In re Marriage of Xinos

2025 IL App (1st) 232326

• Court: Appellate Court of Illinois
• Decided: May 6, 2025
• Docket: 1-23-2326
• Status: Published

Opinion

2025 IL App (1st) 232326 No. 1-23-2326 Opinion filed May 6, 2025 Second Division ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ In re MARRIAGE OF ) Appeal from the CATHERINE XINOS, ) Circuit Court of ) Cook County. Petitioner-Appellee, ) ) and ) No. 20 D 5471 ) MICHAEL MARINO, ) Honorable ) Naomi H. Schuster, Respondent-Appellant. ) Judge, presiding.

PRESIDING JUSTICE VAN TINE delivered the judgment of the court, with opinion. Justices Howse and Ellis concurred in the judgment and opinion.

OPINION

¶1 Following a bench trial, the trial court entered a judgment for dissolution of marriage and

found that all of respondent Michael Marino’s financial accounts were marital property. On appeal,

Michael contends that the trial court erred in (1) granting a motion in limine filed by petitioner

Catherine Xinos to bar Michael from presenting evidence that his financial accounts were

nonmarital property as a sanction for his failure to disclose them as nonmarital property in

discovery and (2) classifying those accounts as marital property. For the following reasons, we

affirm. No. 1-23-2326

¶2 I. BACKGROUND

¶3 The parties were married in 2016 and had two children together, both of whom are minors.

In 2020, Catherine filed a petition for dissolution of marriage, citing irreconcilable differences.

¶4 This appeal concerns whether Michael’s financial accounts were marital or nonmarital

property. Before a court can divide property in a divorce proceeding, the court must first

characterize the property as marital or nonmarital. In re Marriage of Gattone, 317 Ill. App. 3d 346,

351 (2000). Property acquired before the marriage is nonmarital property “except as it relates to

retirement plans that may have both marital and non-marital characteristics.” 750 ILCS 5/503(a)(6)

(West 2020). The court assigns nonmarital property to the spouse who owns it and does not divide

nonmarital property between the spouses. In re Marriage of Phillips, 229 Ill. App. 3d 809, 817

(1992).

¶5 A. Written Discovery

¶6 During discovery, Catherine served interrogatories and requests to produce on Michael. On

December 8, 2021, Michael responded to interrogatory 22 as follows:

“22. List all non-marital property claimed by you, identifying each item of property

as to the type of property, the date received, the basis on which you claim it is non-marital

property, its location, and the present value of the property.

Response: Investigation continues.”

Michael never supplemented his response to interrogatory 22.

¶7 Interrogatories 6 and 11 sought information about Michael’s financial accounts for the

three years prior as well as his retirement plans. In response, Michael disclosed (1) a Bank of

America checking account he opened in June 1994, (2) a Vanguard brokerage account he opened

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in May 1998, (3) a Fidelity brokerage account he opened in October 2001, (4) a Vanguard

retirement account he opened in August 2010, and (5) a Fidelity 401(k) account he opened in May

2002. Michael also disclosed the balances of these accounts as of December 2021. In addition,

Michael’s response to interrogatory 25 stated that he would testify to “any non-marital assets” at

trial.

¶8 On January 21, 2022, Michael responded to request to produce number 43 as follows:

“43. NON-MARITAL PROPERTY: True and complete copies of all documents,

records, reports, correspondence, memorandum, writings and alike in your possession and

control referring to or relating to any and all non-marital property to which you claim title

or an interest in, including but not limited to any documents supporting your claim of your

nonmarital share of [apartments on East 95th Street in] Chicago, IL 60637.

Response: Investigation continues as to non-marital property.”

Michael did not produce any documents in response to this request.

¶9 Discovery closed on September 22, 2022. Thereafter, Michael’s attorney withdrew, and

Michael proceeded pro se. The court set a trial on financial matters for January 12, 2023.

¶ 10 B. Trial and Dissolution Judgment

¶ 11 The record on appeal does not include reports of proceedings. We take the following facts

from the bystander’s report, the common law record, and the trial exhibits.

