                                       2015 IL App (1st) 142435
                                             No. 1-14-2435
                                                                                      Fifth Division
                                                                                  December 31, 2015


     ______________________________________________________________________________

                                         IN THE
                             APPELLATE COURT OF ILLINOIS
                                     FIRST DISTRICT
     ______________________________________________________________________________

     In re MARRIAGE OF                              )
                                                    )   Appeal from the Circuit Court
     KIMBERLY K. ENDERS,                            )   of Cook County.
                                                    )
           Petitioner-Appellee,                     )   No. 12 D 8020
                                                    )
     and                                            )   The Honorable
                                                    )   Renee M. Goldfarb,
     MICHAEL A. BAKER,                              )   Judge Presiding.
                                                    )
           Respondent-Appellant.                    )
     ______________________________________________________________________________

                JUSTICE GORDON delivered the judgment of the court, with opinion.
                Presiding Justice Reyes and Justice Palmer concurred in the judgment and opinion.


                                               OPINION

¶1         This appeal arises from the dissolution of the marriage of Kimberly K. Enders

        (Kimberly), a lawyer, and Michael A. Baker (Michael), a CPA. Michael appeals the trial

        court’s division of property based on the parties’ premarital agreement. He argues that the

        trial court erred in ruling: (1) that there was a right of reimbursement to Kim for marital

        funds that were paid into the two defined benefit pension plans of Michael; (2) that Michael’s

        2002 contribution to his 401(k) plan was partially made after the marriage and that Kimberly
     No. 1-14-2435


        had a right to reimbursement for the marital contribution portion of the 401(k) plan; (3) that a

        note payable was nonmarital property; (4) that a bank account for Michael’s son should

        remain in Kimberly’s custody; (5) that payments made by Kimberly to her children, from a

        previous marriage, and on her mortgage were permissible under the parties’ premarital

        agreement; and (6) that he would have no visitation rights to the two dogs that were jointly

        owned by the parties. We affirm.

¶2                                          BACKGROUND

¶3                                 I. Petition for Dissolution of Marriage

¶4         On August 21, 2012, Kimberly filed a petition for a dissolution of her marriage, pursuant

        to section 403 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS

        5/403 (West 2012)), alleging irreconcilable differences caused the irretrievable breakdown of

        her marriage.

¶5         The petition alleged that Kimberly and Michael were married on September 14, 2002,

        and that marriage was registered in the State of Illinois. No children were born or adopted as

        a result of the marriage. Kimberly sought to: (1) dissolve their marriage; (2) be awarded a

        just proportion of the marital property; (3) be assigned all her nonmarital property; and (4)

        enforce the parties’ premarital agreement, executed on September 10, 2002, requiring a

        waiver of maintenance and the right to seek attorney fees from each other.

¶6                                  II. Procedural History of Motions

¶7                        A. Custody and Visitation of the Parties’ Two Dogs

¶8         On February 28, 2013, Michael filed a motion seeking visitation to the two dogs the

        parties acquired during their marriage. 750 ILCS 5/501 (West 2012).




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       No. 1-14-2435


¶9            The motion alleged that during the marriage, the parties acquired two dogs, Grace and

          Roxy. At the time of their separation from each other, it was contemplated by the parties that

          they would have joint custody of the dogs. However, Michael alleges that Kimberly refused

          to allow him visitation with the dogs since December 2012.

¶ 10          On April 15, 2013, the court granted Michael temporary visitation rights to the dogs on

          alternative weekends, from 10 a.m. Saturday until 8 p.m. Sunday.

¶ 11                            B. Verified Petition for Declaratory Judgment

¶ 12          On August 26, 2013, Kimberly filed a verified petition for declaratory judgment in this

          action with leave of court. 735 ILCS 5/2-701 (West 2012). In a separate count, Kimberly

          sought a declaration, that the contractual terms and conditions of a premarital agreement,

          executed on September 10, 2002, were enforceable and should be incorporated into a

          judgment for dissolution of marriage.

¶ 13          Kimberly filed a memorandum of law in support of her petition. The memorandum

          alleged that at the time of her marriage to Michael, Kimberly was an equity partner at

          Spitzer, Addis, Susman & Krull, a law firm, and a shareholder of a genealogy firm known as

          Henry R. Ferris and Company. However, shortly after their marriage, both firms terminated

          their business. Currently, Kimberly is employed as a real estate finance attorney at Polsinelli

          PC, a large law firm. 1 At the time of the marriage, Michael was a consultant for Deloitte &

          Touche, a financial services company. Furthermore, Michael has a degree and MBA in

          finance. However, in August 2005, his position was eliminated, and Michael was out of work

          for approximately one year. Currently, Michael is employed by Marsh McLennan Shared


              1
                Kimberly claimed in her written interrogatory responses that she is a shareholder at
       Polsinelli PC. Additionally, in the trial court’s judgment, note 11, the court noted that Kimberly’s
       gross income per year is approximately $500,000.
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       No. 1-14-2435


          Services Corporation, an insurance financial services company, as an accountant and is a

          CPA. Michael is currently earning approximately $140,000 per year.

¶ 14         Kimberly’s memorandum of law alleged that both of the parties had been married once

          before and each had two children from their prior marriages. After Kimberly dissolved her

          marriage with her first husband, she was awarded a single-family home in Hinsdale. Prior to

          his marriage to Kimberly, Michael owned a single-family home in LaGrange.

