In re Marriage of Schinelli

Opinion

Nos. 2—09—0591 & 2—09—1160 cons. Opinion filed January 12, 2011

______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

In re MARRIAGE OF ) Appeal from the Circuit Court CECILY B. SCHINELLI, ) of Du Page County. ) Petitioner-Appellee, ) ) No. 05—D—915 and ) ) BRUCE G. SCHINELLI, ) Honorable ) Linda E. Davenport, Respondent-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justices Zenoff and Burke concurred in the judgment and opinion.

OPINION

This is the second appeal before this court regarding the dissolution of the parties’ marriage.

On March 16, 2007, the circuit court of Du Page County entered an order dissolving the 25-year

marriage of the parties, Bruce and Cecily Schinelli. The trial court divided the marital estate evenly,

factoring in against Bruce’s share a charge for dissipation in the amount of $26,273. The trial court

ordered permanent maintenance to Cecily in the amount of $6,692 per month. Additionally, the trial

court ordered additional maintenance to Cecily in the amount of one-third of Bruce’s annual gross

income between $200,000 and $650,000 (supplemental maintenance). Bruce appealed from that

order. In the first appeal, Bruce argued that the trial court erred in (1) setting the amount of Nos. 2—09—0591 & 2—09—1160 cons.

permanent maintenance; (2) ordering supplemental maintenance; and (3) finding that he dissipated

$26,273 in marital assets. This court affirmed the trial court’s order of permanent maintenance but

reversed the trial court’s order capping the supplemental maintenance range at $650,000 and instead

capped it at $250,000. As to dissipation, this court affirmed a finding of dissipation of $2,625; we

reversed a finding of $5,729; and we remanded for a new hearing to determine whether Bruce

dissipated the remaining $17,919 withdrawn from the parties’ joint tax-exempt money-market

account. In re Marriage of Schinelli, No. 2—07—0617 (2008) (unpublished order under Supreme

Court Rule 23) (Schinelli I).

On remand, the trial court entered three orders from which Bruce now appeals. Bruce

contends that the trial court erred in (1) awarding Cecily $15,000 in attorney fees for defending the

first appeal; (2) finding that he had dissipated $17,919 of marital assets; and (3) entering a “Qualified

Domestic Relations Order” (QDRO) that improperly modified the judgment of the dissolution of

marriage. For the following reasons, we reverse and remand for additional proceedings.

The record in this case is substantial. A great deal of evidence was presented in the trial court.

Therefore, only those facts necessary to an understanding of this court’s decision will be set forth

below, and the relevant facts will be discussed in the analysis of the issues to which they are pertinent.

Award of Attorney Fees

On August 21, 2008, Cecily filed a petition for contribution of fees and costs incurred in the

previous appeal. Cecily sought reimbursement for attorney fees of $30,570.07 and costs of $272.81.

The petition was supported by an affidavit from Cecily’s attorney regarding his firm’s fees. The

petition was not supported by any affidavit from Cecily. On December 11, 2008, following a hearing,

the trial court ordered Bruce to pay $15,000 of Cecily’s attorney fees. The trial court explained that

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if Bruce had appealed only the issue of supplemental maintenance, he would have prevailed and no

contribution to fees would be warranted. However, since Bruce had also appealed the award of

permanent maintenance and dissipation, the trial court held that contribution was appropriate.

On appeal, Bruce argues that the trial court’s decision to award Cecily $15,000 in attorney

fees was against the manifest weight of the evidence. Bruce contends that Cecily failed to show that

she had an inability to pay her own fees. Bruce further argues that the trial court erred in determining

that Cecily was entitled to a portion of her fees because she substantially prevailed on the first appeal.

At the outset, we consider Cecily’s argument that we do not have jurisdiction over Bruce’s

first contention. Cecily notes that when the trial court entered its order awarding her attorney fees,

the trial court indicated that its order was final. Cecily contends that, because the trial court’s order

was final, Bruce should have filed his appeal within 30 days rather than waiting for the trial court to

resolve the other postjudgment petitions that had been filed in the case. As Bruce did not, Cecily

argues that we may not consider the propriety of the award of attorney fees. In so arguing, Cecily

acknowledges that her contention is inconsistent with this court’s decisions in In re Marriage of

Alyassir, 335 Ill. App. 3d 998 (2003), and In re Marriage of Duggan, 376 Ill. App. 3d 725 (2007).

