Illinois Official Reports

Appellate Court

In re Marriage of Hamilton, 2019 IL App (5th) 170295

Appellate Court 

Caption

In re MARRIAGE OF DONALD R. HAMILTON JR., PetitionerAppellee and Cross-Appellant, and MARY L. HAMILTON,

Respondent-Appellant and Cross-Appellee.

District & No. Fifth District

Docket No. 5-17-0295

Filed June 5, 2019

Decision Under 

Review

Appeal from the Circuit Court of Monroe County, No. 13-D-13; the 

Hon. Dennis B. Doyle, Judge, presiding.

Judgment Affirmed in part, reversed in part, and remanded for further 

proceedings.

Counsel on

Appeal

Jayni D. Lintvedt, of Courtney Clark Law, P.C., of Belleville, for 

appellant.

Blake G. Meinders, of Sprague & Urban, Belleville, for appellee.

Panel JUSTICE CHAPMAN delivered the judgment of the court, with 

opinion.

Justices Welch and Cates concurred in the judgment and opinion.
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OPINION

¶ 1 Both parties appeal portions of the judgment dissolving their marriage. The respondent, 

Mary L. Hamilton, argues that (1) the court erred in failing to consider the parties’ daughter’s 

activities involving horses as extracurricular activities, (2) the court abused its discretion in 

ordering the marital home to be sold, (3) the court erred in failing to assign all of the marital 

debt, (4) the court erred in finding that Mary failed to make a prima facie showing of 

dissipation, (5) the court erred in failing to award Mary a portion of two retirement accounts 

liquidated by the petitioner, Donald R. Hamilton Jr. (Don), and (6) the court abused its 

discretion in denying her request for attorney fees. Don argues that (1) the court abused its 

discretion in awarding permanent maintenance to Mary and (2) the court abused its discretion 

in ordering him to pay half of his daughter’s private school tuition. We affirm in part, reverse 

in part, and remand for further proceedings.

¶ 2 I. BACKGROUND

¶ 3 The parties were married in 1988. They raised three children together: Mary’s son from a 

previous marriage, Tom, and two children born to the parties during their marriage, Donny and 

Katelyn. When the parties were first married, both worked outside the home, and Mary took 

college classes. Mary worked for the City of Red Bud as an administrative assistant. Later, 

however, she took a job in St. Louis. Her employer there paid her tuition. Mary earned an 

associate’s degree and continued to take classes toward a bachelor’s degree. At some point, 

however, the parties decided that Mary should take a job closer to Red Bud, where both Tom 

and Donny attended school. Mary did so. She stopped taking classes, partly because she no 

longer had an employer paying her tuition and partly because it gave her more time to devote 

to her two sons. She never completed her degree. 

¶ 4 Katelyn, the only child who was still a minor when these proceedings took place, was born 

in 2000. When she was a year old, the parties agreed that Mary would stop working outside 

the home and be a stay-at-home mother. Mary did not work outside the home from 2001 until 

after the parties separated. She did not work full-time until 2014, when she began working as 

a grant writer for the Lutheran Synod Missouri. 

¶ 5 In 2010, the parties purchased two horses for Katelyn. There is no dispute that the parties 

made a joint decision to buy Katelyn her first horse, Star. Later that year, they bought a second 

horse, Chloe. According to Mary, they agreed to buy a second horse so that Katelyn, who was 

only 10 years old at the time, could have an adult ride with her. According to Don, the parties 

discussed buying a second horse for Katelyn because Star was an older horse and Katelyn’s 

equestrian skills would likely improve. He claimed, however, that Mary made the ultimate 

decision to purchase Chloe before they came to an agreement.

¶ 6 The parties owned two pieces of real estate—their marital home and a rental house located 

on an adjoining property. The tenant in the rental home paid monthly rent of $625.

¶ 7 Don moved out of the marital home in November 2010, but did not immediately file a 

petition for dissolution. He moved back into the marital home in the summer of 2012, but left 

again three months later. He did not file a petition for dissolution until February 2013. 

¶ 8 During the period the parties were separated, Mary worked at various temporary jobs, 

although it is not clear how much time she actually worked. She also applied for permanent 
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jobs with no success. In the fall of 2011, the parties agreed that Mary would home-school 

Katelyn, who was then going into sixth grade. As mentioned earlier, Mary began working in a 

full-time position as a grant writer in June 2014. In the fall of 2014, Katelyn enrolled at 

Lutheran High School South, a private school in Missouri near Mary’s workplace.

¶ 9 The procedural history of this case is long and complicated. Don filed a petition for 

dissolution in February 2013. In July 2013, Mary filed a counterpetition for legal separation 

and motions requesting temporary child support, temporary maintenance, and an award of 

interim attorney fees. In December 2013, the court ordered Don to pay child support of $971 

per month and to pay certain debts owed by the parties, including overdue mortgage payments 

and property taxes. The court denied Mary’s requests for temporary maintenance and interim 

attorney fees, but it provided that Mary was to retain all of the income from the rental house.

¶ 10 In July 2014, Mary filed a petition for civil contempt, alleging that Don failed to make the 

mortgage and property tax payments as ordered. The court found Don in contempt and ordered 

him to make the payments, totaling $14,003.11. In October 2014, Don indicated that he was in 

the process of withdrawing funds from his retirement accounts in an effort to comply with the 

court’s order. Mary filed a motion to deposit funds. She alleged that she received documents 

from Don requesting her signature so that he could withdraw a total of $21,150.38 from two 

retirement accounts, which exceeded the debt Don was ordered to pay by $7147.27. She asked 

the court to order Don to deposit the excess funds into the trust account of either party’s 

attorney in order to protect her marital interest in the funds. The court granted the motion, but 

Don never deposited the funds.

¶ 11 The matter first came for a trial on all issues in April 2015. However, after the hearing, the 

matter was continued for nearly a year to allow the parties to complete further discovery. 

During this period, Mary filed various motions to compel discovery and motions for sanctions. 

Don also filed at least one motion for sanctions against Mary. The court ordered Don to pay 

$400 of Mary’s attorney fees, but otherwise denied all motions for sanctions. Temporary child 

support was raised to $1435 per month in January 2016 due to an increase in Don’s income. 

The parties finally completed discovery in March 2016, and the court held two additional 

hearings in March and July 2016. 

¶ 12 Evidence presented at the three hearings showed that Mary’s gross income from her job 

was $4119 per month. Don had a base salary of $4000 per month, but he also earned 

commissions. His income from commissions fluctuated. The evidence Don presented to the 

court showed that he had a gross monthly income of $5258 in 2014 and a gross monthly income 

of $11,185 in 2015. Don testified, however, that the 2015 figure included a signing bonus from 

his new job. We will discuss other relevant evidence, along with our discussion of the 

numerous issues the parties raise. 

¶ 13 The trial court entered a judgment dissolving the parties’ marriage in May 2017. The court 

incorporated Mary’s proposed parenting plan, which gave Mary the majority of parenting time 

with Katelyn and all decision-making responsibility. The court ordered Don to pay child 

support and permanent maintenance. In calculating the amount of maintenance, the court found 

that Don’s gross monthly income was $8221, a figure derived from the average of the two 

years for which he provided income information. In addition to child support, the court ordered 

Don to pay half of Katelyn’s education expenses, but it found that the activities related to 

Katelyn’s interest in horses did not constitute extracurricular activities, and it did not order 

Don to contribute to the expenses for those activities. The court divided the parties’ vehicles 
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and personal property pursuant to the parties’ agreement. It awarded both parties their own 

retirement accounts. It ordered the parties to sell the two pieces of real estate and divide the 

proceeds after paying any remaining debt. The court divided some of the parties’ debts, but 

Mary contends that it did not divide all of their debts. The court denied Mary’s request for 

attorney fees and rejected her claim of dissipation.

¶ 14 Both parties filed motions to reconsider, which the court denied. Both parties then filed 

timely notices of appeal. 

¶ 15 II. ANALYSIS

¶ 16 A. Expenses for Katelyn’s Horses and Related Activities

¶ 17 Mary first argues that the court erred in finding that the expenses related to Katelyn’s 

interest in horses did not constitute expenses for extracurricular activities. She acknowledges 

that whether to order a parent to pay a portion of a child’s extracurricular activity expenses is 

a matter within the discretion of the trial court. She argues, however, that the court did not 

exercise this discretion due to its erroneous conclusion that Katelyn’s horse-related activities 

were not extracurricular activities. We agree.

¶ 18 At trial, Mary, Katelyn, and Don all testified about Katelyn’s interest in horses. When 

Katelyn began her testimony, the court asked Mary’s attorney about the relevance of his 

questions about Katelyn’s horses. Counsel explained that Mary was requesting that Don be 

ordered to pay for half of Katelyn’s extracurricular activity expenses. The court asked, “Is it 

related to school in some way?” Counsel responded, “I don’t want to say her scholastic school, 

no, but it’s related to a very big part of her life ***.” When Mary testified about Katelyn’s 

activities at a subsequent hearing, the court stated, “I would define extracurricular activities as 

something to do with education but not being on the curriculum. So hobbies I don’t think would 

be included ***.”

