No. 2--07--0562 Filed: 11-18-08

_______________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DISTRICT

______________________________________________________________________________ In re MARRIAGE OF ) Appeal from the Circuit Court ANGEL INE H OLTH

AUS, ) of Du Page Co un ty. ) Petitioner and Counte

rrespon dent- ) Appellant and Cross-Appellee, ) ) and ) Nos. 05--D--553 ) 05--D--583 NICHOLAS H OLTHAUS, ) ) Honorable Respondent and Counterpetitioner- ) Rodney W. Equi, Appellee and Cross -Appella

nt. ) Judge , Pres idin g.

____________

__________________________________________________________ _________

_ PRESID ING

JUSTICE

ZENOF F delive red the o pinion of t

he court : On May10, 2007, the circuit court of Du Page County entered a judgment dissolving th e marri age between p eti tioner, Angeline Holthaus, and respondent, Nicholas Holthaus. Ang eline appealed, arguing that the trial court erred in (1) str iking he r respon se to Nicholas's r

equest to admit, (2) finding that

she dissipated $118,688, and (3) failing to treat the parties' attorney fees as advances

on their respective shares of the marital estate. N icholas filed a cross-appeal, arg uing that the trial court erred i n finding

that Ang eline diss ipated on ly $118,688. For the following reasons , we rev erse and rema nd for fu rther pr oceedin gs. BACKGROUND Angeline

and Nicholas were married on June 21, 1961. Th ey had two ch

ildren during theNo. 2--07--0562

1 Angeline testified at trial that she could not recall the last time that she and Nicholas had had "marital relations," but she ad mitted tha t during her depo sition she t

estified that it wa s in the lat

e 1990s.

2 Angeline testified at trial that she and Nicholas did not stop eating meals together, but she admitted that during her deposition she testified that Nicholas would either take his meal to another

room or e at quickl

y a nd then re treat to a separa te room. -2- marriage, both of whom were emancipated by the time of trial. During the course of the marriage, Angeline, who was in charge of the parties' finances, gambled a

t area casi nos. Nic

holas tes tified tha t she told him that th

e funds for the gambling came

from the money she

earned prep aring tax return s for people

and that, when he asked Angeline whether she had won or lost, she w ould tell him that she had broken even. Angeline testified that, when she went to the casinos, she

would often spend "a few hundred dollars," which she obtained by cashin g a check or w

ithdrawin

g money from the ATM. According to her, she would "come away with money." According

to Nicholas, in 1997

the parties ceased having a "romantic relationship" 1 and in 1998

the parties ceased sharing a bedroom. Nicholas began to sl eep in the re c room while Angeline slept

upstairs in the master bedroom. Nicholas described the environment in the home at the time as hostile. In 2001, the parties were no longer sharing meals. Although A ngeline would cook the meals or the parties would order food in, Nicholas would take his plate a nd eat in the rec room, away

from Angeline. 2 Further, in 2001, the parties not only slept in separate parts of the house but also lived in separate parts of the house. Nicholas testified that the parties livedand ate separa tely because every

conversation between them ended in an arg ument. Although there wereNo. 2--07--0562

-3-

times he thought things might get better, they always bec ame worse and there was eventua lly a point where the parties "just didn't communicate a t all." At trial, Nic holas des cribed a

n inciden t that occurred in

October 2001. After

discovering two ATM withdraw als made at the Grand Victoria Casino in Elgin, totaling $6,000, he confr onted Angeline. Her only re sponse at the time was that she wanted a divorce. The following mo nth, Angeline gave Nicholas a letter in which she outlined her "plan" for the future. She stated that she wanted th e house and that she would be responsible for pay ing the equity loan if Nicholas did not want to contribute. In addition, she stated that she would be responsible for all credit card debt. She askedthat Nicholas inform her of his plans for paying

other household and car expenses and asked that, in any case , h e continue pa ying such e xpenses until March 2002 so that she could get her "affairs in order." Angeline further stated in the letter that she and Nicholas could use the time "as