However, she urges this court to overrule Alyassir and to instead adopt the analysis set forth in the

special concurrence in Duggan.

In In re Marriage of Gutman, 232 Ill. 2d 145, 151 (2008), our supreme court recently

explained:

“ ‘An order is final and appealable if it terminates the litigation between the parties on

the merits or disposes of the rights of the parties, either on the entire controversy or a

separate part thereof.’ R.W. Dunteman Co. v. C/G Enterprises, Inc., 181 Ill. 2d 153, 159

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(1998). Absent a Rule 304(a) finding, a final order disposing of fewer than all of the claims

is not an appealable order and does not become appealable until all of the claims have been

resolved. Marsh v. Evangelical Covenant Church of Hinsdale, 138 Ill. 2d 458, 464 (1990).

This court has defined a ‘claim’ as ‘any right, liability or matter raised in an action.’ Marsh,

138 Ill. 2d at 465. The rule was meant ‘to discourage piecemeal appeals in the absence of a

just reason and to remove the uncertainty which existed when a final judgment was entered

on fewer than all of the matters in controversy.’ Marsh, 138 Ill. 2d at 465.”

Here, the trial court’s order awarding Cecily attorney fees did not include a finding pursuant

to Supreme Court Rule 304(a) (eff. Jan 1, 2006). Thus, pursuant to Gutman, the trial court’s order

was not appealable until all of the other claims had been resolved. As Bruce properly filed his notice

of appeal after the trial court had resolved all of the claims pending between the parties, this court

has jurisdiction over the issue of the award of attorney fees. See Gutman, 232 Ill. 2d at 151. In so

ruling, we note that our supreme court’s decision is consistent with our decisions in Alyassir and

Duggan. We therefore decline Cecily’s invitation to revisit either of those cases.

Turning to the merits of Bruce’s first contention, we note that attorney fees are generally the

responsibility of the party who incurred the fees. In re Marriage of Cantrell, 314 Ill. App. 3d 623,

630 (2000). Section 508(a) of the Illinois Marriage and Dissolution of Marriage Act (the Dissolution

Act) (750 ILCS 5/508(a) (West 2008)) provides in part:

“The court from time to time, after due notice and hearing, and after considering the financial

resources of the parties, may order any party to pay a reasonable amount for his own or the

other party’s costs and attorney’s fees.” 750 ILCS 5/508(a) (West 2008).

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The propriety of an award of attorney fees is dependent upon a showing by the party seeking them

of an inability to pay and the ability of the other spouse to do so. Cantrell, 314 Ill. App. 3d at 630.

Although awarding fees rests largely in the trial court’s discretion, such an award will be reversed

when the financial circumstances of both parties are substantially similar and the party seeking fees

has not shown an inability to pay. In re Marriage of Roth, 99 Ill. App. 3d 679, 686 (1981).

Here, the trial court abused its discretion in ordering Bruce to pay $15,000 of Cecily’s

attorney fees. The record reveals that Bruce earned substantially more than Cecily. He earned

approximately $200,000 a year while Cecily earned approximately $30,000 a year. However, in

dissolving the parties’ marriage, the trial court attempted to rectify this difference, ordering that

Bruce pay Cecily permanent monthly maintenance of $6,692 ($80,304 a year). Thus, considering the

combination of Cecily’s annual salary and her maintenance award ($30,000 + $80,000 = $110,000)

in conjunction with Bruce’s salary and his maintenance obligations ($200,000 - $80,000 = $120,000),

the parties’ financial circumstances were substantially similar. Based on this fact, and because Cecily

did not demonstrate that she was unable to pay her attorney fees, the trial court erred in ordering

Bruce to pay those fees. See id.

In so ruling, we find Cecily’s reliance on In re Marriage of Minear, 181 Ill. 2d 552, 561

(1998), to be misplaced. In that case, the wife had monthly net income of $1,086 and also received

monthly maintenance of $500 (for a total of $1,586 a month). The husband’s monthly net income,

after making the maintenance payment, was $2,563. At a hearing on her motion to have the husband

pay her attorney fees, the wife testified that she could not pay her legal fees and that she could not

afford to continue paying $675 in monthly mortgage payments. The trial court subsequently awarded

the wife her attorney fees. In this case, Cecily’s maintenance award was substantially higher than the

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wife’s in Minear. Moreover, unlike the wife in Minear, Cecily did not provide evidence that she

could not afford to pay her own legal fees.

