## Illinois Official Reports

Appellate Court

In re Marriage of Iqbal , 2014 IL App (2d) 131306

Appellate Court Caption In re MARRIAGE OF UZMA IQBAL, Petitioner and Counterrespondent-Appellee, and MOHAMMAD VAJAHATH KHAN, Respondent and Counterpetioner-Appellant.

District & No. Second District

Docket No. 2-13-1306

Filed May 6, 2014

Held

( Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of

the reader. ) In marriage dissolution proceedings, the trial cour t did not err in finding that the parties’ postnuptial agreement was not enforceable, especially when it gave the parties’ counselor sole power to determine which parent would have custody of the children, to determine whether a party was “reasonably” seeking a divorce, and whether a party had violated the agreement to such an extent that he or she should forfeit any claim to custody, and, furthermo re, the agreement was unconscionable to the extent that petitioner wo uld forfeit all rights to the parties’ residence if she “unreasonably” fil ed for divorce, but the meaning of “unreasonable” was vague, the trial court’s denial of respondent’s request for the appointment of a custo dy evaluator was presumed to be in conformity with the law and to ha ve a sufficient factual basis in the absence of an adequate record, the grant of sole custody to petitioner was not against the manifest weight of the evidence, and the trial court did not abuse its dis cretion in awarding the majority of the marital estate to petitioner an d finding that she was

also entitled to maintenance.

Decision Under

Review Appeal from the Circuit Court of Du Page County, No s. 11-D-1526, 11-F-284; the Hon. Neal W. Cerne, Judge, presiding.- 2 -

Judgment Affirmed.

Counsel on
Appeal Omar Jaleel, of Jaleel Law P.C., of Oak Brook, for appellant.

Michael G. DiDomenico and Sean M. Hamann, both of L ake Toback, of Chicago, for appellee.

Panel JUSTICE SCHOSTOK delivered the judgment of the cour t, with opinion. Justice Zenoff concurred in the judgment and opinio n. Presiding Justice Burke specially concurred, with o pinion.

OPINION

¶ 1 The respondent, Mohammad Khan, appeals from certai n rulings the trial court entered

during the proceedings dissolving Mohammad’s marria ge to the petitioner, Uzma Iqbal. We

affirm.

¶ 2 I. BACKGROUND
¶ 3 We recount only the basic facts of the marriage he re. The remaining facts pertinent to this

appeal will be discussed as applicable to each issu e. ¶ 4 The parties married in 2002 in Canada. They had th ree children: Ahmad, born September

3, 2002; Habeeb, born January 6, 2005; and Fatimah, born April 27, 2008. After living in Illinois for a few years, the family lived in Saudi Arabia from 2005 to 2010, where they had a comfortable lifestyle with a 6,000-square-foot hous e and maid service.
¶ 5 Mohammad has degrees in commerce and information t echnology management from

institutions in India. His most recent job in his f ield was in Saudi Arabia as an information technology project manager. According to Mohammad, since returning to Illinois in March 2013, he has been unable to find a job in his field . At the time of trial, he had been working part-time on a farm for about a month, earning $150 per week. He was also receiving financial support from his brother. Uzma has a degree in dent al surgery from a college in India, but that degree did not allow her to practice dentistry in t he United States without further education and examinations. At the time of trial, she was taking classes in public health and was nearing her certification in system analytical software.
¶ 6 When the parties married, Mohammad owned a home at 925 Iroquois Avenue in Naperville. Since 2002, it has been maintained usin g marital funds, and its value at the time of- 3 -

trial was approximately $350,000. The mortgage was paid off in 2007 and there are no

encumbrances on the house. The house was rented to tenants when the family went to Saudi Arabia, and it remained rented (generating a monthl y rent of about $1,900) at the time of trial.
¶ 7 When Uzma and the children returned to Illinois in October 2010, there were still tenants in

the house, and the family moved into a condominium at 1160 Spring Garden Circle in Naperville that was owned by Mohammad’s sister and her husband. A few months later, Mohammad also returned to Illinois and joined his f amily in the condominium. He decided, over Uzma’s objections, to purchase the condominium from his sister and brother-in-law for $97,000, but changed his mind almost immediately an d sold it back to them four days later. In the interim, however, Mohammad’s brother-in-law had used the money from the sale in his own home. Accordingly, Mohammad’s sister and brothe r-in-law returned only $45,000 cash in two installments. However, they also asserted that the parties owed them $5,000 in repair costs and $39,260 in rent, association fees, and utilitie s that accrued while the parties’ family was living in the condominium.
¶ 8 In May 2011, Mohammad filed a petition for tempora ry custody of the children, alleging

that he feared that Uzma planned to take them out o f Illinois. That case (No. 11-F-284) was

later consolidated with the divorce case initiated by Uzma, who filed a petition for dissolution in July 2011. Mohammad filed a counterpetition for dissolution in June 2012.
¶ 9 In September 2011, Mohammad accepted a job offer i n Saudi Arabia, where he remained

until March 2013. During this 18-month period, the children lived with Uzma in Naperville. Mohammad visited them during periodic trips to Illi nois.
¶ 10 In August 2013, Mohammad filed a motion asking the trial court to declare a postnuptial

agreement (PNA) signed by the parties to be valid a nd enforceable. The trial court ruled that the PNA was unenforceable because it violated publi c policy and was so one-sided and “draconian” that it was substantively unconscionabl e. ¶ 11 In September 2013, a five-day trial on all issues commenced. On November 21, 2013, the

trial court entered a judgment for dissolution of m arriage. Uzma received sole custody of the children and the majority of the marital property ( about 65%), and Mohammad was made responsible for all of the marital debts (over 80% of which was the debt allegedly owed to his

sister and brother-in-law in connection with the fa mily’s use of the condominium). The trial court stated that a disproportionate division of th e marital property and debts was warranted because, although the children required additional child support and Uzma deserved maintenance, Mohammad’s low income prevented it fro m ordering higher support payments. Mohammad filed a timely notice of appeal.

