## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

In re Marriage of Bradley , 2013 IL App (5th) 100217

Appellate Court Caption I n re M A RRI AGE OF CHRI STI NE BRADL EY, Petitioner- A p p e ll e e a n d Cro s s

- A p p e ll a nt, a n d T IM O T H Y B RADL EY, Respon d e nt- A p p e ll a nt a n d Cross-Appellee

.

District & N o. Fifth District Docke t Nos. 5-10-0217, 5-11- 0223 cons.

Rule 23 Order

filed Modified upon denial
of re hearing Motion to publ ish
g rante d Opinion filed September 11, 2012

May 7, 2013

J uly 18, 2013
J uly 18, 2013

Held (Note : This syl lab us

con st it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed by the Rep o rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) In the d i s s olution of the marria g e of a nurse and a plastic surg eon, the appellate court held, inter alia
, that the pro p er t y distribution was supported by the rec ord and the considera tion of the tax conseque nces of the distribution of the retire ment acc ounts was not an abuse of discretion, and, further
, the calc ulation of the surg eon’s net income for purposes of child support was modified to ref lect the subtraction of his obligation for the children’ s health insurance ; howeve r, the issue of withholding under
t h e Income Wit hholding for Support Act was rema nded for furt h er proce eding s.

Dec ision Under Review Appea l from t h e Circuit Court of St. Clair County
, Nos. 09-D-285, 09- CH-1255; the Hon. He inz M . Rudolf, J udg e, pre siding.J udg ment Modified in part; vacated and rema nded in part with direc tions; aff irmed on all rema ining issues.

Counsel on Appea l Curtis L . Blood, of Collinsville, for appe llant.

Robert E. Wells, J r., of Pessin, Ba ird & Wells, of Be lleville, for appellee

.

Panel J USTI CE GOLDENHERSH delivere d the judgme nt of the court, with opinion.
J ustices Welch and Stewa rt conc urre d in the judgme nt and opinion.

OP INION

¶ 1 T i m o t h y Br ad l ey , re s p o n d en t in the above- sty led dissoluti on ac t i o n , ap p ea l ed t h e judgme nt of dissoluti on enter ed by the circ uit court of St. Clair County resolving numerous

a n d c o mp li c a

te d f inancial issues betwee n himself and petitioner, Christine Br adley

. Ch r is ti n e Br adley cross-a

ppeale d on various is sues. Thi s action has been ac rimonious, complicated, and heate dly contested in virtually all aspec ts. For the rea sons stated below, we aff irmed the majority of the finding s and holdings by the circ uit c ourt of St. Clair County
, modified one dispositi on, and re verse d and re manded on one dispositi on. ¶ 2 Subsequently
, Timothy Br adley filed a petiti o n fo r re h ea ri ng arguing the circ uit court made a $40,000 math err or, that our order acknow ledg ed the alleg ation, but did not consider the eff ect, if any , of said err or, and that the err or was signific ant en o u gh t o constitute

reve rsible err or. Timothy also all ege d err or by the circ uit court in considering the tax conseque nces of

sale of the parties’ assets. ¶ 3 We reque sted a response from Christine as to the first arg ument, the math err or. Christine
argued the math err or was g iven only “cur sory treatment,” i ndicating it did not rise to the level of pr ejudicial er

ror, a nd that the er

ror did not af

fec t the judgme nt as a whole

. ¶ 4 After examination of the rec ord and consideration of t h e ar gu m ents by the par ties, we
ag ree with Christine’s position for the rea s o n s s t ated below in this modified decision and deny Timothy ’s petition for re hear ing.

¶ 5 FACTS ¶ 6 The parties wer e marrie d in Portland, Ore g on, in 1991, and the mar riag e produc ed two children, born in 1992 and 1994. Christine is a nurse who stay ed at home with the children in their ear ly y ear s and later worke d with Timothy in his medical pract i ce

. T i m o t hy is a

-2-plastic surg eon who is the sole share holder of Aesthetic and Reconstruc tive Plastic Surg ery

Institut e, S.C., a medical corpor ation. An entity owne d t h e medical building and an irrevoc able trust owned 90% of the entity
, wit h the parties owning the other 10%, the benef iciarie s of the trust being Christine and the parties’ two daug hters. The parties he ld a promissory note from the entity
, L L C, for $210,000. Timothy ’s med ic a l c o r poration paid rent to L L C, with any

rent e x cee ding the mortg ag e pay ment fundingthe irre vocable trust. ¶ 7 Timothy ’s medical prac tice ran in t o p ro b l em s co n ce rn i n g privileg es at the two main hospitals in Be lleville, I llinois

. He was involved in a dispute with Memorial Hospital, which resulted in Memorial revoking his hospital privileg es, and Timothy subsequently filed suit. The other major hospi tal in Be lleville, St. El izabeth’s Hospital, later dr opped him from its staff. At the end of 2008, Timothy ’s cer tification as a board- cer

tified plastic surg eon lapsed beca use he no longe r had full admitting privileg es at a joint commission-acc redited hospital. His situ ati on essentially was that he was not board- elig ible beca use he did not have full admitting staff privileg es at a qualified hospital. He could not be cer tified until he obtained such hospital privileg es. His ap plication for temporar y privileg es so he could sit for the board-ce rt i fication examination was denied. He testified that since April of 2010, he has applied at a dozen hospitals but, due to his lack of board cer tification, his applications wer e denied. The rec ord ref

lects that Timothy ’s suit ag ainst Memorial Hospital is inactive due to his failure to pa

y the attorney s repr esenting him. As of trial, Timothy owed his attorney s in the lawsuit ag ainst Memorial Hospital appr ox imately $22,000. ¶ 8 Christine was the off ice mana g er of Timothy ’s prac tice until April of 2009, essentially handling the day -to-day operati o n s o f t he fac ility

