custody in a judgment of dissolution divorce case out of sight there are several issues that are raised on appeal in this case the simplest issue which i'd like to address first because i believe it's the simplest is the issue of the dependency deductions prior to a hearing on the entry a hearing on the remaining and slurry issues the judge in this case judge flannel had entered in order and that's part of the appendix that granted dependency deductions for the parents granting the father my client scott walton the dependency deductions for two of the children and granting mother one of those  dependency deductions without any motion to reconsider with any motion of modify dependency deductions without any request for any evidence on that issue judge flannel in his judgment on the ancillary issues entered no fit november fifteenth two thousand and thirteen which is the subject of this appeal modified to a spontaneous that dependency deduction the believe that was an abuse of discretion counsel me ask you about that you're absolutely correct in that that order was entered but i'm wondering since this was a judge not in civil rights issues that that was not included i mean basically they had resolved custody and they were asked to resolve the property of the other issues so you don't granted income exemption for devon for two thousand and twelve in future years respondent my client scott was awarded the income exemptions for charlie and riley for two thousand and twelve in future years not at any point in any further after this ruling was done was there ever a motion filed by rachel to reconsider or to modify this dependency deduction the dependency deductions are an issue of child support so there was never a request to modify the dependency dept deductions nor when the issue of setting the hearing on the judgment on ancillary issues which was a bit convoluted because first the judge said we'll make your proposals and then we came back we made the proposals there were objections and so then the judge said yes and hearing  which was then held october three two thousand and thirteen at no point was there any request suggestion statement that that would be read that that issue would be reconsidered that other issues that were in front of us there  were statements and it was clear that because of the pending motions the petition for adjudication of indirect civil contempt that rachel had filed on child support the motion to modify child support that scott had filed because he had lost his job and then th issues of the division of assets and debts and that's what i'm getting at i mean he had this notion regarding his loss at this point in was it not reasonable for the court to determine will because a change circumstances or the facts as alleged that i need to revisit that issue well the court could have announced that it was going to revisit that issue because of his of because of this but that there was never an instruction never any request today and furthermore the judge in his judgment on answer issues did not agree to allow my client to reduce his child support based on it so i could understand a party saying hey he's no longer paying the child support he was he's only paying based on his unemployment income that's not enough to support the kids i and mom should be able to get the extra thousand or two thousand per kid or dependency deductions but that isn't even the case he still my clients has still had to pay this additional transport because  he never got to reduce his child support even though his income was reduced but it's still possible that the judge could have determined that it was more beneficial for the mom to be able to claim him because your client was no longer working irrespective of whether or not court decided to allow him to reduce child support the court certainly could have but there was nothing in any part of the record or in the proceedings leading up to that hearing on the answer issues on october three three two thousand thirteen that that alerted anyone to the judge or either the parties that this was an issue that was going to be reconsidered because the court had already made that decision other issue is we're missing three days worth of hearings the transcripts right the custody the custody hearings you're not there the custody transcripts were not included that's correct because custody was not being appealed so the only issues that were h the custody proceedings pursuant to the rules where custody has to be decided first is are those the custody proceeding that's correct and do we have a new abuse or transcript of i believe one day on the other issues were there any other hearings on the other issues those weren't it was different than i'm used to handling it because i practiced more in champaign county and it's just done very differently there but on this it first and i think  the the first transcript describes this that the judge said all right i want you to turn in or there was each of the parties turned in a proposed division of assets and debts and then we turned in also  two thousand and thirteen we were allowed forty five minutes to present all the evidence on all of the pending issues those pending issues or what we anticipated and obviously not the tendency to duction since no notice had been given of that issue so perhaps it's not a simple an issue as i had anticipated arguing but that is essentially that argument there was no notice given that that he should was up for any reconsideration and just to sue a sponte decision by the judge absent any request or suggestion by  or by us or by the court that that issue was to be reviewed the the another issue is this issue of the child support there had been it's not clear in paragraph b of this judgment file november fifteenth two thousand and thirteen where the judge says the court finds respondent has a child support a ridge responded to my client which after credit for direct payments to the petitioner is found to be three thousand two hundred twenty five dollars and twenty nine cents now is that giving the full credit to my client for the money gram and other money orders given to reach walden handed livered between december twenty one two thousand and ten when the agreed order was entered agreeing that my client would pay thirty two percent of his net income as child support of between then and one year later december five two thousand and eleven when the child support order of withholding was entered here the testimony was in the request to admit the request to admit facts which were granted as well and that's part of the request wouldn't fax was starting at a fifteen with regard to paragraphs  exhibit which references exhibit eve but he had provided scott had provided direct payments of four