In Re the Marriage of: Jeffrey E. Nelson v. Julie A. Nelson (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jul 06 2020, 8:57 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE
Andrea L. Ciobanu Kelly A. Lonnberg
Ciobanu Law, P.C. Stoll Keenon Ogden, PLLC
Indianapolis, Indiana Evansville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
In Re the Marriage of: July 6, 2020
Jeffrey E. Nelson, Court of Appeals Case No.
19A-DR-2642
Appellant/Cross-Appellee-Respondent,
Appeal from the Vanderburgh
v. Superior Court
The Honorable J. Zach Winsett,
Julie A. Nelson, Special Judge
Trial Court Cause No.
Appellee/Cross-Appellant-Petitioner.
82D01-1601-DR-32
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-DR-2642 | July 6, 2020 Page 1 of 22
Statement of the Case
[1] Jeffrey Nelson (“Husband”) appeals the dissolution court’s final decree
dissolving his marriage to Julie Nelson (“Wife”). Husband presents three issues
for our review:
1. Whether the dissolution court abused its discretion when it
excluded his expert witnesses’ testimony.
2. Whether the dissolution court abused its discretion when it
divided the marital estate.
3. Whether the dissolution court erred when it did not award
Husband a setoff against Wife’s share of the marital estate.
[2] Wife cross-appeals and requests attorney’s fees.
[3] We affirm in part, reverse in part, and remand with instructions.
Facts and Procedural History
[4] This is the sixth appeal in this contentious dissolution action between Husband
and Wife, who were married for four years and have been litigating their
dissolution for just as long. In a prior appeal, where Husband appealed the
court’s order finding him in contempt, this Court set out the relevant
foundational facts and procedural history as follows:
Husband and Wife married in Illinois on April 28, 2012. The
day before their marriage, the parties executed a prenuptial
agreement. On January 8, 2016, Wife filed a verified petition for
dissolution of marriage as well as a motion for provisional order.
Following a hearing, the trial court entered a provisional order
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that provided in relevant part that, during the pendency of the
dissolution proceedings, Husband was to pay Wife’s monthly
rent payments plus $2500 per month in spousal maintenance.
Husband was also ordered to pay $20,000 in both current and
prospective attorney’s fees to Wife’s counsel. Husband was
granted temporary possession of the marital residence and was
responsible for all debts and expenses associated therewith.
Thereafter, Wife filed various motions and petitions requesting
the trial court to interpret the parties’ prenuptial agreement and
seeking other provisional relief, including additional attorney’s
fees. Accordingly, the trial court has held multiple hearings and
entered multiple provisional orders. Husband appealed each of
those orders, and different panels of this Court have issued
memorandum decisions on the narrow issues presented therein.
See Nelson v. Nelson, No. 18A-DR-248, 2018 WL 4403437 (Ind.
Ct. App. Sept. 12, 2018) [(“Nelson III”)]; Nelson v. Nelson, No.
18A-DR-794, 2018 WL 4003368 (Ind. Ct. App. Aug. 9, 2018)
[(“Nelson II”)]; Nelson v. Nelson, No. 82A01-1607-DR-1706, 2017
WL 765900 (Ind. Ct. App. Feb. 28, 2017) [(“Nelson I”)].
Nelson v. Nelson, No. 18A-DR-1577, 2019 WL 386414, at *1 (Ind. Ct. App. Jan.
31, 2019) (“Nelson IV”).
[5] At the final evidentiary hearing on Wife’s dissolution petition, which occurred
over the course of six days beginning in November 2018 and concluded on July
12, 2019, Wife testified and presented evidence, including expert testimony
regarding the parties’ oil interests and the valuation thereof. Husband did not
testify. And when Husband offered expert testimony regarding his oil interests,
the trial court found that Husband’s witness did not qualify as an expert and
excluded his testimony. On July 11, one day before the final day of the hearing,
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Husband notified Wife that he intended to call two previously unidentified
expert witnesses, Terry White and Mr. Schmitt, 1 to testify at the hearing on July
12. Due to the late notice, Wife objected to the witnesses’ testimony, and the
dissolution court excluded them.
