NO. 5-02-0743

	IN THE

	APPELLATE COURT OF ILLINOIS

	FIFTH DISTRICT

________________________________________________________________________ 

In re MARRIAGE OF				)  Appeal from the

							)  Circuit Court of

LILLIAN CARLYENE ZWEIG,			)  Madison County.

							)

     Petitioner-Appellant,				)

							)

and							)  No. 97-D-387

							)

HENRY EUGENE ZWEIG, SR.,			)  Honorable

							)  Ralph J. Mendelsohn,

     Respondent-Appellee.				)  Judge, presiding.

________________________________________________________________________

	JUSTICE KUEHN delivered the opinion of the court:

	Lillian Carlyene Zweig appeals from the trial court's orders of January 10, 2002, and

November 1, 2002, which distributed the marital property and denied a motion to reconsider

that distribution.  We affirm.

	Lillian Carlyene Zweig (Carlyene) and Henry Eugene Zweig, Sr. (Gene), took their

marital vows on July 21, 1954.  They had four children during the marriage, three of which

still survive.

	Carlyene was a homemaker until their youngest child was three.  At that time she

entered the workforce–in about 1964.  She worked in an accounting department and later as

a bank teller.  She worked until sometime shortly after August 1991.

	Gene began work as a truck driver for Missouri Pacific Truck Lines at the end of

January 1968.  On August 2, 1991, when he was loading a piggyback trailer on a railroad car,

a stanchion fell, causing Gene to fall.  The fall resulted in a fracture of Gene's neck at the C5-

6 level and rendered him a quadriplegic.  He remained hospitalized for five months.  During this time, Carlyene quit her bank job in order to be able to take care of her husband.

	Immediately after Gene's injury, Carlyene obtained a power of attorney so that she

could access and assert control over investment accounts held solely in Gene's name.  For

reasons not entirely clear from the record, Carlyene took it upon herself in November 1993

to try to secure control over Gene's estate through a court process in which she sought to

have him declared incompetent.  This attempt was unsuccessful.  Gene filed a request for an

order of protection, which was granted.  The order of protection prevented Carlyene from

interfering with his personal liberty and controlling his person and assets.  At the trial of this

case, Carlyene denied ever having filed such an action, but she was impeached with the

documentary proof.

	Four years later, Gene finally was paid for his personal injury claims, in the amount

of $1,744,843.15.

	Gene testified that before he received his settlement, as a result of his various

disability payments, his stream of monthly income was $4,120.  The sources of this amount

were benefits from workers' compensation, social security disability, employment pension,

and Veterans' Administration disability.  What we do not know is how long it took after his

accident to reach this level of income and whether he went without income for a period of

time immediately following his accident.

	After Carlyene obtained control of Gene's investment assets, she liquidated them,

transferred the money into accounts bearing only her name, and then ultimately purchased

treasury bills.  Interest on these treasury bills was credited to Carlyene's account.  She did

not discuss any of these financial matters with Gene, who had no idea that his investment

accounts had been liquidated.  The monetary total of the investment accounts prior to their

liquidation was $235,496.  Additionally, Carlyene liquidated her own 401(k) account, which

contained $23,945.  For the five years following this liquidation, Carlyene received interest payments totaling $13,000 annually.  When Gene requested financial information during this

time, Carlyene informed him that these matters were none of his concern.

	That money is gone.  The only accounting Carlyene provided the court was that she

utilized all the funds for household expenses.  She did not provide line item entries

describing the precise distribution of these funds.  Generally, she simply claims to have

utilized all the funds to keep the household running and to pay medical expenses.  During

court arguments, her attorney opined that the money could have been utilized to finance the

numerous cruises they took subsequent to Gene's accident.  However, there was no evidence

introduced at the trial relative to cruise expenses.  Gene testified that he had a difficult time

believing this claim because he had the $4,120 monthly income, which was an amount

substantially in excess of the total household income prior to his accident, because his

medical bills were then being paid in full through workers' compensation benefits, and

because the Zweigs had no house payment, no car payments, and no credit card payments. 

	At some time after the accident, Gene and Carlyene ceased living together as husband

and wife, although they remained in the same residence.  

	On April 11, 1997, Carlyene filed a petition seeking a dissolution of the marriage. 

