In re Marriage of Kranzler

2020 IL App (1st) 180979-U

• Court: Appellate Court of Illinois
• Decided: August 13, 2020
• Docket: 1-18-0979
• Status: Unpublished

Opinion

2020 IL App (1st) 180979-U

FOURTH DIVISION August 13, 2020

Nos. 1-18-0979 & 1-18-2493 Consolidated

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________

In re MARRIAGE OF ) Appeal from the LEONARD KRANZLER, ) Circuit Court of ) Cook County. Petitioner-Appellee, ) Cook County. ) ) No. 16 D 10698 v. ) ) ULIANA KRANZLER, ) ) John Thomas Carr, Respondent-Appellant. ) Judge presiding.

______________________________________________________________________________

JUSTICE BURKE delivered the judgment of the court. Presiding Justice Gordon and Justice Reyes concurred in the judgment.

ORDER

¶1 Held: The circuit court did not err in refusing to grant respondent’s petition for contribution or a further hearing on the petition, refusing to award respondent further maintenance, or in its classification of non-marital assets.

¶2 Following a bench trial, petitioner Uliana Kranzler appeals the circuit court’s April 30,

2018, order regarding the division of property in the parties’ divorce, and also the trial court’s 1-18-0979

November 21, 2018, order granting respondent Leonard Kranzler’s postjudgment motion. 1 On

appeal, Uliana argues that the trial court erred in (1) refusing to grant her a hearing on her

petition for contribution to attorney fees, (2) refusing to award her maintenance, and (3)

classifying assets Leonard acquired during marriage as his non-marital property. For the

following reasons, we affirm.

¶3 I. BACKGROUND

¶4 A. Procedural History Leading Up to First Appeal

¶5 On October 9, 1984, Uliana and Leonard executed a premarital agreement and married in

a ceremony held in their home directly after. 2 At the time, Leonard was 47 years old and Uliana

was 29 years old and approximately five months pregnant with the couple’s first child. The

parties ultimately had three children, all of whom were emancipated adults at the time Uliana

filed a petition for dissolution of marriage in October 2015 (Case No. 15 D 9295).

¶6 Leonard filed a motion for a declaratory judgment in her dissolution case, asking the trial

court to find the premarital agreement valid and enforceable. Uliana later voluntarily dismissed

her petition for dissolution. Leonard initiated a separate dissolution action, which proceeded

before the same judge (Case No. 16 D 10698).

¶7 The trial court held a two-day hearing on Leonard’s motion for declaratory relief in Case

No. 15 D 9295, at which both Leonard and Uliana testified. On May 1, 2017, the trial court

entered an order in which it determined that the premarital agreement was valid and enforceable

and granted Leonard’s motion for declaratory relief. Uliana appealed to this court. We affirmed

the trial court, finding that (1) the trial court had subject-matter jurisdiction over the dispute, and

1 Uliana filed two separate notices of appeal and the cases were consolidated on appeal. However, we note that Uliana raises no specific challenges to the November 21, 2018, order. 2 In the premarital agreement, Uliana was to receive payments of $2,500 for 100 months in lieu of maintenance or other property rights if either party filed for divorce. Any amounts awarded for contribution to her attorney fees or temporary maintenance was to be credit against this amount.

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(2) that the parties’ premarital agreement was valid and enforceable. In re Marriage of Kranzler,

2018 IL App (1st) 171169.

¶8 B. Leonard’s Petition for Dissolution

¶9 Meanwhile, proceedings on Leonard’s petition for dissolution continued. Uliana filed a

petition for temporary maintenance and also an amended petition for interim and prospective

attorney fees on December 28, 2016.

¶ 10 On July 17, 2017, the trial court entered an order requiring, inter alia, (1) Leonard to pay

interim attorney fees in the amount of $100,000 to Uliana’s counsel, (2) Leonard to pay Uliana

$7,500 per month starting on July 17, 2017, as “temporary payments,” and (3) Leonard to

maintain his will and estate plan in accordance with the terms of the premarital agreement. The

order granted Uliana the right to remain in the marital residence, while Leonard paid for the

residence’s bills and Uliana’s health insurance.

¶ 11 On July 6, 2017, Leonard filed a motion to bifurcate, asking the trial court to enter a

bifurcated judgment which would dissolve the parties’ marriage, but reserve determination of

their financial and other property matters for later. On November 13, 2017, the trial court granted

the motion and entered a “Bifurcated Judgment for Dissolution of Marriage” (Bifurcated

Judgment), dissolving the parties’ marriage. Uliana filed a motion to vacate the Bifurcated

Judgment on December 7, 2017.

¶ 12 C. Bench Trial

¶ 13 The trial court conducted a bench trial regarding division of the parties’ property over

four days in January 2018. Leonard and Uliana both testified and presented numerous

documentary exhibits. The trial court also considered the testimony from transcripts of the first

trial involving the validity of the premarital agreement.

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¶ 14 1. Leonard’s testimony

¶ 15 Leonard testified that he was currently residing with Uliana at 3150 North Lakeshore

Drive in Chicago. Leonard testified that he was a physician of neurological surgery employed by

Tenet Health Systems at the time of trial. Leonard testified that the prenuptial agreement he and

Uliana executed when they married in 1984 was a mechanism to solve he and Uliana’s

uncertainties and he would not have married anyone without a prenuptial agreement. Leonard

testified that attached as exhibit B to the premarital agreement the parties executed in 1984 was a

list of his then-existing assets and liabilities, although several of the items listed no longer

existed or he no longer owned. They had three children—Jenelle, Justin, and Jared.

¶ 16 a. Financial Assets

¶ 17 Regarding financial assets, Leonard testified that he has an International Money Market

(IOM) seat that he acquired before he was married and he receives dividends of approximately

$19,000 every three months from it. Leonard testified he believes the IOM seat was transferred

into 30,049 shares of Chicago Mercantile Exchange (CME) group stock in 2004. Leonard

testified that Form 1099-Div from 2014, which was admitted into evidence, showed he owned

30,049 shares of CME stock. Leonard testified that the dividends went into his Chase bank

account and were used for family expenses. Leonard testified that the IOM seat was transferred

into the shares but he “didn’t pay much attention to the fact that it was shares, not a seat. So I

don’t view them as shares, but I see now they are shares. And they take the place of the IOM seat

I owned for 30 years.” On cross-examination, he testified that a CME stock statement from

October 2016 showed a share price of $105.44; which equated to a value of $3,168,366.56.

However, Leonard believed based on his own research that the IOM seat was worth only

$45,000.

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¶ 18 Leonard further testified that Neuro-surgical Specialists, Ltd., was also listed as an asset

on exhibit B to the premarital agreement, but it has been defunct as a medical practice since

2010, he does not receive any income from it, and it is not worth the amount that was shown on

the list ($1,500,000). He testified that this entity now runs an annual conference or course for

students and student funds are used to pay for the conference. Leonard has not contributed any

money or taken any money out.

¶ 19 b. Retirement Accounts and Life Insurance Policies

¶ 20 Leonard testified that he has a retirement account worth $21,168.02 as of September

2017 from his time working for Mount Sinai Hospital. He has a John Hancock retirement

account with a value of $34,070.33 as of June 2017 for the time he worked for American Center

for Spinal and Cranial Surgery. Leonard also had a Pershing Advisory Solutions, LLC, Lodestar

Rollover Individual Retirement Account (Pershing Lodestar IRA). Leonard testified that he

initially had a profit sharing and pension plan from Neuro-Surgical Specialists, Ltd. (Neuro-

Surgical plan) from when he worked there, and it was listed as an asset on exhibit B. However, it

was rolled over into his Pershing Lodestar IRA in 2010. He testified that the Neuro-Surgical plan

had $800,000 in it before he was married; additional contributions and appreciation occurred

over the years, and as of November 2017 the Pershing Lodestar IRA had a value of

approximately $2.4 million.

¶ 21 With respect to life insurance policies, Leonard testified that exhibit B of the premarital

agreement listed four life insurance policies as assets, but Leonard owned only one policy

currently: the AXA Redefining Standards (AXA policy) worth $184,626.82, and he identified

the life insurance policy document admitted into evidence. He testified that he took out the AXA

policy “years ago,” Uliana is the beneficiary, and he continues paying the premiums.

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¶ 22 c. Real Estate

¶ 23 Leonard testified that he purchased the following properties before his marriage and

currently still owned: (1) 1212 North Lake Shore Drive, Units 10BN and 27 BN, Chicago; (2)

3010 Marcos Drive, Apartment 306, North Miami Beach, Florida (purchased in 1967 and

transferred half ownership to his sister in 1980).

¶ 24 Leonard testified that he purchased the following properties during his marriage but held

title solely in his name: (1) 2716 West Sherwin Avenue, Chicago (purchased in 1996); (2) 1410

State Street, Chicago (sold in 2017; Leonard received approximately $550,000 from the sale and

paid $100,000 of this to Uliana’s attorneys); (3) Units 35D and 36A, 3150 North Lake Shore

Drive, Chicago (where he resided with Uliana at the time of trial); and (4) vacant land in

Montana (purchased in 2014 with his daughter).

¶ 25 Leonard testified that he and Uliana both held joint title to the following properties which

were purchased during their marriage: (1) 121 Golden Isles, Unit RGS, Hallendale, Florida

(purchased in 2005); and (2) 20341 N.E. 30th Avenue, Apartment PH-14, Aventura, Florida.

