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    "primary_text": "2020 IL App (1st) 190994\n FIFTH DIVISION\n NOVEMBER 20, 2020\n\n Nos. 1-19-0994 & 1-19-1539 (consolidated)\n\nIn re MARRIAGE of ) Appeal from the\n ) Circuit Court of\nHEATHER BUDORICK, ) Cook County.\n )\n Petitioner-Appellee, )\n ) No. 14 D2 30119\nand )\n )\nDANIEL BUDORICK, ) Honorable\n ) Regina A. Scannicchio,\n Respondent-Appellant. ) Judge Presiding.\n\n JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion.\n Justices Hoffman and Rochford concurred in the judgment and opinion.\n\n OPINION\n\n¶1 On March 24, 2014, petitioner-appellee Heather Budorick filed a petition for dissolution\n\nof her marriage from the respondent-appellant Daniel Budorick. After entering a judgment\n\naddressing the custody and care for the parties' minor children in December 2014, the circuit court\n\nof Cook County held a trial on all remaining issues in August and September 2018. The court\n\nentered a judgment for dissolution on November 28, 2018, and a modified judgment for dissolution\n\non April 10, 2019. Daniel appeals from both orders, arguing that the trial court erred in\n\n(1) classifying Heather's retirement accounts from her employment in California as nonmarital\n\nproperty, (2) classifying and valuing Heather's shares in certain restricted stock, (3) valuing\n\nHeather's and Daniel's retirement accounts at different points in time, (4) requiring Daniel to pay\n\n$50,000 in attorney fees, (5) calculating Heather's gross income for child support purposes,\n\n(6) apportioning the payment of the parties' children's future college tuition, (7) rejecting Daniel's\n\nargument that section 513 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750\n 1-19-0994 & 1-19-1539 (consolidated)\n\nILCS 5/513 (West 2018)), was unconstitutional as applied to him, (8) declining to find that\n\nHeather's IRA withdrawals constituted a dissipation of marital funds, (9) failing to order Heather\n\nto reimburse Daniel for half of the utility payments on their shared residence, and (10) considering\n\nHeather's second motion for reconsideration.\n\n¶2 For the following reasons, we affirm in part and reverse in part the judgment of the circuit\n\ncourt of Cook County and remand the case for further proceedings.\n\n¶3 BACKGROUND\n\n¶4 Heather and Daniel were married on September 3, 1995, in California. Prior to their\n\nmarriage, beginning in July 1991, Heather worked as a nurse for Los Angeles County USC\n\nMedical Center (USC). During her employment, Heather participated in the Los Angeles County\n\nEmployees Retirement Association pension program (LACERA pension), and also contributed to\n\na retirement plan for government employees (L.A. County 457 Plan). Her contributions to the\n\nLACERA pension occurred both pre- and post-marriage. The interest from her contributions\n\ncontinued to grow following the marriage. Heather took two leaves from her employment at the\n\nhospital before terminating her employment altogether on May 7, 1999. At that point, she received\n\nthe funds from her L.A. County 457 Plan. In total, she was employed by USC for five years and\n\neight months.\n\n¶5 The parties had a son born in April 2000, and the family moved to Illinois in August 2001,\n\nshortly before the birth of their second son in November 2001.\n\n¶6 In 2002, Heather began working for Hollister, Inc., a manufacturer of medical products.\n\nDuring her employment with Hollister, she participated in two retirement plans. The first plan,\n\nHolliShare, consists solely of contributions made by Hollister, while the second plan is a traditional\n\n401(k) plan that allows for employee contributions (Hollister 401(k) Plan). Heather testified that\n\n -2-\n 1-19-0994 & 1-19-1539 (consolidated)\n\nshe is only permitted to access HolliShare funds when she ends her employment with Hollister or\n\nwhen she retires. In August 2002, Heather rolled over $6,663.50 from her L.A. County 457 Plan\n\nto the Hollister 401(k) Plan.\n\n¶7 Also as part of her employment with Hollister, Heather was offered the opportunity to\n\npurchase stock in Hollister's parent company, John Dickinson Schneider, Inc. (JDS, Inc.). She\n\npurchased stock every year from 2007 to 2011, and then again in 2013 and 2014, with the help of\n\nfunds received from her parents. In 2013, she purchased 418 shares of stock, and in 2014, she\n\npurchased 334 shares. The stock is not publicly traded; can only be held by employees, officers,\n\nand directors of Hollister or JDS, Inc.; and must be sold back to the company when an employee\n\nleaves Hollister.\n\n¶8 Heather filed a petition for dissolution of marriage on March 24, 2014. In the years\n\nfollowing the filing of the petition for dissolution of marriage, Daniel pursued litigation, related to\n\nthe marriage and the petition, in federal district court, the United States Bankruptcy Court, this\n\ncourt, and the Illinois Supreme Court, all of which combined to delay trial on the petition for over\n\nfour years until August 2018.\n\n¶9 First, on March 17, 2016, Daniel filed a lawsuit against Heather's parents in federal district\n\ncourt, alleging, inter alia, conversion and a civil conspiracy with Heather to divest Daniel of\n\nmarital funds to which he was entitled. The next day (and three days before trial on Heather and\n\nDaniel's divorce proceedings was scheduled to begin in state court), Daniel filed a motion in state\n\ncourt to remove the divorce proceedings to federal court. The federal district court promptly struck\n\nDaniel's motion for removal, sua sponte. Ultimately, in December 2016, on the motion of\n\nHeather's parents, Daniel's federal lawsuit was dismissed, with the district court noting that Daniel\n\n\"unnecessarily multiplied the proceedings.\"\n\n -3-\n 1-19-0994 & 1-19-1539 (consolidated)\n\n¶ 10 Notwithstanding this admonishment, Daniel pursued an appeal of the district court's\n\ndecision to the United States Court of Appeals for the Seventh Circuit, which, in October 2017,\n\naffirmed the district court's order of dismissal and granted Heather's parents' motion for sanctions\n\nagainst Daniel, finding that Daniel's appeal was frivolous and \"unjustified by any purpose other\n\nthan to stall the divorce proceedings.\"\n\n¶ 11 While his federal litigation was pending, Daniel was also pursuing relief in this court in the\n\nform of interlocutory appeals. First, in June 2016, Daniel appealed the trial court's order denying\n\nhis motion to modify custody. We held that we lacked jurisdiction, dismissed the appeal, and\n\ndenied Daniel's petition for rehearing. See In re Marriage of Budorick, 2016 IL App (1st) 161605-\n\nU. The Illinois Supreme Court denied Daniel's petition for leave to appeal on March 27, 2017.\n\n¶ 12 On September 1, 2017, Daniel took a second interlocutory appeal to this court from the\n\ntrial court's order denying his motion to stay the divorce proceedings during the pendency of his\n\nappeal of his federal lawsuit. An automatic stay was entered. On September 19, 2017, we granted\n\nHeather's emergency motion to dismiss Daniel's appeal and lifted the automatic stay.\n\n¶ 13 Having failed to sufficiently delay the divorce proceedings through litigation in federal or\n\nstate courts, Daniel turned to the United States Bankruptcy Court. On January 7, 2018, one day\n\nprior to the date on which trial was scheduled to commence in the divorce proceedings—after\n\nbeing rescheduled four times—Daniel filed for bankruptcy. This forced the trial court to\n\nimmediately stay the divorce proceedings pending an order from the bankruptcy court.\n\n¶ 14 On February 27, 2018, the bankruptcy court granted Heather's motion for relief from an\n\nautomatic stay, allowing the trial court to reset trial for the fifth time to August 2018.\n\n¶ 15 Daniel filed two notices of intent to claim dissipation, alleging that Heather withdrew\n\n$8,800 from a Vanguard account and $25,500 from various Roth IRA and investment accounts in\n\n -4-\n 1-19-0994 & 1-19-1539 (consolidated)\n\nApril, May, and June 2016. Daniel further alleged that Heather withdrew unspecified amounts\n\nfrom investments accounts between December 2014 and the time of trial.