In re Sinha

2021 IL App (2d) 191129

191 N.E.3d 803

455 Ill.Dec. 496

IN RE MARRIAGE OF Jyoti SINHA, Petitioner-Appellee, and Mukesha K. Sinha, Respondent-Appellant.

No. 2-19-1129

Appellate Court of Illinois, Second District.

Opinion filed September 30, 2021

Anamaria F. Rivero-Boundas and Thomas T. Boundas, of Thomas T. Boundas & Associates, of Countryside, for appellant.

Paul L. Feinstein, of Paul L. Feinstein, Ltd., of Chicago, for appellee.

JUSTICE McLAREN delivered the judgment of the court, with opinion.

¶ 1 In its judgment dissolving the marriage between petitioner, Jyoti Sinha, and respondent, Mukesh K. Sinha, the trial court determined child support and maintenance, distributed marital property, ruled on dissipation claims, and entered a finding of indirect civil contempt. Respondent challenges these and other aspects of the court's judgment. We affirm in part, reverse in part, vacate in part, and remand for further proceedings.

¶ 2 I. BACKGROUND

¶ 3 The parties married in September 2004. Petitioner filed her first petition for dissolution of marriage in 2013, which the court voluntarily dismissed in January 2014. In May 2014, the parties travelled to Turkey and Italy together. In June 2014, the parties bought a home. In December 2014, the parties had a son. In 2014 and 2015, petitioner's parents stayed in the parties’ home multiple times. In December 2015, petitioner filed the petition for dissolution of marriage at issue. In June 2016, the court entered a parenting plan, awarding petitioner the majority of parenting time.

¶ 4 On October 17, 2016, respondent filed a motion seeking the court to order petitioner to return the $540,000 that she sent her parents in India from the parties’ E-Trade account. The following day, the court entered an order stating "[petitioner] shall have all remaining funds from the approximately $540,000 transferred from her E-Trade account to an Indian account returned. The returned funds shall be deposited into [respondent's attorney's] escrow account. [Petitioner] shall have the funds returned as soon as possible but no later than 21 days."

¶ 5 On November 7, 2016, respondent filed a second motion seeking the court to order petitioner to return the $540,000 that she sent her parents in India from the parties’ E-Trade account.

¶ 6 On November 16, 2016, the court entered yet another order regarding the $540,000, stating "[petitioner] shall transfer all funds from India pursuant to the prior order to an escrow account to be set up by [respondent's attorney] for the benefit of the parties." On the same day, the court ordered petitioner to provide an accounting of the funds transferred to India. The court also ordered respondent to pay $500 per month in child support and to pay half of the child's day care costs and uncovered medical expenses.

¶ 7 On December 5, 2016, respondent filed a petition for a rule to show cause alleging that petitioner transferred $540,000 to India and failed to comply with the court's orders to transfer it to an escrow account. Respondent also alleged that petitioner failed to cooperate with a court order requiring the marital residence to be listed for sale, refused to allow showings of the home, and kept the home in an "unshowable" condition. On December 9, 2016, respondent filed a second petition for a rule to show cause, alleging that petitioner failed to comply with the court's order that she render an accounting of the $540,000.

¶ 8 On December 13, 2016, the court issued a rule to show cause regarding petitioner's failure to comply with its order that she provide an accounting of the $540,000. The court entered a mittimus for contempt stating that, after a hearing on the rule, petitioner willfully failed to comply with the court's order. The court held petitioner in indirect civil contempt and stated that unless she purged herself of the contempt order by tendering an accounting by January 4, 2017, she would be taken into custody. The court continued respondent's first petition for a rule to show cause and gave petitioner until January 2017 to return the remaining funds.

¶ 9 On December 27, 2016, respondent filed a third petition for a rule to show cause alleging that petitioner failed to render an accounting of the funds transferred to India.

¶ 10 On January 3, 2017, petitioner filed a petition for a finding of indirect civil contempt alleging that respondent failed to (1) pay child support, (2) pay day care expenses, and (3) maintain a job search diary, as ordered by the court. The following day the court set a hearing date on respondent's petitions for rule to show cause.

¶ 11 On January 23, 2017, the court issued a rule to show cause for petitioner's failure to return the $540,000 from India, based on respondent's first petition for a rule to show cause.