[6] In its final decree, the dissolution court stated in relevant part as follows:
6. Certain real and personal property was accumulated as a
result of the marriage, which should be divided equitably by the
court.
7. There exists a valid prenuptial agreement which contains
“Schedule A” and “Schedule [B]” which outlines the property of
the parties at the time of marriage. The prenuptial agreement is
attached to this order (Husband’s Exhibit A of 1/16/2019).
8. The following property is non-marital in nature, and shall be
awarded to the Husband, free and clear from any claim from the
Wife:
a. Each and every item of property listed in Schedule
A of the prenuptial agreement;
b. Any property owned individually by Husband
prior to the date of marriage pursuant to the
prenuptial agreement.
9. The following property is non-marital in nature, and shall be
awarded to the Wife, free and clear from any claim from the
Husband:
1
The record does not reveal Mr. Schmitt’s first name.
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a. Any property owned individually by [Wife] prior
to the date of marriage pursuant to the prenuptial
agreement.
10. The following property is marital property, and subject to
division:
a. Real Estate and Residence located at 1000 Oak
Trace, Evansville, Indiana;
b. Real Estate located at 1220 Hillsdale Rd.,
Evansville, Indiana;
c. Certain furniture/personal property items;
d. Personal Vehicles of the parties obtained during
the marriage;
e. Certain Oil interests;
f. First Federal Bank Accts ending 9197, 3687.
g. Regions Bank Accts ending 2644, 9459, 2792.
11. All other property not specifically listed in this order is non-
marital property.
12. The court initially presumes that an equal division of marital
property between the parties is just and reasonable, and the
prenuptial agreement requires an equal division of marital
property between the parties.
13. The Wife shall be the sole, exclusive owner of the real estate
and residence located at 1000 Oak Trace, Evansville, Indiana,
free and clear from any claim from the Husband. This property
is valued by the court at $370,000.00.
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14. The Husband shall be the sole, exclusive owner of the real
estate located at 1220 Hillsdale Rd, Evansville, Indiana, subject
to certain amounts that the Husband owes to the Wife and
others. This property is valued by the court at $247,000.00.
15. The court orders that the Husband shall be the sole and
exclusive owner of First Federal and Regions Bank accounts as
referenced below, free and clear from any claim from the Wife.
The following joint bank accounts were in existence at the time
of the filing of the dissolution, and the Court designates the
following values to each account:
a. Regions Bank Acct. No. ending 2644 $3,236.94
b. First Federal Bank Acct. No. ending 9197
$26,800.18
c. Regions Bank Acct. No. ending 3687 $200.01
d. First Federal Bank Acct. No. ending 9459
$19,803.36
e. Regions Bank Acct. No. ending 2792 $83.93
f. TOTAL BANK ACCOUNTS $50,124.42
16. The Wife is awarded, and therefore credited for purposes of
asset allocation, $2000.00 from the bank accounts listed in the
preceding paragraph. She withdrew $2000.00 from these
accounts at or near the time of filing of the petition for
dissolution. The Husband is awarded, and therefore credited for
purposes of asset allocation, $48,124.42 from these bank
accounts, which represents the remainder of the bank account
values after deducting the Wife’s $2000.00 withdraw[al].
17. The Husband shall have sole, exclusive possession and
ownership of the “Morris Lease” oil lease. The Wife shall have
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no rights, ownership, or responsibilities associated with the
“Morris Lease”. The Wife shall not be responsible for any fines,
fees, or any other costs associated with the “Morris Lease”.
