In re Marriage of Katsap

2022 IL App (2d) 210706, 214 N.E.3d 945, 465 Ill. Dec. 182

• Court: Appellate Court of Illinois
• Decided: August 2, 2022
• Docket: 2-21-0706
• Status: Published

Opinion

2022 IL App (2d) 210706 No. 2-21-0706 Opinion filed August 2, 2022 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

In re MARRIAGE OF ) Appeal from the Circuit Court ENEYA KATSAP, ) of Du Page County. ) Petitioner-Appellant, ) ) and ) No. 20-D-811 ) ALEXANDER KATSAP, ) Honorable ) Neal W. Cerne, Respondent-Appellee. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices Hudson and Brennan concurred in the judgment and opinion.

OPINION

¶1 Petitioner, Eneya Katsap, appeals from the trial court’s entry of a judgment of dissolution

of her marriage (JDOM) to respondent, Alexander Katsap. We affirm in part, reverse in part, vacate

in part, and remand for further proceedings.

¶2 I. BACKGROUND

¶3 A. The Parties

¶4 Eneya and Alexander were both born in Russia. At the time of trial in 2021, Eneya was 39

years old, and Alexander was 43 years old. They were married in Israel on March 4, 2010. One

minor child, E.K., was born to the parties in the United States by surrogacy on January 28, 2019.

Because Eneya was unable to carry a child to term, the parties created frozen embryos, which are 2022 IL App (2d) 210706

stored at the New England Fertility Institute in Connecticut. The parties also created an escrow

account for maintenance of the embryos. Approximately $6000 is in that escrow account.

¶5 Prior to April 2020, the parties resided in upstate New York. They formed and co-owned a

business known as Alex Solutions, Inc. (Alex Solutions), which sold, installed, and repaired

commercial and residential fire alarms, security systems, and closed-circuit TV cameras. As a

result of marital difficulties, Alexander moved out of the marital residence on March 27, 2020.

¶6 In April 2020, Eneya, E.K., and Eneya’s parents moved to Naperville, Illinois, without

informing Alexander of their whereabouts. Shortly after their move to Naperville, and again

without informing Alexander, Enya, E.K., and Eneya’s parents moved to Buffalo Grove.

¶7 After Eneya and E.K. moved to Naperville, Alexander discovered their location. He

obtained an order from a New York court to return E.K. to New York. Eneya was served with that

order. Eneya then obtained an order of protection against Alexander in the circuit court of Du Page

County. Upon learning of the Illinois action, the New York court relinquished jurisdiction.

¶8 B. Pretrial Proceedings

¶9 On May 26, 2020, Eneya petitioned in Du Page County for dissolution of marriage. She

alleged irreconcilable differences. On May 5, 2021, Alexander filed a counterpetition for

dissolution of marriage, which he withdrew prior to trial.

¶ 10 1. Eneya’s Emergency Motion for Substitution of Judge

¶ 11 On November 16, 2020, Judge Neal W. Cerne began presiding over the matter. Judge

Cerne entered temporary orders (1) granting Eneya child support, (2) denying Eneya interim

attorney fees, (3) restricting the parties from traveling outside Illinois with E.K., 1 (4) granting

1 Alexander continued to reside in New York.

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Alexander parenting time, and (5) placing E.K. in part-time day care. In addition, Judge Cerne set

dates for the close of discovery and trial.

¶ 12 On May 12, 2021, Eneya filed an emergency motion for substitution of judge as of right.

On May 14, 2021, Judge Cerne denied the motion for substitution of judge on the grounds that the

motion was untimely and that the court had ruled on substantive matters. Subsequently, the court

denied Eneya’s motion to reconsider and her request to certify the question to this court.

¶ 13 2. E.K.’s Day Care

¶ 14 On April 14, 2021, Alexander filed an emergency motion seeking temporary allocation of

decision-making responsibilities for E.K. Alexander alleged the following. Eneya unilaterally

enrolled E.K. in day care in Buffalo Grove. After learning this, Alexander expressed his concerns

to Eneya about her lack of discussion with him regarding the choice of day care, the facility’s

COVID-19 precautions, and the duration of E.K.’s enrollment. Alexander researched other day

care facilities in Eneya’s area and proposed three to Eneya. Eneya rejected all three in favor of

Chateau Elite, a Russian-speaking daycare. Alexander was concerned that E.K. would not learn

English. Alexander also generally objected to day care, as Eneya was not employed and could care

for E.K.

¶ 15 The court held a hearing on April 21, 2021. As of that date, Eneya had already enrolled

E.K. full-time at Chateau Elite. The guardian ad litem, Kiley Whitty, raised several concerns about

the enrollment. She stated that Chateau Elite would not provide Alexander access to information

concerning E.K. Whitty stated that Chateau Elite would not furnish any information to her either,

nor would Eneya sign authorizations so that Whitty could obtain information from Chateau Elite.

Whitty’s next concern was that Chateau Elite was not following Illinois Department of Health

guidelines regarding wearing face masks due to the pandemic. Whitty’s last concern was that E.K.

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should not be in day care full-time. Whitty recommended that E.K. attend Kiddie Academy in

Arlington Heights part-time.

¶ 16 Eneya’s counsel, Shawn Monroe, expressed that E.K. spoke Russian and Hebrew at home

and would be more comfortable with Russian at day care. Monroe noted that personnel at Chateau

Elite also spoke English. Alexander’s counsel noted that Chateau Elite’s website advertised that it

was monolingual Russian.

¶ 17 The court stated that its main concern was whether E.K. should be in day care full-time.

The court determined that it was in E.K.’s best interests to be cared for at home by Eneya and her

parents. The court also noted that Eneya would have to find work. The court ruled that part-time

day care at Kiddie Academy was more suitable than Chateau Elite.

¶ 18 Monroe stated that Chateau Elite also provided part-time daycare. Then, the following

occurred.

“[MR. MONROE]: Judge, why can’t the child stay in Chateau Elite half days

since he’s already there?

***

[THE COURT]: *** I’m not going to be bound by parties taking actions upon

themselves, and then saying, Oh, Judge, we’ve been doing it for this long. And I told you

explicitly the fact that the child is there is not going to be a factor, because otherwise I

would have pulled the child immediately at that time—

[MR. MONROE]: But Chateau Elite has half days.

[THE COURT]: Counsel, I’m not going to be toyed [sic]. Okay? All right. I would

have taken the child out immediately if it was going to be used against me. You’re not

going to play with me like that. Okay?”

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¶ 19 On April 21, 2021, the court entered a written order directing that E.K. be “immediately

removed” from Chateau Elite and “immediately enrolled” at Kiddie Academy for three half days

per week.

¶ 20 3. Eneya’s Motion for Declaratory Judgment—the Ketubah

¶ 21 On May 25, 2021, Eneya filed a verified “motion for a declaratory judgment,” pursuant to

section 2-701(a) of the Code of Civil Procedure (Code) (735 ILCS 5/2-701(a) (West 2018)), to

enforce an alleged marriage contract. Eneya alleged that, upon the parties’ marriage, Alexander

signed a document known as a “ketubah.” Eneya described a ketubah as a “marital agreement”

and an “essential requirement of traditional Orthodox Jewish weddings in Israel.” Attached to her

motion were (1) Eneya’s affidavit attesting that Alexander signed the ketubah and intended to be

bound by it, (2) a one-page document written in a foreign script (later identified as either Aramaic

or Hebrew), and (3) a purported English translation of the foreign document. In pertinent part, the

translation, which is not certified, recites the following. Alexander agreed on behalf of himself and

his heirs, in the event of a divorce, to pay Eneya $1 million 2 out of all of the property that he owned

or would acquire in the future. Alexander agreed not to persuade Eneya to “waive” any of the

terms of the ketubah. Alexander further agreed not to remarry and not to leave Israel until he

provided Eneya with child support in an amount to be determined by a rabbinical court.

¶ 22 On June 3, 2021, Alexander filed a motion for judgment on the pleadings. Alexander

argued that the ketubah is not enforceable as a prenuptial agreement within the meaning of the

Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/501 et seq. (West 2018)) and

that it contains terms that are against public policy, such as prohibiting Alexander from remarrying.

2 The translation says “dollars” rather than specifying Israeli currency.

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¶ 23 At the hearing on the declaratory judgment motion, Eneya asked the court to declare the

ketubah valid and subject to an order of specific performance upon dissolution of the marriage.

The court found the ketubah to be unenforceable under Illinois law. Specifically, the court found

that the ketubah usurped the court’s authority to set child support and to divide marital property.

The court also found certain terms to be unconscionable, including restricting Alexander’s right to

remarry and his right to leave Israel. The court opined that the ketubah was a type of wedding vow

and, therefore, presented a “religious issue.”

¶ 24 4. Eneya’s Claims of Dissipation of Marital Assets

¶ 25 On June 25, 2021, Eneya filed a notice of intent to claim dissipation of marital assets.

Specifically, Eneya alleged that Alexander (1) withdrew $8000 from a marital account,

(2) devalued Alex Solutions, (3) liquidated the lease on one of the parties’ two vehicles, and

(4) used marital funds to pay child support to a former wife.

¶ 26 5. Alexander’s Motion for Permanent Injunction

¶ 27 On June 3, 2021, Alexander filed a motion to restrain Eneya permanently from using the

parties’ frozen embryos or, in the alternative, to find that Alexander had no child-support

obligation for any child born from the frozen embryos. Alexander alleged that Eneya forged his

name to a contract giving her sole custody of the embryos. Alexander also alleged that the

purported contract was otherwise invalid. The court ordered the motion to be heard with the trial.

