In re Marriage of Abu-Hashim , 2014 IL App (1st) 122997 ( 2014 )

Illinois Official Reports
Appellate Court
In re Marriage of Abu-Hashim, 2014 IL App (1st) 122997Appellate Court In re MARRIAGE OF KIMBERLY ABU-HASHIM, Petitioner-
Caption Appellee, and RAJAIE ABU-HASHIM, Respondent-Appellant.
District & No. First District, Third Division
Docket No. 1-12-2997
Filed June 25, 2014
Held On appeal from the dissolution of the parties’ marriage, the appellate
(Note: This syllabus court held that the distribution of marital debt was not an abuse of
constitutes no part of the discretion where the amount owed on the home equity line of credit
opinion of the court but was deducted from the net equity amount awarded to respondent, the
has been prepared by the even division of the 401(k) plan was not an abuse of discretion after
Reporter of Decisions each party withdrew $50,000 for attorney fees, the trial court did not
for the convenience of abuse its discretion in valuing the parties’ daycare center pursuant to
the reader.) its own method in the absence of meaningful valuation evidence, and
with regard to child support, there was no basis for a deviation from
the statutory guidelines, respondent was properly ordered to pay
retroactive support for the time after the dissolution petition was filed
but before respondent started paying child support, and requiring
respondent to include his income from his commercial rental property
without a deduction for losses he had on his noncommercial rental
property for purposes of establishing his monthly income was not an
abuse of discretion, especially in the absence of such losses.
Decision Under Appeal from the Circuit Court of Cook County, No. 08-D-3121; the
Review Hon. Dominique C. Ross, Judge, presiding.
Judgment Affirmed.
Counsel on Jan R. Kowalski, of Chicago, for appellant.
Appeal
Gail M. O’Connor, of O’Connor Family Law, PC, of Chicago, for
appellee.
Panel JUSTICE HYMAN delivered the judgment of the court, with opinion.
Presiding Justice Pucinski and Justice Mason concurred in the
judgment and opinion.
OPINION
¶1 Appellate courts typically give great deference on the factual issues to the trial court
hearing the dissolution of marriage proceeding. One reason is the trial court’s familiarity with
the dueling spouses, and if represented, their counsel, and its exposure to and grasp of the
evidence in the context of the entire proceeding. Rajaie Abu-Hashim, who appeals certain
provisions in a judgment for dissolution of his marriage from petitioner, Kimberly
Abu-Hashim, raises issues that all relate to factual disputes resolved by the trial court. Rajaie
has not carried his burden of showing an abuse of discretion, and, accordingly, we affirm the
trial court’s decisions.
¶2 Rajaie asserts that the trial court abused its discretion by: (1) allocating to him 100% of the
$299,724.56 owed on a home equity line of credit on the parties’ marital home; (2) failing to
account for a prejudgment distribution to Kimberly of $50,000 from Rajaie’s 401(k) account in
equitably allocating the marital property; (3) valuing the parties’ daycare business at $235,000,
in the absence of evidence to support that valuation; and (4) failing to deviate from the
statutory child support guidelines, ordering him to pay retroactive child support, and ordering
him to pay child support on income from a profitable commercial rental property without
offsetting the losses on other rental properties.
¶3 BACKGROUND
¶4 On April 1, 2008, Kimberly filed a petition for dissolution of marriage. The parties had
four children. At the time the petition was filed, one of the children was emancipated and three
were minors. In the interim, two of those children have been emancipated and one is currently
14 years old. On January 4, 2011, the trial court entered a custody judgment granting sole
custody of the then three minor children to Kimberly and visitation rights to Rajaie. Later, one
of the minor children went to live with her father, and the trial court entered an agreed order
modifying the custody judgment to transfer sole custody of that child to Rajaie, reserving
parenting time to Kimberly.
¶5 The trial court bifurcated its judgment. On April 27, 2011, the court entered an order
dissolving the parties’ marriage and reserving all remaining matters, including property and
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debt division, child support, and reimbursement. Trial took 10 days and resulted in entry of a
supplemental judgment on January 17, 2012. During their marriage, the parties acquired nine
parcels of real estate, including seven apartment buildings, one commercial building, and their
marital home. The parties also owned a business together, Alphabet Acres Daycare Center. In
its supplemental judgment, the court allocated the real estate, the business, and the debt, and
made determinations regarding child support, dissipation, and attorney fees.
¶6 Only those findings relevant to the issues raised on appeal will be addressed.
