In re Marriage of Anders

2020 IL App (2d) 190326-UNo. 2-19-0326
Order filed January 31, 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
SUZANNE A. ANDERS, ) of Lake County.
)
Petitioner/Counter-Respondent-
Appellee, )
)
and ) No. 11-D-2416
)
BRIAN S. ANDERS, )
) Honorable
Respondent/Counter-Petitioner- ) Vorderstrasse, Donna-Jo R.,
Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE JORGENSEN delivered the judgment of the court.
Justices McLaren and Hutchinson concurred in the judgment.
ORDER
¶1 Held: The trial court acted within its discretion in awarding 6.5% interest on the ex-wife’s
$5.3 million dissolution property award upon affirmance of the first appeal. When
granting the ex-husband’s motion to stay the judgment pending this court’s ruling
on the first appeal, the trial court noted that it would award some amount of interest
in exchange for granting the stay and, in fact, the ex-husband had offered to post a
bond exceeding the property award amount to cover both that amount and the
anticipated interest.
¶2 In the underlying dissolution action, the trial court awarded respondent/counter-petitioner-
appellant, Brian S. Anders, approximately $10.6 million, and it awarded petitioner/counter-
2020 IL App (2d) 190326-Urespondent-appellee, Suzanne A. Anders, approximately $5.3 million. Brian moved to stay
payment of Suzanne’s property award pending appeal. In arguing for the stay, Brian offered to
post a bond of $5.5 million, “which would cover the cost and amount of the judgment, including
any anticipated interest.” The trial court granted the stay, agreeing with Brian that discretionary,
as opposed to mandatory, interest was appropriate. It set the bond amount at $5.65 million, which
included anticipated interest of approximately $345,000, and it noted its expectation that “this
could go on longer [than one year].” More than two years later, after this court affirmed the
property award and the supreme court denied Brian’s petition for leave to appeal, the mandate
issued. Within days of the mandate, Suzanne moved for, and the trial court ordered, the
disbursement of the $5.3 million award. The court also ordered the parties to brief the issue of
interest, and, after entertaining argument, awarded Suzanne approximately $775,000 in interest,
representing 6.5% discretionary interest over the 27-month duration of the appeal. Brian appeals,
raising issues of law of the case, res judicata, and the court’s general authority to award interest.
For the reasons that follow, we reject Brian’s arguments, and we affirm.
¶3 I. BACKGROUND
¶4 A more detailed history of the parties’ legal disputes may be found in In re Marriage of
Anders, 2018 IL App (2d) 170216-U (modified upon denial of rehearing, Aug. 1, 2018). For the
purposes of the instant appeal, it is enough to know the following.
¶5 On August 30, 2016, the trial court entered the dissolution judgment. It awarded Brian
$10.6 million and Suzanne $5.3 million, in addition to real and personal property awards. Brian
was to pay Suzanne $5.3 million from an account he controlled within 60 days.
-2-
2020 IL App (2d) 190326-U¶6 On September 8, 2016, Brian filed a notice of appeal and moved to stay the judgment
pursuant to Illinois Supreme Court Rule 305 (eff. July 1, 2017), offering to post the full $5.3
million award as bond. Brian’s motion to stay pertained only to the $5.3 million award.
¶7 On September 22, 2016, the court heard argument on the motion to stay. Brian opened by
offering a bond amount in excess of the $5.3 million award: “We have filed a motion to stay and
are willing to post a bond of [$5.5 million] which would cover the cost and amount of the judgment,
including any anticipated interest.” (Emphasis added.) The proposed bond amount of $5.5 million
included $200,000 in interest at a rate of just under 4% per annum, assuming the appeal lasted one
year. Suzanne responded that the bond amount should reflect a higher interest rate, noting that
section 2-1303 of the Code of Civil Procedure instructed an interest rate of 9% per annum from
the date of the judgment until satisfied. 735 ILCS 5/2-1303 (West 2018). Brian replied that Rule
305 did not require the full 9% interest, and a property award in divorce proceedings is not a
section 2-1303 money judgment. Rather, he urged, in fashioning the bond amount, the court
should include an interest rate that is likely sufficient to compensate the appellee for being denied
access to the funds for the duration of the appeal: “[T]he anticipated interest is the value of the
money that is lost by use of the judgment holder.” Brian stated that the Treasury bond rate, then
at 2%, was a sound reference point, but acknowledged that he had earlier suggested 4%.
