Petition for Writ of Certiorari — Schachter v. Schachter

Supreme Court, U.S.

FILED

981108 JAN4 1999

OFFICE OF THE CLERK

No.

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1998

JAY F. SHACHTER,

Petitioner,

LINDA E. SHACHTER,

Respondent.

On Petition for a Writ of Certiorari to the

Appellate Court of Illinois, First District

PETITION FOR A WRIT OF CERTIORARI

JOEL OSTROW

One East Wacker Drive

Suite 3720

Chicago, Illinois 60601

(312) 670-6555

Counsel of Record

for Petitioner

Midwest Law Printing Co., Chicago 60610, (312) 321-0220

i

QUESTION PRESENTED

Do the due process clauses of the Fifth and Four-

teenth Amendments protect the fundamental liberty

interests of marriage and child care and custody, as

well as the State’s division of property, from the pre-

clusion of an adversary hearing on grounds under a dis-

solution of marriage statute mandating such a hearing?

li

TABLE OF CONTENTS

PAGE

QUESTION PRESENTED .................. i

SADE OF CORSE 66k ee ee ii

TABLE OF AUTHORITIES ................ ill

OFiNTne DENS 5385054 cee eee 1

SUREBITUEE 2 6 30h oe eae eee 1

CONSTITUTIONAL PROVISION INVOLVED .... 1

STATOR 66 030 h ean ee eee ee ee 2

REASONS FOR GRANTING THE WRIT........ 4

COMCIAIOION 6 occ ste eeese psa e eae 7

APPIN «os ckce cand ene daeeeeee infra

ill

TABLE OF AUTHORITIES

Cases

Boddie v. Connecticut, 401 U.S. 371 (1971)

Bouie v. Columbia, 378 U.S. 347 (1964)...

Fuentes v. Shevin, 407 U.S. 67 (1972) ...

Goldberg v. Kelly, 397 U.S. 254 (1970)

Lehr v. Robertson, 463 U.S. 248 (1983) ..

Lindsay v. Normet, 405 U.S. 56 (1972)

Powell v. Alabama, 287 U.S. 45 (1932)

Rice v. Norman Williams Co.,

458 U.S. 654 (1982)........-.-.

Constitutional Provisions

U.S. Const., Amend. V ........

U.S. Const., Amend. XIV

PAGE(S)

5 6

6

6

6

Pes

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PETITION FOR WRIT OF CERTIORARI

Petitioner Jay F. Shachter respectfully prays that a

writ of certiorari issue to review the judgment of the

Appellate Court of Illinois entered in this proceeding on

March 31, 1998.

OPINIONS BELOW

The order of the Appellate Court of Illinois, First

District was unreported (App. 1-35). The denial of the

Petition for Leave to Appeal by the Supreme Court of

Illinois was unreported (App. 37).

JURISDICTION

The jurisdiction of this Court is invoked under 28

U.S.C. §1257. A timely Petition for Rehearing was filed

in the Appellate Court of Illinois, First District on April

21, 1998; it was denied by Order of May 18, 1998 (App.

36). A timely Petition for Leave to Appeal to the Su-

preme Court of Illinois was filed on June 22, 1998. The

order denying the Petitioner’s Petition for Leave to

Appeal was entered by the Supreme Court of Illinois on

October 6, 1998.

CONSTITUTIONAL PROVISIONS INVOLVED

This case involves the Fifth and Fourteenth Amend-

ments to the Constitution of the United States.

2

STATEMENT

On January 18, 1994, the Circuit Court of Cook Coun-

ty, Illinois, Domestic Relations Division, commenced a

trial in the case of “Linda E. Shachter (“Wife”), Peti-

tioner, and Jay F. Shachter (“Husband”), Respondent,”

a cause for dissolution of marriage. The parties had two

minor daughters.

The trial began with the Wife attempting to establish

grounds for the dissolution, which the Husband op-

posed.

In 1977, the Illinois State Legislature enacted the

Illinois Marriage and Dissolution of Marriage Act, 750

ILCS 5/401, et seq. Section 5/401(a)(1) set forth numer-

ous grounds for obtaining a dissolution, such as adul-

tery and physical or mental cruelty, all of which had

been present in the State’s prior statute governing

actions for divorce.

Section 5/401(a)(2) was new and provided that a dis-

solution of marriage could be granted if the following

ground “has been proved:”

“That the spouses have lived separate and apart

for a continuous period in excess of 2 years and

irreconcilable differences have caused the irre-

trievable breakdown of the marriage and the

court determines that efforts at reconciliation

have failed or that future attempts at reconcilia-

tion would be impracticable and not in the best

interests of the family.”

A finding that grounds for dissolution exist then auth-

orizes the court to determine custody, set allowances

and divide property, 750 ILCS 5/401(b).

3

The Wife proceeded to attempt to prove the ground

set forth in 5/401(a)(2). The Husband's attorney rose to

cross-examine the Wife after she testified she had

moved out of the marital residence more than two years

before the trial began, that irreconcilable differences

had arisen, that marriage counseling had been a fail-

ure, that the marriage was irretrievably broken, and

that further attempts at reconciliation would not be in

the best interests of the family.

The court prohibited the cross-examination, stating,

“Miss Klepak, the grounds are irreconcilable differenc-

es. How can you contest them?” The court then rejected

the attorney’s argument that she was entitled to show

the Wife’s testimony to be untruthful, particularly with

regard to the two years of separation, and by using

excerpts from her journal to demonstrate ambivalent

feelings about the Husband and the dissolution.

The court further would not allow the Husband to

offer his own testimony on grounds; it did allow the

presentation of an offer of proof under which the Hus-

band’s testimony would have been that the parties had

not been separated for two years, that no meaningful

attempts at reconciliation had been made, and that no

differences were irreconcilable.

Upon rejecting both cross-examination of the Wife,

and direct testimony by the Husband, the trial court

found proof of the 5/401(a)(2) grounds. A dissolution of

the parties’ marriage was ultimately granted on that

basis. The remainder of the judgment assigned custody

of the children to the Wife, divided the parties property,

and set child support and maintenance.

4

The Appellate Court of Illinois, to which it had been

argued that proceeding to judgment in this manner was

violative of due process, stated as follows:

“Here, the petitioner established irreconcilable

differences. She testified that she and the re-

spondent had lived separate and apart for more

than two years; that irreconcilable differences

existed between them; that their efforts at rec-

onciliation had failed; and that future recon-

ciliation attempts would not be in the best in-

terests of the family. Once these elements were

established, any endeavor by the respondent to

disprove them would have been futile since the

court was obligated to grant dissolution based

upon the petitioner’s testimony alone.” (App. 33-

34, emphasis supplied)

Though having previously noted that procedural due

process requires notice and an opportunity to be heard

and conduct a defense (App. 34), the Appellate Court

affirmed the judgment.

REASONS FOR GRANTING THE WRIT

The denial of the Husband’s procedural due process

rights is self-evident. As stated in Powell v. Alabama,

287 U.S. 45 (1932), due process requires notice and

hearing as essential to the entry of an enforceable

judgment, and:

“If in any case, civil or criminal, a state or fed-

eral court were arbitrarily to refuse to hear a

party by counsel, employed by and appearing for

him, it reasonably may not be doubted that such

a refusal would be a denial of a hearing, and,

5

therefore, of due process in the constitutiona!

sense.” (287 U.S. at 71; emphasis supplied)

This attack is not on the statute itself, which is the

normally unassailable exercise of a state legislature s

prerogative, Rice v. Norman Williams Co., 458 U.S. 654

(1982), nor on the State’s authority to create the mé

chanics of dissolution, but on the judicial interpretatio:

of it, which is state action reviewable under the Fou:

teenth Amendment, Bouie v. Columbia, 378 U.S. 54)

(1964). In sum, Petitioner posits that he was deprived

of the liberty interests of sustaining his marriage anc

caring for his children, and that the State divided his

property and income, when the predicate for doing s

had to be established by a hearing denied to him

The statute, as set forth above, requires elements '

be “proved,” including when the ground asserted

irreconcilable differences. These elements are |) a t™

year separation; 2) the existence of irreconcilable d

ferences; 3) the irretrievable breakdown of the ma

riage; and 4) either that attempts at reconciliation hav:

failed or that future such attempts would not be in '

best interest of the family.