¶ 26 Leonard presented evidence regarding purchase dates and title and deed information for

the properties. Leonard testified that other than the properties he jointly owned with Uliana, she

has never been on any legal title to any of his other properties, or had any beneficial interest in or

power over any of his land trusts in which he held his properties. Leonard testified that Uliana

has managed their properties and rentals for approximately five years.

¶ 27 d. Miscellaneous Property

¶ 28

¶ 29 Leonard testified that he currently still owned the following items that were listed on

exhibit B of the premarital agreement: a Bernadel violin and Hill Bow; the books, video, and

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audio recordings; 12 Chagall paintings; 12 Dali paintings; and 5 works of African art. Leonard

owns a 2012 Buick Lacrosse which he believed to be worth $13,000. Leonard testified that he

also loaned his nephew $150,000 to pay for law school.

¶ 30 e. Bank Accounts

¶ 31 Leonard testified that he has a Chase Bank Premier checking account with a balance of

$301,000 as of November 30, 2017. The parties have a joint account with Bank of America, but

it had a negative balance. Leonard has a separate Chase account where his salary is deposited. He

has another Chase bank account which holds security deposits.

¶ 32 f. Income, Expenses, and Financial Status

¶ 33 Leonard testified that he is currently employed by MacNeal Physicians Group full-time

and receives payment based on the amount of work he does. He also receives Social Security

benefits in the amount of $2,101 per month. His joint tax return for 2016 showed that he earned

$442,812 from his physician salary; IRA distributions in the amount of $264,500, income from

social security, and $36,804 of income from other activities. His adjusted gross income was

$881,596 for 2016. Leonard believed he has paid his attorneys $180,000 total related to the

divorce proceedings.

¶ 34 In terms of expenses, Leonard pays $2,000 per month for his life insurance policy.

Leonard was paying $9,000 monthly to Uliana which included the court-ordered temporary

payments, Uliana’s health insurance and medical bills, and other expenses. He pays Uliana’s

utility bills for her property in Michigan. Leonard also provides financial support to his children

in the amount of $6,000 per month. Leonard testified that he has two mortgages with a balance

of approximately $250,000 each, one for the property in Golden Isles, Florida, and the other for

3150 Lake Shore Drive in Chicago. The monthly mortgage payment for 3150 Lake Shore Drive

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is $4,190; association fees are $3,485; he pays $145 per week for house cleaning; and $300 for

groceries.

¶ 35 Leonard testified that his will currently provides that his estate shall be divided into 10

shares to be divided among 6 recipients; Uliana shall receive one share, or 10% of his estate,

regardless of their marital status at time of Leonard’s death. Leonard testified that it was his

understanding that if he were to die that day, Uliana would receive the life insurance policy, 10%

of his estate, and the court-ordered monthly payments for 100 months. Additionally, he left 20%

of his estate to each of their three children, 20% to his sister, 10% to religious institutions.

¶ 36 2. Uliana’s Testimony

¶ 37 a. Work History, Health Status, and Expenses

¶ 38 In her case-in-chief, Uliana testified that she was 61 years old and lives at 3150 North

Lake Shore Drive, Apartment 36A, in Chicago. It is a 5,500 square foot apartment and she has

lived there for 26 years. She still lives there with Leonard, but they have separate bedrooms.

During their marriage, they enjoyed season tickets to the opera, traveled extensively, and went

on cruises.

¶ 39 She testified that she immigrated to the United States of America when she was 16 years

old. She obtained a college degree in communications and managed a fitness club after

graduation. She then went into real estate, assisting with running a real estate company office,

but she stopped working in 1985 a few months before she had her first child. During the

marriage, she was primarily responsible for the care of their children and managing the

household, as Leonard was rarely home. She testified that, as the primary caregiver, she managed

Jenelle’s many allergies, ADD diagnosis, and psychiatric treatment. Uliana transported her

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second child, Justin, to his many activities. She testified that her youngest child, Jared, had

learning difficulties and required special programs and tutoring, which she facilitated.

¶ 40 Uliana testified that, during their marriage, Leonard gave her an allowance of $1,400

every Monday for household expenses. She also has a credit card in her name for other expenses

such as clothes, shoes, toiletries, and purchases at Costco; Leonard always paid the balance on

the card.

¶ 41 With respect to her current state of health, Uliana testified that she takes blood pressure

medications, a steroid nasal spray, thyroid medicine, Xanax for anxiety, Flexeril, and Ambien.

She experiences ocular migraines. She uses prescription eye drops for dry eyes that cost $442 per

month. She takes Prolia twice a year for osteoporosis, which costs $1,700 each time and is not

covered by insurance. Her health insurance monthly premium is $1,275, and she has a $7,000

deductible for medical care and a $2,500 deductible for medication. She has a “questionable”

lump in her right breast. She testified that she suffered from obesity following the birth of Jared

in 1990 and became severely depressed and diabetic. She had bariatric surgery performed in

Brazil in 2006. She lost weight following the surgery, but became anemic and developed

osteoporosis. She returned to Brazil in 2009 for additional surgery on her abdomen and

developed an infection. She wears a compression bodysuit to limit her pain. Uliana testified that

she also has hip problems and needs a hip replacement. She fractured her ankle last year. She

testified that she cannot look for a job currently because of her chronic pain. She testified that

she has not worked outside the home in 33 years and is not knowledgeable about computers.

¶ 42 Regarding her current expenses, she estimated $2,400 monthly for groceries, household

supplies, and toiletries. Uliana frequently purchases groceries for her children. She estimated her

own groceries cost $1,500 per month.

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¶ 43 She testified that she currently receives $7,500 per month from Leonard and he pays her

monthly health insurance premium and medical bills. She testified that she was asking the court

to order him to pay $10,000 per month instead.

¶ 44 b. Real Estate

¶ 45 Uliana testified that she inherited a log house in Michigan from her mother, but she did

not know its worth. She spends $700 per month for repairs and maintenance.

¶ 46 She testified that she and Leonard jointly own two properties in Florida, but she does not

want them. She testified that the property in Aventura, Florida was usually rented, but was

currently empty due to hurricane damage and required extensive repairs. She estimated the

property was worth $180,000 and they had no mortgage on it. She and Leonard purchased the

Golden Isles property in 2005 as a second home. It has a mortgage of $250,000. She estimated it

was valued at $400,000. She testified that the property needs to be remodeled and was damaged

in a hurricane.

¶ 47 She testified that she has managed Leonard’s rental real estate since 2008 and also takes

care of their Chicago and Florida homes. She manages approximately eight properties in Chicago

and Florida. Her management duties include leasing the properties, collecting rents, keeping

financial records, paying bills and real estate taxes, being on-call for emergencies and arranging

for maintenance, and coordinating remodeling projects. She travels to Florida approximately four

times per year to oversee maintenance and repairs. She took over management because she found

out that Leonard was losing money. She testified that she no longer wishes to manage his real

estate.

¶ 48 c. Bank Accounts and Other Property

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¶ 49 Uliana testified that she has a Bank of America account in solely her name, another

checking account with $7,000, a savings account with a few thousand dollars, a business banking

account in solely her name, a Chase account where funds from real estate rentals are deposited,

and another account for security deposits. She purchased a Lexus RX350 SUV in 2015; she

traded in her previous car, which Leonard had purchased for her. She paid off the remaining

$11,000 balance from their joint bank account at Bank of America. She also used this account to

pay for repairs, real estate taxes, and emergencies.

¶ 50 D. Procedural History Following Bench Trial

¶ 51 Following trial, the parties submitted written closing arguments and proposed judgments.

Uliana’s prior law firm, Katz & Stefani, filed a petition for attorney fees related to their

representation of Uliana in her petition for dissolution (which she had voluntarily dismissed).

¶ 52 Uliana filed a petition for contribution to attorney fees on February 14, 2018. Uliana

asserted that as of February 2, 2018, she owed her current law firm, Grund & Leavitt, P.C.,

$474,997.43 in fees and $33,505.64 in costs. She requested contribution from Leonard pursuant

to section 503(j) and 508(a) of the Illinois Marriage and Dissolution of Marriage Act (the Act)

(750 ILCS 5/503(j), 508(a) (West 2016)). The trial court set a hearing date for April 30, 2018, on

Katz & Stefani’s petition and Uliana’s petition.

¶ 53 On February 16, 2018, Leonard filed a motion to dismiss Uliana’s petition for

contribution, arguing that she failed to separate out fees for different matters—her initial divorce

action, the motion for declaratory judgment, Uliana’s first appeal, and Leonard’s petition for

dissolution. Leonard argued that Uliana was not entitled to any fees related to her dissolution

petition because she voluntarily dismissed it and she was not entitled to fees for her appeal

because it resulted in an adverse ruling. Leonard also argued her claimed amount in fees was

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unreasonable and that the premarital agreement provided that any attorney fees paid by Leonard

must be included in Uliana’s lump sum settlement, not in addition to it.

¶ 54 On February 27, 2018, the trial court entered an order setting Leonard’s motion to

dismiss for hearing on March 28, 2018. Uliana filed a response in which she argued that her

petition for contribution did not request any fees related to her prior appeal.

¶ 55 On March 9, 2018, the trial court announced its ruling orally regarding the trial issues and

indicated it would file a written judgment to that effect. During that hearing, the trial court also

orally ordered that each party would pay their own attorney fees.