¶8 The trial court essentially agreed with Brian. The $5.3 million at issue was a property
award, not a money judgment. Therefore, the 9% interest rate was not “appropriate.” In setting
the bond amount, the anticipated interest on the award should equal “the loss of those monies to
invest over a period of time that you estimate for the appeal to be done.” The court ordered a bond
amount of $5.65 million, $150,000 more than Brian had suggested, and it warned that the appeal
could take more than one year.
-3-
2020 IL App (2d) 190326-U¶9 At the end of the hearing, Suzanne noted that she still wished to file a motion to reconsider
other aspects of the judgment. Less than 30 days had passed since the judgment. The trial court
clarified that Suzanne could move to reconsider, but that would render Brian’s notice of appeal
premature. Nevertheless, the stay and bond order would remain in place as to the $5.3 million
award, should Brian pursue the appeal. Brian could submit the appropriate letter of credit at that
time.
¶ 10 On September 28, 2016, Suzanne moved to reconsider other aspects of the judgment not
relevant here. On March 2, 2017, the court granted Suzanne’s motion, modifying certain aspects
of the judgment, but not the $5.3 million award. On March 17, 2017, Brian filed a notice of appeal.
He did not submit the letter of credit necessary to secure the bond to stay payment of the award
pending appeal, nor did he pay the $5.3 million award.
¶ 11 Between March 3, 2017, and August 7, 2017, Suzanne sought, and Brian fought against,
the reduction of the $5.3 million award to a money judgment. On August 2, 2017, the trial court
ordered that, should Brian fail to submit a proposed letter of credit to secure his bond within two
days, it would entertain Suzanne’s motion to reduce the $5.3 million award to a money judgment.
Brian complied with the order, resolving the dispute for the time being. The letter of credit and
the appeal bond it secured was for $5.65 million.
¶ 12 On July 5, 2018, this court affirmed the judgment, including the $5.3 million award. (On
August 1, 2018, we entered a modified order upon denial of rehearing, but this did not affect the
$5.3 million award.) On January 4, 2019, the appellate mandate issued to the circuit court clerk.
¶ 13 On January 15, 2019, Suzanne moved the trial court to order the circuit clerk to disburse
her award. On January 28, 2019, the court ordered that the clerk draw on the letter of credit, that
the entire $5.65 million be deposited with the clerk, that the clerk disburse $5.3 million to Suzanne,
-4-
2020 IL App (2d) 190326-Uand that the clerk reserve the remaining $345,000, pending a determination of the proper interest
amount.
¶ 14 On February 4, 2019, Suzanne moved to set interest on the $5.3 million property award,
given that she had been denied access to the funds for 27 months. She again argued for a 9%
interest rate, which, over 27 months, would amount to approximately $1.075 million in interest.
She first argued that the court should award mandatory interest pursuant to section 2-1303 (735
ILCS 5/2-1303). Suzanne argued in the alternative that, should the court award discretionary
interest, a 9% rate was, nevertheless, appropriate and equitable. Over the prior 27 months, Brian
had access to the marital estate’s entire $16 million in funds. He lived a lavish lifestyle during this
time, vacationing around the world via private plane and yacht. (Not only did Brian have extensive
funds, but so did his other family members; his father bought him a house.) In contrast, Suzanne
did not have access to her $5.3 million property award, lost investment opportunities, and had to
take out a lien on her home to pay her legal fees during the appeal. Suzanne noted that, if the court
did not increase the $345,000 amount that it had already set aside to account for anticipated
interest, then, the interest rate would amount to only 2.8%.
¶ 15 On February 25, 2019, Brian responded. He argued that interest, if appropriate, was at
best discretionary, not mandatory. Further, Brian argued that, here, interest was not appropriate.