¶ 28 C. The Trial

¶ 29 The trial occurred over four days, commencing on July 8, 2021.

¶ 30 1. Eneya’s Case-in-Chief

¶ 31 a. Alexander—as an Adverse Witness

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¶ 32 Under cross-examination as an adverse witness, Alexander testified as follows. In October

2017, the parties established Alex Solutions as business partners and equal shareholders. Alex

Solutions was Eneya’s only source of income. From October 2017 to the present, Alex Solutions

was Alexander’s sole employer, although he did some independent contract work. Beginning in

March 2020, with the onset of the COVID-19 pandemic, Alex Solutions’ business “dried up.” The

business’s largest customers terminated Alex Solutions’ services. Also contributing to the

business’s demise was the parties’ move several hours away from New York City. In mid-March

2020, Alexander began receiving unemployment compensation benefits.

¶ 33 On March 27, 2020, Alexander moved out of the marital home. Alexander took the keys

and garage remotes from the home, but the apartment manager had another set of each. That

evening, Alexander received an e-mail from Eneya telling him that she would be moving soon.

Between March 27 and March 31, 2020, Eneya confirmed in e-mails to Alexander that she would

be moving out of state. Eneya “emptied out” both their personal and business bank accounts.

¶ 34 The parties owned a 2015 Toyota Highlander and leased a 2019 Toyota 4-Runner. When

Alexander left the marital home on March 27, 2020, he and Eneya agreed to sell the Highlander to

cover Alex Solutions’ debts. Alexander did not sell the vehicle because Eneya obtained an order

of protection covering that vehicle, and later, the parties agreed that Alexander would not sell it.

On May 10, 2021, Alexander relinquished the lease on the 4-Runner without informing Eneya.

¶ 35 In April 2020, Alexander, without Eneya’s knowledge, opened a corporate checking

account to which only he had access. Alexander made business deposits into that account.

Alexander also made withdrawals from the account. The checks that were deposited into the

account in 2020 were for jobs that were completed in 2019. Alexander did not keep records of the

dates that he performed such services. Alex Solutions reported income in 2020 of approximately

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$89,000. That income was for jobs that were performed prior to 2020. Alexander’s unemployment

benefits totaled approximately $31,000 in 2020. In addition, Alexander withdrew $8000 from an

IRA account in 2020.

¶ 36 On March 27, 2020, Alexander opened a personal checking account to which Eneya did

not have access. Alexander deposited into that account checks he received for his unemployment

benefits and for doing independent-contractor work.

¶ 37 In 2021, without Eneya’s knowledge, Alexander obtained a $70,500 government small

business loan for Alex Solutions. Alexander pledged the business’s assets as collateral. Alexander

paid himself a salary from Alex Solutions but paid Eneya nothing.

¶ 38 Alexander’s parents loaned him $102,000 for surrogacy purposes. He did not have any

records to show that the money was a loan. In 2016, Alexander began receiving $600 per month

in insurance proceeds from fire damage sustained by a business that he owned while he was in

Israel. Those payments would cease in 2023. Alexander signed those payments over to his brother

in Israel to pay child support to Alexander’s former wife. After Alexander left the marital home in

March 2020, some friends loaned him money.

¶ 39 Upon questioning by his own counsel, Alexander testified as follows. He had an interest in

an Israeli company known as Kast Systems. That company was formed in 2003 but last made

money in 2014. Kast Systems consisted of debt.

¶ 40 Even though Eneya informed Alexander that she would be moving away from New York,

he did not believe her because, during the pandemic, “everybody prefer [sic] to stay home.” Prior

to May 2020, Alexander did not know that Eneya was in Illinois. He tried to reach Eneya, but she

had removed the SIM card from her phone. After a couple weeks of not being able to contact

Eneya, Alexander had her phone disconnected so that he would not have to pay the bill. Upon

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learning that Eneya was in Illinois, Alexander obtained a court order giving him sole custody of

E.K. and for E.K.’s return to New York. Alexander and a friend drove to Illinois, where his friend

served the order on Eneya. Two days later, Eneya obtained from an Illinois court an order of

protection against Alexander.

¶ 41 Alexander was making the lease payments on the Toyota 4-Runner. He told Eneya that she

could take over those payments, but she declined to do so, so he returned the vehicle. Alexander

opened a new business account because Eneya withdrew $5000 from their old business account.

He opened a personal checking account because Eneya withdrew all of the funds from their joint

account. Alex Solutions did not enter into any new contracts in 2020. All of the money that came

into Alex Solutions after 2020 was used to pay business expenses. Eneya took the company

computer that contained all of Alex Solutions’ business records.

¶ 42 Alexander’s parents continued to loan him money after E.K. was born, because Alexander

and Eneya were planning to have a second child by surrogacy.

¶ 43 b. Svetlana Shoykhet

¶ 44 Svetlana Shoykhet is Eneya’s mother. She testified through a Russian interpreter, as

follows. Svetlana and Boris Shoykhet, her husband and Eneya’s father, sold their apartment in

Israel and liquidated Boris’s pension to fund Eneya’s plan to have a baby through surrogacy.

Eneya’s parents gave her approximately $150,000 in cash so that Eneya could have a child.

¶ 45 The Shoykhets, Eneya, and E.K. left New York to escape Alexander. Svetlana never saw

Alexander interact with E.K. The Shoykhet family was currently living in Buffalo Grove, and the

Shoykhets were supporting Eneya.

¶ 46 c. Kiley Whitty—the Court’s Witness

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¶ 47 Whitty summarized her written report, as follows. Whitty began her investigation on July

6, 2020. She met and corresponded with both parents. Whitty also reviewed the court file, various

documents submitted by the parties, and E.K.’s medical records.

¶ 48 In September 2020, Whitty observed Alexander’s 45-minute visitation with E.K. E.K. was

comfortable with Alexander. E.K. seemed comfortable with Eneya also, although Eneya would

not permit Whitty to visit E.K. at her home or a playground. Whitty testified that Eneya did not

allow Whitty follow-up visits after August 2020.

¶ 49 In January 2021, Whitty observed Alexander’s visitation with E.K. in Alexander’s hotel

room. 3 The room was “safe and appropriate” for the child, and Alexander had a high chair, food,

cups, diapers, toys, and sleeping paraphernalia for E.K. Whitty had no concerns for E.K.’s safety

or well-being during Alexander’s visits. Eneya would not permit Whitty to visit with E.K.

immediately after Alexander’s visits to determine whether E.K. displayed issues after his father’s

visits.

¶ 50 Whitty testified that E.K. was healthy. According to Whitty, Eneya noted on Chateau

Elite’s enrollment form that E.K. was a “picky eater” but was otherwise healthy. This was different

from August 2020, when Eneya was reporting that E.K. was banging his head and having night

terrors, which Eneya attributed to E.K.’s visits with Alexander. E.K.’s physician believed that

E.K.’s behavior could have been caused by other things, such as stress from multiple moves or not

having consistent parenting time. Whitty believed that, given Alexander’s limited travel budget,

maintaining once-monthly visits was appropriate.

3 Alexander traveled from New York to visit E.K.

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¶ 51 Whitty testified that Eneya consistently refused to give her or Alexander “substantial

amounts” of information about E.K. Eneya had informed care providers that she had sole custody

of E.K. and that Alexander had sexually abused him, thus, blocking Alexander from

communicating with providers. Whitty noted that Eneya also exaggerated E.K.’s medical

conditions, such as a hernia and reflux. Although the doctor recommended that E.K. be allowed to

cry in his crib, Eneya insisted that crying aggravated E.K.’s stomach hernia. Instead of accepting

the doctor’s recommendation for a routine medication to help the reflux, Eneya wanted E.K. to see

specialists.

¶ 52 The court then examined Whitty. Specifically, the court asked why Eneya came to live in

Illinois. According to Whitty, Eneya searched the Internet to find the best and safest places to live

and found Naperville. Also, Eneya had heard about Naperville from a family friend. As to Eneya’s

impetus to leave New York, Whitty testified that Eneya had accused Alexander of physically

abusing her and E.K. According to Eneya, when E.K. was approximately four months old,

Alexander stuffed an orange peel in E.K.’s mouth and tried to force E.K. to do sit-ups. Eneya also

alleged that Alexander sexually abused E.K.

¶ 53 Whitty had “serious reservations” about Eneya’s ability to foster a relationship between

Alexander and E.K. Eneya told Whitty that Eneya wanted Alexander to “just go away and never

speak to her or see the child ever again.” According to Whitty, Eneya was not “willing to

communicate with [Alexander] with regard to decisions for the child.” Rather, Eneya’s court-

ordered communications with Alexander were perfunctory, on the order of “Your son is well, safe

and happy with our family.” Eneya refused to allow Whitty or Alexander access to E.K.’s medical

information. Whitty did not consider making Alexander the primary parent, because Alexander

never made such a request.

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¶ 54 Under cross-examination by Eneya’s attorney, Whitty testified to the following. Eneya was

granted an order of protection against Alexander after a hearing in which Alexander was present

and represented by counsel. That order of protection was later extended. Whitty was also aware of

an agreed no-contact order between the parties.

