## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

In re Marriage of Berberet , 2012 IL App (4th) 110749

Appellate Court Caption In re: the M a r riag e of REBECCA BERB ERET, Petitioner-Appellant, and DAVI D J . BERB ERET, Respondent-Appe llee.

District & N o. Four th District Docke t No. 4-11-0749

Argued Filed
Rehea ringdenied J uly

11, 2012 August 10, 2012 August 24, 2012

Held (Note : This syl lab us

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The judgme nt dissolving the parties’ marria g e was aff irmed wher e the trial court did not abuse its discretion in d ev i at ing downwar d from the statutory guidelines as to responde nt fathe r’s support guidelines, allocating the tax exemptions for the children, disreg arding responde nt’s potential persona l injury claim, dividing the marital estate without considerin g petitioner’s outstanding attorney fee s, and distributing the retire ment acc ounts.

Dec ision Under Review Appea l from the Circuit Court of Sang amon County
, No. 08-D-799; the Hon. Steven H. Na

rdulli, J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Peg g y J

. Ry an (ar gued), of Sorling, Northrup, of Springfield, for appellant.

Diana N. Cherry
, of Metnick, Cherry
, Fr azier & Sabi n , L L P, of Springf ield, for a ppellee.

Panel J USTI CE COOK delivere d the judg ment of the c ourt, with opinion.
J ustices Steigmann and McCullough concur red in the j u d gm ent and opinion.

OP INION

¶ 1 On May 23, 2011, the trial court enter ed an order dissolving the marria g e of petitioner, Rebec ca B erbe ret, a

nd responde nt, David B erbe ret. ¶ 2 On appeal
, R eb ec ca ar gu es t hat the trial court (1) abused its discretion in deviating downwar d from the statutory guidelines Da v i d’s child support obliga tion; (2) abused its discretion in equally allocating the tax exemptions for the parties’ children; (3 ) abused its discretion in disreg arding David’s potential persona l injury claim; (4) abused its discretion in failing to find David’s use of $21, 7 2 5

. 1 7 of a worke rs’ compensation settlement constituted dissipation; (5) err ed in de termining that a ser ies of cer tificates of deposit wer e nonmarital proper

ty ; (6 ) err ed in deter

mining that the cer

tificates of deposit wer e not dissipated; (7) err ed in valuing David’s vehicle at $33,875 and not charg ing him with dissipation for the depre ciation of the vehicle’s value; ( 8) abuse d its discretion in dividing the m ar i t al estate without acc ounting for her outstanding attorney fee s; and (9) err ed in valuingand distributing the pa rties’ re tirement ac counts. We aff irm.

¶ 3 I . BA CKGROUND ¶ 4 In October 1991, Rebec ca and David wer e marrie d. During their marria g e, they had three children, Dra

ke (born April 12
, 1 9 9 1 ), Be njamin (born J uly 3, 2000), and Meag an (born Dec ember

13, 2002). At the time of the dissoluti on hear ing, Rebec ca was 43 y ear s old and David wa s 42 y ear s old. ¶ 5 During the marr iag e, Rebe cca was first employed by Memorial Hea lth Sy stems. While working for Memorial Hea lth Sy stems, Rebec ca ear ned a m as t er ’s degree in business administrati o n

. R eb ec ca then worke d as a financ ial office r for Springf ield Obstetric and Gy necolog ical Associates (SOGA). In spring 2011, SOGA merg ed with Springf ield Clini c. As a result of the merg er, Rebec ca is curr ently employ ed as a financ ial office r by Springf ield Clini c. I n 2010, Rebec ca ear ned $88,969, including a $1,275 bon u s fr o m her employ ment with SOGA.

-2-¶ 6 In terms of retire ment funds, Rebec ca has a SOGA profit-shar ing acc ount. I n 2009, the

acc ount had a value of $30,332. At the time of the dissoluti o n h ear ing, Rebec ca was 80% vested in the retirement account and schedule d to be fully vested in March 2 0 11. Rebec ca al s o has a 401k and profit-shar ing acc ount with Springf ield Clini c. Fr om her previ o u s employ ment with Memorial Hea lth Sy stems, Rebecc a has a pension valued at $64,345. ¶ 7 Throughout the marria g e, David was employ ed by the City of Springf ield as a full-time police office r. He also worke d part-time at Madison Park Place in S p ring field. In 2010, David ear

ned $71,744.99 working for the City of Springf ield and $6,2 9 0 wo rk i n g for Madison Park Place

. ¶ 8 David has a City of Springf ield pension valued at $21 6
, 0 9 3

. He als o has a broke rag e

acc ount with Edwar d J ones. He established the acc ount with stock he inher i t ed fr o m his
g randf ather . At the time of the dissolution hearing , the ac count was va lued at $241,409. ¶ 9 During the m arr iag e, David rec eived three gifts from his g randf ather totaling $38,000. He rec eived $12,000 on J anuar y 6, 2006; $13,000 o n J an uary 13, 2007; and $13,000 on J anuar y 13, 2008. Initially
, David deposited the chec ks from his g randf ather into the parties’ joint acc ount at Springf ield City Employ ees Credit Union (Credit Union). The parties established the acc ount in April 1997. David testi fied that he did not know that Rebec ca’ s

name was on the acc ount; howeve r, Rebec ca’ s signature appea rs belo w Da v i d ’s on the documentation establishing the acc ount. David used some of the money g ifted to him by his
g randf ather to pay off the pa

rties’ sec ond mortg ag e and c redit ca rd debt. ¶ 10 David also used t h e m o n ey gi ft ed to him by his g randf ather to purcha se a series of

cer tificates of deposit (CDs). On Fe bruar y 2, 2006, David purcha sed three CDs at the Credit Uni o n

