2021 IL App (2d) 190315-U No. 2-19-0315 Order filed August 17, 2021
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(l). ______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
In re MARRIAGE OF ) Appeal from the Circuit Court CAROL TAYLOR, ) of Du Page County. ) Petitioner-Appellee, ) ) and ) No. 17-D-952 ) GARY TAYLOR, ) Honorable ) Robert E. Douglas, Respondent-Appellant. ) Judge, Presiding. ______________________________________________________________________________
ORDER
JUSTICE BIRKETT delivered the judgment of the court. Justices Hutchinson and Schostok concurred in the judgment.
¶1 Held: The trial court's classification of husband’s retirement accounts as marital property was not against the manifest weight of the evidence where husband’s commingled nonmarital funds were transmuted to marital property.
¶2 Respondent, Gary Taylor, appeals the judgment of the circuit court of Du Page County, dissolving his marriage with petitioner, Carol Taylor. Specifically, Gary appeals the trial court’s classification of certain retirement accounts as marital property. We affirm.
¶3 I. BACKGROUND
¶4 On December 16, 2000, Gary and Carol Taylor were married. The parties produced no
2021 IL App (2d) 190315-U children while married, although each party had children from previous marriages. During their marriage, Carol made “less than $600 [a] year” working for Ring, a company that made video doorbells, while Gary worked as an endodontist before he retired in 2010. Aside from her work for Ring, Carol primarily spent her time doing chores at home because the parties agreed that Carol need not otherwise work during the marriage. Gary also told Carol that he would handle the parties’ finances during the marriage.
¶5 On May 5, 2017, Carol filed a petition for dissolution of marriage, and a trial was held over
the course of several days between August and December 2018. One of the issues at trial was the classification of Gary’s various retirement assets as being either marital or nonmarital. Those assets included a TIAA-CREF individual retirement account (TIAA IRA), a Federal Asset
Management Account (FAM account), and an IRA at Old Second National Bank (Old Second
IRA). Both parties retained experts who testified about the marital or nonmarital nature of Gary’s retirement accounts.
¶6 A. Christiana Zouzias’s Testimony
¶7 Christiana Zouzias testified that Carol had retained her “to analyze the earnings, balances, [and] activity in [Gary’s] retirement accounts to understand the financials of [the parties], specifically the retirement accounts.” In addition to testifying, Zouzias also prepared a report detailing her financial analysis. In her report, Zouzias sought to “determine what the beginning balances [of the accounts] were as of the date of marriage,” the accounts’ current totals, “as well as earnings, transfers[,] *** deposits[,] and distributions during the marriage.”
¶8 Zouzias identified four retirement assets that Gary had as of the date of the parties’ marriage: an Allmerica Financial Life Annuity IRA (Allmerica IRA), a profit-sharing account from his dental practice (PSP), the TIAA IRA, and a Fifth Third Bank IRA (FTB IRA). She also
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2021 IL App (2d) 190315-U discussed the various accounts that he opened during the parties’ marriage. Zouzias’s findings regarding some of the pertinent accounts—as supplemented by her report—follow below.
¶9 1. The Allmerica IRA
¶ 10 Zouzias first discussed Gary’s Allmerica IRA, agreeing that there were previously
“questions” as to whether the account was “[Gary’s] prior to marriage.” However, Zouzias eventually received statements showing that “as of 1997, three years prior to the marriage,” Gary placed $200,000 from other existing accounts into the Allmerica IRA. Zouzias also received
documents showing “significant increases and decreases in [the Allmerica IRA] between 1997 and 1998,” and a statement that confirmed that the account held $276,069.14 as of December 31, 1998.
However, Zouzias never received a statement showing the Allmerica IRA’s balance “as of 2000.”
For this reason and because the account showed “so much volatility,” Zouzias was never able to find the balance of the account as of the parties’ marriage.
