In re Marriage of Tarbouche
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Opinion
2023 IL App (1st) 211145-U Nos. 1-21-1145, 1-22-0176, 1-22-1711, 1-23-0802 (Cons.)
Second Division December 29, 2023
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ____________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ____________________________________________________________________________
IN RE MARRIAGE OF: ) Appeal from the ) Circuit Court of Cook County NAWARA TARBOUCHE, ) ) Petitioner-Appellee, ) ) and ) No. 2015 D 230385 ) FAWAZ (FRANK) ENNAB, ) Honorable ) Regina Scannicchio, Respondent-Appellant. ) Judge, presiding. ____________________________________________________________________________
JUSTICE COBBS delivered the judgment of the court. Justices McBride and Ellis concurred in the judgment.
ORDER
¶1 Held: Trial court’s dissolution judgment pursuant to the Illinois Marriage and Dissolution of Marriage Act is affirmed where the court properly: (1) ordered respondent- appellant husband to designate petitioner-appellee wife as a beneficiary on a life insurance policy; (2) ordered husband to reimburse wife for health insurance expenditures during dissolution proceedings; (3) determined that $145,000 gift did not constitute income for purposes of maintenance calculations; (4) considered wife’s employment history for purposes of income computation for maintenance calculations; and (5) ordered husband to pay retroactive temporary maintenance to the date of the petition for dissolution's filing. The trial court’s judgment is reversed Nos. 1-21-1145, 1-22-0176, 1-22-1711, 1-23-0802 (Cons.)
where the court failed to follow statutory notice requirements regarding dissipation of marital assets. The trial court’s judgment is reversed and remanded where the court did not order retroactive maintenance to be paid out of the marital estate.
¶2 This case comes before us following almost six years of marriage dissolution proceedings
in the circuit court of Cook County pursuant to the Illinois Marriage and Dissolution of Marriage
Act (Act), 750 ILCS 5/101, et seq. (West 2014). Following years of pretrial litigation and motion
practice, a bench trial was held on petitioner-appellee, Nawara Tarbouche’s petition for dissolution
of marriage against respondent-appellant, Fawaz “Frank” Ennab, which was granted on December
7, 2020. Therein, the trial court held that: (a) Nawara was entitled to both prospective and
retroactive maintenance, the latter to begin from the date of her petition’s filing; (b) Frank was to
reimburse Nawara for out-of-pocket health insurance premiums she incurred after removing her
from his insurance plan during dissolution proceedings; (c) Frank had dissipated marital assets;
and (d) Frank was to maintain a life insurance policy with Nawara as his beneficiary.
¶3 Frank timely filed a motion to reconsider, which was granted in part and denied in part on
August 18, 2021. Specifically, the court modified Frank’s maintenance obligations after imputing
an income of $25,000 to Nawara, but maintained its original ruling that Frank was obligated to
pay retroactive maintenance to the date of the petition’s filing. The court further affirmed its
previous holding that Frank had dissipated assets.
¶4 Frank now appeals that order, arguing multiple issues on appeal, namely that: (1) the trial
court erred in its calculation of Frank’s maintenance obligations by improperly calculating
Nawara’s income; (2) the court improperly imposed a retroactive maintenance award beginning
from the date of the petition’s filing; (3) the court erred in requiring Frank was to maintain a life
insurance policy with Nawara as a beneficiary; (4) the court’s dissipation finding was improper
where Nawara’s notice of dissipation of assets was untimely; (5) the court erred in determining
-2- Nos. 1-21-1145, 1-22-0176, 1-22-1711, 1-23-0802 (Cons.)
that Frank had to reimburse Nawara for her health insurance premiums; and (6) the court
incorrectly denied his motion to reconsider. For the reasons that follow, we affirm in part, reverse
in part, and remand for further proceedings.
¶5 I. BACKGROUND
¶6 We derive our factual background from the underlying petition, the parties’ extensive
motion practice, the testimony derived at trial, the dissolution judgment, the trial court’s order
following Frank’s motion to reconsider, and the multiple consolidated appeals filed by Frank.
¶7 A. The Underlying Facts
¶8 At the time of trial, Nawara was forty-eight years old and a resident of Evanston, Illinois,
and she held citizenship in the United States and Syria. She was a licensed registered pharmacist
in Illinois, but was unemployed for most of the dissolution proceedings. Frank was fifty-nine years
old and resided in Chicago, Illinois, and held citizenship in both the United States and Jordan.
Frank had multiple master’s degrees and was employed by Oracle Corporation. Nawara and Frank
were married on December 28, 1993, in Las Vegas, Nevada, and later moved to Illinois in or
around 1998. The marriage resulted in two now adult children, Dina and Nadia.
¶9 B. Procedural history
¶ 10 1. Nawara’s Petition
¶ 11 On September 18, 2015, Nawara filed a petition for dissolution of marriage (the petition)
based on “irreconcilable differences.” The petition alleged that the parties had lived separately for
over two years, and that Frank had exhibited “repeated and unprovoked mental cruelty towards”
Nawara. The petition sought the division of marital and non-marital property, joint contribution of
their children’s post-secondary education and related expenses, and maintenance paid by Frank to
-3- Nos. 1-21-1145, 1-22-0176, 1-22-1711, 1-23-0802 (Cons.)
Nawara. On January 6, 2016, Frank filed a pro se appearance, and later retained an attorney who
filed an appearance on February 11, 2016.1
¶ 12 During the course of the litigation, the parties submitted various financial affidavits and
documentation concerning their claimed assets. Of relevance here, per Nawara’s 2019 financial
affidavit, the following real properties were claimed as marital assets: (1) 918 Hinman Avenue,
Unit A, Evanston, Illinois (Unit A); (2) 175 East Delaware, Chicago, Illinois (the Delaware
property); and (3) 2500 N. Lakeview, Chicago, Illinois (the Lakeview property), all of which were
encumbered by mortgages.2 The record also showed evidence of a property owned by Frank as a
“single person,” at 918 Hinman Avenue, Unit B, Evanston, Illinois (Unit B). The parties also
submitted evidence of various bank accounts, federal income tax returns and W-2’s, Frank’s health
insurance policy and retirement accounts at Oracle, and Nawara’s efforts to find employment
following the closure of her employer’s business in or around December 2016.
¶ 13 2. Motion Practice and Relevant Orders
¶ 14 The parties engaged in many years of motion practice, ranging from issues concerning the
parties’ alleged possession of assets in Syria and Jordan; Nawara’s potential holding of a Swiss
1 According to the trial court in its dissolution judgment, and as confirmed by our own investigation, Frank never filed a responsive pleading to the petition, despite being ordered to do so in February 2016.
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2023 IL App (1st) 211145-U Nos. 1-21-1145, 1-22-0176, 1-22-1711, 1-23-0802 (Cons.)
Second Division December 29, 2023
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ____________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ____________________________________________________________________________
IN RE MARRIAGE OF: ) Appeal from the ) Circuit Court of Cook County NAWARA TARBOUCHE, ) ) Petitioner-Appellee, ) ) and ) No. 2015 D 230385 ) FAWAZ (FRANK) ENNAB, ) Honorable ) Regina Scannicchio, Respondent-Appellant. ) Judge, presiding. ____________________________________________________________________________
JUSTICE COBBS delivered the judgment of the court. Justices McBride and Ellis concurred in the judgment.
ORDER
¶1 Held: Trial court’s dissolution judgment pursuant to the Illinois Marriage and Dissolution of Marriage Act is affirmed where the court properly: (1) ordered respondent- appellant husband to designate petitioner-appellee wife as a beneficiary on a life insurance policy; (2) ordered husband to reimburse wife for health insurance expenditures during dissolution proceedings; (3) determined that $145,000 gift did not constitute income for purposes of maintenance calculations; (4) considered wife’s employment history for purposes of income computation for maintenance calculations; and (5) ordered husband to pay retroactive temporary maintenance to the date of the petition for dissolution's filing. The trial court’s judgment is reversed Nos. 1-21-1145, 1-22-0176, 1-22-1711, 1-23-0802 (Cons.)
where the court failed to follow statutory notice requirements regarding dissipation of marital assets. The trial court’s judgment is reversed and remanded where the court did not order retroactive maintenance to be paid out of the marital estate.
¶2 This case comes before us following almost six years of marriage dissolution proceedings
in the circuit court of Cook County pursuant to the Illinois Marriage and Dissolution of Marriage
Act (Act), 750 ILCS 5/101, et seq. (West 2014). Following years of pretrial litigation and motion
practice, a bench trial was held on petitioner-appellee, Nawara Tarbouche’s petition for dissolution
of marriage against respondent-appellant, Fawaz “Frank” Ennab, which was granted on December
7, 2020. Therein, the trial court held that: (a) Nawara was entitled to both prospective and
retroactive maintenance, the latter to begin from the date of her petition’s filing; (b) Frank was to
reimburse Nawara for out-of-pocket health insurance premiums she incurred after removing her
from his insurance plan during dissolution proceedings; (c) Frank had dissipated marital assets;
and (d) Frank was to maintain a life insurance policy with Nawara as his beneficiary.
¶3 Frank timely filed a motion to reconsider, which was granted in part and denied in part on
August 18, 2021. Specifically, the court modified Frank’s maintenance obligations after imputing
an income of $25,000 to Nawara, but maintained its original ruling that Frank was obligated to
pay retroactive maintenance to the date of the petition’s filing. The court further affirmed its
previous holding that Frank had dissipated assets.
¶4 Frank now appeals that order, arguing multiple issues on appeal, namely that: (1) the trial
court erred in its calculation of Frank’s maintenance obligations by improperly calculating
Nawara’s income; (2) the court improperly imposed a retroactive maintenance award beginning
from the date of the petition’s filing; (3) the court erred in requiring Frank was to maintain a life
insurance policy with Nawara as a beneficiary; (4) the court’s dissipation finding was improper
where Nawara’s notice of dissipation of assets was untimely; (5) the court erred in determining
-2- Nos. 1-21-1145, 1-22-0176, 1-22-1711, 1-23-0802 (Cons.)
that Frank had to reimburse Nawara for her health insurance premiums; and (6) the court
incorrectly denied his motion to reconsider. For the reasons that follow, we affirm in part, reverse
in part, and remand for further proceedings.
¶5 I. BACKGROUND
¶6 We derive our factual background from the underlying petition, the parties’ extensive
motion practice, the testimony derived at trial, the dissolution judgment, the trial court’s order
following Frank’s motion to reconsider, and the multiple consolidated appeals filed by Frank.
¶7 A. The Underlying Facts
¶8 At the time of trial, Nawara was forty-eight years old and a resident of Evanston, Illinois,
and she held citizenship in the United States and Syria. She was a licensed registered pharmacist
in Illinois, but was unemployed for most of the dissolution proceedings. Frank was fifty-nine years
old and resided in Chicago, Illinois, and held citizenship in both the United States and Jordan.
Frank had multiple master’s degrees and was employed by Oracle Corporation. Nawara and Frank
were married on December 28, 1993, in Las Vegas, Nevada, and later moved to Illinois in or
around 1998. The marriage resulted in two now adult children, Dina and Nadia.
¶9 B. Procedural history
¶ 10 1. Nawara’s Petition
¶ 11 On September 18, 2015, Nawara filed a petition for dissolution of marriage (the petition)
based on “irreconcilable differences.” The petition alleged that the parties had lived separately for
over two years, and that Frank had exhibited “repeated and unprovoked mental cruelty towards”
Nawara. The petition sought the division of marital and non-marital property, joint contribution of
their children’s post-secondary education and related expenses, and maintenance paid by Frank to
-3- Nos. 1-21-1145, 1-22-0176, 1-22-1711, 1-23-0802 (Cons.)
Nawara. On January 6, 2016, Frank filed a pro se appearance, and later retained an attorney who
filed an appearance on February 11, 2016.1
¶ 12 During the course of the litigation, the parties submitted various financial affidavits and
documentation concerning their claimed assets. Of relevance here, per Nawara’s 2019 financial
affidavit, the following real properties were claimed as marital assets: (1) 918 Hinman Avenue,
Unit A, Evanston, Illinois (Unit A); (2) 175 East Delaware, Chicago, Illinois (the Delaware
property); and (3) 2500 N. Lakeview, Chicago, Illinois (the Lakeview property), all of which were
encumbered by mortgages.2 The record also showed evidence of a property owned by Frank as a
“single person,” at 918 Hinman Avenue, Unit B, Evanston, Illinois (Unit B). The parties also
submitted evidence of various bank accounts, federal income tax returns and W-2’s, Frank’s health
insurance policy and retirement accounts at Oracle, and Nawara’s efforts to find employment
following the closure of her employer’s business in or around December 2016.
¶ 13 2. Motion Practice and Relevant Orders
¶ 14 The parties engaged in many years of motion practice, ranging from issues concerning the
parties’ alleged possession of assets in Syria and Jordan; Nawara’s potential holding of a Swiss
1 According to the trial court in its dissolution judgment, and as confirmed by our own investigation, Frank never filed a responsive pleading to the petition, despite being ordered to do so in February 2016. Section 105 of the Act was amended in 2016, after the filing of Nawara’s petition, but provided at the time that any responsive pleading to the filing of a petition would be deemed a response. See Pub. Act 99-10, § 5-15 (eff. Jan. 1, 2016) (amending 750 ILCS 5/5105). Now, Section 105(c) defines “pleading[]” as “any petition or motion filed in the dissolution of marriage case which, if independently filed, would constitute a separate cause of action[.]” Id. § 105(d) (West 2016). 2 Nawara also listed ownership of various properties in Syria and Jordan, which shall be discussed later.
-4- Nos. 1-21-1145, 1-22-0176, 1-22-1711, 1-23-0802 (Cons.)
bank account; Frank’s failure to comply with discovery obligations; and new counsel for both
parties. 3 We recite the relevant motion practice as it pertains to the issues on appeal.
¶ 15 On May 9, 2016, by agreed order, Nawara was given exclusive possession of the parties’
residence at 918 Hinman Avenue, Unit A, in Evanston, Illinois (Unit A). Nawara was to be solely
responsible for all expenses related to the residence beginning April 1, 2016, onward, which
included: (a) Unit A’s mortgage; (b) its quarterly condominium association fees; (c) property taxes
and utilities; and (d) all routine expenses and repairs.
¶ 16 Sometime in 2016, Frank filed a motion for release of sales proceeds, seeking to release
funds to repay one of their daughter’s college loans. Therein, Frank stated that in 2010, the couple
had purchased Unit B as an investment property, which was held solely in Frank’s name. Unit B
was sold in July 2016, and the proceeds remained in a bank account held by Frank pending the end
of the litigation. On January 6, 2017, by agreed order, Frank was authorized to withdraw all
necessary amounts to various college-related expenses. 4
¶ 17 a. Discovery Deadlines and Related Issues
¶ 18 On February 13, 2019, following multiple discovery deadline extensions, the trial court
imposed a final deadline of May 31, 2019. However, on May 31, 2019, the parties’ counsel
exchanged emails indicating “an agreement to mutually extend discovery” and that a schedule
would be further discussed regarding outstanding matters and the parties’ depositions. Subpoenas
for the parties’ depositions were subsequently issued on June 10, 2019, and June 24, 2019.
3 A substantial portion of the record also demonstrates that various sanction orders were entered by the trial court against Frank and his counsel of record. Because the current issues on appeal do not directly touch upon those orders, we will not recite them here. 4 Similar motions were further brought by Frank during the pendency of the case to release funds to pay for college-related expenses or property taxes, which were either granted by the trial court or entered by agreed order.
-5- Nos. 1-21-1145, 1-22-0176, 1-22-1711, 1-23-0802 (Cons.)
¶ 19 Despite the deadline, Frank continued to issue various subpoenas to Nawara, and Nawara
filed various emergency motions to quash the subpoenas in addition to multiple requests for
sanctions. Of relevance here, on August 26, 2019, after granting Nawara’s emergency motion to
quash a set of subpoenas issued to Bank of America, the following exchange occurred in court:
“THE COURT: There is a trial order in this case that closed discovery on a
particular date, correct?
[Both petitioner and respondent’s counsel respond affirmatively]
*** *** ***
[Respondent’s counsel]: Trial order, discovery closes May 31, 2019.
THE COURT: So why would it be appropriate for any counsel in this case to issue
a subpoena for records subsequent to May 31, 2019, without leave of court?
[Respondent’s counsel]: Well, [petitioner’s counsel] and I had agreed that we
should take depositions—
THE COURT: Counsel, you can agree about depositions, and you can agree with
respect to certain items. Was there an agreement that discovery—written discovery
remained opened in this case? And let’s make no mistake there are rules that need to be
followed, Illinois Supreme Court Rules, the Illinois Code of Civil Procedure. So I am
asking simply was that May 31, 2019, discovery closure date modified in any way?
[Both petitioner and respondent’s counsel]: No.”
¶ 20 b. Nawara’s Motion for Temporary Maintenance
¶ 21 On May 8, 2019, Nawara filed a motion for temporary maintenance and reinstatement to
Frank’s health insurance policy pursuant to sections 501 and 504 of the Act, 750 ILCS 5/501,
-6- Nos. 1-21-1145, 1-22-0176, 1-22-1711, 1-23-0802 (Cons.)
5/504 (West 2018). First, Nawara sought temporary maintenance payments from Frank as she
claimed to have recently lost her job at a local pharmacy following the business’s closure, and was
now unemployed other than occasional part-time work as a substitute pharmacist. Nawara admitted
to owning various real estate parcels in Syria, but such properties did not generate any income and
she did not have any large accounts or investments upon which to rely. She further asserted that
she was currently living off money provided to her by her mother. Second, Nawara sought
immediate reinstatement to Frank’s employer-provided health insurance, as well as reimbursement
for out-of-pocket expenses. Nawara claimed that Frank had “unilaterally removed her” from
coverage and left her without insurance for several months. Third, Nawara sought an order freezing
the proceeds from Unit B’s sale to preserve what Nawara believed to be marital assets. In support
of her motion, Nawara attached, among other exhibits, an affidavit attesting to her current financial
status and her employment history, as well as an email from Frank confirming that he had removed
Nawara from his healthcare plan.
¶ 22 Frank filed a response and counter-affidavit in support, which challenged the assertions
contained in Nawara’s affidavit. Frank pointed out that dissolution proceedings had begun over
three years ago, and Nawara had failed to seek any support until now. He further argued Nawara’s
motion failed to show any change in circumstances that warranted financial support from him.
¶ 23 On May 23, 2019, a hearing was held on Nawara’s motion. During the hearing, petitioner’s
counsel commented that he did not have an updated financial affidavit from Frank, with the most
recent one being filed in 2016. Respondent’s counsel attempted to have Frank testify as to his
current financial status, which the court denied because the temporary proceeding was “summary
in nature and argument only,” absent a finding of good cause. The court further noted that, under
the Act and local court rules, Frank should have already supplemented his previous financial
-7- Nos. 1-21-1145, 1-22-0176, 1-22-1711, 1-23-0802 (Cons.)
affidavit. The court further stated that more recent income information was required from both
parties. The court then assessed the couple’s assets, and the following exchange occurred:
“THE COURT: Who is collecting the rents on these rental properties?
[Respondent’s counsel]: I’m sorry. What rental properties, your Honor?
THE COURT: I don’t know. There’s a variety of properties---
[Petitioner’s counsel]: There is a rental property in the John Hancock building.
[Frank] is collecting that rent I presume. The properties in Syria are vacant. I don’t know
about the property in Jordan. That is also controlled by [Frank].
THE COURT: What about the property on Lakeview?
[Petitioner’s counsel]: That’s [Frank’s] residence as I understand it.
THE COURT: I only have real control over the property here in the States.
[Petitioner’s counsel]: Correct.
THE COURT: So who is residing in 175 East Delaware Place?
[Respondent’s counsel]: It’s empty, your Honor. It’s not rented.
THE COURT: Why?
[Respondent’s counsel]: The landlord chooses not to rent it.
THE COURT: Who is the landlord?
[Frank]: I am.
THE COURT: Okay. Well, that’s called dissipation in my world. This is a marital
asset. Why is it not accumulating rental income?
[Respondent’s counsel]: Judge, it’s not a marital asset.
-8- Nos. 1-21-1145, 1-22-0176, 1-22-1711, 1-23-0802 (Cons.)
THE COURT: Then why is it listed on her financial affidavit? Why is it not a
marital asset?
[Petitioner’s counsel]: It was acquired during the marriage---
THE COURT: Well, then it’s presumed to be a marital asset, counsel.
[Respondent’s counsel]: It’s presumed to be.
