In re Marriage of Larocque , 107 N.E.3d 349 ( 2018 )

2018 IL App (2d) 160973Nos. 2-16-0973 & 2-16-0987 cons.
Opinion filed May 31, 2018
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
In re MARRIAGE OF ) Appeal from the Circuit Court
JANET LAROCQUE, ) of Du Page County.
)
Petitioner and Counterrespondent­ )
Appellant, )
)
and ) No. 14-D-956
)
JOHN LAROCQUE, )
)
Respondent and Counterpetitioner­ )
Appellee ) Honorable
) Neal W. Cerne,
(Howard Rosenfeld, Appellant). ) Judge, Presiding.
______________________________________________________________________________
JUSTICE ZENOFF delivered the judgment of the court, with opinion.
Justices Burke and Schostok concurred in the judgment and opinion.
OPINION
¶1 Following a trial in the circuit court of Du Page County, the court entered a judgment
dissolving the marriage of John and Janet LaRocque. As part of that order, the court sanctioned
one of Janet’s attorneys, Howard Rosenfeld, in the form of a $50,000 judgment against him and
in favor of John. Janet appeals, challenging the court’s factual findings as well as numerous
rulings both prior to and during trial. Rosenfeld separately appeals the sanctions entered against
him. For the reasons that follow, we affirm.
¶2 I. BACKGROUND
2018 IL App (2d) 160973¶3 John and Janet married in 1985. During the marriage, John amassed substantial wealth
for the family through his efforts as a trader and investor. Janet was a stay-at-home mother to
the parties’ four children, the eldest of whom has since passed away. The remaining children are
all emancipated. In May 2014, Janet filed a petition for dissolution of the marriage. John filed a
counterpetition the following month. Janet subsequently dismissed her petition, and the case
proceeded on John’s counterpetition.
¶4 John and Janet had a large marital estate, ultimately valued by the trial court at more than
$21 million. However, the parties disputed whether the assets held in certain irrevocable trusts
were also part of their marital estate. The court granted John’s motion for summary judgment
with respect to those trusts, ruling that the assets therein were not part of the marital estate. The
matter subsequently proceeded to trial on the issues of maintenance, distribution of property, and
the date the marriage began its irretrievable breakdown. We will summarize these proceedings
more fully below.
¶5 A. John’s Motion for Summary Judgment
¶6 In the mid-2000s, John retained counsel for the purpose of creating a comprehensive
family estate plan. Over the ensuing years, he and Janet established and funded numerous
irrevocable trusts. Although Janet signed documents relating to the trusts, she denied knowing
any of the details of the estate plan or being involved in the planning process. It is undisputed
that the parties’ children and further descendants will ultimately reap substantial tax benefits
from this estate plan. The problem from Janet’s perspective, however, was that John’s estate-
planning techniques substantially reduced the size of their marital estate for purposes of these
divorce proceedings. Janet thus accused John of “divorce planning.”
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2018 IL App (2d) 160973¶7 Prior to trial, John filed a motion for summary judgment pertaining to the trusts. He
argued that all of the property that was contributed to the trusts over the years was transferred by
him and/or Janet irrevocably and with donative intent. Relying primarily on In re Marriage of
Romano, 2012 IL App (2d) 091339, and Johnson v. La Grange State Bank, 73 Ill. 2d 342 (1978),
John claimed that the trusts and their assets were outside of the marital estate and could not be
divided in these divorce proceedings. He supported his motion with six affidavits, which are
detailed below. Those affidavits, in turn, incorporated by reference more than 300 exhibits
comprising thousands of pages.
¶8 Michael Hartz, a partner at the law firm of Katten Muchin Rosenman, LLP (Katten
Muchin), submitted an affidavit in which he averred the following. In December 2004, he was
retained to represent John and Janet with regard to their estate planning. Although he was the
“principal attorney for the LaRocque estate planning,” his associate, Jonathan Graber, drafted
documents and dealt with the clients. Over time, Graber assumed primary responsibility for the
matter. According to Hartz, “[i]n addition to creating a plan to meet the LaRocque’s [sic]
objective of providing an orderly disposition of property upon death, a significant emphasis of
the estate planning was to minimize federal and state estate taxes.” Hartz attached to his
affidavit an engagement letter wherein he agreed to represent John and his family. That letter
was directed to, and signed by, John, not Janet.
¶9 Graber, a former employee of Katten Muchin and a current partner at Drinker Biddle &
Reath LLP (Drinker Biddle), also submitted an affidavit. He averred that, in 2005, he began
preparing estate-planning documents for John and Janet under Hartz’s supervision. A significant
emphasis of this plan, Graber explained, was to minimize estate taxation while providing an
orderly disposition of property upon death. He asserted that, because of the tax planning that had
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2018 IL App (2d) 160973been implemented, the majority of the property currently owned by the various trusts should not
be subject to estate taxation upon the death of John or Janet. The ultimate beneficiaries of the
tax planning are the parties’ children and their further descendants. Graber identified the myriad
trusts that John and Janet established, and he explained the estate-planning advantages that those
trusts provided. Graber also asserted in his affidavit that John engaged in loan transactions with
many of the trusts. According to Graber, those transactions were authorized by the provisions of
the trust documents. Furthermore, Graber attested that most of the trusts contained provisions
designed to ensure that they would be taxed as “grantor trusts.” Among those provisions were
the power of the trustees to lend money to the grantor without adequate security and the power of
the grantor to substitute property of equivalent value. According to Graber, “[t]his is beneficial
from an overall family tax perspective, since property owned by John or Janet, which would
ultimately be subject to estate taxes, is being used to pay the income tax obligations of trusts that
will not be subject to estate taxes.”
¶ 10 John also attached his own affidavit in support of his motion for summary judgment. He
averred as follows. In December 2004, he retained Katten Muchin to prepare an estate plan for
himself and Janet. The purposes of the estate plan were to provide for an orderly disposition of
property upon his and Janet’s deaths and to minimize estate taxation in the process of
transferring wealth to their children. Pursuant to that plan, between 2005 and 2012, he and/or
Janet established dozens of trusts, many of which were grantor retained annuity trusts (GRATs).
During that same time period, he and/or Janet gifted and sold assets to the trusts. In doing so, he
intended to irrevocably divest himself of ownership of those assets. To the best of his
knowledge, he, as grantor, acted consistently with the terms of the trust agreements. He
undertook loan transactions with “virtually all of the trusts” by borrowing principal pursuant to a
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2018 IL App (2d) 160973series of revolving loan agreements and promissory notes. He also made loans to the trusts and
sold assets to them, the latter event being an exercise of his right as grantor to substitute assets of
equivalent value. The gift-tax returns that he and Janet filed from 2005 to 2012 reflected the
assets that they transferred to the trusts. John identified in his affidavit the various trusts that
were established. He also indicated when and how each trust was funded and, in the case of the
GRATs, provided the date that each trust either had terminated or was expected to mature. He
further documented his numerous loan transactions, some of which occurred almost immediately
after the initial funding of the trusts.
¶ 11 Michael LaRocque, John’s brother, submitted an affidavit in support of John’s motion for
summary judgment. He averred the following. He served as either the trustee or the trust
protector of numerous trusts established by John and Janet. He understood that the purposes of
the trusts were to provide an orderly distribution of property upon John’s and Janet’s deaths and
to transfer wealth to their children while minimizing estate taxation. Michael consulted with
Graber on an ongoing basis regarding the trust transactions to ensure adherence to the purposes
of the trusts.
¶ 12 Daniel Asher signed an affidavit, averring as follows. He had known John since 1980,
and they had been friends and business partners for more than 20 years. Asher was the trustee
and investment advisor of some of the trusts at issue. In those capacities, he executed numerous
documents, including purchase agreements, promissory notes, assignments, and loan agreements
between John and the trusts. To the best of Asher’s knowledge, all such loan and purchase
transactions were in accordance with both his own fiduciary duties and the express provisions of
the trust agreements.
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2018 IL App (2d) 160973¶ 13 The final affidavit that John submitted in support of his motion for summary judgment
was from Fred Goldman. Goldman indicated that he was the chief financial officer of Equitec
Group LLC, which was a holding company that supported the trading activities of John, Asher,
and their respective trusts. Goldman was “highly familiar with the structure and mechanics” of
the irrevocable trusts at issue. Because of that familiarity, John asked him to prepare a summary
for each trust, setting forth the initial funding and the subsequent loan transactions involving
John. Over the course of approximately 20 pages in his affidavit, Goldman summarized the
history of transactions for each trust. The summaries reflected that John borrowed extensively
from the trusts, but that he repaid the loans with interest. Certain loans were outstanding as of
the date Goldman executed the affidavit.
¶ 14 Janet filed an 80-page memorandum opposing John’s motion for summary judgment.
She insisted that it was not until discovery in this action that she learned of “the extent of the
trust work John had engaged in during the course of the marriage.” She also discovered that she
would be excluded as a beneficiary of some of the trusts in the event of a divorce from John.
Janet emphasized that Graber acknowledged in his deposition that he never communicated with
her about the trusts. She said that her only involvement with the trusts was to blindly sign
documents based on John’s “misrepresentations.” She claimed that, since 2005, she had been
“the unwilling and unsuspecting victim of an ongoing scheme at the hands of John.”
¶ 15 Janet also argued in her memorandum opposing summary judgment that the majority of
the assets in the trusts had been transferred while the marriage was undergoing an irretrievable
breakdown: i.e., after 2010. Janet conceded that “the trusts, on their face, make it appear as
though John has made irrevocable gifts to the third-party entit[ies].” Nevertheless, she argued,
Romano and Johnson did not support John’s legal position, as the transfers at issue were
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2018 IL App (2d) 160973“illusory and/or colorable” and without “the requisite donative intent.” Some of the factors that
Janet cited in support of her contention that John had not relinquished control over the assets in
the trusts were that he borrowed funds from the trusts, he named a close friend and his brother as
trustees, and “[a]ll transactions with the trusts [were] with people related to John in some form.”
Janet repeatedly complained that she was missing information with respect to the trusts and that
she required additional discovery.
