                             2017 IL App (2d) 160737
                                  No. 2-16-0737
                            Opinion filed June 27, 2017
______________________________________________________________________________

                                             IN THE

                              APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

In re MARRIAGE OF                      ) Appeal from the Circuit Court
LEONARD A. RUVOLA,                     ) of Du Page County.
                                       )
      Petitioner-Appellant,            )
                                       )
and                                    ) No. 14-D-943
                                       )
MICHELLE RUVOLA,                       ) Honorable
                                       ) Timothy J. McJoynt,
      Respondent-Appellee.             ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE BIRKETT delivered the judgment of the court, with opinion.
       Justices Hutchinson and Zenoff concurred in the judgment and opinion.

                                            OPINION

¶1     Petitioner, Leonard A. Ruvola, raises various challenges to the trial court’s judgment

dissolving his marriage to respondent, Michelle Ruvola. For the following reasons, we affirm in

part, vacate in part, and remand for further proceedings.

¶2                                     I. BACKGROUND

¶3     We begin with a brief overview of the proceedings below.        We provide additional

background as we discuss each issue on appeal.

¶4     The parties were married in 1989. Their two children were adults when petitioner filed

for divorce in March 2014. Having had sporadic employment since 1998, petitioner requested

permanent maintenance from respondent. As was brought out at trial, petitioner attempted
2017 IL App (2d) 160737


suicide in 2009 and later underwent psychiatric treatment. In July 2015, the parties stipulated,

for purposes of trial, that petitioner “is not disabled” and “is not unemployable but is capable of

employment.” On September 22, 2015, the trial court entered an order stating:

       “[Petitioner] shall seek full time employment. He shall apply for 7 jobs per week.*

       Petitioner shall tender copies of his applications, any responses, and a copy of the job

       search diary on a weekly basis, commencing on October 9, 2015 and continuing on a

       weekly basis. *At least 2 applications shall be in person.”

¶5     In October 2015, respondent filed a petition for a rule to show cause and for an

adjudication of indirect civil contempt.        Respondent alleged that petitioner violated the

September 2015 job-search order by failing to submit documents related to his job search.

Respondent also alleged that petitioner was still unemployed. The trial court continued the

contempt petition until the trial on the dissolution petition.

¶6     The trial court held a trial in December 2015. In its March 2016 judgment of dissolution,

the court awarded petitioner permanent maintenance. The court found that respondent’s yearly

income was $125,000. Applying the statutory formula to respondent’s income (see 750 ILCS

5/504(b-1) (West 2014)), the court reached a provisional maintenance amount of $3,125 per

month. The court then deviated downward from this figure on three bases. First, the court

imputed income to petitioner in the amount of $25,000 per year, because of his “lack of effort

*** in obtaining employment and his voluntary underemployment.”           Second, the court cited

petitioner’s “ability to meet his own expenses since [the parties’] separation.” Third, the court

“consider[ed] the property to be awarded to the Petitioner.” These adjustments reduced the

maintenance award to $2,400 per month.




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¶7     Addressing respondent’s contempt petition, the trial court both issued a rule to show

cause and adjudicated petitioner in indirect civil contempt of court for his “failure to comply

with the [September 2015] job search order.” The court set purge conditions and awarded

respondent $2,000 in attorney fees connected with her contempt petition.

¶8     Petitioner filed a motion to reconsider, which the trial court denied. He then filed this

timely appeal.

¶9                                      II. ANALYSIS

¶ 10                                    A. Maintenance

¶ 11                                1. Respondent’s Income

¶ 12   Petitioner contends that the trial court failed to consider all sources of respondent’s

income in calculating maintenance. We agree.

¶ 13   We note first that the trial court was correct to apply the amendments to the Illinois

Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/101 et seq. (West 2016)) that

became effective on January 1, 2016. See Pub. Act 99-90 (eff. Jan. 1, 2016) (amending 750

ILCS 5/101 et seq.). The amendments became effective after the closing of proofs in this case

but before the judgment was rendered. See 750 ILCS 5/801(b) (West 2016) (“This Act applies

to all pending actions and proceedings commenced prior to its effective date with respect to

issues on which a judgment has not been entered.”).