¶ 55 Whitty opposed enrolling E.K. in day care at Chateau Elite, because Chateau Elite did not

provide parents with written reports or updates and Whitty was concerned that Eneya would not

pass on information to Alexander. In addition, the director at Chateau Elite had been “curt and

short” with both Whitty and Alexander, Eneya did not provide Alexander’s contact information to

Chateau Elite, and Whitty believed that the day care would not “facilitate [Alexander’s]

involvement.”

¶ 56 Whitty knew that Eneya had made allegations that Alexander sexually abused E.K. Whitty

testified: “I did not find [Eneya’s] explanations *** to be particularly credible.” Whitty found

Alexander to be more credible than Eneya.

¶ 57 Under cross-examination by Alexander’s attorney, Whitty testified that she reviewed

reports of four supervised visits that Alexander had with E.K. The reports indicated that those

visits were “without incident” and that Alexander presented no danger to E.K. Whitty was also

aware that the order of protection had been vacated and that Alexander’s parenting time had been

extended. On January 29, 2021, Whitty observed Alexander’s visitation with E.K. During that

visit, E.K. was “content, he was happy, he was playful, he was energetic.”

¶ 58 Eneya did not respond to Whitty’s requests for home visits or provide Whitty with releases

to obtain E.K.’s medical information. Whitty did not believe that Eneya was complying with her

obligation to provide Alexander detailed information concerning E.K. Whitty recommended day

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care for E.K. at Kiddie Academy because that facility would provide Alexander with a portal where

he could stay informed as to E.K.’s daily activities.

¶ 59 d. Boris Shoykhet

¶ 60 Boris Shoykhet testified through a Russian interpreter, as follows. He is Eneya’s father.

Boris gave Eneya $150,000 in cash for the surrogacy process. This payment was a loan, which

Eneya promised to repay. After E.K. was conceived, Boris gave Eneya another $80,000 for a

second surrogacy. “Something went wrong” with the second surrogacy, and Eneya refunded

$51,000 to Boris after the surrogacy agency kept the balance.

¶ 61 e. Eneya

¶ 62 Eneya was the “administrator manager” for Alex Solutions. She handled all of the office

work, including accounting and drafting customer contracts. Currently, she was working for a

temporary agency, earning $600 per week net.

¶ 63 In 2013, while the parties were living in Israel, they created embryos. They brought the

embryos to the United States when they moved here. The embryos were stored at the New England

Fertility Institute in Connecticut. Eneya and Alexander signed a contract on July 8, 2015, giving

the embryos to Eneya if the parties divorced. The original document was identified and entered

into evidence as petitioner’s exhibit No. 45.

¶ 64 Eneya’s parents gave her $150,000 for the first surrogacy. Neither Alexander nor his

parents contributed to this surrogacy fund. Alexander’s parents did not know about the surrogacy.

Eneya intends to repay the sum to her parents. Eneya planned the second surrogacy even before

E.K was born. Alexander was against a second surrogacy. Eneya’s parents gave her $80,000

toward the second surrogacy. The second surrogacy was canceled due to the parties’ separation.

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$30,000 that Eneya had paid toward it was nonrefundable. Eneya remitted the balance of $51,000

to her father.

¶ 65 E.K. was born prematurely. He was underweight and had “severe” acid reflux and a hernia.

Svetlana helped care for E.K., as Alexander always made excuses to “rest” or “sleep” instead of

help with the baby. When Alexander tended the baby, “horrible” things happened. Alexander

stuffed an orange peel into E.K.’s mouth. Another time, Alexander almost dropped the baby. On

July 30, 2019, Eneya called a domestic violence social worker because Alexander grabbed her

neck.

¶ 66 When Alexander moved out of the marital home in March 2020, he took everything that

belonged to him. Alexander also took both vehicles. Eneya had always driven the Highlander,

which Alexander had purchased for her. She did not agree to sell that vehicle after the parties

separated. Eneya took money from the parties’ bank accounts because Alexander “didn’t leave me

anything” except $12,000 in business debts. Alexander even took all of the appliances, including

the washer and dryer. Under questioning by the court, Eneya clarified that Alexander left items

inside the garage but took the remote so that she could not access the garage. On April 3, 2020,

Alexander tried to break into the former marital apartment.

¶ 67 Eneya, E.K., and her parents moved to Naperville because Eneya feared for her and E.K.’s

safety. Eneya feared that Alexander would come after her with an axe because he had threatened

her in an e-mail. They moved to Buffalo Grove because there is a large Russian-speaking

community there.

¶ 68 In November 2020, pursuant to a court order, Alexander began paying Eneya $100 per

month in child support. Eneya was still part owner of Alex Solutions, although Alexander was now

“in control” of the business. She received nothing from the business except the $5000 she took

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from the corporate bank account before she moved to Illinois. Alex Solutions owned

approximately $80,000 worth of equipment. Alex Solutions’ business stayed “stable” during the

pandemic. Eneya believed that Alexander was also working for another company owned by his

friend Vadim Belyaev.

¶ 69 Eneya first enrolled E.K. in a Jewish day care in Buffalo Grove, but she did not send E.K.

there when Alexander refused to help pay the expense. 4 Then, Eneya placed E.K. at Chateau Elite.

She chose Chateau Elite because it is Russian-speaking, and she approved of the food and culture.

E.K. still has health issues, including an allergy to hazelnuts. Eneya keeps Alexander informed of

all of E.K.’s medical conditions.

¶ 70 Alexander received an insurance award of 160,000 Israeli shekels, or approximately

$60,000. Eneya was not aware that Alexander had assigned this award to his brother to pay child

support to Alexander’s former wife.

¶ 71 f. Shanna Hoekstra

¶ 72 Shanna Hoekstra is a clinical therapist. Beginning on July 27, 2020, she met five times

with Eneya. Eneya believed that E.K. was having behavioral problems related to the parties’

separation and divorce. Hoekstra recommended that E.K. have Facetime visits with Alexander

rather than in-person visitation. Hoekstra did not speak with E.K. or his doctors. All of Hoekstra’s

information came from Eneya.

4 On cross-examination, Eneya testified that Alexander did not refuse to pay for day care

and that he proposed four alternatives. Eneya testified that she rejected all of Alexander’s

suggestions because the day care facilities that he recommended were English-speaking only and

offered American food.

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¶ 73 Following Hoekstra’s testimony, Eneya rested.

¶ 74 2. Alexander’s Case-in-Chief

¶ 75 a. Alexander

¶ 76 Alexander commenced his case-in-chief by testifying as his first witness. Because of

COVID-19, Alex Solutions “shut down” in 2020. People started working from home, which

changed the entire market. Most of Alex Solutions’ customers were commercial entities that no

longer needed new security systems. Currently, Alex Solutions was doing “troubleshooting,”

servicing existing systems. Alex Solutions owned no real estate or inventory. Alexander had one

bag of tools worth about $500. Other than goodwill, Alex Solutions had zero value.

¶ 77 In January 2021, Alexander obtained a small business loan of $70,500 to keep Alex

Solutions operating. From those loan proceeds, Alexander paid himself a salary of $4800 per

month plus other business expenses. The loan would come due in January 2022 and was not subject

to forgiveness. Alex Solutions’ credit card carried a balance of $9094.50. Alex Solutions’ checking

account had a balance of $5783.94. Alex Solutions’ savings account had a balance of $55,002.37,

which was what was left of the loan proceeds. Business picked up after June 2021, but Alex

Solutions was still not making a profit. Alex Solutions could not be sold to a third party for any

money. In addition to paying himself $4800 per month, Alexander earned $295 per month working

as an independent contractor for a company called One Path.

¶ 78 Alexander owed his ex-wife in Israel $900 per month in child support. Alexander collected

$600 per month from an insurance claim in Israel, which he gave to his brother to pay toward the

child support. Alexander’s brother paid the additional $300 per month, which Alexander agreed to

repay to his brother. To date, Alexander owed his brother approximately $22,000.

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¶ 79 Prior to his marriage to Eneya, Alexander owned a business in Israel. That business was

no longer operating and consisted only of debt. Alexander maintained three personal credit cards

with a total balance of approximately $10,000. Alexander owed his parents $102,000. Alexander

owed Amichai Levy $6500. He owed Belyaev $41,000. Alexander owed $3800 for the apartment

where he and Eneya lived before their separation.

¶ 80 When Eneya left New York, she took all of the household items and appliances, including

Alexander’s jewelry. The items that Eneya removed from the marital residence were worth

between $15,000 and $20,000. Alexander’s monthly trips to Illinois to visit E.K. cost

approximately $1200.

¶ 81 Alexander and Eneya shared parental responsibilities for E.K. while they lived together.

As E.K. got older, Alexander played with him. Alexander never physically abused either Eneya or

E.K. After Alexander moved out, he returned to the apartment to try to speak with Eneya. Boris

told Alexander that he was not welcome, and he left. The next time Alexander came to the

apartment, it was empty.

¶ 82 Eneya does not give Alexander information concerning E.K. During one of Alexander’s

visits with E.K., Alexander found Eneya, wearing a blonde wig, stationed outside his hotel room

door. She fled when Alexander tried to photograph her. Since E.K. has been attending day care at

Kiddie Academy, Alexander has received daily reports from that facility regarding E.K.