THE COURT: Exactly. *** However, if something was purchased during the
marriage, it is presumed to be a marital asset. It is then your burden to show me that it’s
not. *** If it’s just in your name, it doesn’t mean it’s yours. It doesn’t work that way.
[Respondent’s counsel]: Judge, if I may, on the matter of this unoccupied property
in the Hancock, this has been something that---
THE COURT: Then I guess it needs to be sold. Then maybe it should just be sold.
*** But a piece of property being vacant, being maintained, assessments paid in the
Hancock building---I don’t know if there is a mortgage on it or not; if there is, I don’t know
how the marriage is being paid—[it’s] dissipation.
[Respondent’s counsel]: Judge, if I may, just regarding the property in the Hancock,
we have proved to petitioner conclusive evidence that that property is nonmarital.
THE COURT: Stop. You don’t get to decide if that’s nonmarital or not. I do.
[Further text omitted].
-9- Nos. 1-21-1145, 1-22-0176, 1-22-1711, 1-23-0802 (Cons.)
[Respondent’s counsel]: I agree. I should have brought motions for partial summary
judgment.
THE COURT: Okay. But you didn’t. And you’re set for trial in July.”
¶ 24 Following that exchange, the court issued the following oral ruling on Nawara’s motion:
“THE COURT: So based on the limited information I have from the respondent,
the information that I have from the petitioner, the arguments by counsel, the financial
affidavits, and the verified pleadings, the [c]ourt has imputed income of $25,000 to the
petitioner, $110,840 is what is set forth in the respondent’s financial affidavit. Temporary
maintenance shall be paid from the respondent to the petitioner in the amount of $2,355
per month commencing June 1st. The issue of retroactivity to the date of filing is reserved
to trial.”
¶ 25 The court also ordered Frank to immediately reinstate Nawara to his health plan. On May
23, 2019, the court memorialized its oral ruling through the entry of an “Initial Uniform Order for
Support” for maintenance. Therein, Frank’s salary was listed as $110,840 per year pursuant to his
2016 financial affidavit, and Nawara’s income was imputed to $25,000. Frank was ordered to pay
Nawara monthly maintenance payments of $2,355 beginning June 1, 2019, with the “issue of
retroactive maintenance [to be] reserved.”
¶ 26 On May 31, 2019, Frank filed a motion to modify the temporary maintenance order on the
basis that his current gross income was $107,859, not $110,840, as delineated within the order. As
such, Frank sought to modify his monthly payment to $2,280. In support of his motion, Frank
attached his own affidavit, his 2018 W-2, and his 2018 federal income tax return. 5
5 It does not appear that this motion was ruled upon prior to the start of trial proceedings.
- 10 - Nos. 1-21-1145, 1-22-0176, 1-22-1711, 1-23-0802 (Cons.)
¶ 27 c. Nawara’s Notice of Claim for Dissipation of Assets
¶ 28 On July 5, 2019, three days before trial, Nawara filed a “Notice of Claim of Dissipation of
Assets.” Therein, Nawara asserted that both parties had been deposed on June 26, 2019, and that
various marital properties had been dissipated during dissolution proceedings, specifically: (a)
Unit A, following a withdrawal of equity in the amount of $190,000 in 2010; (b) lost income from
failure to rent the Delaware property between September 1, 2015 to the present date at a rate of at
least $1,450 per month; (c) marital funds used to purchase the Delaware and Lakeview properties,
with an “amount currently under investigation”; (d) health insurance costs of $20,314.51 incurred
by Nawara after Frank removed her from his healthcare plan; and (e) “intentional reduction of
income” between the years 2006 through 2018 as evidenced by Frank’s tax returns.
¶ 29 3. Trial
¶ 30 On July 8, 2019, nearly four years 6 after the filing of Nawara’s petition, a four-day trial
began. 7 Nawara called herself and Frank as witnesses for her case-in-chief, and Frank called
himself as a rebuttal witness. 8
¶ 31 a. Frank9
6 On September 3, 2019, Frank filed a motion to continue the ongoing trial proceedings due to a planned personal vacation. The trial court denied the motion on September 13, 2019. 7 On the first day of trial, the parties discussed various pending motions before the court. On July 8, 2019, Nawara filed a motion in limine to limit any evidence at trial concerning assets held by the parties outside of the United States. The court orally denied this motion. Other motions included Frank’s motion to modify temporary maintenance, various motions for sanctions, and Frank’s apparent motion for partial summary judgment concerning the Delaware and Lakeview properties as nonmarital properties. The motion for partial summary judgment does not appear in the record. 8 Although not expressly identified in the transcript, Frank appears to have been called as an adverse witness by petitioner’s counsel. We note that there are multiple instances throughout the trial transcript where an incorrect name was attributed to a particular speaker. 9 Although Nawara was called first, we have chosen to place Frank’s testimony first as his extensive testimony provides more context to the parties’ marriage, their financial status, and the marital estate overall. His adverse direct examination is first, followed by Nawara’s direct examination, and ends with Frank’s rebuttal testimony. We have attempted to cull through both parties’ extensive testimony to eliminate
- 11 - Nos. 1-21-1145, 1-22-0176, 1-22-1711, 1-23-0802 (Cons.)
¶ 32 On direct examination,10 Frank testified as follows. He had been born in Jordan, graduated
from high school there, and completed a bachelor’s of science degree in civil engineering at the
University of Latakia. He immigrated to the United States for graduate school at the University of
Texas, where he completed two masters degrees in or around 1989 in computer science and civil
engineering. Following graduation, he worked at a company in Huntsville, Alabama called
Integraph, which specialized in computer systems. Frank became an American citizen in 1990 or
1991, and then moved to Charlotte, North Carolina, where he began working for Kodak until 1992.
There, he was responsible for inspection of electronic computer chips. During this time period, he
made frequent trips back to Jordan, and met Nawara there in the early 1990’s.
¶ 33 Next, Frank moved to Los Angeles, California, where he worked at ESRI, a company
which specialized in “geographic information system software.” Frank’s annual salary ranged
approximately between $60,000 and $70,000. While employed there, he and Nawara married in
Las Vegas, Nevada, and registered their marriage in both Syria and Jordan.
¶ 34 In 1998, Frank left ESRI and moved to Chicago to take a job with a company called
Accenture, where he served as a technical manager. He worked there for two years and made
between $100,000 and $115,000 annually. He left Accenture at the end of 2000. Thereafter, Frank
became employed by Sibel, a company which he described as a “customer relationship
management system.” Frank earned around the same salary he did at Accenture. Sibel was then
acquired by a company called Oracle, which he began to work for following the transition. He
redundancies, and are mindful of the parties’ respective burdens during dissolution proceedings, which shall be delineated within our discussion of the issues on appeal.
- 12 - Nos. 1-21-1145, 1-22-0176, 1-22-1711, 1-23-0802 (Cons.)
performed the same duties there as he had for Sibel, in addition to managing Oracle’s own
software. His salary at Oracle has remained the same for “many years.”
¶ 35 Frank was questioned about the parties’ real property assets. After he and Nawara moved
to Chicago, they purchased a townhouse in Evanston, located at 918 Hinman Avenue, Unit A.11
Unit A’s title was in both their names, although Nawara’s name had been “handwritten” into the
deed. Unit A had been encumbered by a ten-year mortgage of about $220,000, but Frank received
an inheritance from his father and used some of it to pay off the mortgage. Unit A was refinanced
at $199,000 in 2002, in 2005 at $173,000, and again in March 2010, when the couple decided to
buy the unit next door, specifically 918 Hinman Avenue, Unit B, for “their daughters’ benefits.”
¶ 36 To purchase Unit B, Frank took out a 30-year home equity loan against Unit A in the
amount of $296,250. Frank explained that he wanted Unit A to be a “tax shelter.” Unit B could not
be financed normally because “mortgage companies w[ould] not give you a mortgage on a property
in a building that you own more than 5 percent of,” and the townhome in which he and Nawara
resided consisted of five units, each representing twenty percent interest. When asked if he had
saved more money in taxes than what he paid in interest for this endeavor, Frank testified that he
could “claim the interest on Unit A as part of the mortgage so it will not be taken out of [his] taxes”
and “out of [his] gross income[.]”
¶ 37 Frank testified that Unit B’s title had been issued to “Frank Ennab, a single person.” When
asked if he had been a “single person” at the time of purchase, Frank responded that he had been
married to Nawara, but took title without her because it “was agreed that [he] would only have
[his] name on it.” When asked whether being listed as a “single person” was a false statement,
11 Per the parties’ stipulation, Unit A’s property value was estimated to be worth $390,000 at the time of trial.
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Frank responded: “I’m not sure what single person means to you, but it doesn’t mean that I’m not
married.” Frank explained that, over the years, the couple “had issues” when Nawara travelled, as
she would spend three months in Syria every year, and Frank could not refinance their properties
without her signature. As such, the two agreed that Unit B’s title would only be in his name to
make it “eas[ier] to do any transactions without her being present or giving [him] a power of
attorney.” Frank acknowledged that this agreement had not been memorialized in writing. Frank’s
counsel who prepared Unit B’s deed was his current counsel at trial, and he had known that Frank
had been married to Nawara at the time.
¶ 38 Frank testified that Unit B was subsequently rented out to one family, but he decided to
sell it when he determined that it was not generating income based on its age and condition.
Although the unit was listed for sale, Frank’s real estate agent advised that the property would not
sell until it was remodeled. As such, Frank removed the property from the market. He completed
most of the repairs on the unit himself, but also brought in contractors for further repairs. After
remodeling it, the unit was eventually sold, with the proceeds currently being held in an account
in his name per court order. He did not make any profit from the unit.
¶ 39 Next, Frank purchased two condominiums in Chicago prior to the sale of Unit B, the first
being the Delaware property.12 The Delaware property was purchased with money he had received
“back home,” and it was encumbered by a $135,000 mortgage. When applying for the mortgage,
he included assets in the United States and money from “wires back home.” The outstanding
balance was paid with “non-marital money” from one of his Chase bank accounts. The costs of
maintaining the unit included: monthly mortgage payments; assessment fees; real estate taxes;
12 The record shows that the Delaware property was transferred to Frank by trustee’s deed on April 5, 2013, while the Lakeview property was acquired by warranty deed on January 23, 2014.
- 14 - Nos. 1-21-1145, 1-22-0176, 1-22-1711, 1-23-0802 (Cons.)
required building insurance fees; and a required building internet fee. He also paid a finder’s fee
commission to Baird & Warner for one month’s rent after they acquired a tenant for him. He
conducted minor repairs on the unit, such as painting, re-carpeting, and replacing the towel bar
and shower curtain, and later testified that he replaced the air conditioning unit and microwave.
He painted the unit himself. He did not recall the total costs of repair, but believed a friend helped
out with some of them. The property had been in “bad shape,” but he did not wish to remodel it
because it was expensive to do so.
¶ 40 Frank leased the unit for $1,450 a month from September 1, 2014, to August 31, 2015, thus
generating a total of about $17,400 of rental income. He had not leased or collected any income
from it between then and September 2019, where he was now renting it for $1,500 a month.
However, he later testified that he leased it until June or July 2016. His family also used it from
time to time, specifically one of his daughters, who stayed in the unit for about six months after
her college graduation in June 2016, as well as his Jordanian family whenever they visited
Chicago. Frank paid the property’s expenses with money from “back home” as well as rental
income, and denied using any salary earnings to do so. He explained that the money from “back
home” had come from a sale of a piece of land, which he later clarified as two pieces of land. He
paid taxes in both the United States and Jordan on the proceeds from the land sale, which had been
withheld on his paycheck.
¶ 41 Next, Frank purchased the one-bedroom Lakeview property, which was encumbered by a
mortgage. In his loan application, he disclosed that his assets were estimated to be $1,139,938.07,
but believed that the number to be inaccurate as it included his other mortgages. He closed on the
property with $44,705.85, and further stated that his inheritance money had also been used to
purchase the unit. The unit’s expenses included: the mortgage; assessment fees; mortgage interest
- 15 - Nos. 1-21-1145, 1-22-0176, 1-22-1711, 1-23-0802 (Cons.)
fees; and insurance payments. Frank also leased the Lakeview property until June 30, 2015, at a
rate of $1,800 a month, and then moved into the unit himself in September 2015. He did not make
any improvements to the property other than painting. The Lakeview property’s expenses were
also paid out of proceeds from the land sale “back home” and rental income. Petitioner’s counsel
estimated that both properties’ total expenses were around $320,000, with a potential discrepancy
of about $167,000. Frank responded that he had been living in the Lakeview property and there
were “associated expenses” for his accommodations. Petitioner’s counsel asked if those remaining
expenses had been paid by Frank’s salary, to which he replied that “there were some expenses [he]
supplemented” and that he had used “some of [his salary]” to do so.
¶ 42 Next, Frank was questioned about his salary at Oracle. He testified that he received a salary
and bonus, with his “net income” somewhere between $75,000 and $80,000 a year. Frank
explained that his W-2s reflected what Oracle called a “gross earning,” which was distinguishable
from a “gross income.” Oracle calculated the cost of its healthcare plans into an employee’s gross
earnings and thus, his gross income was “exaggerated.” Oracle also did this with their 401ks,
where, if the company matched an employee’s contributions, it would also add it to the employee’s
total earnings. The purpose of this calculation was to lower Oracle’s tax liability.
¶ 43 Frank was shown copies of his W-2s from years 2006 through 2010, and confirmed that he
had earned $106,000 in 2006; $133,988 in 2007; $124,034 in 2008; and $139,988 in 2009. For the
year 2010, petitioner’s counsel asked why his wages were listed at $19,991.93. Frank responded
that the number “did not look accurate” as he had been employed full-time that year. With regard
to his 2011 salary, listed at $165,444, Frank testified that he had held stock in Sibel prior to
Oracle’s acquisition of the company, which he “probably” sold that year. Once the stock was sold,
the proceeds went to the “household income” and “household checking account.” With regard to
- 16 - Nos. 1-21-1145, 1-22-0176, 1-22-1711, 1-23-0802 (Cons.)
his 2012 and 2014 salaries listed at $136,000 and $137,656, respectively, Frank confirmed the
numbers, but stated they were not truly accurate based on his prior explanation. When asked why
his salary in 2015 had decreased to $120,665, Frank was “unsure” but speculated that it was due
to Oracle’s accounting practices. With regard to his 2016 income, Frank confirmed that it was
listed as $130,754, but that he had also received about $20,000 in non-salary benefits. With regard
to his 2017 income, he confirmed that his salary decreased to $105,881, and speculated that Oracle
had either changed its accounting practices or had distributed a smaller bonus that year.
¶ 44 Frank testified that he had received tax refunds for the years 2016 through 2018. Since
2014, he had filed his returns as both “head of household” and “singular.” Petitioner’s counsel
directed him to his 2015 tax return, which listed an item characterized as a “bad debt loan.” Frank
testified that this was a $20,000 deduction for money he had loaned to his sister’s husband, which
had never been repaid. When asked from where the loan money had originated, Frank answered
that he believed it had come from “overseas” but was unsure and did not remember.
¶ 45 Petitioner’s counsel estimated Frank’s net income between 2016 and 2019 to be about
$491,000, and speculated that there was about $324,000 unaccounted for in his financial records.
Frank responded that he “account[ed] for everything [he] spent,” and that he needed to pay his
own rent, that he ate out from time to time, and travelled and visited his family. He also paid his
daughters’ educational expenses. When asked whether his salary had been used to support Nawara
after he moved out of Unit A in August 2015, Frank responded that he paid the mortgage,
homeowner’s insurance fees, and assessments for Unit A until a court order made Nawara
responsible for such expenses. Frank had not used any money related to the Delaware and
Lakeview properties to support Nawara from February 2016 onward, other than court-ordered
health insurance and maintenance.
- 17 - Nos. 1-21-1145, 1-22-0176, 1-22-1711, 1-23-0802 (Cons.)
¶ 46 Frank was next asked about his life insurance policy. He testified that he had “protective
life insurance,” which was “life term” and would “disappear” if he died while no longer working
at Oracle. When asked if the policy was worth $300,000, Frank responded that the policy’s worth
was based on a “percentage of income” where one could “pick one year” or two years of salary.
He confirmed that Nawara was no longer his beneficiary, as he had changed the designation to
both his daughters.
¶ 47 Frank was next asked about his bank accounts. He had opened various accounts in his
daughters’ names prior to them reaching 18 years old, which he funded from his Oracle earnings.
Once his daughters turned eighteen years old, he asked them to move the money into their own
accounts. His youngest daughter, Nadia, had most recently moved funds out of the account a few
months prior, which he estimated to be between $26,000 and $30,000. Her money had been
comprised of Nadia’s various tutoring jobs and a bonus she received while working prior to
graduation. She had also taken out a non-interest loan during college to help build her credit. Frank
also admitted to funding the account. His daughter Dina had one savings and one checking account
that had held a “couple thousand dollars” and had been funded from his salary. Dina had closed
the savings account, but kept the checking account open with about $100 or $200 remaining.
¶ 48 Frank was then questioned about his removal of Nawara from his healthcare plan. He
testified that he had informed her of the change via email to her and their daughters. He removed
her because she had a full-time job at the time, and he had “received multiple threats from her that
she was going to abuse the healthcare plan” and that she had “already [done] that” by seeing
doctors outside of network. Frank paid the bills for such visits as she had refused to pay them.
Frank acknowledged that he had recently reinstated her to the plan because the “court ordered
[him] to,” but if Nawara had informed him that she had lost her job and needed to be reinstated,
- 18 - Nos. 1-21-1145, 1-22-0176, 1-22-1711, 1-23-0802 (Cons.)
he would have done so. However, he did not learn of her job status until 2017 because Nawara
never responded to his email and did not communicate to him that she was no longer working.
¶ 49 Upon cross-examination by his counsel, Frank testified that his projected retirement age
was 66 years and 4 months, which was less than 3 years’ time. With regard to health insurance,
Frank considered his email to Nawara to be “fair notice and warning.”
¶ 50 With regard to his inheritance, Frank testified that he had inherited agricultural lands and
a few properties, which had been divided amongst him and his five siblings over the course of
several years. 13 He also inherited some shares of a house and other properties in Syria, and “made
a deal” with his siblings to increase his share. Frank would then from time to time authorize one
of his brothers to sell various parcels and send the money back to the United States. He also sold
some of his interests to the French embassy. With some of the proceeds, he bought a condominium
unit in Amman, Jordan from one of his brothers, who was an architect and had constructed the
building. He had not used any money from his salary at Oracle or from the marital estate to
purchase that property. Frank also purchased other properties in Syria with the remaining proceeds,
which included a studio for $60,000, which he spent about $120,000 renovating. This property
was listed in Nawara’s name because as a non-Syrian, it would take time for him to transfer the
property due to various “security checks.” The purchase occurred during a summer when Nawara
and their daughters had visited Syria. Frank denied that the property was a gift to Nawara, and that
it was his intention to use the home as a “center for himself and his family” when they visited the
13 During multiple instances at trial, respondent’s counsel attempted to introduce evidence of various international properties either owned by Frank, Nawara, or both, which was objected to consistently by petitioner’s counsel. The court sustained virtually all objections on the basis of, among others, the hearsay and failure to properly authenticate. Frank listed a variety of international properties and their associated addresses in his closing arguments, but the trial transcript is unclear as to which properties he is referring to at a given time during his testimony.
- 19 - Nos. 1-21-1145, 1-22-0176, 1-22-1711, 1-23-0802 (Cons.)
country. Frank also owned a commercial property in Damascus that was purchased with marital
money in 2012, in which he and Nawara held a fifty percent interest in, with Nawara’s sister
owning the remaining fifty.
¶ 51 Frank was further questioned about the purchase of Unit B, which he stated he had bought
with land sale proceeds from Jordan and his salary. Neither Nawara nor his daughters had
contributed to the closing. The down payment had been paid through a joint checking account to
which neither Nawara nor his daughters contributed. Unit B was resold in 2016 with net proceeds
estimated at $350,000, which he placed into a separate Chase savings account. There was about
$107,000 remaining in the account. Nawara had authorized Frank to be her power of attorney for
the home equity loan used to purchase Unit B, and he had signed the refinancing documents on
her behalf. $155,000 of the loan was used to purchase Unit B, and the remaining balance of
$150,000 came from the couple’s joint checking account.