¶ 14   At trial, respondent testified that she has been employed with The Standard Companies

(Standard) since 1984. She is “unofficially” vice-president of the company. The company is

owned by her mother, and her father is chief executive officer and chairman. Respondent

testified that her current salary at Standard is $121,200 per year, which is paid to her in two

checks per month of $5,050 each. Respondent also receives a weekly check from Standard for



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2017 IL App (2d) 160737


$255. These disbursements are reflected in internal documentation from Standard that was

introduced into evidence. According to respondent, the $255 weekly checks, which amount to

$13,260 per year, are not salary but are “gifts” from her father. Respondent testified that her

father gave her regular monetary gifts prior to her employment with Standard and that her

siblings also currently receive regular monetary gifts from him. Respondent testified that her

yearly base income, combining both the salary and the gift checks, is $134,460. Respondent

noted that Standard also pays her discretionary bonuses. In 2014, she received a $2,000 bonus.

¶ 15   The record contains the parties’ filed tax returns for 2010 through 2013 and their unfiled

tax return for 2014. Also in the record are respondent’s W-2 forms from Standard for 2012

through 2014. These W-2 forms show “Medicare wages” to respondent of $128,254.74 in 2014,

$128,203.64 in 2013, and $127,640.43 in 2012. The record contains no W-2 forms for 2010 and

2011, but the tax returns for those years report “wages, salaries, tips etc.” of $119,424 in 2010

and $123,260 in 2011. Asked about the discrepancy between the $134,460 that she receives

yearly from Standard and the amounts shown on her W-2 forms and tax returns, respondent

acknowledged that her $255 gift checks are “maybe” not reported as income.

¶ 16   Respondent testified that Standard provides her with various fringe benefits, such as a

car, a cell phone, a home fax line, and home Internet service.

¶ 17   The trial court, addressing petitioner’s maintenance request, recalled respondent as

testifying that her “income is $121,000.00 per year gross which includes an additional ‘stipend’

of $255.00 per week.” The court observed that the tax documents at trial showed that respondent

“has been paid a base salary of $125,000.00 per year for tax years 2010, 2011, and 2012” and

that her income for 2014 was $128,000. The court noted that it was considering the various

fringe benefits respondent received from Standard as “direct or indirect income” in computing



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2017 IL App (2d) 160737


her yearly gross income for maintenance purposes. The court ultimately found that respondent’s

gross income per year is $125,000. Using the guidelines provided in section 504(b-1)(1) of the

Act (750 ILCS 5/504(b-1)(1) (West 2016)), the trial court computed a provisional amount of

maintenance, from which it then deviated downward.

¶ 18   We agree with petitioner that the trial court erred by failing to include, in its

determination of respondent’s yearly gross income, the weekly gift checks that she receives from

her father. “Gross income” for purposes of a guideline award of maintenance “means all income

from all sources, within the scope of that phrase in Section 505 of [the] Act [(750 ILCS 5/505

(West 2016))].” 750 ILCS 5/504(b-3) (West 2016). Section 505 of the Act (750 ILCS 5/505

(West 2016)) governs awards of child support.        Section 505(a)(3) of the Act (750 ILCS

5/505(a)(3) (West 2016)) defines “ ‘[n]et income’ *** as the total of all income from all sources,

minus [specified] deductions[.]” Whether an item constitutes income for purposes of child

support is a question of law, which we review de novo. In re Marriage of Shores, 2014 IL App

(2d) 130151, ¶ 24.    By extension, the de novo standard also applies to whether an item

constitutes income for purposes of maintenance.

¶ 19   Fortunately, there is clear authority on whether gifts received by the payor spouse

constitute income for purposes of child support. In In re Marriage of Rogers, 213 Ill. 2d 129,

137 (2004), the supreme court held that the annual gifts that the payor spouse received from his

father constituted “income” under section 505(a)(3).       In compliance with the legislature’s

directive in section 504(b-3), we hold that gifts received by the payor spouse also constitute

income for purposes of maintenance.