¶ 19 Katelyn was a 15-year-old high school freshman when she testified at the April 2015 

hearing. She testified that she hoped to become an equine veterinarian. To that end, she was 

involved in hippology, which is the study of all things related to horses. Katelyn took riding 

lessons and participated in horse camps and drill teams even before her parents bought Star 

and Chloe for her. Katelyn testified that she and Mary helped care for her horses, which 

reduced the cost of stabling them somewhat. 

¶ 20 At a subsequent hearing, Mary testified that Katelyn participated in a hippology program 

through the 4-H program. She explained that the 4-H program was run by the University of 

Illinois. Mary further testified that Katelyn competed in statewide competitions related to 

hippology. These included giving speeches on topics related to horses and participating in a 

“horse bowl,” which is similar to a “scholar bowl.” Mary was specifically asked how Katelyn’s 

care for her own horses related to her interest in becoming an equine veterinarian. Mary 

explained that Katelyn helped care for the horses. She noted that when Star had a deep puncture 

wound, Katelyn helped the veterinarian by handling the tools used to suture his wound. She 

also noted that Katelyn massaged Star’s wound as it healed, and she administered medication 

to Chloe. Both Mary and Katelyn acknowledged that Katelyn could participate in many horserelated activities without owning her own horses, and Katelyn acknowledged that she could 

“probably” volunteer to care for horses at a stable.
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¶ 21 Even Don acknowledged the importance of horses and horse-related activities to Katelyn. 

He testified that Katelyn was attached to her horses, and that she was involved in multiple 

activities related to horses. He noted that he participated in some of these activities with her 

before the parties separated. Don was specifically asked about Katelyn’s participation in 

extracurricular activities. He replied, “As far as I know, hippology, 4-H. I guess that—that 

school has a 4-H club. If not, she’s doing the 4-H in Waterloo.”

¶ 22 Mary argues that the court incorrectly defined “extracurricular activities” to include only 

those activities that relate “specifically to Katelyn’s education.” She further argues that, even 

accepting the court’s definition of extracurricular activities, Katelyn’s horse-related activities 

fall within that definition. We agree.

¶ 23 Resolution of this question requires us to construe the pertinent statute. Our primary goal 

in statutory construction is to ascertain and effectuate the legislature’s intent. The most reliable 

indicator of that intent is the language of the statute itself. In re Marriage of Suriano, 324 Ill. 

App. 3d 839, 846 (2001). If the statutory language is clear and unambiguous, we must enforce 

it as written without resort to additional aids of statutory construction. Because statutory 

construction is a question of law, our review is de novo. Id.

¶ 24 The version of the statute in effect when these proceedings took place provided that trial 

courts may, in their discretion, “order either or both parents *** to contribute to the following 

expenses, if determined by the court to be reasonable: (a) health needs not covered by 

insurance; (b) child care; (c) education; and (d) extracurricular activities.” 750 ILCS 

5/505(a)(2.5) (West 2014). The statute did not define “extracurricular activities.” 

¶ 25 Where there is no statutory definition for a term, it must be given its plain and ordinary 

meaning. Alvarez v. Pappas, 229 Ill. 2d 217, 228 (2008). As Mary notes in her brief, MerriamWebster’s Online Dictionary defines “extracurricular” as “not falling within the scope of a 

regular curriculum” or “of or relating to officially or semiofficially approved and usually 

organized student activities (such as athletics) connected with school.” See Merriam-Webster’s 

Online Dictionary, https://www.merriam-webster.com/dictionary/extracurricular (last visited 

May 30, 2019) [https://perma.cc/U8BW-K86G]. As both parties note, however, other 

dictionaries define the term more broadly. For example, Dictionary.com defines the term 

“extracurricular” to mean “outside the regular curriculum or program of courses.” See 

Dictionary.com, https://www.dictionary.com/browse/extracurricular (last visited May 30, 

2019) [https://perma.cc/86YY-HTQ7]. Although these definitions are similar, they differ in 

one respect—the degree to which an activity must be connected with the participant’s school. 

We will therefore look to other aids of statutory construction.

¶ 26 One such aid is subsequent statutory amendments, which may indicate that the legislature 

intended to clarify the law. See In re Marriage of Blaisdell, 142 Ill. App. 3d 1034, 1041 (1986). 

The version of the child support statute now in effect provides that a court may order a parent 

to contribute to “the reasonable school and extracurricular activity expenses incurred which 

are intended to enhance the educational, athletic, social, or cultural development of the child.” 

750 ILCS 5/505(a)(3.6) (West Supp. 2017). This language reveals a legislative intent to clarify 

that activities serving the specified purposes fall within the purview of “extracurricular 

activities” whether or not they are directly connected with a child’s school. Because this 

statutory amendment was intended to clarify the existing statute, it may be applied in this case. 

See Blaisdell, 142 Ill. App. 3d at 1041.
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¶ 27 We believe that Katelyn’s horse-related activities fall within this definition. The activities 

are clearly intended to enhance Katelyn’s educational development, as she pursues her goal of 

becoming an equine veterinarian. In particular, her participation in contests where she answers 

questions about hippology or gives speeches about horse-related topics is an activity that is 

inherently educational in nature, even though it may not be directly related to her current school 

curriculum. Katelyn’s riding activities are also clearly intended to enhance her athletic 

development. It is worth noting that the 4-H program Katelyn participates in is run through the 

University of Illinois. 

¶ 28 We also note that Katelyn’s activities are similar to the kinds of extracurricular activities 

courts have addressed in the past. See, e.g., In re Marriage of Sorokin, 2017 IL App (2d) 

160885, ¶ 11 (considering a parent’s obligation to contribute to the cost of the children’s 

tutoring, sports programs, clubs, and summer camps); In re Marriage of Moorthy, 2015 IL App 

(1st) 132077, ¶ 28 (considering a parent’s obligation to pay for a child’s classes in various 

sports, hobbies, and academic interests, some of which were offered by the child’s school while 

others were offered elsewhere); In re Marriage of Florence, 260 Ill. App. 3d 116, 122 (1994) 

(addressing a parent’s obligation to contribute to the cost of the child’s volleyball, softball, 

swimming, and clarinet lessons). We find that the court erred in determining that Katelyn’s 

horse-related activities were not extracurricular activities.

¶ 29 Don argues, however, that “regardless of the definition of the term extracurricular,” we 

may uphold the court’s ruling as a proper exercise of its discretion. We disagree. 

¶ 30 As both parties point out, the decision to order a parent to contribute to expenses incurred 

for a child’s extracurricular activities is a matter within the trial court’s discretion. 750 ILCS 

5/505(a)(2.5)(d) (West 2014). In addition, the court may only order a parent to contribute to 

expenses it finds to be reasonable. Id. Here, however, the court did not exercise its discretion 

at all because it incorrectly determined that Katelyn’s activities involving horses were not 

extracurricular activities. For the same reason, the court did not consider whether any or all of 

the expenses related to these activities were reasonable.

¶ 31 Where, as here, a trial court fails to exercise its discretion due to an erroneous conclusion 

that it has no discretion, its decision must be reversed. In re Marriage of Wisniewski, 286 Ill. 

App. 3d 236, 243 (1997). We must therefore reverse the portion of the court’s order finding 

that the activities related to Katelyn’s interest in horses were not extracurricular activities. On 

remand, the court must determine whether all or some portion of those expenses are reasonable 

and whether, in the exercise of its discretion, Don should be ordered to contribute to those 

expenses.

¶ 32 B. Valuation and Disposition of Real Estate

¶ 33 Mary next argues that the court erred in ordering the parties to sell the marital home and 

the rental house. The court ordered this disposition because it found that the parties did not 

present any competent evidence as to the value of the properties. Mary argues that the court 

erred in so finding because each of the parties presented evidence of value that was consistent 

with the evidence presented by the other party. That evidence consisted of Don’s testimony as 

to what he believed the two properties were worth and tax assessment notices for the properties 

submitted by Mary. Mary further argues that the court abused its discretion in ordering the sale 

of the marital home because it had been in her family for over 90 years and because awarding 
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the home to Mary, the custodial parent, would have been in Katelyn’s best interest. We 

disagree.

¶ 34 Distribution of marital property is a matter within the discretion of the trial court. On 

appeal, we will not disturb the court’s distribution of assets absent an abuse of that discretion. 

In re Marriage of Tietz, 238 Ill. App. 3d 965, 979 (1992). The distribution of assets must be 

equitable in nature. Id. Although equal distribution “is generally favored” (In re Marriage of 

Minear, 287 Ill. App. 3d 1073, 1083 (1997)), the division “need not be mathematically equal 

to be equitable” (Tietz, 238 Ill. App. 3d at 979). 

¶ 35 In effectuating an equitable division of property, it is generally helpful for the court to make 

specific findings as to the value of large assets, such as real estate. See In re Marriage of 

Woolsey, 85 Ill. App. 3d 636, 637 (1980) (explaining that “it would have been preferable for 

the court to make a specific finding as to the value of the residence”). However, the court is 

not required to value every asset. In re Marriage of Jerome, 255 Ill. App. 3d 374, 392-93 

(1994); Woolsey, 85 Ill. App. 3d at 637.