¶ 16 Janet submitted a long list of materials as exhibits to her memorandum opposing
summary judgment. Two of those exhibits were affidavits. One was from her accounting expert,
Tom Levato. Levato identified scores of purported deficiencies in John’s production of
documents during discovery. Janet also submitted her own affidavit, in which she averred as
follows. She never consulted with or was advised by any attorney from Katten Muchin or
Drinker Biddle. She knew that John had established a qualified personal residence trust, but she
was not aware that either she or John had established or funded any other trusts. During these
divorce proceedings, she learned that her signature appeared on a number of trust documents.
Although her signature appeared to be genuine, she never signed those documents knowing the
nature of what she was signing. To that end, during the marriage, John would frequently ask her
to sign documents without telling her what she was signing. Instead, he “would simply state that
the documents were ‘just business’ or ‘nothing to worry about’ or ‘for the children’ or ‘for tax
purposes.’ ” She was never asked to sign any document that she knew related to a trust.
¶ 17 According to Janet’s affidavit, she and John began experiencing marital difficulties in
late 2010. Prior to filing the dissolution action, she never knew that she was either the trustee or
the beneficiary of any trust. Nor did Asher or Michael LaRocque ever contact her regarding the
trusts. In June 2015, she requested trust documents from Asher and Michael, but she did not
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2018 IL App (2d) 160973receive those documents. Prior to petitioning for divorce, she was not aware of any transactions
with or gifts of property to the trusts. She was also unaware that John funded the trusts with
marital assets and that he borrowed extensively from the trusts. Although she was designated as
a trustee of certain trusts, she never approved any loans for John, and she did not know that he
could borrow from any trust.
¶ 18 Following a lengthy hearing at which the court entertained argument from the parties’
attorneys, the court granted John’s motion for summary judgment. The court determined that the
trusts at issue were “separate legal entities,” in the sense that “neither party has a property
interest in those trusts,” and that “neither the trusts nor their assets [were] includable in the
parties’ marital estate or in either party’s nonmarital estate.” In the course of explaining its
ruling, the court emphasized that the trusts were not illusory in form, given that they were all
created by written agreements. Janet’s failure to read documents before signing them was no
defense. The court likewise determined that the trusts were not illusory in substance, because
lending is a common and proper purpose of such trusts and John repaid his loans. There was
also no indication that the trusts had lost money or that the trustees had breached their fiduciary
duties. The court stressed that its ruling did not preclude Janet from subsequently arguing at trial
that, by creating these trusts, John nevertheless committed dissipation or fraud against Janet.
¶ 19 B. Proceedings Following Summary Judgment and Prior to Trial
¶ 20 This litigation, which was rather contentious from the outset, became even more so
during the course of briefing and arguing John’s motion for summary judgment. John ultimately
filed a motion for sanctions against Janet and her counsel—the law firm of Rosenfeld, Hafron,
Shapiro & Farmer—pursuant to Illinois Supreme Court Rule 137 (eff. Jan. 1, 2018) and section
508(b) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/508(b) (West
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2018 IL App (2d) 1609732016)). According to John, in the course of opposing his motion for summary judgment, Janet
and her counsel “pursued a no-holds-barred litigation strategy characterized by
misrepresentations of the law and the facts, baseless and frivolous claims and motions, and
irresponsible accusations of wrongdoing against John and others.” The court did not rule on this
motion until after trial.
¶ 21 Meanwhile, the court intervened in a number of heated discovery disputes between the
parties. One of the primary areas of disagreement was whether Janet had received all of the
documents she requested from John. The court addressed these matters at a lengthy hearing on
February 10, 2016. Janet’s lead attorney, Rosenfeld, informed the court that, instead of
personally reviewing the documents that John was producing in discovery, his office was
submitting those documents to an accounting firm for review. According to Rosenfeld, the
accountants informed him that they did not have certain documents, even though John’s counsel
insisted that he produced them. At a subsequent hearing on February 22, 2016, Shaska Dice, an
attorney who worked with Rosenfeld, acknowledged that some of the documents that Rosenfeld
had claimed were missing had simply not been inventoried by Janet’s accountant. John
subsequently filed a second motion for sanctions against Janet and her counsel pursuant to Rule
137 and section 508(b) of the Act for their conduct related to discovery. The court did not rule
on that motion until after trial.
¶ 22 C. Trial
¶ 23 Janet served John with a notice of intent to claim dissipation. John admitted to
dissipation of approximately $209,000 in connection with certain of his expenditures after the
dissolution action was filed. That was apparently only a fraction of the amount that Janet
claimed John had dissipated.
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2018 IL App (2d) 160973¶ 24 The matter proceeded to trial in two phases. In the first phase, the court heard evidence
regarding the date that the marriage began its irretrievable breakdown. The second phase
focused on issues relating to support obligations and the distribution of property.
¶ 25 The trial was originally scheduled for six dates in June 2016. On each of those dates,
three attorneys appeared in court on Janet’s behalf: Rosenfeld, Dice, and Andrew Harger. On the
fourth day of trial, the court noted that it would need to set more dates, as it was evident that the
trial would not conclude within the allotted time. When the court mentioned scheduling
additional dates, Rosenfeld informed the court that Dice was expecting a baby the next month.
Despite Rosenfeld’s protests that he “absolutely cannot proceed without” Dice, the court
scheduled additional trial dates in July. Janet subsequently filed an emergency motion to
continue the trial based on Dice’s unavailability. The court denied that motion. For the
remainder of the trial, Rosenfeld and Harger appeared each day except for the final day, when
only Rosenfeld appeared.
¶ 26 1. Phase One of Trial
¶ 27 The trial record is voluminous. Recounting all of the evidence presented would be
neither practical nor necessary for the resolution of this appeal. It will suffice to say that John
and Janet were the only witnesses during the first phase of the trial and that they presented wildly
different accounts of when their marriage started to break down. Generally, the evidence showed
that the parties’ eldest son suffered a very serious deterioration in health in late 2010 and passed
away in June 2014. Janet believed that the dynamic of the marriage began to change in the wake
of the son’s change in health. Although the evidence showed that John and Janet sporadically
consulted with or attempted to contact divorce attorneys during 2012 (or, in Janet’s case, perhaps
as early as 2011), neither of them actually retained counsel until the fall of 2013. Even after
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2018 IL App (2d) 160973retaining counsel, John and Janet did not immediately petition for divorce. Instead, their
attorneys exchanged letters while John and Janet both continued to live in the marital residence
until the spring of 2014. The evidence showed that John and Janet took a trip to Mexico together
during late January or early February 2014. Shortly after returning, they participated in
mediation sessions, which proved unsuccessful. Janet petitioned for dissolution of the marriage
in May 2014.
¶ 28 Janet testified that the marriage began to deteriorate in 2011 as she became the primary
caretaker for their ailing son while John rejected her requests to work and travel less. Beginning
in 2011, Janet explained, she and John generally stopped going on dates together, and their social
life consisted primarily of attending events with their family. She testified that in August 2013
John told the family that he intended to move out of the marital residence. According to Janet,
she discovered in December 2013 that someone who she believed was John’s paramour was
contacting him. Janet related that the purpose of the trip to Mexico in early 2014 was to discuss
divorce. She claimed that the reasons she did not pursue divorce until 2014 were that it would
have been too much for the family to handle in light of the issues with their eldest son and that
John had control over the family’s finances. Through her attorney’s examination of John, Janet
attempted to establish that, after consulting with divorce lawyers in 2012, John engaged in a
series of financial transactions that removed money from the marital estate.
¶ 29 John, on the other hand, testified that the marriage did not begin its irretrievable
breakdown until March or April 2014. He maintained that he at all times worked with Janet to
care for their ailing son, and he denied ever abandoning Janet. He recalled that he and Janet
communicated and socialized with each other normally through 2013. Over Janet’s objections,
John introduced into evidence printouts of the parties’ text messages from late 2010 to December
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2018 IL App (2d) 1609732012. (John said that he was unable to obtain their text messages after December 2012.)
Although John admitted that both he and Janet contacted divorce attorneys in 2012, he testified
that things returned to normal after they discussed the matter and agreed they did not want a
divorce. John insisted that he did not divest himself of assets after speaking with a divorce
attorney. He denied engaging in divorce planning, and he said that his various financial
transactions were part of an ongoing estate plan. He also denied being in a dating relationship
with a paramour in December 2013. Moreover, John testified, even after he and Janet retained
divorce attorneys in the fall of 2013, they shared a bedroom until March 2014. John claimed that
the purpose of the trip to Mexico in 2014 was to have a good time, not to discuss divorce.
According to John, their relationship was “good” when they returned from Mexico in early
February, and things did not get volatile between them until a month later.
¶ 30 The court found that February 1, 2014, was the date that the marriage began its
irretrievable breakdown. The court noted that, although Janet claimed to have known in 2011
that divorce was inevitable, there was no evidence that she attempted to talk to John about
attending counseling or saving the marriage. The court found that surprising, given that the
parties had been married 25 years, had raised four children together, and had “invested a lot into
this marriage.” The court stated that it had to look to the objective evidence to determine when
the marriage broke down. According to the court, the parties’ text-message communications
were “obviously crucial to that.” The court cited multiple examples of text messages that
demonstrated “positive communication” that was typical of a married couple. The court
observed that, even in the one instance where the text messages reflected some sort of
disagreement between the parties, the exchange was neither confrontational nor derogatory. The
court identified other objective indications that the marriage was not irretrievably breaking down
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2018 IL App (2d) 160973between 2011 and 2013, such as the parties’ sharing a bedroom and socializing with friends.
Although John and Janet contacted divorce attorneys at certain points, the court found that this
“really doesn’t mean anything,” because they did not file for divorce.
¶ 31 The court found that “things started to change” in fall 2013 when the parties actually
retained divorce attorneys. To that end, the court credited Janet’s testimony that in August 2013
the parties discussed ending the marriage. However, the court did not know whether John and
Janet were “really trying to get a divorce” at that point or were instead still trying to save the
marriage, given that they continued to reside together in the marital residence and did not
immediately petition for divorce. Additionally, given that Janet believed that John had a
paramour as of December 2013, the court failed to understand why John and Janet went to
Mexico together in January 2014. In the court’s opinion, it was “really, really hard to say that
the marriage [was] irretrievably broken” if Janet went on a trip with John despite believing that
he had a paramour. The court discredited Janet’s testimony that the purpose of the trip was to
discuss divorce. The court instead deduced that this was “a last ditch effort” to save the marriage
before starting mediation, which ultimately proved unsuccessful.
