In re Marriage of Brown

2021 IL App (5th) 200007-U

• Court: Appellate Court of Illinois
• Decided: August 12, 2021
• Docket: 5-20-0007
• Status: Unpublished

Opinion

NOTICE 2021 IL App (5th) 200007-U NOTICE Decision filed 08/12/21. The This order was filed under text of this decision may be NO. 5-20-0007 Supreme Court Rule 23 and is changed or corrected prior to the filing of a Petition for not precedent 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 ROBBYN C. BROWN, ) St. Clair County. ) Petitioner-Appellant, ) ) and ) No. 17-D-749 ) KIRK H. BROWN, ) Honorable ) Alana I. Mejias, Respondent-Appellee. ) Judge, presiding. ________________________________________________________________________

PRESIDING JUSTICE BOIE delivered the judgment of the court. Justices Cates and Barberis concurred in the judgment.

ORDER

¶1 Held: We affirm the judgment of the circuit court regarding child support and the distribution of marital property where the circuit court’s findings were not against the manifest weight of the evidence. We find that petitioner has forfeited on appeal her issue regarding that portion of the circuit court’s judgment regarding the distribution of marital property concerning the Michigan accounts, waived her issue regarding dissipation, and that the issue of attorney fees is inapplicable.

¶2 Petitioner, Robbyn C. Brown, appeals pro se the circuit court’s judgment of

dissolution of her marriage to respondent, Kirk H. Brown, regarding the distribution of

1 marital property, child support, dissipation, and attorney fees. For the following reasons,

we affirm the judgment of the circuit court.

¶3 I. BACKGROUND

¶4 Petitioner and respondent were married on February 11, 1995, and two children

were born of the marriage. On November 3, 2007, the parties executed a postnuptial

agreement and neither party contests the validity of the postnuptial agreement. The

postnuptial agreement provided as follows:

“Recognizing their respective contributions to the marriage and their

differing views on debt and asset acquisitions, and under no duress or

coercion, [respondent] and [petitioner] agree as follows:

1. All vehicle purchase(s) and the related liability

(financing) shall be the responsibility of the party making the

purchase. This includes, but is not limited to the 2008 Infiniti

G35 purchase made by [respondent] on or around October 27,

2007. The associated asset shall be considered an asset

belonging to the party incurring and paying the debt.

2. All credit card debt and/or installment loans, with the

exception of major home renovations or repairs shall be the

responsibility of the person incurring the liability and any

associated asset shall be considered an asset belonging to the

party incurring and paying the debt.

2 Further in the event of legal separation or divorce, [respondent] and

[petitioner] agree as follows:

3. All pensions and 401(k), 403(d), or similar retirement

instruments shall be treated as non-marital property with each

party being entitled to their respective pensions and 401(k),

403(d), or similar retirement instruments.”

¶5 On August 17, 2017, respondent purchased a residence (Cedar Ridge residence)

separate from the marital home with funds from his retirement accounts. On September 14,

2017, petitioner filed a pro se petition for legal separation in the circuit court. At the time

petitioner filed for legal separation, the parties had two children: a nonminor child who was

attending college, and a minor child, born June 2000. The petition for legal separation

requested that the circuit court grant petitioner custody of the minor child and order

respondent to pay child support, reimbursement for health insurance, and educational

expenses for the nonminor child.

¶6 On October 6, 2017, respondent filed an answer to the petition for legal separation

and a counterpetition for dissolution of marriage. Petitioner then retained counsel who

entered an appearance on November 14, 2017. On November 21, 2017, the circuit court

conducted a case management conference in which both parties appeared and were

represented by counsel. The circuit court entered a written order the same day directing the

parties to participate in mediation since the parties had not provided the circuit court with

an agreed parenting plan. The parties participated in two sessions of mediation on

December 5 and 18, 2017, and could not reach an agreement on a parenting plan. 3 ¶7 On December 11, 2017, the circuit court entered an order directing respondent to

pay temporary child support in the amount of $1000 per month beginning on December

15, 2017. The circuit court’s order also directed the parties to equally pay any uncovered

medical, dental, or vision expenses for the minor child and to continue to divide the

nonminor child’s college expenses equally. The circuit court’s order further directed that

petitioner would have the exclusive possession of the marital residence and that respondent

would have the exclusive possession of the Cedar Ridge residence.

¶8 On June 5, 2018, counsel for petitioner filed a motion to withdraw indicating that

petitioner no longer desired the attorney’s representation. On the same day, the circuit court

conducted a case management conference where it granted petitioner’s counsel’s motion

to withdraw, and petitioner proceeded pro se throughout the remainder of the proceedings.

On June 8, 2018, respondent filed a motion to terminate his child support obligation since

the minor child had reached the age of majority.

¶9 On June 21, 2018, petitioner filed a motion to compel discovery compliance.

Petitioner’s motion to compel discovery compliance requested that the circuit court direct

respondent to provide copies of all documents related to the “Michigan Bank Accounts”

(Michigan accounts). The Michigan accounts concerned respondent’s parents’ revocable

trust and the assets of respondent’s mother for which petitioner alleged respondent was the

trustee. Respondent objected to petitioner’s requests for discovery information concerning

the Michigan accounts. On August 28, 2018, the circuit court conducted a hearing on

petitioner’s motion to compel discovery along with respondent’s motion to terminate child

support. 4 ¶ 10 After hearing testimony and reviewing statements from the Michigan accounts

submitted by petitioner, the circuit court informed petitioner as follows:

“THE COURT: But the link that you’re making is nothing that I have the

authority or jurisdiction to do. Even if you brought forth— If I granted your

request— If I denied [respondent’s] objection and I ordered him to produce

these documents and you saw that he was taking money out of a pot that

should in the future go the children, one, that—they are beneficiaries. They

don’t have any interest in that money. That money is not theirs until their

grandmother passes away is the first thing.

