Opinion
No. 2-12-1392
2013-10-16
In re MARRIAGE OF BINOY KAMAL, Petitioner-Appellant, and NISHA CHANDRAN, Respondent-Appellee.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court
of McHenry County.
No. 10-DV-785
Honorable
Gerald M. Zopp, Jr.,
Judge, Presiding.
JUSTICE delivered the judgment of the court.
Justices Hudson and Birkett concurred in the judgment.
ORDER
¶ 1 Held: The trial court did not abuse its discretion in distributing the marital estate, declining to deviate from the statutory child support guidelines, and rejecting the motion for a credit toward unallocated support payments. Affirmed. ¶ 2 In 2010, Binoy Kamal and Nisha Chandran filed cross-petitions for dissolution of their marriage. After a bench trial, on September 20, 2012, the court entered a dissolution judgment. Kamal's motion to reconsider was denied on November 19, 2012. Kamal appeals, challenging the court's decisions: (1) awarding a larger portion of the marital assets to Chandran; (2) failing to deviate from the statutory child support guidelines; and (3) failing, in distributing the marital estate, to credit Kamal for his continued payments of temporary, unallocated family support and payment of all marital obligations for a period after Chandran had obtained full-time employment. For the following reasons, we affirm.
Specifically, Chandran filed the initial dissolution petition, which would suggest she should be considered the "petitioner" in this cause. However, it appears that Kamal first filed a motion related to the children, which the court, after the dissolution case was opened, combined into the dissolution case number. As Kamal filed the first motion against Chandran, the captions in the case continued to represent Kamal as the "plaintiff" (petitioner), even though Chandran was the initial dissolution petitioner. For simplicity, and because cross-petitions were filed in any event, we leave Kamal as the plaintiff- petitioner (and appellant) and Chandran as the defendant-respondent (and appellee).
¶ 3 I. BACKGROUND
¶ 4 The parties, both physicians, were married on September 5, 1999, and two children were born to the couple: Arvin (born April 5, 2006) and Nithin (born March 2, 2010). In 2010, the parties cross-petitioned for dissolution of their marriage. They subsequently entered into a joint parenting agreement, and the court approved and entered it. As a result, the parties were awarded joint custody of the children, with Chandran named as the primary residential custodian. The agreement further provided Kamal with parenting time on alternating weeks, from Thursday morning until the following Tuesday evening (approximately six days and five nights). ¶ 5 On January 12, 2011, the court ordered Kamal to pay all expenses associated with the parties' two real properties. In addition, the court ordered Kamal to pay to Chandran $2,000 per month in unallocated support. Further, the order provided that the parties would equally split daycare expenses until further presentation of evidence. ¶ 6 In November 2011, Chandran was ordered to keep a record of her employment applications and to disclose any written employment offers. According to Kamal: (1) in January 2012, Chandran received an offer and executed a contract to work for St. Anthony Medical Center in Rockford as a pediatrician; (2) in March 2012, an officer of the healthcare system signed the contract; and (3) in May 2012, Chandran began to work full time at the hospital. According to Chandran, her employment remained contingent on her passing the pediatric board exams, which she had previously twice failed. In July 2012, Kamal moved to modify the temporary, unallocated support order. ¶ 7 After a bench trial, the court, on September 20, 2012, entered a dissolution judgment. In its order, the court noted that both parties are physicians and are employed full time by St. Anthony Medical Center. It found that both parties are "high income earners." No maintenance was awarded to either party. ¶ 8 The court rejected Kamal's request for a child support deviation. After considering past earning history, variations of income, and Kamal's earnings that year, the court found that Kamal's annual gross income was $212,000 from employment and $18,897 from other sources, totaling about $230,897. The court found that Kamal's net annual income totaled $150,546.50. As the parties have two children, the court ordered Kamal to pay, pursuant to section 505 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/505(a)(1) (West 2010)), 28% of his net income for child support, which it calculated as $42,993.02 per year or about $826.79 per week. ¶ 9 The court found that the parties owned two real estate parcels. First, a condominium located at 814 W. University Lane in Chicago, which had a fair market value of $170,000. The condo was encumbered by two mortgages totaling approximately $163,311.76 and had a net equity of $6,688.24. Nevertheless, given that the parties rent the condominium for $1,500 per month, but the monthly expenses thereon, including the mortgage payments and monthly assessments, totaled approximately $2,600, the court found "[t]here is a net loss of approximately $1,100 per month[,] plus any maintenance and repairs. Given the monthly loss, if it is annualized, this property has a negative equity." Chandran was awarded the condominium and the financial obligations with respect thereto, except that Kamal was ordered to pay $10,000 toward the balance on the home equity line of credit. ¶ 10 The second property at issue was the marital residence located at 7495 Bonnie Drive in Lakewood, which