NOTICE 2021 IL App (4th) 200031-U This Order was filed under Supreme FILED Court Rule 23 and is not precedent NO. 4-20-0031 March 26, 2021 except in the limited circumstances Carla Bender allowed under Rule 23(e)(1). IN THE APPELLATE COURT 4th District Appellate Court, IL OF ILLINOIS
FOURTH DISTRICT
In re MARRIAGE OF ) Appeal from the TAMMY L. LISK, ) Circuit Court of Petitioner-Appellee, ) Schuyler County and ) No. 14D14 DALE W. LISK, ) Respondent-Appellant ) Honorable ) Jerry J. Hooker, (Ronald Perrine, Intervenor-Appellee). ) Judge Presiding.
JUSTICE STEIGMANN delivered the judgment of the court. Justice Holder White concurred in the judgment. Justice Turner dissented.
ORDER
¶ 1 Held: The appellate court affirmed the trial court’s judgment because that court did not err in its distribution of the marital assets or granting a judgment in favor of Ronald Perrine.
¶2 In October 2014, petitioner Tammy L. Lisk filed a petition for dissolution of
marriage against respondent Dale W. Lisk. In December 2015, the trial court found that grounds
existed for dissolution of marriage.
¶3 In April 2019, Ronald Perrine sought to intervene in the dissolution proceedings by
filing a “Complaint for Interpleader and Declaratory Relief,” citing section 2-409 of the Code of
Civil Procedure (735 ILCS 5/2-409 (West 2018)). Perrine alleged that he incurred costs associated
with caring for cattle that Dale had abandoned on Perrine’s property. Perrine sought a judgment
against Dale in the amount of $34,406, to be paid from a portion of the proceeds awarded to Dale from the dissolution proceedings.
¶4 In October 2019, the trial court conducted a hearing at which Dale failed to
personally appear. The court relied on evidence from previous hearings and found that the marital
property was worth $614,285.67. The court also concluded that Dale had dissipated the value of
the marital property by letting the marital residence fall into disrepair and not making the mortgage
payments. The court divided the marital property in half, awarding Dale the value of the marital
residence, the appraised equipment and livestock that had not been sold, the value of the cattle
Dale sold, and the attorney fees awarded as the result of multiple contempt findings. Tammy was
awarded the money from a property auction, her investment accounts, and money being held by
the Carthage Livestock company. The court awarded her a judgment of $107,718.67 as an
equalizing payment.
¶5 The trial court also determined that Perrine, “an intervening party,” was owed
$20,408 from the marital estate and directed that any remaining equipment located at Perrine’s
property be sold and the proceeds divided equally between Perrine and Tammy until the debt to
Perrine was satisfied. Thereafter, the proceeds from the equipment sale would be awarded to
Tammy until the equalizing payment judgment was satisfied.
¶6 Dale appeals, arguing the trial court erred by (1) incorrectly calculating the marital
property value because the trial court’s calculation did not include debts and other obligations,
(2) failing to set a date for the purposes of determining the value of marital assets, (3) incorrectly
applying the law regarding dissipation, (4) failing to equitably distribute marital assets,
(5) incorrectly relying upon the requests to admit, and (6) incorrectly granting a judgment in favor
of Perrine. We disagree and affirm.
¶7 I. BACKGROUND
-2- ¶8 In October 2014, Tammy filed a petition for dissolution of marriage against Dale.
In January 2015, the trial court ordered, in part, that Dale comply with discovery procedures and
provide discovery responses. In February 2015, the court found Dale in indirect civil contempt for
failing to comply with the court’s January order and sentenced Dale to an indeterminate period of
incarceration in jail until he complied. However, Dale purged his contempt prior to the start of that
sentence.
¶9 In December 2015, the trial court found that grounds existed for dissolution of
marriage. In July 2016, Tammy filed a motion for temporary relief, asking the trial court to order
Dale to continue to pay the mortgage of the marital residence that he had stopped paying. In August
2016, the court granted that motion.
