Opinion
2-20-0216
03-23-2022
In re MARRIAGE OF SHARON C. RATZ, Petitioner-Appellee, and ROGER W. RATZ, Respondent-Appellant.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Du Page County. No. 18-D-1389 Honorable Linda E. Davenport, Judge, Presiding.
BIRKETT JUSTICE delivered the judgment of the court. Justices Hutchinson and Jorgensen concurred in the judgment.
ORDER
BIRKETT, JUSTICE.
¶ 1 Held: Respondent forfeited issues on appeal relating to the division of his Lucent pension and the award of attorney fees because his failure to provide citations to the record in support of factually intensive contentions hindered our review. Respondent forfeited the issue on appeal relating to predistributions because he failed to cite to authority. The trial court's determinations on dissipation were not against the manifest weight of the evidence.
¶ 2 Respondent, Roger W. Ratz, appeals the judgment of the circuit court of Du Page County, regarding both the procedure used in reaching a final judgment and some of the substantive details of the final judgment in the dissolution of marriage from petitioner, Sharon C. Ratz. On appeal, respondent argues that the trial court erred in allocating his Lucent pension plan, both substantively and procedurally, that the trial court's determination regarding dissipation was against the manifest weight of the evidence, and the trial court failed to properly handle the August 23, 2018, allocation of $50,000 to each party. Respondent also argues that the trial court abused its discretion in ordering him to contribute $30,000 to petitioner's attorney fees. We affirm.
¶ 3 I. BACKGROUND
¶ 4 We summarize the relevant facts appearing in the record on appeal. On May 12, 1973, the parties were married. During the marriage, the parties had two children; at the time the petition for dissolution was filed, the children were adults and were emancipated. On July 23, 2018, petitioner filed her petition for dissolution. At that time, petitioner was 68 years of age, and respondent was 71 years of age.
¶ 5 Petitioner graduated high school and attended some courses in college but did not complete a college degree. At the time of the proceedings in this matter, petitioner had several medical conditions, namely, diabetes, high blood pressure, high cholesterol, and stomach ulcers. To treat these conditions, petitioner took prescription medications at a cost of $465 per month. Respondent had retired from his employment and retired to Florida at the time of the trial in this matter. He had worked throughout the term of the marriage, and, as a result, had earned a pension from Lucent Technologies, Inc., which paid $2,508 a month. Respondent did not have substantial health conditions or anything that interfered in his lifestyle.
¶ 6 Respondent met a coworker, Erica Ratz, who was introduced to him because they shared the same last name. Ratz is not related to respondent. As respondent and Ratz continued to work together, they developed a friendship. Ratz told respondent that she had fallen into hard times. On November 27, 2013, respondent purchased a condominium on Daybreak Drive in Aurora (the Daybreak property), for which respondent paid $135,714 cash and titled in his name alone. The closing documents for the purchase of the Daybreak property used that address as respondent's address notwithstanding the fact that he was still residing at the marital residence. According to respondent, the Daybreak property was simply an investment that he intended to lease to Ratz and her family. Respondent neither told petitioner that he had purchased it nor that he was renting it to Ratz because he knew petitioner would not have approved. Respondent originally entered a 24-month lease for the condominium beginning January 1, 2014, during which Ratz would pay $1,200 per month. According to respondent, he decided to allow Ratz to perform needed repairs to the Daybreak property in exchange for a lowered rent. On January 1, 2018, respondent entered 36-month lease with Ratz for $500 per month. Respondent testified that, to facilitate the reimbursement of Ratz's repair expenses and the collection of rent, he opened a joint bank account with her. He testified that he closed out the bank account when it became apparent to him Ratz was not performing the repairs she was claiming and was taking money from the account. Petitioner calculated that, from June 2014 to March 2018, respondent paid nearly $63,000 to or on behalf of Ratz.
¶ 7 The parties stipulated that, for the relevant time period, the fair market rental for the Daybreak property ranged from approximately $1,400 per month to approximately $1,650 per month. From 2013 to 2017, respondent collected an average rent of $394 per month, substantially lower than the stipulated fair market rent for the property. Respondent did not deposit the rent from the Daybreak property into a bank account accessible by petitioner. Petitioner testified that respondent handled the finances during the marriage, and that she was provided only the signature page of the joint return to sign without being allowed to see the contents of the returns.
¶ 8 In addition to the Daybreak property, respondent purchased a BMW automobile for $35,000, because he thought it would be fun to drive around. Respondent testified that he did not discuss the purchase beforehand with petitioner and did not inform petitioner about the purchase because she would not have been happy. Respondent never brought the car to the marital residence, instead parking it at the Daybreak property. Petitioner did not learn of the car until the divorce litigation in this case began. In September 2018, he sold the BMW for about $5,500.
¶ 9 Petitioner testified that she generally tried to have conversations with respondent to learn about their finances a few times a year. The evidence showed that respondent generally dealt with financial matters, but petitioner paid for household expenses and her own entertainment. Under respondent's questioning, petitioner testified that, in 2014, she became aware of the Daybreak property from the parties' insurance broker.
¶ 10 Petitioner and respondent testified generally consistently about their typical routine. Respondent would awaken for work around 3 a.m., and he would work from 7 a.m. to 3:30 p.m. After work he would often go to the health club. When respondent returned home, he and petitioner would often have dinner together. After eating, they would go into the living room and watch TV. According to petitioner, respondent would lay on the couch and frequently doze while she read. Respondent would go to bed around 8:30 or 9 p.m. Petitioner customarily went to bed around 10:30 or 11. If this awakened respondent, then he would go back downstairs and sleep on the couch. The parties notionally slept in the same room. The parties would occasionally eat out, but, according to petitioner, they went out less frequently and socialized less frequently as time passed.
¶ 11 Petitioner testified that, beginning in 2013, the parties started becoming emotionally distant and stopped being able to communicate effectively. In addition, their travels and vacations together decreased. The parties would avoid each other for lengthy periods of time. According to petitioner, the parties began to live separate lives, albeit in a shared space. The parties did not attend marriage counseling. Petitioner and respondent agreed that their sexual intimacy ceased in 2013.
¶ 12 The parties continued to attend church together during the time from 2013 onward, and they continued to share their holidays together. According to petitioner, they were impersonal at these times.
¶ 13 Petitioner testified about two relatively recent trips that stood out in her memory. The first was to Las Vegas. According to petitioner, the parties took a bus from the airport to the hotel. Respondent got off the bus, but it took petitioner a bit longer to exit, and when she looked up, respondent was nowhere to be seen. Petitioner went into the hotel, because she did not know what else to do; moreover, she was "devastated." Respondent eventually returned to the hotel, but petitioner described the rest of the Las Vegas trip as "terrible." The second was a driving trip to Massachusetts to visit their daughter. Petitioner testified that, during the lengthy ride, they barely spoke. Petitioner explained that she was afraid of angering respondent and thus aggravating her medical ailments.
¶ 14 According to petitioner, in January 2015, respondent told her he wanted a divorce. In March 2015, respondent went to Florida by himself despite purchasing two plane tickets. According to petitioner, upon his return from Florida, respondent again told petitioner that he had contacted an attorney. In March 2015, petitioner contacted a divorce attorney. Respondent learned of petitioner's consultation when he saw the charge in their bills and "gave her a hard time" about the retainer, stating that she would never see the money again. Petitioner testified that the retainer was returned; however, she placed the money into her bank account because she believed she might need it in the future. According to petitioner, after this, the parties made no attempts to improve their marriage.
¶ 15 Petitioner and respondent discussed the possibility of retiring to Florida. Petitioner, however, did not want to move to Florida. Later in 2015, respondent traveled a second time to Florida specifically to look for property. For this trip, respondent again purchased two plane tickets. Respondent maintained both one-way tickets were for his use despite traveling by himself. When respondent purchased property in Florida, petitioner filed for divorce.
¶ 16 On August 17, 2018, petitioner filed a motion for temporary support seeking a preallocation from the marital estate and an equal division of the parties' income during the pendency of the matter. Petitioner alleged that the marital residence was in the process of being sold and requested that each party receive $50,000 from the proceeds of the sale of the marital residence. On August 23, 2018, the trial court entered the parties' agreed order stating that each party would receive $50,000 from the sale of the marital residence and escrowing the remaining proceeds. The remainder of the motion for temporary support was continued with the order that the parties submit financial disclosures within 21 days. Respondent did not comply. Because of respondent's noncompliance, on September 20, 2018, petitioner continued her motion for temporary support and requested that respondent be ordered to complete his financial disclosure. On September 24, 2018, the parties entered an agreed order setting petitioner's motion for temporary support for hearing and requiring respondent to complete his financial disclosures within seven days.