had a fair market value of $660,000. A mortgage on the home of $682,221.74 remained outstanding, and there also existed delinquent real estate taxes of approximately $23,000 (from 2009, payable in 2010). The court noted that, since March 2010, Kamal had satisfied the mortgage payments on the residence in the amount of $4,178 monthly, as well as paying certain taxes. The court found that the marital residence had a negative net equity of around $22,221.74, plus any unpaid real estate taxes. Kamal was awarded the marital residence and the financial obligations with respect thereto. ¶ 11 The court found that Chandran owns three non-marital real estate parcels, each with a fair market value of between $45,000 and $58,000. The parcels, consisting of cooperative apartments, were unencumbered by any mortgages and were being rented. The rents have been collected by Chandran's father. For the years 2008 to 2011, Chandran's gross annual income from the apartments was $24,187. Adding the claimed depreciation and other unspecified deductions to Chandran's net income listed on tax returns, the court found that Chandran's average net yearly income from the rentals was $10,172. The non-marital properties, and "all debt applicable" thereto, was assigned to Chandran. ¶ 12 As to Kamal, the court found that he owns or has an interest in a real estate parcel with a building thereon in India. The court assigned that non-marital property to Kamal, but noted that the marital estate contributed $10,000 thereto, which should be returned to the marital estate and/or divided between the parties. Accordingly, the court ordered that the Indian property was exclusively Kamal's, but that, to offset the marital estate's contribution thereto, he must pay Chandran $5,000. ¶ 13 The parties owned two vehicles: a 2010 BMW X5 (Chandran's) and a 2006 BMW 7 series (Kamal's). Chandran's vehicle was worth $40,312, with an outstanding balance of $41,842.23. Kamal's vehicle was worth $21,483 and had no outstanding balance. The parties stipulated that each would be awarded his or her own vehicle and would remain responsible for any debt thereon. ¶ 14 The court found that Kamal owned a retirement fund through St. Anthony with an approximate value of $123,000. In addition, the parties stipulated that Kamal also had an unspecified vested interest in a defined benefit retirement plan through St. Anthony, although Kamal testified that the plan was discontinued. The court found both retirement plans constituted marital property. The court initially ordered that the funds be divided with Kamal receiving 40% and Chandran receiving 60%, but, on November 19, 2012, amended the order to award Kamal the greater, 60% portion. ¶ 15 The court found that Chandran owned a 401(k) retirement plan totaling approximately $52,197. In addition, she had an interest in a state retirement plan worth approximately $17,571, and an IRA worth $6,400, but she had cashed them in during the dissolution proceedings. The court noted that it considered those withdrawn funds to be part of Chandran's share of the marital estate and factored them into its division. Chandran was awarded the entire value of her 401(k) account. The court noted that, to the extent they exist, the parties' IRA's were of only approximate values and were offset against each other such that they were each to keep their own. ¶ 16 The court found that Kamal had a life insurance policy valued at $4,966.24. Further, it found that each party had accumulated credit card debt during the separation. Chandran had approximately $43,640 in credit card debt, while Kamal had a total debt of $26,552. In addition, Kamal was liable on an attorney-fee petition brought by his former counsel in the amount of $32,000. The court also noted the unpaid real estate taxes and a claim of debt owed to Chandran's father in the form of notes and rent (for which it ordered Chandran solely responsible). "All of this, as the court has indicated before, goes to a lifestyle, given their circumstances, which is beyond their financial means. The evidence shows that they seem to outspend each other in a spiteful manner rather than look at the reality of their situation. Each should be responsible for their own debts except as otherwise allocated by this Court." The court further noted that, to balance the debt, Kamal should pay Chandran $10,000. ¶ 17 In addition to the foregoing, the court ordered Kamal to pay Chandran, in addition to child support, $200 per week for future daycare expenses. "This is his fair share of the daycare cost [Chandran] needs in order to assure her ability to work." The court further held, with respect to Chandran's request for daycare costs: (1) Kamal must pay $5,847.50 for daycare costs from August 10, 2011, to July 18, 2012; but that (2) from July 18, 2012, to the entry of dissolution, Kamal's payments were to be "reduced" to $200 per week (such that he would potentially be entitled to either a credit or an additional money judgment). ¶ 18 Finally, the court noted that the parties had reached an agreement regarding the division of personal property and household furnishings and were to divide the property in accordance with an attached exhibit. The court denied maintenance, contribution to attorney fees, and the parties' respective claims of dissipation. ¶ 19 On October 4, 2012, on the court's own motion, it clarified the order. On October 15, 2012, Kamal moved the court to reconsider. On November 19, 2012, with a few exceptions, the court denied Kamal's motion to reconsider. On December 19, 2012, Kamal filed his notice of appeal.