¶ 52 Upon recross examination by petitioner’s counsel, 14 Frank testified as follows. With regard
to the couple’s agreement to buy Unit B with a home equity loan, Frank maintained that Nawara
had agreed to the course of action “without him convincing her” because the money borrowed
would be paid “in the future back to the marriage.” The two also agreed to place Unit B in his
name as a “single person” so that he owned it as a non-marital unit. He denied that he intended to
buy a property that she would have no interest in, but acknowledged that their agreement was not
14 During recross examination, petitioner’s counsel asked Frank if he had spoken to his lawyer regarding his previous testimony in the case, and Frank responded that he had. Petitioner’s counsel asked what they discussed, and respondent’s counsel objected on the basis of attorney-client privilege. The trial court overruled the objection, stating that, “You don’t get to assert the privilege, it’s the client who does.” We raise this exchange briefly in order to provide context for one of Frank’s requests on appeal, which was imbedded within a footnote on the last page of his brief.
- 20 - Nos. 1-21-1145, 1-22-0176, 1-22-1711, 1-23-0802 (Cons.)
in writing and that Nawara had not been represented by an attorney during these discussions. Frank
agreed that he was not a “single person” at the time of acquisition.
¶ 53 With regard to his real estate in Syria, Frank testified that he sold various parcels and used
the proceeds to buy property in Jordan. He did not declare the income from the sale on his tax
returns because it was an inheritance.15 Frank confirmed that such property had been purchased
while married to Nawara, but was unsure of its cost because Nawara paid for it using from funds
from when she had previously “worked in Damascus.” There was no written agreement between
the two of them as to this property, but Nawara was an owner.
¶ 54 Frank was directed back to his tax returns. Frank testified that in 2016 and 2017, he took a
deduction for a vacation home, which was a studio in Delaware. 16 Frank had reported a capital
gain in the amount of $45,000 when Unit B was sold. He also claimed a $6,000 childcare credit in
2018, which he believed to be a college-related expense for his youngest daughter.
¶ 55 On recross examination by his own counsel, Frank reiterated his belief that his designation
as a “single person” on Unit B’s deed did not speak to his marital status, but only who served as
titleholder.
¶ 56 b. Nawara
¶ 57 On direct examination by her own counsel, Nawara testified as follows. She had lived in
Illinois for 20 years and currently resided in Evanston in Unit A. She became pregnant four months
after she and Frank married. Their marriage broke down “in one day” when, in 2007 or 2008,
15 Petitioner’s counsel attempted to impeach Frank with his deposition transcript, where he apparently said that he had paid an inheritance tax. The record also reflects that Frank appears to have stated on direct adverse examination that he had paid an inheritance tax on property inherited in Jordan. 16 This property never appeared to be addressed by the parties throughout the proceedings.
- 21 - Nos. 1-21-1145, 1-22-0176, 1-22-1711, 1-23-0802 (Cons.)
Frank became “irritated” with her and asked her to leave the house. They attempted to reconcile
in 2008, but were not successful. She had not seen or spoken with Frank in five years.
¶ 58 Nawara was born in Damascus, and her native language was Arabic, with her second
language being French. She had taken two English classes for about eight weeks in Damascus
before immigrating to the United States in 1993 at the age of twenty-five, and any additional
English she learned came from living in the United States, working, watching television, or with
friends. While in Syria, Nawara received an equivalent of a high school education and completed
a bachelor’s degree in pharmacy from the University of Damascus, which was a five-year program
in pharmacy and chemical pharmacy. She had not been formally employed in Syria, but did unpaid
“practical work” in a pharmacy. After graduation, she worked for two years as a volunteer in a
suburban village outside of Damascus.
¶ 59 Nawara was unemployed when she came to the United States, as her Syrian pharmacist
degree was insufficient to become a licensed registered pharmacist in Illinois. Thus, she took the
requisite equivalency and board exams in Illinois, which were a series of five exams that took three
years to complete. She was also required to do a 400-hour unpaid internship. She became fully
licensed in 2008.
¶ 60 Nawara’s first paying job was in 2012 at a small private pharmacy called J Discount
Pharmacy, which was initially located in Evanston and then relocated to southern Chicago, near
Indiana. Her initial role was staff pharmacist, and over time she became the “pharmacist in charge.”
Her duties included dispensing medications and consulting with patients, talking to doctors, and
taking prescriptions over the phone. When the pharmacy moved locations, she continued to work
there. In 2016, the pharmacy closed and she became unemployed. Throughout 2017, she would
work “as needed” at various pharmacies, but they were not regular jobs and she would often only
- 22 - Nos. 1-21-1145, 1-22-0176, 1-22-1711, 1-23-0802 (Cons.)
be contacted once a month or every twenty days to work. She had not tried applying to chains such
as Walgreens and other larger pharmacies at the time, though nothing had prohibited her from
doing so. She was unable to work at stores such as Walgreens or CVS as a pharmacy technician.
She explained that because she had a higher degree, her technician license had been superseded
and further believed that pharmacy technicians were paid minimum wage. Nawara had applied to
more than 100 jobs over the course of her job search. She utilized Linkedin and applied to jobs up
to forty hours a week. She did not have a record of her efforts, as she was not always able or
allowed to print out her final submission given that most applications were now online.
¶ 61 Nawara was questioned about her assets, beginning with her bank accounts. She had a
checking and savings account with Bank of America, which held $31,000 and $6,000, respectively.
Some of the funds therein included maintenance payments from Frank. Her mother had also given
her a cash money gift two or three years ago while Nawara had been overseas. Nawara brought
the cash to the airport, declared it, and deposited it into the bank upon arrival in the United States.
Nawara also received a money gift from her godfather in the amount of $100,000 about two years
ago, which she also deposited into the same bank account via a wire transfer. The two gifts were
being used for living expenses.
¶ 62 Nawara did not have any debt, but did not have any income and had not been required to
file a tax return in 2018 or 2019. Other than maintenance payments, she had never received any
money from Frank, even while still living together, and he had not provided her with any money
for household expenses for at least six or seven years. She acknowledged that he might have put
around $400 or $500 in an account at the beginning of every month while still living together, but
ultimately she had to use her earnings from her pharmacy job for household expenses. Frank also
- 23 - Nos. 1-21-1145, 1-22-0176, 1-22-1711, 1-23-0802 (Cons.)
had not provided her with any support between December 2016 and when court-ordered
maintenance payments began.
¶ 63 With regard to her real property assets, Nawara denied acquiring any property in Syria or
paying any expenses related to any such properties. She denied receiving income from Syria, and
denied ever seeing any document that gave her ownership or control over any property in Syria.
¶ 64 On cross-examination by respondent’s counsel, Nawara testified as follows. In Syria, she
became licensed as a pharmacist in 1989. She denied working for a Syrian pharmaceutical
company called “Tal-Laaj & Company” between 1993 and 2002, indicating that she did not work
until after graduation and had moved to the United States during that time period. She denied
showing Frank her “company offices” while in Syria, or introducing him to any of her co-workers.
¶ 65 With the exception of temporary or ad hoc part time employment, Nawara had been
unemployed from the end of 2016 to February 28, 2020. She did not have any documentation
related to her termination from J Discount. She had not filed for unemployment insurance when
she was terminated, as she did not know if she was eligible for it and was also looking for a job at
the time. When asked if her reported income at J Discount between 2012 and 2017 was $192,404,
Nawara responded that she did not know. Her salary had gone to household expenses such as the
mortgage, utilities, or the children’s education, as well as the mortgage in February 2016.
¶ 66 Nawara was referred back to her testimony regarding the difference in licensure between a
pharmacy technician and a pharmacist. Her technician license had been removed in 2008 after she
became licensed as a pharmacist. She did not know if she could reinstate her technician license,
but was not implying that she could not reinstate it simply because she was also licensed as a
pharmacist. Nawara estimated a pharmacist salary to be about $40 an hour, or in Chicago, between
$70,000 and $100,000. Nawara had documented her work search efforts to the best of her ability.
- 24 - Nos. 1-21-1145, 1-22-0176, 1-22-1711, 1-23-0802 (Cons.)
Before retaining her current attorney in 2019, she did not keep a record of her job applications.
She had also applied for jobs where she did not receive acknowledgement of her application by
letter or email.
¶ 67 Nawara was shown various exhibits documenting her job search efforts, and confirmed
that she had applied to a variety of companies, such as Presence Health, North Shore University
Healthcare, and multiple jobs at Walgreens. She acknowledged that, although she had provided
various documents showing that recruiters on Linkedin had viewed her profile, this did not mean
that she had submitted an application for those positions. When asked if she had only applied to
two jobs in 2016, Nawara indicated she had still been employed at J Discount for most of 2016,
but otherwise had applied “every day.” When asked if she had applied to only one job in 2017, she
stated that she had held a part-time job that year. She did not remember if she had applied to 17
employers within the first three months of 2019. Nawara intended to become employed because
she needed to be “independent,” and that she “love[d] what [she did].”
¶ 68 Nawara was directed to her bank statements. In October 2012, she had received a money
gift via wire transfer in the amount of $9,965 from a “Mr. Masoud,” who was her godfather. He
had also gifted her additional funds from him in December 2012 in the amount of $19,968, and
another on August 16, 2018. Nawara was shown a copy of two certificates of deposit from Bank
of America, which showed $30,000 from the same individual. She was unsure of what those
amounts were. Nawara further confirmed a wire transfer from her father in November 2005 in the
amount of $99,985. With regard to the $45,000 gift she received from her mother, Nawara testified
that she received the money in U.S. currency in 2017 and declared it at an airport kiosk. Nawara
denied receiving a receipt or certificate after declaring the money. She denied filing any
registration documents at the airport and instead verbally spoke to a customs officer, who input
- 25 - Nos. 1-21-1145, 1-22-0176, 1-22-1711, 1-23-0802 (Cons.)
her information into a computer system. After she left the airport, Nawara went to a bank and
deposited the money. She denied being informed that the bank was required by law to file a
currency transaction report for a cash deposit of that size.
¶ 69 Nawara was directed to her 2019 financial affidavit. She had truthfully claimed that her
daughters were living with her in 2019. Nawara’s stated cost of living included her mortgage
payments, but was not inclusive of food, clothing costs, or taxes. When asked if she was “hiding
any money,” she responded, “where would I hide money?” Respondent’s counsel pointed out that
Nawara had listed three properties in Syria under her name. Nawara stated that she only owned
one non-marital property in Damascus, which had been a gift from her father. However, she had
not fully acquired this property because it had to be divided between herself and her siblings, and
that due to the “difficult political situation” in Syria, the government was “closed” and her family
was unable to file the requisite paperwork to do so. She further testified that Frank had bought the
studio in Damascus, and that she only had ownership of one property in Illinois. Respondent’s
counsel pointed out that Nawara’s 2016 financial affidavit had not listed any properties in
Damascus, and Nawara answered that she believed she only had to list stocks and pensions, not
real property. She further stated that she had only listed marital properties, and her Syrian property
was not marital in nature. Frank’s Damascus studio had been given to her in 1999 and placed in
her name. However, she had no documentation to show this.
¶ 70 On redirect examination by petitioner’s counsel, Nawara testified as follows. It was her
understanding that she was not eligible for a pharmacist technician’s license, but if an individual
wanted to be certified as a technician, it may require additional testing. Nawara further denied
being employed in Syria during her marriage. At the time she had been discharged from J Discount,
she had been unaware of the Illinois Unemployment Insurance Act, and did not recall the pharmacy
- 26 - Nos. 1-21-1145, 1-22-0176, 1-22-1711, 1-23-0802 (Cons.)
posting any signs, notices, or literature informing her of her rights. Frank had never discussed with
her how to obtain unemployment insurance or that she was eligible for it. Nawara reiterated that
although her documentation of her job search activities improved once she retained counsel, her
job search efforts had not changed, with the exception of her spending more time on Linkedin.
From the time she lost her job through February 2019, she spent at least five hours a day applying
for jobs. She also worked with some recruiters, which had not been successful. She did not have
any other bank accounts besides those at Bank of America. When she received a wire transfer from
her father in 2005, the transfer went into a joint bank account she shared with Frank, of which he
was aware.
¶ 71 On recross examination by respondent’s counsel, Nawara testified that she did not apply
for a pharmacist technician license prior to becoming licensed in Illinois, and that her current
knowledge about the technician license was based on her discussions with others.
¶ 72 C. Frank’s Rebuttal
¶ 73 On direct examination, Frank testified as follows. He was currently employed as a project
manager at Oracle, and worked with companies such as Pfizer, Baxter, Merck, and Johnson &
Johnson. His salary had been the family’s sole income since the parties’ marriage. In the early
1990’s, his income had been sufficient to cover family expenses, but recently it was “barely
enough” and thus he had to supplement it. He had not received a raise at work given the level of
competition in his field, and he expected his salary to remain the same with the exception of a
bonus component that would fluctuate from year to year.
¶ 74 He and Nawara had a good relationship and family life until 2008 or 2009, more
specifically around September 15, 2009. Frank attributed the deterioration of their relationship to
- 27 - Nos. 1-21-1145, 1-22-0176, 1-22-1711, 1-23-0802 (Cons.)
his desire of wanting her to work and contribute to the family. In mid-January 200817, Nawara and
Frank had a conversation in his office where she informed him that she had passed her exams and
was officially licensed. However, she wanted to take a break from her three-year study period, and
wished to go to Syria for the summer and look for employment when she returned. In August 2009,
Nawara returned from Syria and Frank approached her about finding a job. In mid-September
2009, Nawara told him that she had discussed the possibility of her employment with her family,
and decided that she was not going to work because she “was the woman” and the “woman does
not contribute to the family.” According to Frank, Nawara stated that it was a “man’s job and
responsibility to do that” and that she felt that she had no responsibility to work. Frank described
this interaction as “significant.”
¶ 75 In December 2012, Nawara and Frank had another conversation in his home office to
discuss a job offer she received from J Discount, which she planned to start the next week. Frank
believed that the job was “below her skill level,” and told her that he had hoped that she would
find a job with a bigger company. Nawara stated to him that “you’re telling me to find a job all the
time” and “I found a job just to show you that I can find [one] whenever I intend to.” Frank told
her that he was glad she had changed her mind about working, to which she responded that she
had not. She stated that her salary would not be contributed to the family income and that she and
their two daughters were his responsibility. She reiterated that the “woman [did] not contribute to
the family,” that it was a “man’s job,” and asked him “are you a man?” To his knowledge, Nawara
had not contributed any of her salary to the household expenses, such as groceries or the mortgage,
and did not buy her tickets for her yearly summer trip to Syria. Although his relationship was
17 Frank’s testimony was that this conversation occurred in January 2008, however, he further testified that she had studied for her licensure between 2005 and 2008.
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Nawara was affecting his mental health at that time, he did not move out of the house until both
their daughters were at college.
¶ 76 Frank was questioned about the state of his finances and other assets. With regard to his
bank accounts, he currently had $40,000 in his Chase accounts, which were separate from the
account that held the remaining funds from the sale of Unit B. He also had around $8,000 in a
separate Citibank account. He had never sent any money outside of the United States, with the
exception of wire transfers to family outside of the country. He would also send money to Nawara
from time to time when she travelled with their daughters during the summer.
¶ 77 With regard to the home equity loan used to purchase Unit B, Frank testified that he took
out the loan for two reasons. First, he wanted a tax shelter because he had “made a mistake by
paying the mortgage [on Unit A].” Second, he wanted extra money to supplement the funds they
would use to purchase Unit B. With regard to the Delaware and Lakeview properties, Frank used
$153,000 of his inheritance to finance both, specifically using $47,000 for the Delaware property’s
down payment. He had bought the Lakeview property because the Delaware condominium had
not been large enough for him. He also wanted to get his remaining money out of Jordan and invest
it within the United States.
¶ 78 Upon cross-examination, Frank testified as follows. When asked why he had listed himself
as a “single person” on the title for Unit B, Frank responded that it had been “more convenient”
for him to pay taxes without needing Nawara’s power of attorney. He reiterated that the purpose
of the home equity loan was to create a tax shelter and reduce his overall tax liability. When asked
how this strategy benefitted his family, Frank responded that it reduced his gross taxable income
by the interest he paid. Frank testified that he took a deduction in 2014 and 2015 for the home
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equity loan as “head of household,” not as a “single person,” but stopped doing so after because
Nawara began paying the loan.
¶ 79 On redirect examination, Frank testified that he and Nawara had agreed in March 2010 to
omit her name from Unit B’s purchase agreement, as the unit would likely require a lot of attention
and they would possibly need to refinance in the future. On recross examination, Frank testified
that he wanted Unit B in his name so he could “take action” without Nawara’s signature, although
he “always consulted” and “took her opinion” for “any decision.” When asked if “it was entirely
within [his] power and discretion as to whether Nawara would have any input on the future of Unit
B,” Frank responded, “legally speaking, yes.”
¶ 80 4. Closing Arguments18
¶ 81 The parties submitted written closing arguments. Relevant here, Nawara argued that Frank
had dissipated marital assets with regard to his handling of the Lakeview and Delaware properties,
estimating that about $324,366.98 had “disappeared.” Next, Nawara sought reimbursement for the
costs of her health insurance premiums in the amount of $20,314. Nawara also sought retroactive
maintenance “from the beginning of the case,” which was estimated to be $122,642. Finally, she
urged the court to order Frank to “maintain $300,000 in life insurance on his life with Nawara as
the beneficiary” and their daughters as contingent beneficiaries. In Frank’s closing argument,
although he argued that Nawara should not be entitled to further maintenance, he did not appear
18 During trial, the court entered various exhibits into the record, including: deeds to the relevant properties; leases for the Delaware and Lakeview properties; Frank’s records pertaining to his health insurance and various retirement accounts; Frank’s income and bank account statements; Frank’s 2016 financial disclosure; Frank’s tax returns between 2013 and 2018; Nawara’s income tax returns for years 2014 through 2016; Nawara’s financial affidavits from 2016 and 2019; Nawara’s resume and documented job efforts; Nawara’s bank accounts; and the parties’ joint tax returns.
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to challenge her request for retroactive maintenance therein. Frank also contended that Nawara’s
dissipation notice had not been timely filed in order to claim dissipation.
¶ 82 5. Judgment for Dissolution
¶ 83 On December 7, 2020, the trial court entered a dissolution judgment.19 Preliminarily, the
court found that the evidence at trial had established grounds for irreconcilable difficulties and that
all future attempts at reconciliation would be impractical. Thus, the dissolution judgment was
focused on the “determination and definition of marital property, maintenance, distribution of the
marital estate, allocation of marital debt, and attorney[] fees[.]”]20
¶ 84 Next, the court determined the couple’s marital assets pursuant to the twelve factors
delineated within section 503(d) of the Act.21 The court further stated that it would “review the
remaining factors for purposes of both its consideration of the equitable division of the marital
estate[,]” as well as its “determination of whether Nawara [was] entitled to receive maintenance
from Frank” pursuant to section 504. With regard to marital property, Frank was awarded the
Delaware and Lakeview properties. Nawara was awarded Unit A, subject to the mortgage, with
various contingencies in place to attempt to release Frank from the mortgage.
¶ 85 Frank was also ordered to maintain $300,000 in life insurance proceeds on his life
insurance policy with Nawara as his primary beneficiary, and Dina and Nadia as contingent
19 The dissolution judgment was later corrected by order of March 4, 2021, which clarified various typographical errors in the original judgment. 20 The court also noted that “the issue of potential ownership by the parties of properties in the Middle East arose during this case,” but that it was “not able to dispose of any overseas properties[.].” Accordingly, the court “decline[d] to exercise jurisdiction regarding any foreign real estate or other assets outside of the United States[,] and ma[de] no ruling regarding any such assets.” 21 The specific findings of the court as to these factors are delineated in detail in our discussion of the relevant issues. As will be discussed later, section 503 of the Act (governing marital property distribution) and section 504 (governing maintenance provisions) utilize statutorily-required factor tests. However, many of the factors overlap. See 750 ILCS 5/503, 5/504 (West 2016).
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beneficiaries. 22 Nawara was awarded “all disclosed financial accounts in her name.” Frank was
rewarded the same, with the exception of the account holding the proceeds for the sale of Unit B,
which was awarded to Nawara.
¶ 86 With regard to health insurance, the court made the following findings:
“[D]. HEALTH INSURANCE
This [c]ourt notes that on May 23, 2019, as a condition of its Temporary
Maintenance Order, this [c]ourt ordered Frank to restore Nawara to insurance
through his employment, Frank having improperly and with no legal right or
justification, on or about February 27, 2015, removed Nawara from his insurance.
[Citations omitted.] This [c]ourt accordingly orders Frank to pay to Nawara
$20,314 out of his share of the marital estate to compensate Nawara for her out-of-
pocket private health insurance premium payments.”
