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In re Marriage of Crook
State: Illinois
Court: 4th District Appellate
Docket No: 4-01-1147 Rel
Case Date: 10/04/2002

NO. 4-01-1147

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In re: the Marriage of 
ROBERT L. CROOK, 
                       Petitioner-Appellee,
                       and
PATRICIA J. CROOK,
                       Respondent-Appellant.

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Appeal from
Circuit Court of
Champaign County
No. 00D200

Honorable
Arnold F. Blockman,
Judge Presiding.


JUSTICE KNECHT delivered the opinion of the court:

Petitioner, Robert Crook, and respondent, PatriciaCrook, were granted a dissolution of marriage on May 11, 2000. On June 20, 2001, the trial court entered a supplemental order onancillary issues, including the division of marital property. Individing the marital property, the trial court awarded petitionerone-half of the present and future monthly payments respondentwill receive from her pension plans. The court also orderedrespondent to reimburse the marital estate for $40,000 of maritalfunds she contributed to her nonmarital estate. Respondentappeals these two aspects of the trial court's division of themarital property.

I. BACKGROUND

Petitioner and respondent were married on September 6,1966. During the course of the marriage, petitioner was a farmerwhile respondent worked in the home for the first 10 years oftheir marriage, after which she was employed as a secretary for22 years. The parties separated in the year 2000 when petitionerannounced his desire to end the marriage. During the marriage,two children were born, both of whom were emancipated whenpetitioner filed for dissolution.

The farmhouse where petitioner and respondent livedduring most of the marriage originally belonged to respondent'sparents, who deeded the property to respondent in 1983. Theproperty consisted of a house, an attached garage, a smallmachine shed, a barn, a crib, and old shop, and a steel grainbin. At some point, the parties tore down an old barn on thefarmland and built a new shed. They borrowed the money fromCentral Illinois Bank to build the shed and they paid on theloan, which was in both of their names, until petitioner quitfarming in March 2000. According to petitioner, he "woke up oneday" and decided to quit farming. He testified he made a betterliving in his current occupation as a truck driver, with anannual salary of $40,000. On cross-examination, however, petitioner stated his net farm income in 1998 was $66,611 and in 1999it was $149,795. Petitioner denied he got out of farming becauseof the divorce.

When petitioner quit farming, the parties agreed tosell the farm equipment. After some of the equipment was sold,$50,000 was placed into a bank account. Petitioner testified itwas his intention to place the proceeds from the sale into aseparate bank account to pay any tax liabilities created by thesale. Respondent testified she did not agree with petitioner'sdecision to apply the proceeds to the tax liability. Petitionertestified that according to an accountant, if the parties filed ajoint tax return, their tax liability for the year 2000 would beapproximately $70,000.

After the petition for dissolution had been filed butbefore the dissolution was granted, respondent took $42,000 fromthe bank account and petitioner took $8,000. Because respondentfelt "insecure" after petitioner filed for divorce and told herhe might declare bankruptcy, she used $40,000 of the money shetook to pay off part of the loan they had obtained from CentralIllinois Bank to finance the construction of the new shed.

Respondent testified it had always been her intentionto retire at age 55. Petitioner admitted during the marriage hewas aware of respondent's desire to retire at age 55, but he didnot agree with her decision. Petitioner stated he intended towork until age 65, when he would receive approximately $850 permonth in social security benefits. This amount could increase ifhe continues to work.

Respondent, as planned, retired from her job as asecretary at Parkland College in July 2000, approximately twomonths after the dissolution was granted. Respondent testifiedParkland had an incentive plan that offered additional retirementincome for early retirement. The incentive included a lump-sumpayment of "15 and some thousand dollars" and a gross amount of$757.49 per month, from which $80.50 was deducted for taxes and$87.55 was deducted for insurance. Respondent would receivemonthly payments under the incentive plan for 40 months, or untilJuly 2004.

On May 11, 2000, the trial court entered a judgment ofdissolution of marriage as to grounds only. On June 20, 2001,the trial court entered a memorandum opinion and supplementalorder on ancillary issues. In the June 20 order, the trial courtdenied respondent's request for maintenance. The trial courtalso discussed the parties' pension plans and determined petitioner was entitled to an equal division of respondent's retirement funds from the early retirement package from ParklandCollege and her State University Retirement System and IllinoisMunicipal Retirement Fund accounts. This equal division resultedin each party receiving approximately $838 per month based onrespondent's current retirement income until July 2004. However,after July 2004, when respondent's early retirement incentivepayments from Parkland cease, each party will receive only$460.20 per month from respondent's remaining retirement funds. In reaching its conclusion as to the division of respondent'spension benefits, the trial court did not consider the $850 insocial security benefits petitioner would receive upon hisretirement.

The trial court also discussed the "Shed Issue and IRSDebt" and determined the marital estate was entitled to reimbursement for the $40,000 respondent took from the sale of thefarm equipment and applied to the debt incurred by the parties tobuild the shed on respondent's nonmarital property. Specifically, the trial court stated: "The $40,000 came from the saleof farm equipment, clearly marital property. The large shedwould be a fixture located on the farm, clearly [r]espondent'snonmarital property. The marital property was clearly transmutedinto non[]marital property."