In Boddie v. Connecticut, 401 U.S. 371 (1971

Court held that marriage “involves interests of bas:

importance in our society” and that since a dissolutior

of marriage could only be had by “invoking the State's

judicial machinery,” (401 U.S. at 376), due process was

required and access to the courts to obtain a dissolution

could not be denied for lack of a filing fee. The Court

further noted that persons who necessarily must use

the judicial process to resolve their rights and duties

need be given an opportunity to be heard (401 U-S. at

6

377). What this Court has not previously decided is

whether the right to continue the marriage, and protect

one’s child care interests, income, and property are

equally subject to due process protection.

In Goldberg v. Kelly, 397 U.S. 254, 268 (1970), it was

stated that whenever fundamental rights are being

deprived by state action (there, the termination of

welfare benefits), the right to present evidence and

cross-examine witnesses is elementary to due process.

Both marriage, Boddie v. Connecticut, supra, and the

care and custody of children, Lehr v. Robertson, 463

U.S. 248 (1983), have been determined to be fundamen-

tal interests to which the highest requisites of due

process apply. Likewise, the taking of property without

a hearing establishing the factual basis for doing so has

been held violative of due process rights, Fuentes v.

Shevin, 407 U.S. 67 (1972).

If the right to a dissolution must be so protected, so

must be the right to oppose one, particularly where the

statute governing dissolution creates elements of the

cause of action. For example, in Lindsey v. Normet, 405

U.S. 56 (1972), this Court found an eviction statute

comported with due process since it allowed the defen-

dant to present evidence on issues available under the

statute. Section 5/401(a)(2) similarly creates issues and

allows a defense, but the courts below have eradicated

the due process right to invoke that defense. In so

doing, they have allowed the Petitioner to be deprived

of significant liberty interests, and of property, in the

absence of constitutional protection.

In Did Unilateral Divorce Raise Divorce Rates?, Uni-

versity of California at San Diego, Leora Freidberg

7

(1997), it was stated that the enactment of no-fault

statutes in 28 states between 1970 and 1985 contribut-

ed 16% of the increase in the dissolution rate in the

United States. Each dissolution action affects at least

one fundamental interest (marriage), and often, such as

here, the care and custody of children, and the alloca-

tion of property. The facilitation of impacting on those

fundamental interests by the enactment of no-fault

legislation should not be enhanced by the failure to

enforce that legislation consistent with due process.

CONCLUSION

It is therefore respectfully submitted that the petition

for writ of certiorari should be granted.

December, 1998

Respectfully submitted,

JOEL OSTROW

One East Wacker Drive

Suite 3720

Chicago, Illinois 60601

Counsel of Record

for Petitioner

APPENDIX

App. 1

[Dated March 31, 1998]

No. 1-95-1110

IN THE

APPELLATE COURT OF ILLINOIS

FIRST JUDICIAL DISTRICT

IN RE THE MARRIAGE OF:

Appeal from the

Circuit Court of

Cook County.

LINDA EHGARTNER-SHACHTER,

)

)

)

)

Petitioner-Appellee, )

and ) No. 90 D 18276

)

)

)

)

)

Honorable

Grace Dickler,

Judge Presiding.

JAY F SHACHTER,

Respondent-Appellant.

ORDER

This appeal follows the entry of a judgment for dis-

solution of marriage and an order amending the judg-

ment for dissolution of marriage upon motion for re-

consideration. The appellant raises the following issues:

(1) that the best interests of the children required vaca-

tion of the joint parenting agreement and completion of

the custody hearing; (2) that the amount of reimburse-

ment to the marital estate for expenditures made on

behalf of petitioner’s non-marital estate was underval-

ued and against the manifest weight of the evidence; (3)

that the division of marital property was against the

manifest weight of the evidence; and (4) that respon-

dent was denied a hearing on the issue of grounds.

The parties to this appeal, Linda Ehgartner-Shachter,

the petitioner, and Jay F. Shachter, the respondent,

were married in California on January 20, 1982. Two

App. 2

children were born to the marriage: Margaret Ann

(“Mimi”), who was born on May 17, 1983, and Hilda

Suzanne (“T’hila”), who was born on October 10, 1984.

Linda filed her petition for dissolution of marriage on

December 4, 1990, alleging, as grounds, that the re-

spondent was guilty of extreme and repeated mental

cruelty. By leave of court, on March 12, 1993, Linda

filed an amended petition in which she alleged irrecon-

cilable differences as grounds for the dissolution.

At the hearing on January 18, 1994, Linda testified

that she and Jay had lived separate and apart since

July 18, 1991.' She stated that irreconcilable differenc-

es had arisen between herself and her husband; that

they had obtained marriage counseling for three years

prior to their separation; that counseling failed to

prevent the irretrievable breakdown of their marriage;

and that further attempts at reconciliation would not

be in the best interest of the children. When asked to

describe the conduct of her husband that caused ir-

reconcilable differences, Linda testified to six incidents.

The first occurred in November 1986 when her husband

threw a plate of food on her head. The second occurred

during the winter of 1987 when her husband ordered

her at 4:30 in the morning to retrieve a newspaper and

refused to let her go to the bathroom. The third oc-

curred during Hanukkah 1988 on the Sabbath. On that

occasion, Jay bruised her wrists while taking her hands

off the faucet. The fourth incident occurred during

Passover 1989. Linda testified that the children were

' The testimony on the issue of grounds is taken from a By-

stander’s Report of Proceedings submitted by the respondent

and certified by the trial court.

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App. 3

fighting and that Jay threw Mimi on top of a toy castle,

cutting her thigh. The fifth occurred during the summer

of 1990 while Jay was on a month-long business trip to

Australia. Linda testified that Jay forgot to leave

money for the family. She stated that when he called

and she told him that she had no money, he told her to

borrow on the line of credit on the house. Linda testi-

fied that she borrowed $5,000 and used that money to

pay outstanding bills, food bills and doctor bills; and

that her husband later accused her of forgery against

the account. The sixth incident testified to by Linda

occurred on April 23, 1991. Linda testified that on that

date, Jay had put Mimi into the closet because she had

been disobedient.” Linda further testified that she had

not given her husband any reason to engage in the con-

duct she had described.

At the conclusion of Linda’s direct examination, Jay’s

counsel attempted to cross-examine Linda regarding

entries she had made in her diary. The trial judge in-

terrupted, stating that grounds of irreconcilable differ-

ences could not be contested. The court then ordered a

short recess. Thereafter, the trial judge returned indi-

cating that grounds for irreconcilable differences had

been proved by petitioner’s testimony. The court indi-

cated that the statutory ground of irreconcilable dif-

ferences did not require proof that the petitioner was

2 During the custody hearing, the respondent admitted to

placing a plate of food on the petitioner’s head and placing

Mimi in the closet as a disciplinary measure. He also stated

that he had given petitioner money for expenses before he left

on the business trip and that he did not sign an affidavit of

forgery with the bank regarding the funds that the petitioner

withdrew.

App. 4

free from fault. Counsel for respondent then posed two

questions to the judge. He asked whether the court’s

decision would be the same if Linda had not testified to

the specific incidents and had only testified that the

parties had lived separate and apart, that attempts at

counselling took place before the two-year separation

were a “total dismal failure” and that in her mind there

was no chance of reconciliation. In his second question,

counsel asked whether the court’s decision would be the

same if there had been no testimony as to the specific

incidents but there had been direct testimony by the

petitioner or through her journals that her feelings for

the respondent were ambivalent. The trial court an-

swered both questions in the affirmative.

The case proceeded to the custody phase when, after

several days of testimony, the parties executed a joint

parenting agreement (JPA) drafted by the attorney for

the minor children. The JPA was entered by trial court

order on April 11, 1994. In that agreement, the parties

provided that Linda would be the permanent custodial

parent for the minor children and that, as custodial

parent, she would have responsibility for day-to-day

decisions concerning the health, education and welfare

of the children. The agreement further provided that

Jay would have responsibility for decisions concerning

the children’s religious practices. It provided that the

parties would consult each other on all significant de-

cisions.