¶ 11 Relying on a tax document from 2005, Zouzias’s report originally listed the Allmerica’s
account marital contributions as totaling $321,802. However, as of the date of her testimony, Zouzias did not know how accurate that figure was because, again, she did not “know what the balance [of the account] was as of the marriage date.” Prior to receiving the 2005 tax document, she had only received statements from the account leading up to December 1998, which, again, indicated the value of the account as $276,069.14 at that time. Zouzias agreed that she was unsure whether the Allmerica IRA entirely consisted of premarital funds, because she “[did not] know what happened between 1998 and 2005 [with the account].” In compiling her report, she was never
given any evidence “to show any contribution to the Allmerica IRA between the time period of 1997 and 2006” to know whether the account retained its nonmarital status.
¶ 12 2. The PSP
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¶ 13 Zouzias testified that Gary’s PSP was a type of retirement plan that shared the profits from
Gary’s dental practice. Zouzias was able to “identify and track the monies that [Gary] deposited
into [the] account during the marriage,” before it was closed. At the time of the parties’ marriage, Gary had deposited approximately $319,581 into the account. Between 2001 and 2003, while the parties were still married, Gary deposited $80,500 of marital funds into the PSP in three separate increments. Zouzias was able “to track the earnings on that account based on statements and some estimates,” finding that by the time the PSP closed, the $80,500 in marital monies that was deposited into the account grew to approximately *** [$]96,000.” Aside from the deposits mentioned above, Zouzias believed that no direct contributions were made to the PSP between
2000 and 2008.
¶ 14 In 2008, the PSP was essentially “terminated,” and Gary transferred $423,109 from the PSP into the TIAA IRA and “an additional [$]50,000 went into his [FAM account].” After these transfers were completed, “[a] minor amount of $670” was left in the [PSP], “which was
[eventually] moved [to the TIAA IRA] in 2009.” Zouzias was unable to determine what happened to the $96,000 after Gary closed the PSP because, after the “[PSP] was combined with the [TIAA
IRA],” “some money went into [the FAM account,]” but Zouzias was unable to conclude “which money that was.” On cross-examination, Zouzias disagreed that, even if all the PSP’s marital contributions “went into the [TIAA IRA]” and not the FAM account, [then] she would be able to
“calculate the percentage of what was [marital] monies versus [premarital] monies.”
¶ 15 3. The TIAA IRA
¶ 16 Since approximately 1977, Gary maintained the TIAA IRA. As of the date of the parties’ marriage, Gary had deposited approximately $317,000 of nonmarital monies into the TIAA IRA.
In 2002, Gary transferred $255,402 from his existing, premarital FTB IRA into a Nationwide IRA, 190318
2021 IL App (2d) 190315-U which was opened that year. In 2005, Gary transferred $325,023 from the Allmerica IRA into a new, second Fifth Third IRA that was opened that year. In 2007, Gary transferred $343,738 from that second Fifth Third IRA and $325,747 from his Nationwide IRA into a Bank of Downers Grove
IRA (Downers Grove IRA), which was opened that year. Zouzias agreed that both the Nationwide
IRA and Downers Grove IRA funds could not be traced back to Gary’s nonmarital funds, because she could not verify whether the Allmerica IRA—which contained funds that eventually rolled over into Gary’s second Fifth Third IRA—contained marital funds.
¶ 17 In 2008, Gary pulled $473,109 from his PSP and placed $423,109 of that money in the TIAA IRA. Zouzias testified that “it would be a guess” whether this money included any of the $96,000 of marital money previously contained in the PSP. In 2009, $721,402 was transferred
from Gary’s first Downers Grove IRA into two new Downers Grove IRA’s, the Old Second IRA, and a State Bank of Countryside IRA (Countryside IRA), all of which were opened that year. That same year, $49,330 was moved from the TIAA IRA to the FAM account. Zouzias was unable to
determine whether this transfer included any marital contributions. In 2010, the money from the two newer Downers Grove IRAs and $111,382 of the Countryside IRA were all moved to the TIAA IRA.