The second thing, if you were even able to prove that he was taking money

from this pot in the trust I would have no authority to do anything about it in

regard to the non-minor support or the educational expenses for the children

because that is not my juris—that is not my jurisdiction. That is not the

jurisdiction of this case.”

¶ 11 The circuit court then granted in part, denied in part, and reserved in part petitioner’s

motion to compel discovery compliance. The circuit court granted petitioner’s request for

respondent to produce documents indicating the source of the funds deposited into one of

the Michigan accounts in the name of the respondent, his mother, and the Brown Joint

Trust, excluding social security administration and the State of Michigan retirement funds.

The circuit court reserved ruling on three of petitioner’s requests until respondent complied

with the source of the funds and denied the remainder of petitioner’s discovery requests.

5 ¶ 12 Also at the August 28, 2018, hearing, the circuit court granted respondent’s motion

to terminate child support and ordered respondent’s overpayments for July and August

2018 to be applied retroactively for child support due for October and November 2017.

The circuit court denied petitioner’s request for retroactive child support for September

2017. A written order consistent with the circuit court’s rulings at the hearing was entered

the same day. Petitioner did not file any further motions regarding discovery, the Michigan

accounts, or child support. She also failed to file a motion to reconsider the circuit court’s

August 28, 2018, order.

¶ 13 A hearing on all remaining issues regarding the dissolution of marriage was

scheduled on June 17, 2019. Petitioner failed to appear at the hearing and respondent made

an oral motion for bifurcation. The circuit court granted respondent’s oral motion for

bifurcation, noting that there were no minor children and that neither party was seeking

spousal maintenance. Respondent also made an oral request for attorney fees for the

appearance at the hearing. The circuit court reserved ruling on respondent’s request for

attorney fees until respondent’s counsel could provide a fee affidavit. On June 18, 2019,

the circuit court entered a written order stating that it had granted respondent’s request for

bifurcation on June 17, 2019, and awarded a judgment of dissolution nunc pro tunc and

reserved ruling on all remaining issues.

¶ 14 On August 22, 2019, the circuit court conducted a hearing on all remaining issues

and entered a seven-page written order regarding its findings on August 27, 2019. In the

interests of brevity, we will forego an initial recitation of the circuit court’s finding and

address the relevant findings as they relate to this appeal in the analysis below. On 6 September 25, 2019, petitioner filed a motion to reconsider and a motion to stay judgment.

Petitioner then filed a supplement to her motion to reconsider on November 4, 2019.

¶ 15 On December 4, 2019, the circuit court denied petitioner’s motion to reconsider and

granted petitioner’s motion to stay judgment except as it related to the nonminors’

expenses. Petitioner now appeals the judgment of the circuit court, arguing that the circuit

court erred in its distribution of the marital property and its determination of child support,

dissipation, and attorney fees.

¶ 16 II. ANALYSIS

¶ 17 At the onset, we note that respondent argues that petitioner has waived several issues

brought on appeal by failing to raise the issues at trial and/or failing to include the issues

in a posttrial motion. Specifically, respondent argues that petitioner has waived the issues

of the Michigan accounts, child support, dissipation, and attorney fees.

¶ 18 Although commonly interchanged, waiver is distinct from forfeiture. See United

States v. Olano, 507 U.S. 725, 733 (1993). While forfeiture applies to issues that could

have been raised but were not, waiver is the voluntary relinquishment of a known right. Id.

The distinction is relevant here because, as we discuss below, we find that petitioner has

forfeited her issue regarding the Michigan accounts, waived her issue regarding dissipation,

and that her issue of attorney fees is inapplicable.

¶ 19 An issue is forfeited on appeal unless a party makes an objection at the time of the

purported error and specifically raises the issue in a written posttrial motion. Petre v.

Cardiovascular Consultants, S.C., 373 Ill. App. 3d 929, 938 (2007); see also In re

Marriage of Rodriguez, 131 Ill. 2d 273, 279 (1989). The purpose of this rule is to encourage 7 parties to raise their concerns in the circuit courts so that the lower courts have an

opportunity to correct any alleged errors prior to appeal. 1010 Lake Shore Ass’n v.

Deutsche Bank National Trust Co., 2015 IL 118372, ¶ 14. While we acknowledge that the

forfeiture rule is a limitation on the parties and not on reviewing courts, we will only

override the consideration of forfeiture in furtherance of our responsibility to reach a just

result and maintain a sound and uniform body of precedent. People ex rel. Department of

Human Rights v. Oakridge Healthcare Center, LLC, 2020 IL 124753, ¶ 36.

¶ 20 Respondent first argues that petitioner has forfeited any issues regarding the

Michigan accounts. Respondent notes that petitioner failed to file a motion to reconsider

the circuit court’s ruling on August 28, 2018, regarding the Michigan accounts and failed

to raise the issue of the Michigan accounts at trial on August 22, 2019.

¶ 21 Petitioner argues that she had no obligation to present any evidence or to contradict

respondent’s evidence at trial since respondent had the burden of proof to demonstrate that

the Michigan accounts were nonmarital property. Petitioner also argues that she raised the

issue at trial when she reminded the circuit court that respondent had not established that

the source of the funds in the Michigan accounts were his mother’s funds. Finally,

petitioner states that she filed a motion to reconsider on September 25, 2019, arguing that

the Michigan accounts were presumptively marital property and requesting that the circuit

court allocate the funds within the Michigan accounts in just proportions.

¶ 22 Petitioner’s citation to the record in support of her argument that she raised the issue

of the Michigan accounts at trial leads to the following dialogue:

8 “THE COURT: *** I believe the last issue that was in your position

statement, [petitioner], that we haven’t covered is this issue or argument of

over or underpayment of the child support that was initially ordered

December 11th of 2017. Is that something you’re still pursuing?

