                                  Illinois Official Reports

                                          Appellate Court



                     In re Marriage of Abu-Hashim, 2014 IL App (1st) 122997



Appellate Court              In re MARRIAGE OF KIMBERLY ABU-HASHIM, Petitioner-
Caption                      Appellee, and RAJAIE ABU-HASHIM, Respondent-Appellant.


District & No.               First District, Third Division
                             Docket No. 1-12-2997


Filed                        June 25, 2014


Held                         On appeal from the dissolution of the parties’ marriage, the appellate
(Note: This syllabus         court held that the distribution of marital debt was not an abuse of
constitutes no part of the   discretion where the amount owed on the home equity line of credit
opinion of the court but     was deducted from the net equity amount awarded to respondent, the
has been prepared by the     even division of the 401(k) plan was not an abuse of discretion after
Reporter of Decisions        each party withdrew $50,000 for attorney fees, the trial court did not
for the convenience of       abuse its discretion in valuing the parties’ daycare center pursuant to
the reader.)                 its own method in the absence of meaningful valuation evidence, and
                             with regard to child support, there was no basis for a deviation from
                             the statutory guidelines, respondent was properly ordered to pay
                             retroactive support for the time after the dissolution petition was filed
                             but before respondent started paying child support, and requiring
                             respondent to include his income from his commercial rental property
                             without a deduction for losses he had on his noncommercial rental
                             property for purposes of establishing his monthly income was not an
                             abuse of discretion, especially in the absence of such losses.



Decision Under               Appeal from the Circuit Court of Cook County, No. 08-D-3121; the
Review                       Hon. Dominique C. Ross, Judge, presiding.



Judgment                     Affirmed.
     Counsel on                Jan R. Kowalski, of Chicago, for appellant.
     Appeal
                               Gail M. O’Connor, of O’Connor Family Law, PC, of Chicago, for
                               appellee.




     Panel                     JUSTICE HYMAN delivered the judgment of the court, with opinion.
                               Presiding Justice Pucinski and Justice Mason concurred in the
                               judgment and opinion.




                                                 OPINION

¶1          Appellate courts typically give great deference on the factual issues to the trial court
       hearing the dissolution of marriage proceeding. One reason is the trial court’s familiarity with
       the dueling spouses, and if represented, their counsel, and its exposure to and grasp of the
       evidence in the context of the entire proceeding. Rajaie Abu-Hashim, who appeals certain
       provisions in a judgment for dissolution of his marriage from petitioner, Kimberly
       Abu-Hashim, raises issues that all relate to factual disputes resolved by the trial court. Rajaie
       has not carried his burden of showing an abuse of discretion, and, accordingly, we affirm the
       trial court’s decisions.
¶2          Rajaie asserts that the trial court abused its discretion by: (1) allocating to him 100% of the
       $299,724.56 owed on a home equity line of credit on the parties’ marital home; (2) failing to
       account for a prejudgment distribution to Kimberly of $50,000 from Rajaie’s 401(k) account in
       equitably allocating the marital property; (3) valuing the parties’ daycare business at $235,000,
       in the absence of evidence to support that valuation; and (4) failing to deviate from the
       statutory child support guidelines, ordering him to pay retroactive child support, and ordering
       him to pay child support on income from a profitable commercial rental property without
       offsetting the losses on other rental properties.