¶ 12 II. ANALYSIS
¶ 13 On appeal, Mohammad contends that the trial court erred in: ruling that the PNA was

unenforceable; denying his request to appoint a cus tody evaluator pursuant to section 604.5 of the Illinois Marriage and Dissolution of Marriage A ct (Act) (750 ILCS 5/604.5 (West 2012)); and awarding Uzma sole custody of the children, mai ntenance, and a disproportionate share of

the marital estate.- 4 - ¶ 14 Uzma’s response brief includes a request that this court strike Mohammad’s opening brief.

She argues that it violates Illinois Supreme Court Rule 341 (eff. Mar. 16, 2007), because his statement of facts contains errors and improper arg ument. Although this court has discretion to strike a brief and dismiss an appeal where a party has failed to comply with Rule 341, doing so is a harsh sanction and is appropriate only when th e procedural violations interfere with our

review. Carter v. Carter , 2012 IL App (1st) 110885, ¶ 12. Here, Mohammad’s violations of Rule 341 are not so severe as to preclude our revie w of the issues, and we therefore decline to strike his brief. We disregard any improper argumen t and any facts not supported by the

record.

¶ 15 A. Jurisdiction
¶ 16 Before addressing the merits of this appeal, we mu st examine whether we have jurisdiction

over the appeal. In re Marriage of Link , 362 Ill. App. 3d 191, 192 (2005).
¶ 17 Uzma argues that we lack jurisdiction. She asserts that the judgment for dissolution was not

a final order from which an appeal could be taken b ecause, although the trial court found that she was “entitled to receive maintenance,” it “rese rved” the amount of such maintenance. The trial court did not indicate that it planned to rev isit the issue of maintenance at any particular time. Uzma argues that, because no amount of mainte nance was set, the judgment for dissolution was not immediately enforceable in that respect, and so the judgment was not final.
¶ 18 Uzma is correct that, in general, an order must be final in order to be appealable. EMC

Mortgage Corp. v. Kemp , 2012 IL 113419, ¶ 9. “A judgment is final if it d etermines the litigation on the merits so that, if affirmed, the only thing remaining is to proceed with execution of the judgment.” Lamar Whiteco Outdoor Corp. v. City of West Chicago , 395 Ill. App. 3d 501, 504-05 (2009).
¶ 19 Nevertheless, we reject Uzma’s argument that the j udgment for dissolution was

unenforceable and nonfinal. Instead, we view the tr ial court’s act of “reserving” the amount of maintenance, without stating that it planned to set that amount at any particular time, as equivalent to setting the amount of maintenance at zero until further order of court. Such an award is immediately enforceable and appealable. Id

. ¶ 20 This court has long held that a trial court’s “res ervation” of jurisdiction over an issue in a

domestic relations order does not necessarily indic ate that the order is nonfinal. See In re Marriage of Wojcik , 362 Ill. App. 3d 144, 167-68 (2005) (discussing t he “reserved-jurisdiction” approach to maintenance awa rds); In re Marriage of Marriott , 264 Ill. App. 3d 23, 41 (1994); In re Marriage of Bingham , 181 Ill. App. 3d 966, 971 (1989). Rather, trial courts often refer to “reserving” an issue wh en they wish to indicate that, although the issue requires no further adjudication at the momen t, they wish to preserve the ability to reopen it in the future if circumstances warrant. Thus, th e order must be examined as a whole to determine the trial court’s intent in using the ter m “reserved.” Where an order demonstrates that the trial court has not yet made a final deter mination on an issue, the order is nonfinal (and thus nonappealable). See In re Marriage of Jensen , 2013 IL App (4th) 120355, ¶ 23. On the other hand, where the trial court has determined th e issue and merely intends to preserve its- 5 -

ability to enter a modification in the future if ne cessary, the order is final and appealable. See In re Marriage of Cannon , 112 Ill. 2d 552, 553-54 (1986) (dissolution judgm ent was final and appealable despite trial court’s statement that it intended its maintenance award to “ ‘be reviewable no later than the expiration of two year s and sooner if the circumstances of the parties change significantly’ ”); In re Marriage of Bothe , 309 Ill. App. 3d 352, 355 (1999) (trial court’s order abating maintenance until further ord er of court was final and reviewable); Bingham , 181 Ill. App. 3d at 971 (judgment for dissolution that awarded wife no maintenance but reserved the issue for two years was final and appealable).
¶ 21 In support of her argument that we lack jurisdicti on, Uzma cites Jensen , 2013 IL App (4th)

120355. In that case, the trial court bifurcated th e dissolution proceedings and eventually entered an order finding that, although the wife wa s entitled to maintenance by virtue of the length of the marriage and the disparity between th e parties’ earning capacities, the husband could not afford to pay maintenance at the time of the order. The order provided that “ ‘[t]he

issue of maintenance is reserved *** to be revisite d in six months along with the status of [the husband’s] employment and his income.’ ” Id . ¶ 36. The reviewing court found that the trial court’s reservation of the amount of maintenance, t ogether with its stated intent to revisit the issue at the end of six months, rendered the order nonfinal and nonappealable. Id . ¶ 39.
¶ 22 Jensen is not applicable here, where the trial court’s or der did not set any time period for

revisiting the amount of maintenance. Rather, the t rial court’s order here is similar to the order

at issue in Bothe , 309 Ill. App. 3d 352, in which the trial court ab ated maintenance subject to

further order of court. We held that the order in Bothe was “a final determination” on the issue of maintenance that “merely retained jurisdiction t o award maintenance if later circumstances

warranted.” Id . at 355. Accordingly, we had jurisdiction over the appeal. Id . Similarly, in this

case the trial court’s “reservation” of the amount of maintenance–without setting a time for the determination of that amount–merely indicated that the court was preserving its ability to modify its award of zero maintenance if there was a change in circumstances.
¶ 23 Uzma also cites to the dissent filed in a recent d ecision of this court, In re Marriage of