a cooling off

period or a settling of affairs period, whic hever would apply," de

pending upon whether they ch os e t o s ta y t o gether

or to sepa

rate. She

concluded the lette

r by asking N

icholas to

commu nicate

w ith her in writing, "as communication [had] completely broken down between [them]." After 2001, the par ties tog eth er attended their son's we dding, ma

de appe arance s at famil

y events, and went out to dinner several times. In a ddition, Nicholas testified that he went to casinos with Ang eline several tim es in orde r to help w ith Ange

line's m other, who acco mpanied t hem. Angeli ne's mother, Marie, lived with the parties for 16 yea rs until she passed away in Mar ch 2006. While living with the parties, Marie owned a house in C hicago. In 20 03, Angeline and Nicholas performed some repair and remodeling work on the house. Nicholastestifie d that he d id much of the physical labor involved in re pairing the house (the

other portion of the physica l laborNo. 2--07--0562

-4-

was perfor

med by contrac tors), wh

ile Ang elin e m os tl y wrote the checks to cover the costs of the repair s. He also te stifie d tha t the repairs and remodeling were paid for out of the parties' joint

accoun t. Nicholas tes tified that he and Angeline repaired Mar ie's house to prepare it for sale. Angeline testified that, although Nicholas did perform some of the work on Marie 's home, he did not do so to the exten t that he claimed. In stead, c ontract ors did muc

h of the ph

ysi cal labo

r. She als o testified that the repairs and remodeling were paid for from the procee ds of an in surance claim Marie had made for hail damage to the house sometime afte r 2000 and that, at the time the insuranc e claim

was made, the parties did not intend to sell the house. Angeline did admit, however, that the parties had twice attempted to sell Marie's home. According

to Nicholas, while Marie liv ed with hi m and Angel ine, Marie d id not have th e assets to co

ver her living expenses and, in return for paying for Mar ie's living expenses, he

believed he and Angeline would rec

eive Marie's

house. In

the end, Mari e's house did not sell, and Angeline inherited the house when Marie died. Angeline te stified that there was n

ever an agre

e ment that Marie would give the house to Angeline and Nicholas. In November 200

4, Nichol as began to

move some of

his perso

nal effe cts out of the marital home. Angeline testified that, as of January 2005, she was doing the c ooking, cleanin g, and shopping for the household. In February 2005, the parties got into an argument

after whi c

h Nicholas left the marital home permanently. He returned several times in the weeks following his departure, to retrieve some of his personal items. Nicholas testified that he believed "irreco ncilab le differences happened" as of October 2001. Angeline te

stified th at she bel ieved

the marriage was

"irretrievably broken"No. 2--07--0562

-5-

as of February 2005, when Nicholas moved out of the marital home. When

presented w

ith her deposition transc

ript in w hich she stated that she believed the marriage was irreconcilably

broken as of

1999 and th

at there was no hop e for rehabi litation at th at time, Angeline

admitted that she had made those statements during the depositio n. She also stated, however, tha

t she did n

ot remember bein

g asked those questions and that she misund erstood

the question regarding whether she believed there was hope to rehabili

tate the marriage in 1999. Angeline

filed a pe

tition for dissol

ution of the

parties' m

arriage on

March 10, 2005, in case number 05--D--553. Four days later, on March 14, 2005, Nicholas fi led hi s own petition for dissolution of the marriage in case number 05--D --583. The trial court consolidated the two cases on April 13, 2005. On March 24, 2