¶ 10 At a hearing on November 3, 2016, the trial court began by noting that Dale’s
attorney was moving to withdraw from the case. The court said, “I would state for the record that
when this case began, [Dale] had Mr. Lane. Mr. Lane had to withdraw because of noncompliance
from [Dale]. He then had Mr. Tucker. Mr. Tucker had to withdraw, then he had Mr. Leonard. Mr.
Leonard had to withdraw.” The court concluded that Dale was attempting to delay the proceedings
and denied the motion to withdraw.
¶ 11 The trial court then addressed Tammy’s fourth motion to compel discovery. The
court questioned Dale’s counsel, who confirmed counsel had (1) received interrogatories and
(2) sent those interrogatories to Dale. Dale had not responded to the interrogatories. The court
asked Dale why he had not responded, and Dale began to describe health problems. The court
asked him why his health problems prevented him from answering questions and noted he was
able to be present in the courtroom. Dale then said the interrogatories “can’t be completely
answered,” describing various problems he had with equipment sales, taxes he needed to pay, and
-3- the mortgage.
¶ 12 The trial court held Dale in indirect civil contempt and ordered him to “comply in
total” with the discovery. The court then set sentencing for November 14, 2016, and stated, “I am
going to give [Dale] an opportunity to purge before[ ] he’s actually sitting in jail[.]”
¶ 13 On November 14, 2016, the trial court conducted Dale’s sentencing hearing. Dale
provided handwritten responses to many of the interrogatories, but upon review, Tammy’s counsel
noted that his responses were inadequate. The court noted that it “couldn’t have been any more
clear” about what Dale had to do, and Dale had still not complied with the court’s order. The court
said, “Everything was supposed to be redone and you didn’t do it.” Dale replied, “Okay. My doctor
has indicated that I should be given more time because of my health problems. I was resubmitted
to the hospital—” The court interrupted Dale and sentenced him to jail for an indeterminate period
until he complied with discovery. One week later, by agreement, Dale’s contempt was purged, and
he was released from jail. (We note that in December 2016, Dale’s parents sued Dale and Tammy
but the trial court in that case stayed the proceedings pending resolution of this case. This court
affirmed that court’s decision in Lisk v. Lisk, 2020 IL App (4th) 190364, 143 N.E.3d 1240.)
¶ 14 In February 2017, Tammy filed a petition for indirect civil contempt in which she
alleged that Dale was not making payments on the marital residence. In March 2017, the trial court
ordered Tammy to make reasonable efforts to make the marital residence ready for sale. In May
2017, the court ordered Dale to (1) vacate the marital residence, (2) provide records of all cattle
sales, and (3) disclose the location of any unsold cattle and farm machinery.
¶ 15 In September 2017, Tammy moved for the trial court to find Dale in indirect civil
contempt. At a hearing on that motion in October 2017, the court took evidence that the marital
residence was in great disrepair and filth due to Dale’s neglect and that he had failed to leave the
-4- residence. Tammy testified that when she went to the house in April 2017 to retrieve personal
items, she saw that there was trash everywhere and visible rat feces. When she opened a drawer, a
mouse came out. The refrigerator and toilet were full of mold. She saw moldy food on a desk in
the bedroom. Tammy described the odor as “overwhelming. It was hard to breathe.” The court
also noted that because Dale failed to pay the mortgage as ordered, a foreclosure action had been
filed against the parties. The court ordered Dale to “clean the mess, the food, [and] the feces.”
¶ 16 In December 2017, the trial court found Dale in contempt and ordered that Dale
had until January 8, 2018, to clean the marital residence or else he would go to jail that day. On
January 8, 2018, the court found Dale remained in contempt and ordered Dale into the custody of
the Schuyler County Sheriff but directed that Dale be allowed to leave during the day to clean the
marital residence.
¶ 17 In April 2018, Tammy filed a notice of intent to claim dissipation in which she
claimed that Dale had (1) sold cattle on multiple occasions, (2) failed to pay the mortgage for the
marital residence which resulted in foreclosure, and (3) “disposed” of various farming equipment,
vehicles, and other property.