¶3                                           BACKGROUND
¶4         On April 1, 2008, Kimberly filed a petition for dissolution of marriage. The parties had
       four children. At the time the petition was filed, one of the children was emancipated and three
       were minors. In the interim, two of those children have been emancipated and one is currently
       14 years old. On January 4, 2011, the trial court entered a custody judgment granting sole
       custody of the then three minor children to Kimberly and visitation rights to Rajaie. Later, one
       of the minor children went to live with her father, and the trial court entered an agreed order
       modifying the custody judgment to transfer sole custody of that child to Rajaie, reserving
       parenting time to Kimberly.
¶5         The trial court bifurcated its judgment. On April 27, 2011, the court entered an order
       dissolving the parties’ marriage and reserving all remaining matters, including property and

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       debt division, child support, and reimbursement. Trial took 10 days and resulted in entry of a
       supplemental judgment on January 17, 2012. During their marriage, the parties acquired nine
       parcels of real estate, including seven apartment buildings, one commercial building, and their
       marital home. The parties also owned a business together, Alphabet Acres Daycare Center. In
       its supplemental judgment, the court allocated the real estate, the business, and the debt, and
       made determinations regarding child support, dissipation, and attorney fees.
¶6          Only those findings relevant to the issues raised on appeal will be addressed.
¶7          The trial court initially ruled the parties’ real estate and business interests would be divided
       65/35, in Kimberly’s favor. Both parties waived maintenance. The court ordered Rajaie to pay
       Kimberly 32% of his net income, including bonuses, under the guidelines set forth in section
       505(a)(1) of the Illinois Marriage and Dissolution of Marriage Act (the Act) (750 ILCS
       5/505(a)(1) (West 2012)). After one of the children moved in with Rajaie, the court ordered
       Kimberly to pay $705 per month in child support. Both parties filed claims alleging the
       dissipation of assets by the other party. The trial court denied those claims, concluding that
       “both parties used available funds and income for the purpose of maintaining their respective
       households, managing their many parcels of real estate and the care of the children.”
¶8          As to the parties’ property and business interests, the trial court awarded the parties’
       marital home to Rajaie. The court set the value of the house at $1,399,000, and noted it was
       encumbered by a mortgage with an unpaid balance of about $781,060.06 and a home equity
       line of credit with an outstanding balance of $299,724.56, leaving a net equity of $318,215.38.
       The parties stipulated that after the dissolution proceedings commenced, Kimberly drew
       $131,500 against the home equity line of credit, Rajaie drew $46,633.31, and the parties jointly
       drew $99,582.02. The court ordered Rajaie to pay Kimberly $209,107.69 for her 65% share of
       the equity on the home and rejected Rajaie’s argument that Kimberly should be responsible for
       repaying the $131,500 she individually drew from the line of credit and half of the $99,582.02,
       the parties jointly drew.
¶9          Rajaie has a vested interest in a 401(k) plan through his employer. During the litigation,
       both parties were each permitted to take $50,000 from the account to pay for their respective
       attorney fees. In its supplemental judgment, the court ordered that the remaining balance of the
       401(k) account be divided equally between them.
¶ 10        The parties co-owned a daycare center. The court awarded the business to Kimberly. The
       trial court found the testimony of the parties and the documents submitted into evidence
       provided little information as to the fair market value of the business and thus used an alternate
       means of assessing its value. The court noted the parties agreed Kimberly would take an annual
       draw of $85,000 from the income generated by the daycare center and multiplied that by three,
       the minimum number of years the court determined the business could remain viable based on
       the economy and the financial history of the business. The court then subtracted $20,000 in
       past-due rent and damages from flooding, for a total value of $235,000.
¶ 11        The parties owned seven residential rental properties in Illinois and Wisconsin. The court
       awarded four of those properties to Kimberly and three to Rajaie. The parties also co-owned a
       commercial rental property, referred to as 1410 S. Barrington. The court awarded Rajaie 1410
       S. Barrington and ordered him to pay Kimberly $148,000 for her interest.
¶ 12        The parties filed separate motions to reconsider the supplemental judgment. The trial court
       held a hearing on the motions on May 31, 2012, and though an order was drafted, it was not
       entered at that time. On September 18, 2012, the trial court held another hearing in response to

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       Rajaie’s motion for clarification and to hear other pending motions. After the hearing, the trial
       court entered an order disposing of the cross-motions to reconsider.
¶ 13       The trial court made several changes to the original supplemental judgment, including
       adjusting the real estate division from a 65/35 split to a 50/50 split. Relevant to this appeal is
       the provision of the order requiring Rajaie to pay Kimberly an additional $20,748.53 in child
       support for income he earned from 1410 S. Barrington from January 2011 until December
       2011. Rajaie filed a timely notice of appeal from both the January 17, 2012 supplemental
       judgment and the September 18, 2012 order resolving the parties’ cross-motions for summary
       judgment.