006, Nicholas served

Angeline with a request to admit facts, pursuant to Supreme Court Rule 216 (134 Ill. 2d R. 216), which was delivered to Angeline by Federal Express on March 27, 2006. The request asked Angeline to admit that she had withdrawn certain amounts of mo ney for gambling purposes from various accounts held by the parties, as detail ed in Exhi bit A attach

ed to the request

to admit. Exh

ibit A was

a copy of Nicholas 's

"Amended Notice of Intent to Claim Di

ssipati on of Assets," which detailed all of the alleged withdrawals from the parties' various accounts. Angeline s erved her ans

wer to Nicholas 's

request to ad mit facts

on April 26, 2006. Nic

holas su bsequen tly filed a motion to strike Angeline's

answer, a

rguing that th

e answer was served two days after the 28-day deadline provided for i n Rule 216 (c) and that Angelin

e thus sh

ould be de

emed to ha veNo. 2--07--0562

-6-

admitted all of the facts contained in the request. The trial court gra

nted Nich

olas's mo tion to strike on June 5, 2006. Following

trial, on April 24, 2007, the trial cou rt issued a letter order an

nouncin g its decision on the iss

ues prese

nted at trial . The letter s tated, in rel evant part: "Elemental to the dispo sition of this case

is the is sue of dissipati on, the date

on which the marriage was irretrievably b roken, and th

e validity of

a request to admit facts that Ms. Hol

thaus fa iled to time

ly answer. First, the c

ourt concludes that the request to ad mit i s in deed valid; while some of the facts sought may be characteri

zed as 'ultimate facts' such facts are appropriately the subject of a

request to admit. Next, the court

fixes the date of irretrievable breakdown as February[] 2005, the dat e of physi cal separation. It may be true that the irretr ievable breakdown need not be the date of physical separation or filing. Yet wh eneve r dissipation is claimed the court hears mostly self-serving testimony about how the relat ion ship had deteriorated years in a dv ance. A mo re objecti

ve determina

nt, though n

ot required, is

certainly h

elpful. Here, for in

stance, d espite

Mr. Holthaus's testimony concerning

the irretrievab

le breakdown occurrin g in 2001, h

e and Ms

. Ho lthaus worked together (actually

he says h

e did the w ork) to remodel/ repair her mot her's house well into 2003. So when was

the breakdown? There was no testimony of any 'triggering' event

after the 200

3 joint eff ort to repair Ms. H olthaus's mother's hou

se. Un der the circu

mstance s February 20

05 is the d ate that the m arr iage wa sNo. 2--07--0562

-7-

irretrievably b

roken. Theref

ore the amoun

t of dissi pation

set forth in

the Request to Admit Facts (and coincidentally supported) is $118,688.00.

*** Next the court skews the division [of the marital estate] again to offset the substantialattorney's fe es incu rre d by Mr. Holthaus as a result of 1) the tracing

necess ary to establish the amounts dissipated[,] 2) Ms. Holthaus's failure to be forthcoming

with discovery, and 3) the tw o aborted trial commenc

ements attributable

to Ms. Holthaus and her counsel. Although no specific dollar amount of those fees

is set, th e court cons

idered the above fa

ctors in the division of prop erty, and subject to this

division e

ach party

is responsible for his or her attorney's fees." The trial court en

tere d a judgm

en t of dissol

ution on May 1 0, 2007. T he judgm

ent stated that the t rial court f

ound that An

geline had

dissip ated $118,6

88, and the

trial court "allocated" that amount to her in its distribution of the marital estate. Angeline timely appealed, and Nicholas filed a timely cross-appeal. ANALYSIS On appeal, Angeline argues that the trial court erred in (1 ) striking her res ponse to Nicho las's requ est to admit, (2) finding that she dissipated $118,688, and (3) failing to trea t the parties' attorne y f ees as a dvance s on their

respec tive shar

es of the marital e state. I

n his cros s-appea

l, Nichola s argue s that the tr ial c ourt e

rred in fin ding

that A nge line d issip ated only $118, 688. W e address each of these issues in turn. A. Reque st to Admit In her open

ing brie f, Ange line arg ues th a t the tria

l court e rred in r efusing to allow he

r late response to Nicholas's request to admit, and thu s in striking the response, because there w as noNo. 2--07--0562

