Iqbal v. Counter

• Decision Date: 06 May 2014
• Docket Number: No. 2–13–1306.,2–13–1306.
• Citation: 2014 IL App (2d) 131306,381 Ill.Dec. 638,11 N.E.3d 1
• Parties: In re MARRIAGE OF Uzma IQBAL, Petitioner and Counterrespondent–Appellee, and Mohammad Vajahath KHAN, Respondent and Counterpetitioner–Appellant.
• Court: United States Appellate Court of Illinois

2014 IL App (2d) 131306

11 N.E.3d 1

381 Ill.Dec. 638

In re MARRIAGE OF Uzma IQBAL, Petitioner and Counterrespondent–Appellee, and Mohammad Vajahath KHAN, Respondent and Counterpetitioner–Appellant.

No. 2–13–1306.

Appellate Court of Illinois,

Second District.

May 6, 2014.

Omar Jaleel, of Jaleel Law P.C., of Oak Brook, for appellant.

Michael G. DiDomenico and Sean M. Hamann, both of Lake Toback, of Chicago, for appellee.

OPINION

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

¶ 1 The respondent, Mohammad Khan, appeals from certain rulings the trial court entered during the proceedings dissolving Mohammad's marriage to the petitioner, Uzma Iqbal. We affirm.

¶ 2 I. BACKGROUND

¶ 3 We recount only the basic facts of the marriage here. The remaining facts pertinent to this appeal will be discussed as applicable to each issue.

¶ 4 The parties married in 2002 in Canada. They had three children: Ahmad, born September 3, 2002; Habeeb, born January 6, 2005; and Fatimah, born April 27, 2008. After living in Illinois for a few years, the family lived in Saudi Arabia from 2005 to 2010, where they had a comfortable lifestyle with a 6,000–square–foot house and maid service.

¶ 5 Mohammad has degrees in commerce and information technology management from institutions in India. His most recent job in his field was in Saudi Arabia as an information technology project manager. According to Mohammad, since returning to Illinois in March 2013, he has been unable to find a job in his field. At the time of trial, he had been working part-time on a farm for about a month, earning $150 per week. He was also receiving financial support from his brother. Uzma has a degree in dental surgery from a college in India, but that degree did not allow her to practice dentistry in the United States without further education and examinations. At the time of trial, she was taking classes in public health and was nearing her certification in system analytical software.

¶ 6 When the parties married, Mohammad owned a home at 925 Iroquois Avenue in Naperville. Since 2002, it has been maintained using marital funds, and its value at the time of trial was approximately $350,000. The mortgage was paid off in 2007 and there are no encumbrances on the house. The house was rented to tenants when the family went to Saudi Arabia, and it remained rented (generating a monthly rent of about $1,900) at the time of trial.

¶ 7 When Uzma and the children returned to Illinois in October 2010, there were still tenants in the house, and the family moved into a condominium at 1160 Spring Garden Circle in Naperville that was owned by Mohammad's sister and her husband. A few months later, Mohammad also returned to Illinois and joined his family in the condominium. He decided, over Uzma's objections, to purchase the condominium from his sister and brother-in-law for $97,000, but changed his mind almost immediately and sold it back to them four days later. In the interim, however, Mohammad's brother-in-law had used the money from the sale in his own home. Accordingly, Mohammad's sister and brother-in-law returned only $45,000 cash in two installments. However, they also asserted that the parties owed them $5,000 in repair costs and $39,260 in rent, association fees, and utilities that accrued while the parties' family was living in the condominium.

¶ 8 In May 2011, Mohammad filed a petition for temporary custody of the children, alleging that he feared that Uzma planned to take them out of Illinois. That case (No. 11–F–284) was later consolidated with the divorce case initiated by Uzma, who filed a petition for dissolution in July 2011. Mohammad filed a counterpetition for dissolution in June 2012.

¶ 9 In September 2011, Mohammad accepted a job offer in Saudi Arabia, where he remained until March 2013. During this 18–month period, the children lived with Uzma in Naperville. Mohammad visited them during periodic trips to Illinois.

¶ 10 In August 2013, Mohammad filed a motion asking the trial court to declare a postnuptial agreement (PNA) signed by the parties to be valid and enforceable. The trial court ruled that the PNA was unenforceable because it violated public policy and was so one-sided and “draconian” that it was substantively unconscionable.

¶ 11 In September 2013, a five-day trial on all issues commenced. On November 21, 2013, the trial court entered a judgment for dissolution of marriage. Uzma received sole custody of the children and the majority of the marital property (about 65%), and Mohammad was made responsible for all of the marital debts (over 80% of which was the debt allegedly owed to his sister and brother-in-law in connection with the family's use of the condominium). The trial court stated that a disproportionate division of the marital property and debts was warranted because, although the children required additional child support and Uzma deserved maintenance, Mohammad's low income prevented it from ordering higher support payments. Mohammad filed a timely notice of appeal.