¶ 56 At the March 28, 2018, hearing, Uliana’s counsel objected that the trial court had already

ruled on her petition for contribution on March 9 without conducting a proper hearing. The trial

court responded that it had considered all the evidence and arguments and that “both parties will

pay their own fees.” The trial court entered an order that day reflecting that (1) Leonard

withdrew his motion as moot; (2) finding that, having previously disposed of the attorney fee

issue in its ruling on March 9, it denied Uliana’s petition for contribution; (3) striking the April

30 hearing date; and (4) denying Uliana’s motion to vacate the Bifurcated Judgment.

¶ 57 E. Supplemental Judgment

¶ 58 On April 30, 2018, the trial court entered a written Supplemental Judgment. The court

took judicial notice that it had previously found the premarital agreement was valid and

enforceable. The remaining issues involved the classification of assets and liabilities under the

premarital agreement, the award of payments to Uliana under the agreement, and the disposition

of her attorney fees. The court observed that both parties were credible witnesses.

¶ 59 With regard to the classification of assets, the trial court held that the following properties

were premarital assets owned by Leonard before the marriage and were classified as non-marital

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property pursuant to the premarital agreement and its attachments: (1) 1212 North Lake Shore

Drive, Unit 10 BN in Chicago, with an appraised value of $825,000; (2) 1212 North Lake Shore

Drive, Unit 27 BN in Chicago, with an appraised value of $825,000; and (3) 2010 Marcos Drive,

Unit 306, in Miami, with an appraised value of $70,000 and currently held in joint tenancy by

Leonard and his sister. The following items were also owned by Leonard before marriage and

remained his non-marital property under the agreement: violin, Hill Bow, furniture, library books

and recordings, Chagall paintings, Dali paintings, and African art.

¶ 60 The trial court held that the IOM seat/CME group stock was also Leonard’s separate non-

marital property which he owned before marriage. The trial court noted that Uliana’s counsel had

attributed a high value to it, but under the terms of the premarital agreement, “this property was

clearly Leonard’s prior to his marriage.” The trial court held that there was no evidence

introduced challenging this asset as Leonard’s property.

¶ 61 Pursuant to paragraph 4 of the premarital agreement, the trial court awarded all of

Leonard’s retirement accounts to Leonard as his non-marital property: the Pershing Lodestar

IRA, the Sinai 403(b) and 401(a) Plan accounts, and the John Hancock 401(k) account. Under

the same provision, the trial court awarded Leonard the $150,000 loan he made to his nephew for

law school and the AXA life insurance policy.

¶ 62 Next, the trial court determined that under the premarital agreement, the following

properties, which were acquired during the marriage, would otherwise be divisible property, but

because they were held solely in Leonard’s name, they were Leonard’s non-marital property: (1)

2716 Sherwin Avenue in Chicago (appraised value of $500,000); (2) 1410 N State Parkway, Unit

12B in Chicago (sold on October 20, 2017—Leonard paid $100,000 of the proceeds to Uliana’s

attorneys and deposited the remaining funds in his bank account); (3) vacant land in Bozeman,

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Montana held in joint tenancy by Leonard and his daughter (valued at $140,000); (4) Units 35D

& 36A, 3150 North Lake Shore Drive in Chicago (appraised at $1,800,000 and encumbered with

a mortgage balance of $2,411,260). The trial court also determined that the numerous bank

accounts in only Leonard’s name were also his non-marital property.

¶ 63 The trial court found that Leonard and Uliana acquired the following properties as joint

tenants during their marriage, and they were thus marital property under the premarital

agreement: (1) 121 Golden Isles, Unit RGS in Hallendale, Florida (purchased in 2005 and valued

at $721,110 with a mortgage balance of $247,025; and (2) 20341 N.E. 30th Avenue, Apt PH-14

in Aventura, Florida (purchased in 1988 and valued at $199,515 with no mortgage). The trial

court observed that Uliana testified that she did not want either property and Leonard offered no

testimony in that regard. The trial court held that under paragraph 2 of the premarital agreement,

jointly owned property was to be divided equally. The trial court awarded the Aventura property

to Leonard and directed him to pay Uliana a 50% interest, or $99,757.50. It awarded Golden

Isles to Leonard and ordered him to pay Uliana $237,042.50 (50% interest in the equity of

$474,085).

¶ 64 The trial court determined that the following property was Uliana’s separate non-marital

property acquired during the marriage. It awarded her the Michigan residence she inherited from

her mother under section 503(a)(1) of the Act and the premarital agreement, finding that it may

have equity of $100,000, but this was unsubstantiated. The trial court awarded her all of the bank

accounts that were held only in her name.

¶ 65 Additionally, the trial court found that the parties had two jointly held bank accounts at

Bank of America which had negative balances. The trial court awarded them to Leonard without

contribution from Uliana. Each party was awarded their respective automobiles. Leonard was

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ordered to pay the outstanding balance of $2,766 on Uliana’s credit card. The trial court found

that Uliana had failed to provide any evidence that Leonard had dissipated any marital assets.

The trial court also ordered that Uliana has no interest in the account related to the annual student

course hosted by Neuro-Surgical as it was clear from Leonard’s testimony that he took no

income from the program and the accounts were controlled by and for the benefit of the course.

¶ 66 Regarding payments to Uliana, the trial court found that section 7 of the premarital

agreement provided for a payment of $2,500 per month for 100 months as and for Uliana’s

waiver of maintenance and property claims. The trial court observed that at the time the parties

executed the premarital agreement, the law examined whether the premarital agreement would

leave a spouse in a state of penury in determining whether to enforce a maintenance waiver

clause. The trial court found that Uliana had waived maintenance; the trial court’s previous order

for temporary monthly payments of $7,500 was intended to keep her out of a state of penury.

The trial court ordered Leonard to pay Uliana $8,370 for 100 months beginning on April 15,

2018, as payments in lieu of maintenance and for her waiver of property claims. The court

observed that they were not deductible to Leonard or includable in Uliana’s taxable income. The

court ordered Leonard to pay for Uliana’s medical insurance premiums for three months.

¶ 67 Concerning attorney fees, the trial court ordered that each party shall pay their own fees,

except for the $100,000 Leonard previously paid to Uliana’s counsel. It observed that, as it had

previously ordered on March 28, Uliana’s petition for contribution to attorney fees and request

for hearing were denied.

¶ 68 F. Post Judgment Proceedings

¶ 69 Uliana filed a notice of appeal from the Supplemental Judgment (No. 1-18-0979).

Leonard filed a petition for postjudgment enforcement and relief arguing that Uliana placed

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CME distributions from their joint bank account into her own bank account following entry of

the Supplemental Judgment and she refused to turn over keys to the Florida properties that

Leonard was awarded. The trial court granted Leonard’s motion on November 21, 2018. Uliana

filed a notice of appeal from the November 21, 2018, order (No. 1-18-2493). While this appeal

was pending, Leonard passed away. 3

¶ 70 II. ANALYSIS

¶ 71 A. Uliana’s Petition for Contribution

¶ 72 1. Waiver/Invited Error

¶ 73 Uliana argues that her attorneys were owed contribution to attorney fees pursuant to

section 503(j) and 508(a) of the Act (750 ILCS 5/503(j), 508(a) (West 2016)), and the trial court

erred in refusing to hold a separate hearing on her petition for contribution. Before we discuss

Uliana’s substantive contentions, we first address Leonard’s argument that Uliana waived any

issues regarding contribution because her counsel invited the error and acquiesced to the trial

court’s refusal to hold a more formal hearing on contribution. Uliana counters that Leonard

misquotes and misconstrues the record.

¶ 74 Having closely reviewed the record, we find that Uliana and her counsel did not invite

error or waive objection to the trial court’s decision not to hold a separate hearing on the petition

for contribution. The record reflects that Uliana filed her petition for contribution, and Leonard

moved to dismiss. The trial court set Leonard’s motion for a hearing on March 28. When the

parties appeared before the trial court on March 9, 2018, the court announced its oral ruling

regarding the trial issues. Towards the end of this hearing, the trial court stated, “attorneys’ fees,

everybody pays their own fees from here on.” Further, “I don’t think that there is any—any

3 This court entered an order on August 8, 2019, that spread of record Leonard’s death.

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reason to disturb the fact that the $100,000 that was paid on attorneys’ fees, I am not considering

that at all. From now on, everybody pays their fees.”

¶ 75 The parties reconvened on March 28, 2018, to address Leonard’s motion to dismiss

Uliana’s petition for contribution, the petition for contribution to attorney fees filed by Uliana’s

previous counsel against both Uliana and Leonard, and Uliana’s motion to vacate the Bifurcated

Judgment. At the start of the hearing, Uliana’s counsel objected that the trial court had already

ruled on her petition for contribution orally on March 9, without first conducting a hearing under

section 503(j). Counsel stated:

“I just want you to understand that what we have before you is my client’s

contribution petition which you ordered be briefed and set a hearing—or

didn’t set a hearing yet, and a petition for contribution from former counsel

***. And also I understand in my absence after the ruling there’s this rush to

get the judgment to you to enter, but if we’re going to have a contribution

hearing, which you must do, then that has to be done before entry of the

judgment, so under—under 503(j) I believe. So I don’t know how you want to

handle all this but that’s my problem with this—with this appearance today.”

¶ 76 Leonard’s counsel argued that a contribution hearing was not required because the

prenuptial agreement, which had been found valid and enforceable, required that any fees

Leonard would be ordered to pay must be deducted from the sum of money Uliana receives

under the judgment and prenuptial agreement.

