In re Marriage of Holtaus ( 2008 )

No. 2--07--0562 Filed: 11-18-08
_______________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
In re MARRIAGE OF ) Appeal from the Circuit Court
ANGELINE HOLTHAUS, ) of Du Page County.
)
Petitioner and Counterrespondent- )
Appellant and Cross-Appellee, )
)
and ) Nos. 05--D--553
) 05--D--583
NICHOLAS HOLTHAUS, )
) Honorable
Respondent and Counterpetitioner- ) Rodney W. Equi,
Appellee and Cross-Appellant. ) Judge, Presiding.
________________________________________________________________________________
PRESIDING JUSTICE ZENOFF delivered the opinion of the court:
On May 10, 2007, the circuit court of Du Page County entered a judgment dissolving the
marriage between petitioner, Angeline Holthaus, and respondent, Nicholas Holthaus. Angeline
appealed, arguing that the trial court erred in (1) striking her response to Nicholas's request to admit,
(2) finding that she dissipated $118,688, and (3) failing to treat the parties' attorney fees as advances
on their respective shares of the marital estate. Nicholas filed a cross-appeal, arguing that the trial
court erred in finding that Angeline dissipated only $118,688. For the following reasons, we reverse
and remand for further proceedings.
BACKGROUND
Angeline and Nicholas were married on June 21, 1961. They had two children
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marriage, both of whom were emancipated by the time of trial.
During the course of the marriage, Angeline, who was in charge of the parties'
finances, gambled at area casinos. Nicholas testified that she told him that the funds for
the gambling came from the money she earned preparing tax returns for people and that,
when he asked Angeline whether she had won or lost, she would tell him that she had
broken even. Angeline testified that, when she went to the casinos, she would often spend
"a few hundred dollars," which she obtained by cashing a check or withdrawing money
from the ATM. According to her, she would "come away with money."
According to Nicholas, in 1997 the parties ceased having a "romantic relationship"1
and in 1998 the parties ceased sharing a bedroom. Nicholas began to sleep in the rec room
while Angeline slept upstairs in the master bedroom. Nicholas described the environment in the
home at the time as hostile. In 2001, the parties were no longer sharing meals. Although Angeline
would cook the meals or the parties would order food in, Nicholas would take his plate and eat in
the rec room, away from Angeline.2 Further, in 2001, the parties not only slept in separate parts of
the house but also lived in separate parts of the house. Nicholas testified that the parties lived and
ate separately because every conversation between them ended in an argument. Although there were
1
Angeline testified at trial that she could not recall the last time that she and Nicholas had had
"marital relations," but she admitted that during her deposition she testified that it was in the late
1990s.
2
Angeline testified at trial that she and Nicholas did not stop eating meals together, but she
admitted that during her deposition she testified that Nicholas would either take his meal to another
room or eat quickly and then retreat to a separate room.
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times he thought things might get better, they always became worse and there was eventually a point
where the parties "just didn't communicate at all."
At trial, Nicholas described an incident that occurred in October 2001. After discovering two
ATM withdrawals made at the Grand Victoria Casino in Elgin, totaling $6,000, he confronted
Angeline. Her only response at the time was that she wanted a divorce. The following month,
Angeline gave Nicholas a letter in which she outlined her "plan" for the future. She stated that she
wanted the house and that she would be responsible for paying the equity loan if Nicholas did not
want to contribute. In addition, she stated that she would be responsible for all credit card debt. She
asked that Nicholas inform her of his plans for paying other household and car expenses and asked
that, in any case, he continue paying such expenses until March 2002 so that she could get her
"affairs in order." Angeline further stated in the letter that she and Nicholas could use the time "as
a cooling off period or a settling of affairs period, whichever would apply," depending upon whether
they chose to stay together or to separate. She concluded the letter by asking Nicholas to
communicate with her in writing, "as communication [had] completely broken down between
[them]."
