In re The Marriage of Josephson

2022 IL App (2d) 210031-U

• Court: Appellate Court of Illinois
• Decided: June 28, 2022
• Docket: 2-21-0031
• Status: Unpublished

Opinion

2022 IL App (2d) 210031-U No. 2-21-0031 Order filed June 28, 2022

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

In re THE MARRIAGE OF ) Appeal from the Circuit Court CRAIG A. JOSEPHSON, ) of Lake County. ) Petitioner-Appellee and ) Cross-Appellant, ) v. ) No. 18-D-1438 ) CYNTHIA M. BARRILE-JOSEPHSON, ) Honorable Respondent-Appellant and ) Charles Smith, Cross-Appellee. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE SCHOSTOK delivered the judgment of the court. Justices McLaren and Jorgensen concurred in the judgment.

ORDER

¶1 Held: Trial court erred in failing to equitably distribute certain marital property, but it did not err in any other respect, including its valuation of the parties’ personal property, the setting of maintenance, its refusal to require life insurance, and its award of attorney fees.

¶2 In December 2020, the circuit court of Lake County entered a judgment dissolving the

marriage between the petitioner, Craig Josephson, and the respondent, Cynthia Barrile-Josephson.

At the same time, it ordered Craig to contribute to Cynthia’s attorney fees. Both parties now appeal

certain aspects of the court’s rulings.

¶3 I. BACKGROUND 2022 IL App (2d) 210031-U

¶4 Craig and Cynthia married in 1993. At the time, Cynthia had two children from a previous

marriage. Another child was born to the parties during the marriage. All of the children are now

adults.

¶5 In 2018, Craig filed a petition for dissolution. In October 2019, the parties entered an

agreed order stating in part: “The parties stipulate that Cynthia shall receive guideline maintenance

and that no income will be imputed to Cynthia for employment purposes in connection with her

maintenance award.” Neither party ever filed a notice of intent to assert a claim of dissipation.

The four-day trial took place in August 2020. The trial court delivered oral rulings in October and

November 2020, and the final judgment of dissolution was entered in December.

¶6 As relevant here, the evidence at trial showed that, at the time of trial, Cynthia was 62 years

old, had ongoing medical issues, and was last employed in 2015. Craig was 51 years old, in good

health, and owned a company through which he provided project management services to a

medical device company. Under the contract then in place, which ran through the end of 2020 and

had been extended twice already, Craig was paid $7400 per week, or about $355,000 over 48

weeks of work, which the trial court found was a reasonable work-year.

¶7 Craig moved to California for work in August 2017. As noted, he filed his dissolution

petition in August 2018. That same month, each party withdrew half of their joint account and

transferred that sum (about $33,500) into accounts in their own names.

¶8 In December 2018, Cynthia moved for temporary support. In February 2019, the trial court

ordered Craig to pay the mortgage and other expenses of the marital home. In April 2019, Craig

was ordered to pay $1800 per month in temporary maintenance, along with certain medical bills

and car-related expenses.

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¶9 In February 2019, Craig began living in his girlfriend’s home. For 15 months he paid no

rent and did not contribute to the utilities, but in April 2020 he paid her a $9000 “security deposit”

and began paying rent of $3000 per month plus utilities. The trial court found that the security

deposit was a marital asset, as it had been paid using marital funds.

¶ 10 The marital home was sold in October 2019. Cynthia took many of the furnishings to her

new home in Arkansas or stored them, at a total cost of $29,855.50. Craig received his golf ball

collection and certain tools that he had taken from the home in 2018. Other personal property was

disposed of. There were no proceeds from that disposition. The parties did not submit any

professional estimates of the value of the personal property that each received or that was disposed

of. Craig asserted that the personal property in Cynthia’s possession was worth over $156,000,

but he conceded that he had no training or experience in property valuation, and neither party

submitted an objective basis for the property’s fair market value at the time of trial. The trial court

found that neither Craig’s testimony regarding the value of the property nor Cynthia’s testimony

that the property had no value was credible. Noting that it had not received any other evidence

regarding that value and that case law permitted it to use its own experience to determine the value

of property, the trial court set the property’s value at the amount that Cynthia had paid to transport

and store it: $29,855.50.