¶ 77 Uliana’s counsel reiterated that under section 503(j), a petition for contribution must be

heard and decided before a final judgment is entered. Counsel pointed out that the court orally

ruled on the issue three days after counsel submitted a more than 30-page brief on Uliana’s

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contribution request, which set forth numerous public policy issues, case law, and other reasons

to grant contribution and find that the premarital agreement was unenforceable as to attorney

fees. Counsel continued:

“[Leonard’s counsel] says that we can't pursue our fee claim because of the

provisions in the prenuptial agreement; that's malarkey. He says we're not

entitled to a hearing on—on contribution; that's malarkey. He says you don't

have to hold a hearing; that's malarkey. You do have to hold a hearing and

that hearing has to be held before you enter a judgment, and the point of the

matter is we're entitled to it. Now, either you give us this hearing and you

change this provision that she's responsible for all *** or you simply suggest

that *** under the prenuptial we're not entitled to any fees because our—our

argument that it's against public policies carries no weight at all with you, but

whatever you do we need some direction from this Court.”

¶ 78 Uliana’s counsel suggested that the court could hear the petition and Leonard’s motion to

dismiss on the April date that was already set for hearing, or stand by its ruling and counsel

would file a motion for stay and an appeal. Counsel stated that he had already incurred $500,000

in fees which Uliana did not have the money to pay, and counsel was “entitled to a contribution

hearing. *** So give me a contribution hearing.”

¶ 79 Following this argument, the trial court stated, “Okay. So the first thing I’m going to do

is I’m going to say that the parties are to pay their own fees. *** I’m not retracting that.”

Uliana’s counsel then clarified the issue with the court:

“MR. GRUND: Judge, I want to clarify something. You're denying our

right despite the mandate in 503(j) that you have to conduct a hearing on

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contribution before you enter the judgment? You're denying our right to have

that contribution hearing, correct?

THE COURT: I'm saying because I've listened to all the evidence, I went

through all of the—the exhibits, I heard the arguments of counsel at trial, I

reviewed your papers regarding, you know, the judgment, et cetera that—that

both parties will pay their own fees.

MR. GRUND: I've got it—

THE COURT: --period.

MR. GRUND: Thank you.

THE COURT: You're welcome.”

¶ 80 Leonard’s counsel stated that in light of the trial court’s ruling, he would withdraw his

motion to dismiss Uliana’s petition for contribution.

¶ 81 Uliana’s counsel then asked the trial court about the status of her motion to vacate the

Bifurcated Judgment that she filed in December 2017, as the trial court had not rendered a

decision. The following colloquy occurred regarding Uliana’s motion to vacate:

“THE COURT: Okay. So I'm familiar with everything in there. I'm

denying your motion to vacate it.

MR. GRUND: What are you familiar with?

THE COURT: I'm familiar with the entire case, Mr. Grund. If you want to

reargue it again how about if we do this --

MR. GRUND: You're sitting here--

THE COURT: -- set everything down for a hearing. Mr. Grund can argue

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whatever he wants to argue at a hearing. Goodbye, guys. Get a hearing date.

MR. GRUND: On the motion to --

THE COURT: But I've denied – I have denied your motion to vacate it.

Okay? And anything else you want to argue about or tell me you can do it at

the hearing. I've got --

MR. GRUND: What hearing?

THE COURT: I've got a full courtroom.

MR. GRUND: What hearing are you talking about?

THE COURT: Pardon me?

THE COURT: I'm saying --

MR. GRUND: If you denied it you denied it.

THE COURT: No. You were proceeding -- You kept proceeding in an

argument so if you want to argue or continue we'll do it at a hearing or we'll

do it at a time where, you know, I can take care of some other people in my

courtroom.

MR. GRUND: There's nothing for me to argue, Judge.

THE COURT: Okay.

MR. GRUND: I was only seeking clarification from you --

MR. GRUND: -- that's all.

THE COURT: All right. There you go.

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MR. GRUND: I want to make sure that -- that everybody understands

what your orders are, that's it, Judge.

THE COURT: Okay. Do you understand it --

MR. GOLDMAN: Yes, I do, your Honor.”

¶ 82 On appeal, Leonard points to counsel’s above statements that “[i]f you denied it you

denied it” and “[t]here’s nothing for me to argue, Judge,” as evincing a waiver of Uliana’s

request for a hearing on the petition for contribution. However, Leonard takes these statements

out of context. It is clear when viewing counsel’s arguments and the trial court’s statements in

their entirety that neither the court nor Uliana’s counsel was referring to the petition for

contribution at that moment. Rather, they were discussing Uliana’s motion to vacate the

Bifurcated Judgment. Moreover, it is evident from the full colloquy on March 28 that Uliana’s

counsel steadfastly maintained his request for a contribution hearing before the trial court. We

therefore conclude that no waiver or invited error occurred.

¶ 83 2. Standard of Review

¶ 84 Uliana asserts that the trial court’s refusal to hold a separate evidentiary hearing on her

petition for contribution under section 503(j) of the Act (750 ILCS 5/503(j) (West 2016))

presents an issue of law which we must review de novo. Leonard contends that the proper

standard of review is an abuse of discretion.

¶ 85 We find that a mixed standard of review is appropriate. The law is well settled that

attorney fees are the primary obligation of the party for whom the services are rendered.” In re

Marriage of Stufflebeam, 283 Ill. App. 3d 923, 929-30 (1996). “The allowance of attorney fees in

a dissolution of marriage proceeding and the proportion to be paid by each party are best left to

the trial court's sound discretion and will not be disturbed on review absent an abuse of that

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discretion.” Id. at 930. That is, we analyze whether the trial court “acted arbitrarily without

conscientious judgment or, in view of all the circumstances, exceeded the bounds of reason and

ignored recognized principles of law so that substantial injustice resulted.” In re Marriage of

Suriano and LaFeber, 324 Ill. App. 3d 839, 846 (2001). “When determining an award of

attorney fees, the allocation of assets and liabilities, maintenance and the relative earning

abilities of the parties should be considered. [Citation.] A party seeking an award of attorney fees

must show that he or she is unable to pay those fees and the other party is able to do so.” Id. at

852. For example, an abuse of discretion can be established if “the evidence reveals a gross

disparity in income and earning capacity and the financial inability of the spouse seeking relief to

pay.” Id.

¶ 86 To the extent that our analysis requires interpretation or construction of section 503 or

other provisions of the Act, this involves a question of statutory interpretation, which we review

de novo. Suriano, 324 Ill. App. 3d at 846. In construing a statute, our primary objective is to give

effect to the intent of the legislature, the most reliable indication of which is the plain and

ordinary meaning of the statutory language. Id. We apply clear and unambiguous language as

written. Id.

¶ 87 Similarly, to the extent that our analysis requires interpretation of their premarital

agreement, we abide by the rules of contract interpretation. In re Marriage of Best, 387 Ill. App.

3d 948, 949 (2009). “Construction of a contract presents a question of law, subject to de

novo review.” Id. “A court must look to the language of the contract, given its plain and ordinary

meaning, as the best indication of the parties' intent.” In re Marriage of Woodrum, 2018 IL App

(3d) 170369, ¶ 108. “[A] contract must be construed as a whole, viewing each part in light of the

others.” Id.

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¶ 88 3. Refusal to Hold a Separate Evidentiary Hearing

¶ 89 Section 503(j) provides, in pertinent part:

“(j) After proofs have closed in the final hearing on all other issues

between the parties (or in conjunction with the final hearing, if all parties so

stipulate) and before judgment is entered, a party's petition for contribution to

fees and costs incurred in the proceeding shall be heard and decided, in

accordance with the following provisions.” (Emphasis added). 750 ILCS

5/503(j) (West 2016).

¶ 90 Uliana contends that the phrase “shall be heard and decided” indicates the trial court must

hold a separate hearing on contribution. She relies heavily on In re Marriage of Brackett, 309 Ill.

App. 3d 329, 345 (1999), which held that, under section 503(j), “the trial court must hear and

decide a party's petition for contribution to attorney fees and costs after the close of proofs on all

other issues.” (Emphasis in original). However, Bracket court further explained that it would

“temper” this statement:

“by cautioning against too literal a reading of section 503(j). We do not read

section 503(j) as requiring an additional hearing, which would further burden

already overburdened trial courts, but, rather, as requiring a trial court to hear,

through testimony or otherwise, additional proofs when a petition for

contribution is filed in accordance with section 503(j) in the context of

preexisting proceedings. If the trial court wishes to hold a separate and distinct

hearing on the petition, it has the discretion to do so.” Id.

¶ 91 In In re Marriage of Suriano and LaFeber, 324 Ill. App. 3d 839, 847 (2001), our court

interpreted section 503(j) and found that it was clear and unambiguous in that this section

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“neither makes provision for nor mandates an evidentiary hearing in connection with the circuit

court's determination of the allocation of attorney fees and costs.” Id. There, the trial court held a

hearing wherein the parties argued at length about the allocation of assets and liabilities and the

parties’ earnings in the context of their cross-petitions for contribution. Id. at 848-49. Although

the husband requested a separate evidentiary hearing and provided an offer of proof for

additional evidence, our court held that “it was within the [trial] court’s discretion whether to

allow an additional, separate hearing.” Id. at 849. “The plain and ordinary meaning of section

503(j) does not require a separate evidentiary hearing.” Id. In Suriano, the trial court did not

abuse its discretion in refusing to conduct an evidentiary hearing as it had provided the parties

with a hearing where the parties were able to present their arguments. Id. Indeed, the Suriano

court distinguished Brackett because in the latter, there was no indication that the trial court

made a separate ruling on the petition for contribution and no evidence regarding the amount of

attorney fees owed by the parties was presented at a separate hearing or during any of the

proceedings. Suriano, 324 Ill. App. 3d at 348-49; Brackett, 309 Ill. App. 3d at 345-56.