After 2001, the parties together attended their son's wedding, made appearances at family
events, and went out to dinner several times. In addition, Nicholas testified that he went to casinos
with Angeline several times in order to help with Angeline's mother, who accompanied them.
Angeline's mother, Marie, lived with the parties for 16 years until she passed away in March
2006. While living with the parties, Marie owned a house in Chicago. In 2003, Angeline and
Nicholas performed some repair and remodeling work on the house. Nicholas testified that he did
much of the physical labor involved in repairing the house (the other portion of the physical labor
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was performed by contractors), while Angeline mostly wrote the checks to cover the costs of the
repairs. He also testified that the repairs and remodeling were paid for out of the parties' joint
account. Nicholas testified that he and Angeline repaired Marie's house to prepare it for sale.
Angeline testified that, although Nicholas did perform some of the work on Marie's home, he did not
do so to the extent that he claimed. Instead, contractors did much of the physical labor. She also
testified that the repairs and remodeling were paid for from the proceeds of an insurance claim Marie
had made for hail damage to the house sometime after 2000 and that, at the time the insurance claim
was made, the parties did not intend to sell the house. Angeline did admit, however, that the parties
had twice attempted to sell Marie's home.
According to Nicholas, while Marie lived with him and Angeline, Marie did not
have the assets to cover her living expenses and, in return for paying for Marie's living
expenses, he believed he and Angeline would receive Marie's house. In the end, Marie's
house did not sell, and Angeline inherited the house when Marie died. Angeline testified
that there was never an agreement that Marie would give the house to Angeline and
Nicholas.
In November 2004, Nicholas began to move some of his personal effects out of the
marital home. Angeline testified that, as of January 2005, she was doing the cooking,
cleaning, and shopping for the household. In February 2005, the parties got into an
argument after which Nicholas left the marital home permanently. He returned several
times in the weeks following his departure, to retrieve some of his personal items.
Nicholas testified that he believed "irreconcilable differences happened" as of
October 2001. Angeline testified that she believed the marriage was "irretrievably broken"
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as of February 2005, when Nicholas moved out of the marital home. When presented with
her deposition transcript in which she stated that she believed the marriage was
irreconcilably broken as of 1999 and that there was no hope for rehabilitation at that time,
Angeline admitted that she had made those statements during the deposition. She also
stated, however, that she did not remember being asked those questions and that she
misunderstood the question regarding whether she believed there was hope to rehabilitate
the marriage in 1999.
Angeline filed a petition for dissolution of the parties' marriage on March 10, 2005,
in case number 05--D--553. Four days later, on March 14, 2005, Nicholas filed his own
petition for dissolution of the marriage in case number 05--D--583. The trial court
consolidated the two cases on April 13, 2005.
On March 24, 2006, Nicholas served Angeline with a request to admit facts, pursuant
to Supreme Court Rule 216 (134 Ill. 2d R. 216), which was delivered to Angeline by Federal
Express on March 27, 2006. The request asked Angeline to admit that she had withdrawn
certain amounts of money for gambling purposes from various accounts held by the
parties, as detailed in Exhibit A attached to the request to admit. Exhibit A was a copy of
Nicholas's "Amended Notice of Intent to Claim Dissipation of Assets," which detailed all
of the alleged withdrawals from the parties' various accounts. Angeline served her answer
to Nicholas's request to admit facts on April 26, 2006. Nicholas subsequently filed a motion
to strike Angeline's answer, arguing that the answer was served two days after the 28-day
deadline provided for in Rule 216(c) and that Angeline thus should be deemed to have
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admitted all of the facts contained in the request. The trial court granted Nicholas's motion
to strike on June 5, 2006.
Following trial, on April 24, 2007, the trial court issued a letter order announcing its
decision on the issues presented at trial. The letter stated, in relevant part:
"Elemental to the disposition of this case is the issue of dissipation, the date
on which the marriage was irretrievably broken, and the validity of a request to
admit facts that Ms. Holthaus failed to timely answer. First, the court concludes that
the request to admit is indeed valid; while some of the facts sought may be
characterized as 'ultimate facts' such facts are appropriately the subject of a request
to admit.