. Timothy took no active part in such
manag ement. The responsib i l i t i es assumed by Christine included acc ounts rec eivable and

acc ounts pay able. ¶ 9 In the per iod from appr ox imately 1999 to 2000 and beyond, Timothy ’s prac tice was in
g ener al rec onstruction and worke rs’ compensation hand surg ery , as w e ll a s c osmetic surg ery

. In 2000, the office was acc redited as a surg ical fac ility

. When he was dropped from the staff of the hospitals, howeve r, the prac ti ce declined, and by the summer of 2008, he saw essentially

cosmetic patients. ¶ 10 An exhibi t submitted by Christine indicated that the lowest sala ry for a plastic surg eon

was approximately $202,000, wi th the highe r perc entile making over $472,000. The

rema ining employ ee of the prac tice testified that prior to 2007, the off ice sa w a substantial
amount of worke rs’ compensation and cosmetic surg ery p at i en ts. Both cate g ories had d ec l ined substantially since 2007, and the employ ee was trying to collect old ac co u n t s

rec eivables. ¶ 11 A major issue betwee n the parties cente rs on the testimony of Dominic Maduri, who for 12 y ear s prior to trial had been the cer tified public acc ountant for the p ar t i es and for the medical co rp o ration. In his testimony
, Maduri indicated his conce rns about the financ ial condition of the prac tice starting in 2008, including his perc eption that the prac tice could not make its retire ment contribution for t h at y ea r and his view that, g iven the ag e of the
prac tice’s acc ounts rec eivables, along with nonapplication of incoming funds to the acc ounts

rec eivables, the actua l value of said acc ounts was “nominal.” Maduri rec ounted a substantial

-3-decr ease of salary pay ments to both Christine and Timothy in 2009, with Christine rec eiving $13,250 and Timothy rec eiving $37,073. He further testified that neither party rec eived a payche ck i n 2 0 0 8

. He offe red the opinion that it would be hard to cover the medical
corpor ation’s debt by

selling the assets of the pr actice

. ¶ 12 Maduri customarily did not prepa re formal financ ial statements for Timothy ’s prac tice, and the statements prese nted as to income and expenses wer e not done in the regular course of business. He testified that he spent approximately 20 hours with Timothy
, including trial testimony , with a re sultant bill of $2,500. Madur i f urther testified that he wa s not supplied orig inal documentation conce rning many of the financ ial aspec ts of t h e co rp o ration and “re lied on [Tim othy ] to be honest and fort h ri g ht.” As to salary pay ments, he testified that Timothy ’s 2009 W2 showed $113,624.83 as g ross compensation. He also testified as to the estimated value of the equipment of Timothy ’s prac tice, but did not g ive a fair marke t value, only the history

of cost depr eciation and tax t reatment of that equipment. ¶ 13 Christine, afte r the separ ation of the parties, was hired by Ba rnes- J ewish Hospital, in St

. L ouis, Missouri, making $31.09 per hour, 30 to 40 hours a wee k, with a net monthly income of approximately $2,956.78. As stated befor e, Christine is a nurse. Ba rnes had indicated that in o rd er t o ad vance , Christine neede d to obtain a master’ s degree by taking course s at Southern I llinois University Edwar dsville, which would cost $50,000, but might be paid by Ba rnes Hospital as an employ ee benef it. The parties have two daughters, descr ibed as “two talented, extroverted daug hters who excel athletically and aca demically and are involved in
ext ra-curr icular activities.” Due to the financ ial pressure s the parties sustained, Christine used money from a daughter’s acc ount to stave off fore closure on the parties’ residenc e. The children’ s funds wer e also used to supply a vehicle for Christine so she c ould g et back and fo rt h to work. The vehicle she had driven ear lier was sold, with the money applied t o t h e prac tice’s de bts. ¶ 14 Christine testified that, except for four year s when t h e ch i l d re n wer e infants and she stay ed home by ag ree ment, she has worke d either with Timothy (1999 to 2009) or as a nurse elsewhe re. S he further testified that she had made g eog raphic moves to further Timothy ’s

car eer and educ ational opportunities. ¶ 15 As to the parties’ residenc e, other than paying ho m eo wn er ’s i n suranc e for July 2009, Timothy has not assum ed p ay ments on the mortg ag e, homeowner ’s insurance
, rea l estate taxes, or utilit ies. Christine has mad e pay ments for car insurance
, g asoline, clothes, and
g roce ries, an d s h e provided for the children’ s needs from her own ear nings. She has also

cover ed the children’ s insurance throug h her employ ment. Timothy has taken funds from his I RA for his attorney fee s. He failed to pay Christine’s life insurance and his cover ag e of her

on health insurance
, and he canc eled the residenc e’s phone service and alar m service
, as well

as Christine’s cell phone. The residenc e ultimately went into fore closure. Timothy has had the service s of a number of attorney s and has made some pay ments to those attorney s from petty cash a nd an I RA. ¶ 16 The c ircuit court c onsolidated a for eclosure action with the trial of this diss olution and

rec eived testimony and numerous exhibi ts as to the financ ial history and status of the parties and the medical prac tice. The court enter ed a finding that it had jurisdiction and a finding as