¶ 87 The court also made findings regarding the dissipation of marital assets. First, in a footnote,
the court stated:
“[T]his [c]ourt heard on May 23, 2019, that Frank had not been renting the
Delaware property; this property was not generating income and, therefore, this [c]ourt
considered this to be dissipation. It was dissipation of a marital asset in particular because
Frank purchased this property during his marriage to Nawara; the property was therefore
presumed to be marital. [Citation to May 23, 2019 in-court hearing transcript.] This [c]ourt
finds that Frank has not presented any evidence to rebut this presumption as to this or any
22 Frank’s life insurance policy also does not appear to be listed as an asset within the court’s recitation of the marital estate.
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other real property and, therefore, deems all four of the real properties specified above to
be marital.”
The court’s dissipation finding was further reiterated in its discussion regarding the division of the
marital estate pursuant to section 503(d)(2), where it ordered Frank to pay Nawara $35,525 for the
dissipation of assets related to the Delaware property.
¶ 88 Finally, the court found that “Nawara [was] a candidate for continuing maintenance”
pursuant to section 504(a) of the Act.23 The court found that Nawara was entitled to retroactive
maintenance from October 2015 to May 2019 based on the temporary maintenance amount of
$2,355 per month, for a total of $101,265, but noted that Frank had paid maintenance for June,
July, and August of 2019. The court also ordered Nawara’s temporary maintenance payments to
remain in effect through October 2020, with Frank to pay Nawara a new obligation of $3,355 per
month for 26 years and 10 months.
¶ 89 6. Motion to Reconsider
¶ 90 On January 5, 2021, Frank timely filed a “Motion to Reconsider, Vacate or Modify Portions
of Judgment for Dissolution of Marriage and for Clarification of other Portions.” First, Frank
sought reconsideration of the court’s ruling on his retroactive maintenance obligation, arguing that
the award was inappropriate for the months that Nawara had worked as a full-time pharmacist
between 2012 through December 2016. Additionally, Frank observed that Nawara filed her
petition in 2015 and made no effort to apply for temporary maintenance until 2019, although he
acknowledged that this was likely because she had been employed during that time. In the event
that the court still found retroactive maintenance to be appropriate, Frank proposed that it be
23 The trial court’s order further stated “In this matter, calculation of maintenance would yield as follows[.]” However, there was no such calculation following this statement.
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limited in time from January 2017 through May 2019, with deductions made based on the part-
time work Nawara had throughout that time period.
¶ 91 Second, Frank challenged the court’s implicit finding of a $0 income imputation to Nawara
in its determination of Frank’s maintenance obligations. Frank argued that this finding suggested
that Nawara would never be able to find employment, despite her education and experience as a
pharmacist. Third, Frank argued that the court’s dissipation finding was also in error. Frank
observed that discovery in the case had closed on May 31, 2019, and Nawara had filed her Notice
of Claim of Dissipation on July 5, 2019, three days before trial. Without citing the relevant statute
governing dissipation notice requirements, Frank argued that the notice was not timely filed, and
that he had raised this issue during the course of trial as well as in his closing argument.24
¶ 92 Nawara filed a response. First, she argued that the court had properly determined Frank’s
maintenance obligations by imputing her income to $0 based on her prior employment history and
unsuccessful efforts to find employment. Second, Nawara contended that retroactive maintenance
was proper under section 504, as the statute was not limited to temporary maintenance relief, and
the evidence showed that Frank had not contributed to the marital estate. Third, Nawara argued
that any objection to her dissipation notice was waived. Nawara further agreed that discovery had
closed on May 31, 2019, but that the parties had agreed to extend discovery pursuant to Illinois
Supreme Court Rule 201(i), as shown through an email exchange dated May 31, 2019, thus making
her notice timely under the statute.
24 The page number that Frank identified as him raising the issue of untimeliness was a general citation to the provision of the Act governing dissipation, specifically 750 ILCS 5/503(d)(2)(i), but it did not contain any argument as to the notice being untimely.
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¶ 93 Frank filed a reply, wherein he argued, for the first time, that Nawara’s receipt of $145,000
from her family should have also been considered in the court’s calculation of his maintenance
obligations.
¶ 94 A hearing on the motion was held on May 11, 2021, and the court took the matter under
advisement. On August 18, 2021, the court granted in part and denied in part Frank’s motion. First,
the court rejected Frank’s contention that it had failed to consider the $145,000 gift to Nawara
when calculating the parties’ income and Frank’s maintenance obligation. The court determined
that the $145,000 was distinguishable from the money gifts discussed in In re Marriage of Ruvola,
2017 IL App (2d) 160737. Specifically, the court found that the money was not “a regular monthly
gift,” as such funds had been issued separately and on a one-time basis in 2017 and 2018. However,
with regard to Nawara’s $0 income imputation, the court agreed with Frank that it had previously
imputed $25,000 to Nawara during the temporary maintenance hearing. As such, the court
proceeded to recalculate maintenance with the $25,000 income.25
¶ 95 Next, the court reiterated that Nawara was a candidate for maintenance, but given the new
income imputation, it needed to re-calculate Frank’s maintenance obligations. The court
determined Frank’s income to be $96,693.66 based on an average of his incomes for 2016, 2017,
and 2018, noting that Illinois law allowed for the averaging of fluctuating incomes so long as there
was no dispute in the income data’s reliability. The court also found no evidence of Frank’s need
to pay child support for the marriage or any past relationships, and that the parties’ combined total
income was below the statutory cap of $500,000. After further calculations pursuant to section (b-
25 We again reiterate that the trial court’s original dissolution judgment did not expressly calculate the amount or duration of maintenance in accordance with section 504’s statutory maintenance guidelines. See 750 ILCS 5/504(b-1), (b-2) (West 2018). Thus, there had been no such “calculation” in the original order, and the court’s calculation in its order addressing the motion to reconsider is the first time it appears in the record.
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1)(1)(A) of the statute, where the court had to make adjustments to the maintenance calculation
based on other statutory caps, the court determined that Frank’s monthly maintenance obligation
was now $1,973.12, to begin December 1, 2020. The court further determined that, pursuant to
section 504(b-1)(1)(B), Nawara’s maintenance award would last for 26 years and 10 months, the
length of the marriage at the time the dissolution judgment was entered. However, the court noted
that Frank was entitled to a credit or “set-off” of his maintenance obligation beginning November
1, 2020, as he had paid maintenance in accordance with the calculations set forth in the original
dissolution judgment, which was in excess of the amounts in its new order.
¶ 96 The court also found that retroactive maintenance was still appropriate due to the “length
of the parties[’] marriage and the significant disparities in employment history and prospects”
between the parties. The court maintained its previous calculation of $2,355 for temporary
maintenance, as well as its finding that Frank was to pay retroactive maintenance from October
2015 to May 2019, for a total of 43 months at $101,265.
¶ 97 Last, the court addressed the dissipation finding. The court agreed that discovery had
officially closed on May 31, 2019, and that any mutual agreement to extend discovery had been
ineffective at changing the court’s previous deadline. However, the court observed that, even
before the discovery closure date, it had already found “dissipation to have been occurring in
connection with the Delaware Place property” on May 23, 2019. Accordingly, the court concluded
that it was “of no moment that Nawara’s claim for dissipation was formally issued after the date
of the closure of discovery.” As such, the court reaffirmed its previous ruling that Frank was
obligated to pay $35,525 in dissipation damages.
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¶ 98 This appeal followed.26
¶ 99 II. ANALYSIS
¶ 100 A. Consolidated and Related Matters
¶ 101 Prior to our discussion of the parties’ arguments on appeal, we must also note the
complicated procedural posture of this case. After Frank filed his Notice of Appeal, Nawara filed
a motion to stay these proceedings pursuant to Supreme Court Rules 301(a)(1) and (a)(2) due to
pending actions for sanctions against Frank and his counsel in the trial court. We granted the stay
on November 16, 2021, and ordered the parties to file status reports in this case. The stay was
subsequently lifted by order on March 9, 2022.
¶ 102 During that interim time period and beyond, Frank’s counsel has filed multiple notices of
appeal, which have resulted in numerous cases that have either been formally consolidated with
this case by court order or deemed related. All of the cases are appeals of sanctions orders in the
underlying matter, which respondent’s counsel purports to have filed “merely for jurisdictional
purposes.” See Case No. 1-22-0164 (notice of appeal filed February 3, 2022, appealing a trial court
order of January 6, 2022, which levied attorney fees and sanctions in the amount of $28,699;
further dismissed for want of prosecution pursuant to our August 31, 2022 order); Case No. 1-22-
0176 (notice of appeal filed February 7, 2022, which purports to appeal the trial court’s dissolution
judgment, order on Frank’s motion to reconsider, as well as the sanctions order entered on January
6, 2022; motion to consolidate with our instant case granted on March 9, 2022); Case No. 1-22-
26 Because they are not particularly relevant to our determinations here, we have elected not to discuss the various sanction awards entered by the trial court against Frank and his counsel both during dissolution proceedings and after. However, our review of this record and the various supplemental records show the entry of sanctions on January 6, 2022, and October 13, 2022, as well as a rule to show cause issued against Frank on April 6, 2023.
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0711 (notice of appeal filed November 14, 2022 based on an October 13, 2022 sanctions order in
the amount of $11,444.49; motion to consolidate granted November 28, 2022, and further
indicating that “[t]he briefs filed and to be filed in [the instant case] shall stand as the briefs for
[case no. 1-22-1711].”); Case No. 1-23-0802 (notice of appeal filed May 5, 2023, from order of
trial court entered April 6, 2023 in relation to contempt proceedings; order to consolidate case with
this instant case on May 30, 2023, with “briefs filed [in the instant appeal to] stand as briefs for”
that appeal).
¶ 103 Only one case is not consolidated. See Case No. 1-23-0308 (filed November 10, 2022;
dismissed for want of prosecution on March 8, 2023, after failing to file the record; order for
dismissal for want of prosecution vacated on April 5, 2023). However, this appeal appears to be
brought solely by respondent’s counsel on his own behalf, and is currently being briefed. Now, we
reiterate that the briefs filed in this instant matter—Case No. 1-21-1145—are to serve as the
briefings for Case Nos. 1-22-0176, 1-22-1711, and 1-23-0802. Finally, we note that neither the
docketing statement nor the briefs in this case raise any arguments concerning the trial court’s
sanctions orders.
¶ 104 B. Arguments
¶ 105 Although Frank’s appeal raises multiple issues, they can be categorized into two main
concerns, namely: (a) the court’s assignment of marital property; and (b) Frank’s maintenance
obligations. With regard to the former, Frank contends that the court erred in three ways: (1)
determining that Frank had dissipated assets; (2) requiring him to reimburse Nawara for health
insurance expenses; and (3) assigning Nawara as a beneficiary to his life insurance policy. With
regard to the latter, Frank contends that: (1) the court’s prospective maintenance findings are in
error because it failed to consider Nawara’s prior employment history and her receipt of a $145,000
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family gift; and (2) the court improperly ordered retroactive maintenance to the date of the
petition’s filing.
¶ 106 The issues outlined above concern multiple portions of the Act. Thus, we begin with a brief
discussion of the statute prior to addressing each issue on appeal, and will address each relevant
provision, with the appropriate standard of review, as we move through them in our discussion.
We begin with the well-established canons of statutory interpretation, where “[t]he fundamental
rule of statutory interpretation is to give effect to the intention of the legislature,” with the “best
indicator of the legislature’s intent [being] the plain language of the statute.” In re Marriage of
Rogers, 213 Ill. 2d 129, 136 (2004). “When the statutory language is clear, it must be given effect
without resort to other tools of interpretation.” Id. However, as we will discuss below, although
most of the Act sets forth express requirements for trial courts to follow under certain provisions
of the statute, it also allows for some discretion.
C. The Illinois Marriage and Dissolution of Marriage Act 27
¶ 107 The Act allows for a court to enter a marital dissolution judgment when one of the spouses
was a resident of Illinois at the time the action was commenced. 750 ILCS 5/401(a) (West 2016).
27 To further complicate matters, the Act has been amended multiple times since the filing of Nawara’s petition, including at the relevant sections concerning marital distribution and maintenance provisions (Pub. Act 99-90, § 5-15 (eff. Jan. 1, 2016) (amending 750 ILCS 5/503 and 5/504)). However, section 801 of the statute expressly states that the 2016 version of the Act will “appl[y] to all pending actions and proceedings commenced prior to its effective date with respect to issues on which a judgment has not been entered[.]” (Emphasis added.) 750 ILCS 5/801(b) (West 2016). The petition in this case was filed in 2015, prior to the effective date of the amended statute, January 1, 2016. However, a final judgment was not rendered until 2021, after the effective date of such amendments. Thus, the newer version of the Act applies here. Other amendments have also occurred over time. See Pub. Act 99-763, § 5 (eff. Jan. 1, 2017) (amending 750 ILCS 5/503(b)(1) to clean up language regarding the presumption of marital property and the burden required to overcome such a presumption); see Pub. Act 100-520, § 5 (eff. Jan. 1, 2018) (amending 750 ILCS 5/504(b-1) regarding calculation duration of maintenance); see Pub. Act 100-871, § 5 (eff. Jan. 1, 2019) (amending 750 ILCS 5/503 regarding life insurance policies); see Pub. Act 100-923, § 10 (eff. Jan. 1, 2019) (further amending maintenance determinations at 750 ILCS 5/504(a) and (b)).
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Before judgment, a court must consider and make provisions for “the maintenance of either spouse
and the disposition of property.” 750 ILCS 5/401(b) (West 2016). “The court has the discretion to
use the date of the trial or such other dates as agreed upon by the parties, or ordered by the court
within its discretion, for purposes of determining the value of assets or property.” 750 ILCS
5/403(c) (West 2016).
¶ 108 The Act “was enacted to create a uniform law governing domestic relations.” In re
Marriage of Thompson, 79 Ill. App. 3d 310, 313 (1979). “[A] trial court’s authority to act in
dissolution proceedings is conferred only by statute” and “[t]he trial court may not rely upon its
general equity powers.” In re Marriage of Ignatius, 338 Ill. App. 3d 652, 657 (2003); see also In
re Marriage of Blum and Koster, 377 Ill. App. 3d 509, 526 (2007), rev’d on other grounds (“The
dissolution of marriage is entirely statutory in origin and nature, and courts *** must exercise their
powers within the limit of the Act.”). However, the Act is also to be “liberally construed” to
“promote its underlying purposes.” 750 ILCS 5/102 (West 2016). Such purposes include
“promot[ing] the amicable settlement of disputes that have arisen between parties to a marriage”
(750 ILCS 5/102(3) (West 2016)), “mak[ing] reasonable provision for support during and after an
underlying dissolution of marriage” (750 ILCS 5/102(8) (West 2016)), “eliminat[ing] the
consideration of marital misconduct in the adjudication of rights and duties incident to the
dissolution of marriage” (750 ILCS 5/102(9) (West 2016)), and “mak[ing] provision for the
preservation and conservation of marital assets during the litigation” (750 ILCS 5/102(10) (West
2016)).
¶ 109 1. The Marital Estate (750 ILCS 5/503)
¶ 110 “Before a court may distribute property upon the dissolution of a marriage, it must first
classify the property as either marital or nonmarital.” In re Marriage of Stuhr, 2016 IL App (1st)
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152370, ¶ 49 (quoting In re Marriage of Faber, 2016 IL App (2d) 131083, ¶ 3)); see also 750
ILCS 5/503(a) (West 2016) (“The court shall make specific factual findings as to its classification
of assets as marital or non-marital property, values, and other factual findings supporting its
propriety award.”). The trial court is to divide the property “in just proportions considering all
relevant factors” (750 ILCS 5/503(d) (West 2016)) and has “broad discretion in the distribution of
marital assets,” with the “touchstone of proper and just apportionment [being] whether it is
equitable in nature.” (Internal citations omitted.) In re Marriage of Walker, 386 Ill. App. 3d 1034,
1042 (2008). “An award of property in just proportions does not mean equal proportions, and a
trial court does not abuse its discretion in awarding a larger share of the marital property to one
party.” Id.
¶ 111 Section 503(a) presumes that “all property, including debts and other obligations, acquired
by either spouse subsequent to the marriage” is marital property. 750 ILCS 5/503(a) (West 2016);
see also 750 ILCS 5/503(b)(1) (West 2016). “This presumption includes non-marital property
transferred into some form of co-ownership between the spouses, regardless of whether title is held
individually or by the spouses in some form of co-ownership such as joint tenancy, tenancy in
common, tenancy by the entirety, or community property.” 750 ILCS 5/503(b)(1) (West 2016).
“The presumption of marital property is overcome by showing through clear and convincing
evidence that the property was acquired by a method listed” in sections 503(a)(1-8), which
delineate various types of “non-marital property.” Id.; see also 750 ILCS 5/503(a)(1)-(8) (West
2016).
¶ 112 The statute also discusses pension benefits and life insurance policies. Section 503(b)(2)
presumes that “all pension benefits” which are “acquired by or participated in by either spouse
after the marriage and before a [dissolution judgment]” to be marital property. 750 ILCS
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5/503(b)(2) (West 2016). Applicable pension benefits include those under the Illinois Pension
Code, “defined benefit plans, defined contribution plans and accounts, individual retirement
accounts, and non-qualified plans[.]” Id. “A spouse may overcome the presumption that these
pension benefits are marital property by showing through clear and convincing evidence that the
pension benefits were acquired by a method” listed in section 503(a)(1-8), which, as noted above,
defines non-marital property. Id.
¶ 113 Section 503(b-5), which governs allocation of benefits for a life insurance policy, has since
been amended. 28 At the time Nawara’s petition was filed, the previous version of the provision
stated:
“As to any policy of life insurance insuring the life of either spouse, or any interest
in such policy, that constitutes marital property, whether whole life, term life, group term
life, universal life, or other form of life insurance policy, and whether or not the value is
ascertainable, the court shall allocate ownership, death benefits, or the right to assign death
benefits, and the obligation for premium payments, if any, equitably between the parties at
the time of judgment for dissolution *** of marriage.” 750 ILCS 5/503(b-5) (West 2016).
2. Distribution of Marital Property and Trial Court Findings
Section 503(d) was also amended in 2016 and provides a list of factors for trial courts to
consider when “assign[ing] each spouse’s non-marital property to that spouse” and “divid[ing] the
marital property without regard to marital misconduct in just proportions[.]” 750 ILCS 5/503(d)
28 Section 503(b-5) was first amended in 2016, where it added the term “existing” to “any policy of insurance.” See Pub. Act 99-90, § 5-15 (eff. Jan. 1, 2016). It was again amended by Pub. Act 100-871, § 5, (eff. Jan. 1, 2019), which does not apply to our proceedings today.
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(West 2016).29 “Generally, the trial court’s classification of an asset as marital or nonmarital will
not be disturbed unless it is contrary to the manifest weight of the evidence.” Stuhr, 2016 IL App
(1st) 152370, ¶ 49 (quoting Faber, 2016 IL App (2d) 131083, ¶ 3)). “A decision is against the
manifest weight of the evidence only when an opposite conclusion is clearly apparent or when the
court’s findings appear to be unreasonable, arbitrary, or not based upon the evidence.” Id. (quoting
Faber, 2016 IL App (2d) 131083, ¶ 3)). Although “a trial court’s property classification will not
be disturbed unless it is contrary to the manifest weight of the evidence, its final division of marital
property will not be disturbed unless the trial court clearly abused its discretion.” (Emphasis
added.) (Internal citations omitted). In re Marriage of Woodrum, 2018 IL app (3d) 170369, ¶ 101.
¶ 114 We turn now to the trial court’s findings pursuant to section 503(d), which, by its own
language, ultimately informed both its marital distribution and maintenance findings. 30 Section
503(d)(1), or “factor 1,” evaluates:
“[E]ach party’s contributions to the acquisition, preservation, or increase and
decrease in value of the marital or non-marital property, including (i) any decrease
attributable to an advance from the parties’ marital estate under subsection (c-1)(2) of
section 501; (ii) the contribution of a spouse as a homemaker or to the family unit; and (iii)
whether the contribution is after the commencement of a proceeding for dissolution of
marriage ***[.]” 750 ILCS 5/503(d)(1) (West 2016).
29 For purposes of efficiency and ease of read, we shall recite such factors along with the trial court’s findings together in a joint discussion shortly. 30 In its analysis, the court determined that the following statutory factors did not apply: factor six (750 ILCS 5/503(d)(6) (West 2016) (no evidence presented that either party was married previously); factor seven (750 ILCS 5/503(d)(7) (West 2016) (no evidence of any prenuptial or postnuptial agreements); factor nine (750 ILCS 5/503(d)(7) (West 2016) (no minor children, therefore no necessary custodial agreements); and factor twelve (750 ILCS 5/503(d)(12) (West 2016) (neither party presented any evidence regarding the tax consequences of their property division based on respective economic circumstances). We agree that these factors do not apply.