¶7 The trial court initially ruled the parties’ real estate and business interests would be divided
65/35, in Kimberly’s favor. Both parties waived maintenance. The court ordered Rajaie to pay
Kimberly 32% of his net income, including bonuses, under the guidelines set forth in section
505(a)(1) of the Illinois Marriage and Dissolution of Marriage Act (the Act) (750 ILCS
5/505(a)(1) (West 2012)). After one of the children moved in with Rajaie, the court ordered
Kimberly to pay $705 per month in child support. Both parties filed claims alleging the
dissipation of assets by the other party. The trial court denied those claims, concluding that
“both parties used available funds and income for the purpose of maintaining their respective
households, managing their many parcels of real estate and the care of the children.”
¶8 As to the parties’ property and business interests, the trial court awarded the parties’
marital home to Rajaie. The court set the value of the house at $1,399,000, and noted it was
encumbered by a mortgage with an unpaid balance of about $781,060.06 and a home equity
line of credit with an outstanding balance of $299,724.56, leaving a net equity of $318,215.38.
The parties stipulated that after the dissolution proceedings commenced, Kimberly drew
$131,500 against the home equity line of credit, Rajaie drew $46,633.31, and the parties jointly
drew $99,582.02. The court ordered Rajaie to pay Kimberly $209,107.69 for her 65% share of
the equity on the home and rejected Rajaie’s argument that Kimberly should be responsible for
repaying the $131,500 she individually drew from the line of credit and half of the $99,582.02,
the parties jointly drew.
¶9 Rajaie has a vested interest in a 401(k) plan through his employer. During the litigation,
both parties were each permitted to take $50,000 from the account to pay for their respective
attorney fees. In its supplemental judgment, the court ordered that the remaining balance of the
401(k) account be divided equally between them.
¶ 10 The parties co-owned a daycare center. The court awarded the business to Kimberly. The
trial court found the testimony of the parties and the documents submitted into evidence
provided little information as to the fair market value of the business and thus used an alternate
means of assessing its value. The court noted the parties agreed Kimberly would take an annual
draw of $85,000 from the income generated by the daycare center and multiplied that by three,
the minimum number of years the court determined the business could remain viable based on
the economy and the financial history of the business. The court then subtracted $20,000 in
past-due rent and damages from flooding, for a total value of $235,000.
¶ 11 The parties owned seven residential rental properties in Illinois and Wisconsin. The court
awarded four of those properties to Kimberly and three to Rajaie. The parties also co-owned a
commercial rental property, referred to as 1410 S. Barrington. The court awarded Rajaie 1410
S. Barrington and ordered him to pay Kimberly $148,000 for her interest.
¶ 12 The parties filed separate motions to reconsider the supplemental judgment. The trial court
held a hearing on the motions on May 31, 2012, and though an order was drafted, it was not
entered at that time. On September 18, 2012, the trial court held another hearing in response to
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Rajaie’s motion for clarification and to hear other pending motions. After the hearing, the trial
court entered an order disposing of the cross-motions to reconsider.
¶ 13 The trial court made several changes to the original supplemental judgment, including
adjusting the real estate division from a 65/35 split to a 50/50 split. Relevant to this appeal is
the provision of the order requiring Rajaie to pay Kimberly an additional $20,748.53 in child
support for income he earned from 1410 S. Barrington from January 2011 until December
2011. Rajaie filed a timely notice of appeal from both the January 17, 2012 supplemental
judgment and the September 18, 2012 order resolving the parties’ cross-motions for summary
judgment.
¶ 14 ANALYSIS
¶ 15 Kimberly raises two threshold issues–whether Rajaie has provided a sufficient record to
permit us to decide the merits of the appeal and whether Rajaie properly preserved for appeal
two of his four claimed errors. Citing Foutch v. O’Bryant, 99 Ill. 2d 389 (1984), Kimberly
asserts that although Rajaie provided a transcript from the September 18, 2012 hearing
addressing the cross-motions to reconsider, the absence of a transcript or bystanders’ report
from earlier hearings or the 10-day trial means we must presume the trial court’s ruling was
correct. We disagree. In Foutch, the supreme court addressed whether there is a “sufficiently
complete record of the proceedings at trial to support a claim of error.” Foutch, 99 Ill. 2d at
391-92. The sufficiency of the record to address a claim of error turns on the question
presented on appeal. In Foutch, the question was whether the trial court abused its discretion in
denying the motion to vacate an ex parte judgment. Id. Absent a transcript of the hearing where
evidence was heard and absent specific grounds for the denial, review for an abuse of
discretion of the trial court’s ruling was foreclosed. Id. at 392. Here, the record contains the
trial court’s January 17, 2012 written supplemental judgment for dissolution of marriage and
its September 18, 2012, order addressing the parties’ cross-motions to reconsider that
judgment. The trial court’s supplemental judgment setting forth its reasoning in detail and the
September 18, 2012, order when read in conjunction with the transcript from the proceedings
on that date, provide a sufficiently complete record for us to address its merits. But because the
appellant is required to provide the reviewing court with a record sufficient to support his or
her claims of error, any doubts and deficiencies arising from an insufficient record will be
construed against Rajaie. Foutch, 99 Ill. 2d at 391.
