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In re Marriage of Donovan
State: Illinois
Court: 4th District Appellate
Docket No: 4-05-0097 Rel
Case Date: 11/04/2005

NO. 4-05-0097

IN THE APPELLATE COURT



OF ILLINOIS

FOURTH DISTRICT



In re: the Marriage of

ELLEN A. DONOVAN,

Petitioner-Appellee,

and

JERRY R. DONOVAN,

Respondent-Appellant.

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Appeal from
Circuit Court of
McLean County

No. 02D413

 

Honorable
John P. Freese,
Judge Presiding.

______________________________________________________________

JUSTICE TURNER delivered the opinion of the court:

Petitioner, Ellen A. Donovan, filed a petition fordissolution of marriage in August 2002 from respondent, Jerry R.Donovan. In December 2003, the trial court issued an order as tothe distribution of martial assets and debts, maintenance, aswell as a judgment for dissolution of marriage.

On appeal, Jerry argues the trial court erred in (1)the amount and duration of maintenance awarded to Ellen, (2)failing to properly value Ellen's 401k account, (3) choosingdifferent dates in the valuation of assets, and (4) categorizingcertain property as marital. We affirm.

I. BACKGROUND

Ellen and Jerry were married on August 28, 1976. Theparties had one son, Thaddeus, born in 1980, and he was emancipated from the marital home at the time of the petition fordissolution. In August 2002, Ellen filed a petition for dissolution of marriage.

In October 2002, the trial court conducted a hearing onEllen's petition for temporary relief. Following testimony andthe admission of exhibits, the court awarded Ellen temporarymaintenance of $1,000 per month.

In January 2004, the trial court conducted a hearing onthe parties' arguments on the remaining issues. Ellen argued thesignificant issues were spousal support and division of property. Ellen stated she had a gross income of $37,000 per year andJerry's yearly income fell within a range of $60,000 to $76,000. Jerry argued Ellen's full-time employment increased her incomeand he was limited to 60 hours of work per week because of afederal law covering truck drivers. Jerry argued he would nothave the opportunity to earn as much as he had in the past.

On December 3, 2004, the trial court entered an order,awarding Ellen $900 per month in maintenance for a term of 60consecutive months. The court also awarded Ellen and Jerryvarious items of personal property, bank accounts, and annuitiesas described in the exhibits. On December 30, 2004, the courtissued the judgment for dissolution of marriage. This appealfollowed.

II. ANALYSIS

Initially, we note our review of this appeal is hindered by the lack of a transcript of the evidentiary hearing. Atoral argument, appellate counsel indicated the lack of a sufficient number of court reporters available in McLean County forfamily-law hearings. With our continued hope the State willfoster confidence and ensure fairness in our judicial system byproviding sufficient court reporters in these important cases, weproceed to the issues presented.

A. Maintenance

Jerry argues the trial court abused its discretion inawarding $900 per month in maintenance to Ellen for 60 months. We disagree.

Section 504(a) of the Illinois Marriage and Dissolutionof Marriage Act (Dissolution Act) sets forth 12 factors for thetrial court to consider in deciding whether to grant a temporaryor permanent maintenance award, including the following:

"(1) the income and property of eachparty, including marital property apportionedand non[]marital property assigned to theparty seeking maintenance;

(2) the needs of each party;

(3) the present and future earning capacity of each party;

(4) any impairment of the present andfuture earning capacity of the party seekingmaintenance due to that party devoting timeto domestic duties or having forgone or delayed education, training, employment, orcareer opportunities due to the marriage;

(5) the time necessary to enable theparty seeking maintenance to acquire appropriate education, training, and employment,and whether that party is able to supporthimself or herself through appropriate employment or is the custodian of a child making it appropriate that the custodian notseek employment;

(6) the standard of living establishedduring the marriage;

(7) the duration of the marriage;

(8) the age and the physical and emotional condition of both parties;

(9) the tax consequences of the propertydivision upon the respective economic circumstances of the parties;

(10) contributions and services by theparty seeking maintenance to the education,training, career or career potential, orlicense of the other spouse;

(11) any valid agreement of the parties;and

(12) any other factor that the court expressly finds to be just and equitable." 750ILCS 5/504(a) (West 2002).

"The trial court has discretion to determine the propriety,amount, and duration of a maintenance award." In re Marriage ofReynard, 344 Ill. App. 3d 785, 790, 801 N.E.2d 591, 595 (2003). A trial court's decision as to maintenance will not be reversedon appeal absent an abuse of discretion. In re Marriage of Culp,341 Ill. App. 3d 390, 394, 792 N.E.2d 452, 456 (2003). "Where anabuse of discretion in awarding or denying maintenance isclaimed, the burden of showing such an abuse rests with theclaiming party." In re Marriage of Homann, 276 Ill. App. 3d 236,240, 658 N.E.2d 492, 495 (1995).

Here, the record contains no report of proceedings orcertified bystander's report setting out what occurred on December 18, 2003. At that hearing on the remaining issues, Ellen andJerry both testified and presented evidence. Dennis Knoblochalso testified. Jerry now contends Knobloch presented testimonyand documents that caused, in part, the trial court to commiterror in calculating the maintenance award.