¶ 17 On October 3, 2018, petitioner filed a petition for a temporary restraining order and preliminary injunction. Petitioner alleged that respondent had liquidated approximately $244,000 in marital assets. Petitioner also alleged that she had preemptively withdrawn approximately $50,000 from two of the parties' joint bank accounts and deposited the funds in her attorney's escrow account. On October 4, 2018, petitioner filed an amended petition for temporary restraining order and preliminary injunction, alleging that respondent had liquidated another marital account totaling approximately $34,000, for a total of approximately $278,000. On October 15, 2018, the trial court ordered that "no beneficiaries may be changed on any marital assets."
¶ 18 Also on October 15, 2018, the trial court resolved petitioner's outstanding motion for temporary support. For the months of August 2018 to October 2018, the trial court awarded petitioner $5,000 from the monies escrowed with her attorney; the trial court reserved the issue of whether the $5,000 would be taken from respondent's share of the marital estate. Next, the trial court ordered that respondent's Lucent pension be divided equally via a qualified domestic relations order (QDRO). The court further ordered that, beginning on November 1, 2018, and until the QDRO was entered, respondent would provide petitioner one-half of the $2,508 Lucent pension and $562 per month as "additional support." Respondent was ordered to draft the QDRO. Respondent was also ordered to list for sale the Daybreak property. The court prohibited the parties from liquidating, transferring, or concealing any marital assets and restricted the parties to paying only their necessary living expenses.
¶ 19 On November 2, 2018, respondent filed a motion to reconsider the October 15, 2018, order. Respondent notified the trial court that the Daybreak property was subject to a written lease between respondent and Ratz extending through January 2020, and this long-term lease would cause the Daybreak property to be sold below the fair market value. Respondent also sought to reconsider the QDRO affecting the Lucent pension to limit it to 50% of the marital portion.
In his appellate brief, respondent states that, "[i]n essence, [he] was objecting to the allocation of marital property prior to a final determination of the issues based upon the relevant factors of the Dissolution Act." Unfortunately for respondent, he neither cited the Dissolution Act nor its factors in his motion to reconsider, and the quoted statement from his appellate brief appears to be recasting what was actually argued in his motion to reconsider in terms of what he wished it to be for purposes of his argument on appeal. We note that Illinois Supreme Court Rule 341(h) (6) (eff. Oct. 1, 2020), provides that an appellant's statement of facts shall be "stated accurately and fairly without argument or comment." The quoted portion of respondent's statement of facts does neither.
¶ 20 On November 5, 2018, the trial court ordered the parties to provide financial accountings of expenditures: for respondent, any withdrawal over $2,000 and detailed explanations as to expenses paid by withdrawals made from four specified accounts from dates beginning January 1, 2017, and after; for petitioner, all monies she spent since November 1, 2017. Respondent was also ordered to transfer nearly $125,000 to petitioner's counsel's escrow account.
¶ 21 On December 6, 2018, petitioner filed a petition for indirect civil contempt, alleging that respondent had disobeyed the trial court's October 15, 2018, order by refusing to pay her any money and by failing to list the Daybreak property for sale. On December 11, 2018, the court entered three orders. First, it ordered that petitioner could contact a realtor of her choice to sell the Daybreak property and ordered respondent to sign the listing agreement within 48 hours of being presented with it. Next, it again ordered respondent to transfer nearly $125,000 to petitioner's counsel's escrow account and to be held there until further order of the court. Last, it entered a rule to show cause against respondent regarding his alleged disobedience of the terms of the October 15, 2018, order.
¶ 22 On December 28, 2018, petitioner filed a motion requesting that respondent sign the listing agreement and specifically omitting reference of the lease with Ratz. On that same date, petitioner filed a motion alleging that respondent had not complied with the trial court's December 11, 2018, order requiring the turnover of nearly $125,000. Petitioner also requested a predistribution from her portion of the marital estate to purchase a residence.
¶ 23 On January 4, 2019, the trial court found respondent in indirect civil contempt for willfully failing to pay temporary support and to list the Daybreak property, issuing a body-attachment writ. On January 15, 2019, respondent's counsel requested permission to withdraw. On January 23, 2019, petitioner requested the trial court to bifurcate the proceedings and to enter a judgment dissolving the marriage and dividing respondent's Lucent pension according to the QDRO she presented, due to respondent's failure to provide a QDRO himself.
¶ 24 On January 29, 2019, the trial court initially denied respondent's counsel's request to withdraw because of its concerns that respondent was systematically plundering the parties' marital estate and because of the need to provide petitioner a reliable source of support. Thus, before considering the motion to withdraw, the court proceeded on the other outstanding motions before it. The court bifurcated the case and entered a judgment of dissolution of marriage. The court also entered a QDRO dividing respondent's Lucent pension disproportionately between the parties: petitioner received one-half of the monthly payout plus $562; respondent received the remainder (one-half of the monthly payout minus $562). The court reserved all remaining issues. After these orders were entered, respondent's counsel was granted leave to withdraw.
¶ 25 Respondent obtained new counsel, and, on February 15, 2019, the parties entered an agreed order enjoining each party from removing funds from five specified accounts. In addition, respondent's unilateral withdrawal of money from one of the specified accounts was recognized as a mandatory retirement-related distribution and was deemed to be a predistribution to respondent from his portion of the marital estate. On February 26, 2019, the parties entered another agreed order giving petitioner $175,000 as a predistribution to purchase a residence. In that agreed order, the parties also agreed to stay the sale of the Daybreak property until further order of the trial court. On March 28, 2019, the parties entered an agreed order modifying the February 26, 2019, agreed order to the extent that the $175,000 predistribution could also be used to refurbish any residence purchased with those funds.
¶ 26 On April 11, 2019, the parties resolved the issue of respondent's indirect civil contempt via an agreed order. In that order, petitioner acknowledged that respondent had paid the outstanding temporary support due to petitioner, the indirect civil contempt was purged, and the issue of attorney fees was reserved for trial. On April 28, 2019, because respondent had still not complied, he was ordered to complete discovery within 28 days.
¶ 27 On June 7, 2019, petitioner filed her notice of intent to claim dissipation. In the notice, petitioner alleged that the marriage underwent an irreconcilable breakdown in 2013. Petitioner alleged that respondent began dissipating the marital estate with payments related to the purchase and maintenance of the Daybreak property beginning January 1, 2014, and she enumerated other monies that she claimed to constitute dissipation.
¶ 28 On July 10, 2019, the trial court set the matter for trial. On October 4, 2019, respondent filed a certificate of service for his notice of intent to claim dissipation. No additional documentation beyond the certificate of service related to the purported notice dissipation appears in the record. On October 7, 2019, petitioner filed an amended claim of dissipation alleging that respondent made cash withdrawals from June 2014 to January 2019 totaling about $280,500, that respondent paid funds to Ratz from June 2014 to March 2018 totaling nearly $63,000, that respondent paid funds to his sister in 2017 and 2018 totaling about $121,000, and that respondent paid or transferred funds to unknown persons from July 2015 to December 2018 totaling about $62,000.
¶ 29 On October 9, 2019, petitioner filed a petition for contribution to attorney fees and costs. Petitioner alleged that respondent's willful misconduct during the course of the case, such as failing to timely respond to discovery, failing to pay temporary support or to list the Daybreak property as ordered by the trial court, and other similar disobedience to court orders and with discovery justified ordering respondent to contribute to the attorney fees and costs incurred by petitioner. Also on October 9, 2019, petitioner filed a motion to strike respondent's claim of dissipation as untimely. On October 11, 2019, respondent filed his motion to strike petitioner's amended claim of dissipation.
¶ 30 On October 15, 2019, trial in this matter began. First, the trial court granted petitioner's motion to strike respondent's claim of dissipation, and respondent withdrew his motion to strike petitioner's amended claim of dissipation.