¶ 15         On January 18, 2014, in response to Kimberly’s petition for a declaratory judgment

          concerning the validity of the premarital agreement, the parties entered into an agreed order

          that the premarital agreement was valid, binding and enforceable.

¶ 16                                    III. The Premarital Agreement

¶ 17         The premarital agreement specifies that, in the event of a dissolution of marriage, the

          parties will waive maintenance and the right to seek attorney fees from each other. The terms

          of the premarital agreement provide that, should Kimberly and Michael dissolve their

          marriage, each party shall be awarded his or her nonmarital property, and 50% of the net-

          martial property.

¶ 18                                       A. Nonmarital Property

¶ 19         According to section 3 of the premarital agreement, “non-marital” property is defined as

          the property owned or acquired by either party which is and will remain after the marriage

          that party’s individual property. Sections 3.2 and 3.3 provide that both parties agree that all

          property belonging to each party listed respectively on Exhibit “A” and “B” shall remain

          nonmarital property.

¶ 20         The premarital agreement provides in section 3.4 that any pension plan in which either

          party currently is or will be in the future a participant, including all increases in the value of

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       No. 1-14-2435


          the plan during the marriage, whether due to appreciation, income, interest, employer

          contributions or employee contributions to the plan, shall be nonmartial property of the

          participant, but shall be subject to a right of reimbursement for the amount of the increase

          during the marriage (“Marital Increase”) from (a) any contribution to the plan from marital

          property and (b) all appreciation, income or interest earned by the plan subsequent to the

          marriage of the parties calculated on a pro rata basis between the amount contributed and

          earned before the marriage and the amount contributed and earned after the marriage.”

¶ 21          Section 3.7 provides that the residence owned by Kimberly in Hinsdale (Hinsdale

          Residence) shall remain and be the nonmartial property of Kimberly. Additionally, all

          property acquired by Kimberly in exchange for or with the proceeds from the Hinsdale

          Residence shall remain her nonmarital property. Section 3.8 provides that the residence

          owned by Michael in LaGrange (LaGrange Residence) shall remain and be the nonmarital

          property of Michael.

¶ 22         Section 3.12(c) specifies that all property acquired in exchange (including multiple

          exchanges) for nonmarital property shall be nonmarital property. Section 3.12(f) states that

          nonmarital property will remain the party’s nonmarital property even though the form in

          which the property is held changes. Section 3.14 provides that each of the parties has the

          absolute right to manage, give, sell, devise, bequeath or otherwise dispose of or deal with his

          or her nonmarital property as though the parties were not married.

¶ 23         Additionally, section 3.12(d) states that, except as otherwise provided in the premarital

          agreement, nonmarital property of a party shall remain nonmarital regardless of any

          contributions to such property from marital property or from the nonmarital property of the




                                                      5
       No. 1-14-2435


          other party or from the person efforts or work of either party and shall not be subject to any

          right of reimbursement or claims for contributions.

¶ 24         Section 3.12(e) provides that nonmarital property remains nonmarital unless the owner

          declares in writing that the designated property is to be held and owned by the parties as

          martial property.

¶ 25         Finally, section 3.6 provides that Michael’s interest and rights, including investments,

          assets or goodwill, as a partner, owner, or shareholder in any firm, organization or business

          including his firm Deloitte Consulting, is and shall remain his nonmarital property without

          any rights of reimbursement or claims for contribution.

¶ 26                     B. Use of Marital Funds With No Right to Reimbursement

¶ 27         According to section 4.2 payments made on mortgages, expenses, costs, taxes, and

          improvement for the Hinsdale Residence and the LaGrange Residence may be paid from

          marital property, with no right to reimbursement.

¶ 28         Additionally, section 4.6 provides that a party may pay for the support, including

          education, of his or her children from marital property, without any right of reimbursement.

          However, the total annual payments by each party from marital property for the support and

          education of his or her children may not exceed that party’s net earned income without the

          consent of the other party.

¶ 29                          IV. Verified Petition for Partial Summary Judgment

¶ 30         On February 3, 2014, Kimberly filed a verified petition for partial summary judgment.

          Kimberly sought to be awarded a promissory note payable in the amount of $286,000 that

          was secured with a mortgage lien against the property in Riverside.




                                                       6
       No. 1-14-2435


¶ 31         The petition alleged that on September 10, 2002, Kimberly executed a deed in trust,

          conveying title of the Hinsdale Residence, her nonmarital property, to the Kimberly K.

          Enders Trust as trustee under a trust agreement dated September 12, 2002.

¶ 32         On April 5, 2004, Kimberly also became the sole owner of JEHL Renovations, LLC

          (JEHL), a company that “flips real estate.” Michael did not have an ownership interest in

          JEHL.

¶ 33         On June 16, 2006, JEHL purchased a property at 87 Forest Riverside, 60546 for

          $357,500. Michael was not on the title and did not contribute money towards the purchase of

          the Riverside property.

¶ 34         In order to purchase the Riverside property, Kimberly, d/b/a JEHL, took out a high-risk

          adjustable rate mortgage loan for 6.75% with The Private Bank for $286,000. Kimberly

          alleged that Michael has not made any payments toward the adjustable rate mortgage loan for

          the Riverside property.

¶ 35         In June 2011, Kimberly refinanced the mortgage loan on the Hinsdale Residence, and

          secured a new mortgage loan at a lower rate with The Private Bank for $417,000. From the

          amount received from The Private Bank mortgage loan, $234,955.20 was deposited into a

          bank account held solely in the name of Kimberly at The Private Bank. From that account,

          Kimberly paid $288,790.00 to pay off the adjustable rate mortgage loan held on the Riverside

          property.