¶ 14                                            ANALYSIS
¶ 15        Kimberly raises two threshold issues–whether Rajaie has provided a sufficient record to
       permit us to decide the merits of the appeal and whether Rajaie properly preserved for appeal
       two of his four claimed errors. Citing Foutch v. O’Bryant, 99 Ill. 2d 389 (1984), Kimberly
       asserts that although Rajaie provided a transcript from the September 18, 2012 hearing
       addressing the cross-motions to reconsider, the absence of a transcript or bystanders’ report
       from earlier hearings or the 10-day trial means we must presume the trial court’s ruling was
       correct. We disagree. In Foutch, the supreme court addressed whether there is a “sufficiently
       complete record of the proceedings at trial to support a claim of error.” Foutch, 99 Ill. 2d at
       391-92. The sufficiency of the record to address a claim of error turns on the question
       presented on appeal. In Foutch, the question was whether the trial court abused its discretion in
       denying the motion to vacate an ex parte judgment. Id. Absent a transcript of the hearing where
       evidence was heard and absent specific grounds for the denial, review for an abuse of
       discretion of the trial court’s ruling was foreclosed. Id. at 392. Here, the record contains the
       trial court’s January 17, 2012 written supplemental judgment for dissolution of marriage and
       its September 18, 2012, order addressing the parties’ cross-motions to reconsider that
       judgment. The trial court’s supplemental judgment setting forth its reasoning in detail and the
       September 18, 2012, order when read in conjunction with the transcript from the proceedings
       on that date, provide a sufficiently complete record for us to address its merits. But because the
       appellant is required to provide the reviewing court with a record sufficient to support his or
       her claims of error, any doubts and deficiencies arising from an insufficient record will be
       construed against Rajaie. Foutch, 99 Ill. 2d at 391.
¶ 16        Kimberly next contends two issues raised by Rajaie in his brief were not raised with the
       trial court, in the motion to reconsider, or in the docketing statement and thus are waived.
       Specifically, Kimberly contends that although the motion to reconsider raised the issues of the
       distribution of the home equity line of credit debt and the child support award issue, it did not
       raise the issue of the $50,000 distribution from Rajaie’s 401(k) account to Kimberly or the trial
       court’s valuation of the Alphabet Acres business, and thus, those issues have not been
       preserved for appeal. Again, we disagree.
¶ 17        “Unlike the specificity required in the notice of appeal, the docketing statement only
       requires a statement of the general issues proposed to be raised by the party, and the failure to
       include an issue in the docketing statement ‘will not result in the waiver of the issue on appeal.’
       Ill. S. Ct. R. 312(a) (eff. Feb. 10, 2006). The docketing statement provides the appellate court
       with general information about a case docketed in the court and it is not intended to replace the
       notice of appeal.” General Motors Corp. v. Pappas, 242 Ill. 2d 163, 177-78 (2011). Thus,