¶ 20   In this case, the trial court appeared to believe that the yearly base amount that

respondent claimed to receive from Standard is only $121,000 and that this amount includes the



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2017 IL App (2d) 160737


weekly gift checks. In fact, respondent testified that she receives the gift checks in addition to

her base salary of $121,200 per year. The figure that the trial court found, $125,000, was

perhaps a compromise between the yearly base amount as the trial court (mis)understood it and

the income shown on the tax documents, which ranged to as high as $128,000 for 2014.

However, by any estimate of respondent’s salary from Standard, the $125,000 figure was too low

as a total of respondent’s income, given her testimony that she receives $13,260 in gifts each

year from her father. Accordingly, we conclude that the trial court failed to include these gifts in

its determination of respondent’s income.

¶ 21   We note that petitioner assigns further error to the trial court with respect to a fringe

benefit that respondent regularly receives from Standard. Petitioner asserts that respondent “paid

herself $300 a month out of her joint checking account which was the amount of phone [and]

Internet bill which is already covered by [Standard].” Petitioner asks that we therefore attribute

$300 of additional monthly income to respondent. Petitioner is referring to the monthly amount

(actually $350, not $300) that respondent provides herself as a personal allowance. We are not

sure what relevance the allowance has to whether the trial court failed to consider as income to

respondent the “phone [and] Internet” service covered by Standard. In any event, the court said

that it was considering fringe benefits to respondent in determining her income. Petitioner has

not established that the court did not consider those benefits. In particular, he fails to justify his

figure of $300. Respondent never testified to any correlation between her monthly allowance

and the cost of the “phone [and] Internet” service (we wonder why there would be such a

correlation). Petitioner cites no other figure in the record to support his claim that the court

should have included an additional $300 as income to respondent. Accordingly, we reject his




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2017 IL App (2d) 160737


claim that the court failed to consider Standard’s payment for “phone [and] Internet” service as

income to respondent.

¶ 22   For the foregoing reasons, we vacate the trial court’s finding as to respondent’s income.

We remand for the court to recalculate maintenance after including as income to respondent the

weekly gift checks from her father.

¶ 23                          2. Imputation of Income to Petitioner

¶ 24   Petitioner also claims that the trial court wrongly imputed income to him. We disagree.

¶ 25   Petitioner testified that he graduated from college in 1981 with a degree in chemistry.

That same year, he began full-time employment with Ezem in New York. He started at Ezem as

an analytical chemist but was promoted to other positions, including research assistant, assistant

to the vice-president, and production supervisor. In 1986, he left Ezem for a better opportunity

with Hallcrest in Illinois. He began in the lab at Hallcrest but was promoted to lab manager,

production manager, and, finally, vice-president of operations. When he left Hallcrest in 1998,

his annual salary was $125,000. Petitioner explained that he left Hallcrest in order to start his

own business. Respondent did not agree with his decision to leave. After about a year of

unsuccessfully looking for a business to start or purchase, petitioner began looking for work. He

applied for “higher level” or “substantive” positions, such as vice-president of operations or plant

manager. He was a finalist for six such positions but was not hired. He was told at these

interviews that he had good qualities. Petitioner believed that these positions were offered to

applicants who had experience that petitioner lacked. Petitioner also applied for mid-level

positions but not for entry-level positions. After this unsuccessful job search, petitioner obtained

work in 2000 as a tennis instructor for the Glenview park district. The number of hours he

worked varied greatly, from 12 to 45 per week. He continued “on and off” in this position until



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2017 IL App (2d) 160737


2009. W-2 forms from the Glenview park district for 2001, 2002, 2003, 2006, 2008, and 2009

show earnings ranging from $225 to $9,000 per year.

¶ 26    According to petitioner, his first full-time position after Hallcrest was as an insurance

agent for State Farm. He worked at State Farm for several months in 2004 and earned $29,000.

He left voluntarily because State Farm’s commission structure became less favorable for agents.

¶ 27    Petitioner testified that, in December 2009, he was severely depressed and attempted

suicide by ingesting pills. Respondent objected to this testimony on the ground that it violated

the terms of the July 2015 stipulation that petitioner is not disabled and is able to work. The trial

court overruled the objection.

¶ 28    After his suicide attempt, petitioner spent several days in a psychiatric ward. Upon his

discharge, he underwent a 30-day outpatient program and was placed on medication. Following

that program, he had weekly appointments with a psychologist and monthly appointments with a

psychiatrist.