¶ 12 On May 22, 2017, petitioner filed a petition for indirect civil contempt alleging that respondent failed to reimburse petitioner for their child's day care costs of $3415.54 and the child's medical expenses of $98.10. Petitioner also alleged that respondent failed to maintain a job diary and that he was $1500 in arrears in child support.

¶ 13 On May 30, 2017, respondent filed a petition to reduce child support and day care expenses, seeking a modification of the court's order of November 16, 2016. Respondent alleged that since the court's order, he had been involuntarily terminated from his Uber driver job.

¶ 14 On June 29, 2017, respondent filed a notice of intent to claim dissipation, alleging that, on September 11, 2016, petitioner transferred $540,000 from the parties’ E-Trade account to an unknown account in India titled solely in petitioner's mother's name.

¶ 15 Petitioner filed three notices of intent to claim dissipation, one in June 2017, and two in September 2017.

¶ 16 The court heard testimony over five days in November and December 2017, and January 2018. The petitioner testified as follows. Petitioner worked full-time outside the home. In 2012, petitioner began working at Banco Popular until April 2015, when she took maternity leave. In October 2015, petitioner returned to full-time employment as a senior accountant with Northern Trust and held this position at the time of the hearing. Petitioner earned an annual gross salary of $87,125, plus a $5500 bonus. Petitioner recently returned to school to obtain a master's degree in finance. Petitioner testified that the marriage broke down in 2012.

¶ 17 Petitioner testified that, in September 2015, she transferred $540,000 from an E-Trade account to her parents in India. Before the parties’ marriage, petitioner had about $80,000 in different accounts in India. In 2005, after the parties married, petitioner transferred the $80,000 to the parties’ E-trade account. Because that account was subject to gains or losses in a given year, petitioner estimated its nonmarital value in 2015 was $150,000, using a gain of six or seven percent per year. However, petitioner had no records to present as evidence. Later, she transferred $18,100 to respondent's attorney's escrow account. She returned no other money. Out of the $540,000, petitioner paid her parents $150,000 for wedding expenses, $122,000 "for my education that my parents paid," and about $100,000 for petitioner's father's cancer treatments.

¶ 18 Respondent testified as follows. Respondent was not currently employed. But during the marriage, respondent stayed home and ran the parties’ three businesses: "two eBay stores and an Amazon store." Respondent purchased merchandise in cash at retail stores and then listed the merchandise for sale online on eBay or Amazon.

¶ 19 Respondent testified that the parties attended marriage counseling in 2012. The marriage counseling was helpful. In the spring of 2013, respondent was charged with domestic battery. Petitioner was the complainant. In 2013 respondent and petitioner filed for divorce and then withdrew their petitions. The parties "worked things out." They did "normal husband/wife things" together. They tried to have a baby.

¶ 20 Respondent testified that, in August 2015, he and petitioner began having difficulties in their marriage. The parties had "money issues; [petitioner's] parents [were] coming over again and again; the food issue with my son, whether he would be a vegetarian or nonvegetarian." In addition, petitioner did not allow respondent to take their son to respondent's parents’ home. The parties fought about these issues many times, and in August 2015, petitioner asked respondent to move out of the marital home "many times."

¶ 21 On March 22, 2018, the court issued a written judgment stating the following. Regarding dissipation, it could not determine the date on which the marriage was irretrievably broken. As such, the court determined that "the parties[’] marriage suffered an irreconcilable breakdown" on December 4, 2015, the date petitioner filed her petition for dissolution of marriage. Regarding respondent's claim of dissipation, the court stated its finding that "because these alleged transfers occurred prior to the irreconcilable breakdown of the marriage on December 4, 2015, they do not constitute dissipation." The court denied the petitioner's dissipation claims in large part but found that respondent committed dissipation of $19,068.

¶ 22 Regarding respondent's petition for rule to show cause filed on December 9, 2016, the court stated, "[t]he Court does not find that [petitioner] violated this Court's order regarding cooperating with the sale of the marital residence. The petition for Rule to Show Cause is denied."¹ Under "Dissipation," the court stated that respondent's petition for rule to show cause filed December 9, 2016, was denied.

¶ 23 Regarding the parties’ incomes to determine child support, the court found petitioner's gross annual salary was $87,000. The court also found that respondent, "although presently unemployed, is under no impediment (other than his own unwillingness) to obtain full time employment. [Respondent] has made little to...