In re Marriage of Abrell

SUPREME COURT CASES

Laws-info.com » Cases » Illinois » 4th District Appellate » 2008 » In re Marriage of Abrell

State: Illinois

Court: 4th District Appellate

Docket No: 4-06-0974 NRel

Case Date: 11/19/2008

Preview:NO. 4-06-0974 IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT In re: the Marriage of MARY JACQUELINE ABRELL, Petitioner-Appellee, and JOHN GEORGE ABRELL, Respondent-Appellant.

Filed 11/19/08

) Appeal from ) Circuit Court of ) Sangamon County ) No. 03D172 ) ) Honorable ) Charles J. Gramlich, ) Judge Presiding. _________________________________________________________________ JUSTICE KNECHT delivered the opinion of the court: In this dissolution of marriage proceeding, the circuit court of Sangamon County, after a trial on the merits, entered a judgment of dissolution which dissolved the marriage of the parties and resolved issues concerning maintenance and property. After postjudgment proceedings, the trial court entered several additional orders concerning maintenance and property. Respon-

dent appeals, contending the court erred in (1) categorizing his sick and vacation days as marital property and (2) failing to reduce an award of maintenance. We affirm in part as modified,

reverse in part, and remand with directions. I. BACKGROUND The parties were married on June 2, 1984, and one child, John M. Abrell (Matthew) was born of the marriage on August 26, 1986. On March 10, 2003, petitioner, Mary Jacqueline

(Jacquie) Abrell, filed a petition for dissolution of marriage.

At the time the petition was filed, respondent, John George Abrell, was 53, Jacquie was 58, and Matthew was 16. In April 2003, the trial court awarded Jacquie temporary custody of Matthew and exclusive possession of the marital residence. Later in April 2003, the trial court set John's

child-support obligation at $912 per month and ordered him to pay temporary maintenance of $1,600 per month with $990 to go to Jacquie and the remainder to the mortgage payment on the marital residence. In setting these amounts, the trial court found John

had a semimonthly net income of $2,278.49 and Jacquie had failed to show she was unemployable, and a factor that the court would consider later in setting maintenance. In August 2004, a trial was held on all outstanding issues. At the time of trial, Jacquie was 59 years old. She had

a high-school education and was a graduate of beauty school. Prior to her marriage to John, Jacquie worked part-time at a budget counseling service, then full-time as an account clerk for the Illinois Attorney General's office. In August 1983, Jacquie

obtained a job as an executive secretary at the Springfield recreation department and made approximately $14,000 per year. She remained in this job until April 1987, approximately nine months after Matthew was born. Jacquie left her job with the recreation department to stay home with Matthew, who suffered a string of illnesses at day - 2 -

care.

John testified he and Jacquie agreed she would return to

full-time work when Matthew started school in 1991 although Jacquie never returned to work on a full-time basis during the marriage. The parties argued over Jacquie not returning to work.

John conceded he could not force Jacquie to return to work. Jacquie worked intermittent part-time jobs as an attendant at Matthew's day care, as a playground supervisor and crossing guard at his school, and as a nursing home companion and housekeeper for a relative. out the marriage. For the first few months of the marriage, John worked as an attorney for the Illinois Attorney General. He then began She was, however, primarily a homemaker through-

working as an attorney for the Illinois Department of Public Health in August 1984, where he continued through the time of trial in August 2004. At that time, John earned approximately

$72,000 per year and had accrued 115 sick days and 42 vacation days through his employment with the State of Illinois. John

testified it was possible he would have to use those accumulated days for health reasons because he was diagnosed with prostate cancer in December 2003. He had surgery on January 22, 2004, and

used "quite a few" of his sick days when he received this treatment. Because of the probability he would need to use his

accumulated sick days and vacation days for health reasons, John requested the trial court not treat these days as marital prop- 3 -

erty to be distributed in this proceeding. Jacquie testified she had applied for a significant number of jobs since the temporary hearing and supplied a list of places she applied. She could not find a job. Jacquie testified she

she had certain health problems, including the following:

had undergone an operation on her feet in April 2004; she has bursitis in her knees and hips, as well as high blood pressure, osteoporosis, histoplasmosis, anxiety, depression, mitral valve prolapse, and psoriasis. Jacquie testified her most serious

health problems were asthma, diagnosed when Matthew was born, and emphysema, diagnosed more recently. She has been hospitalized

several times on account of these conditions for up to 10 days at a time, the last being in February 2003. On cross-examination,

Jacquie admitted she smoked cigarettes when she was diagnosed with asthma in 1986, and she continued to smoke through her last hospitalization in 2003. At the time of trial, Jacquie testified her only income came from child support and maintenance. Jacquie listed her

monthly expenses as $2,925.86, which included a mortgage payment of $610 and $407 per month for COBRA insurance she expected to pay when the parties were divorced. Matthew would turn 18 two

days after the trial but his child support would continue until June 2005 when he was scheduled to graduate from high school. On February 1, 2005, the trial court issued its memo- 4 -

randum opinion.