-8-

demonstr able preju dice t o Nich olas a s a resu lt of A ngelin e's lateresponse. Nicholas argues that the trial court pr

operly struck Angeline 's resp onsebecause the mere absence of preju dice is no t a basis for allowing a late response to a request to admit. Rather, a ccording to Nicholas, Angeline wa s
r equiredto show good cause for allowing her late response. Angeline acknowledg es in h er repl y brief that the case law supports Nicholas's position, and we a gree. Under Supreme C ourt Rule 216 (a), a pa rt y may serv e on the oppos ing party a request that

the opposing p arty admit the truth of spe

cific f acts cont ained in t

he request

. 134 Ill. 2d R. 216(a). Rule 216(c) provides:

"Each of the matters of

fact *** of which

admiss ion is requ

ested is a

dmitted unless, within 28

days after service thereof, the party to whom the request is directed serves u pon the party re

questing t

he admis

sion eithe

r (1) a sw orn statement

denying s

pecifical ly the matters of which

admiss ion is requ

ested or setting forth in detail t

he reasons why he cannot truthfully admit or deny those matters or (2) writte

n objecti ons on the grou nd that som

e or all of the

requested admissions

are privilege

d or irrelevant or

that the request is otherwise improper in whole or in part." 134 Ill. 2d R. 216(c). Pursuant to Supreme Court Rule 183, a trial court is permitted to extend the time for respondi ng to

a request to admit, "for good cause shown." 134 Ill. 2d R. 183; Bright v. Dicke , 166 Ill. 2d 204, 208 (1995 ). "Alt hough Rule 183 does give jud ges disc retion to a

llow resp onses [to re

quests to a

dmit] to be serve d bey ond the 28 -day time limit, th at dis cretion does not come i nto play under the

rule unless the responding party can first show good cause for the exten sion." Bright , 166 Ill. 2d at 209. T he absen ce of prejudice alone is insufficient to establish good cause under Rule 183.No. 2--07--0562

-9-

Bright , 166

Ill. 2d at 209. Whether good cause exists is fact-dependent and rests within the sounddiscretio

n of the trial

court; thus

, the trial c

ourt's determ

ination w ill not b

e disturbe d absent an abuse of discretion. Vision P oint of Sale, Inc

. v. Haas , 226 Ill. 2d 334, 353-54 (2007). In her respons

e to Nichola

s's motion

to strike her response to his request to admit, Angeline

did not contend that she had go od cause for the delay in responding to the request to admit. We a

re unable

to ascertain whether she made such a contention during t he hearing o

n Nichol as's moti on to strike, as the transc

ript from the

hearing wa

s not includ edin the record on appeal. See Foutch v. O'Bryant , 99 Ill. 2d 389, 391-92 (1984) ("[A]n appellant

has the bu

rden to prese

nt a suff iciently c omplete rec

ord of th e proceedings at trial to support a claim of error, and in the absence of such a r ecord on appeal, it will be presumed that

the order entered by the trial court was in conformity with law and had a sufficient

factual basis. Any doubts

which m ay arise from

the incom

pleteness

of the record will be resolved

against th

e appella

nt"). Most i mpo rtantly, how ever, Angelin e does not argue on appeal that

she demon

strated good c

ause. Thus, w e cannot s ay that the tria

l court abused its disc retion. See Bright , 166 Ill. 2d at 209 (finding proper the trial co urt' s order denying the defendant an extens io n to respond

to the plain

tiff's req uest to adm

it, where the defendant failed to show good cause). B. Diss ipation Both Angeline

and Nicholas argue

that the trial court erred in finding that Angeline dissipated $118,688. Angeline contends

that the trial

court erroneously included $86,000 that Angeline withdrew before February 2005, which the trial court determined was t heNo. 2--07--0562

-10-

date of the irretrievable

breakdown o

f the partie

s' marriage. Nicholas

, on the other hand, contends that the trial court erred in calculating the dissipation only as of February

2005. We agree with Nicholas. Section 503(d) of the Illinoi

s Marriage an

d Dissol ution of Marriage Act (Act) lists the relevant f actors a trial court should consider in determining how to distribute marital property in a diss

olution proceeding. 750 ILCS 5/503(d) (West 2006). Included in the factors is "the dissipation by each party of the marital or non-marital property ." 750 ILCS 5/503(d)(2) (West