¶ 12 The day before trial, Catherine filed a motion in limine to bar Michael from presenting

evidence of his nonmarital property pursuant to Illinois Supreme Court Rule 219(c) (eff. July 1,

2002). Catherine argued that Michael failed to supplement his response to interrogatory 22 and did

not produce any documents regarding his nonmarital property; therefore, he should be prohibited

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from presenting evidence of his nonmarital property at trial. Michael did not file a written response

to the motion, but he opposed it orally. The trial court granted Catherine’s motion in limine and

barred Michael from presenting testimony or evidence regarding his nonmarital property.

Specifically, the court found that

“[Michael] represented to the court that following his initial answer of

‘Investigation continues’ in response to the Notice to Produce and Matrimonial

Interrogatories which inquired about non-marital assets, he did not subsequently tender

documents related to alleged non-marital assets prior to the close of discovery on

September 22, 2022, and therefore, did not produce any documentation evidencing the

existence of or balance of accounts he allegedly owned prior to the marriage.”

¶ 13 During trial, Michael attempted to testify “regarding the alleged balances of accounts titled

in his name that were allegedly opened prior to the marriage.” This testimony concerned the

following 13 accounts:

“a. Michael’s Bank of America checking account [account number];

b. Michael’s Fidelity investment account [account number];

c. Michael’s Vanguard brokerage account [account number];

d. Michael’s Vanguard brokerage account [account number];

e. Michael’s Vanguard brokerage account [account number];

f. Michael’s Vanguard brokerage account [account number];

g. Michael’s Vanguard SEP IRA [account number];

h. Michael’s Vanguard IRA [account number];

i. Michael’s Vanguard Roth IRA [account number];

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j. Michael’s Vanguard Roth IRA [account number];

k. Michael’s Fidelity Gibraltar 401(k) [account number];

l. Michael’s Fidelity Northrop Grumman Savings Plan [account number]; and

m. Michael’s Fidelity Middleby account [account number].”

Catherine objected to this testimony, based on the court’s ruling on her motion in limine, and the

court sustained her objection. During his adverse examination, Michael acknowledged that he

“failed to tender documents evidencing alleged pre-marital balances at the time of the marriage for

all accounts held in his name”; that is, documents regarding the accounts he opened prior to the

marriage.

¶ 14 Nevertheless, Catherine introduced as exhibits statements from 11 of the 13 accounts listed

above, the two exceptions being the Fidelity Northrop Grumman and Fidelity Middleby accounts.

The record is not clear as to how she obtained those documents, given that Michael did not produce

them in discovery. In any event, these exhibits reflect the balances of Michael’s accounts as of

2021. They do not indicate when Michael opened the accounts. The statements also do not reflect

contributions to the accounts, except for the Bank of America checking account, which reflects

both direct deposits to and withdrawals from the account for daily expenses, such as groceries and

utility bills. In addition, Michael introduced a document showing the balances of his Fidelity

Northrop Grumman and Fidelity Middleby accounts. This document does not reflect when Michael

opened either account or any contributions to those accounts.

¶ 15 Following trial, the court entered a judgment for dissolution of marriage. Relevant here,

the court found that:

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“Michael failed to introduce any evidence whatsoever, either physical or through

testimony, that the accounts held by Michael were non-marital. No documents were

tendered in discovery related to [the] alleged[ly] non-marital nature of any of his account[s]

or the balances of any account owned by him prior to the marriage. As a result, the court

finds that Michael failed to overcome the marital property presumption and finds the

accounts held in his name to be marital.”

The court divided all marital accounts 75% to Michael and 25% to Catherine.

¶ 16 C. Postjudgment Proceedings

¶ 17 Michael filed a pro se motion to reconsider the judgment, reopen discovery, and reopen

the proofs. Michael claimed that he did not produce documents regarding his nonmarital financial

accounts due to his attorneys’ deficient representation of and poor communication with him. In

addition, Michael claimed that

“[a]lthough [he] was unable to offer documentary evidence due to discovery

sanctions, both parties offered consistent testimony during the trial that Michael and

Catherine had nonmarital accounts prior to the marriage. Preliminary settlement

discussions before the tr[ia]l between Michael and [Catherine’s attorneys] acknowledged

that there were pre-marital accounts in the petitioner and respondent[’s] names ***. Both

parties testified that the other party was never added to the non-marital accounts during the

time of marriage. Both parties testified that the other party never contributed to the non-

marital accounts. None of the non-marital accounts had been transmuted during the time

of marriage. New investments during the time of marriage were funded with non-marital

funds. Both parties testified that during the time of marriage, marital accounts under the

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names of both the respondent and petitioner were never opened. These were uncontested

facts. Therefore, Michael’s non-marital accounts should have been awarded to him, just as

was [sic] the findings to Catherine’s non-marital accounts.”

