In re Marriage of Nutter

2020 IL App (2d) 190480-UNos. 2-19-0480 & 2-19-0829 cons.
Order filed June 18, 2020
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as
precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
In re MARRIAGE OF ) Appeal from the Circuit Court
MICHAEL K. NUTTER, ) of Kane County.
)
Petitioner-Appellant, )
)
and ) No. 17-D-734
)
CRISTIE L. NUTTER, ) Honorable
) Rene Cruz,
Respondent-Appellee. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE HUDSON delivered the judgment of the court.
Justices McLaren and Zenoff concurred in the judgment.
ORDER
¶1 Held: The trial court’s finding as to the husband’s average income was not against the
manifest weight of the evidence. The trial court did not abuse its discretion in
determining the amount and duration of the maintenance award and in denying the
husband’s motion to reconsider the maintenance award based upon a claim of
newly discovered evidence regarding a decrease in his income. The trial court did
not err in dismissing the husband’s motion to modify the maintenance award. The
trial court’s valuation of the husband’s partnership interest was not against the
manifest weight of the evidence and the equal allocation of his capital account was
not an abuse of discretion. The trial court’s valuation of a savings account titled in
the husband’s name was not against the manifest weight of the evidence and the
equal allocation of the account was not an abuse of discretion.
2020 IL App (2d) 190480-U¶2 This consolidated appeal arises out of a dissolution of marriage proceeding between
petitioner, Michael K. Nutter, and respondent, Cristie L. Nutter. Michael appeals the dissolution
judgment, the trial court’s order granting in part and denying in part his motion to reconsider the
dissolution judgment, and the trial court’s order granting Cristie’s motion to strike and dismiss
Michael’s motion to modify maintenance. Michael challenges the award of maintenance to Cristie,
the valuation and allocation of his law firm partnership interest, and the valuation and allocation
of a savings account titled in his name. For the reasons set forth below, we affirm.
¶3 I. BACKGROUND
¶4 Michael and Cristie were married on September 21, 1997. They have two children: a
daughter and son who, at the time of trial, were 19 and 16 years old, respectively. Cristie filed a
petition for dissolution of marriage in March 2016 but voluntarily dismissed the action two months
later when the parties attempted to reconcile. The reconciliation was ultimately unsuccessful, and
Michael filed a petition for dissolution of marriage on June 6, 2017.
¶5 The parties entered into two agreed orders on December 1, 2017. Pursuant to the first
agreed order, Michael was required to pay Cristie, beginning January 1, 2018, monthly temporary
maintenance in the amount of $11,593 and monthly temporary child support in the amount of
$1301. Pursuant to the second agreed order, the parties’ marital home was valued at $2.2 million
and Michael was ordered to pay Cristie $1.1 million to buy out her interest in the marital home
and enable her to purchase a separate residence. Each party was deemed to have received a $1.1
million advance from the marital estate, and the parties’ respective residences were designated
their nonmarital property. The parties physically separated on December 28, 2017, and thereafter
entered into an agreed allocation judgment and parenting plan. The trial court subsequently entered
an order on May 10, 2018, granting Cristie’s petition for temporary allocation of expenses and
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2020 IL App (2d) 190480-Uawarding Cristie and Michael each $250,000 as an advance on their interest in the marital estate.
A trial with respect to the remaining financial issues proceeded on December 3, 4, and 5, 2018.
Michael and Cristie were the only witnesses to testify. The following is derived from their
testimony and the exhibits submitted at trial.
¶6 At the time of trial, Michael was 49 years old, and Cristie was 44 years old. They met when
they were in college at the University of Illinois-Chicago. In 1994, Michael earned a bachelor of
science in chemical engineering; in 1997, Cristie earned a bachelor of science in biomedical
engineering. Michael proceeded to law school and earned a juris doctorate from Chicago-Kent
College of Law in 1997. At the time of their marriage in September 1997, Michael and Cristie
lived in an apartment in the West Loop neighborhood of Chicago. Michael became a licensed
patent attorney and worked as an associate at an intellectual property law firm, earning an
approximate annual salary of $72,000. Cristie worked for Cook County Hospital, earning
approximately $11 to $15 per hour.
¶7 In the fall of 1998, the parties built a townhome in East Aurora for $140,000. Their
daughter was born in 1999. During this time frame, Michael transitioned to an associate position
at a larger intellectual property law firm, and his annual salary increased to approximately $90,000.
Cristie transitioned to the position of a technician for hospital ultrasound machines at Hewlett-
Packard. Given the parties’ work schedules, their daughter attended a day care facility during the
work week from 7 a.m. to 6 p.m.
¶8 In mid-2000, the parties built a four-bedroom home on one-half acre in South Elgin for
approximately $480,000. Around this time, Michael transitioned to an associate position at a
national law firm, and his annual salary increased to approximately $150,000. In 2001, Cristie was
promoted to the position of solution delivery consultant, assisting in the design of medical care
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2020 IL App (2d) 190480-Uunits in hospitals. Her employer had become Philips Healthcare after Philips Healthcare acquired
the Hewlett-Packard business. She earned an annual salary (although the record does not specify
the amount at this point) with potential for bonus or additional compensation as well as other
benefits, including a company car.
¶9 The parties’ son was born in 2002. Michael thereafter transitioned to a different national
law firm, and his annual salary increased to approximately $165,000. By this point, Cristie’s work
schedule allowed her the flexibility to drop off and pick up the children from school and other
activities. In 2004, Michael became an associate at the law firm of Winston & Strawn LLP
(Winston & Strawn) with an increased annual salary of approximately $175,000. He was elected
to income partnership in 2008 with an increased annual salary of approximately $300,000.
¶ 10 Michael became a capital partner at Winston & Strawn in 2012. He testified at length
regarding his annual compensation in this role. As a capital partner, he acquired an equity interest
in the firm provided through an award of points that a partner purchases. The points reflect the
amount of the partner’s interest in the firm, and the partner’s compensation is tied to the firm’s
fiscal year profitability based upon the number of the partner’s points. The maximum amount of
points a partner may have is 25. Currently, a partner may be awarded no more than four points in
a fiscal year but the number of points that may be taken away is not capped. A partner’s equity
interest is based primarily upon business origination; accordingly, the firm may take away capital
points when a partner’s origination declines.
¶ 11 The firm’s fiscal year is February 1 through January 31. Michael testified that his income
is paid through partnership distributions, including a monthly base distribution or “draw.” He also
receives four annual distributions—special distributions in September and January to help pay
quarterly taxes and regular distributions in February and April. Michael testified that the special
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2020 IL App (2d) 190480-Udistributions are not guaranteed and depend upon the firm’s profitability. Michael explained that
he receives the majority of his income through the regular distributions in February and April but
that the amount of the regular distributions depends upon his point value as well as the firm’s
profitability.
¶ 12 Michael detailed his annual compensation beginning in fiscal year 2014—his first full year
as a capital partner. Each year, Michael receives a preliminary compensation statement in
February, which estimates his gross fiscal year compensation, and a final compensation statement
in April. The final compensation statements reflect that in fiscal year 2014, Michael had 15 points,
received a monthly draw of $23,750 (totaling $285,000 for the year), and earned overall
compensation of $1,115,992. In fiscal year 2015, he had 18 points, received a monthly draw of
$28,500 (totaling $342,000 for the year), and earned overall compensation of $2.4 million. In fiscal
year 2016, he had 21 points, received a monthly draw of $33,250 (totaling $399,000 for the year),
and earned overall compensation of $3.5 million.
¶ 13 With respect to fiscal year 2017, Michael’s final compensation statement reflected that he
had 25 points, received a monthly draw of $39,583 (totaling $475,000 for the year), and earned
overall compensation of $5 million. Michael testified that the significant increase in fiscal year
2017 was attributed to the fact that he was on trial six times that year for one of his clients resulting
in that client’s overall billing amounting to the third largest book of business in the firm for the
year. Michael testified that he told Cristie that “this is going to be a peak *** I don’t know that I’ll
ever have a year like this again.” Moreover, Michael testified, the particular client subsequently
was acquired by a client of one of his partners. Thus, Michael and his partner now split the
origination credit thereby decreasing Michael’s overall compensation.