thousand one hundred eighteen dollars and fifty one cents those are on the support order or the money orders that were handling her to reach there the the documents that were entered as exhibits and admitted as exhibits have her signature having received so this was prior to an order of withholding being entered and i believe my understanding is that the other side is objecting to those admissions that was admitted under the request to admit facts and requests to admit the genuineness of documents as to those admissions it's not clear when the judge says that there is an age of three thousand two hundred  judge decided and issued a ruling that rachel the mother would have custody of the children and my client would have visitation reasonable visitation that if she was not appeal that now i suppose my question is this for three days worth difficult to individually assign responsibility and then it says therefore that's why he's such a tiny at one on a percentage basis and then he twenty so he never mentions that issue it also brings up the you have a question you have the issue of to eighty and eighty to twenty percent is that equitable the next issue is if the court agrees with that and i'm not urging the court to agree with i think it should be close to a fifty fifty which fifty which eighty which twenty percent there are numerous debts further compounded by the bankruptcy filed by my client during the pendency of these divorce proceedings but there remain various certain amount of debts i would estimate probably about still eighty thousand sorry still about one hundred forty thousand dollars in debts that haven't been discharged because their tax liens or other other things that cannot be discharged they still have to be divided my client has been paying on some of those debts i don't believe ms walden has been paying on any of those debts and so when the judge says eighty percent goes and has to be paid by scott which eighty percent is he supposed there is there is that issue and it should have been delineated so that it's clear since it should be clear  in this case as in most of worst cases to the court that the parties don't get along and can't decide ok i'm going to pay this debt and i'm going to pay that debt then there needs to be an allocation so that one party doesn't pay some debts and the other say oh no that was when i was going to be paying that could be a forty three a list of all of the debts that my client marital debts that my client was aware of those were also part of a request to admit that was deemed admitted by the court that listed what the total amount of debts were that they were and that they were incurred during the marriage that wasn't agreed to mr cox didn't agree to it but it was part of the request to admit that was admitted by the court well so when court says eighty twenty and in the judgment tax lien rachel's going to pay that and the department of employment security scott's going to pay that and then you've got this other one you don't have that and so since the debts are marital debts under the law and under the request to admit around a thousand dollar figure and so that i'm not trying it right now but i think it it wouldn't be too difficult to find i think it was just city of champagne debt or champagne day because it was out of champagne county  judge simon brought up another issue that i'd like to also address and that is with regard to this restitution issue or this criminal case issue in which mr walton pled guilty to home repair fraud a felony he has various fines that he's to sixty seven that my client should have to pay all of that i would disagree with that suggestion or that interpretation there are certain amounts of fines that a party can be required to pay as opposed to that being considered marital debt but is the court in that in the new york case that mr constant cited states and this is one twenty nine eighty second to sixty seven sorry that's it  seventeen new york second one fifty two at nine fifty nine there sorry the section is that page two ninety three that says viewing marriage is an economic partnership we're in agreement with the proposition that spouses should share losses as well as profits liabilities as well as assets incurred in the pursuit of marital wealth upon settling the accounts of the spouses it should make no difference that wealth was acquired through unlawful means as i understand it and as i read this case this restitution paying back in scott's criminal case he's ordered to pay approximately eighty thousand dollars in restitution to the to the claimed victims that money that he received and now has to pay back went to benefit the family went to benefit rachel as well as the children are going to get it right rachel testified that she never saw any of that money she didn't get anything from the business while she testified that the scots she testified contradictorily because she also testified that scott put his pay checks into the fan joint checking account just as she put her paychecks and going checking account and then she paid were issues who's just to the custody issues so this was prior to the mathis decision which said you can't enter it all piecemeal so the part he's in may of two thousand and twelve got the divorce entered just the ground judgement they're divorced if they wanted to you tell you you're married again you're welcome to then we set the custody hearing that was set then for that september timeframe and those three days after that but i thought that when or into the judgment dissolution that it was correct and i'm sorry that it's it's confusing the record we had we had set the three days for what we thought would finish custody and all all in all the financial issues all we got to was custody so then the judge says fine just issue written suggestions bring arguments on the ancillary on the financial issues we did so there was an objection because of additional documents that were submitted so the judge reopened it and s this for each side to have forty five minutes to argue on the financial arguing presented evidence yes arguing pretty argue and present evidence i suppose it was just evidence and then we did the judge said propose your proposed order and i'll pick pick which please the court counsel i always enjoyed being involved in these proceedings i don't think i think this case is obviously very important to the court of the parties and the litigants i don't think it represents a lot of complicated issues to deal with but i suppose that's for you to decide later i'm going to be very brief there are three issues i'd like to address one is are are at the product feel on that is the criminal sanctions and whether rachel wall should have any liability and then i want to respond