NOTICE 2020 IL App (5th) 190373-U NOTICE Decision filed 02/19/20. The This order was filed under text of this decision may be NO. 5-19-0373 Supreme Court Rule 23 and changed or corrected prior to may not be cited as precedent the filing of a Petition for by any party except in the Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ________________________________________________________________________
In re MARRIAGE OF ) Appeal from the ) Circuit Court of TONI ANDREWS, ) Jefferson County. ) Petitioner-Appellant, ) ) and ) No. 18-D-59 ) JOSHUA ANDREWS, ) Honorable ) Timothy R. Neubauer, Respondent-Appellee. ) Judge, presiding. ________________________________________________________________________
JUSTICE WHARTON delivered the judgment of the court. Presiding Justice Welch and Justice Moore concurred in the judgment.
ORDER
¶1 Held: Where the terms of the property division stipulation omitted real estate jointly held by Toni and Joshua Andrews, we find that the trial court abused its discretion in denying Toni’s request to modify or vacate the judgment; vacate the property and debt distribution and asset equalization sections of the amended judgment; and remand for further proceedings. Where the trial court did not abuse its discretion in calculating the amount of child support, we affirm that portion of the trial court’s amended judgment.
¶2 After the trial court entered a judgment that dissolved the marriage and resolved
all other issues, Toni Andrews (Toni) filed a posttrial motion asking the court to correct
possible errors and omissions in its determination of maintenance and property
1 distribution and to modify the manner in which the court calculated child support. The
trial court agreed with some of the points Toni raised and entered its amended judgment.
Toni appeals from the trial court’s denial of her request that the court reconsider its
property distribution to include 22 acres of real estate she owned jointly with Joshua
Andrews (Joshua). Toni also appeals from the trial court’s amended child support order.
For the reasons that follow, we vacate the property distribution and asset equalization;
affirm the child support award; and remand for further proceedings.
¶3 BACKGROUND
¶4 Toni and Joshua married in 2006. Three children were born during this marriage.
R.A. was born in 2007; T.A. was born in 2010; and I.A. was born in 2012. Toni moved
out of the marital residence in February 2018 and filed a petition for dissolution of her
marriage to Joshua in May 2018. Joshua filed a counterpetition on August 29, 2018, and
filed a petition seeking temporary and permanent primary parenting responsibility and
primary parenting time allocation.
¶5 On October 10, 2018, the trial court entered an agreed temporary order. The
parties had agreed that Joshua would have exclusive possession of the marital
residence—a double wide mobile home. Toni was required to temporarily pay the
mortgage and utilities on the residence in lieu of traditional child support or maintenance.
Parenting time was shared with Toni having the children from Saturdays at 5 p.m. until
Sundays at 9 a.m., then from 11 a.m. on Sundays until 5 p.m. on Tuesdays. Joshua had
all other parenting time.
2 ¶6 Both parties filed a financial affidavit with the court. In Joshua’s affidavit, he
listed the value of his real estate asset at $130,000 subject to a mortgage with an
unknown balance. Toni’s affidavit contained no valuation for the real estate asset and
listed the mortgage balance at approximately $40,000.
¶7 On March 27, 2019, the trial court entered an order requiring Toni to produce the
following documents: value and payoff quote on her vehicle; a current 401(k) statement;
the payoff quote on the mortgage; her valuation of the double wide; a proposed parenting
time schedule; and a complete financial affidavit.
¶8 Trial took place on May 1, 2019. Unfortunately, the entire trial was not recorded,
and therefore, the record on appeal is incomplete. A court reporter was present for the
first half of the trial. A court reporter was not available for the second half of the trial and
the parties agreed to proceed without having the trial record preserved. The appellant has
the responsibility for preparing a full and complete appellate record. Midstate Siding &
Window Co. v. Rogers, 204 Ill. 2d 314, 319, 789 N.E.2d 1248, 1251 (2003). “Any doubts
which may arise from the incompleteness of the record will be resolved against the
appellant.” Foutch v. O’Bryant, 99 Ill. 2d 389, 392, 459 N.E.2d 958, 959 (1984).