2006). D issipat

ion is the " 'use of

marital prop erty for the sol e benefit of

one of the spou

ses for a p

urpose un

related to the marriag e at a time that the marriage is undergoing

an irreconcilable

breakdown. ' " In re Marriage of O'Neill , 138 Ill. 2d 487, 497 (1990), quoting I n re Marriage of Petrovich , 154 Ill. A pp. 3d 881 , 886 (198 7). Wheth

er dissip ation

has occurred is a question of fact to be determined by the trial court, and such

a determinat

ion will n

ot be distu

rbed on appeal unless

it is again

st the man

ifest weight of the evidence. In re Marriage of Vancura , 356 Ill. App. 3d 200, 204 (2005) (clarifying that the standard of review for a

dissipation determination is the manifest-weight-of-the-evidence standard, not

the oft-cited abuse-of-discretion standard). "A factual finding is against the manifest weight of the evidence when the opposite conclusion is c learly evide nt or the finding is arbitrary, unreasonable, or not based in evidence." Samour, In c. v. Board of Election C ommissi oners, 224 Ill. 2d 530, 544 (2007). B ef ore addressing the trial court's finding, we first note that Angeline argues that dissip ation

appli es to im proper expend itures that are made onl

y after the marriage has undergone

an irreconc

ilable b reakdown. In

support of th

is positi on, Angelin

e relies onNo. 2--07--0562

-11-

three cases: In re Marriage of DeLarco , 313 Ill. App. 3d 107 (2000), In re Marriage of Toole , 273 Ill. App. 3d 607 (1995), and O'Neill , 138 Ill. 2d 487 . In DeLarco , the appel late court, citing Toole , stated that dissipat ion "appl ies to alle

gedly improp er

expenditures of marital funds for purpose

s unrelate

d to the marria

ge, at a time after

the marriage has irretrievably

or irreconcilably broken down." (Emphasis added.) DeLarco , 313 Ill. App. 3d at 112. In Toole , the appellate court had defined it the same way , relying on the supreme court case of O'Neill

. Toole , 273 Ill. App. 3d at 615. The court in Toole , however, ap plied the holding in O'Neill to a situati on where, a t the time of t

he alleged

dissip ation, the marri age had undergo ne an irreconc

ilable b reakdown as

establis hed by the parties ' separation. As noted , in O'Neill , the

supreme court held that dissipation is the " 'use of marital property for the sole benefit of one of the

spouses for a purpose unrelated to the marriage at a time t hat the marriage is undergoing

an irreconcilable breakdown' " (emphasis added) ( O'Neill , 138 Ill. 2d at 497, quoting Petrovich , 154 Ill. App. 3d at 886), not after the marriage is irreconcilably broken. The cases of Toole

and DeLarco

are distinguishable from the present case. In Toole , the dissip ation

occurred w

hen the ma

rriage had irreconcilably broken down , rather than when the marriage wa

s in the proc

ess of irreconcilably breaking down. The court in Toole merely applied the definition contained in O'Neill to includ e within i ts coverage th

e period from the beginn

ing of the b

reakdown of

the marriage t

hrough the en try of the final j udgm ent. Additionally, Angeline's citation to DeLarco references dicta . There, the appellate

court held simply that the trial cour t had mi scalculated the attorney fees the petitioner

had paid out of marital assets. The appellate court directed the trial court, uponNo. 2--07--0562

-12-

remand, to redistrib

ute the marital estate in light of the correct amount, which was to be conside red an advan

ce on the pe

titioner's s

hare. DeLarco , 313 Ill. App. 3d at 112. In our view, none of the cases we have reviewed, including DeLarco a nd Too le , are in conflict with the holding in O'Ne

ill

. Acco rdingly, we disagree with Angeline's contention that dissip ation

occurs only after an irreconcilable breakdown has occurred, and we turn

now to the trial co

urt's spec

ific fi nding. It appears th

at the trial c

ourt calcu

lated dis sipation, not fro

m whe n the parties' marriage began un

dergoing an irreconcilable breakdown , but rather from when the parties' marriage had comp

leted the pro cess of breaking down . This is apparent from the trial court's la nguage in its letter order: "[T]he court fixes the date of irretrievable breakdo wn
as February[] 200