¶ 31 Some of the trial testimony regarding the parties and their action is discussed above. Regarding the claims of dissipation made by petitioner, respondent testified that he used the funds he withdrew from the parties' checking accounts to pay household expenses, but he did not provide documentation to support this testimony. Respondent also testified that the Daybreak property was purchased as an investment. However, the parties stipulated that the fair market rental value of the property was approximately $1,500 per month. Respondent's testimony indicated that his collection of rent from Ratz was inconsistent, and when he did manage to collect rent from Ratz, it was far below the fair market rental value for the property. In addition, respondent failed to take tax write-offs which would have benefitted the marriage. Respondent testified about items of jewelry he had allegedly purchased for himself, but his testimony was unsupported by evidence. Respondent testified about certain items of children's clothing, claiming they were for his grandchildren. However, on cross-examination, respondent admitted that Ratz had young children and his grandchildren were not born until the year following the purchase.
¶ 32 Respondent also testified about financing his residence in Florida. In June 2018, before petitioner filed the petition for dissolution, respondent obtained a $124,000 equity line of credit against the Daybreak property. Respondent testified that, on June 27, 2018, he purchased a Florida residence for approximately $155,000 using $110,000 from the Daybreak property line of credit and cash. Respondent testified that, in August 2018, he used his $50,000 from the distribution from the sale of the marital residence to pay down the Daybreak property line of credit, and that the remaining lien against the Daybreak property was approximately $53,000. The Florida residence was unencumbered by debt.
¶ 33 On October 25, 2019, the trial court issued its letter opinion. We summarize the court's rulings that are relevant to the issues on appeal. The trial court determined that the marriage was irretrievably broken in November 2013, when respondent purchased the Daybreak property "for [Ratz]. [Petitioner] had no reason to know of this purchase until years later. As to the monies withdrawn and paid to or for [Ratz], there was no basis for [petitioner] to 'know' about this until she intercepted a transfer from [respondent] and then began the discovery process."
¶ 34 According to the trial court, the "primary issue" discussed during the trial was the history of respondent's relationship with Ratz. The trial court concluded that, using the lowest value for the parties' stipulated fair market rental value for the Daybreak property, respondent should have collected over $78,000 in rent for the period between 2013 through 2017. Respondent reported collecting only $19,375 in rent during that period. The court determined respondent's claim that petitioner knew or should have known about respondent's purchase of the Daybreak property by signing the parties' joint tax returns was not credible. In contrast, the court noted that petitioner's testimony about the joint tax returns, that she never saw the returns until they were to be signed and that she was presented with only the signature page, "was not impeached."
¶ 35 The trial court identified and recounted its substantive orders in the case. Specifically, the court noted how the October 15, 2018, order, divided petitioner's Lucent pension.
We note that respondent includes extensive argument in his statement of facts about the purported errors made by the trial court regarding the ultimate disproportionate distribution of the Lucent pension. This is wholly inappropriate. Ill. S.Ct. R. 341(h)(6) (eff. Oct. 1, 2020). We will disregard any inappropriate argument presented by respondent in his statement of facts.
¶ 36 The trial court identified and valued the assets comprising the marital estate. Neither the Lucent pension nor the $50,000 distributions from the sale of the marital residence appeared in the enumeration of marital assets. Petitioner's $175,000 predistribution to purchase a residence and dissipation by respondent totaling nearly $527,000 were expressly included in the enumeration. The court recited the statutory factors pertaining to the division of marital property and, "considering all relevant factors," determined that an approximately equal division of the enumerated marital estate was warranted.
¶ 37 The trial court also determined that petitioner was to receive indefinite maintenance based on its consideration of the appropriate factors. Specifically, the court determined that petitioner's monthly income was limited to her net Social Security benefit of $800 per month. Petitioner's monthly living expenses were determined to be $5,015, which, in light of the lack of cross-examination, were expressly determined to be reasonable and necessary. Based on this, the court concluded that petitioner would have to invade her assets to be able to meet her monthly living expenses. By contrast, respondent held an income-producing asset, namely, the Daybreak property, which had a fair market rental value of at least $1,600 per month. The court expressly determined that respondent's decision not to collect a fair-market rent "must not be a limiting factor" to his ability to pay maintenance to respondent. Considering the standard of living the parties experienced during the marriage, the court commented that respondent provided $1,750 each month to petitioner, and respondent accumulated assets over which petitioner had neither control nor knowledge, but which petitioner believed would be used to support the parties in the future. Considering the guidelines for maintenance, the trial court calculated that petitioner was to receive $433 per month in indefinite maintenance, and that respondent had the ability to pay and was not himself in need of any maintenance.
¶ 38 Finally, the trial court discussed petitioner's petition for contribution to her attorney fees and costs. The court determined that respondent had willfully failed to comply with discovery requests and court orders, and this noncompliance persisted throughout the life of the case. Respondent had also been held in indirect civil contempt for willfully failing to pay respondent's support, to provide a QDRO to divide his Lucent pension, and to return money to the marital estate. The court determined that petitioner's counsel's work was necessary and reasonable and had been incurred because of respondent's "deceptive use of the marital estate" and his incessant refusal to follow the court's orders. The court ordered respondent to contribute $30,000 toward petitioner's attorney fees.
¶ 39 Also on October 25, 2019, the trial court entered a formal judgment for dissolution of marriage, implementing the determinations from its letter judgment. The judgment for dissolution of marriage allocated the assets comprising the marital estate and, of particular relevance, assigned the entirety of the dissipation amount, nearly $527,000, to respondent. The court's division of assets assigned 50.2% of the $1.7 million marital estate to petitioner and 49.8% to respondent.
¶ 40 On November 19, 2019, petitioner filed a motion to reconsider or clarify the judgment seeking to reassign an asset that, unbeknownst to her, respondent had depleted. On November 22, 2019, respondent filed his motion to reconsider. Respondent alleged that the trial court miscalculated the guideline indefinite maintenance because it did not consider the equal division of the Lucent pension as income and the correct amount was $208 per month. Because of this error, respondent requested that the additional $562 per month that was specified in the QDRO either be modified to reflect the correct amount, or else an amended QDRO be entered. Respondent also alleged that the trial court erred in valuing respondent's Florida residence at about $155,000 instead of the value to which the parties stipulated, $153,500. Similarly, respondent alleged that the trial court erred by not considering the $50,000 distribution to both petitioner and respondent from the sale of the marital residence as a predistribution from the marital estate. Respondent further alleged that the trial court failed to account for three of petitioner's bank accounts totaling approximately $30,000. Respondent disputed the trial court's determination of the date of the irretrievable breakdown of the marriage, contending that it occurred in July 2018 when respondent purchased his Florida residence or when petitioner filed the instant dissolution action. Respondent additionally challenged the court's determination of dissipation as a misapplication of the law and, specifically, that the category related to unknown recipients double-counted approximately $10,000 that was actually applied to the down payment on the purchase of his Florida residence. Finally, respondent alleged that the award of attorney fees was excessive.
¶ 41 On January 21, 2020, the trial court ruled on the parties' motions to reconsider. The court acknowledged the liquidation of the bank account as alleged by petitioner and removed it from the marital estate. The court also added petitioner's three bank accounts totaling approximately $30,000 to the marital estate. In addition, the court changed the valuation of respondent's Florida residence to the parties' stipulated value of $153,500. Pursuant to respondent's request, the court also corrected the dissipation determination, lowering it by the double-counted $10,000, to a total dissipation of approximately $517,000. For the remainder of the issues in the motions to reconsider, the trial court denied the requests for relief. Specifically, the court denied respondent's requests to change its determination of the date the marriage began its irretrievable breakdown, to recalculate maintenance, and to reduce respondent's obligation to contribute to petitioner's attorney fees. Finally, the trial court ordered the parties to submit proposed equal divisions of the marital estate and placed the matter for further hearing on February 11, 2020. The January 21, 2020, order did not contain Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016) language.
The January 21, 2020, order contained a scrivener's error identifying the property as the Daybreak property. This error was expressly corrected in the court's February 11, 2020, order.
¶ 42 On February 11, 2020, the trial court directed that $50,000 held in escrow by petitioner's counsel be distributed to petitioner, subject to allocation in the division of the marital estate. The court scheduled a hearing on the final distribution of the marital estate and any other pending issues.
¶ 43 On February 18, 2020, petitioner filed a motion for immediate ruling and seeking a finding pursuant to Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016). Despite the name of the motion, petitioner alleged, inferentially, that the January 29, 2019, judgment was final with respect to the division of petitioner's Lucent pension, thereby requiring that respondent file a motion to reconsider on or before February 28, 2019. Petitioner further alleged that the October 25, 2019, order resolved the remaining matters, and that, on January 21, 2020, the parties' posttrial motions had been disposed. Petitioner thus requested that the trial court adopt her division of the marital estate attached to the motion for immediate ruling and the entry of a finding pursuant to Rule 304(a) that "this final judgment is now ripe for appeal."
