The opinion
Digitally signed
by Reporter of
Decisions
Reason: I attest
to the accuracy
Illinois Official Reports and integrity of
this document
Date: 2021.12.27
Appellate Court 13:53:29 -06'00'
In re Marriage of Budorick, 2020 IL App (1st) 190994
Appellate Court In re MARRIAGE of HEATHER BUDORICK, Petitioner-Appellee,
Caption and DANIEL BUDORICK, Respondent-Appellant.
District & No. First District, Fifth Division
Nos. 1-19-0994, 1-19-1539 cons.
Filed November 20, 2020
Decision Under Appeal from the Circuit Court of Cook County, No. 14-D2-30119; the
Review Hon. Regina A. Scannicchio, Judge, presiding.
Judgment Affirmed in part, reversed in part, and remanded with directions.
Counsel on Daniel Budorick, of Chicago, appellant pro se.
Appeal
Thomas J. Dillon, Wendy Kaleta Gattone, Nicholas S. Maragos, and
Kyle T. Dillon, of McFadden & Dillon, P.C., of Chicago, for appellee.
Panel JUSTICE CUNNINGHAM delivered the judgment of the court, with
opinion.
Justices Hoffman and Rochford concurred in the judgment and
opinion.
OPINION
¶1 On March 24, 2014, petitioner-appellee Heather Budorick filed a petition for dissolution
of her marriage from the respondent-appellant Daniel Budorick. After entering a judgment
addressing the custody and care for the parties’ minor children in December 2014, the circuit
court of Cook County held a trial on all remaining issues in August and September 2018. The
court entered a judgment for dissolution on November 28, 2018, and a modified judgment for
dissolution on April 10, 2019. Daniel appeals from both orders, arguing that the trial court
erred in (1) classifying Heather’s retirement accounts from her employment in California as
nonmarital property, (2) classifying and valuing Heather’s shares in certain restricted stock,
(3) valuing Heather’s and Daniel’s retirement accounts at different points in time, (4) requiring
Daniel to pay $50,000 in attorney fees, (5) calculating Heather’s gross income for child support
purposes, (6) apportioning the payment of the parties’ children’s future college tuition,
(7) rejecting Daniel’s argument that section 513 of the Illinois Marriage and Dissolution of
Marriage Act (Act) (750 ILCS 5/513 (West 2018)) was unconstitutional as applied to him,
(8) declining to find that Heather’s IRA withdrawals constituted a dissipation of marital funds,
(9) failing to order Heather to reimburse Daniel for half of the utility payments on their shared
residence, and (10) considering Heather’s second motion for reconsideration.
¶2 For the following reasons, we affirm in part and reverse in part the judgment of the circuit
court of Cook County and remand the case for further proceedings.
¶3 BACKGROUND
¶4 Heather and Daniel were married on September 3, 1995, in California. Prior to their
marriage, beginning in July 1991, Heather worked as a nurse for Los Angeles County USC
Medical Center (USC). During her employment, Heather participated in the Los Angeles
County Employees Retirement Association pension program (LACERA pension), and also
contributed to a retirement plan for government employees (L.A. County 457 Plan). Her
contributions to the LACERA pension occurred both pre- and post-marriage. The interest from
her contributions continued to grow following the marriage. Heather took two leaves from her
employment at the hospital before terminating her employment altogether on May 7, 1999. At
that point, she received the funds from her L.A. County 457 Plan. In total, she was employed
by USC for five years and eight months.
¶5 The parties had a son born in April 2000, and the family moved to Illinois in August 2001,
shortly before the birth of their second son in November 2001.
¶6 In 2002, Heather began working for Hollister, Inc. (Hollister), a manufacturer of medical
products. During her employment with Hollister, she participated in two retirement plans. The
first plan, HolliShare, consists solely of contributions made by Hollister, while the second plan
is a traditional 401(k) plan that allows for employee contributions (Hollister 401(k) Plan).
Heather testified that she is only permitted to access HolliShare funds when she ends her
employment with Hollister or when she retires. In August 2002, Heather rolled over $6663.50
from her L.A. County 457 Plan to the Hollister 401(k) Plan.
¶7 Also as part of her employment with Hollister, Heather was offered the opportunity to
purchase stock in Hollister’s parent company, John Dickinson Schneider, Inc. (JDS). She
purchased stock every year from 2007 to 2011, and then again in 2013 and 2014, with the help
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of funds received from her parents. In 2013, she purchased 418 shares of stock, and in 2014,
she purchased 334 shares. The stock is not publicly traded; can only be held by employees,
officers, and directors of Hollister or JDS; and must be sold back to the company when an
employee leaves Hollister.
¶8 Heather filed a petition for dissolution of marriage on March 24, 2014. In the years
following the filing of the petition for dissolution of marriage, Daniel pursued litigation related
to the marriage and the petition in federal district court, the United States Bankruptcy Court,
this court, and the Illinois Supreme Court, all of which combined to delay trial on the petition
for over four years until August 2018.
¶9 First, on March 17, 2016, Daniel filed a lawsuit against Heather’s parents in federal district
court, alleging, inter alia, conversion and a civil conspiracy with Heather to divest Daniel of
marital funds to which he was entitled. The next day (and three days before trial on Heather
and Daniel’s divorce proceedings was scheduled to begin in state court), Daniel filed a motion
in state court to remove the divorce proceedings to federal court. The federal district court
promptly struck Daniel’s motion for removal, sua sponte. Ultimately, in December 2016, on
the motion of Heather’s parents, Daniel’s federal lawsuit was dismissed, with the district court
noting that Daniel “unnecessarily multiplied the proceedings.”
¶ 10 Notwithstanding this admonishment, Daniel pursued an appeal of the district court’s
decision to the United States Court of Appeals for the Seventh Circuit, which, in October 2017,
affirmed the district court’s order of dismissal and granted Heather’s parents’ motion for
sanctions against Daniel, finding that Daniel’s appeal was frivolous and “unjustified by any
purpose other than to stall the divorce proceedings.”
¶ 11 While his federal litigation was pending, Daniel was also pursuing relief in this court in the
form of interlocutory appeals. First, in June 2016, Daniel appealed the trial court’s order
denying his motion to modify custody. We held that we lacked jurisdiction, dismissed the
appeal, and denied Daniel’s petition for rehearing. See In re Marriage of Budorick, 2016 IL
App (1st) 161605-U. The Illinois Supreme Court denied Daniel’s petition for leave to appeal
on March 27, 2017. In re Marriage of Budorick, No. 121962 (Ill. Mar. 27, 2017).
¶ 12 On September 1, 2017, Daniel took a second interlocutory appeal to this court from the
trial court’s order denying his motion to stay the divorce proceedings during the pendency of
his appeal of his federal lawsuit. An automatic stay was entered. On September 19, 2017, we
granted Heather’s emergency motion to dismiss Daniel’s appeal and lifted the automatic stay.