Next, the court fixes the date of irretrievable breakdown as February[] 2005,
the date of physical separation. It may be true that the irretrievable breakdown
need not be the date of physical separation or filing. Yet whenever dissipation is
claimed the court hears mostly self-serving testimony about how the relationship
had deteriorated years in advance. A more objective determinant, though not
required, is certainly helpful. Here, for instance, despite Mr. Holthaus's testimony
concerning the irretrievable breakdown occurring in 2001, he and Ms. Holthaus
worked together (actually he says he did the work) to remodel/repair her mother's
house well into 2003. So when was the breakdown? There was no testimony of any
'triggering' event after the 2003 joint effort to repair Ms. Holthaus's mother's house.
Under the circumstances February 2005 is the date that the marriage was
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irretrievably broken. Therefore the amount of dissipation set forth in the Request
to Admit Facts (and coincidentally supported) is $118,688.00.
*** Next the court skews the division [of the marital estate] again to offset the
substantial attorney's fees incurred by Mr. Holthaus as a result of 1) the tracing
necessary to establish the amounts dissipated[,] 2) Ms. Holthaus's failure to be
forthcoming with discovery, and 3) the two aborted trial commencements
attributable to Ms. Holthaus and her counsel. Although no specific dollar amount
of those fees is set, the court considered the above factors in the division of property,
and subject to this division each party is responsible for his or her attorney's fees."
The trial court entered a judgment of dissolution on May 10, 2007. The judgment stated
that the trial court found that Angeline had dissipated $118,688, and the trial court
"allocated" that amount to her in its distribution of the marital estate. Angeline timely
appealed, and Nicholas filed a timely cross-appeal.
ANALYSIS
On appeal, Angeline argues that the trial court erred in (1) striking her response to
Nicholas's request to admit, (2) finding that she dissipated $118,688, and (3) failing to treat the
parties' attorney fees as advances on their respective shares of the marital estate. In his cross-appeal,
Nicholas argues that the trial court erred in finding that Angeline dissipated only $118,688. We
address each of these issues in turn.
A. Request to Admit
In her opening brief, Angeline argues that the trial court erred in refusing to allow her late
response to Nicholas's request to admit, and thus in striking the response, because there was no
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demonstrable prejudice to Nicholas as a result of Angeline's late response. Nicholas argues that the
trial court properly struck Angeline's response because the mere absence of prejudice is not a basis
for allowing a late response to a request to admit. Rather, according to Nicholas, Angeline was
required to show good cause for allowing her late response. Angeline acknowledges in her reply
brief that the case law supports Nicholas's position, and we agree.
Under Supreme Court Rule 216(a), a party may serve on the opposing party a
request that the opposing party admit the truth of specific facts contained in the request.
134 Ill. 2d R. 216(a). Rule 216(c) provides:
"Each of the matters of fact *** of which admission is requested is admitted
unless, within 28 days after service thereof, the party to whom the request is
directed serves upon the party requesting the admission either (1) a sworn
statement denying specifically the matters of which admission is requested or
setting forth in detail the reasons why he cannot truthfully admit or deny those
matters or (2) written objections on the ground that some or all of the requested
admissions are privileged or irrelevant or that the request is otherwise improper in
whole or in part." 134 Ill. 2d R. 216(c).
Pursuant to Supreme Court Rule 183, a trial court is permitted to extend the time for responding to
a request to admit, "for good cause shown." 134 Ill. 2d R. 183; Bright v. Dicke, 166 Ill. 2d 204, 208
(1995). "Although Rule 183 does give judges discretion to allow responses [to requests to admit]
to be served beyond the 28-day time limit, that discretion does not come into play under the rule
unless the responding party can first show good cause for the extension." Bright, 166 Ill. 2d at 209.
The absence of prejudice alone is insufficient to establish good cause under Rule 183.