5, the date of physical separation." "So when was the breakdown?" "Under the circumstances February 2005 is the date that the marriage was irretrievably broken." This language demonstrates that the trial court w as attempti ng to pinpoint the date on which the parties ' marriage "w as irretrievab ly broken" rath

er than attem

pting to determine

when the marriage began to irreconcilably break down. As previously discussed, dissipation is to be calculated from t h e time the pa

rties' marri age begins to undergo an irreconc

ilable b reakdown, n

ot from a dat e after which it is irreconcilably broken. In re Marriage of Olson , 223 Ill. App. 3d 636, 647 (1992). Before reversing

the trial court, however, we must first determine whether the trial court's error in applying the incorrect standard for calculating dissipation was harmless. See In re Marriage of

Wilder , 122 Ill. App. 3d 338, 344-45 (1983) ( "not every error com mitted by the trial court in a civil case leads to reversal *** and reversal is required only where itNo. 2--07--0562

-13-

appears that the outcome might have been different had the error not occurred"). If the partie s' marriage beg

an undergoi ng an irrecon cilable breakdown i n February 20 05, then the trial court's error w as harmle ss. If, on

the other han

d, the partie

s' marriage b

eg a n undergoing

an irreconc

ilable b reakdown pri or to February 200 5, then the e

rror was not harmless, and we mu st reverse an

d remand to th

e trial court f

or a recalculat

ion of dissipation. Although

the February 2005 argument between the par ties does appear to have be en the final straw in

the process of the irreconcilable breakdown of the parties' marriage, the evidence presented at trial by both An geline and Nicholas

strongly indicates that the parties' marriage was undergoing an irreconc

ilable b reakdown lon

g before then

. Between 1997 and 2001, the parties stopped having marital relations, sleeping in the same bedroom, living in the same part of the house, sharing meals, and communicating. They were living in an environment that Nicholas testified, and Angeline d id not conte

st, was h ostile. In October 2001, following a confront ation between the parties regarding $6,000 Angeline had withdrawn

at a casin

o, Angeline

told Nich

olas she wanted a divo rce. The following month, she went so far as to write him a letter detailing her "plan" for the future, which incl ud eda suggested division of responsibility between the parties for their financial obligations

and whic

h indica ted that Angel ine wante d to keep the m

arital home

. In November

2004, Nic

holas bega

n to move

personal belongings out of the marital home, and he finally moved out permanently in February 2005. From this evi dence, w e conclu de that the parties' marriage was undergoing an irreconcilable breakdown long before February 2005

. See In re Marriage of

Ca rter , 317 I ll. App. 3d 546, 552 (2000) (holding that the trialNo. 2--07--0562

-14-

court's determination of when t he pa rties' marriage was undergoing an irreconcilable breakdown

was again

st the man

ifest weight of the evid ence whe re , prior to the date determined

by the trial court, the parties only occasionally slept together , mostly liv e d separate lives, kept fina

nces at arm's length, and did not share meals or child-rearing responsibilities). According

to the trial court's l etter order, its determination of February 2005 was based, at least in

part, on the f

act that the p

arties "work

ed together" on Marie's home in 2003. The evidence presented at trial by both parties

regarding the

repair of Mari e's home, however, fails to indicate that the parties' m

arriage was not undergoing an irreconcilable breakdown in

2003, des

pite their c

ooperation on

the repairs. Although the evidence did establish that both parties participated in the repair of Marie's house, it appears that each did so apart from the other, mu ch like they liv ed the rest of their lives. While Nicholas performed