-4-to g rounds, and it made a number of finding s which will be summarized at this point in our

dispositi on and expanded upon in conside ration of the pa rties’ issues on appea l. The court noted that Timothy ’s income was a “complex issue” and ultimately fou n d h i s net to be $2,069 per month, awa

rded custody to Christine of the min o r ch i l dre n by ag ree ment, and assessed c hild support of $580 per month (28% of the net). As to the me dical pra ctice, the
court found that valuation was an are a of dispute, noted that it had debts t o t al i ng over $66,000, and ag ree d with Christine’s argument that without g oodwill, the prac tice was worth $65,000. The court, in consideration of the ac co u n ts rec eivable and acc ounts payable and debts of the corp o ra t i o n, deter mined the net value of the corpor ation to be $25,000 and

awa rded that to Timothy

. The court found individual retire ment acc ounts and Timothy ’s profit sharing to be marital proper ty , and afte r the awa

rd of the acc ounts to eac h party in their

own name, it distributed the profit sharing 75% to Christine and 25% to Timothy

. The court further considere d in valuation an ordinary income tax rate of approximately 28%. As to the consol idated fore closure action, a judgme nt of fore closure was enter ed. A $210,000 n o t e from the trust owning the prac tice’s office building was awa rded equally to the parties, and the 10% of the plan owned by the parties was awa rded to Christine. Timothy was order ed to reimburse Christine for the cost of health insurance for the two minor daug hters, $521.28 a month, and half of t he cost of unc overe d health ca re. H e wa s further

order ed to maintain a $500,000 unencumbe red life insurance policy for the be nefit of the c hildren. ¶ 17 In considering the lawsuit Timothy had filed ag ainst Memorial Hospital, the circ uit court had indicated that i t s v alue was unknown, rese rved jurisdiction over any allocation, and found the $22,354.77 owed to trial counsel for Timothy to be marital debt to be split equally
, with any future attorney fee s to be the responsibility of Timothy

. As to distribution of other debt, Timothy was deeme d liable for the debt assig ned to the value of his pr actice and was order ed to r eimburse Christine f or the daughters’ trip to E urope. The cost of the fee for the
g uardia n ad litem was to be split 75% Timothy and 25% Christine

. C h ri stine argued for maintenanc e, and Timothy ’s oral motion to order maintenanc e for him was denied. The circ uit court order ed Timothy to pay Christine $300 a month for three year s as reha bilitative maintenanc e. As to attorne y an d acc ountant fee s, Timothy was order ed to pay his own attorney fee s, the fee t o be charg ed b y h i s ac countant, and $12,215 of C hristine’s attorney fee s. ¶ 18 Var ious posttrial motions we re filed, including a posttrial motion/ motion to re consider by Christine and a motion by Timothy to reope n proofs. Said mot i o n s we re disposed of, including denial of the motion to reope n and an order modifying Timothy ’s life insurance obligations. Timothy ap p ea l ed and C hristine cross-a ppeale d. This court consolidated both
appea ls for brief

ing, a rgument, and disposition.

¶ 19 ANALYSI S ¶ 20 For the sake of clar ity
, we now consider the issues raised by the appea l and cr oss-appe al in the manner and form prese nted to us by the parties. As stated above, we will state further finding s of fa ct and disposition as require d to resolve the issues submitted.

-5-¶ 21 I

¶ 22 The first issue prese nted by Timothy is whether the circ uit court abused its discretion by disreg arding the testimony of the acc ountant that the acc ounts rec eivables of Timothy ’s medical prac tice we re of “nominal” value and instead deter mining that they had value. Timothy also alleg es that a $40,000 math err or was made in the judgme nt. Christine, in reply
, argues cr ed i b i l ity
, noting that the acc ountant testified that he had a limit ed amount of information conce rning the medical corpor ation’s financ ial activities and relied on Timothy for input into his opinion. Christine also notes that the court h ad numerous exhibi ts

conce rning the financ ial activity of the said corpor ation. The circ uit court in its order noted its consideration of these exhibi ts and testimony . I t stated:
“Included in the [c] ourt’s considerations are the debts al leg ed by [Tim othy ] (R.H. Donnelley

–$47,6 4 9.28; Capital One–$15,595; Americ an Ex press–$1,356.77; Mike Wil liams–$1,800); the [a] ccounts [r] ece ivables, ad justments to rec eivables, the collecta bility of rec eivables, the acc ount balanc es, the depre ciable assets acquir ed since 2005
, t h e profit/loss statement, sales summary , patient counts, salarie s paid in 2009,
transac tions by acc ount, expenses per book, summary of transac tions since preliminary injunction, [ c]orporate [t ]ax [r] eturns (2006- 2008) and de prec iation schedules. [C hristine] pre sents to this [c] ourt a cre dible argument that the service corpor ation, without g oodwill, has a net value of $6 5 ,000. [Tim othy ] prese nted no valuation evidenc e.” The court then offse t the acc ounts rec eivable with the acc ounts payable and deter mined the value of the corpor ation to be $25,000, exclusive of g oodwill. This figure consisted primarily of office equipment, s up plies, inventory
, and various bank acc ounts. The court rese rved consi d eration of persona l g oodwill, to be considere d in deter mining the question of Timothy ’s future income ca pacity