\n\n¶ 16 At trial, the evidence revealed that Daniel was an attorney earning approximately $123,000\n\nper year, although that fluctuated due to the amount of hours he billed in any given year. Heather's\n\nemployment at Hollister earned her approximately $100,000 per year.\n\n¶ 17 In terms of assets, Heather contributed $20,699.69 to her LACERA pension plan, of which\n\napproximately $5,753.39 was contributed after the parties' marriage. Her Hollister 401(k) Plan\n\n(into which Heather rolled over her L.A. County 457 Plan) was valued at $226,402.12 as of January\n\n1, 2015, and $304,870.77 as of June 30, 2018. Her HolliShare account was valued at $181,381.84\n\nas of December 31, 2013, and at $433,897.96 as of December 31, 2017. Finally, Heather's 4,652\n\nshares of JDS stock were valued at $147,735 as of May 1, 2017. Heather's parents gifted her\n\napproximately $11,000 to purchase the JDS stock in 2013 and 2014.\n\n¶ 18 Heather also testified as to her expenses after the filing of the dissolution petition.\n\nSpecifically, she testified that in December 2016, most of 2017, and January 2018, she paid the\n\nmortgage on the family home in its entirety. Previously, Heather and Daniel had each paid half the\n\nmortgage. Heather also paid for upkeep of the family home, including purchasing a new furnace\n\nand air-conditioner and paying the real estate tax escrow shortfall.\n\n¶ 19 Heather testified that she withdrew funds from her Hollister 401(k) Plan, a Vanguard Roth\n\nIRA, and a Fidelity Roth IRA to pay attorney fees. She further testified to withdrawing $11,423.96\n\nfrom her Vanguard Small Cap Index Roth IRA between June 30, 2018, and the time of trial to pay\n\nfamily expenses. Her 2017 tax return revealed that she took IRA distributions of $36,556 from\n\nFidelity and Vanguard IRAs.\n\n -5-\n 1-19-0994 & 1-19-1539 (consolidated)\n\n¶ 20 Heather also testified that she set up and managed educational accounts for the parties'\n\nchildren, beginning when they were born, which were primarily funded by her parents. Daniel had\n\nno involvement in maintaining those accounts.\n\n¶ 21 For his part, Daniel paid for the utilities on the family home in their entirety beginning at\n\nthe end of 2014.\n\n¶ 22 The court issued its judgment for dissolution of marriage on November 28, 2018. In its\n\nmemorandum opinion, the court found that Daniel made limited to no contributions to the marital\n\nassets during the divorce proceedings. Specifically, the court found that while Daniel contributed\n\nto his 401(k) plan during the pendency of the proceedings, this was offset by his borrowing $50,000\n\nagainst the 401(k) plan to pay personal loans he had incurred. Further, the court found that Daniel's\n\nactions were detrimental to the family's finances because of his delay tactics in the divorce\n\nproceedings. The court found that Heather, on the other hand, continued her work at Hollister\n\nduring the divorce proceedings and received regular pay raises. She also contributed to her 401(k)\n\nplan and received additional HolliShares as a result of her employment.\n\n¶ 23 With these findings in mind, the court ordered that all marital assets owned by the parties\n\nbe split 50/50, including Heather's HolliShares and Hollister 401(k) plan. However, the court\n\nvalued Heather's Hollister retirement accounts as of the date closest to the date Heather filed for\n\ndivorce, rather than the date of trial. It valued Daniel's 401(k) plan as of the date of trial.\n\n¶ 24 The court determined that Heather's LACERA pension was nonmarital property, finding\n\nthat Daniel had failed to present evidence of marital contributions to that fund. The court further\n\nfound that Heather was entitled to reimbursement from the marital estate of the rollover amount\n\nfrom her L.A. County 457 Plan as that was likewise her nonmarital property.\n\n -6-\n 1-19-0994 & 1-19-1539 (consolidated)\n\n¶ 25 With regard to the JDS stock, the court found that Heather used gifted funds to purchase\n\nthe stock in 2013 and 2014, but marital funds to purchase the stock in the five years between 2007\n\nand 2011. Therefore, the court determined that Heather's JDS stock was 2/7 nonmarital and 5/7\n\nmarital. Given that the stock was valued at $147,375 in December 2017, the court awarded $42,107\n\n(2/7 of the total amount) to Heather and divided $105,268 (5/7 of the amount) between Daniel and\n\nHeather evenly.\n\n¶ 26 The court also held that if the education accounts created by Heather were insufficient to\n\npay for the children's college education, the costs for education should be paid 2/3 by Daniel and\n\n1/3 by Heather.\n\n¶ 27 The court declined to award maintenance, finding that the parties were self-sufficient.\n\nHowever, the court ordered Daniel to pay $1,300 per month in child support to Heather. In\n\ncalculating Heather's gross income for child support purposes, the court excluded the funds in her\n\nHolliShare account and also excluded Heather's IRA withdrawals. In that same vein, the court\n\nrejected Daniel's claim that Heather dissipated marital funds by withdrawing money from her IRA\n\naccount. The court found that Heather used that money to pay family expenses and attorney fees.\n\n¶ 28 Finally, the court ordered Daniel to pay $50,000 of Heather's attorney fees with his share\n\nof the proceeds from the sale of the parties' family home. The court explained that its award was\n\nnot based on the parties' ability to pay, but on the fact that Daniel \"has done everything in his\n\npower to delay and stall this case from being tried,\" which resulted in an \"exponential[ ]\n\nincrease[ ]\" in the cost of this litigation to Heather.\n\n¶ 29 Daniel moved to reconsider the judgment in December 2018, as did Heather. However,\n\nHeather withdrew her motion prior to ruling.\n\n -7-\n 1-19-0994 & 1-19-1539 (consolidated)\n\n¶ 30 The court entered a modified judgment on April 10, 2019, rejecting all of Daniel's\n\ncontentions of error with the exception of its ruling on attorney fees. The court held that Daniel\n\nwas required to pay $50,000 in attorney fees for Heather, but this payment did not need to come\n\nfrom Daniel's share of the proceeds from the sale of the marital residence.\n\n¶ 31 Also in April 2019, the bankruptcy court quashed a subpoena to Hollister and found that\n\nthe trial court awarded Daniel a money judgment rather than actual shares of JDS stock. In\n\nresponse to Daniel's motion for reconsideration, the bankruptcy court affirmed its finding that\n\nDaniel had a right only to the value of the JDS stock and not an award of JDS stock. The bankruptcy\n\ncourt ultimately entered an order of discharge.\n\n¶ 32 Meanwhile, in the trial court, on May 6, 2019, Heather moved to clarify and amend the\n\nApril 10, 2019 modified judgment for dissolution of marriage. Notwithstanding Heather's motion\n\npending in the trial court, Daniel filed a notice of appeal on May 10, 2019, of the court's November\n\n28, 2018, and April 10, 2019, orders.\n\n¶ 33 On June 24, 2019, the trial court granted Heather's motion to clarify and amend its prior\n\norder entered on April 10, 2019. The trial court's order corrected a scrivener's error that ascribed\n\nthe $6,663.50 rollover amount to JDS stock rather than to Heather's L.A. County 457 Plan and\n\nalso clarified the date by which Daniel's contribution to Heather's attorney fees was due.\n\n¶ 34 Daniel then appealed from the trial court's June 24 order. We granted Daniel's motion to\n\nconsolidate the appeals.\n\n¶ 35 ANALYSIS\n\n -8-\n 1-19-0994 & 1-19-1539 (consolidated)\n\n¶ 36 We note that we have jurisdiction to review this matter, as Daniel filed a timely notice of\n\nappeal following the modified judgment for dissolution. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R.\n\n303 (eff. July 1, 2017).\n\n¶ 37 A. Heather's California Retirement Accounts\n\n¶ 38 Daniel's first argument concerns the trial court's classification of Heather's LACERA\n\npension and L.A. County 457 Plan. Specifically, Daniel contends that the trial court erroneously\n\nfound both accounts were Heather's nonmarital property.