18. The Husband shall have the sole, exclusive possession and
ownership of the following items [of] personal property free and
clear from any claim from the Wife, and the court assigns the
personal property the following values:
a. 2007 Mercedes CL550 $45,200
b. 2007 Mercedes CLK550 $10,000
c. 2014 Ford 250 Super Duty $54,594
d. Kubota Tractor $30,228
e. Wright Motor Car $20,509
f. Horchow Loveseats $8,898
***
x. Total Personal Property HUSBAND $205,369.00
19. The Wife shall have the sole exclusive possession and
ownership of the following items of personal property, free and
clear from any claim from the Husband, and the court assigns the
personal property the following values:
***
c. Leather Sofas, Old Hickory Tanner (at 700
Reserve) $4,000.00
***
h. All other personal property remaining in the Home
$18,263.00
i. Total Personal Property WIFE $54,588.00
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***
21. The Husband Shall be the sole owner of the following oil
related assets, free and clear from any claim from the Wife, and
the court considers these assets marital property, and assigns the
following values to each:
a. Armstrong Spore $129.00
b. Armstrong Unit $233.00
c. Braselton-Armstrong Unit $28.00
d. Creamer Tract 10 $3,555.00
e. Darrell O Garrett Lease $40.00
f. Carl V Hardiman $1.00
g. Elmer Thompson Lease $28.00
h. FH Ackerman#1 Lease $1,072.00
i. Flora Clark Unit $5.00
j. JH Spore $40.00
k. Knowles Unit $123.00
l. Leo W. Dyball Lease $23.00
m. Luther Armstrong Lease $13.00
n. MA Knowles Lease $155.00
o. Mae Mauck Lease $18.00
p. Marvel Braselton Unit $53.00
q. Morris Lease $0.00
r. Moser-Spore Unit $20.00
s. North Owensville Pooled Leases $721.00
t. Robb Unit $979.00
u. Rosa Braselton Heris $1,363.00
v. Rosa G Braselton $20.00
w. Sharon Bolinn Stoltz et al Lease $49.00
x. Wagner Consolidated $83,555.00
y. William Marvel $692.00
z. Total Oil Related Assets allocated to HUSBAND
$92,915.00
***
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27. Except as otherwise specifically stated in this order, each
respective party shall be solely responsible for his or her own
attorney’s fees.
Appellant’s App. Vol. 3 at 4-9. This appeal ensued.
Discussion and Decision
Issue One: Expert Witnesses
[7] Husband first contends that the dissolution court abused its discretion when it
excluded two expert witnesses from testifying at the final hearing. Again,
Husband first notified Wife of his intent to present testimony from White and
Schmitt the day before the final day of the hearing. Wife objected to the
experts’ testimony because Husband had a duty under Trial Rule 26(E)(1)(b) to
supplement his response to an interrogatory asking Husband to identify “each
expert” witness he expected to call. Appellee’s App. Vol. 2 at 8. Wife asked
that the dissolution court exercise its discretion under Trial Rule 37 to exclude
White’s and Schmitt’s testimony as a sanction for the late notice to Wife, which
the court did.
[8] As our Supreme Court has stated,
Trial Rule 37 provides broad latitude for the trial court to impose
sanctions to ensure cooperative discovery, and thus encompasses
remedies which may be sought by or imposed against either
party. See Ind. Trial Rule 37 (“Failure to make or cooperate in
discovery: Sanctions”). Trial Rule 37(B) permits the trial court to
“make such orders . . . as are just,” including “treating as a
contempt of court the failure to obey,” “prohibiting [the
disobedient party] from introducing designated matters into
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evidence,” “dismissing the action or proceeding or any part
thereof, or rendering a judgment by default against the
disobedient party” when that party “fails to obey an order to
provide or permit discovery.” T.R. 37(B).
Wright v. Miller, 989 N.E.2d 324, 327 (Ind. 2013). When challenged on appeal,
trial court sanctions for failure to comply with court orders are reviewed for an
abuse of discretion. Id. at 330. We presume that the trial court will act in
accord with what is fair and equitable in each case, and thus we will only
reverse if the trial court’s decision is clearly against the logic and effect of the
facts and circumstances before the court, or if the trial court has misinterpreted
the law. Id. The conduct and equities will vary with each case, and we thus
generally leave that determination to the sound discretion of the trial courts. Id.
[9] On appeal, Husband asserts that “he could not have recognized his need for
rebuttal expert witnesses until [Wife’s expert] Mr. Pope testified during the June
25, 2019 hearing and it became known to Husband that Mr. Pope’s calculations
were clearly wrong” and that it was “unreasonably difficult for Husband to
retain an expert witness” during “the short timeframe of seventeen days
between the June 25, 2019 hearing . . . and the July 12, 2019 hearing[.]”