. ¶ 23 Given the c onsideration g iven by the cour t to the ex hibits and the fac tors involved, we conclude that the circ uit court did not abuse its discretion or rule contra ry to the evidenc e in

arr iving at the value of this closely held medical corpor ation. I t was the province of the trial
court to weig h the cre dibilit y of the witnesses ( In re Marriage of Crook
, 211 I ll. 2d 437, 813 N.E.2d 198 (2004); Eyc haner v. Gross
, 202 I ll. 2d 228, 779 N. E

. 2 d 1 1 1 5 (2 002)), and we will not re weig h the evidenc e prese nted. In her brief to this cour t, Christi ne ar g ues that the documents prepa

red by Maduri wer e not prepa red in the ordinary and regular course of b u s i n es s but wer e prepa

red with litigation in mind, and she cites to the rec ord indicati n g Maduri was not furnished with orig inal documentation, did not chec k rec eipts to deter mine the mix ture of business and persona l pay ments, relied on Timothy to be forthcoming
, and did
not do any form of audit of the corpor ation. We defe r to t h e t rial court in assessment of

cr ed ibilit y

. In re Marriage of Charles
, 284 I ll. App. 3d 339, 672 N.E.2d 57 (1996); In r e Marriage of Gurda , 304 I ll. App. 3d 1019, 1025, 711 N.E.2d 339, 343 (1999). ¶ 24 We note that the rec ord ref lects testimony by Christine, who serve d as Timothy ’s offic e manag er for 10 y ear s, the office manag er succe eding Christine, and acc ountant Maduri. The list of exhibi ts included an equipment list, a statement of the cos t s o f said equipment, a depre ciation s chedule
, and a depre ciation report for the corpor ation used for tax purposes.

-6-The court also consider ed tax returns pre pare d by Maduri. The circ uit c ourt’s order clea rly ref lects car eful considera

tion of all of these fac tors, and we cannot say the court either abused its discretion or ruled c ontrary to the manifest we ight of the evidenc e. ¶ 25 In the parties’ petition for rehe aring and response , a particula r are a is argued as the point wher e the trial court err ed mathematica lly

. After a thoroug h revie w of the parties’ arguments and the rec ord, we conclude this math err or does not undermine the circ uit court’s judgme nt. ¶ 26 Timothy argues that a $40,000 err or was made in proper ty distribution. Specific ally
, he notes the cour

t found the value of t he S uburban awar ded to him was $23,930, the va lue of the medical corpor ation awa rded to him was $25,000, and the total amount of this awa rd to him was $89,000. Timothy notes a math err or of $40,000 and argues, there fore
, a signific ant math err or was made requiring reve rsal, citing In re Marriage of Zimmerman
, 200 I ll. App. 3d 594, 558 N.E.2d 302 (1990) (math err or materia lly aff ecte d appar ent court’s intended
proper ty distribution). ¶ 27 Was the err or signific ant? We think not. The circ uit court valued the cor poration without
g oodwill at $65,000, then offse t the acc ounts rec eivables with the acc ounts payable, arr iving
at a valuation of $25,000, exactly $40,000 lower than the figure argued above as err or. The focus of our examination, howeve r, is not an easily explainable math err or, taking the prior unmodified valuation in computing this awa rd to Timothy
, but the appar ent intent of the circ uit court in its distribution decision. The circ uit court intended to awa rd the value of the

m edica l corpor ation, initial valuation or modified valuation, and whateve r level o f i t s financ ial stress, to Timothy
, the party with the appropriate licen s i n g and experience

. The
court also intended to awa rd him transportation, the S u b u rb an. The $40,000 discrepa ncy , probably ref

lecting use of the unmodified valuation, was an err or of no prac tical eff ect or prejudice to the court’s distribution decision and is not sufficie nt for reve rsal. The proper ty distribution as a whole is w ell supported by the rec ord. As noted in Christine’s response to the petition for rehe aring
, the revie wi n g court may aff irm on any basis appea

ring in the

rec ord. See McD unn v. W illiams
, 156 I ll. 2d 288, 620 N.E.2d 385 (1993); John O. Schofield, Inc. v . Nikkel , 314 I ll. App. 3d 771, 731 N.E.2d 915 (2000).

¶ 28 I I ¶ 29 T h e s ec o n d i s s u e u rge d b y T i m o t h y i s t h at t h e ci rc u i t court committed error i n considering taxes in deter mining the valuation and distribution of the parties’ retir ement

acc ounts, citing In re Marriage of Alexande r , 368 I ll. App. 3d 192, 857 N.E.2d 766 (2006). C h ri stine, in response , argued that the circ uit court was mandated to consider those t ax consequence s pursuant to section 503(d)( 12) of the I llinois Marr iag e and Dissolution of Marr iag e Act (Ac t) (750 I L CS 5/503(d)(12) (West 2010)), specific ally requiring the circ uit
court to consider th e “tax conseque nces of the proper ty division upon the respe ctive economic circ umstances of the parties.” Christine further argues that the retire ment acc ounts in the instant case wer e pretax acc ounts, so the situation in this case is distinguishable from In re M arriage of Alexande r

in that the Alexande r

acc ounts were investment acc ounts. ¶ 30 W e co n cl u d e t h at t h e ci rc uit court did not abuse its discretion in consideringthe tax
conseque nces of its distrib u t i o n of these retire ment acc ounts. The nature of said acc ounts

-7-distinguishes the parties’ situation from that of the parties in Alexande r , and we note that the

circ uit court is obligated by statute to consider the tax conseque nces of a dis tribution such

as t h e court made in the instant case

. We conclude that the circ uit court appropr iately followed the ma

ndate of the statute and that its ruling was not a n abuse of

discretion.