¶ 11 The trial court awarded Cynthia indefinite maintenance in the guideline amount of

$5,787.42 per month, retroactive to March 2020. In determining property distribution, it found

that there was no nonmarital property. As to marital property, it found that both parties had

contributed substantially to the marriage and that, due to the parties’ different economic potentials

moving forward, Cynthia should receive 55% of the marital property and Craig should receive

45%. It found that the parties’ investment accounts, retirement accounts, home sale proceeds,

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personal property, and airline miles should be divided in this 55/45 proportion as of the date of

dissolution.

¶ 12 However, the trial court also stated that it viewed the parties’ August 2018 split of their

joint account as the moment when “they really ceased cohabiting and contributing to the marriage.”

It therefore denied Cynthia’s request to apportion the checking account balances and debts accrued

by each party after that point. At the time of trial, Cynthia had $189.09 in her checking account

and credit card debt of $14,451.66, which Cynthia testified arose from her living expenses that

were not covered by her temporary maintenance. Craig’s checking account stood at $6,462.10 and

his credit card debt was $3,603.10.

¶ 13 For the same reason, the trial court also declined to distribute as marital property the value

of the new cars each party bought in 2019. Cynthia’s Toyota Prius cost $26,000; Cynthia used

$11,000 of the money from her half of the joint account and financed the rest. In addition, Craig

was ordered to contribute $600 per month for Cynthia’s car expenses beginning in June 2019.

Craig’s Mercedes Benz cost $56,088.055, and the amount paid by Craig was reduced by his $4500

trade-in of a marital car. The trial court treated the trade-in value of the marital car as a marital

asset and divided it in the same proportion as the rest of the marital estate. However, as to the

newer cars, it simply assigned each party their own vehicle, stating that the cars’ value to the

marital estate was zero.

¶ 14 During the trial, the parties had stipulated that Craig had invoiced his employer $29,400

for services rendered in the month or so before trial but had not yet received payment of those

invoices. Cynthia argued that these invoices should be treated as an asset of the marriage and

therefore divided 55/45. The trial court rejected this argument, viewing the invoices as simply the

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mechanism for the payment of Craig’s income, the appropriate portion of which would be paid to

Cynthia as maintenance, and that to count the invoices as an asset would be double-dipping.

¶ 15 Craig’s motion to reconsider certain aspects of the judgment was denied. Cynthia’s appeal,

and Craig’s cross-appeal, followed.

¶ 16 II. ANALYSIS

¶ 17 A. Cynthia’s Appeal

¶ 18 Cynthia raises three issues in her appeal: (1) whether the trial court erred in distributing the

marital property, (2) whether the trial court erred by failing to determine the fair market value of

the personal property, and (3) whether the trial court should have ordered Craig to maintain life

insurance to secure his maintenance obligation.

¶ 19 1. Categorization and Distribution of Marital Property

¶ 20 A trial court has broad discretion in the division of marital assets, and we will reverse its

determinations only if it is clear that the trial court has abused that discretion. In re Marriage of

Wojcik, 362 Ill. App. 3d 144, 161 (2005). A trial court abuses its discretion when its ruling is

arbitrary, fanciful, or unreasonable, or no reasonable person would take the view adopted by the

court, or when its ruling rests on an error of law. People v. Olsen, 2015 IL App (2d) 140267, ¶ 11.

¶ 21 Cynthia notes that, although the trial court used the date of dissolution when assigning the

value and ordering the distribution of most of the marital assets, it declined to do so when

considering the value of the parties’ cars, checking accounts, and debts. This, she contends, was

error. We agree.

¶ 22 Generally, marital property is presumed to include all property—assets and debts—

acquired by either spouse after the date of marriage and before the entry of a judgment of

dissolution. 750 ILCS 5/503(b)(1) (West 2018). As directly relevant here, the marital property to

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be distributed in just proportion includes debt incurred for living expenses between the date of

separation and date of dissolution. In re Marriage of Goforth, 121 Ill. App. 3d 673, 683 (1984).