\n\n¶ 39 All property of the parties to a marriage belongs to either the husband's estate, the wife's\n\nestate, or the marital estate. In re Marriage of Foster, 2014 IL App (1st) 123078, ¶ 68. The trial\n\ncourt must classify all property as either marital or nonmarital before dividing the property\n\nbetween the parties. 750 ILCS 5/503(a) (West 2018). We will not disturb a trial court's\n\nclassification of property unless it is against the manifest weight of the evidence. In re Marriage\n\nof Lundahl, 396 Ill. App. 3d 495, 504-05 (2009). A trial court's finding is against the manifest\n\nweight of the evidence where it is clearly apparent from the record that the trial court should have\n\nreached the opposite conclusion or where the finding is arbitrary, unreasonable, or not based on\n\nthe evidence. In re Marriage of Dhillon, 2014 IL App (3d) 130563, ¶ 29.\n\n¶ 40 The Act defines marital property as all property acquired by either spouse subsequent to\n\nthe marriage. 750 ILCS 5/503(a) (West 2018). The Act goes on to list exceptions which are known\n\nas nonmarital property. Id. Among those exceptions are \"property acquired before the marriage,\n\nexcept as it relates to retirement plans that have marital and nonmarital characteristics.\" 750 ILCS\n\n5/503(a)(6) (West 2018).\n\n¶ 41 Retirement plans are further addressed in subsection (b)(2) of the Act, which provides \"all\n\npension benefits (including *** defined benefit plans, defined contribution plans and accounts,\n\n -9-\n 1-19-0994 & 1-19-1539 (consolidated)\n\nindividual retirement accounts, and non-qualified plans) acquired by or participated in by either\n\nspouse after the marriage and before a judgment of dissolution of marriage *** are presumed to\n\nbe marital property.\" 750 ILCS 5/503(b)(2) (West 2018). That presumption may be overcome by\n\nshowing through clear and convincing evidence that the property was acquired by a method listed\n\nin subsection (a)(1). Id.; id. § 503(a)(1). It is the burden of the party who claims the property is\n\nnonmarital to rebut the presumption. In re Marriage of Stuhr, 2016 IL App (1st) 152370, ¶ 51.\n\nAny doubts as to the classification of the property will be resolved in favor of finding that the\n\nproperty is marital property. Id.\n\n¶ 42 Turning first to Heather's LACERA pension, it is undisputed that Heather's initial\n\ncontributions to the pension plan began prior to the marriage and were nonmarital. What is disputed\n\nis whether she contributed to the plan after marriage. Such contributions would presumptively be\n\nmarital (see 750 ILCS 5/503(b)(2) (West 2018)) and would have the effect of commingling marital\n\nand nonmarital property. The trial court determined that Daniel failed to present evidence that\n\nHeather made contributions to the pension plan with marital funds. We agree with Daniel that this\n\nfinding was against the manifest weight of the evidence.\n\n¶ 43 Heather introduced an exhibit detailing her contributions to LACERA by date. That exhibit\n\nreflects that Heather made at least 18 contributions to the pension plan post-marriage, totaling\n\napproximately $5,800. The exhibit further reflects that the pension continued to grow in value\n\nfollowing those postmarital contributions.\n\n¶ 44 Because the trial court erroneously concluded that Daniel failed to show marital\n\ncontributions to the pension, the court did not grapple with section 503(c), which explains how\n\ncommingled marital property should be treated:\n\n - 10 -\n 1-19-0994 & 1-19-1539 (consolidated)\n\n \"If marital and non-marital property are commingled by one estate being\n\n contributed into the other, the following shall apply:\n\n (i) If the contributed property loses its identity, the\n\n contributed property transmutes to the estate receiving the property,\n\n subject to the provisions of paragraph (2) of this subsection (c);\n\n (ii) If the contributed property retains its identity, it does not\n\n transmute and remains property of the contributing estate.\n\n ***\n\n (2)(A) When one estate of property makes a contribution to another estate\n\n of property, the contributing estate shall be reimbursed from the estate receiving\n\n the contribution notwithstanding any transmutation.\" 750 ILCS 5/503(c) (West\n\n 2018).\n\nThe court also did not consider how much of the increase in value of the pension was attributable\n\nto the nonmarital versus marital contributions. We decline to undertake this analysis for the first\n\ntime on appeal and instead remand the case to the trial court to determine whether the contributed\n\nmarital property lost its identity and transmuted to the nonmarital estate; whether the contributing\n\nestate is entitled to reimbursement; and what portion of the increase in value of the pension is\n\nmarital versus nonmarital property. See In re Marriage of Raad, 301 Ill. App. 3d 683, 687-88\n\n(1998) (where trial court erred in characterizing pension plan profits as marital property,\n\nremanding to the trial court to determine what portion of increase in value of petitioner's pension\n\nwas marital versus nonmarital property and determine right of reimbursement). In making this\n\ndetermination, the trial court should consider Heather's Exhibit 18(a), which was duly admitted\n\nduring trial and which evidences Heather's postmarital contributions to the pension plan at issue.\n\n - 11 -\n 1-19-0994 & 1-19-1539 (consolidated)\n\n¶ 45 Turning to Heather's L.A. County 457 Plan, Daniel contends that this, too, was erroneously\n\nclassified as nonmarital property. At trial, Heather testified that she received the 457 funds when\n\nshe left her employment with USC in 1999, after the parties' marriage. As such, pursuant to\n\nsubsection 503(b)(2) of the Act, this was presumptively marital property. See 750 ILCS\n\n5/503(b)(2) (West 2018) (retirement benefits acquired by either spouse after marriage is presumed\n\nmarital property); see also In re Marriage of Zamudio, 2019 IL 124676, ¶ 19 (\"acquired,\" as\n\nordinarily and popularly understood, means gaining possession or control of).\n\n¶ 46 It was Heather's burden to rebut this presumption with clear and convincing evidence that\n\nshe contributed to the retirement fund with nonmarital property. See 750 ILCS 5/503(a)(6). The\n\nsole basis by which Heather maintains that the entirety of her L.A. County 457 Plan fund was\n\nnonmarital property was her affirmative response at trial to her counsel's question during her\n\ntestimony regarding whether she had \"some retirement funds from a 457 plan prior to marriage.\"\n\nThere is no documentary evidence in the record reflecting either when or how much she\n\ncontributed to the plan. The only evidence as to the amount in the L.A. County 457 Plan is a\n\nstatement from Cigna (the Hollister 401(k) Plan administrator), indicating that Heather rolled over\n\n$6,663.50 into her Hollister Incorporated Supplemental Retirement plan in August 2002. While\n\noral testimony may establish clear and convincing evidence under certain circumstances (see In re\n\nMarriage of Henke, 313 Ill. App. 3d 159, 168 (2000)), \"the bare assertion of a nonmarital source\n\nof a particular sum of money, without supporting documentary evidence such as account records,\n\ndeposit slips, canceled checks, etc., cannot be deemed clear and convincing.\" (Emphasis in\n\noriginal.) In re Marriage of Didier, 318 Ill. App. 3d 253, 262 (2000).\n\n¶ 47 Here, we conclude that Heather's perfunctory, affirmative response to a leading question\n\nby her counsel as to the nonmarital source of the funds in the L.A. County 457 Plan did not amount\n\n - 12 -\n 1-19-0994 & 1-19-1539 (consolidated)\n\nto clear and convincing evidence. It was a self-serving statement uncorroborated by any other\n\nevidence. In fact, Heather's testimony that she continued to work at USC following the parties'\n\nmarriage, calls that testimony into doubt. As such, the trial court's characterization of the L.A.