¶ 29     Petitioner testified that he did not work in 2010, because he was still recovering from

the 2009 incident. Petitioner believed that he did not work in 2011 either. Petitioner did not

explain why. In 2012, he was employed at the Oak Brook park district. He worked initially in

the fitness center, cleaning equipment and towels.        Eventually, he was promoted to tennis

instructor. His earnings at the park district were $19,000 in 2012 and $14,000 in 2013. He left

the park district at the end of 2013, following the unsatisfactory resolution of his complaint to

human resources that his immediate supervisor was treating subordinates unfairly.

¶ 30    Petitioner’s resume was introduced into evidence. He was asked about an entry that

stated, “Part Time Associate—GolfTec—12/13-12/14,” and listed “Kevin DeBesten” as a




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2017 IL App (2d) 160737


reference. Petitioner explained that he answered phones at GolfTec as a favor to DeBesten but

never was actually employed there or received payment.

¶ 31   Petitioner stated that, in November 2014, he underwent a 30-day outpatient program for

anxiety and depression. Respondent corroborated this in her testimony. She explained that, after

noting some alarming behavior in petitioner, she notified his psychiatrist, which led to

petitioner’s placement in the treatment program. Petitioner testified that he neither worked nor

looked for work in 2014, even before his treatment. He did not explain why.

¶ 32   Petitioner testified that, in December 2014, he traveled to Florida. Over the next few

months, petitioner traveled about, staying with family and friends in several locations. For the

first few months of 2015, he did look for work, because “[i]t’s difficult living out of a car.”

Petitioner became a permanent Florida resident in June 2015 when he moved to Jupiter. He

currently lives in Jupiter with his cousin’s son.

¶ 33   Petitioner acknowledged that his resume states that he was a part-time sales associate at

two State Farm agencies from January 2015 to the present. Petitioner noted that the references

listed for the State Farm jobs are family members. Petitioner denied that he was employed by,

worked for, or received payment from State Farm in 2015.

¶ 34   Petitioner’s job-search diary was introduced into evidence.          The diary chronicles

petitioner’s employment search since he moved to Jupiter. The first part of the diary describes

petitioner’s contacts with friends and family and his pursuit of potential job leads. The only lead

actually described, however, is a position at a fitness club greeting guests, handing out towels,

and cleaning equipment. Petitioner notes no success in pursuing any leads. The second part of

the diary describes petitioner’s canvass of a strip mall in September 2015. Petitioner writes that

he went from store to store, handing out his business card (eventually he was hired by Sal’s



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2017 IL App (2d) 160737


Pizzeria, as we describe below). Petitioner also documents separate job inquiries he made to a

Harley Davidson dealer and the Jupiter police department. A copy of petitioner’s business card

was introduced into evidence. The card describes him as a “Recently Relocated Semi-Retiree”

seeking a position in “Live Customer Service.” Petitioner believed that “somebody might” be

interested in hiring him even though he described himself as semi-retired.

¶ 35   The third part of the job-search diary describes petitioner’s hiring by Sal’s Pizzeria in

Jupiter. Petitioner testified that he frequented Sal’s after he moved to Jupiter in June 2015. That

same month, he inquired if Sal’s had any job openings (later in his testimony, however,

petitioner stated that he did not inquire of Sal’s until September 2015). Sal’s said they would

have no need for him until November 2015. Petitioner remained unemployed until, on October

14, 2015, he worked his first kitchen shift at Sal’s. He was complimented on his work, but,

when Sal’s contacted him a few days later, they offered him a delivery position instead. He

turned down the offer because he was new to the area and had an SUV, which would “guzzle”

the gas. Two weeks later, Sal’s offered him kitchen work. Petitioner subsequently worked

several shifts at Sal’s but had to miss several other shifts because of this proceeding. Petitioner’s

work at Sal’s involves “chopping stuff and making salads” and “not any real cooking.” His

wage is $8.25 per hour, but because of a mix-up he has yet to receive payment. He believes that

a check is waiting for him in Florida. Sal’s has opportunities for full-time work, but because

petitioner has not worked there for two months, he doubts that he is still employed.

