Family Law Flash Points - July 2019

1.         Wife made a prima facie case of dissipation with respect to withdrawals from a bank account in excess of living expenses.  At trial, wife testified about and introduced into evidence several spreadsheets which she argued made a prima facie showing that husband had dissipated over $160,000 in unaccounted for cash withdrawals from his bank accounts from 2010 through the first half of 2016.  Her reasoning included an analysis of his stated living expenses on his financial disclosure compared to his total withdrawals from his bank account statements.  He did not take the witness stand to rebut the evidence and argued that wife had simply not met her burden of providing a prima facie  case of dissipation.  The trial court agreed and ruled that no prima facie case had been made.  Wife appealed and the Appellate Court reversed.  Dissipation is premised on the diminution or devaluation of the marital estate.  In this case, the Court held that 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.  The Court also held that wife did not meet her burden of proving at which point the marriage began undergoing an irretrievable breakdown, and therefore she was limited to claiming dissipation at the time of the parties’ actual separation.  In re Marriage of Hamilton, 2019 IL App (5th) 170295.

2.         Trial court’s order that the marital home and a rental property be sold and the proceeds divided was not an abuse of discretion due to lack of competent valuation evidence.  At trial, neither party presented the trial court with expert opinion testimony as to the value of the marital residence and a piece of rental property.  While husband testified as to her own personal knowledge of what he believed the combined values of the two properties were worth, and wife presented evidence as to the assessed value of the properties based on the real estate taxes, both of those opinions of value were rendered two years prior to the entry of judgment.  The trial court ultimately ordered the properties sold and the proceeds split and wife appealed.  The Appellate Court upheld.  It is the responsibility of the parties in a divorce action to provide the court with sufficient evidence of the value of the property.  The trial court did not abuse its discretion in ordering the properties sold in light of the lack of relevant valuation evidence.  In re Marriage of Hamilton, 2019 IL App (5th) 170295.

3.         Horse-related expenses are in the nature of extracurricular activity expenses for minor child.  The trial court held that expenses associated with the minor child having her own horses (which were bought by agreement of the parties during the marriage) and participating in horse-related events were not in the nature of extracurricular activity expenses because it was not part of her educational curriculum.  The Appellate Court reversed relying heavily on the language of the 2017 IMDMA amendments even though the amendments were not in effect when the trial court ruled.  The language of Section 505(a)(3.6) explains extracurricular activity expenses as those expenses which are intended to enhance the educational, athletic, social, or cultural development of child. The child’s horse activity expenses clearly enhanced her development in each of the areas, and therefore should not have been excluded from the court’s judgment.  The Appellate Court remanded to the trial court for determination whether all or some portion of those expenses were reasonable and in what amount the husband should be required to contribute to.  In re Marriage of Hamilton, 2019 IL App (5th) 170295.