\n\nCounty 457 Plan retirement fund as Heather's nonmarital property was against the manifest weight\n\nof the evidence. See Stuhr, 2016 IL App (1st) 152370, ¶ 51 (doubts as to classification of property\n\nshould be resolved in favor of finding property is marital). Accordingly, we hold that the $6,663.50\n\nis marital property to be divided between the parties in accordance with the trial court's 50/50\n\nruling as to division of marital property and that Heather is not entitled to reimbursement of that\n\namount from the marital estate.\n\n¶ 48 B. JDS Stock\n\n¶ 49 Daniel challenges the trial court's division of Heather's JDS stock on multiple grounds; we\n\nconsider each in turn. First, Daniel argues that the trial court awarded him actual shares of JDS\n\nstock, rather than the stock's value. But the trial court's memorandum of judgment reflects the\n\ncontrary. The trial court found that Heather's JDS stock was \"2/7 non-marital and 5/7 marital.\"\n\nThe court then went on to state:\n\n \"The value provided by the company was as of May 18, 2018 indicating that the stock was\n\n worth $147,375 as of December 31, 2017, the latest valuation date. Accordingly, 2/7 of\n\n that amount ($42,107) shall be assigned to Heather as her nonmarital property, and 5/7\n\n ($105,268) shall be deemed marital property to be divided equally between Heather and\n\n Daniel.\"\n\nAnd in the \"orders\" portion of its judgment, the court reiterated: \"Heather's JDS stock valued at\n\n$147,375 shall be divided $52,634 to Daniel and the remainder to Heather. This assigns to Heather\n\n2/7 of the value of the stock as her non-marital portion, and divides the remaining 5/7 into two\n\n - 13 -\n 1-19-0994 & 1-19-1539 (consolidated)\n\nequal shares allocating 50% to each party.\" Nowhere did the court's judgment identify the number\n\nof shares Heather owned or otherwise suggest that its award was of shares as opposed to money.\n\n¶ 50 To the extent Daniel argues that the court should have awarded him actual stock, we\n\ndisagree. The evidence at trial revealed that JDS stock was \"essentially non-transferable.\" The\n\nshares are required to be sold to JDS, Inc. upon termination of the shareholder's employment, and\n\nthe only persons who can own or hold common shares of JDS Inc. are \"employees of JDS Inc.,\n\nHollister or their controlled corporations; officers and directors of JDS Inc. or Hollister who have\n\nperformed substantial and continuing services for either corporation; employee deferred benefit\n\nplans such as HolliShare; and The Firm of John Dickinson Schneider, Inc. Preferred Share Trust\n\nApril 21, 1999.\"\n\n¶ 51 In re Marriage of Schlichting, 2014 IL App (2d) 140158, is instructive. There, the trial\n\ncourt found that the petitioner's interest in an LLC was marital property and ordered her to sell a\n\nportion of her interest to the respondent. Id. ¶ 44. This contravened the LLC's operating agreement,\n\nwhich prohibited a member from selling a membership interest in the absence of unanimous\n\nconsent of the other members. Id. ¶ 5. We reversed the trial court's decision on appeal, explaining\n\nthat\n\n \"[w]hile no Illinois case requires a court to distribute marital property in accordance with\n\n an operating agreement binding one or both of the parties in their business activities,\n\n existing case law, both within and outside Illinois, comes together to establish that the\n\n failure to do so, where compliance is easily possible, constitutes an abuse of discretion.\"\n\n Id. ¶ 60. (Emphasis in original.)\n\n¶ 52 Pursuant to Schlichting, had the trial court in this case ordered Heather to turn over the\n\nshares of stock to Daniel, it, too, would have abused its discretion, where the court could easily\n\n - 14 -\n 1-19-0994 & 1-19-1539 (consolidated)\n\ncomply with Heather's employer's guidelines prohibiting her from transferring the stock to anyone\n\noutside of the specified corporate entities by awarding Daniel his share of the stock's value, rather\n\nthan the stock itself.\n\n¶ 53 Daniel's arguments that the court should have used a Qualified Domestic Relations Order\n\n(QDRO) to turn over the stock shares to him or divide the stock in accordance with a \"reserved\n\njurisdiction\" approach, are likewise unavailing. With regard to Daniel's argument that the court\n\nshould have used a QDRO to effectuate its order dividing the JDS stock, it is premised on the\n\nassumption that the trial court awarded Daniel shares of JDS stock and not merely the value of the\n\nstock. Because we have already concluded that the court's order entitled Daniel only to the cash\n\nvalue of the stock, we will not address this argument further.\n\n¶ 54 We note that the reserved jurisdiction approach that Daniel advocates is used in situations\n\nwhere an asset's present value is difficult to determine because of uncertainties surrounding when\n\nit will vest or mature. In re Marriage of Peters, 326 Ill. App. 3d 364, 371 (2001). In such a scenario,\n\nthe court will delay dividing the asset and order only how it will be divided if and when it is paid\n\nout. Id. Needless to say, that is not the case here. The present value of Heather's JDS stock is in\n\nno way uncertain. It is actual stock that Heather currently owns, not a stock option that may or\n\nmay not mature. Therefore, the reserved jurisdiction approach to dividing the asset is wholly\n\ninapplicable to this situation.\n\n¶ 55 Next, Daniel argues that the court erred in finding that the stocks purchased in 2013 and\n\n2014 were nonmarital property. As noted supra, a trial court's classification of property as marital\n\nor nonmarital will generally not be disturbed on appeal unless it is against the manifest weight of\n\nthe evidence. Lundahl, 396 Ill. App. 3d at 504-05. However, where, as here, the facts are not in\n\n - 15 -\n 1-19-0994 & 1-19-1539 (consolidated)\n\ndispute, we review the trial court's classification of property de novo. In re Marriage of Joynt, 375\n\nIll. App. 3d 817, 819 (2007).\n\n¶ 56 Subsection 503(b)(3) of the Act addresses the distribution of stock options and restricted\n\nstock, providing that:\n\n \"[A]ll stock options and restricted stock or similar form of benefit granted to either\n\n spouse after the marriage and before a judgment of dissolution of marriage or legal\n\n separation or declaration of invalidity of marriage, whether vested or non-vested or\n\n whether their value is ascertainable, are presumed to be marital property. This\n\n presumption of marital property is overcome by a showing that the stock option or\n\n restricted stock or similar form of benefit were acquired by a method listed in\n\n subsection (a) of this Section.\" (Emphasis added.) 750 ILCS 5/503(b)(3) (West\n\n 2018).\n\nSubsection (a) of section 503 defines nonmarital property, which list includes \"property acquired\n\nby gift, legacy or descent or property acquired in exchange for such property.\" 750 ILCS\n\n5/503(a)(1) (West 2018).\n\n¶ 57 Under the Act, the JDS stock was presumptively marital property as it was purchased\n\nduring the marriage. See 750 ILCS 5/503(b)(3) (West 2018). However, Heather testified that her\n\n2013 and 2014 stock purchases were made with gifted funds from her parents, thereby rebutting\n\nthe presumption. See id. On appeal, Daniel does not argue that Heather failed to prove that she\n\npurchased the stock in 2013 and 2014 with gifted funds from her parents. Rather, he suggests that\n\nsubsection 503(a)(1) does not apply to purchases of restricted stock—i.e., that all restricted stock\n\nor stock options granted to a spouse after marriage is, without exception, marital property. He cites\n\nno authority for this proposition, which is clearly contradicted by the plain language of the statute.\n\n - 16 -\n 1-19-0994 & 1-19-1539 (consolidated)\n\nWe therefore conclude that the trial court properly found that Heather's 2013 and 2014 JDS stock\n\npurchases were her nonmarital property.\n\n¶ 58 In a related argument, Daniel maintains that even if the trial court properly classified the\n\n2013 and 2014 stock purchases as nonmarital property (and, implicitly, the 2007-2011 stock\n\npurchases as marital property), the trial court erred in awarding Heather 2/7 of the present value\n\nof the JDS stock, rather than awarding her the present value of the shares she purchased with gifted\n\nfunds.