¶ 31 I I I ¶ 32 The third issue argued by Timothy on appea l is that the court err ed in n o t s ub t ra ct ing from its finding of net inco m e fo r p u rposes of deter mining child support his obligation, order ed by the circ uit court, to pay health insurance pay ments for the children of the parties. Ch r is tine, in opposition, argues that the rec ord ref lects Timothy had other avenue s of income. Ba sed upon the m andate of t he st atute, we deter mine that t he circuit court was require d to subtract the above- stat ed i n s u rance obligation and modify the awa rd of child support

acc ording ly

. ¶ 33 The circ uit c ourt in its order considere d Timothy ’s cor porate tax returns to be the most reliable historical data on income and deter mined his income based on his 2009 W2, persona l obligations paid with Timothy ’s corpor ate cre dit car d and by corpor ate chec k, and the value of the vehi cl e provided to Timothy

. The circ uit court also found that while Timothy had d ev o ted substantial time and resour ces to this dissoluti on litigation which “unavoida bl y aff ecte d his curr ent income,” the court did not make a finding that he was not making a g oodfaith effort to ear

n suffi cient income. The court further noted t hat i t anticipated Timothy ’s income would incre ase and that if this occur red, a petition to incre ase child support could be filed by Christine. After revie wing various financ ial statements, the court found Timothy ’s

curr ent m onthly net i n co me t o be $2,069 and ordered child support in the amount of $580 per month, 28% of that repor ted net. It also order ed pay ment of $521.28 per

month for the children’ s h e a lt

h insur ance

. Timothy argues that pursuant to section 505(a) (4) of the Act (750 I L CS 5/505(a)( 4) (West 2010)), the health insurance pay ment for the children was require d
to be deducte d from the court’s finding of net income before a d et ermination of 28% was made. Christ ine, as stated above, argue d that the evidence shows other avenues of income for Timot hy

. We reiter ate that the court fou n d t h e n et figure of $2,069 per month and that

arr iving at that figure, the circ uit court did not subtract the insurance obligation. Acc ording ly
, pursuant to I llinois Supreme Court Rule 366 (ef f. Fe b. 1, 1994), we reduc e the child support obligation of Timothy from $580 per month to $433.36 per month pursuant to statute. Whil e a cir cuit court may

deviate from the perc entag e of net income noting its finding s expl icitly under the statute, the circ uit court in the instant case deter mined not to deviate. Acc ording ly
, we modify

this finding of the circ uit court.

¶ 34 I V ¶ 35 Timothy ’s next argument deals with maintenanc e. He argues that th e ma in te nance awa

rd, $300 a month fo r a p er i o d of three y ear s, along with the other obligations that the court order ed him to assume, exceede d his monthly income and, acc ording ly
, constituted an abuse of discretion. Christine, in opposition, argues that the circ uit court did not abuse its discretion i n that it hear d evidenc e on and applied all of the fac tors rele vant to deter mination o f

-8-maintenanc e under section 504 of the Act (750 I L CS 5/504 (West 20 1 0)). Christine also

argues that, pursuant t o s ec t i o n 5 0 4 of the Act, the court had to consider fac tors of the absenc e of any

signific ant nonmarital prope rties of the parties, Christine’s need to r elocate due to fore closure of the hom e, her responsibilities as t o the parties’ two minor daug hters, future ear nings of Timothy as a plastic surg eon, as opposed to Christine’s future ear ning
capa city as a nurse, the time and e ffor t nece ssary

for Christine to adva

nce he r prof

essional position by further education, the standard of living established by the parties, the duration of the marria g e (appr ox imately 19 year s), and the ag e of the parties (Timothy 49, Christine 45). Section 504(a) (3) of the Act (750 I L CS 5/504(a)( 3) (West 2010)) direc ts the circ uit court to consider the pre s ent and future ear ning capa cities of the parties, and the circ uit court clea rly did so in the instant case. ¶ 36 The c ircuit court in its order indicated that it consider ed the f ollowing f

actor s: “t h e i n come and proper

ty of eac h party , their prese nt and future ear ning capa city ; th e time nece ssary to acquir e appropr iate education, t ra i n i n g, and employ ment; a party ’s ability to support herse lf; the duration o f the marria g e and the standard of living established during it; the ag e and phy sical and emotional conditions of the parties and
any other fa ctor the c ourt finds to be just and equitable.” The circ uit court further noted that there is an established income disparity betwee n the parties’ curr ent and future ear ning capa cities, Christine being a reg istered nurse and Timothy b eing a plastic surg eon. The court then conclude d that reha bilitative maintenanc e wa s appropr iate and set the terms of the said maintenanc e at $300 per month for a period of three
y ear s. ¶ 37 We conclude that the circ u i t co u rt d id not abuse its discretion in deter mining both the question of maintenanc e and its amount. Whil e expli citly noting that the court had considere d the assets and distributions
, it further noted that it was considering future ear ning
capa city

. The rec ord also ref lects Timothy ’s use of corpor ate and other assets to pay persona l
expenses. In the context of the entire case , taking into acc ount all of his source s of income, that the maintenanc e awa rded was reha

bilitative f

or a finite period of time, the distribution of assets to the party , and the future ear ning capa city of both parties, we are unable to say that the awa rd was an abuse of discretion. In keeping with the leg islative intent of reha bilitative maintenanc e, the c ircuit court noted: “[S] aid duration and amount will provide incentive for [C hristine] to procur e i n an expeditious and just manner the additional educat i o n , training and skills nece ssary to attain independe nce as soon as prac ticable. IRMO Carpenter
, 286 I ll. App. 3d 969, 973 (5th Dist. 1997).”