Michael requested that the trial court allow him to present “new evidence” regarding his nonmarital

property.

¶ 18 In response, Catherine argued that Michael signed affidavits attesting that his written

discovery responses were true, accurate, and complete to the best of his knowledge; therefore, he

“chose not to disclose the alleged non-marital assets” during discovery.

¶ 19 The trial court denied Michael’s motion to reconsider the judgment, finding that the “order

is final and there is no just reason for delaying either enforcement or appeal or both.”

¶ 20 Michael timely appealed.

¶ 21 II. ANALYSIS

¶ 22 On appeal, Michael challenges the trial court’s ruling granting Catherine’s motion in limine

and its classification and division of the marital financial accounts.

¶ 23 A. Forfeiture

¶ 24 Catherine argues that Michael failed to preserve these issues for review because he did not

make an offer of proof regarding the evidence of nonmarital property he would have presented at

trial. There is no dispute that Michael did not make an offer of proof.

¶ 25 “When a motion in limine is granted, the key to saving for review an error in the exclusion

of evidence is an adequate offer of proof in the trial court.” Snelson v. Kamm, 204 Ill. 2d 1, 23

(2003). An offer of proof informs the trial court, opposing counsel, and the reviewing court of the

nature of the evidence sought to be introduced. Zickuhr v. Ericsson, Inc., 2011 IL App (1st)

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103430, ¶ 63. A party “makes an adequate offer of proof if he informs the trial court, with

particularity, of the substance of the witness’ anticipated answer; an offer of proof that merely

summarizes the witness’ testimony in a conclusory manner is inadequate.” Snelson, 204 Ill. 2d at

23. Failure to make an adequate offer of proof results in forfeiture of the issue on appeal. Id.

¶ 26 Michael’s only response to Catherine’s forfeiture argument is that he was not represented

by counsel at trial. However, a pro se litigant, just like any represented party, must make an offer

of proof regarding evidence he is barred from presenting. See People v. Atchison, 2023 IL App

(5th) 220274-U, ¶ 25. Michael cites no authority to the contrary.

¶ 27 Michael’s failure to make an offer of proof is also problematic as a practical matter. To

prove that the 13 accounts at issue were nonmarital property, Michael had to show that he acquired

the accounts before the marriage. See 750 ILCS 5/503(a)(6) (West 2020). The record does not

indicate whether Michael could have made that showing with respect to any of the accounts and,

if so, which ones. The bystander’s report states only that Michael “allegedly opened [the accounts]

prior to the marriage” (emphasis added), and Michael claims that he would have testified to that

in general. But we do not know what evidence specifically he would have presented in support of

that allegation. We also do not know whether any of the 5 premarital accounts Michael disclosed

in his interrogatory responses are the same as the 13 accounts he attempted to claim as nonmarital

property at trial. The former are identified by opening date but not account number, and the latter

are identified by account number but not opening date.

¶ 28 Furthermore, Michael may have needed to trace funds to show that the 13 accounts at issue

did not become marital property. Even if a spouse acquires a financial account before marriage,

that account can become marital property through contributions from marital property, such as the

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spouses’ salaries. See id. (retirement plans “may have both marital and non-marital

characteristics”); see also In re Marriage of Kattner, 2023 IL App (1st) 220803-U, ¶ 41 (401(k)

accounts were nonmarital property before the marriage but became marital property through

contributions from the spouses’ salaries); In re Marriage of Henke, 313 Ill. App. 3d 159, 166-68

(2000) (checking account husband opened before the marriage became marital property because

marital funds were deposited into and withdrawn from it during the marriage). To show that a

financial account is nonmarital property, a party must trace the nonmarital source of the funds in

the account by clear, convincing, and affirmative evidence. In re Marriage of Didier, 318 Ill. App.