¶ 36 Valuation of a marital asset is a question of fact to be determined by the trial court. Tietz, 

238 Ill. App. 3d at 975. In order to determine the value of marital assets, the court must have 

before it competent evidence of value. In re Marriage of Stone, 155 Ill. App. 3d 62, 70 (1987). 

While there is no rule of law regarding what type of evidence constitutes “competent evidence” 

of value, the value of real estate is ordinarily proven through the testimony of expert witnesses 

who have conducted appraisals of the property. See, e.g., In re Marriage of Liszka, 2016 IL 

App (3d) 150238, ¶ 69; In re Marriage of Schuster, 224 Ill. App. 3d 958, 962-64 (1992); Stone, 

155 Ill. App. 3d at 65-66; In re Marriage of Weinberg, 125 Ill. App. 3d 904, 910-11 (1984). 

The record in this case contains no such evidence.

¶ 37 Don testified at the April 2015 hearing that he believed the total value of the two properties 

was between $180,000 and $200,000. He did not explain how he arrived at this estimate, and 

he did not state how much he thought each property was worth. At a later hearing, Mary 

attempted to testify as to what she believed the properties were worth, but Donald objected on 

the grounds that Mary was not qualified as an expert to give an opinion. The court sustained 

the objection.1 Mary then offered into evidence the 2014 Randolph County tax assessments 

for the two properties. The assessments listed the fair market value of the rental property at 

$68,920 and the fair market value of the marital home at $106,260. Mary argues that Don’s 

testimony and the tax assessments were competent evidence of value that the court was 

required to accept. We disagree.

¶ 38 We note that in Woolsey, there is some support for the proposition that a court may consider 

the type of evidence presented here to be competent evidence of value. There, both parties 

testified that they thought the value of their home was approximately $50,000. Woolsey, 85 Ill. 

App. 3d at 637. The trial court awarded possession of the home to the wife until either she 

remarried or the parties’ youngest child reached adulthood, whichever happened first. The 

court ordered the house to be sold and the proceeds divided once either of those two events 

occurred. Id. The husband argued on appeal that the trial court abused its discretion by failing 

to make an explicit finding as to the value of the home. Id. The Fourth District rejected this 

1

The court initially overruled Don’s objection; however, when Mary attempted to explain that she 

arrived at her opinion as to the value of the two properties by researching comparable sales, the court 

sustained the objection on the basis that Mary was not a qualified expert in real estate appraisal.
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argument, holding that although it would have been better for the trial court to have determined 

the value of the home, it was not required to do so. The court noted that the record before it 

contained “competent evidence as to the value of the property,” referring to the testimony of 

the parties as to its value. Id.

¶ 39 Generally, however, a court’s determination of the value of an asset “cannot be based on 

testimony that is not supported by a proper foundation.” Liszka, 2016 IL App (3d) 150238, 

¶ 56. Even the testimony of a qualified expert may be rejected or found not to be credible 

evidence of value if it is not based on market analysis or an inspection of the home. See In re 

Marriage of Wojcik, 362 Ill. App. 3d 144, 152 (2005). Here, Don gave an opinion as to the 

value of the property, but he was not qualified as an expert in real estate appraisal, and he 

provided no basis for his opinion. Mary presented documents showing the fair market values 

of the properties as determined by the Randolph County Tax Assessor. While these values 

were presumably determined through some sort of appraisal process, that process likely did 

not include an inspection of the actual condition and interior features of the two properties.

¶ 40 Moreover, marital assets must be valued as near in time as possible to the date the marriage 

is dissolved. Assets may be valued at the time of trial if the date of trial “is not too far removed 

from the entry of the dissolution judgment.” Id. In this case, the judgment dissolving the 

parties’ marriage was not entered until May 2017. The valuation evidence presented by both 

parties related to the value of the properties at least two years before that date. Don gave his 

estimate of the value of the property in April 2015, and Mary submitted into evidence tax 

assessments showing the value ascribed to the properties by the Randolph County Tax 

Assessor in 2014. Thus, even if this evidence could be considered competent evidence of the 

value of the properties early in 2015, there was no competent evidence of their value at any 

time even remotely close to the May 2017 date of dissolution.

¶ 41 Mary, however, emphasizes that the parties’ evidence of the value of the two properties 

was consistent. The sum of the fair market value listed in the tax assessments she supplied is 

$175,180, which is within the $180,000-to-$200,000 range opined to by Don. Mary points out 

that a court’s valuation of an asset will not be found to be against the manifest weight of the 

evidence if it is within the range of values testified to by the parties’ experts. See Schuster, 224 

Ill. App. 3d at 977-78; Stone, 155 Ill. App. 3d at 71; Weinberg, 125 Ill. App. 3d at 910. This 

argument correctly states the law. But it does not follow from this that a court is required to 

value an asset within the range suggested by nonexpert evidence it explicitly finds not to be 

credible evidence of value.

¶ 42 Mary further argues that the court abused its discretion by ordering the properties to be 

sold due to two intangible considerations. First, the marital home was in Mary’s family for 

over 90 years, and it presumably had some sentimental value to Mary. Second, Katelyn resided 

primarily with Mary, and allowing Katelyn to remain in the marital home by awarding it to 

Mary would offer her a sense of stability and “continuity in [her] environment.” See Tietz, 238 

Ill. App. 3d at 980-81. We are not persuaded.

¶ 43 The evidence at trial reveals that the parties purchased their marital home from Mary’s 

father and aunt in 1989. The home belonged to Mary’s grandparents when she was a child, and 

she lived in the home as an adult while she was dating Don. In addition, there was testimony 

that Katelyn was having some difficulty handling the stress of her parents’ divorce and other 

recent events, including the deaths of two of her friends and an illness Mary went through early 
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in 2012. Katelyn testified that spending time with her horses provided her with stability and 

helped her cope with stressful situations, much as a therapy dog might help other people. 

¶ 44 In arguing that the court abused its discretion in ordering the home to be sold, Mary 

emphasizes that allowing a child to remain in the family home is one way to help provide that 

child with stability. See id. She points out that, for this reason, an award of the marital home 

to the custodial parent is “normally preferred.” Minear, 287 Ill. App. 3d at 1083. However, this 

is only one factor a court should consider in dividing the parties’ assets, and a court does not 

necessarily abuse its discretion if it does not award the marital home to the custodial parent. 

Id.

¶ 45 Here, as we have just discussed, the court was unable to accurately value the two properties 

at issue due to the parties’ failure to present competent evidence of their value. Without such 

evidence, ordering the properties sold and the proceeds split was the only realistic way to divide 

the parties’ assets in an equitable manner. It is the responsibility of the parties in a dissolution 

proceeding to provide the court with sufficient evidence of the value of their property. Liszka, 

2016 IL App (3d) 150238, ¶ 40. Neither party should be allowed to benefit on appeal from 

their own failure to introduce competent evidence of value at trial. In re Marriage of AbuHashim, 2014 IL App (1st) 122997, ¶ 29; In re Marriage of Smith, 114 Ill. App. 3d 47, 54 

(1983). It is also worth noting that the dissolution judgment gave Mary the right to purchase 

Don’s interest in the properties prior to any listing agreement being signed. Thus, the court 

gave her the option of remaining in the home with Katelyn. Considering all of the 

circumstances of this case, we find no abuse of discretion.

¶ 46 C. Assignment of Debts

¶ 47 Mary next argues that the court erred in its assignment of marital debts. Her argument is 

twofold. First, she contends that the court failed to assign a substantial portion of the parties’ 

marital debt at all. Second, she argues that it abused its discretion by assigning her a larger 

share of the debt it did assign. We agree with her first contention.

¶ 48 During the March 2016 hearing, Mary attempted to offer into evidence Respondent’s 

Exhibit 3, a spreadsheet listing all of the marital debts she asserted were owed. Attached to the 

spreadsheet were 124 pages of receipts, bills, correspondence related to loans, and other 

documents. Although Mary’s counsel indicated that he was offering the exhibit only as a 

demonstrative exhibit, we note that the attached documentation was also part of the exhibit.

¶ 49 At the end of the March 2016 hearing, the court found that Mary had not provided a 

sufficient foundation to admit Exhibit 3 into evidence. The court reserved ruling on its 

admissibility, explaining, “I’m going to withhold entry of this until the foundation’s laid.” The 

court noted that laying a proper foundation would require Mary to “go point by point.” At the 

July 2016 hearing, however, the court interrupted Mary’s counsel as he attempted to question 

her about the list of debts to lay the foundation. The court told counsel that there was no reason 

for Mary to testify concerning anything other than her claim of dissipation, noting that the 

parties had “stipulated” that a third hearing was needed to address that question. Counsel 

reminded the court that at the previous hearing, it had requested testimony from Mary that 

would lay the foundation for admission of the exhibit, “line by line.” The court responded, “I 

don’t recall what you’re talking about.” Counsel moved on to other matters, and the court never 

ruled on the admissibility of Mary’s Exhibit 3.
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¶ 50 In the section of the dissolution judgment addressing the parties’ debt, the court assigned a 

$4200 vehicle loan to Don, and it ordered each of the parties to pay half of two additional 

debts, a $2852.84 judgment in favor of Security Finance and a $1498.22 judgment in favor of 

Buena Vista National Bank. The court addressed some of the parties’ other debts in other 

sections of the judgment. The court ordered the parties to divide equally the $24,085 owed to 

Katelyn’s school for two years of tuition. It also ordered each party to pay half of their 

obligations for federal and state income tax and half of the property taxes owed on both 

properties. The court did not address any of the other debts listed in Mary’s Exhibit 3. 