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2020 IL App (2d) 190480-U¶ 14 Regarding Michael’s fiscal year 2018 compensation, Michael’s final compensation
statement reflected that he had 24.4 points, received a monthly draw of $46,389 (totaling $556,667
for the year), and earned overall compensation of $3.291 million. Michael testified that, included
in the overall compensation was an “atypical” special distribution of $234,000 based upon a
successful contingency case that year.
¶ 15 At the time of the December 2018 trial, the firm was near the end of its 2019 fiscal year,
which began on February 1, 2018, and ended on January 31, 2019. Michael testified that he had
25 points and received a monthly draw of $48,333 (which would total $580,000 for the year).
However, Michael stated: “[I]t’s already been made known to me that I’m not going to be eligible
for a bonus. In fact, at least it’s been hinted that I’m going to be losing a couple of points. So I
expect I’ll have 23 points rather than 25 points.” He also testified that he was “hoping” to lose only
two points but was not certain as to the number of points that might be taken away. Michael
estimated that his fiscal year 2019 compensation “will probably go down about a million dollars
but I won’t know until February [2019].”
¶ 16 Michael further testified with respect to his partnership interest and capital account at the
firm. At the time of trial, the balance of his capital account was $600,000. Michael explained that
the balance of the capital account reflected the amount he had paid into the firm over the years to
purchase his points or equity interest. Specifically, Michael had 25 points, which included one
fixed point and one variable point. A partner does not pay for the fixed point awarded, but the cost
of each of Michael’s 24 variable points was $25,000.
¶ 17 The parties entered into a stipulation, entitled “Stipulation of Partnership Interest and
Pension Termination,” which provided in relevant part:
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2020 IL App (2d) 190480-U“The parties stipulate and agree that the value of Michael’s partnership interest with
Winston & Strawn, to the extent it has a value at present, is limited to at most the balance
in his capital account. The parties further stipulate that pursuant to Article III of the
Partnership Agreement, a copy of which is attached hereto and incorporated herein by
reference only as Exhibit A, upon Michael’s death, disability or withdrawal from the firm
he would be entitled to a reimbursement of his then present capital account balance, if any,
subject to the remaining terms of the Partnership Agreement. At present Michael is not
eligible to receive a payout from this capital account and the value of it in the future, if, as
and when it is disbursed, has not yet been determined. Both parties also stipulate that the
present value of Michael’s the [sic] capital account held at Winston & Strawn is in the
amount of $600,000. Attached hereto and incorporated herein by reference only as Exhibit
B is a [sic] correspondence from the Managing Director of Tax, Compensation, &
Retirement Benefits dated September 21, 2018 confirming the current balance of Michael’s
capital account.”
The September 21, 2018, correspondence was an email from the managing director, stating, inter
alia, that “[Michael’s Capital Balance is $600,000 (24 Variable Points X $25,000)].”
¶ 18 When questioned regarding the stipulation, Michael testified that he could “certainly
stipulate that there’s $600,000 that the firm has that I gave them for the award of 24 variable points.
Whether or not that has any value to me in the future, I can’t stipulate to that.” Michael elaborated
that the money was not currently distributable to him, not divisible, and could not be sold. He
testified that while the balance of the capital account is $600,000, the value is not $600,000 because
he is “not ever guaranteed to receive that money.” He stated that the value of the capital account
would decrease if points were taken away based on work performance and “future effort.”
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2020 IL App (2d) 190480-UMoreover, Michael testified, the value of his capital account is impacted by outstanding
receivables. Specifically, “if I chose to leave the firm, in a perfect world, I would leave the firm
and I think the firm has three years to pay me back my capital account, however, they hold all
account receivables against me.” At the time of trial, Michael had approximately $2 million in
receivables. Thus, Michael testified, if he “left the firm and was unable to collect $600,000 or
more, they are going to take that money out of my capital contribution.”
¶ 19 With respect to his future employment plans, Michael testified: “[B]ased on the fact that I
was making the money I was, there was the hope and expectation that I would have the option to
retire at the age of 55. I wanted to travel and see the world while I could still walk and enjoy it.”
Michael testified that he had general conversations with Cristie on the subject over the years. He
specified a conversation in 2013 or 2014 during which he and Cristie discussed taking a three-
month to six-month cruise around the world after their children graduated from college. He stated
that other partners at his law firm had retired around the age of 55, and it remained his “hope and
expectation” despite the dissolution of marriage to retire at the age of 55.
¶ 20 Regarding Cristie’s employment status at the time of trial, Cristie testified that she resigned
from her employment at Philips Healthcare in August 2016. Her wages from January 1, 2016,
through August 21, 2016, were $121,849. Cristie stated that her resignation was based upon “many
factors” that the parties discussed: “I was nervous because of the fact that we were going through
some marital issues because [Michael] actually had said he would give me a hundred thousand
dollars to put in my account to give m[e] some financial—to feel more financially secure in case
something did happen further down the road[.]” Christie further testified that she “was very
stressed at work and there were some things going on with the family at the time. My daughter
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2020 IL App (2d) 190480-Uwas auditioning for college[] [theater programs] and there was no way that I could go on these
trips with her and also keep working as much as I was.”
¶ 21 Michael testified that the parties discussed Cristie’s desire to “take a year off while our
daughter applied to colleges so she could travel with her.” Cristie “wanted to spend [their]
daughter’s senior year with her so we agreed she could take a year off of work and then she would
have to go back to work. Or it was expected she would go back to work.” Michael disputed
Cristie’s testimony regarding his offer of $100,000. Michael testified that a year later, when their
daughter was in college, he asked Cristie about her employment plans. At the time of trial, Cristie
remained unemployed and testified that she had not taken any measures to seek employment.
Cristie also testified that she is generally healthy and trained for and participated in ironmans and
marathons between 2010 and 2016. She testified that nothing other than the stress of the divorce
prevented her from working.
¶ 22 The parties described their standard of living during the marriage as “comfortable.” They
both worked full-time until 2016 and earned a combined income of approximately $500,000 until
2013 when Michael became a capital partner. In April 2013, the year after Michael became a
capital partner, the parties purchased what Cristie described as her “dream home”—a 10,000-
square-foot residence located in St. Charles on 2.14 acres. They purchased the home in cash for
$1.97 million and paid an additional $10,000 for personal property. They also paid $120,000 to
install a heated driveway and approximately $500,000 to renovate the home and install a pool,
cabana, and pergola.
¶ 23 Regarding other expenditures during the marriage, Cristie testified that early in the
marriage, they “didn’t vacation very much.” Rather, she and Michael vacationed once or twice a
year while a grandmother cared for the children. Between the years of approximately 2004 and
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2020 IL App (2d) 190480-U2013 or 2014, the parties owned a fifth-wheel camper and pickup truck (subsequently replaced
with a motor home) in which the family took vacations. Beginning around 2011 to 2012, they
vacationed four times per year. Cristie further testified regarding their vacations later in the
marriage. In 2014, they vacationed in Europe, Costa Rica, Hawaii, and took a Caribbean cruise. In
2015, they vacationed in Mexico, Turks & Caicos, Tampa, and New York. In 2016, they
vacationed in Mexico, Alaska, and took a two-week, $50,000 vacation to Hawaii. In 2017, they
vacationed in Jamaica, the Florida Keys, and took a Disney vacation. Michael, however, testified
that with respect to vacations, the family vacationed twice per year—usually the week before
Thanksgiving and a week for spring break. Their airfare was generally coach, and they typically
stayed at Hyatt, Sheraton, Marriott, or Disney hotels.
¶ 24 Both parties testified that they belonged to a health club during the marriage but that they
were never members of a country club. At the time of trial, Michael drove a 2014 Audi S7; Cristie
drove a 2015 Jeep Wrangler; their daughter drove a 2007 Jeep Commander; and their son drove a
2014 BMW 550i.
¶ 25 Following the submission of written closing arguments, the trial court entered its
dissolution judgment on February 28, 2019. The trial court initially set forth several findings with
respect to the parties’ income. As for Michael’s income, the trial court found that his “income is
averaged at $3.2 [m]illion per year plus additional variable compensation that is not determinable
at this time.” In this regard, the trial court also noted that the “compensation system has changed
at Michael’s employer and he now shares one of his client’s receivables with a senior partner due
to a client acquisition.”
