arose when Robert arranged for Leslie to have a right of survivorship in 1994 and 1996. It should not be easy to overcome that presumption. If it were, an unnecessary failure of certainty and predictability would enter the financial relationships of spouses and would create wasteful and cumbersome litigation, as happened here.\nWe conclude Robert did not overcome the presumption that the deposits were gifts to the marriage. We reverse the trial court\u2019s findings and remand this cause for the purpose of determining how the marital funds deposited in the two accounts are to be apportioned between Robert and Leslie. When doing so, the trial court should reassess its uncritical acceptance of Robert\u2019s net worth statement and should apply a fair market value standard to the assets of both parties.\nIII. Dissipation of Assets\nIn a dissolution of marriage proceeding, the Act requires a court to divide marital property in just proportions, considering all relevant factors, including \u201cthe dissipation by each party of the marital or non-marital property.\u201d 750 ILCS 5/503(d)(2) (West 2002). The court found Leslie dissipated Robert\u2019s nonmarital estate in the amount of $213,000 \u2014 the total amount of her three withdrawals from the \u2019880 and \u2019451 accounts in May and June 1999. The court found Leslie made the withdrawals at a time when the marriage between the parties was undergoing an irreconcilable breakdown, and she used the withdrawals for purposes unrelated to the marriage. The court held:\n\u201cAfter considering all appropriate factors under Section 503, the Court will allow Robert to credit the payment he is to make to Leslie under the Antenuptial Agreement in the amount of $100,000 as a result of her dissipation. Thus, the total payment due to Leslie from Robert, which shall be paid in 35 days from the date of the Findings, is $1,300,000.\u201d\nA party charged with dissipating marital assets must establish by clear and convincing evidence how those funds were spent. General and vague statements that the funds were spent on marital expenses or to pay bills are not enough to avoid a finding of dissipation. In re Marriage of Hagshenas, 234 Ill. App. 3d 178, 194 (1992). The issue of dissipation is a question of fact, and the trial court\u2019s finding will not be disturbed unless it is against the manifest weight of the evidence and thus an abuse of discretion. In re Marriage of Tietz, 238 Ill. App. 3d 965, 984, 605 N.E.2d 670 (1992); In re Marriage of Seversen, 228 Ill. App. 3d 820, 824, 593 N.E.2d 747 (1992).\nAt trial, Leslie testified she used the money to pay living expenses, take her daughter on a trip to Europe, and purchase some items for her new home. Her statement that the money was used for living expenses was too general and vague to prove the funds were spent on marital expenses. We affirm the trial court\u2019s finding that Leslie dissipated the funds when she made the withdrawals from the joint accounts.\nIV Attorney Fees\nLeslie contends the trial court erred when it denied her petition for attorney fees. Leslie\u2019s petition sought $340,795 in fees. She contends \u201crequiring her to pay all of her own attorney[ ] fees and costs would significantly reduce her relatively meager estate.\u201d\nUnder Illinois law, each party pays his or her own attorney fees unless the party seeking fees is unable to pay and the other spouse has the ability to do so. In re Marriage of Schneider, 214 Ill. 2d 152, 824 N.E.2d 177 (2005); see 750 ILCS 5/508 (West 2002). We will not reverse the trial court\u2019s decision to deny fees unless we find the court abused its discretion. Schneider, 214 Ill. 2d at 174.\nWe find no abuse of discretion. We agree with the trial court\u2019s decision because Leslie failed to show she was unable to pay her own fees. See Schneider, 214 Ill. 2d at 174-75 (no abuse of discretion where party seeking fees failed to show inability to pay). Furthermore, we do not agree with Leslie\u2019s contention that requiring her to pay her own fees will deplete her estate, especially in light of our disposition of the joint bank accounts issue. After paying the remaining $340,795 in fees, Leslie will still have more than $1 million in assets in addition to her portion of the joint accounts. Moreover, Robert paid $197,470.07 to Leslie\u2019s attorneys and $13,000 to her opinion witness in interim fees and costs. We affirm the trial court\u2019s decision to deny Leslie\u2019s petition for attorney fees.\nCONCLUSION\nWe affirm the trial court\u2019s findings related to the Agreement, the maintenance waiver, dissipation, and attorney fees. We reverse the finding that the \u2019451 and \u2019880 accounts were Robert\u2019s nonmarital property and remand for further proceedings consistent with this opinion.\nAffirmed in part and reversed in part; cause remanded.\nBURKE, EJ., and GARCIA, J., concur.", "type": "majority", "author": "JUSTICE WOLFSON" } ], "attorneys": [ "Kalcheim, Schatz & Berger, of Chicago (Michael J. Berger, Leon I. Finkel, Jennifer Cantrell, and Jason G. Adess, of counsel), for appellant.", "Connelly, Roberts & McGivney, L.L.C., of Chicago (Thomas R. Rakowski, Raymond E. Stachnick, and Craig E. Donnelly, of counsel), for appellee." ], "corrections": "", "head_matter": "In re MARRIAGE OF LESLIE BERGER, Petitioner-Appellant, and ROBERT BERGER, Respondent-Appellee.\nFirst District (2nd Division)\nNo. 1-04-0499\nOpinion filed May 17, 2005.\nKalcheim, Schatz & Berger, of Chicago (Michael J. Berger, Leon I. Finkel, Jennifer Cantrell, and Jason G. Adess, of counsel), for appellant.\nConnelly, Roberts & McGivney, L.L.C., of Chicago (Thomas R. Rakowski, Raymond E. Stachnick, and Craig E. Donnelly, of counsel), for appellee." }, "file_name": "0651-01", "first_page_order": 667, "last_page_order": 679 }