. David withdrew $10,000 from the parties’ joint acc ount at the Credit Union to purcha se the CDs. T he CDs ha d the same acc ount numbe r as the parties’ joint ac count. On August 2, 2007, David cashe d in those CDs a nd opened two new CDs, one for $7,500 (CD No. 1562) and one for $2,500 (CD No. 1563). On November 5, 2008, David ca shed in CD No. 156 3

. R eb ecc a’s divorce petiti on was filed the nex t day

. Acc ording to David, he used monies liquidated in 2008 to pa y duck hunting lease fee s of $1,250 and to pay a reta iner to his attorney

. David liquidated CD No. 1 5 6 2 t o open colleg e funds for the parties’ three children. ¶ 11 On Fe bruar

y 8, 2007, David purcha sed with funds from the parties’ joint acc ount at the Credit Union a CD for $5,000 (CD No. 1492) and rolled over t he CD (CD No. 1654). On May 5, 2008, David close d CD No. 1654. ¶ 12 On Marc h 16, 2007, David purcha sed with funds from the parties’ joint acc ount a CD for $10,000 (CD No. 1507) and eventua lly purcha sed CD No. 1690 for $3,000 and CD No. 1691 for $2,000. A chec k was issued for $5,000 on April 2, 2008. CD No. 1691 was closed on J uly 27, 2009. David testified that he used the money to t ak e the children on a vacation to Minnesota. On Nove mber 25, 2008, CD No. 1690 wa s closed. ¶ 13 On September 19, 20 0 7
, Da v i d purcha sed CD No. 1586 for $2,500. Approxim ately a month later, the CD wa s closed to help fund the children’ s colleg e fund. ¶ 14 On November 6, 2008, Rebec ca filed a petition for dissoluti on of marria g e. In J une 2009, the couple sta

rted livingin separate homes.

-3-¶ 15 On August 5, 2009, the trial court issued a temporary order set ting forth David’s c hild

support obligation. The court deter mined that David’s net monthly income from his City of Spri n gfi eld job was $4,033 and set his temporar y child support obligation at $1,290 per month. At that time, the court also denied David’s reque st for a downwar d deviation in child support. ¶ 16 In Fe bruar

y 2010, the City of Springf ield paid David a worke rs’ compensation se ttlement of $46,786.81, beca

use of a shoulder injury he rec eived while underg oing police training in Marc h 20 06. On Fe bruar y 18, 2010, afte r attorney fee s wer e paid, David deposited the

rema ining $36,401.05 fr o m his worke rs’ compensation settlement into a Credit Union

acc ount. Fr om that acc ount, David made numerous cash withdrawa ls. David testified that he made the withdrawa ls to pay rent, attorney fee s, cre dit car d debit, and normal expenses. He also claims that he used the money to take three vacations, including a family t ri p to Minnesota. As of the e nd of 2010, there was $14,675.88 in the a ccount. ¶ 17 In J uly 2010, afte r his vehicle was t o t al ed i n a car acc ident, David purcha sed a 2010 Chevy Tahoe for $43,855. The cash price was reduc ed by $4,496.79, beca use David rec eived

an allowanc e from points on the parties’ joint GM cre dit car d. David also applied insurance
proce eds o f $ 2 4
, 0 00 to the vehicle’ s purcha se price

. The court valued David’s vehicle at $33,875, the Kelly

Blue Book va lue for the vehicle in “ g ood condition.” ¶ 18 At the time of the dissoluti on hear ing, David had talked to an attorney about the succ ess of filinga per sonal injury claim to rec over damag es for the back pain he e x perie nced a fter the car acc ident. David testified that, as of the dissoluti on hear ing, his attorney had not taken
any action on his beha lf. ¶ 19 In September 2010, Rebec ca opened a Ba nk of Springf

ield acc ount w ith $29,085.46 in settlement proce eds she rec eived from a persona l injury claim ag ainst Ba usch & L omb. That

same month, she also purcha sed a 2010 Honda Ody ssey for $31,926. T h e co u rt valued Rebec ca’ s vehicle at $31,945. ¶ 20 On J anuar

y 7 and 11, 2011, a dissolution hear ing w as held. ¶ 21 On J anuar

y 19, 2011, Rebec ca filed a motion for contribution to at t o rney fee s. At the time, Rebec ca owed $11,455.50 in attorney fee s and had paid $6,440 in fee s. No hear ing was conducte d on the motion. ¶ 22 On April 5, 2011, the trial court issued a memorandum of opinion. The court c oncluded that Rebec ca’ s salary was $7,321.97 per month and David’s salary was $5,987.75 per month from the City of S p ri n gfi eld. In addition to his salary as a police office r, David ear ned $524.17 per month from Madison Park Place and $3,808 in y ear ly income from nonmarital assets. The c ourt deter

