In re Marriage of O'Malley ( 2021 )

2021 IL App (2d) 190917-UNos. 2-19-0917 & 2-20-0066 cons.
Order filed August 3, 2021
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
In re MARRIAGE OF MAURA J. ) Appeal from the Circuit Court
O’MALLEY, ) of Kane County.
)
Petitioner-Appellee, )
)
and ) No. 18-D-242
)
JOSEPH B. O’MALLEY, ) Honorable
) Joseph M. Grady and William J. Parkhurst,
Respondent-Appellant. ) Judges, Presiding.
______________________________________________________________________________
JUSTICE HUDSON delivered the judgment of the court.
Justices Birkett and Brennan concurred in the judgment.
ORDER
¶1 Held: (1) Trial court did not err in using expatriate allowance and related tax-protection
amounts to determine husband’s available income for purposes of setting spousal
support; (2) trial court erred in including value of restricted stock units awarded to
wife as part of equitable distribution of marital assets to determine husband’s
available income for purposes of setting spousal support; (3) award of monthly
maintenance to wife in the amount of $15,000 per month did not constitute an abuse
of discretion; (4) trial court did not err in finding that husband failed to prove by
clear and convincing evidence amount of gain attributable to husband’s non-marital
retirement assets; (5) trial court did not abuse its discretion in ordering husband to
contribute to wife’s attorney fees pursuant to section 503(j) of the Illinois Marriage
and Dissolution of Marriage Act; but (6) trial court abused its discretion in ordering
husband to contribute to wife’s attorney fees pursuant to section 508(b) of the
Illinois Marriage and Dissolution of Marriage Act.
2021 IL App (2d) 190917-U¶2 Respondent, Joseph B. O’Malley, appeals from an order of the circuit court of Kane County
dissolving his marriage to petitioner, Maura J. O’Malley. On appeal, respondent raises three
principal contentions. First, he argues that the trial court erred in calculating his income for
purposes of setting spousal support. Second, he argues that the trial court erred in failing to attribute
gain to his non-marital retirement assets. Third, he argues that the trial court erred in ordering him
to pay attorney fees incurred by petitioner. For the reasons set forth below, we affirm in part and
reverse in part.
¶3 I. BACKGROUND
¶4 The parties were married on September 2, 1988. Four children were born to the parties
during the marriage. On February 26, 2018, petitioner filed a verified petition for dissolution of
marriage. On August 29, 2018, respondent filed a counter-petition for dissolution of marriage. On
March 20, 2019, the parties entered into an Agreed Allocation Judgment and Parenting Plan for
D.O., the only child who was a minor at the time of the dissolution proceedings. The remaining
issues were tried over several dates between March 19 and April 3, 2019, with the parties being
the only witnesses to testify.
¶5 At the time of trial, petitioner resided in Kane County while respondent lived in Geneva,
Switzerland. Petitioner was 55 years of age and respondent was 56 years of age. Both parties
testified they were then in good health, although respondent had surgery in 2018 to remove a
cancerous tumor from his thigh. Petitioner recounted that she had left high school early and worked
full time in retail. Petitioner received a GED in 1985. Petitioner then worked as an office
administrator for a national temporary health company, becoming branch manager before she left
that employment in 1991. Thereafter, petitioner worked for two years at a local temporary health
firm before the parties decided she would stay home to raise their children. The highest annual
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2021 IL App (2d) 190917-Uincome petitioner made at either workplace was about $30,000. Between 1993 and 1998, petitioner
worked as a part-time salesperson at Gap Kids. Petitioner also took a certification class for
Montessori teacher training, which led to a position as an assistant to the director at a Montessori
school. At that time, two of the parties’ children attended the school, and petitioner received
compensation in the form of a tuition discount. After the parties’ third child was born, they decided
petitioner would discontinue her employment at Gap Kids, although she remained with the school
to help with tuition. Petitioner continued to work at the school when the parties’ youngest child,
D.O., was born in December 2001. Thereafter, petitioner devoted her time to volunteering for
different organizations, including the children’s schools and an animal shelter, and caring for the
children and the marital home.
¶6 Respondent started working at age 15, and, during high school, began working at Jewel
Food Stores. Respondent remained employed at Jewel on a part-time basis from 1979 to 1991.
During that employment, respondent contributed to the company’s retirement plan every year.
Early in 1984, respondent also took a part-time teller position at Dunham Bank while continuing
to work part-time at Jewel. When respondent graduated from college in December 1984, he
continued his employment at both Jewel and Dunham Bank. Thereafter, Dunham Bank was
acquired by First Financial Services, which was thereafter acquired in succession by First Chicago,
First Chicago NBD, Bank One, and, ultimately, JP Morgan Chase. Respondent continued to work
at the bank during these transitions, and he contributed to his retirement plan every year he was
there. By the time he left Bank One in 1999, he had risen to the position of first vice president.
Respondent then worked a short stint at The Northern Trust, followed by a position with La Salle
Bank, where he stayed from June 1999 to March 2008. In 2008, he moved to JP Morgan Chase,
where he was employed at the time of trial.
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2021 IL App (2d) 190917-U¶7 In the summer of 2013, respondent talked about a possible position with JP Morgan Chase
in Geneva, Switzerland, and, according to petitioner, “it sounded exciting to the family.” Petitioner
and the children “encourage[ed] [respondent] to look into it.” Petitioner testified that she was
“absolutely” in favor of the relocation as it presented an “exciting opportunity” for the children to
be “exposed to different cultures and nationalities, [and] to travel.” Although the offered position
was “indefinite,” the parties sold their house and made the international move in 2014.
¶8 Since then, respondent has been on foreign assignment. He works for JP Morgan Chase
U.S. in Switzerland and is considered to be “on loan” from JP Morgan Chase U.S. to JP Morgan
Switzerland, which is a separate legal entity. Respondent is paid by JP Morgan Chase U.S., which
remains his “official employer.” Respondent does not have a written employment agreement with
either JP Morgan Chase U.S. or JP Morgan Switzerland. Respondent testified that the lack of a
written employment agreement is not unusual. Upon his assignment in Switzerland, respondent
assumed his current title of “managing director—senior credit officer.” In this position, respondent
is responsible for the credit and loan portfolio of JP Morgan Switzerland, which is valued at
approximately $14 billion. This involves approving and declining requests of credit, monitoring
that credit, and collecting on credit that has defaulted. He also reports directly to the audit
committee and the board of directors, and he sits on the management committee.
¶9 Respondent testified that when he took the position in Switzerland, he was offered a
“relocation package”—commonly known as an “expat allowance”—which included family
relocation expenses, a housing allowance, an education allowance for the children, allowance for
language courses, and family airfare to travel between the U.S. and Switzerland for holidays.
Respondent testified that some of these line-item allowances were recurring, while others were
incurred only once. Respondent received this package of benefits as part of his compensation and,
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2021 IL App (2d) 190917-Uearly in his foreign assignment, the expat allowance exceeded $200,000 annually, with respondent
being taxed on these benefits as income. To ensure respondent was protected from a tax standpoint,
his employer provided respondent additional compensation to cover the tax liability on these
benefits, thereby effectively paying his annual taxes on the expat allowance.
¶ 10 Respondent testified regarding his 2018 annual compensation summary, which showed his
earnings for 2018, the year-end that was closest to the trial. Respondent indicated that his “total
compensation” for 2018, excluding the expat allowance, was $429,499, which was comprised of
two components: (1) $302,999 in salary and (2) $126,500 in a discretionary “annual incentive
award.” Respondent elaborated that the salary component was the sum of respondent’s “home base
salary,” i.e., his gross annual base salary of 275,000 Swiss Francs, and a “FAP differential,” i.e.,
an additional 20,000 Swiss Francs he received due to his foreign assignment, totaling 295,000
Swiss Francs, or roughly $303,000. Respondent further explained that the “annual incentive
award” was broken down into a cash portion ($82,225) and a restricted stock unit (RSU) portion
($44,275). Respondent testified that his expat allowance is not included in his “total
compensation,” but is accounted for separately, as reflected in a February 28, 2019, monthly
“Expatriate Pay Detail Report.” The “earning” section of the Expatriate Pay Detail Report includes
three entries, with the first two entries—respondent’s “home base salary” and “FAP differential”—
equaling the roughly $303,000 in U.S. Dollars shown as his “salary” on the 2018 annual
compensation summary. The third entry is respondent’s expat allowance, which is listed as
“Transition allow—Host based.”
¶ 11 The February 28, 2019, Expatriate Pay Detail Report—the most current evidence of
respondent’s monthly compensation at the time of the trial—showed that respondent’s monthly
expat allowance was 6325.42 Swiss Francs, which equaled $6395.83. Respondent testified that his
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2021 IL App (2d) 190917-Umonthly expat allowance decreases over time and that, over a course of five years abroad, the expat
allowance will be phased-out and will fully terminate in February 2020. The “U.S. Year to Date”
total for the expat allowance as of February 2019 was $19,589.48. Although this is more than what
it should be for two months at $6395 per month, respondent explained the monthly amount had
just decreased in February 2019, as was the standard for the prior three years. Each year between
2017 and 2019, the package was reduced by 33% effective with the February payroll. Thus, the
February 2019 year-to-date sum included the January expat allowance in a higher amount plus the
newly-reduced February amount. As noted, the expat allowance included a tax-protection amount
to cover the income taxes due on that allowance, and all are reported as part of respondent’s W-2
wages. Respondent testified that although the expat allowance and the related taxes are included
as wages on his W-2 statement, he does not actually receive this money in-hand.
¶ 12 In addition to the monthly “earnings” listed in the February 2019 Expatriate Pay Detail
Report, respondent also has the potential to be awarded an annual incentive award. As noted above,
respondent’s 2018 annual compensation summary showed that his 2018 award, which was paid in
2019, totaled $126,500, with 65% paid in cash ($82,225) and 35% comprised of a grant of RSUs
($44,275). Although respondent has received an incentive award every year he has been in
Switzerland, the award is “completely discretionary” and in some prior years no incentive award
was given.
¶ 13 Respondent explained that when he is granted an award of RSUs, he cannot immediately
sell that stock for cash. Instead, the RSUs are earned out over three years in an established vesting
cycle if respondent remains employed with the firm. This means that the first year after the grant,
he receives nothing. After the second year, he receives 50% of the award upon its vesting. At the
end of the third year, the remaining 50% of the award vests. The RSUs are taxable as ordinary
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2021 IL App (2d) 190917-Uincome at the time they are received, and the value at that time may be greater or less than the
value at the time of the grant.
¶ 14 Respondent testified that the parties’ 2015 U.S. income tax return showed total income of
$677,493. The parties’ U.S. tax for 2015 was $63,223. Respondent was also assessed $147,959 in
Swiss taxes, which both he and JP Morgan U.S. pay. Respondent pays the Swiss taxes monthly on
his base pay, cash bonus, and vested RSUs, and JP Morgan U.S. pays taxes on the expat allowance.
¶ 15 The “tax protection” respondent received from JP Morgan U.S. in 2015 in the form of a
gross-up for the taxes incurred on his expat allowance was explained in a letter dated April 5, 2016,
that he received from his accountants, KPMG, which prepares his annual tax filings for both the
U.S. and Switzerland. The letter provides a detailed breakdown of the numerous line-item
expenses that are covered by the expat allowance, and shows that respondent’s total expat
allowance for 2015 was $204,004. The letter also shows that respondent’s 2015 wages—including
the “tax protected items,” i.e., the expat allowance—totaled $659,483. Upon dividing respondent’s
2015 wages of $659,483 into two categories of “taxpayer responsibility” and “JP Morgan Chase
responsibility” (the latter being the expat allowance), the letter reflects that JP Morgan U.S. owed
respondent $46,832 for taxes attributable to the $204,004 of his expat allowance. The letter further
explains this “tax reimbursement amount” represents “additional taxable income [to respondent]
which is reportable in 2016.”
¶ 16 Respondent testified that the parties’ 2016 U.S. tax return largely tracked that of 2015,
except it showed increased compensation because the value of the RSUs that vested in 2016 had
significantly increased due to a market upturn between the time they were awarded in 2013 and
thereafter vested in 2016.
¶ 17 In 2017, the parties U.S. tax return included a foreign tax credit statement showing
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2021 IL App (2d) 190917-U$218,081 paid in Swiss taxes and provided an overview of all foreign taxes paid from 2014 through
2017. The 2017 “tax protection” letter issued by KPMG dated April 6, 2018, showed that for 2017,
respondent’s expat allowance was $229,658 and that of his total $745,537 in W-2 wages, JP
Morgan U.S. owed respondent $60,250 that was attributable to taxes due on the expat allowance
and would appear as taxable income in 2018. Respondent testified that by the time of trial, many
of the listed categories that made up the 2017 expat allowance of $229,658 had been phased out
and reduced into a monthly payment of approximately $6395, or $76,740 annually.
¶ 18 Respondent acknowledged that his W-2 statements from 2015 to 2018 reflected that his
income had been consistently rising during the period he worked in Switzerland, with his Medicare
wages increasing from $683,482 in 2015 to $791,808 in 2018. Respondent testified, however, that
although his reported income increased, his guaranteed salary did not. Moreover, he testified that
he did not receive all the money that was reported because of deductions for income tax, Medicare,
Social Security, insurance, and other items.
¶ 19 Respondent prepared a balance sheet dated March 18, 2019, reflecting the parties’ assets
and liabilities. Respondent testified that he has no pension benefits from JP Morgan Switzerland
because he is not employed by that entity. However, as reflected on the balance sheet, the parties
have several retirement accounts, two of which respondent claimed were partly non-marital
because he had been contributing funds to them prior to the parties’ 1988 marriage: (1) a JP
Morgan Chase 401(k) with a balance of approximately $1.4 million and (2) a JP Morgan Chase
individual retirement account (IRA) with a balance of approximately $636,000.