Further, Cecily acknowledges that her trial counsel pointed out at the hearing that

“substantially prevailed” was not a question before the court. Indeed, section 508(a) of the

Dissolution Act makes no reference to attorney fees being awarded to the party who substantially

prevailed in previous litigation. See 750 ILCS 5/508(a) (West 2008).

Dissipation

At the trial on March 1, 2007, Cecily’s attorney questioned Bruce about withdrawals he had

made from the parties’ joint USAA tax-exempt money-market account. Bruce testified that he

routinely transferred funds from the account to their joint checking account to pay marital bills. As

to certain withdrawals, he testified that he did not know why he withdrew the money and did not have

any documents to refresh his recollection. The trial court did not allow Bruce’s attorney to question

Bruce regarding those withdrawals. At the close of the trial, the trial court found that Bruce had

dissipated assets. On appeal, this court reversed a finding of dissipation as to $17,919 and remanded

for a new hearing so that Bruce could have the opportunity to present evidence that the expenditures

made from the joint money-market account between February 2006 and February 2007 were for

marital purposes. We also stated:

“In so ruling, we note that although Bruce was not able to testify as to the

withdrawals during his case-in-chief, there was evidence to rebut a determination that Bruce

dissipated any funds. The evidence showed that while the dissolution proceedings were

pending and the parties were living apart, Bruce paid household expenses for the marital

residence, his own household expenses, and all [of the parties’ son] Ian’s personal and

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educated-related [sic] expenses. Bruce’s [comprehensive financial statement] showed that

his monthly income after deductions was $8,652 and that his total monthly expenses were

$10,163. Accordingly, Bruce was operating at a monthly deficit of $1,511. Accordingly,

withdrawing funds from the joint money market fund in the amount of $17,919 ($26,273

minus the funds spent on [Bruce’s girlfriend] Gallo and the funds to pay off the joint credit

card) over the course of twelve months seems reasonable. A $1,511 monthly deficit over a

twelve-month period results in a total deficit of $18,132, which is approximately the amount

withdrawn by Bruce. Bruce testified that the parties’ bills were traditionally paid out of the

parties’ joint checking account. He further testified that he routinely transferred funds from

the joint money market account to the checking account when the parties’ expenses exceeded

the balance in the checking account.” Schinelli I, slip op. at 21-22.

On April 27, 2009, on remand, the trial court conducted a hearing. Bruce testified that he

had withdrawn a total of $17,919 from the parties’ joint USAA tax-exempt money-market account

and then deposited that money in the parties’ joint USAA checking account. These withdrawals and

deposits were made on nine occasions. Bruce presented documents that reflected the first eight of

the withdrawals and subsequent deposits. He did not have any document that reflected the last

withdrawal, of $2,000 on February 9, 2007. However, he testified that he deposited that money into

the joint checking account to prevent that account, which had a balance of $799.72 on February 13,

2007, from being overdrawn. (The judgment of dissolution found that the checking account had a

value of $2,270 on March 1, 2007.) Bruce also testified that he deposited over $6,000 from one of

his personal accounts into the joint checking account.

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As to withdrawals from the checking account, Bruce introduced into evidence the checking

account statements. These statements detailed every deposit and every ATM, check, transfer, or

debit-card withdrawal after the deposits from the money-market account were made. Bruce testified

regarding the withdrawals. Bruce testified that from January 2006 through March 2007, he was

primarily responsible for paying household expenses for the former marital residence in Naperville.

The expenses were paid using electronic transfers from either his personal USAA checking account

or the joint USAA checking account. He paid Cecily’s housing expenses with the joint USAA

checking account. Between January 2006 and March 2007, in addition to Cecily’s household

expenses, he paid the expenses of establishing his own residence, his general living expenses (gas,

food, and clothes), and his son Ian’s personal and college expenses. In 2006 and early 2007, Ian’s

college expenses, for Belmont University in Tennessee, cost about $2,700 a month.