mined that David’s net pay was $4,479 pe r month and the guideline amount of child support for the three children w as $1,433. ¶ 23 The trial court order ed David to pay Rebec ca $1,000 per month in child support, which amounted to a downwar d deviati o n from the 32% require d under section 505(a) (1) of the I llinois Marr iag e and Dissolution of Marr iag e Act (Ac t) (750 I L CS 5/505(a) (West 2008) ). The court stated that it was deviating from the statutory guidelines, beca use “applica

tion of the child support guidelines would result in two extremely disparate financ ial households.” I n making its deter

mination, the court found that, befor e the awa rd of child s up p o rt ,

-4-Rebec ca’ s net income exceede d David’s net income by $1,123 per month. The court further

deter mined that awa

rdingRebec ca the guideline amount of support would result in he r net month l y i ncome exceeding David’s by $4,000 (diffe renc e betwee n $7,035 per month and $3,046 per month). The court also found that “[i] f the support guidelines wer e applied, David would be substantially unable to participate in the children’ s school, athletic and social

ac t i v i t i es or to enjoy any rec reational activities with the children.” In addition to his child support pay

ment, the cour

t or dere d David to c ontinue providing health insurance cover ag e for the c hildren. ¶ 24 The trial court allotted David and Rebec ca eac h one child as a tax depende ncy exemption and order ed that the exemption for the third child be alterna ted, from y ear to y ear , betwee n them. ¶ 25 The trial court intended to apportion the marital estate equally betwee n the parties. The court divided the ma

rital assets as f

ollows: Rebec ca David

Marital home $233,00 2010 Chevy

Tahoe $33,875 2010 Honda Ody ssey $31,945
Weldbiltjon boat $2,000
Suz uki four-wheele r $1,500 David’s Spring field 457 re tirement plan $121,716
Rebec ca’ s Valic-403(b) $31,000 David’s police pension $216,093
Rebec ca’ s Memorial He alth Sy stems pension $64,345
Rebec ca’ s SOGA profit-sha ringacc ount (to be de termined)
Ba nk of Spring field money

marke t acc ount $26,192 Vanguard I RA $8,112
Guns $5,404
David’s Cre dit Union account $10,177
David’s Cre dit Union account $449
Rebec ca’ s PNC account $500
Total Marital Asse ts $395,094 $391,214

¶ 26 The trial c ourt divided the marital liabilities as follows:
Rebec ca David Wil liamsvill e State B ank $85,091
2010 rea l estate taxes $5,200
Har ris Ba nk (truck loa

n) $15,745

-5-Hea rtland Credit Union (va

n loan) $29,051
J .C. Penney

cre dit card $226 Old Navy cre dit card $256
Visa $4,854 Macy ’s cr edit car d $258 National City

cre dit card $365
Edwar ds J ones cr edit car d $1,832
Sam’s Club credit ca

rd $950
Total Marital L iabilities $126,251 $17,577 ¶ 27 In dividing the marital estate, the trial court did not include a value for Rebec ca’ s SOGA profit-shar ing acc ount. At the time of the dispositi on hear ing, Rebec ca’ s profit-sh aring

acc ount wa s 8 0 % v ested. The court deter mined that it was “re asonably fore seea ble” that Rebec ca would rema in at SOGA long enough for her interest in contributions made during the marria g e to vest. The court stated its intention to value the acc ount at 100% of its value

as of Dec ember 31, 2010. Howeve r, the acc ount’s value as of Dec ember 31, 2010, would not be known until Marc h 2011. The court stated that, when the value of the profit-shar ing

acc ount is known, the acc ount should be awa rded to Re becc a and David should be g iven a setoff equal to one-ha lf of t h e v al u e of the acc ount ag ainst his equalization pay ment of $52,397. ¶ 28 The trial court deter mined that David did not dissipate $24,500 of CDs, beca use (1) the
transac tions involving the CDs occur red prior to the marria g e irrec oncilably brea king down and (2) David’s use of the money during the p er i o d t h at the marria g e had irrec oncilably broken down was a dequate ly explained. Moreover , the cour t concluded that the C Ds wer e David’s nonmarital proper ty and wer e only deposited into the marital acc ount as a conduit. ¶ 29 The trial c ourt direc ted ea ch par ty to pay his or her own attorney

fee s. ¶ 30 On May 20, 2011, the parties enter ed into a joint-parenting agree ment. Under the terms of the agree ment, Rebec ca is the primary custodial pare nt, while David is schedule d to have the childre n on eac h wee kend day he is not working and for one over night we eknig ht visit
per wee k. During the summer, David is schedule d to have the children on his day s off work. ¶ 31 On May 23, 2011, the trial court enter ed a j u d gm en t o f d i s s o l u t i o n of marr iag e incorpora ting the finding s of the memorandum of opinion and the joint-parenting agree ment. In the judgme nt, the court order ed David to make an equalization pay ment of $28,163. The equalization pay

ment includes a se toff of $24,234, one -half the value of Rebec ca’ s SOGA profit-shar ing a ccount a s of Dec ember 31, 2010. ¶ 32 On J une 22, 2011, Da vid filed a motion for rec onsideration, arguing that the trial court

err ed in requiring that h i s eq ualization pay ment be made in cash rathe r than by a transfe r from re tirement funds. ¶ 33 On J uly

22, 2011, the trial cour

t gr anted Da

vid’s motion. ¶ 34 This appea l followed.