¶ 36   Petitioner was asked about his compliance with the September 2015 order directing him

to seek full-time employment and tender copies of job applications that he has submitted to

employers. Petitioner admitted that he has not tendered copies of job applications as ordered.

He did “online searches” for jobs but produced no documentation of them. Petitioner admitted



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2017 IL App (2d) 160737


that the inquiries to Harley Davidson and the Jupiter police department were the only job

inquiries he made since the September 2015 order.

¶ 37   Petitioner testified that he currently takes medication for anxiety and depression and

attends regular therapy sessions. However, he considers himself capable of work and intends to

seek a job when he returns to Florida. Petitioner claimed that he would be a “very hard sell” for

a position in the chemistry field, given his age (56) and the passage of time since his employment

at Hallcrest (he left in 1998), which was his most recent job in the field. He admitted that he has

not sought another job in the chemistry field since leaving Hallcrest. He has also not sought to

renew his insurance license, which he let expire after leaving State Farm in 2004. Petitioner

testified that his ideal job would be to “work in Orlando for one of the parks.”

¶ 38   The trial court found that petitioner displayed a “lack of effort *** in obtaining

employment” and is “voluntar[ily] underemployed.” The court noted that “much of [petitioner’s

job-search diary] appears to be attempts to obtain part time work in the food industry—with no

connection to the Petitioner’s experience or education.”           Referencing petitioner’s self-

designation on his business card as semi-retired, the court asked, “What employer would want to

hire such an applicant for full time gainful employment under those conditions?”        The court

noted that, despite petitioner’s attempted suicide and subsequent psychiatric treatment, he

“appears to be healthy and able to sustain employment.” The court imputed to petitioner yearly

income of $25,000.

¶ 39   Section 504(b-2)(2) of the Act (750 ILCS 5/504(b-2)(2) (West 2016)) authorizes the trial

court to deviate from the guideline amount of maintenance. One of the factors relevant to a

deviation is the respective earning capacities of the parties. 750 ILCS 5/504(a)(3) (West 2016).

“In order to impute income to a party, the court must find that the party is voluntarily



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2017 IL App (2d) 160737


unemployed, is attempting to evade a support obligation, or has unreasonably failed to take

advantage of an employment opportunity.” In re parentage of M.M., 2015 IL App (2d) 140772,

¶ 44.     Imputation is appropriate in cases of voluntary unemployment or voluntary

underemployment. See In re Marriage of Blume, 2016 IL App (3d) 140276, ¶¶ 29-31 (where

husband voluntarily quit farming, by which he had in recent years supplemented his income as a

farmhand, it was appropriate to impute farming income to him for purposes of maintenance).

The trial court’s decision whether to impute income is reviewed for an abuse of discretion. Id. ¶

30. A court abuses its discretion only where no reasonable person would take the view adopted

by the court. In re Marriage of O’Brien, 2011 IL 109039, ¶ 52.

¶ 40    Petitioner claims that his efforts at seeking employment were sincere and that his failure

to find employment more lucrative than his most recent work in a pizzeria is attributable to

“numerous barriers” he faces in finding work. The trial court disagreed, and the evidence

supports its determination.

¶ 41    The trial court supported its finding of voluntary underemployment by noting, with

criticism, that petitioner’s recent employment search (chronicled in his job-search diary) did not

reflect a pursuit of any opportunity within petitioner’s field of training, chemistry. In fact,

petitioner admitted that he has not looked for a position within that field since leaving Hallcrest

in 1998. Despite this evidence, the income that the trial court imputed to petitioner ($25,000

yearly) was obviously more in line with his recent earnings as a tennis instructor ($19,000 in

2012) than with his earnings at Hallcrest ($125,000 at their highest). The trial court did not

explain why; the most plausible explanation is that the court felt that it lacked up-to-date salary

information for positions within the chemistry field.      Notably, there would have been no

inconsistency between the court’s finding that petitioner is voluntarily unemployed in the field of



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chemistry and its imputation of income commensurate with petitioner’s recent positions outside

the field because the court lacked reliable salary data for the field.

