NOS. 4-03-1038, 4-04-0063 cons.
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In re: the Marriage of JANICE V. MOUSCHOVIAS, Petitioner-Appellee, and TELEMACHOS CH. MOUSCHOVIAS, Respondent-Appellant. | ) ) ) ) ) ) ) ) | Appeal from Circuit Court of Champaign County No. 96D627 Honorable |
PRESIDING JUSTICE COOK delivered the opinion of the court:
Petitioner, Janice V. Mouschovias, and respondent, Telemachos Ch. Mouschovias, were married June 20, 1987. Three children were born as a result of the marriage, Alexander, born August 30, 1991, Margarita, born September 14, 1993, and Adonis, born May 22, 1996. Janice filed a petition for dissolution of marriage on September 17, 1996. On October 28, 2003, the court entered its final order on all remaining issues. Telemachos appeals. Janice cross-appeals. We affirm.
I. BACKGROUND
Janice, age 43, has a bachelor of science degree in physical education. She and the children reside in a single-family dwelling in Urbana, Illinois. She rents the dwelling from a land trust owned by her father. The court found that Janice was a "super hardworking primary caretaker of the home and the children." The court found that Janice, relatively young and in good health, is clearly capable of supporting herself. During the 2002-03 school year, she was employed full-time at a local Catholic high school, at an annual salary of $24,307.
Telemachos, age 57, is a tenured professor at the University of Illinois (University), teaching in two departments (physics and astronomy). He continues to reside in the former marital residence in Urbana, which is his nonmarital property. The trial court found Telemachos to be "the super hardworking primary breadwinner in the family" and "an astute financial investor." Telemachos has a pension plan administered by the State Universities Retirement System (SURS). He was first certified into the system August 21, 1980. Telemachos earned between $90,000 and $100,000 per year from the University.
The trial court noted that the parties engaged in one of the most miserly standards of living imaginable considering their income and assets. The court referred to testimony regarding the disrepair of appliances in the household, the lack of heat in the home, the fact that Janice did not have money to purchase necessary food items and had to submit receipts to be reimbursed for even minor household expenses, Janice's lack of a vehicle for 14 months, Telemachos's use of a 1980 vehicle that was highly unreliable and unsafe for the children, and the high state of disrepair and environmental hazards in the home. The year preceding the parties' separation, the annual family expenses were a "miserly $22,000 for a family of five with a husband earning a substantial University income" and holdings of over $2 million in liquid assets. The trial court denied Janice maintenance, noting the parties only lived together for nine years followed by five years of litigation, Janice had received "minimal" temporary maintenance of $500 per month during the litigation. The court also noted that as a part of its order Janice would receive marital assets valued at $522,745 in addition to her interest in Telemachos's rather substantial retirement account.
Janice was awarded one-half of the marital portion of Telemachos's SURS pension, "if, as[,] and when" the pension is received by Telemachos.
The trial court stated it would normally have considered an unequal distribution of the marital property in Janice's favor because Telemachos's contributions as breadwinner were offset by Janice's contributions as homemaker, Telemachos was in a much better position to acquire future assets, and Telemachos had nonmarital property set off to him valued at $446,026 as opposed to $1,054 to Janice. The court chose not to do that in this case because of Telemachos's substantial contribution of nonmarital funds to the marital estate, which were unable to be traced. The court calculated the total value of the marital property to be $1,141,204 and awarded 50%, $570,602, to each party. Janice's share was reduced by a $47,857 attorney-fee reimbursement. Telemachos's share was increased by that same amount.
To carry out its division, the trial court awarded nine marital accounts, with a value of $136,572, to Janice. The court awarded eight marital accounts, together with a nonmarital account that owed the marriage a $42,252 reimbursement, to Telemachos. The total value of those eight accounts was $1,004,631. Among those eight accounts were a Vanguard Prime Money-Market Fund, which had been opened by Telemachos before the marriage, and a Vanguard 500 Index Fund, which Telemachos had opened five days before the marriage. The Vanguard Prime Money-Market Fund had a current balance of $20,361. The Vanguard 500 Index Fund had a current balance of $527,072. To equalize the property settlement, Telemachos was ordered to pay Janice $386,172.
Telemachos was also assigned seven nonmarital accounts valued at $446,026, plus his nonmarital residence with an equity of $81,680. Janice was assigned as her nonmarital property her Teacher's Retirement System Account, valued at $1,054.
In its order of October 28, 2003, the trial court noted that the parties had allowed their hatred and bitterness for each other to inhibit any analysis or rational thinking. The result was an inability to agree on just about any issue, to litigate every conceivable issue, to take up huge amounts of court time, and to amass a small fortune in attorney fees and expenses incurred. Between June 13, 1997, and March 20, 1998, the trial court conducted some 15 hearings on temporary custody and visitation issues. Between February 2, 1999, and February 10, 2000, the court conducted another 18 hearings on permanent custody and visitation. Between February 20, 2001, and February 28, 2003, the trial court conducted 20 hearings on the remaining ancillary issues. On September 3, 2002, Telemachos's attorney was granted leave to withdraw, and Telemachos represented himself, pro se, from that point in the litigation.
During the proceedings, the trial court awarded interim attorney fees and costs to Janice on six occasions, totaling $135,714. Telemachos initially paid that entire amount, but because the interim awards were considered an advance from the marital estate, Telemachos was given a credit in the final order. Although the court found both parties "share the blame for this war," the court further found that Telemachos unreasonably continued the custody dispute after the court had ruled against him on temporary custody. Accordingly, the court ordered that Telemachos would be individually responsible for Janice's attorney fees to the extent of $40,000 and the balance, $95,714, would be divided equally between the parties. As Telemachos had previously paid the $135,714, Janice was ordered to reimburse the marital estate $95,714 (reimburse Telemachos $47,857).