The presumption that assets and debts acquired during the marriage are marital property can be

overcome only by a showing of clear and convincing evidence that the property falls within one

of the exceptions listed in section 503(a) of the Illinois Marriage and Dissolution of Marriage Act

(Act) (750 ILCS 5/503(a) (West 2018)), and the burden to show such an exception is on the party

claiming that property is nonmarital (In re Marriage of Schmitt, 391 Ill. App. 3d 1010, 1017

(2009)).

¶ 23 Here, none of the statutory exceptions applies. Although there is an exception for property

acquired “after a judgment of legal separation,” there was no such judgment entered here, and the

parties’ actions in dividing one joint account does not equate to such a judgment. Further, although

the date of the breakdown of a marriage is relevant in assessing claims that parties dissipated

marital assets, here neither party claimed dissipation. Thus, the statutory period laid out in section

503(b)—the date of the marriage through the date when the judgment of dissolution is entered—

controls. Finally, we note that the trial court expressly found that there was no nonmarital property,

logically implying that all of the assets and debts acquired before the judgment of dissolution were

marital property to be divided in the proportions that the trial court found to be just, i.e., 55/45.

For all of these reasons, the trial court abused its discretion by committing a legal error (see Olsen,

2015 IL App (2d) 140267, ¶ 11) in failing to equitably apportion some of the parties’ property

acquired after August 2018 and before the date of dissolution.

¶ 24 Craig does not offer any meaningful argument otherwise. Instead, he argues that Cynthia

forfeited her argument here by failing to raise it in her written closing argument. However, at that

point Cynthia had no reason to know that the trial court would impose an artificial distinction as

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to certain marital property acquired after August 2018. We therefore decline to find her argument

forfeited. Craig also argues that, by asking for this property (or its value) to be distributed in the

same proportions as the other marital property, Cynthia is somehow asking for more than her 55%

share of the total marital property. That is not so, however. Cynthia simply asks that the property

acquired after August 2018, including the cars, checking account balances, and debts, be

distributed in accordance with the 55/45 distribution that the trial court determined was equitable,

just as the other marital property was.

¶ 25 Cynthia raises one other argument regarding marital property, namely, that the trial court

erred in failing to treat the $29,600—about one month’s compensation—owed to Craig under

unpaid invoices as a marital asset to be divided. The trial court declined to treat the invoices as

assets on the ground that they were simply the method by which Craig collected his regular

monthly income, the same income from which Cynthia’s maintenance payments were paid, and

that to divide the $29,600 as a marital asset would be “double-dipping.”

¶ 26 The trial court’s approach was erroneous. Under the Act, all of Craig’s income earned

during the marriage was a marital asset. 750 ILCS 5/503(b)(1) (West 2018). The invoices, which

were for income Craig earned during the marriage, were in essence accounts receivable and thus

were assets to be distributed. In re Marriage of Schneider, 214 Ill. 2d 152, 169 (2005); In re

Marriage of Tietz, 238 Ill. App. 3d 965, 973 (1992). Nor was it impermissible “double-dipping”

to treat the invoices as an asset just because guidelines maintenance is based on, among other

things, Craig’s income. Schneider, 214 Ill. 2d at 170. Section 503(d)(10) of the Act expressly

contemplates that property distributions may be made without regard to the payment of

maintenance (see 750 ILCS 5/503(d)(10) (West 2018)), and the supreme court has held that income

counted as a marital asset for property distribution purposes may also be counted when calculating

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a support obligation (In re Marriage of Dahm-Schell and Schell, 2021 IL 126802, ¶ 60; see also

Schneider, 214 Ill. 2d at 170). We therefore vacate the trial court’s rulings as to the parties’ cars,

checking account balances, debts, and Craig’s unpaid invoices, and remand for the trial court to

determine the value of that marital property and distribute it in accordance with the 55/45

distribution of the other marital property.

¶ 27 2. Valuation of the Parties’ Personal Property

¶ 28 The next challenge Cynthia raises is to the trial court’s valuation of the parties’ personal

property. She asserts that the trial court erroneously disregarded the fair market value standard

required by the Act, and that it wrongly awarded Craig’s personal property to him at no value.

Neither contention has merit.