3d 253, 265 (2000).

¶ 29 Because Michael did not make an offer of proof, we do not know whether he could have

traced funds with respect to any of the 13 accounts at issue. The sources of funds in those accounts

are unclear. Michael’s opening brief claims, without citation to the record, that he “could have

testified that certain accounts were opened prior to the marriage and no deposits were made to

those accounts.” But he does not identify those accounts and the bystander’s report is silent on that

point. At a minimum, Michael would have had to trace funds with respect to the Bank of America

checking account because he used that account to receive direct deposits and to pay for daily

expenses, which may have converted the account into marital property. See Henke, 313 Ill. App.

3d at 166-68. Because Michael did not make an offer of proof, we cannot evaluate his claim that

the trial court granting Catherine’s motion in limine “prejudiced his property award in the

dissolution judgment.” We cannot tell whether he would have been able to establish that any of

the 13 accounts at issue were nonmarital property, and, if so, which ones.

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¶ 30 We acknowledge that “an offer of proof need not be made if it is clear that the trial court

understood the nature and character of the evidence that would have been offered.” In re Estate of

McDonald, 2022 IL 126956, ¶ 86. But Michael does not cite that case or explain how it applies to

this case. Accordingly, he has forfeited any such argument. See Ill. S. Ct. R. 341(h)(7) (eff. Oct.

1, 2020); see also Hayashi v. Illinois Department of Financial & Professional Regulation, 2014

IL 116023, ¶ 43.

¶ 31 We do not find forfeiture lightly, but Michael has made virtually no effort to preserve this

issue for review. He filed no response to the motion in limine, and the bystander’s report is silent

as to what he argued in opposition to the motion. He made no offer of proof regarding nonmarital

property. His postjudgment motion raised this issue but framed it as a matter of deficient

representation by his former counsel. And, on appeal, Michael makes no substantive response to

Catherine’s forfeiture argument. Accordingly, we find that Michael has forfeited issues related to

his 13 allegedly nonmarital financial accounts. See In re Marriage of Gabriel, 2020 IL App (1st)

182710, ¶ 50 (“Because the record on appeal does not show that [the husband] made an offer of

proof at any time, we must conclude that he has forfeited any challenge to the trial court’s order

granting [the wife’s] motion in limine.”).

¶ 32 B. Motion in Limine Ruling

¶ 33 Even if we did not find forfeiture, we would affirm the trial court’s ruling on the motion

in limine. We review a trial court’s ruling on a motion in limine and its imposition of Rule 219(c)

sanctions for an abuse of discretion. Passafiume v. Jurak, 2024 IL 129761, ¶ 18; Department of

Transportation v. Dalzell, 2018 IL App (2d) 160911, ¶ 83. A trial court abuses its discretion only

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where no reasonable person would take the view adopted by the court. Dalzell, 2018 IL App (2d)

160911, ¶ 83.

¶ 34 When a party unreasonably fails to comply with the supreme court rules or a trial court

order governing discovery, the trial court may order “[t]hat a witness be barred from testifying

concerning that issue.” Ill. S. Ct. R. 219(c)(iv) (eff. July 1, 2002). That is what happened in this

case. Michael was asked twice in written discovery what assets he claimed as nonmarital property.

He identified nothing and produced nothing. The fact that Michael identified five accounts opened

before the marriage in his interrogatory responses but, in the same interrogatory responses, did not

claim those accounts as nonmarital property suggests a conscious choice on his part. Therefore,

the trial court did not abuse its discretion in barring Michael from testifying to nonmarital property

at trial.

¶ 35 In re Marriage of Ibrahim, 2025 IL App (1st) 230146-U, is persuasive authority (see Ill. S.

Ct. R. 23(e)(1) (eff. Feb. 1, 2023)) and guides our reasoning. In that case, the trial court granted a

wife’s motion in limine to bar her husband from introducing evidence of certain business interests

because he did not disclose them in written discovery. Ibrahim, 2025 IL App (1st) 230146-U, ¶¶ 3,

16. On appeal, the husband challenged the trial court’s ruling on the motion in limine ruling, and

this court affirmed. Id. ¶ 6. We explained that the husband disregarded the trial court’s discovery

deadlines by failing to produce documentation of his business interests that were responsive to

written discovery requests, so it was proper for the trial court to exclude that evidence at trial. Id.