¶ 83 Alexander denied that he entered into a contract with Eneya concerning the disposition of

their embryos. He did not sign petitioner’s exhibit No. 45, and he identified all of the handwriting

on that exhibit as Eneya’s. Alexander’s intention when they created the embryos was to donate

them if the parties ever separated or divorced. He affirmed that he currently wanted to donate the

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embryos. On cross-examination, however, he clarified that he did not want the embryos donated

to Eneya.

¶ 84 b. Eneya—as an Adverse Witness

¶ 85 Under cross-examination as an adverse witness, Eneya said that she took accounting

courses in Israel but never was licensed as an accountant. Eneya also had experience in medical

billing, human resources, and marketing. Eneya paid her attorneys from various bank accounts and

a credit card. Eneya took some furniture from the marital apartment when she moved to Illinois,

but Alexander took the washer and dryer.

¶ 86 Alexander rested. Eneya testified in rebuttal that she and Alexander agreed that Eneya

would receive the embryos if the parties separated or divorced and that, if Eneya died, her parents

would receive the embryos.

¶ 87 D. The JDOM

¶ 88 On November 23, 2021, the court entered its written JDOM. The court found that Eneya

“has shown little or no regard” for “speaking truthfully.” The court also found that Eneya showed

“little or no regard” for the importance of a father-son relationship. Specifically, the court found

that Eneya left New York with E.K. “under cover of darkness,” meaning that she did not inform

Alexander of their whereabouts and then, shortly after, moved to Buffalo Grove, also without

informing Alexander. The court found that Eneya made these moves in secrecy to prevent

Alexander from having a relationship with E.K. Because Eneya was, in the court’s opinion, a

“flight risk” and inclined to “abscond” with E.K., the court permanently restrained Eneya from

moving from her home in Buffalo Grove, possessing E.K.’s passport without leave of court, and

contacting the New England Fertility Institute. The court also specifically found that Alexander

did not physically abuse either E.K. or Eneya.

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¶ 89 The court found that Alexander did not dissipate the value of Alex Solutions but that Alex

Solutions lost its customers due to COVID-19.

¶ 90 The court granted Alexander exclusive possession and control of the embryos. It found that

petitioner’s exhibit No. 45, the purported contract giving the embryos to Eneya, was not

“authentic.” The court ordered Alexander to direct the clinic to donate the embryos or destroy

them. It also awarded Alexander the escrow for maintaining the embryos.

¶ 91 The trial court awarded Eneya the majority of parenting time, as Alexander resides in New

York. The court also ordered that E.K. remain in day care at Kiddie Academy.

¶ 92 The court ordered Alexander’s child-support obligation to “deviate down” from the

statutory amount of $636 to $100 per month “because of the expense to visit his child.”

¶ 93 The court found that the value of the marital estate was “negligible.” It awarded each party

the furniture and “furnishings” in their possession, their respective financial accounts and IRAs,

and the debts in their separate names. The court awarded Alex Solutions to Alexander and directed

Eneya to transfer her interest to Alexander. It found that Alexander had been operating Alex

Solutions as if it were a sole proprietorship and that its only value was Alexander’s personal

goodwill. The court awarded Alexander the Toyota Highlander, worth $11,000, and $8163 in cash.

That amount included $6478 held in the embryo escrow. The court found that both parties

dissipated assets by paying attorney fees from marital accounts. The court equalized fees, finding

that Eneya owed Alexander $35,459. However, the court ordered Eneya to pay Alexander $30,000

to equalize attorney fees. Eneya appeals.

¶ 94 II. ANALYSIS

¶ 95 Preliminarily, we address the timeliness of our decision. This case is “accelerated” pursuant

to Illinois Supreme Court Rule 311(a) (eff. July 1, 2018) because it involves, inter alia, allocation

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of parental responsibilities. Regarding such cases, Rule 311(a) provides, in pertinent part, that,

except for “good cause shown,” the appellate court shall issue its decision within 150 days

following the filing of the notice of appeal. Id. Here, the 150-day period to issue our decision

expired on April 29, 2022. However, on March 15, 2022, on the court’s own motion, we struck

Eneya’s appendix because it failed to comply in numerous respects with Illinois Supreme Court

Rule 342 (eff. Oct. 1, 2019). Pursuant to our order, Eneya filed an amended appendix on March

22, 2022. Most importantly, the original appendix failed to include the names of all witnesses and

the pages on which their direct, cross, and redirect examinations began. This matter was tried for

four days, and six witnesses testified. Without an appendix, our ability to wade through the reports

of proceedings was impeded. Furthermore, Eneya requested oral argument, which was conducted

on May 23, 2022. Finally, in light of a judicial reassignment prompted by the redistricting of the

Illinois Courts, authorship of this case was changed. Given the foregoing and the complexity of

the embryo issue, we find good cause for issuing our decision after the 150-day deadline.

¶ 96 Eneya raises numerous issues. However, before we address the merits of her appeal, we

must address her noncompliance with Illinois Supreme Court Rule 341(h)(6) (eff. Oct. 1, 2020),

which requires the statement of facts in the appellant’s brief to contain the facts “necessary to an

understanding of the case.” (Internal quotation marks omitted.) Hall v. Naper Gold Hospitality,

LLC, 2012 IL App (2d) 111151, ¶ 9. Here, as noted, the trial consumed four days of testimony

from six witnesses, and Eneya raises issues related to the evidence adduced at trial. Yet, Eneya’s

statement of facts devotes to the trial one-half sentence in a 5-page statement of facts: “The final

trial on the merits was broken up over four (4) days and on November 23, 2021, the trial Court

entered a Judgment for Dissolution of Marriage.” Otherwise, the statement of facts consists of

summaries of the pleadings and the JDOM.

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¶ 97 We have discretion to strike an appellant’s brief and dismiss an appeal for the appellant’s

failure to furnish a complete statement of facts. Alderson v. Southern Co., 321 Ill. App. 3d 832,

845 (2001). The rules concerning appellate briefs are not mere suggestions. Niewold v. Fry, 306

Ill. App. 3d 735, 737 (1999). Here, the violation is serious, as Eneya’s statement of facts omits all

of the trial testimony. The incomplete statement of facts and the noncompliant appendix delayed

our review. Nevertheless, we decline to impose the harsh sanction of striking Eneya’s brief and

dismissing this appeal. Eneya includes some trial testimony with record citations in the argument

sections of both her opening and reply briefs, and the record is not so voluminous that the omission

from the statement of facts completely hindered our review. Accordingly, we turn to the merits.

¶ 98 A. Substitution of Judge

¶ 99 After Judge Cerne presided over the matter for six months, made rulings concerning,

inter alia, temporary child support, day care, and interim attorney fees, and set the matter for close

of discovery and trial, Eneya moved on an emergency basis for substitution of judge as a matter

of right. Judge Cerne denied that motion on the grounds that it was untimely and that he had made

substantial rulings. Section 2-1001(a)(2)(i) of the Code (735 ILCS 5/2-1001(a)(2)(i) (West 2018))

provides that, in any civil action, each party is entitled to one substitution of judge without cause

as a matter of right. If such a motion is made before the presiding judge has made a substantial

ruling, the right to substitution is absolute, and any order entered after such a motion is erroneously

denied is void. Aussieker v. City of Bloomington, 355 Ill. App. 3d 498, 500 (2005). The statute is

liberally construed, and where its conditions are met, the trial court has no discretion to deny the

motion unless the motion was made simply to delay or avoid trial. Id. The party seeking a

substitution of judge as of right must (1) timely exercise the right, (2) file the motion before trial

or hearing begins, and (3) file the motion before the trial judge has ruled on any substantial issue

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in the case. Williams v. Leonard, 2017 IL App (1st) 172045, ¶ 11. “ ‘A ruling is substantial if it

relates to the merits of a case.’ ” Id. (quoting Petalino v. Williams, 2016 IL App (1st) 151861,

¶ 18). We review de novo the denial of a motion for substitution of judge as of right. Williams,

2017 IL App (1st) 172045, ¶ 9.

¶ 100 Eneya argues that her motion was timely filed, as the discovery cut-off was one month

away, and trial was two months away. She also argues that the court’s temporary orders did not

constitute substantial rulings, because they temporarily “situated” the parties, pending a trial on

the merits. She likens the court’s temporary orders on child support, attorney fees, and day care to

scheduling and discovery orders or pretrial conferences. Eneya, in part, relies on Palos Community

Hospital v. Humana Insurance Co., 2021 IL 126008. That case is inapposite, as it involved the

“test-the-waters” doctrine, which permitted the denial of a motion for substitution of judge before

substantial rulings were made if the party presenting the motion were able to form an opinion as

to the court’s disposition of the case. Id. Here, the court did not base its denial of substitution on

the test-the-waters doctrine. 5

¶ 101 Alexander argues that Eneya’s emergency motion for substitution of judge violated a local

rule’s requirement of an affidavit attesting to the nature of the emergency. However, at the hearing

on the motion, Alexander’s attorney waived any such objection when she agreed that the matter

should proceed as an emergency. Alexander also contends that Eneya’s petition for dissolution of

marriage placed in issue the matters upon which the court ruled. In her petition for dissolution of

marriage, Eneya asked the court to grant her the majority of parenting time and no parenting time

5 In her reply brief, Eneya states that she cited Palos to refute an argument raised by

Alexander before the trial court.

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for Alexander. Eneya also asked the court for equitable division of the marital property, equitable

apportionment of marital debts, temporary and permanent maintenance, and temporary and

permanent child support.