¶9 Before trial, the parties stipulated that all property was to be divided in half. The
parties also stipulated to the valuations. Toni was to receive the 2017 GMC Acadia
valued at $18,510 (subject to a $26,130 loan), and her Walgreens 401(k) account then
valued at $50,019. Joshua was to receive a double wide valued at $21,749 (subject to a
$45,366 loan), and his own lawn care business valued at $46,595. He was also
responsible for a $12,000 loan balance on a piece of lawn care equipment. Based on the 3 asset values and remaining debt, Joshua’s attorney prepared an asset equalization
document suggesting that Toni owed Joshua $15,710.50.
¶ 10 The parties also stipulated to shared responsibility and duty for the children’s
medical, education, and religious decisions.
¶ 11 Toni and Joshua did not stipulate to parenting time allocation, maintenance, and
child support. Testimony at the trial was connected to these three issues.
¶ 12 Toni testified that she was a maintenance administrative specialist for a Walgreens
Distribution Center working Wednesdays through Saturdays from 5 a.m. to 3 p.m.
earning approximately $46,000 annually. She began a new position at Walgreens in
November 2017 that was part of a group responsible for rebranding a Rite Aid
distribution center in Connecticut. Toni had informed Walgreens that she would only
travel to Connecticut one weekend per month. Toni explained that she had the ability to
move the one weekend to different weekends in order to accommodate parenting time
with her children but testified that Walgreens did not provide much advance notice about
the scheduled weekend. She currently has parenting time with the children every
weekend, which means that she has been unable to exercise her parenting time on the one
Connecticut weekend each month.
¶ 13 Toni testified that the income for Joshua’s business was inaccurate on their joint
income tax returns because he did not report all income he earned. Her knowledge stems
from the fact that she had been the bookkeeper for the business. Specifically, Toni
testified that in 2017 Joshua earned $60,243, but only reported $35,680 as income on
their joint income tax return. On cross-examination, she admitted that she had lied to the 4 Internal Revenue Service by filing the false return but stressed that the false income
amounts were filled out at Joshua’s specific direction.
¶ 14 Toni asked the court to award no maintenance because she and Joshua both earned
approximately the same amount.
¶ 15 Toni testified about the current parenting time schedule and testified that she
would prefer having the three children for one week at a time, but also stated that she
would be fine with any division of parenting time that was split evenly. She asked the
trial court to award no child support if the parenting time was split evenly as she
requested. Toni acknowledged that there have been times that she had not been able to
control their son, and when that occurred, she contacted Joshua to pick him up. Toni
stated that her mother had agreed to help her with the children on school days if the court
determined that parenting time should be evenly split.
¶ 16 At the time of the trial, Toni was living in her mother’s home, and although the
three children did not have their own rooms, two had their own beds, and the third, the
youngest, still wanted to sleep with Toni. Toni expressed her hope that she could
eventually move out and have her own home.
¶ 17 Joshua testified that the parties separated on Valentine’s Day of 2018 when Toni
vacated the marital home. She told the family that she needed to catch up on her sleep
and that she was going to her mother’s home, but that she would eventually move back
home. She told the children she would stop by each day to visit with them. However,
Toni did not return to the marital home, and she did not keep her promise of daily visits
with the children. He confirmed that Toni frequently had difficulty with their son who 5 wanted little to do with his mother because of the abandonment. Joshua stated that at
least once per month he would be called by Toni to pick up the children before her
scheduled parenting time was over. Joshua asked the trial court to maintain the current
parenting time schedule because the children were adjusted to the schedule.
¶ 18 Joshua stated that he had owned his own lawn care business for 10 years. He
works four days a week from spring to fall; plows snow when necessary in the winter;
and otherwise is home and available to the children. He had about five steady clients but
was always looking for additional work. Joshua denied that he underreported his income
on the income tax returns.
¶ 19 Joshua testified that he would not be able to continue to live in the marital
residence without an award of maintenance. He denied having any equity in the double
wide, in that the home was valued at approximately $20,000 less than what was owed on
the mortgage.
