Kic v. Bianucci

ILLINOIS OFFICIAL REPORTS
Appellate Court
Kic v. Bianucci, 2011 IL App (1st) 100622Appellate Court TERESA KIC, Plaintiff-Appellant, v. WILLIAM BIANUCCI,
Caption Defendant-Appellee.
District & No. First District, Second Division
Docket No. 1-10-0622
Filed December 13, 2011
Held The denial of plaintiff’s motion to reconsider the judgment dissolving her
(Note: This syllabus marriage to defendant was upheld over her contentions that the trial court;
constitutes no part of inter alia, improperly denied her motion for substitution of judge, erred
the opinion of the court in reopening discovery after the trial began, erred in allowing defendant
but has been prepared to amend his pleadings, improperly allowed him additional time to
by the Reporter of respond to a request to admit, and improperly intervened and advised
Decisions for the defendant to testify.
convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Cook County, No. 06-D6-30547; the
Review Hon. Edward A. Arce, Judge, presiding.
Judgment Affirmed.
Counsel on Barrett & Sramek, of Palos Heights (Bernadette Garrison Barrett, of
Appeal counsel), for appellant.
Panos & Associates, LLC, of Palos Heights (Diane M. Panos, Nancy M.
Donlon and Jeffrey L. Paustian, of counsel), for appellee.
Panel JUSTICE CUNNINGHAM delivered the judgment of the court, with
opinion.
Presiding Justice Quinn and Justice Harris concurred in the judgment and
opinion.
OPINION
¶1 This appeal arises from a February 9, 2010 order entered by the circuit court of Cook
County, which denied plaintiff-appellant Teresa Kic’s (Teresa) motion to reconsider the
judgment for dissolution of marriage. On appeal, Teresa argues that: (1) the trial court erred
in denying her motion for substitution of judge; (2) the trial court erred in reopening
discovery after trial began and allowing the defendant-appellee, William Bianucci (William),
to amend his pleadings; (3) the trial court improperly allowed William additional time to
respond to a request to admit facts; (4) the trial court erred by failing to name a residential
parent and failed to enter an order of child support, education expenses and extracurricular
activities for the minor child; (5) the trial court improperly intervened and advised William,
who was acting pro se, to testify; (6) the trial court’s ruling allowing William a year to
refinance the marital residence was inequitable and improper; (7) the trial court improperly
penalized Teresa for the same financial matter more than once; (8) the trial court erred in
failing to incorporate a list of marital property subject to distribution in its order; and (9) the
trial court erred in failing to find a specific date regarding the breakdown of the marriage and
its finding of dissipation of marital assets by Teresa was against the manifest weight of the
evidence. In response, William argues that: (1) Teresa has forfeited four of the issues she
raises on appeal for failing to include them in her motion to reconsider; (2) Teresa has
forfeited eight of the issues she raises on appeal due to their deficiency under Illinois
Supreme Court Rule 341(h)(7) (eff. July 1, 2008); and (3) the trial court properly denied
Teresa’s motion for substitution of judge. For the following reasons, we affirm the judgment
of the circuit court of Cook County.
¶2 BACKGROUND
¶3 Teresa and William were married on August 29, 1987, and the marriage was registered
in Cook County, Illinois. In 1998, the parties acquired the marital residence located at 11740
Shaker Ct., Orland Park, IL (Shaker Ct. home), through tenancy by the entirety. The parties
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obtained a mortgage at the time the residence was purchased, and after it was refinanced the
home was encumbered by a mortgage of approximately $500,000. The home was further
encumbered by a home equity line of credit with a balance of approximately $99,632.
Between 1998 and 1999, the parties acquired a commercial building located at 525 Burnham
St., Calumet City, IL (State Farm office), through joint tenancy. The State Farm office
contains five total rental units, one of which is used for Teresa’s sole proprietorship as an
insurance agent for State Farm Insurance Company. Teresa rents the other four units in the
building, generating income from the property which amounted to $16,104 in 2007. The
State Farm office was encumbered by a mortgage of $53,187.67 as of October 2008.
¶4 On May 13, 2003, Teresa and William’s only child, Robert Bianucci (Robert) was born.