MS. BROWN: I really don’t want to nickel and dime, Your Honor.

THE COURT: It’s your decision. If you want to withdraw that request,

then—

MS. BROWN: I just want the record to reflect that he did not file an

accurate financial statement, he did not disclose all of his liabilities, and he

understated his income. And we discussed this previously with respect to

those trust accounts in Michigan, bank accounts that he did not disclose

initially. He had to—I had to issue him a 201(k) letter. And, Your Honor, one

of the provisions of 703 with respect to the nonmarital property provides that

it has to be established by clear and convincing evidence that its nonmarital.

We operated on the premise that those were his mom’s funds. He has not

established that those were his mom’s funds in there. He could have

conceivably transferred those funds in there. While I’m paying these extra

bills to help him reduce his credit card debt, it begs the question what was he

doing with his money and why are those credit card debts going up so high?

Why does he have roughly $50,000.00 in credit card debt?”

¶ 23 The above statement does not demonstrate that petitioner raised the issue at trial.

Nowhere in the above statement did petitioner request that the circuit court address the 9 Michigan accounts or request a ruling regarding any aspect of the Michigan accounts. As

such, the circuit court made no findings or rulings on the Michigan accounts at trial or

within its written judgment.

¶ 24 The circuit court’s findings on August 28, 2018, pertained to petitioner’s discovery

requests. After the circuit court’s rulings on August 28, 2018, petitioner allowed discovery

to close without filing a motion to reconsider the circuit court’s August 28, 2018, order or

bringing any additional discovery issue before the circuit court regarding the Michigan

accounts. Instead, petitioner allowed the matter to proceed, as she stated above, on the

premise that the funds within the Michigan accounts were the property of respondent’s

mother. As such, we find that petitioner has forfeited any issues related to the Michigan

accounts on appeal for her failure to raise the issue at trial.

¶ 25 Respondent also argues that petitioner has forfeited her issue regarding child

support. The circuit court’s written order of August 28, 2018, directed that respondent’s

child support overpayments for July and August 2018 be applied retroactively for child

support due for October and November 2017, and that retroactive support for September

2017 was denied. Petitioner did not file a motion to reconsider the circuit court’s August

28, 2018, order. At trial, petitioner did attempt to revisit the issue of child support and

respondent objected. The circuit court sustained respondent’s objection and informed

petitioner as follows:

“THE COURT: *** That order of August 28th, 2018 stands, and since

that order have—sorry. I addressed the child support. I addressed the

arrearage and the retroactivity, so the child support issue would have been 10 closed as of that date. [Petitioner] would have had 30 days from that point to

set that motion aside or vacate it. So the issue of the overpayment or

underpayment of child support is no longer an issue based on that order.”

¶ 26 Respondent argues that petitioner forfeited her objection to the circuit court’s order

of August 28, 2018, by failing to file a motion for reconsideration and, as such, has forfeited

the issue on appeal. We disagree. A notice of appeal is to be liberally construed, and an

appeal from a final judgment will draw into question all prior final but nonappealable

orders that produced the judgment. In re Marriage of King, 336 Ill. App. 3d 83, 86 (2002),

aff’d, 208 Ill. 2d 332 (2003). The circuit court’s order of August 28, 2018, was a prior final,

nonappealable order concerning the over or underpayment of child support, and petitioner

raised the issue in her motion to reconsider the circuit court’s final judgment of August 27,

2019. As such, we find that petitioner has not forfeited her issue regarding child support

on appeal.

¶ 27 Concerning petitioner’s dissipation issue on appeal, petitioner filed a notice of intent

to claim dissipation of marital assets in the circuit court on April 1, 2019. At trial, the

following dialogue transpired:

“THE COURT: And unfortunately, that was before any proof of a

breakdown of the marriage, and there’s no dissipation claim on file, which

would already have to be on file so—

[PETITIONER]: Actually, Your Honor, I did file a claim of dissipation.

THE COURT: Is that something you’re pursuing?

[PETITIONER]: Well, that depends. If you guys— 11 THE COURT: Well, we’re here today. We’re set for trial. We’ve been set

for trial multiple times. So, if you’re going to pursue a dissipation claim, now

is your time.

[PETITIONER]: Well, if they’re willing to concede the property at 305,

we can call this a wrap.

THE COURT: I don’t believe they’re willing to concede that.

[PETITIONER]: Okay.

THE COURT: That’s why we’re here.

[PETITIONER]: Okay. Well, just—

THE COURT: I have to make the decision.

[PETITIONER]: Okay. Just for the child support, Your Honor, and just

to preserve it for later—

THE COURT: Okay, so we’re not preserving anything for later.

THE COURT: This—

[PETITIONER]: This is it. Okay.

THE COURT: I’m ruling on all issues.”

¶ 28 The circuit court inquired whether petitioner wanted to pursue her dissipation claim

and petitioner declined to address the issue, thereby waiving her dissipation claim at trial.

As such, we find that petitioner has waived this issue on appeal.

¶ 29 Finally, we address petitioner’s issue on appeal regarding attorney fees. Petitioner

argues that, in her motion to reconsider, she requested that the circuit court direct 12 respondent to provide an affidavit and proof of all payment respondent made to all counsel

and third parties related to the dissolution so that his share of the marital estate could be

reduced by his attorney fees. At trial, petitioner requested “roughly fifteen or $1600” in

attorney fees and respondent requested attorney fees for the circuit court’s hearing on June

17, 2019, that petitioner failed to attend. The circuit court denied both parties’ requests for

attorney fees. As such, petitioner did raise the issue of attorney fees at trial.

