In re Marriage of Gabriel , 2020 IL App (1st) 182710 ( 2020 )

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Appellate Court Date: 2020.12.07
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In re Marriage of Gabriel, 2020 IL App (1st) 182710Appellate Court In re MARRIAGE OF MICHELLE GABRIEL, Petitioner-Appellee,
Caption and HASSAMO SHAMOUN, Respondent-Appellant.
District & No. First District, Fourth Division
No. 1-18-2710
Filed March 31, 2020
Decision Under Appeal from the Circuit Court of Cook County, No. 17-D2-30433; the
Review Hon. Jeanne M. Reynolds, Judge, presiding.
Judgment Affirmed in part; reversed in part; remanded with directions.
Counsel on Alexander Michael, of Michael D. Ettinger and Associates, of Palos
Appeal Heights, for appellant.
Marvin J. Leavitt, David C. Adams, and Laura M. Presto, of Grund &
Leavitt, P.C., of Highland Park, for appellee.
Panel JUSTICE LAMPKIN delivered the judgment of the court, with
opinion.
Presiding Justice Gordon and Justice Reyes concurred in the judgment
and opinion.
OPINION
¶1 In this appeal from a judgment of dissolution of marriage, respondent Hassamo (Sam)
Shamoun challenges the trial court’s awards of maintenance, child support, and attorney fees
to petitioner Michelle Gabriel, as well as the court’s division of the marital estate. For the
following reasons, we affirm the trial court’s awards of maintenance and attorney fees, but we
reverse and remand with respect to the child support award because the court miscalculated
Sam’s guideline support obligation. We conclude that we lack jurisdiction to review the trial
court’s order dividing the marital estate because Sam’s notice of appeal did not identify that
part of the court’s judgment. 1
¶2 I. BACKGROUND
¶3 A. Petition for Dissolution of Marriage and Order of Protection
¶4 Sam and Michelle were married in August 2008 and have two minor children. In October
2017, Michelle filed a petition for dissolution of marriage, seeking maintenance, child support,
and attorney fees, as well as an equitable division of the parties’ marital estate. She also asked
the court to grant her significant decision-making responsibilities for the children.
¶5 In November 2017, at Michelle’s request, the trial court entered a two-year order of
protection prohibiting Sam from harassing, stalking, or physically abusing Michelle; granting
Michelle sole possession of the parties’ marital residence; and prohibiting Sam from entering
the residence or Michelle’s place of employment.
¶6 B. Temporary Support Order and Attorney Fees for Noncompliance
¶7 In March 2018, the trial court granted Michelle’s request for temporary maintenance and
child support, ordering Sam to pay $1500 per month in unallocated support. When Sam failed
to comply, Michelle filed a petition for a rule to show cause to hold him in contempt and
requested attorney fees for her efforts to enforce the order. In June 2018, the court ordered Sam
to pay Michelle $3083.33 in overdue support and $1600 in attorney fees.
¶8 In August 2018, in her posttrial petition for attorney fees, Michelle alleged that Sam had
not complied with the court’s June 2018 order. The court allowed Sam time to respond and set
the matter for a hearing, but Sam failed to file a response or appear for the hearing. The court
found that Sam had not complied with the June 2018 order and directed him to pay the amount
due by October 2. When Sam again failed to comply, the court extended the deadline to
October 8. On that date, Sam paid the past-due support and related attorney fees.
¶9 Michelle then filed a petition for additional attorney fees arising from her attempts to
enforce the June 2018 order. On November 19, 2018, the court ordered Sam to pay Michelle
an additional $1917.50 in attorney fees within seven days. When Sam failed to comply with
that order, the court increased the amount of attorney fees by $225, issued and stayed a body
attachment, and indicated that the stay would be lifted if Sam failed to pay the full amount by
December 4, 2018. The record does not reveal whether Sam complied with this order.
In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this
1
appeal has been resolved without oral argument upon the entry of a separate written order.
-2-
¶ 10 C. Discovery, Trial, and Posttrial Petition for Attorney Fees
¶ 11 In February 2018, Michelle served a notice on Sam to produce discovery documents, but
neither the notice nor any description of the documents requested is included in the record on
appeal. Sometime before trial, Michelle filed a motion in limine related to Sam’s failure to
comply with her discovery requests. The motion is likewise missing from the record on appeal.
In addition, there is no transcript of any hearing on the motion in the record. The trial court
granted the motion based on Sam’s “deficient production of documents” and failure “to provide
updated discovery.” As a result, the court barred Sam “from testifying as to new information
not timely disclosed or offering documents into evidence other than what had been previously
produced.”
¶ 12 The trial court held a two-day bench trial in August 2018, but there is no trial transcript in
the record on appeal. Following the trial, Michelle filed a petition for attorney fees. Sam did
not respond to the petition, and neither he nor his counsel appeared at the hearing on the
petition. The record contains no transcript of the hearing, which was held in Sam’s absence.
¶ 13 D. The Trial Court’s Judgment
¶ 14 The trial court entered judgment on November 28, 2018, dissolving the parties’ marriage
and resolving the ancillary issues of maintenance, child support, division of the marital estate,
attorney fees, and allocation of parenting time and parental decision-making responsibilities.
¶ 15 The court began by determining the parties’ respective incomes for maintenance and child
support purposes. The court found that Michelle’s gross annual income was $27,000. Sam’s
income, however, was “difficult to ascertain” because his testimony “was inconsistent,
contradicted by other evidence, and not credible.” As the court recounted, Sam testified that
he was employed as a Christian apologist and Bible teacher, but he “could not remember” his
income “for 2016, 2017, or 2018 year to date.” Although Sam’s 2016 W-2 form reported gross
income of $116,500, he testified (and Michelle and the court accepted) that his gross income
that year was only $100,000.
¶ 16 The income reported on Sam’s 2017 W-2 form “dropped to $50,081 without explanation.”