¶ 38 V ¶ 39 The next point of appea l conce rns attorney fee s. The circ uit cou rt , af t er i n dicatingits consideration of sections 501(c- 1), 503(j), and 508 of the Act (750 I L CS 5/501(c-1)
, 503(j), 508 (West 2010)), considere d in detail the question of attorney fee s, ultimately awa rding $12,215 in favor of Christine and ag ainst Timothy for Christine’s attorney fee s

. Timothy alleg es an abuse of discretion by the court in this awa rd, considering the other awa rds which

-9-obligate pay ment by him and alleg ing unnece ssary litigiousness on the part of Christine. Christine, in response , argues that the circ uit court need n o t make specific finding s if the

rec ord as a whole provides the basis for the court’s judgme nt. She argu es t h at t h e court cl early considere d all applicable fac tors in the statute and that the nece ssity of litigat i n g Timothy ’s ac tions was a valid conside ration by the cour t in the allocation of attorney fee s. ¶ 40 Initially the circ u i t co u rt noted that while Christine had, at the time of judg ment, paid $3,700 toward her own attorney fe es , Timothy had paid approximately $11,315 to his attorney s and had $2,100 rema ining, as we l l as t h e fee owed to his cer tified public

acc ountant. The court noted Christine’s allocation of fee s to various cate g ories, including Timothy ’s failure to comply with discovery ($3,086.34), Timothy ’s failure s to comply with
court order s ($5,582.50), and other fee s incurre d by Timothy ’s actions which wer e above and beyond those fe es t hat should have been nece ssary to resolve the matter ($4,074.01). The circ uit court assessed $2,500 ag ainst Timothy as fee s attributable to conflicts over discovery and failure to comply with court order s

. As to those fee s alleg edly incurre d by Timothy ’s actions, t he court noted t hat t hey would be “addit ional fac tors considere d in the allocation of [C hristine’s] rema ining fee s.” As to the fore closure act i o n , t h e circ uit court assessed attorney fee s of $1,422.34 ag ainst Christine. The total attorney fee judgme nt enter ed by the circ uit court was $12,215, comprised of $2,500 on the d iscovery and failure -to-comply
matters and $9,715 for other outstanding fee s owed. The court also indicated that above and beyond this judgment, Christine would be re sponsible for any rema ining attorney

fee s. ¶ 41 As stated above, this has been an intensely litigated case

. The parties toge ther have raised

over a dozen issues on appe al
, and the number of contested issues acc urate ly ref lects the intens i t y an d bitterness of this litigation. Our revie w of the rec ord also ref lects numerous conflicts over discovery
, Timothy ’s g ener al failure to comply with discovery
, and his failure
to comply with other court order s. As to alleg ed litigiousness on the part of Christine, while Timothy further arg

ues that the obligations place d upon him by the circ uit court exceed his
net income, the court had noted, and we find in the rec ord, numerous instances of Timothy using assets of various acc ounts, as well as his profe ssio n al co rporation, to pay numerous expenses. Given the fac tors evident from our revie w o f t h e re cord, we cannot say that the assessment of attorney

fee s ag ainst Timothy

was a n abuse of

discretion.

¶ 42 VI ¶ 43 The ci rc u i t co u rt h ea rd ev i d en ce co n ce rn i n g confr ontations betwee n Christine and Timothy
, some in the prese nce of the parties’ minor children and some involving the threat of t he dis char g e of fi re ar m s by Timothy

. In resolving this matter, the circ uit court ordere d that all of Timothy ’s firea rms be place d in the custody of the sheriff of St. Clair County and that all curr ent firea

rm o wner identification car ds belong ing to Timothy be held by an attorney until further order of court. Christine’s attorney further reque sted that these firea rms be shipped to Penny slvania, Timothy ’s home state, a nd that Timothy not posse ss a firea rm in I llinois until the fall of 2013 when their young est child commence s colleg e. Timothy did
not object at trial to this dispositi on except a disinclination to assume the cost of transporting the wea pons. The court ord er ed C hristine to make arr ang ements for the shipping, order ed

-10-Timothy to cooperate with her and the s heriff ’s department with reg ard to any paper work, and o rd ered that Christine be responsible for the rea sonable costs of this transportation. However, Timothy argues that the circ uit court’s order as to firea rms resulted in a deprivation of his liberty without due process of law, relying upon District of Columbia v. Heller
, 554 U.S. 570 (2008), and McD onald v. City of Chicago
, 561 U.S. ___, 130 S. Ct. 3020 (2010). Christine, in response , argues that pursuant to section 602 of the Act (750 I L CS 5/602 (West 2010)), the circ uit court has a duty to consider the best interests of the children in this ty pe of litigation and that this public policy i s fu rt h er ex presse d in the I llinois Domestic Violence Act of 1986 (750 I L CS 60/ 1 0 1 t o 401 (West 2010)). We note in consideration that Heller indicates the exis tence of an are a of rea sonable regulation of firea rms. We consider that the I llinois Domestic Violence Act of 1986 and the I llinois Marr iag e and Dissolution of Marr iag e Act constitute a leg itimate regulation o f T i m o t h y ’s second amendment rig hts. In her cross-a ppeal, Christine argues that the circ uit court abused its discretion in orderingher to pa y for the shipment of t he firear ms, citing In re Marriage ofFryer
, 88 I ll. App. 3d 454, 457, 410 N.E.2d 596, 599 (1980). We disag ree that this order constitutes an abuse of discretion. We note that Christine is the custodial pare nt, that Timothy was the party taking actions with the firea rms in this domestic dispute, that initially in front of t h e ci rcuit court Timothy ag ree d to the di sposition of t he weapons, and that the judgme nt of the circ uit court does not leave Christine w ithout the financ ial capa city to pay for the shipping of the wea pons to Timothy ’s par ents in Pennsylvania. We also find, g iven the fa ilure of Timothy