¶ 36         The payoff of the adjustable rate mortgage loan in 2011 from the refinancing of the

          Hinsdale Residence was evidenced by a promissory note between JEHL and the Kimberly K.

          Enders Trust for $286,000. The promissory note secured a new mortgage loan for $286,000

          against the Riverside property.


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       No. 1-14-2435


¶ 37          On March 4, 2014, the trial court denied Kimberly’s motion for partial summary

          judgment.

¶ 38                                             V. Stipulations

¶ 39          After trial commenced, the parties stipulated, on April 4, 2014, that:

¶ 40          Kimberly is currently a shareholder at Polsinelli PC, a law firm. Michael is currently

          employed by Marsh McLennan Shared Services Corporation, a financial services firm.

          Michael currently resides on Madison Street, in an apartment that he rents.

¶ 41          Both parties agree that the premarital agreement was executed on September 10, 2002,

          and it was admitted into evidence. 2

¶ 42          Additionally, the parties stipulated that, on June 16, 2006, JEHL purchased a property at

          87 Forest Avenue in Riverside, for $357,500. Title to the Riverside property at all times

          relevant has been in the name of JEHL, now known as 87 Forest LLC. In order to purchase

          the Riverside property, Kimberly, d/b/a JEHL, took out an adjustable rate mortgage loan for

          with The Private Bank for $286,000.

¶ 43          The parties further stipulated that, in June 2011, Kimberly refinanced the mortgage loan

          on the Hinsdale Residence, and secured a new mortgage loan at a lower rate with The Private

          Bank for $417,000. From the amount received from The Private Bank mortgage loan,

          $234,955.20 was deposited into a bank account held solely in the name of Kimberly at The

          Private Bank. From that account, Kimberly paid $288,790 to pay off the adjustable rate

          mortgage loan held on the Riverside property.




              2
                The trial court had previously found the premarital agreement enforceable; and that
       finding is not disputed on appeal.
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       No. 1-14-2435


¶ 44         The parties further stipulated that Michael owns a defined benefit retirement pension plan

          with Deloitte LLP. Pension benefits for Michael in the Deloitte plan accrued on his services

          between January 30, 1997 and March 1, 2006. However, Michael did not list his interest in

          the Deloitte plan on Exhibit A that he attached to the premarital agreement.

¶ 45                                               VI. Trial

¶ 46         The record on appeal contains the testimony of four witnesses who testified at trial: (1)

          Kimberly Enders, the petitioner; (2) Michael Baker, the respondent; (3) Sander Goldstein, an

          actuary called by Michael; and (4) Gregory Papiernik, an attorney and CPA called by

          Kimberly to provide an opinion on the marital increase of a pension plan.

¶ 47                                      A. Kimberly’s Testimony

¶ 48                                               1. JEHL

¶ 49         On direct examination, Kimberly testified that Michael knew that JEHL was created

          solely in Kimberly’s name and he did not want to be an owner in JEHL. Kimberly concedes

          that Michael was involved in the process of buying and selling properties with JEHL;

          however, Michael did not sign any documents on behalf of JEHL or put forth any financial

          contribution on the property purchase.

¶ 50                                   2. Dissipation of Marital Funds

¶ 51         On redirect, Kimberly testified that The Private Bank account was comprised of her

          marital and nonmarital money. Kimberly clarified that her earnings deposited in the account

          are marital, but the money that was liquidated from her nonmarital assets remained non-

          marital. Additionally, Kimberly deposited the child support payments paid by her previous

          husband and gifts from her mother in the account, which are nonmarital. Kimberly testified

          that she mixed the funds together like “one big sack of rice.”

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       No. 1-14-2435


¶ 52         Kimberly testified that she categorized The Private Bank account as “marital property”

          on her response to the interrogatories because she did not have a category for funds mixed

          with both marital and nonmarital property.

¶ 53         Kimberly testified that she controls three Fidelity Children’s Accounts, 529 accounts, for

          her two children from a prior marriage, Jordan and James, and her stepson, Erik. Erik’s 529

          account has a total of $21,307.62, which was provided solely by Kimberly.

¶ 54         Additionally, Kimberly created a savings account for her son Jordan and a Illinois

          Uniform Transfers to Minors Act 3 account for her son James. Her son Jordan recently

          graduated from college, but plans on attending graduate school. Her son James is currently at

          the University of Iowa, with approximately three more years of schooling, which will cost

          approximately $120,000.

¶ 55         On December 1, 2011, Kimberly placed $20,000 in Jordan’s and James’ education

          accounts. Additionally, on July 23, 2012, $23,000 was placed in each of her children’s

          accounts, with an additional $5,000 going to Jordan’s account. Finally, in December of 2012,

          Kimberly placed $45,000 in each of the children’s accounts.

¶ 56         On cross-examination, Kimberly testified that on March 7, 2014, she made additional

          mortgage payments on the Hinsdale Residence for $136,907.23. However, she expressed that

          she made additional principal payments to her mortgage “all the time.”

¶ 57                                      3. The Parties’ Two Dogs

¶ 58         On direct examination, Kimberly testified that the parties acquired two dogs during their

          marriage. Gracie is 11 years old with a shoulder injury and cataracts. Roxie is 7 years old.

          The two dogs were left in the care of Kimberly when Michael moved out in 2011.