¶ 102 Eneya does not dispute that Judge Cerne made rulings on matters such as child support,

parenting time, and allocation of parental responsibilities (day care) before she filed the motion

for substitution of judge. She contends that those rulings, being temporary, were not substantial.

Eneya also contends that the motion for substitution of judge was timely, as it was brought two

months before trial was set to begin and there is no evidence that a substitution of judge would

have delayed the trial. However, Judge Cerne found that a substitution of judge would have

required a delay of trial.

¶ 103 Even if Eneya’s motion for substitution of judge were timely, we agree with Alexander

that the judge made substantial rulings. Alexander asserts that temporary orders can be substantial

rulings. Alexander relies on In re J.S., 2020 IL App (1st) 191119, and In re D.M., 395 Ill. App. 3d

972 (2009). In J.S., the appellate court held that the respondent-mother was not entitled to a

substitution of judge as of right where the trial court had issued a child protection warrant and a

temporary custody order. J.S., 2020 IL App (1st) 191119, ¶ 57. The appellate court reasoned that

the trial court, in issuing those orders, had considered whether the minor was at risk of harm, which

question was “directly related” to the merits of the neglect case. Id. The appellate court also noted

that the trial court’s orders were not merely “procedural” regarding the “mechanics of the case.”

Id. In D.M., a neglect case, the court held that the trial court’s pretrial rulings on tasks that the

parents must complete and the foster placement of the children were substantial rulings even

though the parents had agreed to the entry of those orders. D.M., 395 Ill. App. 3d at 977.

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¶ 104 Here, Eneya is mistaken in her argument that temporary orders dealing with child support,

property division, and allocation of parental responsibilities are not directly related to the merits

of the case. In a dissolution case, those issues are related parts of the dissolution claim. In re

Marriage of Meyer, 197 Ill. App. 3d 975, 978 (1990).

¶ 105 We note that Eneya filed the motion for substitution of judge only after Judge Cerne ruled

that E.K. would attend day care at Kiddie Academy rather than Chateau Elite. Eneya argues that

this order was not substantial because the court “simply exercised its own selection of daycare

providers from those listed in the parties’ memoranda.” Yet, the record belies this assertion. The

court heard testimony from Whitty, who recommended Kiddie Academy because it would provide

Alexander with daily updates regarding E.K.’s activities, something Eneya had sought to avoid.

The court also made a finding that attending day care part-time rather than full-time was in E.K.’s

best interests. We also reject Eneya’s contention that orders respecting financial matters and

temporary child support were procedural, intended only to “hit the pause button.” These were not

mere procedural rulings dealing with the mechanics of the case; they touched on issues directly

related to the merits. Accordingly, we hold that the court properly denied the motion for

substitution of judge.

¶ 106 B. Award of the Embryos to Alexander

¶ 107 Next, Eneya challenges the trial court’s determination concerning the frozen embryos that

Alexander and Eneya had stored with the New England Fertility Institute. The trial court granted

Alexander exclusive control of the embryos. It also ordered that Alexander “shall direct the

Institute to donate the embryos or have them destroyed.”

¶ 108 In support, the court found:

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“As there is no written agreement the Court must look to the oral agreement. The

parties undoubtedly agreed to the creation of the embryos for the creation of ‘their’ child

and actually used them to create a child that was born during the marriage. They were

married at the time and anticipated to remain married. Both pairs of grandparents

contributed large sums of money to support the birth of a child of the marriage. It was not

even contemplated that they would ever divorce and this could explain why there was no

written agreement providing for the possibility of divorce. Unlike in Szafranski[ v. Duston,

2015 IL App (1st) 122975-B], this process of creating embryos was not done solely for

Eneya’s benefit, it was done for the benefit of the marriage, both parties wanted a child in

their marriage.

*** With no agreement, written or oral, on the treatment of the embryos following

a divorce, the Court must weigh the interests of the parties. Infra. Eneya wants to have a

child out of wedlock and Alex wants [the embryos] donated to another married couple so

the child could be born in a marriage. While both desire that a child be born, Alex appears

to be more true to the original intention of having a child being born with both a mother

and father that [sic] are married.”

¶ 109 Eneya argues that there is no evidence to support the court’s finding that she intends to use

the embryos to have a child out of wedlock. She also asserts that Alexander’s testimony that he

wanted the embryos donated was self-serving, as his true intention (reflected in his testimony that

he did not want Eneya to have another child “after what she did with our son”) was to deprive

Eneya—who could not carry a child to term—of having another child by using those embryos

through surrogacy. From this, Eneya concludes that the court’s finding that Alexander has a

superior interest in the embryos was against the manifest weight of the evidence and contrary to

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the holdings in Szafranski v. Dunston, 2013 IL App (1st) 122975 (Szafranski I), and Szafranski v.

Dunston, 2015 IL App (1st) 122975-B (Szafranski II).

¶ 110 Alexander responds that awarding the embryos to Eneya would expose him to having

additional children with her against his will, as well as expose him to the financial burdens of

supporting those children. Therefore, he concludes, the court’s balancing of the parties’ respective

interests was not against the manifest weight of the evidence.

¶ 111 Courts have taken three different common-law approaches in resolving disputes over

frozen embryos: (1) a contractual approach, in which courts enforce the parties’ unambiguous

agreement that has contemplated or encompassed the contingency of divorce (see, e.g., Kass v.

Kass, 663 N.Y.S.2d 581 (App. Div. 1997)); (2) the contemporaneous-mutual-consent approach, in

which courts do not enforce earlier agreements between the parties when one or both of them have

changed their minds, and with the status quo prevailing unless and until the parties mutually

consent (see, e.g., In re Marriage of Witten, 672 N.W.2d 768 (Iowa 2003); A.Z. v. B.Z., 725 N.E.2d

1051 (Mass. 2000)); and (3) the balancing approach, where, in the absence of an enforceable

agreement, courts balance the parties’ interests in seeking or avoiding procreation (see, e.g.,

Jocelyn P. v. Joshua P., 250 A.3d 373 (Md. Ct. Spec. App. 2021); In re Marriage of Rooks, 2018

CO 85; J.B. v. M.B., 783 A.2d 707 (N.J. 2001); Davis v. Davis, 842 S.W.2d 588 (Tenn. 1992);

Reber v. Reiss, 42 A. 3d 1131 (Pa. Super. Ct. 2012); see also Michael T. Flannery, “Rethinking”

Embryo Disposition Upon Divorce, 29 J. Contemp. Health L. & Pol’y 233 (Spring 2013).

¶ 112 Each of the approaches has its strengths and weaknesses. Flannery, supra, at 275. The

contractual approach offers predictability and autonomous decision-making but no ability to

address contingencies that were not contemplated in the earlier agreement. Id. The

contemporaneous-mutual-consent approach allows for parties to change their minds but lacks

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predictability and invites the very real possibility that the parties may never come to a mutual

decision. Id. at 275-76; see also Sarah B. Kirschbaum, Who Gets the Frozen Embryos During a

Divorce? A Case for the Contemporaneous Consent Approach, 21 N.C. J.L. & Tech. 113, 140

(Dec. 2019). The balancing approach allows courts to consider the individual interests of the

parties while safeguarding each party’s decision-making authority but can involve burdensome

litigation and is susceptible to inconsistency and unpredictability because it is fact dependent.

Flannery, supra, at 265-66, 276.

¶ 113 Most courts agree that the ideal scenario is where the parties reach their own decision about

frozen embryo disposition; however, an agreement often does not exist. See Mary Ziegler, Beyond

Balancing: Rethinking the Law of Embryo Disposition, 68 Am. U.L. Rev. 515, 556 (Dec. 2018);

Flannery, supra, at 238. We note that, here, Eneya testified at trial that she and Alexander signed

a written agreement giving the embryos to Eneya or her parents in the event of the parties’

separation or divorce or Eneya’s death. Alexander denied that he had ever seen that document or

signed it. He testified that he was familiar with Eneya’s handwriting and that she forged his

signature on the document. The exhibit was entered into evidence as petitioner’s exhibit No. 45,

but it was not made part of the appellate record. At oral argument, Eneya conceded that there was

no written or oral agreement between the parties. Consequently, the contract approach does not

apply and we do not consider it.

¶ 114 Rather, we conclude that where, as here, there is no oral or written agreement, the embryo

custody issue is properly assessed using the balancing approach. In doing so, we reject Witten’s

contemporaneous-mutual-consent approach, which has been adopted by only a minority of courts.

Jocelyn P., 250 A.3d at 405. Simply put, maintaining what courts call the status quo unless and

until the parties come to an agreement is unrealistic in that, by removing the courts from the

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decision-making process, it effectively gives one party veto power over the frozen embryos

without any consideration of the parties’ interests. See Rooks, 2018 CO 85, ¶ 60. Notwithstanding

other courts’ approaches, we conclude that it is our duty to decide such questions where the parties

so request. See Rooks, 2018 CO 85, ¶ 72 (adopting balancing approach, which it noted was

consistent with Colorado law that directed courts to divide marital property based on consideration

of relevant factors and while taking into account that frozen embryos “are marital property of a

special character”). Indeed, the problem inherent in the mutual-consent approach would be

highlighted by its application to the instant facts. Eneya asks that she be awarded the embryos, and

Alexander asks that they be donated, but not to Eneya. Thus, they both desire to have someone use

their embryos to procreate, but they disagree over who that/those person(s) should be. Maintenance

of the status quo would result in neither party achieving what they desire.