¶ 26 As for Cristie’s income, the trial court stated that Cristie “has an advanced degree and has
worked throughout the marriage earning most recently $130,000 as an [e]ngineer at Philips
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2020 IL App (2d) 190480-UHealthcare.” However, the trial court found, “[b]y agreement of the parties, Cristie took a year off
from work to spend time with her high school daughter, [but] she has not returned to employment
outside of the home.” The trial court noted that the expectation of Cristie’s return to work after the
year was disputed. The trial court further found that there was credible testimony and evidence
that Cristie “supplements her income through the sale of clothing and other items online resulting
in additional income.” Accordingly, the trial court imputed $150,000 of income to Cristie.
¶ 27 The trial court turned to the allocation of assets and liabilities. The trial court incorporated
a spreadsheet reflecting an allocation “intended to achieve a 50/50 division of property which this
court finds pursuant to [section 503 of the Illinois Marriage and Dissolution of Marriage Act (Act)
(750 ILCS 5/503 (West Supp. 2019))] and related case law to be equitable taking into account the
contributions made by each party and the pre-distribution of marital [sic] and expenses during the
litigation.” Relevant to this appeal, the trial court found that “the parties have stipulated that
Michael’s capital account at Winston & Strawn has a present balance of $600,000, and the [c]ourt
does find that this is marital property subject to division.” Accordingly, the trial court allocated
$300,000 to Michael and $300,000 to Cristie. Also relevant to this appeal, the trial court found that
a savings account titled in Michael’s name was marital property. The trial court valued the account
at $558,158.68—the balance set forth in the October 31, 2018, account statement. The trial court
therefore allocated $279,079.34 to Michael and $279,079.34 to Cristie.
¶ 28 The trial court proceeded to review the applicable statutory factors governing maintenance
in determining the propriety of a maintenance award to Cristie. See 750 ILCS 5/504(a) (West
Supp. 2019). In addressing the parties’ income and property, the trial court considered Michael’s
“average $3.2[million] per year” salary and Cristie’s imputed annual income of $150,000. The trial
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2020 IL App (2d) 190480-Ucourt found that the marital estate “is worth roughly $7[million] inclusive of real estate and
retirement” with a liquid estate of $2.3 million.
¶ 29 With respect to the parties’ needs, the trial court found that they “enjoyed significant
marital income throughout the marriage and were able to afford a marital home valued at
$2.2[million]” with monthly household expenses of approximately $30,000. While in the marital
home, the parties were able to “accumulate savings, retirement and vacationed comfortably.” After
Michael bought out Cristie’s interest in the marital home, Cristie purchased a home valued at $1.1
million and added a pool and landscaping at an additional cost of approximately $400,000. While
stating that both parties’ current monthly expenses were significant, the trial court found “Cristie’s
evidence as to her monthly expenses [of approximately $32,000] to be inflated as they exceed not
only Michael’s current [monthly] expenses [of $26,000] on the larger marital residence but exceed
the expenses [of $30,000] the parties shared while the entire family of four lived at the marital
residence.”
¶ 30 Regarding the realistic present and future earning capacity of the parties, the trial court
noted that Michael is a partner at Winston & Strawn. The trial court found that Michael “can
reasonably expect to earn a substantial living.” He has “consistently earned in excess of
$3.0[million] per year over the last several years, however there may be an anticipated decrease in
earnings due to a change in income earning structure and a client acquisition.” The trial court
further noted that “Michael testified credibly that the parties had a plan to retire at age 55 with the
expectation of saving enough assets to sell the marital residence, down-size their residence and
move to a more tax friendly state to maintain the lifestyle they desired.”
¶ 31 As for the standard of living established during the marriage, the trial court noted the value
of the marital residence and found that the parties “enjoyed an elevated standard of living outside
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2020 IL App (2d) 190480-Uthe norms of most individuals.” They drove “modest cars” but purchased a BMW for their son.
Moreover, the trial court found, the parties were able to take “comfortable vacations,” pay for their
daughter’s college tuition, and save “considerable money for retirement.”
¶ 32 The trial court noted the duration of the marriage—19 years and eight months prior to the
filing of Michael’s dissolution petition. It also found that the parties are “both relatively young and
healthy” with Michael a partner in a law firm having an “exceptional skill set” and earning a
“substantial salary” and Cristie “employable but nowhere near the level” of Michael’s earning
capacity. The trial court addressed the issue of any contributions and services of Cristie, as the
party seeking maintenance, to Michael’s career. The trial court stated that both parties worked
throughout the marriage and contributed to caring for the children and running the household,
using day care and other services as necessary. The trial court concluded that while Cristie
“enjoyed the relatively recent opportunity to dedicate time to triathlons and other competitions, []
her involvement in the home [] made it easier for Michael to excel in his career, letting him travel
for work, stay late and focus on his client’s [sic] and career.” Accordingly, having considered the
applicable statutory factors, the trial court determined that an award of maintenance was proper.
¶ 33 The trial court turned to the amount and duration of the maintenance award. In formulating
the award, the trial court initially noted that the statutory guidelines set forth in the Act did not
apply because the parties’ combined gross annual income exceeded $500,000. See 750 ILCS
5/504(a), (b-1)(1)(A) (West Supp. 2019). The trial court awarded Cristie maintenance in the
amount of $28,000 per month “as necessary to maintain the lifestyle the parties were accustomed
to during the marriage including the ability to further save for retirement” and based upon the total
of Michael’s monthly draw. The trial court also found that, based upon the length of the marriage,
Cristie was entitled to maintenance for 15 years and nine months. In determining the maintenance
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2020 IL App (2d) 190480-Uaward, the trial court reiterated that Michael’s income was “conservatively averaged to
$3.2[million] per year” based upon “the last several years and discounting the substantial bonus
Michael received in 2017” and Cristie’s imputed annual income was $150,000. The trial court
further stated that it had considered the “parties’ incomes, the allocation of marital assets, each
parties’ non[]marital estate, the lifestyle the parties established during the marriage, needs, and all
other relevant statutory factors pursuant to [section 504 of the Act] and related case law.”
¶ 34 Michael timely filed a motion to reconsider the dissolution judgment. In relevant part, he
challenged the trial court’s calculation of the parties’ income and the amount of the maintenance
award. Michael argued that Cristie’s imputed income should have been $229,550, not $150,000,
because had she remained employed through the end of 2016, she would have earned $209,550
plus $20,000 from her sale of clothing and other items online. Michael also argued that the trial
court erroneously found that he was guaranteed an annual income of $3.2 million plus additional
compensation. According to Michael, he “credibly testified that he is guaranteed only a monthly
pro rata share based on his capital points awarded to him (i.e., his draw),” and in fiscal year 2019,
his monthly draw only totaled $580,000 with his remaining compensation variable and not
guaranteed. Additionally, Michael submitted as an exhibit to the reconsideration motion his
preliminary compensation statement for fiscal year 2019, dated February 14, 2019, which reflected
the total of $580,000 in income from his monthly draw and an expected overall compensation of
$2.86 million. He argued that the statement was newly discovered evidence not in existence at the
time of the December 2018 trial. He also stated in his motion that he had been informed that he
could lose as many as 10 capital points in fiscal year 2020—eight more points than the two points
he had anticipated losing at the time of trial.
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2020 IL App (2d) 190480-U¶ 35 By the time Michael filed his reply in support of his reconsideration motion, he had
obtained his final fiscal year 2019 compensation statement, dated April 12, 2019, as well as his
fiscal year 2020 compensation and capital report. The final compensation statement confirmed the
total of $580,000 in income from his monthly draw and overall compensation of $2.86 million for
fiscal year 2019. The compensation and capital report reflected the loss of 10 capital points for
fiscal year 2020, leaving Michael with 15 capital points, and a corresponding reduction of his total
monthly draw for the year from $580,000 to $380,000 (or $31,667 per month). Michael
alternatively sought to reopen proofs to include the fiscal year 2020 compensation and capital
report.