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Bright, 166 Ill. 2d at 209. Whether good cause exists is fact-dependent and rests within the
sound discretion of the trial court; thus, the trial court's determination will not be disturbed
absent an abuse of discretion. Vision Point of Sale, Inc. v. Haas, 226 Ill. 2d 334, 353-54
(2007).
In her response to Nicholas's motion to strike her response to his request to admit,
Angeline did not contend that she had good cause for the delay in responding to the
request to admit. We are unable to ascertain whether she made such a contention during
the hearing on Nicholas's motion to strike, as the transcript from the hearing was not
included in the record on appeal. See Foutch v. O'Bryant, 99 Ill. 2d 389, 391-92 (1984) ("[A]n
appellant has the burden to present a sufficiently complete record of the proceedings at
trial to support a claim of error, and in the absence of such a record on appeal, it will be
presumed that the order entered by the trial court was in conformity with law and had a
sufficient factual basis. Any doubts which may arise from the incompleteness of the record
will be resolved against the appellant"). Most importantly, however, Angeline does not
argue on appeal that she demonstrated good cause. Thus, we cannot say that the trial court
abused its discretion. See Bright, 166 Ill. 2d at 209 (finding proper the trial court's order
denying the defendant an extension to respond to the plaintiff's request to admit, where
the defendant failed to show good cause).
B. Dissipation
Both Angeline and Nicholas argue that the trial court erred in finding that Angeline
dissipated $118,688. Angeline contends that the trial court erroneously included $86,000
that Angeline withdrew before February 2005, which the trial court determined was the
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date of the irretrievable breakdown of the parties' marriage. Nicholas, on the other hand,
contends that the trial court erred in calculating the dissipation only as of February 2005.
We agree with Nicholas.
Section 503(d) of the Illinois Marriage and Dissolution of Marriage Act (Act) lists the
relevant factors a trial court should consider in determining how to distribute marital
property in a dissolution proceeding. 750 ILCS 5/503(d) (West 2006). Included in the
factors is "the dissipation by each party of the marital or non-marital property." 750 ILCS
5/503(d)(2) (West 2006). Dissipation is the " 'use of marital property for the sole benefit of
one of the spouses for a purpose unrelated to the marriage at a time that the marriage is
undergoing an irreconcilable breakdown.' " In re Marriage of O'Neill, 138 Ill. 2d 487, 497
(1990), quoting In re Marriage of Petrovich, 154 Ill. App. 3d 881, 886 (1987). Whether
dissipation has occurred is a question of fact to be determined by the trial court, and such
a determination will not be disturbed on appeal unless it is against the manifest weight of
the evidence. In re Marriage of Vancura, 356 Ill. App. 3d 200, 204 (2005) (clarifying that the
standard of review for a dissipation determination is the manifest-weight-of-the-evidence
standard, not the oft-cited abuse-of-discretion standard). "A factual finding is against the
manifest weight of the evidence when the opposite conclusion is clearly evident or the
finding is arbitrary, unreasonable, or not based in evidence." Samour, Inc. v. Board of
Election Commissioners, 224 Ill. 2d 530, 544 (2007).
Before addressing the trial court's finding, we first note that Angeline argues that
dissipation applies to improper expenditures that are made only after the marriage has
undergone an irreconcilable breakdown. In support of this position, Angeline relies on
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three cases: In re Marriage of DeLarco, 313 Ill. App. 3d 107 (2000), In re Marriage of Toole,
273 Ill. App. 3d 607 (1995), and O'Neill, 138 Ill. 2d 487. In DeLarco, the appellate court,
citing Toole, stated that dissipation "applies to allegedly improper expenditures of marital
funds for purposes unrelated to the marriage, at a time after the marriage has irretrievably
or irreconcilably broken down." (Emphasis added.) DeLarco, 313 Ill. App. 3d at 112. In
Toole, the appellate court had defined it the same way, relying on the supreme court case
of O'Neill. Toole, 273 Ill. App. 3d at 615. The court in Toole, however, applied the holding
in O'Neill to a situation where, at the time of the alleged dissipation, the marriage had
undergone an irreconcilable breakdown as established by the parties' separation. As noted,
in O'Neill, the supreme court held that dissipation is the " 'use of marital property for the
sole benefit of one of the spouses for a purpose unrelated to the marriage at a time that the
marriage is undergoing an irreconcilable breakdown' " (emphasis added) (O'Neill, 138 Ill.