¶ 115 Turning then to the balancing approach, the question becomes what interests should be

balanced. Though no list of factors to consider is exhaustive, we observe that the earliest line of

cases started with the premise that the party wishing to avoid procreation generally should prevail

if

“the other party has a reasonable possibility of achieving [genetic] parenthood by means

other than use of the preembryos in question. If no other reasonable alternatives exist, then

the argument in favor of using the preembryos to achieve pregnancy should be considered.

However, if the party seeking control of the preembryos intends merely to donate them to

another couple, the objecting party obviously has the greater interest and should prevail.”

Davis, 842 S.W.2d at 604.

See, e.g., J.B., 783 A.2d at 716-17, 719-20 (couple, who had one daughter, had seven pre-embryos

preserved because ex-wife had condition that prevented her from becoming pregnant; no

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agreement concerning disposition of pre-embryos; upon divorce, ex-wife sought destruction of

pre-embryos and ex-husband disagreed; held that, because the ex-husband was a father and was

capable of fathering additional children, the ex-wife’s right to prevent implantation of the pre-

embryos prevailed; court declined to “force [her] to become a biological parent against her will”);

Davis, 842 S.W.2d at 603-04 (no agreement where ex-wife wanted to donate frozen embryos to

another couple and husband wanted them destroyed; applying balancing test and holding that ex-

husband’s interest in not procreating outweighed ex-wife’s interests; ex-husband had grown up in

a home for abandoned children and strongly opposed raising a child in a home with only one

parent).

¶ 116 In Szafranski I, 2013 IL App (1st) 122975, ¶ 42, the only Illinois case addressing the issue

of the proper approach, the First District held that the parties’ agreement should be honored but

that, where there is no advance agreement, courts must balance the parties’ interests. It remanded

for application of the contractual approach (or balancing test, if necessary) and to allow the parties

to conduct additional discovery. Id. ¶¶ 40, 50. In Szafranski II, 2015 IL App (1st) 122975-B, ¶¶ 4-

5, the First District affirmed the trial court’s finding that the parties had entered into an oral

agreement allowing the ex-girlfriend to use three pre-embryos without the ex-boyfriend’s consent

and its ruling in the alternative in the ex-girlfriend’s favor under the balancing test. The court

considered the ex-boyfriend’s argument that he should not be forced to procreate with a woman

he did not love; the fact that the ex-girlfriend, who had undergone in vitro fertilization (IVF)

because she expected to suffer ovarian failure and infertility as a result of chemotherapy treatment

for lymphoma, could not have a biological child without using the pre-embryos; and her testimony

that she had lost her father when she was five years old and that she did not expect the ex-boyfriend

to support any child born from the pre-embryos. Id. ¶¶ 126-27. The First District upheld the trial

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court’s finding that the ex-girlfriend’s interest in using the pre-embryos outweighed any interest

the ex-boyfriend had in preventing their use. Id. ¶¶ 128-29. It noted that the sole purpose for using

the ex-boyfriend’s sperm to fertilize the ex-girlfriend’s last viable eggs was to preserve her ability

to have a biological child in the future and that both parties understood this when they agreed to

create the pre-embryos together. Id. ¶ 128. It acknowledged that the ex-girlfriend had other options

for becoming a parent but that there was no evidence that she could have a biological child other

than by using the pre-embryos. Id. ¶ 129; see also Reber, 42 A.3d at 1138-42 (no agreement;

applying balancing approach and upholding award of pre-embryos to the ex-wife, where pre-

embryos were her only opportunity to achieve genetic parenthood, as it was highly unlikely or

impossible for her to become pregnant after undergoing chemotherapy treatments; adoption is a

distinct experience from the ability to procreate biologically, it is a complicated process, and it

might not be a practical option for everyone, especially single women).

¶ 117 Recently, in an approach we agree with, the Colorado Supreme Court enunciated a more

expansive and nonexhaustive list of factors that courts should and should not consider in balancing

the parties’ interests. See Rooks, 2018 CO 85, ¶¶ 65-70. Under this broader analysis, factors courts

should consider (the Rooks factors) include, but are not limited to (1) the intended use of the party

seeking to preserve the frozen embryos, with greater weight being placed on the interest of the

party seeking to become a genetic parent through implantation of the embryos than that of one

who desires to donate the embryos to another couple; (2) the demonstrated physical ability or

inability of the party seeking to implant the embryos to have biological children through other

means; (3) the parties’ original reasons for pursuing IVF, such as to preserve a spouse’s future

ability to have biological children in the face of fertility-impacting medical treatment, such as

chemotherapy; (4) the hardship for the person seeking to avoid becoming a genetic parent,

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including emotional, financial, or logistical considerations; and (5) either spouse’s demonstrated

bad faith or attempt to use the embryos as unfair leverage in the divorce proceedings. Id. Factors

that courts should not consider include (1) limiting family size based on financial and economic

distinctions, (2) the number of a party’s existing children, and (3) whether a party seeking to use

the embryos could instead adopt a child or otherwise parent nonbiological children. Id. ¶ 71.

¶ 118 Here, the trial court awarded Alexander exclusive possession and control of the embryos

(to be donated or destroyed), finding that there was no agreement and that the process of creating

the embryos was done for the benefit of the parties’ marriage. Weighing the parties’ interests, the

trial court determined that Eneya wanted to have a child out of wedlock and that Alexander wanted

the embryos donated to another married couple so that a child could be born in a marriage. It

determined that Alexander’s desire was closer to the parties’ original intent—i.e., a child being

born to married parents.

¶ 119 Initially, before applying the Rooks balancing factors, we note that two of the trial court’s

factual findings were against the manifest weight of the evidence. (Szafranski II, 2015 IL App (1st)

122975-B, ¶ 125 (manifest-weight standard applies to court’s factual findings)). The first is the

court’s finding that the parties necessarily wanted a child to be born only to married parents; in

reaching this conclusion, the court conflated the parties’ intent at the time the embryos were created

(i.e., a child born to their marriage) with their entirely unexpressed intent as to what would happen

to the embryos in the event the marriage ended. Without more, the understanding of the former in

no way informs the latter. Second, the court’s conclusion that Eneya wanted to have a child out of

wedlock is without record support.

¶ 120 Equally problematic to the trial court’s application of the balancing factors was its

erroneous legal conclusion that, “[s]hould a child be born by surrogacy both Alex and Eneya would

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be the presumed parents, 750 ILCS 47/1 et seq.[ (West 2020)], and this Court would have the

ability [to] designate parental responsibilities and parenting time pursuant to the Illinois Parentage

Act[ of 2015 (750 ILCS 46/101 et seq. (West 2020))].” The phrase “presumed parent” is not

defined in the embryo context. Compare 750 ILCS 47/10 (West 2020) (providing no definition)

with 750 ILCS 46/103(p), 204 (West 2020) (defining presumed parent when a child is born). The

Gestational Surrogacy Act does, which addresses the rights of parentage such as custody, however,

define “Intended parent.” 750 ILCS 47/10 (West 2020) (an intended parent “is a person or persons

who enters into a gestational surrogacy contract with a gestational surrogate pursuant to which he

or she will be the legal parent of the resulting child. In the case of a married couple, any reference

to an intended parent shall include both husband and wife for all purposes of this Act. This term

shall include the intended mother, intended father, or both”). To be considered an “Intended

parent” under section 15 of the Gestational Surrogacy Act, the following must be satisfied: (1) a

gestational surrogacy contract exists, (2) the person in question is a party to the contract, (3) the

person in question is an “intended mother” or an “intended father.” Id. § 15(b)(1), (2), (d)(3). Here,

assuming Alexander neither enters into a surrogacy agreement nor remarries Eneya prior to any

birth, he will not be a parent as contemplated by the trial court. Further, because he is not

considered an intended parent, he is not obligated to support any resulting child. Id. § 30(a); see

also id. 25(c)(4)(ii) (requiring surrogacy contracts to provide that the intended parents or parent

assume sole responsibility for support of the child immediately upon birth). Nevertheless, it

remains that, as a gamete donor, Alexander “may be liable for child support only if he *** fails to

enter into a legal agreement with the intended parent or parents in which the intended parent or

parents agree to assume all rights and responsibilities for any resulting child, and the gamete donor

relinquishes his *** rights to any gametes, resulting embryos, or children.” Id. § 30(c). However,

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as the foregoing sets forth, there is a mechanism for Alexander to relieve himself of any duty of

support.

¶ 121 With the above properly framed, we balance the parties’ interests using the Rooks factors

and award the frozen embryos to Eneya. The evidence demonstrated that Eneya is unable to

produce more eggs, she is otherwise unable to carry a child to term, and the embryos are the only

means by which she can have a biological child. Eneya’s interest in preserving and potentially

using the embryos to procreate outweigh Alexander’s stated interest in donating them but not to

her. See Szafranski II, 2015 IL App (1st) 122975-B, ¶¶ 128-29; Reber, 42 A.3d at 1140-42. Further,

Alexander’s position at trial, expressed without explanation—that he wanted the frozen embryos

donated but not to Eneya—arguably suggested his attempt to use the embryos as unfair leverage

in the parties’ divorce, a position that weighs against him. Awarding the embryos to Eneya, who

cannot have a biological child without them, is the appropriate resolution when the parties’

interests are weighed and, as noted, is consistent with Illinois and foreign case law with similar

facts. Accordingly, we reverse the trial court’s ruling on this issue. Further, the court’s award to

Alexander of the escrow is reversed, and the escrow is awarded to Eneya. 6

¶ 122 C. E.K.’s Day Care

¶ 123 Eneya next contends that the court erred in exercising its “own preference” in selecting a

day care provider when it ordered E.K. to attend day care at Kiddie Academy rather than Chateau

Elite. Eneya notes that the JDOM provides that both parties shall share decision-making for E.K.,

except for the choice of day care. The court ordered E.K. to remain at Kiddie Academy.