We note that, in her motion for immediate ruling, petitioner identifies at least three judgments she believes to be final, so "this final judgment" is inherently ambiguous and imprecise, to say nothing of the fact that the marital estate had not yet been finally allocated between the parties.
¶ 44 On February 20, 2020, respondent filed a motion to modify or amend the QDRO distributing his Lucent pension. Respondent challenged the actual distribution of funds from the Lucent pension, noting that petitioner received one-half of the pension payout plus $562, or $1,254 plus $562, totaling $1,816 each month. Respondent argued that the $562 was expressly designated as temporary support to petitioner, and that, when the trial court ordered indefinite maintenance of $434 per month, the $562 in temporary support should have been abated. Respondent concluded that, at a minimum, the QDRO needed to be modified to reflect the ordered indefinite maintenance of $434 per month (i.e., $1,254 plus $434); alternatively, respondent requested the temporary maintenance portion be stricken from the QDRO, leaving an equal distribution of the Lucent pension to the parties, and leaving respondent with the obligation to separately pay the indefinite maintenance of $434 per month. Respondent underscored his argument by explaining that the court was actually ordering the $434 indefinite maintenance term to be added to the existing QDRO, resulting in respondent receiving only $258 out of the $2,508 monthly pension distribution.
¶ 45 On February 21, 2020, petitioner filed a motion to strike respondent's motion to modify or amend the QDRO distributing his Lucent pension. Petitioner alleged that the motion to modify was untimely because it should have been filed within 30 days of the January 28, 2019, order entering the QDRO, or within 30 days of the October 25, 2019, judgment of dissolution. Instead, respondent waited until February 20, 2020, or 13 months after the entry of the QDRO and 4 months after the judgment of dissolution before moving to modify the QDRO. Petitioner concluded that respondent's motion was untimely and should be stricken.
¶ 46 On February 24, 2020, the parties entered an agreed order dividing the marital estate. According to the order, the marital estate comprised over $1.7 million in assets and was divided exactly evenly between the parties. Dissipation of approximately $517,000 was attributed solely to respondent. The Lucent pension did not appear in the final marital estate and was not subject to further division beyond the terms of the January 29, 2019, QDRO.
¶ 47 On March 2, 2020, the trial court held the hearing on petitioner's motion to strike respondent's motion to modify. Petitioner contended that any of the issues arising from the QDRO should have been argued at the trial or within the motions to reconsider stemming from the trial. According to petitioner, because respondent did not include the QDRO issue in his motion to reconsider in November 2019, but waited to February 2020 to specifically address the QDRO, the motion to modify was untimely. Respondent argued that, under the terms of the QDRO, an extra $562 was taken out of the Lucent pension as temporary maintenance for petitioner and had not been adjusted to the indefinite maintenance award. Respondent contended that, instead, the indefinite maintenance award was also enforced, resulting in his paying both the temporary support and indefinite maintenance together, instead of the indefinite maintenance award alone.
In another instance of impropriety in his statement of facts (which we will not consider, as noted above), respondent states: "But, the Husband did argue at trial and during the motions to reconsider that the QDRO was wrong (R [sic] 682)." The record cite does not point to where "at trial and during the motions to reconsider" respondent raised any argument regarding the QDRO; instead, respondent refers to the first page of his motion to modify or amend the QDRO. Further, the issue of whether the propriety of the QDRO was raised is distinct from the issue of whether the motion to modify was timely and constitutes improper argument.
¶ 48 The trial court granted petitioner's motion to strike. The court reasoned that the January 29, 2019, judgment entering the QDRO constituted a final judgment. "The problem [it was] having [was] that nobody filed any motion to vacate [the January 29, 2019, judgment], and property settlements are not modifiable more than 30 days after their entry." The court noted that, at trial, neither party argued that the $562 that was also being taken from the pension "should be an offset against the maintenance that the Court ordered" for petitioner. The court observed that respondent did not file a motion to modify the QDRO within 30 days of the trial. The court noted that respondent did file a motion to reconsider following the trial, but the issue of the temporary support in the QDRO was not raised. The court ruled that "the bottom line is that [respondent's motion to modify or amend the QDRO] is not timely," after waiting "three to four months after trial [to raise this issue] for the first time." The court also denied petitioner's request for Rule 304(a) language.
¶ 49 Respondent timely appeals.
¶ 50 II. ANALYSIS
¶ 51 On appeal, respondent challenges the trial court's handling of his Lucent pension, the inclusion of temporary support in the QDRO, the omission of the Lucent pension from the division of the marital estate, and the trial court's striking of respondent's motion to modify or amend the QDRO. In addition, respondent contends that the trial court erred in determining the issues surrounding petitioner's claim of dissipation, namely, that the trial court's determination of the date the marriage began its irretrievable breakdown was against the manifest weight of the evidence, contends that petitioner's claim of dissipation was untimely, and argues that the amount of dissipation found was against the manifest weight of the evidence. Next, respondent contends that the trial court failed to consider that his usage of the $50,000 distribution from the sale of the marital residence was to benefit the marriage by paying down the equity line of credit on the Daybreak property, while petitioner used her distribution for living and personal expenses. Last, respondent contends that the trial court abused its discretion when it ordered respondent to contribute $30,000 towards petitioner's attorney fees. We consider each issue in turn.
¶ 52 A. Jurisdiction
¶ 53 As a preliminary matter, we must first consider petitioner's contention that we lack jurisdiction to consider respondent's appeal. Generally, appellate jurisdiction extends only to final judgments. Ill. S.Ct. R. 301 (eff. Feb. 1, 1994). In her argument regarding jurisdiction, petitioner fails to identify what she believes to be the final order. We infer from her argument that she is referring to the October 25, 2019, order. We note that, on November 19, 2019, petitioner filed a motion to reconsider, and petitioner notes that, on November 22, 2019, respondent filed a motion to reconsider the October 25, 2019, judgment, both of which were timely filed. According to petitioner, on January 21, 2020, the court disposed of the posttrial motions, and, for purposes of Illinois Supreme Court Rule 303(a) (1) (eff. July 17, 2017), that started the clock ticking for filing a notice of appeal. Petitioner concedes, however, that the January 21, 2020, order expressly called for the submission of a division of the assets of the marital estate and continued the matter to February 11, 2020, for status. Petitioner reasons that, on March 16, 2020, when respondent filed his notice of appeal, it was outside of the 30-day limit pursuant to Rule 303(a). Petitioner concludes that we are thus without jurisdiction to consider this appeal. We disagree.
¶ 54 It is well settled that, generally, a party may appeal only from a final order. In re Marriage of Yabush, 2021 IL App (1st) 201136, ¶ 23. A final order or judgment is one that fixes absolutely the parties' rights (A&R Janitorial v. Pepper Construction Co., 2018 IL 123220, ¶ 17), and it disposes of every claim in the case (Yabush, 2021 IL App (1st) 201136, ¶ 23). Moreover, a party has 30 days from the final order or the order disposing of the last pending postjudgment motion in which to file a notice of appeal. Ill. S.Ct. R. 303(a) (1) (eff. July 1, 2017).
¶ 55 Here, the October 25, 2019, order was a final order, because it disposed of all the remaining claims in this action. Respondent's November 22, 2019, motion to reconsider was a timely postjudgment motion that challenged the October 25, 2019, order. The trial court's January 21, 2020, order did not dispose of the entirety of the action; instead, it required the parties to submit a 50-50 division of the marital estate based on the changes to the marital estate noted in the January 21, 2020, order. Where the court contemplates a further written order to be submitted for its approval, the judgment will only become final when the court signs the submitted order. Canfield v. Delheimer, 210 Ill.App.3d 1055, 1058 (1991). The January 21, 2020, order, therefore, neither disposed of all the remaining issues, nor was final on its face, as it expressly contemplated a further order that would divide the marital estate.