¶ 32 Addressing Janet’s divorce-planning theory, the court agreed, as a general principle, that
if John were “scheming for this divorce” and “actually doing divorce planning to minimize his
estate,” that would be a clear indication that the parties were not working together during the
time periods at issue. Although Janet introduced evidence of a number of John’s financial
transactions during and after 2012, the court found that this evidence was presented in a vacuum.
Specifically, there was no indication that these transactions were unusual for John. To the
contrary, the court found that John had funded trusts for a long period of time. There was
nothing causing the court to think that John was purposefully diminishing his estate.
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2018 IL App (2d) 160973¶ 33 2. Phase Two of Trial
¶ 34 Having established February 1, 2014, as the date the marriage began its irretrievable
breakdown, the matter proceeded to the second phase of trial, regarding support obligations and
division of property. Some of the matters addressed during this portion of the trial—such as
disputes relating to the valuation of assets, Janet’s reasonable monthly expenses, and certain of
John’s recent expenditures—are not directly relevant to this appeal. However, one of Janet’s
contentions during the second phase of trial was that John depleted the marital estate over the
course of many years by transferring large sums of money to the irrevocable trusts. Janet
maintained that this argument was distinct from her claim of dissipation, and she proposed that
the court could consider John’s actions as a factor in her favor when dividing the marital estate.
See 750 ILCS 5/503(d)(1) (West 2016) (directing the trial court to consider “each party’s
contribution to the acquisition, preservation, or increase or decrease in value of the marital or
non-marital property” (emphasis added)). Over John’s objections, the court allowed Janet to
advance her depletion theory. Janet’s counsel also questioned John at length about the
substantial amounts of money he borrowed from, and paid back to, the irrevocable trusts. John
asserted that he generally used the money he borrowed to service other existing debt, to pay bills,
or to invest. According to John, since the 1980s, he had often taken out loans as part of his
employment as a trader and investor.
¶ 35 D. Judgment for Dissolution of Marriage
¶ 36 On November 1, 2016, the court entered a judgment for dissolution of marriage. The
court rejected Janet’s argument that the trusts were part of a divorce-planning scheme designed
to harm the marital estate. Instead, the court found, in addition to offering tax benefits to the
parties’ children, the trusts provided John with capital for investing while protecting the marital
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2018 IL App (2d) 160973estate from the effects of bad investments. The court determined that, contrary to Janet’s claim
that John used the trusts as his personal “piggy bank,” John always repaid the loans with interest.
The court found no case law supporting that estate planning for the benefit of the parties’
children was tantamount to diminishing the marital estate.
¶ 37 The court determined that the net value of the marital estate was $21,129,655. The court
divided the estate equally between John and Janet. In explaining its reasons for doing so, the
court once again rejected Janet’s argument that John depleted the marital estate from 2005
through 2013 by funding irrevocable trusts. The court deemed Janet’s argument “extremely
unpersuasive, both legally and factually,” given that she signed joint gift-tax returns, she failed to
provide evidence of what portion of their estate was contributed to the trusts, she failed to
provide evidence of any breach of fiduciary duty by the trustees, and the trusts protected the
marital estate from John’s volatile industry.
¶ 38 The court awarded Janet permanent maintenance in the amount of $30,000 per month.
Addressing John’s two pending motions for sanctions, the court entered sanctions against
Rosenfeld, in the form of a $50,000 judgment against him and in favor of John, due to
Rosenfeld’s “unnecessary and unsupported litigation that increased the costs of litigation.”
¶ 39 John filed a motion to reconsider the judgment for dissolution of marriage. The court
modified the judgment in certain respects that are not relevant to this appeal. Janet and
Rosenfeld filed separate notices of appeal, and we consolidated their appeals.
¶ 40 II. ANALYSIS
¶ 41 Janet argues that (1) the court erred in granting summary judgment in favor of John,
(2) the court erred in failing to rule that the marital estate had been depleted, (3) the court erred
“in all aspects of dissipation,” and (4) the court should have granted her emergency motion to
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2018 IL App (2d) 160973continue the trial. Rosenfeld separately argues that the court abused its discretion in sanctioning
him.
¶ 42 A. John’s Motion for Summary Judgment
¶ 43 Janet first argues that the court erred in granting summary judgment in John’s favor with
respect to the irrevocable trusts. Summary judgment is proper where “the pleadings, depositions,
and admissions on file, together with the affidavits, if any, show that there is no genuine issue as
to any material fact and that the moving party is entitled to a judgment as a matter of law.” 735
ILCS 5/2-1005(c) (West 2016). Where the material facts are disputed or where reasonable
people could draw different inferences from the facts, summary judgment is inappropriate. In re
Marriage of Dann, 2012 IL App (2d) 100343, ¶ 62. In ruling on a motion for summary
judgment, the court must construe the pleadings, depositions, admissions, and affidavits liberally
in favor of the party opposing the motion. Dann, 2012 IL App (2d) 100343, ¶ 62. We review
de novo the court’s order granting summary judgment. Dann, 2012 IL App (2d) 100343, ¶ 62.
¶ 44 We begin with an overview of Johnson and Romano. Johnson involved two separate
cases in which the plaintiff husbands challenged their respective wives’ transfers of property to
third parties. Johnson, 73 Ill. 2d at 349. Specifically, one of the wives settled a revocable trust
months before she died; she funded that trust with substantially all of her assets, and she
designated various family members other than her husband as the primary beneficiaries upon her
death. Johnson, 73 Ill. 2d at 350-51. The wife in the other case opened joint savings accounts
with her sister-in-law for the express purpose of ensuring that her property would not pass to her
husband when she died. Johnson, 73 Ill. 2d at 352-53. After the wives died, the husbands filed
lawsuits challenging the transfers. Johnson, 73 Ill. 2d at 351-53. Neither was successful in the
trial court, and they both appealed. Johnson, 73 Ill. 2d at 352-53.
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2018 IL App (2d) 160973¶ 45 Our supreme court explained that, with the exception of Totten trusts, 1 “no general
principles have emerged invalidating such other inter vivos transfers per se in respect to the
marital rights of surviving spouses.” Johnson, 73 Ill. 2d at 356-57. The reason is that “the
owner of property has an absolute right to dispose of his property during his lifetime in any
manner he sees fit, and he may do so even though the transfer is for the precise purpose of
minimizing or defeating the statutory marital interests of the spouse in the property conveyed.”
Johnson, 73 Ill. 2d at 357. Indeed, the court continued, “[s]uch a gift or transfer is not vulnerable
or subject to attack by the surviving spouse unless the transaction is a sham and is ‘colorable’ or
‘illusory’ and is tantamount to a fraud.” Johnson, 73 Ill. 2d at 358.
¶ 46 According to the court, although case law on the topic used the phrase “ ‘intent to
defraud,’ ” “[w]hen the cases discuss fraud on the marital rights of the surviving spouse, they are
not considering fraud in the traditional sense.” Johnson, 73 Ill. 2d at 358. Instead, the court
explained, the phrase “ ‘intent to defraud’ ” “must be construed in connection with the words
‘illusory’ and ‘colorable.’ ” Johnson, 73 Ill. 2d at 359. To that end, “an illusory transfer is one
which takes back all that it gives, while a colorable transfer is one which appears absolute on its
face but due to some secret or tacit understanding between the transferor and the transferee the
transfer is, in fact, not a transfer because the parties intended that ownership be retained by the
transferor.” Johnson, 73 Ill. 2d at 359. The court thus held:
“[A]n inter vivos transfer of property is valid as against the marital rights of the surviving
spouse unless the transaction is tantamount to a fraud as manifested by the absence of
1
A Totten trust is “[a] revocable trust created by one’s deposit of money, typically in a
savings account, in the depositor’s name as trustee for another.” Black’s Law Dictionary 1552
(8th ed. 2004).
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2018 IL App (2d) 160973donative intent to make a conveyance of a present interest in the property conveyed.
Without such an intent the transfer would simply be a sham or merely a colorable or
illusory transfer of legal title.” Johnson, 73 Ill. 2d at 361.
Applying these standards to the facts adduced at trial in the respective cases at hand, the court
determined that none of the transfers were vulnerable to attack. Johnson, 73 Ill. 2d at 363, 368.
¶ 47 In Romano, this court applied the principles articulated in Johnson to the context of a
divorce proceeding involving irrevocable trusts. In that case, the husband, Daniel, had
nonmarital interests in six family businesses. Romano, 2012 IL App (2d) 091339, ¶¶ 5, 7, 52,
54, 65, 73. During his marriage to Cynthia, Daniel’s family “began to implement an estate plan
that ultimately involved transferring the family’s interests in these entities into and out of various
trusts.” Romano, 2012 IL App (2d) 091339, ¶¶ 4-5. Specifically, Daniel established three
irrevocable trusts, two of which were GRATs. Romano, 2012 IL App (2d) 091339, ¶¶ 5, 11.
Daniel argued that the assets in those trusts “constituted third-party property and therefore were
not subject to allocation by the court.” Romano, 2012 IL App (2d) 091339, ¶ 27. One of
Cynthia’s arguments in response was that Daniel’s transfers to and from the trusts constituted a
fraud on her marital rights. Romano, 2012 IL App (2d) 091339, ¶ 99. Jay Tarshis, a trusts and
estates attorney, testified on Cynthia’s behalf at trial and opined that the trusts “ ‘contained
certain ties or connections which demonstrated that [Daniel] had retained sufficient control of the
trusts to make the transfer of assets illusory and/or colorable.’ ” Romano, 2012 IL App (2d)
091339, ¶ 101. Cynthia claimed that she did not know about any of those ties until after the
dissolution action commenced. Romano, 2012 IL App (2d) 091339, ¶ 101. The trial court
granted Daniel’s motion for a directed finding against Cynthia as to her claim of fraud on her
marital rights. Romano, 2012 IL App (2d) 091339, ¶ 99.
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2018 IL App (2d) 160973¶ 48 On appeal, citing Johnson, we explained:
“In Illinois, an owner has an absolute right to dispose of his property during his
lifetime in any manner he sees fit, and he may do so even though the transfer is for the
precise purpose of defeating his spouse’s statutory marital interests in the property
conveyed. [Citation.] As such, a transfer is not vulnerable to attack by a spouse unless
the transaction ‘is a sham and is colorable or illusory and is tantamount to a fraud.’ ”
(Internal quotation marks omitted.) Romano, 2012 IL App (2d) 091339, ¶ 103 (quoting
Johnson, 73 Ill. 2d at 358).