¶ 36 In his motion to reconsider the dissolution judgment. Michael also challenged the valuation
and allocation of his Winston & Strawn partnership interest. Michael argued that he presented
unrefuted testimony that his partnership interest has no present value beyond the income he
receives for work performed and that any future value is a mere expectancy. He asserted that the
trial court erred in finding that the parties stipulated to a $600,000 value for the partnership interest,
as the stipulation provided that “to the extent it has a value at present,” the partnership interest
should be capped at the $600,000 in his capital account at the time. Alternatively, Michael posited
that the trial court should treat the capital account like an unvested retirement asset from which, if
and when he receives a payout, Cristie would receive a pro rata share.
¶ 37 And finally, Michael’s motion to reconsider the dissolution judgment included a challenge
to the valuation and allocation of the savings account titled in his name. While the trial court valued
the account at $558,158.68 pursuant to the balance set forth in the October 31, 2018, statement,
Michael asserted that the account should have been valued at $208,158.68 pursuant to the balance
set forth in the November 7, 2018, account statement. According to Michael, “the funds withdrawn
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2020 IL App (2d) 190480-Ureflect a withdrawal to pay income taxes owed by Michael and, since the tax liability for 2018 for
either party has not been allocated, to value this savings account at a higher level is tantamount to
yet another windfall to Cristie” by inflating the marital estate by approximately $350,000 and
“artificially divid[ing] between the parties funds that do not exist.” Michael submitted as an exhibit
to his reply in support of his reconsideration motion bank statements reflecting income tax
payments made on November 6, 2018. Alternatively, Michael sought to have the marital tax
liability of $350,000 allocated equally between the parties.
¶ 38 The trial court heard argument on Michael’s reconsideration motion, and on May 7, 2019,
entered an order granting in part and denying in part the motion. The trial court found that it had
erred in determining Cristie’s imputed income and increased the amount of the imputed income to
$229,550. In turn, the trial court reduced the monthly maintenance award from $28,000 to $23,000.
The trial court denied reconsideration with respect to Michael’s remaining arguments, stating that
it found “no changes in the law, errors in the [c]ourt’s previous application of existing law, or
newly discovered evidence which was not available at the time of trial to grant additional relief
***.” Specifically, regarding Michael’s income, the trial court reasoned that “[a]ll factors raised
in [Michael’s reconsideration motion] with respect to this issue were contemplated by the [c]ourt
in its [j]udgment.” The trial court did not explicitly address Michael’s alternative request to reopen
proofs. With respect to Michael’s partnership interest, the trial court noted that “[t]he parties
stipulated to the present value of the [Michael’s] Winston and Strawn capital account and the
[c]ourt finds that it is subject to division.” And as for the valuation of the savings account, the trial
court found “no basis to re-assess the value of this account past the October 31, 2018[,] valuation
of the parties’ assets and it remains subject to division at $558,158.68.”
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2020 IL App (2d) 190480-U¶ 39 On June 6, 2019, Michael timely appealed the dissolution judgment and the order disposing
of his reconsideration motion. On July 24, 2019, Michael also filed a motion to modify
maintenance pursuant to section 510 of the Act (750 ILCS 5/510 (West Supp. 2019)) on grounds
that he had experienced a substantial change in circumstances affecting his income. Namely, he
argued that his annual income declined in fiscal year 2019 to approximately $2.8 million—a
substantial decrease from the $3.2 million amount upon which the trial court based the
maintenance award. Moreover, Michael asserted, he anticipated that his total compensation for
fiscal year 2020 would decrease by 40% from approximately $2.8 million to approximately $1.7
million in light of the 40% reduction in his capital points from 25 points to 15 points. Michael
further stated that he relies upon the majority of his current monthly draw of $31,667 to pay his
maintenance and child support obligations. Thus, he has been required to deplete his savings to
pay his own living expenses. Michael argued that this result violated the trial court’s intention to
order an equal allocation of assets.
¶ 40 Cristie filed a motion to strike and dismiss Michael’s motion to modify maintenance
pursuant to sections 2-615 and 2-619 of the Code of Civil Procedure (735 ILCS 5/2-615, 5/2-619
(West 2018)). She argued that the motion should be dismissed pursuant to section 2-619 for lack
of jurisdiction in light of the pending appeal of the dissolution judgment and order disposing of
his reconsideration motion. She also argued that the motion should be stricken as factually
insufficient pursuant to section 2-615 because the reduction in Michael’s income was considered
by the trial court in its dissolution judgment. Moreover, Cristie argued, the anticipated further
reduction in income was speculative and not a substantial change in circumstances.
¶ 41 On September 18, 2019, following argument on Cristie’s motion to strike and dismiss
Michael’s motion to modify maintenance, the trial court granted Cristie’s motion pursuant to
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2020 IL App (2d) 190480-Usection 2-615. The trial court reasoned, “I don’t see a substantial change at this point,” and found
Michael’s motion to modify maintenance “a little bit preemptive and anticipatory.” Regarding
Michael’s attempt to rely upon his future compensation, the trial court stated: “I don’t know that
we can do that based upon we take an average of the income over the last several years in order to
get to the numbers that I did and the format that I set out, the structure. I believe that we are a little
bit ahead of the horse on this one.” In light of its ruling, the trial court stated that it need not address
Cristie’s request to dismiss the motion pursuant to section 2-619 for lack of jurisdiction. In its
written order, the trial court dismissed the motion to modify maintenance and included a finding
of appealability pursuant to Supreme Court Rule 304(a) in light of other post-dissolution matters
pending between the parties. Ill. S. Ct. R. 304(a) (eff. Mar. 8, 2016). On September 20, 2019,
Michael appealed the order dismissing his motion to modify maintenance. We granted Michael’s
motion to consolidate the appeal from the dismissal order with his appeal from the dissolution
judgment and order disposing of his reconsideration motion.
¶ 42 II. ANALYSIS
¶ 43 Michael raises four central arguments. He challenges the maintenance award on grounds
that the trial court erroneously determined his income as well as the amount and duration of
maintenance and improperly denied his motion to reconsider based upon newly discovered
evidence. Michael also argues that the trial court erroneously dismissed his motion to modify the
maintenance award, as he sufficiently pled a reduction in his income as the basis for modification
of the award. Michael further challenges the valuation and allocation of his partnership interest at
Winston & Strawn. He contends that the trial court erroneously construed the parties’ stipulation
as to the value of his capital account. And finally, Michael challenges the valuation and allocation
of the savings account titled in his name. He contests the valuation of the savings account as well
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2020 IL App (2d) 190480-Uthe trial court’s characterization of the account as marital property. We address each argument in
turn.
¶ 44 A. Maintenance Award
¶ 45 An award of maintenance in a dissolution proceeding is governed by section 504 of the Act
(750 ILCS 5/504 (West Supp. 2019)). The trial court “may grant a maintenance award for either
spouse in amounts and for periods of time as the court deems just ***.” 750 ILCS 5/504(a) (West
Supp. 2019). Section 504(a) of the Act sets forth a list of factors for the trial court to consider,
where relevant, in determining whether a maintenance award is appropriate. 750 ILCS 5/504(a)(1-
14) (West Supp. 2019). The factors include: (1) the income and property of each party, including
the marital property apportioned and the nonmarital property assigned to the party seeking
maintenance; (2) the parties’ needs; (3) the parties’ realistic present and future earning capacity;
(4) any impairment of the realistic present and future earning capacity of the party seeking
maintenance due to that party’s devotion of time to domestic duties or having forgone or delayed
education or training, employment, or career opportunities due to the marriage; (5) any impairment
of the realistic present or future earning capacity of the party against whom maintenance is sought;
(6) the time necessary to enable the party seeking maintenance to acquire appropriate education,
training, and employment, and whether that party is able to support himself or herself through
appropriate employment; (7) the standard of living established during the marriage; (8) the
duration of the marriage; (9) the age, health, station, occupation, amount and sources of income,
vocational skills, employability, estate, liabilities, and the needs of each party; (10) all sources of
public and private income, including, without limitation, disability and retirement income; (11) the
tax consequences to each party; (12) the contributions and services by the party seeking
maintenance to the education, training, career or career potential, or license of the other spouse;
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2020 IL App (2d) 190480-U(13) any valid agreement of the parties; and (14) any other factor that the trial court expressly finds
just and equitable. Id.¶ 46 A trial court’s award of maintenance is generally presumed to be correct. In re Marriage
of Brill, 2017 IL App (2d) 160604, ¶ 26. A maintenance award is a matter within the sound
discretion of the trial court and will not be reversed absent an abuse of discretion. Id. A trial court
abuses its discretion when its decision is arbitrary, fanciful, or unreasonable or where no
reasonable person would agree with its determination. Seymour v. Collins, 2015 IL 118432, ¶ 41.