In the JPA the parties acknowledged that they and

their children were of the Orthodox Jewish faith and

that it was in the best interests of the children “that

their social and cultural life style at all times adhere to

App. 5

the tenets of the Orthodox Jewish lifestyle and teach-

ings.” The petitioner and respondent agreed that Mimi

would attend the P’tach program at the Arie Crown

School and that T’hila would attend Hillel Torah

School. They agreed that neither parent would with-

draw the children from these schools without the writ-

ten permission of the other. Primary residence was to

be with Linda but Jay was given liberal visitation

which included alternate weekends from Friday after-

noon until Sunday evening and every Wednesday even-

ing until Thursday morning. Jay was also given the

right to have dinner with one child, on an alternating

basis, every Monday evening. With respect to the chil-

dren’s birthdays, the parties agreed to “co-host” and

equally share the expenses of each child’s birthday

parties at which both parents would be in attendance.

The parties further agreed to afford each other the

opportunity to care for the children in the event that

surrogate care-givers were needed for periods longer

than 4 hours. They agreed to refrain from discussing

each other in a derogatory or judgmental fashion in the

presence of the children. Finally, the parties agreed to

mediate any conflicts or disputes with a rabbi named in

the JPA.

On June 10, 1994, the respondent filed an emergency

petition for rule to show cause alleging various viola-

tions of the JPA by the petitioner, including petitioner's

denial of visitation with Mimi, petitioner’s exclusion of

respondent from Mimi’s birthday party, petitioner's

failure to afford respondent the opportunity to care for

the children instead of using a surrogate care-giver,

petitioner's making disparaging remarks about respon-

dent in front of the children, and petitioner’s failure to

App. 6

provide Mimi with required religious instruction. On

June 30, 1994, before hearing on respondent's emergen-

cy petition, the trial court entered judgment of dissolu-

tion of marriage. That judgment included findings as to

grounds, child support, insurance, education expenses,

reviewable maintenance, and division of non-marital

and marital property. It also awarded sole custody to

the petitioner with reasonable rights of visitation to the

respondent pursuant to the JPA which was incorporat-

ed into the judgment.

On July 29, 1994 the respondent filed a petition for

reconsideration and for clarification. He filed an amend-

ed petition on November 21, 1994. In addition to seek-

ing review of the monetary issues, the respondent

sought vacation of the JPA, arguing that the petitioner

had fraudulently induced him to end the custody hear-

ing and enter into the JPA by making promises in the

JPA that she did not intend to keep. The trial court

conducted a hearing on the amended petition for recon-

sideration on January 29, 1995. With respect to the

fraud allegation, the court indicated that it would limit

testimony and not consider evidence of what happened

subsequent to entry of the JPA. According to the court,

the latter evidence, while relevant to the issue of modi-

fication, which was not pled, was irrelevant to the issue

of fraud. At the conclusion of the hearing, the court

found that the respondent failed to establish fraud on

the part of the petitioner. By order dated February 9,

1995, the court amended various portions of the judg-

ment for dissolution of marriage but denied respon-

dent’s request to vacate the JPA.

*

§

»

|

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-

:

App. 7

I. Joint Parenting Agreement

On appeal, the respondent argues that the trial court

erred in refusing to vacate the joint parenting agree-

ment. He argues that the court should not have entered

the JPA because testimony at the custody hearing in

progress at the time the JPA was entered showed that

the parties could not cooperate. He also argues that the

court should have vacated the JPA prior to its entry of

fina! judgment under the court’s inherent authority to

vacate, amend and modify interlocutory orders and that

the court should have taken additional testimony on

the custody issue. He contends that, based upon the

pre-JPA evidence, post-JPA evidence presented at the

fraud hearing, and additional evidence yet to be pre-

sented, the best interests of the children may have

required the court to award custody to him.

Initially we note that the parties agreed to the JPA

before presenting it to the court for entry and that the

court, before entering the joint parenting agreement,

heard five days of testimony on the issues of grounds

and custody. That testimony included extensive testi-

mony of the parties; the court’s in-chambers interviews

of the minor children; psychiatric evaluations of the

parties and the minor children conducted by Doctor

Alan J. Ravitz, a clinical psychiatrist, which the parties

stipulated could be considered by the court for custody

purposes; and 1990 and 1994 reports of Doctor Rita P.

Sussman, a clinical psychiatrist, who evaluated Mimi,

the eldest daughter.

It is well established that the trial court is in a

superior position to evaluate the evidence and deter-

mine the best interest of the children; and its decision

App. 8

in that regard will not be reversed unless it is contrary

to the manifest weight of the evidence. Jn re Marriage

of Doty, 255 Ill. App. 3d 1087, 629 N.E.2d 679 (1994);

In re Marriage of Petraitis, 263 Ill. App. 3d 1022, 636

N.E.2d 691 (1993). In child custody cases, there is a

strong presumption in favor of the result reached by

the trial court. Jn re Marriage of Hahin, 266 Ill. App.

3d 168, 644 N.E.2d 4 (1994); In re Marriage of Wright,

212 Ill. App. 3d 392, 571 N.E.2d 197 (1991).

The respondent acknowledges these principles but

argues that the trial court should not have “rubber-

stamped” the JPA because the parties’ testimony prior

to entry of the JPA showed their inability to cooperate.

In support of his contention that entry of the JPA was

against the manifest weight of the evidence, he cites to

cases dealing with joint custody awards. E.g., In re

Marriage of Swanson, 275 Ill. App. 3d 519, 656 N.E.2d

215 (1995); In re Marriage of McCoy, 272 Ill. App. 3d

125, 650 N.E.2d 3 (1995); In re Marriage of Dobey, 258

Ill. App. 3d 874, 629 N.E.2d 812 (1994); Kocal v. Holt,

229 Ill. App. 3d 1023, 595 N.E.2d 169 (1992). Those

cases all stand for the proposition that joint custody

should not be awarded when the parties have a history

of disagreement and lack capacity to cooperate.

Here the parties did not agree to joint custody in

their JPA nor did the court make such a custody award.

The JPA provided that the petitioner would be the sole

custodial parent and gave the respondent liberal vis-

itation rights and responsibility for decisions concerning

the minor’s religious practices. While the JPA provided

for the respondent’s participation in the lives of his

minor children, responsibility for day-to-day decisions

concerning their health, education and welfare was

Acosta

App. 9

delegated to the custodial parent, the petitioner. Given

the pre-JPA evidence of discord between the parties,

the trial court could determine that the JPA, with its

award of custody to the petitioner with liberal visitation

rights to the respondent, was in the best interest of the

minor children in accordance with section 602 of the

Illinois Marriage and Dissolution of Marriage Act (the

Act) (Ill. Rev. Stat. 1991, ch. 40, par. 602 now codified

at 750 ILCS 5/602 (West 1996)). So, too, the award of

sole custody to the petitioner rather than the respon-

dent was not against the manifest weight of the evi-

dence since the parties asked for that disposition and

since there was ample evidence to award custody to the

petitioner, the mother of the minors who had been their

custodial parent throughout the proceedings, except for

a two-month period of time where the parties shared

joint custody. The trial court was in the best position to

evaluate the temperaments, personalities and capa

bilities of the parties in making its custodial deter

mination. Petraitis, 263 Ill. App. 3d 1022, 636 N.E.2d

691. On the basis of the record before us, we cannot say

that the trial court’s determination in that regard was

against the manifest weight of the evidence.”