Brian argued that the law-of-the-case and res judicata doctrines precluded an interest award,
because neither the trial court’s August 30, 2016, judgment, the trial court’s March 2, 2017,
modified judgment, nor this court’s 2018 appellate disposition addressed the question of
discretionary interest. “Because Suzanne had an opportunity to appeal that issue of [the trial]
court’s not having awarded her discretionary interest, but did not do so, and therefore that issue is
closed and now law of the case, waived, and cannot now be revisited by [the trial court] on
-5-
2020 IL App (2d) 190326-Uremand.” Brian contended that to award interest at this point would be a violation of his due-
process rights, because he was never afforded the opportunity to be heard on the issue.
¶ 16 On April 10, 2019, the trial court conducted a hearing. It ruled as follows. First, citing
Finley v. Finley, 81 Ill. 2d 317, 332 (1980), the court determined that interest on the marital
property award was discretionary. In this case, it had already determined at the September 22,
2016, hearing that some amount of interest would be appropriate in exchange for staying payment
of the award. It did not believe the interest rate should be as high as 9%, the section 2-1303
statutory rate, because that rate applied to delinquent judgments and was punitive in nature. Here,
Brian had a right to appeal and was permitted to stay the distribution of the award, which was not,
as of yet, delinquent. However, the court believed that a rate greater than the rate of Treasury
bonds was warranted. Suzanne lost an opportunity to invest during a 27-month period when the
Standard and Poor’s Index (S & P) performed at 13%. Not only did Suzanne lose the opportunity
to invest, but she could not draw from her property award to pay for legal fees, and she had to take
out a loan at a rate of 5.5% to pay her legal fees. Thus, the court determined that 6.5% was an
equitable interest rate under the circumstances. This resulted in a total interest award of
$774,839.52. Of that, $345,000 was held by the clerk and could be distributed immediately. The
remaining $430,000 was to be paid within 30 days. Should Brian fail to pay the remaining
$430,000 within 30 days, then he would owe interest on the delinquent amount at a rate of 9%.
This appeal followed.
¶ 17 II. ANALYSIS
¶ 18 On appeal, Brian devotes six pages of his brief to Finley and its progeny to show that
interest on marital property awards is discretionary, not mandatory. The trial court agreed with
Brian on this point, and Suzanne does not raise the issue on appeal. Therefore, we do not discuss
-6-
2020 IL App (2d) 190326-Uthe issue. Next, Brian argues: (1) the law-of-the-case and res judicata doctrines preclude an award
of discretionary interest, because neither the March 2, 2017, appealed-from judgment nor this
court’s 2018 appellate ruling mentioned discretionary interest; (2) Rule 305 does not allow for the
post hoc awarding of interest; (3) the trial court lost jurisdiction of the case when Brian appealed
the March 2, 2017, order modifying judgment; (4) the post hoc awarding of interest violates
Brian’s due process rights; and (5) the trial court improperly awarded “interest upon interest” when
it ordered that an interest rate of 9% would apply to late payment of the remaining $430,000 owed.
Brian’s arguments raise questions of law, which we review de novo. See, e.g., Jayko v. Fraczek,
2012 IL App (1st) 103665, ¶ 3; see also Chamberlain v. Civil Service Com’n of Village of Gurnee,
2014 IL App (2d) 12125, ¶ 25 (procedural due process claims are reviewed de novo).
¶ 19 Before we address Brian’s arguments, we first note what he does not argue and what he
does not address. Brian does not challenge the reasonableness of the 6.5% interest rate, provided
interest is appropriate. Indeed, given the trial court’s reasons for issuing the 6.5% rate—an S & P
performance of 13% and Suzanne’s need to take out loans—Brian would be hard pressed to do so.
¶ 20 Also, Brian does not discuss the September 22, 2016, proceedings, wherein the trial court
ordered that some amount of interest on the property award would be awarded, should a stay be
granted. Instead, Brian casually mentions the $5.65 bond amount without acknowledging that a
portion of that amount included interest on the property award, offered by Brian himself as a means
to secure the stay. “We have filed a motion to stay and are willing to post a bond of [$5.5 million]
which would cover the cost and amount of the judgment, including any anticipated interest.”