¶ 30 Petitioner’s argument, however, in her motion for reconsideration and within this

appeal, is based upon section 501(c)(2) of the Act. We first note that the Act does not

contain a section 501(c)(2); however, based on petitioner’s argument and the portion of the

statute cited by petitioner, we can infer that petitioner refers to section 501(c-1)(2) of the

Act. 750 ILCS 5/501(c-1)(2) (West 2018). Section 501 of the Act governs temporary relief

in an action brought under the Act, and section 501(c-1)(2) of the Act specifically addresses

the treatment of interim awards of attorney fees. Id. 1 No interim award of attorney fees was

granted to either party in this matter.

¶ 31 As such, respondent is correct that petitioner could not have raised an objection at

the time of the alleged error or raised the issue at trial. Therefore, we could find that

petitioner has forfeited her issues regarding attorney fees on appeal, but instead, we find

1 Section 501(c-1)(2) of the Illinois Marriage and Dissolution of Marriage Act provides in part: “Unless otherwise ordered by the court at the final hearing between the parties or in a hearing under subsection (j) of Section 503 or subsection (c) of Section 508, interim awards, as well as the aggregate of all other payments by each party to counsel and related payments to third parties, shall be deemed to have been advances from the parties’ marital estate. Any portion of any interim award constituting an overpayment shall be remitted back to the appropriate party or parties, or, alternatively, to successor counsel, as the court determines and directs, after notice in a form designated by the Supreme Court. An order for the award of interim attorney’s fees shall be a standardized form order and labeled ‘Interim Fee Award Order.’ ” 750 ILCS 5/501(c-1)(2) (West 2018). 13 that the proper finding for this court is that petitioner’s issue of attorney fees is inapplicable

in this matter. We will now proceed to the merits of the remaining issues brought by

petitioner on appeal.

¶ 32 A. Child Support

¶ 33 Petitioner argues that the circuit court erred in its determination of child support

since the parties presented different calculation of respondent’s gross income. Specifically,

petitioner states that the circuit court did not consider the Michigan accounts in its

determination of respondent’s gross income. Petitioner also argues that the issue of under

or overpayment of child support could not have been resolved during the August 28, 2018,

hearing since the issue remained reserved by the circuit court. Petitioner further argues that

the circuit court abused its discretion in denying retroactive child support for September

2017, when her petition for legal separation was filed. Finally, petitioner argues that the

circuit court failed to make a finding for the deviation from the statutory guidelines for the

amounts that were inconsistent with the child support guidelines.

¶ 34 We first note, as discussed above, that any arguments related to the Michigan

accounts have been forfeited by petitioner on appeal for her failure to raise the issue at trial.

The circuit court made no findings regarding the Michigan accounts within its August 28,

2018, order on child support, final judgment of August 27, 2019, or for that matter, at any

point during the litigation. The circuit court’s only findings on the Michigan accounts

related solely to discovery. As such, petitioner cannot now argue that the circuit court erred

in failing to consider the Michigan accounts in its determination of respondent’s gross

income. 14 ¶ 35 We will also not consider petitioner’s argument regarding the circuit court’s alleged

failure to make a finding regarding a deviation from the statutory guidelines for child

support or petitioner’s argument that the circuit court abused its discretion in not awarding

petitioner retroactive child support for September 2017. Under Illinois Supreme Court Rule

341(h)(7) (eff. May 25, 2018), the appellant’s opening brief “shall contain the contentions

of the appellant and the reasons therefor, with citation of the authorities and the pages of

the record relied on.” Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018). A reviewing court is

entitled to have the issues clearly defined with pertinent authority cited and cohesive

arguments presented. In re M.M., 2016 IL 119932, ¶ 30. An appellant may not foist onto

the reviewing court the burden of argument and research. Ramos v. Kewanee Hospital,

2013 IL App (3d) 120001, ¶ 37. If the points are not properly argued, Rule 341(h)(7) states

that such points are forfeited. Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018).

¶ 36 In this matter, petitioner quotes section 505(a)(3.4) of the Act which requires the

circuit court to make a written finding regarding any deviation from the statutory guidelines

in awarding or modifying child support. 750 ILCS 5/505(a)(3.4) (West 2018). Petitioner’s

argument states that the circuit court “did not make a finding for a deviation from the

statutory guidelines for child support for amounts that were inconsistent with the child

support guidelines worksheet.” Petitioner fails to cite to the record to demonstrate that the

circuit court made a deviation or the basis of her contention that there was a deviation.

¶ 37 Petitioner also fails to support her contention that the circuit court abused its

discretion in failing to award her retroactive child support for September 2017. In her

opening brief, petitioner states “Did the trial court abuse its discretion in denying 15 retroactive child support for the month of September 2017 that was due from [respondent]

back to the petition date” as an “issue” under “Child Support—Underpayments.”

Petitioner’s argument portion under “Child Support—Underpayments,” however, contains

no further argument, contentions, or citations to the record demonstrating that the circuit

court abused its discretion in denying retroactive child support for September 2017.

¶ 38 As such, we find that petitioner’s arguments regarding the circuit court’s alleged

failure to make a finding regarding a deviation from the child support statutory guidelines

and petitioner’s argument that the circuit court abused its discretion in not awarding

petitioner retroactive child support for September 2017 failed to clearly define or present

cohesive arguments. Therefore, we find that petitioner has forfeited these arguments on

appeal for her failure to comply with Rule 341(h)(7).

¶ 39 Petitioner next argues that the circuit court’s August 28, 2018, order did not resolve

the issue of over and underpayment of child support. Petitioner cites to a portion of the

August 28, 2018, hearing in which the circuit court stated as follows:

“THE COURT: Okay. So the December 11, 2017 order reserves

retroactive support along with any issue of under or overpayment. So that

issue is still reserved and pending before the Court at a later point in time.”