* Respondent also cites the cases of In re Marriage of Michae:

226 Ill. App. 3d 1088, 590 N.E.2d 998 (1992) and Jn re Mar

riage of Breyley, 247 Ill. App. 3d 486, 617 N.E.2d 423 (1993

for the proposition that a trial court cannot “rubber-stamp” in

appropriate agreements of the parties. However, for the rea

sons discussed, we do not find that the trial court merely “rub-

ber-stamped” the JPA signed by the parties in the instant

case. Moreover, the cases cited by the respondent have no rele

vance to the facts here. In Michael, the trial court erred in

finding an extra-judicial agreement by the parties to modify

child support enforceable. Similarly, the Breyley case has little

(continued

App. 10

The respondent next contends that the trial court

should have sua sponte vacated the JPA and refused to

incorporate it in the judgment for dissolution of mar-

riage once the court “heard evidence” that the petition-

er had violated the JPA. In support of this contention,

the respondent argues that the court had inherent

power to vacate, amend, review or modify its interlocu-

tory custody order entering the JPA before final judg-

ment of dissolution. Respondent is incorrect. In reject-

ing this contention, we note that the respondent does

not denote what evidence the trial court “heard” before

entry of judgment. Our review of the record shows that,

while the respondent filed a rule to show cause against

the petitioner alleging JPA violations approximately

two weeks before judgment was entered, no hearing on

that petition occurred prior to entry of judgment. Sec-

ond, we note that the court’s order on April 11, 1991

entering the JPA was a final order. A custody order

entered prior to judgment of dissolution, while not final

for purposes of appeal, is final for purposes of modifica-

tion when the substance of the order indicates its

finality. Under those circumstances, a final custody

order can only be modified pursuant to the strict stand-

ards of section 610 of the Illinois Marriage and Dissolu-

tion of Marriage Act (Ill. Rev. Stat. 1991, ch. 40, par.

610 now at 750 ILCS 5/610 (West 1996)) which requires

3 (...continued)

relevance to the case at bar. In that case the parties were

granted post-judgment relief in the form of vacatur of their

marital settlement agreement because the written agreement

did not express their actual agreement regarding child support

and custody. Here there is no contention regarding the inac-

curacy of the written JPA.

App. 11

proof of child endangerment or changed circumstances.

See In re Marriage of Goldman, 196 Ill. App. 3d 785,

554 N.E.2d 1016 (1990). Here, it is clear that the order

entering the JPA on April 11, 1991 was a final order in

that the custody issue was resolved by the parties and

the hearing on custody then in progress was terminat-

ed. There is nothing in the record to suggest that the

custody order was temporary or that the issue of cus-

tody was not fully adjudicated. See also Jn re Marriage

of Thompson, 96 Ill. 2d 67, 449 N.E.2d 88 (1983) (trial

court did not abuse its discretion in failing to reopen

proofs on custody issue prior to entry of judgment). As

a result, the order could only be modified in accordance

with section 610, a remedy that the respondent is not

seeking.

Moreover, the cases cited by the respondent to sup-

port his contention that the court’s order entering the

JPA was nonfinal and subject to modification prior to

entry of the judgment for dissolution do not provide

that support. The case of Hart v. Valspar Corp., 252 Ill.

App. 3d 1005, 625 N.E.2d 220 (1993) did not involve a

JPA or a marriage dissolution proceeding. It involved

the trial court’s reconsideration of its order denying

defendants, motion to dismiss where there was newly

discovered evidence. Here there was no newly discov-

ered evidence; rather, the respondent alleged post-JPA

uncooperative conduct by the petitioner that was sim-

ilar in nature to that which occurred prior to entry of

the JPA and which the trial court was aware before

that entry. The cases of In re Marriage of Oertel, 216

Ill. App. 3d 806, 576 N.E.2d 435 (1991) and In re Mar-

riage of Leopando, 96 Ill. 2d 114, 449 N.E.2d 137 (1983)

also are of no avail. Oertel and Leopando involved the

App. 12

appealability of child custody orders entered before

final judgment. Appealability is not in issue here.

Oertel is further distinguishable because there the

parties agreed to terminate their joint parenting agree-

ment which provided for joint custody during post-

judgment modification proceedings governed by section

610 of the Act. Here, the parties did not agree to ter-

minate their JPA and respondent is seeking vacatur of

the JPA in the original dissolution proceedings gov-

erned by section 602 of the Act.

As an additional reason for vacatur of the JPA, the

respondent argued in his amended motion for reconsid-

eration that he was fraudulently induced by the peti-

tioner to sign the JPA. He alleged in that motion that

the petitioner had entered into the JPA “in a deliberate

effort to defraud [him] of his right to a contested hear-

ing on custody.” He also alleged:

“a. That [petitioner] fraudulently misled and

fraudulently coerced [respondent] into sign-

ing the Joint Parenting Agreement by offer-

ing [respondent] substantial and liberal vis-

itation, privileges with his minor children, in

exchange for [respondent] abandoning his

efforts to present evidence to this Court to

obtain custody of his minor children; and

b. [Petitioner] has engaged in a repeated and

continuous course of conduct showing a lack

of integrity, as well as deceitfulness which,

had this trial court been advised of this

conduct prior to the entry of its Joint Par-

enting Agreement on April 11, 1994, never

would have entered such a Joint Parenting

Agreement or made the same custody deter-

mination as found on page 2 paragraph 2 of

App. 13

its Judgment of Dissolution of Marriage en-

tered June 30, 1994.”

Respondent alleged that, had he been aware that after

signing the JPA “he still would have been unable to

visit with his minor child, MIMI, on a regular and

continuing basis” he would not have signed the JPA.

A settlement agreement incorporated into a dissolu-

tion judgment is legal and binding on its face and is

presumed valid. That presumption can be overcome by

clear and convincing evidence that there was fraud in

the inducement. Jn re Marriage of Goldberg, 282 Ill.

App. 3d 997, 668 N.E.2d 1104 (1996) (marital settle-

ment agreement); Sarron v. Lyons, 247 Ill. App. 3d 819,

617 N.E.2d 1247 (1993) (oral custody agreement). In

order to establish fraud in the inducement, the com-

plaining party must show that the other party falsely

stated a material fact; the fact was intentionally mis-

stated or concealed to induce the complaining party to

act; and that the complaining party detrimentally relied

upon the misstatement or the nonexistence of the fact.

Goldberg, 282 Ill. App. 3d 997, 668 N.E.2d 1104. See

also In re Marriage of Fricke, 174 Ill. App. 3d 191, 528

N.E.2d 370 (1988). An inference of fraud will not arise

merely from proof of nonperformance of a promise.

However, evidence that the promisor did not even make

a pretense of carrying out his promise or evaded and

refused to perform it may give rise to an inference of

intention not to perform. Fricke, 174 Ill. App. 3d at 194,

528 N.E.2d at 372. The decision to modify a settlement

agreement rests in the circuit court’s sound discretion.

Goldberg, 282 Ili. App. 3d 997, 668 N.E.2d 1104.

At that hearing on respondent’s motion to vacate the

JPA, the respondent testified that his reason for sign-

App. 14

ing the JPA was to obtain liberal visitation with his

children which was being denied to him by the petition-

er. He then testified to incidents wherein the petitioner

violated various terms of the JPA including those with

respect to visitation. The petitioner confirmed instances

wherein respondent did not have visitation with Mimi

after the JPA was signed. She stated, however, that

Mimi did not want to go with the respondent and that

the relationship between Mimi and respondent had

broken down. The petitioner also testified that after the

JPA was signed she met with a therapist concerning

Mimi and that she inquired as to what she could do to

bring Mimi and the respondent closer together. She

testified to various instances in which, on the advice of

the therapist, she attempted to further the relationship

between the respondent and Mimi. The testimony of

both parties showed that the respondent’s visitation

with T’Hilla, the younger daughter, was generally in

compliance with the terms of the JPA.