Appellant’s Br. at 36. And Husband maintains that the late notice “did not
place any harm on Wife.” Id. In his offer of proof to the dissolution court,
Husband argued that White would have testified that Wife’s expert testimony
regarding the valuation of the parties’ oil interests was “inaccurate in a way that
harmed [Husband]” in “overvalu[ing] any asset that was deemed a marital
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asset[.]” Tr. Vol. 4 at 70. And Husband argued that Schmitt would testify
regarding Husband’s income and the sources thereof.
[10] Again, Husband did not testify at the final hearing. That he did not anticipate
needing to call his own witnesses to testify regarding his oil interests and his
income until after Pope testified on June 25 is baffling. While Husband may
have had difficulty finding another expert witness between June 25 and July 11,
Husband’s suggestion that he had no idea prior to June 25 of a need to rebut
Wife’s expert witness is not well taken. Moreover, as we stated in Nelson IV,
“our review of the record reveals that Husband has repeatedly interrupted,
obstructed, embarrassed, and prevented the due administration of justice in
these dissolution proceedings.” 2019 WL 386414, at *4. In light of Husband’s
conduct, we cannot say that the dissolution court abused its discretion when it
excluded White’s and Schmitt’s testimony at the final hearing.
Issue Two: Division of Marital Estate
[11] Husband next contends that the dissolution court abused its discretion when it
divided the marital estate. Dissolution actions invoke the inherent equitable
and discretionary authority of our trial courts, and, as such, we review their
decisions with “substantial deference.” See, e.g., R.W. v. M.D. (In re Visitation of
L-A.D.W.), 38 N.E.3d 993, 998 (Ind. 2015). Further,
[w]hen reviewing valuation decisions of trial courts in dissolution
actions, [our] standard of review [is as follows]: that the trial
court has broad discretion in ascertaining the value of property in
a dissolution action, and its valuation will not be disturbed absent
an abuse of that discretion. Cleary v. Cleary, 582 N.E.2d 851, 852
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(Ind. Ct. App. 1991). The trial court does not abuse its discretion
if there is sufficient evidence and reasonable inferences therefrom
to support the result. Id. In other words, we will not reverse the
trial court unless the decision is clearly against the logic and
effect of the facts and circumstances before it. Porter v. Porter, 526
N.E.2d 219, 222 (Ind. Ct. App. 1988), trans. denied. A reviewing
court will not weigh evidence, but will consider the evidence in a
light most favorable to the judgment. Skinner v. Skinner, 644
N.E.2d 141, 143 (Ind. Ct. App. 1994).
Quillen v. Quillen, 671 N.E.2d 98, 102 (Ind. 1996).
[12] Initially, again, we note that Husband did not testify at the dissolution hearing,
and, in support of his arguments on appeal, he largely relies on evidence
introduced by Wife. Further, our consideration of Husband’s contentions on
appeal is hindered by his failure to direct us to the relevant portions of the
transcript demonstrating that he made certain arguments to the dissolution
court to preserve issues for appeal. Despite these deficiencies, we address
Husband’s five separate challenges to the dissolution court’s division of the
marital estate.
No Findings and Conclusions
[13] Husband first contends that the dissolution court erred when it did not make
findings and conclusions in support of the final decree pursuant to an Illinois
statute. Husband acknowledges that neither party requested findings and
conclusions. However, Husband asserts that, because the parties agreed that
Illinois law would govern their prenuptial agreement, the dissolution court was
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required to make certain findings and conclusions under Illinois law. We
cannot agree.
[14] As Wife correctly points out, while Illinois law governs the substantive law in
these proceedings, Indiana law governs procedural issues. See JKL Components
Corp. v. Insul-Reps, Inc., 596 N.E.2d 945, 950 (Ind. Ct. App. 1992) (stating that a
contract provision that an agreement is to be governed by the law of another
state operates only to import the substantive law of that state; the procedural
law of the forum state applies to procedural issues), trans. denied. Whether a
trial court is required to enter findings and conclusions in a dissolution decree is
a matter of procedure, not substance. See id. (“Laws which fix duties, establish
rights and responsibilities among and for persons, natural or otherwise, are
substantive in character, while those which merely prescribe the manner in
which such rights and responsibilities may be exercised and enforced in a court
are procedural”). And, in Indiana, dissolution courts are not required to sua
sponte enter findings and conclusions in a dissolution proceeding. As such,
Husband’s contention on this issue is without merit.