-6-¶ 35 I I . ANALYSI S

¶ 36 A. Downwa rd De viation From Guide lines ¶ 37 “Child support is a matter within the sound discretion of the trial court, and this court will
not disturb the trial court’s deter mination ab s en t an abuse of discretion. [C itation.] ” In re Marriage of

Dee m , 328 I ll. App. 3d 453, 457, 766 N.E.2d 661, 665 (2002). Section 505(a) (1) of the Act (750 I L CS 5/5 0 5 (a )( 1 ) (West 2008)) establishes guidelines to deter mine the minimum amount of child support to be paid by the noncustodial pare nt. In re Keon C.
, 344 I ll. App. 3d 1137, 1141, 800 N.E.2d 1257, 1261 (2003). Section 505(a) of the Act cre ates a rebuttable presumption that a specifie d perc entag e of a noncustodial p arent’s income
repr esents an appropr iate child-support awa rd. Keon C.
, 344 I ll. App. 3d at 1141, 800 N.E.2d
at 1 2 6 1. In the case of three children, the minimum amount of support is 32% of the supporting pare nt’ s n et i n come. 750 I L CS 5/505(a)( 1) (West 2010). The trial court must

awa rd the guideline amount of support unless the court (1) makes a finding
, afte r considering the best interests of the child, that the application of the guidelines would be inappropriate; (2) states the amount of support that would have been require d under the guidelines, if deter minable; and (3) indicates the rea son for the varia nce from the guidelines. 750 I L CS 5/505(a)( 2) (West 2010 ). Despite the exis tence of child support guidelines, the setting of child support is a judicial function. Slagel v. W essels
, 314 I ll. App. 3d 330, 332-33, 732 N. E

. 2 d 720, 722 (2000). The trial court is require d to exercise its best judgme nt in set t i n g child support, whether

the amount set is highe r or lowe r than the guidelines. ¶ 38 Rebec ca arg

ues that the trial court abused its discretion in deviating downwar d from the
guideline amount of c hild support set forth under se ction 505(a) of the Ac t. ¶ 39 Ba sed on the rec ord, we find that the trial court corr ectly followed the proce dure set forth in section 505(a) of the Act for deviating from the support guidelines. The court calc ulated the amount of support require d under the guidelines, $1,433 per month, and deter mined that the amount was not appropr iate. In acc ordanc e with section 505(a) of the Act, the court also stated the rea sons for its varia nce from the guidelines

. As authorized under section 505(a) (2 )( e) o f the Act (750 I L CS 5/505(a)( 2)(e ) (West 2010)), the court considere d the financ ial resour ces and needs of the noncustodial pare nt. The court found that if the guideline
amount was awa

rded, Rebec ca’ s net monthly income would ex cee d David’s by near ly $4,000, the differ ence betwee n $7,035 per month and $3,046. As a result, the court deter mine d t h at Da v id would experience financ ial constraint if he was require d to pay the
guideline amount of support. L ast, the cour t de termined that if the support guidelines wer e imposed David’s involvement with the children would be adver sely aff ecte d: “Da

vid would be s ub s t an t ially unable to participate i n the children’s school, athletic and social activiti es

or to enjoy any rec reational activities with the children. Such a result is not in the children’ s b es t interests.” The court did not abuse its discretion in awa rding the downward deviatio n in support.

-7-¶ 40 B. Tax Ex emption

¶ 41 The trial court’s allocation of tax dependenc y ex em p t i o n s for the parties’ children is subject to an abuse of discretion standard of revie w. In re Marriage of Fowler
, 197 I ll. App. 3d 95, 99, 554 N.E.2d 240, 242 (1990). “An abuse of discretion o cc u rs o n l y wher e no

rea sonable person would take the view adopted by the trial court.” In re Marriage of Moore
, 307 I ll. App. 3d 1041, 1043, 719 N.E.2d 326, 328 (1999). ¶ 42 Dav i d claims that Rebec ca has forf eited the issue as to whether the trial court err ed in allocatingthe tax ex emptions f or the par ties’ childre n, beca

use she f ailed to ra ise the issue befor e the court. Einstein v. Niji m , 358 I ll. App. 3d 263, 275, 831 N.E.2d 50, 60 (2005) (fa ilure to r aise an issue in the trial court results in f orfe iture of the issue). Rebec ca did not specific ally object to the allocation of the tax exemptions at trial, but in her posttrial motion she asked the court to rec onsider setting child support acc ording to the statutory guidelines. As s u m i n g t h at Rebec ca did not forf eit the issue, the court did not abuse its discretion i n allocatingthe tax ex emptions for the pa rties’ c hildren. ¶ 43 T h e t ri al court awa rded the parties eac h one child for tax depende ncy and ex em p t i o n purposes and ord er ed t h e third child alternated from y ear to y ear