¶ 13 Having failed to sufficiently delay the divorce proceedings through litigation in federal or
state courts, Daniel turned to the United States Bankruptcy Court. On January 7, 2018, one day
prior to the date on which trial was scheduled to commence in the divorce proceedings—after
being rescheduled four times—Daniel filed for bankruptcy. This forced the trial court to
immediately stay the divorce proceedings pending an order from the bankruptcy court.
¶ 14 On February 27, 2018, the bankruptcy court granted Heather’s motion for relief from an
automatic stay, allowing the trial court to reset trial for the fifth time to August 2018.
¶ 15 Daniel filed two notices of intent to claim dissipation, alleging that Heather withdrew
$8800 from a Vanguard account and $25,500 from various Roth IRA and investment accounts
in April, May, and June 2016. Daniel further alleged that Heather withdrew unspecified
amounts from investment accounts between December 2014 and the time of trial.
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¶ 16 At trial, the evidence revealed that Daniel was an attorney earning approximately $123,000
per year, although that fluctuated due to the amount of hours he billed in any given year.
Heather’s employment at Hollister earned her approximately $100,000 per year.
¶ 17 In terms of assets, Heather contributed $20,699.69 to her LACERA pension plan, of which
approximately $5753.39 was contributed after the parties’ marriage. Her Hollister 401(k) Plan
(into which Heather rolled over her L.A. County 457 Plan) was valued at $226,402.12 as of
January 1, 2015, and $304,870.77 as of June 30, 2018. Her HolliShare account was valued at
$181,381.84 as of December 31, 2013, and at $433,897.96 as of December 31, 2017. Finally,
Heather’s 4652 shares of JDS stock were valued at $147,735 as of May 1, 2017. Heather’s
parents gifted her approximately $11,000 to purchase the JDS stock in 2013 and 2014.
¶ 18 Heather also testified as to her expenses after the filing of the dissolution petition.
Specifically, she testified that in December 2016, most of 2017, and January 2018, she paid
the mortgage on the family home in its entirety. Previously, Heather and Daniel had each paid
half the mortgage. Heather also paid for upkeep of the family home, including purchasing a
new furnace and air-conditioner and paying the real estate tax escrow shortfall.
¶ 19 Heather testified that she withdrew funds from her Hollister 401(k) Plan, a Vanguard Roth
IRA, and a Fidelity Roth IRA to pay attorney fees. She further testified to withdrawing
$11,423.96 from her Vanguard Small Cap Index Roth IRA between June 30, 2018, and the
time of trial to pay family expenses. Her 2017 tax return revealed that she took IRA
distributions of $36,556 from Fidelity and Vanguard IRAs.
¶ 20 Heather also testified that she set up and managed educational accounts for the parties’
children, beginning when they were born, which were primarily funded by her parents. Daniel
had no involvement in maintaining those accounts.
¶ 21 For his part, Daniel paid for the utilities on the family home in their entirety beginning at
the end of 2014.
¶ 22 The court issued its judgment for dissolution of marriage on November 28, 2018. In its
memorandum opinion, the court found that Daniel made limited to no contributions to the
marital assets during the divorce proceedings. Specifically, the court found that while Daniel
contributed to his 401(k) plan during the pendency of the proceedings, this was offset by his
borrowing $50,000 against the 401(k) plan to pay personal loans he had incurred. Further, the
court found that Daniel’s actions were detrimental to the family’s finances because of his delay
tactics in the divorce proceedings. The court found that Heather, on the other hand, continued
her work at Hollister during the divorce proceedings and received regular pay raises. She also
contributed to her 401(k) plan and received additional HolliShares as a result of her
employment.
¶ 23 With these findings in mind, the court ordered that all marital assets owned by the parties
be split 50/50, including Heather’s HolliShares and Hollister 401(k) Plan. However, the court
valued Heather’s Hollister retirement accounts as of the date closest to the date Heather filed
for divorce, rather than the date of trial. It valued Daniel’s 401(k) plan as of the date of trial.
¶ 24 The court determined that Heather’s LACERA pension was nonmarital property, finding
that Daniel had failed to present evidence of marital contributions to that fund. The court
further found that Heather was entitled to reimbursement from the marital estate of the rollover
amount from her L.A. County 457 Plan, as that was likewise her nonmarital property.
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¶ 25 With regard to the JDS stock, the court found that Heather used gifted funds to purchase
the stock in 2013 and 2014, but marital funds to purchase the stock in the five years between
2007 and 2011. Therefore, the court determined that Heather’s JDS stock was 2/7 nonmarital
and 5/7 marital. Given that the stock was valued at $147,375 in December 2017, the court
awarded $42,107 (2/7 of the total amount) to Heather and divided $105,268 (5/7 of the amount)
between Daniel and Heather evenly.
¶ 26 The court also held that if the education accounts created by Heather were insufficient to
pay for the children’s college education, the costs for education should be paid 2/3 by Daniel
and 1/3 by Heather.
¶ 27 The court declined to award maintenance, finding that the parties were self-sufficient.
However, the court ordered Daniel to pay $1300 per month in child support to Heather. In
calculating Heather’s gross income for child support purposes, the court excluded the funds in
her HolliShare account and also excluded Heather’s IRA withdrawals. In that same vein, the
court rejected Daniel’s claim that Heather dissipated marital funds by withdrawing money
from her IRA account. The court found that Heather used that money to pay family expenses
and attorney fees.
¶ 28 Finally, the court ordered Daniel to pay $50,000 of Heather’s attorney fees with his share
of the proceeds from the sale of the parties’ family home. The court explained that its award
was not based on the parties’ ability to pay, but on the fact that Daniel “has done everything in
his power to delay and stall this case from being tried,” which resulted in an “exponential[ ]
increase[ ]” in the cost of this litigation to Heather.
¶ 29 Daniel moved to reconsider the judgment in December 2018, as did Heather. However,
Heather withdrew her motion prior to ruling.
¶ 30 The court entered a modified judgment on April 10, 2019, rejecting all of Daniel’s
contentions of error with the exception of its ruling on attorney fees. The court held that Daniel
was required to pay $50,000 in attorney fees for Heather, but this payment did not need to
come from Daniel’s share of the proceeds from the sale of the marital residence.
¶ 31 Also in April 2019, the bankruptcy court quashed a subpoena to Hollister and found that
the trial court awarded Daniel a money judgment rather than actual shares of JDS stock. In
response to Daniel’s motion for reconsideration, the bankruptcy court affirmed its finding that
Daniel had a right only to the value of the JDS stock and not an award of JDS stock. The
bankruptcy court ultimately entered an order of discharge.
¶ 32 Meanwhile, in the trial court, on May 6, 2019, Heather moved to clarify and amend the
April 10, 2019, modified judgment for dissolution of marriage. Notwithstanding Heather’s
motion pending in the trial court, Daniel filed a notice of appeal on May 10, 2019, of the court’s
November 28, 2018, and April 10, 2019, orders.