Personal Property Other Than Oil Leases
[15] Husband next contends that the dissolution court abused its discretion when it
included certain personal property in the marital estate and assigned values to
that property. In particular, Husband asserts that: two vehicles included in the
marital estate were not owned by him at the time Wife filed the dissolution
petition, namely, a Mercedes CL550 and a Ford truck, and they should have
been considered nonmarital property; the dissolution court’s assigned values to
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those two vehicles were not supported by the evidence; a Kubota tractor
included in the marital estate was not marital property; and the Horchow
loveseats awarded to Husband are duplicative of the leather sofas awarded to
Wife.
[16] First, as to Husband’s argument that the two vehicles were not marital property,
Husband’s daughter testified at the hearing that, while the two vehicles were in
her name at the time the dissolution petition was filed, she later sold the
vehicles and gave the proceeds to Husband. Thus, as Wife points out, the
dissolution court was entitled to consider the transfer of those vehicles to
Husband’s daughter to be a sham transfer. Moreover, the dissolution court was
entitled to find Husband’s daughter’s testimony on the ownership of the
vehicles not credible. And Wife presented evidence to support the court’s
valuation of the vehicles.
[17] Second, Wife presented evidence that the Kubota tractor was a marital asset,
and Husband does not direct us to any evidence in the record to dispute that
evidence. To the extent Husband relies on Wife’s attorney’s summary of his
deposition testimony, that is not evidence.
[18] Third, Husband does not direct us to any evidence to show that the “Horchow
loveseats” awarded to Husband are the same as the “Leather Sofas” awarded to
Wife. In sum, Husband asks that we reweigh the evidence, which we cannot
do. Husband’s contentions on these items of personal property are without
merit.
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Real Property
[19] Husband contends that the dissolution court erred when it valued the parties’
real properties located at 1000 Oak Trace and 1220 Hillsdale. But Husband
ignores the evidence that those properties were worth $370,000 and $247,000,
respectively. In particular, Commissioner Charles Berger’s report to the court
dated July 29, 2019, states that 1000 Oak Trace was appraised at $370,000.
And Berger testified to the dissolution court that the parties had received an
offer to purchase 1220 Hillsdale for $247,000. Again, Husband asks that we
reweigh the evidence, which we cannot do.
Bank Accounts
[20] Husband contends that the dissolution court abused its discretion when it
included several bank accounts in the marital estate that should have been
excluded as the parties’ separate property under the prenuptial agreement.
However, Wife’s Exhibit 1, which the trial court admitted without objection
from Husband, largely supports the dissolution court’s distribution and
valuation of the parties’ joint bank accounts. As Wife points out, the court’s
order is supported by the evidence but for a few scrivener’s errors: the account
identified as Regions Bank account 3687 and valued at $200.01 is actually a
First Federal Savings Bank account with that same account number and value;
and the account identified as First Federal Savings Bank account 9459 and
valued at $19,803.36 is actually a Regions Bank account with the same account
number and value.
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[21] Wife also points out that the dissolution court “mistakenly referred to Regions
Account #0234 as Account #2644.” Appellee’s Br. at 22. Wife presented
evidence that Regions Bank account number 0234 had a value of $3,236.94 and
belonged to Husband and his daughter. In the final decree, the dissolution
court identified Regions Bank account number 2644 as a joint account worth
$3,236.94. Wife avers that, while Regions Bank account number 2644 was her
individual account and, thus, non-marital property, Regions Bank account
number 0234 “is a joint account and must be viewed as marital.” Id. But the
undisputed evidence presented to the dissolution court shows that Regions
Bank account number 0234 was not a joint account. Accordingly, Husband is
correct that the dissolution court erred when it included Regions Bank account
number 0234 in the marital estate. We remand to the dissolution court to
correct the errors listed above, which will require a recalculation of the marital
estate to exclude from the marital pot and the distributions to Husband the
$3,236.94 in the Regions Bank account number 0234 and a recalculation of the
fifty-fifty division of the estate between the parties.