¶ 40 Petitioner argues that the above statement demonstrates that issue remained reserved

and should have been addressed at trial. The circuit court’s statement was made at the

beginning of the August 28, 2018, hearing, and after addressing other issues, the circuit

court went on to receive evidence and make an oral ruling—along with issuing a written

order—terminating respondent’s child support obligation and resolving the issue of 16 retroactive support along with any over or under payments made by respondent. Neither

the circuit court’s oral ruling at the hearing nor its written order of August 28, 2018,

indicated that any issue regarding over and underpayment of child support was being

reserved. Further, petitioner provides no support in her argument that the portion of the

circuit court’s statement regarding “a later point in time” could not have been referring to

a time later in the hearing. As such, we find that the August 28, 2018, order resolved the

issue of over and underpayment of child support and that the trial court did not err in failing

to address the issue at trial on the basis that it was a reserved issue.

¶ 41 B. Marital Property

¶ 42 The Act (750 ILCS 5/101 et seq. (West 2018)) governs the procedures for the

dissolution of marriage including the distribution of marital property. Section 503(a) of the

Act requires a circuit court to classify property as either marital or nonmarital prior to

allocating the property. Id. § 503(a). We will not disturb a circuit court’s classification

unless it is against the manifest weight of the evidence. In re Marriage of Winne, 239 Ill.

App. 3d 273, 280 (1992). After the property is classified as either marital or nonmarital,

section 503(d) of the Act provides that marital property shall be divided in “just

proportions” upon consideration of “all relevant factors,” including various factors

specifically enumerated in the Act. 750 ILCS 5/503(d) (West 2018). The division of marital

property in “just proportions” does not mean a mathematically equal division, and a circuit

court may award an unequal division where the circuit court has properly applied the

statute. In re Marriage of Marriott, 264 Ill. App. 3d 23, 30 (1994).

17 ¶ 43 Further, there is a rebuttable presumption that all property acquired by either party

after the date of marriage but before the entry of judgment of dissolution is marital property,

and that presumption can only be overcome by a showing of clear and convincing evidence.

In re Marriage of Didier, 318 Ill. App. 3d 253, 275 (2000). The party claiming that the

property is nonmarital has the burden of proof, and any doubts as to the nature of the

property are to be resolved in favor that the property is marital. Id. A circuit court’s

distribution of marital property rests within its sound discretion and will not be disturbed

on appeal unless the decision is against the manifest weight of the evidence. In re Marriage

of Marriott, 264 Ill. App. 3d at 30. A decision is against the manifest weight of the evidence

where the opposite result is clearly evident from the record, or the finding is arbitrary,

unreasonable, or not based upon the evidence. In re Marriage of Brown, 2015 IL App (5th)

140062, ¶ 59.

¶ 44 Petitioner argues that the circuit court erred in its division of the marital property by

disregarding the parties’ respective salaries and petitioner’s nonmarital financial and

nonpecuniary contributions. Petitioner argues that she paid the initial costs of purchasing

the marital home in the amount of $32,330, which included proceeds acquired through the

sale of an investment property owned prior to the marriage. Petitioner argues that the circuit

court erred in determining that her nonmarital monetary contributions to the marital

property were gifts to the marital estate.

¶ 45 Petitioner further states that from 2002 through 2019, she paid a total of $437,721.06

in mortgage and extra principal payments, health insurance premiums and expenses, real

estate taxes, homeowners insurance premiums, utilities and lawn care, grocery and 18 household expenses, private elementary school tuition, and school related expenses.

Petitioner argues that respondent paid $168,604.80 in contributions towards the mortgage

and other household related expenses from April 2003 through 2017. As such, petitioner

argues that the circuit court erred in awarding respondent $121,500 of the marital

residence’s equity since it resulted in respondent receiving approximately 72% of the

monies he contributed, while petitioner received approximately 22% of the money she

contributed.

¶ 46 Concerning the initial costs of purchasing the marital home, the circuit court ruled

as follows:

“As testified to, both parties agree with the appraised value of the home

being $243,000.00. The marital residence is owned by both spouses. Even if

one spouse has furnished all the consideration for it out of nonmarital funds,

[it] will be presumed to be marital property absent clear and convincing

rebutting evidence.

***

Now, there is an argument which [petitioner] is making is that even

though that property was transmuted or those nonmarital funds were put into

a marital asset, they should still retain their nonmarital characteristic because

I, as in [petitioner], did not intend those funds to be a gift, and therefore, I

should get that money back before the overall equity of the home is divided.

The only evidence that was presented today to rebut the presumption that

—to rebut the presumption of that transmuting the assets from a nonmaterial 19 asset to a marital asset, the only evidence that was presented was

[petitioner’s] own testimony that it was not intended as a gift. There was

nothing else. There was no testimony regarding whether or not she had

advised [respondent] that she never intended this to be a gift. There was no

documentation signed between the parties indicating that this is a gift—or

I’m sorry, indicating that this is not a gift, so I don’t believe that there’s

sufficient evidence to rebut the presumption that these funds were transmuted

from nonmarital to marital property. I do believe that it was a gift to the

marital estate.”

¶ 47 Petitioner testified at trial as follows:

“Q. Okay. Now, that does show the $13,000.00 you put into the deposit,

correct?

A. Correct.

Q. And that is the money you’re claiming is nonmarital, is that correct?

A. It is nonmarital, that’s correct.

Q. Okay. Now, this statement was a—or this bank account was a bank

account you share with [respondent], correct?

A. I added [respondent’s] name to my account—that was previously my

account.

Q. And it’s the bank account where your salary was deposited into,

correct? 20 A. Correct.

Q. And that was salary you earned during the marriage, correct?

A. Yes.

Q. Okay. When you say ‘In part,’ you’re also referring to that

$13,000.00, correct?