¶ 18 When asked whether the transfers of the Downers Grove IRA funds and the Countryside
IRA funds deposited into the TIAA IRA “diluted any portion of the [marital] monies that were placed into the [TIAA IRA] through the [2008] transfer from the [PSP] into the [TIAA IRA],”
Zouzias responded, “I don’t agree with that.” According to Zouzias, such a conclusion was impossible to reach where the premarital and marital monies have “been combined and blended.”
Zouzias further explained that the nonmarital and marital assets in Gary’s TIAA IRA were blended twice, once in the PSP, and again when the PSP was combined with the TIAA IRA.
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¶ 19 While Zouzias’s report indicates that the balance of the TIAA IRA was $1,258,690, as of the date of her testimony, she testified that balance was now “slightly” higher.
¶ 20 4. The FAM Account
¶ 21 Zouzias explained that that the FAM account was “essentially a custodial account that holds underlying real estate assets. It’s—the custodial account is the Federal Assets plan, and then
*** underneath that is an IRA, and underneath that, the actual assets are real estate developments in which [Gary] has subscriptions and ownership interests.” She agreed that Gary was able to specifically decide which of these subscriptions he would like to “participate in.” She further agreed that when Gary “purchased as a subscription any of the assets” of his FAM plan, he received
“monies outside of when [those] assets sell,” in the form of a regular dividend—one that was either
“quarterly, monthly, or annually.” These dividends were deposited “into the cash balance within his IRA within [the FAM account], and then that cash [was] used to purchase additional assets, or it sits.” For Gary, this money was “predominately” used to purchase “subsequent real estate assets.”
¶ 22 Gary’s PSP had earlier held a $50,000 “real estate asset” in a property entitled SC
Egerkingen, but once the PSP was divested, that asset was deposited into the FAM account. This
deposit represented the $50,000 divestment from the PSP into the FAM account that took place in 2008. According to Zouzias’s report, in 2009, an additional $50,000 was placed in the FAM account, with $670 representing the last amounts of the PSP and the remaining $49,330 coming directly from the TIAA IRA. In 2010, another $50,000 from the TIAA IRA and $140,000 of Gary’s
Countryside IRA were both transferred to the FAM account. Again, the Countryside IRA was initially funded from Gary’s second Downers Grove IRA, which in turn was funded by his
Nationwide IRA and the second Fifth Third IRA. The second Fifth Third IRA contained funds
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2021 IL App (2d) 190315-U tracing back to Gary’s Allmerica IRA. In 2012, another $50,000 was transferred to the FAM
account from the TIAA IRA. As of the date Zouzias’s report was compiled, she found that the balance of the FAM account was $501,685. At the time of Zouzias’s testimony, she reported that the “cost basis value” of the FAM account was now closer to “550-ish-thousand.”
¶ 23 Schedule III of Zouzias’s report was entirely dedicated to the various transactions and investments made through Gary’s FAM account. In explaining her rationale behind including this schedule, Zouzias explained some of the difficulties she had in tracing the FAM account’s assets to any premarital assets:
“I created this schedule because I was attempting to trace the current assets back to the originating assets pre-marriage, and I truly was not able to do that because the money moved multiple times between accounts, from one account to another.
And what’s not evident here, *** is that even within the line of [the FAM account], there are multiple *** transactions and multiple movements of that money, purchasing of assets, selling them, purchasing other assets, selling some in cash, some in other assets***.
***
Then when I started digging into the [FAM account], I realized that there were multiple transactions.
So[,] *** there were multiple purchases, multiple sales, and then other purchases that are still being held within [the FAM account].
So[,] it’s not nearly as simple as looking at one balance, one asset[,] and tracing that to the ending balance. It’s just not possible.”
When asked whether she was able to determine which FAM subscriptions “were purchased with money from another account compared to monies that were already in [the FAM account], Zouzias
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2021 IL App (2d) 190315-U answered, “It’s impossible to determine that.”
¶ 24 Zouzias was similarly unable to identify how much of the FAM account’s subscriptions
specifically “came from the initial $80,500 dollars of contribution to his [PSP] during the marriage[.]” Zouzias explained her difficulties in deducing as much:
“I cannot know where—if that initial [$50,000] investment was [nonmarital] money or [marital] money. I simply cannot know that.