¶ 16 Kimberly next contends two issues raised by Rajaie in his brief were not raised with the
trial court, in the motion to reconsider, or in the docketing statement and thus are waived.
Specifically, Kimberly contends that although the motion to reconsider raised the issues of the
distribution of the home equity line of credit debt and the child support award issue, it did not
raise the issue of the $50,000 distribution from Rajaie’s 401(k) account to Kimberly or the trial
court’s valuation of the Alphabet Acres business, and thus, those issues have not been
preserved for appeal. Again, we disagree.
¶ 17 “Unlike the specificity required in the notice of appeal, the docketing statement only
requires a statement of the general issues proposed to be raised by the party, and the failure to
include an issue in the docketing statement ‘will not result in the waiver of the issue on appeal.’
Ill. S. Ct. R. 312(a) (eff. Feb. 10, 2006). The docketing statement provides the appellate court
with general information about a case docketed in the court and it is not intended to replace the
notice of appeal.” General Motors Corp. v. Pappas, 242 Ill. 2d 163, 177-78 (2011). Thus,
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Rajaie’s failure to include those two issues in the docketing statement is not grounds for
finding he has waived those issues.
¶ 18 Illinois Supreme Court Rule 303(b) (eff. June 4, 2008) requires a notice of appeal to
“specify the judgment or part thereof or other orders appealed from and the relief sought from
the reviewing court.” A notice of appeal vests this court with the power to decide the matters
that are properly presented. Heller Financial, Inc. v. Johns-Byrne Co., 264 Ill. App. 3d 681,
688 (1994). The notice of appeal serves the alternate purpose of informing the party that
prevailed in the circuit court of the portion of the judgment that is, potentially, to be reviewed.
Schmidt v. Joseph, 315 Ill. App. 3d 77, 80 (2000). “To that end, notice is to be liberally
construed when determining what matters were properly raised in the notice, and a defect will
be deemed one of form, so long as that construction does not prejudice the appellee.” Id.¶ 19 Kimberly is correct in asserting Rajaie did not raise the 401(k) issue or the valuation of
Alphabet Acres in his motion for reconsideration. But in his notice of appeal, Rajaie states he is
appealing from both the September 18, 2012 order and the January 17, 2012 supplemental
judgment, which did deal with the allocation of the 401(k) account and the valuation of
Alphabet Acres. Thus, we will address those issues, as well as the other issues raised on appeal.
¶ 20 Distribution of Debt on Home Equity Line of Credit
¶ 21 Rajaie contends the trial court erred in failing to require Kimberly to pay her share of the
home equity line of credit she withdrew after the dissolution of marriage proceedings were
filed and before the supplemental judgment was entered. In awarding Rajaie the marital home
and determining the value of that asset, the trial court deducted the full amount of the home
equity line of credit drawn by both parties, $299,724.56, along with the existing mortgage, in
finding the property resulted in a net equity of $318,215.38. Rajaie contends the trial court
should instead have ordered Kimberly to repay him the amount she individually drew from the
home equity line of credit, which the parties stipulated was $131,000, and half of the amount
the parties’ jointly drew, which was stipulated to be $99,582.02. Kimberly asserts the trial
court rejected Rajaie’s earlier contention that her drawing from the line of credit constituted a
dissipation of assets and that the trial court properly found the home and its liabilities were part
of the marital estate.
¶ 22 Under the Act, after classifying property as marital or nonmarital, the trial court gives to
each spouse his or her nonmarital property, and the marital property is divided into “just
proportions.” 750 ILCS 5/503(d) (West 2012). A trial court has broad discretion in the division
of marital assets, and we will reverse its determinations only if it is clear that the trial court has
abused that discretion. In re Marriage of Sanfratello, 393 Ill. App. 3d 641, 648 (2009). Illinois
law vests the trial court with considerable discretion to exercise its judgment in resolving
matrimonial financial matters because an equitable division depends on more than merely an
analysis of dollars and cents. It also depends, for example, on the court’s observations of the
parties as they testified and responded at trial and the economic circumstances of each party.