¶ 33 On June 24, 2019, the trial court granted Heather’s motion to clarify and amend its prior
order entered on April 10, 2019. The trial court’s order corrected a scrivener’s error that
ascribed the $6663.50 rollover amount to JDS stock rather than to Heather’s L.A. County 457
Plan and also clarified the date by which Daniel’s contribution to Heather’s attorney fees was
due.
¶ 34 Daniel then appealed from the trial court’s June 24 order. We granted Daniel’s motion to
consolidate the appeals.
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¶ 35 ANALYSIS
¶ 36 We note that we have jurisdiction to review this matter, as Daniel filed a timely notice of
appeal following the modified judgment for dissolution. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994);
R. 303 (eff. July 1, 2017).
¶ 37 A. Heather’s California Retirement Accounts
¶ 38 Daniel’s first argument concerns the trial court’s classification of Heather’s LACERA
pension and L.A. County 457 Plan. Specifically, Daniel contends that the trial court
erroneously found both accounts were Heather’s nonmarital property.
¶ 39 All property of the parties to a marriage belongs to either the husband’s estate, the wife’s
estate, or the marital estate. In re Marriage of Foster, 2014 IL App (1st) 123078, ¶ 68. The
trial court must classify all property as either marital or nonmarital before dividing the property
between the parties. 750 ILCS 5/503(a) (West 2018). We will not disturb a trial court’s
classification of property unless it is against the manifest weight of the evidence. In re
Marriage of Lundahl, 396 Ill. App. 3d 495, 504-05 (2009). A trial court’s finding is against
the manifest weight of the evidence where it is clearly apparent from the record that the trial
court should have reached the opposite conclusion or where the finding is arbitrary,
unreasonable, or not based on the evidence. In re Marriage of Dhillon, 2014 IL App (3d)
130563, ¶ 29.
¶ 40 The Act defines marital property as all property acquired by either spouse subsequent to
the marriage. 750 ILCS 5/503(a) (West 2018). The Act goes on to list exceptions which are
known as nonmarital property. Id. Among those exceptions are “property acquired before the
marriage, except as it relates to retirement plans that have marital and nonmarital
characteristics.” Id. § 503(a)(6).
¶ 41 Retirement plans are further addressed in subsection (b)(2) of section 503 of the Act, which
provides “all pension benefits (including *** defined benefit plans, defined contribution plans
and accounts, individual retirement accounts, and non-qualified plans) acquired by or
participated in by either spouse after the marriage and before a judgment of dissolution of
marriage *** are presumed to be marital property.” Id. § 503(b)(2). That presumption may be
overcome by showing through clear and convincing evidence that the property was acquired
by a method listed in subsection (a)(1). Id. § 503(a)(1), (b)(2). It is the burden of the party who
claims the property is nonmarital to rebut the presumption. In re Marriage of Stuhr, 2016 IL
App (1st) 152370, ¶ 51. Any doubts as to the classification of the property will be resolved in
favor of finding that the property is marital property. Id.
¶ 42 Turning first to Heather’s LACERA pension, it is undisputed that Heather’s initial
contributions to the pension plan began prior to the marriage and were nonmarital. What is
disputed is whether she contributed to the plan after marriage. Such contributions would
presumptively be marital (see 750 ILCS 5/503(b)(2) (West 2018)) and would have the effect
of commingling marital and nonmarital property. The trial court determined that Daniel failed
to present evidence that Heather made contributions to the pension plan with marital funds.
We agree with Daniel that this finding was against the manifest weight of the evidence.
¶ 43 Heather introduced an exhibit detailing her contributions to the LACERA pension by date.
That exhibit reflects that Heather made at least 18 contributions to the pension plan
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postmarriage, totaling approximately $5800. The exhibit further reflects that the pension
continued to grow in value following those postmarital contributions.
¶ 44 Because the trial court erroneously concluded that Daniel failed to show marital
contributions to the pension, the court did not grapple with section 503(c), which explains how
commingled marital property should be treated:
“If marital and non-marital property are commingled by one estate being contributed
into the other, the following shall apply:
(i) If the contributed property loses its identity, the contributed property
transmutes to the estate receiving the property, subject to the provisions of
paragraph (2) of this subsection (c);
(ii) If the contributed property retains its identity, it does not transmute and
remains property of the contributing estate.
***
(2)(A) When one estate of property makes a contribution to another estate of
property, the contributing estate shall be reimbursed from the estate receiving the
contribution notwithstanding any transmutation.” Id. § 503(c).
The court also did not consider how much of the increase in value of the pension was
attributable to the nonmarital versus marital contributions. We decline to undertake this
analysis for the first time on appeal and instead remand the case to the trial court to determine
whether the contributed marital property lost its identity and transmuted to the nonmarital
estate; whether the contributing estate is entitled to reimbursement; and what portion of the
increase in value of the pension is marital versus nonmarital property. See In re Marriage of
Raad, 301 Ill. App. 3d 683, 687-88 (1998) (where trial court erred in characterizing pension
plan profits as marital property, remanding to the trial court to determine what portion of
increase in value of petitioner’s pension was marital versus nonmarital property and determine
right of reimbursement). In making this determination, the trial court should consider Heather’s
Exhibit 18(a), which was duly admitted during trial and which evidences Heather’s postmarital
contributions to the pension plan at issue.
¶ 45 Turning to Heather’s L.A. County 457 Plan, Daniel contends that this, too, was erroneously
classified as nonmarital property. At trial, Heather testified that she received the L.A. County
457 Plan funds when she left her employment with USC in 1999, after the parties’ marriage.
As such, pursuant to section 503(b)(2) of the Act, this was presumptively marital property. See
750 ILCS 5/503(b)(2) (West 2018) (retirement benefits acquired by either spouse after
marriage is presumed marital property); see also In re Marriage of Zamudio, 2019 IL 124676,
¶ 19 (“acquired,” as ordinarily and popularly understood, means gaining possession or control
of).
¶ 46 It was Heather’s burden to rebut this presumption with clear and convincing evidence that
she contributed to the retirement fund with nonmarital property. See 750 ILCS 5/503(a)(6)
(West 2018). The sole basis by which Heather maintains that the entirety of her L.A. County
457 Plan fund was nonmarital property was her affirmative response at trial to her counsel’s
question during her testimony regarding whether she had “some retirement funds from a 457
plan prior to marriage.” There is no documentary evidence in the record reflecting either when
or how much she contributed to the plan. The only evidence as to the amount in the L.A.
County 457 Plan is a statement from Cigna (the Hollister 401(k) Plan administrator), indicating
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that Heather rolled over $6663.50 into her Hollister Incorporated Supplemental Retirement
plan in August 2002. While oral testimony may establish clear and convincing evidence under
certain circumstances (see In re Marriage of Henke, 313 Ill. App. 3d 159, 168 (2000)), “the
bare assertion of a nonmarital source of a particular sum of money, without supporting
documentary evidence such as account records, deposit slips, canceled checks, etc., cannot be
deemed clear and convincing.” (Emphasis in original.) In re Marriage of Didier, 318 Ill. App.