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¶ 115 The court determined that “both parties had contributed to the acquisition, preservation,
and increase in value of the marital estate.”
¶ 116 Subsection 503(d)(2), or “factor two,” states:
“[T]he dissipation by each party of the marital property, provided that a party’s
claim of dissipation is subject to the following conditions: (i) a notice of intent to claim
dissipation shall be given no later than 60 days before trial or 30 days after discovery closes;
whichever is later; (ii) the notice of intent to claim dissipation shall contain, at a minimum,
a date or period of time during which the marriage began undergoing an irretrievable
breakdown, an identification of the property dissipated, and a date or period of time during
which the dissipation occurred; (iii) a certificate or service of the notice of intent to claim
dissipation shall be filed with the clerk of the court and be served pursuant to applicable
rules; (iv) no dissipation shall be deemed to have occurred prior to 3 years after the party
claiming dissipation knew or should have known of the dissipation, but in no event prior
to 5 years before the filing of the petition for dissolution of marriage[.]” 750 ILCS
5/503(d)(2)(i)-(iv) (West 2016).
¶ 117 On this factor, the court found that Frank had dissipated marital property, namely the
Delaware property, by not renting it out and thus failing to generate income after August 31, 2015,
which was a period of 49 months. However, the court acknowledged that, per Frank’s testimony,
he had begun to rent it out in October 2019. The court noted that it had also first found that
dissipation of the property had occurred on May 23, 2019, during an in-court proceeding.
¶ 118 Subsection 503(d)(3), or “factor three,” evaluates “the value of the property assigned to
each spouse.” 750 ILCS 5/503(d)(3) (West 2016). The trial court found that it did not yet have a
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proper valuation concerning Frank’s retirement benefits, and as such ordered the parties to retain
an outside party to further allocate fifty percent of Frank’s retirement plans to Nawara.
¶ 119 Subsection 503(d)(4), or “factor four,” considers “the duration of the marriage” (750 ILCS
5/503(d)(4) (West 2016), which the court found to be 26 years and 10 months at the time of
dissolution.
¶ 120 Subsection 503(d)(5), or “factor five,” assesses “the relevant economic circumstances of
each spouse when the division of property is to become effective, including the desirability of
awarding the family home, or the right to live therein for reasonable periods, to the spouse having
the primary residence of the children.” 750 ILCS 5/503(d)(5) (West 2016). The court found that
Nawara had “very little employment history” and was at a “significant disadvantage in relation to
her future employment prospects given her age, relative lack of work history, and the present
economic downturn, whereas Frank had been employed at a considerable income for his entire
adult life.”
¶ 121 Subsection 503(d)(8), or “factor eight,” evaluates the “age, health, station, occupation,
amount and sources of income, vocational skills, employability, estate, liabilities, and needs of
each of the parties.” 750 ILCS 5/503(d)(8) (West 2016). The court noted that, at the time of
dissolution, Nawara was 53 years old and Frank was 64. The court found that “Frank ha[d] been
employed throughout his entire adult life, and was able to purchase three properties in addition to
Unit A during the parties’ marriage.” In contrast, the court observed that “Nawara was a
homemaker for a majority of their marriage, accumulating a work history of only a few years as a
pharmacist and having considerable difficulty in securing new employment given her age, relative
lack of work history, overall absence from the workforce during the parties’ marriage, and the
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economic pressures pertaining to her occupation specifically and to the economy and the
workforce more broadly, particularly this year with the COVID-19 pandemic.”
¶ 122 Subsection 503(d)(10), or “factor ten,” considers “whether the apportionment is in lieu of
or in addition to maintenance.” 750 ILCS 5/503(d)(10) (West 2016). The court indicated that its
“distribution of the marital estate would be in addition to the maintenance.”
¶ 123 Subsection 503(d)(11), or “factor 11,” evaluates “the reasonable opportunity of each
spouse for future acquisition of capital assets and income.” 750 ILCS 5/503(d)(11) (West 2016).
The court observed that Frank was nearing retirement age, but had worked during his entire adult
life for a “considerable income” and had considerable retirement assets. In contrast, the court found
that “neither circumstance applie[d] to Nawara” given her age, relative lack of work history,
overall absence from the workforce during the parties’ marriage, and the specific economic
pressures related to her occupation and economy. As such, the court found that Nawara “did not
have a reasonable opportunity, in the absence of the provisions regarding distribution and
maintenance, to acquire capital assets and income.”
¶ 124 With these findings in mind, we now turn to the court’s determinations related to
dissipation, health insurance, and life insurance.
¶ 125 a. Dissipation Finding
¶ 126 Procedurally, Frank contends that Nawara’s notice was untimely pursuant to section
503(d)(2) of the Act, as it was filed a few days prior to trial and after closure of discovery, and that
the trial court’s purported finding of dissipation during the hearing for temporary maintenance was
insufficient to circumvent the statutory deadlines. Substantively, assuming that the notice was
proper, Frank challenges the dissipation finding of forty-nine months, where, according to him,
the evidence showed that the unit had either been rented out or occupied by friends and family and
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during that time period. Finally, in the event that the finding was proper in any manner, Frank
contends that the amount charged against him must be charged against the marital estate, and not
in his post-division share.
¶ 127 Preliminarily, Nawara responds that Frank’s objection to the notice is waived because he
did not object to it until May 15, 2020, following the completion of trial. Substantively, Nawara
maintains that the notice was timely because it was filed nine days after the parties’ depositions on
June 26, 2019, which occurred after the parties agreed to extend discovery. Nawara further
characterizes Frank’s challenge as “moot” because the court did not award dissipation for funds
used to purchase the Delaware property, but rather, potential income it could be generating as
marital property. Finally, Nawara contends that the evidence both during the hearing for temporary
maintenance and at trial support a finding that the property was dissipated.
¶ 128 As noted above, section 503(d)(2) assesses the potential dissipation of marital assets during
the court’s distribution of marital property. 750 ILCS 5/503(d)(2) (West 2016). “The concept of
dissipation is premised upon waste,” specifically the “diminution in the marital estate’s value due
to a spouse’s actions.” In re Marriage of Brown, 2015 IL App (5th) 140062, ¶ 67. Put another way,
“[d]issipation occurs when one spouse uses marital property for his or her sole benefit while the
marriage is undergoing an irreconcilable breakdown.” (Internal citations omitted.) Stuhr, 2016 IL
App (1st) 152370, ¶ 65. Dissipation may occur even if the spouse may not necessarily derive a
personal benefit from it, such as if the expenditure ultimately has some detrimental effect upon the
marital estate. Brown, 2015 IL App (5th) 140062, ¶ 67. Relevant here, courts have held that
dissipation may be found where a party misappropriates rental proceeds. See In re Marriage of
Schuster, 224 Ill. App. 3d 958, 979-80 (1992).
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¶ 129 Whether conduct constitutes dissipation depends on the facts of that particular case. In re
Marriage of Patel and Sines-Patel, 2013 IL App (1st) 112571, ¶ 71. The party alleging dissipation
must make a preliminary, or prima facie, showing of dissipation. In re Marriage of Hamilton, 2019
IL App (5th) 170295, ¶ 78; see also Brown, 2015 IL App (5th) 140062, ¶ 66. If such a showing is
made, the burden then shifts to the party charged with dissipation to show, by clear and convincing
evidence, how the funds were spent. Hamilton, 2019 IL App (5th) 170295, ¶ 78; see also In re
Marriage of Adams, 183 Ill. App. 3d 296, 301 (1989). “Vague and general testimony that marital
assets were used for marital expenses is inadequate to meet the spouse’s burden to show *** how
funds were spent.” Brown, 2015 IL App (5th) 140062, ¶ 69; see also In re Marriage of Seversen,
228 Ill. App. 3d 820, 825 (1989) (observing that inadequate explanations found where the charged
party merely testified that money was spent to “live on and pay the bills” or for general cost of
living and other bills); see also In re Marriage of Hensley, 210 Ill. App. 3d 1043, 1053-54 (1991)
(dissipation found even where charged party showed accounting of all major payments, but
otherwise provided vague statements that did not account for other living expenses).
¶ 130 Although factual determinations concerning dissipation are subject to the manifest weight
of the evidence standard, a court’s overall final disposition of property is subject to the abuse of
discretion standard. See In re Marriage of Vancura, 356 Ill. App. 3d 200, 204-05 (2005)
(discussing confusion between courts regarding the standard of review for claims of dissipation);
compare In re Marriage of Schmidt, 242 Ill. App. 3d 961, 972 (1993) (“Whether there was
dissipation is a question for the trial court and its determination will not be set aside absent an
abuse of discretion.”); see also In re Marriage of Evanoff and Tomasek, 2016 IL App (1st) 150017,
¶ 37.
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¶ 131 Prior to addressing the merits, we must first address Nawara’s contention that Frank has
waived his procedural challenge to the notice. It is well-settled that issues not raised in the trial
court are deemed waived, and are improper if raised for the first time on appeal. Pinske v. Allstate
Property and Casualty Insurance Co., 2015 IL App (1st) 150537, ¶ 18. The terms “waiver” and
“forfeiture” are often used interchangeably but do possess distinct meaning, with “waiver”
referring to the “voluntary relinquishment of a known right,” and forfeiture characterizing a party’s
“failure to make the timely assertion of the right.” Id. Regardless of the characterization, waiver
and forfeiture rules serve as “an admonition to litigant[s], rather than a limitation upon the
jurisdiction of the reviewing court” and that we may sometimes override such considerations to
receive a “just result and maintain a sound and uniform body of precedent.” Id. ¶ 19. Our review
of the record shows that Frank challenged the timing of dissipation notice in the trial court in two
ways. First, Frank cited to the relevant notice provision contained in section 503(d)(2), albeit he
did not proffer a full-fledged argument in that regard. Nevertheless, in his motion to reconsider,
Frank raised a challenge to the notice’s timing, which was further addressed by the court. Thus,
we find that Frank sufficiently challenged the dissipation finding below, and will assess the parties’
arguments on this point.
¶ 132 On this issue concerning the timing of the dissipation notice, which is expressly set forth
within the Act, our review of the trial court’s ruling on this matter is de novo as it concerns an
issue of statutory interpretation. Rogers, 213 Ill. 2d at 135. Section 503(d)(2) delineates express
procedural requirements to claim dissipation of assets, specifically the filing of a: (i) notice of
intent to claim dissipation, which “shall be given no later than 60 days before trial or 30 days after
discovery closes, whichever is later,” and must be accompanied by a filed certificate or service of
the notice. (Emphasis added.) 750 ILCS 5/503(d)(2)(i), (iii) (West 2016). The notice “shall
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contain, at a minimum, a date or time period during which the marriage began undergoing an
irretrievable breakdown, an identification of the property dissipated, and a date or time period
during which the dissipation occurred.” 750 ILCS 5/503(d)(2)(ii) (West 2016).
¶ 133 This notice requirement took effect on January 1, 2013, well before the filing of Nawara’s
petition in 2015. See Pub. Act 97-941, § 5 (eff. Jan. 1, 2013) (amending 750 ILCS 5/503(d)(2).
Prior to this amendment, courts often utilized their inherent equitable powers to determine the
propriety of a dissipation claim. On this point, we find the Fifth District’s discussion in In re
Marriage of Hamilton, 2019 IL App (5th) 170295, illustrative in highlighting the effect of the
notice requirement on such claims. In Hamilton, a party filed a notice of intent to claim dissipation
within thirty days of discovery closure, rendering it timely under one provision of the section
503(d)(2), but conversely, the notice was simultaneously filed during trial proceedings, and thus
not filed within sixty days of trial as required by the other half of the provision. Id. ¶¶ 73-74. The
court ultimately found the notice to be timely, based on its adherence to some parts of the notice
requirement, as well as through fairness considerations, and reasoned as follows:
“We are guided in this determination by cases that arose before the requirement of
a notice of intent went into effect. [Internal citations omitted.] Such cases addressed the
issue in terms of fairness to the party charged with dissipation or forfeiture by the party
claiming dissipation. They held that trial courts could find dissipation as long as the party
found to have dissipated assets had sufficient notice to refute the claim. See, e.g. In re
Marriage of Brown, 2015 IL App (5th) 140062, ¶¶ 60-62 *** (finding that the husband did
not forfeit his claim of dissipation despite his failure to file a notice of intent pursuant to a
local court rule where various pretrial pleadings made it clear to the wife that he intended
to raise the issue); In re Marriage of Vancura, 356 Ill. App. 3d 200 *** (2005) (upholding
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the trial court’s sua sponte finding of dissipation where the record indicated that the parties
were put on notice that dissipation would be an issue); In re Marriage of Henke, 313 Ill.
App. 3d 159 *** (2000) (upholding a court’s finding of dissipation even though the wife
did not expressly charge the husband with dissipation where her attorney presented
evidence on the question and the husband had the opportunity to refute the claim); In re
Marriage of Davis, 215 Ill. App. 3d 763 *** (1991) (finding that the wife did not forfeit
her claim of dissipation where the record showed that the husband ‘knew from the start of
trial’ that she intended to assert the claim).
We recognize that the statutory amendment would change the results of these cases,
particularly those in which the court found dissipation sua sponte, because the notice
required by the statutory amendment is mandatory. See 750 ILCS 5/503(d)(2)(i) (West
2014) (providing that the requisite notice “shall” be given (emphasis added)). However,
we also recognize that the facts underlying claims of dissipation often remain hidden until
they are uncovered during the process of discovery or even through testimony at trial. See,
e.g., In re Marriage of Zweig, 343 Ill. App. 3d 590, 599 *** (2003) (describing evidence
that the wife ‘secreted away’ marital assets). We therefore believe that a claim of
dissipation should be considered as long as it complies with the express requirements of
the statute and also comports with the notions of fairness that animated [previous decisions
prior to the amendment].” (Emphasis added.) 2019 IL App (5th) 170295, ¶¶ 75-76.
¶ 134 The facts of this case fall somewhere in the middle of the situation described in Hamilton.
Clearly there are issues of timeliness, as Nawara’s notice was filed on July 5, 2019, which was
three days prior to the start of trial. The record also reflects that the official discovery closure
deadline was May 31, 2019. Thus, Nawara’s notice was technically untimely with regard to the
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discovery deadline cutoff (thirty-five days past) and the start of trial (three days prior trial, and not
the required sixty days per the statute).
¶ 135 But as shown throughout these proceedings, nothing about this case could be that simple.
To begin, the record reflects that the parties agreed to continue discovery past the deadline to take
the parties’ depositions, although there is no indication that a formal deadline was ever set between
them. The court addressed this agreement during an August 26, 2019 hearing, where it observed
that although the parties were able to make agreements regarding depositions, no written discovery
could be issued past the deadline without violating the court’s order. This comment was reiterated
by the court again in its order on Frank’s motion to reconsider, in which the court wrote that
discovery had closed on May 31, 2019, and that whatever stipulations the parties may have agreed
to had not been “effective” at modifying the court’s previously ordered deadline.
¶ 136 Nevertheless, we observe that the court’s strenuous adherence to discovery deadlines
appears to run counter to its decision regarding the timeliness of Nawara’s notice. In its order
addressing Frank’s motion to reconsider, the court rejected Frank’s timeliness argument by
maintaining that it had already made a dissipation ruling on May 23, 2019, during the hearing for
Nawara’s motion for temporary maintenance, when it first learned that Frank had not been renting
the Delaware property. The court reasoned, “it [was] of no moment that Nawara’s claim for
dissipation was formally issued after the date of the closure of discovery.” Thus, the court appeared
to make what it calls its initial dissipation finding sua sponte.
¶ 137 Ultimately, we do not find Nawara’s argument, or the trial court’s attempt to save its
dissipation ruling, to be persuasive. It is true that, pursuant to Supreme Court Rule 218, that parties
may agree to modify deadlines related to trial procedure. See Ill. S. Ct. R. 218(c) (eff. July 1, 2014)
(“All dates set for the disclosure of witnesses, including rebuttal witness, and the completion of
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discovery shall be chosen to ensure that discovery will be completed no later than 60 days before
the date on which the trial court reasonably anticipates that trial will commence, unless otherwise
agreed by the parties.”). (Emphasis added.) However, the goal of the rule is to “prevent the
potential for discovery abuse and delay which might otherwise result.” See Ill. S. Ct. R. 218,
Committee Comments (rev. June 1, 1995). As such, the purpose of Rule 218 is to allow the parties
a full and fair opportunity to litigate their case, eliminate surprise and unfairness, and prevent last-
minute, frantic pleadings, which are unfortunately demonstrated throughout the course of this
litigation by both parties. See Florez v. Northshore University Healthsystem, 2020 IL App (1st)
190465, ¶ 57. Here, the record reflects that the trial court extended the parties’ discovery deadlines
multiple times during the course of the case’s four-year duration prior to trial beginning on July 8,
2019. The trial court’s understandable frustration with the parties is reflected within the report of
proceedings, as it consistently reminded the parties of the case’s duration on its docket. Thus, in
that regard, we agree with the trial court that the attempt to extend the discovery deadline was
insufficient and do not find any error on that part.
¶ 138 However, we do not agree with the trial court that Nawara’s untimely notice was of “no
moment” due to its previous purported finding of dissipation prior to trial. Although the Act is to
be liberally construed to promote its underlying purposes, we are mindful that dissolution
proceedings are “entirely statutory in nature and origin,” and courts must exercise their powers
within the limit of the Act.” Blum and Koster, 377 Ill. App. 3d at 526; see also Ignatius, 338 Ill.
App. 3d at 657 (“[A] trial court’s authority to act in dissolution proceedings is conferred only by
statute” and a “trial court may not rely upon its general equity powers.”). Nawara’s motion for
temporary maintenance did not include a notice, let alone even a request for finding of dissipation
of assets for the Delaware property. Moreover, the interim maintenance order issued after the
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hearing also did not include a finding of dissipation. Nor could it have, because there had been no
evidence presented concerning that issue other than general questioning by the court, and Frank
was not given time to rebut the dissipation claim as the nature of the temporary maintenance
hearing was, as correctly noted by the court, summary in nature.
¶ 139 Going further, the trial court made no mention of the governing statutory provision in
addressing the untimeliness of the notice, and attempted to justify its decision on the basis that it
had already made such a finding. Putting aside the fact that the court’s purported finding during
that hearing was made without any allowance for Frank to rebut any prima facie finding that
Nawara had raised the dissipation claim effectively, which we do not find that she did, the trial
court’s authority is dictated by the statute, which requires timely notice, which, as noted in
Hamilton, is mandatory. There is also no evidence that Frank was attempting to withhold
information regarding the Delaware property during the discovery process. See Hamilton, 2019 IL
App (5th) 170295, ¶ 76. Indeed, almost four years passed between the petition’s filing and the start
of trial, which certainly gave both parties enough time to engage in discovery concerning any
potential dissipation. Thus, although it is clear that the unambiguous statutory requirements
governing dissipation claims were not followed, it is also worth noting that the court’s finding for
dissipation does not comport with fundamental fairness considerations. See Hamilton, 2019 IL
App (5th) 170295, ¶¶ 75-76 (“We therefore believe that a claim of dissipation should be considered
as long as it complies with the express requirements of the statute and also comports with the
notions of fairness that animated [previous decisions prior to the amendment].”
¶ 140 Thus, we find that Nawara’s notice for dissipation of assets was untimely and therefore
procedurally improper. As such, we do not otherwise address the trial court’s substantive ruling
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on this issue, except to note that the dissipation award of $35,525 as to the Delaware property is
reversed. Upon remand, the trial court is ordered to credit the $35,525 back to Frank. 31
¶ 141 b. Life Insurance Designation
¶ 142 Next, Frank contends that the court’s order requiring him to maintain Nawara as a
beneficiary on his life insurance policy was in error. According to Frank, the court improperly
ordered her re-designation in order to “secure his maintenance obligations,” which ultimately
results in a “windfall” to Nawara. Second, Frank argues that insurance coverage is not a marital
asset, citing In re Marriage of Mullins, 121 Ill. App. 3d 86 (1984) in support, and even assuming
it was, Nawara did not list it as such in her closing statement. Finally, Frank contends that, because
his policy ends upon his retirement, the requirement is not maintainable and unable to be modified
pursuant to section 510(b) of the Act.
¶ 143 Initially, Nawara responds that any argument about the policy is waived, as Frank did not
raise it in his closing argument or in his motion to reconsider. Next, Nawara contends that Frank’s
characterization of the award misstates the trial court’s ruling, which does not provide that the
policy is in place to secure Frank’s maintenance obligations. Finally, Nawara asserts that section
503(b-5)(1) of the Act expressly allows for the trial court to allocate death benefits of an existing
group term life policy.