(Emphasis added.)
¶ 21 We find this omission troubling. Because Brian offered to pay interest on the property
award to secure the stay, which was ultimately granted, it would be within our discretion to reject
-7-
2020 IL App (2d) 190326-UBrian’s arguments outright on the principles of judicial estoppel and waiver. A litigant may be
judicially estopped from seeking a position contrary to that taken in an earlier proceeding from
which he or she benefitted. Barack, Ferrazzano, Kirshbaum, Perlman & Nagelberg v. Loffredi,
342 Ill. App. 3d 453, 460 (2003). Judicial estoppel protects the integrity of the judicial process by
prohibiting parties from changing positions to suit the exigencies of the moment. New Hampshire
v. Maine, 532 U.S. 742, 749-50 (2001). In a similar vein, implied waiver arises “when the conduct
of the [litigant] against whom waiver is asserted is inconsistent with any intention other than to
waive [the issue].” Home Insurance Co. v. Westerfield Insurance Co., 301 Ill. App. 3d 49, 53
(1998). Here, as discussed, Brian offered to pay some amount of interest in exchange for the stay
of the near-immediate payment of the $5.3 million property award. This was a benefit to him. He
was able to retain and invest the $5.3 million for more than 2 years, and this conduct can only be
consistent with an intent to waive a challenge to the concept of interest in general.
¶ 22 Even if we were to agree with Brian that, perhaps, he only offered to pay a smaller,
discretionary interest amount in an effort to rebut Suzanne’s claim for mandatory interest at a rate
of 9%, we reject Brian’s remaining arguments. Those arguments, and our reasons for rejecting
them, are as follows.
¶ 23 First, Brian argues that the law-of-the-case and res judicata doctrines preclude an award of
discretionary interest. Under the law-of-the-case doctrine, “ ‘a legal decision made at one stage of
the litigation, unchallenged in a subsequent appeal when the opportunity to do so existed, becomes
the law of the case for future stages of the same litigation, and the parties are deemed to have
waived the right to challenge the decision at a later time.’ ” Aardvark Art v. Lehigh/Steck-Warlick,
Inc., 284 Ill. App. 3d 627, 632 (1996) (quoting Williamsburg Wax Museum, Inc. v. Historic
Figurines, Inc., 810 F.2d 243, 250 (D.C. Cir. 1987)). The doctrine limits re-litigation of previously
-8-
2020 IL App (2d) 190326-Udecided issues and encompasses not just explicit decisions but also those decided by necessary
implication. Rommel v. Illinois State Toll Highway Authority, 2013 IL App (2d) 120273, ¶ 15.
¶ 24 Here, the law-of-the-case doctrine does not preclude an interest award. On September 22,
2016, the court informed Brian that it would stay payment of the $5.3 million property award, but
discretionary interest would accrue on that amount during the pendency of the appeal. Brian paid
the bond, which included said anticipated discretionary interest. Had Brian refused to do so, the
court would have enforced its order to pay the $5.3 million property award within 60 days. That
discretionary interest would be awarded following the stay and upon affirmance is the law of the
case.
¶ 25 Under the res judicata doctrine, a final judgment on the merits rendered by a court of
competent jurisdiction bars any subsequent actions between the same parties (or their privies) on
the same cause of action. Rein v. David A. Noyes & Co., 172 Ill. 2d 325, 334 (1996). Res judicata
has three elements: (1) the parties are the same in the first lawsuit as in the second; (2) the cause
of action is the same; and (3) there was a final judgment on the merits in the first cause of action.
Dowrick v. Village of Downers Grove, 362 Ill. App. 3d 512, 516 (2005). The res judicata doctrine
does not apply here, because, as stated by Suzanne, the April 10, 2019, order “was not only
consistent with that of September 22, 2016, it was entered in the same lawsuit.”
¶ 26 Second, Brian argues that Rule 305 does not allow for the post hoc awarding of interest.