3d 253, 262 (2000).
¶ 47 Here, we conclude that Heather’s perfunctory, affirmative response to a leading question
by her counsel as to the nonmarital source of the funds in the L.A. County 457 Plan did not
amount to clear and convincing evidence. It was a self-serving statement uncorroborated by
any other evidence. In fact, Heather’s testimony that she continued to work at USC following
the parties’ marriage calls that testimony into doubt. As such, the trial court’s characterization
of the L.A. County 457 Plan retirement fund as Heather’s nonmarital property was against the
manifest weight of the evidence. See Stuhr, 2016 IL App (1st) 152370, ¶ 51 (doubts as to
classification of property should be resolved in favor of finding property is marital).
Accordingly, we hold that the $6663.50 is marital property to be divided between the parties
in accordance with the trial court’s 50/50 ruling as to division of marital property and that
Heather is not entitled to reimbursement of that amount from the marital estate.
¶ 48 B. JDS Stock
¶ 49 Daniel challenges the trial court’s division of Heather’s JDS stock on multiple grounds; we
consider each in turn. First, Daniel argues that the trial court awarded him actual shares of JDS
stock, rather than the stock’s value. But the trial court’s memorandum of judgment reflects the
contrary. The trial court found that Heather’s JDS stock was “2/7 non-marital and 5/7 marital.”
The court then went on to state:
“The value provided by the company was as of May 18, 2018 indicating that the stock
was worth $147,375 as of December 31, 2017, the latest valuation date. Accordingly,
2/7 of that amount ($42,107) shall be assigned to Heather as her nonmarital property,
and 5/7 ($105,268) shall be deemed marital property to be divided equally between
Heather and Daniel.”
And in the “orders” portion of its judgment, the court reiterated: “Heather’s JDS stock valued
at $147,375 shall be divided $52,634 to Daniel and the remainder to Heather. This assigns to
Heather 2/7 of the value of the stock as her non-marital portion, and divides the remaining 5/7
into two equal shares allocating 50% to each party.” Nowhere did the court’s judgment identify
the number of shares Heather owned or otherwise suggest that its award was of shares as
opposed to money.
¶ 50 To the extent Daniel argues that the court should have awarded him actual stock, we
disagree. The evidence at trial revealed that JDS stock was “essentially non-transferable.” The
shares are required to be sold to JDS upon termination of the shareholder’s employment, and
the only persons who can own or hold common shares of JDS are “employees of JDS Inc.,
Hollister or their controlled corporations; officers and directors of JDS Inc. or Hollister who
have performed substantial and continuing services for either corporation; employee deferred
benefit plans such as HolliShare; and The Firm of John Dickinson Schneider, Inc. Preferred
Share Trust April 21, 1999.”
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¶ 51 In re Marriage of Schlichting, 2014 IL App (2d) 140158, is instructive. There, the trial
court found that the petitioner’s interest in an LLC was marital property and ordered her to sell
a portion of her interest to the respondent. Id. ¶ 44. This contravened the LLC’s operating
agreement, which prohibited a member from selling a membership interest in the absence of
unanimous consent of the other members. Id. ¶ 5. We reversed the trial court’s decision on
appeal, explaining that
“[w]hile no Illinois case requires a court to distribute marital property in accordance
with an operating agreement binding one or both of the parties in their business
activities, existing case law, both within and outside Illinois, comes together to
establish that the failure to do so, where compliance is easily possible, constitutes an
abuse of discretion.” Id. ¶ 60. (Emphasis in original.)
¶ 52 Pursuant to Schlichting, had the trial court in this case ordered Heather to turn over the
shares of stock to Daniel, it, too, would have abused its discretion, where the court could easily
comply with Heather’s employer’s guidelines prohibiting her from transferring the stock to
anyone outside of the specified corporate entities by awarding Daniel his share of the stock’s
value, rather than the stock itself.
¶ 53 Daniel’s arguments that the court should have used a Qualified Domestic Relations Order
(QDRO) to turn over the stock shares to him or divide the stock in accordance with a “reserved
jurisdiction” approach, are likewise unavailing. With regard to Daniel’s argument that the court
should have used a QDRO to effectuate its order dividing the JDS stock, it is premised on the
assumption that the trial court awarded Daniel shares of JDS stock and not merely the value of
the stock. Because we have already concluded that the court’s order entitled Daniel only to the
cash value of the stock, we will not address this argument further.
¶ 54 We note that the reserved jurisdiction approach that Daniel advocates is used in situations
where an asset’s present value is difficult to determine because of uncertainties surrounding
when it will vest or mature. In re Marriage of Peters, 326 Ill. App. 3d 364, 371 (2001). In such
a scenario, the court will delay dividing the asset and order only how it will be divided if and
when it is paid out. Id. Needless to say, that is not the case here. The present value of Heather’s
JDS stock is in no way uncertain. It is actual stock that Heather currently owns, not a stock
option that may or may not mature. Therefore, the reserved jurisdiction approach to dividing
the asset is wholly inapplicable to this situation.
¶ 55 Next, Daniel argues that the court erred in finding that the stocks purchased in 2013 and
2014 were nonmarital property. As noted supra, a trial court’s classification of property as
marital or nonmarital will generally not be disturbed on appeal unless it is against the manifest
weight of the evidence. Lundahl, 396 Ill. App. 3d at 504-05. However, where, as here, the facts
are not in dispute, we review the trial court’s classification of property de novo. In re Marriage
of Joynt, 375 Ill. App. 3d 817, 819 (2007).
¶ 56 Section 503(b)(3) of the Act addresses the distribution of stock options and restricted stock,
providing that:
“[A]ll stock options and restricted stock or similar form of benefit granted to either
spouse after the marriage and before a judgment of dissolution of marriage or legal
separation or declaration of invalidity of marriage, whether vested or non-vested or
whether their value is ascertainable, are presumed to be marital property. This
presumption of marital property is overcome by a showing that the stock option or
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restricted stock or similar form of benefit were acquired by a method listed in
subsection (a) of this Section.” (Emphasis added.) 750 ILCS 5/503(b)(3) (West 2018).
Subsection (a) of section 503 defines nonmarital property, which list includes “property
acquired by gift, legacy or descent or property acquired in exchange for such property.” Id.
§ 503(a)(1).