Sam claimed that his 2017 income was even lower than the amount reported on his W-2, but
he “could not credibly explain the discrepancy or inconsistencies [in] his statements.” In
addition, Sam conceded that he “regularly receives gifts and donations” not reported on his W-
2 forms, but he testified that he “does not consider [those sums] to be income.” Although “[n]o
records of the actual amount of this additional income” were presented at trial, the court was
able to identify an additional $15,078.24 of income that Sam received in 2017 based on
deposits made to one of his checking accounts, raising his 2017 gross income to at least
$65,159.24. However, as the court noted, Sam testified that gifts and donations were also
deposited to his Patreon accounts, 2 but he “provided no documents” for those accounts and
could not remember “what the exact amounts of deposits [to them] have been from year to
year.”
2
Patreon “is a membership platform *** that provides *** tools for creators to run a subscription
content service” and “allows creators and artists to earn a monthly income by providing exclusive
rewards and perks to their subscribers.” Patreon, Wikipedia, https://en.wikipedia.org/wiki/Patreon (last
visited July 20, 2020) [https://perma.cc/4D45-WLPG].
-3-
¶ 17 Because Sam’s income remained “difficult to ascertain with specificity” due to his lack of
credibility and the fact that he had “additional income available to him other than what [he]
disclosed,” the court deemed it appropriate to use the average of his identifiable income in
2016 and 2017 when determining his maintenance and child support obligations. Using this
method, the court found that Sam’s gross annual income for support purposes was $82,579.62,
although for unexplained reasons it used the slightly lower figure of $82,572 in the worksheets
it used to calculate its maintenance and child support awards.
¶ 18 After determining the parties’ respective incomes, the court concluded that Michelle was
entitled to maintenance based on “her historical earnings[,] her current income and potential
earning capacity especially in comparison to Sam’s[,] the standard of living by the parties
during the marriage[,] and her needs as established during the marriage.” Under the statutory
guidelines, the court calculated the amount of maintenance by subtracting 20% of Michelle’s
gross annual income from 30% of Sam’s gross annual income but capping the sum of the
resulting maintenance award and Michelle’s gross income at 40% of the parties’ combined
gross income. See 750 ILCS 5/504(b-1)(1)(A) (West Supp. 2017). Applying this formula, the
court awarded Michelle maintenance of $1402.42 per month for 43 months. See id. § 504(b-
1)(1)(B) (calculating duration of maintenance based on length of marriage). 3
¶ 19 The trial court then calculated Sam’s guideline child support obligation. That figure is
calculated by taking each party’s monthly net income; adding those numbers to arrive at the
parties’ combined monthly net income; determining the parties’ combined support obligation
based on a schedule established by the Illinois Department of Healthcare and Family Services,
which “reflects the percentage of combined net income that parents living in the same
household in this State ordinarily spend on their child[ren]” (id. § 505(a)(1)); and then
calculating each party’s share of the combined support obligation based on that party’s share
of their combined net income (see id. § 505(a)(1.5)).
¶ 20 The court calculated each party’s net income by subtracting the party’s federal and state
income taxes, Social Security and Medicare taxes, and self-employment taxes from each
party’s gross income. According to the court’s calculations, Sam’s monthly net income was
$5998, and Michelle’s monthly net income was $2470. The court then multiplied Sam’s share
of the parties’ combined net income (70.83%) by the parties’ combined support obligation
under the guidelines schedule ($1956) to arrive at Sam’s guideline child support obligation of
$1385 per month. The court concluded, however, that an “upward deviation” from the
guidelines was “appropriate” based on “the children’s needs and [the] history of this case,
Sam’s demonstrated history of non-compliance with support, *** Sam’s lack of overnights
and [Michelle’s] disproportionate exercise of parenting time, and [the] fact that Sam receives
additional income which he has not disclosed.” Based on those findings, the court ordered Sam
to pay $1500 per month in child support.
¶ 21 The court then divided the parties’ marital estate. The court found that the estate consisted
of (1) the marital residence, valued at $142,000, with a balance of $80,000 on the mortgage;
(2) a 2017 Chevy Tahoe, valued at $27,000, with the same amount remaining on the car loan;
Later in the judgment order, the court stated that the amount of maintenance was $1421 per month.
3
On remand, the trial court should modify the judgment to correct the discrepancy.
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(3) a 2014 Ford Escape, of undetermined value; 4 (4) various bank accounts, of unnoted value;
(5) credit card debt of $13,280; and (6) a debt to the Internal Revenue Service of approximately
$4000 related to Sam’s 2016 income taxes. The court allocated 60% of the equity in the marital
residence to Michelle and 40% to Sam. However, to provide Michelle with sole ownership of
the residence, the court transferred Sam’s share of the equity to her and correspondingly
reduced the duration of Sam’s maintenance obligation to 24.3 months. The court awarded the
Chevy Tahoe and its accompanying debt to Michelle and awarded the Ford Escape and any
debt owed on it to Sam. The court allocated responsibility for the credit card debt to Michelle
and the IRS debt to Sam. And the court awarded each party “any [and] all bank accounts,
financial accounts, [and] any [other] asset in his or her name, possession, and control.”
¶ 22 With respect to attorney fees, the court found that Michelle “lacks the ability to contribute
further to her attorney[ ] fees without undermining her financial stability and security, whereas
Sam has the ability to make a contribution to Michelle’s attorney[ ] fees ***, as well as pay
his own, without undermining his financial stability or security.” Moreover, the court found
that Sam had “needlessly increased the cost of [the] litigation” by failing to comply with
discovery orders, failing to make court-ordered support payments and pay the attorney fees
assessed against him for his noncompliance, and engaging in conduct that necessitated the
entry of an order of protection against him. The court found that the attorney fees incurred by
Michelle were reasonable and ordered Sam to contribute $15,000 toward those fees.
¶ 23 Finally, the court allocated the majority of parenting time and sole responsibility for
making significant parental decisions to Michelle, with parenting time on alternating weekends
allocated to Sam.