A reconciliation attempt occurred in 1997 or 1998, at which time Carlyene sold marital

furniture in anticipation of a marital residence move to Arizona.  That attempt failed, and the

parties renewed their interest in obtaining a divorce.  

	Carlyene continued to live in the marital residence until October or November 1999. 

Carlyene moved to Waterloo, Illinois, planning to reside with a daughter, but she ended up

only living with her daughter for approximately one week.  She moved from her daughter's

home into the home of a male friend, with whom she had developed a personal relationship

allegedly within that one week.  She contributes $1,600 per month toward the living

expenses she and her male friend incur.  The couple has no present marital plans.

	Gene remains a quadriplegic.  He lives in the marital residence, which has been

modified to meet his needs.  He has an in-home nurse for about four hours each day, which

costs about $1,400 per month.  Gene continues to take care of his health, although he must

be hospitalized a couple of times each year for various ailments.  The expenses of Gene's

hospitalizations are almost completely covered by Medicare Complete.  His other medical

expenses are covered at about 80%.  In-home nursing care is paid entirely by Gene.  His

affidavit of assets and liabilities lists monthly out-of-pocket expenses at $3,039.  In

testimony, he indicated that some of these expenses were somewhat inflated and that a more

accurate amount for out-of-pocket expenses is $2,636.  His present monthly income is

$2,400.  He anticipates, based upon his conversations with various treating physicians, that

his medical condition will deteriorate over time.  If Gene's medical situation ultimately

necessitates  round-the-clock nursing care, he will pay for such care, because he has no

desire to be placed in a nursing home.  A life-care plan prepared on Gene's behalf determined

that he could need as much as $180,019.72 per year for medical and medical-related

expenses.  Carlyene testified that she did not believe that Gene would ever spend that level

of income on his own care.  Gene testified that he might do so, if the expenditures would

result in helping him "quite a bit," but he acknowledged that he had not spent any money on

items referenced in the plan in the six to eight months since he had received the plan.  The

expert who created Gene's life-care plan also compiled lists of charges for area nursing

homes for quadriplegic care.  The lowest cost was $73.43 per day, and the highest cost was

$167 per day.

	Carlyene suffers from allergies, asthma, and bronchitis.  She also suffers from some

type of movement disorder resulting in hand tremors and uncontrolled head motion, for

which she is presently under treatment at Washington University School of Medicine and for

which she might need brain surgery.  She takes several medications for her conditions.  Carlyene's health insurance through Gene's union lapsed on July 1, 2001.  She testified that

because she was not yet old enough for Medicare, she obtained her own private insurance

at an annual cost of approximately $3,911, or about $326 per month.  She averages about

$293 per month in medical costs and $550 per month in prescription costs.

	On January 10, 2002, the trial judge entered an order distributing the parties' property. 

He allowed each party to retain ownership of his or her vehicle and to retain any personal

property within his or her possession.  The court determined that Carlyene took the $324,442

in investment funds at a time when the marriage was undergoing an irreconcilable breakdown

and that, therefore, she should be charged with the dissipation of marital assets in that

amount.  The value of the house was in dispute because Carlyene provided testimony or

evidence that the property was worth anywhere from $60,000 to $337,000 and Gene

provided testimony and evidence that the property was worth between $176,000 and

$186,000.  Carlyene desired this home, suggesting that Gene could move to a nursing home,

but the trial court determined that because Carlyene had dissipated marital funds, because

Gene wanted to remain in the home and because the home had been modified to meet his

medical needs, the home should be awarded to Gene at the value to which he testified,

$186,000.  The judge found that the ongoing income of the parties was a marital asset,

ordering Gene to pay Carlyene $875 per month as her share of the marital income, to be

reduced to $787 per month when Carlyene turns 65 and begins receiving her pension. 

Carlyene received her $32,000 IRA account, and Gene received his $9,000 IRA account. 

The income from the personal injury settlement, $875,128, was to be divided equally

between them.  Regarding the corpus of the settlement, in a lengthy discussion, the trial court

considered all the relevant statutory factors, as well as Gene's pain, suffering, and disability,

and concluded that the personal injury settlement of $1,744,843 should be awarded to Gene. 