“A trial court abuses its discretion only where its ruling is arbitrary, fanciful, or unreasonable,
or where no reasonable person would take the view adopted by the trial court.” (Internal
quotation marks omitted.) In re Adoption of S.G., 401 Ill. App. 3d 775, 784 (2010).
¶ 23 A trial court may require that debts incurred following separation be paid by the party
incurring them. In re Marriage of Stufflebeam, 283 Ill. App. 3d 923, 929 (1996). But those
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debts may be considered marital, and it is within the trial court’s discretion to order that the
other party or both parties be held responsible for paying them. Id.¶ 24 In determining the value of one of the marital assets–the parties’ home–the court found that
both the home and its liabilities were part of the marital estate. The court took the home equity
line of credit into account by deducting the amount owed from the net equity amount awarded
to Rajaie. Although Rajaie correctly asserts Kimberly was responsible for more than half of the
amount owed, this distribution of marital debt does not equate to an abuse of discretion.
¶ 25 401(k) Distribution
¶ 26 Rajaie next contends that in dividing up the martial property the trial court erred by failing
to offset Kimberly’s earlier distribution of $50,000 from his 401(k) account. In the
supplemental judgment, the trial court noted that each party took a $50,000 advance on the
401(k) account for attorney fees. The court then divided the remainder of the 401(k) evenly
between the parties. Because both parties took a $50,000 advance, the distribution was not an
abuse of discretion.
¶ 27 Value of Daycare Business
¶ 28 Rajaie asserts the trial court erred in placing a value on the daycare business because the
method it used–multiplying Kimberly’s annual salary of $85,000 by three (the number of years
the business was deemed reasonably viable) and subtracting $20,000 for rent and
damages–was not an accepted method of valuing a business. Thus, Rajaie asks us to remand
for further hearings on the value of the daycare business.
¶ 29 To place a specific value on an item of marital property, there must be competent evidence
of its value presented. In re Marriage of Miller, 112 Ill. App. 3d 203, 208 (1983). Generally,
the valuation of assets in an action for dissolution of marriage is a question of fact, and the trial
court’s determination will not be disturbed absent an abuse of discretion. In re Marriage of
Schneider, 214 Ill. 2d 152, 162 (2005). But where a party does not offer evidence of an asset’s
value, the party cannot complain as to the disposition of that asset by the court. In re Marriage
of Tyrrell, 132 Ill. App. 3d 348, 350 (1985). Parties should not be allowed to benefit on review
from their failure to introduce evidence at trial. Id.¶ 30 A party must present sufficient evidence of the value of the property, and where a party has
had a sufficient opportunity to introduce evidence but offers none, that party should not benefit
on review from its omission. Otherwise, remanding “would only protract the litigation and
clog the trial courts with issues which should have been disposed of at the initial hearing.”
In re Marriage of Smith, 114 Ill. App. 3d 47, 54-55 (1983).
¶ 31 Rajaie acknowledges that neither he nor Kimberly presented evidence at trial regarding the
value of Alphabet Acres. Rajaie contends, however, that stipulations by the parties showing
the business had deposits of $336,709.97 in 2008 and $440,600.45 show that the business was
worth more than $235,000, and should have been a factor the trial court used in determining
the value of the business. Although the parties stipulated as to deposits, this alone is not
sufficient to determine the value of the business as evidence of other factors, including good
will, fixed assets, and business-related expenses would be needed to make a proper valuation.
Because neither party presented meaningful evidence of the business’s value, we cannot say
that the trial court’s method of valuation was an abuse of its discretion.
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¶ 32 Child Support
¶ 33 Lastly, Rajaie raises three issues regarding the trial court’s orders addressing child support:
(i) the parties’ similar financial resources warranted a deviation from the statutory child
support guidelines set forth in section 505(a)(1) of the Act (750 ILCS 5/505(a)(1) (West
2012)); (ii) the trial court abused its discretion in ordering him to pay retroactive child support
to Kimberly for the period of March 2009 through September 2012; and (iii) the provision in
the trial court’s September 18, 2012 order requiring him to pay child support on his income
from the 1410 S. Barrington commercial rental property without offsetting the losses he takes
from other rental property was an abuse of discretion.
¶ 34 Under the Act, child support is calculated based on the noncustodial parent’s net income.