¶ 20 In support of his non-marital claim, respondent introduced his individual tax returns from
1985 through 1988 to illustrate his pattern of pre-marital retirement contributions. The 1985, 1986,
and 1987 returns showed contributions of $1000, $2000, and $300, respectively, that were never
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2021 IL App (2d) 190917-Uwithdrawn and which respondent stated were part of the JP Morgan Chase IRA. Respondent’s W-
2 statements from Jewel accompanied his 1987 return and showed his participation in Jewel’s
pension and deferred compensation plans. Respondent never took any distributions from the Jewel
accounts, and he stated they rolled over into the JP Morgan Chase IRA. Respondent’s 1987 tax
return also included W-2 statements from First Chicago, confirming he participated in its pension
and deferred compensation plans as well. Respondent never received distributions from the First
Chicago plans. The First Chicago deferred compensation plan was the predecessor to the current
JP Morgan Chase 401(k) plan, and the First Chicago pension plan is now part of the JP Morgan
Chase pension plan. In 1988, respondent continued to work for Jewel and First Chicago, making
these same types of contributions and not withdrawing anything from the plans. Respondent never
withdrew any money from his retirement accounts and reinvested earnings. Respondent always
contributed to retirement plans when they were available, and he oversaw the management of his
retirement assets both before and during the marriage.
¶ 21 Respondent testified that when a retirement account earns dividends and interest, the
account “increases in value using the time value of money theory.” Over petitioner’s objection,
respondent performed a calculation to determine the current value of his pre-marital contributions
to the JP Morgan Chase 401(k) and IRA accounts by analyzing the rate of return for the S&P 500
over the 30-year term of the parties’ marriage. Considering reinvested dividends, the return rate
was 10.295%. Respondent then applied this 10.295% rate of return to his estimated $20,000 of
pre-marital contributions and the reinvestment of the dividends over the course of the 30-year
marriage to conclude his pre-marital contribution was now worth $389,000, and that this was the
amount of non-marital funds contained in the JP Morgan Chase 401(k) and IRA accounts.
Petitioner confirmed that when she met respondent she knew he was a “saver” and that respondent
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2021 IL App (2d) 190917-Ucontinued to be a “saver” during the marriage.
¶ 22 As to the marital standard of living, respondent testified that during the marriage, the
parties purchased luxury vehicles, but most were used and several years old when acquired. He
also testified that the standard and cost of living was significantly higher in Switzerland, including
for housing, food, and insurance. For instance, he paid $7400 per month in rent in Switzerland.
Petitioner testified that when the parties lived in West Chicago prior to moving to Switzerland,
they had a “high” standard of living. Petitioner testified that respondent frequently bought her
jewelry during the marriage, including sapphire earrings, diamond earrings, and an Omega watch.
Petitioner also stated the parties “lived well but frugally” during their marriage and that she and
respondent lived the lifestyle of “savers.” Moreover, the family traveled extensively both before
and after moving to Switzerland, including trips to Colorado, Florida, California, Aruba, Puerto
Rico, Costa Rica, Mexico, England, France, Greece, Italy, Ireland, Spain, and Thailand.
¶ 23 In October 2017, respondent told petitioner he was having an affair. Respondent admitted
at trial that in 2016, he became romantically involved with another woman, Noema Morales. In
March 2017, respondent loaned Morales $170,000, without petitioner’s knowledge or prior
consent. After respondent’s relationship with Morales ended, he met a second woman, Katazryna
Podogorna, in March 2017. Respondent subsequently hired an attorney to sue Morales for
repayment of the loan. Respondent has incurred more than $15,000 in legal fees associated with
the lawsuit against Morales. As of the date of trial, Morales had paid back roughly $18,000 of the
loan. Respondent remained romantically involved with Podogorna at the time of trial. In December
2017, respondent gave Podogorna charge privileges on one of his credit cards.
¶ 24 After petitioner learned of respondent’s affairs, she flew back to Illinois in February 2018
and filed for divorce. Although petitioner returned to Switzerland so D.O. could finish her school
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2021 IL App (2d) 190917-Uyear there, she ultimately moved back to Illinois on July 17, 2018. Petitioner started to look for
work in January 2019. At the time of her deposition in February 2019, she had completed job
applications at Costco and Delnor Hospital. After her deposition, she applied to a few more places,
including grocery stores and an animal shelter. She had no interviews and did not utilize any
counseling service to search for jobs.
¶ 25 Petitioner submitted two financial affidavits. The first was dated June 11, 2018. It estimated
petitioner’s monthly expenditures at nearly $18,000 based on expenses incurred in Switzerland,
where she was living at the time. Petitioner acknowledged that the cost of living in Switzerland is
higher and that the listed expenditures included an entry of $7500 for rent in Switzerland, as well
as higher expenses for utilities such as gas, electric, and water. Petitioner stated that the first
affidavit contained several “errors,” including: (1) listing all four children as living with her when
only the two youngest did; (2) listing expenses for maid service in Switzerland which she did not
have in Illinois; (3) claiming $2758 in tuition for D.O.’s private school in Switzerland when D.O.
attended public school in Illinois; and (4) listing a $533 monthly combined expense for school
trips, tutoring, and extracurricular costs in Switzerland that D.O. did not incur in Illinois.
¶ 26 By the time petitioner completed her second affidavit dated February 18, 2019, she had
lived in Illinois for more than six months, and was paying $2800 per month in rent. However, she
stated that the second affidavit included many of the same figures reflecting Switzerland expenses
used in her prior affidavit because she “was saving time.” In addition to showing an incorrect
address, the second affidavit, which listed $14,378 in monthly expenses, repeated several
“mistakes” petitioner had acknowledged in her first affidavit, including that all four children lived
with her and listing Switzerland tuition and other school-related expenses totaling more than $3200
per month that were not incurred on behalf of D.O. in Illinois.
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2021 IL App (2d) 190917-U¶ 27 During trial, petitioner submitted, over respondent’s objection, an undated document titled
“Maura’s Living Expenses” that claimed $13,400 in monthly expenses. Petitioner testified the
document was “probably” prepared within four weeks prior to trial. Petitioner testified she
regularly paid expenses for her three adult children and she had used receipts and bills from July
2018 onward to prepare this exhibit, although those underlying documents were not produced.
¶ 28 The parties also filed dissipation claims against each other. Respondent alleged petitioner
dissipated $148,035 based upon her use of credit cards and “excessive spending” that was “outside
the norm of [the marital] standard of living.” With respect to the $648,633 dissipation claim
petitioner alleged against him, respondent admitted he had dissipated $163,372 related to payments
made to his current girlfriend. Respondent denied the remainder of petitioner’s allegations,
asserting she had incorrectly included many non-dissipation items. In turn, petitioner
acknowledged that her $648,633 dissipation claim against respondent was not signed by her. She
also testified to numerous “mistakes” in claiming items as dissipation, including family vacations,
balance transfers between marital accounts, physician charges she incurred for surgery, and cash
withdrawals made by respondent. Petitioner confirmed she could have been “more vigilant” in
preparing her claim, and it would have been less without the “mistakes,” although she did not
know by how much.
¶ 29 After the trial concluded, but before closing arguments, respondent filed on April 17, 2019,
a petition for contribution to attorney fees and costs and for sanctions pursuant to sections 501,
503, and 508 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/501, 503,
508 (West 2018)) and Illinois Supreme Court Rule 137 (eff. Jan. 1, 2018). Respondent alleged
petitioner had engaged in “unreasonable litigiousness” and “a pattern of conduct that unnecessarily
increased the cost of litigation” including: (1) petitioner’s confirmation at trial that her dissipation
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2021 IL App (2d) 190917-Uclaim was “inflated,” prepared with “limited to no investigation” and that she could have been
“ ‘more vigilant’ in reviewing the transactions,” many of which were her personal expenses and
those of the family; (2) her “recklessly prepared financial affidavits” that included “grossly inflated
expenses that were no longer being incurred or were over estimated [sic],” resulting in her being
“impeached several times while on the stand with her deposition testimony” due to “a number of
mistakes and errors”; and (3) petitioner’s “repeated failures to abide by Illinois Supreme Court
discovery rules as evidenced by her trial testimony.”
¶ 30 On April 18, 2019, petitioner filed a motion for leave to file her own petition for fees and
costs pursuant to section 503(j) of the Act (750 ILCS 5/503(j) (West 2018)). Petitioner asserted
that she had incurred attorney fees and costs in excess of $120,000, of which $53,648 remained
unpaid. Petitioner requested that respondent contribute $53,648 to her unpaid attorney fees and
costs, “plus an additional sum of at least $15,000” to “prepare the proposed Judgment for
Dissolution of Marriage with findings, respond and defend against [respondent’s] Petition for
Contribution to Attorney’s Fees and Costs and for Sanctions, and prepare and conduct the closing
argument.” Over respondent’s objection, the court granted petitioner leave to file her motion. In
his May 1, 2019, response, respondent argued that petitioner’s fee request should be denied
because any increased fees were in large part due to her own “unreasonable litigiousness, improper
dissipation claim and grossly inflated financial affidavits.”
¶ 31 On May 3, 2019, the parties’ attorneys presented closing arguments in open court. Relevant
here, petitioner asked that she be awarded 50% of the net marital estate and $15,000 per month in
maintenance based upon respondent’s W-2 wages of “$800,000 per year.” Petitioner also
requested that the marital estate be reimbursed in the amount of $384,000 for funds respondent
“admittedly spent on his mistresses” and that respondent’s dissipation claim against her be denied
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2021 IL App (2d) 190917-Uin its entirety. Respondent countered that his “true income” was not reflected by the wages listed
on his W-2 statement, but instead consisted of his base pay, cash bonus, and the “potential” RSUs,
which in 2018 totaled $424,499 before taxes. Upon applying a 35% tax rate, the $15,000 monthly
maintenance requested by petitioner was 64% of respondent’s net income. Based upon
respondent’s base income and imputing $35,000 to petitioner as her annual income, respondent
proposed a guidelines calculation of tax-free support of $4850 per month plus 25% of his bonus,
if and when received. Respondent also proposed, inter alia: (1) a 50-50 allocation of a net marital
estate he valued at about $2.9 million; (2) the court find that his $20,000 pre-marital retirement
account contributions grew to more than $389,000 over the 30-year course of the marriage; (3)
petitioner be denied contribution to her attorney fees in light of the 50-50 division of the marital
estate and because she caused an escalation of all fees due to her “litigious actions;” and (4) based
upon petitioner’s litigiousness, an award of attorney fees to him pursuant to section 508(b) of the
Act.
¶ 32 The trial court entered a handwritten judgment of dissolution on June 10, 2019. Relevant
to the instant appeal, the court determined that petitioner will be unable to support herself without
assistance from respondent. After considering the statutory factors, the court found that
maintenance was appropriate. The court then determined that respondent’s gross income for 2018
was $791,808, based upon the income reported on his W-2 statement, and that there was “no reason
to expect that the Respondent’s annual gross income will be substantially reduced in the future.”
Noting that the maintenance amount guidelines set forth in section 504 of the Act (750 ILCS 5/504
(West 2018)) did not apply because respondent’s gross income for 2018 exceeded $500,000 and
after imputing an annual income of $15,000 to petitioner, the court ordered respondent to pay
petitioner $15,000 per month in “indefinite” maintenance.
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2021 IL App (2d) 190917-U¶ 33 As to respondent’s $20,000 contribution of pre-marital retirement funds to the JP Morgan
Chase 401(k) and IRA accounts and the growth of these funds over the 30-year marriage, the court
found that “[n]o evidence was presented of how the $20,000 was invested or how much it grew
from year to year” and opined that “[i]t may have been completely lost during the recession of
approximately 2007 to 2012.” The court further observed that during the marriage, marital funds
were continually contributed to the retirement accounts, “thereby arguably transmuting the
$20,000 to marital funds.” Moreover, the court reasoned that respondent’s “estimate of the current
value of his non-marital contribution is, as an estimate with no other clear and convincing
evidence, speculative.” Accordingly, the court awarded respondent $20,000 from the retirement
accounts as his “sole and exclusive property.”
¶ 34 Next, the court noted petitioner’s contention that respondent had “earned or been granted
1174 RSU shares as of March 7, 2019,” and that the parties “appear to agree” that these shares had
a value of $121,767.28 as of that date. The court awarded petitioner “one half the value of any
shares (RSUs) granted as of the date of the divorce if and when they vest.” The court denied
respondent’s claim of dissipation by petitioner. However, it found that respondent dissipated
marital assets totaling $384,208.76, including the $163,372.76 admitted in respondent’s response
to petitioner’s dissipation claim and the loan of $170,000 to Morales. The court awarded petitioner
$192,104.38, half of the amount dissipated. The court divided the principal financial assets equally
between the parties. Finally, the court held that “[a]ny outstanding attorney fees shall be paid by
each party to their respective attorneys,” but ordered respondent to “contribute an additional
$12,500 toward [petitioner’s] attorney’s fees.”
¶ 35 On July 10, 2019, respondent filed a motion to reconsider the dissolution judgment,
alleging several errors. Among other things, respondent asserted that the court overstated the
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2021 IL App (2d) 190917-Uamount he had available for spousal support by erroneously finding his income was $791,808
based on his 2018 W-2 statement and failing to “take into account the unrebutted testimony and
evidence regarding [respondent’s] actual cash flow and income at present and going forward.”
Respondent contended that his income falls into four “buckets”: (1) salary; (2) cash bonus; (3)
RSUs that vest in a given year; and (4) the expat allowance and related benefits. Respondent argued
that the evidence showed: (1) his only guaranteed compensation was his annual salary of $302,999;
(2) although his expat allowance and its related tax-payment true-up was reflected in his reported
W-2 wages, it did not translate into cash flow to fund support payments, and, in any event, the
expat allowance had sharply declined from past amounts and would fully terminate in February
2020; and (3) his annual incentive award—consisting of the cash and RSU components—was
discretionary, the value of the RSU component is undetermined until the time of vesting years
later, and the Court had erroneously double counted the unvested RSUs by equally allocating them
between the parties as property and then also including them as income by considering
respondent’s full W-2 wages (which included the value of the vested RSUs) for support. Therefore,
respondent requested the court reconsider its income ruling and find his income for purposes of
spousal support consisted only of his base pay of $302,999 plus one-third of his variable cash
incentive award if, as, and when received (as 50% of the RSUs had already been awarded to
petitioner as property in the judgment). This would result in respondent paying petitioner $5133
per month in maintenance, plus 1/3 of the net of any cash award he received at the time of receipt.