¶ 29 Cynthia first notes that section 503 of the Act requires a trial court to “make specific factual

findings” as to the value of marital property, and provides that those findings should be based on

the property’s fair market value. 750 ILCS 5/503(a), (k) (West 2018). However, the trial court

found that Craig’s inexperienced and subjective estimation of the property’s worth had no

evidentiary value, and that Cynthia’s testimony that the property had no value was not credible

either. Thus, the parties failed to provide the trial court with competent evidence regarding the

fair market value of the personal property in each party’s possession. Cynthia argues that if there

is no probative evidence of property’s fair market value then a court must set that value at zero,

but this is incorrect.

¶ 30 The valuation of marital property is a question of fact, and a reviewing court will not disturb

the trial court’s ruling on that factual question if it is within the range of competent evidence that

was presented at trial. In re Marriage of Schlichting, 2014 IL App (2d) 140158, ¶ 74. “It is the

parties’ burden to present valuation evidence,” however. Id. A trial court is hamstrung in setting

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the fair market value of property when the parties have failed to meet this burden, and reviewing

courts take this into account in determining whether a particular valuation is against the manifest

weight of the evidence. See In re Marriage of Hluska, 2011 IL App (1st) 092636, ¶ 64 (collecting

cases for the proposition that parties who do not provide a trial court with competent and credible

evidence of property’s value cannot complain if the trial court fails to assign a value to the

property). A reviewing court will not remand for an evidentiary hearing on value when a party

had ample opportunity to present valuation evidence but simply failed to do so. Id.; Schlichting,

2014 IL App (2d) 140158, ¶ 74.

¶ 31 Here, lacking other credible or competent evidence, the trial court determined the fair

market value of the personal property in Cynthia’s possession based on the amount she paid to

transport and store it—an amount supported by documentary evidence. This was not an abuse of

discretion. When determining the market value of property, a factfinder may use logic and

common experience in assessing the evidence. Behrens v. W.S. Bills & Sons, 5 Ill. App. 3d 567,

577 (1972). “Fair market value” is, as Cynthia notes, what a willing buyer would pay for the

property. In re Marriage of Cutler, 334 Ill. App. 3d 731, 737 (2002). Here, Cynthia willingly

paid $29,855.50 to transport and store the property in her possession. Although this sum bore only

an indirect relation to the actual value of the property, which could have been worth either less or

more than that, it was some evidence that the property was worth at least that much to Cynthia,

and this was evidence that the trial court could consider. The trial court did not abuse its discretion

in setting the value of the property in Cynthia’s possession at that figure.

¶ 32 Cynthia also complains of the trial court’s assignment to Craig of the personal property in

his possession without setting any value on that property. The specific property at issue is the

furniture that Craig bought for his new home in California, using marital funds. Craig testified

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about two purchases. The first was a purchase of a bed, mattress, and two dressers at Ikea. The

only testimony about the value of that furniture was Craig’s testimony that it cost about $2000

when he bought it (the date was not established by any evidence), and that he “assumed” that it

was still worth between $1500 and $2000. However, there was no documentation or expert

testimony supporting Craig’s estimate, and the trial court expressly found Craig’s estimates

regarding the value of various furnishings to be of no probative value. Cynthia did not offer any

other evidence of that furniture’s value. Craig testified on cross-examination about a second

purchase in March 2020 (about five months before trial) of a storage cabinet costing $1457, to be

used in the home he shared with his girlfriend. This purchase was shown on a credit card statement

offered into evidence.

¶ 33 In response to Cynthia’s argument, Craig argues that the trial court was not required to

assign a specific value to every item of marital property. He further argues that, if the trial court

assigned value to his furniture, that value should have been offset by the $2500 Cynthia admitted

receiving from selling the parties’ motorcycles, which was not charged to her portion of the marital

estate.

¶ 34 The trial court did not abuse its discretion by failing to assign a value to Craig’s personal

property in his possession. As to Craig’s first furniture purchase, there was no competent evidence

of its value, as the court had already found Craig’s estimates on that point to be nonprobative and

Cynthia offered no other evidence. When the parties fail to offer competent evidence of value, a

trial court’s failure to determine that value is not error. See Hluska, 2011 IL App (1st)

092636, ¶ 64. Nor did the trial court err in failing to assign a specific value for the storage cabinet

and expressly charge that amount against Craig for distribution purposes. The Act does not require

a court to place a specific value on each item of property, only to consider the total value of the

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property about which evidence was introduced. Id. ¶ 61. Here, the trial court’s comments show

that it was aware of and weighed the evidence regarding the property in each party’s possession,

including the storage cabinet, the motorcycles, the golf ball collection, and several other items, in

determining the overall value and just distribution of the marital property. Accordingly, we decline

to disturb the trial court’s award of the personal property in each party’s possession. Id.