2d at 497, quoting Petrovich, 154 Ill. App. 3d at 886), not after the marriage is irreconcilably
broken.
The cases of Toole and DeLarco are distinguishable from the present case. In Toole,
the dissipation occurred when the marriage had irreconcilably broken down, rather than
when the marriage was in the process of irreconcilably breaking down. The court in Toole
merely applied the definition contained in O'Neill to include within its coverage the period
from the beginning of the breakdown of the marriage through the entry of the final
judgment. Additionally, Angeline's citation to DeLarco references dicta. There, the
appellate court held simply that the trial court had miscalculated the attorney fees the
petitioner had paid out of marital assets. The appellate court directed the trial court, upon
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remand, to redistribute the marital estate in light of the correct amount, which was to be
considered an advance on the petitioner's share. DeLarco, 313 Ill. App. 3d at 112. In our
view, none of the cases we have reviewed, including DeLarco and Toole, are in conflict
with the holding in O'Neill. Accordingly, we disagree with Angeline's contention that
dissipation occurs only after an irreconcilable breakdown has occurred, and we turn now
to the trial court's specific finding.
It appears that the trial court calculated dissipation, not from when the parties'
marriage began undergoing an irreconcilable breakdown, but rather from when the parties'
marriage had completed the process of breaking down. This is apparent from the trial
court's language in its letter order: "[T]he court fixes the date of irretrievable breakdown
as February[] 2005, the date of physical separation." "So when was the breakdown?"
"Under the circumstances February 2005 is the date that the marriage was irretrievably
broken." This language demonstrates that the trial court was attempting to pinpoint the
date on which the parties' marriage "was irretrievably broken" rather than attempting to
determine when the marriage began to irreconcilably break down. As previously
discussed, dissipation is to be calculated from the time the parties' marriage begins to
undergo an irreconcilable breakdown, not from a date after which it is irreconcilably
broken. In re Marriage of Olson, 223 Ill. App. 3d 636, 647 (1992).
Before reversing the trial court, however, we must first determine whether the trial
court's error in applying the incorrect standard for calculating dissipation was harmless.
See In re Marriage of Wilder, 122 Ill. App. 3d 338, 344-45 (1983) ("not every error committed
by the trial court in a civil case leads to reversal *** and reversal is required only where it
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appears that the outcome might have been different had the error not occurred"). If the
parties' marriage began undergoing an irreconcilable breakdown in February 2005, then
the trial court's error was harmless. If, on the other hand, the parties' marriage began
undergoing an irreconcilable breakdown prior to February 2005, then the error was not
harmless, and we must reverse and remand to the trial court for a recalculation of
dissipation.
Although the February 2005 argument between the parties does appear to have been
the final straw in the process of the irreconcilable breakdown of the parties' marriage, the
evidence presented at trial by both Angeline and Nicholas strongly indicates that the
parties' marriage was undergoing an irreconcilable breakdown long before then. Between
1997 and 2001, the parties stopped having marital relations, sleeping in the same bedroom,
living in the same part of the house, sharing meals, and communicating. They were living
in an environment that Nicholas testified, and Angeline did not contest, was hostile. In
October 2001, following a confrontation between the parties regarding $6,000 Angeline had
withdrawn at a casino, Angeline told Nicholas she wanted a divorce. The following
month, she went so far as to write him a letter detailing her "plan" for the future, which
included a suggested division of responsibility between the parties for their financial
obligations and which indicated that Angeline wanted to keep the marital home. In
November 2004, Nicholas began to move personal belongings out of the marital home, and
he finally moved out permanently in February 2005. From this evidence, we conclude that
the parties' marriage was undergoing an irreconcilable breakdown long before February
2005. See In re Marriage of Carter, 317 Ill. App. 3d 546, 552 (2000) (holding that the trial
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court's determination of when the parties' marriage was undergoing an irreconcilable
breakdown was against the manifest weight of the evidence where, prior to the date
determined by the trial court, the parties only occasionally slept together, mostly lived
separate lives, kept finances at arm's length, and did not share meals or child-rearing
responsibilities).