With respect to respondent’s pre-marital retirement funds, although he was awarded $20,00 of the
approximately $2 million in retirement assets as his non-marital property, respondent asserted the
court erred by attributing no gain or appreciation to those funds. As the parties were married for
more than 30 years, respondent argued that “it defies logic and the stock market that no
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2021 IL App (2d) 190917-Uappreciation or gain would have occurred to those pre-marital retirement assets.” Therefore, based
on the “unrebutted” evidence submitted at trial, respondent requested that the court reconsider its
ruling and value his non-marital retirement funds at $389,000.
¶ 36 On July 19, 2019, respondent filed a motion to supplement his motion to reconsider the
dissolution judgment, requesting that he be granted leave to supplement his motion to reconsider
with information regarding his income that was not available at the time of trial. Respondent
recounted that as of June 30, 2018, his year-to-date gross income from all employment sources,
i.e., the four “buckets” discussed in his reconsideration motion, was $575,623, as reflected on his
June 30, 2018, paystub that was attached to the motion to supplement. One year later, respondent’s
year-to-date gross income from these same sources was $429,643, a decline of more than
$145,000, as shown in the June 30, 2019, paystub attached to the motion to supplement.
Respondent argued that comparing these two exhibits confirmed that a substantial portion of this
decline was caused by a $63,236 reduction in his RSU payments and a $75,087 reduction in his
expat allowance.
¶ 37 On July 23, 2019, the parties returned to court and respondent’s motion to supplement his
motion to reconsider was granted. Over respondent’s objection, the court that day also granted in
part an emergency request for injunctive relief filed by petitioner and enjoined both parties from
making withdrawals from a joint JP Morgan account, except for required payments per the
dissolution judgment, until the court resolved the motion to reconsider.
¶ 38 On July 31, 2019, petitioner filed a second emergency request for injunctive relief,
claiming that respondent unilaterally depleted the marital estate without notifying her or obtaining
leave of the court. Among other things, petitioner alleged that respondent: (1) transferred $61,000
to his individual account in violation of the July 23, 2019, order; (2) sold 1500 shares of stock
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2021 IL App (2d) 190917-Unetting more than $174,000, which he used to pay down an equity line; and (3) surrendered three
life insurance policies with a cash value of $91,000, which the judgment of dissolution had
allocated equally to the parties to pay attorney fees and costs. That same day, the trial court granted
petitioner’s second emergency request for injunctive relief and enjoined respondent from
withdrawing or otherwise disposing of “any and all financial accounts of any nature” and directed
JP Morgan Chase to remove respondent’s access to certain accounts.
¶ 39 On August 7, 2019, petitioner filed a petition for attorney fees and costs pursuant to section
508(b) of the Act (750 ILCS 5/508(b) (West 2018)). The bases for petitioner’s request were
twofold. First, petitioner alleged that respondent had “fail[ed] to comply with a court order without
compelling cause or justification” by unilaterally surrendering the three life insurance policies that
had been earmarked by the court in the dissolution judgment to pay attorney fees. Second,
petitioner alleged that respondent “needlessly, and intentionally, increase[d] [her] litigation costs”
where (1) he filed a motion for reconsideration of the dissolution judgment and (2) the trial court
granted two post-judgment emergency restraining orders against respondent. Petitioner further
alleged that after respondent received notice of the second emergency order, he harassed her over
the telephone, calling her and her attorneys “stupid,” telling her that she was “wasting money” and
“extend[ing] the case,” and threatening to “continue to appeal until there was no money left.”
Petitioner asserted that since entry of the dissolution judgment, she had incurred $12,426 in
attorney fees. She requested that respondent pay that amount plus an additional $12,500 “to defend
against [respondent’s] Motion for Reconsideration and further protect her interests against
[respondent’s] calculated actions.”
¶ 40 In his response to petitioner’s petition for attorney fees and costs, respondent admitted he
surrendered the three insurance policies, but stated that he did so in May 2019, prior to the entry
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2021 IL App (2d) 190917-Uof the dissolution judgment on June 10, 2019. Respondent also admitted that he filed a motion to
reconsider the dissolution judgment and that the court had granted two post-judgment emergency
restraining orders against him. Further, respondent alleged that on or about July 19, 2019, his
attorneys reached out to petitioner’s counsel to explore settlement in an expedited mediation.
Respondent alleged that instead of responding, petitioner filed her first request for injunctive relief
the following day. Respondent therefore concluded that it was petitioner who caused the fees to
unnecessarily increase.
¶ 41 The trial court heard oral arguments on respondent’s reconsideration motion on August 23,
2019. On September 23, 2019, the court entered a handwritten order that granted in part and denied
in part respondent’s motion to reconsider. The court granted respondent relief on several claims
not at issue in this appeal, but rejected respondent’s arguments as to the claims that are at issue
here. In denying respondent’s request to reconsider its income finding, the court held: (1)
calculating maintenance only on respondent’s base salary “would require the parties to at least
annually determine how much of the Respondent’s bonuses and [RSUs] should be paid to the
Petitioner * * * and would almost certainly set the parties up for protracted and frequent post-
decree litigation”; (2) although respondent’s expat allowance has been decreasing for several
years, he earns more income and therefore the expiration of the expat allowance was “not certain
to negatively affect” respondent’s income based on his past income history; (3) because respondent
has historically received cash bonuses and RSUs, there is no reason why he would not receive
them in the future; and (4) because respondent had a history of “saving,” he could budget for his
monthly maintenance payments despite receiving his bonuses and RSUs only once per year.
Accordingly, the court concluded that the maintenance award to petitioner of $15,000 per month
“appears to be reasonable for the Respondent’s income and will be significantly less than one-half
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2021 IL App (2d) 190917-Uof the Respondent’s income.” Next, the court held that if the award of 50% of the RSUs as property
to petitioner while also using their value to determine respondent’s available income for support
was “a double hit” to him, “it appears to be similar to a disproportionate division of the marital
estate and will only be a double hit for the first three years of the Respondent’s maintenance
obligation.” Finally, in rejecting respondent’s claim as to the non-marital retirement accounts, the
court acknowledged that respondent had $20,000 of non-marital retirement funds which he “co-
mingled with marital funds in the parties’ retirement accounts.” The court therefore held that the
increase attributable to respondent’s $20,000 of non-marital funds over the course of the marriage
as calculated by respondent was “at best speculative and has not been shown by clear and
convincing evidence.” As such, the court affirmed its award of $20,000 to respondent.
¶ 42 Also on September 23, 2019, the trial court conducted a hearing on petitioner’s section
508(b) petition. During the hearing, petitioner stated that she was seeking a fee award “for what
we would generically describe as bad conduct,” in that, while the case was under advisement,
respondent had surrendered the life insurance policies. Petitioner further stated that because of
respondent’s conduct, she was “required * * * to file a petition for a temporary restraining order”
that she later “needed to supplement” because respondent “was actively removing funds from the
parties’ trust account.” Petitioner also alleged that it had been 60 days since she has received any
maintenance from respondent. As a result, petitioner requested nearly $25,000 in attorney fees.
¶ 43 Respondent countered that an award of attorney fees is appropriate under section 508(b)
only if a party fails to comply with an order of the court without compelling cause or justification
or if a party “needlessly intentionally increased the cost of litigation.” Respondent argued that
neither prong applied here. In support, he noted that he surrendered the life insurance policies a
month before the entry of the dissolution judgment. Therefore, there was no court order prohibiting
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2021 IL App (2d) 190917-Uhim from doing anything with the policies at the time they were surrendered. With respect to the
injunctions, respondent stated that the first injunction stemmed from a misreading of a bank
statement where petitioner mistakenly thought funds were removed from an account but, instead,
it was simply changed to a money market account rather than being held in stock. The second
injunction was obtained on an ex parte basis without hearing. Respondent therefore posited that
the amount of fees requested was “extraordinarily high” for a “limited amount of work.” Finally,
respondent argued that petitioner had “built into” her fee request a “component” that was related
to work performed in answering respondent’s motion to reconsider. Respondent argued that
because the court granted several items of the relief requested in the motion to reconsider, that
relief in itself “substantiate[d] a form of merit for that underlying petition” and would not support
the imposition of attorney fees under section 508(b). In reply, petitioner admitted that respondent
“was not under an order of court after the trial not to cash in life insurance.” She argued, however,
that it was “just commonsense” and the prudent thing to do if respondent needed money would
have been to file a motion with the court. As to the motion to reconsider, petitioner asserted that
the filing was “essentially baseless,” but she needed time to prepare a response.
¶ 44 In ruling on the section 508(b) petition, the trial court did not believe the motion to
reconsider was a basis for petitioner’s fee request. Further, the court agreed with respondent’s
attorney that the motion to reconsider was “not improper,” adding that “by the very nature of the
circumstances of this case probably it was necessary.” The court then stated, “I think at this point
from everything I heard is a basis for a request for fees [sic].” The court also discussed the proceeds
from the life insurance policies, stating that it did not know if the insurance money was still
available, but had it been available it “would have * * * taken care of” the fees assessed by
petitioner’s attorney. Ultimately, the court ordered respondent to pay petitioner’s counsel $24,746
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2021 IL App (2d) 190917-Uin attorney fees pursuant to section 508(b) of the Act. Regarding respondent’s argument that the
fees requested was “extraordinarily high” for a “limited amount of work,” the court stated that
“every court appearance requires at least several hours of work” and this case involved “responding
to a lot of financial aspects * * * on a continuing basis.” Thereafter, respondent asked the court to
order petitioner’s counsel to identify the time spent “related to [the] injunctive motions if that’s
what the award of fees is based on.” The trial court denied respondent’s request. The court
subsequently entered a written order requiring respondent to pay petitioner’s counsel $24,746 in
attorney fees “[f]or the reasons set forth on the record.”
¶ 45 On September 30, 2019, petitioner filed a motion to adjust the judgment for dissolution of
marriage and for other relief. Specifically, petitioner requested an order (1) releasing the assets
awarded to her instanter while also continuing to restrict respondent’s use of the remaining assets
until a full accounting to determine any monies he had improperly taken and (2) requiring
respondent to turn over detailed statements from 2019 to date regarding all accounts in his name,
individually or jointly, and all accounts referenced in the judgment of dissolution. On October 11,
2019, respondent filed a motion to terminate or release injunction.
¶ 46 On October 23, 2019, respondent filed his notice of appeal in docket No. 2-19-0917,
appealing the June 10, 2019, final judgment of dissolution of marriage, the September 23, 2019,
partial grant and partial denial of respondent’s motion to reconsider, and the ruling granting
petitioner’s petition for attorney fees and costs, also entered on September 23, 2019. On December
23, 2019, the trial court entered an order terminating the injunction and ruling on the motion to
adjust dissolution judgment. On January 22, 2020, respondent filed his notice of appeal in docket
No. 2-20-0066, appealing the rulings on petitioner’s motion to adjust dissolution judgment and
respondent’s motion to terminate/release injunction entered on December 23, 2019, as well as
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2021 IL App (2d) 190917-Uagain appealing the three orders specified in his appeal in docket No. 2-19-0917. This court
consolidated respondent’s two pending appeals by order entered February 6, 2020.
¶ 47 II. ANALYSIS
¶ 48 On appeal, respondent raises three principal contentions. First, he argues that the trial court
erred in calculating his income for purposes of setting spousal support. Second, he argues that the
trial court erred in failing to attribute gain to his non-marital retirement assets. Third, he argues
that the trial court erred in ordering him to pay attorney fees incurred by petitioner. We address
each contention in turn.
¶ 49 A. Maintenance
¶ 50 Respondent first argues that the trial court erred in determining his available income for
purposes of setting spousal support. Respondent advances two subarguments in support of his
assignment of error. First, respondent asserts that the trial court erred in finding that his entire 2018
W-2 earnings of $791,808 were available for the payment of maintenance and that there was “no
reason to expect that [his] annual gross income will be substantially reduced in the future” despite
“uncontradicted evidence” that his expat allowance was a limited benefit that would terminate in
February 2020. Second, respondent argues that the trial court erroneously double counted the
RSUs both as property that was equally divided between the parties and as part of respondent’s
income stream for payment of maintenance. Respondent further contends that, based on this
overstated income, the trial court abused its discretion in awarding petitioner indefinite
maintenance in the amount of $15,000 per month. Finally, respondent contends that the trial court
refused to revisit its findings and remedy these errors in response to his motion to reconsider
despite his submission of additional new evidence to support his claims.
¶ 51 Petitioner counters that the trial court correctly determined respondent’s income for the
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2021 IL App (2d) 190917-Upurpose of calculating maintenance. According to petitioner, the Act broadly defines income for
the purpose of calculating maintenance to include “[a]ll income from all sources,” and this includes
non-guaranteed income such as bonuses, incentive compensation, and respondent’s expat
allowance. Petitioner further maintains that the trial court did not err by including the value of the
RSUs that were allocated as property to the parties as income for purposes of support because there
is authority to support the trial court’s decision. Petitioner also responds that the trial court acted
within its discretion when it set respondent’s monthly maintenance obligation at $15,000 because
the evidence and the relevant statutory factors support such a finding. Finally, petitioner argues
that the trial court’s order denying respondent’s motion to reconsider was not improper because
the motion simply reiterated the same arguments respondent made at trial.
¶ 52 1. Respondent’s Income: Expat Allowance
¶ 53 Respondent initially argues that the trial court overstated the amount of his income
available for spousal support by including his entire W-2 wage amount. According to respondent,
the income reflected on his W-2 statement does not reflect “the actual cash flow” available to him
to pay support. Specifically, respondent asserts that the expat allowance and related tax-protection
amounts were not received by him “in-hand,” were being phased out, and were to terminate
entirely in February 2020. Thus, respondent reasons, it was against the manifest weight of the
evidence for the trial court to include these sources when calculating his income for purposes of
setting spousal support and also to find that there was “no reason to expect that Respondent’s
annual gross income will be substantially reduced in the future.” Petitioner disagrees, arguing that
there is ample evidence to support the trial court’s inclusion of “non-guaranteed income” for
purposes of calculating the obligor’s available income for support.