31 We note, however, that dissipation is generally calculated beginning when the “marriage began undergoing an irretrievable breakdown.” (Emphasis added.) 750 ILCS 5/503(d)(2)(ii) (West 2016); see also In re Marriage of O’Neill, 138 Ill. 2d 487, 491 (1990) (interpreting previous version of the dissipation provision that utilized the word “irreconcilable” instead of “irretrievable,” and holding that dissipation may only be found where marital property is utilized by one spouse “at a time that the marriage is undergoing an irreconcilable breakdown.”) (Emphasis added.) Here, the trial court found that dissipation of the Delaware property occurred on or beginning around September 2015, but in its dissolution judgment also noted that the “parties [had] been separated and living separately since June of 2015” without any specific date as to the date of irretrievable breakdown. Consequently, Nawara’s petition, filed in September 2015, is considered to have been filed after the marriage broke down.
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¶ 144 We first address whether Frank’s challenge to the life insurance benefit has been waived.
Although Nawara did not provide any detailed discussion regarding the policy in her closing
argument, she listed it on page 61 of her submission and further requested him to designate her as
a beneficiary. Notably, Nawara did not ask for the life insurance policy to serve as a security for
maintenance payments. Interestingly, despite providing brief testimony regarding the policy at
trial, Frank did not include it in his own closing argument, and did not raise it as an issue in his
motion to reconsider, even though the dissolution judgment expressly provided that he was to
maintain a $300,000 life insurance policy with Nawara as a beneficiary. Thus, it appears that Frank
has raised the issue of life insurance for the first time on appeal.
¶ 145 Accordingly, we agree with Nawara that the issue has been waived. Even if we were to
consider the substance of the order, contrary to Frank’s contention, as noted prior, section 503(b-
5) of the Act allows the trial court to allocate assignments of death benefits for life insurance
policies if they constitute marital property, although we are also mindful that the court did not list
the policy as a marital asset in its dissolution judgment. See 750 ILCS 5/503(b-5) (West 2016);
750 ILCS 5/503(f)(1) (West 2022). In addition, the statute at both the time of the petition’s filing
and its current version also allows for an insurance policy to serve as a security for maintenance
obligations. See 750 ILCS 5/504(f) (West 2014), (West 2022) (“An award ordered by a court upon
entry of a dissolution of judgment or upon entry of an award of maintenance *** may be
reasonably secured, in whole or in part, by life insurance on the payor’s life on terms as to which
the parties agree or, if the parties do not agree, on such terms determined by the court[.]”); see also
Walker, 386 Ill. App. 3d at 1047 (noting that sections 503 and 504 of the Act are “sufficiently
broad to allow the trial court to award a form of security for a maintenance obligation, not
necessarily limited to life insurance.”).
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¶ 146 c. Reimbursement of Health Insurance Premiums
¶ 147 For his last argument concerning the marital estate, Frank argues that the trial court erred
by requiring him to reimburse Nawara for her health insurance payments incurred after he
temporarily removed her from his plan. Preliminarily, Frank points out that Nawara listed her
health insurance expenditures as “dissipation” and that, assuming the dissipation notice is found
to be improper, such a request should also be stricken. Additionally, Frank argues that there is no
statutory authority to “compensate” Nawara for her expenditures because “marital distributions
are supposed to be without consideration of fault” and thus is an “improper” “compensation
award.” Further, Frank continues, the court erred in ordering him to pay her expenses out his share
of the marital property following dissolution, when, if health insurance is a marital asset, such
expenditures should have been reimbursed by marital money.
¶ 148 Nawara replies that Frank has also waived this issue, as he failed to challenge the trial
court’s finding in the motion to reconsider. Substantively, Nawara argues that the court properly
ordered Frank to reimburse her for health insurance premiums incurred after he removed her from
his employer health plan without consent.
¶ 149 We again return to the issue of waiver. Although it is true that Frank did not challenge the
court’s health insurance ruling in its dissolution judgment, Frank objected to Nawara’s initial
request in a response filing and attached counter-affidavit. Frank’s counsel also made arguments
concerning health insurance during in-court proceedings during the temporary maintenance
hearing. Thus, it does appear that Frank did challenge this issue in the trial court, albeit not artfully,
and thus we turn to the merits of the parties’ arguments.
¶ 150 Section 503(b)(2) characterizes certain pension benefits as marital property if either
“acquired by or participated in by either spouse after the marriage and before a judgment of
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dissolution” as “marital property.” 750 ILCS 5/503(b)(2) (West 2016). “A spouse may overcome
the presumption that these pension benefits are marital property by showing clear and convincing
evidence that the pension benefits” are otherwise non-marital property. Id.
¶ 151 Here, the trial court ordered Frank to restore Nawara to his health plan and reimburse her
for costs in its May 23, 2019 ruling and subsequent order following the temporary maintenance
hearing, and the court reiterated this finding in its dissolution judgment. Frank does not argue that
his health plan was non-marital property, but rather challenges the court’s authority to require him
to reimburse Nawara for her healthcare expenses. As Frank did not overcome the presumption that
such benefits are not marital property, and section 503(b)(2) encompasses such benefits, we cannot
say it was unreasonable for the trial court to require reimbursement of such costs that Nawara
incurred when he removed her from the plan, as she did not have her own at the time. See In re
Keon C., 344 Ill. App. 3d 1137, 1146 (2003) (“The trial court has discretion to order payment of a
health insurance premium,” and such a finding “will not be disturbed on review absent an abuse
of discretion.”); see also Evanoff & Tomasek, 2016 IL App (1st) 150017, ¶ 53 (even where there
are discernible guidelines regarding contingent medical expenses not covered by insurance, the
trial court still has discretion to order the payment of uncovered and extraordinary medical
expenses).
¶ 152 We further note that, although Frank contends that he was unable to challenge any of
Nawara’s medical expenses during the temporary maintenance hearing, he did not make an effort
to challenge them at trial, despite being directly asked about them during his testimony. His
explanation for why he removed her was that she was “abusing” his healthcare plan, but there is
no evidence in the record to suggest that such activities occurred. Accordingly, we do not find that
the trial court abused its discretion in requiring Frank to reimburse Nawara for her incurred health
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care expenses. See Schmidt, 242 Ill. App. 3d at 974 (trial court did not abuse its discretion in
requiring husband who carried health insurance policy to incur wife’s medical expenses); see also
Evanoff & Tomasek, 2016 IL App (1st) 150017, ¶¶ 53-54 (affirming trial court’s ruling of spouse
to reimburse uncovered medical expenses based in part on parties’ financial situations).
¶ 153 With regard to Frank’s argument, in assuming that we find reimbursement to be proper,
that such expenditures should be paid out of the marital estate, we observe the one case cited by
Frank in support of this proposition is In re Marriage of Heroy, 385 Ill. App. 3d 640 (2008).
However, as correctly noted by Nawara, Heroy is distinguishable on its facts. In Heroy, appellant
spouse sought reversal of the trial court’s retroactive temporary maintenance award on multiple
bases. Id. at 658-60. Although the appellate court affirmed the ultimate conclusion that retroactive
maintenance was proper, it agreed with the appellant that the amount to be paid should come from
the marital estate, rather than the husband’s post-division share. Id. at 659-60. Here, in contrast,
all health insurance expenditures paid by Nawara were due to Frank’s improper actions of
removing her from his plan prior to dissolution, and thus causing her to incur expenses that would
not have been otherwise borne by the marital estate. Thus, we do not find Heroy applicable to the
circumstances here, and do not find any error. As such, we further affirm the trial court on this
basis.
¶ 154 3. Maintenance – Temporary and Term
¶ 155 Having disposed of the marital property distribution issues, we turn to the other half of
Frank’s appeal concerning the trial court’s maintenance determinations. Specifically, he
challenges: (1) the trial court’s income imputation of $25,000 to Nawara; (2) its finding that
Nawara’s receipt of $145,000 constituted a gift and not income for purposes of maintenance
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calculation; and (3) its imposition of retroactive maintenance to the date of the petition’s filing.
We again begin with the relevant portions of the Act.
¶ 156 a. Section 504 (Maintenance)
¶ 157 The Act governs the awarding of a temporary maintenance award (750 ILCS 5/501 (West
2016)) and a more permanent award following a dissolution judgment. 750 ILCS 5/504(a) (West
2016). Generally, courts are empowered to determine entitlement to and details concerning a
maintenance award for “either spouse in amounts and for periods of time as the court deems just[.]”
750 ILCS 5/504(a) (West 2016). The maintenance award “may be paid from the income or
property of the other spouse.” Id. “Maintenance is designed to allow the recipient former spouse
to maintain the standard of living enjoyed during the marriage.” In re Marriage of Johnson, 2016
IL App (5th) 140479, ¶ 93. The statute defines three types of maintenance based on the length of
their terms. See 750 ILCS 5/504(b-4.5) (West 2016). Such types include “fixed-term
maintenance,” “indefinite maintenance,” and “reviewable maintenance.” Id. § 504(b-4.5)(1)-(3).
Relevant here, “fixed-term maintenance” is where the court “designate[s] the termination of the
period during which this maintenance is to be paid” and is then barred at the end of such period.
Id. § 504(b-4.5)(1).
¶ 158 Additionally, because maintenance “is designed to allow the recipient former spouse to
maintain the standard of living enjoyed during the marriage,” courts also characterize maintenance
awards based on their specific purpose. Johnson, 2016 IL App (5th) 140479, ¶ 93. The common
characterizations are “permanent maintenance, rehabilitative maintenance for a fixed term,
rehabilitative maintenance subject to review, and maintenance in gross.” In re Marriage of Chapa,
2022 IL App (2d) 210772, ¶ 38. Relevant here are the concepts of permanent and rehabilitative
maintenance. “Rehabilitative maintenance is appropriate where the evidence shows a potential for
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future employability at an income that allows approximately the same standard of living
established during the marriage.” Johnson, 2016 IL App (5th) 140479, ¶ 93. “Inherent in the
concept of rehabilitative maintenance is the ultimate goal that after renewing or developing skills,
or reentering the job market, the recipient former spouse will be able to become self-sufficient
through her own income.” Id.
¶ 159 In contrast, a permanent maintenance award is appropriate “where it is evident that the
recipient former spouse is either unemployable or has employment skills[,] but there is a
discrepancy between her probable future income and the amount of income that would provide the
standard of living she enjoyed during the marriage.” Id.; see also Walker, 386 Ill. App. 3d at 1044
(“[P]ermanent maintenance should be awarded where a spouse is not employable or is only
employable at a lower income as compared to the spouse’s previous standard of living” and a
“spouse should not be required to lower the standard of living established in the marriage as long
as the payor spouse has sufficient assets to meet his [or her] needs and the needs of his former
spouse.”). In addition, permanent maintenance is generally appropriate where a spouse has devoted
significant time to raising a family instead of pursuing a career.” Johnson, 2016 IL App (5th)
140479, ¶ 93. Overall, a maintenance award, whether temporary or permanent in nature, must be
reasonable, which will depend on the case’s individual circumstances. Heroy, 385 Ill. App. 3d at
652.
¶ 160 i. Determination of a Maintenance Award
¶ 161 The Act’s maintenance provisions were amended in 2015. See Pub. Act 99-90, § 5-15 (eff.
Jan. 1, 2016) (amending 750 ILCS 5/504); see also In re Marriage of Burdess, 2020 IL App (3d)
190342, ¶ 16; see also Johnson, 2016 IL App (5th) 140479, ¶ 108. Prior to amendment, courts
used statutory factors to determine whether to award maintenance, and if appropriate, its amount
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and duration. Burdess, 2020 IL App (3d) 190342, ¶ 16. The amended statute still uses similar
factors, but now calculates the amount and duration of the award based on guideline formulas set
forth therein that include income ranges and statutory caps. See Id.; see also In re Marriage of
Cole, 2016 IL App (5th) 150224, ¶¶ 7-8 (discussing changes to the Act). The trial court must make
specific findings of fact for any maintenance determinations, including its reasons for awarding or
not awarding it, based on the relevant statutory factors. 750 ILCS 5/504(b-2), (b-2)(1) (West 2016).
The court must also make findings and explain its reasoning when it deviates from the statutory
guidelines, and if so and further determinable, what the amount and duration of the award would
have been as required from the guidelines. See 750 ILCS 5/504(b-2)(2) (West 2016). Finally, the
court must state whether the award is fixed-term, indefinite, reviewable, or reserved. 750 ILCS
5/504(b-2)(3) (West 2016).
¶ 162 “Determining the propriety, amount, and duration of a maintenance award is within the
trial court’s discretion.” Johnson, 2016 IL App (5th) 140479, ¶ 93. When a party challenges the
trial court’s factual findings regarding maintenance, a reviewing court will affirm unless the
court’s findings were clearly against the manifest weight of the evidence. In re Marriage of Brill,
2017 IL App (2d) 160604, ¶ 30. “Findings are against the manifest weight of the evidence where
the opposite conclusion is clearly evident or where the court’s findings are unreasonable, arbitrary,
and not based on any of the evidence.” (Internal quotations omitted.). Id. However, the court’s
ultimate decision to award maintenance will not be reversed on appeal absent an abuse of
discretion.” Walker, 386 Ill. App. 3d at 1041; see also Johnson, 2016 IL App (5th) 140479, ¶ 93.
“An abuse of discretion occurs when no reasonable person would adopt the view taken by the trial
court.” Walker, 386 Ill. App. 3d at 1041.
¶ 163 ii. Whether a Maintenance Award is Appropriate
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¶ 164 As noted prior, in determining whether maintenance should be awarded, the court must
evaluate the case based on relevant statutory factors contained in section 504(a) of the Act. See
750 ILCS 5/504(a) (West 2016). We again observe that here, the trial court made express findings
as to section 503’s factors when determining the marital estate, and although some of those factors
overlap with those in section 504(a), they are not entirely the same.32 Further, some of the factors
cannot be ascertained without the court first determining what constitutes marital and non-marital
property. See e.g., 750 ILCS 5/504(a)(1) (“[T]he income and property of each party, including
marital property apportioned and non-marital property assigned to the party seeking
maintenance[.]”). (Emphasis added.) Thus, we now recite section 504(a)’s factors in full here,
which include:
“(1) the income and property of each party, including marital property apportioned
and non-marital property assigned to the party seeking maintenance[,] as well as all
financial obligations imposed on the parties as a result of the dissolution of marriage;
(2) the needs of each party;
(3) the realistic present and future earning capacity of each party;
(4) any impairment of the present and future earning capacity of the party seeking
maintenance due to that party devoting time to domestic duties or having foregone or
delayed education, training, employment, or career opportunities due to the marriage;
(5) any impairment of the realistic present or future earning capacity of the party
against whom maintenance is sought;
32 However, so long as “the basis for an award of maintenance is established in the record, it is not mandatory that the trial court make explicit findings for each of the statutory factors.” (Emphasis added.) Blum and Koster, 235 Ill. 2d at 38.
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(6) the time necessary to enable the party seeking maintenance to acquire
appropriate education, training, and employment, and whether that party is able to support
himself or herself through appropriate employment;
(6.1) the effect of any parental responsibility arrangements and its effect on a
party’s ability to seek or maintain employment;
(7) the standard of living established during the marriage;
(8) the duration of the marriage;
(9) the age, health, station, occupation, amount and sources of income, vocational
skills, employability, estate, liabilities, and the needs of each of the parties;
(10) all sources of public and private income including, without limitation,
disability and retirement income;
(11) the tax consequences to each party;
(12) contributions and services by the party seeking maintenance to the education,
training, career or career potential, or license of the other spouse;
(13) any valid agreement of the parties; and
(14) any other factor that the court expressly finds to be just and equitable.” 750
ILCS 5/504(a)(1)-(14) (West 2016).
¶ 165 “Trial courts have wide latitude in considering which factors should be used in determining
reasonable needs, and the court is [also] not limited to the factors listed in the statute.” Brill, 2017
IL App (2d) 160604, ¶ 28. “No single factor is determinative of the propriety of a maintenance
award.” Id.
¶ 166 iii. Calculating the Maintenance Award
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¶ 167 Once a court finds that maintenance is appropriate, it then determines the amount of the
award based on the guidelines set forth in the statute. 750 ILCS 5/504(b-1), (b-1.5), (b-2) (West
2016). The initial calculation is based on the parties’ “combined gross annual income,” which is
capped at $500,000, in conjunction with any other child support or other maintenance obligations.
Id. § 504(b-1)(1) (West 2016). Specifically, if application of the guidelines results in a “combined
maintenance and child support obligation that exceeds 50% of the payor’s net income,” the court
is then allowed to deviate from the statutory formula based on its prior assessment of the relevant
maintenance factors. Id. If the combined gross annual income is less than $500,000, maintenance
is calculated by taking 33 1/3 % of the payor’s net annual income, and then subtracting 25% of the
payee’s net annual income from that amount. Id. § 504(b-1)(1)(A) (West 2016). If that total sum
is in excess of 40% of the combined net income of the parties, the court must adjust the amount
accordingly. The court’s determination of the parties’ income is a factual matter and will not be
disturbed absent an abuse of discretion. Evanoff & Tomasek, 2016 IL App (1st) 150017, ¶ 23.
¶ 168 iv. Calculating the Duration of the Maintenance Award
¶ 169 Finally, the court must determine the duration of the award, which is primarily based on
the marriage’s duration. 750 ILCS 5/504(b-1)(1)(B). Relevant here, “[f]or a marriage of 20 or more
years, the court, in its discretion, shall order maintenance for a period equal to the length of the
marriage or for an indefinite term.” Id.
¶ 170 b. Whether Nawara’s $145,000 Was a Gift, Not Income
¶ 171 Frank contends that the trial court erred in failing to include $145,000 in gifts from
Nawara’s family as income for maintenance calculations. According to Frank, Illinois law is clear
that gift income is still “income” under the Act, even in the event of a one-time gift, citing: In re
Marriage of Dahm-Schell and Schell, 2021 IL 126802; In re Marriage of Rogers, 213 Ill. 2d 129
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(2004); In re Marriage of Verhines & Hickey, 2018 IL App (2d) 171034; and In re Marriage of
Walker, 386 Ill. App. 3d 1034 (2008), in support. Frank points out that Nawara received at least
$30,000 from her godfather, thus indicating that this was not a one-time event.
¶ 172 Nawara responds that the “two isolated gifts” from her family do not constitute “income”
pursuant to our supreme court’s decision in Rogers, and instead proffers In re Marriage of Brill,
2017 IL App (2d) 160604, as more applicable. Specifically, Nawara points out that the gifts in
Rogers were annual gifts over many years which constituted “dependable annual income,” whereas
here, the gifts she received from her mother and godfather were funds used to support her after
Frank refused to contribute to her expenses. Nawara further argues that there is no evidence that
her family will continue to assist her throughout the rest of her adult life.
¶ 173 The issue of the $145,000 was first considered by the trial court following Frank’s motion
to reconsider, after he raised the issue in his reply brief. Therein, the court rejected Frank’s
argument that the money should have been included in Nawara’s income computation, as it
characterized the $145,000 as a “one-time thing” and that Nawara was not “counting on a monthly
subsidy from her family” in order for it to be considered income. The court further distinguished
the $145,000 from that of regular gifts as discussed in the case of In re Marriage of Ruvola, 2017
IL App (2d) 160737.
¶ 174 Determination of what constitutes a gift versus what is income is, unfortunately, another
twist and turn of various overlapping statutory provisions and Illinois case law, notwithstanding
the various amendments to the statute that have occurred multiple times throughout the years.
Preliminarily, because whether an item constitutes income for purposes of maintenance is
determined based on the statute’s pronouncements, we review the trial court’s determination here
on a de novo basis. Ruvola, 2017 IL App (2d) 160737, ¶ 18.
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¶ 175 As noted prior, Section 504 of the Act governs entitlement to maintenance based on a
variety of factors, such as “the income and property of each party, including marital property
apportioned and non-marital property assigned” (750 ILCS 5/504(a)(1) (West 2016) (emphasis
added)), and “all sources of public and private income including, without limitation, disability and
retirement income.” 750 ILCS 5/504(a)(10) (West 2016). Maintenance awards are further
determined by the “gross annual income” and “net annual income” of the parties. (Emphasis
added.) See 750 ILCS 5/504(b-1)(1), 504(b-1)(1)(A) (West 2016). We turn first to those statutory
definitions to begin our inquiry.
¶ 176 i. Gifts and Property
¶ 177 Section 504 does not define “property” on its own. However, we know that section 503,
which governs the distribution of the marital estate, provides some clues as to what is marital and
non-marital property, and we must presume that the legislature intended these two sections to be
read together harmoniously. See In re Jarquan B, 2017 IL 121483, ¶ 34 (collecting cases espousing
well-established principle that courts have a duty to interpret statutes in a manner that avoids an
inconsistency and gives effect to both, where such an interpretation is reasonably possible).
