In re Abu-Hashim

• Decision Date: 25 June 2014
• Docket Number: No. 1–12–2997.,1–12–2997.
• Parties: In re MARRIAGE OF KIMBERLY ABU–HASHIM, Petitioner–Appellee, and Rajaie Abu–Hashim, Respondent–Appellant.
• Court: United States Appellate Court of Illinois

14 N.E.3d 524

In re MARRIAGE OF KIMBERLY ABU–HASHIM, Petitioner–Appellee and Rajaie Abu–Hashim, Respondent–Appellant.

No. 1–12–2997.

Appellate Court of Illinois, First District, Third Division.

June 25, 2014.

Jan R. Kowalski, of Chicago, for appellant.

Gail M. O'Connor, of O'Connor Family Law, PC, of Chicago, for appellee.

OPINION

Justice HYMAN

delivered the judgment of the court, with 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 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 re-paying 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 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 spilt 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, 76 Ill.Dec. 823, 459 N.E.2d 958 (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, 76 Ill.Dec. 823, 459 N.E.2d 958. 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, 76 Ill.Dec. 823, 459 N.E.2d 958. 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, 76 Ill.Dec. 823, 459 N.E.2d 958.

¶ 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...