¶ 24 E. Notice of Appeal
¶ 25 On December 26, 2018, Sam filed a notice of appeal. Although Sam was represented by
counsel at trial and is represented by counsel on appeal, he filed his notice of appeal pro se,
using the standard form provided by the circuit court clerk’s office. Sam indicated on the notice
that he was appealing a judgment or order entered by Judge Reynolds, but he left the space for
the “[d]ate of the judgment/order being appealed” blank. In the space for describing the relief
sought on appeal, Sam wrote: “(1) Attorney fees for the petitioner, (2) Alimony, (3) Child
support is too high.”
¶ 26 II. ANALYSIS
¶ 27 On appeal, Sam challenges the trial court’s maintenance, child support, and attorney fee
awards, as well as the court’s disproportionate division of the parties’ marital residence. He
contends that the court erred in using the average of his 2016 and 2017 incomes for
maintenance and child support purposes and in granting Michelle’s motion in limine, which he
asserts prevented him from introducing evidence of his diminished 2018 income. He further
contends that the trial court erred in calculating his guideline child support obligation by failing
to account for the maintenance awarded to Michelle and that the court abused its discretion in
deviating upward from the guidelines. In addition, Sam contends that the court failed to make
4
The trial court noted that Sam “did not offer any testimony as to the value of” the Ford Escape and
was barred from testifying about any debt owed on the vehicle due to “his failure to disclose [that
information] in discovery.”
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sufficient findings in support of its decision to award a disproportionate share of the marital
residence to Michelle. Finally, Sam argues that the trial court’s award of attorney fees to
Michelle was excessive and improper in light of what he deems to be a lack of disparity in the
parties’ respective incomes.
¶ 28 Before turning to Sam’s contentions of error, we first address two threshold issues raised
by Michelle concerning the adequacy of Sam’s notice of appeal and the sufficiency of the
record on appeal.
¶ 29 A. Appellate Jurisdiction
¶ 30 Michelle argues that we lack appellate jurisdiction because Sam’s notice of appeal failed
to specify the judgment from which he was appealing or his requested relief. “The filing of a
notice of appeal is the jurisdictional step which initiates appellate review.” (Internal quotation
marks omitted.) People v. Smith, 228 Ill. 2d 95, 104 (2008). The notice must “specify the
judgment or part thereof *** appealed from and the relief sought from the reviewing court.”
Ill. S. Ct. R. 303(b)(2) (eff. July 1, 2017). “[A] notice of appeal confers jurisdiction on a court
of review to consider only the judgments or parts thereof specified in the notice of appeal.”
Smith, 228 Ill. 2d at 104. A notice of appeal should be construed liberally and considered as a
whole. Id. at 104-05.
¶ 31 Michelle argues that Sam’s notice of appeal does not accord us jurisdiction to review the
trial court’s judgment because it failed to adequately identify or describe the judgment. As
Michelle notes, Sam’s notice of appeal did not provide the date of the judgment being appealed.
But Sam did identify the trial court’s awards of attorney fees, maintenance (which he called
alimony), and child support as the subjects of his appeal, and each of those awards is contained
in the trial court’s final judgment of November 28, 2018. Considered as a whole and liberally
construed, Sam’s notice of appeal sufficiently identified the portions of the trial court’s final
judgment that addressed maintenance, child support, and attorney fees.
¶ 32 Michelle also argues that Sam’s notice of appeal was insufficient because it did not specify
the relief sought on appeal. But “the failure to include a prayer for relief in a notice of appeal
is an error of form not substance and, absent prejudice to the appellee, does not deprive the
appellate court of jurisdiction.” Maywood-Proviso State Bank v. Village of Lisle, 234 Ill. App.
3d 206, 215 (1992). Michelle has not alleged, much less shown, that she was prejudiced by
Sam’s failure to specify his requested relief in the notice of appeal.
¶ 33 We thus have jurisdiction to review the parts of the trial court’s final judgment that awarded
Michelle maintenance, child support, and attorney fees. We likewise have jurisdiction to
review the trial court’s order granting Michelle’s motion in limine, because “[a]n appeal from
a final judgment draws into issue all previous interlocutory orders that produced the final
judgment.” Knapp v. Bulun, 392 Ill. App. 3d 1018, 1023 (2009). However, we lack jurisdiction
to review the portion of the trial court’s judgment that divided the parties’ marital estate,
including the marital residence, because Sam’s notice of appeal, even liberally construed, did
not fairly identify that part of the judgment. See Burtell v. First Charter Service Corp., 76 Ill.
2d 427, 434 (1979) (“When an appeal is taken from a specified judgment only, or from a part
of a specified judgment, the court of review acquires no jurisdiction to review other judgments
or parts thereof not so specified or not fairly to be inferred from the notice as intended to be
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presented for review on the appeal.”). 5
¶ 34 B. The Record on Appeal
¶ 35 Michelle next argues that we should dismiss the appeal or summarily affirm the trial court’s
judgment because Sam failed to present an adequate record on appeal. A record on appeal
should contain “the entire original common law record” and “any report of proceedings.” Ill.
S. Ct. R. 321 (eff. Feb. 1, 1994). “The common law record includes every document filed and
judgment and order entered in the cause and any documentary exhibits offered and filed by
any party.” Id. The report of proceedings should “include all the evidence pertinent to the issues
on appeal.” Ill. S. Ct. R. 323(a) (eff. July 1, 2017). Here, the record on appeal does not include
a transcript of the trial or any other hearing held in the trial court, nor does it contain any of
the exhibits introduced by the parties during trial. Moreover, while Sam challenges the trial
court’s order granting Michelle’s motion in limine, the motion itself is absent from the record
on appeal.
¶ 36 Sam insists that the deficiencies in the record must be attributed to the clerk of the trial
court, who is responsible for “prepar[ing] and certify[ing] the record on appeal.” Ill. S. Ct. R.
324 (eff. July 1, 2017). But it is the appellant’s “burden to present a sufficiently complete
record of the proceedings at trial to support a claim of error.” Foutch v. O’Bryant, 99 Ill. 2d
389, 391-92 (1984). Material omissions in the record prepared by the clerk should have been
corrected by Sam through a motion to supplement the record. See Ill. S. Ct. R. 329 (eff. July
1, 2017). Sam further asserts that he was unable to include a trial transcript in the record on
appeal because no court reporter was present for the trial. But that does not explain Sam’s
failure to “prepare a proposed report of proceedings [or bystander’s report] from the best
available sources, including recollection,” and “present [it] to the trial court for *** approval”
and certification. Ill. S. Ct. R. 323(c) (eff. July 1, 2017).