At the conclusion of the hearing, the court found that

the respondent failed to establish fraud and denied

respondent’s request for vacatur. That decision was not

an abuse of discretion. No direct evidence was present-

ed regarding the petitioner’s intent to defraud respon-

dent by signing the JPA knowing that she did not in-

tend to comply with its terms. The only circumstantial

evidence presented by the respondent was testimony

that the respondent did not obtain the liberal visitation

rights promised him under the JPA, specifically that he

was denied visitation with Mimi. That evidence did not

create an inference of fraud since, at best, it was proof

of nonperformance rather than proof of total lack of

compliance with the JPA. See Fricke, 174 Ill. App. 3d

App. 15

at 194, 528 N.E.2d at 372 (intention not to perform

may be inferred from fact that promisor did not even

make a pretense of carrying out his promise or evaded

or refused to perform it). More convincingly, the evi-

dence did not clearly establish that respondent's in-

ability to have visitation with Mimi in accordance with

the JPA was caused by the petitioner. The petitioner

testified that Mimi refused to go with the respondent.

There was no testimony that the petitioner encouraged

that refusal or in any way prevented the visitation. To

the contrary, there was evidence to show that the pe-

titioner tried to further the relationship between the

respondent and Mimi. Absent proof of total interference

and noncompliance with the JPA, the respondent could

not establish fraud and was bound by the JPA. See

Sarron v. LVons, 247 Ill. App. 3d 819, 617 N.E.2d 1247

(1993) (petitioner bound by oral custody agreement in

absence of fraud).

II. Property Division

The respondent next argues on appeal that the trial

court’s reimbursement to the marital estate for expens-

es it made on behalf of petitioner’s non-marital estate

and the court’s division of marital property was against

the manifest weight of the evidence.

The principal items of property involved in this issue

are three parcels of real estate: a home in Pacific

Grove, California; a home in San Jose, California; and

the marital home on Whipple Street in Chicago, Illinois.

The testimony at trial showed that the petitioner inher-

ited the Pacific Grove home in 1984 upon her mother’s

death. Rental income was collected beginning about

App. 16

March 1984. The respondent testified that the rent

from that house was deposited in the parties, joint

account for about two years and that thereafter the

petitioner deposited the rent checks in her separate

account. The rent collected between 1984 and 1988

totalled $43,925.00. The petitioner testified that, during

the years of 1983 to 1987, monies totalling $17,500,

derived from sources listed in the parties, tax returns,

were used to pay the expenses such as the mortgage

and real estate taxes. The respondent also testified that

the mortgage payments and payments for insurance

and water for the Pacific Grove house were paid during

1983 through 1987, from funds in the parties, joint ac-

count. He stated that repairs on that property totalling

$3392 were paid with a combination of marital funds

and respondent’s non-marital assets although he did

not know in what proportion. The respondent testified

that the mortgage totalling $5,924.98 was paid off in

1987 with joint funds.

The court’s judgment for dissolution found that the

Pacific Grove house, valued at $250,000, was peti-

tioner’s non-marital property but ordered the petitioner

to reimburse the marital estate in the amount of

$7,213.98.

The San Jose property was originally owned by the

petitioner and her second husband (the respondent was

her third husband). Their divorce decree entitled either

party to buy out the other’s interest. The petitioner

testified that she bought her former husband’s interest

in 1982 shortly after their divorce and her marriage to

the respondent using funds given to her by the respon-

dent. According to the petitioner, the respondent gave

her a check in the amount of $26,000 of which $19,000

App. 17

was used for the buy-out and $7,000 was used to reim-

burse her for expenditures she had made toward re-

spondent’s living expenses prior to their marriage. The

respondent testified that he gave petitioner a check in

the amount of $26,375 on June 15, 1982 to enable her

to buy her former husband’s interest in the San Jose

property. At the time he gave her the check, he thought

the entire amount was to be used for that purpose. The

respondent stated that his check to the petitioner was

drawn on a non-marital bank account which held his

inheritance from his deceased father. He denied that

the petitioner paid any of his living expenses prior to

their marriage.

The respondent testified that from June 1982, when

he left California and moved to Chicago for employment

reasons, until January 1983, the mortgage payments on

the San Jose property were paid equally by the peti-

tioner and the respondent. He stated that during the

time petitioner remained in California, which was until

July 1983, the petitioner collected the rents and did not

send the proceeds to him. He stated that, after the pe-

titioner moved to Chicago, the tenants mailed their rent

payments to his office; and he deposited those checks

into the parties, joint account. He stated that all bills,

including the mortgage payments were paid out of the

parties joint account. On cross-examination, however,

he admitted that in 1982 the petitioner made several

mortgage payments on the property from her sole ac-

count and made other payments from their joint ac-

count.

In November 1983, the petitioner conveyed a 50% in-

terest in the San Jose property to the respondent. Also

at the time a second mortgage was obtained on the San

App. 18

Jose property in the amount of $22,000. That mortgage

was obtained shortly after the parties acquired the

Whipple Street marital home in Chicago. According to

the respondent, the second mortgage on the San Jose

property was paid off in 1985 using respondent’s em-

ployment income. In 1988, the first mortgage totalling

$61,697.11 was paid off. The respondent testified that,

although the certified check was issued from the par-

ties, joint account, the funds for that transaction had

been transferred to the joint account from respondent’s

non-marital account immediately prior thereto.

In February 1990, the petitioner deeded her one-half

interest in the San Jose property to respondent. The re-

spondent thereafter obtained a $35,000 mortgage on the

San Jose property. He obtained the $35,000 mortgage

for purposes of buying other property but, when that

did not occur, he used the funds as follows: $10,000 to

reduce the San Jose mortgage; $5,000 toward the line

of credit on the marital home in Chicago; and the re-

mainder for family expenses. The respondent admitted

on cross-examination that, at the time petitioner deed-

ed to him her 50% interest in the San Jose property, he

signed a document in which he promised to give peti-

tioner up to $150,000 in consideration for the transfer

of her one-half interest to him.

In the judgment for dissolution, the trial court found

that the San Jose property had a market value of

$215,000 and equity of $193,000. It ordered that the

property be sold and the proceeds divided equally after

first giving petitioner $21,501.62, her one-half equity in

the Whipple Street marital home less certain indebted-

ness to the respondent. The latter amount was reduced

to $18,555.17 in the court’s post-trial order amending

eee

App. 19

judgment. In making the award, the trial court found

that respondent’s substantial contribution of non-mar-

ital funds to the asset was a gift to the marriage. The

court further found that petitioner’s conveyance to re-

spondent was not a gift.

The Whipple Street property, which was the marital

home, was purchased in 1983. Respondent paid the

$7,000 downpayment using his non-marital funds. Re-

spondent took the property in his name only and as-

sumed the seller’s existing mortgage. Although respon-

dent testified that he paid the downpayment using non-

marital funds, he admitted on cross-examination that

another check totalling $16,825, made payable to the

sellers, was drawn on the marital account. During

cross-examination, the respondent was shown a docu-

ment which purportedly showed that a deposit was

made into the parties’ joint account on November 10,

1983. He denied that that deposit was related to the

second mortgage of the San Jose property which was

obtained in Nover ber 1983. Respondent testified that

the balance of the mortgage on the Whipple Street

property was $39,000 and that $15,000 was owed on an

equity line of credit.

The trial court found the equity in the Whipple Street

property to be $63,000 and ordered that it be divided

equally. The court further found that the respondent

presented no documentary evidence showing that the

downpayment came from non-marital funds and did not

overcome the presumption that the property was mar-

ital.

On appeal, respondent argues that the marital estate

reimbursement of $7,213.98 from the Pacific Grove

lait

App. 20

property was grossly undervalued and was contrary to

the manifest weight of the evidence. He argues that the

evidence showed that all mortgage payments on the

Pacific Grove property were made from either marital

funds from a joint account or from his non-marital in-

heritance. He argues that he paid the mortgage balance

of $5,924 and paid repair costs of $3,392 using marital

and non-marital funds. He further argues that he paid

$17,500 to maintain the property. He seeks reimburse-

ment to the marital estate for these demonstrable con-

tributions which he contends exceeds $27,000.

In response, the petitioner argues that the respondent

failed to establish by clear and convincing evidence his

contributions of non-marital funds toward the Pacific

Grove property. (This response misconstrued respon-

dent’s argument as he was not seeking reimbursement

to his non-marital estate.) She also argues that the

evidence supports the trial court’s conclusion that

the marital estate be reimbursed the total sum of

$7,213.98.