             3
                 760 ILCS 20/1 et seq. (West 2012).
                                                       10
       No. 1-14-2435


          Additionally, Kimberly testified that “there is always someone at the house.” Kimberly

          testified that the dogs are big and “use to” a big yard.

¶ 59                                   4. Michael’s 401(k) Contribution

¶ 60         On direct examination, Kimberly testified that she calculated Michael’s cash flow in

          2002, using his mortgage application which he executed, in July 2002, when he refinanced

          his LaGrange Residence. Kimberly calculated Michael’s gross income less taxes,

          maintenance payments, monthly payments, and alleged contributions to the 401(k) for nine

          months. Based on this information, Kimberly estimated that Michael’s cash flow in 2002

          would allow only $486 per month for living costs if Michael contributed to the 401(k) prior

          to their marriage.

¶ 61                                       B. Michael’s Testimony

¶ 62                                                1. JEHL

¶ 63         On direct examination, Michael testified that he did not know that Kimberly was the sole

          member of JEHL. Furthermore, Michael considers himself a half owner, although he

          contributed zero capital and did not sign purchase agreements for the property.

¶ 64         Additionally, Michael was in a protracted postjudgment proceeding with his former wife

          Bonny. Bonny’s lawyer served a subpoena, and there was concern that documents regarding

          JEHL would be turned over to her. Michael vaguely remembers sending his attorney an

          email, which copied Kimberly, expressly stating that he had no interest in JEHL.

¶ 65                                        2. Erik’s Bank Account

¶ 66         On direct examination, Michael testified that Kimberly cared for Erik like her own son.




                                                        11
       No. 1-14-2435


¶ 67                                      3. The Parties’ Two Dogs

¶ 68          On cross-examination, Michael testified that the parties acquired two dogs during their

          marriage, Gracie and Roxy. Currently, Michael has visitation rights to the dogs. However,

          Michael’s apartment lease does not allow pets. Michael testified that he has a verbal

          agreement with his landlord to allow the dogs to visit periodically.

¶ 69                                         4. Deloitte Pension

¶ 70          On cross-examination, Michael testified that he owns an interest in a defined benefit

          retirement pension plan with Deloitte LLP, and the benefits accrued based on his

          employment between January 30, 1997 and March 1, 2006.

¶ 71          Michael testified that he did not include the Deloitte pension in the list of his nonmarital

          property at the time of the premarital agreement as an asset because he “didn’t really think

          about it.”

¶ 72                                  5. Michael’s 401(k) Contribution

¶ 73          On cross-examination, Michael testified that in 2002, he contributed $11,000 to his

          401(k) plan at Deloitte. Michael is confident that the full contribution was made before the

          marriage of the parties; however, Michael was not able to retrieve the 401(k) contribution

          records from Deloitte. Additionally, Michael testified that money was deducted from his

          paycheck to contribute to the 401(k).

¶ 74                                      C. Goldstein’s Testimony

¶ 75          Michael called as an expert witness Sander Goldstein, an actuary who values pension

          plans and has been testifying in dissolution of marriage cases for over 30 years. Goldstein

          testified that he has appeared as an expert in court approximately 5 to 10 times per year and

          prepares approximately 30 valuations every year.         Goldstein testified that the Deloitte

                                                      12
       No. 1-14-2435


          pension fell within the parameters of the premarital agreement. The current value of the

          pension is $274,130. Additionally, Goldstein testified that, out of the 9.08 years of Michael’s

          service at Deloitte, and 3.6 years of marital service during those years, the marital increase

          equaled 39.6%. Goldstein had been given the incorrect date of Michael’s termination and

          gave updated testimony at trial from the correct termination date of March 1, 2006.

          Additionally, he testified that this pension plan was a defined benefit plan in the private

          sector, which means only the employer makes contributions.

¶ 76         On cross-examination, Goldstein explained that, under a defined benefit plan, employers

          contribute to the pension because the employee provides service to the company.

¶ 77                                      D. Papiernik’s Testimony

¶ 78         On direct examination, Gregory Papiernik testified that he was an attorney, CPA, and

          managing partner of Levin & Brend, P.C., a law firm, and was hired by Kimberly to give an

          opinion as to the value of the Deloitte 401(k) retirement account. Papiernik testified that, in

          the past five years, he has testified as an expert witness two times before a court, and had his

          deposition taken approximately five times. Papiernik opined on the marital increase from

          contributions to disclosed and undisclosed retirement assets from marital property, and

          estimated that the “post-marriage” contribution to the 401(k) in the year 2002 was $3,666.67.

          Papiernik based the amount on a Deloitte Vanguard statement for the fourth quarter of 2002

          which indicated that the contribution for the period in question, between October 1, 2002 and

          December 1, 2002, was $3,666.67.

¶ 79                                           VII. Judgment

¶ 80         On July 17, 2014, after hearing closing arguments, the trial court found that the following

          are free and clear of any claim by Michael Baker: (1) all cash, bank accounts, stocks, bonds,


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       No. 1-14-2435


          options, insurance policies, retirement accounts and assets presently in Kimberly Enders’

          name or in the name of her Living Trust; 87 Forest LLC, formerly known as JEHL, and all

          property held therein; (2) the promissory note in the amount of $286,000; (3) all of the

          Fidelity Children’s Accounts that are held for the benefit of the children to wit: Jordan

          Pranger, James H. Pranger and Erik Baker; and (4) the Hinsdale Residence. Additionally, the

          trial court included 39.6% of the Deloitte pension plan in the final valuation of the marital

          increases to Michael’s retirement accounts. Michael had only one disagreement with

          Papiernik’s calculation and that related to the martial portion of Michael’s Deloitte 401(k). 4

          The trial court found that Papiernik gave comprehensive and credible testimony. However,

          the trial court did not find Michael’s testimony to be credible. Finally, the dogs Gracie and

          Roxy were awarded solely to Kimberly. This appeal follows.