¶ 37 Nevertheless, although the record on appeal is deficient, the deficiency does not fully
inhibit our ability to review the issues presented on appeal. In particular, we are aided by the
recitation of facts in the trial court’s judgment, which recounted many aspects of the testimony
and evidence presented at trial. For that reason, we decline to dismiss the appeal or summarily
affirm. However, we will resolve “[a]ny doubts which may arise from the incompleteness of
the record” against Sam. Foutch, 99 Ill. 2d at 392. Moreover, where the record on appeal is
insufficient to support any of Sam’s contentions of error, we will “presume[ ] that the order
entered by the trial court was in conformity with [the] law and had a sufficient factual basis.”
Id.¶ 38 C. Averaging Sam’s Income
¶ 39 Sam’s first contention is that the trial court erred in calculating his income for maintenance
and child support purposes by using the average of his 2016 and 2017 income. “The trial court
has the discretion to determine the amount and duration of an award of maintenance,” and its
decision “will not be reversed on appeal absent an abuse of discretion.” In re Marriage of
Walker, 386 Ill. App. 3d 1034, 1041 (2008). A trial court abuses its discretion when its ruling
5
For the same reason, we lack jurisdiction to review any of the trial court’s orders assessing attorney
fees against Sam other than the fee award contained in the court’s final judgment, but we do not construe
Sam’s appeal as challenging any of those separate orders.
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is “arbitrary, fanciful, or unreasonable or when no reasonable person would take the same
view.” (Internal quotation marks omitted.) In re Estate of Andre T., 2018 IL App (1st) 172613,
¶ 34. In determining the amount of maintenance to award, “a trial court should consider the
parties’ income[s] at the time of dissolution as well as their potential incomes.” In re Marriage
of Walker, 386 Ill. App. 3d at 1041. We defer to a trial court’s “factual finding[s] as to the
parties’ annual incomes” as long as the findings are not against the manifest weight of the
evidence. Id.
¶ 40 Here, the trial court decided to rely on the average of Sam’s 2016 and 2017 income after
concluding that Sam’s current income was difficult to ascertain due to his lack of credibility
and failure to disclose all his sources of income. Sam argues that mere difficulty in ascertaining
his current income cannot justify the decision to use the average of his prior years’ incomes.
But when a party’s current income “is difficult to ascertain or uncertain, a court may consider
[the party’s] past earnings.” In re Marriage of Karonis, 296 Ill. App. 3d 86, 92 (1998).
Moreover, when a party’s income “fluctuates from year to year, income averaging is an
approved method to apply” in determining the party’s current income. In re Marriage of
Garrett, 336 Ill. App. 3d 1018, 1025 (2003). The trial court’s decision to average Sam’s 2016
and 2017 income was supported by its finding that the income reported on Sam’s 2017 W-2
dropped by nearly half from the income reported on his 2016 W-2 “without explanation.”
¶ 41 Sam asserts that income averaging was inappropriate here because his income did not
fluctuate but simply declined. But the same was true in In re Marriage of Garrett, where the
appellate court approved a trial court’s decision to average a party’s income over a three-year
period during which the party’s income declined each year. Id. Sam also argues that the trial
court should have used at least three years’ worth of income in its calculation. Although there
is support for the proposition that “[a]t least the three prior years should be used to obtain an
accurate income picture,” the number of years to consider generally “must be left to the
discretion of the trial court, as facts will vary in each case.” In re Marriage of Freesen, 275 Ill.
App. 3d 97, 103 (1995). While Sam suggests that the court should have included his 2018
income in its income-averaging calculation, there is no indication in the record that Sam
presented evidence of his 2018 income. Indeed, as the trial court recounted, Sam testified that
he could not remember what his 2018 income was. Accordingly, we cannot say that the trial
court abused its discretion in considering only Sam’s 2016 and 2017 income when calculating
his average income for support purposes. 6
¶ 42 Nor can we say that the trial court abused its discretion in using the income-averaging
method in the first place. The court had good reason to question the accuracy of Sam’s reported
income. When determining a party’s income for support purposes, a court “may consider the
party’s credibility and forthrightness in disclosing his or her income.” In re Marriage of Sweet,
316 Ill. App. 3d 101, 109 (2000). Here, the court found that Sam’s testimony concerning his
income lacked credibility, and we defer to that assessment. See In re Marriage of Walker, 386
6
Although the parties’ 2015 joint income tax return was apparently introduced at trial, Sam does
not argue that the trial court erred in excluding his 2015 income from its income-averaging calculation.
In any event, because the 2015 tax return is not in the record on appeal and because the record does not
otherwise reveal the amount of Sam’s income in 2015, there is no basis for concluding that the inclusion
of that year’s income in the trial court’s calculation would have materially lowered Sam’s average
income.
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Ill. App. 3d at 1042 (“A reviewing court will defer to a trial court’s determination of credibility
because the trial court is in the best position to observe the conduct and demeanor of
witnesses.”).
¶ 43 In addition, the trial court noted that in 2017, the year Michelle filed for divorce, Sam’s
reported income “dramatically dropped *** without explanation.” Sam asserts that the court
ignored testimony that his income decreased in 2017 due to a loss of donors. But without a
trial transcript or bystander’s report in the record, we have no way of assessing this contention
and must presume that the trial court’s decision was supported by the evidence. See Foutch,
99 Ill. 2d at 392. In any event, the trial court did discuss Sam’s testimony about his reliance on
donors for income, but the court noted that Sam failed to produce records documenting “the
actual amount of this additional income.” While the court was able to identify a portion of the
donations Sam received in 2017 based on deposits to his checking account, it could not
calculate the amount of donations Sam received through his Patreon accounts because Sam
provided no records for those accounts and claimed that he did not remember how much money
was deposited in the accounts.