According to the trial court's letter order, its determination of February 2005 was
based, at least in part, on the fact that the parties "worked together" on Marie's home in
2003. The evidence presented at trial by both parties regarding the repair of Marie's home,
however, fails to indicate that the parties' marriage was not undergoing an irreconcilable
breakdown in 2003, despite their cooperation on the repairs. Although the evidence did
establish that both parties participated in the repair of Marie's house, it appears that each
did so apart from the other, much like they lived the rest of their lives. While Nicholas
performed a portion of the physical labor, Angeline wrote checks and hired the necessary
contractors. Rather than serving as a bonding, or even friendly, experience, the process of
repairing Marie's house seems to have been one in which the parties participated simply
in order to sell the home.
Angeline argues that the trial court could have found that the marriage was
undergoing an irreconcilable breakdown only as of February 2005, because prior to that
date Nicholas continued to live in the marital home, the parties attended family events
together such as their son's wedding, the parties went out to dinner together a few times,
Nicholas helped Angeline take Marie to the casino, and Angeline did the shopping,
cooking, and cleaning for the parties. We do not believe that these facts, either individually
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or together, negate the obvious irreconcilable breakdown that was taking place in the
parties' marriage prior to February 2005. None of these facts indicates that the parties were
attempting to reconcile or were even getting along. Taken with the facts that the parties
lived in separate parts of the house, slept in separate rooms, did not communicate, and
rarely ate meals together, the facts cited by Angeline indicate, at most, an effort by the
parties to maintain a minimum level of civility in front of third parties and to keep the
household operating.
As the parties' marriage was undergoing an irreconcilable breakdown prior to
February 2005, we hold that the trial court's error in applying the incorrect standard in
calculating dissipation was not harmless. Accordingly, we must reverse and remand this
matter to the trial court. We do not fix a specific date for when the irreconcilable
breakdown began. Rather, we determine only that the irreconcilable breakdown began
sometime prior to February 2005. Whether it began in the late 1990s when the parties
ceased having marital relations and sharing a bedroom or in 2001 when Angeline stated
she wanted a divorce and made a plan for separating the parties' financial responsibilities
or at some other time supported by the evidence is a question of fact to be answered by the
trial court. See Vancura, 356 Ill. App. 3d at 204. Accordingly, the trial court's decision on
the issue of dissipation is reversed and the matter is remanded for further proceedings in
accordance with this opinion.
C. Attorney Fees
Angeline's final argument on appeal is that the trial court erred in failing to treat the
parties' attorney fees as advances on their respective shares of the marital estate, under
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section 501(c--1)(2) of the Act (750 ILCS 5/501(c--1)(2) (West 2006)). Nicholas contends that
Angeline has forfeited this argument because, although Angeline argued in the trial court
that attorney fees paid by the parties should be treated as dissipation, she did not argue
that they should be treated as advances on the marital estate pursuant to section 501(c--
1)(2).
"Issues not raised in the trial court are [forfeited] and cannot be argued for the first
time on appeal." In re Marriage of Minear, 181 Ill. 2d 552, 564 (1998); see also In re
Marriage of Wolff, 355 Ill. App. 3d 403, 414 (2005). Forfeiture, however, is a limitation on
the parties, not on this court. Village of Lake Villa v. Stokovich, 211 Ill. 2d 106, 121 (2004).