Carlyene was awarded prescription reimbursement expenses of $531.32 but was denied a $400 reimbursement for expenses associated with a vacation to Aruba.  Each party was

ordered to be responsible for his or her own health insurance and attorney fees.

	On November 1, 2002, the trial court denied Carlyene's posttrial motions.

	From these two orders, Carlyene appeals.  On appeal, she argues that the trial court

should not have found that she had dissipated marital assets because the time during which

she allegedly had dissipated the assets was before she filed the divorce petition and before

the parties physically separated.  She also argues that the trial court's statement that she either

hid or disposed of these assets was an erroneous statement and should be reversed.  She

contends that in allocating the parties' assets the trial court erroneously relied upon the expert

who had created Gene's life-care plan.  Finally, she argues that the trial court's allocation of

assets was improper and should be reversed.

	We first look at the more specific issue involving the dissipation of marital assets.  In

dividing marital property, the trial court is required to consider the dissipation of the value

of marital and nonmarital property.  750 ILCS 5/503(d)(2) (West 1996).  Dissipation has

been defined by the Illinois Supreme Court as the " 'use of marital property for the sole

benefit of one of the spouses for a purpose unrelated to the marriage at a time that the

marriage is undergoing an irreconcilable breakdown.' "  In re Marriage of O'Neill, 138 Ill. 2d 487, 497, 563 N.E.2d 494, 498-99 (1990) (quoting In re Marriage of Petrovich, 154 Ill. App. 3d 881, 886, 507 N.E.2d 207, 210 (1987)).  Whether a certain utilization of marital assets constitutes dissipation is a question of fact.  In re Marriage of Tietz, 238 Ill. App. 3d 965, 984, 605 N.E.2d 670, 683 (1992).  The use of the marital funds in issue for legitimate

living expenses is not a dissipation of assets.  In re Marriage of Tietz, 238 Ill. App. 3d at 983, 605 N.E.2d at 683.  "The spouse charged with dissipation of marital funds has the

burden of showing, by clear and specific evidence, how the marital funds were spent."  In re Marriage of Tietz, 238 Ill. App. 3d at 983, 605 N.E.2d at 683.  "General and vague statements that the funds were spent on marital expenses or to pay bills are inadequate to

avoid a finding of dissipation."  In re Marriage of Petrovich, 154 Ill. App. 3d at 886, 507 N.E.2d at 210.  The explanation provided by the spouse accused of dissipation requires the

trial court to make a credibility determination.  In re Marriage of Tietz, 238 Ill. App. 3d at 983-84, 605 N.E.2d at 683.  Because the question of dissipation is a factual one, we will not

disturb a trial court's finding of dissipation unless the trial court abused its discretion.  See In re Marriage of Petrovich, 154 Ill. App. 3d at 886, 507 N.E.2d at 210.  An abuse of discretion occurs only when no reasonable person could adopt the trial court's view.  In re Marriage of Hahin, 266 Ill. App. 3d 168, 171, 644 N.E.2d 4, 7 (1994).

	There is no question that Carlyene fails in her vague attempts to establish that the

money at issue was spent on household and medical expenses.  She provided no evidence of

where one cent of the money was spent.  She produced no documentary proof of her

expenditures.  Surely there was a trail created by her claimed expenditure of more than

$300,000.  Credit card receipts, bank statements, bills, or cancelled checks are only a few

of the documentary possibilities.  Nothing was entered into evidence at the trial.  Her only

"evidence" was her testimony to that effect.  Carlyene's testimony was severely tainted by

her perjurious testimony denying any legal attempt to obtain control over Gene's assets and

life in general.  However, determining that the money was unaccounted for is not the only

fact that must be proven.

	We must initially determine whether Carlyene took this money at a time when the

marriage was undergoing an irreconcilable breakdown.  If the issue were controlled by the

fact that Carlyene did not file her petition seeking a divorce until six years after Gene's

accident, there would be no doubt that the taking of the assets could not be a chargeable

dissipation.  This is the theory Carlyene advances.  Gene contends that because he was not

aware that Carlyene was liquidating and spending their investment accounts, the court could properly conclude that the lack of cooperation signaled a breakdown in the marriage. 

Certainly by 1993 when Carlyene sought legal control over the assets, which forced Gene

to ask the court for protection from Carlyene and her actions, the marriage was undergoing

an irreconcilable breakdown.  The fact that Carlyene continued living in the marital home

and delayed filing for divorce does not mean that the marriage remained sound until she

decided to file the petition.  