The trial court continued John's child-support For

obligation of $912 per month, terminating May 31, 2005.

maintenance, the trial court ordered $1,000-per-month maintenance effective January 1, 2005, until June 1, 2005, when it increased to $1,500 per month. Further, the court stated as follows:

"The [c]ourt finds this is an appropriate case for permanent maintenance. The mainte-

nance[,] however[,] should be subject to review upon the request of either party by filing a proper pleading within 60 days after the occurrence of the cessation of [r]espondent's duty to pay educational expenses pursuant to [s]ection 5/513 or the [r]espondent's retirement. The [c]ourt does

not find the [p]etitioner to be unemployable but is aware that her age, education[,] and health may be factors which limit the employment options available to her. The duration

of the marriage is also a compelling factor for such an award." Jacquie was allowed to remain in the marital residence until June 15, 2005, with John responsible for mortgage payments. John was

also allowed to purchase Jacquie's interest in the property for $42,937.52. - 5 -

In its memorandum opinion, the trial court also stated: "[I]t is *** abundantly clear that the [c]ourt is not required to divide marital property equally. Of the 114 sick days the

[r]espondent is awarded 45 of those days without those days being subject to division as marital property. The remainder of the

sick days and the vacation days are marital property[,] and the value as computed by the [p]etitioner [is] part of the marital estate." The trial court valued the remaining 69 sick days at $9,585.48 and the vacation days at $12,225.40 for a total of $21,819.88. This amount was incorporated into the marital property distribution and given to John in the judgment of dissolution. On March 29, 2005, the trial court entered a judgment for dissolution of marriage that included provisions for child support, maintenance, and property distribution, including the marital residence and accumulated sick and vacation days as set forth in the memorandum. On April 27, 2005, 29 days after the

entry of the judgment, John filed a motion for reconsideration with a supporting memorandum. In these pleadings, John alleged Jacquie obtained employment at Horace Mann Insurance Company between the date the - 6 -

trial court issued its memorandum opinion and the date judgment was entered. John requested the trial court reconsider its

decision concerning maintenance based on newly discovered evidence and lower his support payments. John also argued no precedent in the State of Illinois supported finding accumulated sick and vacation days to be marital property subject to distribution in a dissolution-ofmarriage proceeding. Alternatively, he argued the income-tax Finally,

implication of the award should have been considered.

he argued the trial court overvalued the number of days available to him because of limits on how many days he could be compensated for at the time of his retirement and because some days were accumulated before the marriage. On June 28, 2005, the trial court entered its supplemental memorandum opinion. On the issue of maintenance, the On the

court continued the matter for an evidentiary hearing.

issue of the accumulated sick and vacation days, the court found: "The authorities are divided on the precise question submitted. There is no doubt in the

[c]ourt's mind that the sick and vacation days accumulated during the marriage are marital property. One of the problems with

the reserved[-]jurisdiction approach is that John could use all of the vacation days be- 7 -

fore retirement and owe Jacquie nothing. sick days would be subject to more scru-

The

tiny[,] but he could use them all up in small increments without much trouble. If John

were to get sick he would most likely spend some of the money from that portion of the marital estate awarded him. The [c]ourt does

not place much credence on the future necessary use of sick days because the [c]ourt is dealing with the present in its division of assets. They are definitely an asset at

present although subject to some contingencies. Since the statute mandates consider-

ation on tax consequences, the [c]ourt finds that those days should be valued using John's present pay scale and reducing the value obtained by the taxes applicable to the same." The court rejected John's arguments about overvaluation and inclusion of days earned prior to the marriage. On February 27, 2006, a hearing was held on the issue of maintenance. Jacquie testified she forwarded her resume to On February 11, 2005, after the

Horace Mann in January 2005.

trial court issued its memorandum opinion on February 1, 2005, - 8 -

Horace Mann offered Jacquie a job, which she started on February 14, 2005. Jacquie admitted by the time the trial court entered

its judgment on March 29, 2005, she had been working at Horace Mann for six weeks. She and her attorney did not report the fact She did not

she obtained employment to John or his attorney.

disclose this information despite the fact she received a discovery request from John prior to the initial trial, which inquired about any employment she had held. Jacquie's starting salary at Horace Mann was $13,860 per year. The job's benefits included health insurance for

Matthew and herself for $190 per month, compared to the $407 per month she had anticipated for COBRA insurance for herself. Jacquie also had dental insurance, dependent and supplemental life insurance, and retirement benefits. Jacquie left her job at Horace Mann on September 23, 2005, to take a new job at the Southern Illinois University School of Medicine (SIU), which paid more and had better benefits. Jacquie's attorney disclosed this new job to John and his Jacquie's starting salary at SIU was $16,608 per year.

attorney.