\n\n¶ 59 Initially, Heather responds that Daniel waived this argument by failing to include it in his\n\ndocketing statement. It is sufficient to note that the docketing statement requires only a general\n\nstatement of the issues proposed to be raised by the parties and the failure to raise an issue in the\n\ndocketing statement will not result in the waiver of the issue on appeal. In re Marriage of Abu-\n\nHashim, 2014 IL App (1st) 122997, ¶ 17 (citing General Motors Corp. v. Pappas, 242 Ill. 2d 163,\n\n177-78 (2011)).\n\n¶ 60 Turning to the merits, we agree with Daniel that the trial court erroneously calculated\n\n$42,107 of the stock value to be nonmarital property. The evidence revealed that Heather owned\n\n4,652 shares of stock at the time of trial that was valued, as of December 31, 2017, at $147,735,\n\nor $31.75 per share. Heather did not show that $42,107 (2/7) of the present stock value was\n\ntraceable to gifts from her parents. Rather, the evidence showed that she purchased 752 shares of\n\nJDS stock with gifted funds. The value of those 752 shares (the nonmarital property) was $23,876,\n\nnot $42,107. The remaining 3,900 shares (the marital property) had a value of $123,499 (not\n\n$105,268). The trial court's conclusion that $105,268 of the stock value was marital property was\n\ntherefore a miscalculation. Daniel is therefore entitled to 50% of $123,499, or $61,912.50, not\n\n$52,634.\n\n - 17 -\n 1-19-0994 & 1-19-1539 (consolidated)\n\n¶ 61 C. Valuation of HolliShare and Heather's Hollister 401(k)\n\n¶ 62 The trial court valued Heather's HolliShare account and Heather's Hollister 401(k) funds\n\nas of the date closest to March 24, 2014, when Heather filed her petition for dissolution. However,\n\nthe court valued Daniel's 401(k) funds as of June 2018, the date closest to trial. Daniel maintains\n\nthis was error, and the court should have valued all retirement accounts as of the date closest to\n\ntrial. 1\n\n¶ 63 Subsection 503(f) of the Act, as amended in 2016, provides that in determining the value\n\nof marital or nonmarital property for purposes of property division, the trial court \"has the\n\ndiscretion to use the date of the trial or such other date as agreed upon by the parties, or ordered\n\nby the court within its discretion.\" 750 ILCS 5/503(f) (West 2018). But the trial court's discretion\n\nis not unfettered. Specifically, the court must be consistent in setting a valuation date.\n\n¶ 64 Here, the trial court's decision to value Heather's Hollister retirement assets as of a\n\ndifferent date than Daniel's retirement assets was based primarily on the court's finding that\n\nDaniel's actions in delaying and stalling the proceedings were detrimental to the family's financial\n\nwell-being. To be sure, pursuant to subsection 503(d) of the Act, in dividing marital property, the\n\ntrial court may consider, inter alia, \"each party's contribution to the acquisition, preservation, or\n\nincrease or decrease in value of the marital or non-marital property\" and whether the contribution\n\nis after proceedings for dissolution have commenced. 750 ILCS 5/503(d)(1)(iii) (West 2018).\n\nSignificantly, however, this is a factor that the court may use to determine the division of marital\n\n 1\n Daniel also suggests that by valuing Heather's retirement accounts in 2013 and 2014, the court\nsomehow found the subsequent increase in the value of those accounts was Heather's nonmarital\nproperty. It is sufficient to note that there is no support in the record for this contention. The trial court's\norder describes the increase in value as \"Heather's sole and separate property,\" not \"non-marital\nproperty.\"\n\n - 18 -\n 1-19-0994 & 1-19-1539 (consolidated)\n\nproperty, not the fixing of a date of valuation of that property. In other words, inconsistent\n\nvaluation dates cannot be used as a substitute for sanctions for frivolous behavior. Therefore, we\n\nreverse the court's findings valuing Heather's and Daniel's retirement assets as of different dates.\n\nWe remand the case for the court to use the same valuation date for those assets of Heather and\n\nDaniel that were subject to different valuation dates and to divide said assets in accordance with\n\nthe factors listed in subsection 503(d) of the Act, which includes the court's discretion.\n\n¶ 65 D. Attorney Fees\n\n¶ 66 Daniel maintains that the trial court erred in requiring him to contribute $50,000 to\n\nHeather's attorney fees. We review a trial court's fee award in dissolution proceedings for an abuse\n\nof discretion. In re Marriage of Gabriel, 2020 IL App (1st) 182710, ¶ 68. A court abuses its\n\ndiscretion where it acts arbitrarily or exceeds the bounds of reason and ignores recognized\n\nprinciples of law such that no reasonable person would take the view adopted by the court. In re\n\nMarriage of Paris, 2020 IL App (1st) 181116, ¶ 43 (citing In re Marriage of Levinson, 2013 IL\n\nApp (1st) 121696, ¶ 34)).\n\n¶ 67 Subsection 508(a) of the Act provides that a court, after considering the financial resources\n\nof the parties, may order any party to pay for his own or the opposing party's costs and attorney\n\nfees. 750 ILCS 5/508(a) (West 2018). 2 The section further states that contribution to fees from the\n\nopposing party may be awarded in accordance with section 503(j). Id. Section 503(j), in turn,\n\nprovides that an award of fees in response to a petition for contribution to fees and costs shall be\n\n 2\n Attorney fees may also be awarded irrespective of a party's ability to pay where a party fails to\ncomply with court orders or precipitates a hearing for an improper purpose. See 750 ILCS 5/508(b) (West\n2018); In re Marriage of Patel, 2013 IL App (1st) 112571, ¶ 122. Here, however, Heather's counsel\nexplicitly denied that he brought the fee petition under subsection 508(b).\n\n - 19 -\n 1-19-0994 & 1-19-1539 (consolidated)\n\nbased on the criteria for division of marital property set forth under section 503(d)(1)-(12). Id.\n\n§ 503(j) (West 2018).\n\n¶ 68 The trial court in this case cited subsections 508(a) and 503(j) of the Act in its order. Our\n\nsupreme court recently reaffirmed the principle that an award of fees pursuant to subsection 508(a)\n\nof the Act depends on the petitioning party's inability to pay. In re Marriage of Heroy, 2017 IL\n\n120205, ¶ 19. The court explained that the inability to pay does not mean that payment of the fees\n\nwould leave the party destitute, but that payment would \"undermine his or her financial stability.\"\n\nId. Here, the court made no finding that Heather was unable to pay her own fees. To the contrary,\n\nthe court specifically stated in its original order that the award was \"not based on the ability of the\n\nparties to pay.\" The court's \"clarifying\" statement in its amended memorandum of judgment that\n\nit had taken into account the parties' employment, earnings, retirement benefits, and debts in\n\nmaking its award is not tantamount to an implicit finding that Heather could not pay her attorney\n\nfees. This is particularly true in light of the court's earlier explicit statement that it did not consider\n\nthe parties' inability to pay in rendering its award.\n\n¶ 69 In sum, there are two bases on which to award attorney fees in dissolution proceedings:\n\nsubsections 508(a) and 508(b) of the Act. Heather expressly denied bringing her fee petition under\n\nsubsection 508(b) of the Act, and the court did not award fees under subsection 508(a) because it\n\nexplicitly stated that the award was \"not based on the ability of the parties to pay.\" Further, in its\n\nruling, the court made it clear that the basis of its fee award was in response to Daniel's dilatory\n\ntactics in the dissolution proceedings and was not based on either subsection 508(a) or subsection\n\n508(b) of the Act. Because the court's fee award was not based on any applicable section of the\n\nAct, we conclude that the court abused its discretion in ordering Daniel to contribute $50,000 to\n\n - 20 -\n 1-19-0994 & 1-19-1539 (consolidated)\n\nHeather's attorney fees. Therefore, we reverse that portion of the court's order. See Paris, 2020 IL\n\nApp (1st) 181116, ¶ 20 (abuse of discretion to ignore recognized legal principles).