¶ 92 Accordingly, we conclude that the trial court here was not required to hold a separate

evidentiary hearing, beyond what it had already provided, concerning Uliana’s petition for

contribution. In contrast to Brackett, the record reflects that the trial court had before it ample

evidence to consider Uliana’s request for contribution and the parties were given the opportunity

to present their respective arguments. Uliana’s written petition for contribution set forth her

arguments and detailed the amount of fees and costs she owed for the work her attorneys

provided. Uliana asserted that as of February 2018, her attorneys were owed $474,997.43 and

had advanced costs of $33,505.64, and Leonard had previously paid her law firm $100,000.

Uliana asserted that given her poor health, lack of employment, lack of financial resources, and

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Leonard’s financial position, the court should order Leonard to pay Uliana’s attorney fees and

costs. Further, Leonard’s motion to dismiss her petition called into question whether her

requested fees included matters for which she was not entitled to any fees, such as her prior

appeal and voluntarily dismissed divorce petition, and whether the amount of fees she claimed

was reasonable given that her total fees were well over $600,000, whereas Leonard’s fees and

costs totaled $189,887.12 through February 14, 2018. Leonard also argued that the fee provision

of the premarital agreement required that any attorney fees paid by Leonard were to be included

in the total amount he was obligated to pay under the agreement and not in addition to it. In

response, Uliana clarified that she was not requesting fees related to her prior appeal.

¶ 93 Thus, when court convened on March 9 and 28, 2018, it had all of the pertinent

arguments and evidence before it, in addition to the trial evidence previously presented regarding

the parties’ financial positions. Uliana’s counsel also presented further argument at that time on

the petition. When the trial court again denied her request for contribution on March 28, it

specifically stated that it had considered all of the evidence and the parties’ arguments, reviewed

the exhibits and briefs, and considered the judgment. The lack of a separate evidentiary hearing

was not dispositive here, as the trial court abided by the requirements of section 503(j) and fully

considered the issue with the relevant arguments and evidence sufficiently before it. See In re

Marriage of Selinger, 351 Ill. App. 3d 611, 623 (2004) (“The lack of a hearing here is not

dispositive. The assets and liabilities of the two parties were before the court already, as was the

amount of Pamela's attorney fees. We fail to see what other evidence had to be presented for the

court to rule on Pamela's request.”).

¶ 94 4. Determination that Each Party Would Pay Their Own Fees

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¶ 95 Uliana argues, alternatively, that the trial court abused its discretion in denying her

petition for contribution because requiring each party to pay their own fees would place her in a

position of penury.

¶ 96 Under the Act, a trial court “may order any party to pay a reasonable amount for his own

or the other party’s costs and attorney’s fees.” 735 ILCS 5/508(a) (West 2016). “[C]ontribution

to attorney's fees and costs may be awarded from the opposing party in accordance with

subsection (j) of Section 503[.]” 735 ILCS 5/508(a) (West 2016). Section 503(j) provides that a

contribution award is based on the criteria for the division of marital property outlined in

subsection 503(d) (750 ILCS 5/503(d) (West 2016)), and, if maintenance is awarded,

contribution is based on the criteria for a maintenance award under section 504(a) (750 ILCS

5/504(a) (West 2016)). 750 ILCS 5/503(j) (West 2016).

¶ 97 Section 503(d) lists the following factors for the court to consider: (1) each party’s

contribution to the value of the marital estate; (2) dissipation of the marital estate by each party;

(3) the value of the property assigned to each party; (4) the length of the marriage; (5) the

economic circumstances of each party; (6) obligations or rights arising from a prior marriage of

either party; (7) any premarital or postnuptial agreements between the parties; (8) each parties’

age, health, occupation, income, employability, and liabilities; (9) any custodial provisions for

children; (10) whether maintenance was awarded; (11) each party’s opportunity for future

income; (12) the tax consequences of the property division on each party. 750 ILCS 5/503(d)

(West 2016).

¶ 98 Additionally, the following factors in section 504(a) become relevant where maintenance

is awarded: (1) each party’s income and marital property; (2) each party’s needs; (3) earning

capacity; (4) any impairment to earning capacity due to a party having forgone employment or

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education for the marriage; (5) impairment of earning capacity of the party against whom

maintenance is sought; (6) the time required for the party seeking maintenance to acquire

education or employment; (7) the parties’ standard of living during marriage; (8) the duration of

the marriage; (9) each parties’ age, health, occupation, income, employability, and liabilities;

(10) all sources of income; (11) tax consequences; (12) the party’s contributions to the education

or career of the other spouse; (13) any valid agreement between the parties; and (14) any other

factors the court finds just and equitable. 750 ILCS 5/504(a) (West 2016).

¶ 99 Leonard argues that the paragraph 7 of the premarital agreement mandates that any

amounts Leonard pays for Uliana’s attorney fees must be deducted from the payments in lieu of

maintenance that he was ordered to pay to Uliana. Leonard also argues the trial court’s decision

was not an abuse of discretion because Uliana had the financial resources to pay her attorney fees

considering the amounts she was awarded under the Supplemental Judgment, and she has a

college degree and experience managing Leonard’s properties, and thus has the ability to work.

Leonard asserts that her claimed attorney fees and costs of over $500,000 are unreasonable.

Leonard further contends that Uliana is not entitled to contribution for fees related to anything

but the current divorce proceedings because she voluntarily dismissed her divorce case, the

declaratory judgment action related to that case, and she was unsuccessful on all issues in her

appeal.

¶ 100 Both sections 503(d) and 504(a) permit a trial court to consider any valid premarital

agreements between the parties when determining whether to order a spouse to contribute to the

other spouse’s attorney fees. 750 ILCS 5/503(a) (West 2016); 750 ILCS 5/504(a) (West 2016).

Paragraph 7 of the parties’ premarital agreement sets forth a schedule of payments related to the

length of the parties’ marriage. Subsection (f) provides that if either party filed for dissolution of

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marriage, Leonard must pay to Uliana “as and for a lump sum settlement in lieu of and instead of

maintenance *** and in lieu of and instead of any and all property rights” $2,500 for 100 months

because they were married for more than 240 months. Further, paragraph 7 provides that

Leonard’s obligation to pay support and maintenance is limited to the amount specified in the

applicable subsection (f) and that “the aggregate of all such obligations of LEONARD for the

payment to ULIANA of alimony, support, and maintenance or alimony in gross or attorneys’

fees shall not exceed whichever of the sums in the said subsections, above, shall be applicable.”

¶ 101 Thus, the language in paragraph 7 of the premarital agreement does not prohibit the trial

court from ordering Leonard to contribute to Uliana’s attorney fees. However, paragraph 7

requires that the sum of any amounts that Leonard is be ordered to pay Uliana—whether in

temporary spousal support, maintenance, or attorneys’ fees—does not exceed the sum in the

applicable subsection, which in this case was subsection (f) because the parties were married for

more than 240 months. Subsection (f) called for Leonard to pay Uliana $2,500 per month for 100

months, or $250,000 total. Thus, under their premarital agreement, any amounts Leonard was

ordered to pay for attorney fees or temporary support should be deducted against this total

obligation under the terms of paragraph 7.

¶ 102 In fact, the trial court departed from the terms of the premarital agreement because it

ordered Leonard to pay Uliana temporary support payments of $7,500 during the pendency of

the divorce and it ordered him to contribute an additional $100,000 toward her interim attorney

fees when he sold a piece of marital property. However, the trial court did not credit these

amounts against his total obligation of $250,000 under paragraph 7. Additionally, the trial court

ultimately ordered Leonard to pay Uliana $8,370 monthly for 100 months ($837,000 total -

without termination at Leonard’s death) starting from the date the Supplemental Judgment was

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entered, and provided no credit against this obligation for the amounts Leonard previously paid

in temporary support or interim attorney fees. Thus, the amounts Leonard was ordered to pay

already vastly exceeded his total obligation of $250,000 under the agreement, even without

considering any amount for contribution that Uliana sought toward her $500,000 attorney fee

bill. It cannot be understated that, although the trial court denied Uliana’s contribution petition, it

ultimately left Uliana in markedly better position than the premarital agreement provided for. We

additionally observe that Uliana was also awarded $336,800 for her interest in the parties’

Florida real estate, her home in Michigan, and other financial accounts. The record also supports

that in making this determination, the trial court heard extensive argument from the parties on the

issue of contribution and had before it all the relevant written briefs, documents, and evidence to

consider the relevant factors under section 503(j). The court heard trial evidence regarding

Uliana’s financial status, age, health conditions, living expenses, and employment prospects, in

addition to Leonard’s financial situation.

¶ 103 Additionally, while section 503(j) does not expressly require a trial court to consider the

necessity of a party’s attorney fees, this section does incorporate a reasonableness requirement.