¶ 57 Under the Act, the JDS stock was presumptively marital property, as it was purchased
during the marriage. See id. § 503(b)(3). However, Heather testified that her 2013 and 2014
stock purchases were made with gifted funds from her parents, thereby rebutting the
presumption. See id. On appeal, Daniel does not argue that Heather failed to prove that she
purchased the stock in 2013 and 2014 with gifted funds from her parents. Rather, he suggests
that section 503(a)(1) does not apply to purchases of restricted stock—i.e., that all restricted
stock or stock options granted to a spouse after marriage is, without exception, marital
property. He cites no authority for this proposition, which is clearly contradicted by the plain
language of the statute. We therefore conclude that the trial court properly found that Heather’s
2013 and 2014 JDS stock purchases were her nonmarital property.
¶ 58 In a related argument, Daniel maintains that even if the trial court properly classified the
2013 and 2014 stock purchases as nonmarital property (and, implicitly, the 2007 to 2011 stock
purchases as marital property), the trial court erred in awarding Heather 2/7 of the present value
of the JDS stock, rather than awarding her the present value of the shares she purchased with
gifted funds.
¶ 59 Initially, Heather responds that Daniel waived this argument by failing to include it in his
docketing statement. It is sufficient to note that the docketing statement requires only a general
statement of the issues proposed to be raised by the parties, and the failure to raise an issue in
the docketing statement will not result in the waiver of the issue on appeal. In re Marriage of
Abu-Hashim, 2014 IL App (1st) 122997, ¶ 17 (citing General Motors Corp. v. Pappas, 242 Ill.
2d 163, 177-78 (2011)).
¶ 60 Turning to the merits, we agree with Daniel that the trial court erroneously calculated
$42,107 of the stock value to be nonmarital property. The evidence revealed that Heather
owned 4652 shares of stock at the time of trial that was valued, as of December 31, 2017, at
$147,735, or $31.75 per share. Heather did not show that $42,107 (2/7) of the present stock
value was traceable to gifts from her parents. Rather, the evidence showed that she purchased
752 shares of JDS stock with gifted funds. The value of those 752 shares (the nonmarital
property) was $23,876, not $42,107. The remaining 3900 shares (the marital property) had a
value of $123,499 (not $105,268). The trial court’s conclusion that $105,268 of the stock value
was marital property was therefore a miscalculation. Daniel is therefore entitled to 50% of
$123,499, or $61,912.50, not $52,634.
¶ 61 C. Valuation of HolliShare and Heather’s Hollister 401(k) Plan
¶ 62 The trial court valued Heather’s HolliShare account and Heather’s Hollister 401(k) Plan
funds as of the date closest to March 24, 2014, when Heather filed her petition for dissolution.
However, the court valued Daniel’s 401(k) funds as of June 2018, the date closest to trial.
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Daniel maintains this was error, and the court should have valued all retirement accounts as of
the date closest to trial. 1
¶ 63 Section 503(f) of the Act, as amended in 2016, provides that in determining the value of
marital or nonmarital property for purposes of property division, the trial court “has the
discretion to use the date of the trial or such other date as agreed upon by the parties, or ordered
by the court within its discretion.” 750 ILCS 5/503(f) (West 2018). But the trial court’s
discretion is not unfettered. Specifically, the court must be consistent in setting a valuation
date.
¶ 64 Here, the trial court’s decision to value Heather’s Hollister retirement assets as of a
different date than Daniel’s retirement assets was based primarily on the court’s finding that
Daniel’s actions in delaying and stalling the proceedings were detrimental to the family’s
financial well-being. To be sure, pursuant to section 503(d) of the Act, in dividing marital
property, the trial court may consider, inter alia, “each party’s contribution to the acquisition,
preservation, or increase or decrease in value of the marital or non-marital property” and
whether the contribution is after proceedings for dissolution have commenced. Id.
§ 503(d)(1)(iii). Significantly, however, this is a factor that the court may use to determine the
division of marital property, not the fixing of a date of valuation of that property. In other
words, inconsistent valuation dates cannot be used as a substitute for sanctions for frivolous
behavior. Therefore, we reverse the court’s findings valuing Heather’s and Daniel’s retirement
assets as of different dates. We remand the case for the court to use the same valuation date for
those assets of Heather and Daniel that were subject to different valuation dates and to divide
said assets in accordance with the factors listed in section 503(d) of the Act, which includes
the court’s discretion.
¶ 65 D. Attorney Fees
¶ 66 Daniel maintains that the trial court erred in requiring him to contribute $50,000 to
Heather’s attorney fees. We review a trial court’s fee award in dissolution proceedings for an
abuse of discretion. In re Marriage of Gabriel, 2020 IL App (1st) 182710, ¶ 68. A court abuses
its discretion where it acts arbitrarily or exceeds the bounds of reason and ignores recognized
principles of law such that no reasonable person would take the view adopted by the court.
In re Marriage of Paris, 2020 IL App (1st) 181116, ¶ 43 (citing In re Marriage of Levinson,
2013 IL App (1st) 121696, ¶ 34).
¶ 67 Section 508(a) of the Act provides that a court, after considering the financial resources of
the parties, may order any party to pay for his own or the opposing party’s costs and attorney
fees. 750 ILCS 5/508(a) (West 2018). 2 The section further states that contribution to fees from
1
Daniel also suggests that by valuing Heather’s retirement accounts in 2013 and 2014, the court
somehow found the subsequent increase in the value of those accounts was Heather’s nonmarital
property. It is sufficient to note that there is no support in the record for this contention. The trial court’s
order describes the increase in value as “Heather’s sole and separate property,” not “non-marital
property.”
2
Attorney fees may also be awarded irrespective of a party’s ability to pay where a party fails to
comply with court orders or precipitates a hearing for an improper purpose. See 750 ILCS 5/508(b)
(West 2018); In re Marriage of Patel, 2013 IL App (1st) 112571, ¶ 122. Here, however, Heather’s
counsel explicitly denied that he brought the fee petition under section 508(b).
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the opposing party may be awarded in accordance with section 503(j). Id. Section 503(j), in
turn, provides that an award of fees in response to a petition for contribution to fees and costs
shall be based on the criteria for division of marital property set forth under section 503(d)(1)-
(12). Id. § 503(j).
¶ 68 The trial court in this case cited sections 508(a) and 503(j) of the Act in its order. Our
supreme court recently reaffirmed the principle that an award of fees pursuant to section 508(a)
of the Act depends on the petitioning party’s inability to pay. In re Marriage of Heroy, 2017
IL 120205, ¶ 19. The court explained that the inability to pay does not mean that payment of
the fees would leave the party destitute, but that payment would “undermine his or her financial
stability.” Id. Here, the court made no finding that Heather was unable to pay her own fees. To
the contrary, the court specifically stated in its original order that the award was “not based on
the ability of the parties to pay.” The court’s “clarifying” statement in its amended
memorandum of judgment that it had taken into account the parties’ employment, earnings,
retirement benefits, and debts in making its award is not tantamount to an implicit finding that
Heather could not pay her attorney fees. This is particularly true in light of the court’s earlier
explicit statement that it did not consider the parties’ inability to pay in rendering its award.