¶ 56 Before the trial court entered any order on the division of the marital estate, on February 20, 2020, respondent filed a motion to modify the QDRO. This motion interjected another pending issue that needed resolution before all the issues in the case were disposed and the rights of the parties were fixed and finally established. On February 24, 2020, the trial court entered an agreed order dividing the marital estate. If we ignore the then-pending motion to modify the QDRO, respondent's notice of appeal, filed on March 16, 2020, was within the time limit set in Rule 303(a) (1), and was therefore timely. If we deem the February 24, 2020, order as nonfinal due to the pending motion to modify QDRO, then the March 2, 2020, order striking respondent's motion to modify the QDRO disposed of the last pending issue in this case and becomes the final order for purposes of Rule 303(a)(1). Respondent's March 16, 2020, notice of appeal is also timely if the March 2, 2020, order is deemed the final order. In either case, respondent's appeal was timely perfected, and we have jurisdiction to consider it.
¶ 57 Petitioner's reliance on McCorry v. Gooneratne, 332 Ill.App.3d 935 (2002), is misplaced. In that case, the defendant filed a motion for summary judgment that was initially denied but, on February 28, 2000, and pursuant to the defendant's motion to reconsider, was granted. Id. at 939. The court included Supreme Court Rule 304(a) language in the February 28, 2000, order. Id. The plaintiff filed a motion to reconsider, and, on April 19, 2000, the court denied the motion to reconsider. Id. On May 16, 2000, the plaintiff filed a motion for a finding that the April 19, 2000, order denying the motion to reconsider was final and appealable. Id. On May 22, 2000, the court granted the motion, and on June 2, 2000, the plaintiff filed its notice of appeal. Id.
¶ 58 On appeal, the appellate court reasoned that the February 28, 2000, order was a final order, and the Rule 304(a) language made the order immediately appealable. Id. However, the plaintiff filed a timely postjudgment motion which tolled the time for an appeal. Id. at 940. Once the motion to reconsider was denied, the plaintiff had 30 days from that date, April 19, 2000, in which to file a notice of appeal. Id. The plaintiff did not do so; instead, the plaintiff filed a motion for a second finding of immediate appealability followed by the notice of appeal after the trial court granted that motion. Id. The appellate court held that the notice of appeal was untimely: first, it was filed more than 30 days after the final pending postjudgment motion had been resolved; second, even if the motion for a second finding of appealability were deemed a postjudgment motion, the notice of appeal was still untimely because a second successive postjudgment motion does not toll the time for appeal. Id. Accordingly, the court dismissed the appeal for lack of jurisdiction.
¶ 59 The plaintiff attempted to salvage its appeal by arguing that it could not appeal until the trial court added Rule 304(a) language to the order denying its motion for reconsideration. Id. at 941. Petitioner here seizes upon the following language:
"As Rule 304(a) requires the finding of appealability only for final judgments, the judgment against one of several parties becomes appealable with the disposition of the postjudgment motion without any separate finding of appealability for the order concerning the postjudgment motion. Therefore[, ] the lack of Rule 304(a) language in the order denying the motion for reconsideration had no effect on the time for appeal." Id.
In other words, in McCorry, because the original final judgment included Rule 304(a) language, the denial of the postjudgment motion to reconsider was sufficient to start the clock ticking once more.
¶ 60 In our case, not only do we not have an analogous circumstance to that in McCorry (a final order that already incorporated Rule 304(a) language), we also do not have a final order. The order disposing of the parties' motions to reconsider was nonfinal on its face and required the submission of an order dividing the marital estate. Arguably, once this was filed, the clock for filing a notice of appeal started ticking, but respondent filed a notice of appeal within 30 days of the entry of the order dividing the marital estate. Accordingly, McCorry is distinguishable and petitioner's reliance on it is unavailing. We now turn to respondent's contentions.
¶ 61 B. The Lucent Pension
¶ 62 Respondent argues that the trial court erred in in its handling of the Lucent pension issue. His argument boils down to the fact that purported temporary support of $562 per month was included in the QDRO and was never cleaned up once the final guideline maintenance was determined. Thus, according to respondent, he is subject to paying both the $562 per month temporary support and $443 per month for maintenance. Respondent apparently suggests that he should no longer be obligated to pay the temporary support of $562 per month.
¶ 63 We hold that respondent has forfeited this issue altogether by failing to comply with Supreme Court Rule 341(h) (7) (eff. Oct. 1, 2020). Respondent's argument on this issue is factually intensive, yet respondent includes absolutely no citations to where the various assertions may be found in the record. We provide some examples: respondent asserts that "[t]he trial court only considered the allocation of the pension plan for purposes of temporary support." This assertion is not followed by a citation to the record to support the assertion. Respondent also asserts that, "[Respondent's] lawyer clearly objected to a bifurcation." This assertion is not followed by a citation to the record to support the assertion. Respondent also asserts that:
"The trial court ordered that the marital estate be allocated 50/50, but the [QDRO] awarded an additional $562 a month to [petitioner]. The trial court considered the income of [respondent] and [petitioner] when ruling on the issue of maintenance, but did not include the additional $562 per month for temporary support to [petitioner] that was paid from the [Lucent pension] pursuant to the [QDRO]."
This assertion is not followed by a citation to the record to support the assertion. Likewise, respondent asserts that, regarding the temporary maintenance, "everyone agreed that a mistake was made." This assertion is not followed by a citation to the record to support the assertion.
¶ 64 Respondent's argument regarding the Lucent pension and related issues comprises approximately nine pages. There are no citations to the record in this section whatsoever. However, respondent includes record citations in other portions of his argument on appeal.
¶ 65 The requirement of citations to the record in Rule 341(h) (7) is to allow us to assess whether the facts the appellant presents are accurate and a fair portrayal of the events of the case. Oruta v. B.E. W. & Continental, 2016 IL App (1st) 152735, ¶ 35. When a party's procedural violation, such as failing to include citations to the record supporting its factual assertions, hinders our ability to review the issue, we may strike the offending portion of the argument. Wing v. Chicago Transit Authority, 2016 IL App (1st) 153517, ¶ 11. Because respondent's argument on this issue is replete with factual assertions but devoid of citations to the record to support those assertions, in the sound exercise of our discretion, we hold that respondent has forfeited our review of this issue.
¶ 66 Forfeiture notwithstanding, respondent's central point, that it is unfair that he be required to pay $562 per month "temporary support" along with $434 per month in maintenance, and that, somehow, the trial court "forgot" about the temporary support in its later judgments is rebutted by the record. The January 29, 2019, judgment for dissolution of marriage unequivocally states that "[petitioner] shall be awarded half of the marital portion of [respondent's Lucent pension], plus $562 per month, from this [Lucent pension]." A trial court's written order is construed in the same manner as other written instruments. LB Steel, LLC v. Carlo Steel Corp., 2018 IL App (1st) 153501, ¶ 28. The order is viewed to ascertain the court's intention, which is gathered from all parts of the judgment itself. Id. If the order is unambiguous, it will be enforced as written. Id.
¶ 67 The January 29, 2019, judgment for dissolution for marriage is clear and unambiguous. It divides the pension disproportionately, with petitioner receiving the greater share. Moreover, the order includes no mention of temporary support. Instead, it expressly reserves "[a] ll remaining issues, including the division of all other marital property" and "the issue of maintenance." By choosing the language, "the division of all other marital property," the trial court expressed that the Lucent pension was marital property and was being divided in this order. (Emphasis added.) Further, the court clearly divided the Lucent pension unequally, ordering that petitioner receive as her share of the pension one-half plus $562 each month. The record shows, therefore, that the trial court deliberately divided the Lucent pension disproportionately, rather than inadvertently overlooking an outstanding order for temporary support.
¶ 68 Respondent points to the October 15, 2018, order, which provided that, "[f]or additional support, [respondent] shall pay [petitioner] $562 [per month] beginning 11/1/18." According to respondent, the October 15, 2018, order shows the trial court's intent to divide the Lucent pension evenly between the parties and to order additional temporary support. Respondent's argument overlooks that, when the January 29, 2019, order was entered, respondent had been held to be in indirect civil contempt of court and had continued to refuse to divide the Lucent pension, pay temporary support, or comply with his other obligations. Moreover, the trial court accepted petitioner's representation that respondent continued to drain the assets from the marital estate. Thus, the trial court's change of heart and determination to disproportionately distribute the Lucent pension is explained by respondent's own actions and willful failure to obey its orders, as well as his continued manipulations of the parties' finances. Because the January 29, 2019, judgment of dissolution clearly divides the Lucent pension disproportionately, the crux of respondent's argument is affirmatively rebutted by the record. We also note that we do not perceive respondent to be challenging the fact that Lucent pension was disproportionately allocated between the parties. Rather, respondent's challenge is limited to whether the trial court engaged in double counting by considering the proceeds from the pension as income and, at the same time, dividing it as property belonging to the marital estate. Accordingly, even had respondent not forfeited our review of this issue through his noncompliance with Rule 341(h)(7), the focal point of respondent's contentions in the Lucent pension issue is affirmatively rebutted by the record, and respondent's contentions could not succeed in light of the plain language of the January 28, 2019, order.