¶ 20 Toni’s mother, Cynthia A. Bevis, prepared a document, labeled “Comparable
Market Analysis,” that contained her expert opinion as to the value of the double wide.
Both parties stipulated to the admissibility of this exhibit. The document is dated
Thursday, March 28, 2019, and states that it was “Prepared for 2000 Four Seasons
FS211002 Manufactured Home.” All references to the property in this document are
limited to the double wide, and do not reference the underlying real estate where the
double wide was located. The Jefferson County property tax records for 2017 valued the
double wide at $23,073. There had only been two area comparable double wide sales in
the past two years. Based upon those two sales, Bevis determined that the going rate for 6 this type of property was $14.16 per square foot. Mathematically, Bevis concluded that
“the subject property, double wide only” was valued at $21,749.75.
¶ 21 The court entered its judgment of dissolution of marriage on June 7, 2019. The
trial court imputed annual income of $36,000 to Joshua, and then ordered Toni to pay
monthly child support of $702.96 until May 31, 2030, monthly maintenance of $477.18
until September 2025, and to obtain and pay for the children’s health insurance. The trial
court noted that the parties stipulated to the values of property and debts and incorporated
the exhibit prepared by Joshua’s attorney into its order. The court found that in order to
divide the assets evenly, Toni owed Joshua an equalization payment of $15,710.50.
¶ 22 After the entry of the judgment, Toni hired a new attorney who advised her to
transfer the utility accounts into Joshua’s name. According to Toni’s affidavit in the
court record, she received a copy of the deed for the 22 acres from the water utility
company, and then discovered that she jointly owned the 22 acres with Joshua.
¶ 23 Toni’s new attorney asked the court to modify or vacate the maintenance, child
support, parenting time, and property distribution awards. The trial court amended the
judgment on August 1, 2019, as follows: modified the parenting time allocation to take
into account the periodic weekends Toni was required to work; lowered the monthly
child support amount to $600 per month; struck the maintenance award; added a Ford
truck valued at $8000 that had been omitted from the stipulated property list; and
modified the equalization amount that Toni owed Joshua to $11,710.
¶ 24 Toni timely appealed from this order.
7 ¶ 25 ANALYSIS
¶ 26 On appeal, Toni raises two issues. First, she claims that the trial court’s property
distribution was inequitable and was not based upon the evidence in the record because
the distribution omitted the jointly held real estate. Second, Toni claims that the trial
court’s child support calculation was erroneous.
¶ 27 Property Distribution
¶ 28 Toni claims that the trial court should have included the 22 acres of real estate in
its property distribution. Joshua argues that the trial court’s distribution was correct
because the parties had entered a valid stipulation and because Toni had indicated that
she would not pursue a share of the real estate that his stepfather had given him.
¶ 29 Settlements in cases are guided by the principles of contract law. Rose v.
Mavrakis, 343 Ill. App. 3d 1086, 1090, 799 N.E.2d 469, 473 (2003). Marital settlement
agreements, like the property division stipulation in this case, are considered contracts.
In re Marriage of Haller, 2012 IL App 110478, ¶ 26, 980 N.E.2d 261 (citing In re
Marriage of Bohnsack, 2012 IL App (2d) 110250, ¶ 9, 968 N.E.2d 692). “The best
indicator of the parties’ intent is the language used in [the] marital settlement agreement.”
In re Marriage of Frank, 2015 IL App (3d) 140292, ¶ 11, 40 N.E.3d 740. If the terms of
the agreement are unambiguous, the parties’ intent must be determined from the language
utilized. Id. ¶ 12. The language is considered ambiguous if the wording “is susceptible
to more than one reasonable interpretation.” Id. On appeal, we review a trial court’s
interpretation of a marital settlement agreement de novo. Id.
8 ¶ 30 When a party asks the court to modify or vacate a property settlement, the
presumption is that the settlement is valid. In re Marriage of Hamm-Smith, 261 Ill. App.
3d 209, 214, 633 N.E.2d 225, 229 (1994) (citing In re Marriage of Riedy, 130 Ill. App.