The trial court’s factual findings regarding maintenance, such as the determination of a party’s
income, will be set aside only if the findings are against the manifest weight of the evidence. Brill,
2017 IL App (2d) 160604, ¶ 30; In re Marriage of Wojcik, 362 Ill. App. 3d 144, 153 (2005). A
finding of fact is against the manifest weight of the evidence where the opposite conclusion is
clearly evident or where the finding is unreasonable, arbitrary, or not based on the evidence. Brill,
2017 IL App (2d) 160604, ¶ 30.
¶ 47 1. Michael’s Income
¶ 48 Michael’s challenge to the maintenance award revolves primarily around his contention
that the trial court’s determination as to his income was against the manifest weight of the
evidence. 1 Michael argues that his compensation statements and unrefuted testimony established
that his only guaranteed income is his monthly draw and that his remaining compensation in the
form of annual distributions varies depending upon his originations, capital points, and the firm’s
1
While the trial exhibits reflect both annual and fiscal year compensation, the trial
testimony and the parties’ arguments are framed around Michael’s fiscal year compensation. We
likewise discuss Michael’s income by fiscal year.
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2020 IL App (2d) 190480-Uprofitability. The highest monthly draw Michael ever earned totaled $580,000 for fiscal year 2019.
Thus, Michael contends, the “[the trial court] incorrectly found that Michael’s yearly guaranteed
income averaged to $3.2 million, and improperly inflated that incorrect amount by further finding
in error that he would receive variable compensation in addition to the $3.2 million.” In other
words, Michael’s position is that the trial court found that Michael’s monthly draw, as well as his
annual distributions—comprising the majority of his compensation, are all guaranteed. The record
belies this assertion.
¶ 49 The trial court found in the dissolution judgment that Michael’s “income is averaged at
$3.2 [m]illion per year plus additional variable compensation that is not determinable at this time.”
The trial court consistently referred to Michael’s average annual income of $3.2 million. But, as
counsel for Michael acknowledged at oral argument, nowhere in the dissolution judgment did the
trial court state that Michael’s average annual income of $3.2 million was guaranteed. To the
contrary, the trial court recognized that despite Michael’s income over the last several years, “there
may be an anticipated decrease in [Michael’s] earnings due to a change in income earning structure
and a client acquisition.” Michael reads in the word “guaranteed” to the trial court’s finding as to
his average annual income by juxtaposing it with the trial court’s finding that Michael’s income
also included undeterminable, variable compensation. At oral argument, counsel for Michael
asserted that this was the only reasonable conclusion that could be drawn from the trial court’s
judgment. However, the finding as to Michael’s undeterminable and variable additional
compensation did not translate to a finding that Michael’s average income was guaranteed. Rather,
the point was that the trial court discounted what it considered to be additional undeterminable and
variable compensation in calculating the average amount of Michael’s income for the last several
years.
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2020 IL App (2d) 190480-U¶ 50 The trial court’s method of determining Michael’s income was entirely appropriate. In
situations where the payor spouse’s income varies from year to year, the trial court may average
the income over several years to determine the maintenance obligation. See In re Marriage of
Garrett, 336 Ill. App. 3d 1018, 1024-25 (2003); In re Marriage of Freesen, 275 Ill. App. 3d 97,
103 (1995). The maximum number of years to consider when income-averaging is within the
discretion of the trial court in light of the varying facts in each case, although “[a]t least the three
prior years should be used to obtain an accurate income picture.” Freesen, 275 Ill. App. 3d at 103.
This is precisely what the trial court did here. The trial court found that Michael’s income was
“conservatively averaged to $3.2[million] per year” based upon “the last several years and
discounting the substantial bonus Michael received in 2017.” This finding is based on the evidence
in the record. Michael’s compensation statements for the last four fiscal years reflect overall
compensation of $2.4 million in fiscal year 2015, $3.5 million in fiscal year 2016, $5 million in
fiscal year 2017, and $3.291 million in fiscal year 2018. Straight averaging of these figures yields
a sum of $3,547,750. The trial court “conservatively averaged” and discounted the bonus in 2017
in arriving at its finding that Michael’s average annual income was $3.2 million. Michael provides
no persuasive basis upon which to conclude that an opposite conclusion is clearly evident or that
the trial court’s finding is unreasonable, arbitrary, or not based on the evidence.
¶ 51 Michael nevertheless maintains that the trial court improperly denied his motion to
reconsider the dissolution judgment based upon newly discovered evidence as to his income. “The
purpose of a motion to reconsider is to bring to the trial court’s attention a change in the law, an
error in the trial court’s previous application of existing law, or newly discovered evidence that
was not available at the time of the prior hearing or decision.” See Horlacher v. Cohen, 2017 IL
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2020 IL App (2d) 190480-UApp (1st) 162712, ¶ 79. Where, as here, the motion to reconsider is based upon a claim of newly
discovered evidence, the standard of review is abuse of discretion. Id. ¶ 80.
¶ 52 Michael contends that his preliminary and final compensation statements for fiscal year
2019 and his compensation and capital report for fiscal year 2020, all of which post-dated the trial,
constituted newly discovered evidence of the significant reduction in his current income.
Specifically, the compensation statements reflected a total of $580,000 in income from his monthly
draw and overall compensation of $2.86 million for fiscal year 2019. The compensation and capital
report reflected the loss of 10 capital points for fiscal year 2020 and a reduction of his total monthly
draw from $580,000 to $380,000.
¶ 53 The trial court disagreed that the documents constituted newly discovered evidence
warranting rehearing. The trial court reasoned that it had already contemplated in the dissolution
judgment all factors raised in the reconsideration motion with respect to the issue of Michael’s
income. We cannot say that this determination was arbitrary, fanciful, or unreasonable or a
decision with which no reasonable person would agree. Newly discovered evidence must be
material and “so conclusive that it would probably change the trial result.” In re Marriage of Wolff,
355 Ill. App. 3d 403, 409 (2005). Michael testified at trial regarding the anticipated reduction in
his income. Indeed, he acknowledges as much in arguing on appeal that the fiscal year 2019
compensation statements and fiscal year 2020 compensation and capital report “fully supported
[his] trial testimony that his compensation had declined and will continue to decline in comparison
to prior years.” Michael testified that the client for which he received significant origination credit
in fiscal year 2017 was acquired by his partner’s client. Michael and his partner now split the
origination credit, thereby decreasing Michael’s overall compensation. Michael further testified
that while he had 25 points at the time of trial, “it’s already been made known to me that I’m not
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2020 IL App (2d) 190480-Ugoing to be eligible for a bonus” and that “it’s been hinted that I’m going to be losing a couple of
points.” He stated that he was “hoping” to lose only two points but was not certain as to the number
of points that might be taken away. He further estimated that his fiscal year 2019 compensation
would decline by a million dollars.
¶ 54 A review of the dissolution judgment reflects the trial court’s explicit consideration of
Michael’s testimony regarding the anticipated reduction in his income. The trial court noted with
respect to Michael’s income that the “compensation system has changed at Michael’s employer
and he now shares one of his client’s receivables with a senior partner due to a client acquisition.”
In discussing Michael’s future earning capacity, the trial court reiterated that while Michael has
consistently earned in excess of $3 million over the last several years, “there may be an anticipated
decrease in earnings due to a change in income earning structure and a client acquisition.”
Accordingly, Michael failed to establish that the evidence was material and so conclusive that it
would have changed the trial result. Thus, the trial court did not abuse its discretion in denying
Michael’s motion to reconsider the dissolution judgment based upon his claim of newly discovered
evidence as to his income.