¶ 42   The court was indeed justified in finding that petitioner is voluntarily underemployed,

because of his failure to seek a position within his field of training. The court so found despite

petitioner’s claim that he lacks marketability for positions in chemistry because he is 56 years

old and is many years removed from the field. Petitioner produced no support for this claim—

not even failed attempts to find a job within the field, as by his own admission he made no such

attempt since leaving Hallcrest in 1998.

¶ 43   The trial court, however, evidently believing that even employment outside petitioner’s

field of training is preferable to no work at all, also criticized petitioner’s attempts to find work

outside that field. The court specifically commented that petitioner’s business card describing

him as semi-retired undermined his job prospects. We agree that the designation is not helpful,

however it is construed. Was petitioner semi-retired from his career job and available only on a

limited basis for other employment, or was he semi-retired from work altogether and thus

available only on a limited basis?       In either case, prospective employers would likely see

petitioner as not available for full-time work.

¶ 44   Petitioner’s lack of earnestness was also displayed in the scope of his job search.

Petitioner maintained his job-search diary since June 2015, but it shows only his pursuit of a

handful of job leads from family and friends, his cold-call canvassing of a strip mall in

September 2015, and two subsequent cold calls to Harley Davidson and the Jupiter police

department. Petitioner also claimed to have made online job searches, but he submitted no

documentation of them. Petitioner admitted that the cold calls to Harley Davidson and the police

department were his only job inquiries following the September 2015 job-search order. The



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sparseness of petitioner’s efforts was remarkable, given that he was under court order to

persistently seek full-time employment. Also significant are prior periods of unemployment (for

instance, 2011 and most of 2014) for which petitioner offered no explanation.

¶ 45   Petitioner now claims, however, that his mental-health issues have impaired his

employment search since his 2009 suicide attempt. He also submits that he can make this claim

of impairment without contradicting the parties’ trial stipulation that he “is not disabled” and “is

not unemployable but is capable of employment.” Petitioner says:

       “The evidence shows that [petitioner] was suffering from depression and anxiety, had

       attempted suicide following which he was treated inpatient and then outpatient under the

       care of a psychiatrist and a therapist.          *** [T]he trial court overemphasized [the

       stipulation] in its findings. The fact that [petitioner] is not disabled because of his

       psychiatric issues does not necessarily mean that they are not contributory to his failure

       to find employment. *** [A]lthough not disabled, he still suffers from conditions that

       affect his social skills and interactions while seeking employment.”          (Emphases in

       original.)

Petitioner presses the distinction in vain, because he offered simply no evidence that his

conditions have had a negative impact on his job search. In his testimony, petitioner described

his job-search efforts, claimed that he was still capable of employment, and affirmed that he

intends to look for work when he returns to Florida. He never intimated that his mental health

adversely affects his ability to search for employment.

¶ 46   Given the evidence that petitioner is voluntarily unemployed or underemployed, the trial

court did not abuse its discretion in imputing income to him. We note that petitioner does not

dispute the actual amount of income imputed.



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¶ 47                           B. Finding of Indirect Civil Contempt

¶ 48   Petitioner challenges the finding of indirect civil contempt for his failure to comply with

the September 2015 job-search order. The finding was entered as part of the trial court’s March

2015 dissolution judgment. Respondent claims that we have no jurisdiction over the contempt

finding, because petitioner did not specify it in his notice of appeal. We agree that we lack

jurisdiction to review that finding.

¶ 49   The notice of appeal states:

               “Petitioner-Appellant *** appeals to the Appellate Court of Illinois, Second

       District, the following order entered in this matter in the Circuit Court of Du Page

       County:

               The order of August 8, 2016, which denied his Motion to Reconsider the

       Judgment of Dissolution of Marriage in the above-captioned case and the entry of said

       judgment.

               By this appeal, Petitioner-Appellant will ask the Appellate Court to reverse the

       order of August 8, 2016 and Judgment thereon and to enter Judgment on appeal in his

       favor awarding him maintenance in the amount of $40,000 per year, reversing the finding

       and award of dissipation against him, and awarding him one half of the marital estate

       reflecting his contributions thereto.”