\n\n¶ 70 E. Child Support\n\n¶ 71 Daniel argues that the court erred in calculating Heather's income for child support\n\npurposes where it excluded the funds in her HolliShare account and Heather's IRA withdrawals.\n\nSubsection 505(a)(1.5) of the Act provides guidelines for calculating child support obligations,\n\nbeginning by requiring the court to determine each parent's monthly net income, which is defined\n\nas gross income minus certain deductions. 750 ILCS 5/505(a)(1.5)(A), (a)(3)(B) (West 2018).\n\nIncome, in turn, is \"any form of periodic payment to an individual, regardless of source,\" including\n\nwages, salary, pension, profit-sharing payments, and retirement benefits. 750 ILCS 28/15(d) (West\n\n2018). Ordinarily, the trial court's findings as to net income are subject to review for an abuse of\n\ndiscretion. In re Marriage of Vance, 2016 IL App (3d) 150717, ¶ 34. But here, Daniel challenges\n\nthe court's interpretation of \"income\" under the Act, requiring de novo review. See In re Marriage\n\nof McGrath, 2012 IL 112792, ¶ 10.\n\n¶ 72 Turning first to the HolliShare account, Daniel characterizes this as a profit-sharing\n\naccount. But the evidence of the characteristics of the account belies this contention. Unlike a\n\ntraditional profit-sharing account, HolliShare funds are only accessible by employees when they\n\nleave Hollister or retire. In other words, Heather cannot receive these funds as a current employee\n\nof Hollister. And because these funds were never paid to Heather, the trial court properly excluded\n\nthem as income for child support purposes. See 750 ILCS 28/15(d) (West 2018) (income is\n\nperiodic payment to individual).\n\n¶ 73 Heather's IRA disbursements present a closer question. Initially, the parties dispute\n\nwhether there was evidence in the record as to these disbursements. Daniel, citing Heather's tax\n\n - 21 -\n 1-19-0994 & 1-19-1539 (consolidated)\n\nreturns, contends that Heather withdrew $81,292 from various IRA accounts between 2015 and\n\n2017. Heather responds that her 2015 and 2016 tax returns were never introduced into evidence.\n\nWhile the returns are in the record as \"Petitioner Exhibit 1,\" the report of proceedings does not\n\nreflect that they were introduced at trial. Daniel does not argue otherwise, but maintains that his\n\n$81,392 figure is supported by Heather's testimony. We disagree. While Heather generally\n\ntestified that she used funds withdrawn from her Roth IRAs to pay attorney fees, there was no\n\nevidence as to the amount of the withdrawals or the date the withdrawals were made, making it\n\nimpossible for the trial court to include them as income. 3\n\n¶ 74 There is, however, some duly admitted evidence of Heather's IRA withdrawals from her\n\n2017 tax return. That return reflects a $36,556 distribution to Heather from a Fidelity and Vanguard\n\nIRA in 2017.\n\n¶ 75 There is a split in appellate authority as to whether IRA withdrawals constitute income.\n\nSee In re Marriage of Verhines, 2018 IL App (2d) 171034, ¶¶ 59-71 (collecting cases). (As of\n\n2012, the supreme court has declined to settle this question. In re Marriage of McGrath, 2012 IL\n\n112792, ¶ 10 n.2.) Under de novo review, the Second District has held that IRA disbursements\n\nconstitute income for child support purposes, reasoning that such disbursements are money\n\nreceived from an investment, which falls under the plain and ordinary meaning of income. In re\n\nMarriage of Lindman, 356 Ill. App. 3d 462, 466 (2005) (citing In re Marriage of Rogers, 213 Ill.\n\n2d 129, 136-37 (2004)). However, the court explained that IRA disbursements could be excluded\n\n 3\n Daniel also suggests that this court can consider the fact that Heather's 2015 and 2016 tax\nreturns were attached as exhibits to his motion for reconsideration. But exhibits to pleadings are not\nevidence. Jill Knowles Enterprises, Inc. v. Dunkin, 2017 IL App (2d) 160811, ¶ 21 (generally, document\nmust be offered by proponent and admitted into evidence by the trial court before it may be considered as\nevidence).\n\n - 22 -\n 1-19-0994 & 1-19-1539 (consolidated)\n\nfrom income if they were \"double counted,\" positing a scenario in which the court calculates a\n\nparty's child support obligation using income that has been contributed to an IRA in year one and\n\nwithdrawn from the IRA in a subsequent year. Id. at 470. In other words, the money could be\n\ncounted both on its way into and out of the IRA. Id. To avoid double-counting, the court suggested\n\nthat a trial court would have to determine the percentage of the IRA deposit it considered in\n\ncalculating income in year one and discount the later year net income calculation accordingly. Id.\n\n¶ 76 In considering the husband's motion to modify child support using an abuse of discretion\n\nstandard of review, the First District, citing Lindman, affirmed the trial court's finding that the\n\nrespondent's IRA withdrawals constituted income. In re Marriage of Eberhardt, 387 Ill. App. 3d\n\n226, 232-33 (2008).\n\n¶ 77 The Fourth District, on the other hand, reviewing for an abuse of discretion, affirmed the\n\ntrial court's finding that the respondent's IRA withdrawal was not income when considering his\n\npetition to modify child support. In re Marriage of O'Daniel, 382 Ill. App. 3d 845, 850 (2008).\n\nThe court compared an IRA to a savings account because it is ordinarily self-funded by the person\n\npossessing the account:\n\n \"The money the individual places in an IRA already belongs to that individual.\n\n When an individual withdraws money he places into an IRA, he does not gain\n\n anything as the money was already his. Therefore, it is not a gain and not income.\n\n The only portion of the IRA that would constitute a gain for the individual would\n\n be the interest and/or appreciation earnings from the IRA.\" Id.\n\nBecause the petitioner in that case did not present evidence as to what portion of the respondent's\n\nIRA withdrawal consisted of his contributions, the court could not determine what portion was\n\nincome for child support purposes. Id.\n\n - 23 -\n 1-19-0994 & 1-19-1539 (consolidated)\n\n¶ 78 Most recently, in addressing this issue in a petition to modify support, the Second District\n\nsuggested that Lindman and O'Daniel are not in \"absolute conflict.\" Verhines, 2018 IL App (2d)\n\n171034, ¶ 65. The court explained that Lindman held that IRA withdrawals are income after\n\nsubtracting for \"double counting\" and O'Daniel suggests that IRA interest and appreciation could\n\nalso constitute income. Id. Thus, \"both Lindman and O'Daniel allow for the possibility that a\n\nportion of IRA withdrawals would constitute income.\" Id.\n\n¶ 79 We agree with the premise that, notwithstanding the split of authority, all courts agree that\n\nat least some portion of IRA withdrawals may constitute income. We follow O'Daniel and\n\nconclude that IRA disbursements of interest, not principal, are income for purposes of calculating\n\nchild support.\n\n¶ 80 In this case, the trial court's basis for finding that Heather's IRA withdrawal did not\n\nconstitute income was because \"those funds are spent.\" We struggle to follow the trial court's\n\nreasoning for that conclusion. Presumably, Heather had also spent her 2015-2017 salary, but the\n\ntrial court nevertheless considered Heather's salary in determining an amount for her average\n\nincome. Thus, the trial court's reasoning for excluding the entire $36,556 IRA withdrawal in its\n\nincome calculation for Heather is without support and requires us to remand the case to the trial\n\ncourt to determine what portion of that withdrawal, if any, was attributable to interest earned on\n\nHeather's IRA investment. The trial court must then recalculate the applicable child support\n\namount accordingly. If the trial court cannot determine whether the distribution taken by Heather\n\nfrom her IRA is principal or interest, then it should consider the withdrawal on a pro rata basis,\n\ncalculated on the ratio of principal to interest in the IRA at the time of the distribution.