¶ 69 C. Dissipation
¶ 70 Respondent next challenges the trial court's rulings concerning the issue of dissipation. Respondent's argument is comprised of three facets: first, petitioner's claim of dissipation was untimely under section 503(d)(2) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/503(d)(2) (West 2020)); second, the trial court's determination of the date the marriage began its irretrievable breakdown marriage was against the manifest weight of the evidence; and third, the amount of dissipation was against the manifest weight of the evidence.
¶ 71 Dissipation is one of the factors a trial court must consider in allocating marital property equitably and in just proportions. In re Marriage of Schneeweis, 2016 IL App (2d) 140147, ¶ 33; see also 750 ILCS 503(d) (West 2020) (listing the factors). Dissipation is premised on waste- the diminution of the marital estate by using marital property for the sole benefit of one of the spouses for a purpose unrelated to the marriage at a time during which the marriage is undergoing an irreconcilable breakdown. In re Marriage of Brown, 2015 IL App (5th) 140062, ¶¶ 66-67. Generally, whether a particular course of conduct constitutes dissipation is fact dependent, and, as a factual determination, the trial court's judgment will not be disturbed unless it is against the manifest weight of the evidence. Schneeweis, 2016 IL App (2d) 140147, ¶ 35. In this context, "against the manifest weight of the evidence" means that the opposite conclusion is clearly evident, or the finding is arbitrary, unreasonable, or not based in the evidence. Id.
¶ 72 Section 503(d)(2) of the Act specifically addresses the requisites to making a claim for dissipation. It provides:
"(2) the dissipation by each party of the marital property, provided that a party's claim of dissipation is subject to the following conditions:
(i) a notice of intent to claim dissipation shall be given no later than 60 days before trial or 30 days after discovery closes, whichever is later;
(ii) the notice of intent to claim dissipation shall contain, at a minimum, a date or period of time during which the marriage began undergoing an irretrievable breakdown, an identification of the property dissipated, and a date or period of time during which the dissipation occurred;
(iii) a certificate or service of the notice of intent to claim dissipation shall be filed with the clerk of the court and be served pursuant to applicable rules;
(iv) no dissipation shall be deemed to have occurred prior to 3 years after the party claiming dissipation knew or should have known of the dissipation, but in no event prior to 5 years before the filing of the petition for dissolution of marriage." 750 ILCS 5/503(d)(2) (West 2020).
¶ 73 Respondent focuses on the time limits for claiming dissipation in the first facet of his argument on this issue. Specifically, respondent argues that, because petitioner admitted that, in 2014, she learned that respondent had purchased the Daybreak property and had inquired about whether respondent was receiving rent for the property, she knew or should have known of the dissipation. In respondent's view, petitioner's window to claim dissipation related to the Daybreak property closed in 2017, and petitioner's claim of dissipation is thus time-barred. We disagree.
¶ 74 As noted, whether an action constitutes dissipation depends on the facts of the case (Schneeweis, 2016 IL App (2d) 140147, ¶ 35), and respondent recites only the most skewed-in-his-favor version of the facts, omitting entirely substantial evidence supporting the trial court's determination. At trial, the evidence showed that respondent purchased the Daybreak property but attempted to keep petitioner from learning about it. It must be said that respondent's initial explanation, that it was an investment property, is not inconsistent with a marital purpose and would not necessarily constitute dissipation. However, the following facts all strongly support the trial court's finding of dissipation related to the Daybreak property: that respondent purchased the property for Ratz and her family to live in, that respondent charged rent far below the fair market rental value of the property, that respondent only spottily collected the far-below-market rent, that respondent encumbered the property with long-term and below-market leases, that respondent created a joint account with Ratz and provided Ratz with funds to use, that respondent did not allow petitioner access to the joint account with Ratz, and that respondent had no receipts evidencing any repairs on the Daybreak property. In addition, the evidence concerning the purchase of the BMW automobile is intertwined with the Daybreak property, because respondent, again, did not inform petitioner of the purchase and parked it only at the Daybreak property, apparently taking care to never drive it in front of petitioner. While respondent denied it, it is not an unreasonable inference that the BMW was purchased for the use of Ratz, just as was the Daybreak property.
¶ 75 Next, respondent's contention petitioner knew or should have known about the dissipation related to the Daybreak property omits the significant and longstanding measures he took to conceal his relationship with Ratz, including the purchase of the Daybreak property, the assurance to petitioner that the Daybreak property was in fact a family investment, and the financial relationship he entered into with Ratz. When respondent's actions are properly considered, it is reasonable to infer that he was attempting to conceal the asset. For example, respondent had the financial documents related to the Daybreak property sent, not to the marital residence where petitioner could, perhaps, come across them, but to the Daybreak property. Similarly, petitioner was not granted access to the joint account respondent shared with Ratz. Respondent testified that any rents he collected from the Daybreak property were placed into an account to which petitioner did not have access. Further, respondent handled all the financial matters for the parties, so it is reasonable to infer that he controlled the flow of financial information to petitioner, and that he would not have disclosed to petitioner the details concerning the Daybreak property. Finally, we note that petitioner's testimony that she asked about their finances only occasionally was unrebutted. In light of petitioner's control of the finances and financial information, it is reasonable to infer that, based on the evidence, any general inquiries would have been unavailing and any specific inquiries about the Daybreak property would have been met with the fiction that respondent had purchased an arms-length investment property.
¶ 76 Indeed, the trial court's factual findings regarding dissipation are amply supported in the record. Specifically, the trial court determined that respondent "had no reason to know [of the purchase of the Daybreak property for Ratz] until years later." This conclusion is well supported in the record as discussed above. The trial court deemed the contention that petitioner should have learned about the Daybreak property "when she signed the joint income tax returns" to be "not credible." The testimony that petitioner was shown only the signature page of the joint return and was not shown the supporting documentation was unrebutted and unimpeached. Likewise, the trial court's determination, that "there was no basis for [petitioner] to 'know' about [the monies withdrawn and paid to or for Ratz] until [petitioner] intercepted a transfer from [respondent] and then began the discovery process," was also amply supported by the record.
¶ 77 Respondent's argument that the dissipation claim relating to the Daybreak property is untimely is based almost entirely upon petitioner's admission that, in 2014, she was aware that respondent had purchased the Daybreak property (although he continues to omit that petitioner became aware, not through a discussion with respondent, but inadvertently when she went to pay the insurance for the marital residence, and the insurance agent mentioned the Daybreak property). In respondent's view, knowledge of the Daybreak property put petitioner on notice of possible dissipation. As discussed above, however, respondent embarked on a course of conduct designed to conceal and obscure any issues of dissipation; moreover, the purchase of the Daybreak property, standing alone, does not necessarily constitute dissipation. Accordingly, we reject respondent's contention that petitioner knew or should have known in 2014 that the purchase of the Daybreak property constituted or potentially constituted dissipation. Therefore, petitioner's claim of dissipation is not untimely.
¶ 78 Respondent relies on In re Marriage of Onishi-Chong & Chong, 2020 IL App (2d) 180824, ¶ 36, to flesh out the phrase "knew or should have known" in section 503(d) (2) (iv) of the Act (750 ILCS 5/503(d) (2) (iv) (West 2020)). In that case, "knew or should have known" was not at issue; rather, the issue involved whether the petitioner exercised reasonable diligence in bringing a claim under section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2018)). Among the factors bearing upon the exercise of reasonable diligence are access to legal representation (Onishi-Chong, 2020 IL App (2d) 180824, ¶¶ 41-42), availability of discovery (id. ¶ 43), and the nature of the opposing party's representations (i.e., truthful or untruthful, concealing, obscuring) (id. ¶ 45). Here, the representations about the Daybreak property were not established to have been made only at one specific date certain. Instead, it is a reasonable inference that respondent made consistent representations about the nature of the purchase of the Daybreak property beginning in 2014 and continuing until the initiation of the divorce proceedings in 2018. Thus, until the initiation of divorce proceedings, discovery was not available to petitioner. Similarly, petitioner did not have access to legal representation at the time of the original representations in 2014. Also, as discussed above, respondent's representations were, at best, obfuscatory, and it is a reasonable inference that respondent was attempting to conceal the nature of his purchase of the Daybreak property for Ratz and her family. Thus, Onishi-Chong supports the trial court's judgment regarding the timeliness of the dissipation claim. Accordingly, we reject respondent's contentions regarding the timeliness of the dissipation claim related to the Daybreak property.