This argument, like the others, misstates what occurred below. The court did not modify the
property award post hoc to tack on interest. Rather, Suzanne was awarded $5.3 million, to be paid
within 60 days of the judgment. Rather than pay $5.3 million within 60 days, Brian sought a stay
pending appeal and agreed to pay interest on the award. Rule 305, under which Brian chose to
avail himself, is the proper vehicle by which to seek a stay of the payment under the condition of
-9-
2020 IL App (2d) 190326-Udiscretionary interest. “The enforcement of a judgment for money only, or any portion of a
judgment which is for money, shall be stayed if a timely notice of appeal is filed and an appeal
bond *** is approved by *** the court. *** The bond *** ordinarily shall be in an amount
sufficient to cover the amount of the judgment and costs plus interest reasonably anticipated to
accrue during the pendency of the appeal.” (Emphasis added.) Ill. S. Ct. R. 305 (eff. July 1,
2017).
¶ 27 Third, Brian argues that the trial court lost jurisdiction of the case when Brian appealed the
March 2, 2017, order modifying judgment, and, therefore, it was without jurisdiction on April 10,
2019, to enter the $775,000 interest award. It is true that the trial court loses jurisdiction to modify
the judgment 30 days after the disposition of the last timely filed posttrial motion. In re Marriage
of Breslow, 306 Ill. App. 3d 41, 49 (1999). However, when the appellate mandate issues and is
filed with the circuit clerk, the trial court has jurisdiction to enforce the judgment and conduct
proceedings as though no appeal had been taken. Ill. S. Ct. Rule 369(b) (eff. July 1, 1982). Here,
the trial court did nothing improper. It ordered interest on the property award in exchange for
staying the payment pending appeal. It did not further modify the judgment. When jurisdiction
returned to the trial court, it was able to tailor the already-ordered interest to the circumstances that
had just then become clear—the length of the appeal and the lost investment opportunity.
¶ 28 Fourth, Brian argues that his due-process rights were violated, because he was not afforded
“the opportunity to be heard at a meaningful time and in a meaningful manner.” In re D.W., 214
Ill. 2d 289, 316 (2005). Brian contends that he never had the opportunity to avoid a costly interest
award by paying Suzanne the $5.3 million property award before appealing. We disagree, and we
find this argument extremely disingenuous. Brian has been heard on the issue. He was afforded
the opportunity to brief and argue the issue of interest prior to and at the September 22, 2016,
- 10 -
2020 IL App (2d) 190326-Uhearing. He was again afforded the opportunity to brief and argue the issue of interest after the
mandate issued, prior to and at the April 10, 2019, hearing. Since at least September 22, 2016,
Brian knew that interest would accrue on the $5.3 million award. The trial court warned that the
appeal could last more than one year and it estimated a rate higher than the Treasury bond rate and
closer to a rate approximating Suzanne’s lost investment opportunity over the relevant period.
Brian knew the interest award would be substantial, and he chose to risk incurring it in exchange
for staying payment pending appeal.
¶ 29 Fifth and finally, Brian argues that the trial court improperly ordered “interest upon
interest” when it ordered that the remaining $430,000 due would accrue interest at a rate of 9% if
late. Section 2-1303 provides for simple, not compound interest. Halloran v. Dickerson, 287 Ill.
App. 3d 857, 863 (1997). We see nothing improper in the trial court’s judgment. The court
awarded $775,000 in discretionary interest on the $5.3 marital property award. The remaining
$430,000 due became a judgment amount, which would accrue simple interest at a rate of 9% if
delinquent.
¶ 30 In sum, underpinning all of Brian’s arguments is the faulty premise that the trial court
improperly modified the property award after Brian filed the notice of appeal. That did not occur.
Rather, in 2016, the trial court ordered Brian to pay the $5.3 million property award within 60
days. Brian sought to stay that payment pending appeal, and, in exchange, posted a $5.65 million
appeal bond that included $345,000 in anticipated interest. The court warned as early as September
2016 that the amount could be higher, depending on the circumstances and should the appeal last
more than one year. That is what occurred. On this issue, the proceedings below were perfectly
legitimate.
¶ 31 III. CONCLUSION
- 11 -
2020 IL App (2d) 190326-U¶ 32 For the reasons stated, we affirm the trial court’s judgment.
¶ 33 Affirmed.
- 12 -