Nesbitt, 377 Ill. App. 3d at 657-58. As noted, Uliana claimed to have incurred well over

$600,000 total in legal fees during the course of proceedings, whereas Leonard incurred

$180,000. The trial court had already ordered Leonard to contribute $100,000 to Uliana’s legal

fees and circumvented the premarital agreement in awarding monthly payments at a greater

amount than specified by the agreement and not subtracting any amounts previously paid by

Leonard against this obligation. Under the circumstances, we find no abuse of discretion in the

trial court’s decision that no further contribution to attorney fees was warranted.

¶ 104 B. Maintenance

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¶ 105 Uliana next contends that the trial court erred in construing the premarital agreement as

constituting a waiver of her right to maintenance. Uliana argues that the only provisions in which

the term “waiver” appears are those dealing with spousal rights upon death of the other spouse,

such as paragraphs 4 and 5. Uliana argues that paragraph 7, which discusses maintenance and

property rights, does not contain express waiver language. She further asserts that it would be

against public policy to construe paragraph 7 as releasing her future rights to maintenance and

property upon divorce because these were unknown and not specifically contemplated at the time

they executed the premarital agreement.

¶ 106 Leonard argues that Uliana is prohibited from relitigating the issue of interpretation of the

property classification and maintenance waiver provisions in the premarital agreement. Leonard

contends that the law-of-the-case doctrine precludes Uliana from arguing that the premarital

agreement did not waive maintenance and property rights because in her prior appeal, she argued

at length regarding interpretation of the agreement in asserting that it was unconscionable and

not reasonable on these grounds. Leonard argues that resolution of her issues required

interpretation of the agreement, and was thus a necessary component of Uliana’s prior appeal

and this court’s prior analysis. He also claims that she conceded in her prior appeal and in her

trial briefs that she waived her right to maintenance and property rights under the terms of

paragraph 7 and she has waived her right to assert the opposite in this appeal.

¶ 107 Uliana responds that the law-of-the-case doctrine does not bar her arguments here

because the issues litigated in the prior case concerned the validity and enforceability of the

premarital agreement, whereas the issues in the present case concern the construction and

application of the premarital agreement to the parties’ property. She denies that she previously

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conceded that she waived maintenance or property rights under the terms of the premarital

agreement.

¶ 108 “A trial court enjoys considerable discretion in granting maintenance; we will not reverse

absent an abuse of discretion.” Brackett, 309 Ill. App. 3d at 340. As stated, premarital

agreements are governed by the rules of contract interpretation, and we review their construction

de novo on appeal. Best, 387 Ill. App. 3d at 949. We view the agreement in its entirety, giving

words their plain and ordinary meaning in order to best arrive at the party’s intent. Woodrum,

2018 IL App (3d) 170369, ¶ 108.

¶ 109 We first examine Leonard’s argument that the law-of-the-case doctrine precludes

Uliana’s argument. “The law-of-the-case doctrine provides that ‘where an issue has been

litigated and decided, a court's unreversed decision on that question of law or fact settles that

question for all subsequent stages of the suit.’ ” Underwood v. City of Chicago, 2020 IL App

(1st) 182180, ¶ 38 (quoting Alwin v. Village of Wheeling, 371 Ill. App. 3d 898, 911 (2007)).

Issues decided by this court in an initial appeal are usually not subject to re-consideration in a

second appeal. Id. “The extent to which this doctrine applies here is an issue of law we review de

novo.” Id.

¶ 110 In the prior case, the trial court granted Leonard’s request for declaratory relief in finding,

inter alia, that the premarital agreement was valid based on its determination that it was fair and

reasonable and was not the product of fraud, duress, or coercion. Kranzler, 2018 IL App (1st)

171169, ¶ 34. In her appeal of that order, Uliana raised the following contentions before this

court: (1) the trial court lacked subject matter jurisdiction over Leonard’s motion for declaratory

relief; (2) the trial court erred in applying the Illinois Uniform Premarital Agreement Act (750

ILCS 10/101 et seq.) to the premarital agreement and not concluding that it created an

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unforeseen condition of penury; (3) the trial court erred in finding that the premarital agreement

was not the product of duress or undue influence; (4) the trial court erred in finding the

premarital agreement was not unfair or unreasonable; (5) the trial court erred in finding that the

premarital agreement was not unconscionable. Id. ¶¶ 41, 59, 68, 77, 87, 94.

¶ 111 On appeal, this court held, inter alia, that under the applicable legal standard, the

agreement was valid because it did not leave Uliana in a state of penury. In reaching this

conclusion, this court observed that under the terms of the agreement, Uliana was entitled to “a

monthly payment in maintenance” based on the length of the parties’ marriage, that she would

receive all property in her name, half of all marital property, and 40% of Leonard’s net estate

upon death. Kranzler, 2018 IL App (1st) 171169, ¶ 72. The court concluded that the trial court’s

factual determinations were not manifestly erroneous in finding that the agreement did not create

an unforeseen condition of penury and was fair and reasonable considering “the parties' age

difference, the maintenance provision and the estate provision, and the fact that they may have

contemplated a short marriage.” Id. ¶ 74. Additionally, this court held that the trial court did not

err in finding the agreement fair and reasonable because it “did not leave Uliana without a

financial settlement and did not involve a complete waiver of maintenance. She was entitled to

receive $2,500 per month for 100 months ***. In addition, she retains her property in Michigan

***, and all other premarital property. She is also entitled to half of all jointly titled marital

property upon resolution of the dissolution case.” Id. ¶ 91. For similar reasons, this court found

the agreement was not unconscionable. Id. ¶ 96.

¶ 112 Based on the foregoing, we find that this court necessarily interpreted the provisions of

the premarital agreement in reaching its conclusion that it was a valid, enforceable agreement in

Uliana’s prior appeal. The law-of-the-case doctrine “ ‘encompasses a court’s explicit decisions

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and issues decided by necessary implication.’ ” Underwood, 2020 IL App (1st) 182180, ¶ 50

(quoting Reich v. Gendreau, 308 Ill. App. 3d 825, 829 (1999)). Under the applicable law as it

stood at the time the parties executed the agreement here, premarital agreements “determining

the rights of spouses to property *** or maintenance *** are valid and enforceable so long as (1)

an unforeseen condition of penury is not created due to lack of property resources or lack of

employability [citation], (2) the agreement is entered into with full knowledge and without fraud,

duress, or coercion [citation], and (3) the agreement is fair and reasonable.” Warren v. Warren,

169 Ill. App. 3d 226, 230 (1988). As such, the inquiry into whether a premarital agreement is fair

and reasonable requires construction of its provisions in order to ascertain whether it

“guarantee[s] both parties an equitable financial settlement in lieu of a waiver of their rights to

property or maintenance.” Id. at 231. While the prior appeal did not involve actual application of

the premarital agreement to the parties’ current divorce, it did require the court to construe the

terms of the agreement to the extent necessary to address her issues on appeal. That is, in order to

decide Uliana’s challenge that the premarital agreement was not fair or reasonable and that it was

unconscionable, the court necessarily had to determine what rights she was waiving and what

benefits she was entitled to under its provisions.

¶ 113 Although Uliana contends that she did not previously concede that she waived

maintenance or property rights under the terms of the premarital agreement, we disagree. In her

brief on appeal in the prior case, she asserted several times that the premarital agreement was not

fair or reasonable and was substantively unconscionable because, in it, she waived her

maintenance and property rights:

“Under the Antenuptial Agreement (assuming, arguendo, it were somehow

enforceable), Uliana waived all interest in the property owned by Leonard

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before the parties’ marriage and *** all of his income and property acquired

after their marriage. *** The only thing that the ailing Uliana will be entitled

to *** is 100 months *** of monthly taxable maintenance of $2,500 ($30,000

per year)[.] *** [T]he total amount that Uliana can receive from Leonard

under the Antenuptial Agreement is capped at $250,000, and subtracted from

that cap is any temporary maintenance paid to Uliana and any attorney fees

paid by Leonard to Uliana’s counsel. And what did Uliana give up for those

crumbs? Uliana gave up any marital claim to the millions of dollars to

Leonard’s estate and her right to permanent statutory maintenance.”

(Emphasis omitted.)

¶ 114 Uliana reiterated this argument throughout her brief. (Appellant’s Br., Docket No. 1-17-

1169 at 31, 41, 48). Uliana relies on her prefacing these arguments with the following

qualification: “assuming, arguendo, [the premarital agreement] were somehow enforceable,” to

assert that she did not concede that she waived maintenance and property rights. However, this

statement merely indicates that for purposes of argument, she was assuming the agreement was

enforceable.

¶ 115 Alternatively, even if we were to agree with Uliana that the prior appeal did not

determine whether she waived maintenance and property rights under the premarital agreement,

we would disagree with her proposed construction of those provisions in this appeal. As Leonard

argues, Uliana’s interpretation of the agreement leads to an absurd result. Under Uliana’s

construction, she would receive a better recovery in divorce than in Leonard’s death, that is, she

would receive the payments “in lieu of maintenance” under paragraph 7, in addition to a separate

right to maintenance and property rights under the law.

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¶ 116 We conclude that, by its plain terms, paragraph 7 of the premarital agreement waived

Uliana’s maintenance and property rights. As previously noted, paragraph 7 provides:

“7. That in the event that either of them shall at any time hereafter file

legal proceedings for dissolution of marriage or for legal separation,

LEONARD shall pay to ULIANA, as and for a lump sum settlement in lieu of

and instead of maintenance (formerly known as alimony), whether past,

present or future, and in lieu of and instead of any and all property rights

whether past, present or future, whether marital or non-marital, ULIANA

may claim or assert against LEONARD, the following:

***

(f) In the event that the parties shall have been married for more than 240

months prior to the filing of a Petition for Dissolution of Marriage or of a

Petition for Legal Separation by either party, LEONARD shall pay to

ULIANA the sum of $2,500.00 each month for the 100 months immediately

following the filing of such petition.