¶ 18 In May 2018, Dale purged his contempt and was released from jail. Later that
month, Tammy served upon Dale a request to admit facts. That same month, the trial court found
that Dale had failed to respond to the request to admit facts in a timely manner and the items in the
request to admit were deemed admitted. As a result, Dale was deemed to have admitted, among
other things, that the residence was valued at $100,000 and the following documents attached to
the requests were accurate: (1) an appraisal of personal property, (2) exhibits of the sales of cattle
at various locations, and (3) a list of property that had been sold after the filing of the petition for
dissolution of marriage. The court later granted the parties a dissolution of marriage and ordered
-5- the sale of the items contained in the property appraisal.
¶ 19 In August 2018, Tammy filed a third notice of intent to claim dissipation in which
she alleged that Dale had disposed of marital farm personal property that had been appraised by
auctioneers. The notice identified multiple items of personal property and their respective
appraised value.
¶ 20 In January 2019, the trial court ordered that by January 28, 2019, Dale must provide
Tammy’s counsel with a list of equipment and livestock that he claimed he had transferred to his
parents. Dale failed to follow this order, and Tammy filed a petition to enforce the court’s January
2019 order.
¶ 21 In February 2019, Dale failed to appear, and the trial court found him in contempt
of court for violating the court’s January 2019 order. The court ultimately issued a body attachment
for his arrest.
¶ 22 In April 2019, Perrine sought to intervene in the dissolution proceedings by filing
a “Complaint for Interpleader and Declaratory Relief,” citing section 2-409 of the Code of Civil
Procedure (735 ILCS 5/2-409 (West 2018)). Perrine alleged that he incurred costs associated with
caring for cattle that Dale had abandoned on Perrine’s property. Perrine sought a judgment against
Dale in the amount of $34,406, to be paid from a portion of the proceeds awarded to Dale from
the dissolution proceedings.
¶ 23 In October 2019, the trial court held a hearing at which Dale’s counsel was present,
but Dale failed to personally appear. The court relied on evidence from previous hearings and
found that the marital property, including the appraised equipment and livestock, investment
accounts, sold livestock, and awards of attorney fees to Tammy’s attorney for contempt findings,
was worth $614,285.67. The court noted it had received evidence that Dale had moved cattle to
-6- North Carolina, where he now resided. The court also concluded that Dale had dissipated the value
of the marital estate by letting the marital residence fall into disrepair and not making the mortgage
payments.
¶ 24 The trial court divided the marital property in half, awarding Dale the value of the
marital residence, the appraised equipment and livestock that had not been sold, the value of the
cattle Dale sold, and the value of the attorney fees awarded to Tammy’s attorney as the result of
multiple contempt findings. The court awarded Tammy proceeds from an auction, her investment
accounts, and funds held by the Carthage Livestock company. The court awarded her a judgment
of $107,718.67 as an equalizing payment. The court also determined Perrine was owed $20,408
from the estate. The court found the agreement was made between Perrine and Dale without
Tammy’s knowledge. The court ordered that any remaining equipment located at Perrine’s
property would be sold and the proceeds would be divided equally between Perrine and Tammy
until the debt to Perrine was satisfied. Thereafter, the proceeds from the equipment sale would be
awarded to Tammy until the equalizing payment judgment was satisfied.
¶ 25 In November 2019, Dale filed a motion to reconsider the trial court’s October 2019
order, which the court denied.
¶ 26 This appeal followed.
¶ 27 II. ANALYSIS
¶ 28 Dale appeals, arguing the trial court erred by (1) incorrectly calculating the marital
property value because the trial court’s calculation did not include debts and other obligations,
(2) failing to set a date for the purposes of determining the value of marital assets, (3) incorrectly
applying the law regarding dissipation, (4) failing to equitably distribute marital assets,
(5) incorrectly relying upon the requests to admit, and (6) incorrectly granting a judgment in favor
-7- of Perrine. We disagree and affirm.
¶ 29 A. The Court Properly Calculated the Marital Property Value
¶ 30 Dale first argues that the trial court incorrectly calculated the marital property value
by not including all assets and debts such as mortgage and tax liens.