. The parties share joint custody of the c hildren. R ebec ca is the prim ary custodial pare nt, while David is schedule d
to have the children at least once a week duringthe school year and on his day s off during the summer. In it s m emora ndum of opinion, the court acknow ledg ed Rebec ca’ s g reater

co n tribution to the car e of the children, but still found that the tax exemptions sho u l d b e alternated betwe en the pa rties. ¶ 44 In this case , both parties contribute to the co s t s as s o ciated with raising their childre n. David provides financ ial support to t h e ch ildren in the form of monthly child support pay ments, $1,000, and health-ca re pay ments , $ 2 19.98. He is also responsible for the costs associate d with car ing f

or the c hildren while they are staying a t his home. Howeve r, as the
p ri m ar y custodial pare nt, Rebec ca is responsible for more of the costs associate d wi t h “maintaining a home, purcha sing food for the family
, launder ing the family ’s clothing, and maintaining the family mode of transportation.” Stockton v. Oldenburg
, 305 I ll. App. 3d 897, 901-02, 713 N.E.2d 259, 263 (1999). We find that David’s contribution to t h e costs associate d with raising the children is not so disparate from Rebec ca’ s t h at no rea sonable
person would agree with the court’s allocation of the tax exemptions for the parties’ children.

¶ 45 C. Pot ential Personal Injury Claim ¶ 46 The trial court’s allocation of proper ty i s s ub j ec t to an abuse of discretion standard of revie w. In re M

arriage of Awan , 388 I ll. App. 3d 204, 213, 902 N.E.2d 777, 786 (2009). ¶ 47 In summer 2010, David was involved in a motor vehicl e ac ci d en t

. As a result of the

acc ident, he totaled his truck. Insuranc e cover ed the damag e to his vehicle. At the time of the dissoluti on hearing, David had not filed a persona l injury claim; howeve r, he did not rule out the possibili ty , testifying that “it depende d” whether he would pursue a demand ag ainst the i n s u ranc e company

. He also testified that he called an attorney conce rning the injuri es h e

rec eived f rom the accident. According to David, as of the dissolution hearing , his attorney had not taken a

ny action on his beha lf.

-8-¶ 48 Rebec ca argues that the trial court abused its d i s cr et ion in failing to consider D avid’s

potential persona l injury

claim as a

n asset of the marria g e, because persona l injury awa rds

acc ruing during a marria g e are marital assets subject to division. In support of her argument, Rebec ca relies on the following three case s: In re Marriage of Toth
, 224 I ll. App. 3d 43, 586 N.E.2d 436 (1991) ; In re Marriage of Pace
, 278 I ll. App. 3d 932, 664 N.E.2d 320 (1996) ; and In re Marriage of DeBow
, 2 3 6 I l l

. App. 3d 1038, 602 N.E.2d 984 (1992). Howeve r, those cas es i n v o l v e persona l injury claims filed befor e or during the pendenc y of the dissoluti on proce eding

. As of the dissoluti on hear ing, David had not filed a persona l injury claim. Ba sed on the re co rd p ro v i d ed, it is too speculative as to whether David will file a persona l injury claim wit hin the s tatute of limitations. W hile we do not want to encour ag e parties to dela

y the filingof a pe rsonal injury claim until after the ir dissoluti on proce eding is conclude d, we cannot say that in this case the trial court abused its discretion by not consideringDavid’s potential pe rsonal injury claim.

¶ 49 D. Dissipation of Workers’ Compensation Settl ement ¶ 50 “Dissipation ref ers to a spouse’s use of marital proper ty for his or her sole benef it for a
purpose unrelated to the marria g e at a time when the marria g e is underg oing an irrec oncilable brea kdown.” In re Ma r r i a g e o f Hubbs
, 363 I ll. App. 3d 696, 700, 843 N.E.2d 478, 483 (2006). The spouse char g ed with dissipation must show, by clea r and convincing evidenc e, how the marital funds wer e spent. In re Marriage of Dunseth
, 260 I ll. App. 3d 816, 830, 633 N.E.2d 82, 93 (1994). Gene ral and vague statements that funds wer e spent to pay bills or on marital expenses are insufficient to ref ute a finding of dissipation. Dunseth
, 260 I ll. App. 3d
at 830, 633 N.E.2d at 93-94. In making its decision as to dissipation, the t ri al co u rt m u st deter mine the cr edibility

of the spouse c harg ed with dissipation. Dunseth , 260 I ll. App. 3d
at 830, 633 N.E.2d at 94. The standard of revie w for a trial court’s finding of dissipation is the manife st weig ht of the evide nce. Awan , 388 I ll. App. 3d at 217, 902 N.E.2d at 789. ¶ 51 Any possible dissipation of marital or nonmarital assets is but one fac tor to be conside red in the division of proper

ty

. In re Marriage of

Murphy
, 259 I ll. App. 3d 336, 340, 631 N.E.2d 893, 896 (1994). Even wher e dissipation is established, the circ uit court “is not required to char g e ag ainst a party the amounts found to have been dissipated but may do so.” (Emphase s in orig inal.) Murphy , 259 I ll. App. 3d at 340, 631 N.E.2d at 896. ¶ 52 Rebec ca arg