	In re Marriage of Petrovich supports this conclusion.  In that case, the husband was retired from his employment in 1971, and in his retirement he had become an at-home

investor.  In re Marriage of Petrovich, 154 Ill. App. 3d at 884, 507 N.E.2d at 208-09.  His wife worked outside the home as a self-employed psychiatrist.  In re Marriage of Petrovich, 154 Ill. App. 3d at 884, 507 N.E.2d at 208.  The Petrovich couple separated in 1979, with

the petition for divorce filed in December of 1979.  In re Marriage of Petrovich, 154 Ill. App. 3d at 884, 507 N.E.2d at 209.  Over the years, the wife gave the husband a documented

$368,000 for investments in the stock market.  He advised her when to write out these

checks, and she complied.  The husband maintained exclusive control over the accounts and

made all the investment decisions.  On somewhat rare occasions, he would tell her how the

investments were faring.  She did not discontinue giving him money for investments until

1981.  Unbeknownst to her, by May 1981, their monetary investments had risen in value to

more than $2 million.  She did not learn this fact until May 1983.  In 1982, the husband

asked the wife to remortgage the marital home for investment purposes–a request she denied. 

By the time of the trial in their dissolution proceedings in October 1984, the value of their

investment accounts had dwindled from the high of $2 million to only somewhere between

$14,000 and $20,000.  The husband acknowledged poor investments as the cause for this

dramatic drop in value.  The husband was unable to identify what he had done with the

money provided to him by the wife for investment.  He acknowledged that after their 1979 separation, he started moving the money into accounts he had opened in his own name and

otherwise moved the money from accounts to "some other places" and that he removed cash

from these accounts frequently.  In re Marriage of Petrovich, 154 Ill. App. 3d at 884-85, 507 N.E.2d at 209.  He did not create a monetary trail in his testimony during the divorce

proceedings and could not even identify in what companies he had invested the money.  In

the supplemental judgment for the dissolution of the marriage, the trial court concluded that

the husband had dissipated marital funds exceeding $2 million.  In re Marriage of Petrovich, 154 Ill. App. 3d at 885, 507 N.E.2d at 209.

	On appeal, the court affirmed this dissipation finding, concluding that the fact that the

wife had given the husband more than $360,000 over the course of the marriage was not in

dispute.  In re Marriage of Petrovich, 154 Ill. App. 3d at 886, 507 N.E.2d at 210.  Critical to this conclusion was that the husband had controlled all the manners and methods of

investment without the wife's knowledge.  The husband's inability to explain where the

money had been placed or what had happened to the investments to cause such a decline in

value cemented the appellate court's determination.  In re Marriage of Petrovich, 154 Ill. App. 3d at 886-87, 507 N.E.2d at 210.  

	In this case, the bright-line date of the marital separation was not as important as the

actions taken by the parties.  The wife provided the money both before and after the

separation.  The investments occurred both before and after the separation.  While some of

the questionable actions did take place subsequent to their separation, the dominating feature

was the husband's control over the investments and his total lack of fiduciary reporting to his

wife regardless of whether the news would have been good or bad.

	In some respects the factual setting of this case is stronger than that which existed in  In re Marriage of Petrovich.  The holding in In re Marriage of Petrovich could be extrapolated into inappropriate situations when husbands or wives with dominant control over the finances during a marriage make suspect investment decisions, when considered

with the benefit of hindsight.  In this case, Carlyene seized control of the assets at a time

when it became necessary to do so–when Gene had his horrific accident.  What she did with

that power remains a mystery, since the money is apparently gone and there is no record of

its demise.  Further attempts to seize even more control through the court system and without

Gene's consent failed when Gene protested.  Gene was completely unaware of Carlyene's

financial transactions and testified that if he inquired about the money, Carlyene deflected

the conversation and provided no answers.  Even after the failed court attempt, when it was

clearly obvious that the couple was at odds with each other, Carlyene continued living in the

marital home.  Only finding dissipation in actions taken by Carlyene after she had filed for

divorce would countenance absurd results, given the marital situation.  An irreconcilable

breakdown of a marriage does not necessarily require a separation or a filing for divorce by 

one spouse.