to comply

with various court-orde red oblig ations, that it was not an abuse of discretion for the circ uit court to assig n the actua l execution of its order to Christine rathe r than Timothy
, appar ently ref lecting the court ’s as s essment that in this manner , the court’s order would actua lly be car ried out. As noted in Christine’s argument, the para mount obligation of the circ uit court is to consider and protec t the best interests of the children (750 I L CS 5/602(a) (West 2010)), and we cannot s ay t h at the assig nment of these duties and
expenses to Christine in order to ensure protec tion of the minor children constitutes an abuse of discre tion.

¶ 44 VI I ¶ 45 Timothy next argues that the circ uit court exceede d its authority in order ing T imothy to provide Christine with his and his corpor ation’s tax returns for the next five y ear s, citing In

re Marriage of

Best
, 228 I ll. 2d 107, 886 N.E.2d 939 (2008). Christine argues that the court acte d within its discretion, noting the statutory obliga tion of the parties subject to paying support to repor

t new employ

ment (750 I L CS 5/505(h) (West 2010)) and the formula of the Act contemplating perc entag e awa rd of support (750 I L CS 5/505(a)( 5) (West 2010)). In the
context of this litigation viewed as a whole, we find that the court’s order was not an abuse of its discretion. In light of the entire history of t h i s case , the intense, bitter, and litigious
nature o f the parties’ clash (including problems of enfor ceme nt of court order s), and the continuing obligations order ed by the circ uit court conce rning child support, life insurance
, and the pay

ment of maintenanc e, the circ uit court’s order was rea sonable. We also note that part of the circ uit court’s consideration in resolving the parties’ litigation was consideration of the future ear

ning capa city of both parties, and in light of Timothy ’s g reater future ear ning

-11-capa city as compar ed to Christine’s, the require ment that these t ax re turns be supplied to

Christine for a period of y ear s is not unrea sonable. We also consider that an issue raised by Christine in cross-a

ppeal is th e fa i lure of Timothy ’s medical corpor ation to honor various court orde rs, a matter

that will be discussed and r esolved late r in this decision. ¶ 46 In light of the complexit y , intensity
, and conflict of this litigation, we do not c onsider the place ment of Timothy under a conti nuing duty to provide Christine with his persona l and
corpor ate tax returns to be a n abuse of

discretion.

¶ 47 VI I I ¶ 48 A fu rt h er i s s u e ra i s ed by Timothy conce rns the use by Christine of var io u s fu n d s , alleg edly for her own purposes and, acc ording ly
, an abuse of discretion by the circ uit court in making Christine trustee of the minor children’ s interest in Timothy ’s life insurance

. Both parties used various source s of fundingfor their own purposes, a

nd the circ uit c ourt noted,

as t o the argument on dissipation, that both parties had ref uted the other’s char g es of dissipation of marital assets. Also, as noted above, Christine was found to have used assets of the children for the purposes of fore stalling a fore closure action of the marital re sidence wher e she an d t h e minor children resided and, afte r turning in a more expensive car and using the proce eds to discharg e various debts, purcha sing a less expensive automobile with

one of the minor children’ s assets in order to maintain transportation to her employ ment. In light of both parties’ ac t i o n s and the uses Christine made of her expenditures of the children ’s as s et s, we cannot s ay that the circuit court abused i ts discretion in reta ining her

as trustee of the children’ s interests. Particularly
, in the purcha se of the automobile in order
to maintain her employ

ment, the use of the children’ s assets was definitely to the benef it of the childre n.

¶ 49 IX ¶ 50 Timothy argues as an additional issue on appea l that the circ uit court abused its discr etion in order ing him to pay the cost of the minor children’ s health insurance
, an obligation noted above, and partial reimburse ment of his children’ s trip to Europe, arguing that there was i n s u fficie nt evidenc e of either expense. We have revie wed the rec ord in this case an d disag ree

.

¶ 51 X ¶ 52 The final issue argued befor e this court on Timothy ’s behalf is that the circ uit c ourt err ed in that, pursuant to Gene ral Motors Corp. v. Pappas
, 242 I ll. 2 d 163, 950 N.E.2d 1136 (2011), the circ uit court improperly ref used to consider further evidenc e befor e its judgme nt

was final and immortaliz ed in a written order

. Christine, in counter argument, argues that this, in eff ect, was a motion to reope n the proofs in this case and that the movant was require d to show a va lid reason why

the evidenc e wa s not previously prese nted, that the evide nce w as important, and that reope ning the proofs for prese ntation of furthe r evidence would not be unfair to the party opposing the motion ( Kaluzny Brothers, Inc. v. Mahoney Grease Servic e,

-12-Inc.
, 165 I ll. App. 3d 390, 518 N.E.2d 1269 (1988))

. As one can surmise by the leng th of this

decision, a substantia l am o u n t of evidence, both testimonial and by means of exhibi t, was prese nted to the circ uit court in consideration of this litigation and prese nted by both parties, and we cannot say that the circ uit court’s ref usal to reope n in this case was an ab u s e of discretion. ¶ 53 Three issues are prese nted to this court by Christine as cross-a ppellant. One issue, which
argues abuse of t he trial court’s discretion in order ing Christi ne to pay for the shipment of Timothy ’s firea

rms, has previously been addre ssed. We now addre ss the other two issues on

cross-a ppeal.