¶ 51 The trial court in a dissolution proceeding must allocate both the parties’ marital property 

and their marital debts. 750 ILCS 5/503(a) (West 2014). Marital debts, like marital assets, must 

be distributed equitably. In re Marriage of Awan, 388 Ill. App. 3d 204, 212-13 (2009); In re 

Marriage of Davis, 292 Ill. App. 3d 802, 807 (1997). An equitable allocation of debts need not 

be mathematically equal. Awan, 388 Ill. App. 3d at 213. 

¶ 52 We first note that we disagree with Mary’s assertion that the court assigned her 70% of the 

marital debt it addressed. She arrived at this conclusion by including her attorney fees as an 

assigned marital debt. Attorney fees are not a marital debt. See In re Marriage of Berberet, 

2012 IL App (4th) 110749, ¶ 58 (explaining that if marital funds are used to pay attorney fees 

related to the dissolution, they must be treated as an advance from the marital estate). Also, the 

list of marital debts reflected in the demonstrative exhibit Mary created includes her own 

attorney fees, but does not include Don’s attorney fees. Both parties were ordered to pay their 

own fees. However, we need not consider whether the assignment of debts is equitable because 

we find it necessary to remand this matter to allow the court to consider additional evidence 

concerning the parties’ marital debts. Because this will likely result in the assignment of 

additional debts, the question of whether the court’s current assignment of debt was equitable 

will be rendered moot.

¶ 53 As stated previously, we agree with Mary’s assertion that the court did not assign all of the 

parties’ marital debt. We recognize that the trial court was faced with a difficult task in this 

case. The matter remained pending for over four years due to various delays attributable to the 

parties, and Mary attempted to present evidence of the parties’ marital debts through a 

complicated exhibit totaling over 100 pages. In addition, the testimony Mary attempted to offer 

about the debts focused on a spreadsheet she created. However, it is apparent from our review 

of the documentation attached to Mary’s Exhibit 3 that the parties had substantial marital debt 

that was not addressed by the court at all in its judgment of dissolution. As discussed earlier, 

the court reserved ruling on the admissibility of Mary’s exhibit containing evidence of these 

debts, but it then failed to give her an opportunity to lay the foundation for the exhibit. It is 

therefore necessary for us to remand this matter to the trial court so that the court can rule on 

these unresolved questions.

¶ 54 We address three considerations that are likely to arise on remand. First, the list of debts in 

Mary’s exhibit includes medical bills for Mary and Katelyn and debt related to the two pieces 

of real estate, which appear to be well-documented by the attached bills and receipts. The list 

also includes various loans from individuals she knew. Some of these loans were for living 

expenses, while others were used to pay specific debts for medical bills, overdue boarding fees 

for the horses, and debts related to the real estate. We note that loans from friends or relatives 

are typically viewed with some suspicion by courts. See Awan, 388 Ill. App. 3d at 213. 

However, such loans can be found to be valid marital debts, particularly in cases where, as 
- 11 -

here, the party who incurred the debts claims that it was necessary to do so because the other 

party has not made court-ordered payments. See id. at 214. The court is not required to find all 

of the debts listed in Mary’s Exhibit 3 to be valid marital debts. However, the court is required 

to give her an opportunity to prove that the debts exist and that they were incurred for marital 

purposes. Failure to do so results in a distribution of marital debt that is not equitable.

¶ 55 Second, the documentation attached to Mary’s Exhibit 3 includes overdue stable fees and 

veterinary bills for Katelyn’s horses. As we discussed previously, the court will have to decide 

on remand whether to order Don to contribute to expenses related to Katelyn’s horses in the 

future. Regardless of what it determines, we find that expenses for the horses while the 

dissolution proceedings were pending are marital expenses because the horses were purchased 

during the marriage for the parties’ minor child. Thus, if the court finds that Mary’s evidence 

is sufficient to prove the existence of debts for the horses, it should consider them along with 

other marital debts and divide them between the parties in an equitable manner.

¶ 56 Third, we note that although we find no abuse of discretion in the court’s assignment of 

the debts it did address, the court may find that an equitable division of the parties’ total debts 

would be better achieved by assigning some of those debts differently. For this reason, we will 

vacate the portions of the court’s judgment assigning debts.

¶ 57 D. Dissipation of Funds From Don’s Checking Account

¶ 58 Mary next argues that the court erred in finding that she failed to make a prima facie

showing of dissipation of marital funds by Don. Mary attempted to demonstrate dissipation in 

three different ways. She attempted to show that (1) Don’s withdrawals from his checking 

account exceeded his living expenses based on the information he provided in his financial 

affidavits, (2) Don made withdrawals of over $160,000 from the account for unidentified 

purposes, and (3) Don liquidated his retirement accounts. We will address the liquidation of 

the retirement accounts in the next section of this decision. We agree with Mary’s contention 

that she made a prima facie showing of dissipation with respect to Don’s withdrawals from his 

checking account.

¶ 59 Mary first attempted to raise the question of dissipation at the April 2015 hearing. Don 

testified at that hearing that he had no funds left in either of his two retirement accounts. He 

explained that he cashed in both accounts to pay overdue taxes, mortgage payments, and late 

fees. On cross-examination, he testified that he previously had retirement accounts with 

Lincoln and Thrivent. He estimated that before he cashed it out, the account with Lincoln had 

a balance of about $16,000 or $17,000. Although Don’s attorney made no objection, the court 

interjected at this point to ask the relevance of questions concerning the value of the accounts. 

Mary’s attorney went on to cross-examine Don on other matters.

¶ 60 When Mary took the stand, her attorney attempted to ask her about the two retirement 

accounts. The court again interrupted and asked counsel the relevance of his questions in light 

of the fact that the accounts had been depleted. The following exchange occurred:

“THE COURT: So what would be the relevance of going into that?

MR. HAYES [COUNSEL FOR MARY]: Dissipation of marital assets.

THE COURT: Have you filed a claim for dissipation?

MR. HAYES: We have a claim. I feel that she would be entitled to—

THE COURT: Statute requires that you file a claim for dissipation 90 days before.
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* * *

MR. HAYES: Your Honor, it’s not so much I’m claiming that this is dissipation as 

it is—it’s utilizing marital funds to pay debts that he should have paid pursuant to court 

order.

* * *

THE COURT: Well, if it has to do with a court order, we agreed we’re not hearing 

that now.”

Counsel moved on to question Mary on other matters. 

¶ 61 Three days later, on April 10, 2015, Mary filed a notice of intent to claim dissipation of 

marital assets. In it, she asserted that Don dissipated a total of $97,788 in marital funds between 

January 1, 2010, and December 31, 2014. She alleged that the marriage was irretrievably 

broken during this period. Attached to the motion were several spreadsheets in which Mary 

attempted to illustrate that Don’s cash withdrawals from his checking account exceeded the 

living expenses he claimed he was incurring in his financial affidavit. Neither the motion nor 

the attached spreadsheets addressed the funds withdrawn from Don’s retirement accounts.

¶ 62 As we discussed earlier, discovery was reopened, and the matter was continued for nearly 

a year. At the next hearing, on March 21, 2016, Mary’s attorney began questioning her about 

Respondent’s Exhibit 4, a spreadsheet Mary created comparing Don’s bank records from 2010 

through 2015 to the living expenses he attested to in his financial affidavits. The court asked 

the relevance of this line of questioning. Counsel replied, “I’m going to introduce evidence as 

to what his income was over and above his living expenses to show dissipation.” Don’s 

attorney objected, arguing that Don’s living expenses had changed and that there was no 

foundation for the spreadsheet created by Mary. The court again asked Mary’s attorney the 

relevance of the exhibit. In response, Mary’s counsel argued that the purpose of the exhibit 

was to prove that Don was spending “excessive” amounts of money “over and above his living 

expenses.” He further argued that the burden would then shift to Don to show that the money 

was used for marital purposes. The court admitted Mary’s spreadsheet as a demonstrative 

exhibit over Don’s objection. The court admitted Don’s 2010 to 2015 bank statements without 

objection.

¶ 63 Mary then testified that she calculated that Don withdrew $160,122 from his account above 

his claimed living expenses for this period. She testified that she did not know whether any of 

the funds were spent for marital purposes. She acknowledged that prior to the parties’ 

separation, Don spent all of his money for marital purposes.

¶ 64 The matter was continued again. The final hearing, on July 8, 2016, focused almost 

exclusively on Mary’s claim of dissipation. The evidence Mary presented at the hearing was 

similar to the evidence she presented at the March 2016 hearing, with two differences. First, 

she introduced additional evidence concerning Don’s bank records during the first half of 2016. 

Second, she took a different approach. This time, instead of comparing Don’s withdrawals 

from the accounts to his stated living expenses, she attempted to show that Don withdrew 

substantial amounts of cash that were not clearly spent for marital purposes. 