II. ANALYSIS
A. SURS Pension
Telemachos argues the trial court erred in awarding Janice a portion of his SURS pension benefits, "if, as[,] and when" those benefits are received. He also argues that if any part of his earnings after dissolution of the marriage were regarded as marital, that would amount to involuntary servitude in violation of the thirteenth amendment (U.S. Const., amend. XIII).
There are at least two alternate procedures for apportioning unmatured pensions upon dissolution. In re Marriage of Wisniewski, 286 Ill. App. 3d 236, 241, 675 N.E.2d 1362, 1366 (1997). Under one approach, the trial court, upon dissolution, determines the present value of the pension, determines the marital interest in the pension, and awards the nonpensioner spouse other marital property to compensate for the award of the entire pension to the pensioner spouse. Wisniewski, 286 Ill. App. 3d at 241, 675 N.E.2d at 1366-67. Under the second approach, the court does not immediately compensate the nonpensioner spouse. Instead, it orders that the employee spouse pay the nonemployee spouse his or her portion of the marital share "if, as, and when" the pension plan becomes mature. In re Marriage of Hunt, 78 Ill. App. 3d 653, 663, 397 N.E.2d 511, 519 (1979). At the time of dissolution, the court can devise a formula that will later determine both the marital interest and the nonpensioner's share in the benefits. This formula produces a percentage, which will be multiplied by the pension payments as they are actually received. Hunt, 78 Ill. App. 3d at 663, 397 N.E.2d at 519.
Both parties here asked for an immediate offset of the SURS pension. The trial court declined to do so for a number of reasons: (1) Telemachos's retirement date was probably not close; (2) there was a tremendous discrepancy in the opinions of the present value of the pension, Telemachos's expert valuing it at $124,116 and Janice's expert valuing it at $669,498; (3) a "clean break" between the parties was impossible because their three children "will require, unfortunately, substantial involvement between the parties in the future"; and (4) Janice's concerns that Telemachos would leave the country are speculative as Telemachos has appropriately complied with court orders, and in any event, SURS is based in Champaign and could possibly be joined as a third party if emergency circumstances occur. We conclude the trial court did not abuse its discretion in its choice of an apportionment method. See Wisniewski, 286 Ill. App. 3d at 244, 675 N.E.2d at 1368.
We disagree with Telemachos's argument that consideration of any part of his earnings after the dissolution is improper. Part of the benefits that Telemachos will accrue after the dissolution will be due to marital contributions, contributions he made during the marriage. The trial court was not required to ignore those marital contributions. Wisniewski, 286 Ill. App. 3d at 243-47, 675 N.E.2d at 1368-70.
B. Classification of Marital and Nonmarital Property
Telemachos argues the trial court erred in classifying the Vanguard Prime Money-Market Fund and the Vanguard 500 Index Fund, both of which had been opened by him before the marriage, as marital property. Even if the court erred in its classification, however, we see no error. The court is required to "assign each spouse's non[]marital property to that spouse." 750 ILCS 5/503(d) (West 2002). That was done here. The two funds were awarded to Telemachos. Classification of the accounts as marital arguably resulted in Janice receiving a greater share of the other marital assets. The court is allowed to take nonmarital property into consideration, however, in determining what share of the marital property should be awarded the parties. The court shall divide marital property in just proportions considering all relevant factors, including "the value of the property assigned to each spouse." 750 ILCS 5/503(d)(3) (West 2002). The trial court stated it would have awarded a greater share of the marital assets to Janice but for "the nonmarital property contributed to the marital funds by [Telemachos] which were unable to be traced." The court was well aware of the parties' marital and nonmarital contributions. The court's distribution of marital assets was proper even if its classification of the two accounts was not and there were fewer marital assets than the court had calculated.
However, we conclude the two funds were properly classified as marital. "[P]roperty acquired before the marriage" constitutes nonmarital property. 750 ILCS 5/503(a)(6) (West 2002). "Property," however, must have some identity, some integrity. A mere receptacle (a bucket?), owned by a party before the marriage, into which he places marital property, is not sufficient to invoke the rule that "contributing one estate of property into another resulting in a loss of identity of the contributed property" transmutes the classification of the contributed property to that of the estate receiving the contribution. 750 ILCS 5/503(c)(1) (West 2002). "We believe that to hold that those funds were transmuted to nonmarital property would contravene the intent behind section 503(c) of the [Illinois Marriage and Dissolution of Marriage] Act [(Dissolution Act)] (750 ILCS 5/503(c) (West 1998))." In re Marriage of Henke, 313 Ill. App. 3d 159, 168, 728 N.E.2d 1137, 1143 (2000).Henke involved a checking account that was in existence prior to the parties' marriage. In holding that the funds in the account were marital, the trial court relied on the facts that the amount of marital funds contributed greatly exceeded the amount of nonmarital funds initially present, and funds were deposited and withdrawn during the marriage and used to pay family expenses. Henke, 313 Ill. App. 3d at 168, 728 N.E.2d at 1144. Henke recognized that the right of reimbursement could be of little value with such an asset after a marriage of 16 years. Henke, 313 Ill. App. 3d at 167, 728 N.E.2d at 1143; cf. 1 H. Gitlin, Gitlin on Divorce