In re Dann

• Citation: 2012 IL App (2d) 100343,973 N.E.2d 498,362 Ill.Dec. 398
• Decision Date: 20 July 2012
• Docket Number: No. 2–10–0343.,2–10–0343.
• Parties: In re Marriage of Russell DANN, Petitioner and Counterrespondent–Appellee, and Lori DANN, Respondent and Counterpetitioner–Appellant.
• Court: United States Appellate Court of Illinois

2012 IL App (2d) 100,343

973 N.E.2d 498

362 Ill.Dec. 398

In re Marriage of Russell DANN, Petitioner and Counterrespondent–Appellee, and Lori DANN, Respondent and Counterpetitioner–Appellant.

No. 2–10–0343.

Appellate Court of Illinois, Second District.

July 20, 2012.

Joel S. Ostrow, Law Offices of Joel Ostrow, Bannockburn, for appellant.

Michael J. Berger, Rebecca S. Berlin, Berger Schatz, Chicago, Jennifer J. Gibson, Zukowski, Rogers, Flood & McArdle, Crystal Lake, for appellee.

OPINION

Justice BIRKETT delivered the judgment of the court, with opinion.

[362 Ill.Dec. 400]¶ 1 Respondent, Lori Dann, appeals from the order of the circuit court dissolving her marriage to petitioner, Russell Dann. First, she challenges the trial court's summary judgment ruling that certain assets were part of Russell's nonmarital estate. Second, she challenges multiple aspects of the trial court's dissolution decree that followed an evidentiary hearing on the dissolution petitions. The rulings she challenges pertain to property division, reimbursement between the marital and nonmarital estates, spousal maintenance, and contribution to attorney fees. We hold that the trial court erred in granting summary judgment, because issues of material fact exist as to the classification of the assets in question. Because the property classification issues on which summary judgment was erroneously granted affect the issue of property division, and by extension might impact the issues of maintenance and contribution to attorney fees, we decline to decide those issues. We do, however, reach certain reimbursement issues raised by Lori and affirm the trial court's disposition of them. For the following reasons, we affirm in part and reverse in part and remand this case for further proceedings.

¶ 2 I. PRELIMINARY COMMENTS

¶ 3 We note at the outset our concerns with the manner in which the record on appeal was assembled. The reports of proceedings contain multiple, misleadingly designated “excerpts” of proceedings that are in fact duplicates of full transcriptions that appear nearby in the reports. There is also a period between July 11, 2008, and January 23, 2009, for which there are no reports of proceedings even though the corresponding common-law record indicates that there were proceedings on the record during that period. The January 23 transcript is of a hearing on the summary judgment motion as it resumed after the noon break. Apparently, Russell had concluded his arguments in the morning, but there is no transcript of the morning session. Since we sit in review of the decision below, it is important for us to know what arguments were before the trial court for decision. Relatedly, though the briefs reference a hearing at which the trial court announced its decision to grant summary judgment, the record contains no transcript of that hearing. Although our review of a summary judgment ruling is de novo( Ries v. City of Chicago, 242 Ill.2d 205, 216, 351 Ill.Dec. 135, 950 N.E.2d 631 (2011)), it is our preference to have before us whatever rationale the trial court offered in deciding the motion for summary judgment.

¶ 4 Moreover, two of the multiple boxes comprising the record on appeal contain several loose documents that bear no file stamps, exhibit markings, or other indications that they were made part of the trial record below. Also lying loose in the boxes is an exhibit list dated December 28, 2009, for an unidentified proceeding. Possiblythe other documents were the received exhibits, but we cannot verify as the documents have no exhibit stickers.

¶ 5 Two of these documents warrant specific mention. The first is a transcript of a January 9, 2009, deposition of John Barsella.¹ Russell asserts in his brief that “[t]he record prepared does not include John Barsella's January 6, 2009 deposition.” We are not sure how to take this remark. Either Russell has overlooked the deposition in the box, or he has noticed it but nonetheless believes that it is not properly part of the record. Russell notes that he has included a copy of the January 6, 2009, deposition in the appendix to his response brief. Our review confirms that the document Russell has attached is identical to the document in the box. Nonetheless, we will not consider the document for the purpose for which Russell asks us to consider it, i.e., to judge the propriety of the summary judgment ruling. Our review extends only to those materials submitted to the trial court for consideration in deciding the initial summary judgment motion or the motion to reconsider. See McCullough v. Gallaher & Speck, 254 Ill.App.3d 941, 947, 194 Ill.Dec. 86, 627 N.E.2d 202 (1993). Barsella's January 6, 2009, deposition was not attached to any of the parties' submissions at the summary judgment stage. Russell asserts that Barsella's January 6, 2009, deposition was received as an exhibit at the January 23, 2009, hearing on the summary judgment motion. At that hearing (for which, as noted, we have only a partial transcript), the parties did reference both a deposition of Russell and a deposition of Barsella, and Russell's counsel did remark that he would give the court “copies of the depositions.” We cannot verify, however, that the document in the box is the same document, or a copy thereof, that the parties referenced at the January 23 hearing and that the court received. (Notably, there is another deposition of Barsella, dated November 11, 2008, attached to a response by Lori to one of Russell's summary judgment motions.) Illinois Supreme Court Rule 329 (eff. Jan. 1, 2006) allows the parties to supplement the record by stipulation, but the parties have tendered no stipulation concerning Barsella's January 6, 2009, deposition. We decline to consider the deposition for purposes of reviewing the summary judgment ruling. ² As we explain below, however, the deposition would not have changed our opinion that summary judgment was granted in error.