¶ 55 Michael’s argument that the trial court erroneously failed to reopen proofs to include the
fiscal year 2020 compensation and capital report fares no better. Initially, we note that Michael’s
request to reopen proofs is subject to forfeiture, as he raised it for the first time in his reply brief
in support of his motion to reconsider. See Shakari v. Department of Financial & Professional
Regulation, 2018 IL App (1st) 170285, ¶ 34 (“Arguments raised for the first time in a reply brief
are [] subject to forfeiture.”). However, Cristie did not argue that Michael forfeited the issue by
failing to raise it in the initial motion. See People v. De La Paz, 204 Ill. 2d 426, 433 (2003) (a party
may forfeit a forfeiture argument by failing to argue it). Moreover, there was no dispute that the
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2020 IL App (2d) 190480-Ufiscal year 2020 compensation and capital report—the subject of the request to reopen proofs—
was not available until Michael filed his reply brief. We therefore address the issue.
¶ 56 The factors to consider in determining whether to reopen proofs are whether the moving
party has provided a reasonable excuse for failing to submit the evidence at trial, whether granting
the motion would result in surprise or unfair prejudice to the opposing party, and whether the
evidence is of the utmost importance to the movant’s case. In re Estate of Bennoon, 2014 IL App
(1st) 122224, ¶ 55. Greater liberty should be accorded to reopening proofs in bench trials. Id. We
review the denial of a motion to reopen proofs for an abuse of discretion. Id. ¶ 54. “A trial court
does not abuse its discretion in denying a motion to reopen proofs where the evidence sought to
be introduced is not of utmost importance and will not materially alter the trial court’s judgment.”
In re Marriage of Liszka, 2016 IL App (3d) 150238, ¶ 64.
¶ 57 In resolving Michael’s motion to reconsider, the trial court did not explicitly address
Michael’s alternative request to reopen proofs although its rationale for denying reconsideration
based upon the claim of newly discovered evidence applies with equal force. Michael failed to
establish that the fiscal year 2020 compensation and capital report was of utmost importance to his
case. As set forth above, Michael testified regarding the anticipated reduction in his income for
fiscal year 2020 and acknowledged the looming reduction in his points. The trial court explicitly
considered Michael’s testimony regarding the anticipated reduction in his income. Accordingly,
there is no basis upon which to hold that the trial court should have granted Michael’s request to
reopen proofs to include the fiscal year 2020 compensation and capital report, as the record
establishes that the evidence would not have altered the trial court’s judgment.
¶ 58 2. Amount and Duration of Maintenance
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2020 IL App (2d) 190480-U¶ 59 Michael maintains a challenge to the amount and duration of the maintenance award. He
argues that the amount of the maintenance award, which was reduced to $23,000 per month upon
reconsideration, and its duration of 15 years and nine months were unreasonable based upon the
evidence submitted at trial. If the trial court determines that an award of maintenance is
appropriate, then the trial court must set the amount and duration of maintenance. 750 ILCS
5/504(b-1) (West Supp. 2019). Where, as here, the parties’ combined gross annual income exceeds
$500,000, the statutory guidelines governing the amount and duration of maintenance do not apply,
and the trial court may impose an award of maintenance after consideration of the relevant
statutory factors set forth in section 504(a) of the Act. 750 ILCS 5/504(a), (b-1)(2) (West Supp.
2019).
¶ 60 Michael argues that the maintenance award amounted to a windfall to Cristie in light of the
assets she received in the dissolution judgment and the income she could earn from investing the
liquid assets. However, “[a] party should not be required to expend [his or] her assets in order to
live at something approximating the standard of living enjoyed during the marriage.” In re
Marriage of Hamilton, 2019 IL App (5th) 170295, ¶ 104. The record demonstrates that the trial
court considered the marital property apportioned to Cristie in setting the amount of maintenance.
¶ 61 Michael nevertheless contends that the maintenance award was unreasonably high in light
of Cristie’s inflated monthly expenses and the testimony that the parties’ lifestyle during the
marriage was merely comfortable. Maintenance is designed to allow the recipient spouse to retain
the standard of living enjoyed during the marriage. In re Marriage of Micheli, 2014 IL App (2d)
121245, ¶ 24. “ ‘A spouse should not be required to lower the standard of living established in the
marriage as long as the payor spouse has sufficient assets to meet his [or her] needs and the needs
of his [or her] former spouse.’ ” In re Marriage of Shen, 2015 IL App (1st) 130733, ¶ 87 (quoting
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2020 IL App (2d) 190480-UIn re Marriage of Walker, 386 Ill. App. 3d 1034, 1044 (2008)). While the record reflects that the
trial court found Cristie’s stated monthly expenses to be inflated, the record also demonstrates that
the trial court considered as much in determining the amount of the maintenance award. Moreover,
the trial court reviewed the evidence with respect to what it found to be an elevated standard of
living established during the marriage and awarded maintenance in an amount “as necessary to
maintain the lifestyle the parties were accustomed to during the marriage including the ability to
save for retirement.” In this regard, the trial court noted the $2.2 million value of the parties’
marital home with monthly household expenses of approximately $30,000. The trial court also
noted the parties’ comfortable vacations, the purchase of a BMW for their son, the ability to pay
for their daughter’s college tuition, and the ability to save considerable money for retirement.
Michael fails to identify any persuasive basis upon which to challenge the amount of the
maintenance award.
¶ 62 Michael also challenges the 15-year, nine-month duration of the maintenance award. We
note that while the statutory guidelines set forth in the Act did not apply in light of the amount of
the parties’ combined gross annual income, the trial court essentially set the duration of the
maintenance award at the statutory guideline amount of 80% of the length of the marriage (which
was 19 years and eight months at the time the dissolution petition was filed). See 750 ILCS
5/504(b-1)(1)(B) (West Supp. 2019). Michael contends that the duration was unreasonable in light
of his testimony that he planned to retire at the age of 55—approximately five years after the date
of the dissolution judgment. He argues that the trial court should have made the maintenance award
reviewable at the contemplated time of his retirement. However, the purpose of reviewable
maintenance is to allow the trial court to reserve jurisdiction over an award of maintenance “to
encourage a spouse to become self-sufficient while providing the court with an opportunity to
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2020 IL App (2d) 190480-Ureview the award at the end of a fixed period to determine what efforts the spouse has made toward
achieving this objective and whether those efforts have been successful.” In re Marriage of
Pearson, 236 Ill. App. 3d 337, 348 (1992). Here, while Cristie was not employed at the time of
trial, the trial court imputed income in the amount of $229,550 to Cristie. Michael never articulated
any need to reserve jurisdiction to review Cristie’s efforts at self-sufficiency under these
circumstances. In sum, the record establishes no basis upon which to hold that the trial court abused
its discretion in determining the amount and duration of the maintenance award. In turn, the trial
court properly denied Michael’s motion for reconsideration on this issue, as it raised essentially
the same argument.
¶ 63 B. Motion to Modify Maintenance
¶ 64 Maintenance may be modified by a court pursuant to section 510(a)(1)(a-5) of the Act (750
ILCS 5/510(a)(1)(a-5) (West Supp. 2019)) only upon a showing of a substantial change in
circumstances. A substantial change of circumstances as required under the statute means that
either the needs of the spouse receiving maintenance or the ability of the other spouse to pay the
maintenance has changed. Shen, 2015 IL App (1st) 130733, ¶ 132. The party seeking modification
bears the burden of establishing a substantial change in circumstances. Id. The statute sets forth
factors for the trial court to consider in resolving a petition to modify maintenance, including “the
increase or decrease in each party’s income since the prior judgment or order from which a review,
modification, or termination is being sought.” 750 ILCS 5/510(a-5)(7) (West Supp. 2019). The
statute also instructs that the trial court shall consider the factors set forth in section 504(a)(1-14)
of the Act that were assessed in determining the initial award. 750 ILCS 5/504(a-5) (West Supp.
2019)). A trial court’s ruling on a petition for modification of maintenance will not be reversed
absent an abuse of discretion. Shen, 2015 IL App (1st) 130733, ¶ 135.