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       Rajaie’s failure to include those two issues in the docketing statement is not grounds for
       finding he has waived those issues.
¶ 18       Illinois Supreme Court Rule 303(b) (eff. June 4, 2008) requires a notice of appeal to
       “specify the judgment or part thereof or other orders appealed from and the relief sought from
       the reviewing court.” A notice of appeal vests this court with the power to decide the matters
       that are properly presented. Heller Financial, Inc. v. Johns-Byrne Co., 264 Ill. App. 3d 681,
       688 (1994). The notice of appeal serves the alternate purpose of informing the party that
       prevailed in the circuit court of the portion of the judgment that is, potentially, to be reviewed.
       Schmidt v. Joseph, 315 Ill. App. 3d 77, 80 (2000). “To that end, notice is to be liberally
       construed when determining what matters were properly raised in the notice, and a defect will
       be deemed one of form, so long as that construction does not prejudice the appellee.” Id.
¶ 19       Kimberly is correct in asserting Rajaie did not raise the 401(k) issue or the valuation of
       Alphabet Acres in his motion for reconsideration. But in his notice of appeal, Rajaie states he is
       appealing from both the September 18, 2012 order and the January 17, 2012 supplemental
       judgment, which did deal with the allocation of the 401(k) account and the valuation of
       Alphabet Acres. Thus, we will address those issues, as well as the other issues raised on appeal.

¶ 20                       Distribution of Debt on Home Equity Line of Credit
¶ 21       Rajaie contends the trial court erred in failing to require Kimberly to pay her share of the
       home equity line of credit she withdrew after the dissolution of marriage proceedings were
       filed and before the supplemental judgment was entered. In awarding Rajaie the marital home
       and determining the value of that asset, the trial court deducted the full amount of the home
       equity line of credit drawn by both parties, $299,724.56, along with the existing mortgage, in
       finding the property resulted in a net equity of $318,215.38. Rajaie contends the trial court
       should instead have ordered Kimberly to repay him the amount she individually drew from the
       home equity line of credit, which the parties stipulated was $131,000, and half of the amount
       the parties’ jointly drew, which was stipulated to be $99,582.02. Kimberly asserts the trial
       court rejected Rajaie’s earlier contention that her drawing from the line of credit constituted a
       dissipation of assets and that the trial court properly found the home and its liabilities were part
       of the marital estate.
¶ 22       Under the Act, after classifying property as marital or nonmarital, the trial court gives to
       each spouse his or her nonmarital property, and the marital property is divided into “just
       proportions.” 750 ILCS 5/503(d) (West 2012). A trial court has broad discretion in the division
       of marital assets, and we will reverse its determinations only if it is clear that the trial court has
       abused that discretion. In re Marriage of Sanfratello, 393 Ill. App. 3d 641, 648 (2009). Illinois
       law vests the trial court with considerable discretion to exercise its judgment in resolving
       matrimonial financial matters because an equitable division depends on more than merely an
       analysis of dollars and cents. It also depends, for example, on the court’s observations of the
       parties as they testified and responded at trial and the economic circumstances of each party.
       “A trial court abuses its discretion only where its ruling is arbitrary, fanciful, or unreasonable,
       or where no reasonable person would take the view adopted by the trial court.” (Internal
       quotation marks omitted.) In re Adoption of S.G., 401 Ill. App. 3d 775, 784 (2010).
¶ 23       A trial court may require that debts incurred following separation be paid by the party
       incurring them. In re Marriage of Stufflebeam, 283 Ill. App. 3d 923, 929 (1996). But those


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       debts may be considered marital, and it is within the trial court’s discretion to order that the
       other party or both parties be held responsible for paying them. Id.
¶ 24       In determining the value of one of the marital assets–the parties’ home–the court found that
       both the home and its liabilities were part of the marital estate. The court took the home equity
       line of credit into account by deducting the amount owed from the net equity amount awarded
       to Rajaie. Although Rajaie correctly asserts Kimberly was responsible for more than half of the
       amount owed, this distribution of marital debt does not equate to an abuse of discretion.

¶ 25                                      401(k) Distribution
¶ 26      Rajaie next contends that in dividing up the martial property the trial court erred by failing
       to offset Kimberly’s earlier distribution of $50,000 from his 401(k) account. In the
       supplemental judgment, the trial court noted that each party took a $50,000 advance on the
       401(k) account for attorney fees. The court then divided the remainder of the 401(k) evenly
       between the parties. Because both parties took a $50,000 advance, the distribution was not an
       abuse of discretion.