In December 2003, William was convicted 1 count of bank fraud and 12 counts of false
statements to a bank. William was sentenced to 46 months’ imprisonment and 60 months’
supervised release and ordered to pay restitution in the sum of $3,418,854. The restitution
lien against William also attached to both the Shaker Ct. home and the State Farm office. On
June 29, 2004,William executed a durable power of attorney to Teresa which gave her the
authority to control all his finances. William was incarcerated on June 30, 2004, and released
on March 5, 2007. On July 12, 2005, Teresa formed a limited liability company called Bigsy
Properties L.L.C. (Bigsy Properties). In July 2005, Bigsy Properties borrowed $400,000 from
Teresa’s mother, Jane Kic (Jane). These funds were used to purchase vacant lots pursuant
to a business agreement between Bigsy Properties and R&D Development. On January 31,
2006, William revoked his power of attorney.
¶5 On May 18, 2006, Teresa filed a petition for dissolution of marriage. William, while he
was still incarcerated, filed an answer to the petition for dissolution of marriage on June 26,
2006, acting pro se. William also filed a motion for a temporary stay of all proceedings until
he was no longer incarcerated and able to return to Chicago. On the same day, Teresa filed
a motion for a default prove-up. On September 13, 2006, William was granted leave to file
an appearance.
¶6 On December 12, 2006, Teresa was awarded temporary sole custody of Robert. William
was awarded visitation and ordered to pay child support in the amount of $70 per week.
Teresa was allowed possession of the Shaker Ct. home from Sunday through Thursday night.
William was allowed possession of the residence from Thursday night through Sunday.
Teresa was also ordered to pay all utilities of the home and monthly installments of the home
equity line of credit. William was ordered to pay the monthly mortgage payments and real
estate taxes. On March 5, 2007, William was released from prison.
¶7 On August 7, 2007, counsel for Teresa filed a motion for leave to withdraw as attorney
of record. The motion was granted on August 16, 2007. On May 9, 2008, Teresa, appearing
pro se, filed a petition for legal separation. On January 10, 2008, the parties entered into a
mediation agreement that established a joint custody agreement by which they each agreed
to share residential responsibilities in caring for Robert. On May 1, 2008, Judge Naomi
Schuster (Judge Schuster) set the matter for pretrial on June 18, 2008. Later that week, Judge
Schuster was reassigned to a different court and Judge Edward Arce (Judge Arce) was
assigned to handle the matter. On June 18, 2008, both parties appeared pro se and presented
motions before Judge Arce. The matter was then set for trial. The trial date was continued
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and at a status hearing Teresa presented a motion for substitution of judge. On July 30, 2008,
William presented an emergency motion that sought payment by Teresa for the real estate
taxes; contribution to the monthly expenses of the marital residence; and to assert a claim
dissipation of marital assets by Teresa.1 On August 14, 2008, the court granted Teresa’s
emergency motion for leave to file an additional appearance by counsel. On September 30,
2008, Teresa’s motion for substitution of judge was denied.
¶8 The trial commenced on November 18, 2008 in the circuit court of Cook County. Teresa
appeared with counsel. William appeared pro se during the entirety of the trial. On January
26, 2009, William presented (but did not file) a motion claiming marital economic
misconduct including but not limited to the dissipation of marital assets by Teresa. Teresa
filed a motion to strike these additional allegations but the trial court allowed discovery on
these issues.2 After the parties exchanged discovery, William was allowed an extension
beyond 28 days to respond to Teresa’s request to admit facts. During trial on June 25, 2009,
as William was preparing to rest his case in chief, the trial court asked him whether he
planned to testify. The trial court then told William that without testimony from him there
was nothing to consider with respect to William’s case. William then gave his testimony in
narrative form.
¶9 On September 8, 2009, the trial court entered the judgment for dissolution of marriage.