¶ 65 To support this theory, Mary introduced four exhibits into evidence. Exhibit 8 was a 

spreadsheet Mary created that summarized Don’s income and withdrawals. The spreadsheet 

was based on the monthly statements from Don’s bank account from 2010 to 2016. The bank 

statements were admitted as Exhibit 9. Exhibit 11 consisted of receipts Don provided to Mary. 
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Some of the receipts indicated that Don paid cash. Exhibit 10 was another spreadsheet created 

by Mary. It summarized the receipts provided by Don and indicated whether each was paid in 

cash. All four exhibits were admitted without objection, but the spreadsheets were admitted 

only as demonstrative exhibits.

¶ 66 Mary testified during the hearing about how she prepared the two spreadsheets and what 

she thought they showed. She first noted that the spreadsheets covered all of 2010 through the 

first half of 2016. She explained that she used the ending balance from Don’s final bank 

statement of 2009 as a starting point. Mary testified that the bank statements showed that Don 

deposited a total of $441,696 into the account over the following 51⁄2 years. She testified that 

during the same period, he made $271,848 in withdrawals from the account for “identified 

expenses” and $174,483 in cash withdrawals and other unidentified expenditures. 

¶ 67 Mary further testified that the receipts provided to her by Don showed that he used 

approximately $6500 to pay for marital expenses in cash. (We note that based on the 

calculations reflected in the exhibits and her testimony, the precise amount was $6664.) Mary 

then testified that after taking into account the receipts for marital expenses paid for with cash, 

the unaccounted-for cash withdrawals from Don’s bank account between 2010 and 2016 

totaled $167,819. 

¶ 68 Mary testified that she did not know whether any portion of the $167,819 was used for 

marital purposes. She explained that she did not know what any of the funds were used for. 

She acknowledged, however, that all of the identified expenditures were for marital purposes

—including the cash receipts and the bank withdrawals she considered to be for identifiable 

expenses.

¶ 69 The court asked counsel for Mary what must be demonstrated in order to make a 

prima facie showing of dissipation. Counsel responded, “Showing that there’s unaccountable 

for—cash over and above marital expenses.” The court then asked counsel, “What if he spends 

cash, and he doesn’t get a receipt?” Counsel argued that it would be up to Don to explain the 

purposes for which the cash was spent. The court asked if this meant that Don “would have to 

account for every penny that [he] spent over the last five years.” Counsel replied, “That’s what 

the case law says.” The court noted that the case law provided to it by the parties addressed the 

burden of a spouse charged with dissipation after a prima facie showing of dissipation has been 

made, but did not really address the question of what evidence was necessary to make a 

prima facie showing. The court asked both parties to provide additional authority on that 

question when they submitted written arguments.

¶ 70 On cross-examination, Mary was asked whether Don “typically” used cash to pay for 

things during the parties’ marriage. She replied, “Sometimes he did. Sometimes he paid with 

a check.” She further testified that during the marriage, Don did not carry a credit card “on a 

regular basis,” and he often paid for things like restaurant bills in cash. She also noted that she 

was aware that after the parties separated, Don sometimes paid his rent in cash, and he 

sometimes gave her cash to pay for bills.

¶ 71 After Mary finished her testimony, the court asked counsel for Don if he had any rebuttal 

evidence or a defense to the claim of dissipation. Counsel responded by arguing that Mary did 

not meet her burden of making a prima facie case of dissipation. He emphasized her testimony 

that Don used cash to pay some bills during the marriage. He argued that this practice was 

what Don “was accustomed to and did during their marriage.” Mary’s attorney argued in 

response that once Mary showed that Don “liquidated marital assets,” the burden shifted to 
- 14 -

Don to explain how those assets were used. The court expressed doubt as to whether a bank 

account can be liquidated, explaining that cash by its very nature is a liquid asset. The court 

also asked what nonmarital purpose Mary believed the cash had been used for. Her attorney 

argued that it was not Mary’s burden to show that the cash had been used for nonmarital 

purposes. 

¶ 72 The court noted that the case law on the question of a prima facie showing of dissipation 

is not “very clear on that.” In spite of its earlier request for additional authority on the question, 

the court ruled from the bench that Mary failed to make a prima facie case. 

¶ 73 On appeal, Mary argues that the court erred in ruling that she failed to make a prima facie

showing of dissipation. Before addressing the merits of her argument, we must address Don’s 

contention that Mary’s notice of intent to claim dissipation was not timely. The relevant statute 

provides that a court may consider the dissipation of assets only on the condition that “a notice 

of intent to claim dissipation shall be given no later than 60 days before trial or 30 days after 

discovery closes, whichever is later.” 750 ILCS 5/503(d)(2)(i) (West 2014). Discovery closed 

in this case on March 23, 2015. Mary filed her notice of intent on April 10, which was less 

than 30 days after this date. As such, her notice was timely under the express terms of the 

statute.

¶ 74 Don, however, emphasizes that Mary’s notice was filed after the hearings in this case 

began. The statute does not expressly require that a notice of intent be filed before the start of 

trial. However, we recognize that there are circumstances under which it would be unfair to 

require a party to refute a claim of dissipation raised after the start of trial even if the other 

party complied with the statute. We do not find such circumstances to be present in this case.

¶ 75 We are guided in this determination by cases that arose before the requirement of a notice 

of intent went into effect. See Pub. Act 97-941, § 5 (eff. Jan. 1, 2013) (amending 750 ILCS 

5/503(d)(2)) (adding the relevant requirement). Such cases addressed the issue in terms of 

fairness to the party charged with dissipation or forfeiture by the party claiming dissipation. 

They held that trial courts could find dissipation as long as the party found to have dissipated 

assets had sufficient notice to refute the claim. See, e.g., In re Marriage of Brown, 2015 IL 

App (5th) 140062, ¶¶ 60-62 (finding that the husband did not forfeit his claim of dissipation 

despite his failure to file a notice of his intent pursuant to a local court rule where various 

pretrial pleadings made it clear to the wife that he intended to raise the issue); In re Marriage 

of Vancura, 356 Ill. App. 3d 200, 206 (2005) (upholding the trial court’s sua sponte finding of 

dissipation where the record indicated that parties were put on notice that dissipation would be 

an issue); In re Marriage of Henke, 313 Ill. App. 3d 159, 178 (2000) (upholding a court’s 

finding of dissipation even though the wife did not expressly charge the husband with 

dissipation where her attorney presented evidence on the question and the husband had the 

opportunity to refute the claim); In re Marriage of Davis, 215 Ill. App. 3d 763, 777 (1991) 

(finding that the wife did not forfeit her claim of dissipation where the record showed that the 

husband “knew from the start of the trial” that she intended to assert the claim). 

¶ 76 We recognize that the statutory amendment would change the results of these cases, 

particularly those in which the court found dissipation sua sponte, because the notice required 

by the statutory amendment is mandatory. See 750 ILCS 5/503(d)(2)(i) (West 2014) (providing 

that the requisite notice “shall” be given (emphasis added)). However, we also recognize that 

the facts underlying claims of dissipation often remain hidden until they are uncovered during 

the process of discovery or even through testimony at trial. See, e.g., In re Marriage of Zweig, 
- 15 -

343 Ill. App. 3d 590, 599 (2003) (describing evidence that the wife “secreted away” marital 

assets). We therefore believe that a claim of dissipation should be considered as long as it 

complies with the express requirements of the statute and also comports with the notions of 

fairness that animated decisions such as Brown, Vancura, Henke, and Davis. 

¶ 77 Here, as we have already discussed, Mary’s notice of intent to claim dissipation complied 

with the express requirements of the statute. In addition, we find that under the circumstances 

of this case, Don had ample notice that dissipation would be an issue. Mary addressed the issue 

in court on April 7, 2015, and filed her notice of intent three days later. The matter was 

continued for 11 months to allow the parties to conduct further discovery, and it did not 

conclude until July 8, 2016, more than a year after Mary raised the issue. Because Mary filed 

her notice of intent within the time period mandated by the statute and Don had the opportunity 

to refute the claim, her notice was timely and the question of dissipation was properly 

considered by the court.

¶ 78 We turn now to the merits of Mary’s contention. Dissipation is the use of marital assets for 

the benefit of one spouse for purposes unrelated to the marriage while the marriage is 

undergoing an irreconcilable breakdown. In re Marriage of Holthaus, 387 Ill. App. 3d 367, 

374 (2008). The party alleging dissipation must first make a prima facie showing that 

dissipation has occurred. Brown, 2015 IL App (5th) 140062, ¶ 66. Once this showing has been 

made, however, the burden shifts to the party charged with dissipation to show with clear and 

specific evidence how the funds were spent. In re Marriage of Stuhr, 2016 IL App (1st) 

152370, ¶ 65; Jerome, 255 Ill. App. 3d at 395.

¶ 79 Whether a party’s conduct constitutes dissipation depends on the facts and circumstances 

of the particular case. In re Marriage of Rai, 189 Ill. App. 3d 559, 565 (1989). Because 

dissipation is a factual inquiry, we will reverse the trial court’s findings on the question only if 

they are against the manifest weight of the evidence. Holthaus, 387 Ill. App. 3d at 374; 

Vancura, 356 Ill. App. 3d at 204. The court’s findings are against the manifest weight of the 

evidence if the opposite conclusion is clearly apparent or if the findings are not based on the 

evidence. Holthaus, 387 Ill. App. 3d at 374.