¶ 31 We will reverse a trial court’s factual determination of the value of marital property
only if the trial court’s finding is against the manifest weight of the evidence. In re Marriage of
Hubbs, 363 Ill. App. 3d 696, 699-700, 843 N.E.2d 478, 482-83 (2006). A court’s determination is
against the manifest weight of the evidence if the opposite conclusion is clearly evident. In re
Marriage of Mayes, 2018 IL App (4th) 180149, ¶ 59, 109 N.E.3d 942.
¶ 32 In this case, the trial court’s determination of the value of the marital property was
not against the manifest weight of the evidence. Although Dale now claims that the court should
have included in its calculation information related to (1) the mortgage, (2) a purported debt to
Dale’s parents, (3) tax liens, and (4) certain checking and savings accounts, neither Dale’s lawyer
nor Dale presented any of that information to the court at the evidentiary hearings.
¶ 33 In Dale’s brief, he notes that information regarding the mortgage is found in
Tammy’s request to admit facts filed in May 2018 and in a foreclosure order Dale attached to his
motion to reconsider, which he filed in November 2019. Nothing in the record indicates that either
party presented the information to which Dale refers on appeal to the trial court at the evidentiary
hearings in May 2018 or October 2019. Dale presented this information to the court only as an
attachment to his motion to reconsider the October 2019 order. However, a motion to reconsider
is not an opportunity for a party to raise a new legal theory or to present new factual arguments.
River Plaza Homeowner’s Ass’n v. Healey, 389 Ill. App. 3d 268, 280, 904 N.E.2d 1102, 1111
(2009).
-8- ¶ 34 Similarly, we note that Dale does not claim that he presented evidence of a debt
owed to his parents or of any other checking or savings accounts to the trial court at the evidentiary
hearings. Thus, we reiterate what this court wrote 30 years ago about claims like those Dale raises
here:
“Trial courts should not permit litigants to stand mute, lose a motion, and then
frantically gather evidentiary material to show that the court erred in its ruling. Civil
proceedings already suffer from far too many delays, and the interests of finality
and efficiency require that the trial courts not consider such late-tendered
evidentiary material, no matter what the contents thereof may be.” (Emphasis in
original.) Gardner v. Navistar International Transportation Corp., 213 Ill. App. 3d
242, 248-49, 571 N.E.2d 1107, 1111 (1991).
¶ 35 Dale chose not to appear at the evidentiary hearings and now complains that the
trial court failed to consider evidence never presented at those hearings. He claims this court should
reverse the trial court’s decision based upon evidence not before it at the time it made its
determination. We decline Dale’s request that we do so. The trial court’s decision was not against
the manifest weight of the evidence.
¶ 36 B. Dale’s Forfeited Arguments
¶ 37 For the first time on appeal, Dale claims the court erred by (1) not setting a date for
valuation of the marital assets, (2) incorrectly applying the law regarding dissipation, and
(3) equally dividing the marital estate without properly considering the tax burdens placed on each
party.
¶ 38 As Tammy points out, because Dale failed to raise these arguments in the trial court,
they are forfeited. In re Marriage of Romano, 2012 IL App (2d) 091339, ¶ 85, 968 N.E.2d 115.
-9- We also note that Dale, in his reply brief, did not respond to any of Tammy’s arguments that his
claims were forfeited. We conclude that Dale has forfeited these claims.
¶ 39 C. The Trial Court Properly Relied on the Requests to Admit
¶ 40 Dale next claims that Tammy “misused Supreme Court Rule 216 in effort to
knowingly and willfully attempt to mislead the court and enter false information in an outright
attempt to deny equitable distribution of marital assets.”
¶ 41 However, Dale has not provided an adequate record for this court to determine
what, if any, error occurred in the manner by which the trial court relied upon the requests to admit.
The appellant bears the burden of presenting a sufficient record and deficiencies in that record are
resolved against the appellant. Webster v. Hartman, 309 Ill. App. 3d 459, 460, 722 N.E.2d 266,
268 (1999). Absent a sufficient record on appeal, this court will presume that the order entered by
the trial court was in conformity with the law and had a sufficient factual basis. Id. Because Dale
did not supply any report of proceedings from the May 2018 evidentiary hearing, we presume the
trial court properly utilized the requests to admit, and we conclude that the trial court did not err.