¶¶ 43-44. We also found that the husband forfeited this issue because he failed to make an offer of

proof as to what the excluded evidence would show. See id. ¶ 42 (citing Snelson, 204 Ill. 2d at 23).

The case before us is essentially the same as Ibrahim, so we reach the same conclusion.

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¶ 36 We reject Michael’s complaint that Catherine did not attempt to resolve this issue during

discovery, pursuant to Illinois Supreme Court Rule 201(k) (eff. Mar. 17, 2023). She had no reason

to do so. From Catherine’s point of view, Michael’s written discovery responses meant that he was

not claiming any assets as nonmarital property. Catherine was not obligated to force Michael to

claim assets as nonmarital property. Rather, it was Michael’s obligation to seasonably supplement

his written discovery responses. See Ill. S. Ct. R. 213(i) (eff. Jan. 1, 2018); Ill. S. Ct. R. 214(d)

(eff. July 1, 2018).

¶ 37 We also reject Michael’s suggestion that he had no opportunity to respond to Catherine’s

motion in limine because she filed it the day before trial. The bystander’s report indicates that he

responded orally the following day. Also, there is nothing inherently improper about Catherine

filing a motion in limine the day before trial. Parties often file and courts often rule on motions

in limine shortly before or even during trial. See, e.g., Ramirez v. FCL Builders, Inc., 2014 IL App

(1st) 123663, ¶ 14; Hawkes v. Casino Queen, Inc., 336 Ill. App. 3d 994, 999 (2003). Accordingly,

we find that the trial court did not abuse its discretion in granting the motion in limine.

¶ 38 C. Classification of Michael’s Accounts

¶ 39 Absent forfeiture, we would affirm the trial court’s finding that the 13 accounts at issue

were marital property. As Michael acknowledges in his opening brief, it was his burden to prove

that those accounts were nonmarital property. See In re Marriage of Stuhr, 2016 IL App (1st)

152370, ¶ 51; In re Marriage of Romano, 2012 IL App (2d) 091339, ¶ 45. Michael presented no

evidence on that issue due to the trial court’s motion in limine ruling, which, as explained above,

was not in error. Therefore, the trial court’s finding that his financial accounts were marital

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property was not erroneous either. See Romano, 2012 IL App (2d) 091339, ¶ 44 (we reverse a trial

court’s classification of property only if it is against the manifest weight of the evidence).

¶ 40 Finally, Michael makes an underdeveloped argument regarding the division of marital

property. As best we can tell, Michael’s complaint is that the trial court awarded Catherine almost

all her own financial accounts as nonmarital property, plus 25% of Michael’s financial accounts

as marital property. However, Michael does not appeal the trial court’s finding that Catherine’s

financial accounts were, for the most part, her nonmarital property. The bystander’s report

indicates that Catherine introduced evidence establishing the nonmarital character of her own

financial accounts. And, as explained above, the classification of Michael’s financial accounts as

marital property was not improper. Thus, the fact that the trial court divided those financial

accounts between Michael and Catherine was not improper either. See 750 ILCS 5/503(d) (West

2020) (the trial court must divide marital property between the parties). Michael does not explain

how the 75%-25% division of those accounts constituted an abuse of discretion. See In re

Marriage of Klose, 2023 IL App (1st) 192253, ¶ 31 (“A circuit court’s distribution of marital

property will not be reversed, absent a showing that the court abused its discretion.”). We see no

abuse of discretion in that division. Accordingly, we affirm the trial court’s rulings.

¶ 41 III. CONCLUSION

¶ 42 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 43 Affirmed.

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In re Marriage of Xinos, 2025 IL App (1st) 232326

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 20-D-5471; the Hon. Naomi H. Schuster, Judge, presiding.

Attorneys Annette M. Fernholz, of Law Offices of Annette M. Fernholz, for P.C., of Chicago, for appellant. Appellant:

Attorneys Bryan J. Wilson and Kirsten L. Meeder, of Kogut & Wilson, for L.L.C., of Chicago, for appellee. Appellee:

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