¶ 69 In sum, there are two bases on which to award attorney fees in dissolution proceedings:
section 508(a) and section 508(b) of the Act. Heather expressly denied bringing her fee petition
under section 508(b) of the Act, and the court did not award fees under section 508(a) because
it explicitly stated that the award was “not based on the ability of the parties to pay” (emphasis
added). Further, in its ruling, the court made it clear that the basis of its fee award was in
response to Daniel’s dilatory tactics in the dissolution proceedings and was not based on either
section 508(a) or section 508(b) of the Act. Because the court’s fee award was not based on
any applicable section of the Act, we conclude that the court abused its discretion in ordering
Daniel to contribute $50,000 to Heather’s attorney fees. Therefore, we reverse that portion of
the court’s order. See Paris, 2020 IL App (1st) 181116, ¶ 20 (abuse of discretion to ignore
recognized legal principles).
¶ 70 E. Child Support
¶ 71 Daniel argues that the court erred in calculating Heather’s income for child support
purposes, where it excluded the funds in her HolliShare account and Heather’s IRA
withdrawals. Section 505(a)(1.5) of the Act provides guidelines for calculating child support
obligations, beginning by requiring the court to determine each parent’s monthly net income,
which is defined as gross income minus certain deductions. 750 ILCS 5/505(a)(1.5)(A),
(a)(3)(B) (West 2018). Income, in turn, is “any form of periodic payment to an individual,
regardless of source,” including wages, salary, pension, profit-sharing payments, and
retirement benefits. 750 ILCS 28/15(d) (West 2018). Ordinarily, the trial court’s findings as to
net income are subject to review for an abuse of discretion. In re Marriage of Vance, 2016 IL
App (3d) 150717, ¶ 34. But here, Daniel challenges the court’s interpretation of “income”
under the Act, requiring de novo review. See In re Marriage of McGrath, 2012 IL 112792,
¶ 10.
¶ 72 Turning first to the HolliShare account, Daniel characterizes this as a profit-sharing
account. But the evidence of the characteristics of the account belies this contention. Unlike a
traditional profit-sharing account, HolliShare funds are only accessible by employees when
they leave Hollister or retire. In other words, Heather cannot receive these funds as a current
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employee of Hollister. And because these funds were never paid to Heather, the trial court
properly excluded them as income for child support purposes. See 750 ILCS 28/15(d) (West
2018) (income is periodic payment to individual).
¶ 73 Heather’s IRA disbursements present a closer question. Initially, the parties dispute
whether there was evidence in the record as to these disbursements. Daniel, citing Heather’s
tax returns, contends that Heather withdrew $81,292 from various IRA accounts between 2015
and 2017. Heather responds that her 2015 and 2016 tax returns were never introduced into
evidence. While the returns are in the record as “Petitioner Exhibit 1,” the report of proceedings
does not reflect that they were introduced at trial. Daniel does not argue otherwise but
maintains that his $81,292 figure is supported by Heather’s testimony. We disagree. While
Heather generally testified that she used funds withdrawn from her Roth IRAs to pay attorney
fees, there was no evidence as to the amount of the withdrawals or the date the withdrawals
were made, making it impossible for the trial court to include them as income. 3
¶ 74 There is, however, some duly admitted evidence of Heather’s IRA withdrawals from her
2017 tax return. That return reflects a $36,556 distribution to Heather from a Fidelity and
Vanguard IRA in 2017.
¶ 75 There is a split in appellate authority as to whether IRA withdrawals constitute income.
See In re Marriage of Verhines, 2018 IL App (2d) 171034, ¶¶ 59-71 (collecting cases). (As of
2012, the supreme court has declined to settle this question. In re Marriage of McGrath, 2012
IL 112792, ¶ 10 n.2.) Under de novo review, the Second District has held that IRA
disbursements constitute income for child support purposes, reasoning that such disbursements
are money received from an investment, which falls under the plain and ordinary meaning of
income. In re Marriage of Lindman, 356 Ill. App. 3d 462, 466 (2005) (citing In re Marriage
of Rogers, 213 Ill. 2d 129, 136-37 (2004)). However, the court explained that IRA
disbursements could be excluded from income if they were “double counted,” positing a
scenario in which the court calculates a party’s child support obligation using income that has
been contributed to an IRA in year one and withdrawn from the IRA in a subsequent year. Id.
at 470. In other words, the money could be counted both on its way into and out of the IRA.
Id. To avoid double-counting, the court suggested that a trial court would have to determine
the percentage of the IRA deposit it considered in calculating income in year one and discount
the later year net income calculation accordingly. Id.
¶ 76 In considering the husband’s motion to modify child support using an abuse of discretion
standard of review, the First District, citing Lindman, affirmed the trial court’s finding that the
respondent’s IRA withdrawals constituted income. In re Marriage of Eberhardt, 387 Ill. App.
3d 226, 232-33 (2008).
¶ 77 The Fourth District, on the other hand, reviewing for an abuse of discretion, affirmed the
trial court’s finding that the respondent’s IRA withdrawal was not income when considering a
petition to modify child support. In re Marriage of O’Daniel, 382 Ill. App. 3d 845, 850 (2008).
3
Daniel also suggests that this court can consider the fact that Heather’s 2015 and 2016 tax returns
were attached as exhibits to his motion for reconsideration. But exhibits to pleadings are not evidence.
Jill Knowles Enterprises, Inc. v. Dunkin, 2017 IL App (2d) 160811, ¶ 21 (generally, document must be
offered by proponent and admitted into evidence by the trial court before it may be considered as
evidence).
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The court compared an IRA to a savings account because it is ordinarily self-funded by the
person possessing the account:
“The money the individual places in an IRA already belongs to that individual. When
an individual withdraws money he places into an IRA, he does not gain anything as the
money was already his. Therefore, it is not a gain and not income. The only portion of
the IRA that would constitute a gain for the individual would be the interest and/or
appreciation earnings from the IRA.” Id.
Because the petitioner in that case did not present evidence as to what portion of the
respondent’s IRA withdrawal consisted of his contributions, the court could not determine
what portion was income for child support purposes. Id.
¶ 78 Most recently, in addressing this issue in a petition to modify support, the Second District
suggested that Lindman and O’Daniel are not in “absolute conflict.” Verhines, 2018 IL App
(2d) 171034, ¶ 65. The court explained that Lindman held that IRA withdrawals are income
after subtracting for “double counting” and O’Daniel suggests that IRA interest and
appreciation could also constitute income. Id. Thus, “both Lindman and O’Daniel allow for
the possibility that a portion of IRA withdrawals would constitute income.” Id.
¶ 79 We agree with the premise that, notwithstanding the split of authority, all courts agree that
at least some portion of IRA withdrawals may constitute income. We follow O’Daniel and
conclude that IRA disbursements of interest, not principal, are income for purposes of
calculating child support.
