In re Marriage of Tabassum and Younis

• Decision Date: 07 December 2007
• Docket Number: No. 2-06-0843.,2-06-0843.
• Citation: 377 Ill. App.3d 761,881 N.E.2d 396
• Parties: In re MARRLAGE OF Ozma TABASSUM, Petitioner-Appellant, and Javed YOUNIS, Respondent-Appellee.
• Court: United States Appellate Court of Illinois

881 N.E.2d 396

377 Ill. App.3d 761

In re MARRLAGE OF Ozma TABASSUM, Petitioner-Appellant, and

Javed YOUNIS, Respondent-Appellee.

No. 2-06-0843.

Appellate Court of Illinois, Second District.

December 7, 2007.

Rehearing Denied January 17, 2008.

Jonathan G. Anderson, Schaumburg, Robin M. Zandri, Christopher J. Mauer, Robert J. Bozsko, Anderson & Associates, P.C., Wheaton, for Ozma Tabassum.

Natalie M. Stec, Wolfe & Stec, Ltd., Woodridge, for Javed Younis.

Justice BOWMAN delivered the opinion of the court:

The marriage of petitioner, Ozma Tabassum, and respondent, Javed Younis, was dissolved on July 27, 2006. On appeal, petitioner argues that the trial court erred by: (1) declaring invalid a post-marital agreement that designated the marital home as petitioner's nonmarital property in the event of a divorce; (2) limiting its specific finding of dissipation to $5,000; and (3) partially denying petitioner's request for attorney fees. We affirm in part, reverse in part, and remand.

I. BACKGROUND

The parties were married in Quebec, Canada, on August 27, 2000. Their daughter, Azra, was born on December 15, 2002. The couple purchased a home in Addison, Illinois, on January 30, 2004. In April 2004, petitioner learned that respondent was having an extramarital affair with a coworker. On May 26, 2004, petitioner went to Canada with Azra to visit petitioner's parents, and they returned on June 13, 2004, about one week later than originally planned. While petitioner was in Canada, she and respondent negotiated the terms of the postmarital agreement, and they signed the agreement on June 15, 2004.

The postmarital agreement provides in relevant part:

"WHEREAS, the Husband has committed acts of infidelity in violation of the bonds of matrimony; and

WHEREAS, because of the Husband's conduct, the Wife has considered filing and prosecuting a Petition for Dissolution of Marriage[;] and

WHEREAS, the Husband does not want a dissolution of marriage and wants to take steps to reconcile with the Wife and attempt to preserve the marriage; and

WHEREAS, the Wife likewise would prefer to reconcile and preserve the marriage, but due to the conduct of the Husband together with the Wife's dependence on the Husband while married to the husband, the Wife is reluctant to commit to the reconciliation process unless she feels confident about the Husband's commitment, and unless she receives assurances from the Husband that in the event of an eventual dissolution of the parties' marriage, she will be receiving the Addison Property in addition to whatever else she would be, entitled to receive upon entry of a dissolution in the absence of this Post-[M]arital Agreement; and

WHEREAS, based on the circumstances, the Husband agrees that the Wife should receive the Addison Property in addition to whatever else she would be entitled to receive upon entry of a dissolution of marriage or judgment for legal separation in the absence of this Post-Marital Agreement; and

WHEREAS, the parties agree that the Addison Property shall at this time remain in the parties' joint names, but agree that in the event of an eventual legal separation, dissolution of marriage or divorce, the Wife shall receive the Addison Property as her sole and exclusive, property. The parties further agree that the distribution of the Addison Property is to be in addition to whatever the Wife would otherwise receive as a result of any such legal separation, dissolution of marriage or divorce. Therefore, such distribution shall not be considered a distribution of marital property to the Wife and shall not be credited as such; and shall not be considered in determining the Wife's assets, income or expenses for purposes of determining the percentage or portion of the marital estate that either party is to receive * * *."

Later, the postmarital agreement specifies that if either party files for a legal separation or dissolution, the house "shall be considered the non-marital property of the Wife * * * and upon entry of a Judgment, * * * the Addison Property shall be awarded to the Wife as her sole, nonmarital property." The postmarital agreement recites that each party was represented by counsel; believed that the terms of the agreement were fair and reasonable; was sufficiently aware of the other's assets and liabilities; and expressly waived any right to further disclosure of assets and liabilities. It also states that the house had a fair market value of $450,000 and an outstanding mortgage of about $350,000. The agreement further contains several pages regarding mortgage payments, liens, and related issues.