Jerry, as appellant, bears the burden to present asufficiently complete report of proceedings to support hiscontentions of error. Foutch v. O'Bryant, 99 Ill. 2d 389, 391-92, 459 N.E.2d 958, 959 (1984). When the record on appeal isinadequate, "the reviewing court will presume that the orderentered by the trial court was in conformity with the law and hada sufficient factual basis." Midstate Siding & Window Co. v.Rogers, 204 Ill. 2d 314, 319, 789 N.E.2d 1248, 1252 (2003); seealso In re Marriage of Newberry, 346 Ill. App. 3d 526, 531, 805N.E.2d 640, 644 (2004).

In the case sub judice, the trial court awarded Ellenmaintenance of $900 per month for 60 months. Ellen contends noabuse of discretion occurred in the court's maintenance awardbased on the 27-year marriage. Jerry argues the court sought to"equalize" the parties' future resources. However, the recorddoes not support such a contention. In petitioner's exhibit No.1, Knobloch recommended a maintenance award of $1,250 per monthor $1,300 per month. The court, however, only awarded $900 permonth.

Jerry also complains the trial court failed to considerthe current income of the parties or their ability to earnadditional income. However, a trial court's determination as tothe awarding of maintenance is presumed to be correct. In reMarriage of Krane, 288 Ill. App. 3d 608, 618, 681 N.E.2d 609, 616(1997). In reviewing a matter under the trial court's discretion, "reversal is justified only when it is obvious that thetrial court acted arbitrarily or without conscientious judgment." In re Marriage of Schrimpf, 293 Ill. App. 3d 246, 252, 687 N.E.2d171, 175 (1997).

Jerry has not presented a sufficient record to establish the testimony of the parties involved. Further, Jerry'sargument in his brief offers nothing to require the conclusionthat the trial court acted arbitrarily or without conscientiousjudgment. The court's order indicated it heard the evidence andhad been fully advised. Thus, without more, we find no abuse ofdiscretion.

Jerry also argues the trial court abused its discretionin awarding maintenance for 60 consecutive months. Jerry contends that Ellen's educational background, recent increases inincome, and potential future income made it reasonable to expectshe would be able to support herself within a time frame shorterthan 60 months.

In determining the amount and duration of maintenance,"the trial court must balance the ability of the spouse tosupport himself in some approximation to the standard of livinghe enjoyed during the marriage." In re Marriage of Rogers, 352Ill. App. 3d 896, 899, 817 N.E.2d 562, 566 (2004). The court'sjob is essentially to determine whether a party needs maintenanceand whether the other party has the ability to pay. Rogers, 352Ill. App. 3d at 899, 817 N.E.2d at 566.

Here, the lack of a transcript regarding testimony asto the award of maintenance hinders our review of the issue. Jerry in essence asks us to reweigh the statutory factors to hisarguments. However, "[m]aintenance issues are presented in agreat number of factual situations and resist a simple analysis." In re Marriage of Mayhall, 311 Ill. App. 3d 765, 769, 725 N.E.2d22, 25 (2000). In this case, Jerry has not presented any evidence that would lead us to conclude the trial court abused itsdiscretion.

B. Marital Property Section 503(d) of the Dissolution Act requires thetrial court to divide marital property "in just proportions"considering the enumerated and relevant factors. 750 ILCS5/503(d) (West 2002). Such factors include, in part, the valueof the property assigned to each spouse, the duration of themarriage, the age, health, occupation, sources of income, employability, and needs of each of the parties, and the reasonableopportunity for each spouse for future acquisition of capitalassets and future income. 750 ILCS 5/503(d) (West 2002). Individing marital property, the distribution by the court need notbe equal so long as it is equitable. In re Marriage of Werries,247 Ill. App. 3d 639, 649, 616 N.E.2d 1379, 1388 (1993). Thedivision of marital property will not be reversed on appealabsent an abuse of discretion. In re Marriage of Drury, 317 Ill.App. 3d 201, 210-11, 740 N.E.2d 365, 371 (2000). In that regard,the court's distribution of assets will only be disturbed onappeal if no reasonable person would agree with the trial court'sdecision. In re Marriage of Claydon, 306 Ill. App. 3d 895, 898,715 N.E.2d 1201, 1203 (1999).

1. Ellen's 401k Account

Jerry argues the trial court erred in failing toproperly value Ellen's 401k account or, in the alternative,failing to divide the 401k through the entry of a qualifieddomestic relations order (QDRO). We disagree.

Section 503(f) of the Dissolution Act provides that ina proceeding for dissolution of marriage, "the court, in determining the value of the marital and non[]marital property forpurposes of dividing the property, shall value the property as ofthe date of trial or some other date as close to the date oftrial as is practicable." 750 ILCS 5/503(f) (West 2002). Courtshave also found that marital assets must be based on the value asthey exist on the date of dissolution. Claydon, 306 Ill. App. 3dat 900, 715 N.E.2d at 1204, citing In re Marriage of Weiler, 258Ill. App. 3d 454, 460-61, 629 N.E.2d 1216, 1220 (1994).