Heinrich , 2014 IL App (2d) 121333. In that case, like this one, the husband filed a motion for a declaratory judgment as to the validity of an agree ment between the parties (there, a prenuptial agreement). Id . ¶ 13. The trial court ruled that the agreement wa s valid. It did not initially include in this ruling any finding of immediate app ealability pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010). Seventeen m onths later, in response to a motion to reconsider, the wife sought the entry of a finding that the declaratory judgment ruling was immediately appealable under Rule 304(a), and the t rial court granted her motion. Id . ¶ 25. On appeal, this court addressed the issue of whether w e had jurisdiction to consider the appeal. Relying on In re Marriage of Best , 228 Ill. 2d 107, 113 (2008), in which the supreme court held that a declaratory judgment ruling entered during t he course of dissolution proceedings was appealable under Rule 304(a), we concluded that we had jurisdiction. See Heinrich , 2014 IL App (2d) 121333, ¶¶ 30-31. Justice Hutchinson disse nted, arguing that a declaratory judgment ruling was immediately appealable even without a Ru le 304(a) finding and that the appeal was thus untimely. See id . ¶ 78 (Hutchinson, J., dissenting). We agree with the majority in Heinrich and reject Uzma’s invitation to follow Justice Hutc hinson’s dissent. As the judgment for- 6 -

dissolution here was final and appealable, and the declaratory judgment ruling was not independently appealable without a Rule 304(a) find ing, we have jurisdiction to decide the appeal, including the declaratory judgment ruling. We therefore turn to the merits of the appeal.

¶ 24 B. Validity of the Postnuptial Agreement
¶ 25 Mohammad first argues that the trial court erred i n determining that the PNA executed by

the parties was invalid and unenforceable. The evid ence relevant to the PNA is as follows.
¶ 26 In November 2006, Uzma and the children went to st ay in a women’s shelter. (The record

is not clear as to whether this was in Illinois or Saudi Arabia.) At the parties’ request, Fisal Hammouda, a businessman who also served as a marria ge counselor within the Muslim community, acted as a mediator. Hammouda spoke seve ral times with both parties and ultimately put together the PNA.
¶ 27 The PNA began by reciting that the parties wished to define their rights to their separate

and joint property, “with the express understanding that neither party wishes to obtain a divorce or legal separation.” The parties then desi gnated Hammouda as their “Religious and

Marital Counselor and Arbiter of their Marital Affa irs” and agreed that “his authorization and approval [was] required for any major decisions, in cluding but not limited to *** financial matters, matters of the Children, work and travel, and any contemplated divorce or separation.”
¶ 28 There followed 34 numbered paragraphs concerning a variety of topics, many of which

concerned daily life ( e.g. , requiring the parties to speak politely to and ab out each other, and to allow free communication with various relatives) or certain household arrangements ( e.g. , providing Uzma with a monthly allowance and a maid, and enabling her to travel with the children). However, several clauses placed greater obligations and restrictions on the parties:
“1. Husband shall name Wife as a tenant by the ent irety of the property located at 925 Iroquois Avenue, Naperville, *** previously own ed as Husband’s separate property. *** Counselor will be an additional signa tory on the property, and his signature is required for any transfer of rights in the property to be valid and binding, and no transfer may occur without Counselor’s signa ture, and the signature of Husband and/or Wife. It is further agreed, that Wife’s shar e in said home will vest at twenty-five (25) percent per year, in her half of the property. Wife will be fully vested in her share of the home after four (4) years of marriage. Shoul d Wife unreasonably file for divorce (without Counselor’s written approval), she will fo rfeit her and her heirs and/or assigns[’] right to any share of the home. Should W ife reasonably file for divorce (with Counselor’s written approval) she will be entitled to her vested share in the home at the

above rate.

* * *
7. Husband and Wife agree to base their life and m arriage on the Holy Quran and Sunnah, as practiced in the Islamic religion.
8. Husband and Wife agree to make a good faith and sincere effort to make their marriage work and last their entire lives. Husband and Wife further agree that an- 7 - unreasonable divorce is not in the best interests o f their Children, and their continued marriage is in the best interests of their Children

. 9. Husband and Wife agree that an unreasonable div orce (without Counselor’s express written approval) is a violation and contra ry to the purposes and intents of this agreement, and an unreasonable divorce sought by either party will forfeit their rights to custody of the children and any rights co nveyed in this agreement. If either party seeks an unreasonable divorce, they hereby ag ree to surrender full custody rights to the other, and agree to only reasonable v isitation rights to the Children.

* * *
13. Husband and Wife agree not to call the authori ties or police for any incident, unless an [ sic ] life or death emergency and for the benefit of th e other, without first consulting and discussing the matter with Counselor and obtaining his express written approval for further action. Violation of this clau se is grounds for forfeiture of the violating party’s rights herein.

* * *
20. Husband and Wife agree to consult with Counsel or over any significant problem or major issue, and agree that Counselor’s opinion and decision will be final and binding on both of them, and both agree to resp ond and act according to Counselor’s opinion and decision.

* * *
27. Husband and Wife agree that any violation of a ny one or more of the clauses of this agreement, avails each party to forfeiture of all rights herein, as reasonably decided by Counselor, including but not limited to any and all rights to property, monies and/or custody of the Children. Both Husband and Wife further agree that the decision of Counselor is final and binding on both Husband and Wife.
28. Husband and Wife agree, that in consideration of Husband’s separate property being made joint property, as well as the condition s set and described herein, Husband and Wife herewith agree to share in each ot her’s estate upon death, whether by will, statutory share, dower and/or curtesy, whe ther such right now exists by case law or by statute, and further waives their right t o alimony, whether permanent or rehabilitative, separate maintenance, or any other forms of spousal support.