¶ 81                                             ANALYSIS

¶ 82          On appeal, Michael alleges the trial court erred by ruling: (1) that there was a right of

          reimbursement to Kim for marital funds that were paid into the two defined benefit pension

          plans of Michael; (2) that Michael’s 2002 contribution to his 401(k) plan was partially made

          after the marriage and that Kimberly had a right to reimbursement for the marital

          contribution portion of the 401(k) plan; (3) that a note payable was nonmarital property; (4)

          that a bank account for Michael’s son should remain in Kimberly’s custody; (5) that

          payments made by Kimberly to her children, from a previous marriage, and on her mortgage

          were permissible under the parties’ premarital agreement; and (6) that he would have no

          visitation rights to the two dogs that were jointly owned by the parties.

              4
                 Michael disagreed with Papiernik’s calculations related to the marital portion of his
       Deloitte 401(k) plan. Michael testified that in 2002, he contributed the entire $11,000 that year
       prior to the date of the marriage on September 14, 2002. Papiernik did a pro rata calculation of
       the marital portion of the Deloitte 401(k) plan for 2002 which came to $3,666.
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       No. 1-14-2435


¶ 83                                   I. Defined Benefit Pension Plans

¶ 84          Michael claims that the trial court erred by ruling that there was a right of reimbursement

          to Kim for marital funds that were paid into two defined benefit pension plans of Michael,

          one from Deloitte and one from Marsh McLennan Shared Services Corporation. Michael

          contends that, under the terms of the premarital agreement, there is no right of reimbursement

          for defined pension plans.

¶ 85          Valid premarital agreements are contracts, and the rules governing the interpretation of

          contracts apply to their interpretation. In re Marriage of Best, 387 Ill. App. 3d 948, 949

          (2009). The primary objective of contract interpretation is to ascertain the intent of the

          parties. Gallagher v. Lenart, 226 Ill. 2d 208, 232-33 (2007). When the language of the

          contract is clear and unambiguous, a court decides the intent of the parties solely from the

          words of the contract, given their plain and ordinary meaning. Best, 387 Ill. App. 3d at 949.

          Additionally, construction of a contract presents a question of law, subject to de novo review.

          Id. De novo consideration means we perform the same analysis that a trial judge would

          perform. Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011).

¶ 86          Kimberly cited In re Marriage of Hunt which found that nonvested pension interests

          “earned during marriage should be included in the marital property divided between husband

          and wife upon divorce.” 5 In re Marriage of Hunt, 78 Ill. App. 3d 653, 660 (1979). The court

          found that retirement pensions are not gratuities, but are part of the consideration earned by

          the employee for his or her services. Hunt, 78 Ill. App. 3d at 661.




              5
                We could not locate a more recent case specifically addressing nonvested pension plans.
       Hunt is still considered to be good law, and was cited with approval by In re Marriage of Wendt,
       2013 IL App (1st) 123261.
                                                      15
       No. 1-14-2435


¶ 87          In the case at bar, Michael omitted the Deloitte defined benefit pension plan when the

          parties made a list of their nonmarital property in preparation for the premarital agreement,

          and he testified at trial that he did so because he “didn’t really think about it.”

¶ 88          Michael claims that, unlike defined pension contribution plans, defined pension benefit

          plans do not typically involve salary reductions. Therefore, Michael argues that the method

          of calculating the right of reimbursement under section 3.4 cannot be applied to the defined

          pension benefits plan because the plans were an employment-related perk, similar to buying

          stock in an employer, and therefore should be treated like stock purchases, an investment

          without any rights of reimbursement, under section 3.6. Michael claims that there is no way

          to calculate reimbursement for a defined pension benefit plan.

¶ 89          Contrary to Michael’s claim, the right of reimbursement provision in section 3.4 of the

          premarital agreement states that it applies to “any” pension plan, and it does not exclude

          defined pension benefit plans.

¶ 90          Section 3.4 of the premarital agreement provides that “any pension plan in which either

          party currently is or will be in the future a participant, ***, shall be non-marital property of

          the participant, but shall be subject to a right of reimbursement for the amount of increase

          during the marriage from (a) any contribution to the plan from martial property and (b) all

          appreciation, income or interest earned by the plan subsequent to the marriage of the parties

          calculated on a pro rata basis between the amount contributed and earned before the

          marriage and the amount contributed and earned after the marriage.” “Any” is a broad and

          inclusive term which the Merriam-Webster Dictionary defines as “one or some

          indiscriminately of whatever kind.” Merriam-Webster Dictionary, http://www.merriam-

          webster.com/dictionary/any (last visited Oct. 19, 2015).


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       No. 1-14-2435


¶ 91          As a result, the plain and ordinary meaning of “any” indicates that all types of pension

          plans shall be included and subject to a right of reimbursement for the amount of increase

          during the marriage; and this includes defined pension benefit plans.