¶ 35 3. Life Insurance

¶ 36 The last issue raised by Cynthia’s appeal is her contention that the trial court erred in

denying without explanation her request that Craig’s life be insured, either at his or her own

expense, as security for her maintenance. As with any other ruling related to maintenance, we

review this denial for abuse of discretion. Schneider, 214 Ill. 2d at 173. The party challenging the

ruling bears the burden of showing such an abuse of discretion. Id.

¶ 37 Cynthia has not shown that the trial court abused its discretion in declining to order Craig

to apply for and maintain life insurance to secure his maintenance obligation. Her only arguments

are that the Act allows the imposition of a life-insurance requirement and that the trial court must

not have adequately considered the “reasonableness” of her request for such an order because it

did not state its reasons for denying it, and Cynthia was willing to bear the expense. But the mere

fact that the Act allows a court to impose this requirement does not mean that a court should do

so. Simply put, this argument does not show any abuse of the court’s discretion to grant or deny

a request for life insurance. Cynthia is also incorrect about the trial court’s obligation to make

specific findings. The section of the Act she cites says only that such findings must be made if a

court is ordering non-guideline maintenance, and the case she cites, In re Marriage of Connors,

303 Ill. App. 3d 219, 230 (1999) actually holds the reverse, that specific findings are not mandatory

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and reviewing courts will not reverse simply because such findings were not made. We therefore

decline to disturb the trial court’s denial of Cynthia’s request for life insurance.

¶ 38 B. Craig’s Cross-Appeal

¶ 39 In his cross-appeal, Craig raises five issues, asserting that the trial court erred in (1) its

valuation of the personal property in Cynthia’s possession, (2) its maintenance calculations, (3) its

disproportionate distribution of marital assets in Cynthia’s favor, (4) its treatment of his security

deposit as a marital asset, and (5) its award of attorney fees to Cynthia.

¶ 40 1. Value of Personal Property in Cynthia’s Possession

¶ 41 Craig argues that the trial court should not have discounted his testimony about the value

of the furnishings and other personal property in the marital home, because he had lived in the

home as recently as a few years earlier and testified from memory about the value of the items in

the home. However, Craig himself acknowledged that he had no training or experience in property

valuation, supporting the trial court’s finding that his testimony about the items’ current fair market

value lacked an objective basis. The trial court also noted that Craig could not identify with

certainty which items were still in the home when Cynthia took certain items and disposed of the

remainder, and he could not show where or when items went missing. Finally, the trial court could

take into account the possibility that Craig was biased to assign higher values to the items in order

to benefit himself, and it specifically found his testimony lacked credibility.

¶ 42 In a bench trial, the trial court sits as the trier of fact, hearing the witnesses and reviewing

the direct presentation of the evidence, and it therefore is in the best position to make credibility

determinations and factual findings. In re Marriage of Matchen, 372 Ill. App. 3d 937, 946 (2007).

We therefore will not reverse the judgment in a bench trial unless it is against the manifest weight

of the evidence; that is, unless “the opposite conclusion is clearly evident or the [factual] finding

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is arbitrary, unreasonable, or not based in evidence.” Samour, Inc. v. Board of Election

Commissioners of the City of Chicago, 224 Ill. 2d 530, 544 (2007). Craig has not shown that this

standard is met here. We reject his invitation to overturn the trial court’s factual findings regarding

the value of the marital property in Cynthia’s possession.

¶ 43 2. Maintenance

¶ 44 Craig does not dispute that Cynthia should receive maintenance under the statutory

guidelines. Instead, he argues that the trial court erred by failing to (a) take into account his high

cost of living in California or (b) impute, as income to Cynthia, Social Security payments that she

could receive if she elected to begin receiving benefits at the earliest possible moment. Neither of

his arguments have merit.