¶ 54 Whether an item constitutes income for purposes of calculating maintenance is a question
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2021 IL App (2d) 190917-Uof law subject to de novo review. In re Marriage of Ruvola, 2017 IL App (2d) 160737, ¶ 18. We
are unpersuaded by respondent’s claim that the trial court erred in including the expat allowance
and related tax-protection amounts when calculating his income for purposes of setting spousal
support. First, respondent’s claim that it was improper for the trial court to consider the expat
allowance and related tax-protected amounts in setting spousal support because the funds were not
received by him “in-hand” ignores the legislature’s broad and expansive definition of income for
purposes of the Act. In re Marriage of Rogers, 213 Ill. 2d 129, 136 (2004). “Net income,” as
referred to in the maintenance statute, is defined in the child support section of the Act. 750 ILCS
5/504(b-3.5) (West 2018) (referring to section 505 of the Act (750 ILCS 5/505 (West 2018))). “Net
income” is calculated by taking a party’s “gross income” and subtracting certain deductions. 750
ILCS 5/505(a)(3)(B) (West 2018). In turn, “gross income” is defined broadly as “the total of all
income from all sources.” 750 ILCS 5/505(a)(3)(A) (West 2018); see also 750 ILCS 5/504(b-3)
(West 2018). The Act does not define “income,” but in Rogers, the supreme court stated that
income is “ ‘something that comes in as an increment or addition * * *: a gain or recurrent benefit
that is usu[ally] measured in money * * *: the value of goods and services received by an individual
in a given period of time.’ ” Rogers, 213 Ill. 2d at 136-37 (quoting Webster’s Third New
International Dictionary 1143 (1986)). Additionally, income has been defined as “ ‘[t]he money
or other form of payment that one receives, usu[ally] periodically, from employment, business,
investments, royalties, gifts and the like.’ ” Rogers, 213 Ill. 2d at 137 (quoting Black’s Law
Dictionary 778 (8th ed. 2004)). As such, income has been found to include a one-time, lump-sum
workers’ compensation settlement (In re Marriage of Mayfield, 2013 IL 114655, ¶ 25), a one-time
conversion of funds from a traditional IRA to a Roth IRA (In re Marriage of Pratt, 2014 IL App
(1st) 130465, ¶ 25), contributions to a party’s “pro forma” capital account based on the annual
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2021 IL App (2d) 190917-Uperformance of the employer (In re Marriage of Winne, 239 Ill. App. 3d 273, 285 (1992)), funds
from the payment of personal expenses by the obligor’s employer (In re Marriage of Olson, 223
Ill. App. 3d 636, 652 (1992)), and gifts from the obligor’s parents (Rogers, 213 Ill. 2d at 137;
Ruvola, 2017 IL App (2d) 160737, ¶ 19).
¶ 55 In this case, the expat allowance and related tax-protection items constituted periodic
benefits respondent received from his employer. In this regard, respondent testified that the expat
allowance consisted of recurring and one-time line-item allowances for expenses such as
relocation, housing, education, language courses, and travel. As such, they constituted income for
the purposes of setting spousal support.
¶ 56 Despite the expansive definition of income, respondent asserts that the expat allowance
and related tax-protection amounts do not constitute income, explaining that “[a]s a practical
matter, it stands to reason that where funds are not actually available to spend as income, they
should not be included as a basis upon which to calculate support.” Contrary to respondent’s claim,
however, the expat allowance and tax-protection amounts were available to spend. As noted above,
the record establishes that the expat allowance was spent on family relocation expenses, housing,
education, language courses, and travel expenses. Indeed, respondent concedes in his brief that the
funds were spent, noting that his employer used the funds to pay tuition amounts directly to his
children’s schools and the taxes to cover the expat allowance. Respondent cites no authority that
the expat allowance and related tax-protection amounts should not be considered income for the
purpose of setting spousal support because they were earmarked for a particular purpose and paid
directly by his employer.
¶ 57 Respondent points out that prior decisions have determined that reinvested proceeds from
a reverse stock split, proceeds from the sale of a residential property, and withdrawals from a self-
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2021 IL App (2d) 190917-Ufunded IRA are not considered income for purposes of support. The cases respondent cites are not
analogous to the situation before us. For instance, in In re Marriage of Anderson, 405 Ill. App. 3d
1129, 1136 (2010), the court held that proceeds from a reverse stock split did not constitute income
for calculating the husband’s support obligation because the sale of the stock was involuntary, the
stock was classified as non-marital property, cash proceeds took the place of the former shares of
stock, and the cash proceeds were used to purchase another investment. Anderson, 405 Ill. App.
3d at 1136. The present case does not involve reinvested proceeds from the forced sale of non-
marital property. In In re Marriage of Baumgartner, 384 Ill. App. 3d 39, 56-57 (2008), the court
held that where the husband sold his residence and purchased a new home, the sale proceeds of
the old residence did not constitute income for purposes of calculating a support obligation. The
present case does not involve the sale of a former residence followed by the purchase of a new
residence. Finally, in In re Marriage of O’Daniel, 382 Ill. App. 3d 845, 850 (2008), the court held
that where a party withdraws money placed into an IRA, “he does not gain anything as the money
was already his” and it therefore “is not a gain and not income.” Respondent’s reliance on
O’Daniel is misplaced as this case does not involve the withdrawal of an IRA contribution. 1 Thus,
the cases cited by respondent do not compel a finding that the trial court erred in categorizing the
expat allowance and related tax-protection amounts as income for the purposes of setting his
maintenance obligation.
¶ 58 Additionally, the fact that the expat allowance was being phased out and would terminate
1
We also point out that O’Daniel directly conflicts with this court’s decision in In re
Marriage of Lindman, 356 Ill. App. 3d 462, 466-67 (2005), in which this court held that IRA
disbursements are income for purposes of calculating a support obligation.
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2021 IL App (2d) 190917-Uby February 2020 did not render the trial court’s income determination improper. As the supreme
court has stated, the relevant focus for determining income for support purposes is the obligor’s
financial situation at the time the support calculation is made. Rogers, 213 Ill. 2d at 138. In this
case, the hearing on the dissolution of marriage was held early in 2019. Thus, the most recent year-
end income figures available to the court were from 2018. This is what the trial court used to
calculate respondent’s income for setting spousal support. The trial court therefore properly
focused on respondent’s income from 2018—which included the expat allowance and related tax-
protection amounts—in determining his income for maintenance purposes.
¶ 59 Respondent also claims that the trial court erred in finding that there was “no reason to
expect that [his] annual gross income will be substantially reduced in the future.” However, there
is ample evidence of record to support this finding. Respondent testified that the amount of the
expat allowance would be reduced by one-third each year between 2017 and 2019. In his brief,
respondent represents that his expat allowance in 2017 was approximately $19,000 per month.
Respondent testified that the February 2019 Expatriate Pay Detail Report listed a year-to-date
expat allowance of $19,589.48. This included the January 2019 expat allowance in a higher amount
plus the newly-reduced February 2019 amount of $6395.83. Thus, respondent’s expat allowance
for February 2018 through January 2019 would have been $13,193.65 per month. 2 In other words,
respondent’s 2017 expat allowance of approximately $19,000 a month was reduced in 2018 to
2
This is the difference between the year-to-date expat allowance amount of $19,589.45 as
reflected on the February 2019 Expatriate Pay Detail Report and the newly-reduced February 2019
expat allowance amount of $6395.83. The $13,193.65 amount is also reflected on a pay statement
dated January 31, 2019, which is included in respondent’s exhibit 10 in the record on appeal.
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2021 IL App (2d) 190917-U$13,193.65 per month, a decrease of $5806.35 per month. Despite this reduction of almost $70,000
between 2017 and 2018, respondent’s W-2 statements reflect that his income increased between
2017 and 2018 (the last full year for which W-2 statements were available at the time of trial).
Respondent’s W-2 form for 2017 shows Medicare wages of $769,536. His W-2 form for 2018
shows Medicare wages of $791,808, an increase of $22,272 over 2017. Thus, contrary to
respondent’s claim, there was evidence to support the trial court’s statement that there was “no
reason to expect that [his] annual gross income will be substantially reduced in the future.”
¶ 60 In short, for all the foregoing reasons, we find that the trial court did not err in including
respondent’s expat allowance and related tax-protection amounts when calculating his available
income for spousal support.
¶ 61 2. Respondent’s Income: RSUs
¶ 62 Next, respondent argues that the trial court erroneously double-counted the RSUs both as
income available for support and as property that was equally divided between the parties.
Respondent further argues that the trial court erred in treating the RSUs as “guaranteed” income
because the RSU amounts are “variable and uncertain.” Citing principally to Pratt, 2014 IL App
(1st) 130465, In re Marriage of Colangelo, 355 Ill. App. 3d 383 (2005), and In re Marriage of
Klomps, 286 Ill. App. 3d 710 (1997), petitioner responds that the RSUs that were previously
allocated between the parties as marital property may also be considered “income” as they vest.
Petitioner further responds that it was not improper to consider the RSUs in setting spousal support
on the basis that they were variable.
¶ 63 Initially, we are unpersuaded by respondent’s claim that the trial court improperly
considered the RSUs in determining his available income for spousal support because the RSU
amounts are “variable and uncertain.” Respondent cites no authority for this proposition.
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2021 IL App (2d) 190917-UTherefore, it is forfeited. Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018) (requiring the appellant’s brief
to include argument “which shall contain the contentions of the appellant and the reasons therefor,
with citation of the authorities and the pages of the record relied on.”); In re Marriage of Reicher,
2021 IL App (2d) 200454, ¶ 33 (holding that the appellant’s failure to cite pertinent authority to
support her arguments violates Rule 341(h)(7) and results in forfeiture). Forfeiture
notwithstanding, our supreme court has found “untenable” the argument that, in determining an
obligor’s available income for support, non-guaranteed funds should be excluded. Rogers, 213 Ill.
2d at 138. The court reasoned that due to factors such as job changes, falling interest rates, and
unfavorable business conditions, “[f]ew, if any, sources of income are certain to continue
unchanged year in and year out.” Rogers, 213 Ill. 2d at 138. Further, as noted earlier, the Rogers
court held that the relevant focus in assessing an obligor’s income for purposes of a support
obligation is his or her economic situation at the time the support calculation is made by the trial
court. Rogers, 213 Ill. 2d at 138. Similarly, in In re Marriage of Lindman, 356 Ill. App. 3d 462,
467-68 (2005), this court found unpersuasive an argument that it was unfair to include the
husband’s non-recurring IRA disbursements in determining his available income for support. We
noted that the Act does not provide for a deduction of nonrecurring income in determining the
income available for a support obligation. Lindman, 356 Ill. App. 3d at 467. Thus, we reasoned,
“if we were to conclude that such income is, by virtue of its lack of regularity, excluded from the
net income calculation, we would read into the plain language of the statute limitations and
conditions not expressed by the legislature.” Lindman, 356 Ill. App. 3d at 467. Further, citing to
Rogers, we noted that in calculating the obligor’s available income for purposes of a support
obligation, the relevant inquiry focuses on the income available “at the time the determination is
made.” Lindman, 356 Ill. App. 3d at 467.
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2021 IL App (2d) 190917-U¶ 64 Turning to the facts in this case, the trial court held the dissolution hearing over several
dates in March and April 2019. Thus, the most recent year-end income information available to
the court would have been from 2018. Respondent concedes that the annual summary for 2018
shows that his compensation included an annual incentive award comprised of a cash component
and an RSU component. Thus, the trial court properly considered the RSUs in determining
respondent’s available income for spousal support. Accordingly, we reject respondent’s argument
that, because the RSU amounts are “variable and uncertain,” it was improper for the trial court to
include them in his income for purposes of calculating his available income for spousal support.
¶ 65 Next, we address respondent’s claim that, in calculating his available income for spousal
support, the trial court erroneously double-counted the RSUs both as income available for support
and as property that was equally divided between the parties. With respect to the division of the
RSUs in this case, the trial court’s order provides in relevant part as follows:
“The Petitioner contends that Respondent has earned or been granted 1,174 RSU
shares as of March 7, 2019, which remain unvested. 441 shares were granted on January
15, 2019; 379 shares were granted on January 16, 2018; and 354 shares were granted on
January 17, 2017.
The parties appear to agree that the RSUs had a value of $121,767.28 as of March
7, 2019. The Petitioner is awarded one half the value of any shares (RSUs) granted as of
the date of divorce if and when they vest.”
In support of his claim of “double counting,” respondent contends that the dissolution judgment
treated the unvested RSUs as marital property and equally allocated their value between the parties.
The court then considered respondent’s full W-2 wages, which includes the value of the vesting
RSUs, for spousal support. Thus, respondent reasons, over the next several years, petitioner will
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2021 IL App (2d) 190917-Ureceive 50% of the RSU awards as a property distribution at the time they vest. However, the full
value of the vesting RSUs (both those awarded to petitioner and those awarded to respondent) will
be included in his W-2 wages, which the court used to calculate his available income for spousal
support. As a result, respondent reasons the trial court impermissibly double counted the RSUs as
both property and income.
¶ 66 In the context of a marital dissolution proceeding, “double counting” or “double dipping”
occurs “when property is awarded to one spouse in an equitable distribution of marital assets and
is then also considered as a source of income for purposes of imposing support obligations.” ’ ” In
re Marriage of Eberhardt, 387 Ill. App. 3d 226, 232 (2008) (quoting Croak v. Bergeron, 856 N.E.
2d 900, 903 (Mass. App. Ct. 2006) (quoting Champion v. Champion, 764 N.E. 2d 898, 902 (Mass.