During the time frame at issue, Bruce’s monthly gross earnings were $16,717. His monthly

expenses for both household’s and Ian’s schooling were over $10,000. The parties had a joint USAA

credit card which both of them used in 2006. He paid the credit card bill in full each month through

one of the two accounts. He and Cecily each had a debit card for the joint USAA checking account,

which he used occasionally in 2006 through early 2007. Most of the debit transactions were hers.

Bruce testified that this was apparent because most of the transactions occurred close to where Cecily

lived in Naperville. He lived in Wheeling. Bruce testified that he transferred funds occasionally from

the joint USAA tax-exempt money-market account into the joint USAA checking account to cover

living expenses over and above their incomes.

Cecily testified that from January 2006 through March 2007 she lived at the former marital

residence. She worked at Oak Consulting in Lisle and her pay was directly deposited twice a month

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into the joint USAA checking account. Her monthly net income from her employment was $1,048.

Her mortgage, utility, food, and other household expenses totaled $3,330 and were paid by Bruce.

He paid the real estate taxes from the joint checking account. She paid the monthly cable and cell

phone bills from the joint checking account. Her personal expenses of $711 per month and clothing

expenses were charged to the parties’ joint USAA credit card. The joint USAA credit card bill was

paid from their joint checking account. Her monthly miscellaneous expenses totaled $804 and were

also paid from the joint checking account.

Cecily acknowledged that she traveled to Florida in January 2006, Tennessee in November

2006, and Las Vegas in December 2006. None of the trips were work-related. She used the joint

credit card while she was on those trips. She also acknowledged that she had used the joint checking

account to make payments to her attorneys. (The record reveals that Cecily used the joint credit card

to pay her attorneys $5,079.51 between January 2006 and February 2007.) She further

acknowledged that she made ATM withdrawals from the joint checking account. (The record

indicates that she made withdrawals of $1,409.95.)

At the close of the hearing, the trial court ruled that Bruce had failed to show by clear and

convincing evidence that he had not dissipated marital assets from the joint checking account. The

trial court explained:

“The Appellate Court did specifically say, Counsel, that you were supposed to prove

by clear and convincing evidence how the money went. I don’t have any canceled checks

showing what he paid, I don’t have anything. I looked—I can clearly see that he made—he

put money into the account. That’s clear. I understand how much he was putting into the

account.

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But he was retaining the rest of the money that he earned. You offered not one piece

of evidence today that showed what bills he paid with the remainder of his money: No lease,

no rent, no expenses, no car, no gas, no dental bills, nothing that you offered into evidence

today.

I do think that clearly he did transfer money into the account. I saw that. When his

income went up to the $200,000, it didn’t appear that his deposits into this account went up.

I have to look at the amount of money that he was retaining over and above what he

was putting in before, he kept it at the same amount, and then he didn’t account for how he

spent the rest of the money.

I don’t think you met the burden that the Court required of you to meet. I thought

it was really clear, and I expected to get that evidence in today, and I didn’t get one piece of

it.

***

The remaining seventeen nine one nine, I still find it to be dissipation, I still find that

you failed to meet your burden by clear and convincing evidence to show how the funds were

spent, not that they weren’t deposited, I understand they were deposited.”

In Schinelli I, this court explained:

“Dissipation has been defined as the use of marital property for the sole benefit of one of the

spouses for a purpose unrelated to the marriage at a time when the marriage is undergoing

an irreconcilable breakdown. In re Marriage of Vancura, 356 Ill. App. 3d 200, 203 (2005).

The determination of whether dissipation occurred in a given case is reviewed using the

manifest weight of the evidence standard of review. Vancura, 356 Ill. App. 3d at 204. The

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general principle is that the person charged with the dissipation is under an obligation to

establish by clear and convincing evidence how the funds were spent. Vancura, 356 Ill. App.

3d at 204. General statements that funds were spent on marital expenses or to pay bills are

inadequate to avoid a finding of dissipation. In re Marriage of Petrovich, 154 Ill. App. 3d

881, 886 (1987).” Schinelli I, slip op. at 16.

We believe that the trial court erred in finding that Bruce had dissipated assets from the joint

checking account. In Schinelli I, we remanded for the trial court to conduct a new hearing on

whether Bruce had dissipated $17,919 from the joint checking account and to allow him to present

evidence on that issue. Although the trial court conducted a hearing and allowed Bruce to present

evidence of how funds in the joint checking account had been spent, the trial court’s ruling was

unrelated to the evidence presented. Instead, the trial court essentially found that Bruce should have

been paying the family’s bills with one of his individual accounts rather than the joint account. That

was improper. See In re Marriage of Davis, 215 Ill. App. 3d 763, 778 (1991) (although husband had

other funds available to him, he was not required to use those funds, before using marital funds, for

family purposes).