¶ 45 As to whether his cost of living could be considered, Craig relies on section 504(a) of the

Act, which includes the “needs of each party” as a relevant factor in certain maintenance

determinations. See 750 ILCS 5/504(a) (West 2018). But that section applies only when a trial

court is considering whether to grant maintenance at all, or if it decides to grant non-guideline

maintenance. Neither situation exists here, where the parties expressly stipulated that Cynthia

would receive guideline maintenance. Thus, as the trial court correctly held, Craig’s cost of living

was not a factor that could be considered in setting the amount of maintenance. Craig’s argument

that the stipulation to guideline maintenance should be set aside because it is contrary to public

policy as expressed by section 504 of the Act is a misreading of the plain language of the statute.

¶ 46 As for the imputation of Social Security income to Cynthia, Craig’s argument again lacks

any legal foundation. A court may, when considering maintenance, impute income to a party if it

finds that the party is “voluntarily unemployed, is attempting to evade a support obligation, or has

unreasonably failed to take advantage of an employment opportunity.” In re Marriage of Ruvola,

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2017 IL App (2d) 160737, ¶ 39 (quoting In re Parentage of M.M., 2015 IL App (2d) 140772, ¶ 44).

Here, Cynthia is not voluntarily unemployed, nor is there any evidence that she is attempting to

avoid any support obligation. Further, insofar as her decision not to take early Social Security, a

decision that would reduce her monthly benefits by $598 for the rest of her life, could be viewed

as failing to take advantage of an opportunity for income, the trial court found that this decision

was reasonable. Craig has offered no authority to the contrary. We also note that the trial court

appropriately ordered a review of maintenance when Cynthia attains her full retirement age of 66.5

years old, at which time regular Social Security benefits may be imputed to her. We find no error

in the trial court’s maintenance calculations.

¶ 47 3. Distribution of Marital Property

¶ 48 Craig next argues that the trial court should not have awarded Cynthia 55% of the marital

estate and instead should have divided it equally between the parties. He asserts that, as he

contributed the lion’s share of the income that supported the family after the birth of the parties’

son, his larger contribution should have resulted in a division that, at a minimum, did not

“disadvantage” him. In response, Cynthia points out that she contributed financially as much or

more than Craig before their son was born, helped support the family while Craig pursued his

education, and managed the household by herself while Craig traveled frequently for work.

¶ 49 Here, the trial court’s comments show that it considered all of the statutory factors,

including each party’s contribution to the marriage. It expressly found that each party had

“contributed greatly to the marriage, both financially and emotionally.” However, the trial court

also found that Cynthia was 62 years old and unable to work due to health issues, while Craig was

11 years younger, was in good health, and had favorable future employment prospects. The trial

court also took note of relevant precedent including In re Marriage of Heroy, 385 Ill. App. 3d 640,

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662 (2008), which similarly involved a lengthy marriage and disparate earning capacity, where the

court found that a disproportionate distribution was appropriate. Balancing all of the statutory

factors, the trial court determined that Cynthia should receive 55% of the marital estate.

¶ 50 A trial court has broad discretion in the division of marital assets, and we will reverse its

determinations only if it is clear that the trial court has abused that discretion. In re Marriage of

Wojcik, 362 Ill. App. 3d 144, 161 (2005). Although section 503(d) of the Act requires a trial court

to divide marital property “in just proportions” (750 ILCS 5/503(d) (West 2018)), it is well-settled

that this command does not mandate an equal split but rather the most equitable distribution in

light of the statutory factors. See In re Civil Union of Hamlin & Vasconcellos, 2015 IL App (2d)

140231, ¶ 61 (“An equitable property division does not necessarily mean an equal distribution; a

party may receive a greater share of the property if the relevant factors warrant the result.”); Heroy,

385 Ill. App. 3d at 661 (an unequal division of marital property may be appropriate depending on

the circumstances of each case). Here, ample evidence supported the trial court’s determination

of the appropriate division of the marital estate, and Craig has not shown that its decision was an

abuse of discretion.