	Carlyene cites this court's decision in In re Marriage of Hazel, 219 Ill. App. 3d 920, 579 N.E.2d 1265 (1991), in support of her cause.  Without delving into every aspect of that

case, the case actually could be cited in the contrary argument, because the appellate court

acknowledged that dissipation could be found five months prior to the date when a petition

for divorce was filed.  In re Marriage of Hazel, 219 Ill. App. 3d at 922, 579 N.E.2d at 1267.  We were concerned that if accepted, the dissipation argument advanced would require courts

to analyze every financial transaction over the course of the marriage without regard to a

time when the marriage could be described as undergoing an irreconcilable breakdown.  In re Marriage of Hazel, 219 Ill. App. 3d at 921-22, 579 N.E.2d at 1266-67.

	Each dissipation situation is individual and requires a careful factual analysis.  We

find that the trial court made such an analysis and that the trial court's determination that

Carlyene should be charged with the dissipation of marital assets does not constitute an abuse of discretion.

	Carlyene also argues that the trial judge's finding that Carlyene possibly "secreted"

away the money in question was improper speculation.  The trial judge made this statement

because of the evidence he heard.  Specifically, he heard testimony that household income

prior to this accident was in the $2,000-per-month range with no house or automobile loans

and no credit card or revolving type of debt.  He also heard testimony that after the accident,

the income rose to $4,120 per month and that all of Gene's medical bills were being paid by

workers' compensation coverage.  The money appears to be gone.  Carlyene presented no

evidence of where the money went.  She gave ambiguous testimony that the money was

spent on household expenses and medical bills, but she provided no documentary evidence

to back up her claim.  In light of these facts, the trial judge found that the money had been

either spent or "secreted" away.  We cannot find that such a statement was purely

speculative.  The facts support the conclusion that all the money simply could not have been

utilized in the illogical manner to which Carlyene testified.  

	We next turn to the broader issue of the division of the marital assets.  The trial court's

determination relative to property division is only constrained by reason and will not be

overturned unless it can be shown that the trial court abused its discretion.  In re Marriage of Siddens, 225 Ill. App. 3d 496, 500, 588 N.E.2d 321, 324 (1992).  The issue for the reviewing court is not whether it necessarily agrees with the trial court's marital asset

division.  Rather, the issue is whether the trial court acted arbitrarily without employing

conscientious judgment or whether, in view of all the circumstances of the case, the trial

court exceeded the bounds of reason so that no reasonable person would follow the trial

court's position.  In re Marriage of Siddens, 225 Ill. App. 3d at 500, 588 N.E.2d at 324.

	Section 503(d) of the Illinois Marriage and Dissolution of Marriage Act requires a

marital property division in just proportions.  750 ILCS 5/503(d) (West 1996).  A proportional asset division does not require mathematical equality.  In re Marriage of Doty, 255 Ill. App. 3d 1087, 1097-98, 629 N.E.2d 679, 686 (1994).  The trial court may award an

unequal distribution of property if it properly applies the section 503(d) guidelines.  750

ILCS 5/503(d) (West 1996); In re Marriage of Doty, 255 Ill. App. 3d at 1097-98, 629 N.E.2d at 686.  The guidelines to be considered in determining a marital property division include

the contribution of a spouse to the marriage, the duration of the marriage, the amounts and

sources of each spouse's income, the age, occupation, vocational skills, employability, and

needs of each spouse, the reasonable opportunity for each spouse's future acquisition of

assets and income, whether the apportionment is in lieu of or in addition to maintenance, the

tax consequences of the property division, the dissipation of marital or nonmarital property,

any antenuptial agreement of the parties, and the value of the property set aside for each

spouse.  750 ILCS 5/503(d)(1) through (d)(12) (West 1996).

	Initially, Carlyene argues that in allocating the assets between the couple the trial

court improperly considered the expert testimony about a life-care plan for Gene.  That

testimony was provided by Sharon Hughes, who is employed by England & Company and

has great experience in working with persons with injured spinal cords.  One of the factors

that the trial court must consider in determining asset allocation is the age, health, and needs

of the parties.  750 ILCS 5/503(d)(8) (West 1996).  There was no dispute that Gene's

condition renders him totally dependent upon assistance for his daily needs.  He has no

bowel or bladder control, is unable to get in or out of his bed or chair, and is otherwise

physically dependent upon others for all aspects of his life.  Sharon Hughes provided her

testimony regarding what Gene would require.  She was cross-examined by Carlyene's

attorney.  We find no error in the trial court's consideration of this evidence.