App. Ct. 2002))). Based on this definition, we agree in part with respondent’s claim that double
counting occurred here with respect to the RSUs. In particular, to the extent that the trial court
determined respondent’s available income for spousal support included the income attributable to
the RSUs awarded to petitioner, it was error. This is because the unvested RSUs awarded to
petitioner will be included in respondent’s W-2 wages as ordinary income when they vest, and it
is respondent’s W-2 wages which the trial court used to calculate respondent’s available income
in determining his support obligation. Thus, property awarded to petitioner in the equitable
distribution of marital assets is also considered as a source of income for purposes of imposing a
support obligation. We conclude, however, it was not error for the trial court to include the income
attributable to the RSUs awarded to respondent as this did not constitute property awarded to
petitioner.
¶ 67 Citing principally to Pratt, 2014 IL App (1st) 130465, Colangelo, 355 Ill. App. 3d 383,
and Klomps, 286 Ill. App. 3d 710, petitioner insists that the trial court did not err by including
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2021 IL App (2d) 190917-URSUs that were allocated as property between the parties as income for purposes of support. As
explained below, however, these three cases do not undermine our resolution of the issue.
¶ 68 In Klomps, the husband argued that the trial court erred in using his retirement benefits for
assessing the proper amount of child support because those benefits were previously determined
to be marital property and the wife was awarded a share of them in the judgment of dissolution.
The appellate court rejected the husband’s argument. The court’s reasoning was twofold. First, the
court determined that it was contrary to the clear terms of the Act, which defined “net income” for
purposes of child support as “ ‘the total of all income from all sources,’ minus certain specified
deductions.” Klomps, 286 Ill. App. 3d at 714 (quoting 750 ILCS 5/505(a)(3) (West 1992)). And,
as the court noted, retirement pay of the kind received by the husband was not one of the listed
deductions. Klomps, 286 Ill. App. 3d at 714. Second, the court found nothing in the Act to authorize
excluding from the calculation of the obligor’s available income for child support any income
received by the obligor simply because it was previously classified as marital property. Klomps,
286 Ill. App. 3d at 714. The court explained that at the time of dissolution, the husband’s pension
constituted marital property subject to equitable distribution because it was “partially earned, with
a known value, but had not yet been collected.” Klomps, 286 Ill. App. 3d at 716. Thus, the court
held that the fact the retirement benefits were classified as marital property prior to the date the
husband began collecting them in monthly installments did not bar them from use in determining
net income for child support. Klomps, 286 Ill. App. 3d at 716.
¶ 69 In Colangelo, as part of the division of marital property, the court awarded the husband
“50% of the net value of vested stock options in [the employer] ‘if & when * * * exercised’ and
100% of the unvested stock options in [the employer].” The court also ordered the husband to pay
monthly child support of 20% of his net monthly income plus “20% of net of any
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2021 IL App (2d) 190917-Ubonus/commission/overtime received.” The husband subsequently received 2286 shares of the
employer’s stock from the exercise of the unvested stock options. The wife filed a rule to show
cause, arguing, inter alia, that the receipt of the stock resulted in income to the husband, upon
which he refused to pay child support. The husband responded that shares of stock were marital
property that had already been allocated to him. He reasoned that because the unvested options
were his property, the distributions resulting from an exercise of the options could not be
considered income for support purposes. The trial court agreed with the husband, and the wife
appealed. On appeal, this court concluded that the trial court erred in finding that the distributions
from the exercise of the stock options were not income for support purposes. Colangelo, 355 Ill.
App. 3d at 389-92. We reasoned that “[b]ecause the unvested stock options transformed into a
realized distribution, it would seem that the distribution is not marital property being counted as
income, but instead the fruits of the marital property.” Colangelo, 355 Ill. App. 3d at 389. Citing
to Klomps and the definition of “net income” in section 505(a)(3) of the Act, we further determined
that even if the stock distribution were marital property, such property can also be income for child
support purposes. Colangelo, 355 Ill. App. 3d at 389-90 (citing Klomps, 286 Ill. App. 3d at 713-
17 and 750 ILCS 5/505(a)(3) (West 2002)).
¶ 70 In Pratt, the husband challenged the trial court’s calculation of his income for purposes of
child support. Among other things, the husband contended that the trial court improperly included
in his income $58,864 from the sale of stock options. As the Pratt court explained:
“[The husband] contends * * * that it is fundamentally unfair to include this income
because he was awarded the restricted stock options as marital property in the dissolution
judgment and, by receiving a portion of the income from the sale, [the wife] is ‘double
dipping.’ He argues that [the wife] received her portion of the stocks as marital property
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2021 IL App (2d) 190917-Uand now she is receiving as child support a portion of [his] income from his share. This is
not ‘double dipping.’ The trial court can consider marital property as income for child
support purposes, even if the income comes from vested stock options awarded as marital
property to one of the parties.” Pratt, 2014 IL App (1st) 130465, ¶ 31.
Thus, the Pratt court concluded that the trial court did not err in determining that the husband’s
income from the sale of the restricted stock options constituted income for child support purposes.
Pratt, 2014 IL App (1st) 130465, ¶ 32.
¶ 71 Klomps, Colangelo, and Pratt support the outcome we reach in this case. In all three cases,
the husbands argued that it was improper for the trial courts to include as income the proceeds
from marital property awarded to each of them. The reviewing courts disagreed. In this case, we
hold that, in determining respondent’s available income for support, it was proper for the trial court
to include the income attributable to the RSUs awarded to respondent. This is consistent with the
holdings in Klomps, Colangelo, and Pratt. However, to the extent that these cases can be
interpreted as holding that property awarded to one spouse in the equitable distribution of marital
assets may also be considered as a source of income to the other spouse for purposes of imposing
the other spouse’s support obligation, we decline to follow those cases. 3 In short, to the extent that
3
We note for instance the Pratt court stated that “[t]he trial court can consider marital
property as income for child support purposes, even if the income comes from vested stock options
awarded as marital property to one of the parties.” (Emphasis added.) Pratt, 2014 IL App (1st)
130465, ¶ 31. Under our holding, however, income attributable to the payor of support but coming
from marital property awarded to the recipient of maintenance should not be included in
calculating the payor’s support obligation as this would result in double counting.
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2021 IL App (2d) 190917-Uthe trial court determined respondent’s available income for spousal support included the income
attributable to the RSU shares awarded to petitioner, it was error. However, it was not error for the
trial court to include the income attributable to the RSU shares awarded to respondent.
¶ 72 3. Amount of Maintenance
¶ 73 Next, respondent contends that the trial court abused its discretion in awarding petitioner
indefinite maintenance in the amount of $15,000 per month. In support, respondent cites the court’s
“significant overstatement of [his] available income for purposes of support,” petitioner’s
“erroneous and inflated financial affidavits that she herself admitted contained numerous ‘errors’
and repeated ‘mistakes,’ ” petitioner’s acknowledgements that the parties had “lived well but
frugally” during the marriage, petitioner’s testimony that respondent had always been a “saver,”
and petitioner’s receipt of more than $1.5 million in assets. Petitioner responds that the trial court
acted within its discretion when it set respondent’s maintenance obligation at $15,000 per month,
particularly given the standard of living the parties enjoyed during the marriage and respondent’s
status as a high-income earner with annual W-2 wages approaching $800,000.
¶ 74 An award of maintenance in a dissolution proceeding is governed by section 504 of the Act
(750 ILCS 5/504 (West 2018)). The statute provides that a trial court “may grant a maintenance
award for either spouse in amounts and for periods of time as the court deems just.” 750 ILCS
5/504(a) (West 2018). Section 504(a) lists several factors that the court must consider, where
relevant, when determining whether to award maintenance. 750 ILCS 5/504(a)(1)-(13) (West
2018). Those factors include: (1) the income and property of each party, including marital property
apportioned to each party; (2) the needs of each party; (3) the realistic present and future earning
capacity of each party; (4) any impairment to earning capacity of the party seeking maintenance
because he or she devoted time to domestic duties or forewent opportunities for education or
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2021 IL App (2d) 190917-Utraining because of the marriage; (5) any impairment to earning capacity of the party against whom
maintenance is sought; (6) the time necessary for the party seeking maintenance to acquire
appropriate education, training, or employment; (7) the standard of living established during the
marriage; (8) the duration of the marriage; (9) the age, health, station, occupation, amount and
sources of income, vocational skills, employability, estate, liabilities, and needs of each of the
parties; (10) all sources of income; (11) the tax consequences of each party; and (12) contribution
and services by the party seeking maintenance to the education, training, or career of the other
party. 750 ILCS 5/504(a) (West 2018). The court may also consider any other factors it deems
“just and equitable.” 750 ILCS 5/504(a)(14) (West 2018).
¶ 75 If the trial court determines that maintenance is appropriate, it must determine the amount
and duration of the award. 750 ILCS 5/504(b-1) (West 2018); In re Marriage of Hamilton, 2019
IL App (5th) 170295, ¶ 108. Generally, if the parties’ combined gross annual income is less than
$500,000, maintenance is calculated by using a guideline formula set forth in the Act. 750 ILCS
5/504(b-1)(1)(A) (West 2018). However, if the parties’ combined gross annual income exceeds
$500,000, an award of maintenance shall be made after the court’s consideration of all relevant
factors set forth in Section 504(a) of the Act (750 ILCS 5/504(a) (West 2018)). 750 ILCS 5/504(b-
1)(2) (West 2018). The trial court assesses the statutory factors in light of the reasonable needs of
the party seeking maintenance, as measured by the standard of living the parties enjoyed during
the marriage. See In re Marriage of Blume, 2016 IL App (3d) 140276, ¶ 51; Micheli, 2014 IL App
(2d) 121245, ¶¶ 19-20. In this case, we note that the court found that the parties’ combined gross
annual income exceeded $500,000. Thus, a non-guidelines award was made.
¶ 76 As a general matter, a trial court’s award of maintenance is presumed to be correct. In re
Marriage of Brill, 2017 IL App 92d) 160604, ¶ 26. The amount of a maintenance award lies within
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2021 IL App (2d) 190917-Uthe sound discretion of the trial court and a court of review will not reverse that decision unless it
constitutes an abuse of discretion. In re Marriage of Schneider, 214 Ill. 2d 152, 173 (2005). An
abuse of discretion occurs when a trial court’s finding is arbitrary or fanciful or where no
reasonable person would agree with the trial court’s decision. Brill, 2017 IL App (2d) 160604,
¶ 26. With these principles in mind, we address respondent’s assignments of error.
¶ 77 Respondent contends that the trial court abused its discretion in awarding petitioner
indefinite maintenance in the amount of $15,000 per month because of the court’s “significant
overstatement of [his] available income for purposes of support.” We previously rejected
respondent’s claim that the trial court erred in including in his available income for support the
expat allowance and related tax-protection amounts. As such, we determine that this cannot
provide a basis for finding that the trial court abused its discretion in determining the amount of
the maintenance award based on an overstatement of income. Moreover, for the reasons explained
below, while the trial court erred in considering income from the vesting of the RSUs awarded to
petitioner as a source of income for purposes of respondent’s support obligation, we conclude that
any error in the calculation of respondent’s available income for his support obligation was de
minimis and therefore provides no basis upon which to modify the maintenance award.
¶ 78 As noted earlier, in the judgment of dissolution, the trial court found that as of March 7,
2019, respondent had been granted 1174 RSU shares which remained unvested. Of these shares,
354 shares were granted on January 17, 2017, 379 shares were granted on January 16, 2018, and
441 shares were granted on January 15, 2019. 4 The court awarded petitioner “one half the value
4
According to respondent’s brief, 707 RSU shares had been awarded in 2017, 354 of which
“remained outstanding” and will vest in 2020.
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2021 IL App (2d) 190917-Uof any shares (RSUs) granted as of the date of divorce if and when they vest.” The RSU shares are
subject to a three-year vesting schedule, pursuant to which no shares vest the first year after the
grant, 50% of the shares vest the second year, and 50% of the shares vest the third year. Thus,
pursuant to this vesting schedule, the unvested RSU shares at issue will vest as follows: (1) the
354 RSU shares granted in 2017 will vest in 2020; (2) half of the 379 RSU shares granted in 2018
with vest in 2020 and the other half will vest in 2021; and (3) half of the 441 RSU shares granted
in 2019 will vest in 2021 and the other half will vest in 2022 (provided respondent is still employed
by JP Morgan Chase at these times). Further, as they vest, the value of the RSU shares awarded
will be included as ordinary income in respondent’s W-2 for these three years. According to the
dissolution judgment, the parties “appear[ed] to agree” that the 1174 RSU shares had a value of
$121,767.28 as of March 7, 2019. Thus, each unvested share was valued at $103.72, and the value
of the shares awarded to each party was $60,883.64. This means that the income attributable to the
RSU shares awarded to petitioner to be included as ordinary income in respondent’s W-2 wages
is $28,185.91 for the shares scheduled to vest in 2020, $21,262.60 for the shares scheduled to vest
in 2021, and $11,435.13 for the shares scheduled to vest in 2022. 5
5
For the shares vesting in 2020, the calculation of the value of petitioner’s RSU shares is
as follows: (1) 177 shares granted in 2017 at $103.72 per share ($18,358.44) plus (2) 94.75 shares
granted in 2018 at $103.72 per share ($9827.47). For the shares vesting in 2021, the calculation of
the value of petitioner’s RSU shares is as follows: (1) 94.75 shares granted in 2018 at $103.72 per
share ($9827.47) plus (2) 110.25 shares granted in 2019 at $103.72 per share ($11,435.13). For
the shares vesting in 2022, the calculation of the value of petitioner’s RSU shares is 110.25 shares
granted in 2019 at $103.72 per share ($11,435.13).