* * *

32. All matters, including those not specified her ein and agreed upon by Husband and Wife, shall be dealt with and handled by consul tation with Counselor or his designee, and according to Islamic law. Counselor h ereby agrees to deal with both parties fairly and in good faith, and to reasonably follow Islamic Law, including the Holy Quran and Sunnah, to the best of his understan ding.”
Paragraphs 29 and 30 of the PNA stated that each pa rty had been given “full disclosure of all

financial matters and information of the other” and the opportunity to consult with independent counsel of the party’s choice. Paragrap h 31 of the PNA provided that it could be- 8 -

modified only in a writing signed by both parties a nd Hammouda. Finally, paragraph 34 was a severability clause stating that, if any clause o f the PNA were found invalid or unenforceable, it would not affect the validity of any other clause or of the PNA as a whole. The PNA was signed on January 30, 2007, by Mohammad , Uzma, Hammouda, and two

witnesses.
¶ 29 At the time the parties entered into the PNA, the house at 925 Iroquois was the largest

asset in the marriage. Uzma testified at trial that the parties had also owned stock that Mohammad had bought in 2005 for $8,000 and burial p lots worth $4,000. Mohammad contends that the parties also had about $150,000 i n a joint bank account, but Uzma testified only that this asset existed in 2011, and there was no evidence that it existed in 2007 when the PNA was signed.
¶ 30 Hammouda testified at trial that the PNA was creat ed by taking Uzma’s “demands” and

Mohammad’s responses, going back and forth between the parties until they both agreed on the terms, and then having a lawyer (Hammouda’s son , who also represented Mohammad at one point) draft the PNA. Hammouda himself inserted paragraph 9, and the parties agreed to

it. When asked what the definition of an “unreasona ble divorce” was, Hammouda responded: “Unreasonable based on any measures that you can as k for. For example, if you are getting everything that you want and just for the sake of j ust one [ sic ; want?] divorce, then this is unreasonable. The person has to provide a reasonabl e reason for the divorce.”
¶ 31 Hammouda further testified that various paragraphs were inserted at Uzma’s behest and

that she would not allow Mohammad to see the childr en until after the PNA was signed. Hammouda believed that Uzma had consulted a lawyer before signing the PNA, but he did not know whom. Uzma disputed Hammouda’s account, te stifying that she was not consulted on the contents of the PNA, which was drafted by Mo hammad and Hammouda.
¶ 32 About six weeks before trial, Mohammad moved for a declaratory judgment that the PNA

was valid, seeking to enforce paragraph 1 of the PN A. (This was the paragraph that specified Uzma’s rights to the property at 925 Iroquois.) Moh ammad argued that Uzma had forfeited all interest in the property because she did not ob tain written authorization from Hammouda before she filed her petition for dissolution. The trial court found the PNA invalid and unenforceable for a variety of reasons. It believed that the PNA impermissibly delegated the parties’ rights to make major life decisions, inclu ding whether to get a divorce, to a third party. It also noted that some of the consideration for Uzma giving up various rights including the right to seek maintenance–specificall y, the retitling of the property at 925 Iroquois into both parties’ names–was of little val ue, given that the property was likely transmuted into marital property even without the P NA, as marital funds had been used to pay the mortgage since 2002 and the mortgage was ul timately paid off using marital funds. The trial court also found the PNA substantively un conscionable because it was one-sided, and “draconian” in that it discouraged the parties from violating any of the terms by threatening the loss of custody of the children as well as the forfeiture of property rights. Finally, the trial court found that the term “unrea sonable divorce” was not defined within the PNA and instead was left solely to Hammouda’s inter pretation.- 9 - ¶ 33 Mohammad argues that the trial court erred in find ing the PNA unenforceable. We

review de novo the trial court’s determinations with respect to t he PNA. See Kinkel v. Cingular Wireless, LLC , 223 Ill. 2d 1, 22 (2006) (construction of a contr act and determination of unconscionability reviewed de novo ); In re Marriage of Rife , 376 Ill. App. 3d 1050, 1063 (2007) (agreement’s validity under pu blic policy reviewed de novo ). We note that the PNA has a religious component (see paragra ph 7). Courts must resolve disputes involving religion by applying neutral principles o f secular law in such a manner as to avoid excessive entanglement with religious doctrine. In re Marriage of Goldman , 196 Ill. App. 3d 785, 793-95 (1990). Here, neither party has argued that determining the validity of the PNA requires the application of religious doctrine; ins tead, both parties rely on secular principles

of contract law.
¶ 34 We begin with the argument that the PNA is unenfor ceable because it violates public

policy. The public policy of this state is reflecte d in its constitution, statutes, and judicial

decisions. Rife , 376 Ill. App. 3d at 1063. Whether a private agree ment between parties, such as the PNA at issue here, is contrary to public pol icy depends on the particular facts of the

case. Id . In deciding whether an agreement is against publi c policy, a court must consider “whether the agreement is so capable of producing h arm that its enforcement would be contrary to the public interest.” Id

. ¶ 35 It is the public policy of this state that courts have an independent duty to ensure that the

arrangements made by divorcing parents that directl y affect their children–those relating to custody, child support, and visitation–are in the b est interest of the children. Blisset v. Blisset

, 123 Ill. 2d 161, 167 (1988) (“The court is obligate d in marital dissolution proceedings to protect the best interests of the children involved .”). This policy is reflected throughout the Act. Among the Act’s purposes identified by the Gen eral Assembly are mitigating potential harm to children caused by the process of dissolvin g a marriage and making “reasonable provision for spouses and minor children during and after litigation.” 750 ILCS 5/102(4), (5) (West 2012). A court must determine custody in acco rdance with the best interests of the child (750 ILCS 5/602(a) (West 2012)), and must ens ure that the child is supported in accordance with guidelines established by the legis lature, or else explain why departure from those guidelines is in the best interests of the ch ild (750 ILCS 5/505(a)(2) (West 2012)). Any postdecree modification of child support, custody, or visitation likewise must serve the best

interests of the children. Blisset , 123 Ill. 2d at 168.
¶ 36 Further, although the Act seeks to “promote the am icable settlement of disputes” between

the parties to a marriage (750 ILCS 5/102(3) (West 2012)) and expressly encourages the use of marital settlement agreements, the terms of such agreements that affect child support, custody, and visitation are subject to court oversi ght and must be approved by the court in order to be enforceable (750 ILCS 5/502(b) (West 20 12)). Parents “are not at liberty to make agreements which affect the interests of their chil dren without obtaining the approval of the