¶ 12 II. ANALYSIS

¶ 13 On appeal, Mohammad contends that the trial court erred in: ruling that the PNA was unenforceable; denying his request to appoint a custody evaluator pursuant to section 604.5 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/604.5 (West 2012)); and awarding Uzma sole custody of the children, maintenance, and a disproportionate share of the marital estate.

¶ 14 Uzma's response brief includes a request that this court strike Mohammad's opening brief. She argues that it violates Illinois Supreme Court Rule 341 (eff. Mar. 16, 2007), because his statement of facts contains errors and improper argument. Although this court has discretion to strike a brief and dismiss an appeal where a party has failed to comply with Rule 341, doing so is a harsh sanction and is appropriate only when the procedural violations interfere with our review. Carter v. Carter, 2012 IL App (1st) 110885, ¶ 12. Here, Mohammad's violations of Rule 341 are not so severe as to preclude our review of the issues, and we therefore decline to strike his brief. We disregard any improper argument and any facts not supported by the record.

¶ 15 A. Jurisdiction

¶ 16 Before addressing the merits of this appeal, we must examine whether we have jurisdiction over the appeal. In re Marriage of Link, 362 Ill.App.3d 191, 192, 298 Ill.Dec. 355, 839 N.E.2d 678 (2005).

¶ 17 Uzma argues that we lack jurisdiction. She asserts that the judgment for dissolution was not a final order from which an appeal could be taken because, although the trial court found that she was “entitled to receive maintenance,” it “reserved” the amount of such maintenance. The trial court did not indicate that it planned to revisit the issue of maintenance at any particular time. Uzma argues that, because no amount of maintenance was set, the judgment for dissolution was not immediately enforceable in that respect, and so the judgment was not final.

¶ 18 Uzma is correct that, in general, an order must be final in order to be appealable. EMC Mortgage Corp. v. Kemp, 2012 IL 113419, ¶ 9, 367 Ill.Dec. 474, 982 N.E.2d 152. “A judgment is final if it determines the litigation on the merits so that, if affirmed, the only thing remaining is to proceed with execution of the judgment.” Lamar Whiteco Outdoor Corp. v. City of West Chicago, 395 Ill.App.3d 501, 504–05, 334 Ill.Dec. 246, 916 N.E.2d 886 (2009).

¶ 19 Nevertheless, we reject Uzma's argument that the judgment for dissolution was unenforceable and nonfinal. Instead, we view the trial court's act of “reserving” the amount of maintenance, without stating that it planned to set that amount at any particular time, as equivalent to setting the amount of maintenance at zero until further order of court. Such an award is immediately enforceable and appealable. Id.

¶ 20 This court has long held that a trial court's “reservation” of jurisdiction over an issue in a domestic relations order does not necessarily indicate that the order is nonfinal. See In re Marriage of Wojcik, 362 Ill.App.3d 144, 167–68, 297 Ill.Dec. 795, 838 N.E.2d 282 (2005) (discussing the “reserved-jurisdiction” approach to maintenance awards); In re Marriage of Marriott, 264 Ill.App.3d 23, 41, 201 Ill.Dec. 709, 636 N.E.2d 1141 (1994); In re Marriage of Bingham, 181 Ill.App.3d 966, 971, 130 Ill.Dec. 829, 537 N.E.2d 1158 (1989). Rather, trial courts often refer to “reserving” an issue when they wish to indicate that, although the issue requires no further adjudication at the moment, they wish to preserve the ability to reopen it in the future if circumstances warrant. Thus, the order must be examined as a whole to determine the trial court's intent in using the term “reserved.” Where an order demonstrates that the trial court has not yet made a final determination on an issue, the order is nonfinal (and thus nonappealable). See In re Marriage of Jensen, 2013 IL App (4th) 120355, ¶ 23, 370 Ill.Dec. 746, 988 N.E.2d 1102. On the other hand, where the trial court has determined the issue and merely intends to preserve its ability to enter a modification in the future if necessary, the order is final and appealable. See In re Marriage of Cannon, 112 Ill.2d 552, 553–54, 98 Ill.Dec. 368, 494 N.E.2d 490 (1986) (dissolution judgment was final and appealable despite trial court's statement that it intended its maintenance award to “ ‘be reviewable no later than the expiration of two years and sooner if the circumstances of the parties change significantly’ ”); In re Marriage of Bothe, 309 Ill.App.3d 352, 355, 242 Ill.Dec. 812, 722 N.E.2d 301 (1999) (trial court's order abating maintenance until further order of court was final and reviewable); Bingham, 181 Ill.App.3d at 971, 130 Ill.Dec. 829, 537 N.E.2d 1158 (judgment for dissolution that awarded wife no maintenance but reserved the issue for two years was final and appealable).

¶ 21 In support of her argument that we lack...