The extensive order ruled on all of the contested issues including custody, maintenance,
distribution of real property, distribution of retirement accounts, dissipation, and division of
martial property. Most notably, the trial court reserved the issue of child support, granted
William sole possession of the Shaker Ct. home with a year to refinance and remove Teresa’s
name from any attached obligations, and found that Teresa had dissipated the marital estate
in the sum of $310,964.03.3 On October 7, 2009, Teresa filed a motion to reconsider the
court’s ruling of September 8, 2009. Her motion alleged: (1) that the reopening of discovery
and allowing William to assert a claim of economic misconduct in January 2009 after trial
began was a manifest error of law; (2) that it was a manifest error of law to grant William an
extension of time to answer Teresa’s request to admit facts; (3) that allowing William a year
to refinance the Shaker Ct. home is a manifest error of law; (4) that the trial court failed to
specify the date of irretrievable breakdown of the marriage for the dissipation claim; and (5)
that the finding of dissipation of marital assets by Teresa is against the manifest weight of
the evidence. Teresa also sought modification of the judgment for dissolution in the amount
that William was awarded regarding her State Farm mutual fund retirement account. On
1
This motion is not in the record because it was never actually filed in court. The trial court
ruled that the motion was not an emergency and it was never filed.
2
The trial court did not actually grant or deny William’s motion in a written order but instead
ordered the parties to exchange discovery on the issues presented in William’s motion.
3
This sum was based on individual findings of dissipation in the amounts of $147,000,
$86,458.16, $55,000, and $22,505.87. The actual balance due to William was $124,719.52 due to
the court’s finding of William’s dissipation of $61,525.
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October 29, 2009, William filed a response to Teresa’s motion to reconsider and for
modification of the judgment for dissolution.
¶ 10 On February 9, 2010, the trial court ruled that Teresa’s motion to reconsider was granted
regarding William’s award from the State Farm mutual fund, but that the remaining issues
were denied. William’s motion for modification was also denied. On February 25, 2010,
Teresa filed a notice of appeal.
¶ 11 ANALYSIS
¶ 12 As a preliminary matter before we consider Teresa’s arguments, we must determine if
this court has jurisdiction. William argues that Teresa forfeited four of the issues4 raised in
her brief because she failed to include them in her motion to reconsider in the trial court.
William presents a compelling argument that Teresa may not raise issues for the first time
on appeal. William points out that Teresa raised the issues in a legal memorandum instead
of in a motion. He argues that no exception to the forfeiture rule should apply to Teresa. In
general, William’s argument is correct as applied to jury cases. Specifically, a party may not
argue on appeal any point that was not specified in the party’s posttrial motion before the
trial court. Ill. S. Ct. R. 366(b)(2)(iii) (eff. Feb. 1, 1994). However, in civil bench trials,
“[n]either the filing of nor the failure to file a post-judgment motion limits the scope of
review.” Ill. S. Ct. R. 366(b)(3)(ii) (eff. Feb. 1, 1994). Furthermore, it has been repeatedly
held that failure to raise an issue in a posttrial motion does not preclude a party from raising
that issue on appeal in nonjury civil cases. Shumak v. Shumak, 30 Ill. App. 3d 188, 332
N.E.2d 177 (1975); City of Chicago v. Mid-City Laundry Co., 8 Ill. App. 3d 88, 289 N.E.2d
233 (1972). Therefore, Teresa’s failure to include arguments (1), (4), (5), and (8) in her
motion to reconsider is not fatal to her arguments on appeal.
¶ 13 We first consider Teresa’s argument that the trial court erred in denying her motion for
substitution of judge. A motion for substitution of judge as of right shall be granted if it is
presented before trial and before the judge has made a ruling on any substantial issue. 735
ILCS 5/2-1001(a)(2)(ii) (West 2008). The trial court “has no discretion to deny a proper
motion for substitution of judge.” Rodisch v. Commacho-Esparza, 309 Ill. App. 3d 346, 350,
722 N.E.2d 326, 330 (1999). In addition to the substantial issue rule, there is an exception
that allows the denial of a motion for substitution of judge. When the happenings at a pretrial
conference allow a party to “test the waters” and get an idea of the judge’s opinion on some
of the issues of the case, a motion for substitution of judge can be properly denied. In re
Estate of Gay, 353 Ill. App. 3d 341, 343, 818 N.E.2d 860, 863 (2004). The purpose of this
exception is to keep parties from “judge shopping” when they are able to tell which way a
judge is leaning on a case before substantial issues have been decided. Id. In Gay, the trial
judge hosted pretrial conferences that were not memorialized. Id. The appellate court held
that when the trial judge’s recollections do not contradict or impeach the record, the judge
can rely on those recollections in determining the substance of the pretrial conference. Id. at
344, 818 N.E.2d at 863. The denial of a motion for substitution of judge is reviewed de novo.