However, we are also mindful that section 504’s definition of “property and income” may indeed
be more expansive than just marital and non-marital property, given that the two are listed after
the clause “including” in section 504(a)(1). Thus, we may resort to dictionary definitions as further
guides for interpretation if need be. See People v. Chapman, 2012 IL 111896, ¶ 24 (“When a
statute contains a term that is not specifically defined, it is entirely appropriate to look to the
dictionary to ascertain the plain and ordinary meaning of the term.”).
¶ 178 With these principles in mind, we turn to section 503. “Non-marital property” is defined
therein, with section 503(a)(1) stating that non-marital property is “property acquired by gift,
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legacy or descent or property exchanged for such property[.]” (Emphasis added.) 750 ILCS
5/503(a)(1) (West 2016). “A valid gift requires proof of donative intent and delivery of subject
matter,” and “[d]onative intent is often presumed if the transfer was from a parent to a child.”
Schmidt, 242 Ill. App. 3d at 968. However, there is a “conflicting presumption” under the Act if
such a gift is acquired after the marriage. Id. A party must defeat the presumption of the gift being
characterized as marital property through clear and convincing evidence. 750 ILCS 5/503(b)(1)
(West 2016).
¶ 179 Notably, courts have been “rightly skeptical” of gifts that include “transfers by the parents
of one of the litigants in a dissolution case,” as “there is an incentive for both sides of the transfer,
the parents making it and the litigant receiving it, to conform their testimony to the disadvantage
of the other litigant.” Schmidt, 242 Ill. App. 3d at 968. “Transfers where the parents would never
have sought repayment, if the marriage had remained intact, may be viewed from a different
perspective when the marriage falls apart.” Id. Further, “[i]f such a transfer were a gift it could be
a gift to the marriage, thereby resulting in marital property, or it could be a gift to only one of the
litigants, thereby resulting in nonmarital property.” Id. at 968-69.
¶ 180 ii. “Income”
¶ 181 Looking towards the meaning of “income,” again, the statute does not provide a standalone
definition, but the terms “gross income” and “net income” are defined in section 504. “Gross
income” is defined as “all income from all sources, within the scope of that phrase in Section 505
of the Act, except maintenance payments in the pending proceedings[.]” 750 ILCS 5/504(b-3)
(West 2016). “Net income” is defined similarly with reference to section 505, stating that it has
“the meaning provided in section 505 of this Act, except maintenance payments in the pending
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proceedings shall not be included.” 750 ILCS 5/503(b-3.5) (West 2016). Thus, we must look to
section 505 to further supplement section 504’s definitions.
¶ 182 Section 505 is within the same statutory scheme, but expressly governs child support
obligations that often run in tandem with dissolution proceedings. See 750 ILCS 5/505 (West
2016). It also does not provide a standalone definition of “income,” but like section 504, its current
version defines “gross income” and “net income.”33
¶ 183 Section 505(a)(3)(A) provides:
“As used in this Section, ‘gross income’ means the total of all income from all
sources, except ‘gross income’ does not include: (i) benefits received by the parent from
means-tested public assistance programs *** or (ii) benefits and income received by the
parent for other children in the household, including, but not limited to, child support,
survivor benefits, and foster care payments. *** *** ***. ‘Gross income’ includes
maintenance treated as taxable income for federal tax purposes to the payee and received
pursuant to a court order in the pending proceedings or any other proceedings and shall be
included in the payee’s gross income for purposes of calculating the parent’s child support
obligations.” 750 ILCS 5/503(a)(3)(A) (West 2022).
¶ 184 “Gross income” is then used to determine “net income,” which is defined in section
503(a)(3)(B) as:
33 Notably, the 2016 version of the statute did not include a differentiation between “gross” and “net” income; rather, only “net income” was defined. In 2017, the statute was amended to specifically define the two terms. See Pub. Act 99-764, § 5 (eff. July 1, 2017) (amending 750 ILCS 5/505(a)(3); see also Pub. Act 100-15, § 5 (eff. July 1, 2017) (same, with some clarifications). These provisions were further amended again by Pub. Act 100-923, § 10 (eff. Jan. 1, 2019) (amending 750 ILCS 5/505(a)(3) to further define “net income”). All major changes to this provision were in effect at the time the court calculated its maintenance determinations here.
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“Gross income minus the standardized tax amount calculated pursuant to [section
503(a)(3)(C)] or the individualized tax amount calculated pursuant to [section
503(a)(3)(D)], and minus any adjustments pursuant to [section 503(a)(3)(F)]. *** ‘Net
income’ includes maintenance not includable in the gross taxable income of the payee for
federal income tax purposes *** and shall be included in the payee’s net income for
purposes of calculating the parent’s child support obligations.” 750 ILCS 5/505(a)(3)(B)
(West 2022).
¶ 185 Given the highly technical and dense nature of these statutory definitions, as well as the
various overlapping provisions, we are fortunate that our supreme court has provided guidance on
this issue, beginning with whether gifts received by a payor of child support maintenance could
constitute “income” for purposes of maintenance obligations pursuant to section 505. Specifically,
in In re Marriage of Rogers, 213 Ill. 2d 129 (2004), our court considered whether the definition of
“net income” under a prior version of section 505 could include loans and gifts received by the
payor spouse from his family, which would then in turn affect his child support obligations. Id. at
135. The court first observed that, per the statute, in order to calculate “net income,” it needed to
ascertain “the total of all income from all sources” received by the parent. Id. at 136. Because the
statute did not separately define “income,” the court looked to the word’s plain and ordinary
meaning. Id. The court referenced various dictionaries, which defined “income” as “something
that comes in as an increment or addition,” “a gain or recurrent benefit that is usually measured in
money,” “the value of goods and services received by an individual in a given period of time,” and
as “the money or other form of payment that one receives, usually periodically, from employment,
business, investments, royalties, gifts and the like.” Id. at 136-37. The court further compared the
definition of “income” under section 505(a)(3) to that contained in the Internal Revenue Code, and
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determined that items that would be considered taxable under the child support statute would not
be ordinarily taxable at the federal level. Id. at 137.
¶ 186 Thus, based on its reading of the statute and the former definitions, our supreme court
ultimately concluded that the father’s gifts that he received from his parents constituted “income,”
and subsequently, “net income,” for purposes of child support calculations. Id. The court reasoned
that even if the gifts may not be subject to federal taxation, the gifts nonetheless “represented a
valuable benefit to the father that enhanced his wealth and facilitated his ability to support” his
children. Id. The court further rejected the father’s argument that there was no guarantee that he
would continue to receive such monetary gifts in the future, because “[f]ew, if any sources of
income are certain to continue unchanged year in and year out” and that “people can lose their
jobs, interest rates can fall, [and] business conditions can wipe out profits and dividends.” Id. at
138. The court observed that the “relevant focus under section 505 [was] the parent’s economic
situation at the time the child support calculations [were] made by the court[,]” and that its review
of the record showed, by the father’s own testimony, that the gifts from his parents “represent[ed]
a steady source of dependable annual income *** he ha[d] received over the course of his adult
life.” Id. Moreover, the court continued, “the nonrecurring nature of an income stream is not
irrelevant.” Id. at 139. Indeed, the court stated that if there was evidence to show that a parent was
unlikely to receive such payments in the future, the court was able to consider that and deviate
from the statutory guidelines if need be, citing to the 2002 version of section 505(a)(2). Id. Finally,
the court noted that such payments could be modified pursuant to section 510 of the statute. Id.
¶ 187 Following Rogers, our supreme court expanded its definition of “income” in child support
proceedings to that of maintenance obligations in In re Marriage of Dahm-Schell and Schell, 2021
IL 126802. The court considered a certified question and an issue of first impression, namely
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whether “mandatory distributions or withdrawals from an inherited retirement account (IRA) that
ha[d] never been imputed against the recipient for the purposes of maintenance and child support
calculations constitute ‘income’ under 750 ILCS 5/504(b-3) (West 2018) and 750 ILCS
5/505(a)(3) (West 2018).” Id. ¶ 32.
¶ 188 Preliminarily, the court observed that the term “income” had been held by courts to be a
“broad and expansive definition.” Id. ¶ 39. Further, the court stated that the term “ ‘income’ has
the same meaning with regard to maintenance and child support” because the statutory definition
of “gross income” for maintenance purposes pursuant to section 504(b-3) was virtually the same
as the definition of “net income” for child support purposes under section 505(a)(3). Id. The court
also cited approvingly its previous definitions of “income” in Rogers, including the fact that gift
payments, even when non-recurring, could still support a finding of it being income. Id. ¶ 40.
Ultimately, the court determined that the inherited IRAs “were a gain and benefit” to the father,
which “facilitated his ability to meet his child support and maintenance obligations.” Id. ¶ 54. As
such, the court determined that “the receipt of mandatory distributions and withdrawals from the
inherited IRAs” were included in the “statutory definition of ‘income’ for purposes of calculating
his support obligations” for both child support and maintenance. Id.
¶ 189 Our takeaway from Rogers and Dahm-Schell is that the definition of “income” is broad,
and that the recurring, or nonrecurring nature, of a given money source is relevant to the extent
which the court deems it so, based on the circumstances of the individual case. However, the
parties point us to two additional cases that they deem relevant to our resolution of whether the
$145,000 must be counted in Frank’s maintenance calculations, both of which were issued only a
few weeks apart and prior to In re Marriage of Dahm-Schell. See In re Marriage of Ruvola, 2017
IL App (2d) 160737, ¶ 19 (noting that at the time, Rogers had only addressed child support
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obligations pursuant to section 505(a)(3) of the Act, versus maintenance obligations pursuant to
section 504(b-1)(1)); In re Marriage of Brill, 2017 IL App (2d) 160604, ¶¶ 35-39 (distinguishing
Rogers based on its assessment of child support obligations, not maintenance, but nevertheless,
finding that gifts received by the payee spouse were considered for purposes of income and support
calculations). However, as Dahm-Schell further clarified thereafter, the definitions of “income”
under either statute are virtually the same, and thus we still find both cases’ discussion of gifts and
income persuasive to our resolution here. We turn first to Ruvola, which was relied upon by the
trial court here in its decision regarding the $145,000.
¶ 190 In Ruvola, the ex-wife and receiver of maintenance payments testified that she had received
weekly checks of $255 in gifts from her father, which amounted to about $13,260 per year and
which she did not always report as income. 2017 IL App (2d) 160737, ¶¶ 14-15. On appeal, the
appellate court agreed with appellant husband that the trial court had failed to include the father’s
weekly checks into its calculation of the wife’s yearly gross income for purposes of maintenance
calculations based on its reading of the statute and our supreme court’s holding in Rogers. Id. ¶¶
18, 20.
¶ 191 In Brill, the appellant husband challenged his maintenance obligations to his ex-wife on
similar grounds, namely that the trial court failed to consider that she received $15,349 annually
from her parents. 2017 IL App (2d) 160737, ¶ 33. The appellate court rejected this claim, finding
that the court had considered the money received from his ex-wife’s parents when it calculated the
duration of the maintenance award. Id. ¶¶ 34-35. The Ruvola court noted that, if the trial court had
strictly adhered to the statutory maintenance guidelines, the ex-wife should have received
maintenance for 270 months. Id. ¶ 35. Instead, the trial court used its discretion and deviated
downward from the guidelines to 96 months, and expressly noted that its decision to do so was, in
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part, based on the financial assistance received from her parents. Id. ¶ 35. However, the court
rejected the appellant’s contention that his case was akin to Rogers, as there was no evidence that
the ex-wife’s parents “had provided her with financial assistance every year of her entire adult
life” and thus did not display the “steady source of dependable annual income” found in Rogers.
Id. ¶ 36.
¶ 192 Returning to our case, the trial court determined that the combined $145,000 given to
Nawara by her mother and her godfather did not constitute income for purposes of maintenance
because, according to the court, the gifts were a “a one-time thing” and Nawara was not expecting
to receive a monthly subsidy from her family. The record reflects that Nawara received two gifts
from her mother and godfather during dissolution proceedings that totaled $145,000. However, it
was also Nawara’s testimony that she had received other monetary gifts from her family during
the course of the marriage prior to the filing of her petition, which was $99,985 from her father in
November 2006; $9,965 from her godfather sometime in 2012; and another $19,000 from her
godfather in December 2012. Nawara further denied receipt of an additional $30,000 from her
godfather, and there is no additional testimony in the record regarding the purpose of those
transfers during a time period where the marriage was likely still intact.
¶ 193 Thus, on the one hand, it appears that Nawara received some money from her family prior
to the beginning of dissolution proceedings, some of which was received prior to her beginning
work at J Discount. However, the $145,000 she received in 2017 and 2018, were received after
she lost her job and during the time in which she was not apparently receiving any financial support
from Frank. Thus, although she perhaps received more than the $145,000 over a period of time
from her family, they do not appear in such a recurring nature as the weekly gifts discussed in
Ruvola, and from our view, do not appear as a reliable source of annual income for Nawara
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throughout the duration of the marriage as in Rogers. Indeed, the large sum of money did not
operate to “enhance [Nawara’s wealth]” as she was unemployed at the time, did not have a
retirement account, and became responsible for the home equity mortgage in 2016. See Rogers,
213 Ill. 2d at 137. When balanced against Nawara’s testimony of attempting to find employment,
which we will discuss later, it appears that Nawara herself did not expect further assistance from
her family. This is significant, because even if a gift could more or less be deemed to be “recurring”
in nature, our supreme court in Rogers has said that the “relevant focus” for support calculations
is the “economic situation at the time” the calculations are made. Id. at 138. Here, the record
demonstrated Nawara’s overall financial status, in which she was unemployed and basically reliant
on her maintenance payments and the $145,000 given to her by her family.
¶ 194 Further, although the court did not make express credibility determinations in either of its
orders, it nevertheless found Nawara to be a candidate for maintenance twice, and we will not
substitute our judgment for that of the trial court which sits in the best position of evaluating
witness testimony and credibility. See Walker, 386 Ill. App. 3d at 1042 (deferring to the trial
court’s finding that husband’s testimony was not credible where he testified that his receipt of a
$31,200 bonus was ‘unusual’ and a ‘one-time thing’ based on his receipt of other bonuses
throughout the years). There is sufficient evidence in the record that the $145,000 was properly
determined to be a gift that was not recurring enough in nature to be considered income for
purposes of maintenance calculations. Accordingly, we do not find that the trial court erred in
excluding the $145,000 from Nawara’s overall income calculation for purposes of assigning
Frank’s maintenance obligations.
¶ 195 c. Whether the Trial Court Correctly Imputed an Income of $25,000 to Nawara
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¶ 196 Next, Frank contends that the trial court erred by not considering Nawara’s earning
potential as a licensed Illinois pharmacist for her income imputation. Frank points out that the
evidence showed that Nawara had previously made around $60,000 annually during various parts
of their marriage, and it was her own testimony that pharmacists had the potential to earn between
$70,000 to $110,000 a year. Frank argues that the court also failed to consider that Nawara was
unemployed based on lackluster attempts to find a job, and that the court attempted to rationalize
Nawara’s unemployment by referencing the COVID-19 pandemic and “present economic
downturn.”
¶ 197 Nawara responds that the evidence supports an income imputation of $25,000. She points
out that she had been a homemaker with only four years of lifetime employment; had never had a
paying job in Syria or prior to marrying Frank; she did not begin to work as a pharmacist in Illinois
until December 2012; she lost her job in 2016 when the pharmacy closed; and has since only had
occasional work as a substitute pharmacist. Nawara further references her documented efforts to
acquire employment, as well as various statistics provided by the U.S. Department of Labor
indicating a negative employment outlook for pharmacists in the United States.
¶ 198 We return to the statute. Section 504(b-2)(2) authorizes the trial court to deviate from the
guideline amount of maintenance based on a variety of factors, one such being the respective
earning capacities of the parties. 750 ILCS 5/504(b-1)(1) (West 2016), Id. § 504(b-1)(2), Id. §
504(b-2)(2), Id. § 504(a)(3). As the trial court did here, a court may impute income to a party upon
a finding that “the party is voluntarily unemployed, is attempting to evade a support obligation, or
has unreasonably failed to take advantage of an employment opportunity.” Ruvola, 2017 IL App
(2d) 160737, ¶ 39 (quoting In re Parentage of M.M., 2015 IL App (2d) 140772, ¶ 44)). A court
may also impute income in cases of voluntary unemployment or underemployment. Id. “The
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amount of income imputed by the court must be supported by evidence showing that it is
commensurate with the *** skills and experience” of the recipient, including income from
previous employment. In re Marriage of Van Hoveln, 2018 IL App (4th) 180112, ¶ 40. “However,
a court should not base its income calculation on outdated data that no longer reflect prospective
income.” Id. (quoting In re Marriage of Liszka, 2016 IL App (3d) 150238, ¶ 47). The decision to
impute income is reviewed under an abuse of discretion standard. Id. ¶ 43.
¶ 199 The trial court first imputed an income of $25,000 to Nawara following the hearing for
temporary maintenance, based on “the limited information [it had] from the respondent [and] ***
petitioner, the arguments by counsel, the financial affidavits, and the verified pleadings.” There,
the court made no mention as to whether it believed Nawara was voluntarily unemployed or
underemployed. Later in its dissolution judgment, although it deemed Nawara a “candidate for
continuing maintenance,” it did not expressly impute any income to her for maintenance purposes,
although the parties considered this to be an imputation of $0. Further, the court’s determination
that maintenance was proper was based on its evaluation of factors under section 503(d), and not
section 504, which expressly governs maintenance calculations. However, the court found that
“Nawara has very little employment history and is at a significant disadvantage in relation to her
future employment prospects given her age, relative lack of work history, and the present economic
downturn, whereas Frank has been employed at a considerable income for most of his entire adult
life.” It further found that:
“ *** [A]t present, Nawara is 53 years old and Frank is 64 years old. While Frank
has been employed throughout his entire adult life, and was able to purchase three
properties in addition to Unit A *** during the parties’ marriage, Nawara was a homemaker
for the majority of their marriage, accumulating a work history of only a few years as a
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pharmacist and having considerable difficulty in securing new employment given her age,
relative lack of work history, overall absence from the workforce during the parties’
marriage, and the economic pressures pertaining to her occupation specifically and to the
economy and workforce more broadly, particularly during this year with the COVID-19
pandemic.”
¶ 200 With regard to the parties’ reasonable opportunities for future acquisition of capital assets
and income, the court found:
“ *** Frank is nearing retirement age; however, he has worked during his entire
adult life for a considerable income and also has considerable retirement assets. On the
contrary, and as this [c]ourt has explained above, neither circumstance applies to Nawara,
and given her age, relative lack of work history, overall absence from the workforce during
the parties’ marriage, and the economic pressures pertaining to her occupation and to the
economy and workforce more broadly, particularly during this year with the COVID-19
pandemic, this [c]ourt finds that Nawara does not have a reasonable opportunity, in the
absence of the provisions of these distribution and maintenance arrangements, to acquire
capital assets and income.”
¶ 201 In its order addressing Frank’s motion to reconsider, the court clarified numerous items in
its dissolution judgment, where it admitted that its maintenance determination was “absen[t]” and
had “effectively imputed a zero income” to Nawara, thus conflicting with its previous imputation.
As such, the court reverted to its previous determination, and noted that despite its finding that
Nawara was “unemployed,” it had “[n]evertheless *** impute[d] to Nawara an annual income of
$25,000.” Again, the court did not expressly detail why it believed $25,000 to be an appropriate
imputation.
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¶ 202 We turn to the record. On May 6, 2016, prior to her termination from J Discount, Nawara
filed a “Disclosure Statement,” which indicated that she had $59,456 in gross income in the
previous year, with an annual monthly gross income of $5,200. She also asserted that she was
paying $1,700 a month on a mortgage, as well as $682 in real estate taxes and $333 in assessments.
She further listed out other household and personal expenses. After calculating the difference
between her monthly income and total living expenses, she estimated her available income per
month as “-$1,257.” She listed her bank accounts but did not have any investment accounts, and
only claimed the two Hinman properties (Unit A and B) and the Lakeview property as real property
assets.