¶ 51 4. Security Deposit as Marital Asset

¶ 52 In April 2020, a few months before trial, Craig paid his girlfriend a $9000 security deposit

using marital funds. At trial, Craig testified that, barring damage to the property, he expected that

that security deposit would be returned to him. The trial court ruled that the security deposit was

a marital asset and awarded 55% of it, or $4950, to Cynthia. Craig asserts that this was error.

¶ 53 Craig first argues that the security deposit was simply accumulated income, out of which

he was paying temporary maintenance, and not a marital asset. But, as we have discussed, under

the Act, all of Craig’s income earned during the marriage was a marital asset. 750 ILCS

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5/503(b)(1) (West 2018). As the security deposit was “purchased” with marital funds prior to a

judgment of dissolution, it was also a marital asset. Further, to the extent that Craig is arguing that

it would be impermissible “double-counting” to treat his income as marital for property

distribution purposes and nevertheless count that income when calculating his support obligation,

the supreme court has rejected this argument. See In re Marriage of Dahm-Schell and Schell, 2021

IL 126802, ¶ 60; see also Schneider, 214 Ill. 2d at 170.

¶ 54 Craig also argues that the security deposit should not be considered a marital asset because

he does not currently have possession of it, and its value could be reduced by the time it is returned

to him. Neither of these facts are determinative. A party need not have immediate possession of

an asset for it to be considered marital property. If Craig had used marital funds to buy a

motorcycle that he then loaned to a friend, the motorcycle would still be a marital asset, the value

of which could be charged against Craig. As for the value of the security deposit, the trial court

did not err in finding that, at the time of dissolution, it was worth $9000. That is what Craig paid

for it, and although Craig testified that its value could be reduced if he damaged his home, there

was no evidence that he had yet done so. Like any other intangible asset whose ultimate value

may fluctuate, e.g., stock, the security deposit was properly valued at the time of dissolution.

Indeed, the security deposit can be viewed as an investment in housing, comparable to any other

investment. Craig has not shown that the trial court erred in treating the security deposit as a

marital asset.

¶ 55 5. Attorney Fees

¶ 56 The final issue raised in Craig’s cross-appeal concerns the trial court’s ruling that he should

contribute $20,000 to Cynthia’s legal fees. A trial court’s decision to award attorney fees “will

not be disturbed absent an abuse of discretion.” In re Marriage of Heroy, 2017 IL 120205, ¶ 13.

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As noted above, a trial court abuses its discretion only when its ruling is arbitrary, fanciful, or

unreasonable, or no reasonable person would take the view adopted by the trial court, or when its

ruling rests on an error of law. Olsen, 2015 IL App (2d) 140267, ¶ 11. Further, to the extent that

the fee award could be seen as a type of sanction, the standard of review is the same. See

Shimanovsky v. General Motors, 181 Ill. 2d 112, 120 (1998) (the decision to impose sanctions “is

within the discretion of the trial court and, thus, only a clear abuse of discretion justifies reversal”);

see also Kubian v. Labinsky, 178 Ill. App. 3d 191, 196 (1988) (an abuse of discretion occurs “where

the record shows that the party’s conduct was not unreasonable or where the sanction itself is not

just”).

¶ 57 Cynthia’s fee petition stated that she had already paid a substantial amount for attorney

fees and asked that Craig be ordered to pay $100,000 toward her unpaid balance. As Craig owed

his own attorneys $82,504, such an order would result in Craig paying a total of $182,504, or 57%

of the fees incurred by both parties. Craig asked that Cynthia’s petition be denied entirely.

¶ 58 The trial court’s ruling was set out in a detailed seven-page memorandum order. As

directed by sections 508(a) and 503(j) of the Act (750 ILCS 5/508(a), 503(j) (West 2018)), the

trial court considered and made findings on the factors listed in section 503(d) and 504(a) (id. §§

503(d), 504(a)). The trial court also relied on Heroy, 2017 IL 120205, ¶¶ 19, 21, in which the

supreme court held that the overarching issue in ordering a contribution toward attorney fees is

whether, after considering the relevant statutory factors, the court reasonably finds that requiring

a party to pay the entirety of the fees would undermine his or her financial stability, and that that

standard could be met if paying fees would require a party to invade his or her retirement account.