ues that the $21,725 David spent from his worke rs’ compensation se ttlement constituted dissipation of a marital asse t. ¶ 53 In Fe bruar

y 2010, David rec eived a worke rs’ compensation settlement of $46,786.81 for

an injury he suffe red in 2006. That same month, he dep o s i t ed $36,401.05, the worke rs’
compensation awa

rd minus attorney fee s, into a Credit Union saving s acc ount. Fr om that

acc ount, David made numerous withdrawa ls. Fr om F ebrua ry 2010 to O ctober 2010, David made cash withdrawa ls totaling $4,200. David claims that he used the settlement money to pay rent, attorney fee s, cre dit ca rd d ebt, and normal ex penses. He also claims that he used the money to pay for three vaca tions, including a family vacation in Minnesota, a hunting trip in Arka nsas, and a trip to L as Veg as. As of the end of 2010, $14,675.88 was in the acc ount. ¶ 54 The trial court found that David adequately explained the use of money from his w orker s’

-9-compensation settlement and the money was used for a leg itimate marital purpose. In making

its deter mination, the co u rt emphasized that rec rea tion and vacations consistent with the li festyle established during the parties’ marria g e constitute a leg itimate marital pu r p o s e

. L a s t, the court cons idere d that “Da vid’s use of cash and Rebec ca’ s acc umulation of cre dit car d debt was a compar able and balanc ing use of marital assets, with eac h party reduc ing the siz e of the mar ital estate in their own se parate way for similar mar ital purposes.” ¶ 55 David had the burden of s h o wi n g h o w t h e money from his worke rs’ c ompensation settlement was spent. Dunseth
, 260 I ll. App. 3d at 830, 633 N.E.2d at 93. To explain his expenditures, David submitt ed to the court his statements for the Credit Union saving s

acc ount in which he initially deposited the worke rs’ compensation awa rd. He also submitt ed the statements for his Credit Union chec king acc ount into which he transfe rre d monies from the saving s acc ount to pay expenses. For example, David testi fied that in August 2010, he transfe rre d $5,000 from his saving s acc ount to his checkingacc ount to pa y off the ba lance of the parties’ joint GM cre dit car d. T h e t ra n s fe r of funds, as testified to by David, is ref lected in the statements for D avid’s Credit Union savingand che ckingacc ounts. ¶ 56 I n reg ard to the cash withdrawa ls at issue, David testified that he could not rec all t h e specific purpose of the withdrawa ls; howeve r, he stated that he routinely used cash to make purcha ses. David testified in rele vant part: “I pay cash for a l o t o f t h i ng s, when I g o out, when I g o to the g roce ry sto re , wh en I g o many place s. I don’t rec all what I did with any specific withdrawa l that I made or when I made it.” David also testified that he used cash to purcha se one of the beds nece ssary to furni s h t h e townhouse he rente d. Although, at trial, David could not rec all the nature of specific expenditures and dates for those expenditures, he provided the court with the relevant financial reco rd s an d t estified to his routine use of cash. In addition, the trial court found David’s testimony reg arding the cash withdrawa ls was

cre dible. “A revie wing court will defe r to the trial court’s finding s beca use the trial court, ‘by virtue of its ability to actua lly observe the conduct and demea nor of witnesses, is in the best position t o assess their c redibility .’ ” In re Marriage of M anker
, 375 I ll. App. 3d 465, 477, 874 N.E.2d 880, 890 (2007) (quoting In re Commitment of Sandry
, 367 I ll. App. 3d 949, 980, 857 N.E.2d 295, 319 (2006) ). ¶ 57 In reg ard to David’s vaca tion expenditures, the expendi t u re s we re n o t ex ce s s i ve or inconsistent with the parties’ lifestyle during the marria g e. Both David and Rebec ca took the children on vaca

tion. David took the children to Minnesota for their annual family vacation, while Rebec ca took the childre n t o t h e L ake of the Ozarks, Chicag o, St. L ouis, and Tenne ssee. Davi d al s o took two vacations without the children. He went on a hunti ng trip
to Arka nsas and a vacation to L as Veg as, Neva da. At the dissoluti on hear ing, David testified that he usually

hunted 30 to 40 day s per year

. ¶ 58 The trial court did not specific ally addre ss wh et h er David’s pay ment of attorney

fee s constituted dissipation. The use of mar ital assets to pay fee s to one’s attorney for the costs of the divorce constitutes dissipation of marital assets. In re M arriage of DeLarco
, 313 I ll. App. 3d 107, 112, 728 N.E.2d 1278, 1284 (2000). “The plain languag e of section 501(c- 1)(2) makes appar ent that the trial court is require d to treat the parties’ attorney fee s as advanc es,

‘ [u] nless otherwise ordered. ’ [C itations.] ” (Emphasis in orig inal.) In r e Marriage of Holthaus
, 387 I l l

. Ap p

. 3 d 367, 378, 899 N.E.2d 355, 364-65 (2008). Rebec ca failed to

-10-provide suff icient evidenc e as to the source of pay ment of David’s attorney

fee s as well as her own. Fr om the rec ord, it is a ppare nt tha

t D avid used both ma

rital and nonmarital funds
to pay his attorney fee s. I t appea rs equally appar en t that Rebec ca’ s pay ment of $6,440 in attorney fee s was paid from marital funds. The c ourt order ed both par ties to pay their own attorney fee s. We find that the court’s deter mination was not ag ainst the manifest weight of the evidenc e, beca

use both parties appea

r to have dissipated marital assets in a seeming ly simil ar a mount.