court.” In re Marriage of Ingram , 259 Ill. App. 3d 685, 689 (1994); see also Blisset , 123 Ill. 2d at 168 (“Parties may not bargain away their chil dren’s interests.”). In addition, parties may not make the child-related terms of their agree ments nonmodifiable. “[A]lthough the parties to a dissolution judgment may agree to the terms that relate to the custody, support,- 10 -

and visitation of their children, so long as those terms meet with the court’s approval, they may not circumvent the court’s authority to determi ne later whether the best interests of the children *** require changing any of those terms.” Rife , 376 Ill. App. 3d at 1064.
¶ 37 The PNA violates these principles in several respe cts. It gives Hammouda sole power to

determine which parent will have custody of the chi ldren, because he has sole power to declare whether a party seeking a divorce is doing so “reasonably” or “unreasonably” (paragraph 9) and also is the sole arbiter of wheth er either party has violated a provision of the PNA such that he or she should forfeit any clai m to custody (paragraph 27). Although Hammouda promised to act in accordance with “Islami c Law, including the Holy Quran and Sunnah, to the best of his understanding” (paragrap h 32), under the PNA he has no obligation

to act in the best interests of the children. Moreo ver, even if he had undertaken to act in the best interests of the children, neither he nor the parties may substitute their judgment in this regard for the judgment of the court, which must ap prove any custody arrangement agreed upon by the parties. Rife , 376 Ill. App. 3d at 1064. We also note that, unde r paragraph 27 of the PNA, Hammouda’s judgment is intended to be bind ing and final, without recourse to review by any court. Indeed, even if both of the pa rties wished to modify the agreement, they could not do so without Hammouda’s approval (see pa ragraph 31).
¶ 38 Mohammad concedes that the PNA’s terms relating to child custody are unenforceable as

contrary to public policy. However, he argues that these provisions are severable, and he seeks to enforce only those provisions that relate to property distribution. We cannot accept this argument.
¶ 39 In Kinkel , the supreme court approved a standard for applyin g a severability clause that

derives from section 184 of the Restatement (Second ) of Contracts. Kinkel , 223 Ill. 2d at 47 (citing Restatement (Second) of Contracts § 184 (19 81)). Under this standard, “a court may sever the unenforceable portion of an agreement and enforce the remainder” if the party seeking enforcement did not engage in serious misco nduct and the unenforceable portion is not essential to the agreement as a whole. Id . Here, it is clear that custody of the children wa s extremely important to both parties: custody was co ntested vigorously before the trial court and is also at issue in this appeal. Indeed, Mohamm ad suggests that he entered into the PNA in part so that he could see his children after a t hree-month separation. Hammouda’s control over which party would have custody of the children therefore must be seen as of great importance to the parties, and we conclude that the removal of these terms would change the nature of the parties’ overall bargain substantiall y, to the point that we cannot conclude that without them the parties would have entered into th e PNA. Moreover, the issue of custody

was intertwined in the PNA with financial issues. U nder paragraph 27 of the PNA,

Hammouda could decide whether a violation of any provision of the PNA–regardless of the provision’s subject matter–should result in a party ’s loss of custody, loss of property rights, or both. As the custody terms were an essential asp ect of the PNA and were intertwined with the financial terms, we do not believe that we can apply the severability clause and enforce the remaining provisions of the PNA. Id. ; see also People v. Montiel , 365 Ill. App. 3d 601, 606 (2006) (“agreement as a whole is void if an ess ential term cannot be performed” (citing People v. Hare , 315 Ill. App. 3d 606 (2000))).- 11 - ¶ 40 Even if we could sever the financial provisions of the PNA from the child-custody provisions, however, we would still find the PNA in valid and unenforceable. As the trial court found, the term “unreasonable divorce,” the l inchpin upon which the entire agreement turns, is vague, ambiguous, and uncertain. Although the PNA describes an “unreasonable divorce” as one filed without Hammouda’s approval, the PNA does not state the

circumstances under which he would deem a divorce “ unreasonable.” A court may consider parol evidence when a term is ambiguous. West Bend Mutual Insurance Co. v. Talton , 2013 IL App (2d) 120814, ¶ 19. Here, however, Hammouda’s testimony regarding the

circumstances under which he would deem a divorce “ unreasonable” was likewise vague and ambiguous. Thus, the vagueness and ambiguity were n ot cured by the parol evidence that

was offered.
¶ 41 The PNA is also substantively unconscionable. A co ntract is substantively

unconscionable, and thus unenforceable, where the t erms are significantly one-sided or oppressive. In re Marriage of Tabassum , 377 Ill. App. 3d 761, 777 (2007). Here, the PNA provides that Uzma would forfeit all rights to the largest marital asset, the 925 Iroquois property, if she “unreasonably file[d] for divorce. ” Significantly, however, the PNA does not impose a similar penalty on Mohammad. Mohammad argu es that Uzma’s forfeiture of the house was not unconscionable, because there were ot her marital assets at the time the PNA was executed, such as the parties’ burial plots and stock. These two assets were valued at only $12,000, however, far below the value of the h ouse. Mohammad also argues that the parties had about $150,000 in a bank account at the time of the PNA, but the testimony regarding the account only established that it exis ted in 2011, and there was no evidence of such an account in 2007 when the PNA was signed. In re Marriage of Niles , 2011 IL App (2d) 100528, ¶ 13 (substantive unconscionability is determined based upon the parties’ economic circumstances immediately following the ex ecution of the agreement). In addition, although the PNA recites that the retitling of the house in both parties’ names was the consideration for Uzma giving up her right to maint enance, that retitling had little or no value given the fact that the house was already a marital asset, not Mohammad’s nonmarital asset. Finally, the vagueness of the term “unreasonable di vorce” further contributes to the substantive unconscionability of the financial term s of the PNA, as it raises the possibility that Uzma could lose her property rights if Hammoud a withheld approval of her desire to file for a divorce, even if his actions were whimsical o r capricious.
¶ 42 For all of these reasons, we affirm the trial cour t’s determination that the PNA was

invalid and unenforceable.