¶ 54 XI ¶ 55 Christine argues that the circ uit court committed err or in its decision not to e nforc e prior temporar y support order s. She argues that the circ uit court misplaced relianc e on this court’s decision in In re Marriage of Simmons
, 22 1 I ll. App. 3d 89, 581 N.E.2d 716 (1991). She
argues that the circ uit court’ s d ec i s i o n n ot to enfor ce the order
, its failure to make child support and maintenanc e retroa ctive to the date of the fi rst order for temporar y relief
, and failure either to hold Timothy in contempt for noncompliance or to shift the burden to him
to prove that he was unable to pay the amounts order ed, and the failure to assess an arr ear ag e in attorney

fee s constituted an abuse of discre tion. W e disag ree

. ¶ 56 T h i s l i t i gat i o n , as n o t ed n u m er o us times in our dispositi on, has a long a nd tortured history

. The order of the circ uit court includes allocation of parts of Christine’s attorney fee s to Timothy for his actions, and inactions, conce rning discovery and support obligations. I t appea rs, from viewing this litigation as a whole and viewing the entirety of the circ uit court’s order
, that the circ uit court deter mined it was in the best interests of all parties and an exercise in judicial economy to resolve all outstanding issues betwee n the parties. In eff ect, the circ uit court combined all prior arguments of the parties into one final trial and order

. In light of t h e circ uit court’s g lobal dispositi on of the matters betwee n the parties and the litigious nature of on e o f t h e p arties as found by the circ uit court, we cannot say that the court’s a pproac h was unre asonable or an a buse of discr etion.

¶ 57 XI I ¶ 58 C hristine’s final issue on appea l is that the trial court err ed in failing to enf o rc e co u rt order s a n d a n otice of withholding filed ag ainst Timothy ’s medical corpor ation (ARPSI ). She
argues that Timothy is an employ ee of ARPS I and that the corpor ation was proper ly serve d pursuant to the Income Wit hholding f or Support Act (750 I L CS 28/ 1 to 999 ( West 2010))

. The rec ord fails to indicate any action being taken by the corpor ation. An amende d petition for enfor ceme nt was filed by Christine joining ARPS I as a party , and an answe r to t h e petition for enfor ceme nt was subsequently filed. She notes that the rec ord indicates a failure
to withhold Timothy ’s income by the corpor ation and that the Income Wit hholding for Support Act is mandatory

. The circ uit court found failure by Timothy and his corpor ation and based on the withholding require ment order ed him to pa y $249.50 in unpa id c hild support, $3,600 in unpa id ma intenance
, and $6,255.36 in unpa id he alth insurance premiums for the

-13-children. The rec ord indicates that nothing was withheld by the corpor ation and nothing was

paid. Christine argues t h at du e to this lack of action, the circ uit court err ed in ref using to enter a judgme nt ag ainst ARPS I
, assess penaltie s pursuant to section 35 of the Income Wit hholding for Support Act (750 I L CS 28/35 (West 2010)), and assess incidental attorney fee s. I t appea

rs, fro m o u r co n s i deration of this issue, that the assessment of a judgme nt ag ainst the payor, ARPS I
, is mandatory

. See 750 I L CS 28/35 (West 2010); see also Dunahee

v. Chenoa W

elding & Fabrication, Inc.
, 273 I ll. App. 3d 201, 652 N.E.2d 438 (1995); In re Marriage of Chen
, 354 I ll. App. 3d 1004, 820 N.E.2d 1136 (2004). Acc ording ly
, we vacate any order or a part of any order enter ed by the circ uit court that may be construe d to refuse Christine’s reque st for enfor ceme nt and rema nd t h i s issue of the dissoluti on action to the circ uit court for f

urther a ctions consistent with the statute and this decision. ¶ 59 This litig ation has been complicated and contentious to say the least. We commend the attorney s for both parties for their thoroug h briefing and presen t at ion of the many issues
prese nted to this court. We also commend the trial court judge for his patient a nd thoroug h

co nsideration of the parties’ many positions and the excellent, clea r, and concise ly s t at ed order that he filed disposingof the issues in this lit iga tion. W e espe cially urg e both pa rties i n t h i s cause, despite the obvious intensity of this litigation and the brea kdown of t h ei r relationship, to rea ch some form of acc ommodation and cooper ation for the benef it of their minor daug hters. ¶ 60 For the rea sons stated above, we modify and enter judgme nt on the issue of child support,

vacate and rema

nd fo r fu rt her proce eding s the issue of withholding under the Income Wit hholding for Support Act
, and in all other respe cts aff irm the judgme nt of the circ uit court of St. Clair County

.

¶ 61 Modified in part; vaca ted and rema

nded in part with direc tions; aff irmed on all rema ining issues.

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