¶ 27                                     Value of Daycare Business
¶ 28       Rajaie asserts the trial court erred in placing a value on the daycare business because the
       method it used–multiplying Kimberly’s annual salary of $85,000 by three (the number of years
       the business was deemed reasonably viable) and subtracting $20,000 for rent and
       damages–was not an accepted method of valuing a business. Thus, Rajaie asks us to remand
       for further hearings on the value of the daycare business.
¶ 29       To place a specific value on an item of marital property, there must be competent evidence
       of its value presented. In re Marriage of Miller, 112 Ill. App. 3d 203, 208 (1983). Generally,
       the valuation of assets in an action for dissolution of marriage is a question of fact, and the trial
       court’s determination will not be disturbed absent an abuse of discretion. In re Marriage of
       Schneider, 214 Ill. 2d 152, 162 (2005). But where a party does not offer evidence of an asset’s
       value, the party cannot complain as to the disposition of that asset by the court. In re Marriage
       of Tyrrell, 132 Ill. App. 3d 348, 350 (1985). Parties should not be allowed to benefit on review
       from their failure to introduce evidence at trial. Id.
¶ 30       A party must present sufficient evidence of the value of the property, and where a party has
       had a sufficient opportunity to introduce evidence but offers none, that party should not benefit
       on review from its omission. Otherwise, remanding “would only protract the litigation and
       clog the trial courts with issues which should have been disposed of at the initial hearing.”
       In re Marriage of Smith, 114 Ill. App. 3d 47, 54-55 (1983).
¶ 31       Rajaie acknowledges that neither he nor Kimberly presented evidence at trial regarding the
       value of Alphabet Acres. Rajaie contends, however, that stipulations by the parties showing
       the business had deposits of $336,709.97 in 2008 and $440,600.45 show that the business was
       worth more than $235,000, and should have been a factor the trial court used in determining
       the value of the business. Although the parties stipulated as to deposits, this alone is not
       sufficient to determine the value of the business as evidence of other factors, including good
       will, fixed assets, and business-related expenses would be needed to make a proper valuation.
       Because neither party presented meaningful evidence of the business’s value, we cannot say
       that the trial court’s method of valuation was an abuse of its discretion.