The aforesaid lump sum settlement set forth in (a) through (f), above shall

be defeasible and terminate forever upon the first to happen in point of time of

the following events:

(i) ULIANA’s remarriage or death,

(ii) LEONARD’s death, or

(iii) the full payment of the applicable amount in (a) through (f),

whichever shall be applicable, by LEONARD to ULIANA.

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The parties further covenant and agree that in the event either party shall

obtain a Judgment for Dissolution of Marriage or a Judgment for Legal

Separation, any amount paid by LEONARD to ULIANA during the pendency

of such proceedings shall be included in, and shall not be in addition to, the

lump sum settlement in lieu of maintenance and property rights hereinabove

provided. The parties further covenant and agree that the obligation of

LEONARD to pay support and maintenance to ULIANA, whether temporary

or permanent, shall be limited to whichever of the amounts hereinbefore

specified in subsections (a)—(f) of this paragraph shall be applicable,

regardless of the number of legal proceedings commenced by either party, and

that the aggregate of all such obligations of LEONARD for the payment to

ULIANA of alimony, support, and maintenance or alimony in gross or

attorneys’ fees shall not exceed whichever of the sums in the said subsections,

above, shall be applicable.” (Emphasis added.)

¶ 117 The language of paragraph 7 plainly states that the payments by Leonard set forth in that

section shall be “as and for a lump sum settlement in lieu of and instead of maintenance

(formerly known as alimony), whether past, present or future, and in lieu of and instead of any

and all property rights whether past, present or future, whether marital or non-marital.”

Paragraph 7 continues on to state, twice, in various terms that any additional amounts Leonard is

ordered to pay to Uliana in the event of dissolution, such as temporary or permanent support or

legal fees, “shall be included in, and shall not be in addition to, the lump sum settlement in lieu

of maintenance and property rights hereinabove provided.”

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¶ 118 It is also clear from other provisions of the premarital agreement that the parties

specifically contemplated the waiver of spousal maintenance and property rights at the time the

parties contracted. For example, the opening recitals indicate that its provisions were intended to

govern their rights in the event of both death and divorce and maintain their respective property

and incomes:

“WHEREAS, the parties hereto are desirous of maintaining their

respective properties and incomes for the benefit of themselves and their

families, and

WHEREAS, it is the desire of the parties hereto to set forth in writing the

terms and conditions governing the respective rights of each in the event of

the death of either party or in the event of the filing for and entry of a

Judgment for Dissolution of Marriage or the filing for and entry of a Judgment

for Legal Separation[.]”

¶ 119 Although recitals to a contract are “not [an] operational part of [a] contract between the

parties, they reflect the intent of the parties and influence the way the parties constructed

the contract.” (Internal quotation marks and citations omitted.) Hagene v. Derek Polling Const.,

388 Ill. App. 3d 380, 385 (2009). “The contract recitals create a context through which the

operational portion of the contract can be better understood, because they indicate the relevant

circumstances to its execution.” Id.

¶ 120 Contrary to Uliana’s argument, we do not find that other provisions change our

interpretation of the plain language of paragraph 7. Rather, consistent with the recital paragraphs

and paragraph 7, paragraphs 1, 2, 3, and 4 reinforce the idea that, in the event of divorce or

death, the parties intended to retain their own property and incomes acquired before and during

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the marriage, unless specifically held jointly. Paragraph 1 provides, in relevant part, that property

acquired by the parties prior to marriage “shall remain his or her separate property *** in the

event of a termination of the marriage by death, divorce or dissolution or marriage.” Paragraph 2

provides, inter alia, that any jointly owned property “shall, upon the termination of the marriage

by divorce or dissolution or marriage, be divided equally between the parties” or pass to the

other upon death. Paragraph 3 states that, upon death, each party may dispose of their estates “as

they desire” except as otherwise provided in the agreement. Further, in paragraph 6, Leonard

devises a certain percentage of his net estate to Uliana according to the length of the marriage.

¶ 121 As to paragraph 4, Uliana argues that this provision contains express waiver language but

does not specifically mention divorce or dissolution and, thus, when read with paragraph 7,

demonstrates that Uliana was not waiving her maintenance or property rights in the event of

divorce. Paragraph 4 provides:

“That, except as is otherwise provided in this Agreement, ULIANA shall,

and does hereby waive, remise and release unto LEONARD and to his heirs,

executors, administrators and assigns any and all claim of right, title or

interest which she now has, or might hereafter assert, in and to all and singular

the income and property of LEONARD, whether real, personal, or mixed, of

whatsoever nature and wheresoever situated, by reason of the marital

relationship contemplated to exist between them, including, but not limiting

the generality of the foregoing, heirship, homestead, administration or

renunciation of any Last Will and Testament, or codicil thereto, left by

LEONARD, and any and all other rights as spouse of LEONARD in and to

his property or income, whether such property be now owned or shall be

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hereafter acquired by him. ULIANA further covenants and agrees that

LEONARD may dispose of all and singular his estate and property, whether

real, personal, or mixed, of whatsoever nature and wheresoever situated, by

deed, conveyance, mortgage or other encumbrances, or trust, whether inter

vivos or testamentary, or by Last Will and Testament, in such manner as he

may desire, and that she will not in any manner interfere with or impede any

transaction by him had in connection therewith and in fact she will execute

any and all documents necessary and proper to effect such transaction.” 4

(Emphasis added.)

¶ 122 We find that the language of paragraph 4 is not explicitly limited to apply only to

Uliana’s rights to Leonard’s income and property at death, as it explicitly states, “not limiting the

generality of the foregoing.” While some of the listed interests refer to estate matters, the

provision specifically notes that this was “not limit[ed] to the generality of the foregoing.”

Further, if paragraph 4 was limited to waiver of estate claims, this would render paragraph 3

surplusage. Moreover, in light of the broader waiver of rights contained in paragraph 4, it is

reasonable that paragraph 7 contains a more specific provision regarding payments in lieu of

maintenance and property rights pertaining to divorce, just as paragraph 6 contains a more

specific provision related to leaving Uliana a portion of Leonard’s net estate according to the

length of the marriage.

¶ 123 We are similarly unpersuaded by Uliana’s citation to Feltmeier v. Feltmeier, 207 Ill. 2d

263, 286 (2003), where our supreme court found that a general-release clause in a marital

settlement agreement did not bar the wife’s claim against the husband for intentional inflict of

4 Similarly, paragraph 5 effectuates a verbatim release by Leonard as to Uliana.

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emotional distress. While recognizing that such contractual releases cannot be construed to

release future claims that are not contemplated at the time an agreement is executed, the waivers

in the parties’ premarital agreement here were much more specific in nature and it was clearly

within the contemplation of the parties to waive maintenance and property rights in the event of

divorce. The premarital agreement demonstrates this in its overall structure and, more

specifically, in its recitals and paragraph 7. And, as noted, the trial court awarded Uliana

payments far in excess of what the agreement provided for under this schedule.

¶ 124 C. Non-Marital Property Division

¶ 125 Uliana next claims that the trial court erred in classifying certain assets as Leonard’s non-

marital property.

¶ 126 We review a trial court’s ultimate distribution of marital property for an abuse of

discretion. In re Marriage of Polsky, 387 Ill. App. 3d 126, 135 (2008). “An abuse of discretion is

found only when no reasonable person would take the view adopted by the trial court.” Id.

Additionally, the trial court’s classification of property as marital or non-marital will not be

disturbed unless it is contrary to the manifest weight of the evidence, as this determination rests

largely on the trial court’s assessment of the credibility of the witnesses. In re Marriage of

Hubbs, 363 Ill. App. 3d 696, 700 (2006). “A judgment is against the manifest weight of the

evidence when the opposite conclusion is apparent or when the findings appear to be

unreasonable, arbitrary, or not based on the evidence.” In re Marriage of Levinson, 2012 IL App

(1st) 112567, ¶ 33. As previously noted, interpretation of a premarital agreement is reviewed de

novo and is governed by the laws of contract interpretation, the primary objective being to

ascertain and effectuate the intent of the parties based on the plain and ordinary meaning of its

terms. Woodrum, 2018 IL App (3d) 170369, ¶ 108; Best, 387 Ill. App. 3d at 949.

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¶ 127 The Illinois Marriage and Dissolution of Marriage Act defines marital property as “all

property, including debts and other obligations, acquired by either spouse subsequent to the

marriage,” except various enumerated exclusions which are deemed non-marital property. 750

ILCS 5/503(a) (West 2016). The Act creates a presumption that property acquired by either

spouse after marriage is presumed marital property, regardless of the manner in which the

property is titled. 750 ILCS 5/503(b)(1) (West 2016); In re Marriage of Heroy, 385 Ill. App. 3d

640, 670 (2008). The party claiming that such property is non-marital bears the burden of

rebutting this presumption by clear and convincing evidence. In re Marriage of Stuhr, 2016 IL

App (1st) 152370, ¶ 51.

¶ 128 Uliana asserts that the trial court disregarded the presumption that property acquired after

marriage is marital property and that Leonard failed to present any evidence, let alone clear and

convincing evidence, that various financial and real estate assets he acquired in his name where

premarital or traceable to premarital assets listed on Exhibit B to the premarital agreement.