Initially, we note that the appellant has failed to

provide this court with a complete transcript of the

proceedings which occurred in the circuit court. It ap-

pears that at least one transcript, that for a February

1, 1994 hearing, and perhaps two are missing. Seem-

ingly, the hearing on property issues began on Febru-

ary 1 as the transcript for the hearing on February 2,

1994 begins with a continuation of respondent’s cross-

examination of the petitioner and refers to petitioner’s

testimony that occurred “yesterday.” There is no tran-

script containing petitioner’s direct testimony during

her case in chief on the property issues or the begin-

App. 21

ning of her cross-examination by respondent's counsel.*

In addition to the absence of transcripts, none of the

numerous exhibits introduced into evidence by both of

the parties have been included in the record on appeal.

Presumably, the exhibits showed tne parties, deposits,

withdrawals and check issuances with respect to their

various marital and non-marital accounts and with re-

spect to their income and disbursements for their real

estate properties. The appellant has the burden to pre-

sent a sufficiently complete record of the proceedings at

trial in order to support appellant’s claims of error.

Since the appellant has not done so, any doubts which

may arise from the incompleteness of the record will be

resolved against him. See Moniuszko v. Moniuszko, 238

Ill. App. 3d 523, 525 n.1, 606 N.E.2d 468, 470 n.1

(1992).

Section 503(c) of the Illinois Marriage and Dissolution

Act (Ill. Rev. Stat. 1991, ch. 40, par. 503(c), now codi-

fied at 750 ILCS 5/503(c) (West 1996)) provides for the

disposition of commingled marital and non-marital

* The pages of the February 2, 1994 transcript are numbered

with the prefix “F.” There is no transcript bearing an “E”

prefix in the record nor is there a transcript bearing the “G”

prefix. Also, the February 2, 1994 transcript ends with the set-

ting of the next hearing date for February 10, 1994. However,

the next transcript in the record is for the hearing occurring

on March 3, 1994 which bears a “H” prefix. That transcript

2!so refers to petitioner's testimony which occurred “yester-

day.” There are no transcripts for hearings dated February 10

or March 2, 1994, one of which could have borne the “G”

prefix. It may also be, however, that no hearings occurred on

either February 10 or March 2 since the February 2, 1994

transcript ends with respondent’s cross-examination of peti-

tioner and the March 3, 1994 hearing begins with the resump-

tion of respondent’s cross-examination of the petitioner.

App. 22

property. In accordance with subsection (3) of that pro-

vision, an estate must reimburse another estate when

the latter makes a contribution to it notwithstanding

any transmutation, provided, however, “that no such

reimbursement shall be made with respect to a contri-

bution which is not retraceable by clear and convincing

evidence, or was a gift * * *.” Ill. Rev. Stat. 1991, ch.

40, par. 503(c\3) now at 750 ILCS 5/503(cX3) (West

1996). A circuit court’s division of property will not be

reversed unless it is against the manifest weight of the

evidence (In re Marriage of Swanson, 275 Ill. App. 3d

519, 656 N.E.2d 215 (1995)); that is, where “no reason-

able man would take the view adopted by the trial

court” (In re Marriage of Pancner, 111 Ul. App. 3d 546,

550, 444 N.E.2d 653, 656 (1982)). Credibility issues are

reserved to the province of the trial court, which had

the opportunity to hear the evidence and observe the

demeanor of the witnesses. Jn re Marriage of Nagel,

133 Ill. App. 3d 498, 478 N.E.2d 1192 (1985).

Here, there is no dispute that the Pacific Grove prop-

erty was the petitioner’s non-marital asset which she

inherited from her mother. The respondent disputes the

amount of reimbursement to the marital estate for its

contributions to that non-marital asset. He argues that

the amount of reimbursement should have been $27,000

rather than $7,213.98. Apparently, the $27,000 figure

is based upon respondent’s allegations that the marital

estate paid $17,500 to maintain the property; $3,392 for

repairs; and $5,924 to pay off the mortgage.

The testimony at trial showed that rental income

from the Pacific Grove property was collected beginning

in 1983. The respondent testified that rents collected

during the period of 1984 and 1988 totalled $43,925. He

App. 23

also testified that the rental income from the Pacific

Grove property was deposited in the parties’ joint ac

count for about the first two years. There was no dis-

pute that the mortgage amounting to $5,924.98 was

paid off in 1987 using funds from marital account.

Based upon this evidence and certain documentary

evidence not before this court, the trial court found that

the marital estate had expended $5,924.98 toward the

final mortgage payment and $1,289 in other expenses

on the Pacific Grove property during 1987 at a time

when it was no longer receiving the Pacific Grove prop

erty’s rental income. The court found that prior to 1957

the marital estate had received rental income from the

Pacific Grove property and that that income was a gift

Due to the absence of a complete record on appeal, we

must presume that the documentary evidence submit-

ted by the parties at trial would have supported the

trial court’s finding that the marital estate received the

Pacific Grove property’s rental income until 1987 de

spite respondent’s testimony that the petitioner kept

the rental income after about two years. See Mon:

uszko, 238 Ill. App. 3d at 525 n.1, 606 N.E.2d at 470

n.1. We must also presume that the documentary ev)

dence would show that the rental income from the

Pacific Grove property exceeded that property's expens

es which were paid with funds from the marital ac

count. It is that excess which was presumed by the tria!

court to be a gift to the marital estate. It seems most

obvious that, in receiving the benefit of the renta!

income, the marital estate simultaneously assumed the

burden of the corresponding expenses. Thus, since the

marital estate was receiving rental income from the

Pacific Grove property prior to 1987, it was not entitled

App. 24

to reimbursement for the expenses it paid on behalf of

the Pacific Grove property during that same period. It

was only entitled to recover those expenses that it paid

when it was no longer receiving the rental income; that

is, those expenses paid in 1987. Thus, the trial court’s

allocation of reimbursable expenses to the marital es-

tate was not undervalued or contrary to the manifest

weight of the evidence. Ill. Rev. Stat. 1991, ch. 40, par.

503(c)(3).°

Next the defendant argues that the trial court erred

in dividing the marital property. He argues that the

court did not consider the value of the non-marital

property set aside to each spouse prior to dividing the

marital property because the petitioner was awarded

$247,000 in non-marital property and he was awarded

less than $3,000 in non-marital property, namely, the

proceeds remaining from his inheritance from his father

° The fact that the expenses of the non-marital asset were

paid by the marital estate after the marital estate had been

gifted with income derived from the non-marital asset distin-

guishes this case from Jn re Marriage of Ryman, 172 Ill. App.

3d 599, 527 N.E.2d 18 (1988), a case cited by the respondent.

In Ryman, the marital estate was entitled to reimbursement

for its payment of premiums for the husband’s non-marital

insurance policies because the premiums were paid by the

marital estate using funds that had not been derived from the

non-marital asset. The case of Jn re Marriage of Thacker, 185

Ill. App. 3d 465, 541 N.E.2d 784 (1989) also is of no support to

the respondent. There the court found that the husband’s

payment of the downpayment on the marital home using non-

marital funds retained its non-marital identity and that the

husband rebutted the gift presumption. That case has no rele-

vance here where the marital estate, which made mortgage

payments and other expenditures on behalf of the non-marital

estate, had received income from the non-marital estate in ex-

cess of the marital estate’s expenditures.

App. 25

which at one time totalled $170,000. He also argues

that the division of marital property was improper be-

cause he was awarded less than one-half of his contri-

butions to the marital property. He specifically argues

that until 1991 he was the sole support for the family;

that the petitioner did not contribute her non-marital

income from the Pacific Grove property to the marital

estate; that he expended almost all of his non-marital

money to acquire the marital estate and to “save” the

San Jose property. He further argues that the inequita-

ble distribution of property is not warranted by other

factors considered in section 503(d) of the Act such as

their income-earning abilities. According to the respon-

dent, the parties had equal abilities to earn income.