¶ 20 II. ANALYSIS
¶ 21 A. Motion to Strike
¶ 22 We address first Chandran's argument that Kamal's appellate brief should be stricken for failing to comply with Illinois Supreme Court Rule 341(h) (eff. Feb. 6, 2013), in that it fails to cite to pertinent authority, the record, or the applicable standards of review. Chandran asserts that Kamal's arguments require this court to review the specific facts of the case in conjunction with the Act; however, Kamal failed in his brief to provide sufficient facts demonstrating how the trial court erred. ¶ 23 In reply, Kamal notes that:
"this appeal deals only with the court's decision after making its findings in light of [the] testimony. [Kamal] does not dispute the judge's findings regarding the value of assets in the marital estate, the accumulated debt, or the incomes of the parties. The only issue before this court is whether the trial court committed an abuse of discretion when it inequitably divided¶ 24 He continues, "in other words, [Kamal] has agreed to accept the trial court's findings of fact. [He] is not appealing those findings, nor the adequacy of the evidence presented at trial which would support or refute such evidence." ¶ 25 Kamal's statement of facts primarily cites to the findings in the dissolution judgment. It does not summarize the testimony or entire record. However, as Kamal does not dispute the trial court's factual findings, this court declines to strike his brief for failing to present a comprehensive factual recitation. We will, instead, disregard and find forfeited legal arguments that are unsupported or that implicitly challenge the trial court's factual findings without citation to the record. See In re Marriage of Petrik, 2012 IL App (2d) 110495, ¶ 38 (failure to comply with Rule 341 can result in forfeiture of the issue).
the marital assets and debts, when it failed to deviate from the statutory child support amount, and when it failed to adjust its division of assets and debts as a result of overpayment of temporary unallocated support by [Kamal] for more than four months after [Chandran] obtained a very high-paying full-time job."
¶ 26 B. Standards of Review
¶ 27 On appeal, Kamal's challenges concern the trial court's orders distributing the marital estate and failing to deviate from the statutory child support guidelines. We review the court's property distribution and child support decisions for an abuse of discretion. See In re Marriage of Berberet, 2012 IL App (4th) 110749, ¶ 37 (child support); In re Marriage of Vancura, 356 Ill. App. 3d 200, 205 (2005) (property distribution). While the abuse-of-discretion standard is the most deferential standard of review next to no review at all (In re D.T., 212 Ill. 2d 347, 356 (2004)), it does not equate to no review at all. A court abuses its discretion when: (1) its findings are arbitrary or fanciful (Blum v. Koster, 235 Ill. 2d 21, 36 (2009)); or where (2) no reasonable person would agree with its position (In re Marriage of Sanfratello, 393 Ill. App. 3d 641, 646 (2009)).
¶ 28 C. Overall Distribution of Marital Estate
¶ 29 Kamal argues first that the court's distribution of the marital estate was inequitable. He asserts that both parties are relatively young and have the potential to acquire assets in the future, and he points out that the trial court made a specific finding that both parties are high income earners. As such, Kamal argues that the court erred where it failed to provide any justification for a substantially unequal distribution of assets. Further, he argues that the court's division of assets and liabilities failed to account for the value of Chandran's non-marital estate, namely the three non-marital real estate parcels awarded to her. Kamal asserts that, including her non-marital assets, Chandran was awarded more than $260,000 in net assets (or more than 85% of total assets), while he was awarded only $47,000 in assets. Kamal argues that he should have been awarded "more than 50% of the marital estate" and concludes that, where the judgment fails to reflect what effect, if any, Chandran's significant non-marital assets had on the court's division of property, the court abused its discretion. We disagree. ¶ 30 Although section 503(d)(3) of the Act (750 ILCS 5/503(d)(3) (West 2010)) requires the court to consider the value of the property awarded to each spouse, Kamal cites no authority requiring the judgment to specifically state what effect, if any, a party's non-marital assets had on the court's ultimate property distribution. Kamal's suggestion that the court did not consider the value of Chandran's non-marital assets in its property distribution is belied by the very fact that, in the judgment, the court detailed those properties and made specific findings regarding the values thereof. Accordingly, the court clearly considered those assets in rendering its judgment. Finally, we note that, in announcing its ruling rejecting this argument in Kamal's motion to reconsider, the court stated that it had considered the extent of Chandran's non-marital estate in dividing the assets and debts. ¶ 31 As to Kamal's argument that he should have been awarded "more than 50%" of the assets, we note that a trial court is not bound to make an equal division of marital property and may, after considering all relevant facts, distribute the property in whatever