¶ 44 For all these reasons, we cannot say that the trial court abused its discretion in calculating
Sam’s income for maintenance and child support purposes by using the average of his 2016
and 2017 income.
¶ 45 D. Motion in Limine
¶ 46 In a related argument, Sam challenges the trial court’s order granting Michelle’s motion
in limine, which barred Sam “from testifying as to new information not timely disclosed or
offering documents into evidence other than what had been previously produced.” Sam asserts
that the order prevented him from introducing evidence of his diminished 2018 income and
was a disproportionate sanction for his discovery violations.
¶ 47 A trial court is “vested with broad discretion to grant a motion in limine as part of its
inherent power to admit or exclude evidence.” (Internal quotation marks omitted.) Jacobs v.
Yellow Cab Affiliation, Inc., 2017 IL App (1st) 151107, ¶ 35. In addition, a trial court is
authorized “to prescribe sanctions, including barring witnesses from testifying, when a party
fails to comply with discovery deadlines.” In re Marriage of Liszka, 2016 IL App (3d) 150238,
¶ 31 (citing Ill. S. Ct. R. 219(c)(iv) (eff. July 1, 2002)). “The imposition of sanctions is within
the discretion of the trial court and will not be disturbed absent a clear abuse of discretion.” Id.¶ 48 The record on appeal is inadequate to support Sam’s contention of error. For one thing,
there is no indication in the record that the court’s order granting Michelle’s motion in limine
barred Sam from presenting evidence or testimony concerning his 2018 income. The motion
itself is not part of the record on appeal. Nor does the record contain any written or oral ruling
by the court on the motion. In its judgment, the trial court recounted that it had granted
Michelle’s motion in limine due to Sam’s “deficient production of documents” in response to
Michelle’s discovery requests. But nothing in the record describes the documents requested by
Michelle or the extent of Sam’s failure to comply with her requests.
¶ 49 Moreover, while the court’s judgment states that Sam was barred “from testifying as to
new information not timely disclosed or offering documents into evidence other than what had
been previously produced,” it does not indicate that Sam was prohibited from introducing
evidence or testimony concerning his 2018 income. In fact, as a whole, the court’s judgment
suggests that Sam was not prevented from offering such testimony or evidence. For instance,
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when discussing its distribution of the marital estate, the court expressly noted that Sam had
been barred from testifying about any debt owed on his vehicle due to his failure to disclose
such information in discovery. In contrast, when the court recounted Sam’s testimony about
his income, it noted Sam’s claim that he could not remember what his income was “for 2016,
2017, or 2018 year to date.” Notably, the court did not state that Sam had been prevented from
testifying about or otherwise offering evidence concerning his 2018 income. In short, the
record on appeal fails to support Sam’s assertion that he was barred from offering testimony
or evidence concerning his 2018 income.
¶ 50 In addition, even if we assume that the trial court did bar Sam from offering testimony or
evidence related to his 2018 income, there is no indication in the record on appeal that Sam
preserved a challenge to the court’s order by making an offer of proof concerning the testimony
or evidence he wished to present. “When a motion in limine is granted, the key to saving for
review an error in the exclusion of evidence is an adequate offer of proof in the trial court.”
Snelson v. Kamm, 204 Ill. 2d 1, 23 (2003). “An offer of proof informs the trial court, opposing
counsel, and the reviewing court of the nature and substance of the evidence sought to be
introduced” and “is the key to preserving a trial court’s alleged error in excluding evidence.”
Colella v. JMS Trucking Co. of Illinois, Inc., 403 Ill. App. 3d 82, 93 (2010). Because the record
on appeal does not show that Sam made an offer of proof at any time, we must conclude that
he has forfeited any challenge to the trial court’s order granting Michelle’s motion in limine.
See Guski v. Raja, 409 Ill. App. 3d 686, 695 (2011) (“Absent an adequate offer of proof, the
issue is unreviewable on appeal.”). 7
¶ 51 Finally, even if we were to excuse Sam’s forfeiture, the record on appeal is insufficient to
address the merits of his claim. The record contains no description of the scope of Michelle’s
discovery requests or any evidence concerning the circumstances of Sam’s noncompliance
with those requests. Neither Michelle’s motion in limine nor the transcript of any hearing on
the motion is in the record. Nor does the record identify the evidence or testimony that Sam
was barred from presenting as a sanction for his discovery violation. In light of these
deficiencies in the record, there is no basis for us to conclude that the trial court abused its
discretion in granting the motion in limine. In the absence of a sufficient record on appeal, we
must “presume[ ] that the order entered by the trial court was in conformity with [the] law and
had a sufficient factual basis.” Foutch, 99 Ill. 2d at 392.
¶ 52 E. Child Support
¶ 53 Sam next challenges the trial court’s child support order. He argues that the court erred in
calculating his guideline support obligation and that the court further erred in deviating upward
from the guideline amount.
¶ 54 When determining child support, a trial court must begin by calculating each party’s basic
child support obligation under the statutory guidelines. See 750 ILCS 5/505(a)(1.5) (West
Supp. 2017). The guidelines utilize “a schedule of basic child support obligations that reflects
the percentage of combined net income that parents living in the same household in this State
7
Even on appeal, Sam does not state what evidence concerning his 2018 income he wished to offer
at trial. He asserts that his income in 2018 was substantially lower than his income in previous years,
but the only concrete evidence he cites is his 2018 tax return, which he concedes was not available at
the time of trial.
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ordinarily spend on their child[ren]” (id. § 505(a)(1)), and “provide for an award of child
support on an income-shares model, which takes into account the incomes of both parents”
(In re Marriage of Connelly, 2020 IL App (3d) 180193, ¶ 16). To calculate each party’s basic
child support obligation under the guidelines, the court first “determine[s] each parent’s
monthly net income” and “add[s] the parents’ monthly net incomes together to determine the
combined monthly net income of the parents.” 750 ILCS 5/505(a)(1.5)(A), (B) (West Supp.