4
Specifically, issues (1), (4), (5), and (8).
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Id. at 343, 818 N.E.2d at 863.
¶ 14 In this case, the parties are in dispute as to whether a pretrial conference was held and
whether Teresa was able to test the waters before presenting her motion for substitution of
judge. The question of whether the trial judge ruled on a substantive matter is not at issue
here and has no bearing on our analysis. On May 1, 2008, Judge Schuster set the matter for
pretrial on June 18, 2008. During the first week of May 2008, Judge Schuster was reassigned
to another court and Judge Arce was assigned to handle the matter. On June 18, 2008, the
parties appeared pro se and presented motions before Judge Arce. Teresa presented a motion
for legal separation and William presented a motion for property settlement. Judge Arce set
the matter for trial status on August 11, 2008, and for trial on August 18, 2008. The trial date
was continued and Judge Arce continued to hear various motions from both parties during
the period before trial. At a trial status hearing on September 22, 2008, Teresa presented a
motion for substitution of judge, and Judge Arce set the motion for hearing on September 30,
2008. On September 30, 2008, Judge Arce denied Teresa’s motion for substitution of judge
on the basis that he had conducted a pretrial conference before the motion was presented.
¶ 15 At the time of the June 18, 2008 pretrial, both parties appeared pro se. The proceedings
went unmemorialized and Teresa offers no bystander’s report or affidavit describing the
substance of the proceedings. Therefore, we are only able to rely upon Judge Arce’s own
recollections. In dealing with two pro se parties presenting motions at a pretrial conference,
it is reasonable to assume that Judge Arce discussed matters of substance regarding the case.
The record suggests that from his recollections of the pretrial conference, Judge Arce
determined that Teresa’s motion for substitution of judge was inappropriate at this point in
the proceedings. There is no evidence in the record that contradicted Judge Arce’s
recollections. Absent any such evidence by Teresa, we hold that Judge Arce’s denial of
Teresa’s motion for substitution of judge was proper.
¶ 16 We next examine whether the trial court committed reversible error when the trial court
allowed William to reopen discovery and amend his pleadings after the trial began. As a rule,
the trial court is able to supervise “all or any part of any discovery procedure.” Ill. S. Ct. R.
201(c)(2) (eff. July 1, 2002). It is well established in Illinois that the trial court is afforded
broad discretion in ruling on discovery matters. BlueStar Energy Services, Inc. v. Illinois
Commerce Comm’n, 374 Ill. App. 3d 990, 996, 871 N.E.2d 880, 887 (2007). The exercise
of the trial court’s discretion will not be overturned on appeal unless there was clearly an
abuse of discretion. Id. “An abuse of discretion occurs where the trial court acts arbitrarily
and fails to employ conscientious judgment and ignores recognized principles of law.”
Castro v. Brown’s Chicken & Pasta, Inc., 314 Ill. App. 3d 542, 554, 732 N.E.2d 37, 47
(2000) (citing Avery v. Sabbia, 301 Ill. App. 3d 839, 844, 704 N.E.2d 750, 755 (1998)).
¶ 17 Teresa argues that the trial court erred by allowing William to present (but not file) an
emergency motion on July 30, 2008. The motion sought contribution to real estate taxes and
monthly expenses of the marital estate by Teresa, and also asserted a claim of dissipation of
marital assets by Teresa. The trial court ruled that William’s motion was not an emergency
and continued the motion until the time of trial on the issues of contribution to real estate
taxes and monthly expenses of the marital estate. The trial court did not rule on the issue of
dissipation of marital assets. The record shows no evidence that the trial court abused its
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discretion in allowing William’s motion to be presented. There are no facts to suggest that
the trial court acted arbitrarily, failed to employ conscientious judgment, or ignored
recognized principles of law. Because the trial court is afforded broad discretion in
overseeing discovery matters, absent a showing of an abuse of discretion, this court will not
overturn the trial court’s ruling. Teresa highlights the fact that, although continued, William’s
July 30, 2008 motion was never filed with the clerk of the court and never ruled on by the
trial court. However, this fact proves to be detrimental to Teresa’s argument. In the absence
of an adverse ruling against Teresa, she cannot claim wrongdoing or prejudice by the court.