When necessary to obtain a just result or to maintain a sound and uniform body of
precedent, we may overlook forfeiture and address the merits of the issue. Village of Lake
Villa, 211 Ill. 2d at 121. We choose to address Angeline's contention because it is necessary
to the development of a sound body of precedent concerning the application of section
501(c--1)(2) of the Act. See Collins v. Lake Forest Hospital, 213 Ill. 2d 234, 239 (2004)
(choosing to overlook forfeiture where addressing the issue was "critical to the
development of a sound body of precedent concerning the proper interpretation, and thus
implementation, of legislation concerning vital care and treatment decisions for patients
lacking decisional capacity").
Angeline contends that, under section 501(c--1)(2), the trial court erred "as a matter
of law" when it failed to treat the parties' attorney fees as advances on their respective
shares of the marital estate. Rather, the trial court "skew[ed]" the division of the marital
estate in Nicholas's favor to offset the attorney fees he incurred as a result of Angeline's
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actions during the dissolution proceedings. Subject to that division, the trial court ordered
the parties to be responsible for their respective attorney fees.
Section 501(c--1)(2) of the Act provides:
"Unless otherwise ordered by the court at the final hearing between the parties or
in a hearing under subsection (j) of Section 503 or subsection (c) of Section 508,
interim awards [of attorney fees], as well as the aggregate of all other payments by
each party to counsel and related payments to third parties, shall be deemed to have
been advances from the parties' marital estate." 750 ILCS 5/501(c--1)(2) (West 2006).
The plain language of section 501(c--1)(2) makes apparent that the trial court is required
to treat the parties' attorney fees as advances, "[u]nless otherwise ordered." (Emphasis
added.) 750 ILCS 5/501(c--1)(2) (West 2006); see also In re Marriage of Beyer, 324 Ill. App.
3d 305, 314 (2001) (noting that section 501(c--1)(2) creates a presumption that attorney fees
will be treated as advances, but that the presumption does not apply where the court
orders otherwise).
Here, the trial court ordered otherwise when following trial it ordered that, subject
to the division of the marital estate, which was skewed so as to compensate Nicholas for
attorney fees incurred as a result of Angeline's behavior during the proceedings, the parties
were to be responsible for their respective attorney fees. Accordingly, the trial court's
decision falls squarely within the confines of the statute.
Angeline makes no other argument as to why the trial court's decision on attorney
fees was erroneous, except to argue in her reply brief that the trial court erred in not
making clear what portion of Nicholas's fees was attributable to Angeline's behavior.
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Although Angeline contends that this argument was encompassed by the general
statement in her opening brief that the trial court "committed reversible error, as a matter
of law," the argument was not addressed in her opening brief and was raised for the first
time in her reply brief with no authority to support her contention of error. Thus, we will
not consider it. 210 Ill. 2d R. 341(j) (stating that a reply brief "shall be confined strictly to replying
to arguments presented in the brief of the appellee"); 210 Ill. 2d R. 341(h)(7) ("Points not argued [in
the appellant's brief] are waived and shall not be raised in the reply brief ***"); Sylvester v. Chicago
Park District, 179 Ill. 2d 500, 507 (1997). Thus, we cannot say that the trial court abused its
discretion in requiring the parties to be responsible for their respective attorney fees. See
In re Marriage of Bussey, 108 Ill. 2d 286, 299 (1985) ("The awarding of attorney fees and the
proportion to be paid are within the sound discretion of the trial court and will not be
disturbed on appeal, absent an abuse of discretion").
As this matter is remanded for further proceedings on the issue of dissipation, the
trial court may readdress the division of the marital estate, including attorney fees, in light
of its recalculation of the amount of dissipation established from the beginning of the
irreconcilable breakdown of the marriage.
CONCLUSION
For the foregoing reasons, the judgment of the Du Page County circuit court is
reversed and the matter is remanded for further proceedings.
Reversed and remanded.
McLAREN and SCHOSTOK, JJ., concur.
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