6 The parties have clarified that the escrow is related to the surrogacy undertaking rather

than the embryos.

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¶ 124 The trial court must allocate decision-making responsibilities according to the child’s best

interests. 750 ILCS 5/602.5 (West 2018); Jameson v. Williams, 2020 IL App (3d) 200048, ¶ 47.

In making that determination, the court must consider all relevant factors, including the 15 set forth

in section 602.5(c) of the Act. Jameson, 2020 IL App (3d) 200048, ¶ 47. However, the court is not

required to make explicit findings on each factor or refer to every factor. Id. We will not disturb

the court’s ruling on decision-making responsibilities unless that ruling is against the manifest

weight of the evidence. Id.

¶ 125 Pursuant to section 602.5(b) of the Act (750 ILCS 5/602.5(b) (West 2018)), one of the

issues affecting the child is education, including the choice of schools. Where the parties cannot

agree on an allocation of parental responsibilities, that determination falls to the court. Id. Here,

Eneya initially enrolled E.K. in day care in Buffalo Grove, but she did not send E.K. there, because

Alexander objected to day care in general and wanted a say in which day care E.K. attended.

Alexander researched various facilities, and Eneya rejected all of Alexander’s suggestions. Then,

Eneya unilaterally matriculated E.K. at Chateau Elite. The court indicated that it knew about this

and had warned Eneya that it would not be bound by her unilateral decision. At the hearing on

Alexander’s motion to allocate parental responsibilities, Whitty testified that Chateau Elite would

not provide Alexander access to information concerning E.K. She also testified that Chateau Elite

would not furnish any information to her, nor would Eneya sign authorizations so that Whitty

could obtain information from Chateau Elite. Whitty’s next concern was that Chateau Elite was

not following Illinois Department of Health guidelines regarding masks. Whitty’s last concern was

that E.K. should not be in day care full-time. Whitty recommended that E.K. attend Kiddie

Academy in Arlington Heights part-time. Kiddie Academy, according to Whitty, would

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accommodate Alexander, who was concerned that Chateau Elite was monolingual Russian and

would not help E.K. learn English.

¶ 126 The record shows that the court considered, without specifically articulating, factor number

(8) under section 602.5(c), the child’s needs. The court expressed that its main concern was

whether E.K. should be in day care full-time. The court determined that it was in E.K.’s best

interests to be cared for at home by Eneya and her parents. Failing that, because Eneya needed to

find work, the court determined that E.K. should attend day care part-time.

¶ 127 The record also shows that the court considered factor number (10), whether a restriction

on decision-making was appropriate. Whitty testified that Chateau Elite would resist, or outright

refuse, sharing information about E.K. with Alexander. Moreover, Eneya used the fact that E.K.

was already attending Chateau Elite to attempt to manipulate the court into leaving him there. Both

of those circumstances impacted factor number (11), the willingness and ability of each parent to

facilitate and encourage a close and continuing relationship between the other parent and the child.

It is clear that Eneya wanted E.K. in a facility that would not share information with either Whitty

or Alexander. The record is also clear that Kiddie Academy was suggested by Whitty and was not

the court’s “own preference.” Accordingly, we determine that the court’s decision to place E.K. in

day care at Kiddie Academy was not against the manifest weight of the evidence.

¶ 128 D. The Permanent Restraining Order

¶ 129 The court found that Eneya absconded with E.K. from New York and that then, after

Alexander located them in Naperville, she moved to Buffalo Grove without informing Alexander

of their whereabouts. The court found that Eneya made these moves in secrecy to prevent

Alexander from having a relationship with E.K. Because Eneya was, in the court’s opinion, a

“flight risk” and inclined to “abscond” with E.K., the court permanently restrained Eneya from

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moving from her home in Buffalo Grove or possessing E.K.’s passport without leave of court.

Eneya argues that the court abused its discretion in entering the permanent restraining order.

¶ 130 We determine that Eneya has forfeited this argument. Illinois Supreme Court Rule

341(h)(7) (eff. Oct. 1, 2020) requires that arguments be accompanied by citations to relevant

authorities. Here, Eneya cites one case for the standard of review but cites no authority for her

contentions. “Where an appellant has failed to support his or her arguments with citations to

authority, [the appellate court] will not research the issues on the appellant’s behalf.” Gakuba v.

Kurtz, 2015 IL App (2d) 140252, ¶ 20. Accordingly, we deem this argument forfeited.

¶ 131 E. Child Support

¶ 132 In paragraph 11 of the JDOM, the court found that Alexander’s statutory child support

obligation is $636 per month. This amount is based on Alexander’s income of $4800 per month

and Eneya’s income of $3000 per month. In paragraph AA of the JDOM, the court found as

follows: “Because of the expense to visit his child, the Court will deviate down from the statutory

amount of child support to $100 per month payable by [Alexander].” Those are the only findings

that the court made. Eneya argues that the court’s failure to make specific findings justifying a

deviation from the statutory guidelines warrants reversal. We agree.

¶ 133 Section 505 of the Act (750 ILCS 5/505 (West 2018)) governs child support. Section 505(a)

(id. § 505(a)) provides that the trial court may order either or both parents owing a duty of support

to pay an amount that is “reasonable and necessary” for support. The duty of support includes the

obligation to provide for the reasonable and necessary physical, mental, and emotional health

needs of the child. Id. Pursuant to section 505(a)(1) (id. § 505(a)(1)), the Illinois Department of

Healthcare and Family Services established child support guidelines that include a schedule of

basic support obligations. Section 505(a)(1.5) (id. § 505(a)(1.5)) provides that the court “shall”

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compute the basic child support obligation by (1) determining each parent’s monthly net income,

(2) adding the parents’ net monthly incomes together to determine their combined net monthly

income, (3) selecting the corresponding appropriate amount from the schedule of basic child

support obligations based on the parents’ combined net monthly income and their number of

children, and (4) calculating each parent’s percentage share of the basic support obligation. The

court must apply the guidelines unless the court makes a finding that application of the guidelines

would be inappropriate, after considering the best interests of the child and evidence of the

following relevant factors: (1) the financial resources and needs of the child, (2) the financial needs

and resources of the parents, (3) the standard of living that the child would have enjoyed had the

marriage not been dissolved, and (4) the physical and emotional condition of the child and his or

her educational needs. Id. § 505(a)(2). There is a rebuttable presumption that the amount of the

child support obligation that results from application of the guidelines is the correct amount of

child support. Id. § 505(a)(3.3). The proponent of a deviation from the guidelines has the burden

of producing evidence that compelling reasons exist to justify the deviation. In re Marriage of Hill,

2015 IL App (2d) 140345, ¶ 29. Any deviation from the guidelines “shall” be accompanied by the

court’s written findings specifying the reasons for the deviation and the presumed amount without

a deviation. 750 ILCS 5/505(a)(3.4) (West 2018). The trial court has the discretion to determine

the appropriate amount of child support, and we will not reverse that determination absent an abuse

of discretion. In re Marriage of Gabriel, 2020 IL App (1st) 182710, ¶ 56.

¶ 134 Here, using the guidelines, the court computed Alexander’s child support obligation at

$636 per month. Eneya does not quarrel with that finding. Rather, Eneya argues that the court did

not consider the section 505(a)(2) factors when deviating from the guidelines, nor did the court

include specific written findings justifying its deviation. In urging us to affirm the child support

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judgment, Alexander culls findings from other parts of the JDOM and then grafts those onto what

he considers the appropriate section 505(a)(2) factors. In this way, Alexander concludes that the

court considered those factors. Specifically, Alexander argues that the court found that

Alexander’s monthly income was mostly financed by the small business loan; due to the fact that

Eneya moved E.K. to Illinois from New York, Alexander’s monthly travel expenses to visit E.K.

are $1200; and Eneya moved to Illinois “under cover of darkness,” which “severely limited”

Alexander’s ability to parent E.K. Alexander maintains that those findings focus on E.K.’s need

to have a relationship with Alexander and Alexander’s financial resources.

¶ 135 Even granting Alexander’s argument, in deviating from the guidelines, the court focused

solely on Alexander’s resources and needs but failed to consider E.K.’s financial resources and

needs, the standard of living E.K. would have enjoyed had the marriage not been dissolved, and

E.K.’s physical and emotional condition and his educational needs. The child’s need is a relevant

factor under section 505(a)(2). People ex rel. Graham v. Adams, 239 Ill. App. 3d 643, 647 (1993).

We also note that the record contains little evidence as to E.K.’s needs. Consequently, because the

court failed to consider all of the section 505(a)(2) factors, and the record contains scant evidence

as to E.K.’s needs, we vacate the child support award and remand to the trial court for recalculation

of the child support award in accordance with section 505(a)(2) of the Act. See In re Marriage of

Jelinek, 244 Ill. App. 3d 496, 509 (1993) (court remanded the cause to the trial court for

recalculation of the child support award where little evidence was adduced as to the needs of the

children).