a portion of th

e physic al labor, An

geline wrote

checks a nd hired the neces

sary contractors. Rather than s erving as a b

onding, or eve

n friendly, experience

, the proces

s of repairing Marie's house seems to have been one in which the parties

participa

tedsimply in order to sel l the home. Angeline

argues that t

he trial cou

rt could ha

ve found th

at th e ma rriage was undergoing

an irreconc

ilable b reakdown onl

y as of Feb

ru ary 2005, because prior to that date Nicholas

continue

d to live in th

e marital h

ome, the part

ies atte nded fam

ily events together such as their son's

wedding, the

parties went out to dinner together a few times, Nicholas helped Angeline take Marie to the casino, and Ang e line did t

he shoppi ng, cooking, and cleaning for the parties. We do not believe that these facts, either individuallyNo. 2--07--0562

-15-

or together, negate the obvious irr econcilable breakdown that was taking place in the parties' marriage

prior to February 2005. None of these facts indicates that the parties we

re attempting

to reconcil e or

were even getti ng along. Taken with the facts that the parti es lived in separate parts o f the hou se, slept in separate rooms, did not communicate, and rarely ate meals

to gether, the fa cts cited by Angeline indicate, at most, an effort by the parties to maintain a mi nimum level of civility in front of third parties and to keep the househol d operating. As the parties' marriage was undergoing an irreconcilable breakd own prior to February

2005, we h

old that the tri al court's erro r in ap plying the incorrect standard in calculating

dissip ation

was not ha

rmless. A ccordingl

y, we must reverse and remand this matter to the trial court. We do not fix a specific date for when the irreconcilable breakdown

bega n. Rat her, we determine only that the irreconcilable breakdown began sometime

prior to February 2005. Whether it began in the late 1990s when the p arties ceased having marital relations and sharing a bedroom or in 2001 whe n An geline sta

ted she wanted a divorce and made a plan for separating the parties ' financ

ial respon

sibilit ies

or at some other time supported by the evidence is a question of fact to be answered by the trial court. See Vancura , 356 Ill. App. 3d at 204. According ly, the trial

court's dec

ision on the issue of dissip ation is reve

rsed and the ma

tter is reman

ded for furt

her proceedi ngs

in accordance with this opinion. C. Attorney Fees Angeline's

final argument on appeal is that the trial court erred in failing to treat the parties' attorney fees

as advanc

es on their re

spective s

hares of the mari tal estate, u nderNo. 2--07--0562

-16-

section 501(c-- 1)(2) of

the Act (750 ILCS 5/501(c--1)(2) (West 2006)). Nicholas contends that Angeline

has forfeited th

is argumen

t becaus e, although

Angeline a

rgued in the trial

court that attorney fees paid by the parties should be treated as dissipation, she did not argue that they shoul d be treated a s advance

s on the ma

rital estate

purs uant to sect

ion 501(c-- 1)(2). "Issues

not raised i n the trial c ourt are [forf

eited] and

cannot be argued f

or the first time on appeal." In re Marriage of Minear , 181 Ill. 2d 552, 564 (1 9 98); see a

lso In re Marriage

of Wolff , 355 Ill. App. 3d 403, 414 (2005). Forfeiture, however, is a limitati on on the parties, not on this court. Village of Lake Villa v. Stokovich , 211 Ill. 2d 106, 121 (2004). When necessary to obtain a just res ult or to maintain

a sound an

d uniform

body of precedent, we may overlook forfeiture and address the merits of the issue. Village of