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2021 IL App (2d) 190917-U¶ 79 Based on the foregoing, we disagree with respondent’s claim that the trial court’s error in
including the value of the RSU shares awarded to petitioner in determining his available income
for support purposes constituted a “significant” overstatement. The trial court determined
respondent’s available income for support purposes based on his 2018 W-2 statement, which was
the most recent calendar-year W-2 available at the time of trial. The 2018 W-2 reflected that
respondent’s Medicare wages for that year totaled $791,808. Thus, the $28,185.91 in income
attributable to the RSU shares awarded to petitioner and vesting in 2020 represents only 3.6% of
respondent’s 2018 W-2 Medicare wages. Similarly, the $21,262.60 attributable to the RSU shares
awarded to petitioner and vesting in 2021 represents only 2.7% of respondent’s 2018 W-2
Medicare wages. Finally, the $11,435.13 attributable to the RSU shares awarded to petitioner and
vesting in 2022 represents only 1.4% of respondent’s 2018 W-2 Medicare wages. Given these
circumstances, we conclude that the amount of the overstatement is de minimis. We also point out,
as did the trial court in its ruling on respondent’s motion to reconsider, the income attributable to
the RSU shares awarded to petitioner will only overstate income to respondent until 2022, at which
time they will have all vested. Accordingly, while the trial court overstated respondent’s available
income for purposes of support with respect to the RSU shares, the error does not require a remand
for a modification of the award as the error was de minimis. See, e.g., In re Marriage of Heroy,
385 Ill. App. 3d 640, 664 (2008) (holding that trial court's failure to consider $145,000 shareholder
loan as part of marital estate was harmless in light of $8.7 million valuation of marital estate); In
re Marriage of Alexander, 368 Ill. App. 3d 192, 205 (2006) (concluding that error in valuation of
property was de minimis and did not require reversal)), In re Marriage of Wilder, 122 Ill. App. 3d
338, 344-45 (1983) (noting that a trial court’s error warrants reversal only where a party has been
prejudiced or it appears that the outcome might have been different had the error not occurred).
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2021 IL App (2d) 190917-U¶ 80 We turn next to respondent’s claim that the trial court abused its discretion in awarding
petitioner indefinite maintenance in the amount of $15,000 per month because of petitioner’s
“erroneous and inflated financial affidavits that she herself admitted contained numerous ‘errors’
and repeated ‘mistakes.’ ” At the outset, we observe that the trial court was aware of the
inaccuracies in petitioner’s financial affidavits as this evidence was brought out at trial.
Notwithstanding any errors in petitioner’s financial affidavits, the trial court independently heard
the evidence as to the factors set forth in section 504(a) of the Act, including, inter alia, the parties’
income, needs, earning capacity, and the standard of living enjoyed during the marriage. In this
regard, the record establishes that the parties were married for 30 years and both are in good health.
The parties enjoyed a comfortable standard of living during the marriage. They lived in
Switzerland for the latter part of the marriage. They traveled extensively, both in the United States
and internationally. They had luxury vehicles, and, according to petitioner, respondent frequently
bought her jewelry during the marriage. At the time of trial, petitioner was 55 years of age and
respondent was 56 years of age. Respondent is a college graduate and had been gainfully employed
throughout the marriage, principally as a banker. Petitioner holds a GED. During the marriage,
petitioner worked principally as a homemaker and a caretaker to the parties’ four children.
Although she worked outside the home at the start of the marriage, petitioner has not held a wage-
paying job outside the home since 1998, when she left work as a part-time salesperson for a
clothing retailer. Petitioner’s highest salary when she worked outside the home was about $30,000
per year. As reflected on his W-2 statements, respondent’s income has consistently risen from
about $683,482 in 2015 to $791,808 in 2018. In light of the foregoing, we cannot say that any
errors or mistakes on petitioner’s financial affidavits compel a finding that the trial court abused
its discretion in awarding petitioner maintenance in the amount of $15,000 per month. See In re
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2021 IL App (2d) 190917-UMarriage of Harms, 2018 IL App (5th) 160472, ¶ 36 (holding that where a court considers the
required statutory factors and does not abuse its discretion, maintenance award will be affirmed).
¶ 81 Finally, respondent contends that the trial court abused its discretion in awarding petitioner
indefinite maintenance in the amount of $15,000 per month because the parties had lived “frugally”
during the marriage, respondent had always been a “saver,” and petitioner received more than $1.5
million in assets. While the parties may have lived “frugally” during the marriage and there was
testimony that respondent was a “saver,” the evidence presented at trial, as set forth in the previous
paragraph, reflects that they lived well and enjoyed a comfortable standard of living. Moreover,
the fact that petitioner received $1.5 million in assets does not provide a basis for overturning the
maintenance award. “A party should not be required to expend [his or] her assets in order to live
at something approximating the standard of living enjoyed during the marriage.” In re Marriage
of Hamilton, 2019 IL App (5th) 170295, ¶ 104. In the judgment of dissolution, the trial court
expressly stated that it had heard and considered the evidence and the testimony of the parties and
that it had considered the applicable statutes and case law. A review of the record and the trial
court’s ruling demonstrates that the trial court considered the marital property apportioned to
petitioner in setting the amount of maintenance as well as the other applicable factors. For the
reasons set forth above, we therefore conclude that the trial court did not abuse its discretion in
awarding petitioner indefinite maintenance in the amount of $15,000 per month.
¶ 82 4. Motion to Reconsider
¶ 83 Finally, respondent argues that the trial court erred in denying his motion to reconsider
with respect to the calculation of his available income for support. Petitioner disagrees, contending
that the trial court’s order denying respondent’s motion to reconsider was not improper.
¶ 84 “The purpose of a motion to reconsider is to bring to the trial court’s attention a change in
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2021 IL App (2d) 190917-Uthe law, an error in the trial court’s previous application of existing law, or newly discovered
evidence that was not available at the time of the prior hearing or decision.” See Horlacher v.
Cohen, 2017 IL App (1st) 162712, ¶ 79. Where a motion to reconsider rests upon an alleged
misapplication of existing law, review is de novo. Spencer v. Wayne, 2017 IL App (2d) 160801,
¶ 25. Where the motion to reconsider is based upon a claim of newly discovered evidence, the
standard of review is abuse of discretion. Horlacher, 2017 IL App (1st) 162712, ¶ 80. As noted
previously, an abuse of discretion occurs when a trial court’s finding is arbitrary or fanciful or
where no reasonable person would agree with the trial court’s decision. Brill, 2017 IL App (2d)
160604, ¶ 26.
¶ 85 In requesting reconsideration, respondent alleged that the trial court had erroneously: (1)
applied existing law in overstating his income available for support at $791,808 (the amount
reflected on his 2018 W-2 statement) despite evidence that this amount included benefits in the
form of his expat allowance and related tax-protection amounts, which were set to terminate in
February 2020; (2) double-counted the RSUs as both property and income; and (3) set the amount
of maintenance based upon the incorrect and inflated amount of his income, thereby providing
petitioner with a windfall. In his motion to supplement his motion to reconsider, respondent
presented “new” information regarding his income. Specifically, respondent contended that his
gross income from all employment sources “dropped by $145,979, from $575,623 to $429,643, a
25% decrease,” based on a comparison of the year-to-date income amounts reflected on his pay
statements for the periods ending June 30, 2018, and June 30, 2019. 6 Respondent further
6
In his brief, respondent represents that the year-to-date income on the pay statement for
the period ending on June 30, 2019, is $428,643. However, our review of the pay statement
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2021 IL App (2d) 190917-Ucontended that these pay statements also established that his RSU income had declined by $63,236
and his expat allowance had declined by $75,087 during the same period.
¶ 86 In ruling on the motion to reconsider, the trial court granted respondent relief on several
claims not at issue in this appeal, but rejected respondent’s arguments as to the claims that are at
issue here. In denying respondent’s request to reconsider its income finding, the court held: (1)
calculating maintenance only on respondent’s base salary “would require the parties to at least
annually determine how much of the Respondent’s bonuses and [RSUs] should be paid to the
Petitioner * * * and would almost certainly set the parties up for protracted and frequent post-
decree litigation”; (2) although respondent’s expat allowance had been decreasing for several
years, he earns more income and therefore the expiration of the expat allowance was “not certain
to negatively affect” respondent’s income based on his past income history; (3) because respondent
has historically received cash bonuses and RSUs, there is no reason why he would not receive
them in the future; and (4) because respondent had a history of “saving,” he could budget for his
monthly maintenance payments despite receiving his bonuses and RSUs only once per year. In
addition, the court held that if the award of 50% of the RSUs as property to petitioner while also
using their value to determine respondent’s available income for support was “a double hit” to
him, “it appears to be similar to a disproportionate division of the marital estate and will only be a
double hit for the first three years of Respondent’s maintenance obligation.”
¶ 87 In this appeal, respondent contests the trial court’s findings in ruling on his motion to
reconsider. Respondent initially submits that the trial court’s desire to prevent possible future
litigation does not erase the need to correct the numerous errors made in the dissolution judgment.
indicates that it is $1000 higher, or $429,643.
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2021 IL App (2d) 190917-URespondent points out that domestic relations courts routinely enter orders that require annual true-
ups between parties precisely because of the uncertain or fluctuating nature of the payor’s stream
of income. See, e.g., In re Marriage of Connelly, 2020 IL App (3d) 180193, ¶ 25 (noting that
marital settlement agreement incorporated into the dissolution judgment contained a true-up
provision requiring former husband to pay 28% of any income earned over the $100,000 annual
salary he earned at the time of the judgment); In re Marriage of Miller, 2015 IL App (2d) 140530,
¶ 4 (noting that former husband was ordered to pay permanent maintenance at a rate of 41.44% of
his income for the first four years and 21.44% of his income thereafter; former wife was paid
$3000 monthly, with an annual true-up depending upon the size of the former husband’s annual
bonus). He argues that the trial court’s rationale does not directly address his claim that the court
overstated his available income for purposes of support. Similarly, respondent argues that the trial
court’s comments that he has a history of saving and therefore could budget for the maintenance
payments do not address the errors it committed.
¶ 88 We review the ultimate decision of the court rather than the reasoning that produced it. In
re Marriage of Heindl, 2014 IL App (2d) 130198, ¶ 31. As we have concluded earlier, the trial
court did not err in considering respondent’s expat allowance and related tax-protection amounts
in calculating his available income for purposes of support. Indeed, despite the trial court’s
statements in ruling on respondent’s motion to reconsider, it could reasonably conclude that there
was insufficient evidence that respondent’s wages were uncertain or fluctuating. As the trial court
suggested, although respondent’s expat allowance had been decreasing for several years, the
evidence established that his income had been increasing. As noted earlier, the evidence of record
supports this conclusion. Despite the decrease in the expat allowance, the Medicare wages
reflected on respondent’s W-2 statements for the years 2015 through 2018 (the most recent full-
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2021 IL App (2d) 190917-Uyear statement available at the time of trial) showed that respondent’s income steadily increased
on a year-over-year basis. Respondent’s Medicare wages were $683,482 in 2015, $718,690 in
2016, $769,536 in 2017, and $791,808 in 2018. Indeed, despite respondent’s testimony that each
year between 2017 and 2019 the expat allowance would be reduced by 33% effective with the
February payroll, the Medicare wages as reflected on his W-2 statement reflect an increase of
more than $20,000 between 2017 and 2018. Based on this record, even though respondent’s expat
allowance was being phased out, the trial court could reasonably conclude that it did not have a
negative impact on respondent’s wages. Thus, the trial court’s finding that the decrease in
respondent’s expat allowance is “not certain to negatively affect the Respondent’s income based
on his past income history” does not provide a basis for overturning the trial court’s findings on
reconsideration and its decision to deny the motion to reconsider on this basis was not against the
manifest weight of the evidence.
¶ 89 Respondent also contends that the trial court abused its discretion by failing to
acknowledge the new evidence he submitted on reconsideration that showed he experienced a 25%
decrease in his income between June 30, 2018, and June 30, 2019. According to respondent, the
court “gave no indication that it considered all of the evidence presented by [him] that more
accurately reflected his current income and prevented it from being artificially inflated.” More to
the point, respondent asserts that “nowhere did the Court acknowledge that between June 30, 2018,
and June 30, 2019, [his] year-to-date gross income from all employment sources * * * had declined
by $145,979, mostly due to a reduction in his RSU payments * * * and in his expat allowance.”
We disagree that the trial court failed to consider this evidence. The opening paragraph of the
court’s ruling on the motion to reconsider states as follows:
“This matter comes before the Court on the Respondent’s Motion to Reconsider the
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2021 IL App (2d) 190917-UCourt’s decision of June 3, 2019, entered June 10, 2019, the parties having argued the
motion May 3, 2019, and the Court having taken the matter under advisement to consider
the pleadings and arguments of the attorneys on behalf of the parties.” (Emphasis added.)
Although the trial court did not expressly discuss the supplemental income evidence respondent
submitted, the italicized language from the court’s order belies respondent’s claim that the trial
court did not consider the supplemental income evidence, which was set forth in its pleadings and
argued at the hearing on the motion to reconsider. Thus, contrary to respondent’s claim, we find
that the trial court considered the supplemental income evidence.
¶ 90 Finally, with respect to his argument regarding the unvested RSUs, respondent contends
that the trial court “appears to concede the existence of the impermissible double count by stating
that ‘[i]f the award to Petitioner is a double hit to Respondent, it appears to be similar to the
disproportionate division of the marital estate and will only by a double hit for the first three years
of Respondent’s maintenance obligation.” Having acknowledged the correctness of respondent’s
argument on this claim, we need not address the propriety of the trial court’s remarks upon
rehearing.
¶ 91 For the reasons set forth above, we therefore find that the trial court did not err in denying
respondent’s motion to reconsider.
¶ 92 B. Pre-marital Contributions to Retirement Accounts
¶ 93 Respondent’s next argument concerns the trial court’s ruling that the non-marital portion
of his JP Morgan Chase 401(k) and IRA accounts was limited to the contributions he made to the
accounts prior to the parties’ marriage. According to respondent, the trial court erred in rejecting
his estimate that the $20,000 in pre-marital funds he contributed to the retirement accounts grew
to $389,000 over the course of the parties’ 30-year marriage based upon his analysis of the rates
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2021 IL App (2d) 190917-Uof return of the S&P 500 during that period. Respondent further contends that the court’s error in
failing to attribute any gain to his non-marital contributions tainted its valuation and division of
property, thereby resulting in an overstated amount of marital retirement funds. Petitioner responds
that the trial court did not abuse its discretion by not attributing gain to respondent’s pre-marital
retirement assets because respondent failed to present any credible evidence in support of his
claim.