¶ 79 Next, respondent contends that the trial court's determination of the date the marriage began undergoing an irretrievable breakdown was against the manifest weight of the evidence. Whether dissipation has occurred is a question of fact and the trial court's determination will not be disturbed on appeal unless it is against the manifest weight of the evidence. In re Marriage of Holthaus, 387 Ill.App.3d 367, 374 (2008). The trial court is required to calculate dissipation from the date the marriage began undergoing its irretrievable breakdown; it is error to use the date the marriage completed undergoing its breakdown. Id. at 374-75.
¶ 80 With that said, not every disagreement or fight will be deemed to be a point at which the marriage begins to undergo an irretrievable breakdown; the legislature did not intend to make the courts auditors of every expense in every failed marriage. In re Marriage of Hazel, 219 Ill.App.3d 920, 922 (1991). In In re Romano, 2012 IL App (2d) 091339, ¶ 92, we stressed that, while many or most married couples "might have had disputes during the course of their marriage, not every conflict signals that a marriage has begun to undergo an irreconcilable breakdown."(Emphasis in original.) Thus, respondent effectively poses the question of when the shoe began to drop; in other words, at what point was the marriage headed toward its final breakdown? See In re Marriage of LaRocque, 2018 IL App (2d) 160973, ¶ 88 (analogizing the process to the dropping of an egg; once the egg has been dropped, the marriage is inevitably headed to its breakdown).
The court also explained that the term "irretrievable" is functionally equivalent to "irreconcilable." Romano, 2012 IL App (2d) 091339, ¶ 93.
¶ 81 Respondent argues that, even after the purchase of the Daybreak property, the parties continued with their life together as usual. They went out to dinner, they celebrated the holidays together, they continued to share a bedroom, they shared household chores, attended church together, and planned for their retirement together. Only in 2018, when respondent purchased the Florida residence did their marriage begin to inevitably break down. Respondent emphasizes that, had he not insisted on moving to Florida, petitioner testified that she would not have wanted the divorce.
¶ 82 Respondent's characterization of the parties' normal married life together omits significant testimony from petitioner. Petitioner testified that she had to walk on eggshells to avoid enraging respondent. This was especially true for the couple's trip to Massachusetts to visit their daughter. According to petitioner's testimony, the parties passed the lengthy drive largely in silence because petitioner was afraid of angering respondent. Similarly, petitioner described a trip taken by the parties to Las Vegas, in which respondent abandoned petitioner because, according to petitioner, she was taking too long to exit the bus. Petitioner's testimony on these points was unrebutted. Petitioner also testified that, coinciding with the time that the Daybreak property was purchased, respondent and petitioner began becoming more and more emotionally distant. Their holidays and attendance at church became perfunctory. Finally, respondent attempts to downplay into nonexistence the purchase of the Daybreak property. Whether petitioner and respondent were participating in a normal-for-them marriage up to that point begs the question of the effect of respondent's investment of time, attention, and significant family financial resources into Ratz and her family, regardless of how respondent may have characterized his relationship with Ratz. The evidence was clear that respondent purchased the Daybreak property and allowed Ratz and her family to live in it for years with rent that was well below the fair market rental value. The evidence was also clear that respondent successfully concealed his relationship with Ratz at least until the divorce proceedings were underway. Further, the evidence demonstrated that respondent opened a joint account with Ratz, and that petitioner was not given notice of or access to that account. In addition, respondent purchased a BMW automobile that he parked solely at the Daybreak property, leading to the reasonable inference, notwithstanding respondent's denial, that it was at least in part purchased for the use and convenience of Ratz. Based on all of this evidence, either omitted or unfairly minimized by respondent, we cannot say that the trial court's determination that the irretrievable breakdown of the marriage began with the purchase of the Daybreak property was against the manifest weight of the evidence. Accordingly, we reject respondent's contention.
¶ 83 In his final dissipation-related contention, respondent argues that the trial court's ultimate finding was against the manifest weight of the evidence. A dissipation claim is resolved according to the following rubric: the party charging dissipation must establish a prima facie showing of dissipation. Once the prima facie showing has been made, the burden shifts to the party charged with dissipation to prove by clear and specific evidence how the funds were spent. Brown, 2015 IL App (4th) 140062, ¶ 66; see also 750 5/503(d)(2)(ii) (West 2020) (requiring a claim of dissipation to include the time period the marriage began undergoing its irretrievable breakdown, the identity of the asset dissipated, and the date or time period in which the dissipation occurred).
¶ 84 Respondent argues that both he and petitioner used marital funds for personal expenses and pleasure, and this constituted their lifestyle. Respondent asserts that, against that backdrop of just using cash at hand to pay for their lifestyle, petitioner "claimed that the cash withdrawals from 2014 to the present were dissipation." We disagree.
¶ 85 In the first instance, respondent does not acknowledge the rubric that a claim of dissipation must follow. He does not attack petitioner's prima facie showing of dissipation or demonstrate that he provided clear and specific evidence of how the alleged dissipated funds were spent. That shortcoming alone is sufficient to scuttle respondent's contention.
¶ 86 Respondent asserts that the majority of dissipation claims related to the Daybreak property. We need not be concerned with whether this is a proper characterization because respondent overlooks that petitioner identified nearly $63,000 that respondent spent on or on behalf of Ratz. Respondent provided no documentation to support repairs being made on the Daybreak property or much to show that he regularly collected rent from Ratz, albeit far below fair market rental value. Respondent simply failed to provide clear and specific evidence of his expenditures related to the Daybreak property. Thus, respondent did not satisfy his burden under the dissipation rubric. Instead, respondent asserts, vaguely and without any detailed descriptions, that his and petitioner's personal expenditures should offset, so all of petitioner's claims of dissipation should be disallowed. This sets the dissipation rubric on its head and would require the party claiming dissipation to offer the clear and specific evidence demonstrating that the property had been dissipated. We reject respondent's contention.
¶ 87 Respondent relies on two cases in this section. In In re Marriage of Getautas, 189 Ill.App.3d 148, 153 (1989), the trial court found no dissipation occurred because the irreconcilable breakdown occurred upon the commencement of the dissolution proceedings, so much of the claimed dissipation occurred before the marriage had broken down. As a second basis, the trial court accepted the wife's explanation of the expenditures, vague though they were, because the amount was small and used for Christmas gifts. Id. at 154. In Getautas, this court commented that a dissipation claim was not intended to be an avenue to require the courts to account for every financial decision in marriages that eventually fail. Id. at 155. While the comment is perhaps generally applicable to any divorce case, here, petitioner provided an extensive listing of various accounts alleged to have been dissipated. Contrary to respondent's assertion, petitioner does not appear to have listed every cash withdrawal made by respondent from 2014 to the present day, but she focused on certain cash withdrawals, money related to the Daybreak property and Ratz, money allegedly paid to respondent's sister for a purported investment in Canadian land, and money transfers to accounts petitioner did not recognize. While involving a large amount of marital assets, we do not think that this case runs afoul of our admonition in Getautas. Respondent's reliance on Getautas is therefore unavailing.
¶ 88 Respondent also relies on In re Berberet, 2012 IL App (4th) 110749, for the principle that personal expenditures that are consistent with the lifestyle experienced during the marriage are not excessive. The principle does not apply to this case. Petitioner identified over $500,000 of potentially dissipated expenses and assets out of a $1.7 million marital estate. In other words, petitioner identified roughly 30% of the marital estate that had been used on purposes not related to the marriage. In Berberet, the claimed dissipation was approximately $30,000, and the marital estate was valued at approximately $600,000; the clamed dissipation, then was approximately 5% of the value of the marital estate. Id. ¶¶ 52, 66. Moreover, the trial court accepted the husband's explanations of how he spent the allegedly dissipated funds; here, the trial court made the factual determination that respondent's explanations were not credible and were not supported by receipts or other evidence. Berberet is inapposite and respondent's reliance on it is unavailing.