In a footnote, we asserted: “While Johnson dealt with an inter vivos transfer of property in
relation to the rights of a surviving spouse, the same test may be properly applied with respect to
dissolution proceedings.” Romano, 2012 IL App (2d) 091339, ¶ 103 n.6. In support of that
proposition, we cited Hofmann v. Hofmann, 94 Ill. 2d 205, 231 (1983) (Ryan, C.J., concurring in
part and dissenting in part).
¶ 49 We affirmed the directed finding in favor of Daniel, holding that the trial court’s ruling
was not against the manifest weight of the evidence. Romano, 2012 IL App (2d) 091339, ¶ 114.
We reasoned that, although Tarshis identified certain ties that he believed rendered the trusts at
issue illusory, he also made numerous concessions that allowed the trial court to reject his
opinion. Romano, 2012 IL App (2d) 091339, ¶ 114. Among Tarshis’s concessions was that
three of the proposed ties—naming a family member as a trustee, retaining the ability to
substitute assets in the trusts with other assets, and retaining the ability to obtain unsecured loans
from the trusts—were identified in the Internal Revenue Code as features of grantor trusts.
Romano, 2012 IL App (2d) 091339, ¶¶ 109, 114. Moreover, although Cynthia’s interests in the
trusts at issue would terminate upon the dissolution of the marriage, we noted that Tarshis
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2018 IL App (2d) 160973acknowledged that Daniel had named Cynthia as a beneficiary, despite having no obligation to
do so. Romano, 2012 IL App (2d) 091339, ¶¶ 112-14. In the process of distinguishing a case
that Cynthia relied on, we emphasized that (1) Daniel did not create the disputed trusts in
contemplation of divorce, and the estate plan predated the dissolution petition by five years,
(2) there was no indication that Daniel discussed divorce ramifications when preparing the estate
plan with his attorney, and (3) there was no evidence that Daniel made any misrepresentations to
Cynthia about the estate plan or otherwise forced her to enter an agreement regarding the
allocation of assets upon divorce. Romano, 2012 IL App (2d) 091339, ¶ 118.
¶ 50 Under the standards articulated in Johnson, and in light of this court’s opinion in
Romano, it is clear that John was entitled to summary judgment on his contention that the trusts
and the assets therein were not part of the parties’ marital estate. John met his initial burden by
presenting six affidavits, which collectively established that the trusts were valid and that he
conveyed assets to the trusts with donative intent. Specifically, John demonstrated that the trusts
were funded as part of a comprehensive estate plan designed to provide an orderly disposition of
property upon the parties’ deaths while minimizing exposure to estate taxation.
¶ 51 Janet never disputed that the trusts were valid and distinct legal entities. The limited
question before the trial court was whether there was a genuine issue of material fact as to
whether the transfers to the trusts were nevertheless tantamount to a fraud due to “the absence of
donative intent to make a conveyance of a present interest in the property conveyed.” Johnson,
73 Ill. 2d at 361; see also Romano, 2012 IL App (2d) 091339, ¶ 103. The trusts were
irrevocable, so John certainly could not transfer assets out of the trusts at will. That fact alone
made it an uphill battle for Janet to argue that the transfers to the trusts were “illusory” or
“colorable.” See Johnson, 73 Ill. 2d at 359 (“[A]n illusory transfer is one which takes back all
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2018 IL App (2d) 160973that it gives, while a colorable transfer is one which appears absolute on its face but due to some
secret or tacit understanding between the transferor and the transferee the transfer is, in fact, not
a transfer because the parties intended that ownership be retained by the transferor.”).
¶ 52 Unlike the wife in Romano, Janet did not produce expert testimony to question the
legitimacy of the trusts and the various transfers. Instead, Janet relied on her own affidavit. She
acknowledged signing trust documents but generally professed ignorance due to her failure to
read those documents. As the trial court correctly determined, that was not a defense. See
Schweihs v. Chase Home Finance, LLC, 2016 IL 120041, ¶ 57 (“In the absence of fraud, which
must be proved by clear and convincing evidence [citation], a man in possession of all his
faculties who signs a contract cannot relieve himself from the obligations of the contract by
saying he did not know or understand what it contained.”). The “misrepresentations” that Janet
claimed John made in connection with having her sign the documents were not
misrepresentations at all. Janet averred that John told her that the documents were “just
business,” “nothing to worry about,” “for the children,” or “for tax purposes.” None of John’s
purported statements were palpably untrue or even misleading. We are also mindful that the
estate-planning process in this case was put into motion approximately six years before Janet
claimed the marriage started to break down and nine years before she petitioned to dissolve the
marriage. This is not a case like In re Marriage of Frederick, 218 Ill. App. 3d 533, 539 (1991),
for example, where the husband changed his estate plan after consulting with a divorce attorney,
procured his wife’s signature on a document by misrepresenting its meaning, and shortly
thereafter petitioned for divorce.
¶ 53 In her memorandum opposing summary judgment, Janet said that she had no input
regarding the estate-planning process and that she never even met with the estate-planning
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2018 IL App (2d) 160973attorneys. Be that as it may, Hartz testified in his deposition that it is not unusual to deal with
just one spouse for purposes of estate planning. 2 Janet fails to direct our attention to any
evidence in the record to the contrary. Janet also mentioned that, in the event of a divorce, she
would no longer be a beneficiary of some of the trusts. But she does not explain why such a
provision in the trust agreements would inherently render any transfers to the trusts “illusory” or
“colorable.” We note that John was likewise excluded as a beneficiary of Janet’s gift trust and
her nonexempt gift trust if he divorced Janet. We also note that the wife in Romano was
excluded as a beneficiary of the disputed trusts in the event of a divorce (Romano, 2012 IL App
(2d) 091339, ¶ 113), yet this court upheld the trial court’s finding that there was no fraud against
her marital interests.
¶ 54 In arguing that John retained control over the assets in the trusts, Janet pointed out that
John named his close friend and his brother as trustees, he borrowed extensively from the trusts,
and he retained the power to substitute assets in the trusts for other assets. But Graber’s
affidavit, which was submitted in support of John’s motion for summary judgment, established
that two of the features of grantor trusts are (1) the power of the trustee to lend to the grantor
without adequate security and (2) the power of the grantor to substitute property of equivalent
value. The wife’s expert in Romano testified similarly. Romano, 2012 IL App (2d) 091339,
¶ 109. Furthermore, Janet failed to demonstrate that it was improper for John to designate his
close friend and his brother as trustees. In fact, Hartz indicated in his deposition that it is very
typical for a trustee to be a business partner of the grantor.
2
Janet included Hartz’s deposition as an exhibit to her memorandum opposing summary
judgment.
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2018 IL App (2d) 160973¶ 55 Contrary to what Janet implied in her memorandum opposing summary judgment, there
was also no evidence that the trustees breached their fiduciary duties. Although John routinely
borrowed money from the various trusts with the trustees’ approval, and in some cases did so
almost immediately after funding the trusts, the transactions were always documented by loan
agreements. John repaid those loans with interest. And while Janet repeatedly asserted in her
memorandum opposing summary judgment that she required additional discovery with respect to
the trusts, she does not identify that on appeal as a reason for reversing the court’s judgment.
¶ 56 It is important to highlight the narrow scope of the trial court’s summary-judgment
ruling. The court declared that the trusts at issue were “separate legal entities” and that “neither
the trusts nor their assets [were] includable in the parties’ marital estate or in either party’s
nonmarital estate.” There being no evidence that John lacked donative intent or that he
otherwise improperly retained control over the assets that were transferred to the trusts, summary
judgment on that limited issue was appropriate. The court did not preclude Janet from
subsequently arguing at trial that, by transferring assets to the trusts, John nevertheless
committed dissipation or otherwise depleted the marital estate. Therefore, Janet’s contention on
appeal that the court “embraced a mechanism whereby persons obtaining great wealth during
long years of marriage *** can remove that from any consideration in the marital estate” is
inaccurate.
¶ 57 Janet attempts to distinguish Romano both procedurally and factually. Although she is
correct that Romano involved a grant of a directed finding rather than a grant of summary
judgment, the substantive legal principles espoused in Romano and Johnson are equally
applicable here. And while Janet identifies numerous purported factual distinctions between
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2018 IL App (2d) 160973Romano and the instant case, she fails to explain why any of those matters are so significant as to
render that case inapplicable.
¶ 58 Janet contends that the trial court’s ruling undermines the presumption that property
acquired during a marriage is marital property. For the same reasons, she criticizes the Romano
court’s decision to apply the holding of Johnson in a divorce setting. Janet directs our attention
to section 503(b)(1) of the Act, which provides, in relevant portion: “For purposes of distribution
of property, all property acquired by either spouse after the marriage and before a judgment of
dissolution of marriage or declaration of invalidity of marriage is presumed marital property.”
750 ILCS 5/503(b)(1) (West 2016). She also cites cases containing boilerplate language that
there is a preference for classifying property as marital property and that a party claiming a
nonmarital interest bears the burden of proving by clear and convincing evidence that the
property falls into one of the enumerated statutory exceptions.
¶ 59 Janet’s arguments miss the mark. The statute and the cases she discusses pertain to
distinguishing between marital property and nonmarital property. Irrespective of whether
property is marital or nonmarital, it is before the court in a proceeding for dissolution of marriage
and is subject to distribution. See 750 ILCS 5/503(d) (West 2016) (“In a proceeding for
dissolution of marriage or declaration of invalidity of marriage, *** the court shall assign each
spouse’s non-marital property to that spouse. It also shall divide the marital property without
regard to marital misconduct in just proportions ***.”). The issue here was completely different:
whether the assets in the irrevocable trusts were before the court in the first instance and
therefore subject to distribution. Nothing in Romano undermines the presumption that property
acquired during the marriage is marital property. To the extent that Janet’s arguments reflect a
broader concern that spouses can in all cases transfer assets with complete immunity, her
- 24 ­
2018 IL App (2d) 160973concern is misplaced. In appropriate cases, such as where the circumstances reflect that one
party intended to defraud the other, courts will not hesitate to set aside transfers to trusts. See,
e.g., Frederick, 218 Ill. App. 3d at 539. However, as explained above, this is not such a case.