The trial court did not rule on William’s July 30, 2008 motion as a separate act but rather
seems to have considered the issues raised in the motion in the context of resolving the whole
case. Based on this analysis, the actions of the trial court cannot be said to be detrimental to
Teresa. Accordingly, Teresa’s argument on this issue fails.
¶ 18 Teresa argues that the trial court erred when it allowed William to present a motion on
January 26, 2009 claiming marital economic misconduct, including the dissipation of marital
assets by Teresa. Teresa filed a motion to strike William’s motion, but the trial court denied
her motion to strike and reopened discovery. Teresa claims that William’s supplemental and
amended pleadings were in the improper form. Further, Teresa argues that the rules require
that a party claiming dissipation must put the opposing party on notice of the claim if it is not
pled. She also argues that William’s January 26, 2009 motion contradicted his answer to the
petition for dissolution of marriage and his emergency motion of July 30, 2008 regarding the
date of the irretrievable breakdown of the marriage.
¶ 19 The trial court has broad discretion in whether or not to reopen discovery, and that
decision will not be disturbed absent an abuse of discretion. Ruane v. Amore, 287 Ill. App.
3d 465, 471, 677 N.E.2d 1369, 1374 (1997). The record does not reveal any evidence that
the trial court abused its discretion. Furthermore, Teresa does not provide citations to case
law or cases whose facts are analogous to this case. Accordingly, we find no error by the trial
court. Simply put, Teresa’s arguments are unsupported by the record or case law and are
unpersuasive.
¶ 20 Teresa makes additional arguments attacking William’s pleadings and motions as a
whole based on deficiency in form. However, Teresa’s arguments are unsupported by the
record or case law. Section 2-616 of the Illinois Code of Civil Procedure states in relevant
part:
“At any time before final judgment amendments may be allowed on just and reasonable
terms, introducing any party who ought to have been joined as plaintiff or defendant,
dismissing any party, changing the cause of action or defense or adding new causes of
action or defenses, and in any matter, either of form or substance, in any process,
pleading, bill of particulars or proceedings, which may enable the plaintiff to sustain the
claim for which it was intended to be brought or the defendant to make a defense or
assert a cross claim.” (Emphasis added.) 735 ILCS 5/2-616(a) (West 2010).
Thus, the trial court, in its discretion, could properly allow William to amend his complaint.
Furthermore, dissipation may be considered by the trial court sua sponte regardless of the
pleadings of either party. In re Marriage of Sanfratello, 393 Ill. App. 3d 641, 653, 913
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N.E.2d 1077, 1089 (2009); 750 ILCS 5/503(d)(2) (West 2010). Teresa further argues that
William’s dissipation claim from the July 30, 2008 motion and the January 26, 2009 motion
should not be considered. However, the trial court has the discretion to consider dissipation
by either party regardless of the allegations in the pleadings. In this case, the court did not
rule on the issue of dissipation until it entered the dissolution order. Therefore, Teresa was
not prejudiced by any ruling on the issue.
¶ 21 Similarly, Teresa argues that the trial court committed reversible error when it allowed
William more than 28 days to respond to a request to admit facts. On March 13, 2009,
Teresa’s request for admission of facts was mailed to William. After receiving no response,
Teresa filed motions to strike William’s amended complaint and to deem the request to admit
facts as true and correct. In response, William stated: (1) that he did not receive any requests
prior to April 28, 2009; (2) that if the requests were sent on March 13, 2009, he would have
received them on March 17, 2009; (3) that there was a vacation hold placed on his mail from
March 16, 2009 to March 19, 2009; and (4) that he believes Teresa intercepted and picked
up his mail from the post office on March 18, 2009.
¶ 22 The decision whether to allow an extension for a discovery matter is discretionary. Teresa
is unable to show that the trial court abused its discretion in allowing William an extension.
The Illinois Supreme Court Rules allow the trial court to extend the time to file any pleading
either before or after the expiration of the deadline when good cause is shown. Ill. S. Ct. R.
183 (eff. Feb. 16, 2011). What constitutes “good cause” is a fact-dependent issue and falls
withing the discretion of the court. Vision Point of Sale, Inc. v. Haas, 226 Ill. 2d 334, 353,
875 N.E.2d 1065, 1079 (2007). Supreme Court Rule 183 applies to responses to requests to
admit facts. Id. at 343, 875 N.E.2d at 1072. In this case, the trial court considered William’s
explanations for his untimely response and granted an extension. There is no evidence of
abuse of discretion by the trial court.