Q. That was put into that joint account, correct?

A. Without the intent of it being a gift, correct?

Q. But it was put into a joint account, correct?

A. Correct, clearly identifiable.”

¶ 48 Petitioner also made the following argument to the circuit court concerning her

nonmarital funds used for the purchase of the marital residence:

“[Respondent’s counsel] asked me, Your Honor, about money that I had

provided into the bank account from the sale of the nonmarital property. 750

ILCS 5-503 says that if those funds are identifiable and if they were not

intended to be a gift. These funds were not intended to be a gift. They were

to, one, we had to reduce that credit card debt and our expense that we needed

to do. We had a lot of expenses related to the new home purchase and assets

that we had to acquire. So this was never my intent for it to be a gift.”

¶ 49 Petitioner’s examination of respondent elicited the following testimony:

21 “Q. And did you provide any—you haven’t provided any testimony—

or did you provide any payments towards this down payment of the house?

A. Toward the down payment of the marital home, not that I recall.”

¶ 50 The circuit court correctly noted that the only evidence presented at trial was

petitioner’s own testimony that it was not intended as a gift. There was no documentation

executed by the parties indicating that it was not a gift, and although petitioner could have

examined respondent concerning the circumstances surrounding the nonmarital monetary

contributions, petitioner only inquired whether respondent had provided any of the down

payment on the marital residence. As such, we agree with the circuit court that petitioner

failed to rebut the presumption that petitioner’s nonmarital monetary contributions to the

marital property were a gift to the marital estate by clear and convincing evidence.

Therefore, we find that the circuit court ruling that petitioner’s nonmarital monetary

contributions were gifts to the marital estate was not against the manifest weight of the

evidence.

¶ 51 Petitioner also argues that the circuit court failed to take into consideration the

parties’ respective salaries and her homemaker contributions in its determination of the

distribution of the marital property. Petitioner bases this argument on the circuit court’s

award of $121,500 from the equity in the marital residence to respondent.

¶ 52 The parties agreed that the appraised value of the marital home was $243,000, and

regarding the parties’ contributions to the marital residence, the circuit court held as

follows:

22 “It’s all marital money, so it’s all coming from the same pot. *** So the

$243,000.00 is going to be divided equally between the parties as far as the

equity.”

¶ 53 According to petitioner, the circuit court’s determination that the parties’ respective

salaries were marital income resulted in respondent receiving approximately 72% of the

monies he contributed to the marital estate compared to the approximately 22% of the

monies that petitioner contributed to the marital estate. As such, petitioner argues that the

circuit court failed to properly apply the factors for the division of property under section

503(d)(1) of the Act when it failed to consider each party’s respective salaries and her

homemaker contributions.

¶ 54 In support of her argument, petitioner cites to In re Marriage of Marriott, 264 Ill.

App. 3d 23, 30-32 (1994). Petitioner notes that the Marriott court affirmed the lower

court’s award of two-thirds of the marital residence’s value to one party where the circuit

court had found that the one party had made a greater contribution to the acquisition and

preservation of the marital residence. The marital residence in the Marriott matter was

obtained through a trust from one of the individual’s parent prior to the marriage, and then

a warranty deed was conveyed to both parties approximately five years after they were

married. Id. Other factors, such as home improvements made through an interest free loan

from one spouse to the other, were also considered by the Marriott court. Id.

¶ 55 As previously stated, the distribution of marital property rests within the sound

discretion of the circuit court based upon its consideration of all relevant factors. In re

Marriage of Marriott, 2015 IL App (5th) 140062, ¶ 59. The Marriott court considered the 23 specific factors under section 503(d)(1) of the Act as they applied to the marital property

at issue in that case in making its determination that one party had made a greater

contribution to the acquisition and preservation of the marital residence. Here, however,

the circuit court did not find that either party had made a greater contribution to the marital

residence. Petitioner does not cite to any portion of the Marriott case to demonstrate the

same or similar facts which may have indicated that the circuit court made an incorrect

finding in this matter that neither party made a greater contribution to the marital estate.

Further, petitioner’s only citation to the record in support of her position that she

contributed more to the marital estate leads to a portion of petitioner’s closing argument.

¶ 56 In this matter, the circuit court had the financial affidavits of both parties along with

evidence demonstrating the parties’ contributions to the marital residence and determined

that both parties’ contributions to the marital residence came from marital property. As

such, the circuit court made an equal division of the equity in the marital residence. Other

than petitioner’s argument regarding the funds she paid towards the down payment of the

marital residence, which we have already addressed above, petitioner has not demonstrated

that any of the funds she contributed to the marital residence did not come from marital

property.

¶ 57 Petitioner also argues that the circuit court failed to take into consideration her

homemaker contributions in its determination of the distribution of the marital property.

Petitioner cites to section 503(d) of the Act which provides that marital property shall be

divided in just proportions upon consideration of all relevant factors, including the

contribution of a spouse as a homemaker. 750 ILCS 5/503(d)(1)(ii) (West 2018). Petitioner 24 then cites to the record at “(Sup. C 11),” which is a portion of her position statement

pursuant to Twentieth Judicial Circuit Court Rule 8.03 2 (St. Clair County Cir. Ct. R. 8.03

(Mar. 28, 2016)). In her position statement, petitioner stated that although she was

employed, she was also a homemaker who cleaned the home, prepared the meals, taught

the parties’ children to read, and paid for the children to learn Spanish. She provides no

indication within her position statement on a specific value that the circuit court should

have placed on her contribution as a homemaker. Petitioner also fails to cite any relevant

authority in support of her argument that the circuit court failed to consider her

contributions as a homemaker.