¶ 92         Further, the testimony at trial shows that the court’s conclusion was not against the

          manifest weight of the evidence. A finding is against the manifest weight of the evidence

          when the opposite conclusion is clearly evident or where it is unreasonable, arbitrary, and not

          based on the evidence. In re Marriage of Berger, 357 Ill. App. 3d 651, 660 (2005) (citing

          Maple v. Gustafson, 151 Ill. 2d 445, 454 (1992)). Michael’s expert witness, Goldstein,

          testified that the Deloitte pension fell within the parameters of the premarital agreement and

          there was no evidence presented that it did not.

¶ 93         Michael’s claim that there is no way to calculate the value of the marital funds that were

          paid into the Deloitte benefit pension plan is not persuasive. Gregory Papiernik’s testimony

          as an expert provided an acceptable calculation of the marital increase in the Deloitte

          pension.

¶ 94         As a result, we cannot say that the trial court erred in finding that the defined pension

          benefit plans were subject to a right of reimbursement for the marital contributions that were

          made.

¶ 95                            II. Michael’s Contribution to Deloitte 401(k)

¶ 96         Michael next argues that the trial court erred by finding that he made partial contributions

          to the Deloitte 401(k) after their marriage. Michael contends that he is certain that he made

          full contribution by September 1, 2002, before his marriage to Kimberly.

¶ 97          Michael’s claim on appeal is that the trial court erred by finding his testimony not to be

          credible, while finding Papiernik’s testimony credible. Furthermore, Michael argues that he


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           front-loaded his 401(k) contributions in later years which supports his assertion that he made

           the full contribution before marriage.

¶ 98          A trial court’s credibility determination is afforded great deference because “it has the

           best opportunity to view and evaluate the parties and their testimony.” In re Gwynne P., 346

           Ill. App. 3d 584, 590 (2004). As we have noted, the trial court’s factual findings will not be

           disturbed on appeal unless they are against the manifest weight of the evidence. Gwynne P.,

           346 Ill. App. 3d at 590. A finding is against the manifest weight of the evidence when the

           opposite conclusion is clearly evident or where it is unreasonable, arbitrary, and not based on

           the evidence. Berger, 357 Ill. App. 3d at 660.

¶ 99          Here, Michael failed to provide any records from Deloitte concerning his 401(k)

           contribution from Deloitte. Michael admitted at trial that the contribution funds were

           deducted from his paycheck. Kimberly’s witness, Papiernik, opined that the postmarriage

           contribution to the Deloitte 401(k) in 2002 was $3,666.67. Papiernik based this amount on a

           Deloitte Vanguard statement for the fourth quarter of 2002 which indicated that the

           contribution, between October 1, 2002 and December 1, 2002 was $3,666.67. This was after

           the parties’ marriage on September 14, 2002.

¶ 100         Thus, Michael’s argument is not persuasive.

¶ 101                                               III. JEHL

¶ 102         Michael next claims that the trial court erred by finding that the JEHL promissory note

           was nonmarital property, when the note was acquired during the marriage. Michael argues

           that there were two sources of funds for the JEHL note: (1) funds from the refinancing of the

           Hinsdale Residence; and (2) funds from the account. Michael claims that, because the funds




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           in the account were partially marital, at least part of the source of funds for the JEHL

           mortgages was marital.

¶ 103         We apply the manifest weight of evidence standard to the trial court’s findings on the

           existence of martial and nonmarital property. In re Marriage of Demar, 385 Ill. App. 3d 837,

           850 (2008). A decision is against the manifest weight of the evidence when the opposite

           conclusion is clearly evident or where it is unreasonable, arbitrary, and not based on the

           evidence. Berger, 357 Ill. App. 3d at 660.

¶ 104         Contrary to Michael’s assertion, section 3.7 of the premarital agreement provides that

           “[Michael] agrees that the Hinsdale Residence shall remain and be the non-martial property

           of [Kimberly] and waives his rights to homestead in the Hinsdale Residence.” Additionally,

           section 3.7 provides that all property acquired by Kimberly “in exchange for or with the

           proceeds” from the Hinsdale Residence shall remain her nonmarital property.

¶ 105         Black’s Law Dictionary defines “proceeds” as, “[s]omething received upon selling,

           exchanging, collecting, or otherwise disposing of collateral. Proceeds differ from other types

           of collateral because they constitute any collateral that has changed in form.” Black’s Law

           Dictionary 1242 (8th ed. 2004). Thus, the plain and ordinary meaning of “proceeds” includes

           anything that resulted from an exchange of nonmarital property.

¶ 106         Section 3.12(d) states that, except as otherwise provided in the premarital agreement,

           nonmarital property of a party shall remain nonmarital regardless of any contributions to

           such property from marital property or from the nonmarital property of the other party or

           from the person’s efforts or work of either party and shall not be subject to any right of

           reimbursement or claims for contributions.




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¶ 107         In the case at bar, Kimberly was the sole owner of JEHL. Furthermore, Michael admitted

           at trial that he did not contribute capital to JEHL and did not sign purchase agreements for

           the property. JEHL purchased the Riverside property by taking out a high-risk adjustable rate

           mortgage. Thereafter, Kimberly refinanced the Hinsdale Residence, her nonmarital property,

           and secured a new mortgage loan. From the amount received, Kimberly paid off an

           adjustable rate mortgage for the Riverside property which was evidenced by a promissory

           note between JEHL and the Kimberly K. Enders Trust.