¶ 23 Teresa next presents a number of arguments that are not framed in the context of a proper
legal theory or supported by any legal authority whatsoever. William argues that this
unorthodox presentation should bar Teresa’s claims from being considered. The Illinois
Supreme Court Rules provide that the appellant’s brief must contain contentions along with
citations to the authorities and pages in the record relied upon. Ill. S. Ct. R. 341(h)(7) (eff.
July 1, 2008). A failure to cite relevant authority violates Rule 341 and can cause a party to
forfeit consideration of the issue. Fortech, L.L.C. v. R.W. Dunteman Co., 366 Ill. App. 3d
804, 818, 852 N.E.2d 451, 463 (2006). Arguments that violate Rule 341 do not merit
consideration and can be rejected solely for that reason. Maun v. Department of Professional
Regulation, 299 Ill. App. 3d 388, 399, 701 N.E.2d 791, 799 (1998). “The appellate court is
not a depository in which the appellant may dump the burden of argument and research.”
Thrall Car Manufacturing Co. v. Lindquist, 145 Ill. App. 3d 712, 719, 495 N.E.2d 1132,
1137 (1986). However, a court may consider improperly raised issues in the interest of
finding a just result because Rule 341 is not a limitation on the court’s jurisdiction, but an
admonishment to the parties. Brown v. Brown, 62 Ill. App. 3d 328, 332-33, 379 N.E.2d 634,
637 (1978). Five of Teresa’s nine arguments are presented with absolutely no citations to
legal authority. The arguments contain record citations that are intermittent and often
inaccurate. We note that these issues could be forfeited on the basis of noncompliance with
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Rule 341. However, notwithstanding the deficiencies, Teresa’s arguments warrant discussion
and resolution.
¶ 24 The first of these unsupported contentions is that the trial court committed reversible
error when it failed to name a residential parent and failed to enter an order on child support,
educational expenses and extracurricular activities for the minor child. The Illinois Marriage
and Dissolution of Marriage Act (the Act) states that the court has jurisdiction to enter a
judgment for dissolution of marriage even if it has reserved the issues of child custody,
support, maintenance or distribution of property. 750 ILCS 5/401(b) (West 2010). This can
be accomplished through either the agreement of the parties or motion by either party and a
finding of “appropriate circumstances” by the court. Id. While we recognize that the statute
generally discourages judgments that are bifurcated, it does provide that when appropriate
circumstances are present the court has discretion to reserve the issues of child custody,
support, maintenance or distribution of property to be determined subsequent to the judgment
of dissolution. See In re Marriage of Cohn, 93 Ill. 2d 190, 443 N.E.2d 541 (1982). It has
been held that appropriate circumstances include circumstances “where the court does not
have in personam jurisdiction over the respondent, where a party is unable to pay child
support or maintenance if so ordered, where the court has set aside an adequate fund for child
support pursuant to section 503(d) of the Act [citation], or where the children do not reside
with either parent.” In re Marriage of Cohn, 93 Ill. 2d 190, 195, 443 N.E.2d 541, 543 (1982).
This rule has been interpreted not just to allow the reservation of ancillary issues in the
enumerated circumstances listed above, but also to include circumstances that are of the
same caliber. In re Marriage of Wade, 408 Ill. App. 3d 775, 778, 946 N.E.2d 485, 488
(2011). The trial court’s decision to enter a bifurcated judgment for dissolution is reviewed
using an abuse of discretion standard. Id. at 778, 946 N.E.2d at 488. As the finder of fact, this
allows the court broad discretion in deciding whether to grant bifurcation. Id. at 780, 946
N.E.2d at 490.
¶ 25 Teresa argues that the trial court committed reversible error when it reserved the issue
of child support. In this case, the only issue that was reserved was child support and there is
considerable evidence in the record and in trial court’s order that supports the ruling by the
trial court. In determining whether to reserve the issue of child support, the court considered
a number of statutory factors, including the financial resources of the child, the split custody
system that was established by the mediation agreement, and the fact that both parents earned
considerable income that could provide for Robert. The court felt that in light of these facts,
the application of a child support order against either party was not warranted. Although the
facts and circumstances in this case are not among the enumerated circumstances listed in
Cohn and Wade, they are of the same caliber. Teresa makes no showing that the trial court
acted arbitrarily or ignored established principles of law in reserving the issue of child
support. Therefore, we hold that the trial court did not abuse its discretion.