\n\n¶ 81 F. Contribution to Educational Expenses\n\n - 24 -\n 1-19-0994 & 1-19-1539 (consolidated)\n\n¶ 82 Daniel challenges both the trial court's decision to apportion responsibility for the parties'\n\nchildren's college education between the parties as well as the actual apportionment of that\n\nresponsibility. Initially, Daniel contends that the trial court erred in addressing the payment of the\n\nchildren's college education expenses in the first place because neither party filed a petition asking\n\nthe court to do so. Section 513 of the Act allows the court to \"award sums of money out of the\n\nproperty and income of either or both parties *** as equity may require, for the educational\n\nexpenses of any child of the parties.\" 750 ILCS 5/513(a) (West 2018). Nowhere in this section is\n\na formal, stand-alone petition required before a court may make such an award. In her petition for\n\ndissolution, Heather asked that a \"determination be made as to the college education of the\n\nchildren.\" This was clearly sufficient to put the matter properly before the court for consideration.\n\n¶ 83 Daniel next argues that the court erred in requiring Heather to pay one-third of any\n\nexpenses not covered by the children's existing educational accounts, while Daniel must pay two-\n\nthirds. In awarding educational expenses for adult children, the court should consider (1) the\n\npresent and future financial resources available to the parties, (2) the standard of living the child\n\nwould have enjoyed had the parents remained married, (3) the child's financial resources, and\n\n(4) the child's academic performance. Id. § 513(j)(1)-(4). We review a section 513 award for an\n\nabuse of discretion. In re Marriage of Cianchetti, 351 Ill. App. 3d 832, 837 (2004).\n\n¶ 84 In this case, Daniel challenges the court's consideration of the first factor, contending that\n\nthe court \"ignored\" the parties' financial resources in rendering its decision. To the contrary, the\n\nrecord reveals that the court carefully considered the parties' current and future income. In\n\nparticular, the court noted that although Daniel currently earned only $20,000 more than Heather,\n\nprior to Heather's filing of the divorce petition, he often earned over two times as much as she did,\n\ndemonstrating his increased earning potential. Indeed, Daniel testified at trial that he expected to\n\n - 25 -\n 1-19-0994 & 1-19-1539 (consolidated)\n\nreceive more hours from his employer that would bring his salary closer to prefiling levels. Given\n\nthat the court also split the parties' retirement accounts evenly, we cannot say the court abused its\n\ndiscretion in requiring Daniel to contribute more to the children's college education. See Paris,\n\n2020 IL App (1st) 181116, ¶ 20 (abuse of discretion occurs where trial court's decision exceeds\n\nthe bounds of reason).\n\n¶ 85 G. Constitutionality of Section 513\n\n¶ 86 Daniel repeats the long rejected argument that section 513 of the Act is unconstitutional as\n\napplied to him because it treats married and divorced parents differently by imposing on divorced\n\nparents an obligation to pay for their children's college education without imposing a similar\n\nresponsibility on married parents. The Illinois Supreme Court rejected this argument in 1978,\n\nholding that allowing the trial court discretion to require divorced parents to pay for their children's\n\ncollege educations served the \"legitimate legislative purpose\" of minimizing \"any economic and\n\neducational disadvantages\" to children of divorced parents. Kujawinski v. Kujawinski, 71 Ill. 2d\n\n563, 580 (1978). Therefore, it concluded that section 513 did not violate the equal protection\n\nclause. Id. Daniel maintains that \"social changes\" since 1978 lessen the force of this reasoning,\n\nbut even if we agreed, we have no authority to depart from supreme court precedent. See Yakich\n\nv. Aulds, 2019 IL 123667, ¶ 13 (holding that trial court was bound to follow Kujawinski and lacked\n\nauthority to find section 513 unconstitutional as applied to respondent).\n\n¶ 87 H. Dissipation\n\n¶ 88 Dissipation occurs when a spouse uses marital property for his or her benefit, for a purpose\n\nunrelated to the marriage, at the same time the marriage is suffering from an irreconcilable\n\nbreakdown. In re Marriage of Tabassum, 377 Ill. App. 3d 761, 779 (2007). The Act requires a\n\nparty claiming dissipation to file a timely \"notice of intent,\" which must identify the property\n\n - 26 -\n 1-19-0994 & 1-19-1539 (consolidated)\n\ndissipated as well as the date or period of time when the dissipation occurred. 750 ILCS\n\n5/503(d)(2) (West 2018). The complaining spouse must make a prima facie case for dissipation\n\nbefore the burden shifts to the spouse charged with dissipation to demonstrate, with clear and\n\nconvincing evidence, how the funds were spent. In re Marriage of Stuhr, 2016 IL App (1st)\n\n152370, ¶ 65. If the spouse cannot show that the funds were spent for a legitimate family expense,\n\nthe court must find dissipation. In re Marriage of Asher-Goettler, 378 Ill. App. 3d 1023, 1031\n\n(2008). We will not disturb a trial court's finding with regard to dissipation unless it is against the\n\nmanifest weight of the evidence. Id.\n\n¶ 89 On appeal, Daniel argues that Heather dissipated $92,609 from \"IRA accounts.\" He\n\nprovides no explanation or record citations to explain how he reached this figure, but his notices\n\nof intent to seek dissipation offer some guidance. Specifically, in his first notice of intent, filed on\n\nMay 9, 2017, he alleged that Heather had withdrawn (1) $8,800 from her Vanguard account, (2) an\n\n\"undetermined [amount]\" from her Fidelity account between December 2014 and December 2015,\n\nand (3) undetermined amounts from her Vanguard and Fidelity accounts between January 2016\n\nand the present. The second notice of intent was more specific, alleging that Heather had\n\nwithdrawn (1) $10,500 from a Roth IRA account ending in 9094 in May 2016, (2) $5,000 from a\n\nFidelity account ending in 470 in April 2016, and (3) $10,000 from a Fidelity Roth account ending\n\nin 292 in June 2016.\n\n¶ 90 The trial court concluded that \"Daniel's dissipation claims have not been proven in that\n\nHeather accounted for all funds [asserted] by Daniel that she used from her accounts[,]\" finding\n\nthat Heather used the funds to pay \"family expenses and attorney fees.\" Daniel argues that this was\n\nerror because using marital funds to pay attorney fees constitutes dissipation under the law. See\n\nIn re Marriage of Weiler, 258 Ill. App. 3d 454, 464 (1994). Heather responds that Daniel did not\n\n - 27 -\n 1-19-0994 & 1-19-1539 (consolidated)\n\nmake a prima facie case of dissipation in the first instance, so the burden did not shift to her to\n\nprove that the funds were not used for an improper purpose. We agree. (While the trial court\n\nrejected Daniel's dissipation claim on the basis that Heather rebutted it with clear and convincing\n\nevidence, we may affirm the judgment on any basis in the record. See Taylor, Bean, & Whitaker\n\nMortgage Corp. v. Cocroft, 2018 IL App (1st) 170969, ¶ 60.)\n\n¶ 91 At trial, Daniel failed to introduce account statements or other evidence in support of his\n\nclaims of dissipation. Replying to Heather's argument regarding his failure to make a prima facie\n\ncase on appeal, Daniel only cites Heather's testimony that she withdrew $10,000 from her\n\n\"Hollister 401k\" to pay attorney fees and that she withdrew an unspecified amount from a Fidelity\n\nIRA. He also cites to testimony that Heather withdrew $36,556 from an IRA in 2017. But he made\n\nno attempt to tie these withdrawals to those he alleged in his notices of intent to claim dissipation.\n\nIndeed, at trial, he did not elicit testimony from Heather regarding the dates of either the Hollister\n\n401(k) fund or the Fidelity IRA withdrawals. 4 Under these circumstances, we conclude that Daniel\n\nfailed to set forth a prima facie case of dissipation. As such, the trial court properly rejected his\n\nclaim.