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¶ 32                                             Child Support
¶ 33       Lastly, Rajaie raises three issues regarding the trial court’s orders addressing child support:
       (i) the parties’ similar financial resources warranted a deviation from the statutory child
       support guidelines set forth in section 505(a)(1) of the Act (750 ILCS 5/505(a)(1) (West
       2012)); (ii) the trial court abused its discretion in ordering him to pay retroactive child support
       to Kimberly for the period of March 2009 through September 2012; and (iii) the provision in
       the trial court’s September 18, 2012 order requiring him to pay child support on his income
       from the 1410 S. Barrington commercial rental property without offsetting the losses he takes
       from other rental property was an abuse of discretion.
¶ 34       Under the Act, child support is calculated based on the noncustodial parent’s net income.
       750 ILCS 5/505(a)(1) (West 2012). “Net income” is defined as the total of all income from all
       sources, minus certain statutory deductions. 750 ILCS 5/505(a)(3) (West 2012). For three
       children the guidelines specify a minimum child support payment of 32% of the supporting
       parent’s net income. 750 ILCS 5/505(a)(1) (West 2012). Section 505(a)(2) of the Act provides
       that a court must apply the statutory guidelines “unless the court finds that a deviation from the
       guidelines is appropriate after considering the best interest of the child in light of the evidence,
       including, but not limited to,” the financial resources and needs of the child; the financial
       resources and needs of the custodial parent; the standard of living the child would have enjoyed
       had the marriage not been dissolved; the physical, mental, and emotional needs of the child; the
       educational needs of the child; and the financial resources and needs of the noncustodial
       parent. 750 ILCS 5/505(a)(2) (West 2012).
¶ 35       “Child support is an obligation the parents owe for the benefit of the child ***. Even in
       cases involving joint custody, when a primary physical custodian has been designated, the trial
       court has an obligation to award child support or explain its downward deviation from the
       statutory guidelines.” In re Marriage of Deem, 328 Ill. App. 3d 453, 458 (2002). The statutory
       guidelines create a rebuttable presumption that child support in the guideline amount is
       appropriate. Parks v. Romans, 187 Ill. App. 3d 445, 448 (1989). The proponent of a deviation
       bears the burden of producing evidence that compelling reasons exist to justify the deviation.
       Roper v. Johns, 345 Ill. App. 3d 1127, 1130 (2004).
¶ 36       The trial court ordered Rajaie to pay the guideline amount of 32% of his net monthly
       income of $5,219.68 that is, $1,670.30 per month. Rajaie’s primary contention for asserting
       grounds for a deviation from the statutory guidelines is that he and Kimberly have comparable
       annual salaries and that while the case was pending, Kimberly used funds from Alphabet Acres
       and the home equity line of credit. He asserts that In re Marriage of Lee, 246 Ill. App. 3d 628
       (1993), held that “[w]here the individual incomes of both parents are more than sufficient to
       provide for the reasonable needs for the parties’ children, taking into account the life-style the
       children would have absent the dissolution, the court is justified in setting a figure below the
       guideline amount.” Id. at 643. But that case involved a high-income noncustodial parent,
       earning in excess of $450,000, and the court determined that the child’s needs were adequately
       met by a monthly amount below the statutory guidelines and noted child support payments are
       not intended to be windfalls. Here, the parties were not high-income individuals, and the
       similar yearly income is not a compelling reason to deviate from the statutory guidelines.
       Further, there is no evidence Rajaie requested that the trial court deviate from the guidelines in
       setting support. A trial court does not abuse its discretion by failing to deviate sua sponte from
       the presumptively appropriate guidelines. Roper, 345 Ill. App. 3d at 1130.

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¶ 37       We also find no error in the trial court’s order requiring Rajaie to pay $30,386.03 for child
       support arrears retroactive to March 2009. It is within the trial court’s discretion to award or
       not to award child support on a retroactive basis. In re Marriage of Sawicki, 346 Ill. App. 3d
       1107, 1119 (2004). Kimberly requested custody of the parties’ minor children and payment of
       child support in her petition for dissolution filed on April 1, 2009. The trial court awarded
       custody of the three minor children to Kimberly and in April 2011, entered an order dissolving
       the marriage and reserving all other issues in the case, including child support. After those
       issues were resolved, it was within the trial court’s discretion to order Rajaie to pay child
       support retroactively for the 18 months before he started to pay in 2010.
¶ 38       Later, in its September 18 order addressing the parties’ cross-motions for reconsideration,
       the court ordered Rajaie to also pay child support on the monthly income he earned from the
       1410 S. Barrington property. With regard to 1410 S. Barrington, Rajaie acknowledges he
       derived monthly income from that rental commercial property but contends he should be
       permitted to deduct losses from some of his other noncommercial rental properties. As noted,
       “net income” is defined as the total of all income from all sources, minus certain statutory
       deductions. 750 ILCS 5/505(a)(3) (West 2012). Losses from rental real estate are not included
       as one of the statutory deductions. See In re Marriage of Pylawka, 277 Ill. App. 3d 728, 732
       (1996) (trial court correctly refused to deduct from obligor’s net income any passive activity
       investment loss arising from his ownership of apartment building). Further, in his brief, Rajaie
       fails to cite to any pages of the record that show losses. Because there is no basis for deducting
       losses Rajaie may have incurred in his ownership of other rental properties and no evidence of
       losses, the trial court’s order requiring him to pay child support on that income was not an
       abuse of discretion.
¶ 39       We affirm the circuit court.

¶ 40      Affirmed.




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