¶ 43 C. Denial of Motion for Appointment of Evaluator Under Section 604.5 of the Act
¶ 44 Mohammad next argues that the trial court erred in denying his motion to appoint a

custody evaluator pursuant to section 604.5 of the Act (750 ILCS 5/604.5 (West 2012)). The determination of whether an evaluator should be app ointed under section 604.5 is within the broad discretion of the trial court, and we review the court’s decision for abuse of that

discretion. In re Marriage of Bhati , 397 Ill. App. 3d 53, 68 (2009). A trial court abu ses its discretion only where its ruling is arbitrary, fanc iful or unreasonable or where no reasonable- 12 -

person would take the view adopted by the trial cou rt ( People v. Anderson , 367 Ill. App. 3d 653, 664 (2006)), or where its ruling rests on an e rror of law ( Cable America, Inc. v. Pace Electronics, Inc. , 396 Ill. App. 3d 15, 24 (2009)).
¶ 45 In this case, the trial court appointed Connie Ges sner as guardian ad litem (GAL) for the

children in August 2012. In December 2012, Mohammad moved for the appointment of Dr. Mary Gardner, a psychologist, as an expert to evalu ate Uzma’s mental health pursuant to Illinois Supreme Court Rule 215(a) (eff. Mar. 28, 2 011). He alleged that Uzma’s mental health was at issue due to her “impulsive behavior and anger issues.” Uzma denied these allegations, noted that Mohammad had left the child ren wholly in her care since September 2011 while he was in Saudi Arabia working, and argu ed that the appointment of an expert custody evaluator under section 604(b) of the Act ( 750 ILCS 5/604(b) (West 2012)) would be more appropriate. (Section 604(b) permits the tr ial court to appoint its own expert to provide it with advice regarding custody and visita tion.) On January 14, 2013, the trial court appointed Dr. Gardner as a custody evaluator under section 604(b).
¶ 46 Dr. Gardner interviewed the parties and their chil dren, reviewed information about the

family from neighbors and relatives suggested by th e parties, and reviewed statements that Hammouda made in court filings and during court pro ceedings. She issued a report on April 8, 2013, in which she concluded that both parties w ere fit parents who had close bonds with their children. However, in reviewing the factors s et out in section 602 of the Act (750 ILCS 5/602 (West 2012)) relating to custody and the best interests of the children, Dr. Gardner found that Uzma had been the primary caregiver for the children and that Mohammad had a negative view of Uzma that was not always supported by the evidence. Dr. Gardner therefore recommended that Uzma receive sole custody of the c hildren, with liberal visitation for

Mohammad.
¶ 47 On April 16, 2013, Mohammad filed the motion at is sue here, seeking the appointment

under section 604.5 of the Act of an expert witness to evaluate custody. Section 604.5 permits the appointment of such an expert, and prov ides that this expert evaluation “may be in place of or in addition to” an evaluation pursua nt to section 604(b). 750 ILCS 5/604.5 (West 2012). In his motion, Mohammad reasserted his claim that there was an issue as to Uzma’s mental health, and he asked that Dr. Michael Fields, a psychologist, be appointed to conduct psychological testing of both parents as pa rt of a custody evaluation. Mohammad also noted that the trial court’s appointment of Dr . Gardner fell beyond the 18-month deadline for resolving issues of child custody mand ated by Illinois Supreme Court Rule 922 (eff. July 1, 2006), although he did not explain ho w the appointment of another custody evaluator would resolve the custody issue more prom ptly.
¶ 48 Gessner, the GAL, issued a report on April 24, 201 3. (In it, she noted that, after she

conducted her initial home study and interviewed th e parties and their children during August and September 2012, she had shared her custody reco mmendation with the parties, but they had asked her not to produce a report to the court at that time so that they could pursue a joint parenting agreement.) She concurred with Dr. Gardne r’s recommendation. She did not believe that the parties could cooperate well enoug h for joint custody. As Uzma had been the- 13 -

primary caregiver and, in Gessner’s opinion, was mo re likely to preserve the noncustodial parent’s bond with the children, Gessner recommende d granting sole custody to Uzma.
¶ 49 On April 29, 2013, the trial court denied Mohammad ’s motion for a section 604.5

custody evaluator. However, the court allowed Moham mad to depose Dr. Gardner and to have her tests and records reviewed by Dr. Fields. The court order from that date notes the court’s rulings without further explanation. Mohamm ad did not include in the record on appeal a transcript of the proceedings from that da te. ¶ 50 Mohammad deposed Dr. Gardner prior to trial and re tained Dr. Fields as his own expert

witness. Dr. Fields issued a report criticizing Dr. Gardner’s methodology, in that she conducted only one psychological test, the Minnesot a Multiphasic Personality Inventory, of the parties and did not interview either Hammouda o r Mohammad’s son from his first marriage. At trial, Mohammad cross-examined Dr. Gar dner on these and other issues, and presented testimony by Dr. Fields that criticized D r. Gardner’s methods and conclusions. Mohammad also presented the testimony of his son fr om his first marriage, and also of other family members, concerning the parties’ past conduc t and fitness as parents.
¶ 51 On appeal, Mohammad argues that the trial court ab used its discretion in denying his

request to appoint Dr. Fields as a section 604.5 cu stody evaluator, because his request was made promptly and Dr. Gardner’s report was incomple te and contained errors. We cannot assess this issue, however, because the record on a ppeal is incomplete: Mohammad did not include any transcript of the hearing at which the trial court denied his motion. In any appeal, it is the responsibility of the appellant to supply a complete record sufficient to permit review of the issues he wishes to raise on appeal. In re Application of the County Treasurer & ex officio County Collector , 373 Ill. App. 3d 679, 684 n.4 (2007). In the abse nce of such a record, we must presume that the order entered by t he trial court was in conformity with the