\n\n¶ 92 I. Reimbursement of Utility Payments\n\n¶ 93 Daniel argues that the trial court erred in failing to order Heather to reimburse him for the\n\npayment of utilities on the marital residence, which he allegedly paid in full beginning in 2014. In\n\nJune 2015, Daniel petitioned Heather for contribution to household expenses, including utilities.\n\n 4\n To the extent the record contains more specific evidence of dates or amounts of Heather's\nalleged liquidation of marital assets, Daniel failed to point us to it. Parties may not treat this court as a\nrepository for facts and arguments that are not supported by specific and accurate record citations.\nTravaglini v. Ingalls Health System, 396 Ill. App. 3d 387, 405 (2009). It is not this court's responsibility\nto \"scour the record in search of facts that support the argument being advanced by a party.\" Id.\n\n - 28 -\n 1-19-0994 & 1-19-1539 (consolidated)\n\nThe record does not reveal that the trial court ever ruled on this petition. Then, in Daniel's written\n\nclosing argument following trial, he asked the court to order Heather to reimburse him for half of\n\nthe utility payments he made on the marital residence. However, the trial court's judgment again\n\ndid not address the issue of reimbursement for utility payments. Thus, there was no ruling on that\n\nissue. When Daniel subsequently filed his motion for reconsideration of the trial court's rulings,\n\nhe did not bring this omission to the court's attention. As a result, the court's order on\n\nreconsideration did not address utility payment reimbursement. Daniel now complains that it was\n\nerror for the trial court to fail to address this issue.\n\n¶ 94 It is well-settled that the party filing a motion has the responsibility to bring it to the\n\nattention of the trial court. Jackson v. Alvarez, 358 Ill. App. 3d 555, 563 (2005) (collecting cases).\n\nWhere the moving party fails to do so, and it appears no ruling has been made on the motion, it is\n\npresumed the motion was waived or abandoned. Id. Here, because Daniel failed to press the trial\n\ncourt for ruling on his original motion for contribution to utility payments, in spite of opportunities\n\nto do so, we see no reason to address the merits of that motion for the first time on appeal. See id.\n\nat 564 (where plaintiff did not seek a ruling on her motion to file an amended complaint in trial\n\ncourt, reviewing court declined to address motion on appeal).\n\n¶ 95 J. Motion for Reconsideration\n\n¶ 96 Before addressing the merits of Daniel's argument with respect to Heather's motion for\n\nreconsideration, it is helpful to begin with a detailed timeline of events following the November\n\n28, 2018 entry of judgment.\n\n¶ 97 On December 28, 2018, both parties filed motions for reconsideration pursuant to section\n\n2-1203 of the Illinois Code of Civil Procedure, permitting parties in nonjury cases to file a motion\n\nfor rehearing or modification of judgment within 30 days of the entry of that judgment. See 735\n\n - 29 -\n 1-19-0994 & 1-19-1539 (consolidated)\n\nILCS 5/2-1203(a) (West 2018). In Heather's motion, she asked the court to correct two scrivener's\n\nerrors in its judgment and also sought clarification of the portion of the court's order requiring her\n\nto turn over to Daniel $52,634 in JDS stock. Specifically, she asked the court to provide \"specific\n\ndirection\" for how she should turn over this amount, given Daniel's pending bankruptcy\n\nproceedings and the fact that the stock proceeds may belong to the bankruptcy estate or creditors.\n\nHeather ultimately withdrew this motion prior to the court's ruling on April 1, 2019.\n\n¶ 98 The court ruled on Daniel's motion for reconsideration on April 10, 2019. In its ruling, the\n\ncourt expressly noted that Heather had withdrawn her motion for reconsideration regarding how\n\n(and to whom) the JDS stock value was to be transferred and therefore declined to address that\n\nissue.\n\n¶ 99 On May 6, 2019, Heather moved to clarify and amend the court's April 10 order, asking\n\nthe court to correct a scrivener's error and also include a date by which Daniel's contribution to\n\nHeather's attorney fees were due. In addition, Heather asked the court to offset the value of JDS\n\nstock she owed to Daniel against the attorney fees Daniel owed to her.\n\n¶ 100 On June 24, 2019, the trial court granted Heather's motion to clarify the judgment,\n\ncorrected the scrivener's error, and ordered Daniel to pay Heather's attorney by September 23,\n\n2019. The court did not rule on Heather's argument for offset.\n\n¶ 101 On appeal, Daniel argues that successive posttrial motions are not allowed. He further\n\nargues that redundant motions seeking to delay appeals are likewise disallowed. Both arguments\n\nare meritless. Illinois Supreme Court Rule 274 expressly provides that where a final judgment—\n\nsuch as the November 28, 2018, order—is modified pursuant to a postjudgment motion, any party\n\naffected by the order may make a postjudgment motion directed at that superseding order. Ill. S.\n\nCt. R. 274 (eff. Oct. 14, 2005). The court modified its November 28 order on April 10, 2019;\n\n - 30 -\n 1-19-0994 & 1-19-1539 (consolidated)\n\nHeather was affected by that modified order; and she timely filed a postjudgment motion. Pursuant\n\nto Rule 274, that motion was not successive.\n\n¶ 102 Nor was Heather's May 6 postjudgment motion in any way duplicative or redundant of her\n\nwithdrawn December 28, 2018, motion. The latter asked the court for clarification as to how to\n\nturn over the JDS stock value, while the former sought to offset that value against the attorney fees\n\nthat were pending. For these reasons, Daniel's arguments relating to the court's consideration of\n\nHeather's second postjudgment motion fail.\n\n¶ 103 CONCLUSION\n\n¶ 104 For the foregoing reasons, we make the following findings:\n\n 1. Heather's postmarital contributions to the LACERA pension were marital\n\n property. On remand, the trial court should determine to what extent the growth in that\n\n pension fund was attributable to marital versus nonmarital contributions; whether the\n\n marital property transmuted to nonmarital property; and whether the marital estate was\n\n entitled to reimbursement.\n\n 2. The L.A. County 457 Plan fund was marital property. On remand, the trial\n\n court should divide it between the parties accordingly.\n\n 3. Heather was not entitled to two-thirds of the value of the JDS stock as her\n\n nonmarital property. On remand, the trial court should use the value of the shares Heather\n\n purchased with gifted funds to calculate the portion of the value of the stock that is\n\n Heather's nonmarital property.\n\n 4. Valuing Heather's and Daniel's retirement assets at different times was error.\n\n On remand, the court should value the assets as of the same time period and divide the\n\n assets in accordance with subsection 503(d) of the Act.\n\n - 31 -\n 1-19-0994 & 1-19-1539 (consolidated)\n\n 5. The court erred in concluding that the totality of Heather's 2017 IRA\n\n withdrawals was not income to her for child support purposes. On remand, the court\n\n should recalculate Heather's income, including only that portion of her 2017 IRA\n\n withdrawal that was attributable to interest earned on her IRA investment, if any, to\n\n determine the parties' child support payments.\n\n 6. The record does not establish support for the court's ruling that Heather was\n\n entitled to $50,000 in attorney fees from Daniel.\n\n The court's judgment is affirmed in all other respects.\n\n¶ 105 Affirmed in part, reversed in part, and remanded with directions.\n\n - 32 -\n 1-19-0994 & 1-19-1539 (consolidated)\n\n No. 1-19-0994\n\nCite as: In re Marriage of Budorick, 2020 IL App (1st) 190994\n\nDecision Under Review: Appeal from the Circuit Court of Cook County, No. 14-D2-\n 30119; the Hon. Regina A. Scannicchio, Judge, presiding.\n\nAttorneys Daniel Budorick, of Chicago, appellant pro se.\nfor\nAppellant:\n\nAttorneys Thomas J. Dillon, Wendy Kaleta Gattone, Nicholas S. Maragos,\nfor and Kyle T. Dillon, of McFadden & Dillon, P.C., of Chicago, for\nAppellee: appellee.\n\n - 33 -",
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