As we noted in Schinelli I, when Bruce was allegedly dissipating marital assets, he was paying

household expenses for the marital residence, his own household expenses, and all of Ian’s personal

and education-related expenses. These substantial expenses caused Bruce to incur a monthly deficit

of $1,511. At the hearing on remand, Bruce testified that the parties’ bills were traditionally paid out

of the parties’ joint checking account. At that same hearing, the parties’ statements from the joint

checking account were introduced into evidence. Bruce testified in detail regarding the transactions

and whether he or Cecily had made each transaction and why it had been made. Bruce further

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testified that he deposited over $6,000 from one of his individual accounts into the joint checking

account. Based on the evidence adduced at the original trial in conjunction with the evidence

presented at the hearing on remand, the record shows that Bruce established by clear and convincing

evidence that he did not dissipate marital assets. The trial court’s finding to the contrary was

therefore against the manifest weight of the evidence.

In so ruling, we reject Cecily’s argument that Bruce presented only vague and general

testimony as to how the funds were spent. We believe that Bruce’s testimony and other evidence

sufficiently set forth how the funds from the parties’ joint checking account were spent. We also

reject Cecily’s argument that Bruce essentially admitted that he dissipated $816.50 that he withdrew

by ATM and $2,119.99 that he paid to his attorneys. The record reveals that during the time frame

at issue, Cecily paid her attorneys fees of $5,079.51. She made ATM withdrawals of $1,409.95. She

also used the joint checking account to pay expenses incurred on personal trips to Florida, Tennessee,

and Las Vegas. As such, Cecily was making the same types of withdrawals from the joint checking

account that she criticizes Bruce for making. Based on these circumstances, we believe that it would

be inequitable to find that Bruce dissipated assets and to overlook Cecily’s similar conduct.

Qualified Domestic Relations Order

In its judgment of dissolution on March 16, 2007, the trial court evenly divided the parties’

retirement assets. The trial court awarded each party his or her own retirement assets. The one

exception was Bruce’s Wachovia 401(k) account. The trial court divided that asset so that the

overall division of the marital retirement assets would be equal. Specifically, the trial court’s order

provided:

Asset Equity Bruce Cecily

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TTX Thrift Plan $5,418 $5,418 0

Wachovia 401(k) $309,423 $156,901 $152,522

Wachovia Deferred Comp. $62,665 $62,665 0

Schwab IRA $49,128 $49,128 0

Schwab IRA $27,732 0 $27,732

Schwab IRA $27,118 0 $27,118

Oak Consultants 401(k) $66,670 0 $66,670

Total $548,224 $274,112 $274,112

On November 18, 2008, Cecily filed a motion for a QDRO based on the dissolution order.

She requested that $152,522 be transferred from the Wachovia 401(k) account to her. Bruce filed

a written objection, stating that the value of the plan had dropped drastically due to market

conditions. He therefore argued that a transfer to Cecily of the amount originally ordered was no

longer appropriate.

On April 27, 2009, the trial court conducted a hearing on Cecily’s motion. The evidence

established that as of March 31, 2009, the Wachovia 401(k) account had a value of $179,830. In

response to comments by the parties as to its intent in dividing the retirement accounts, the trial court

“I added them all up, divided them by two. She kept hers, he kept his, except for the

401K for him, he would have to roll over money into her. So that, when they all ended up

at the bottom, they had the same amount.

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The Wachovia 401K was the vehicle designated to be the one that money would come

out of his so that, when it went into hers, they would each have the same total for all of their

accounts.”

Bruce’s attorney argued that Cecily’s QDRO should be for half of what the Wachovia 401(k) was

currently worth. The trial court questioned whether it could reevaluate one of the parties’ retirement

accounts without reevaluating all of the other retirement accounts that had been divided. Cecily’s

attorney argued that the dissolution order provided that she was to receive $152,522 from the

Wachovia 401(k); thus, that is the amount she should receive. At the close of the hearing, the trial

court ordered that $152,522 (84.8% of the Wachovia 401(k) account’s value) be awarded to Cecily.