3d 311, 313, 474 N.E.2d 28, 30 (1985)).
¶ 31 The record contains no documentary or testimonial evidence supporting Joshua’s
claim that Toni planned to gift Joshua with her share of the 22 acres.
¶ 32 The record contains the document Cynthia A. Bevis prepared that was entered as
an exhibit at trial. From the express wording used in the exhibit, Bevis did not place a
value on the 22 acres of real estate. During the hearing, the trial court stated that it
assumed that Bevis’s valuation included the real estate because she was a real estate
expert. Then, in ruling against Toni’s modification request, the court indicated that Toni
stipulated to the value of the “real estate” and therefore she is “stuck with it.”
¶ 33 We find that it is difficult to square the trial court’s statement that Toni stipulated
to the value of the real estate with the evidentiary documents before the trial court. The
stipulation document prepared by Joshua’s attorney did not include the real estate.
Joshua’s attorney attempts to argue that the 22 acres of real estate was included in the
stipulation and that the value was $21,749.75. We find that this argument
mischaracterizes the evidence. The stipulated amount matches the value Bevis placed
only on the double wide. Looking at the stipulation, Joshua’s attorney did not specify a
value for the underlying 22 acres. The stipulation does not state that the $21,749.75
value is for real estate. The marital asset listed next to the $21,749.75 value is “double
wide.” While the documentation clearly reflects that the parties stipulated to the value of 9 the double wide, it strains logic to accept the trial court’s implicit finding that the term
“double wide” included the 22 acres.
¶ 34 We also conclude that there was no evidence provided in Bevis’s valuation report
supporting the trial court’s statement that her valuation must have included the real estate
because her expertise was in real estate. By its express wording, the stipulated exhibit
provided valuation only for the double wide. In addition, the claim that real estate was
included in Bevis’s valuation was directly contradicted by both the language of the asset
stipulation (“double wide” with no mention of real estate) and the higher valuation for the
real estate contained in Joshua’s financial statement.
¶ 35 The language of the stipulation, coupled with the Bevis valuation of the double
wide, is clear and unambiguous. If the terms of the stipulation are unambiguous, as we
find that they are in this case, intent must be determined from the language of the
agreement. Marriage of Frank, 2015 IL App (3d) 140292, ¶ 12. We find that the
stipulation only awarded Joshua the double wide—not the double wide and the 22 acres.
¶ 36 In addition, the record contains Toni’s affidavit in which she states that when the
stipulation was prepared, she believed that the land was only in Joshua’s name. Toni’s
claim is supported by her financial statement. Toni’s financial statement did not include
the real estate as one of her assets. In contrast, Joshua’s financial statement listed the real
estate. Both financial statements were stipulated exhibits at trial, and thus the conflicting
evidence was before the court for consideration.
¶ 37 Furthermore, Joshua’s attorney made statements at the motion hearing reflective
of an intent not to list the value of the 22 acres. Joshua’s attorney stated that she did not 10 believe that Toni was going to make a claim against the real estate. This belief was
apparently based upon statements made either by Toni or by Toni’s original attorney.
And, when Toni was ordered by the court to obtain a valuation of the double wide, and
Toni produced the valuation prepared by Bevis at $21,749.75, Joshua’s attorney stated
that she and her client “were very pleasantly surprised *** and we accepted it.” Utilizing
that value for the double wide, they included only the value of the double wide on the list
of assets to be awarded to Joshua with no reference to the 22 acres. Joshua’s attorney
stated that she would not have been properly representing her client if she had added a
value for the 22 acres because that would have changed the equalization payment and
would have been detrimental to Joshua.
¶ 38 Moreover, we find that the trial court’s statement that Toni was “stuck” with her
stipulated asset distribution to be inconsistent with the trial court’s subsequent amended
judgment. In the amended judgment, Toni’s attorney informed the trial court of another
omitted asset that Joshua was receiving—a Ford truck valued at $8000. This asset should
have been included in and increased the value of his lawn care business. Despite the
stipulation to the value of the lawn care business, the trial court stated: “[W]hat I have got
as a record—and I am going [to] follow my record. So I am going to—the $8,000.00 is
the value for the truck. That’s it. We know there is a recapitulation so it’s not $8,000.00,
it’s $4,000.00.”