2017). The court then “select[s] the corresponding appropriate amount from the schedule of
basic child support obligations based on the parties’ combined monthly net income and number
of children” and “calculate[s] each parent’s percentage share of the basic child support
obligation” based on each parent’s percentage share of the parties’ combined monthly net
income. Id. § 505(a)(1.5)(C), (D).
¶ 55 The statute creates “a rebuttable presumption” that the amount of child support calculated
under the guidelines “is the correct amount of child support.” Id. § 505(a)(3.3). A trial court
may deviate from the guidelines to avoid “inequitable, unjust, or inappropriate” results, but
any such deviation must “be accompanied by written findings by the court specifying the
reasons for the deviation and the presumed amount under the child support guidelines without
a deviation.” Id. § 505(a)(3.4). In deciding whether to deviate from the guidelines, a court may
consider whether “extraordinary medical expenditures [are] necessary to preserve the life or
health” of either parent or any child, whether any child will require “additional expenses” due
to “special medical, physical, or developmental needs” and “any other factor” that would
render application of the guidelines “inappropriate” in light of the “best interest[s]” of the
children. Id. Such other factors include, but are not limited to, “the financial resources and
needs” of the parents and children, “the standard of living the child[ren] would have enjoyed
had the marriage *** not been dissolved,” and “the physical and emotional condition of the
child[ren] and [their] educational needs.” Id. § 505(a)(2). The party seeking a deviation from
the guidelines bears the burden of demonstrating that “compelling reasons” justify a deviation.
In re Marriage of Abu-Hashim, 2014 IL App (1st) 122997, ¶ 35.
¶ 56 Ultimately, the trial court has discretion to determine the appropriate amount of child
support, and we will not reverse its determination absent an abuse of discretion. Vance v.
Joyner, 2019 IL App (4th) 190136, ¶ 66. The same is true when the trial court decides to
deviate from the statutory guidelines. See In re Marriage of Hill, 2015 IL App (2d) 140345,
¶ 28 (“[A] trial court’s decision whether to deviate from the statutory guidelines in setting child
support will not be disturbed absent an abuse of discretion.”). Whether the court applied the
correct statutory formula in determining the parties’ respective incomes for child support
purposes, however, is a question of law that we review de novo. See In re Marriage of
McGrath, 2012 IL 112792, ¶ 10; In re Marriage of Ruvola, 2017 IL App (2d) 160737, ¶ 18.
¶ 57 Here, the court plainly erred in calculating the parties’ respective net incomes for child
support purposes. Under the version of the statute then in effect, “gross income” was defined
as “the total of all income from all sources,” including “spousal maintenance received pursuant
to a court order in the pending proceedings.” 750 ILCS 5/505(a)(3)(A) (West Supp. 2017).
“Net income” was defined as gross income minus federal and state income taxes, Social
Security and Medicare taxes, and any self-employment taxes. Id. § 505(a)(3)(B). In addition,
the statute provided that “[o]bligations pursuant to a court order for spousal maintenance in the
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pending proceeding *** payable to the same party to whom child support is to be payable ***
shall be deducted from the parent’s gross income.” Id. § 505(a)(3)(F)(II). 8
¶ 58 In calculating the parties’ respective net incomes for child support purposes, the trial court
failed to account for the amount of maintenance it ordered Sam to pay to Michelle. As the
worksheet that the trial court attached to its judgment makes clear, the court failed to include
the amount of maintenance in Michelle’s income or subtract it from Sam’s income. By doing
so, the court attributed too large a share of the parties’ combined net income to Sam and thus
overstated his “percentage share of the [parties’ combined] basic child support obligation.” Id.
§ 505(a)(1.5)(D). 9
¶ 59 Michelle does not address Sam’s contention that the court erred in calculating the guideline
child support amount by failing to account for the maintenance award. Instead, she contends
that Sam forfeited appellate review of the issue by failing to adequately cite authority in support
of his argument. We decline to find the issue forfeited. Sam’s opening brief asserted that the
trial court miscalculated the parties’ respective net incomes for child support purposes by
failing to subtract the monthly maintenance award from Sam’s income and add it to Michelle’s
income. He cited one of the statutory provisions discussed above concerning the inclusion of
a maintenance award in the recipient’s net income for child support purposes and directed our
attention to the page of the record containing the trial court’s child support calculation
worksheet. He also explained the effect that the court’s error had on its determination of his
guideline child support obligation. While Sam’s discussion of the issue was not extensive, that
is largely a function of the relatively straightforward nature of the error he asserts. Because
Sam’s brief adequately set forth his contention of error “and the reasons therefor, with citation
of the authorities and the pages of the record relied on” (Ill. S. Ct. R. 341(h)(7) (eff. May 25,
2018)), we find that he did not forfeit review of the issue.
¶ 60 Sam further argues that the trial court abused its discretion in deciding to deviate upward
from the amount of child support it calculated under the guidelines. Michelle contends that
Sam waived appellate review of this issue because he failed to raise it in the trial court. We
note that Sam was not required to raise the issue in a posttrial motion in order to preserve it for
review. See Elsener v. Brown, 2013 IL App (2d) 120209, ¶ 53 (“A posttrial motion *** is not
necessary to preserve issues in an appeal from a bench trial.” (citing Ill. S. Ct. R. 366(b)(3)(ii)
(eff. Feb. 1, 1994))). We acknowledge, however, that Sam’s failure to provide a trial transcript
or an appropriate substitute makes it impossible to determine whether he raised the issue in the
trial court before entry of judgment. While we generally would resolve any doubts arising from
the incompleteness of the record against Sam (see Foutch, 99 Ill. 2d at 392), we decline to do
so in this instance. “It is well settled that the rules of waiver and forfeiture are limitations on
the parties and not the courts.” In re Davion R., 2019 IL App (1st) 170426, ¶ 59. Because we
8
The current version of the statute reflects changes in the federal tax code affecting the tax treatment
of maintenance awards but does not alter the basic principle that the calculation of each party’s income
for child support purposes should account for any maintenance awarded by the court. See 750 ILCS
5/505(a)(3)(A), (a)(3)(B), (a)(3)(F)(II) (West 2018).