¶ 80 The court in this case grappled with the question of what Mary needed to show in order to 

make a prima facie showing of dissipation. It is clear that the party claiming dissipation is not 

required to demonstrate that the funds at issue were used for a purpose unrelated to the 

marriage. See Jerome, 255 Ill. App. 3d at 395. What is somewhat less clear is what a party 

must show where, as here, the alleged dissipation involves moderate expenditures and 

withdrawals that add up over time. This is likely because, in many cases, the prima facie

evidence of dissipation consists of large withdrawals of cash from the parties’ bank accounts. 

See, e.g., In re Marriage of Dhillon, 2014 IL App (3d) 130653, ¶¶ 9, 11 (evidence that the 

husband “essentially depleted” the marital funds in a savings account by making “a few large 

transfers over a short period” of time); Vancura, 356 Ill. App. 3d at 203 (evidence that the 

husband cashed a $16,000 check made out to a family business without the wife’s knowledge 

or consent); Henke, 313 Ill. App. 3d at 177 (evidence that the husband took an IRA distribution 

of $33,669); Tietz, 238 Ill. App. 3d at 981 (evidence that the husband transferred $35,976 from 

a joint account to his individual checking account); In re Marriage of Toth, 224 Ill. App. 3d 

43, 46 (1991) (evidence that the wife liquidated several accounts). However, that is just one of 

the ways to make a prima facie case of dissipation.
- 16 -

¶ 81 Dissipation is premised on the diminution or devaluation of the marital estate. Brown, 2015 

IL App (5th) 140062, ¶ 67. Loss of value does not always occur because of a single large 

withdrawal of funds. Thus, a prima facie case for dissipation can be made by showing that a 

spouse’s mismanagement of marital assets over time caused losses to the marital estate. See

id. ¶ 68 (evidence that the marital home was damaged in a fire after the wife failed to pay 

property insurance and evidence that three pieces of marital property were lost to foreclosure 

due to her failure to make mortgage payments). Dissipation can also be shown by 

demonstrating that a spouse’s use of marital funds for his or her living expenses is “selfish, 

excessive, and improper.” Id. ¶ 67 (citing In re Marriage of Carter, 317 Ill. App. 3d 546, 551-

52 (2000)); see also In re Marriage of Murphy, 259 Ill. App. 3d 336, 339-40 (1994). 

¶ 82 A prima facie showing of dissipation can also be made, as it was in this case, by showing 

that cash withdrawn or funds spent by a spouse over a period of months or years added up to 

a substantial amount. In Berberet, for example, the wife presented evidence that the husband 

spent $21,725 from his workers’ compensation settlement over a period of 11 months. This 

included evidence that he made $4200 in cash withdrawals from an account he opened with 

the proceeds of the settlement. Berberet, 2012 IL App (4th) 110749, ¶ 53. The trial court found 

that the husband “adequately explained” his use of the funds. It therefore found that no 

dissipation occurred. Id. ¶ 54. The appellate court affirmed this finding. Id. ¶¶ 54-56. 

Significantly for our purposes, however, the court noted that the husband bore the burden of 

showing how the money was spent. Id. ¶ 55. In other words, although the court ultimately 

found that the husband had not dissipated the funds, it also found that the wife’s evidence of 

unexplained expenditures and withdrawals that added up over time was sufficient to shift the 

burden to the husband.

¶ 83 Similarly, in Davis, the wife showed that the husband deposited marital funds into a 

separate account and made withdrawals from that account over time. Davis, 215 Ill. App. 3d 

at 777. He used the account to pay his own living expenses and to pay for vacations with his 

children. Id. at 777-78. The trial court found that the husband did not dissipate the funds, and 

the appeals court upheld that ruling. Id. at 778. In doing so, the court emphasized that the 

husband “was meticulous about documenting his expenditures and that he accounted for every 

check written.” Id. at 777. Thus, although the court did not directly address the question before 

us, it appeared to find the wife’s evidence sufficient to make a prima facie case of dissipation.

¶ 84 Another pertinent case is In re Marriage of Manker, 375 Ill. App. 3d 465 (2007). There, 

the wife presented evidence that the husband made several ATM withdrawals and withdrawals 

of cash from the parties’ savings account. Id. at 476. The trial court found that she failed to 

make a prima facie showing of dissipation and found that the husband’s explanation for how 

he used the funds was credible. Id. at 476-77. The appeals court implied that it disagreed with 

the first of these findings, emphasizing that once a prima facie showing of dissipation has been 

made, the burden shifts to the other party to show how the funds were used. Id. at 477. 

However, the court then noted that “[t]he trial court emphasized that it ‘believed’ [the 

husband’s] testimony regarding the withdrawals.” Id. The appellate court deferred to the trial 

court’s credibility determination and affirmed its ruling on the basis of its finding that the 

husband demonstrated that his use of the funds was for rent and reasonable living expenses. 

Id. This reasoning similarly implies that the evidence of withdrawals that add up over a period 

of time is sufficient to make a prima facie case for dissipation. See also Rai, 189 Ill. App. 3d 

at 565-69 (finding dissipation where the husband withdrew cash and transferred funds from 
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joint accounts regularly over a period of years). We find that Mary’s evidence was sufficient 

to make a prima facie showing of dissipation.

¶ 85 We note that a prima facie showing of dissipation can also be based on evidence that a 

spouse withdrew funds that far exceeded his or her living expenses over a period of months or 

years, such as the evidence Mary presented at the March 2016 hearing. See, e.g., In re 

Marriage of Hubbs, 363 Ill. App. 3d 696, 700-01 (2006); Murphy, 259 Ill. App. 3d at 338-39. 

However, much of the evidence Mary presented at the July 2016 hearing included the same 

time period as the evidence she presented at the March 2016 hearing. Thus, with the exception 

of the evidence related to the first half of 2016, the evidence presented at the two hearings is 

duplicative.

¶ 86 Although we have concluded that Mary made a prima facie showing of dissipation, we do 

not believe that she made a prima facie showing of dissipation for the entire period she claims. 

As we noted earlier, dissipation refers to the use of marital property for purposes unrelated to 

the marriage during a time when the marriage is undergoing an irreconcilable breakdown. 

Holthaus, 387 Ill. App. 3d at 374. As such, the time frame for calculating begins when the 

marriage begins to undergo an irreconcilable breakdown, not from the time the breakdown is 

complete. Id. at 375. Thus, dissipation can ordinarily be found based on conduct that occurred 

prior to the parties’ separation or the filing of a dissolution petition. In re Marriage of Harding, 

189 Ill. App. 3d 663, 676 (1989); Rai, 189 Ill. App. 3d at 565. However, if the record does not 

contain evidence that clearly establishes the point at which the marriage began to break down, 

dissipation must be measured from the time the parties separated or a petition for dissolution 

is filed. See Jerome, 255 Ill. App. 3d at 394; In re Marriage of Landwehr, 225 Ill. App. 3d 149, 

150 (1992); Harding, 189 Ill. App. 3d at 676. Here, Mary provided evidence of Don’s 

withdrawals and expenditures beginning in January 2010. However, she did not present 

evidence to show when the marriage began undergoing its breakdown. Absent such evidence, 

she can only claim dissipation for the period after the parties separated, which occurred in 

November 2010. Because we have concluded that Mary made a prima facie showing of 

dissipation for the period from November 2010 through July 2016, we must remand the matter 

to the trial court to allow Don the opportunity to refute the charge of dissipation. 

¶ 87 We address one more issue that is likely to arise on remand—the type of evidence he needs 

to present to do so. The requirement that a spouse charged with dissipation present clear and 

specific evidence concerning the use of the funds alleged to have been dissipated means that 

he cannot refute the charge merely by stating that he used the funds to pay debts or for living 

expenses. See Tietz, 238 Ill. App. 3d at 984. However, we agree with the trial court’s apparent 

concern that it would be impossible for any party to account for every penny of cash spent over 

the course of five years. In Manker, the husband offered into evidence receipts and testified 

that they were a “ ‘representative sample’ ” of his expenses. Manker, 375 Ill. App. 3d at 477. 

He also testified that he routinely used cash withdrawn from an ATM. The trial court expressly 

found this evidence to be credible. Id. In Tietz, the husband provided a summary of his major 

expenditures during the relevant period. Tietz, 238 Ill. App. 3d at 981-83. Similar evidence 

would suffice here, assuming the court finds it to be credible. See id. at 983-84.

¶ 88 E. Don’s Retirement Accounts

¶ 89 Mary’s next argument concerns funds withdrawn from Don’s retirement accounts. As 

discussed earlier, Don acknowledged liquidating his two retirement accounts in order to pay 
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$14,003.11 in debts he was ordered to pay. There is no dispute that he met this obligation after 

liquidating the accounts. However, Mary alleges that he withdrew a total of $21,150.38 from 

the accounts, and he did not deposit the remaining $7147.27 into a trust account, as he was 

ordered to do. Mary argues that the court erred in not awarding her half of the remaining 

$7147.27. We disagree.