¶ 80 In this case, the trial court’s basis for finding that Heather’s IRA withdrawal did not
constitute income was because “those funds are spent.” We struggle to follow the trial court’s
reasoning for that conclusion. Presumably, Heather had also spent her 2015 through 2017
salary, but the trial court nevertheless considered Heather’s salary in determining an amount
for her average income. Thus, the trial court’s reasoning for excluding the entire $36,556 IRA
withdrawal in its income calculation for Heather is without support and requires us to remand
the case to the trial court to determine what portion of that withdrawal, if any, was attributable
to interest earned on Heather’s IRA investment. The trial court must then recalculate the
applicable child support amount accordingly. If the trial court cannot determine whether the
distribution taken by Heather from her IRA is principal or interest, then it should consider the
withdrawal on a pro rata basis, calculated on the ratio of principal to interest in the IRA at the
time of the distribution.
¶ 81 F. Contribution to Educational Expenses
¶ 82 Daniel challenges both the trial court’s decision to apportion responsibility for the parties’
children’s college education between the parties as well as the actual apportionment of that
responsibility. Initially, Daniel contends that the trial court erred in addressing the payment of
the children’s college education expenses in the first place because neither party filed a petition
asking the court to do so. Section 513 of the Act allows the court to “award sums of money out
of the property and income of either or both parties *** as equity may require, for the
educational expenses of any child of the parties.” 750 ILCS 5/513(a) (West 2018). Nowhere
in this section is a formal, stand-alone petition required before a court may make such an award.
In her petition for dissolution, Heather asked that a “determination be made as to the college
education of the children.” This was clearly sufficient to put the matter properly before the
court for consideration.
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¶ 83 Daniel next argues that the court erred in requiring Heather to pay one-third of any
expenses not covered by the children’s existing educational accounts, while Daniel must pay
two-thirds. In awarding educational expenses for adult children, the court should consider
(1) the present and future financial resources available to the parties, (2) the standard of living
the child would have enjoyed had the parents remained married, (3) the child’s financial
resources, and (4) the child’s academic performance. Id. § 513(j)(1)-(4). We review a section
513 award for an abuse of discretion. In re Marriage of Cianchetti, 351 Ill. App. 3d 832, 837
(2004).
¶ 84 In this case, Daniel challenges the court’s consideration of the first factor, contending that
the court “ignored” the parties’ financial resources in rendering its decision. To the contrary,
the record reveals that the court carefully considered the parties’ current and future income. In
particular, the court noted that although Daniel currently earned only $20,000 more than
Heather, prior to Heather’s filing of the divorce petition, he often earned over two times as
much as she did, demonstrating his increased earning potential. Indeed, Daniel testified at trial
that he expected to receive more hours from his employer that would bring his salary closer to
prefiling levels. Given that the court also split the parties’ retirement accounts evenly, we
cannot say the court abused its discretion in requiring Daniel to contribute more to the
children’s college education. See Paris, 2020 IL App (1st) 181116, ¶ 20 (abuse of discretion
occurs where trial court’s decision exceeds the bounds of reason).
¶ 85 G. Constitutionality of Section 513
¶ 86 Daniel repeats the long rejected argument that section 513 of the Act is unconstitutional as
applied to him because it treats married and divorced parents differently by imposing on
divorced parents an obligation to pay for their children’s college education without imposing
a similar responsibility on married parents. The Illinois Supreme Court rejected this argument
in 1978, holding that allowing the trial court discretion to require divorced parents to pay for
their children’s college educations served the “legitimate legislative purpose” of minimizing
“any economic and educational disadvantages” to children of divorced parents. Kujawinski v.
Kujawinski, 71 Ill. 2d 563, 580 (1978). Therefore, it concluded that section 513 did not violate
the equal protection clause. Id. Daniel maintains that “social changes” since 1978 lessen the
force of this reasoning, but even if we agreed, we have no authority to depart from supreme
court precedent. See Yakich v. Aulds, 2019 IL 123667, ¶ 13 (holding that trial court was bound
to follow Kujawinski and lacked authority to find section 513 unconstitutional as applied to
respondent).
¶ 87 H. Dissipation
¶ 88 Dissipation occurs when a spouse uses marital property for his or her benefit, for a purpose
unrelated to the marriage, at the same time the marriage is suffering from an irreconcilable
breakdown. In re Marriage of Tabassum, 377 Ill. App. 3d 761, 779 (2007). The Act requires a
party claiming dissipation to file a timely “notice of intent,” which must identify the property
dissipated as well as the date or period of time when the dissipation occurred. 750 ILCS
5/503(d)(2) (West 2018). The complaining spouse must make a prima facie case for dissipation
before the burden shifts to the spouse charged with dissipation to demonstrate, with clear and
convincing evidence, how the funds were spent. In re Marriage of Stuhr, 2016 IL App (1st)
152370, ¶ 65. If the spouse cannot show that the funds were spent for a legitimate family
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expense, the court must find dissipation. In re Marriage of Asher-Goettler, 378 Ill. App. 3d
1023, 1031 (2008). We will not disturb a trial court’s finding with regard to dissipation unless
it is against the manifest weight of the evidence. Id.
¶ 89 On appeal, Daniel argues that Heather dissipated $92,609 from “IRA accounts.” He
provides no explanation or record citations to explain how he reached this figure, but his
notices of intent to seek dissipation offer some guidance. Specifically, in his first notice of
intent, filed on May 9, 2017, he alleged that Heather had withdrawn (1) $8800 from her
Vanguard account, (2) an “undetermined [amount]” from her Fidelity account between
December 2014 and December 2015, and (3) undetermined amounts from her Vanguard and
Fidelity accounts between January 2016 and the present. The second notice of intent was more
specific, alleging that Heather had withdrawn (1) $10,500 from a Roth IRA account ending in
9094 in May 2016, (2) $5000 from a Fidelity account ending in 470 in April 2016, and
(3) $10,000 from a Fidelity Roth account ending in 292 in June 2016.
¶ 90 The trial court concluded that “Daniel’s dissipation claims have not been proven in that
Heather accounted for all funds [asserted] by Daniel that she used from her accounts,” finding
that Heather used the funds to pay “family expenses and attorney fees.” Daniel argues that this
was error because using marital funds to pay attorney fees constitutes dissipation under the
law. See In re Marriage of Weiler, 258 Ill. App. 3d 454, 464 (1994). Heather responds that
Daniel did not make a prima facie case of dissipation in the first instance, so the burden did
not shift to her to prove that the funds were not used for an improper purpose. We agree. (While
the trial court rejected Daniel’s dissipation claim on the basis that Heather rebutted it with clear
and convincing evidence, we may affirm the judgment on any basis in the record. See Taylor,
Bean, & Whitaker Mortgage Corp. v. Cocroft, 2018 IL App (1st) 170969, ¶ 60.)