9
The court attributed approximately 71% of the parties’ combined net income to Sam. Based on
our rough calculation (keeping all of the trial court’s other figures constant), properly accounting for
the maintenance award would reduce Sam’s share of the parties’ combined net income to approximately
54% and reduce his guideline child support obligation from $1385 to $1062.
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ultimately conclude that a remand is necessary due to the trial court’s error in calculating Sam’s
guideline child support obligation, we choose to address Sam’s further contention concerning
the propriety of deviating from the guidelines to provide guidance to the parties and the trial
court on remand.
¶ 61 As noted above, there is a rebuttable presumption under the statute that a guidelines child
support award is appropriate (750 ILCS 5/505(a)(3.3) (West Supp. 2017)), and a trial court
may deviate from the guidelines only if it makes written findings specifying its reasons for
concluding that application of the guidelines would be “inequitable, unjust, or inappropriate”
(id. § 505(a)(3.4)). The trial court here made the necessary written findings, and we cannot say
that it abused its discretion in determining that a deviation was appropriate. The court found
that an upward deviation from the guidelines was appropriate in light of (1) “the children’s
needs and [the] history of this case,” (2) “Sam’s demonstrated history of non-compliance with
support,” (3) “Sam’s lack of overnights and [Michelle’s] disproportionate exercise of parenting
time,” and (4) “[the] fact that Sam receives additional income which he has not disclosed.”
These grounds relate to “the financial resources and needs” of the parents and children (id.
§ 505(a)(2)(A), (B)) and the “best interest[s]” of the children (id. § 505(a)(3.4)(C)) and are
thus appropriate bases for finding that a deviation from the guidelines is warranted.
¶ 62 Sam does not dispute that “the children’s needs” are an appropriate factor to consider in
determining whether a deviation from the guidelines is appropriate. He argues, however, that
the trial court did not make adequate written findings because it did not expressly identify what
needs of the children warranted the deviation. But the statute requires the trial court to make
“written findings *** specifying the reasons for the deviation” (id. § 505(a)(3.4)), which the
trial court did. The statute does not require the court to include “a specific finding in its order
regarding *** the actual needs of the children.” Melamed v. Melamed, 2016 IL App (1st)
141453, ¶ 33.
¶ 63 Sam cites In re Marriage of Jelinek, 244 Ill. App. 3d 496 (1993), where the appellate court
reversed a trial court’s decision to deviate from the guidelines. There, although the trial court
“noted that it had considered the relevant factors,” the “record reveal[ed] that little evidence
was adduced as to the needs of the children.” Id. at 508-09. Here, in contrast, we cannot say
that there was inadequate evidence of the children’s needs presented at trial because Sam failed
to include a trial transcript or an appropriate substitute in the record on appeal. As such, we
must “presume[ ] that the order entered by the trial court was in conformity with [the] law and
had a sufficient factual basis.” Foutch, 99 Ill. 2d at 392.
¶ 64 Sam argues that the additional circumstances cited by the trial court—his access to
undisclosed income and history of noncompliance with his support obligations, and Michelle’s
disproportionate exercise of parenting time—are not appropriate factors to consider as grounds
for deviating from the guidelines. But these circumstances bear on “the financial resources and
needs of the parents,” which is a “relevant factor[ ]” to consider in determining whether a
deviation from the guidelines is appropriate. 750 ILCS 5/505(a)(2)(B) (West Supp. 2017).
Sam’s access to undisclosed income is plainly relevant to assessing his financial resources.
Moreover, while the trial court considered Sam’s failure to fully disclose his income as a reason
justifying its decision to average his income for support purposes, nothing in the statute
prohibited the court from further considering this factor when deciding whether to deviate from
the guidelines. Similarly, Sam’s history of noncompliance with his support obligations is a
relevant circumstance to consider when assessing Michelle’s financial resources, which were
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likely depleted during the period in which she was forced to financially support the children
without assistance from Sam and expend time and resources seeking to enforce Sam’s
compliance with the court’s orders.
¶ 65 Finally, Michelle’s disproportionate exercise of parenting time affects both her financial
resources and her financial needs, as it is likely to force her to choose between altering her
work schedule or securing outside childcare. Sam argues that the trial court erred in considering
this factor because a separate statutory provision addresses circumstances in which the parties
exercise relatively proportional amounts of parenting time. See id. § 505(a)(3.8). That
provision increases the parties’ combined basic support obligation by 50% when “each parent
exercises 146 or more overnights per year with the child” and computes each parent’s child
support obligation “by multiplying that parent’s portion of the shared care support obligation
by the percentage of time the child spends with the other parent.” Id. But nothing in the statute
prohibits the trial court from considering the inverse situation—where one party exercises all
or nearly all parenting time—as a relevant factor bearing on that party’s financial needs and
resources when determining whether a deviation from the guidelines is appropriate.
¶ 66 While we conclude that the trial court did not abuse its discretion in deciding to deviate
upward from the guidelines when making its child support award, we nevertheless must reverse
and remand for further proceedings. Because the trial court relied in part on considerations
related to Sam’s income when determining that a deviation was appropriate, we cannot be
confident that the court’s decision to deviate from the guidelines or the extent of its deviation
was not influenced by its error in calculating the parties’ net incomes and corresponding
miscalculation of Sam’s guideline support obligation. On remand, the trial court should
properly calculate Sam’s guideline support obligation in the manner discussed above and
reconsider whether and, if so, to what extent a deviation from the guidelines is appropriate.
¶ 67 F. Attorney Fees
¶ 68 Finally, Sam challenges the trial court’s award of attorney fees to Michelle. We will not
reverse a court’s order awarding attorney fees “absent an abuse of discretion.” In re Marriage
of Heroy, 2017 IL 120205, ¶ 13.