	Finally, Carlyene contends that the trial court abused its discretion in its marital asset

distribution.  Taking into account the dissipation findings, the trial court awarded 75% of the assets to Gene and 25% to Carlyene, without factoring in the present cash value of the

nontaxable marital income split.  The major assets at issue were the home and the personal

injury settlement.

	In reviewing the trial court's order, we find that the court adequately considered all

the elements necessary to a proper determination.  The trial court had the opportunity to view

the witnesses and consider their demeanor when testifying.  Gene received substantially more

of the marital assets than Carlyene, but we find no error in looking at the relative status of

the parties.  As the appellate court noted in In re Marriage of Murphy, a case involving a paraplegic:

		"[T]he trial court may consider the pain, suffering[,] and disability of an

injured spouse when making a division of property.  ***

		***

		*** [A]ll the risks of loss of income and increased costs of living and medical expenses that stem from the injury will now be borne by respondent alone.  Petitioner

leaves the marriage the same way she entered it: an employed, healthy, able-bodied

person.  ***  As a spouse she did suffer, but respondent will live with the paralysis

for the remainder of his life.  He not only endured pain and suffering at the time of

the initial injury but has the ongoing absence of normal bodily function below the

chest level with all of the risks and hazards in both health and personal life attendant

upon such paralysis.  This paralysis was the basis for the personal injury award and

that which the trial court could rightfully consider when dividing the marital

property."  In re Marriage of Murphy, 259 Ill. App. 3d 336, 342-43, 631 N.E.2d 893, 897-98 (1994).

	While Gene may not presently be spending the money contemplated in his life-care

plan, no one has a crystal ball capable of projecting Gene's future needs.  What the trial court knew was that Gene's physicians believed that Gene's condition would worsen over time. 

The amount of money estimated by Sharon Hughes in the end might not come close to

covering Gene's actual costs.  Gene must be financially prepared for this possibility.

	Despite the disparity in the percentage of assets awarded, Carlyene received a fair

amount of assets, including a property distribution in the form of monthly payments for life;

$875 per month and will be reduced to $787 per month when she turns 65.  She also received

$437,564 in a nontaxable lump sum, representing her one-half of the increase in the value

of his invested personal injury settlement proceeds.

	While a property distribution is meant to be in "just proportions," that does not mean

that the division must be equal.  In re Marriage of Murphy, 259 Ill. App. 3d at 344, 631 N.E.2d at 898.  An award of a greater percentage of assets does not necessarily mean that the

trial court abused its discretion. 

	Accordingly, we find that the trial court did not err in dividing the marital assets as

it did.

	For the foregoing reasons, the judgment of the circuit court of Madison County is

hereby affirmed.

	Affirmed.

	MAAG and DONOVAN, JJ., concur.

                                     	NO. 5-02-0743

	IN THE

	APPELLATE COURT OF ILLINOIS

	FIFTH DISTRICT

___________________________________________________________________________________

In re MARRIAGE OF				)  Appeal from the

							)  Circuit Court of

LILLIAN CARLYENE ZWEIG,			)  Madison County.

							)

     Petitioner-Appellant,				)

							)

and							)  No. 97-D-387

							)

HENRY EUGENE ZWEIG, SR.,			)  Honorable

							)  Ralph J. Mendelsohn,

     Respondent-Appellee.				)  Judge, presiding.

___________________________________________________________________________________

Opinion Filed:		October 17, 2003	

___________________________________________________________________________________

Justices:	Honorable Clyde L. Kuehn, J.

	Honorable Gordon E. Maag, J., and

	Honorable James K. Donovan, J.,

	Concur

___________________________________________________________________________________

Attorney	John Long, 205 South Main Street, P.O. Box 209, Troy, IL 62294

for	

Appellant	

___________________________________________________________________________________

Attorney	Frederick M. Steiger, 101 West Vandalia, Suite 150, Edwardsville, IL 62025

for	

Appellee	

___________________________________________________________________________________