***
And then in 2009, 2010, 2012, when additional monies went into [the FAM account], again, I don’t know—I can’t determine—it’s not determinable which money went where.”
Carol asked Zouzias whether anyone would be able to make such a determination. Zouzias responded, “You cannot.” Zouzias explained:
“Because the monies that were contributed post-marriage were not segregated, they were combined with [the PSP] and then combined again with [the TIAA IRA].
Some monies went into [the FAM account], more monies came from the combined
[TIAA IRA] into [the FAM account], so any attempt to identify specifically is a guess.”
¶ 25 5. The Old Second IRA
¶ 26 As described above, Zouzias was aware that the Allmerica IRA was later “moved to the [second] Fifth Third IRA account, which was then moved to [the Downers Grove IRA], then moved again, then moved again, and ultimately a portion of that ended up in Old Second National.”
Specifically, after the balance of the Allmerica IRA was rolled over to the second Fifth Third IRA, approximately $669,485 from that account and the money contained within the Nationwide IRA were all transferred to the Downers Grove IRA. In 2009, Gary moved $240,000 from the Downers
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Grove IRA to open the Old Second IRA. On cross-examination, Zouzias agreed that “no additional contributions were made to the [Old Second IRA] at anytime.” The only additions to the account’s balance came from “earnings within that IRA.” Those distributions were never transferred into another retirement asset.
¶ 27 6. Zouzias’s Conclusions
¶ 28 Despite her tracking of Gary’s accounts, Zouzias testified that she was not able to “trace the current assets back to the originating assets pre-marriage,” because “the money moved multiple times between accounts, from one account to another.”
¶ 29 Carol asked Zouzias, “Based on your investigation and analysis, what are the conclusions that you reached considering what you’re asked to opine on?” Zouzias responded:
“I was asked to quantify the ending balances of [the retirement accounts] *** as well as attempt to trace the pre-marriage monies to the existing assets.
I tried and I found it impossible to trace from that $80,000 1 that was initially invested and determine which asset is being held as a result of that $80,000.
The monies were combined multiple times in different plans, in different accounts.
Those assets were sold within [the FAM account], reinvested, sold again[,] and are an existing asset.
So[,] as I sit here today, I cannot tell you that I can trace the combined post-marriage contributions from those to existing balances. So[,] I cannot decipher, cannot trace those assets.”
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¶ 30 B. Lee Gould’s Testimony
¶ 31 Lee Gould testified that Gary hired him “to be his expert in this case,” and that he “was asked to review, analyze, and make a determination as to the funding sources of certain retirement assets held in his name.” As part of these duties, Gould also prepared a report outlining his findings.
¶ 32 Gould described his methodology for “forensic accounting and tracing,” testifying that he first sought to “[understand] the nature of the accounts—account or accounts that [he was] trying
to *** trace.” He explained that he would talk to litigants, financial advisors, or whoever had “the most knowledge about the activity against which [he performs his] procedures,” “request documents,” and “draw some analyses or some preliminary opinions” before “drawing a conclusion ultimately.” In analyzing Gary’s retirement accounts, Gould mainly worked with
Gary’s accountant, Jeffrey Krol, and obtained “canceled checks, account analyses, notes, account statements, quarterly account statements, [and] some IRS documentation showing withdrawals from one retirement asset into a deposit into another.”
¶ 33 Many of Gould’s findings mirrored those of Zouzias. For instance, like Zouzias, Gould
found that Gary held four different retirement assets as of the date of the parties’ marriage: the PSP, the TIAA IRA, the Allmerica IRA, and the FTB IRA. Both experts also agreed that in between 2001 and 2003, Gary deposited a total of $80,500 into his PSP 2, but that by 2008, the majority of the PSP was “transferred out” to the TIAA IRA and FAM account. Both experts also testified that the $80,500 eventually appreciated to approximately $96,000. The experts typically