¶ 91 At trial, Daniel failed to introduce account statements or other evidence in support of his
claims of dissipation. Replying to Heather’s argument regarding his failure to make a
prima facie case on appeal, Daniel only cites Heather’s testimony that she withdrew $10,000
from her “Hollister 401k” to pay attorney fees and that she withdrew an unspecified amount
from a Fidelity IRA. He also cites to testimony that Heather withdrew $36,556 from an IRA
in 2017. But he made no attempt to tie these withdrawals to those he alleged in his notices of
intent to claim dissipation. Indeed, at trial, he did not elicit testimony from Heather regarding
the dates of either the Hollister 401(k) Plan fund or the Fidelity IRA withdrawals. 4 Under
these circumstances, we conclude that Daniel failed to set forth a prima facie case of
dissipation. As such, the trial court properly rejected his claim.
¶ 92 I. Reimbursement of Utility Payments
¶ 93 Daniel argues that the trial court erred in failing to order Heather to reimburse him for the
payment of utilities on the marital residence, which he allegedly paid in full beginning in 2014.
In June 2015, Daniel petitioned Heather for contribution to household expenses, including
utilities. The record does not reveal that the trial court ever ruled on this petition. Then, in
4
To the extent the record contains more specific evidence of dates or amounts of Heather’s alleged
liquidation of marital assets, Daniel failed to point us to it. Parties may not treat this court as a repository
for facts and arguments that are not supported by specific and accurate record citations. Travaglini v.
Ingalls Health System, 396 Ill. App. 3d 387, 405 (2009). It is not this court’s responsibility to “scour
the record in search of facts that support the argument being advanced by a party.” Id.
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Daniel’s written closing argument following trial, he asked the court to order Heather to
reimburse him for half of the utility payments he made on the marital residence. However, the
trial court’s judgment again did not address the issue of reimbursement for utility payments.
Thus, there was no ruling on that issue. When Daniel subsequently filed his motion for
reconsideration of the trial court’s rulings, he did not bring this omission to the court’s
attention. As a result, the court’s order on reconsideration did not address utility payment
reimbursement. Daniel now complains that it was error for the trial court to fail to address this
issue.
¶ 94 It is well-settled that the party filing a motion has the responsibility to bring it to the
attention of the trial court. Jackson v. Alvarez, 358 Ill. App. 3d 555, 563 (2005) (collecting
cases). Where the moving party fails to do so, and it appears no ruling has been made on the
motion, it is presumed the motion was waived or abandoned. Id. Here, because Daniel failed
to press the trial court for ruling on his original motion for contribution to utility payments, in
spite of opportunities to do so, we see no reason to address the merits of that motion for the
first time on appeal. See id. at 564 (where plaintiff did not seek a ruling on her motion to file
an amended complaint in trial court, reviewing court declined to address motion on appeal).
¶ 95 J. Motion for Reconsideration
¶ 96 Before addressing the merits of Daniel’s argument with respect to Heather’s motion for
reconsideration, it is helpful to begin with a detailed timeline of events following the November
28, 2018, entry of judgment.
¶ 97 On December 28, 2018, both parties filed motions for reconsideration pursuant to section
2-1203 of the Code of Civil Procedure, permitting parties in nonjury cases to file a motion for
rehearing or modification of judgment within 30 days of the entry of that judgment. See 735
ILCS 5/2-1203(a) (West 2018). In Heather’s motion, she asked the court to correct two
scrivener’s errors in its judgment and also sought clarification of the portion of the court’s
order requiring her to turn over to Daniel $52,634 in JDS stock. Specifically, she asked the
court to provide “specific direction” for how she should turn over this amount, given Daniel’s
pending bankruptcy proceedings and the fact that the stock proceeds may belong to the
bankruptcy estate or creditors. Heather ultimately withdrew this motion prior to the court’s
ruling on April 1, 2019.
¶ 98 The court ruled on Daniel’s motion for reconsideration on April 10, 2019. In its ruling, the
court expressly noted that Heather had withdrawn her motion for reconsideration regarding
how (and to whom) the JDS stock value was to be transferred and therefore declined to address
that issue.
¶ 99 On May 6, 2019, Heather moved to clarify and amend the court’s April 10 order, asking
the court to correct a scrivener’s error and also include a date by which Daniel’s contribution
to Heather’s attorney fees were due. In addition, Heather asked the court to offset the value of
JDS stock she owed to Daniel against the attorney fees Daniel owed to her.
¶ 100 On June 24, 2019, the trial court granted Heather’s motion to clarify the judgment,
corrected the scrivener’s error, and ordered Daniel to pay Heather’s attorney by September 23,
2019. The court did not rule on Heather’s argument for offset.
¶ 101 On appeal, Daniel argues that successive posttrial motions are not allowed. He further
argues that redundant motions seeking to delay appeals are likewise disallowed. Both
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arguments are meritless. Illinois Supreme Court Rule 274 (eff. Oct. 14, 2005) expressly
provides that where a final judgment—such as the November 28, 2018, order—is modified
pursuant to a postjudgment motion, any party affected by the order may make a postjudgment
motion directed at that superseding order. The court modified its November 28 order on April
10, 2019; Heather was affected by that modified order; and she timely filed a postjudgment
motion. Pursuant to Rule 274, that motion was not successive.
¶ 102 Nor was Heather’s May 6 postjudgment motion in any way duplicative or redundant of her
withdrawn December 28, 2018, motion. The latter asked the court for clarification as to how
to turn over the JDS stock value, while the former sought to offset that value against the
attorney fees that were pending. For these reasons, Daniel’s arguments relating to the court’s
consideration of Heather’s second postjudgment motion fail.
¶ 103 CONCLUSION
¶ 104 For the foregoing reasons, we make the following findings:
1. Heather’s postmarital contributions to the LACERA pension were marital
property. On remand, the trial court should determine to what extent the growth in that
pension fund was attributable to marital versus nonmarital contributions; whether the
marital property transmuted to nonmarital property; and whether the marital estate was
entitled to reimbursement.
2. The L.A. County 457 Plan fund was marital property. On remand, the trial court
should divide it between the parties accordingly.
3. Heather was not entitled to two-thirds of the value of the JDS stock as her
nonmarital property. On remand, the trial court should use the value of the shares
Heather purchased with gifted funds to calculate the portion of the value of the stock
that is Heather’s nonmarital property.
4. Valuing Heather’s and Daniel’s retirement assets at different times was error. On
remand, the court should value the assets as of the same time period and divide the
assets in accordance with section 503(d) of the Act.
5. The court erred in concluding that the totality of Heather’s 2017 IRA withdrawals
was not income to her for child support purposes. On remand, the court should
recalculate Heather’s income, including only that portion of her 2017 IRA withdrawal
that was attributable to interest earned on her IRA investment, if any, to determine the
parties’ child support payments.
6. The record does not establish support for the court’s ruling that Heather was
entitled to $50,000 in attorney fees from Daniel.
The court’s judgment is affirmed in all other respects.
¶ 105 Affirmed in part, reversed in part, and remanded with directions.
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