¶ 94 The classification and disposition of property in a dissolution-of-marriage case is governed
by section 503 of the Act (750 ILCS 5/503 (West 2018)); In re Marriage of James, 2018 IL App
(2d) 170627, ¶ 20. All property of the parties to a marriage belongs to one of three estates: (1) the
husband’s estate; (2) the wife’s estate; or (3) the marital estate. In re Marriage of Werries, 247 Ill.
App. 3d 639, 641-42 (1993). Before a court may dispose of property upon the dissolution of the
marriage, it must determine to which of these estates the property belongs. In re Marriage of
Henke, 313 Ill. App. 3d 159, 166 (2000). After the trial court classifies the property, it awards each
spouse his or her non-marital property and divides the marital property in “just proportions.” 750
ILCS 5/503(d) (West 2018); James, 2018 IL App (2d) 170627, ¶ 20. The trial court must make
specific factual findings as to its classification of assets as marital or non-marital property. 750
ILCS 5/503(a) (West 2018). The trial court’s classification of property as marital or non-marital
will not be reversed on appeal unless it is against the manifest weight of the evidence. In re
Marriage of Romano, 2012 IL App (2d) 091339, ¶ 44; In re Marriage of Heroy, 385 Ill. App. 3d
640, 669 (2008). The reason for this deferential standard of review is that the characterization of
an asset typically depends upon assessing and weighing the credibility of the witnesses. In re
Marriage of Joynt, 375 Ill. App. 3d 817, 819 (2007). Similarly, the valuation of property is a
question of fact, and a trial courts determination of value will be reversed only where it is contrary
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2021 IL App (2d) 190917-Uto the manifest weight of the evidence. In re Marriage of Vucic, 216 Ill. App. 3d 692, 703 (1991).
A decision is against the manifest weight of the evidence only when an opposite conclusion is
clearly apparent or when the court’s findings appear to be unreasonable, arbitrary, or not based on
the evidence. Romano, 2012 IL App (2d) 091339, ¶ 44.
¶ 95 Section 503(b)(1) of the Act (750 ILCS 5/503(b)(1) (West 2018)) creates a rebuttable
presumption that all property acquired after the date of the marriage and before a judgment of
dissolution of marriage is marital property regardless of the manner in which title is held. Romano,
2012 IL App (2d) 091339, ¶ 45. Similarly, section 503(b)(2) of the Act (750 ILCS 5/503(b)(2)
(West 2018)) provides that “all pension benefits (including pension benefits under the Illinois
Pension Code, defined benefit plans, defined contribution plans and accounts, individual
retirement accounts, and non-qualified plans) acquired by or participated in by either spouse after
the marriage and before a judgment of dissolution of marriage * * * are presumed to be marital
property.” These statutory presumptions may be overcome by a showing of clear and convincing
evidence that the property falls within one of the exceptions listed in section 503(a) of the Act (750
ILCS 5/503(a) (West 2018)). 750 ILCS 5/503(b)(1), (b)(2) (West 2018); In re Marriage of
Budorick, 2020 IL App (1st) 190994, ¶ 41; In re Marriage of Dann, 2012 IL App (2d) 100343,
¶ 63; Romano, 2012 IL App (2d) 091339, ¶ 45. Among these exceptions are:
“(6) property acquired before the marriage, except as it relates to retirement plans
that may have both marital and non-marital characteristics; [and]
***
(7) the increase in value of non-marital property, irrespective of whether the
increase results from a contribution of marital property, non-marital property, the personal
effort of a spouse, or otherwise, subject to the right of reimbursement provided in
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2021 IL App (2d) 190917-Usubsection (c) of this Section.” 750 ILCS 5/503(a)(6), (7) (West 2018).
Clear and convincing evidence is a higher standard of proof than a preponderance of the evidence
but not quite as high as the beyond-a-reasonable-doubt standard in criminal cases. In re Marriage
of Wechselberger, 115 Ill. App. 3d 779, 786 (1983). The burden of proof is on the party claiming
that the property is nonmarital. James, 2018 IL App (2d) 170627, ¶ 28. Any doubts as to the nature
of the property are resolved in favor of a finding that the property is marital. In re Marriage of
Dhillon, 2014 IL App (3d) 130653, ¶ 24.
¶ 96 Thus, for respondent to prevail, he was required to prove by clear and convincing evidence
that his $20,000 of non-marital retirement funds grew to $389,000 during the parties’ 30-year
marriage. The trial court found that respondent failed to carry his burden. The court reasoned that
respondent presented “no evidence * * * of how the $20,000 was invested or how much it grew
from year to year.” The court further remarked that respondent’s “estimate of the current value of
his non-marital contribution is, as an estimate with no other clear and convincing evidence,
speculative.” Based on the evidence of record, we cannot say that the trial court’s finding that
respondent failed to prove by clear and convincing evidence that his $20,000 in pre-marital
contributions to the JP Morgan Chase 401(k) and IRA accounts grew to $389,000 was against the
manifest weight of the evidence.
¶ 97 As the trial court correctly observed, there was no evidence of how the $20,000 was
invested over time or how the funds grew from year to year. Respondent based his estimate of the
value of the pre-marital contributions on the “time value of money theory,” pointing to his
testimony that he never withdrew any money from the accounts and always reinvested any
earnings, and using the rate of return for the S&P 500 over the 30-year term of the parties’
marriage. However, respondent introduced no evidence that over this period the pre-marital
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2021 IL App (2d) 190917-Ucontributions were invested in a fund that tracks the S&P 500. Indeed, respondent introduced two
documents showing how the funds in the JP Morgan Chase 401(k) and IRA were invested.
Respondent introduced an “account overview” from March 2019 for the JP Morgan Chase 401(k)
account. That document shows that as of that point in time, the funds in the JP Morgan Chase
401(k) were divided into eight separate investments—an intermediate bond fund (0.91%), a high-
yield bond fund (4.42%), a large cap value index fund (33.29%), a large cap growth index fund
(26.97%), a small cap index fund (12.8%), an international large cap index fund (6.88%), an
international small cap index fund (6.95%), and the JP Morgan Chase common stock fund (7.78%).
Respondent also introduced an account statement from February 2019 for the JP Morgan Chase
IRA. That document shows that as of that point in time, the funds in the JP Morgan Chase IRA
were divided into: (1) United States large cap stocks (62%); (2) United States small cap stocks
(2%); (3) non-United States stocks (13%); (4) emerging market stocks (9%); (5) gold (10%); and
(6) cash (4%). Based on respondent’s failure to show that his $20,000 in pre-marital contributions
to his retirement plans were invested in funds that tracks the S&P 500 as well as his failure to
introduce evidence as to how the funds grew from year to year, the trial court reasonably concluded
that respondent failed to present clear and convincing evidence that the current value of his pre-
marital contributions to the retirement accounts had grown to $389,000 over the course of the
parties’ 30-year marriage based upon his analysis of the rates of return of the S&P 500 during that
period. See In re Marriage of Malters, 133 Ill. App. 3d 168, 180 (1985) (noting that to correctly
evaluate assets, the trial court must have before it competent evidence of value).
¶ 98 Nevertheless, respondent argues that the trial court erroneously rejected his estimate given
his “career-long expertise in high-level banking” and the fact that his testimony was “unrebutted.”
As noted above, however, it was within the province of the trial court to assess and weigh the
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2021 IL App (2d) 190917-Ucredibility of the witnesses. Joynt, 375 Ill. App. 3d 817, 819 (2007). The trial court was not
obligated to accept respondent’s testimony, even if unrebutted, especially since it was not
supported by any competent evidence. Indeed, when sitting as the trier of fact, a trial court is
entitled to accept as much or as little of a witness’s testimony as it wants. See, e.g., Kraft Foods,
Inc. v. Illinois Property Tax Appeal Board, 2013 IL App (2d) 121031, ¶ 58 (rejecting proposition
that a trier of fact must accept certain testimony because it is unrebutted since doing so would
remove some of the discretion from the trier of fact as to how much weight should be afforded
various evidence); Franciscan Communities, Inc. v. Hamer, 2012 IL App (2d) 110431, ¶ 47
(noting that the trier of fact is free to disbelieve any witness).
¶ 99 Citing various cases, respondent also contends that ownership alone is sufficient to
establish a basis for his opinion. While there is authority for the proposition that a property owner
may be competent to testify as to the value of his property, a court is not required to defer to an
owner’s opinion as to value. See Vucic, 216 Ill. App. 3d at 703 (noting that the general rule in
Illinois is that a property owner is competent to render an opinion as to the value of his or her
property but the rule is not absolute). More significantly, respondent did not attempt to testify as
to the value of his property in this case. Rather, he attempted to invoke an economic analysis to
show the gain in value of property over a course of 30 years. This is very different than placing a
value on an asset at the time of trial. As such, this argument is not well taken.
¶ 100 Respondent maintains that a court may take judicial notice of the fair earning power of
money or invested capital over a certain period. See In re Marriage of Ryman, 172 Ill. App. 3d
599, 612 (1988). Respondent further maintains that once the trial court found that he “seeded the
retirement accounts with $20,000 of his non-marital money, it is unreasonable to then deny that
these funds experienced any growth over the past 30 years, especially where an experienced
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2021 IL App (2d) 190917-Uinternational banker was directing the investments.” (Emphasis in original.) As noted above,
however, it was respondent’s burden to prove by clear and convincing evidence the gain in value
of his initial contributions to the retirement accounts. As the trial court reasonably found,
respondent failed to present any competent evidence of how the $20,000 was invested or how
much it grew from year to year. Thus, the trial court did not err in rejecting his testimony regarding
the gain in value of the pre-marital retirement contributions.
¶ 101 Respondent complains that the trial court’s statement that his pre-marital contributions to
the retirement accounts “may have been completely lost during the recession of approximately
2007 to 2012” amounted to speculation. Respondent’s argument is not well taken for two principal
reasons. First, it ignores the facts that the trial court classified respondent’s $20,000 in pre-marital
contributions to the retirement accounts as his non-marital property. Thus, contrary to respondent’s
claim that court did not find that his pre-marital contributions were lost. Second, and more
significantly, the trial court did not award respondent any gain on the pre-marital contribution
because the court found that respondent failed to present any evidence “of how the $20,000 was
invested or how much it grew from year to year.” As noted above, this was a reasonable conclusion
based on the evidence of record.
¶ 102 Finally, respondent argues that the trial court erred in denying his motion to reconsider.
However, respondent’s argument is based on the same reasons raised above. Having rejected the
underlying contentions, we also reject respondent’s arguments directed to the trial court’s decision
to deny respondent’s motion to reconsider on this issue.
¶ 103 C. Attorney Fees
¶ 104 Lastly, respondent argues that the trial court erred in ordering him to pay a portion of
petitioner’s attorney fees. Specifically, respondent contests (1) the court’s ruling in the judgment
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2021 IL App (2d) 190917-Uof dissolution that he contribute $12,500 to petitioner’s attorney fees pursuant to section 503(j) of
the Act (750 ILCS 5/503(j) (West 2018)) and (2) the court’s ruling on September 23, 2019, that he
pay the additional sum of $24,746 in attorney fees to petitioner pursuant to section 508(b) of the
Act (750 ILCS 5/508(b) (West 2018)). Petitioner responds that the trial court acted within its
discretion to award her attorney fees. We address each of respondent’s contentions separately.
¶ 105 1. Section 503(j) Attorney Fees
¶ 106 Respondent initially argues that the trial court erroneously ordered him to contribute
$12,500 to petitioner’s attorney fees. Specifically, respondent asserts that although the trial court
initially determined in the dissolution judgment that each party was to pay their own fees, it then
also ordered him to contribute $12,500 toward petitioner’s fees without explaining the basis for
doing so. Respondent contends that it was petitioner who unnecessarily drove up the fees in this
case, causing him to file a petition for contribution to attorney fees and costs and for sanctions
against her. Petitioner responds that the trial court did not abuse its discretion in ordering
respondent to contribute $12,500 to her attorney fees because her “ability to pay her attorney’s
fees pales in comparison to [respondent’s].”
¶ 107 Generally, each party is responsible for his or her attorney fees. In re Marriage of Mantei,
222 Ill. App. 3d 933, 941 (1991). The Act, however, allows a party to petition for attorney fees in
certain circumstances. Specifically, section 508(a) of the Act provides, in relevant part:
“The court from time to time, after due notice and hearing, and after considering
the financial resources of the parties, may order any party to pay a reasonable amount for
his own or the other party’s costs and attorney’s fees. * * * At the conclusion of any pre-
judgment dissolution proceeding under this subsection, contribution to attorney’s fees and
costs may be awarded from the opposing party in accordance with subsection (j) of Section
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2021 IL App (2d) 190917-U503 and in any other proceeding under this subsection.” 750 ILCS 5/508(a) (West 2018).
In turn, section 503(j)(2) of the Act indicates that “[a]ny award of contribution to one party from
the other party shall be based on the criteria for division of marital property under this Section 503
and, if maintenance has been awarded, on the criteria for an award of maintenance under Section
504.” 750 ILCS 5/503(j)(2) (West 2018). Thus, in awarding attorney fees under section 508 of the
Act, the trial court must “(1) ‘consider[] the financial resources of the parties’ and (2) make its
decision on a petition for contribution ‘in accordance with subsection (j) of Section 503.’ ” Heroy,
2017 IL 120205, ¶ 19 (quoting 750 ILCS 5/508(a) (West 2014)). We review an award of attorney
fees for an abuse of discretion. Micheli, 2014 IL App (2d) 121245, ¶ 45. Under this standard, we
will reverse only if no reasonable person could agree with the trial court. In re Marriage of Keller,
2020 IL App (2d) 180960, ¶ 11.
¶ 108 Initially, respondent complains that the trial court did not explain the basis for its decision
ordering him to contribute $12,500 to petitioner’s attorney fees. However, when a trial court’s
order does not contain the basis for its ruling, the reviewing court presumes that the trial judge
knew the law and applied it properly. In re Marriage of Kane, 2016 IL App (2d) 150774, ¶ 24.