¶ 58 On appeal, petitioner also fails to make any argument on the value she believes the

circuit court should have placed on her homemaker contribution. Petitioner’s argument is

solely based on the circuit court’s finding that respondent received half of the equity in the

marital residence. We also note that petitioner’s computations in determining the above

percentage concerning the parties’ contributions to the marital estate include monetary

amounts that the circuit court ruled were gifts to the marital estate. As such, petitioner fails

to cite any portion of the record that demonstrates that the circuit court failed to consider

her homemaker contributions. Therefore, we find that the circuit court did not fail to take

into consideration the parties’ respective salaries and petitioner’s homemaker contributions

in its determination of the distribution of the marital property and that the circuit court’s

2 The Twentieth Judicial Circuit Court Rule 8.03 requires that the parties shall file a statement of proposed resolution of all issues not less than seven days before the final hearing in any disputed case involving property, attorney fees, custody, allocation of parental responsibilities, parenting time, visitation, maintenance, or child support. St. Clair County Cir. Ct. R. 8.03 (Mar. 28, 2016). 25 finding regarding the equity in the marital residence was not against the manifest weight

of the evidence.

¶ 59 C. Postnuptial Agreement

¶ 60 Petitioner raises two issues concerning the parties’ postnuptial agreement. First,

petitioner argues that the circuit court erred in its interpretation of the postnuptial

agreement by failing to allocate the outstanding installment loan in her name that she

maintains was incurred to purchase the furnace and air conditioning unit (furnace) for the

marital home during the marriage. Second, petitioner argues that the circuit court erred in

its interpretation of the postnuptial agreement in determining that the Cedar Ridge

residence purchased by respondent with funds from his retirement accounts was nonmarital

¶ 61 Concerning the issue of the installment loan on the furnace, the circuit court held as

“Further, all of the work that was done on the home, whether by

[petitioner], or by [respondent], or by contractors paid for by one or either of

the parties, all of those funds came from marital assets, increasing the value

of the marital property. So I am not going to award one party a higher

percentage of the marital property because of the testimony that they did

more work or they may have paid for more work. It’s all marital money, so

it’s all coming from the same pot.”

¶ 62 Petitioner argues that the furnace repair/replacement fell within the exception of

paragraph 2 of the parties’ postnuptial agreement since it was a major home renovation or 26 repair. As such, petitioner argues that respondent should have been responsible for one-

half of the related installment loan.

¶ 63 Respondent argues that petitioner provided a receipt that demonstrated the furnace

repair/replacement but that petitioner offered no testimony or evidence that there remained

an outstanding debt on the installment loan.

¶ 64 Paragraph 2 of the parties’ postnuptial agreement states:

“2. All credit card debt and/or installment loans, with the exception of

major home renovations or repairs shall be the responsibility of the person

incurring the liability and any associated asset shall be considered an asset

belonging to the party incurring and paying the debt.”

¶ 65 The record reflects that petitioner testified at trial regarding the furnace as follows:

“There was a provision where there was a special they were running with

the air conditioner and furnace, so I did that group thing to get that. I’m

paying over that. It was a 72 month same as cash kind of situation.”

¶ 66 An invoice from Archway Cooling and Heating for the installation of the furnace

dated December 20, 2017, was admitted as an exhibit at trial. Therefore, we agree with

petitioner that she presented evidence that the installation of the furnace was a major home

renovation or repair that fell within the exception of paragraph 2 of the parties’ postnuptial

agreement.

¶ 67 The circuit court, however, did not base its finding regarding the installment loan

for the furnace on the parties’ postnuptial agreement. The circuit court instead determined

that all repairs and/or improvement paid for by one or either of the parties came from 27 marital assets. The invoice from Archway Cooling and Heating for the installation of the

furnace was dated December 20, 2017, and indicated that there was a balance due of

$11,775. Petitioner testified that she was “paying over that.” The parties’ marriage was

terminated on June 17, 2019, and as such, petitioner would have been making payments on

the installment loan for 18 months before the marriage terminated.

¶ 68 Petitioner offered no evidence at trial concerning the amount of the payments on the

installment loan other than “[i]t was a 72 month same as cash kind of situation.” Petitioner

offered no evidence of the outstanding balance on the installment loan, if any, at the time

the parties’ marriage terminated which could have demonstrated to the circuit court at trial

that any portion of the installment loan was paid with nonmarital funds. The party claiming

that the property is nonmarital has the burden of proof, and any doubts as to the nature of

the property are to be resolved in favor that the property is marital. In re Marriage of

Didier, 318 Ill. App. 3d at 275. Petitioner failed to carry her burden of proof at trial to

demonstrate that any portion of the installment loan was paid for with nonmarital funds or

that there remained any outstanding balance on the installment loan at the time of trial. As

such, we find that the circuit court’s determination that the installation loan for the furnace

would not be deducted from respondent’s share of the equity in the marital residence was

not against the manifest weight of the evidence.

¶ 69 Next, petitioner argues that the circuit court erred in its interpretation of the

postnuptial agreement when it determined that the Cedar Ridge residence purchased by

respondent from his retirement account funds was nonmarital property. Petitioner argues

that paragraph 2 of parties’ postnuptial agreement referred to installment loans and not a 28 mortgage and that the parties’ postnuptial agreement is silent with respect to real estate and

mortgages. As such, petitioner concludes that the circuit court should have determined that

the Cedar Ridge residence did not fall within paragraph 2 of the parties’ postnuptial

¶ 70 Further, petitioner argues that the Cedar Ridge residence was purchased by

respondent on August 17, 2017, with a $46,400 loan from the marital 403(d) account held

in respondent’s name. According to petitioner, paragraph 3 of the parties’ postnuptial

agreement concerning retirement accounts was not triggered until September 14, 2017,

when petitioner filed for legal separation. As such, petitioner argues that, at the time

respondent purchased the residence, respondent’s 403(d) account was still marital property

and that the circuit court should have awarded her one-half of the equity in the Cedar Ridge

residence.

¶ 71 Respondent argues that the circuit court properly determined that the Cedar Ridge

residence was nonmarital property since it was an installment type loan that fell within

paragraph 2 of the parties’ postnuptial agreement. Respondent argues that he was

responsible for incurring the liability and paying the debt on the property and, as such, the

Cedar Ridge residence was an asset that belonged to him and not the marital estate.