Jacquie immediately received vacation benefits because she previously had worked for the State of Illinois. She also earned

"comp time" and became a part of the State University Retirement System. Medical and dental insurance for both Matthew and Jacquie also had life insur-

herself cost only $116 per month.

- 9 -

ance for both herself and Matthew. After hearing this evidence, the trial court denied John's motion for reconsideration as it pertained to maintenance because Jacquie obtained her employment after the proofs had closed at trial. It stated its memorandum of opinion was actu-

ally the court's order and the judgment was merely "icing on the cake." The court then allowed the parties to proceed as if a

motion to modify maintenance were on file. Jacquie testified she was meeting her expenses through her pay from SIU and maintenance from John. John purchased her

interest in the former marital home and she used the approximately $43,000 she received to purchase and improve her own home. If she did not provide health insurance to Matthew, Jacquie would only pay $27 per month through SIU for her individual health insurance. Jacquie stated her standard of living had fallen She expected

since the divorce and she drove a 10-year-old car.

expenses for her vehicle, home maintenance, and utilities to increase in the future. Jacquie listed her total monthly expenses as $2,297.84. She conceded if she took out expenses she was voluntarily paying for Matthew, her expenses would drop to $1,984.84 monthly. She

had not incurred any debts since the parties' separation in 2003 and was living within her budget. John testified he continued to have treatment for - 10 -

prostate cancer and had blood tests taken every three to six months. He was also seeing a psychologist once a month and John listed monthly expenses of

taking Effexor for depression.

$4,028.28, which included his $1,500-per-month maintenance obligation. on it. He drove a 13-year-old car with over 100,000 miles

He had over $21,500 in debts and testified he was not

able to save any money despite earning approximately $75,000 per year. John testified his income was not meeting expenses. He

had been forced to use nonmarital savings to make up the shortfall, but those funds were almost exhausted. He stated his

standard of living had also fallen since the parties' separation and dissolution. On February 27, 2006, the trial court entered an order finding Jacquie's employment constituted a substantial change in circumstances and allowed the motion for modification, reducing the amount of permanent maintenance to $1,250 per month, effective March 1, 2006. On August 21, 2006, the trial court entered

an order finding, after consideration of the tax consequences, the marital portion of John's accumulated sick days was valued at $7,001.82 while the accumulated vacation days were valued at $8,802.29 for a total marital value of $15,804.11. These figures

were then included in the calculations concerning the entire marital estate. The court also found under the original judgment

John owed Jacquie $1,086.12 to equalize the division of marital - 11 -

property.

However, under the new order, Jacquie owed John This balance was ordered

$1,917.26 to equalize the division.

paid to John by a reduction in the amount of attorney fees he owed to Jacquie's counsel in the amount of $1,917.26. On September 19, 2006, John filed a notice of appeal. He argued the trial court had failed to make the reduction in maintenance retroactive to the date of the judgment and had failed to reduce the maintenance award further. John further

contends the trial court erred in considering his accumulated sick days and vacation days to be marital property. II. ANALYSIS A. Accrued Sick and Vacation Days as Marital Property The categorization of John's accumulated sick and vacation days appears to be one of first impression in Illinois. No statute or previously reported decision in Illinois appears to have addressed the issue. A trial court apparently treated

accumulated sick days as marital property in In re Marriage of Zummo, 167 Ill. App. 3d 566, 571, 521 N.E.2d 621, 623 (1988). Testimony was given as to their value and that value was awarded to the respondent husband in the property division upon dissolution. Zummo, 167 Ill. App. 3d at 571, 521 N.E.2d at 624. This

division was mentioned in this court's opinion, but the question of whether such days were marital property was not raised on appeal. - 12 -

A trial court's classification of an asset as marital or nonmarital property will not be overturned unless it is against the manifest weight of the evidence. In re Marriage of

Didier, 318 Ill. App. 3d 253, 258, 742 N.E.2d 808, 812-13 (2000). This is based on the presumption that determining whether an asset is marital involves weighing the credibility of witnesses. In re Marriage of Peters, 326 Ill. App. 3d 364, 366, 760 N.E.2d 586, 588 (2001). However, when no disputed facts or issues of

witness credibility are at issue, a de novo standard of review will be applied. Peters, 326 Ill. App. 3d at 366, 760 N.E.2d at

588; see Arnold v. Arnold, 2003-NMCA-114,

Download In re Marriage of Abrell.pdf