On appeal, Bruce argues that the trial court erred in entering a QDRO that improperly

modified the dissolution order. Bruce contends that the trial court’s dissolution order intended that

the parties’ retirement assets be divided equally between them. However, the effect of the QDRO

was to award Cecily an additional $125,000. Bruce insists that the QDRO was improper because it

caused him to bear all of the loss that the Wachovia 401(k) account suffered between March 2007

and March 2009. Bruce maintains that, in entering the QDRO, the trial court should have divided

the Wachovia 401(k) account loss between them in a way that was consistent with its judgment of

dissolution.

Judgments may be construed like other written instruments. In re Marriage of Breslow, 306

Ill. App. 3d 41, 57 (1999). For instance, although an unambiguous judgment must be enforced as

drafted, an ambiguous judgment may be read in conjunction with the entire record and construed in

accordance therewith. Id.

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Here, the problem with the dissolution order is not that it is ambiguous; the problem is that

it is unenforceable. The dissolution order unambiguously provided that Bruce was to receive

$156,901 from the Wachovia 401(k) account and that Cecily was to receive $152,522 from the

Wachovia 401(k) account. When the trial court entered the QDRO on April 27, 2009, the dissolution

order was impossible to comply with because the Wachovia 401(k) account was worth only

$179,830. We therefore believe that the trial court’s resolution of this issue—to have Bruce bear all

the loss that the Wachovia 401(k) account incurred—is both unfair and contrary to the judgment of

dissolution. Accordingly, the trial court’s decision must be reversed.

In arguing that she should nonetheless receive the full $152,522, despite the diminution in the

Wachovia 401(k) account, Cecily relies on In re Marriage of Carrier, 332 Ill. App. 3d 654 (2002).

We find Cecily’s reliance on that case to be misplaced. In Carrier, the parties had a marital

settlement agreement that provided that the wife would receive $725,000 from the husband’s

individual retirement account (IRA) via a QDRO. Prior to the entry of the dissolution judgment, the

trial court conducted a proveup of the settlement agreement. At the proveup, the husband testified

that he understood that the wife was to receive $725,000 from his IRA regardless of whether the

market value of the account rose or fell following the entry of the dissolution judgment. On June 14,

2000, the trial court entered a judgment of dissolution that was consistent with the parties’ marital

settlement agreement. On November 27, 2000, the wife filed a petition for a rule to show cause,

alleging that the husband had failed to transfer to her the $725,000. On February 21, 2001, the trial

court conducted a hearing on the wife’s petition. Several correspondences between the parties were

introduced that indicated that, until September 28, 2000, the wife had taken on the responsibility to

effectuate the transfer from the IRA. The husband testified that the account was currently worth

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$120,000 less than it was when the parties’ marriage was dissolved. The husband also testified that

he believed the parties were to divide the IRA on a percentage ratio. Thus, because the value of the

account had gone down, he asserted that the value of the wife’s share had also decreased. At the

close of the hearing, the trial court found that for the period between September 1, 2000, and

September 28, 2000, each of the parties should assume a proportion of the loss in accordance with

his or her ratio of interest. Id. at 655-57. On appeal, this court vacated the trial court’s decision.

Id. at 662. We found that the marital settlement agreement unambiguously stated that the wife was

to receive $725,000. Because the marital settlement agreement did not indicate that the wife’s award

from the IRA was to be based on a percentage or to be affected by subsequent fluctuations in market

value, we held that the trial court erred in ruling that the wife’s share of the IRA was affected by the

change in the market value of the account between the dissolution judgment and the date of transfer.

Id. at 658. In a dissent, one justice wrote the trial court’s decision allocating the market losses

between the parties should be affirmed. Id. at 662 (O’Malley, J., dissenting). The dissent explained

that because the wife was responsible for the transfer of the funds during a certain time frame, “it

would be patently unfair to saddle [the husband] with the loss incurred during that period of time.”

Id. at 663 (O’Malley, J., dissenting).

Here, unlike in Carrier, the parties did not have a marital settlement agreement that divided

their marital assets. As such, unlike the husband in Carrier, Bruce never agreed that Cecily would

receive a fixed amount from the retirement account at issue. Rather, the parties’ retirement assets

were divided by the trial court. In the absence of any marital settlement agreement providing that

Cecily would receive a set amount, we believe that it would be patently unfair to saddle one of the

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parties with all of the losses incurred in the Wachovia 401(k) account. Accordingly, as stated above,

we believe that the trial court erred in allocating all of that loss to Bruce.