briefly  some issues that miss wyman has raised on appeal before i start on my remarks i just want to indicate that justice white my recollection is with yours and i don't do this in the sarcastic way toward mr white miswired with all but i think perhaps she's mistaken i am reading from her reply brief we're on page eleven it says rachel was awarded custody of the party's three minor children on may twenty ninth two thousand and twelve we've actually had a chamber conference which should be noted in the record judge that's my recollection without the record before me now in terms of my remarks obviously we have one argument on appeal of the moment and that is that the court err we understand that the court has very broad discretion on these kinds of issues but we believe th eric wanted to sign his criminal fraud restitution and fines to my client and it was the evidence supporting that statement if that is in fact what the court did you know i have to concede to the court that there's a certain lack of true that judge when i was asked about that was it the motion to reconsider or something subsequent hearing where that issue came up about do we have to pay a portion of the fines and he said something along the lines of i've considered room calling that rightly there was not extensive wall art on the motion to reconsider that that indicated that he had read our written motions and he made that comment which as you know did not provide any further clarification so the issue was before the court you don't know whether it was heard of the courts think the court basically made a few cursory remarks indicated that he was not going to reconsider and deny the most course doesn't the eighty issue in the post trial motion we were concerned that the implication was that it was included well let me ask it this way other than the fine here which is pretty significant i can understand your position should be considered goal what would account for eighty twenty split in this case i think that one of one of my third arguments here here is going to be when the judge looked at the big picture here one of the things when you look at abuse of discretion cases of us the credibility of the witnesses and when you look at this case we have a situation in which mr walton had been chronically unemployed he had been convicted of this criminal fraud conviction that his wife testified that had no knowledge of his activities or no involvement in when you look at a lot of the best just the sidemen their business status and testimony establish that in this interim unemployment as i recall it was on all only employed for a while before this contest custody and once that was not successful he moved in was on a ploy to again a lot of the debts the record will indicate were debts from him tempting something a business him attempting some kind of venture or him attempting to generate income majority of the deaths were deaths of the incurred you know we were for perfectly aware of the case law in which it says the spouse can be responsible for debts when there's some kind of benefit or fees and they're trying to make a go of it in a business this record just doesn't match that this guy was doing things on his own using the financial resources that he could pull from their accounts he took care of all those bills he took care of just transferring money end of the account as she needed to or to make it available she never got the big financial picture she was kept in the dark and while i suppose i'm speculating as well justice right i think that would account for the eighty thousand split but there were so many business steps well who put it this way in the event we were to agree with you th well it could and certainly the bankruptcy has a bearing on that through one of the issues i made in my final brief for my final reply brief and a picture that frankly since i wasn't involved in the bankruptcy and neither was this court i don't think we have a clearer picture since we're not the bankruptcy court of exactly what debts were discharged and what debts remain and maybe since we know there wasn't a house involved from the record we know that weren't vehicles involved from the record almost all the debt was unsecured debt utility providers credit card companies so forth it may be that the bankruptcy which from my knowledge of bankruptcy and i don't practice of all saul out at all make that disclaimer right up front but from my understanding of bankruptcy law what happens here is that unless are sufficient resources to cover a payment plan and this was a complete discharge the unsecured debt would be discharged in its entirety so one of the issues here maybe that all he has left are these criminal sanctions and restitution mr been a specific assignment and i'm going to argue one isn't necessarily i'm not going to argue what isn't necessarily arguable that the court has not provided that kind of clarity i think that either the parties should come to some agreement in light of what th final order is or whether or not the trial court has another crack at it on how to divide up the debts to see that there's some organized way for them to be addressed and paid pursuant to court order that we don't have admittedly there is this tension ever great respect for judge fine great respect for but i know that you see different styles from your bench all the time in terms of the detail the judges put into their final judgments and often judge flannel does not provide a lot of detail d the dates if you go back to eleven on her reply brief i suppose it's somewhat confusing but she mentions you know one of the arguments we made was it's a temporary order before custody was resolved judge flannel gave mr walden to exemptions for the three children and a one to rachel and even miss wyman sprit if she concedes that one of the things that changed after that order was entered was that my client was granted custody so if you look on page eleven and i don't want to read extensively it indicates that the dependency deductions were ordered on may twenty second two thousand and thirteen and i remember being in chambers i don't know how much of that will be on the record of the week we certainly agree in our brief that that was the day the temporary order was issued we just characterize it differently so on may twenty second two thousand and thirteen when you look at the last paragraph of her reply brief it indicates that this what we call a temporary order is entered her own language indicates that on may twenty ninth which is after that day i guess it's two thousand and twelve forgive me i misspoke prior to the custody determination so our position on now is court finalized it made perfect sense there was an intervening factual of didn't she gain custody after