¶ 6 Another of these loose documents in the boxes is captioned as “Lori's Response to Russell Dann's Amendment to Amended Motion for Summary Judgment and Lori's Motion to Continue December 15, 2008, Hearing.” This document, which bears no exhibit sticker or file stamp, appears to be identical in all respects to a document with the same caption appearing in a bound volume of the common-law record, except for one difference: while both versions reference an attached group exhibit “N,” consisting of “gift letters” from Armand Dann, Russell's father, to Russell and Lori, the version in the boxes attaches nine letters while the version in the bound volume attaches only one letter. We will not considerthose additional eight letters, because we cannot verify that the version that the trial court considered in rendering its decision was in fact the unbound version in the boxes. See McCullough, 254 Ill.App.3d at 947, 194 Ill.Dec. 86, 627 N.E.2d 202.³

¶ 7 The boxes contain multiple other documents that bear no exhibit stickers or file stamps. For instance, there are several printouts from online research services. Another document appears to consist of an attorney's notes in preparation for arguing the summary judgment issues. When documents of uncertain origin appear in the appellate record, we are rightfully concerned.

¶ 8 The briefing, too, has shortcomings that we must mention. The statement of facts in the appellant's brief “shall contain the facts necessary to an understanding of the case” (Ill. S.Ct. R. 341(h)(6) (eff. July 1, 2008)). Lori, however, devotes most of her statement of facts to an exhaustive, nearly line-by-line recitation of the filings in the summary judgment proceedings. Lori's aim in supplying such a detailed history is, evidently, to demonstrate that Russell was evasive in presenting his theory for summary judgment, but she also should have included a condensed statement of facts to assist us in resolving the substantive issues on appeal that are independent of Russell's alleged procedural mischief. Many of the facts necessary for our decision do not appear until the argument section.

¶ 9 As for Russell, we are surprised by his apparent attempt to incorporate his summary judgment filings into his appellate brief. Russell states that, rather than “laboriously detail all the transactions” that occurred after Russell liquidated the assets whose classification is at issue in this appeal, he “respectfully stands on the allegations and supporting documents in his Amended Motion for Summary Judgment as well as deposition testimony regarding the transactions occurring after receipt of the proceeds.” If this material is germane, Russell ought to have included it in his appellate brief, even if in summary form (and if that were not feasible, he could have moved us to relax the length restrictions on his brief). A party on appeal may not adopt by mere reference the arguments of his trial pleading.⁴ See Wilson v. Department of Professional Regulation, 344 Ill.App.3d 897, 907 n. 4, 279 Ill.Dec. 744, 801 N.E.2d 36 (2003); Stenger v. Germanos, 265 Ill.App.3d 942, 952–53, 203 Ill.Dec. 140, 639 N.E.2d 179 (1994); Gruse v. Belline, 138 Ill.App.3d 689, 698, 93 Ill.Dec. 297, 486 N.E.2d 398 (1985).

¶ 10 We now proceed to the substance of the appeal.

¶ 11 The parties were married on December 22, 1995. Two children issued from the marriage: Frank, born August 25, 1997, and Joseph, born January 26, 1999. On November 16, 2006, Russell filed his petition for dissolution of marriage. On January 25, 2007, Lori filed her counterpetition for dissolution.

¶ 12 II. SUMMARY JUDGMENT

¶ 13 A. Background

¶ 14 On February 28, 2008, Russell filed a motion for summary judgment, triggering a flood of filings that did not subside until March 23, 2009, when Lori moved for reconsideration of the trial court's March 13, 2009, summary judgment ruling. Russell amended the motion on June 23, 2008, and again on August 13, 2008. In a somewhat unusual procedure, the trial court...