¶ 26 Teresa also claims that the trial court erred by entering an order that was silent on the
issues of designating a residential parent and contributions to educational expenses and
extracurricular activities for Robert. A close examination of the trial court’s order does not
support Teresa’s contentions. On the issue of designating a residential parent, the trial court
recognized that the parties had agreed to and implemented a stable system where Robert lives
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in the Shaker Ct. home full time (the home in which he has lived since birth). William lives
in the Shaker Ct. home with Robert from Thursday night through Sunday of each week, and
Teresa lives with Robert in the same home from Sunday through Thursday afternoon of each
week. The system was established by a mediation agreement between the parties dated
January 10, 2008. In its ruling, the court considered many factors including the statutory
guidelines that permit joint custody of a child (750 ILCS 5/501 (West 2010)), and the
guidelines that determine the best interests of the child (750 ILCS 5/602(a) (West 2010)).
Without restating significant portions of the trial court’s order, we note that the court gave
a lengthy, in-depth analysis of relevant factors before ultimately deciding not to disrupt the
already agreed-upon system that had been established by the parties. The trial court declared
that each parent would share the residential responsibilities in caring for Robert. Most
notably, the trial court reasoned that both the parties had adjusted their lifestyles and work
schedules and had successfully set their personal differences aside for the best interests of
their child. Clearly, the court weighed appropriate factors in making its determination.
Accordingly, there was no abuse of discretion and the trial court’s ruling will not be
disturbed.
¶ 27 In regard to the claims concerning educational, medical, and extracurricular activity
expenses, the trial court’s order in fact addressed each one of these issues. In its final
judgment, the trial court’s order states that each party will pay equally all medical and dental
expenses for Robert which are not covered by insurance; that Teresa will provide Robert with
medical insurance coverage and that William is to reimburse Teresa for half of the cost of
coverage; and the parties are to consult each other concerning all of Robert’s extracurricular
activities. Therefore, Teresa’s arguments that the trial court failed to rule on these issues are
without merit.
¶ 28 Teresa also argues that the trial court committed reversible error when it failed to
incorporate, in paragraph T of the judgment for dissolution, a list of marital property that was
subject to distribution. No reasoning is presented nor citations to legal authority. An
examination of paragraph T along with paragraphs L and M shows that while the trial court
did not specifically itemize all the property that was to be distributed, it did award each party
his or her own personal clothing, jewelry, bank accounts, automobiles, items of apparel and
other personal property. The order also provided a method for the parties to fairly distribute
the remaining property in the marital residence. The deficiency of this argument is such that
there is no basis for disturbing the trial court’s ruling on these issues.
¶ 29 Next, we consider Teresa’s argument that the trial court committed reversible error when
the trial court advised William that he should testify. Generally, the court has wide latitude
when conducting a trial. Crump v. Universal Safety Equipment Co., 79 Ill. App. 3d 202, 210,
398 N.E.2d 188, 194 (1979). Moreover, in a nonjury trial, the comments of a trial judge are
allowed greater latitude than in jury trials. City of Chicago v. Westphalen, 93 Ill. App. 3d
1110, 1121, 418 N.E.2d 63, 72 (1981). “[N]ot every comment or unguarded expression by
a trial judge will support a claim of prejudice. A showing of prejudicial effect is required.”
Id.¶ 30 In Westphalen, the trial judge advised the defendant in open court to retain another
lawyer. See Westphalen, 93 Ill. App. 3d 1110, 418 N.E.2d 63. This court found that the
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comments made were not prejudicial. See id. The comments made by the trial court in this
case are even less prejudicial than in Westphalen. At trial, as William was about to rest his
case in chief, the following exchange occurred:
“THE COURT: No other witnesses?
MR. BIANUCCI [William]: No
THE COURT: You’re not going to testify on your own case?
MR. BIANUCCI [William]: Can I just make statements?
THE COURT: You’re going to have to. You’re representing yourself.
MR. BIANUCCI [William]: Okay.