¶ 60 Janet also asserts that, in the portion of the judgment for dissolution of marriage
addressing the issue of sanctions against her counsel, the court “commented on the summary
judgment procedure” and “chastised [her] for not providing any counter-affidavits” in opposition
to the motion. According to Janet, the court erred in three respects: (1) she indeed provided her
own counter-affidavit, along with other evidentiary materials, (2) the affidavits supporting John’s
motion for summary judgment were “replete with conclusions and argument” in violation of
Illinois Supreme Court Rule 191(a) (eff. Jan. 4, 2013), and (3) the real issue in the summary-
judgment motion was the circumstances surrounding the trusts, not the propriety of the trusts
themselves.
¶ 61 These arguments are unpersuasive. Although Janet indeed attached numerous materials
to her memorandum opposing summary judgment, as explained above they evidenced no
genuine issue of material fact precluding summary judgment. Additionally, for two distinct
reasons, Janet forfeited any objection to the legal sufficiency of John’s affidavits. First, she
failed to challenge those affidavits in the trial court. See Fooden v. Board of Governors of State
Colleges & Universities, 48 Ill. 2d 580, 587 (1971) (“[T]he sufficiency of an affidavit cannot be
tested for the first time on appeal where no objection was made either by motion to strike, or
otherwise, in the trial court.”). She also failed to identify in her appellant’s brief any particular
statements in the affidavits that she believed violated Rule 191(a). See Ill. S. Ct. R. 341(h)(7)
(eff. Nov. 1, 2017) (points not argued in the appellant’s brief are forfeited and shall not be raised
in a reply brief). We will not consider these arguments. Furthermore, Janet’s contention about
- 25 ­
2018 IL App (2d) 160973focusing on the circumstances surrounding the trusts merely rehashes arguments that we have
already addressed and rejected.
¶ 62 Janet finally criticizes the trial court for not determining the time of the irretrievable
breakdown of the marriage before ruling on the motion for summary judgment. She has forfeited
this argument by failing to cite authority. See Gakuba v. Kurtz, 2015 IL App (2d) 140252, ¶ 19
(failure to cite relevant authority results in forfeiture of the argument, as it is not the role of the
court to “research the issues on the appellant’s behalf”).
¶ 63 For all of these reasons, the trial court properly granted summary judgment in favor of
John with respect to the trusts.
¶ 64 B. Depletion of the Marital Estate
¶ 65 Janet next argues that the trial court, when apportioning the parties’ marital property,
erred in failing to rule that the marital estate had been depleted.
¶ 66 Section 503(d) of the Act directs the court to consider numerous factors when dividing
marital property between the parties. 750 ILCS 5/503(d) (West 2016).
“A reviewing court applies the manifest weight of the evidence standard to the factual
findings for each factor on which a trial court may base its property disposition, but it
applies the abuse of discretion standard in reviewing the trial court’s final property
disposition (and how the trial court considers those factors).” In re Marriage of Vancura,
356 Ill. App. 3d 200, 205 (2005).
¶ 67 Janet directs her arguments toward the court’s factual findings rather than its ultimate
disposition of the marital property. We thus employ the manifest-weight-of-the-evidence
standard of review. A factual finding is not against the manifest weight of the evidence unless
“ ‘the opposite conclusion is clearly evident or the finding is arbitrary, unreasonable, or not
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2018 IL App (2d) 160973based in evidence.’ ” In re Marriage of Schneeweis, 2016 IL App (2d) 140147, ¶ 35 (quoting
Samour, Inc. v. Board of Election Commissioners of the City of Chicago, 224 Ill. 2d 530, 544
(2007)).
¶ 68 Janet focuses exclusively on section 503(d)(1), which provides that a court in a
proceeding for dissolution of marriage or declaration of the invalidity of marriage
“shall divide the marital property without regard to marital misconduct in just proportions
considering all relevant factors, including:
(1) each party’s contribution to the acquisition, preservation, or increase or
decrease in value of the marital or non-marital property, including (i) any decrease
attributable to an advance from the parties’ marital estate under subsection (c-1)(2) of
Section 501; (ii) the contribution of a spouse as a homemaker or to the family unit; and
(iii) whether the contribution is after the commencement of a proceeding for dissolution
of marriage or declaration of invalidity of marriage[.]” 750 ILCS 5/503(d)(1) (West
2016).
Following the first phase of the trial, the court determined that the parties’ marriage began to
undergo an irretrievable breakdown on February 1, 2014. The practical result of that finding was
that Janet was precluded from arguing in the second phase of the trial that John dissipated assets
prior to that date. See Schneeweis, 2016 IL App (2d) 140147, ¶ 33 (defining dissipation as the
“ ‘use of marital property for the sole benefit of one of the spouses for a purpose unrelated to the
marriage at a time that the marriage is undergoing an irreconcilable breakdown’ ” (internal
quotation marks omitted) (quoting In re Marriage of O’Neill, 138 Ill. 2d 487, 497 (1990))). Over
John’s objections, the court allowed Janet to present her theory that, for purposes of section
503(d)(1), John nevertheless depleted the marital estate over the course of many years by
- 27 ­
2018 IL App (2d) 160973transferring large sums of money to irrevocable trusts. The court ultimately rejected Janet’s
theory as “extremely unpersuasive, both legally and factually,” given that she signed joint gift-
tax returns, she failed to provide evidence of what portion of their estate was contributed to the
trusts, she failed to provide evidence suggesting any breach of fiduciary duty by the trustees, and
the trusts protected the marital estate from John’s volatile industry.
¶ 69 In his appellee’s brief, John argues that Janet’s “depletion” theory is merely an attempt to
avoid the reality that dissipation can occur only while the marriage is undergoing an irretrievable
breakdown. He further maintains that Janet’s theory is unsupported by the facts, as the parties
had virtually no assets when they first married and John’s efforts as a successful investor
increased their net worth to more than $21 million when the judgment for dissolution was
entered.
¶ 70 John raises legitimate concerns about whether Janet’s depletion theory was an improper
attempt to circumvent the court’s ruling regarding the date that the marriage began its
irretrievable breakdown. However, we need not comment further on this issue. The court indeed
allowed Janet to advance her depletion theory, and the court provided compelling reasons for
rejecting that theory, based on the facts presented at trial. The evidence supported the court’s
findings that the trusts at issue served proper family purposes and were managed appropriately.
Moreover, given that the court cited Janet’s signature on the gift-tax returns as one of its reasons
for rejecting her depletion theory, it seems that the court did not find Janet’s claims of lack of
knowledge of the trusts to be entirely credible. See Romano, 2012 IL App (2d) 091339, ¶ 95
(“As the trier of fact, the trial court was in a superior position to observe the demeanor of the
witnesses, determine and weigh their credibility, and resolve any conflicts in their testimony.”).
The court’s findings were not against the manifest weight of the evidence.
- 28 ­
2018 IL App (2d) 160973¶ 71 The two cases Janet cites in support of her depletion theory are distinguishable. In In re
Marriage of Norris, 252 Ill. App. 3d 230, 233 (1992), the evidence showed that the husband
“spent millions of dollars on drugs, alcohol, women and poor business decisions during the
marriage.” It appears from the appellate court opinion in Norris that the money the husband
spent on such activities might have been his own nonmarital property. Even assuming that the
money Mr. Norris squandered was marital property, any attempt by Janet to compare John’s
conduct in creating the family trusts to Mr. Norris’s degenerate lifestyle is woefully off-base.
¶ 72 Janet also relies on In re Marriage of Lee, 246 Ill. App. 3d 628 (1993). That case
involved dissipation, not depletion of the marital estate for purposes of section 503(d)(1).
Moreover, Lee bears no factual resemblance to the present case. In Lee, in the months
immediately preceding the parties’ separation, the husband used $166,719 of marital funds to
purchase bonds for his children and to contribute to their Totten trusts. Lee, 246 Ill. App. 3d at
631. On the day the parties separated, the husband transferred another $100,000 to an
irrevocable trust for the benefit of the children. Lee, 246 Ill. App. 3d at 631. The appellate court
determined that the husband’s history of transferring $20,000 to his children annually did not
justify his substantially larger transfers in the months preceding the separation. Lee, 246 Ill.
App. 3d at 635. Unlike in Lee, there was no evidence here that John contributed unusual
amounts of money to the irrevocable trusts in anticipation of imminent divorce proceedings.
¶ 73 C. Dissipation
¶ 74 Janet next argues that the court “erred in all aspects of dissipation.” Specifically, she
contends that the court abused its discretion in admitting evidence of the parties’ text messages
and set an incorrect time of the breakdown of the marriage.
¶ 75 1. Admission of the Text Messages
- 29 ­
2018 IL App (2d) 160973¶ 76 We review the trial court’s decision to admit documentary evidence, including text
messages, for an abuse of discretion. People v. Chromik, 408 Ill. App. 3d 1028, 1046 (2011). A
party provides the foundation for admitting a document by identifying and authenticating it.
Chromik, 408 Ill. App. 3d at 1046. Illinois Rule of Evidence 901(a) (eff. Jan. 1, 2011) states that
the requirements of identification and authentication are “satisfied by evidence sufficient to
support a finding that the matter in question is what its proponent claims.” See also People v.
Walker, 2016 IL App (2d) 140566, ¶ 13. A party may satisfy these requirements in any number
of ways, such as by introducing “[t]estimony that a matter is what it is claimed to be” or through
evidence of “[a]ppearance, contents, substance, internal patterns, or other distinctive
characteristics, taken in conjunction with circumstances.” Ill. R. Evid. 901(b)(1), (4) (eff. Jan. 1,
2011); see also Walker, 2016 IL App (2d) 140566, ¶ 13. “After the proponent of the evidence
completes laying the foundation, the court may permit opposing counsel to conduct a limited
cross-examination, referred to as voir dire, on the foundation offered.” Michael H. Graham,
Cleary and Graham’s Handbook of Illinois Evidence § 901.1, at 803 (8th ed. 2004); see also
Bazzell-Phillips & Associates, Inc. v. Cole Hospital, Inc., 54 Ill. App. 3d 188, 190 (1977). “In
reaching its determination as to admissibility, the court must view all the evidence introduced as
to authentication or identification, including issues of credibility, most favorable to the
proponent.” Michael H. Graham, Cleary and Graham’s Handbook of Illinois Evidence § 901.1,
at 803 (8th ed. 2004). “If upon consideration of the evidence as a whole, the court determines
that the evidence is sufficient to support a finding by a reasonable [trier of fact] viewing the
evidence most favorable to the proponent that it is more probably true than not true that the
matter in question is what its proponent claims, the evidence will be admitted.” Michael H.