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2020 IL App (2d) 190480-U¶ 65 However, the trial court did not rule on a petition for modification of maintenance. Rather,
it granted Cristie’s motion to strike and dismiss Michael’s motion to modify maintenance pursuant
to section 2-615. We review the procedural posture to place the scope of our review in context.
The trial court’s written order following its ruling at the hearing on Cristie’s motion to strike and
dismiss Michael’s motion to modify maintenance stated that it granted Cristie’s motion pursuant
to section 2-615 and “dismissed” the motion to modify maintenance. But the relief Cristie sought
pursuant to section 2-615 was to strike the motion as factually insufficient; the relief she sought
pursuant to section 2-619 was to dismiss the motion for lack of jurisdiction. While not addressed
by the trial court or the parties on appeal, we note that the trial court had jurisdiction to entertain
Michael’s motion to modify maintenance notwithstanding his pending appeal of the dissolution
judgment and the order disposing of his reconsideration. See In re Marriage of Petramale, 102 Ill.
App. 3d 1049, 1052-53 (1981) (holding that the trial court had jurisdiction to hear a petition to
modify an award of child support while an appeal from the original order of support was pending).
In any event, the record demonstrates that the trial court dismissed Michael’s motion to modify
maintenance on grounds that it was factually insufficient pursuant to section 2-615, and we review
that ruling.
¶ 66 A dismissal motion premised upon section 2-615 challenges the legal sufficiency of the
complaint based upon defects apparent on its face. Wilson v. County of Cook, 2012 IL 112026, ¶
14. The critical inquiry in resolving a section 2-615 motion to dismiss is whether the allegations
in the pleading, considered in the light most favorable to the plaintiff, are sufficient to state a cause
of action upon which relief may be granted. Id. A cause of action will be dismissed pursuant to
section 2-615 “only if it is clearly apparent that no set of facts can be proved that would entitle the
plaintiff to relief.” Id. We review de novo an order granting a section 2-615 motion to dismiss. Id.- 29 -
2020 IL App (2d) 190480-U¶ 67 Michael contends that he sufficiently pled a cause of action for modification of the
maintenance award based upon a substantial change of circumstances, namely, the decrease in his
income subsequent to entry of the dissolution judgment. See 750 ILCS 5/510(a-5)(7) (West Supp.
2019). He alleged that his total compensation decreased from $3.291 million in fiscal year 2018 to
$2.86 million in fiscal year 2019; he lost 10 capital point in fiscal year 2020; and the total annual
amount of his monthly draw decreased from $580,000 in fiscal year 2019 to $380,000 in fiscal
year 2020. In dismissing Michael’s motion to modify maintenance, the trial court found his request
“a little bit preemptive and anticipatory” and reasoned, “I don’t see a substantial change at this
point.” We agree. Indeed, these were the same arguments that Michael raised in his motion to
reconsider the dissolution judgment. As discussed, the dissolution judgment demonstrates the trial
court’s explicit consideration of Michael’s testimony regarding the anticipated reduction in his
income and loss of capital points. Accordingly, considering the allegations in the light most
favorable to Michael, he failed to state a cause of action for modification based upon a substantial
change in circumstances. The trial court, therefore, properly dismissed his motion to modify
maintenance pursuant to section 2-615.
¶ 68 C. Valuation and Allocation of Partnership Interest
¶ 69 The trial court “shall divide the marital property *** in just proportions considering all
relevant factors.” 750 ILCS 5/503(d) (West Supp. 2019). Thus, in apportioning marital assets, the
trial court must initially establish the value of the property. In re Marriage of Cutler, 334 Ill. App.
3d 731, 736 (2002). While the trial court’s ultimate distribution of marital property is reviewed
under the abuse-of-discretion standard of review (see In re Marriage of Hamilton, 2019 IL App
(5th) 170295, ¶ 34), the trial court’s determination as to the value of marital assets is reviewed
under the manifest-weight-of-the-evidence standard of review (see In re Marriage of Vancura,
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2020 IL App (2d) 190480-U356 Ill. App. 3d 200, 203 (2005)). Here, the trial court’s valuation of Michael’s partnership interest
was based upon the parties’ stipulation as to Michael’s capital account. Illinois courts look
favorably upon stipulations that simplify issues and promote disposition of cases. In re Marriage
of Evanoff, 2016 IL App (1st) 150017, ¶ 28. Stipulations will be enforced unless there is a showing
that the stipulation is unreasonable, violative of public policy, or the result of fraud. Id.; see also
In re Marriage of Dunlop, 294 Ill. App. 3d 768, 776-77 (1998) (when the parties to a dissolution
proceeding stipulate to the value and division of marital property, that agreement is binding upon
the court unless found to be unconscionable under the Act). A trial court’s decision to accept the
parties’ stipulation will not be reversed unless it is an abuse of discretion. In re Marriage of
Tantiwongse, 371 Ill. App. 3d 1161, 1163 (2007).
¶ 70 Michael, however, does not challenge the enforceability of the stipulation. Rather, he likens
the stipulation to a contract and contends that the trial court erred as a matter of law in construing
its plain language. Thus, he contends, the appropriate standard of review is de novo. See Gallagher
v. Lenart, 226 Ill. 2d 208, 219 (2007) (the construction of a contract presents a question of law
subject to de novo review). “A stipulation, although lacking some of the formal requisites of a
contract, is an agreement between the parties.” People v. One 1999 Lexus, VIN
JT8BH68X2X0018305, 367 Ill. App. 3d 687, 692 (2006). Therefore, like a contract, a stipulation
must be interpreted according to the parties’ intent. Id. The plain and ordinary meaning of the
contract language is the best indication of the parties’ intent. Gallagher, 226 Ill. 2d at 233. A
contract must be construed as a whole, viewing each part in light of the others, as words derive
their meaning from the context in which they are used. Id.¶ 71 Michael contends that the entirety of the stipulation reflects the parties’ intent to agree that
his partnership interest had no present value. He argues that paragraph two of the stipulation
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2020 IL App (2d) 190480-Uconsists of five interrelated sentences that must be construed as a whole. We turn to those five
sentences. The first sentence sets forth the parties’ agreement that “the value of Michael’s
partnership interest with Winston & Strawn, to the extent it has a value at present, is limited to at
most the balance in his capital account.” The second sentence incorporates as an exhibit a provision
of Michael’s partnership agreement governing the capital of the partnership and reflects the
parties’ agreement that Michael’s entitlement to a reimbursement of his “then present capital
account balance, if any” upon his death, disability, or withdrawal from the firm is “subject to the
remaining terms of the Partnership Agreement.” The third sentence sets forth the parties’
agreement that “[a]t present Michael is not eligible to receive a payout from this capital account
and the value of it in the future, if, as and when it is disbursed, has not yet been determined.” The
fourth sentences states: “Both parties also stipulate that the present value of Michael’s the [sic]
capital account held at Winston & Strawn is in the amount of $600,000.” The final sentence
incorporates as an exhibit an internal firm email confirming that the balance of Michael’s capital
account is $600,000.
¶ 72 There is simply no language reflecting an intent to stipulate that the partnership had no
present value, as Michael contends. Instead, the language of the stipulation reflects an intent to
agree to cap the value of the capital account at its present balance of $600,000. This is exactly
what the first sentence states—any value “is limited to at most the balance in his capital account.”
The qualifying “if any” language in the second sentence refers to the balance of the capital account
at the time of death, disability, or withdrawal from the firm. The paragraph concludes in no
uncertain terms with the stipulation that “the present value” of Michael’s capital account is
$600,000, reflecting the $25,000 he paid into the capital account over time for each of his 24
variable points. Thus, the entirety of the stipulation reflects the parties’ intent to agree that the
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2020 IL App (2d) 190480-Umaximum value of Michael’s partnership interest is limited to its present balance of $600,000 in
his capital account. Accordingly, the trial court properly interpreted the stipulation in valuing the
capital account at $600,000.
¶ 73 In contradiction to his argument that we should rely upon the plain language of the
stipulation, Michael nevertheless argues that his unrefuted testimony established that his
partnership interest has no present value and that any future value is a mere expectancy. Thus,
Michael contends, his partnership interest was not property subject to allocation.