THE COURT: But if you don’t present a case as part of your case, then–I mean I still
haven’t heard from you what you are saying your date of separation was, other than as
part of your questioning, but that’s certainly not evidence.
MR. BIANUCCI [William]: Okay. I do apologize.
THE COURT: And I apologize for overstepping my bounds a little bit, but if I don’t
do this then ***.”
These are the statements that Teresa is challenging. We do not find that this comment by the
court suggests that it was acting as an advocate for William. On the contrary, the trial court
was within its discretion in clarifying the procedural process during trial. There is nothing
to suggest that the trial court’s statements prejudiced Teresa. We note that this was a bench
trial.
¶ 31 Teresa also argues that the trial court committed reversible error when it allowed William
a year to refinance the Shaker Ct. home and to remove Teresa’s name from any mortgage
obligation. Teresa claims this ruling limited her options. In support of this assertion, Teresa
cites section 503 of the Act (750 ILCS 5/503 (West 2010)), which sets forth the factors to
be considered in equitable distribution.
¶ 32 “In cases involving the distribution of martial property, the appellate court will reverse
only upon a finding that the lower court abused its discretion.” In re Marriage of McHenry,
292 Ill. App. 3d 634, 639, 686 N.E.2d 670, 674 (1997). Equitable distribution does not have
to be equal, and when the court rules that one spouse receives income-producing assets, “the
court may achieve an equitable distribution by awarding offsetting payments to the other
spouse or by awarding a greater share of the total marital assets to the spouse who does not
receive the income-producing assets.” Id. at 643, 686 N.E.2d at 677.
¶ 33 In this case, the trial court recognized that the parties owned the Shaker Ct. home,
encumbered by a mortgage of $500,000, and a home equity loan of $99,632. They also
owned the State Farm office, encumbered by a mortgage of $53,187.67, in joint tenancy.
Both qualify as marital property and are also encumbered by a federal lien of $3,418,854 due
to William’s criminal conviction. The trial court considered the relative value and primary
purposes of both properties. The court reasoned that the Shaker Ct. property does not have
any substantial equity. On the other hand, the court found that the State Farm office
generated $16,104 in rental income in 2007 and was estimated at the time to be worth
between $140,000 and $150,000. The court reasoned that the only way to effectuate an
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equitable division of marital property would be to sell the properties; however, both parties
requested that the court not exercise that option. The parties agreed that William should be
allowed to retain the Shaker Ct. home as long as he is able to refinance the existing
mortgages and remove Teresa’s name. The court awarded William the Shaker Ct. home
while awarding Teresa the income-producing State Farm office. At the time of the ruling,
Teresa’s income was more than twice the amount of William’s income. The mere fact that
William was given a year to refinance the Shaker Ct. home does not support an abuse of
discretion allegation in the distribution of marital property. Absent an abuse of discretion,
we cannot hold that the distribution of marital property was inequitable.
¶ 34 Teresa further argues that the trial court committed reversible error by penalizing her
twice for the same matter when it found that she dissipated funds by withdrawing money in
the amount of $86,458.16 from the State Farm mutual fund account on November 19, 2007.
However, she makes no cogent argument in support of this contention. Because this
argument is clearly deficient pursuant to Illinois Supreme Court Rule 341, we will not
consider this issue on appeal and it is therefore forfeited.
¶ 35 Teresa’s final argument is that the trial court committed reversible error when it found
that she dissipated martial assets and failed to identify the date of the irretrievable breakdown
of the marriage. Again, she fails to make a cogent argument and provides no legal support
for her theory. “A decision is against the manifest weight of the evidence when the opposite
conclusion is clearly evident or where it is unreasonable, arbitrary, and not based on the
evidence.” In re Marriage of Berger, 357 Ill. App. 3d 651, 660, 829 N.E.2d 879, 887 (2005).
We must review the evidence in the light most favorable to the appellee, and where there is
a possibility for multiple inferences, we must accept those inferences that support the court’s
order. In re Marriage of Divelbiss, 308 Ill. App. 3d 198, 206-07, 719 N.E.2d 375, 381
(1999). Teresa’s theory that the trial court’s finding of dissipation was against the manifest
weight of the evidence is wholly unsupported by the record or established legal principles.
Therefore, we cannot say that the trial court’s finding is against the manifest weight of the
evidence.
¶ 36 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.
¶ 37 Affirmed.
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