¶ 50   Illinois Supreme Court Rule 303(b)(2) (eff. Jan. 1, 2015) provides that a notice of appeal

“shall specify the judgment or part thereof and other orders appealed from and the relief sought

from the reviewing court.” “The filing of a notice of appeal is the jurisdictional step which

initiates appellate review.” (Internal quotation marks omitted.) People v. Smith, 228 Ill. 2d 95,

104 (2008). The supreme court in Burtell v. First Charter Service Corp., 76 Ill. 2d 427, 434-35



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(1979), provided the following guidelines for construing the jurisdictional reach of a notice of

appeal:

          “When an appeal is taken from a specified judgment only, or from a part of a specified

          judgment, the court of review acquires no jurisdiction to review other judgments or parts

          thereof not so specified or not fairly to be inferred from the notice as intended to be

          presented for review on the appeal. If from the notice of appeal itself and the subsequent

          proceedings it appears that the appeal was intended, and the appellant and the appellee so

          understood, to have been taken from an unspecified judgment or part thereof, the notice

          of appeal may be construed as bringing up for review the unspecified part of the order or

          judgment. Such a construction would be appropriate where the specified order directly

          relates back to the judgment or order sought to be reviewed. *** [T]he unspecified

          judgment is reviewable if it is a step in the procedural progression leading to the

          judgment specified in the notice of appeal. [Citation.]”         (Internal quotation marks

          omitted.)

The court admonished against a hypertechnical construction of a notice of appeal:

          “[A] notice of appeal is to be liberally construed. The notice of appeal serves the purpose

          of informing the prevailing party in the trial court that the unsuccessful litigant seeks a

          review by a higher court. Briefs, and not the notice of appeal itself, specify the precise

          points to be relied upon for reversal. *** [A] notice of appeal will confer jurisdiction on

          an appellate court if the notice, when considered as a whole, fairly and adequately sets

          out the judgment complained of and the relief sought so that the successful party is

          advised of the nature of the appeal. [Citations.] Unless the appellee is prejudiced

          thereby, the absence of strict technical compliance with the form of the notice is not fatal,



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       and where the deficiency in the notice is one of form only, and not of substance, the

       appellate court is not deprived of jurisdiction. [Citations.]” Id. at 433-34.

¶ 51   Typically, the designation of a judgment resolving a motion to reconsider is held to

confer jurisdiction also of the judgment of which reconsideration was sought. The rationale is

that the original judgment is in the procedural progression leading to the judgment resolving the

motion to reconsider. See Schmidt v. Joseph, 315 Ill. App. 3d 77, 80 (2000); Heller Financial,

Inc. v. Johns-Byrne Co., 264 Ill. App. 3d 681, 689 (1994).              Accordingly, the basis of

respondent’s challenge is not that petitioner identified the August 8, 2016, order denying his

motion to reconsider without also identifying the underlying dissolution judgment.

¶ 52   The defect that respondent alleges, rather, is that the notice of appeal challenges certain

aspects of the dissolution judgment without mentioning the contempt finding. Specifically, the

notice seeks reversal of the dissipation finding against petitioner and modification of both the

maintenance award and the distribution of marital property. It cannot be “fairly *** inferred”

(Burtell, 76 Ill. 2d at 434) from the notice of appeal that petitioner also intended to challenge the

contempt finding, which was independent of the rulings on dissipation, maintenance, and

property distribution. The contempt finding was governed by different legal standards, and

though the imputation aspect of the maintenance ruling had some factual commonality with the

contempt finding, the latter was based on the narrower issue of whether petitioner complied with

the court’s September 2015 job-search order. See Calumet School District No. 132 v. Illinois

Workers’ Compensation Comm’n, 2016 IL App (1st) 153034WC, ¶¶ 40-43 (where notice of

appeal specified only one aspect of the Commission’s judgment, namely its determination on

scope of employment, jurisdiction did not extend to wage determination made in that same

judgment).



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¶ 53   Nor can we deem the defect as one of form alone. The notice expresses an intent to focus

on certain substantive issues governed by the Act and raised in the dissolution petition and

related filings; to read the notice as extending to a collateral issue in the action would be not to

overlook a technical failing, but to substantively rewrite the notice.