The presumption is overcome when the record contains “strong affirmative evidence” showing the
trial court did not know or did not apply the law. People v. Howery, 178 Ill. 2d 1, 32 (1997). Here,
in ordering respondent to contribute $12,500 to petitioner’s attorney fees, the trial court’s order
expressly states that it had “heard and considered the evidence and the testimony of witnesses (the
parties) and considered the applicable statutes and case law.” Further, respondent does not direct
us to “strong affirmative evidence” that the trial court did not know or apply the law. We therefore
conclude that the trial court’s failure to expressly set forth a basis for its order does not compel
reversal of the trial court’s ruling that respondent contribute $12,500 to petitioner’s attorney fees.
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2021 IL App (2d) 190917-U¶ 109 Moreover, we conclude that the trial court did not abuse its discretion in ordering
respondent to contribute $12,500 to petitioner’s attorney fees. As noted above, a contribution
award is based on the financial resources of the parties, the criteria for the division of marital
property, and, where maintenance has been awarded, the criteria for an award of maintenance. 750
ILCS 5/503(j)(2) (West 2018); Heroy, 2017 IL 120205, ¶ 19 (quoting 750 ILCS 5/508(a) (West
2014)). Section 503(d) of the Act lists 12 factors to be considered when dividing marital property,
including: (1) each party’s contribution to the acquisition, preservation, or increase or decrease in
value of the marital or non-marital property, including a party’s contribution as a homemaker or
to the family unit; (2) the dissipation of marital property by the parties; (3) the value of the property
assigned to each party; (4) the duration of the marriage; (5) the economic circumstances of each
party; (6) the age, health, station, occupation, amount and sources of income, vocational skills,
employability, estate, liabilities, and needs of each of the parties; (7) the custodial provisions for
any children; (8) whether maintenance was awarded; (9) each party’s opportunity for future
acquisition of income and capital; and (10) the tax consequences of the property division upon
each party. 750 ILCS 5/503(d) (West 2018). When maintenance has been awarded, the court
should also consider the 14 factors set forth in section 504(a) of the Act, including: (1) the income
and property of each party, including marital property apportioned to each party; (2) the needs of
each party; (3) the present and future earning capacity of each party; (4) any impairment to earning
capacity of the party seeking maintenance because he or she devoted time to domestic duties or
forewent opportunities for education or training because of the marriage; (5) any impairment to
earning capacity of the party against whom maintenance is sought; (6) the time necessary for the
party seeking maintenance to acquire appropriate education, training, or employment; (7) the
standard of living established during the marriage; (8) the duration of the marriage; (9) all sources
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2021 IL App (2d) 190917-Uof income; (10) contribution and services by the party seeking maintenance to the education,
training, or career of the other party; and (11) any other factor that the court expressly finds to be
just and equitable. 750 ILCS 5/504(a) (West 2018).
¶ 110 In this case, respondent does not argue that the financial resources of the parties, the criteria
for the division of marital property, or the criteria for an award of maintenance weigh against an
award of contribution to petitioner’s attorney fees. Rather, he contends that it was petitioner who
unnecessarily drove up the fees in this case, causing him to file a petition for contribution to his
attorney fees and costs and for sanctions against her. See In re Marriage of Patel, 2013 IL App
(1st) 112571, ¶ 117 (observing that when considering a petition to allocate attorney fees, the trial
court may also consider whether one party unnecessarily increased the cost of litigation because it
is relevant to the division of property and the allocation of attorney fees). In support of this
contention, respondent asserts that petitioner’s testimony at trial regarding her two financial
affidavits was repeatedly impeached and her dissipation claim was “riddled with countless
‘mistakes.’ ” However, the court was aware of the inaccuracies in petitioner’s financial affidavits
and her admitted mistakes in the dissipation claim as this evidence was brought out at trial. Further,
we observe that the trial court also found respondent’s dissipation claim inaccurate, writing that
“[a]ll of the expenses by the Petitioner that are the basis of the Respondent’s claim of dissipation
appear to be expenses by the Petitioner for her needs and those of the children and none appear
excessive in light of the lifestyle of the parties, and especially the Petitioner, enjoyed during the
marriage.” Given this record, respondent’s argument that petitioner was solely responsible for
driving up the fees in this case is not well taken.
¶ 111 More significantly, an examination of the financial resources of the parties, the criteria for
the division of marital property, and the criteria for an award of maintenance, which, as noted
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2021 IL App (2d) 190917-Upreviously, respondent does not address, leads us to conclude that the trial court’s ruling did not
constitute an abuse of discretion. The record establishes that the parties were married for 30 years
and both are in good health. The parties enjoyed a comfortable standard of living during the
marriage, including luxury vehicles, jewelry, and extensive domestic and international travel. At
the time of trial, petitioner was 55 years of age and respondent was 56 years of age. Respondent is
a college graduate and had been gainfully employed throughout the marriage, principally as a
banker. Petitioner holds a GED. During the marriage, petitioner worked principally as a
homemaker and a caretaker to the parties’ four children. Although she worked outside the home
at the start of the marriage, petitioner has not held a wage-paying job outside the home since 1998,
when she left work as a part-time salesperson for a clothing retailer. Petitioner’s highest salary
when she worked outside the home was about $30,000 per year. As reflected on his W-2
statements, respondent’s income has consistently risen from about $683,482 in 2015 to $791,808
in 2018. The court awarded petitioner maintenance of $15,000 per month. The court awarded
respondent $20,000 in non-marital property, the parties’ time share property in Orlando, Florida
(valued at $11,500), a 2011 Mercedes Benz, a leased BMW, and the bank accounts in his name.
The court awarded petitioner a 2007 BMW, the bank accounts in her name, and $166,380,
representing one-half of the amount dissipated by respondent. The court divided the remainder of
the marital property (mainly the retirement accounts) evenly between the parties. As the foregoing
establishes, respondent clearly has the financial ability to contribute $12,500 toward petitioner’s
attorney fees given, inter alia, his financial resources, his present and future earning capacity, and
his opportunity for future acquisition of capital assets and income. Considering this record, we
simply cannot say that no reasonable person could agree with the trial court. Accordingly, the trial
court did not abuse its discretion in ordering respondent to contribute $12,500 to petitioner’s
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2021 IL App (2d) 190917-Uattorney fees.
¶ 112 2. Section 508(b) Attorney Fees
¶ 113 Respondent also argues that the trial court erroneously ordered him to pay the additional
sum of $24,746 in attorney fees to petitioner pursuant to section 508(b) of the Act (750 ILCS
5/508(b) (West 2018)). In support of this argument, respondent contends: (1) he did not violate
any court order so as to support the imposition of attorney fees pursuant to section 508(b); (2) the
trial court did not make a specific finding that he had engaged in an “improper purpose” to support
the imposition of attorney fees pursuant to section 508(b); and (3) the trial court refused to inquire
as to the specific work done by petitioner’s counsel to support the fee request or determine whether
such fees were reasonable for that work. Petitioner responds that it was within the discretion of the
trial court to order respondent to pay $24,746 in attorney fees to her pursuant to section 508(b) of
the Act because respondent’s “flagrant conduct” necessitated the filing of two emergency motions
for injunctive relief.
¶ 114 It is improper for a trial court to award attorney fees for the dissolution proceedings in
general under section 508(b). In re Marriage of Gattone, 317 Ill. App. 3d 346, 360 (2000). Rather,
attorney fees may be imposed only under the circumstances set forth in section 508(b) of the Act.
The statute provides as follows:
“(b) 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
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2021 IL App (2d) 190917-Uclear 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.” 750 ILCS 5/508(b) (West 2018).
Thus, the first part of section 508(b) mandates the assessment of costs and reasonable attorney fees
where a failure to comply with a court order or judgment is found to be “without compelling cause
or justification.” 750 ILCS 5/508(b) (West 2018); In re Marriage of McGuire, 305 Ill. App. 3d
474, 481 (1999). The statute also mandates the assessment of costs and attorney fees when the
court finds that a hearing was “precipitated or conducted for any improper purpose,” including,
but not limited to, “harassment, unnecessary delay, or other acts needlessly increasing the cost of
litigation.” 750 ILCS 5/508(b) (West 2018); In re Marriage of Mouschovias, 359 Ill. App. 3d 348,
357-58 (2005). An award of attorney fees under section 508(b) will not be overturned absent a
clear abuse of discretion by the trial court. In re Marriage of Michaelson, 359 Ill. App. 3d 706,
715 (2005). Under this standard, we will reverse only if no reasonable person could agree with the
trial court. Keller, 2020 IL App (2d) 180960, ¶ 11.
¶ 115 Initially, we agree with respondent that there was no basis to order him to contribute to
petitioner’s attorney fees under the first part of section 508(b) of the Act. As noted above, the first
part of section 508(b) mandates the assessment of costs and reasonable attorney fees where a
failure to comply with a court order or judgment is found to be “without compelling cause or
justification.” 750 ILCS 5/508(b) (West 2018); McGuire, 305 Ill. App. 3d at 481. In her section
508(b) petition, petitioner alleged that respondent had “fail[ed] to comply with a court order
without compelling cause or justification” by unilaterally surrendering the three life insurance
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2021 IL App (2d) 190917-Upolicies that had been earmarked by the court in the dissolution judgment to pay attorney fees. In
his response, respondent noted that he surrendered the insurance policies before the dissolution
judgment had been entered. Thus, he asserted, he did not violate any court order. At the hearing
on the petition, petitioner acknowledged that, at the time respondent surrendered the life insurance
policies, he was not under a court order prohibiting him from doing so. Because the evidence of
record does not support a finding that respondent violated a court order, the first part of section
508(b) does not provide a basis upon which the trial court could assess attorney fees. See Gattone,
317 Ill. App. 3d at 359-60 (holding that it was improper for the trial court to order the husband to
contribute toward the wife’s attorney fees under section 508(b) of the Act where the evidence did
not support a finding that the husband violated a court order by using credit cards and withdrawing
money from the marital estate).
¶ 116 Section 508(b) also mandates the assessment of costs and attorney fees when the court
“finds that a hearing *** was precipitated or conducted for any improper purpose,” including, but
not limited to, “harassment, unnecessary delay, or other acts needlessly increasing the cost of
litigation.” 750 ILCS 5/508(b) (West 2018); Mouschovias, 359 Ill. App. 3d at 357-58. Again, we
agree with respondent that this section of the statute does not provide a basis for the imposition of
attorney fees. In her petition, petitioner alleged that respondent “needlessly, and intentionally,
increase[d] [her] litigation costs” where (1) he filed a motion for reconsideration of the dissolution
judgment and (2) the trial court granted two post-judgment emergency restraining orders against
respondent. Petitioner further alleged that after respondent received notice of the second
emergency order, he harassed her over the telephone. However, the trial court did not find that any
hearing “was precipitated or conducted for any improper purpose” and there is nothing in the trial
court’s ruling to suggest that the trial court found that respondent engaged in an improper purpose
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2021 IL App (2d) 190917-Uto support the imposition of an award of attorney fees under section 508(b) of the Act.
¶ 117 In this regard, we observe that the trial court found that respondent’s motion for
reconsideration was “not improper” and “by the very nature of the circumstances of this case
probably it was necessary.” Thus, the filing of the motion for reconsideration did not provide a
basis to impose fees under section 508(b). In addition, the trial court made no finding that
respondent had engaged in an “improper purpose” with respect to the proceedings leading to the
emergency restraining orders against him. Indeed, the trial court does not reference the restraining
orders in its ruling. Likewise, the court makes no mention of petitioner’s allegation that respondent
harassed her over the telephone. Moreover, the allegation of harassment as described by petitioner
would in no way justify the imposition of almost $25,000 in attorney fees where it consisted of
only one contact, during which respondent allegedly made insulting remarks about petitioner and
her attorneys. Finally, to the extent that the trial court’s ruling could be interpreted as awarding
attorney fees for the dissolution proceedings in general, such an award is improper under section
508(b). Gattone, 317 Ill. App. 3d at 360. Because the trial court did not identify the conduct
engaged in by respondent it found objectionable and required an award of fees, we conclude that
the trial court abused its discretion in ordering respondent to contribute $24,746 toward petitioner’s
attorney fees.
¶ 118 We also point out that this court has held that an award of attorney fees under section
508(b) is “ ‘subject to a determination of reasonableness based on, inter alia, the time spent, the
ability of the lawyers, and the complexity of the work.’ ” Gattone, 317 Ill. App. 3d at 360 (quoting
In re Marriage of Walters, 238 Ill. App. 3d 1086, 1098 (1992)). We find nothing in the record
before us regarding any of the above factors. It appears that the trial court did not determine the
basis for the amount of fees petitioner requested or whether that amount was reasonable. Indeed,
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2021 IL App (2d) 190917-Uthe trial court denied respondent’s request that petitioner identify the time spend on the work
related to the fee award. For this reason as well, we also conclude that the trial court abused its
discretion in ordering respondent to contribute $24,746 toward petitioner’s attorney fees.
¶ 119 For all the foregoing reasons, we conclude that the trial court abused its discretion in
ordering respondent to contribute $24,746 toward petitioner’s attorney fees pursuant to section
508(b) of the Act. We therefore reverse that portion of the trial court’s judgment.
¶ 120 III. CONCLUSION
¶ 121 For the reasons set forth above, we reverse that portion of the judgment of the circuit court
of Kane County ordering respondent to pay $24,746 towards petitioner’s attorney fees pursuant to
section 508(b) of the Act. We also conclude that, with respect to the RSU shares, the trial court
erred in calculating respondent’s available income for his maintenance obligation. However, as
the error was de minimis, it provides no basis upon which to modify the maintenance award. The
judgment of the circuit court is affirmed in all other respects.
¶ 122 Affirmed in part and reversed in part.
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