Oil Leases
[22] Husband contends that the dissolution court abused its discretion when it
identified as marital assets certain oil leases. In particular, Husband maintains
that the oil leases identified in paragraph 21 of the decree as marital assets and
awarded to Husband should have been excluded from the marital estate under
the prenuptial agreement. We cannot agree.
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[23] First, with respect to the Morris Lease, which the court valued at $0 and
awarded to Husband, Husband directs us to evidence that he had gifted the
Morris Lease to Wife in 2014. And Husband asserts that, under the prenuptial
agreement, gifts should be treated as nonmarital property. However, as
Husband points out, in Nelson I, he asked this Court to interpret Section 3 of the
prenuptial agreement regarding inter-spousal gifts. We observed that
Section 3 of the Agreement . . . states that “any property . . .
which is given to the spouse by retitling in the other spouse’s
name or in the joint name of the parties . . . during the period of
their marriage” is marital property. Appellant’s App. at 56.
Accordingly, we find that, under the express terms of the
Agreement, gifts may be made from one spouse to the other
during marriage, and such gifts may be, but are not necessarily, the
separate property of the recipient spouse.
Nelson I, 2017 WL 765900, at *8 (emphasis added). We cannot say that the
dissolution court abused its discretion when it found that the Morris Lease was
a marital asset. Further, to the extent Husband contends that the court abused
its discretion when it awarded the Morris Lease to Husband rather than to
Wife, Husband does not support that contention with cogent argument.
[24] Second, Husband contends that the dissolution court abused its discretion when
it identified the Wagner Consolidated Lease as a marital asset because in 2013
it “was transferred by a Quit Claim Deed . . . to the Nelson Family Trust,” of
which Husband’s mother was the beneficiary. Appellant’s Br. at 33. However,
Husband ignores Wife’s expert’s testimony that the quit claim deed only
transferred some or all of the mineral interests in the Wagner Consolidated
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Lease but did not transfer ownership of the lease itself. And Wife’s expert
examined production records showing income to Husband from the Wagner
Consolidated Lease throughout the marriage, past the date of the quit claim
mineral deed.
[25] Finally, with respect to the other oil leases identified in paragraph 21 of the
decree as marital assets, Husband does not direct us to any argument to the
dissolution court or evidence in support thereof that those oil leases were not
marital assets.2 Husband cannot now complain. See, e.g., Zavodnik v. Harper, 17
N.E.3d 259, 264 (Ind. 2014) (holding party waived claim for failing “to show
any effort to present his request to the trial court in the first instance as the
Appellate Rules require.”) Further, Wife’s expert identified the oil leases as
marital assets and presented evidence of their respective values. Neither
Schedule A of the parties’ prenuptial agreement, which lists several oil leases to
be excluded from the marital estate, nor Husband’s subsequent discovery
responses indicate that any of the oil leases identified in paragraph 21 as marital
assets were, in fact, non-marital assets. Indeed, in his offer of proof when the
dissolution court excluded White’s testimony at the conclusion of the hearing,
Husband stated that White would have presented evidence that conflicted with
Wife’s expert’s valuations of the oil leases, but he did not dispute that the listed
2
Husband cites to Wife’s Exhibit 8, which includes “payment histories” relevant to the listed oil leases.
Husband asserts “that the payments to Husband clearly predated the parties’ marriage” in 2012. Appellant’s
Br. at 31. But Husband did not argue to the dissolution court that the payment histories prove that the oil
leases identified in paragraph 21 of the decree are non-marital assets, and, in any event, Husband does not
explain on appeal how the payment histories are definitive proof on this issue.
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oil leases were marital property. For all of these reasons, Husband has failed to
show that the dissolution court erred when it identified these oil leases as
marital assets.
Issue Three: Setoff
[26] Finally, Husband contends that the dissolution court abused its discretion when
it denied him a setoff against Wife’s share of the marital estate. Husband
maintains that, pursuant to the parties’ prenuptial agreement, he is entitled to a
setoff for paying off the mortgage on the home owned by Wife when they got
married, as well as various expenses he paid on Wife’s behalf during the
pendency of the dissolution. However, while Husband submitted his Exhibit O
to the dissolution court, which his attorney described as “a summary exhibit of
items that [he] is requesting setoff for,” Husband does not direct us to any
argument to the dissolution court in support of the requested setoff. Tr. Vol. 4
at 73-74.