Graham, Cleary and Graham’s Handbook of Illinois Evidence § 901.1, at 803 (8th ed. 2004). A
- 30 ­
2018 IL App (2d) 160973finding of authentication merely means that there is sufficient justification for presenting the
proffered evidence to the trier of fact. People v. Downin, 357 Ill. App. 3d 193, 202-03 (2005).
Even where the authentication requirement is satisfied, the opposing party remains free to contest
the genuineness of the writing, and it is the role of the trier of fact to determine the ultimate issue
of authorship. Downin, 357 Ill. App. 3d at 203.
¶ 77 During the first phase of the trial, John identified Exhibits 118 and 119 as printouts of
thousands of text communications between himself and Janet from the end of 2010 through
2012. To establish the foundation for admitting those exhibits into evidence, he explained as
follows. He found an iPhone backup file when he accessed the family’s shared “iCloud”
account. He downloaded that file onto another iPhone. Upon reviewing the file on that iPhone,
he discovered that it contained a series of chats between himself and Janet. He then gave the
iPhone to his attorneys to print the messages, and those printouts were Exhibits 118 and 119.
John attested to the accuracy of Exhibits 118 and 119. He claimed to remember many of the
messages, and he said that some of the phrases used in the messages were things only he and
Janet would know. Over Janet’s objections, the court admitted Exhibits 118 and 119 into
evidence.
¶ 78 We hold that the court did not abuse its discretion in admitting these exhibits. John
properly identified and authenticated the documents by establishing that they accurately depicted
messages that the parties sent each other. In other words, he demonstrated that the documents
were what he claimed them to be. See Ill. R. Evid. 901(a) (eff. Jan. 1, 2011). Janet was free to
dispute the authenticity of the texts, in which case it would have been up to the trial court as the
trier of fact to determine authorship. See Downin, 357 Ill. App. 3d at 203-04. We note that Janet
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2018 IL App (2d) 160973never actually denied the authenticity of any of the communications reflected in Exhibits 118 and
119, although she believed that there were “things missing from there.”
¶ 79 Chromik, a case cited by Janet, supports our conclusion that the trial court properly
admitted Exhibits 118 and 119. The defendant in Chromik was convicted of aggravated criminal
sexual abuse of a minor. Chromik, 408 Ill. App. 3d at 1030. At trial, the victim testified that she
exchanged numerous text messages with the defendant and that she presented some, but not all,
of those messages to the administrators at her high school. Chromik, 408 Ill. App. 3d at 1032.
She testified that, as she read the messages aloud, the school principal typed the content of those
messages into a computer. Chromik, 408 Ill. App. 3d at 1032. The principal’s testimony
mirrored the victim’s testimony, but he additionally acknowledged that the spell-check function
in his word-processing program had changed the spelling of some of the words he typed.
Chromik, 408 Ill. App. 3d at 1033. The principal was unable to identify any particular messages
that had been affected by this spell-check function. Chromik, 408 Ill. App. 3d at 1033. A police
officer testified that he compared the defendant’s cell-phone records to the document created by
the principal, and he determined that the dates and times of the messages on the documents
matched. Chromik, 408 Ill. App. 3d at 1034. The defendant testified on his own behalf;
although he admitted sending certain of the messages, he disagreed with the victim regarding the
meaning of those messages. Chromik, 408 Ill. App. 3d at 1035.
¶ 80 One of the defendant’s arguments on appeal was that the trial court erred in admitting
into evidence the principal’s transcription of the text messages. Chromik, 408 Ill. App. 3d at
1046. The court understood that “the transcription may not have evinced, with 100% accuracy,
the text messages sent from defendant to [the victim] as some words were changed via the word
processor’s spell-check feature.” Chromik, 408 Ill. App. 3d at 1047. Nevertheless, the court
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2018 IL App (2d) 160973found it significant that the dates and times of the text messages, as reflected in the principal’s
transcription, mirrored the telephone company’s records. Chromik, 408 Ill. App. 3d at 1047-48.
Moreover, the court noted, the victim “testified as to the content of the messages and defendant
acknowledged the accuracy of a number of the messages as transcribed by the principal.”
Chromik, 408 Ill. App. 3d at 1048. The court also emphasized that the trial court allowed the
parties to present their respective interpretations of the messages. Chromik, 408 Ill. App. 3d at
1048. Under those circumstances, the court held that the trial court did not abuse its discretion in
admitting the principal’s transcription into evidence. Chromik, 408 Ill. App. 3d at 1048.
¶ 81 The argument for admitting Exhibits 118 and 119 here is even more compelling than the
argument for admitting the principal’s transcription in Chromik. John was either the author or a
recipient of every text message reflected in Exhibits 118 and 119, so he was thus in a position to
identify and authenticate those messages. Unlike in Chromik, Exhibits 118 and 119 purportedly
contained the actual messages between the parties, not a third party’s transcription of the
messages. Additionally, unlike in Chromik, there was no indication here that the substance of
the messages had been altered in any way. For these reasons, the trial court did not abuse its
discretion in admitting Exhibits 118 and 119.
¶ 82 To the extent that Janet raises new issues in her reply brief—including that the trial
court’s ruling “flies directly in the face of” Illinois Rule of Evidence 106 (eff. Jan. 1, 2011) 3 or
that the court should not have admitted the exhibits as substantive evidence—those contentions
3
That rule provides: “When a writing or recorded statement or part thereof is introduced
by a party, an adverse party may require the introduction at that time of any other part or any
other writing or recorded statement which ought in fairness to be considered contemporaneously
with it.” Ill. R. Evid. 106 (eff. Jan. 1, 2011).
- 33 ­
2018 IL App (2d) 160973are forfeited and we will not consider them. 4 Ill. S. Ct. R. 341(h)(7) (eff. Nov. 1, 2017) (points
raised for the first time in a reply brief are forfeited).
¶ 83 At oral argument, Janet’s counsel directed our attention to “Harper” and “Watkins.”
Presumably, counsel was referring to People v. Harper, 2017 IL App (4th) 150045, and People
v. Watkins, 2015 IL App (3d) 120882. Neither of those cases provides support for disturbing the
trial court’s decision to admit the text messages between John and Janet. In Harper, because a
Verizon employee testified that a certain phone number was assigned to the defendant’s account,
there was a proper foundation to introduce evidence that the defendant sent and received the text
messages at issue. Harper, 2017 IL App (4th) 150045, ¶ 58. Nevertheless, the appellate court
held that the content of those text messages was inadmissible, given that the State was unable to
identify the person who sent the defendant “extremely prejudicial” messages containing “blatant
hearsay” (i.e., that the word on the street was that the defendant was involved in a murder).
Harper, 2017 IL App (4th) 150045, ¶¶ 62-63. Unlike in Harper, John established the identity of
the parties who sent and received the texts.
¶ 84 In Watkins, the State attempted to link the defendant to a particular cell phone that was
found in a drawer in a common area during the search of a home. Watkins, 2015 IL App (3d)
120882, ¶ 38. However, the only indication of any such connection was that some texts that
were sent to the phone were directed to somebody with the same first name as the defendant.
Watkins, 2015 IL App (3d) 120882, ¶ 38. The appellate court thus determined that the State
4
Janet also questions in her reply brief whether printouts of text messages “could
constitute the ‘original.’ ” We note that Illinois Rule of Evidence 1001(3) (eff. Jan. 1, 2011)
provides that “[i]f data are stored in a computer or similar device, any printout or other output
readable by sight, shown to reflect the data accurately, is an ‘original.’ ”
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2018 IL App (2d) 160973failed to properly authenticate the texts as being sent to the defendant. Watkins, 2015 IL App
(3d) 120882, ¶ 38. Here, by contrast, Janet identified her phone number in open court, so there
was no dispute as to whether she owned and used the phone at issue.
¶ 85 2. Irretrievable Breakdown of the Marriage
¶ 86 Apart from challenging the admissibility of Exhibits 118 and 119, Janet criticizes the
weight that the trial court attributed to those exhibits. That is intertwined with her other
argument regarding dissipation: the trial court set an incorrect time of the breakdown of the
marriage. According to Janet, the court erroneously “set the date of irreconcilable breakdown of
the marriage as February 1, 2104 [sic],” as opposed to determining “when the marriage was
‘undergoing’ an irreconcilable breakdown.” After reciting the evidence most favorable to her
own position, Janet submits that “[t]he court had plenty before it to consider the marriage
irreconcilably broken long before February 1, 2014.”
¶ 87 Section 503(d) of the Act lists numerous factors for the trial court to consider when
determining how to divide marital property. 750 ILCS 5/503(d) (West 2016). One of those
factors is “the dissipation by each party of the marital property.” 750 ILCS 5/503(d)(2) (West
2016). “Dissipation” means the “ ‘use of marital property for the sole benefit of one of the
spouses for a purpose unrelated to the marriage at a time that the marriage is undergoing an
irreconcilable breakdown.’ ” (Internal quotation marks omitted.) Schneeweis, 2016 IL App (2d)
140147, ¶ 33 (quoting O’Neill, 138 Ill. 2d at 497). It is the role of the trial court to determine
whether dissipation has occurred, and we will not disturb its factual findings in that respect
unless they are against the manifest weight of the evidence. In re Marriage of Holthaus, 387 Ill.
App. 3d 367, 374 (2008).
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2018 IL App (2d) 160973¶ 88 It is error for a court to assess dissipation by looking to “when the parties’ marriage had
completed the process of breaking down,” rather than when the marriage “began undergoing an
irreconcilable breakdown.” Holthaus, 387 Ill. App. 3d at 375. However, contrary to what Janet
proposes, the record here, when considered as a whole, confirms that the trial court applied the
correct legal standard. In Janet’s counsel’s closing argument, he compared the beginning of the
irretrievable breakdown of a marriage to throwing an egg off of a building; it goes down and
down until it hits the ground and breaks. The trial court embraced that analogy in its lengthy oral
ruling. For example, toward the beginning of its ruling, the court noted that the breakdown of a
marriage is inevitable “when the egg has been dropped.” The court concluded its ruling by
saying the following:
“All right. So the question then is when do I think that the marriage broke down
or that irretrievable date when the egg was dropped. I think it occurred during the time
that they were in Cabo San Lucas when they realized that their marriage was not going to
be saved. So I’m finding it to be February 1st of 2014.”