Lake Villa , 211 Ill. 2d at 121. We c hoose to addre

ss Angeli ne's conte

ntion bec ause it is necess ary to the developm

ent of a sou

nd body of p

recedent c

oncerning

the applic

ation of secti on 501(c--1)(2) of the Act. S ee Collins v. Lake Forest Hospital , 213 Ill. 2 d 234, 239 (2004) (choosing

to overlo ok forfeiture where addressing the issue was "critical to the development

of a sound body

of precedent concerning the proper interpretatio n, and thus implementation, of legisla tion conce

rning vital c

are and tre

atme nt decis ions for pa

tients lacking decisional capacity"). Angeline

contends

that, under section 501(c--1)(2), the trial court erred "a

s a matter of law" when it fai led to treat the parti es' attorney f ees as ad

vances on

their respec

tive shares of the marital estate. Rather, the trial court "skew[ed] " the div ision of the marital estate in Nicholas 's favor to off set the attorne

y fees he i ncurred as

a result of

Angeline'sNo. 2--07--0562

-17-

actions during the dissolution proceedings. Subject to that division, the trial court ordered the parties to be responsible for their respective attor ney fees. Section 501(c--1)(2) of the Act provides: "Unless otherwise ordered by the court at the final hearing be

tween the p arties or in a hearing under subsection (j) o f Section 503 or subsection (c) of Section 508, interim awards [of attorney fees], as well as the aggregate of all other payments by each party to counsel

and related

payments t

o third partie

s, shall be deemed

to have been advances

from the parties' marital estate." 750 ILCS 5/501(c--1)(2) (West 2006). The plain lan

guage of se ction 501(

c--1)( 2) makes a

pparent tha

t the trial cou

rt is require

d to treat the parties' attorne y fees as advances, " [u]nles s otherwis

e ordered ." (Emphasis added.) 750 ILCS 5

/501(c-- 1)(2) (

West 2006) ; see als

o In re Marriage

of Beyer , 324 Ill. App. 3d 305, 314 (2001) (noting that secti on 501(c- -1)(2) creates a p resumpti on that attorney fees will be treated as

advances

, but that th

e p resumpti on does not a pply where

the court orders otherwise). Here, the trial cou

rt ordered otherwise when following

trial it ordered that, subject to the divisi on

of the marital estate, which was skewed so as to compe

nsate Nic

holas for attorney f ees incurre

d as a resu

lt of Angeli ne's beh

avior during th

e proceedin

gs, the parti es
were to be responsible for their respective attorney fees. Accordi ngly, the t rial court's decision falls s quarely wi

thin the c

onfines of the statu

te. Angeline

makes no

other argument

as to why the

trial court's

decision on attorney fees was erroneous, except to argue in her repl y brief that the trial cou rt erred in not mak ing clear what portion of Nicholas's fees was attributable to Angeline's behav ior
.No. 2--07--0562

-18-

Althoug h

Angeline contends that this argument was encompassed by the general statement

in her open

ing brief th

at the trial c

ourt "comm

itted reversib

le error, as a matter of law," the argument was not addressed in her opening brief and was rais edfor the first time in her reply b

rief with no authority to support her contention o f error. Thus, we will not consider it. 210 Ill. 2d R. 341(j) (statingthat a reply br ief "shall be confined strictly to replying to argume nts prese nted in the brie f of the a

ppellee "); 210 I

ll. 2d R. 341 (h)(7) ("Points not arg ued [in the appel lant's brief] are waived and shall not be raised in the re ply brief ** *"); Sylvest er v. C hicago Park District , 179 Ill. 2d

500, 507 (1997) . Thus, we canno t say that the

trial court a

bused its discretio n in requiri ng the partie

s to be responsible for their respective

attorney fees

. See In re Marriage of Bu

ssey , 108 Ill. 2d 286, 299 (1985) ("The awarding of attorney fees and the proportion

to be paid are withi n the sound discretion of the trial court and will not be disturbed on appeal, absent an abuse of discretion"). As this matte

r is remand edfor further proceedings on the issue of dissipation, the trial court may readdress the division of the marital estate, including attorney fees, in light of its recalculation of the amount of dissipation established from the beginning of the irreconci lable brea

kdown of the

marriage

. CONCLUSION For t he foregoing re

asons, th e judgmen

t of the Du P

age County ci rcuit cou rt i s reversed and

the matter is

remanded f

or further proc

eedings

. Reversed and remanded. McLAREN and SCHOSTOK, JJ., concur

.