¶ 39 Whether a judgment should be vacated is within the trial court’s sound discretion.
Espedido v. St. Joseph Hospital, 172 Ill. App. 3d 460, 466, 526 N.E.2d 664, 667 (1988).
Vacating a judgment will not be considered an abuse of discretion when doing so 11 promotes substantial justice between the parties. Id. We find that the trial court should
have vacated or modified the property division stipulation in order to include the 22 acres
of real estate owned by Toni and Joshua. The trial court modified the parties’ stipulation
after the trial to include another omitted asset—the Ford truck; the stipulation
unambiguously awarded only the double wide to Joshua; the stipulated financial
statement exhibits provided by the parties reflect the omission and discrepancy in value;
and the expert valuation expressly only valued the double wide. Even if we assume that
this was Toni’s unilateral mistake, the stipulation could be set aside pursuant to contract
law. See Cameron v. Bogusz, 305 Ill. App. 3d 267, 273, 711 N.E.2d 1194, 1198 (1999).
Accordingly, we vacate the property distribution and asset equalization sections of the
amended judgment. We remand this case to the trial court for further proceedings
consistent with this order.
¶ 40 Child Support
¶ 41 Toni also claims that the trial court erred in setting child support at $600 per
month because the trial court should have applied the provisions of section 505(a)(3.8) of
the Illinois Marriage and Dissolution of Marriage Act. 750 ILCS 5/505(a)(3.8) (West
2018). On appeal from a child support determination, the reviewing court will not
overturn the trial court’s decision unless the trial court abused its discretion. In re
Marriage of Deem, 328 Ill. App. 3d 453, 457, 766 N.E.2d 661, 665 (2002) (citing In re
Marriage of Tietz, 238 Ill. App. 3d 965, 978, 605 N.E.2d 670, 680 (1992)).
¶ 42 Section 505(a)(3.8) provides guidance in cases where physical care is shared
between the parents. The section provides: 12 “If each parent exercises 146 or more overnights per year with the child, the basic child support obligation is multiplied by 1.5 to calculate the shared care child support obligation. The court shall determine each parent’s share of the shared care child support obligation based on the parent’s percentage share of combined net income. The child support obligation is then computed for each parent by multiplying that parent’s portion of the shared care support obligation by the percentage of time the child spends with the other parent. The respective child support obligations are then offset, with the parent owing more child support paying the difference between the child support amounts.”
750 ILCS 5/505(a)(3.8) (West 2018).
¶ 43 In this case the trial court’s concern was that Toni was not currently exercising
146 or more overnights per year because of her work schedule, and thus application of
section 505(a)(3.8) was inappropriate. The court stated:
“She had a job obligation. She had to work out of town. How long that continues we don’t know. So the reality is that she hasn’t been able to exercise all of her time. *** I can’t change your facts in life as you go through it. Different jobs. Different positions. Different pay scales. It’s going to change.
*** [W]e have the ability to modify things based upon the facts, and people don’t get locked in generally speaking to a lifetime obligation.”
¶ 44 Toni argues that the trial court should have applied the child support calculation in
section 505(a)(3.8) in this case because she was awarded 156 overnights per year in the
amended allocation judgment. However, that number does not account for Toni’s one
weekend per month that she works. When Toni is out of town, those days revert to
Joshua, and so she falls below the 146 overnights threshold for application of the section
505(a)(3.8) formula.
13 ¶ 45 Having reviewed the record, we conclude that the trial court did not abuse its
discretion in its child support determination. Marriage of Deem, 328 Ill. App. 3d at 457.
As the trial court aptly stated, the future may mandate a change to the child support
amount.
¶ 46 CONCLUSION
¶ 47 For the reasons stated in this order, we vacate the property distribution and asset
equalization order; affirm the child support order; and remand for further proceedings.
¶ 48 Vacated in part; affirmed in part; and remanded.