The property distribution shows that the trial court

awarded the petitioner the Pacific Grove property, a

non-marital asset, valued at $250,000 less reimburse-

ment to the marital estate of $7,213.98. The respondent

was awarded various bank accounts totalling $2,950 as

his non-marital property. The San Jose property, hav-

ing an equity of $193,000, and the Whipple Street prop-

erty, having an equity of $63,000, were determined to

be marital property. The court ordered that the San

Jose property be sold and that the proceeds be equally

divided between the parties. The court awarded the

Whipple Street home to the respondent but ordered him

to pay petitioner her one-half interest of $31,500 in

cash less certain indebtedness to him.

Initially, we note that respondent’s contention that he

was awarded less than one-half of the marital estate is

baseless since as discussed above the court divided the

marital estate equally between the parties. The respon-

dent’s contention that he was awarded less than one-

App. 26

half of his contribution to the estate is also baseless. In

this regard he argues that he expended almost all of his

non-marital money to acquire the marital estate and to

“save the San Jose property shortly after the marriage.”

With respect to the San Jose property, the court found

that the value of respondent’s interest in the San Jose

property at the time he contributed his non-marital

funds was far greater than the amount he paid to pur-

chase his interest. The court also found that respondent

used non-marital assets to retire the $61,697.11 mort-

gage on the San Jose property in October 1988. As to

the latter payment, the court found that the payment

was a gift to the marital estate. With respect to the

Whipple Street marital home, the court found that the

respondent presented no documentary evidence to sub-

stantiate his claim the down payment for that property

was made with his non-marital funds.

As noted above, an estate which contributes assets to

another estate shall be reimbursed from that estate

provided such contribution is traceable by clear and

convincing evidence and was not a gift to the marital

estate. Ill. Rev. Stat. 1991, ch. 40, par. 503(c)\(3), now

codified at 750 ILCS 5/503(c)(3) (West 1996). When non-

marital funds are contributed to a co-owned asset, there

is a rebuttable presumption that the contribution of

non-marital funds to a marital asset held in co-owner-

ship constitutes a non-reimbursable gift. Il. Rev. Stat.

1991, ch. 40, par. 503(b), now codified at 750 ILCS

5/503(b) (West 1996). E.g., In re Marriage of Nagel, 133

Ill. App. 3d 498, 478 N.E.2d 1192 (1985); Van Ness v.

Van Ness, 136 Ill. App. 3d 185, 482 N.E.2d 1049 (1985).

The presumption of gift can only be rebutted by clear

and convincing evidence. Nagel, 133 Ill. App. 3d 498,

478 N.E.2d 1192.

App. 27

The testimony at trial showed that the respondent

paid the balance of the San Jose mortgage with his

non-marital funds to enhance the petitioner’s credit

rating. As the trial court found, this testimony does not

rebut the presumption of a gift; it buttresses petition-

er’s contention that respondent’s funds were advanced

as a gift to the marital estate to maintain harmony in

the marriage. Moreover, as to the Whipple Street mar-

ital home, the court found that the respondent did not

substantiate his claim that he used non-marital funds

to make the downpayment. The trial court viewed the

credibility of the witnesses and the exhibits they in-

troduced (the latter of which, as discussed above, were

not included in the record on appeal). We cannot say

that the conclusions reached, based on the evidence

included in the record on appeal, are against the mani-

fest weight of the evidence. Moreover, with respect to

the documentary evidence that has not been submitted

to this court, we must presume that it supports the

trial court’s determination. Moniuszko, 238 Ill. App. 3d

at 525 n.1, 606 N.E.2d at 470 n.1.

The respondent argues that the trial court did not

consider his “ten years of income that built the marital

estate and supported the family.” This argument fails

to realize that it was respondent’s income contributions

to the marital estate that entitled him to an award of

a portion of the marital estate. See Ill. Rev. Stat. 1991,

ch. 40, par. 503(d)(1) now at 750 ILCS 5/503(d)(1) (West

1996). It also ignores petitioner’s contributions to the

acquisition and preservation or the marital property,

such as her contributions to the family unit as a home-

maker and her contributions of a portion of the rental

income from the Pacific Grove property. Finally, it

App. 28

ignores the other factors listed in section 503(d) of the

Act relative to the division of marital property such as

the economic circumstances of each spouse when the

division of property becomes effective; the occupation,

vocational skills, employability and needs of each of the

parties; the custodial provisions for the children; and

the reasonable opportunity of each spouse for future

acquisition of capital assets and income. See /n re

Marriage of Mayzner, 144 Ill. App. 3d 645, 494 N.E.2d

615 (1986).

The respondent argues that the parties, income-earn-

ing capabilities are near equivalent. He states that his

annual net income is $44,000 while the petitioner’s

annual gross income is $25,000. First, we note that to

avoid distortion the comparison should involve the net

income of both parties. when their net income figures

are compared, the differential between the two figures

is even greater than that professed by the respondent

since petitioner’s net income would be less than her

gross income. Second, respondent’s net income is un-

derstated. Based upon the court’s child support award

of $925 a month for the two children (which the court

stated was 20% of respondent’s net income), respon-

dent’s income would be closer to $55,400. Thus, the

disparity in incomes is even greater than that professed

by the respondent. In addition to the dollar disparity,

we note that the trial court found that the parties pos-

sessed different educational backgrounds and skills.

The record shows that the respondent possessed a doc-

torate in psychology and was earning his livelihood in

the computer field, whereas the petitioner had not yet

completed her undergraduate degree in education, was

working as a substitute teacher, and during the mar-

App. 29

riage had worked only on a part-time basis and earned

very low wages. See Mayzner, 144 Ill. App. 3d 645, 494

N.E.2d 615. Moreover, while the petitioner’s income

would be supplemented by rental income received from

the Pacific Grove property, the respondent’s income

would be supplemented by rental income from the base-

ment apartment of the Whipple Street property. The

differential between the two rental incomes would not

require a greater apportionment of the marital property

to the respondent given the other factors enumerated in

section 503(d) discussed above.

The cases cited by the respondent do not require a

contrary result. In In re Marriage of Carney, 122 Ill.

App. 3d 705, 462 N.E.2d 596 (1984), the court reversed

the trial court’s distribution of the marital property in

equal proportion finding that the distribution was in-

equitable based upon section 503(d) and the circum-

stances of the parties. The court found that the wife’s

health, occupation, vocational skills, and income re-

quired that she be awarded a greater portion of the

marital property. Here, these factors do not weigh in

the respondent’s favor. There is no issue as to his

health; and his earning capacity, vocational skills, and

income are not less than but greater than the petition-

ers. Similarly, Theeke v. Theeke, 105 Ill. App. 3d 119,

433 N.E.2d 1311 (1981) does not support the respon-

dent’s argument. In that case, the court affirmed the

award of sixty percent of the proceeds from the sale of

the marital home and fifty percent of the husband’s

profit and savings plan based upon the wife’s contribu-

tions to the marriage as a homemaker and given un-

certainty as to her future net earning capacity even

though she was currently earning only $500 less than

App. 30

the husband. Here, as in Theeke, there is no uncertain-

ty as to respondent’s earning, capacity. In fact, Theeke

supports the petitioner’s award based upon her contri-

butions to the marriage as a homemaker and based

upon the fact that her earning capacity is uncertain.

III. Grounds

As his final argument on appeal, the respondent ar-

gues that the trial court erred by refusing to allow him

to present evidence to contest grounds. He argues that

he should have been given the opportunity to cross-

examine the petitioner to disprove her case seeking

dissolution of their marriage on the grounds of irrecon-

cilable differences. He contends that, not having been

allowed to cross-examine her, he was deprived of his

procedural due process rights.

As discussed above, at the time of trial, the petitioner

amended her petition for dissolution of marriage to

change the grounds from mental cruelty to irreconcil-

able differences. At trial, she testified that she and the

respondent had lived separate and apart since July 18,

1991; that irreconcilable differences had arisen between

herself and the respondent; that they had obtained

marriage counseling for three years prior to their

separation and that counseling failed to prevent the

irretrievable breakdown of their marriage; and that

further attempts at reconciliation would not be in the

best interest of the children. The petitioner also testi-

fied to instances of conduct by the respondent which

caused the irreconcilable differences. (Those instances

are described in detail in the fact section of this order.)