Cecily insists that the trial court’s decision may nonetheless be affirmed because Bruce failed

to introduce evidence as to whether the value of the other retirement assets had fluctuated. Relying

on In re Marriage of Brenner, 235 Ill. App. 3d 840, 848 (1992), Cecily contends that the trial court

was obligated to reevaluate all of the retirement assets in order to ensure that they were properly

divided. Because Bruce did not present the value of the other assets, Cecily argues that he has

forfeited his right to any relief.

Generally, if a property division is reversed based on an improper valuation, then the proper

remedy is to reverse the property settlement in the judgment and remand the case for reevaluation and

redivision of all the marital assets. In re Marriage of Rubinstein, 145 Ill. App. 3d 31, 38 (1986). The

parties to a dissolution must provide the trial court with sufficient evidence of property value.

Brenner, 235 Ill. App. 3d at 848. A reviewing court will not reverse and remand where the parties

had adequate opportunity to present evidence but failed to do so. Id.

Here, we do not believe that the trial court had to reevaluate any of the parties’ assets other

than the Wachovia 401(k) account. In Rubinstein, at issue was the trial court’s improper

determination of the value of the husband’s medical practice. Rubinstein, 145 Ill. App. 3d at 38.

That determination necessarily impacted the division of the parties’ other marital assets as well as the

amount of support that the husband should pay the wife. In this case, neither the trial court nor the

parties indicated that the division of the Wachovia 401(k) account had any impact on the division of

the parties’ marital estate other than how the parties’ retirement assets were distributed. Indeed,

Cecily does not fault Bruce because he failed to present evidence of all of the parties’ marital assets;

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she faults him only because he did not present evidence of the current value of the parties’ retirement

assets that had previously been divided.

Based upon how the retirement assets were divided, however, we do not believe that the trial

court was obligated to reassess those assets. In its order of dissolution on March 16, 2007, the trial

court awarded Cecily a 100% interest in three accounts that had a total value of $121,520. The trial

court awarded Bruce a 100% interest in three accounts that had a total value of $117,211. Thus,

excluding the Wachovia 401(k) account, the trial court awarded Cecily 50.9% of the retirement

accounts and Bruce 49.1% of those accounts. As such, the trial court essentially awarded each party

an equal amount of the retirement accounts.

As the parties were awarded these accounts upon the entry of the judgment of dissolution,

they were then able to manage the accounts as conservatively or aggressively as they wanted. Thus,

the parties were given the ability to minimize their accounts’ losses during the stock market decline

that occurred in 2008. This was markedly different from the situation with the Wachovia 401(k)

account. Because that account was subject to a QDRO, neither party could exercise any discretion

over that account until the first appeal was resolved.

We believe that if the trial court were obligated to reconsider the value of the other retirement

accounts before it addressed how the Wachovia 401(k) losses should be allocated, it would lead to

a potentially unfair result. If the other accounts were considered, the party who managed his or her

accounts better during the market decline would have to subsidize the party who incurred more losses

with his or her investment strategy in order to ensure that the accounts continued to be divided

equally. As this would be improper, contrary to Cecily’s assertion, Bruce was under no obligation

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to provide the trial court with evidence as to whether the retirement assets previously distributed had

fluctuated in value.

Finally, we note that in dividing the Wachovia 401(k) account, the trial court’s March 16,

2007, dissolution order had the effect of awarding 50.7% of the Wachovia 401(k) account to Bruce

and 49.3% of the account to Cecily. As the trial court’s QDRO of April 27, 2009, was not consistent

with the order of dissolution, we reverse the QDRO. On remand, the trial court shall enter a QDRO

consistent with its dissolution order, awarding 50.7% of the Wachovia 401(k) account to Bruce and

49.3% of the account to Cecily. The value of the Wachovia 401(k) account shall be based on what

it would currently be worth had it not been divided on April 27, 2009.

Conclusion

For the foregoing reasons, the judgment of the circuit court of Du Page County is reversed

and the cause is remanded for additional proceedings consistent with this decision.

Reversed and remanded with directions.

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