It is clear that the court found that the metaphorical egg “dropped,” not “shattered,” on February
1, 2014.
¶ 89 As an additional indication that the trial court applied the correct standard, we note that
the court cited our decision in Romano in the course of explaining its ruling. Romano explicitly
stated that “[i]n Holthaus, we rejected the notion that dissipation occurs only after an
irreconcilable breakdown.” (Emphasis in original.) Romano, 2012 IL App (2d) 091339, ¶ 89.
Having cited Romano, it seems certain that the trial court was aware of the correct standard.
¶ 90 Furthermore, the trial court’s finding that the irretrievable breakdown of the parties’
marriage began on February 1, 2014, was not against the manifest weight of the evidence. The
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2018 IL App (2d) 160973parties presented drastically different accounts of their marriage between 2011 and early 2014.
Much of the evidence that Janet highlights in her brief was actually disputed at trial. For
example, (1) John denied that their eldest son’s serious illness generated the breakdown of the
marriage, (2) he denied that Janet contacted a divorce attorney in 2011, (3) he denied rejecting
Janet’s pleas for assistance with their son, (4) he denied that they communicated only by texts as
of 2011, (5) he denied having a paramour by Christmas 2013, and (6) he denied that the purpose
of their trip to Mexico in 2014 was to discuss a divorce settlement. Faced with conflicting
testimony at virtually every turn, the trial court understandably placed significant weight on the
parties’ texts, which tended to show the parties communicating in a manner that was inconsistent
with Janet’s claims of estrangement. Moreover, although John and Janet both consulted with
divorce attorneys in 2012, the court could have credited John’s testimony that the parties agreed
at that time that they did not want a divorce. Even after John and Janet retained divorce
attorneys in the fall of 2013, they did not immediately petition for dissolution of the marriage.
Instead, they continued to cohabitate in the marital residence, and they took a trip to Mexico
together. The court thus drew the reasonable inference that the purpose of the trip to Mexico was
to attempt to save their marriage.
¶ 91 In light of the conflicting evidence, we cannot say that the trial court’s conclusion that the
marriage began its irretrievable breakdown on February 1, 2014, was against the manifest weight
of the evidence.
¶ 92 D. Janet’s Motion to Continue Trial
¶ 93 Janet finally argues that the court erred in refusing to continue the matter mid-trial to
accommodate the unavailability of one of her attorneys due to imminent childbirth.
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2018 IL App (2d) 160973¶ 94 Litigants do not have an absolute right to a continuance. Merchants Bank v. Roberts, 292
Ill. App. 3d 925, 927 (1997). Illinois Supreme Court Rule 231(f) (eff. Jan. 1, 1970) provides that
“[n]o motion for the continuance of a cause made after the cause has been reached for trial shall
be heard, unless a sufficient excuse is shown for the delay.” “Once the case reaches the trial
stage, the party seeking a continuance must provide the court with ‘especially grave reasons’ for
the continuance because of the potential inconvenience to the witnesses, the parties, and the
court.” K&K Iron Works, Inc. v. Marc Realty, LLC, 2014 IL App (1st) 133688, ¶ 23 (quoting
In re Marriage of Ward, 282 Ill. App. 3d 423, 430-31 (1996)). We review the trial court’s
decision to deny a motion for a continuance for an abuse of discretion, which occurs where the
ruling is “arbitrary, fanciful, or unreasonable, or when no reasonable person would take the same
view.” K&K Iron Works, 2014 IL App (1st) 133688, ¶ 22.
¶ 95 We find no abuse of discretion. The court offered a panoply of reasons for denying
Janet’s emergency motion for a continuance: (1) the parties had spent a “flabbergasting” amount
of money on the case, which meant that they could hire extra attorneys; (2) multiple law firms
had filed appearances for Janet; (3) if it were known that Dice was pregnant, alternative plans
could have been made and “[o]ther people could have been brought up to speed”; (4) the case
had been pending for a long time; (5) Dice was not so imperative to the case that it could not be
tried without her; (6) Rosenfeld was an accomplished attorney and was acting as lead counsel;
(7) there was no guarantee as to when Dice would return to work; and (8) delaying the case could
require reopening discovery for purposes of revaluing John’s various businesses. These were all
valid reasons for denying Janet’s mid-trial motion.
¶ 96 In support of her argument that the court abused its discretion, Janet asserts that “[t]he
court had earlier designated Dice as one of two attorneys permitted to represent Janet.” In a
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2018 IL App (2d) 160973similar vein, Janet argues that, “[g]iven the trial court designated Dice as one of two permitted
counsel for either side, the court should have allowed a short continuance here.” To the extent
that Janet means to imply that the court limited her to having only two attorneys present at trial,
her statements are misleading. In fact, three attorneys appeared for Janet on each of the first six
days of trial. The order restricting the parties to two attorneys each related to a pretrial
conference, not to trial.
¶ 97 Janet also overstates her case when she dubs Dice “her chosen counsel.” The record
reflects that Rosenfeld examined the witnesses at trial and argued most of the objections. He
also referred to himself in court as “the lead lawyer.” Although Dice assisted Rosenfeld during
trial and might very well have been Janet’s “primary contact,” Harger also assisted Rosenfeld at
trial. Rosenfeld and Harger were competent to try the case, and there is no indication in the
record that they failed to adequately represent Janet’s interests in Dice’s absence. See McMillen
v. Carlinville Area Hospital, 114 Ill. App. 3d 732, 739 (1983) (“Where more than one attorney is
involved in a case, the absence of one of the attorneys at the time of trial does not necessarily
mean that the cause must be continued [citations], especially where the attorney who tries the
case has been involved from the inception of the case [citation], and where the attorney who tries
the case is competent to try it.”).
¶ 98 To the extent that Janet insinuates that the trial court’s decision somehow violated federal
law, her contention is forfeited due to her failure to cite authority or present a cogent argument.
See Hall v. Naper Gold Hospitality LLC, 2012 IL App (2d) 111151, ¶ 12 (“Mere contentions,
without argument or citation to authority, do not merit consideration on appeal.”). The trial court
properly denied Janet’s emergency motion to continue the trial.
¶ 99 E. Sanctions
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2018 IL App (2d) 160973¶ 100 In his separate appeal, Rosenfeld argues that the court “abused its discretion in ordering
$50,000 in fees as an apparent sanction under [Illinois Supreme Court] Rule 137.” John
responds that the court properly awarded fees from Rosenfeld pursuant to Rule 137 as well as
section 508(b) of the Act.
¶ 101 John’s first motion for sanctions pertained to the conduct of Janet and her counsel in
opposing John’s motion for summary judgment. John noted that he supported his motion for
summary judgment with six affidavits, along with comprehensive documentation accounting for
his transactions with the trusts. John contended that neither of the affidavits that Janet submitted
with her memorandum opposing summary judgment controverted the material allegations in his
motion. He also emphasized the conspicuous absence of any affidavit from the trust expert she
had retained. John maintained that Janet’s memorandum opposing summary judgment was
sanctionable due to its “numerous misstatements of the law and the evidence, baseless or false
factual claims, and specious and irresponsible accusations of wrongdoing.” According to John,
at the hearing on the motion for summary judgment, Janet’s counsel “doubled-down on the false
and misleading factual claims and legal arguments.” For all of these reasons, John requested
sanctions against Janet and/or her counsel pursuant to Rule 137 and section 508(b) of the Act.
¶ 102 In her response to John’s first motion for sanctions, Janet argued that her team of
attorneys and her expert worked diligently to defend her against a claim involving more than 30
trusts and 4000 pages of exhibits. She insisted that she “was under no obligation to just ‘go
along’ with John’s agenda regarding the Trusts he established during the course of the litigation
[sic] without Janet’s active involvement.” Janet denied misrepresenting the law, misrepresenting
the evidence, or making any baseless claims in the course of opposing the motion for summary
judgment.
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2018 IL App (2d) 160973¶ 103 John’s second motion for sanctions addressed the discovery disputes between the parties.
John noted that he had filed a motion to supervise discovery in which he complained of Janet’s
“unreasonable and harassing discovery demands.” Such demands, he argued, included both
requests for documents that he had already produced and requests for irrelevant documents.
According to John, Janet’s memorandum opposing his motion to supervise discovery included a
spreadsheet purporting to identify outstanding discovery. John insisted that many of the items on
that spreadsheet involved simple requests for updates, which he had been providing anyway, or
documents that he had already informed her were unavailable. Most egregious, John asserted,
was Janet’s contention that he failed to produce certain ledgers relating to his businesses. John
emphasized that he had attached as an exhibit to his motion to supervise discovery a letter from
his counsel confirming production of those ledgers. Notwithstanding John’s counsel’s letter,
Rosenfeld repeatedly declared at a February 10, 2016, hearing that John had not produced the
ledgers, even after John’s counsel cited the relevant Bates numbers. 5 John noted that, on
February 22, 2016, his counsel demonstrated to the court that he had previously produced those
ledgers to Janet’s counsel. For these reasons, John requested sanctions pursuant to Rule 137 and
section 508(b) of the Act.
¶ 104 In her response to John’s second motion for sanctions, Janet noted that on February 10,
2016, the court addressed multiple discovery motions and ultimately ordered John to tender some
additional documents. Janet acknowledged that she had erroneously asserted that John failed to
produce the ledgers, but she insisted that she had “no desire to waste the court’s time.” She
claimed that the problem was that her forensic team had not properly catalogued the discovery
5
Bates numbering is a method of indexing legal documents for easy identification and
retrieval.
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2018 IL App (2d) 160973that John tendered on November 2, 2015. Although she admitted that John’s counsel had sent
her counsel a letter asserting that the ledgers were produced previously, she noted that this letter
did not specify when they were produced.
¶ 105 The trial court entertained argument from the attorneys with respect to John’s two
motions for sanctions. Apparently addressing the first motion for sanctions, John’s counsel
suggested that a proper sanction would be $151,370. He indicated that such amount represented
“all the attorney’s fees and costs relating to the reply to the motion for summary judgment,
[Janet’s] emergency motion [to continue the summary-judgment hearing], *** the preparation
for the hearing, and the hearing, as well as a motion for sanctions. And the motion for sanctions
before the Court.” John’s counsel did not separately identify the attorney fees and costs at issue
in the second motion for sanctions.