¶ 59 The trial court found that many of the statutory factors relating to the parties’ disparate

economic circumstances favored an award of fees. However, the trial court also found that the

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total fees expended in the case were higher than they should have been given the relative simplicity

of the case. It found that both parties’ litigiousness had contributed to the high fees, and that

Cynthia’s attorneys had incurred three-quarters of the total fees. However, it also recognized that

Craig had “ignored settlement overtures, failed to appear for a deposition, and failed to deposit pay

checks into his account,” which required Cynthia’s attorneys to incur additional expenses.

¶ 60 The trial court found that, as Cynthia had received 55% of the marital estate, she had the

ability to pay her own fees. However, to do so, she would have to invade her retirement assets. It

went on to note that, under Heroy and other Illinois case law, requiring such a reduction in

retirement assets was disfavored. Ultimately, the trial court concluded that, although requiring

Craig to pay the $100,000 that Cynthia sought would not be equitable, “considering the holding in

Heroy, *** the lack of liquidity of Cynthia’s assets and considering Craig’s gamesmanship,” it

was appropriate to order Craig to contribute $20,000 toward Cynthia’s attorney fees.

¶ 61 Craig has not challenged the reasonableness of Cynthia’s attorneys’ hourly fees or the time

expended by them. Rather, he contends that the trial court awarded fees based solely on Craig’s

purported misconduct that drove up litigation costs. Although he acknowledges that courts may

take such misconduct into account in ordering contribution to attorney fees (see In re Marriage of

Cotton, 103 Ill. 2d 346, 361 (1984)), he argues that there is no evidence of that misconduct in the

record. He also argues that in any event the $20,000 amount of the award was not justified because

it was not related to any resulting increase in fees from that misconduct. Cynthia responds that we

should not even consider these arguments because Craig failed to attach the portions of the

record—the exhibits to her fee petition—that would be necessary for us to review the trial court’s

determination that Craig unreasonably drove up the parties’ legal costs, and the amount of fees

attributable to that misconduct.

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¶ 62 In any appeal, it is the responsibility of the appellant to supply a complete record sufficient

to permit review of the issues it wishes to raise on appeal. People v. Carter, 2015 IL 117709, ¶ 19.

This requirement applies equally to cross-appellants such as Craig. In the absence of a complete

record, we must presume that the order entered by the trial court conformed to the law and had a

sufficient factual basis. Koppel v. Michael, 374 Ill. App. 3d 998, 1008 (2007) (citing Foutch v.

O’Bryant, 99 Ill. 2d 389, 391-92 (1984)). Any doubts that arise from the incompleteness of the

record must be resolved against the appellant. Carter, 2015 IL 117709, ¶ 19.

¶ 63 Here, the trial court’s award of attorney fees was based in part on its finding that Craig’s

conduct unreasonably drove up Cynthia’s litigation expenses. During the hearing on fees, Cynthia

pointed to her exhibits to show that Craig’s conduct had that effect, and to support her contention

that almost $20,000 in fees were attributable to just three instances (among many) of that conduct.

Given that the trial court clearly considered those exhibits in reaching its decision, Craig’s failure

to include the exhibits in the record on appeal prevents us from conducting an informed review of

its decision. Id.; Foutch, 99 Ill. 2d at 391-92 (1984). As we have no basis for concluding that the

trial court abused its discretion in ordering Craig to contribute $20,000 toward Cynthia’s attorney

fees, we reject Craig’s argument.

¶ 64 III. CONCLUSION

¶ 65 For the reasons stated, the judgment of the circuit court of Lake County is affirmed in part

and vacated in part. The trial court’s rulings regarding the parties’ cars, checking account balances,

debts, and Craig’s unpaid invoices in the amount of $29,600, are vacated. All of the other portions

of the judgment, including its determination that the marital estate should be distributed 55/45, are

affirmed, as is its order requiring Craig to pay $20,000 of attorney fees. The cause is remanded

for further proceedings to determine and distribute the value of the marital property as to which

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the judgment was vacated, i.e., the parties’ cars, checking account balances, debts, and Craig’s

unpaid invoices, in accordance with this decision.

¶ 66 Affirmed in part and vacated in part.

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