¶ 74 In support, Michael cites In re Marriage of Centioli, 335 Ill. App. 3d 650 (2002), and In re
Marriage of Eddy, 210 Ill. App. 3d 450 (1991). These cases are inapposite. The issue in Centioli
was whether a spouse may be enjoined from removing the other spouse as the beneficiary of an
inter vivos revocable trust during the pendency of a dissolution of marriage proceeding. 335 Ill.
App. 3d at 652. The court held that the injunction was not warranted because the beneficial interest
in the trust was not a clearly ascertainable right. Id. at 656. Rather, the interest was “but a mere
expectancy.” Id. To be “property” under the Act, the res must be “ ‘in the nature of a present
property interest, rather than a mere expectancy interest.’ ” Id. (quoting In re Marriage of
Weinstein, 128 Ill. App. 3d 234, 244 (1984)). The issue in Eddy was the propriety of considering
a spouse’s eligibility to receive a portion of a trust as a current asset. 210 Ill. App. 3d at 459-461.
In holding that the trial court erred in apportioning the eligible interest, the court reasoned that
“[p]otential inheritances, just as expected degrees or licenses, are not property which can be valued
or awarded to a spouse, although they can be given some consideration in determining property
distribution.” Id. at 460.
¶ 75 The value of Michael’s capital account does not amount to a mere expectancy interest as
does a potential inheritance or the beneficial interest in an inter vivos revocable trust. To the
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2020 IL App (2d) 190480-Ucontrary, the parties stipulated to the value of the capital account. Moreover, the trial court’s
valuation of the capital account was supported by the record. The valuation of the capital account
at $600,000 was a straightforward calculation of the $25,000 Michael had paid into his capital
account during the marriage for each of his 24 variable points.
¶ 76 Alternatively, Michael contends that the capital account should be treated like an unvested
retirement asset pursuant to the formula set forth in In re Marriage of Hunt, 78 Ill. App. 3d 653(1979). In Hunt, the court set forth the “reserved-jurisdiction approach” to dividing unmatured
pension interests, pursuant to which the employee spouse pays the nonemployee spouse a pro rata
share “if, as, and when the pension plan becomes mature.” Id. at 663. The approach is appropriate
when it is simply too difficult to assign a present value to the marital interest in the pension. See
In re Marriage of Richardson, 381 Ill. App. 3d 47, 54 (2008). Here, however, it was not difficult
for the trial court to assign a present value to the capital account. The parties’ stipulation provided:
“Both parties also stipulate that the present value of Michael’s the [sic] capital account held at
Winston & Strawn is in the amount of $600,000.” Accordingly, the trial court’s valuation of the
capital account at $600,000 was not against the manifest weight of the evidence, and its division
between the parties was not an abuse of discretion. The trial court also properly denied Michael’s
motion for reconsideration on this issue, as it raised essentially the same argument.
¶ 77 D. Valuation and Allocation of Savings Account
¶ 78 Just as the trial court’s determination as to the value of marital assets is reviewed under the
manifest-weight-of-the-evidence standard of review (see Vancura, 356 Ill. App. 3d 200 at 203),
the trial court’s characterization of assets as marital or nonmarital will be reversed only it if is
against the manifest weight of the evidence (see In re Marriage of McBride, 2013 IL App (1st)
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2020 IL App (2d) 190480-U112255, ¶ 24). As discussed, the trial court’s ultimate distribution of marital property is reviewed
under the abuse-of-discretion standard of review (see Hamilton, 2019 IL App (5th) 170295, ¶ 34).
¶ 79 Initially, Michael contends that the trial court’s characterization of the savings account
titled in his name as marital property was against the manifest weight of the evidence because it
was inconsistent with the trial court’s characterization of three other accounts as nonmarital
property. We will refer to the savings account at issue (titled in Michael’s name with a balance of
$558,158.68 as of October 31, 2018) as “account number one.” The three other accounts were:
“account number two” (titled in Michael’s name with a balance of $67,688.55 as of October 31,
2018); “account number three” (titled in Michael’s name with a balance of $223,446.83 as of
October 31, 2018); and “account number four” (titled in Cristie’s name with a balance of
$52,936.25 as of October 17, 2018).
¶ 80 In his written closing argument, Michael asserted that account numbers one and two were
his nonmarital property because “the income allocated to him pursuant to the December 1, 2017[,]
[o]rder [for temporary support and maintenance] is partly deposited into said account[s].” He
asserted that account number three was his nonmarital property because “it possesses the funds
received from the $250,000 pre-distribution granted by this [c]ourt on May 10, 2018.” (Recall that
the May 10, 2018, order granted Cristie’s petition for temporary allocation of expenses and
awarded Cristie and Michael each $250,000 as an advance on their interest in the marital estate).
In Cristie’s written closing argument, she asserted that account number four was her nonmarital
property because it included her temporary maintenance payments and her $250,000 pre-
distribution from the May 10, 2018, order.
¶ 81 The trial court found all of the accounts to be nonmarital except Michael’s account number
one. As noted, the trial court found account number one to be marital property and valued it at
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2020 IL App (2d) 190480-U$558,158.68—the balance set forth in the October 31, 2018, account statement. The trial court
therefore allocated $279,079.34 to Michael and $279,079.34 to Cristie.
¶ 82 Michael contends that account number one should have been characterized as nonmarital
property because “no evidence supported the [c]ourt’s inconsistent treatment of these four
accounts, where the identical arguments were made as to each claim they were nonmarital.”
However, the arguments were not identical. With respect to accounts that held sums from the
parties’ respective advances on the marital estate pursuant to the May 10, 2018, order, the parties
asserted that those accounts were nonmarital.
¶ 83 In contrast, with respect to account number one, Michael asserted that it was nonmarital
because “the income allocated to him pursuant to the December 1, 2017[,] [o]rder [for temporary
support and maintenance] is partly deposited into said account.” In the December 1, 2017, agreed
order, the trial court ordered that, beginning January 1, 2018, Michael pay Cristie monthly
temporary maintenance in the amount of $11,593 and monthly temporary child support in the
amount of $1,301. But the order contains no provision that Michael’s subsequently earned income
should be considered nonmarital property. Michael simply provides no compelling argument upon
which to challenge the trial court’s characterization of account number one as marital property.
Accordingly, we cannot say that the trial court’s characterization of account number one as marital
property was against the manifest weight of the evidence.
¶ 84 Michael also challenges the date of the trial court’s valuation of account number one. He
contends that the trial court should have valued the account at $208,158.68 pursuant to its balance
as of November 7, 2018, not at $558,158.68 pursuant to its balance as of October 31, 2018. We
disagree.
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2020 IL App (2d) 190480-U¶ 85 In Michael’s proposed allocation of assets submitted as an exhibit to his written closing
argument, he cited exhibit 40 with respect to the allocation of account number one and noted the
value of the account as $558,158.68. Exhibit 40 was the October 31, 2018, statement for account
number one, reflecting a balance of $558,158.68. In his motion for reconsideration, he pointed out
that he had also submitted as an exhibit at trial a November 7, 2018, account statement for account
number one, reflecting a balance of $208,158.68. His position was that the funds were withdrawn
to pay unallocated tax liability for 2018. However, in addition to the lack of sufficient evidence at
trial to substantiate the use of the funds, Michael acquiesced in the trial court’s reliance upon the
October 31, 2018, balance by relying upon the exhibit in his written closing argument. He is thus
precluded from now raising the argument that the trial court should have relied upon the November
7, 2018, balance. See Gaffney v. Board of Trustees of the Orland Fire Protection District, 2012 IL
110012, ¶ 33 (a party may not request to proceed in one manner and then contend on appeal that
the requested action was error).
¶ 86 Accordingly, the trial court’s characterization of account number one as marital property
and its valuation of the account at $558,158.68 were not against the manifest weight of the
evidence, and its division between the parties was not an abuse of discretion. The trial court, in
turn, properly denied Michael’s motion for reconsideration on this issue.
¶ 87 III. CONCLUSION
¶ 88 For the foregoing reasons, we affirm the judgment of the circuit court of Kane County.
¶ 89 Affirmed.
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