The trial court rejected respondent's argument thereshould not be reimbursement to the marital estate because therewas no evidence showing an increase in value to respondent's non-marital real property as a result of the $40,000 marital contribution toward the shed purpose. The trial court then went on toacknowledge the law in this area is "quite murky" and courts"seem to support either a 'value added' or a 'dollar[-]for[-]dollar' approach" in determining how much the marital estateshould be reimbursed for contributions toward a party'snonmarital estate. In this case, the trial court examined thecase law and determined the "dollar-for-dollar" approach wasappropriate. The trial court ordered respondent to "reimbursethe marital estate by paying a greater percentage of[p]etitioner's 2000 tax liability of $67,991," and determinedrespondent should pay $53,995.50, which was $40,000 plus one-halfof the remaining tax liability. The court also ordered respondent to pay one-half of any tax liability incurred from the saleof farm equipment in 2001.

The trial court concluded by stating, "[t]he concept ofthis overall distribution is an equal division of the assets,"and "[t]he pension plans were divided equally between the parties." The court further stated "[t]he marital contribution tothe shed was equalized by a greater contribution of [r]espondenttoward an otherwise equal I.R.S. obligation. This proposeddistribution is quite appropriate considering the lengthy marriage and the equal contributions of the parties."

Finally, the trial court further explained its decisionto require respondent to pay a greater percentage of the taxdebt:

"The [c]ourt is aware that this decisionwill impose some problems for [r]espondent inregard to payment of the tax indebtedness(ameliorated somewhat by the sale of theremainder of the personal property) and herretirement decision. The [c]ourt finds,however, that such a disposition is fairunder the circumstances of this case toachieve an equal division of the property anddebt. The [c]ourt notes that the[p]etitioner is working full[-]time as atruck driver. The [r]espondent is healthyand is highly employable as a secretary. Furthermore, the [p]etitioner has very littleretirement funds in his own name, over andabove the distribution from [r]espondent'spensions provided herein. Finally, the[c]ourt also considered that [r]espondent hassubstantial non[]marital property set toher."

This appeal followed.

II. ANALYSIS

Respondent presents two issues for review: (1) whetherthe trial court erred in its division of retirement funds and (2)whether the trial court erred in ordering respondent to pay theincome tax obligation created by the sale of the farm equipment.

A. Social Security Benefits

Respondent first argues the trial court should haveconsidered petitioner's future social security benefits whendetermining a proper division of the parties' retirement funds. Respondent contends if petitioner retires after July 2004, hewill receive a minimum of $850 in social security benefits inaddition to one-half of respondent's retirement benefits($460.20), while respondent's share of her retirement funds willamount to only $460.20 per month. Respondent argues the trialcourt should have considered petitioner's anticipated socialsecurity retirement income and then, based on the actual amountof money received by the parties, awarded respondent her entireretirement fund. Therefore, respondent argues, each party wouldreceive "approximately an equal amount of money for the balanceof each of their lives."

Petitioner contends the trial court correctly followedthe law when it refused to consider his prospective socialsecurity benefits when determining an equitable property distribution. Further, petitioner points out when he retires andbegins to draw social security, respondent will receive, inaddition to the $460.20 from her own retirement benefits, an ex-spouse's share from social security of approximately $125. Therefore, respondent would receive a total retirement benefit ofapproximately $585 per month upon petitioner's retirement. Thisis approximately $725 less per month than the minimum petitionercan expect to receive upon retirement. Petitioner argues although respondent's retirement income will be substantially lessthan his, the law regarding the indivisibility of social securitybenefits coupled with respondent's choice to retire at age 55demanded such a result.

On appeal, we will reverse the trial court's distribution of property only if it amounts to an abuse of discretion. In re Marriage of Charles, 284 Ill. App. 3d 339, 342, 672 N.E.2d57, 60 (1996). Pension benefits attributable to contributionsmade during the marriage are marital property. In re Marriage ofWalker, 304 Ill. App. 3d 223, 227, 710 N.E.2d 466, 468 (1999). Section 503(d) of the Illinois Marriage and Dissolution ofMarriage Act (750 ILCS 5/503(d) (West 2000)) requires the trialcourt to divide marital property in "just proportions" takinginto account enumerated statutory factors and any additionalfactors the court deems relevant in each case. In re Marriage ofDunlap, 294 Ill. App. 3d 768, 778, 690 N.E.2d 1023, 1029 (1998). The touchstone of proper and just apportionment is whether it isequitable in nature and each case must rest upon its own facts. Dunlap, 294 Ill. App. 3d at 778, 690 N.E.2d at 1029. The requirement that the division of property be just and equitabledoes not mean it must be mathematically equal. Dunlap, 294 Ill.App. 3d at 778, 690 N.E.2d at 1029.

Social security benefits are not considered maritalproperty and they may not be divided by state courts as part ofan equitable division of property after a dissolution of marriage. Hisquierdo v. Hisquierdo, 439 U.S. 572, 590, 59 L. Ed. 2d1, 16, 99 S. Ct. 802, 812-13 (1979); In re Marriage of Evans, 85Ill. App. 3d 260, 263, 406 N.E.2d 916, 917-18 (1980) rev'd onother grounds, 85 Ill. 2d 523, 426 N.E.2d at 854 (1981). Asstated in Evans, state courts cannot divide social securitybenefits upon dissolution of marriage because under the SocialSecurity Act (Act) (42 U.S.C.

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