¶ 90 Mary provides two alternative bases for her argument. First, she argues that she made a 

prima facie showing that Don dissipated these funds. As she points out, Don acknowledged 

liquidating the accounts. This is ordinarily sufficient to make a prima facie case of dissipation. 

See, e.g., Henke, 313 Ill. App. 3d at 177; Toth, 224 Ill. App. 3d at 46. However, a court may 

only consider dissipation of assets on the condition that the party alleging dissipation files a 

notice of intent to claim dissipation that comports with statutory requirements. 750 ILCS 

5/503(d)(2) (West 2014). The statute requires that the notice include “an identification of the 

property dissipated.” Id. § 503(d)(2)(ii). Because Mary’s notice of intent to claim dissipation 

did not address the funds withdrawn from Don’s retirement accounts at all, this statutory 

requirement was not met. Thus, the court cannot consider whether Don dissipated these funds. 

¶ 91 Second, Mary argues that she was entitled to half of the funds from Don’s retirement 

accounts because the accounts were marital assets. Mary is correct in stating that pensions and 

other retirement benefits earned during the marriage are marital assets. See Davis, 215 Ill. App. 

3d at 773. However, she overlooks the fact that the distribution of marital assets, including 

retirement accounts, is a matter within the court’s discretion. Tietz, 238 Ill. App. 3d at 979. She 

also overlooks the fact that her retirement accounts were also marital assets. For the reasons 

that follow, we find that the court’s decision to award both parties their own retirement 

accounts was not an abuse of discretion.

¶ 92 The record contains limited evidence as to the precise value of Mary’s retirement accounts 

at the time of the dissolution. Mary testified at the April 2015 hearing that she had a retirement 

plan with Emerson Electric that was then valued at approximately $1400. In a financial 

affidavit filed on March 21, 2016, Mary indicated that she had just under $1100 remaining in 

that account. She also listed a second retirement account worth $1913, for a total of $2913. 

There is no indication in the record as to whether the Emerson Electric account lost value due 

to falling stock prices or because Mary withdrew $300 from the account. It is worth noting that 

at a December 2013 hearing on temporary relief, Mary acknowledged that she had withdrawn 

approximately $13,000 from her retirement accounts to pay bills. Mary did not supply the court 

with any updated information concerning the value of her retirement accounts when she filed 

her written arguments in August 2016.

¶ 93 The record likewise contains little evidence as to the precise value of Don’s retirement 

accounts when he liquidated them in October 2014. We recognize that the court did not allow 

Mary to question Don about the estimated value of the smaller account, but she did not make 

an offer of proof, and she did not provide documentation of the precise value of either account. 

However, in its order granting Mary’s motion to deposit funds, the court expressly stated that 

the funds withdrawn from the two accounts totaled $21,150.38, indicating that it accepted 

Mary’s allegation that this was the amount withdrawn. 

¶ 94 This evidence showed that both parties used most of the funds in their retirement accounts 

to pay debts and bills. Mary’s accounts contained at least $2913 after she did so, and although 

Don completely liquidated his accounts, he retained approximately $7147 of the funds from 

the accounts after paying the debts he was ordered to pay. These funds did not represent a large 
- 19 -

share of the parties’ assets, and the difference in these figures is not substantial. Absent reliable 

evidence that there is a substantial disparity in the value of the parties’ retirement accounts, 

awarding both parties their own accounts is an appropriate exercise of the trial court’s 

discretion. See In re Marriage of Evans, 85 Ill. 2d 523, 532-33 (1981). The court’s decision 

also allows Mary to keep the full benefit of her accounts as well as any future increases, while 

leaving Don to bear the full consequences of his decision to completely liquidate his accounts. 

Under these circumstances, we find no abuse of discretion in the court’s decision to award both 

parties their own retirement accounts.

¶ 95 F. Attorney Fees

¶ 96 Mary’s last contention is that the court abused its discretion in refusing to order Don to pay 

any portion of her attorney fees. We disagree.

¶ 97 Both parties have the primary obligation of paying their own attorney fees. However, in a 

dissolution proceeding, the trial court may order one party to pay a reasonable portion of the 

other party’s fees. In re Marriage of Patel, 2013 IL App (1st) 112571, ¶ 113. The party 

requesting an award of attorney fees must demonstrate both that she is financially unable to 

pay the fees and that the other party is able to pay. Id. This does not require the party requesting 

the fee award to show that she is destitute. In re Marriage of Heroy, 2017 IL 120205, ¶ 19 

(quoting Kaufman v. Kaufman, 22 Ill. App. 3d 1045, 1050 (1974)). A party is unable to pay 

attorney fees if doing so would undermine that party’s financial stability or means of support. 

Id.; Patel, 2013 IL App (1st) 112571, ¶ 113.

¶ 98 Determining whether an award of attorney fees is appropriate requires courts to consider 

the same factors they consider in dividing marital property and awarding maintenance. Patel, 

2013 IL App (1st) 112571, ¶ 113. These factors include the income of each party, the present 

and future earning capacity of each party, and the marital property awarded to each party. Id.

Another relevant consideration is any conduct by either party that unnecessarily increased the 

cost of litigation. Id. ¶ 117. Whether to award attorney fees is a matter within the discretion of 

the trial court. We will not reverse its decision absent an abuse of that discretion. In re 

Marriage of Vest, 208 Ill. App. 3d 325, 332 (1991).

¶ 99 In this case, the court recognized that Don’s income was “substantially greater” than 

Mary’s income. For this reason, it awarded her $1642 per month in maintenance. Although the 

maintenance award does not eliminate the disparity between the parties’ incomes, it reduces it 

substantially. The court also found that the parties received “substantially equal” shares of the 

marital property. It is worth noting that Mary was awarded most of the parties’ furniture and 

household goods pursuant to the parties’ agreement, making it necessary for Don to purchase 

replacements for these items to set up a new household. Each party in this case accuses the 

other of unnecessarily increasing the cost of litigation, and the court appeared to be frustrated 

with both parties for needlessly prolonging the case. In view of all of these circumstances, we 

find no abuse of discretion in the court’s decision to order both parties to pay their own attorney 

fees.

¶ 100 G. Maintenance

¶ 101 Don raises two arguments in his cross-appeal. He first argues that the court erred “in 

determining maintenance and that maintenance should be permanent.” Although it is not 

entirely clear from Don’s limited argument, it appears that he is challenging both the propriety 
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of awarding maintenance at all and the duration of the maintenance awarded. We disagree on 

both points.

¶ 102 The propriety, amount, and duration of maintenance are matters within the discretion of 

the trial court. We will not reverse its decision on any of these matters absent an abuse of 

discretion. In re Marriage of Johnson, 2016 IL App (5th) 140479, ¶ 93. 

¶ 103 In determining the propriety of maintenance, courts consider “all relevant factors,” 

including the income and property of both parties, the realistic current and future earning 

capacity of the parties, the impairment of either party’s earning capacity because of a decision 

to forgo education due to the marriage, the standard of living established during the marriage, 

and the duration of the marriage. 750 ILCS 5/504(a) (West 2014). Although the court must 

consider all relevant factors, it need not give them equal weight. In re Marriage of Nord, 402 

Ill. App. 3d 288, 293 (2010).

¶ 104 Don argues that the court abused its discretion in finding maintenance to be proper for three 

reasons. First, he argues that because Mary continues to live in the marital home, she enjoys 

the standard of living established during the marriage without receiving maintenance. See 750 

ILCS 5/504(a)(6) (West 2014). We disagree. Don’s argument overlooks the fact that the court 

ordered the parties to sell the marital home and divide the proceeds, a ruling we have upheld. 

More importantly, there is more to the standard of living established during the marriage than 

living in a specific building. Here, there was not a lot of evidence about the standard of living 

the parties enjoyed during the marriage. However, there was evidence that they owned multiple 

vehicles, two horses, and a boat. These are things Mary likely cannot afford on her salary alone, 

which is approximately half of what Don earns. Moreover, assuming Mary purchases Don’s 

interest in the home and continues to live there, she will have to maintain the home in addition 

to meeting her other living expenses. A party should not be required to expend her assets in 

order to live at something approximating the standard of living enjoyed during the marriage. 

Minear, 287 Ill. App. 3d at 1081. The court explicitly found that Mary required maintenance 

in order to maintain the standard of living established during the marriage, and we believe the 

record supports this finding.

¶ 105 Second, Don argues that Mary’s income from her job “will place her in the same or better 

standard of living than she maintained for the majority of her married life.” He does not offer 

any explanation or support for this bald assertion. See Ill. S. Ct. R. 341(h)(7) (eff. Nov. 1, 

2017) (providing that an appellant’s brief must contain the reasons for the appellant’s 

contentions along with appropriate citations to authority and “pages of the record relied on”). 

Moreover, for the reasons we have just discussed, we agree with the trial court that Mary’s 

income is not sufficient to allow her to live at the standard of living established during the 

marriage. We therefore reject Don’s argument to the contrary.