Respondent further argues that paragraph 3 required all retirement accounts to be treated

as nonmarital property in the event of a legal separation or divorce. Since the Cedar Ridge

residence was purchased with funds from respondent’s retirement account, respondent

argues that it was purchased with nonmarital funds and, as such, was nonmarital property.

29 ¶ 72 As noted previously, section 503(a) of the Act requires a circuit court to classify

property as either marital or nonmarital prior to allocating the property. 750 ILCS 5/503(a)

(West 2018). We will not disturb a circuit court’s classification unless it is against the

manifest weight of the evidence. In Marriage of Winne, 239 Ill. App. 3d at 280. Further,

there is a presumption that property is marital unless there is clear and convincing evidence

that the property falls within one of the exceptions listed in section 503(a) of the Act. 750

ILCS 5/503(b)(1) (West 2018). Section 503(a)(4) of the Act provides that marital property

does not include property excluded from the marital estate by a valid agreement of the

parties, including a premarital or postnuptial agreement. Id. § 503(a)(4).

¶ 73 The parties executed a postnuptial agreement on November 3, 2007, and neither

party disputed the validity of their postnuptial agreement. As a reminder, paragraphs 2 and

3 of the parties’ postnuptial agreement are as follows:

“2. All credit card debt and/or installment loans, with the exception of

major home renovations or repairs shall be the responsibility of the person

incurring the liability and any associated asset shall be considered an asset

Further in the event of legal separation or divorce, [respondent] and

3. All pensions and 401(k), 403(d), or similar retirement instruments shall

be treated as non-marital property with each party being entitled to their

respective pensions and 401(k), 403(d), or similar retirement instruments.”

30 ¶ 74 The circuit court held that the Cedar Ridge residence was respondent’s nonmarital

property based on the parties’ postnuptial agreement but did not give a direct finding of

whether the Cedar Ridge residence was nonmarital property based on paragraph 2, 3, or

both. Because we find, as discussed below, that the circuit court could have properly

determined that the Cedar Ridge residence was respondent’s nonmarital property pursuant

to paragraph 3 of the parties’ postnuptial agreement, we will not address the parties’

arguments regarding paragraph 2 of the parties’ postnuptial agreement.

¶ 75 The circuit court interpreted paragraph 3 of the parties’ postnuptial agreement as

“The way that this is written and the terms that is uses, specifically in

paragraph 3, the word ‘all’ and the word ‘shall’ is mandatory. So if I take

[petitioner’s] interpretation, as of the day a legal separation or divorce is

filed, [i]n the event of a legal separation, all pension and 401(k) or similar

retirement instruments shall be treated as nonmarital property. All of it. It

does not say in the event of a legal separation or divorce, pensions, 401(k),

403(d), similar retirement accounts from that point forward will be deemed

nonmarital property. Anything prior is going to marital. The terms in this

postnup say ‘all’ and ‘shall.’

The moment that a legal separation or divorce is filed, all of that account,

every one of those accounts—it says ‘all,’ which is all encompassing, it is

finite—‘shall,’ which is mandatory, be treated as nonmarital property. 31 So, the interpretation of this is that upon filing that legal separation, all

pensions, all 401(k)’s, all 403(d)’s, all similar retirement instruments

immediately become nonmarital property.”

¶ 76 Ordinary rules of contract construction apply to the interpretation of settlement

agreements, and the primary purpose of construction is to ascertain and give effect to the

intent of the parties. In re Marriage of Frain, 258 Ill. App. 3d 475, 478 (1994). Where the

terms of an agreement are unambiguous, intent must be determined solely from the

language. Id. A court must also strive to avoid interpretations that would render any

provision superfluous. Hytel Group, Inc. v. Butler, 405 Ill. App. 3d 113, 124 (2010). The

construction of a contract presents a question of law subject to de novo review. In re

Marriage of Best, 387 Ill. App. 3d 948, 949 (2009).

¶ 77 In this matter, we agree with the circuit court that paragraph 3 of the parties’

postnuptial agreement regarding any retirement accounts stated that “all” such accounts

“shall” be treated as nonmarital property in the event of a legal separation or divorce. As

the circuit court pointed out, the agreement did not state that any retirement funds from the

point of legal separation or divorce forward would be deemed nonmarital property. We

also find that accepting petitioner’s argument that the parties’ retirement funds prior to her

filing the petition for legal separation remained marital property would render the term

superfluous since, after a legal separation or divorce, there would be little to no retirement

funds for the parties to treat as nonmarital property and would defeat the purpose of

ensuring that each party would retain their retirement accounts in the event of a legal

separation or divorce. As such, we find that the circuit court properly determined that 32 paragraph 3 of the parties’ postnuptial agreement required the entirety of parties’ retirement

accounts to be treated as nonmarital property. Therefore, we find that the circuit court did

not err in its construction of the parties’ postnuptial agreement.

¶ 78 Section 503(a)(6.5) excepts from marital property “all property acquired by a spouse

by the sole use of non-marital property as collateral for a loan that then is used to acquire

property during the marriage.” 750 ILCS 5/503(a)(6.5) (West 2018). Since respondent

utilized nonmarital property as collateral for the loan to acquire the Cedar Ridge residence,

we find that the circuit court’s determination that the Cedar Ridge residence was

respondent’s nonmarital property was not against the manifest weight of the evidence.

¶ 79 Based on the foregoing, we find that the circuit court’s findings regarding child

support and the distribution of marital property were not against the manifest weight of the

evidence. We further find that petitioner forfeited on appeal her issue regarding the

Michigan accounts, waived her issue regarding dissipation, and that her issue of attorney

fees is inapplicable.

¶ 80 III. CONCLUSION

¶ 81 For the foregoing reasons, we affirm the judgment of the circuit court.

¶ 82 Affirmed.