Petitioner filed for a dissolution of marriage on November 23, 2004. A trial took place on May 4 and 5, 2006, at which respondent testified as follows. He earned his bachelor's degree in 1991 and had been working since that time for Trans American Medical Company (TAMSCO), a medical instrument company owned by his mother. He was involved in sales and general management. Respondent's W-2 forms reflected that he earned the following amounts from TAMSCO: $40,032 in 2000; $40,350.60 in 2001; $43,333.20 in 2002; $49,833.18 in 2003; $45,499.88 in 2004; and $51,999.84 in 2005. These amounts represented his entire income for each year, other than a cash bonus that he usually received during the first or second quarter of the following year. The amount of the bonus was determined through discussions between respondent and his parents. His bonuses averaged a few thousand dollars, and he did not remember any bonuses larger than $8,000 or $9,000. TAMSCO also paid all of the expenses of respondent's Jaguar.

Respondent himself owned a company called American Pioneer Instruments, Inc. (American Pioneer). The parties stipulated that it was incorporated on May 11, 2000; and involuntarily dissolved on October 1, 2005, for failure to pay franchise taxes. Respondent; testified that he had never filed tax returns for the company. American Pioneer still had a bank account with about $200 in it. The latest bank statement he had was from April 29, 2005. Respondent later produced a statement from April 26, 2006. It showed that the account had an ending balance of $269.09 and that a check for $6,000 had been written on April 18, 2006, to New Hampshire Forge, Inc. (NHF). Respondent testified that he issued the check, pursuant to an invoice, to pay for supplies that NHF had sent. Respondent admitted that the invoice indicated that it was for TAMSCO, but he testified that this was a mistake and that it should have stated American Pioneer. TAMSCO did not buy Americanmade products, while American Pioneer did.

The parties stipulated that respondent's personal bank account showed wire transfer deposits of $17,470 on March 25, 2003, and $17,703 on March 7, 2004. Respondent testified that they came from a company in Mexico. The payments were either for TAMSCO or one of its suppliers in Pakistan, but the money went through respondent's personal account because the client wanted to avoid paying additional Mexican customs taxes.

Respondent admitted that he and petitioner had made changes to the postmarital agreement before it was finalized and that an attorney represented him in connection with the document. At that time, he was not aware of petitioner's assets, but he did not subsequently learn anything new. When respondent first agreed to sign the postmarital agreement, petitioner was in Canada with Azra. Respondent was feeling afraid, panicky, depressed, vulnerable, and uncertain. He feared that he and petitioner would get into an international custody battle and that it would be months or years before he saw Azra again. Petitioner said that she did not want to come back to the United States unless he signed the contract. Respondent admitted that during his deposition, he testified:

"[The] last conversation when I refused to sigh the post-nup, she said to me, okay, I am going to file for divorce. I am going to get a quick dissolution of the marriage. And from that, I assumed that she would still have the baby in Canada. She didn't come out and say, you know, I am going to keep the baby up here. But she had it. She had the baby with her. She was late coming back to the United States. And I, you know,—I think that anyone would have assumed that she was going to keep the baby up there. And it would have taken me months legally to bring the baby back to America."

At trial, respondent testified that basically petitioner overstayed her trip in Canada and was refusing to come back to the United States unless he signed the postmarital agreement. Respondent did not think that the agreement was fair. At the time that he signed it, he was still concerned that petitioner would "take off" with Azra, and he was feeling very vulnerable. Petitioner got a job three or four months after she signed the document, and she filed for divorce one or two months after that. Respondent was surprised by the divorce filing because petitioner had promised to stay with him.

On November 1, 2004, respondent wrote a $5,000 check from the parties' joint account to Mehmood Drea. Respondent wanted to give Mehmood the check because respondent had "hurt him" by having a relationship with Mehmood's wife, Meyada Drea. The person who was supposed to deliver the check to Mehmood's house instead gave it to Meyada. Meyada either deposited the check into her account or cashed it. Respondent did not consult with petitioner before writing the check. After petitioner returned from Canada, Meyada called the house only two times. Meyada also sent only one e-mail, which respondent printed out with the intent of discussing it with petitioner. Respondent attended marital and sex counseling with petitioner, and it was petitioner's decision to end the counseling:

Respondent testified that petitioner was working prior to Azra's birth but was laid off during her maternity leave. She started working again around September or October 2004. Also around ...