¶ 59 E. Property Classification of Certificates of De posit ¶ 60 “A trial court’s proper ty classific at i o n will not be disturbed unless it is contra ry to the manifest weight of the evidenc e.” In re M arriage of Henke , 313 I ll. App. 3d 159, 166, 728 N.E.2d 1137, 1143 (2000). A court’s deci s i o n i s co n trary to the manifest weight of the evidenc e if the opposite conclusion is clea rly evident or if its finding s are u n re as o nable, arbitra ry , and not base d upon any of the evidenc e. In re M arriage of Mouschovias , 359 I ll. App. 3d 348, 356, 831 N.E.2d 1222, 1228 (2005)

. ¶ 61 The trial court deter mined that a serie s o f C Ds o p en ed b y Da v i d wer e nonmar ital
proper t y

. Rebec ca argues that the court’s classification was err oneous. In making its d et er m i n at i o n, the court pointed to the fac t that the money used to purcha se the CDs was from a nonmarital source , three separ ate g ifts from David’s g randf ather

. The court conclude d that David’s deposit of the money from his grandf ather into the pa

rties’ joint bank acc ount

was not intende d to be a g ift to the marria g e, beca use David deposited the monies with the
express intent that they would be place d into CDs and the “mar ital acc ount was m erely a conduit.” The court also found t hat “[ v]i rtually all o f t h e transac tions [i nvolving the CDs]

occur red prior to the time that the marriage had irretr ievably broken down, and there fore rules reg arding the reimburse ment of money to the marria g e beca use of claims of dissipation do not apply .” ¶ 62 We find that the trial court’s deter mination that t h e C Ds we re Da v i d’s nonmarital
proper ty was not ag ainst the manifest weight of the evidenc e. The mere fac t that the money for the CDs flowed throug h the parties’ joint acc ount does not make the CDs a marital asset. “Althoug h the place ment of nonmarital funds into a joint chec king acc ount ma y transmute the nonmarital funds into marital proper ty [citations]
, nonmarital funds that are place d into a joint acc ount merely

as a c onduit to transfer mone y will not be deemed to be tra nsmuted into marital property [citations] .” In re Marriage of Heroy
, 385 I ll. App. 3d 640, 673, 895 N.E.2d 1025, 1055 (2008). Fr om the opening of the acc ount, David continuously controlled the acc ount. Rebec ca did not deposit funds into the acc ount. Moreove r, David testified that when he deposited the money from his g randf ather into the joint acc ount he intended to use that money t o buy CDs. L ast, the court found David’s testimony as to his intent to be

cre dib l e. T he trial court was in the best position to assess the cre dibilit y of the parties. Manke r , 375 I ll. App. 3d at 477, 874 N.E.2d at 890.

¶ 63 F. Dissipation of Cer tificates of

Deposit ¶ 64 Rebec ca arg

ues that the trial court err ed in finding that David’s expend i t u res from the

-11-CDs did not constitute dissipation of marital assets. Be cause the C Ds wer e nonmarital

proper ty , there was no d i s s i p at ion of marital assets. As we previously discussed, David’s deposit of eac h of the chec ks fr o m h i s gra ndfathe r into the parties’ joint acc ount was not enough to transmute the funds into marital prope rty

.

¶ 65 G. Tahoe ¶ 66 Rebec ca claims that the trial court err ed in placing a value of $33,875 on David’s Chevy Tahoe without char g ing him with dissipation. In J uly 2010, David purcha sed a Tahoe for $43,855. Approxim ately eig ht m o n t h s l ater, the court valued the Tahoe at approximately $10,000 less. ¶ 67 P ro perty should be valued as of the date of trial or as close to the date o f t ri al as prac ticable. 750 I L CS 5/503(f) (West 2010). “F urther, it is the obligation of the parties in a dissoluti on proce eding to p re s en t the court with sufficie nt evidenc e of the value of the
p roper ty .” In re Marriage of Courtri ght
, 155 I ll. App. 3d 55, 59, 507 N.E.2d 8 9 1
, 8 9 4 (1987). ¶ 68 First, the trial court did not err in valuing Davi d ’s T ah o e at $ 3 3
, 8 7 5. In valuingthe vehicle, the court used the marke t value for the Tahoe at the time of the dissoluti on hear ing. The va lue was dr awn f

rom the Ke lly

Blue Book va luation offer ed into evidenc e by David. At the time of the dissoluti on hear ing, the Kelly Blue Book value for a 2010 Tahoe in “g ood

co n d i t i o n” was $33,875. Rebec ca did not object to the admission of the Kelly Blue Boo k valuation. She also failed to prese nt an alternative method to acc urate ly deter mine the value of the ve hicle. ¶ 69 Second, the trial court’s d ec i s i o n n o t to assig n dissipation to David resulting from the depre ciation of the Tahoe ’s value was not ag ainst the manifest we i gh t o f t he evidenc e. Rebec ca failed to prese nt sufficie nt evidenc e that David paid an excessive price fo r the Tahoe . Fur

ther, no e vidence was pre sented that David took actions to cause a depr eciation in the vehicle’ s value. Ba sed on the evidenc e provided, we cannot say that the rec ord clea rly demonstrates that the proper result is the one opposite that re ache d by the cour t.