¶ 69 A trial court may order one party to contribute “a reasonable amount” to the other party’s
attorney fees. 750 ILCS 5/508(a) (West 2018). “Any award of contribution to one party from
the other party shall be based on the criteria for division of marital property *** and, if
maintenance has been awarded, on the criteria for an award of maintenance.” Id. § 503(j)(2);
see also id. § 508(a) (providing that contribution to opposing party’s attorney fees “may be
awarded *** in accordance with subsection (j) of Section 503”). The criteria for dividing
marital property include, among other things, “the relevant economic circumstances of each
spouse”; “the age, health, station, occupation, amount and sources of income, vocational skills,
employability, estate, liabilities, and needs of each of the parties”; and “the reasonable
opportunity of each spouse for future acquisition of capital assets and income.” Id. § 503(d)(5),
(8), (11). Similarly, the criteria for awarding maintenance include “the income and property of
each party”; “the needs of each party”; and “the realistic present and future earning capacity
of each party.” 750 ILCS 5/504(a)(1)-(3) (West Supp. 2017). “The party seeking an award of
attorney fees must establish her inability to pay and the other spouse’s ability to do so.” In re
Marriage of Schneider, 214 Ill. 2d 152, 174 (2005). “[A] party is unable to pay if, after
consideration of all the relevant statutory factors, the court finds that requiring the party to pay
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the entirety of the fees would undermine his or her financial stability.” In re Marriage of Heroy,
2017 IL 120205, ¶ 19.
¶ 70 Here, the trial court ordered Sam to contribute $15,000 toward Michelle’s attorney fees
after finding that Michelle “lacks the ability to contribute further to her attorney[ ] fees without
undermining her financial stability and security” and that “Sam has the ability to make a
contribution to Michelle’s attorney[ ] fees” and “pay his own [fees], without undermining his
financial stability or security.” The court also found that Sam “needlessly increased the cost of
[the] litigation” through his failure to comply with discovery orders, his noncompliance with
court-ordered support payments, and by engaging in conduct that necessitated the entry of an
order of protection against him. Finally, the court concluded that the attorney fees incurred by
Michelle were reasonable.
¶ 71 Sam argues that the fee award is “unreasonable and excessive given the income of the
parties.” He contends that, after accounting for the maintenance awarded to Michelle, his
income is only slightly higher than Michelle’s. He further suggests that the attorney fees
incurred by Michelle were not reasonable. Finally, he contends that the trial court’s reliance
on his failure to comply with discovery requests as a basis for the fee award was improper
because the court had already granted Michelle’s motion in limine as a sanction for his
discovery violations. We conclude that Sam forfeited any challenge to the trial court’s fee
award and that, in any event, the incomplete record on appeal does not support a finding that
the trial court abused its discretion.
¶ 72 To begin, Sam forfeited any challenge to the trial court’s award of attorney fees by failing
to respond to Michelle’s fee petition or appear for the hearing on the petition. By his inaction,
Sam necessarily failed to raise in the trial court any of the arguments he now presents on appeal.
A party’s “[f]ailure to raise an issue before the trial court forfeits review of that issue on
appeal.” Finko v. City of Chicago Department of Administrative Hearings, 2016 IL App (1st)
152888, ¶ 24. The purpose of this rule “is to encourage parties to raise issues in the trial court,
thus ensuring both that the trial court is given an opportunity to correct any errors prior to
appeal and that a party does not obtain a reversal through his or her own inaction.” 1010 Lake
Shore Ass’n v. Deutsche Bank National Trust Co., 2015 IL 118372, ¶ 14. Sam asserts that the
trial court’s order was “so arbitrary [and] prejudicial” that we should “at least remand for
further consideration.” But Sam had ample opportunity to raise his objections to Michelle’s
request for attorney fees in the trial court. After choosing to forgo that opportunity, he is not
now entitled to a do-over.
¶ 73 Even if we were to excuse Sam’s forfeiture, the incomplete record on appeal makes it
impossible for us to say that the trial court abused its discretion in awarding Michelle attorney
fees. Because the record contains neither a trial transcript nor a transcript of the hearing on
Michelle’s fee petition, we do not know the amount of attorney fees that either party incurred
and thus cannot determine what percentage of Michelle’s fees (or the parties’ combined fees)
Sam was ordered to pay. Nor is there any evidence in the record that would allow us to evaluate
Sam’s contention that the fees Michelle incurred were unreasonable. In addition, while Sam
argues that the fee award was excessive considering the parties’ respective incomes, that is
simply one of many factors to consider in making a fee award. Sam fails to address—and
without a transcript of the trial or fee hearing we are unable to evaluate—“the relevant
economic circumstances of each spouse”; “the reasonable opportunity of each spouse for future
acquisition of capital assets and income”; or “the age, health, station, occupation, ***
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vocational skills, employability, estate, liabilities, and needs of each of the parties.” 750 ILCS
5/503(d)(5), (8), (11) (West 2018). Due to the incomplete record, we cannot say that the trial
court’s award of attorney fees to Michelle was unreasonable or arbitrary. Instead, we must
“presume[ ] that the order entered by the trial court was in conformity with [the] law and had
a sufficient factual basis.” Foutch, 99 Ill. 2d at 392.
¶ 74 Finally, Sam offers no authority for his contention that the trial court erred in considering
his discovery violations when awarding attorney fees to Michelle. “[A] party forfeits review
of an issue on appeal by failing to support its argument with citation to authorities.”
International Union of Operating Engineers Local 965 v. Illinois Labor Relations Board, State
Panel, 2015 IL App (4th) 140352, ¶ 20. In any event, we note that “[u]nnecessarily increasing
the cost of litigation is a relevant factor in *** the allocation of attorney fees.” In re Marriage
of Patel, 2013 IL App (1st) 112571, ¶ 117.
¶ 75 III. CONCLUSION
¶ 76 For the foregoing reasons, we affirm the trial court’s awards of maintenance and attorney
fees, but we reverse the court’s award of child support and remand for further proceedings. As
explained above, on remand the trial court should recalculate Sam’s guideline child support
obligation, taking into account the court’s award of maintenance when determining the parties’
respective net incomes, and should then reevaluate whether a deviation from the guidelines is
appropriate. The trial court should also correct the discrepancy in its judgment identified above
concerning the amount of the maintenance award.
¶ 77 Affirmed in part; reversed in part; remanded with directions.
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