¶ 108          Kimberly acquired the JEHL promissory note “in exchange for or with the proceeds”

           from the Hinsdale Residence as section 3.7 provided. Thus, according to section 3.7, the

           promissory note remained nonmarital.

¶ 109         Furthermore, section 3.12(d) of the premarital agreement states that the nonmarital

           property of a party shall remain nonmarital regardless of any contributions to such property

           from marital property. In the case at bar, Kimberly used account 44157, which included

           marital money from her earnings and also nonmarital money from child support and other

           liquidated assets. According to section 3.12(d), the nonmarital property remains nonmarital

           regardless of the contributions from marital funds.

¶ 110         As a result, we cannot say that the trial court’s decision on this issue was against the

           manifest weight of evidence. See Berger, 357 Ill. App. 3d at 660.

¶ 111                                     IV. Erik’s 529 Account

¶ 112         Michael contends that the trial court erred by denying his request to transfer

           custodianship on Erik’s account from Kimberly to Michael. Michael argues that although the

           account was established for the benefit of Erik, it is possible for Kimberly to cancel the




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           account or keep the money herself. Michael contends that the doctrine of judicial estoppel

           precludes Kimberly from gifting the account to herself.

¶ 113         A trial court’s credibility determination is afforded great deference because “it has the

           best opportunity to view and evaluate the parties and their testimony.” Gwynne P., 346 Ill.

           App. 3d at 590. The trial court’s factual findings will not be disturbed on appeal unless they

           are against the manifest weight of the evidence. Gwynne P., 346 Ill. App. 3d at 590.

¶ 114         Under Illinois law, there are five elements to judicial estoppel: (1) the two positions must

           be taken by the same party; (2) the two positions must be totally inconsistent; (3) the

           positions must be taken in judicial proceedings; (4) the positions must be given under oath;

           and (5) the party must have successfully maintained the first position, and received some

           benefit thereby. People v. Runge, 234 Ill. 2d 68, 132 (2009).

¶ 115         Michael contends that the doctrine of judicial estoppel precludes Kimberly from asserting

           at trial that she created the 529 bank account for her stepson’s benefit, and then when the trial

           court is no longer looking, take the money back for her own benefit.

¶ 116         Michael argues that at trial, Kimberly took the position that she created the account for

           the benefit of Erik. Michael asserts that now, Kimberly takes the position that the account is

           her property and she may do with it as she pleases. Michael argues that even though the

           account was established for the benefit of Erik, it remains possible for Kimberly to cancel the

           account, pay the penalty for cancellation, and keep the money for herself.

¶ 117         Contrary to Michael’s assertion, the second element is not supported by any facts. In the

           case at bar, Michael fails to support his assertion that Kimberly takes two positions that are

           “totally inconsistent” with each other. Although Kimberly took the position that she created

           the account for the benefit of Erik, Michael fails to support his assertion with any evidence


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           that Kimberly now takes the position that the account is her property. Michael also fails to

           show that the trial court’s finding was against the manifest weight of the evidence because he

           fails to cite any document in the record showing that Kimberly sought to cancel the account

           or keep the money herself. Rather, at trial, Michael testified that Kimberly cared for Erik like

           her own son.

¶ 118         Therefore, the trial court’s decision to continue Kimberly as the custodian of Erik’s 529

           account was not against the manifest weight of the evidence.

¶ 119                                   V. Dissipation of Marital Funds

¶ 120         Michael next argues that the trial court erred by finding that the payments to Kimberly’s

           children and payment on her mortgage were not a breach of the good faith principle in

           contract law.

¶ 121         Kimberly argues that the duty of good faith and fair dealing is used as a construction aid

           in determining the intent of the parties where an instrument is susceptible to two conflicting

           constructions. Seip v. Rogers Raw Materials Fund, L.P., 408 Ill. App. 3d 434, 443 (2011).

           The trial court accepted Kimberly’s argument, but we find that the trial court viewed the

           implied covenant of good faith too narrowly. However, we may affirm on any basis

           appearing in the record, whether or not the trial court relied on that basis or its reasoning was

           correct. Benson v. Stafford, 407 Ill. App. 3d 902, 912 (2010).

¶ 122         Again, our standard of review is manifest weight of the evidence. In re Gwynne P., 346

           Ill. App. 3d 584, 590 (2004) (a trial court’s factual findings will not be disturbed unless they

           are against the manifest weight of the evidence). In this case, the doctrine of good faith

           performance imposes a limitation on the exercise of discretion vested in one of the parties to

           a contract. Dayan v. McDonald’s Corp., 125 Ill. App. 3d 972, 990-91 (1984). In describing


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           the nature of that limitation, the courts of this state have held that a party vested with

           contractual discretion must exercise that discretion reasonably and with proper motive, and

           may not do so arbitrarily, capriciously, or in a manner inconsistent with the reasonable

           expectations of the parties. Foster Enterprises, Inc. v. Germania Federal Savings & Loan

           Ass'n, 97 Ill. App. 3d 22, 30-31 (1981); Pierce v. MacNeal Memorial Hospital Ass'n, 46 Ill.

           App. 3d 42, 51 (1977).