the original order so what sense would it make if a gentleman was on unemployment and he didn't have funds to qualify for a tax benefit he certainly can't qualify under federal law by providing more than fifty percent of the benefit and i certainly recognize illinois puts latitude in making a specific finding and changing that but that did not happen in this case track record of going in and out of employment situations i believe a good final found that he had left his employment voluntarily and of course a small indicates that he's not required to lower child support under the what is there some evidence so i believe one of the things on my first point and that is the criminal finds in restitution again reading from miss wyman to brief i was surprised we didn't find only case law on point i quoted of course the united states supreme court opinion that basically indicates that this is in persona judgement and not in ram i quoted some other cases that indicated that if spouses aware of and buys into as with the illinois law on if it were on point these business ventures and has knowledge of it that it's not unfair to hold her responsible miswire mistakes on page two or reply brief even if the court rules that rachel should be liable for the fines scott was ordered to pay she should be liable for the restitution the scottish being from the criminal case like incapacity all rachel share in the pursuit of marital wealth that scott received as a result of the work that he eventually pled guilty to this is not supported by the record this is soon facts that are not in evidence this directly contradicts the record miss walton did not know on out about this behavior she didn't know about most of the deaths she found out about a lot of these things at trial so this is certainly not a situation as miss wyman would assert it is worse she had knowledge in acquiescence of all the circumstances that led to their financial burden this is something that he did behind the scenes she was not prosecuted she was not charge she was not involved and didn't have any knowledge until i was after he was arrested that's what the record will support so it would be patently unfair and an abuse of discretion to hold an innocent spouse but simply one that's responsible for the three children for a financial burden that would basically depress their financial situation indefinitely perhaps the rest of the children's lives and that's one of the things i want the court in some here to look at i told you that there were problems walton's credibility and his appointment and what he did with money and so forth everybody has a right to appeal every right he has a right to litigate these issues i respect that i respect the process but the trial court's judgment and ultimately your judge is going to have a very big impact on these three innocent children if there's anybody innocent in this case it's the children and mr walden appears to want to remain unemployed to keep his child support  marital hall when mr walden was moved out because of the order of protection my client has maintained custody often without very much help from mr walton in this case so the big picture that the trial court saw in this case was that my client had stuck to the role in the custody decision as well i want to see if i answer the questions that you raised with miss wyman and then i'm i'm happy to yield back my time i think we've dealt with the issue of the timing of the order so forth at least that far as my recollection want to address the issue of this dependency deduction issue first and the issue that the question that keeps coming up about the trial the dependency the order on dependency deduction which two thousand one might be right because i think it was maybe two thousand and twelve you want to read that yes that's correct i would note in the record and and i should apologize as mr contemplated out in my reply brief on page eleven children on may twenty ninth two thousand and twelve with the court's memorandum decision if you go to see four forty eight which is such an accurate citation it's actually october ninth two thousand and twelve nine two thousand and twelve is when the  memorandum decision is entered the three days of trial having taken place i believe shortly before then and the court then in its memorandum decision october ninth two thousand and twelve at c four fo eight states the court having had the opportunity to consider evidence presented at trial exhibits have made it the encounter interview previously conducted minor children and reviewing the written arguments presented at the court direction and then it get grants the only thing that the court talks about is granting custody of the children to two rachel walton but that was in hopes that the parties would be able to reach an agreement asked to the other issues because it was such an instrument of it so that doesn't necessarily buy that there was no evidence on these other issues that those three year i suppose there is one can as mr cox is arguing that there wasn't that there was evidence my recollection is that there wasn't and that's why they weren't three days of testimony at about a thousand dollars a pop wasn't ordered it because this was just that was one sided the memorandum the decision then sorry the memorandum order that was entered with regard to the dependency actions occurred after the court's memorandum decision memorandum decision with regard to custody so the idea that the facts are changed because the because they hadn't been decided before and now was is just is not and does not accurately reflect the calendar that shows that custody was entered harmony because he entered october ninth two thousand and twelve and the decision as to dependency deductions was not entered until the part of the following calendar year at two thousand  contrary to it suggesting that it was voluntary or involuntary they were simply we ran out of with all due respect with the forty five minutes we ran out of time and didn't have the testimony on whether it was voluntary or involuntary now his petition his financial affidavit was file part of the record and as part of this record of appeal and which the court can consider did show the the reduction in china in his income as a result of the his unemployment and that was filed along with the petition to modify child support several months after he became unemployed and didn't have to get more employment back but there was no evidence presented that suggested his unemployment at that time was a voluntary equitable fifty fifty division of debts that my client be allocated the value of his assets which were destroyed and which i didn't have an opportunity to address but which are addressed in my brief and reply brief as well