law and had a sufficient factual basis. Koppel v. Michael , 374 Ill. App. 3d 998, 1008 (2007) (citing Foutch v. O’Bryant , 99 Ill. 2d 389, 391-92 (1984)).
¶ 52 Moreover, even if we had the necessary record befo re us, Mohammad has forfeited his

primary argument on appeal–that a second custody ev aluation was needed because Dr. Gardner’s report was incomplete and contained error s–because he never raised this argument

in his motion before the trial court. See Hytel Group, Inc. v. Butler , 405 Ill. App. 3d 113, 127 (2010) (“A reviewing court will not consider argume nts not presented to the trial court.”). As to his argument that he did not delay in filing his motion, mere promptness in filing a motion does not provide a reason to overturn a trial court ’s exercise of its discretion in denying that motion. Here, where the trial court allowed Mohamma d to present extensive evidence regarding the alleged errors in Dr. Gardner’s repor t through the trial testimony of Dr. Fields and other witnesses, we find no abuse of that discr etion.

¶ 53 D. Grant of Sole Custody to Uzma
¶ 54 In his remaining arguments on appeal, Mohammad att acks the trial court’s rulings in the

judgment for dissolution, arguing that it erred in: granting Uzma sole custody of the children; finding that Uzma was entitled to maintenance (even if it did not actually award her any- 14 -

current maintenance); and awarding Uzma the majorit y of the marital estate. We begin with the argument that the trial court should not have g ranted Uzma sole custody of the children.
¶ 55 Child custody determinations are governed by secti on 602 of the Act (750 ILCS 5/602

(West 2012)). That section provides that custody mu st be determined “in accordance with the best interest of the child” and by considering all relevant factors, including the 10 factors listed in the statute. 750 ILCS 5/602(a) (West 2012 ). A trial court’s determination regarding custody is given great deference because that court is in a superior position to judge the credibility of the witnesses and determine the best interests of the child. In re Marriage of

Lonvick , 2013 IL App (2d) 120865, ¶ 33. We will not revers e that determination on appeal unless “it is clearly against the manifest weight o f the evidence and it appears that a manifest injustice has occurred. [Citation.] A judgment is a gainst the manifest weight of the evidence only when the opposite conclusion is clearly appare nt.” In re Parentage of J.W. , 2013 IL 114817, ¶ 55.
¶ 56 Mohammad argues that the evidence showed that he w as a loving father who had a close

relationship with his children and that the trial c ourt thus should have awarded him and Uzma joint custody. However, in order to award join t custody, a trial court must find that the parties are able to “cooperate effectively and cons istently” with each other in matters relating to the parenting of the children. 750 ILCS 5/602.1( c) (West 2012). Mohammad has not rebutted Gessner’s and Dr. Gardner’s opinions that the parties’ level of conflict with each other was too high to permit joint custody. Accordi ngly, he has not shown that the trial court’s decision that joint custody was not appropr iate was against the manifest weight of the

evidence.
¶ 57 Mohammad also argues that Uzma interfered with his ability to visit the children during

his trips to Illinois while he was working in Saudi Arabia and thus should not have sole custody. However, the trial court’s judgment contai ns detailed findings regarding each of the 10 statutory factors, with citations to the evidenc e regarding each factor. As to the willingness of each parent to facilitate a “close a nd continuing relationship” between the children and the other parent (see 750 ILCS 5/602(a )(8) (West 2012)), the trial court specifically found that Mohammad would be the paren t more likely to interfere with that relationship. This finding was based on Gessner’s a nd Dr. Gardner’s observations that Mohammad spoke negatively and disrespectfully of Uz ma, as well as on the trial court’s own observations of Mohammad. In addition, both Gessner and Dr. Gardner investigated Mohammad’s claims of interference with visitation, and they opined that Uzma had not interfered but instead had made good-faith efforts to provide Mohammad with visitation, often on short notice. Accordingly, the trial court ’s grant of sole custody to Uzma was not against the manifest weight of the evidence.

¶ 58 E. Finding That Uzma Was Entitled to Maintenanc e ¶ 59 Mohammad next argues that the trial court erred in finding that Uzma was entitled to

maintenance (although it did not set any current ma intenance obligation). Section 504 of the Act governs the determination of whether maintenanc e is appropriate, and it contains 12

enumerated factors for the court to consider. 750 I LCS 5/504 (West 2012). Those factors- 15 -

include: the income and property of each party; the needs of each party; the present and future earning capacity of each party; any impairme nt of the present and future earning capacity of the recipient spouse due to devoting ti me to domestic duties or forgoing opportunities because of the marriage; the time nec essary to enable the party seeking maintenance to acquire appropriate education, train ing, and employment; the standard of living established during the marriage; the duratio n of the marriage; the age and physical and emotional condition of each party; the tax conseque nces of the property division; any contribution and services by the recipient spouse t o the other spouse; any valid agreement of the parties; and any other factor that the trial co urt expressly finds to be just and equitable. 750 ILCS 5/504(a) (West 2012). A court is not limit ed to the enumerated factors in reaching an equitable determination, and no one factor is di spositive. In re Marriage of Brankin , 2012 IL App (2d) 110203, ¶ 10. The granting of maintenan ce is within the trial court’s discretion,

and we will not reverse the trial court’s determina tion unless it is clear that it has abused that

discretion. In re Marriage of Schneider , 214 Ill. 2d 152, 173 (2005). The party challengin g the award of maintenance bears the burden of showin g such an abuse of discretion. Id