¶ 42 D. The Trial Court’s Judgment in Favor of Perrine Was Proper
¶ 43 Last, Dale claims that because he was not properly served in relation to Perrine’s
complaint, any resulting judgment was improper. Perrine’s “Complaint for Interpleader and
Declaratory Relief” was filed in April 2019. Perrine sent notice of the complaint to Dale, and in
May 2019, personal service was attempted at Dale’s last known (1) address at 16568 Post Road,
Rushville, Illinois and (2) place of employment.
¶ 44 The record shows that at a hearing in January 2019, Dale appeared pro se and one
of the issues that Tammy’s counsel raised was that letters he sent to Dale “keep on coming back.”
Counsel asked if the trial court would ask Dale to provide his current mailing address. Dale stated
- 10 - that his current address was “16568 Post Road, Rushville, Illinois.” (We note that this is the same
Rushville address that was in Perrine’s affidavit of service of process, which documented Perrine’s
attempt to serve Dale in May 2019.) Dale explained that the mail may not have been delivered
because his mailbox had been knocked over.
¶ 45 Dale failed to appear at hearings in February 2019 and May 2019. At the May 2019
hearing, Dale’s counsel did appear and was present when the trial court noted that Perrine had filed
the complaint. The parties agreed to a continuance, and at the end of the hearing, the court asked
if any party had any other issues to bring before the court. Dale’s counsel did not indicate any
surprise in relation to the complaint and instead told the court he had nothing further.
¶ 46 At the October 2019 hearing, Dale failed to appear. The trial court inquired of
Dale’s counsel as to his client’s whereabouts. Counsel replied, “I believe he’s in the state of North
Carolina. My conversations with him leave me with the belief that as long as the warrant remains
in effect, he does not intend to return to this jurisdiction.” Before Perrine presented evidence,
Dale’s counsel moved to continue the hearing because Dale was not present and “he will not be
able to assist me with cross examining the witness.” Perrine and Tammy objected to the
continuance, and the court denied the motion, stating, “[Dale] has chosen to leave the jurisdiction
with a warrant pending. *** He could have been here had he so chosen.”
¶ 47 The record indicates that Dale’s counsel was aware of Perrine’s complaint well
before the October 2019 hearing. Illinois courts have long held that “appearance is as good as a
personal service ***.” Palmer v. Logan, 4 Ill. 56, 60 (1841). Further, “[i]f an individual who is
summoned or subpoenaed *** appears in court and does not object to jurisdiction, that individual
is deemed to have submitted to the jurisdiction of the court.” Pro Sapiens, LLC v. Indeck Power
Equipment Co., 2019 IL App (1st) 182019, ¶ 90, 156 N.E.3d 1046. This case serves as a good
- 11 - example as to why. The notion that Dale was unaware of what was happening while his attorney
appeared in court at two hearings at which Perrine’s claim was discussed is ridiculous. Dale could
have had his attorney object to any problems Dale claimed he had with the service of process, but
he did not.
¶ 48 Finally, although not necessary to our conclusion in this case, it is not lost on this
court that Dale was attempting to evade arrest, had fled the jurisdiction, and was then in North
Carolina. Any problems that Dale had with communicating with any party or the trial court were
entirely of his own making. Additionally, we thank the trial court for its effort in this case and the
clear record that resulted.
¶ 49 III. CONCLUSION
¶ 50 For the reasons stated, we affirm the trial court’s judgment.
¶ 51 Affirmed.
¶ 52 JUSTICE TURNER, dissenting:
¶ 53 I respectfully dissent. In my view, this court should exercise our discretion and
allow respondent’s motion for leave to file a second reply brief. Respondent has already
electronically submitted his proposed second reply brief, and I see no valid reason not to allow
him to file it—even if it is doubtful the second reply brief would alter the ultimate outcome of this
matter.
¶ 54 I recognize respondent’s choice to proceed pro se does not excuse him from
complying with this court’s rules and those of the supreme court. Nonetheless, I would grant any
attorney appearing before this court the modest relief respondent has requested. Thus, because I
do not believe we should decide this case without allowing respondent to file his second reply brief
for our review, I dissent.
- 12 -