App. 31

At the conclusion of the petitioner’s testimony, the

respondent began to cross-examine the petitioner, at-

tempting to discredit her direct testimony with respect

to irreconcilable differences. After calling a brief recess,

the trial court indicated that the petitioner had estab-

lished grounds and refused to allow further cross-ex-

amination of the petitioner on that issue. Respondent’s

counsel then asked the court whether its decision on

grounds would have been the same if the specific inci-

dents of respondent’s alleged misconduct had not been

proved and if testimony could establish that the peti-

tioner’s diary entries indicated that her feelings toward

the respondent were ambivalent. The court responded

in the affirmative.

Procedural due process requires that a party be af-

forded notice and opportunity to be heard and to con-

duct a defense. Blaisdell v. Blaisdeli, 142 Ill. App. 3d

1034, 492 N.E.2d 622 (1986). When a party is seeking

dissolution of the marriage based upon the fault

grounds enumerated in section 401(a)(1) of the Illinois

Marriage and Dissolution of Marriage Act, the respon-

dent must be given the opportunity to defend and prove

provocation by the petitioner or lack of fault. See Jn re

Marriage of Wade, 158 Ill. App. 3d 255, 511 N.E.2d 156

(1987); Yakin v. Yakin, 107 Ill. App. 3d 1103, 436 N.E.

2d 573 (1982) (burden of proving lack of provocation

remains with complaining party but burden shifts to

defendant party once there has been a denial of provo-

cation). This is not true, however, with respect to the

“no-fault” provision of section 401(a)(2) of the Act. As

noted in Jn re Marriage of Smoller, 218 Ill. App. 3d 340,

345, 578 N.E.2d 256, 259 (1991), by adopting that pro-

vision in 1984, the legislature recognized that the pub-

App. 32

lic policy to preserve marriages was “no longer served

when the State’s interest in preserving a marriage is

not also shared by the parties themselves.” In Smoller,

the court reversed the trial court’s refusal to grant dis-

solution of the marriage on the ground of irreconcilable

differences where the petitioner’s testimony was con-

tradicted by the respondent’s testimony and where the

respondent testified that she loved the petitioner and

desired to maintain their marriage. In reversing, the

appellate court held that section 401(a)(2) requires a

finding of irreconcilable differences even where one of

the parties desires to maintain the union and testifies

to that fact at trial. In that regard the court stated:

“Where evidence shows that one spouse clearly

desires to no longer continue to be married to

the other, an irreconcilable difference necessar-

ily arises between them causing an irretrievable

breakdown of the marriage. Indeed, if a greater

difference can exist within the context of a mar-

riage relationship than one between the spouses

where one refuses to continue as the spouse of

the other, we are at pains to conceive of it. As

observed by Justice Robertson of the Supreme

Court of Mississippi:

‘That one spouse out of blindness, ob-

stinance or nostalgia refuses to recog-

nize it hardly means that a marriage

may not in fact * * * be irretrievably

broken. As a matter of common sense,

there can be irreconcilable differences

within a marriage even when one spouse

refuses to accept or recognize that fact.’

(Gallaspy v. Gallaspy (1984), 459 So. 2d 283,

287 (Robertson, J., dissenting).) We believe a

contrary interpretation of section 401(a)(2)

App. 33

would be inconsistent with the intent to provide

a no-fault provision for dissolution of marriag-

es.” Smoller, 218 Ill. App. 3d at 345, 578 N.E.2d

at 259.

Under the no-fault provision of section 401(a)(2), a

marriage may be dissolved without a determination of

the fault of either party where three conditions exist:

the parties have lived separate and apart for a continu-

ous period in excess of 2 years; irreconcilable differenc-

es have caused the irretrievable breakdown of the

marriage; and efforts at reconciliation have failed or

future reconciliation attempts would be impracticable

and not in the best interests of the family. Ill. Rev.

Stat. 1991, ch. 40, par. 401(a)(2), now codified at 750

ILCS 5/401(a)(2) (West 1996); see Ill. Ann. Stat., His-

torical & Practice Notes, Supp. at 19 (Smith-Hurd

1980). An irretrievable breakdown of the marriage has

been defined as where either or both parties are unable

or refuse to cohabit and there are no prospects for a

reconciliation. See In re Marriage of Dowd, 214 Ill. App.

3d 156, 573 N.E.2d 312 (1991). See also Ill. Ann. Stat.,

Historical & Practice Notes, Supp. at 20 (Smith-Hurd

1980).

Here, the petitioner established irreconcilable differ-

ences. She testified that she and the respondent had

lived separate and apart for more than two years; that

irreconcilable differences existed between them; that

their efforts at reconciliation had failed; and that future

reconciliation attempts would not be in the best inter-

ests of the family. Once these elements were estab-

lished, any endeavor by the respondent to disprove

them would have been futile since the court was ob-

ligated to grant dissolution based upon the petitioner's

App. 34

testimony alone. See Smoller, 218 Ill. App. 3d 340, 578

N.E.2d 256. See also Jn re Marriage of Bates, 141 IIl.

App. 3d 566, 490 N.E.2d 1014 (1986) (trial court or-

dered on remand to enter judgment for dissolution of

marriage on irreconcilable differences grounds even

though case proceeded to trial upon grounds of mental

cruelty).

Here, it appears from the questions posited to the

trial court by respondent’s counsel, that respondent

intended to disprove certain of the incidents testified to

by the petitioner, and he intended to prove that at

some time previously the petitioner had indicated in

diary entries that her feelings toward the respondent

were ambivalent. Even if he were allowed to cross-

examine the petitioner on those subjects, he would not

have been able to disprove or discredit petitioner's

testimony that on the date of the hearing she did not

wish to reconcile with the respondent and did not wish

to live together as husband and wife. In this regard, we

note that during the custody hearing, the respondent

did contradict some of petitioner’s testimony with re-

spect to some of the incidents she had described during

the hearing on grounds. He also admitted others. The

record also shows that he admitted that he and the

respondent could not successfully communicate with

each other and that petitioner told him that she was

getting a divorce because she did not “want to deal with

{him].” Independent of this direct testimony is the clear

inference from the record that the parties could not get

along and that their marital problems “have so im-

paired the marriage relationship that the legitimate

objects of matrimony have been destroyed.” Bates, 141

Ill. App. 3d at 570, 490 N.E.2d at 1016. It is clear that

App. 35

irreconcilable differences existed and that the marriage

should be dissolved on that no-fault basis. See Bates,

141 Ill. App. 3d 566, 490 N.E.2d 1014 (trial court or-

dered on remand to enter judgment for dissolution of

marriage on irreconcilable differences grounds even

though case proceeded to trial upon grounds of mental

cruelty).

For the foregoing reasons, the judgment of the circuit

court of Cook County is affirmed.

Affirmed.

GORDON, J. with LEAVITT, P.J. and COUSINS, J.,

concurring.

App. 36

[Entered May 18, 1998]

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT-FIFTH DIVISION

In re the Marriage of: )

)

LINDA EHGARTNER-SHACHTER, )

)

Petitioner-Appellees, )

and ) No. 1-95-1110

)

)

JAY F. SHACHTER, )

)

)

Respondent-Appellant.

ORDER

The Petition for Rehearing of respondent-appellant is

DENIED.

/s/_ Marvin Leavitt

Presiding Justice

Marvin Leavitt

/s/_ Joseph Gordon

Justice Joseph Gordon

/s/_ William Cousins

Justice William Cousins

App. 37

IN THE

SUPREME COURT OF ILLINOIS

October 6, 1998

No. 85713

LINDA EHGARNER-SHACHTER, respondent, v. JAY

F. SHACHTER, petitioner. Leave to appeal, Appellate

Court, First District.

The Supreme Court today DENIED the petition for

leave to appeal in the above entitled cause.

The mandate of this Court will issue to the Appellate

Court on October 28, 1998.

Juleann Hornyak, Clerk

Supreme Court Building

Springfield, Illinois 62701

(217) 782-2035