750 ILCS 5/505(a)(1) (West 2012). “Net income” is defined as the total of all income from all
sources, minus certain statutory deductions. 750 ILCS 5/505(a)(3) (West 2012). For three
children the guidelines specify a minimum child support payment of 32% of the supporting
parent’s net income. 750 ILCS 5/505(a)(1) (West 2012). Section 505(a)(2) of the Act provides
that a court must apply the statutory guidelines “unless the court finds that a deviation from the
guidelines is appropriate after considering the best interest of the child in light of the evidence,
including, but not limited to,” the financial resources and needs of the child; the financial
resources and needs of the custodial parent; the standard of living the child would have enjoyed
had the marriage not been dissolved; the physical, mental, and emotional needs of the child; the
educational needs of the child; and the financial resources and needs of the noncustodial
parent. 750 ILCS 5/505(a)(2) (West 2012).
¶ 35 “Child support is an obligation the parents owe for the benefit of the child ***. Even in
cases involving joint custody, when a primary physical custodian has been designated, the trial
court has an obligation to award child support or explain its downward deviation from the
statutory guidelines.” In re Marriage of Deem, 328 Ill. App. 3d 453, 458 (2002). The statutory
guidelines create a rebuttable presumption that child support in the guideline amount is
appropriate. Parks v. Romans, 187 Ill. App. 3d 445, 448 (1989). The proponent of a deviation
bears the burden of producing evidence that compelling reasons exist to justify the deviation.
Roper v. Johns, 345 Ill. App. 3d 1127, 1130 (2004).
¶ 36 The trial court ordered Rajaie to pay the guideline amount of 32% of his net monthly
income of $5,219.68 that is, $1,670.30 per month. Rajaie’s primary contention for asserting
grounds for a deviation from the statutory guidelines is that he and Kimberly have comparable
annual salaries and that while the case was pending, Kimberly used funds from Alphabet Acres
and the home equity line of credit. He asserts that In re Marriage of Lee, 246 Ill. App. 3d 628(1993), held that “[w]here the individual incomes of both parents are more than sufficient to
provide for the reasonable needs for the parties’ children, taking into account the life-style the
children would have absent the dissolution, the court is justified in setting a figure below the
guideline amount.” Id. at 643. But that case involved a high-income noncustodial parent,
earning in excess of $450,000, and the court determined that the child’s needs were adequately
met by a monthly amount below the statutory guidelines and noted child support payments are
not intended to be windfalls. Here, the parties were not high-income individuals, and the
similar yearly income is not a compelling reason to deviate from the statutory guidelines.
Further, there is no evidence Rajaie requested that the trial court deviate from the guidelines in
setting support. A trial court does not abuse its discretion by failing to deviate sua sponte from
the presumptively appropriate guidelines. Roper, 345 Ill. App. 3d at 1130.
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¶ 37 We also find no error in the trial court’s order requiring Rajaie to pay $30,386.03 for child
support arrears retroactive to March 2009. It is within the trial court’s discretion to award or
not to award child support on a retroactive basis. In re Marriage of Sawicki, 346 Ill. App. 3d
1107, 1119 (2004). Kimberly requested custody of the parties’ minor children and payment of
child support in her petition for dissolution filed on April 1, 2009. The trial court awarded
custody of the three minor children to Kimberly and in April 2011, entered an order dissolving
the marriage and reserving all other issues in the case, including child support. After those
issues were resolved, it was within the trial court’s discretion to order Rajaie to pay child
support retroactively for the 18 months before he started to pay in 2010.
¶ 38 Later, in its September 18 order addressing the parties’ cross-motions for reconsideration,
the court ordered Rajaie to also pay child support on the monthly income he earned from the
1410 S. Barrington property. With regard to 1410 S. Barrington, Rajaie acknowledges he
derived monthly income from that rental commercial property but contends he should be
permitted to deduct losses from some of his other noncommercial rental properties. As noted,
“net income” is defined as the total of all income from all sources, minus certain statutory
deductions. 750 ILCS 5/505(a)(3) (West 2012). Losses from rental real estate are not included
as one of the statutory deductions. See In re Marriage of Pylawka, 277 Ill. App. 3d 728, 732
(1996) (trial court correctly refused to deduct from obligor’s net income any passive activity
investment loss arising from his ownership of apartment building). Further, in his brief, Rajaie
fails to cite to any pages of the record that show losses. Because there is no basis for deducting
losses Rajaie may have incurred in his ownership of other rental properties and no evidence of
losses, the trial court’s order requiring him to pay child support on that income was not an
abuse of discretion.
¶ 39 We affirm the circuit court.
¶ 40 Affirmed.
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