¶ 203 Three years later, in her motion for temporary maintenance, Nawara’s affidavit averred
that: she was currently unemployed; had never had a paying job in Syria or prior to the parties’
marriage; did not become a licensed pharmacist until 2008 following a three-year process to
become qualified; her first paying job was at J Discount in 2015; the pharmacy had closed in
December 2016; and she had applied for many pharmacy jobs without success since. Her testimony
at trial confirmed her limited work experience, with the exception that she had occasionally been
able to obtain short-term work, and had not filed any recent federal tax returns due to her lack of
employment. Nawara’s 2019 financial affidavit further averred that she had received $626 on her
2017 federal tax return, had zero monthly income, and incurred about $5,105 in monthly household
and personal expenses, as well as $625 in health insurance costs. Her total combined assets were
about $200,000 in her checking and savings accounts, including the proceeds of the sale from Unit
B.
¶ 204 With regard to her efforts to find employment, Nawara submitted her resume and various
documents supporting her efforts to find work following her termination from J Discount in
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December 2016. The record reflects applications to employers such as Presence Health,
Walgreens, North Shore University Health System, Ascension, and Shriner’s Hospital over the
course of three years or so. Documents were also submitted demonstrating career coaching and
Linkedin activities, as well as Nawara’s tracking of job-related efforts where she was unable to
provide confirmation of her application. At trial, Nawara admitted that she was not able to provide
evidence of every job she applied for, but began documenting more of her efforts after consultation
with her attorney. She also indicated that she was only seeking work as a pharmacist, and not as a
technician as she no longer held that license.
¶ 205 Frank attempted to rebut Nawara’s income and employment history at trial. He testified to
Nawara having a job in Syria during an undefined time period, which was unsupported by any
other evidence in the record and which Nawara further denied during her examination. He also
testified to conversations with Nawara in which she was apparently adverse to the prospect of
employment, which Nawara also denied. Finally, Frank also attempted to show that Nawara’s
efforts in procuring employment were less than satisfactory, and that she could have mitigated her
lack of income by applying for unemployment insurance. To that end, Nawara testified that she
had been unaware that she was eligible for such benefits.
¶ 206 Although the trial court did not make any express credibility determinations in either of its
orders, based on its factual findings, it appeared to find Nawara credible regarding her efforts to
find employment and desire to work, over Frank’s testimony concerning Nawara’s resistance to
finding employment throughout the marriage. Again, we see no discernible reason to disturb these
implicit findings. See Walker, 386 Ill. App. 3d at 1042 (trier of fact is charged with assessing a
witness’s testimony and credibility at trial, and is in the best position to observe their conduct and
demeanor). Further, although the record is unclear as to why Nawara was first imputed an income
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of $25,000, we acknowledge that such a proceeding is summary in nature and the trial court
expressly noted that its determination was based on the information it had at the time. See 750
ILCS 5/501(a)(3) (West 2016). At trial, the record was far more developed with regard to the
parties’ financial statuses and Nawara’s efforts to find employment. The trial court appeared to
briefly believe that the correct imputation was $0, but nevertheless chose to reverse itself to
maintain its original finding. This could perhaps be attributable to the fact that Nawara has had
some history of employment in a fairly professionalized field, which the court may have taken into
account. See Evanoff & Tomasek, 2016 IL App (1st) 150017, ¶ 29 (reiterating that it is within the
trial court’s discretion to consider prior years of income or average income of previous years of
employment for purposes of support calculations); but see also Van Hoveln, 2018 IL App (4th)
180112, ¶ 40 (trial court should not base its income calculations on outdated data that no longer
reflects prospective income).
¶ 207 What is clear is the court’s findings that, when considering Nawara’s age, very few years
of work history, even if specialized, difficulty in finding a job over the course of many years, and
the fact that Frank had been able to acquire assets during the marriage whereas she had not, Nawara
did not possess the same reasonable opportunities as Frank to acquire further assets and income in
order to “maintain the standard of living enjoyed during the marriage.” Johnson, 2016 IL App
(5th) 140479, ¶ 79; see also Heroy, 385 Ill. App. 3d at 657 (trial court properly considered
maintenance recipient’s employment prospects, where even though ex-wife possessed a law
degree, she was fifty-six years old, had never practiced law and worked instead as a law librarian,
and had not been employed formally for about twenty years); compare Ruvola, 2017 IL App (2d)
160737, ¶¶ 42-44 (trial court justified in finding that maintenance recipient was voluntarily
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underemployed based on failure to seek a position within their respective field of work and failure
to provide evidence of job search attempts).
¶ 208 Moreover, the court’s observations support the inference that Nawara’s maintenance award
was permanent, rather than rehabilitative in nature, which justifies the lower income imputation.
See In re Marriage of Selinger, 351 Ill. App. 3d 611, 619 (2004) (“A permanent maintenance
award is justified where the spouse has employment skills[,] but there is a discrepancy between
*** probable future income and the amount of income that would provide the standard of living
*** enjoyed while married.”); Johnson, 2016 IL App (5th) 140479, ¶ 93 (concept of rehabilitative
maintenance is to renew or develop skills to re-enter the job market in order to become self-
sufficient, versus permanent maintenance where spouse has devoted significant time to raising a
family instead of pursuing a career); compare In re Marriage of Schuster, 224 Ill. App. 3d 958,
970-71 (1992) (trial court correctly denied request for rehabilitative maintenance where recipient
was thirty-two years old, chose to not pursue work because he did not enjoy it, and held various
professional degrees).
¶ 209 Thus, on balance, we find that the trial court’s imputation of $25,000 in income to Nawara
for purposes of maintenance calculations was not unreasonable. The record supports a clear
disparity between the parties with regard to income, future acquisition of capital and assets, and
employment prospects. See In re Marriage of Wojcik, 2018 IL App (1st) 170625, ¶¶ 37-39
(rejecting maintenance payor’s argument that lower-earning spouse could have earned more
money over time, and affirming income imputation of $46,000, in part, where the evidence showed
that the spouse could never achieve the level of income to maintain the lifestyle the parties enjoyed
during the marriage). As such, we also affirm the court’s finding on this basis.
¶ 210 4. Whether the Trial Court Properly Ordered Retroactive Temporary Maintenance
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¶ 211 Next, Frank argues that the court’s ruling requiring him to pay retroactive maintenance was
also in error. First, Frank contends that the court improperly ordered retroactive maintenance to be
paid from the date of the petition’s filing, while also simultaneously acknowledging that recent
Illinois law holds that a trial court has authority to order retroactive maintenance to the date of the
petition, citing In re Marriage of Hochstatter, 2020 IL App (3d) 190132. Nevertheless, Frank
argues that the effective date for retroactivity should not begin until after he received proper notice
of the petition and filed an appearance thereafter, citing 750 ILCS 5/510(a) and In re Marriage of
Hawking, 240 Ill. App. 3d 419 (1992), in support. Frank also points out that Nawara was employed
at the time her petition was filed, and that she waited two and a half years after she became
unemployed to file her request for temporary maintenance.
¶ 212 Even assuming the court had authority to order retroactive maintenance to the date that it
did, Frank further contends that the temporary order was also subject to readjustment at the time
of final judgment pursuant to section 501 of the Act. Frank points out that the court modified its
permanent maintenance award based on considerations of Nawara’s income imputation, as well as
his own income figures. However, despite these changes, Frank notes that the court did not modify
its retroactive award based on the new income values, and also did not credit him for the difference
of what he paid pursuant to temporary order ($2,355 per month) and what he is now obligated to
pay after final order ($1,973.12 per month). Finally, Frank contends that the retroactive award
must be paid out of marital funds, rather than his post-division share as set forth in In re Marriage
of Heroy, 385 Ill. App. 3d 640 (2008).
¶ 213 Nawara responds that the court’s ruling was proper. Preliminarily, Nawara notes that
Frank’s argument that she had been working at the time the petition was filed was never raised and
is therefore waived. Nawara also contends that any objection to the calculation of previously
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ordered maintenance was also waived because Frank did not raise it in his motion to reconsider.
Substantively, Nawara contends that Illinois law is clear that the court can order retroactive
maintenance to the date of the petition’s filing, and that the award is supported by the record where
Frank failed to provide her with any living expenses until June 2019, after the temporary order for
maintenance was entered. Last, Nawara agrees that Heroy stands for the proposition that
retroactive maintenance should be funded from the marital estate, but Nawara points out that Frank
had not been utilizing any marital earnings to support her since 2016.
¶ 214 We first address Nawara’s waiver argument, and find it misplaced. In his motion to
reconsider, Frank challenged the retroactive maintenance award on the basis that Nawara had been
employed when the petition was first filed, that she had some part-time employment after she was
let go from J Discount, and had not mitigated her income with unemployment insurance. Thus,
this challenge was appropriately raised prior to appeal.
¶ 215 We turn to the relevant provision of the Act. As noted briefly prior, Section 501 allows the
trial court to enter a temporary maintenance award prior to the entry of a dissolution judgment.
750 ILCS 5/501 (West 2016). Notably, section 501 does not expressly incorporate the statutory
factors contained in section 504’s maintenance assessment. However, “the trial court must
consider the entire financial situation of both parties,” and the award must be based on “a showing
of the parties’ incomes and assets[,] and what is required to support the party seeking
maintenance.” Burdess, 2020 IL App (3d) 190342, ¶ 31. The trial court, in its discretion, may also
credit any term of temporary maintenance paid by court order to be a credit to a parties’ overall
maintenance obligation following dissolution. 750 ILCS 5/504(b-1)(1.5) (West 2016).
¶ 216 Either party may petition for such maintenance, and must accompany the request with a
financial affidavit outlining the purpose for the requested relief. 750 ILCS 5/501(a)(1) (West
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2016). The request must also be supported by documentary evidence, “including, but not limited
to, income tax returns, pay stubs, and banking statements.” Id. Temporary maintenance
proceedings are adjudicated on a “summary basis,” as they are based on documentary evidence
unless the court, upon a showing of good cause, deems it necessary to hold an evidentiary hearing.
750 ILCS 5/501(a)(3) (West 2016). A temporary maintenance award is not intended to “prejudice
the rights of the parties” prior to final adjudication and thus terminates once a final judgment is
entered. 750 ILCS 5/501(d)(1), (d)(3) (West 2016).
¶ 217 “One of the principal purposes of granting temporary maintenance *** is to attempt to
balance the equities between the parties as fairly as possible while the dissolution case is pending.”
In re Marriage of Hochstatter, 2020 IL App (3d) 190132, ¶ 16. An award for temporary
maintenance is “merely a stopgap that lasts only until a court finally resolves the pending
question[] of maintenance[.]” Id. “Temporary maintenance awards, including their retroactivity,
are matters for the trial court’s discretion.” Chapa, 2022 IL App (2d) 210772, ¶ 58. As trial courts
have “wide latitude” in entering a temporary order, a reviewing court will not reverse such a
finding absent an abuse of discretion. In re Marriage of Greenberg, 102 Ill. App. 3d 938, 941
(1981) (quoting and citing In re Marriage of Simmons, 87 Ill. App. 3d 651, 657-58 (1980)).
However, as to whether the trial court has statutory authority to order retroactive maintenance from
the date of the petition for dissolution, we review this challenge de novo. See Rogers, 213 Ill. 2d
at 136; see also Hochstatter, 2020 IL App (3d) 190132, ¶ 14. A trial court is also generally limited
to granting relief sought in the pleadings, but Nawara’s petition sought maintenance from Frank
at the outset. See In re Marriage of Gowdy, 352 Ill. App. 3d 301, 306 (2004).
¶ 218 We turn to the trial court’s findings. In the court’s dissolution judgment, the court found
that “retroactive maintenance was appropriate” based on its consideration of the parties’
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circumstances under section 503 of the Act. In its order addressing Frank’s motion to reconsider,
the court rejected Frank’s argument that it had improperly granted retroactive maintenance.
Specifically, the court stated:
“Not only do the facts of the length of the parties[’] marriage and the significant
disparities in employment history and prospects between Frank and Nawara support the
award of retroactive maintenance, but this [c]ourt finds that this is not a situation where
retroactive maintenance was awarded despite the absence of any pleadings or discussion
whatsoever of the prospect of an award of retroactive maintenance and/or was awarded
after the parties executed a marital settlement agreement such that Frank was required to
pay retroactive maintenance out of his ‘post division share’ of the marital estate. See contra
In re Marriage of Van Hoveln, 2018 IL App (4th) 180112, ¶¶ 33, 46 ***[.]”
¶ 219 However, the court found that Frank was entitled to a credit or “set-off” of his maintenance
obligation beginning November 1, 2020, with regard to the amounts he paid pursuant to the court’s
dissolution judgment, which were “in excess of the amounts ordered” in its new order.
¶ 220 Frank is correct that Illinois courts have held that a trial court has statutory and
discretionary authority to award retroactive maintenance to the date of filing the petition. See
Hochstatter, 2020 IL App (3d) 190132, ¶¶ 17-18; see also Chapa, 2022 IL App (2d) 210772, ¶ 58
(temporary maintenance awards, including their retroactivity, are matters for the trial court’s
discretion). Thus, at the outset, we can easily determine that the trial court’s decision to award
retroactive maintenance to the petition’s filing is within the trial court’s authority. Further, the
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evidence shows that the award was warranted.34 Both parties’ testimony revealed that, with the
exception of the home equity loan and some utility bills, Frank did not contribute any money
towards Nawara’s expenses or the household after he moved out of Unit A in September or October
2015, which consequently was also around the time Nawara’s petition was filed. Thus, even if she
was employed until December 2016, there was a huge discrepancy in her day-to-day living
expenses, which, by Frank’s own testimony, he had been primarily responsible for during their
marriage, even while Nawara had been employed. The court’s retroactive maintenance award thus
served the overall purpose of temporary maintenance, which operates as a “stopgap that lasts until
the court finally resolves the pending questions of maintenance[.]” Hochstatter, 2020 IL App (3d)
190132, ¶ 17.
¶ 221 Now, we consider Frank’s arguments regarding the trial court’s alleged errors in computing
the retroactive maintenance amount. Frank contends that because his permanent maintenance
award was modified based on Nawara’s income imputation of $25,000, so should the retroactive
amount. Frank’s argument is misplaced. The temporary maintenance award was already based on
an income imputation of $25,000, and as such this would not affect the amount of the award in
that regard.
¶ 222 Next, Frank argues that because his income was revised from $110,840 to $96,693.66 in
the order addressing his motion to reconsider, the retroactive amount should also be revised
accordingly. Frank’s determined income of $96,693.66 was an average calculated by the trial court
based on Frank’s 2016, 2017, and 2018 tax returns ($92,874; $97,009, and $100,198, respectively).
34 We observe that after the entry of the temporary maintenance award, Frank moved to modify the award based on an incorrect salary computation. However, it does not appear that the motion was ever ruled upon, perhaps because it was filed very close in time to the start of trial.
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The temporary maintenance award was entered on May 23, 2019. During those proceedings,
petitioner’s counsel stated in open court that he only had been provided with Frank’s 2016 financial
affidavit, and respondent’s counsel attempted to have Frank testify to his current financial status.
The court admonished counsel, reminding him that a temporary proceeding was summary in
nature, and that both parties had failed to provide the court with updated financial information as
required by both the Act and local court rules. As such, the court entered an award based on the
information available at the time, which was his 2016 financial information, and thus the court was
unable to average out his income in the way it did after trial. Although the court did not specify
how it came to that exact number, the calculation of the maintenance award is within the discretion
of the trial court, and will not be disturbed unless its findings were clearly against the manifest
weight of the evidence. See Walker, 386 Ill. App. 3d at 1041.
¶ 223 Finally, even if the amount could have been revised prior to trial, it was incumbent upon
Frank to seek a ruling on his motion to modify his maintenance payments, and the record reflects
that he did not, despite the lengthy amount of time in between various trial dates. As such, we do
not find persuasive that the trial court’s retroactive maintenance award should also be revised based
on information it did not have at the time the order was entered. In that same vein, we also do not
find that Frank is entitled to any “credit” for the difference in the retroactive award amount and
what he will be paying prospectively after trial. Again, the trial court’s ruling was based on the
information it had at the time, and it did not have much of Frank’s financial information utilized
at trial to arrive at its permanent maintenance determinations.
¶ 224 However, we agree with Frank that any retroactive maintenance award should be paid out
of the marital estate, as any temporary maintenance to Nawara was funded out of the marital estate
prior to dissolution. As noted in In Re Marriage of Lees, 224 Ill. App. 3d 691 (1992):
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“[T]he issue of maintenance is interrelated with the distribution of marital property.
[Citations omitted.] While recognizing that maintenance and distribution of property are
considered together, they are clearly not the same thing. Maintenance is a sum of money
payable to a spouse for his or her support. It is not the same as a distribution of property.
*** In fixing a maintenance award, the court should consider the amount of property that
it is distributing to each party. Nonetheless, maintenance and property distribution are two
separate concepts which cannot be interchanged[.]” Id. at 694-95.
¶ 225 The temporary maintenance award was determined prior to dissolution, and thus before
any division of marital property. Neither the dissolution judgment nor the court’s order on Frank’s
motion to reconsider identifies the source from where the $101,265 in retroactive maintenance
should be paid, but it may be inferred that it will be paid from Frank’s post-division share of the
marital property. At least one court has held that any retroactive temporary maintenance award
should be funded out of the parties’ marital estate, and although its reasoning for doing so is
limited, we find it persuasive. See Heroy, 385 Ill. App. 3d at 660 (affirming retroactive
maintenance award, but remanding to specify that such funds must be paid from the marital estate).
Accordingly, we remand this issue to the trial court to clarify its order to reflect that the retroactive
temporary maintenance award should be funded out of the parties’ marital estate.
¶ 226 D. Motion to Reconsider
¶ 227 Frank argues that the trial court erred in partially denying his motion to reconsider the
dissolution judgment with regard to its ruling on the $145,000 gift; the failure to modify the
duration and amount of the retroactive maintenance award; and its ruling on the Notice of
Dissipation. Nawara responds that Frank’s arguments concerning his motion to reconsider are
based on objections that he did not make before the trial court, and are simply reiterations of his
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arguments here on appeal. We agree. As all of Frank’s arguments concerning the motion to
reconsider were already addressed on appeal, we need not address them further.
¶ 228 E. Argument Contained in a Footnote
¶ 229 Finally, we observe that, within a footnote, Frank appears to accuse the trial court of
making further legal error during trial, specifically with regard to an objection based on attorney-
client privilege. To that end, in his request for relief, Frank seeks to have the case remanded to
another judge. Nawara responds that Frank cannot point to any prejudicial trial conduct or evidence
of personal bias. In reply, Frank shifts his previously footnoted argument to his argument section
of his brief, and reiterates his request for a new judge upon possible remand.
¶ 230 Supreme Court Rule 341(a) discourages the use of footnotes in the parties’ briefs. Ill. S.
Ct. R. 341(a) (eff. Oct. 1, 2020). Further, with regard to a party’s argument, “[p]oints not argued
are forfeited and shall not be raised in the reply brief, in oral argument, or on petition for
rehearing.” Ill. S. Ct. R. 341(h)(7) (eff. Oct. 1, 2020); see also Technology Solutions Co. v.
Northrop Grumman Corp., 356 Ill. App. 3d 380, 382-84 (2005) (discussing importance of supreme
court rules and striking sua sponte substantive arguments contained in footnotes in party’s brief);
see also Lundy v. Farmers Group, Inc., 322 Ill. App. 3d 214, 218 (2001). As such, we will strike
the footnote contained within Frank’s opening brief and deem his argument contained within his
reply brief as forfeited. We further note that our review of the record does not suggest any
implication of bias by the trial court, but rather, a years-long dissolution proceeding delayed by
both the parties and counsel of record over the course of almost six years.
¶ 231 III. CONCLUSION
¶ 232 For the reasons stated, we affirm in part, reverse in part, and remand in part, and summarize
our decision as follows. We affirm the trial court’s: (1) designation of Nawara as a beneficiary on
- 90 - Nos. 1-21-1145, 1-22-0176, 1-22-1711, 1-23-0802 (Cons.)
Frank’s life insurance policy; (2) finding that Frank is to reimburse Nawara for health insurance
expenditures; (3) denial of the motion to reconsider with regard to the finding that the $145,000
did not constitute a gift; (4) refusal to modify the amount and duration of the retroactive
maintenance award; and (5) substantive maintenance and retroactive maintenance awards in terms
of amount and duration. We reverse and remand to the trial court to clarify the details of the
retroactive temporary maintenance award so that the award should be paid out of the marital estate,
and not Frank’s post-division share. We also reverse the trial court’s finding of dissipation as to
the Delaware property in the amount of $35,525, as well as its subsequent finding in its motion to
reconsider on this same issue. Upon remand, the trial court is directed to credit the $35,525
dissipation award back to Frank.
¶ 233 Affirmed in part; reversed in part; remanded in part.
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Cite This Page — Counsel Stack
2023 IL App (1st) 211145-U, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-tarbouche-illappct-2023.