[27] Without any indication that Husband argued to the dissolution court the
reasons why he is entitled to the setoff as claimed in his Exhibit O, we cannot
say that the court abused its discretion when it denied Husband a setoff. See,
e.g., Zavodnik, 17 N.E.3d at 264. As Husband points out, both the dissolution
court and this Court in a prior appeal acknowledged Husband’s right to “argue
for a setoff” at the final hearing. Appellant’s Br. at 39 (citing Nelson III, 2018
WL 4403437, at *3) (emphasis added). But without any indication that
Husband made such an argument to the dissolution court, Husband has not
shown an abuse of discretion.
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Cross-Appeal
[28] In her cross-appeal, Wife requests that we order Husband to pay “the entirety of
Wife’s attorneys’ fees.” Appellee’s Br. at 46. In support, Wife cites the
following provision in the parties’ prenuptial agreement: “Attorney Fees.
Should either party retain counsel to enforce or prevent the breach of any
provision of this Agreement, that party shall be entitled to reasonable attorney
fees and costs for services rendered if such party prevails.” Appellant’s App.
Vol. 3 at 17. Wife maintains that Husband’s dilatory tactics throughout these
proceedings caused her to incur attorney’s fees that would have been less had
“Husband complied with the parties’ Prenuptial Agreement and court orders[.]”
Appellee’s Br. at 45. Wife asserts that, because she has only “sought the
enforcement and application of the Prenuptial Agreement” during these
proceedings, and because the court ultimately enforced the prenuptial
agreement when it divided the marital estate equally, she is the “prevailing
party” in this litigation and entitled to attorney’s fees. Id. at 46.
[29] However, Wife does not cite any case law in support of her broad assertion that
she is the “prevailing party” under the terms of the prenuptial agreement to
support an award of all of her attorney’s fees. And under Illinois law, “[w]hen a
dispute involves multiple claims, and both parties have won and lost on
different claims, it is appropriate to find that neither party is the prevailing party
and that an award of attorney fees to either would be inappropriate.” Linta v.
Linta (In re Linta), 18 N.E.3d 566, 571 (Ill. App. Ct. 2014). Here, Wife ignores
the fact that Husband prevailed or partially prevailed in three of his prior
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appeals. Thus, Wife’s contention that she is entitled to have Husband pay all of
her attorney’s fees, without even an attempt to break out those sums expended
in the course of the appeals where Husband prevailed is not well taken. Wife
has not shown that she is entitled to “the entirety” of her attorney’s fees over
the course of this litigation. Appellee’s Br. at 46. Moreover, Wife makes no
contention that the dissolution court abused its discretion when it ordered that,
with a few exceptions delineated in the decree, “each respective party shall be
solely responsible for his or her own attorney’s fees.” Appellant’s App. Vol. 3
at 9.
Conclusion
[30] Husband has not satisfied his burden on appeal to show that the dissolution
court abused its discretion when it excluded his expert witness testimony. And,
other than one bank account erroneously included in the marital estate,
Husband has not shown that the dissolution court abused its discretion when it
divided the marital estate. Husband has waived his contention that the
dissolution court abused its discretion when it denied his request for a setoff
against Wife’s share of the marital estate.
[31] As Wife points out, the dissolution decree contains some scrivener’s errors and
erroneously includes a small non-marital bank account. We remand and
instruct the court to correct the subheadings in paragraph 15 of the dissolution
decree to read as follows:
a. First Federal Bank Acct. No. ending 9197 $26,800.18
b. First Federal Bank Acct. No. ending 3687 $200.00
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c. Regions Bank Acct. No. ending 9459 $19,803.36
d. Regions Bank Acct. No. ending 2792 $83.93
e. TOTAL BANK ACCOUNTS $46,887.47
Accordingly, the dissolution court shall recalculate the marital estate to exclude
the $3,236.94 in Regions Bank account number 0234, which was erroneously
included as Regions Bank account number 2644 and is not a marital asset. And
the court shall redistribute the marital assets to achieve the desired equal
division.
[32] Affirmed in part, reversed in part, and remanded with instructions.
Kirsch, J., and Brown, J., concur.
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