¶ 123         Section 4.2 of the premarital agreement provided that payments made on mortgages,

           expenses, costs, taxes, and improvement for the Hinsdale Residence and the LaGrange

           Residence may be paid from marital property, with no right to reimbursement. Section 4.6 of

           the premarital agreement gave each party the discretion to make educational payments for

           their children for marital funds. The parties also freely contracted that the only restriction on

           this discretion would be that the payments not exceed that party’s annual income. The parties

           stipulated in this case to the validity of the premarital agreement, and Michael never claimed

           that the premarital agreement was against public policy, or that the funds placed into the

           children’s accounts did not have the requisite safeguards needed to make sure that the funds

           were used for educational purposes. In this case, Kimberly made payments that were much

           less than her annual income. Since Michael agreed to this limitation, we cannot say that

           Kimberly’s actions were inconsistent with his reasonable expectations. The educational

           payments made by Kimberly for her children were permitted by section 4.6 of the party’s

           premarital agreement and the mortgage payments were permitted by section 4.2, regardless

           of whether from marital or nonmarital funds, and did not violate the implied covenant of

           good faith and fair dealing.




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¶ 124          In addition, Michael claims that Kimberly paid approximately $136,000 on her mortgage

           on the Hinsdale home before trial. The trial court found that all of these funds were non-

           marital. The parties stipulated that $99,576.00 was non-marital, and the trial court found that

           the balance was also non-marital. We cannot say that the opposite conclusion is clearly

           evident, or that the trial court’s findings are unreasonable, arbitrary, and not based on the

           evidence.

¶ 125          As to the $3,830.00 charitable contributions, this was less than the amount Kimberly

           usually contributes to charity in any given year, so it cannot be a dissipation of marital funds

           if marital funds were used.

¶ 126          We cannot find that there is any dissipation of marital funds based on the manifest weight

           of the evidence.

¶ 127                                       VI. The Parties’ Two Dogs

¶ 128          Finally, Michael argues that the trial court erred in denying his request for visitation with

           the parties’ two dogs. Specifically, Michael contends that the court should make it clear that

           an Illinois court has the authority to order pet visitation. Michael asserts that visitation would

           be in the best interest of the parties.

¶ 129          Whether a court has the authority to order pet visitation is a question of first impression

           in Illinois. Although we could not find an Illinois case that addressed visitation with regard to

           pets, the trial court cited to a decision from New York that did not allow dog visitation.

           Travis v. Murray, 977 N.Y.S.2d 621, 631 (N.Y. Sup. Ct. 2013). The New York Supreme

           Court declined to apply the “best interests” of the dogs standard because dogs do not rise to

           the same level of importance as children. Travis, 977 N.Y.S.2d at 631. The court applied a

           “best for all concerned” standard, maintaining that “household pets enjoy a status greater


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        No. 1-14-2435


           than mere chattel.” (Internal quotation marks omitted.) Travis, 977 N.Y.S.2d at 631.

           However, the court stated that awarding visitation “would only serve as an invitation for

           endless post-divorce litigation.” Travis, 977 N.Y.S.2d at 631.

¶ 130         In general terms, a trial court’s credibility determination is afforded great deference

           because “it has the best opportunity to view and evaluate the parties and their testimony.”

           Gwynne P., 346 Ill. App. 3d at 590. The trial court’s factual findings will not be disturbed on

           appeal unless they are against the manifest weight of the evidence. Gwynne P., 346 Ill. App.

           3d at 590. However, when the exercise of discretion presents a question of law, we review

           that determination as de novo. Geisler v. Everest National Insurance Co., 2012 IL App (1st)

           103834. De novo consideration means we perform the same analysis that a trial judge would

           perform. Khan, 408 Ill. App. 3d at 578.

¶ 131         As far as we know, the only statutory definition for a dog owner in Illinois is provided by

           the Animal Control Act. 510 ILCS 5/2.16 (West 2014). Pursuant to section 2.16 of the

           Animal Control Act, an owner is defined as “any person having a right of property in an

           animal, or who keeps or harbors an animal, or who has it in his care, or acts as its custodian.”

           510 ILCS 5/2.16 (West 2014).

¶ 132         In the case at bar, Kimberly is the dogs’ owner under this definition because the dogs

           were left in her “care” when Michael moved out of the Hinsdale Residence in 2011. As a

           result, she is the one who “keeps or harbors” the dogs and has them “in [her] care” and acts

           as their regular “custodian.” 510 ILCS 5/2.16 (West 2014). Michael testified at trial that he

           currently resides in an apartment where the lease does not allow pets, although he contends

           that he has a verbal agreement with his landlord to allow the dogs periodically.




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¶ 133         Because of the scarcity of Illinois case law addressing this issue, it is useful to look to

           decisions from courts of other states. In New York, the court observed that awarding pet

           visitation “would only serve as an invitation for endless post-divorce litigation.” Travis, 977

           N.Y.S.2d at 631. Thus, in light of the New York case and the definition of a dog owner in

           Illinois law, we cannot say that the trial court’s decision was against the manifest weight of

           the evidence.

¶ 134                                           CONCLUSION

¶ 135         For the foregoing reasons, we find that the trial court did not err in finding: (1) that there

           was a right of reimbursement to Kim for marital funds that were paid into the two defined

           benefit pension plans of Michael; (2) that Michael’s 2002 contribution to his 401(k) plan was

           partially made after the marriage and that Kimberly had a right to reimbursement for the

           marital contribution portion of the 401(k) plan; (3) that a note payable was nonmarital

           property; (4) that a bank account for Michael’s son should remain in Kimberly’s custody; (5)

           that payments made by Kimberly to her children, from a previous marriage, and on her

           mortgage were permissible under the parties’ premarital agreement; and (6) that he would

           have no visitation rights to the two dogs that were jointly owned by the parties.

¶ 136         Affirmed.




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