¶ 129 Leonard responds that under the terms of the premarital agreement, he was not required

to demonstrate that the challenged assets were acquired before marriage or traceable to

premarital property or otherwise prove additional exceptions under section 503(a) by clear and

convincing evidence. Rather, he only had to show that they were titled in solely his name, which

Uliana did not dispute.

¶ 130 In executing a premarital agreement, parties may agree that their “rights at dissolution are

no longer governed by statute to the extent that they are validly modified or waived in their

agreement.” Best, 228 Ill. 2d at 118. This includes the ability of the parties to agree in a

premarital contract that property acquired after marriage shall not become marital property.

Subsection 503(a)(4) excludes from marital property any property that is acquired after marriage

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but is “excluded by valid agreement of the parties, including a premarital agreement or a

postnuptial agreement.” 750 ILCS 5/503(a)(4) (West 2016). See Woodrum, 2018 IL App (3d)

170369, ¶ 104 (finding that all of the property the parties acquired after their marriage was non-

marital property and was excluded from becoming marital property by their prenuptial agreement

under section 503(a)(4)).

¶ 131 The parties’ disagreement centers on paragraph 4. Uliana reiterates her stance that

paragraph 4 applies only to estate matters, not divorce. Leonard takes the position that

paragraphs 4 and 5, which mirror each other, contain broad waivers by each party to the other

party’s income and property, which includes in the event of divorce.

¶ 132 As we previously explained, contrary to Uliana’s assertion, the plain language of

paragraph 4 is not confined solely to estate matters. As stated, paragraph 4 provides that Uliana

waives any claim of right or interest in Leonard’s income or property “by reason of the marital

relationship contemplated to exist between them, including, but not limiting the generality of the

foregoing *** and any and all other rights as spouse of LEONARD in and to his property or

income, whether such property be now owned or shall be hereafter acquired by him.” This

effectuates a release by Uliana to waive any claim to Leonard’s income or property that arose by

reason of the marriage. Clearly encompassed within this language are assets owned by Leonard

in his name only and acquired after marriage. In paragraph 4, Uliana further agrees that Leonard

“may dispose of all” of all of his property “by deed, conveyance, mortgage or other

encumbrances *** in such manner as he may desire,” and she will not interfere. This second

sentence lends further credence to the idea that paragraph 4 contains a broad waiver applicable

outside of estate matters; Uliana agreed that Leonard can dispose of any of his property as he

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desires by various measures—including deed, conveyance, mortgage, or other encumbrances—

which are means of disposing of property other than estate measures.

¶ 133 As we explained, supra, we must view paragraph 4 in the context of the agreement’s

other provisions (Woodrum, 2018 IL App (3d) 170369, ¶ 108), and the waivers in this paragraph

are necessary to carry out the premarital agreement’s other provisions. As noted, the parties

agreed in paragraph 1 that any property owned in their individual names acquired prior to

marriage “shall remain his or her separate property” after marriage and in the event of divorce or

death, except as otherwise provided. The parties agreed in paragraph 2 that property “now owned

as separate property” prior to marriage that is transferred into joint ownership after marriage, or

property that is acquired after marriage and held by both parties “shall, upon the termination of

the marriage by divorce or dissolution of marriage, be divided equally between the parties, or

shall, upon the death of one of the parties, pass and be taken by the other as survivor or

beneficiary.” In paragraph 3, the parties agreed that, except as otherwise provided in the

premarital agreement, the parties “may dispose of their respective estates as they desire.”

¶ 134 Thus, under the premarital agreement, any property owned by the parties before marriage

remains that party’s separate non-marital property in the event of divorce. Any property owned

separately and transferred into joint ownership after marriage or any property acquired after

marriage that is titled in both parties’ names is classified as marital property and is to be divided

equally between them in the event of divorce. The premarital agreement provides that only

jointly owned property is divisible between the parties upon divorce. As such, the premarital

agreement excludes from its of property divisible in divorce in paragraph 2 any property that is

acquired after marriage but titled in only one spouse’s name. “A well-known rule of statutory

construction provides that expressio unius est exclusio alterius, the expression of one thing in a

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statute excludes all others.” In re Commitment of Weekly, 2011 IL App (1st) 102276, ¶ 40. This

construction also comports with paragraph 4, in which Uliana waives any claim of right to

Leonard’s income or property that arose by reason of their marriage, whether that property “be

now owned or shall be hereafter acquired by him.”

¶ 135 Accordingly, in order for the trial court abide by the terms of the parties’ valid premarital

agreement and properly classify the parties’ assets thereunder, it had to determine title or

ownership of the property. The premarital agreement lists only jointly owned property as

divisible between them in the event of divorce. The trial court correctly found that each party had

waived his or her rights to property individually owned by the other, including property acquired

during the marriage. We now turn to the specific assets Uliana challenges in her appeal.

¶ 136 1. CME Stock

¶ 137 Uliana argues that the trial court erroneously concluded that Leonard’s IOM seat was

transferred into 30,049 shares of CME stock and was thus Leonard’s property prior to marriage.

She contends that the CME stock was worth $4.9 million in March 2018 and was not acquired in

exchange for the IOM seat that Leonard owned prior to marriage. Rather, Uliana argues that the

CME stock was established and funded during the marriage.

¶ 138 Leonard argues that the evidence established that the CME stock was titled in his name

only, as his 2014 Form 1099 for the stock was introduced at trial. He further notes that the IOM

seat was listed in Exhibit B to the premarital agreement as his premarital property, and he

testified at trial that the CME stock came from his ownership interest in the IOM seat.

¶ 139 We find no error in the trial court’s decision to award the CME stock to Leonard. At trial,

Leonard testified that the 2014 Form 1099 showed the distributions or dividends he received as a

result of his CME stock ownership. He testified that he owned the IOM seat before marriage.

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When asked whether he understood what the “participating share units” of 30,049 meant on the

Form 1099, Leonard testified, “I think that’s the shares that the seat is transferred into.” He

affirmed that he received 30,049 shares in 2004. The trial court credited Leonard’s testimony in

that regard. We find that whether the stock originated from the IOM seat that he owned before

the marriage, or Leonard came into ownership of the CME stock after marriage by some other

means, it was indisputably his property under the premarital agreement because it was owned

solely in his name. There was no evidence that Uliana ever owned any shares or interest.

Although Uliana also faults the trial court for not valuing this asset, we note that the trial court

acknowledged Uliana’s contention that it had great value. However, the exact value was

irrelevant to the trial court’s classification and division of this property under the terms of the

premarital agreement.

¶ 140 2. Retirement Accounts

¶ 141 Uliana next challenges the trial court’s determination to award Leonard his various

retirement accounts. However, the only account that she specifically discusses is his Pershing

Lodestar IRA. She contends Leonard failed to show that it was converted from his Neuro-

Surgical pension plan, as he could not recall when this rollover occurred or trace assets from one

account to another. She argues that he also attributed the Pershing Lodestar IRA’s $2.4 million

increase in value from the $800,000 initially rolled over to merely “appreciation.”

¶ 142 We find no error in the trial court’s decision to award Leonard the Pershing Lodestar

IRA. The Neuro-Surgical pension plan was listed on exhibit B to the premarital agreement as his

premarital property. Further, Leonard testified that his pension plan from Neuro-Surgical was

rolled over into the Pershing Lodestar IRA. The trial court held that under paragraph 4, the

Pershing Lodestar IRA was Leonard’s sole property because it was held solely in his name.

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There was no evidence that Uliana held any ownership interest or joint title in this asset with

Leonard. We defer to the trial court’s assessment of the evidence and witness credibility.

¶ 143 3. Life Insurance Policy

¶ 144 Uliana also argues that the trial court erred in assigning to Leonard his AXA life

insurance policy because Leonard failed to provide sufficient evidence tracing it to premarital

property. However, the trial exhibit relating to this asset demonstrated that Leonard was the

insured and owner of the insurance policy. Uliana did not provide any evidence to contradict

Leonard’s testimony that he had one life insurance policy that he obtained before marriage which

had a cash value of $183,000 or to contradict his ownership of the AXA policy or show she had

an ownership interest in it. Pursuant to paragraph 4 of the premarital agreement, Uliana waived

any claim to this policy as it was held solely by Leonard.

¶ 145 4. Real Estate

¶ 146 Uliana’s final contention relates to real estate awarded to Leonard as separate property

that was acquired during the marriage. 5 Although she fails to address each specific property or

offer further analysis, she contends, as before, that Leonard failed to show by clear and

convincing evidence that this real estate was acquired by Leonard through a method that would

render it non-marital property under section 503(a). As stated, however, Leonard was not

required to provide evidence tracing these assets to premarital property. Rather, he had to

establish that it was held or owned only in his name and not jointly. The documentary and

testimonial evidence that was introduced at trial showed that these real estate assets were titled

solely in Leonard’s name, and this evidence was unrefuted. We therefore find no error in the trial

court’s decision to award this property to Leonard.

5 2716 Sherwin Avenue, Chicago, Illinois; 1410 N. State Parkway, Unit 12 B, Chicago, Illinois; vacant land in Bozeman, Montana; and; 3150 N. Lake Shore Drive, Units 35D & 36A, Chicago, Illinois.

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¶ 147 III. CONCLUSION

¶ 148 For the reasons stated, we affirm the Supplemental Judgment of the circuit court of Cook

County.

¶ 149 Affirmed.

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