¶ 106 The court ruled on the motions for sanctions in the judgment for dissolution of marriage.
The court indicated that, although it “did not agree with many of Janet’s positions” with respect
to John’s summary-judgment motion, and although “she did not present much evidence to
support her positions,” she had a right to investigate her claims. Nevertheless, the court
explained, John produced substantial discovery, and Janet had the assistance of several
accounting firms and law firms. Despite that “tremendous amount of support and advice,” Janet
proceeded to a hearing on her objections to John’s motion for summary judgment “without any
affidavit supporting her material factual allegations.” According to the court, that hearing was
unnecessary, and Janet “could not find one person to sign an affidavit to challenge John’s
creation of the irrevocable trusts or that they improperly diverted money from the marital estate.”
¶ 107 Moreover, the court recalled, on February 10, 2016, it had spent an entire afternoon
ascertaining which documents John had not produced. During that hearing, John’s counsel
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2018 IL App (2d) 160973insisted that he had produced some of the disputed items, even referencing the relevant Bates
numbers. Rosenfeld nevertheless claimed that the accountants who were reviewing the
discovery materials informed him that certain documents were missing. In the judgment for
dissolution of marriage, the court explained that it had informed Rosenfeld that such an
arrangement with the accountants would not “shield [Rosenfeld] from liability” if John’s counsel
could prove that he produced the documents. The court also noted that it had alerted Rosenfeld
that there could be a problem with his pleading, inasmuch as it had been asserted, under oath,
that certain documents had not been produced. The court noted that John ultimately
demonstrated that he had produced some of the documents that Rosenfeld claimed not to have.
¶ 108 Pursuant to all of these findings, the court entered sanctions against Rosenfeld, in the
form of a $50,000 judgment in favor of John, for Rosenfeld’s “unnecessary and unsupported
litigation that increased the costs of litigation.”
¶ 109 The trial court did not specify whether these sanctions were pursuant to Rule 137 or
section 508(b) of the Act. It appears that the court could have had both provisions in mind. For
example, the court’s finding that Janet’s arguments “were not legally supported” seems to invoke
Rule 137, as does the court’s comment that it warned Rosenfeld that there could “be a ‘problem’
with his pleading.” The court’s finding that the hearing on John’s motion for summary judgment
was “unnecessary” suggests that the court also contemplated sanctions pursuant to section 508(b)
of the Act. See 750 ILCS 5/508(b) (West 2016) (“If at any time a court finds that a hearing
under this Act was precipitated or conducted for any improper purpose, the court shall allocate
fees and costs of all parties for the hearing to the party or counsel found to have acted
improperly. Improper purposes include, but are not limited to, harassment, unnecessary delay, or
other acts needlessly increasing the cost of litigation.”).
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2018 IL App (2d) 160973¶ 110 Rosenfeld interprets the court’s order as a Rule 137 sanction. As there is a sufficient
basis in the record to affirm the judgment against Rosenfeld pursuant to Rule 137, we need not
address whether sanctions were also justified under section 508(b) of the Act.
¶ 111 Rule 137(a) provides, in relevant portion:
“The signature of an attorney or party constitutes a certificate by him that he has read the
pleading, motion or other document; that to the best of his knowledge, information, and
belief formed after reasonable inquiry it is well grounded in fact and is warranted by
existing law or a good-faith argument for the extension, modification, or reversal of
existing law, and that it is not interposed for any improper purpose, such as to harass or to
cause unnecessary delay or needless increase in the cost of litigation. *** If a pleading,
motion, or other document is signed in violation of this rule, the court, upon motion or
upon its own initiative, may impose upon the person who signed it, a represented party,
or both, an appropriate sanction, which may include an order to pay to the other party or
parties the amount of reasonable expenses incurred because of the filing of the pleading,
motion or other document, including a reasonable attorney fee.” Ill. S. Ct. R. 137(a) (eff.
Jan. 1, 2018).
In evaluating the conduct of an attorney in light of this rule, “the court must determine what was
reasonable at the time rather than engage in hindsight.” Fremarek v. John Hancock Mutual Life
Insurance Co., 272 Ill. App. 3d 1067, 1074 (1995). We will not reverse the trial court’s order
imposing or denying sanctions unless the court abused its discretion, which occurs “only where
no reasonable person would take the view adopted by it.” Fremarek, 272 Ill. App. 3d at 1074.
“When reviewing a decision on a motion for sanctions, the primary consideration is whether the
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2018 IL App (2d) 160973decision was informed, was based on valid reasoning, and follows logically from the facts.”
Deutsche Bank National Trust Co. v. Ivicic, 2015 IL App (2d) 140970, ¶ 25.
¶ 112 We hold that the trial court did not abuse its discretion in sanctioning Rosenfeld. Janet’s
memorandum opposing summary judgment was replete with serious allegations of misconduct
that were not supported by any evidence. For example, she asserted that “John’s estate planning
structure reads like a manual for manipulating the marital estate in contemplation of divorce
using standard and verified estate planning strategies.” According to Janet, “[c]ommencing in
2005 and through the filing of the divorce, [she] was the unwilling and unsuspecting victim of an
ongoing scheme at the hands of John.” Not only was there no evidence of any scheme, Janet did
not even contend that the marriage began its irretrievable breakdown until 2011. It defies
common sense for her to argue that John schemed against her six years before the parties’ marital
problems even supposedly began.
¶ 113 Additionally, although Janet acknowledged signing documents relating to the trusts, she
claimed that she did so only because of “John’s misrepresentations regarding their true nature.”
She provided no evidence of misrepresentations—just allegations that he generally would tell her
that the documents were “for the children,” that there was “nothing to worry about,” and that
they were “for taxes” or “just business.”
¶ 114 Moreover, Janet speculated that John would continue his scheme upon the entry of the
divorce:
“It is also worth noting that following the completion of the divorce proceedings, John,
who presumably moved assets with a substantial potential for appreciation and/or income
or dividend distribution out of the marital estate and into the Trusts for the sole purpose
of setting aside these assets during the pendency of the divorce proceedings, will, through
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2018 IL App (2d) 160973his unrestrained power to borrow money from the Trusts and his power to substitute
assets, undoubtedly seek to reverse the initial transactions so to pull those assets back out
of the Trusts for his own use.”
There was no basis in the record for this assertion. John clearly did not have an “unrestrained
power to borrow money” from the trusts, given that the trustees had to approve any loans in
accordance with their fiduciary obligations. With respect to John’s purported use of his power to
substitute assets, Janet acknowledged elsewhere in her memorandum that she was “unable to
ascertain the true extent of John’s substitutions of properties” without the benefit of further
discovery. In other words, she had no basis to allege that John would use his power of
substitution to further any alleged scheme after the dissolution of the marriage.
¶ 115 In her memorandum opposing summary judgment, Janet also questioned the
independence of some of the trustees, alleging, without any basis in the record, that “[t]hese
individuals are influenced to do what John wishes or directs them to do as a result of their
relationship.” Referring to one particular transaction, Janet even suggested that “it is likely that
John and Michael LaRocque may have conspired to commit income tax avoidance by
characterizing compensation as a tax free gift.”
¶ 116 Despite Janet’s accusations of grave improprieties with respect to the trusts, as the trial
court observed, “[s]he could not find one person to sign an affidavit to challenge John’s creation
of the irrevocable trusts or that they improperly diverted money from the marital estate.”
Rosenfeld signed the memorandum on Janet’s behalf, thus putting his professional imprimatur
on Janet’s arguments. As noted above, to disturb the sanctions imposed, we would have to
conclude that no reasonable person would adopt the trial court’s viewpoint. In light of this
highly deferential standard of review, we cannot say that the court abused its discretion in
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2018 IL App (2d) 160973sanctioning Rosenfeld in connection with Janet’s opposition to John’s motion for summary
judgment.
¶ 117 The same holds true with respect to Rosenfeld’s pleadings regarding discovery.
Rosenfeld inaccurately represented to the court, both orally and in writing, that John had not
produced certain materials in discovery. Rosenfeld did this despite having been informed by
opposing counsel, both in a letter and in open court, that the documents had been produced.
Rosenfeld discounts the whole situation as a mere mix-up due to Janet’s accountant’s failure to
inventory the materials. Be that as it may, instead of working with opposing counsel to resolve
the dispute in a professional manner, Rosenfeld doubled down on his claim that he had not
received the documents. This wasted the court’s time and opposing counsel’s time. It also
contributed to the toxic dynamic between the attorneys that continued throughout the trial. It is
clear from the record that the court sanctioned Rosenfeld not just for a mistake, but for the way
that he handled that mistake. We find no abuse of discretion.
¶ 118 At the very end of his brief, Rosenfeld complains about the amount of the sanctions,
$50,000. Specifically, he asserts, “[t]he court gave no grounds for this random figure, and
conducted no further hearing.” According to Rosenfeld, “[n]ormally upon entertaining or
granting a petition for fees as a sanction, a court will instruct a party to submit itemized billing
on the issue.” Noting that the court here failed to do so, he contends that the court’s “random
award of $50,000 is arbitrary at best,” is excessive, and amounts to an abuse of discretion.
¶ 119 We deem this argument forfeited. The only authority that Rosenfeld cites in this portion
of his brief is Kellett v. Roberts, 281 Ill. App. 3d 461 (1996), which he offers merely in support
of the applicable standard of review. That case says nothing about requiring trial courts to
instruct parties to submit itemized billing statements. Kellett did not even involve a challenge to
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2018 IL App (2d) 160973an allegedly excessive Rule 137 sanction, as the relevant issue on appeal was whether the trial
court had properly denied a motion for Rule 137 sanctions. Kellett, 281 Ill. App. 3d at 464.
Kellett’s principal holding with respect to the issue of Rule 137 sanctions is also questionable
law in light of Lake Environmental, Inc. v. Arnold, 2015 IL 118110, ¶ 14, which clarified that a
trial court is not required to offer any explanation if it decides to deny a motion for Rule 137
sanctions. Rosenfeld has failed to provide relevant authority supporting his contention that the
amount of the judgment against him was arbitrary or excessive. The argument is forfeited.
¶ 120 III. CONCLUSION
¶ 121 For the foregoing reasons, we affirm the judgment of the circuit court of Du Page
County.
¶ 122 Affirmed.
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