. ¶ 60 Mohammad argues that the trial court should not ha ve found that Uzma was entitled to

maintenance because none of the enumerated factors favors a grant of maintenance. However, applying the factors to the evidence revea ls that this argument clearly lacks merit. Uzma is in her forties, was married for over 10 yea rs, and forwent employment during the marriage to stay home and care for the parties’ chi ldren. The parties enjoyed a high standard of living while in Saudi Arabia, and they also appe ar to have been relatively comfortable when living in Illinois, albeit at a more middle-cl ass standard of living. Due to her lack of credentials in this country and the need for additi onal education and certification, however, Uzma is not currently employable at a salary that w ould permit her to support the children and enjoy the same standard of living as during the marriage. Moreover, the slightly higher proportion of marital assets awarded to her will no t cure the shortfall between her earning capacity and her household expenses. See In re Marriage of Gurda , 304 Ill. App. 3d 1019, 1028 (1999) (maintenance may be appropriate despite award of marital property; recipient spouse should not be required to liquidate assets i n order to meet living expenses).
¶ 61 Mohammad insists that the parties essentially have the same low earning capacity

because, like Uzma, he cannot find work in Illinois that would permit him to maintain the parties’ former standard of living. He also asserts that his needs are equal to Uzma’s. However, the trial court found that Mohammad is cur rently underemployed and that he voluntarily left his most recent position, at which he was earning a high salary. The trial court also stated that, given his experience, skill level , and wage history, it expected that Mohammad would soon be able to find employment at a higher salary. His situation thus differs from Uzma’s, as she requires additional tra ining before she will become employable in her field. Moreover, Uzma’s needs are greater, a s she is the custodial parent, with the responsibility for meeting the children’s daily nee ds. Although Mohammad introduced evidence that he had recently signed a lease to ren t a house at $2,200 per month (so that he could care for the children if he were granted cust ody), at the time of trial he was living rent-free in his brother’s home and was being suppo rted by his brother, and thus he had- 16 -

minimal living expenses. Accordingly, we find no ab use of discretion in the trial court’s

determination that Uzma was entitled to maintenance

.

¶ 62 F. Distribution of Marital Property
¶ 63 Mohammad lastly asserts that the trial court abuse d its discretion in awarding the

majority of the marital estate to Uzma. A trial cou rt has broad discretion in the division of marital assets, and we will reverse its determinati ons only if it is clear that the trial court has

abused that discretion. Wojcik , 362 Ill. App. 3d at 161.
¶ 64 In the judgment for dissolution, the trial court o rdered the property at 925 Iroquois to be

sold and awarded Uzma 65% of the proceeds. The tria l court treated as an asset (in essence, an account receivable) the $52,000 still owed to th e parties by Mohammad’s sister and

brother-in-law from the back-and-forth transfer of their condominium. The trial court awarded the full amount of this asset to Mohammad, but ordered him to pay Uzma $33,800 (65% of $52,000) from his share of the proceeds whe n the 925 Iroquois property was sold. As to other assets, the stock was to be sold and th e proceeds evenly divided. Each party was

awarded his or her own bank accounts and was liable for his or her own attorney fees. All of the marital debt was assigned to Mohammad: this inc luded $8,625 owed to various entities in connection with Mohammad’s employment in Saudi Arab ia, and $44,260 allegedly owed to
Mohammad’s sister and brother-in-law for rent, util ities, maintenance, and the like while Uzma and the children were residing in the condomin ium.
¶ 65 In announcing its rulings, the trial court stated that it was awarding a larger portion of the

marital property to Uzma because, although she was entitled to receive maintenance, Mohammad’s current low income prevented the court f rom awarding any amount of maintenance, at least until Mohammad obtained emplo yment “commensurate with his experience.” The trial court noted that Mohammad’s underemployment and low income also resulted in an unreasonably low amount of child sup port (under the statutory guidelines) that

was insufficient to meet the children’s needs. The disproportionate property award to Uzma, the custodial parent, was intended to address this shortfall at least in part.
¶ 66 As in his arguments regarding maintenance, Mohamma d argues that the parties are in the

same financial position “because neither party is e mployable in their field without further education or experience,” and that he contributed $ 60,000 of nonmarital funds to the 925 Iroquois property. We note that Mohammad did not re quest reimbursement for his nonmarital contribution to a marital asset, nor did he present any evidence tracing that contribution, as would be required for reimbursemen t under section 503(c)(2) of the Act (750 ILCS 5/503(c)(2) (West 2012)). Rather, he simply ad vances his contribution as a reason that he should have been awarded a larger share of the p roceeds from the sale of the property. See 750 ILCS 5/503(d)(1) (West 2012) (the contribution of each party to the acquisition and preservation of an asset is one factor to be consid ered in dividing marital assets).
¶ 67 As to the first argument, we have rejected it in o ur analysis of maintenance, above, and

we likewise reject it here. As to the second argume nt, the parties’ relative contributions to marital assets are but one factor among a dozen fac tors enumerated in section 503(d), and- 17 -

Mohammad does not argue that the balance of the fac tors favors him. Accordingly, the trial court did not abuse its discretion in dividing the marital estate as it did.

¶ 68 III. CONCLUSION
¶ 69 For the foregoing reasons, the judgment of the circ uit court of Du Page County is affirmed.

¶ 70 Affirmed.

¶ 71 PRESIDING JUSTICE BURKE, specially concurring.
¶ 72 I agree with the analysis in the majority opinion with the exception of the discussion of

severability in paragraph 39.
¶ 73 In this case, the PNA contained an express severab ility clause, which weighs in favor of

enforcing various provisions of the agreement after unenforceable provisions are removed.

See In re Marriage of Heinrich , 2014 IL App (2d) 121333, ¶ 52 (“A contractual sev erability clause ‘strengthens the case for the severance of u nenforceable provisions because it indicates that the parties intended for the lawful portions of the contract to be enforced in the absence of the unlawful portions.’ [Citation.]”).
¶ 74 The PNA contained three separate paragraphs relate d to the parties’ agreed disposition of

issues in a divorce setting. Paragraph 1 concerned the distribution of equity in the home. Paragraph 9 concerned child custody. Paragraph 28 c oncerned waiver of spousal support. While paragraph 9 is clearly unenforceable as again st public policy, I simply do not see how this provision is so intertwined with the financial issues as to defeat the stated intent of the parties regarding severability.
¶ 75 That said, I wholeheartedly agree with the majorit y that the PNA was unenforceable in its

entirety (including the severability clause) as it was vague, ambiguous, and substantively

unconscionable.