¶ 106 Third, Don argues that the court failed to consider the parties’ future earning capacity. See 

750 ILCS 5/504(a)(3) (West 2014). He claims that while he expects his earning capacity to 

decrease, Mary’s can only continue to increase. We disagree with his characterization of the 

record. We note that both parties offered somewhat self-serving testimony concerning their 

future earning capacity. Mary testified that there was no room for advancement at her job 

because she does not have a four-year college degree. Don testified that beginning in June 

2015, his income would consist of a base salary of $48,000 per year plus commissions. He 

further testified that although his sales territory would increase, his rate of commission would 

decrease. He predicted that his overall earnings would decrease as a result of these changes. 
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The court was not required to find all of the statutory factors relevant, and it was not required 

to accept Don’s self-serving assessment of his future earning capacity. If Don’s income does 

decline over time, a petition to modify maintenance would be appropriate. See id. § 510. The 

mere possibility that Don’s income may decrease over time does not negate the propriety of 

maintenance in light of the current disparity in the parties’ incomes.

¶ 107 Moreover, we find that a reasonable assessment of all relevant statutory factors supports 

the court’s decision to award maintenance. As we have discussed, Don’s income at the time of 

the dissolution proceedings was nearly twice Mary’s income. See id. § 504(a)(1). As we have 

also discussed, Mary’s income was not sufficient to allow her to live at the standard of living 

established during the marriage. See id. § 504(a)(6). Further, an award of maintenance is 

appropriate due to the parties’ lengthy marriage. See id. § 504(a)(7). And finally, Mary’s 

present and future earning capacity has been impaired by two decisions the parties made during 

their marriage. First, they decided that Mary would forgo the opportunity to complete her 

education so that she could work at a job closer to her sons’ schools. As noted earlier, this 

required her to leave a job with an employer that was paying her tuition. Second, the parties 

decided that Mary would leave the workforce for a substantial amount of time to be a stay-athome mother to their daughter, Katelyn. See id. § 504(a)(4). We find no abuse of discretion in 

the court’s determination that maintenance was proper.

¶ 108 Once the court finds that maintenance is appropriate, it must determine the amount and 

duration of maintenance. In doing so, courts must consider statutory guidelines as to both the 

amount and duration. In re Marriage of Harms, 2018 IL App (5th) 160472, ¶ 27 (citing 750 

ILCS 5/504(b-1)(1) (West 2016)). The court is not required to order maintenance in accordance 

with the statutory guidelines. However, if the court departs from the guidelines, it must make 

specific findings as to the amount and/or duration of maintenance that would have been ordered 

pursuant to the guidelines and the court’s reasons for departing from those guidelines. Id.

(citing 750 ILCS 5/504(b-2)(2) (West 2016)). 

¶ 109 Here, the court calculated the amount of maintenance in accordance with the statutory 

guidelines, and its award of permanent maintenance was also in accordance with the statutory 

guidelines for the duration of maintenance after marriages of 20 or more years. See 750 ILCS 

5/504(b-1)(1)(B) (West 2014). Don does not challenge the amount of maintenance, but he does 

argue that an award of permanent maintenance was “an extreme result” and that the court 

abused its discretion by not allowing “a review of maintenance after a period of time” due to 

his claim that his income is likely to decrease. We are not persuaded. 

¶ 110 The new statutory guidelines provide that for a marriage of 20 years or longer, such as the 

parties’ marriage, maintenance should be awarded “for a period equal to the length of the 

marriage or for an indefinite term.” 750 ILCS 5/504(b-1)(1)(B) (West Supp. 2017). Indefinite 

or permanent maintenance is appropriate in cases where the recipient spouse “devoted 

significant time to raising a family in lieu of pursuing a career.” In re Marriage of Heroy, 385 

Ill. App. 3d 640, 652 (2008). Indefinite or permanent maintenance is also appropriate in cases 

where the recipient spouse is not employable at an income level sufficient to enable her to live 

at the standard of living that was established during the marriage. Harms, 2018 IL App (5th) 

160472, ¶ 45. Here, as we have discussed, Mary spent a significant period of time raising her 

daughter instead of pursuing a career. And even before she stopped working outside the home, 

she turned down opportunities for education that would have enhanced her earning capacity in 

order to be available to take care of her sons. In addition, as the court found, Mary cannot 
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support herself at the standard of living established during the marriage. For these reasons, we 

reject Don’s claim that an award of permanent maintenance was an “extreme result” or an 

abuse of discretion. 

¶ 111 We also reiterate that an award of maintenance is always subject to modification upon a 

showing of a substantial change in circumstances. 750 ILCS 5/510(a)(1) (West Supp. 2017). 

Thus, we reject Don’s contention that the court abused its discretion by not making the 

maintenance award subject to review. We find no abuse of discretion in the court’s 

determination of the propriety or duration of maintenance.

¶ 112 H. Education Expenses

¶ 113 Don next argues that the court erred in directing him to pay half of the expenses for 

Katelyn’s private high school education. Whether to order a parent to pay a portion of a minor 

child’s educational expenses is a matter within the discretion of the trial court. See 750 ILCS 

5/505(a)(2.5)(c) (West 2014). As in all other matters involving child support, we will reverse 

the court’s decision only if we find that it constituted an abuse of that discretion. In re Marriage 

of Benkendorf, 252 Ill. App. 3d 429, 447 (1993). Applying this standard, we reject Don’s 

contention.

¶ 114 In support of his position, Don calls our attention to the Fourth District’s decision in People 

ex rel. Sussen v. Keller, 382 Ill. App. 3d 872 (2008). There, the mother filed a petition seeking 

contribution for her young adult son’s college expenses. Id. at 873; see 750 ILCS 5/513(a)(2) 

(West 2006). The trial court ordered the father to pay one-third of the son’s expenses, and the 

father appealed that ruling. Sussen, 382 Ill. App. 3d at 877. In reversing the trial court’s 

decision, the appellate court first noted that the standard of review was abuse of discretion. Id.

at 878. The court then agreed with the father that the trial court abused its discretion in ordering 

him to pay for a portion of his son’s college expenses because (1) the mother did not present 

sufficient evidence to demonstrate why her son could not have chosen a less expensive school 

and (2) the father presented evidence that a less expensive school would have been adequate 

to meet the son’s educational goals. Id. at 879. Don argues that here, too, there was insufficient 

evidence to demonstrate that Katelyn could not have received an adequate education at a public 

high school. We are not persuaded.

¶ 115 We find Sussen distinguishable for two reasons. First and foremost, as noted previously, 

that case involved a petition for contribution to an adult child’s college expenses. Id. at 873. 

That is a critical distinction because even though trial courts have the discretion to order parents 

to contribute to the cost of college or other postsecondary education, an adult child “ ‘does not 

have an absolute right to a college education.’ ” Id. at 878 (quoting In re Marriage of Spear, 

244 Ill. App. 3d 626, 630 (1993)). By contrast, a minor child does have the right to support 

that is adequate to meet her needs, including her educational needs. The child’s needs are to 

be determined in reference to the standard of living the child would have enjoyed if her parents’ 

marriage had not been dissolved. In re Marriage of Dulyn, 89 Ill. App. 3d 304, 309 (1980). 

Support of a minor child, unlike an adult child, is the joint obligation of both parents. See 

Benkendorf, 252 Ill. App. 3d at 447 (explaining that support of a minor child is the obligation 

of both parents).

¶ 116 Second, the evidence in this case was more than sufficient to support the court’s decision. 

Both Katelyn and Mary testified about the reasons for the decision to enroll Katelyn at 

Lutheran High School South. One reason was the school’s strong science curriculum, which 
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was important to Katelyn because of her interest in veterinary medicine and hippology. See 

In re Marriage of Alexander, 231 Ill. App. 3d 950, 955 (1992) (finding persuasive the mother’s 

testimony that she enrolled her son in a parochial school because it would give him a better 

education and better preparation for college). Katelyn also testified that she had the opportunity 

to participate in a club at school called Future Professionals of Medicine.

¶ 117 Another reason for the choice of Lutheran High School South was the proximity of the 

school to Mary’s workplace. Mary testified that the school is approximately a 15-minute drive 

from her workplace. This proximity meant that Mary could drive Katelyn to and from school, 

and it meant that she would be available if Katelyn needed to leave early. By contrast, she 

testified that if Katelyn were to attend public high school in Red Bud, she would have to walk 

to and from school, which was a walk of 1.3 miles each direction. Katelyn testified that when 

her mother drove her home from school, she could participate in after-school activities, and 

she usually had time to do homework in the school library before her mother picked her up. 

Katelyn found this to be beneficial because she could ask for help if she needed it. 

¶ 118 It is also worth noting that Katelyn attended a private school for elementary school. See id.

(rejecting the father’s claim that the mother’s choice of a parochial school was inappropriate 

after he “basically acquiesced” to that choice for several years). We find no abuse of discretion 

in the court’s decision to order Don to contribute to the expenses for his daughter’s private 

school education.

¶ 119 III. CONCLUSION

¶ 120 For the foregoing reasons, we reverse the court’s determination that Katelyn’s activities 

related to her interest in horses were not extracurricular activities and the court’s finding that 

Mary failed to make a prima facie showing of dissipation of funds from Don’s bank account. 

We vacate the portions of the court’s judgment assigning only a portion of the parties’ debts. 

We remand for further proceedings on those issues consistent with this decision. We affirm 

the judgment in all other respects.

¶ 121 Affirmed in part, reversed in part, and remanded for further proceedings.