¶ 89 For the foregoing reasons, we reject respondent's arguments related to the trial court's determination of dissipation and cannot say that its determination was against the manifest weight of the evidence.
¶ 90 D. Predistribution
¶ 91 Respondent next contends that the trial court failed to account for a $50,000 predistribution each spouse received pursuant to its August 23, 2018, order. According to respondent, he used his $50,000 predistribution to pay down the line of credit encumbering the Daybreak property while petitioner used her $50,000 predistribution to fund her lifestyle. Respondent argues that, in increasing the equity in the Daybreak property, petitioner effectively received the benefit of one-half of his predistribution, but he did not receive a similar benefit from petitioner's use of her predistribution.
¶ 92 There are at least two fatal flaws in respondent's argument. First, the August 23, 2018, order did not order a predistribution to the parties; rather, it distributed $50,000 to each party from the sale of the marital residence. Any proceeds in excess of the $100,000 being distributed to the parties were ordered to be held in escrow by petitioner's counsel. Second, respondent cites no authority to support his argument. Accordingly, respondent has forfeited this contention. Ill. S.Ct. R. 347(h)(7) (eff. Oct. 1, 2020).
¶ 93 In any event, the situation challenged by respondent is not one in which the martial estate has contributed a party's nonmarital estate-in such a situation, the marital estate is entitled to contribution from the nonmarital estate. See 750 ILCS 5/503(c)(2) (A) (West 2020) ("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."). Rather, respondent used marital funds to pay down the mortgage on a marital asset, the Daybreak property, after he had encumbered the property with significant debt to obtain his personal Florida residence debt-free. We see no persuasive rationale to support respondent's contention, and we reject it.
¶ 94 E. Attorney Fees
¶ 95 Finally, respondent argues that the trial court's October 25, 2019, order requiring respondent to contribute $30,000 toward petitioner's attorney fees was against the manifest weight of the evidence and an abuse of discretion. According to respondent, the trial court's order is unclear regarding the basis of the award, and, in any event, the amount of the award is unrelated to the attorney fees incurred in the preparation of discovery requests and the motions to compel his compliance with the trial court's orders. In addition, respondent notes that petitioner's request for contribution to attorney fees is pursuant to both section 503(j) and 508(b) of the Act (id., §§ 503(j), 508(b)). Respondent argues that, under section 503(j), an award is based on the party's inability to pay the attorney fees, but since the division of the marital estate resulted in petitioner receiving more than $850,000 in assets, she cannot demonstrate an inability to pay under section 503(j). Respondent then argues that, under section 508(b), the trial court's findings did not indicate which court orders and which discovery requests respondent did not comply with, which hearings were caused by respondent's noncompliance, if any, and the order did not include the necessary determination that his conduct was without compelling cause or justification. In addition, respondent contends that, under section 508(b), the $30,000 fee award does not relate to attorney fees that were actually incurred in relation to" 'discovery requests and orders.'" Respondent asserts that, at most, the fees incurred due to his noncompliance were between $11,000 and $12,000.
¶ 96 In this portion of his argument, respondent includes three citations to the record, and these citations are made in the first two paragraphs of his argument. Two citations are to the first page of petitioner's petition for contribution, and the third is to page three of the October 25, 2019, judgment for dissolution of marriage. These citations are unilluminating, to say the least. The balance of respondent's argument, while devoid of citation to the record to support his assertions, is factually intensive. This lack of citation is despite the fact that petitioner included detailed records of the attorney fees incurred in the petition for contribution. This court is not a repository into which a party may dump the burden of research, and we will not comb the record to find the support for the party's arguments on appeal. CE Design, Ltd. v. Speedway Crane, LLC, 2015 IL App (1st) 132572, ¶ 18. Respondent's argument, therefore, falls woefully short of the obligations under Rule 341(h)(7) to include citation "to the pages of the record relied on." See also Wing, 2016 IL App (1st) 153517, ¶ 11 (where a party's procedural violation, such as failing to include citations to the record supporting its factual assertions, hinder our ability to review the issue, we may strike the offending portion of the argument). We hold that, by failing to appropriately cite the record to support his fact-based contentions, respondent has forfeited this contention on appeal.
¶ 97 Forfeiture notwithstanding, the trial court clearly awarded attorney fees pursuant to section 508(b) of the Act (750 ILCS 5/508(b) (West 2020)). Section 508(b) provides:
"In every proceeding for the enforcement of an order or judgment when the court finds that the failure to comply with the order or judgment was without compelling cause or justification, the court shall order the party against whom the proceeding is brought to pay promptly the costs and reasonable attorney's fees of the prevailing party. If non-compliance is with respect to a discovery order, the non-compliance is presumptively without compelling cause or justification, and the presumption may only be rebutted by clear and convincing evidence. If at any time a court finds that a hearing under this Act was precipitated or conducted for any improper purpose, the court shall allocate fees and
costs of all parties for the hearing to the party or counsel found to have acted improperly. Improper purposes include, but are not limited to, harassment, unnecessary delay, or other acts needlessly increasing the cost of litigation." Id.
Generally, an award of attorney fees is reviewed for an abuse of discretion. In re Marriage of Baggett, 281 Ill.App.3d 34, 40 (1996). However, an award of attorney fees under section 508(b), where a party fails to comply without cause or justification, is mandatory. Id. A finding of contempt means that the party's noncompliance was necessarily without compelling cause or justification. In re Marriage of Putzler, 2013 IL App (2d) 120551, ¶ 38. Further, a finding that the conduct was willful in a contempt citation means that the conduct was without compelling cause or justification. Id. ¶ 39. Finally, section 508(b) prohibits actions conducted for improper purposes, such as those that cause unnecessary delay or needlessly increase the cost of the litigation. 750 ILCS 5/508(b) (West 2020).
¶ 98 The trial court found that:
"[Respondent's] failure to comply with discovery requests and court orders increased [petitioner's] attorney's fees and costs immensely. Further, [petitioner] will never know where the rest of their money went as [respondent] deposited sums into accounts for which she was unable to secure the name of the owner. The Court found [respondent] in Indirect Civil Contempt of Court for his willful failure to pay [petitioner] monthly support, divide his pension and return monies he had transferred from the marital estate. As the case went to trial, [respondent] had still never complied.
[Petitioner's] counsel filed a Petition for Contribution to Attorney's Fees. There was no cross-examination and counsel admitted he had no issue with the petition. The
Court heard sufficient evidence of the assets of the parties and has reviewed the billing statement attached to Petitioner's Petition for Contribution. The Court finds the hourly rates are reasonable in light of counsel's legal standing within the community, the work was necessary and largely as a result of the Respondent's deceptive use of the marital estate and [respondent's] simple refusal to follow court orders."
¶ 99 The trial court determined specifically that the motions and hearings incurred in relation to respondent's willful failure to pay petitioner her monthly support, to arrange for dividing the Lucent pension, and to return the monies he had transferred from the marital estate were subject to contribution under Rule 508(b). Moreover, the trial court found that respondent had "increased [petitioner's] attorney's fees and costs immensely" by refusing to comply with discovery requests and court orders. Even as the case went to trial, respondent still had not complied with the orders and still had not returned the monies previously transferred from the marital estate. Finally, the court determined that petitioner's counsel's work was necessary, and the amounts were reasonable. The trial court's order, while perhaps not as detailed as respondent might have liked, nevertheless covered all the bases required by section 508(b), including reasonableness and necessity of the work. See In re Marriage of Gattone, 317 Ill.App.3d 346, 360 (2000) (fee award under section 508(b) is subject to a determination of reasonableness).
¶ 100 We also note that petitioner has provided a thorough recitation of hearings and motions required to respond to respondent's improper tactics causing needless delay and unnecessary costs. We have carefully reviewed the record and we cannot conclude that the trial court abused its discretion in ordering respondent to contribute $30,000 to petitioner's attorney fees. This is especially so when we consider respondent's ongoing and continuing course of refusing to obey and comply with the trial court's orders, cooperate with the discovery process, and his manipulation of the parties' finances, including, for example, choosing not to report a bank account containing over $25,000 because respondent did not feel that the account was important enough to include in his disclosures to petitioner and the court.
¶ 101 III. CONCLUSION
¶ 102 For the foregoing reasons, the judgment of the circuit court of Du Page County is affirmed.
¶ 103 Affirmed.