In this case, Jerry argued at closing argument thatEllen's 401k account exceeded $13,000 in value. The trial courtset the value at $4,863 based on Ellen's exhibit. Jerry did notpresent any exhibits or final calculations as to the amount thecourt should value the 401k account. "It is the obligation ofthe parties to provide the trial court with sufficient evidenceof the value of property." In re Marriage of Albrecht, 266 Ill.App. 3d 399, 402, 639 N.E.2d 953, 955 (1994). Further, "areviewing court will not reverse a trial court where parties havefailed to produce evidence of value when there was ample opportunity to do so." Albrecht, 266 Ill. App. 3d at 403, 639 N.E.2d at956. As Jerry failed to present sufficient evidence of the valueof Ellen's 401k account, we find no error in the court's ruling.

As to the trial court's alleged failure to divideEllen's 401k through a QDRO, we also find no error. Jerry'scounsel offered a solution whereby the court would enter a QDROfor the 401k. Ellen's counsel responded by stating the courtshould then place Jerry's Putnam Keogh account and Putnam IRA ina QDRO. The court did not place any of these funds in a QDRO. As Jerry has not established any error, we find the court did notabuse its discretion in doing so.

2. Dates of Valuation

Jerry argues the trial court erred in choosing different dates for the valuation of different assets and in failing tovalue the assets as close to the date of trial as practicable. Respondent argues various exhibits show debts had been paid andbank accounts had more or less in them at a time near the date ofdissolution as opposed to September 2002. However, respondenthas not provided a bystander's report or a transcript of thehearing where these exhibits were testified to and admitted intoevidence. In essence, respondent seeks to have this courtconduct a de novo review to determine the value of the property. However, any type of review is hindered by the absence of thetranscript. With the inadequate record, we presume the trialcourt's order conformed with the law and was based on sufficientfacts.

3. Classification of Property

Jerry argues the trial court erred in categorizingcertain property as marital. Jerry contends Ellen's exhibitsshow the "small amount of personal property is non[]maritalproperty." However, Jerry has not provided a transcript of thetestimony pertaining to these issues. Instead, Jerry asks thiscourt to redistribute the property based on his representationsas to what certain notes and crossed-off items on various exhibits mean. With no transcript to determine what evidence thetrial court considered, we presume the court's classification ofproperty was correct.

III. CONCLUSION

For the reasons stated, we affirm the trial court'sjudgment.

Affirmed.

MYERSCOUGH, J., specially concurs.

KNECHT, J., specially concurs.









































JUSTICE MYERSCOUGH, specially concurring:

I share the sentiments of Justice Knecht's specialconcurrence. For these reasons, I specially concur.







































JUSTICE KNECHT, specially concurring:

I concur with the result but write separately toaddress the lack of a transcript. Each judge on the courts ofreview may believe the practices in their home county or circuitare representative of the rest of the state. In fact, courtroomprocedures and practices vary from county to county.

McLean County is large, prosperous, and continuing togrow. It has excellent court facilities, a respected trial bar,and an excellent judiciary. What it apparently does not have isa sufficient number of court reporters to provide a record in thecontested dissolution of a 26-year marriage involving maintenance, retirement accounts, the valuation of assets, and anexpert witness. I do not know if that is a problem in othercounties.

At oral argument, we learned the parties arrived fortheir trial court hearing and discovered no court reporter wouldbe available. At that point, counsel had to make a difficultchoice--to seek a continuance until a reporter might be available, to seek a continuance to call a private court reporter, orto proceed to hearing hoping a record would not be necessary. Clients seeking a dissolution do not want further delay, andcourt settings are a precious commodity. Private court reportersare expensive. Counsel here elected to proceed to hearing.

That choice, which was an exercise in judgment, waspractical and does not deserve criticism. The criticism is for asystem that expects citizens to use the courtroom to resolvedisputes but fails to provide a component essential to theorderly administration of justice--a record. When a systemprovides a record in some cases but not others, it is making avalue judgment that tells some citizens your case is a lowpriority. It is no surprise a matrimonial case was the subjectof this prioritizing.

It is no answer to require litigants to hire their owncourt reporters. The expense to families already sufferingeconomic upset from a dissolution would have damaging consequences. Private reporters are essential to the preparation ofmany civil cases, but once in court, the reporter should beofficial and serve the court and system.

A bystander's report may have been a weak substitutefor a record (166 Ill. 2d R. 323(c)), but the retirement of thejudge who heard the case made that difficult. In a matrimonialcase without a court reporter--for whatever reason--the trialjudge has increased responsibility to be as complete as possiblein defining the parties' respective gross and net incomes, whycertain awards are made, and what dates are being used to setvalues. Detailed findings in an order would enable us to conducta better review in this case.

This special concurrence is not a brief for the electronic recording of hearings and trials. I prefer a recordprepared by a professional, certified, experienced court reporterwho is able to work in partnership with a trial judge to preventthe attorneys from talking over one another, or talking toorapidly, or a witness giving a muffled, unintelligible response. The complete record is best produced by an official court reporter, and a record is the key to meaningful appellate review.

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