¶ 136 F. The Property Award

¶ 137 Eneya next contends that Alex Solutions, the Toyota Highlander, and the embryo escrow

are marital property and that, therefore, the trial court’s award of these items to Alexander as his

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sole property was error under either abuse-of-discretion or de novo review. Section 503(d) of the

Act requires the court to divide marital property in “just proportions considering all relevant

factors,” which the statute lists. 750 ILCS 5/503(d) (West 2018). The relevant factors include the

contributions of each party, the duration of the marriage, the relevant economic circumstances of

each spouse, and the reasonable opportunity of each spouse for future acquisition of assets and

income. Id. § 503(d)(1), (4), (5), (11). “Marital property” means “all property, including debts and

other obligations, acquired by either spouse subsequent to the marriage,” except certain types of

property not relevant here. 750 ILCS 5/503(a) (West 2018). “ ‘The touchstone of proper and just

apportionment is whether it is equitable in nature,’ which does not require mathematical equality.”

In re Marriage of Thornley, 361 Ill. App. 3d 1067, 1071 (2005) (quoting In re Marriage of Dunlap,

294 Ill. App. 3d 768, 778 (1998)). When determining the distribution of property, the court must

first determine what constitutes marital property versus nonmarital property. In re Marriage of

Foster, 2014 IL App (1st) 123078, ¶ 65. Section 503 of the Act requires the court to classify

property as either marital or nonmarital before dividing it upon the dissolution of the marriage. Id.

We will not reverse a trial court’s distribution of marital property absent a clear abuse of discretion.

Thornley, 361 Ill. App. 3d at 1071.

¶ 138 Here, we have already determined that the court’s awarding the embryo escrow to

Alexander was against the manifest weight of the evidence.

¶ 139 Regarding the Highlander and Alex Solutions, Eneya makes no argument except that those

items are marital property, as if that settles the question of their distribution. However, that is only

the initial inquiry, and Alexander does not dispute that they are marital property. Eneya argues in

one conclusory sentence that Alexander has not overcome the presumption of marital property.

Eneya’s failure to make a cogent legal argument regarding why the court abused its discretion in

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dividing the property forfeits this issue. See Hall, 2012 IL App (2d) 111151, ¶ 12 (mere

contentions, without argument or citation to authority, do not merit consideration on appeal).

¶ 140 G. Dissipation

¶ 141 Before the trial court, both parties claimed that the other dissipated marital assets. Eneya

contended that Alexander allowed the decline of Alex Solutions’ business to occur

contemporaneously with the breakdown of the marriage, and Alexander asserted that Eneya spent

marital funds on her attorney fees. The court found that Alex Solutions’ decline was caused by

COVID-19. It also determined that both parties dissipated marital assets by paying their respective

attorney fees. The court equalized the fees by ordering Eneya to pay Alexander $30,000 and then

credited Alexander’s contribution to day care fees against that $30,000.

¶ 142 “Dissipation” is a spouse’s use of marital property for his or her own benefit, for a purpose

unrelated to the marriage, when the marriage is suffering from an irreconcilable breakdown. In re

Marriage of Tabassum, 377 Ill. App. 3d 761, 779 (2007). Whether a spouse has committed

dissipation depends upon the facts of the case. Id. After the spouse alleging dissipation makes a

prima facie case, the spouse charged with dissipation must show, by clear and convincing

evidence, how the marital funds were spent. Id. If the spouse fails to meet this burden, the court

must find that dissipation has occurred. Id. We review the court’s factual findings under the

manifest-weight-of-the-evidence standard of review, although we review the final property

distribution for an abuse of discretion. Id.

¶ 143 Here, Eneya’s argument addresses only the dissipation of Alex Solutions. She makes no

argument regarding the court’s findings with respect to attorney fees. Alexander argues that Eneya

has forfeited this issue, as she includes no citations to the record or authority, in violation of Rule

341(h)(7), which requires the appellant’s contentions to contain references to the pages of the

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appellate record where evidence may be found as well as citation to relevant authorities. Ill. S. Ct.

R 341(h)(7) (eff. Oct. 1, 2020). Contrary to Alexander’s assertion, Eneya’s argument cites to pages

of the record. However, Eneya cites only one case, for the definition of “dissipation.” She cites no

authority for her substantive argument or her incorrect assertion that de novo is the applicable

standard of review. Consequently, we deem this argument forfeited. The appellate court is not

merely a repository into which the appellant may “ ‘dump the burden of argument and research.’ ”

(Internal quotation marks omitted.) CE Design, Ltd. v. Speedway Crane, LLC, 2015 IL App (1st)

132572, ¶ 18 (quoting U.S. Bank v. Lindsey, 397 Ill. App. 3d 437, 459 (2007)). Nor is it our

obligation to act as an advocate to seek error in the record. Id. ¶ 18.

¶ 144 H. The Ketubah

¶ 145 Eneya’s final argument is that the trial court erred in finding that the ketubah was

unenforceable. Specifically, Eneya seeks to enforce the “property division” in the ketubah, which,

in her view, obligates Alexander and his heirs to pay her $1 million out of any property that

Alexander now owns or will acquire in the future. Eneya argues that Alexander signed the ketubah

and agreed, as part of the marriage ceremony, to be bound by it. Alexander contends that the

ketubah cannot be enforced because (1) it is written in Hebrew and contains no certified

translation, (2) it is unconscionable, and (3) it fails to meet the criteria for a valid prenuptial

agreement.

¶ 146 Eneya sought to enforce the ketubah by filing an action for declaratory judgment. The

purpose of the declaratory judgment statute is for the court to settle and fix rights before an

irrevocable change in the parties’ positions, which will jeopardize their claims of right. Regency

Commercial Associates, LLC v. Lopax, Inc., 373 Ill. App. 3d 270, 283 (2007). The court found

that the ketubah was not an enforceable contract but that it was in the nature of a marriage vow.

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Whether a valid and enforceable contract exists is a question of law (Northern Illinois Construction

Co. v. Zale, 136 Ill. App. 3d 822, 824 (1985)), subject to de novo review (Gallagher v. Lenart, 226

Ill. 2d 208, 219 (2007)).

¶ 147 Alexander argues that the trial court properly found the ketubah to be unenforceable

because it is written in Hebrew and there is no certified English translation. English is the official

language of Illinois, and a certified translation of a foreign-language document is required.

Valdivia v. Chicago & North Western Transportation Co., 87 Ill. App. 3d 1123, 1127 (1980).

Eneya seems to argue that the issue of the translation was forfeited because Alexander did not

adequately raise it before the trial court or provide his own translation. We agree that the

translation, not being certified, is not reliable, but, even assuming its adequacy, we agree that the

ketubah is unenforceable.

¶ 148 Eneya relies on In re Marriage of Goldman, 196 Ill. App. 3d 785 (1990), where the court

affirmed the grant of specific performance of a ketubah. In Goldman, the wife presented expert

testimony from two Orthodox Jewish rabbis that the parties’ ketubah provided that the husband

would obtain a “get,” which is a Jewish divorce allowing the wife to remarry and the children born

to a second marriage to be recognized as legitimate. Goldman, 196 Ill. App. 3d at 789-90. The

appellate court held that the evidence supported that the husband had agreed to obtain a get and

that uncontroverted expert testimony established that Orthodox Jewish law requires the husband

to obtain and deliver to the wife an Orthodox get upon dissolution of marriage. Id. at 793.

¶ 149 Here, Eneya does not seek to enforce any reasonable terms established, according to expert

testimony, as pertaining to Jewish law. Instead, she seeks to enforce a purported promise of

Alexander, on behalf of himself and his heirs, to pay her $1 million from all of the property that

he may ever own. The court found, and Eneya does not dispute, that the entire marital estate is so

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negligible that it does not have any monetary value. Alexander’s income from the small business

loan proceeds is $4800 per month. Alexander testified to his debt, including to his brother, who is

paying a portion of Alexander’s child support obligation to Alexander’s ex-wife in Israel. A

contract term can be invalidated on grounds of procedural unconscionability, substantive

unconscionability, or both. Zuniga v. Major League Baseball, 2021 IL App (1st) 201264, ¶ 14.

Substantive unconscionability arises where contract terms are inordinately one-sided in one party’s

favor. Zuniga, 2021 IL App (1st) 201264, ¶ 14. Here, when the court asked Eneya’s counsel how

the ketubah could be specifically enforced, counsel had no answer. In sum, we agree with

Alexander that the purported agreement for $1 million is unconscionable. Accordingly, we affirm

the court’s determination that the ketubah is unenforceable.

¶ 150 III. CONCLUSION

¶ 151 For the reasons stated, we affirm the judgment of the circuit court of Du Page County in

part, reverse it in part, vacate it in part, and remand.

¶ 152 Affirmed in part, reversed in part, and vacated in part.

¶ 153 Cause remanded.

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In re Marriage of Katsap, 2022 IL App (2d) 210706

Decision Under Review: Appeal from the Circuit Court of Du Page County, No. 20-D-811; the Hon. Neal W. Cerne, Judge, presiding.

Attorneys Fedor Kozlov, of Law Office of Fedor Kozlov, P.C., of for Schaumberg, for appellant. Appellant:

Attorneys Brian J. Hurst, of Hurst, Robin & Kay, LLC, of Chicago, for for appellee. Appellee:

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