¶ 70 H. Attorney Fe es ¶ 71 Rebecca ar gu es t hat t he trial court erre d in failing to take into acc ount her outstanding attorney fee s when it divided the marital estate. Howeve r, Rebec ca failed to ask the court to include her

attorney fee debt in its ini tial allocation of a ssets. ¶ 72 On J anuar

y 19, 2011, approximately a wee k afte r the close of evidenc e, Rebec ca filed a motion for contribution to attorney fee s. She reque sted that David pay all of her attorney fee s. At that time, she owed $11,455.50 in attorney fee s and had paid $6,440. No hearing was held on the motion. The court or dere d the par ties to pay

their own a

ttorney fee s. ¶ 73 Whil e we agree that a hearing on contribution was appropriate under se ct i o n 5 0 3 (j ) of the Act (750 I L CS 5/503(j) (West 2010)), it was Rebec ca’ s responsibility t o ca l l t o the court’s attention its failure to hold a hear ing. In re Marriage of Selinger
, 351 I ll. App. 3d 611, 623, 814 N.E.2d 152, 164 (2004). Moreove r, we find that the lack of disparity in income

-12-levels betwee n the parties does not war rant contr i b u t i o n

. T h e trial court did not abuse its discretion in failing to take into acc ount her outstandin g at t o rn ey fee s when it divided the marital estate

.

¶ 74 I . Retirement Ac counts ¶ 75 1. Rebe cca’ s SOGA Profit-sharing Account ¶ 76 Rebec ca claims that the trial court err ed in valuing her SOGA profit-shar ing acc ount at $ 4 8 ,468 instead of the $24,266.08 it was worth at the ti me of the di ssolution hearing. T h e value Rebec ca urg es the court to use, $24,266.08, was based on the acc ount’s 2009 valuation. The account was valued on a y ear ly basis. At the t ime of t he dis solution hear ing, R eb ec ca

wa s 80% vested in her profit-sharing acc ount. Rebec ca testified that she would be ful l y vested by Marc h 2011. She also testified that s h e wo u ld rec eive her statement of the account’s 2010 year -end balanc e by Marc h 2011. Section 503(f) of the Act (7 5 0 I L C S 5/503(f) (West 2010)) require s that the court value marital proper ty as of the date of trial or as close to the date as i s “pra cticable .” I n waiting a couple months for the acc ount t o v es t , the cour t was able to use a more accur ate calculation of the account’s value that was more close in time to the dissoluti on hear ing than the acc ount’s value for 2009. Fur ther, there was substantial evidenc e that Rebec ca would continue her employ ment at SOGA until the merg er and, there afte r, would continue her position as a Springf ield Clini c employ ee. We find that the cour t did not abuse its discretion in waiting to va lue the ac count.

¶ 77 2. Motion To Reconsider ¶ 78 L ast, Rebec ca argues that the trial court err ed in gr antingDavid’s motion to r econside r the source of his equalization pay ment. On April 5, 2011, the court ordered David to pay Rebec ca an equalization pay ment of $52,397. Howeve r, bec au s e the court planned on

awa rding the SOGA profit-shar ing acc ount to Rebec ca, the equalization pay ment was to be reduc ed by one-ha lf the value of R ebec ca’ s SOGA profit-sharing acc o u n t as o f Decembe r 31, 2010. After the close of evidenc e, the parties rea ched a stipulation as to the value of the SOGA profit-shar ing acc ount and the court reduc ed David’s equalization pay ment to $28,163. On J une 22, 2010, David filed a motion to rec onsider, urg ing the court to allow him
to make his equalization pay ment by a transfe r of funds from a qualified retire ment acc ount. One month later , the cour t gr anted Da

vid’s motion. ¶ 79 We find that the trial court did not err in g ranting David’s motion to rec onsider. Section 503(d)( 12) of the Act (7 50 I L CS 5/503(d)(12) (West 2010)) provides for consideration of “the tax conseque nces of the proper ty division upon the respe ctive economic circ umstances of the parties.” The majority of David’s awa rded assets wer e retire ment funds, constituting pretax assets. David had $337,809 in pretax assets, while Rebec ca had l es s than half that amount, $151,925. The court’s decision on rec onsideration addresses the dispr o portionate
tax conseque nces of the proper ty division upon David by taking into acc ount that some tax will be du e wh en t h e parties withdraw money from one of their retire ment acc ounts. In

acc ounting for the tax conseque nces, the court also made a point of not speculating as to the future tax rate

.

-13-¶ 80 I I I . CONCLUSI ON

¶ 81 For

the fore g oing r easons, we aff irm the trial cour

t’s judgme nt.

¶ 82 Affir

med.

-14-