¶ 54   Petitioner observes that respondent has not claimed that she was prejudiced by his failure

to specify the contempt finding. Prejudice becomes arguable, however, only where the defect at

issue is one of form alone. “[A] failure to comply strictly with the form of notice is not fatal if

the deficiency is one of form rather than substance and the appellee is not prejudiced.”

(Emphasis added.) People v. Patrick, 2011 IL 111666, ¶ 27; see Burtell, 76 Ill. 2d at 436

(distinguishing the “jurisdictional question” from the question whether the appellee was “misled

or confused by the notice of appeal”). Since the defect at issue here was one of substance,

prejudice is essentially presumed.

¶ 55   For these reasons, we hold that we lack jurisdiction to review the part of the dissolution

judgment finding petitioner in indirect civil contempt of court.

¶ 56                    C. Property Classification/Division and Dissipation

¶ 57   Petitioner’s final contention on appeal is that the trial court should have classified a trust

account held in his name as his nonmarital property. The parties testified that, during the

marriage, petitioner received substantial funds from the sale of Hallcrest stock. Subsequently,

the parties established a family trust. For tax purposes, they opened two trust accounts. One

account was held in petitioner’s name and the other in respondent’s name (for convenience, we

refer to the accounts as “his account” and “her account,” without implying how they should be

classified). Neither had access to the other’s account. They divided the funds from the stock

sale between the two accounts. Later, when petitioner received an inheritance from his mother,



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he deposited the funds into his account. The parties used funds from both accounts to purchase

and improve the marital residence. The trial court classified both accounts as marital property.

The court awarded respondent her entire account but divided petitioner’s account between the

parties. The court also found that petitioner dissipated funds from his account.

¶ 58   Petitioner asserts that his trust account was his nonmarital property and that,

consequently, the division of his account and the finding of dissipation were erroneous.

Specifically, petitioner claims that the parties’ agreement that each would have exclusive control

over his or her own account was tantamount to an exchange of gifts. See 750 ILCS 5/503(a)(1)

(West 2016) (nonmarital property includes property acquired as a gift).

¶ 59   We agree with respondent that petitioner forfeited his claim that his trust account is his

nonmarital property. Prior to trial, the parties submitted a written “Trial Stipulation.” The

stipulation began by listing several items that the “parties own.” The list included the two trust

accounts. None of the property in the list was designated marital property as such, but there was

a separate section in the stipulation for “Non-Marital” property, which listed only two items as

respondent’s: an individual retirement account and a whole life policy.

¶ 60   Petitioner’s written closing argument was consistent with the stipulation. He addressed

the trust accounts, noting his contributions to both accounts and the subsequent use of account

funds to purchase and improve the marital home.           He contended that, in light of these

contributions, he should receive more than 50% of the marital estate. Petitioner did not claim

that the trust accounts were the parties’ gifts to each other. Petitioner attached to his closing

argument a “Summary of Stipulated Facts.” In the list of assets, only two—the same two in the

stipulation—were designated his nonmarital property. Following the list was a proposed asset

division in which each party was assigned his or her own trust account.



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¶ 61   Expressly relying on the stipulation, the trial court included the trust accounts in the

marital estate. In his motion to reconsider, petitioner argued, for the first time, that his trust

account was a gift from respondent. The trial court refused to consider the merits of the

contention, because petitioner was attempting to “change [his] theory of the case postjudgment.”

¶ 62   The trial court properly refused to consider petitioner’s contention, as a litigant may not

raise a legal theory for the first time in a motion to reconsider. See Barth v. Kantowski, 409 Ill.

App. 3d 420, 426 (2011). We also will not consider the contention. See Evanston Insurance.

Co. v. Riseborough, 2014 IL 114271, ¶ 36 (“Arguments raised for the first time in a motion for

reconsideration in the circuit court are forfeited on appeal.”).      Accordingly, we affirm the

classification of petitioner’s trust account, the division of its funds between the parties, and the

finding of dissipation.

¶ 63                                   III. CONCLUSION

¶ 64   For the foregoing reasons, we affirm in part and vacate in part the judgment of the circuit

court of Du Page County, and we remand this cause for further proceedings consistent with this

opinion.

¶ 65   Affirmed in part and vacated in part.

¶ 66   Cause remanded.




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