proportion it deems equitable. Head v. Head, 168 Ill. App. 3d 697, 704 (1988). In the context of asset distribution, "[t]he determination of an abuse of discretion does not turn upon whether the reviewing court agrees with the trial court's distribution of assets, but whether the trial court acted arbitrarily without the employment of conscientious judgment." Id. ¶ 32 Here, Kamal has not shown that the trial court acted arbitrarily and without employing conscientious judgment. Although Chandran received a higher percentage of the total assets for which a value was determined (including her non-marital property), Kamal received a higher percentage of assets for which the value remained uncertain, such as the entire value of the non-marital Indian property and 60% of the value of his defined benefit plan. (We also note that Kamal inflates the value of the condominium Chandran was awarded, listing its value as constituting a $6,688 asset, when, in fact, the court found that it had negative equity). Kamal's citations to In re Marriage of Calisoff, 176 Ill. App. 3d 721, 726 (1988), and In re Marriage of Landfield, 209 Ill. App. 3d 678, 689 (1991), are of no import. In Calisoff, the appellate court ruled that a disproportionate distribution in the wife's favor required reversal, where the wife received 82% of the marital estate, including the marital home, as well as monthly maintenance, attorney fees, and virtually none of the marital debt. Calisoff 176 Ill. App. 3d at 726. In Landfield, an award of 62% of the marital estate to the wife was affirmed where the husband received a "significant amount" of non-marital property, i.e., around $1,567,750. Landfield, 209 Ill. App. 3d at 689. Here, although Chandran remains the primary residential parent, she was not awarded the marital residence, maintenance, nor contribution toward her attorney fees. Moreover, Chandran remains responsible for most of her own credit card and automobile debt. Further, Kamal provides no citation to the record to support his assertion that both parties have the potential to acquire substantial assets in the future, and he ignores evidence in the record reflecting that Chandran's employment security was uncertain, as her position was contingent on her passing the pediatric board exams, which she had twice failed. All of these factors fall into section 503(d)'s required considerations and distinguish this case from Calisoff and Landfield. In short, we cannot conclude that the trial court abused its discretion in its property division.
¶ 33 D. Child Support Deviation and Obligation
¶ 34 Respondent argues next that the trial court erred where it ordered that he pay child support pursuant to the guidelines established by section 505(a) of the Act (750 ILCS 5/505(a) (West 2010)). (Again, the court ordered child support payment in the amount of $826.79 per week (approximately $3,307.16 monthly)). He contends that the 28% child support award constitutes a windfall for Chandran, when viewed in light of his: (1) parenting time with the children 6 out of every 14 days; (2) "equivalent income" to Chandran; and (3) monthly obligations (including mortgage, real estate taxes, utilities, payments towards Chandran's credit card debt ($10,000 total), and daycare expenses ($200 weekly above support)). ¶ 35 Both parties cite cases supporting their positions on this issue. However, the question is necessarily case-specific and must be assessed in light of section 505's presumption that the specified percentage of a noncustodial parent's income represents an appropriate support award. 750 ILCS 5/505(a) (West 2010); In re Marriage of Demattia, 302 Ill. App. 3d 390, 393 (1999). The presumption cannot be negated absent compelling evidence showing a reason for a deviation. Id. ¶ 36 To support his argument, Kamal points this court to exhibits he attached to his motion to reconsider before the trial court, namely "Finplan" net income worksheets with a "splitscreen comparison" of the parties' net spendable incomes after an award of child support in the statutory amount. He claims these worksheets reflect that Chandran will have $176,000 in spendable income for her household, while he will have $109,000 in spendable income. Kamal also points to financial affidavits reflecting that he has: (1) a monthly mortgage of $4,178; (2) utility expenses of $555; and (3) real estate taxes around $1,453 per month. Kamal then adds these monthly expenses together ($6,186) multiplies by 12 ($74,232) and deducts from the "Finplan" income figure of $109,000, to assert that he will have only $34,780 per year left over. On top of that, he adds $100 per week toward Chandran's credit card debt and $200 per week toward daycare to conclude that he will ultimately have only $1,598 per month to pay his own debt and discretionary purchases. Doing similar calculations (factoring in Chandran's monthly rent of $2,000, no utilities "except for telephone" (no amount specified), his contributions toward her debt and daycare, and deducting them from the "Finplan" figure), Kamal concludes that Chandran will have $12,233 per month to pay her own debt and discretionary purchases. We reject Kamal's argument. ¶ 37 First, we decline to consider the "Finplan" worksheets upon which Kamal's calculations depend. They were not admitted at trial. ¶ 38 Second, as previously noted, Kamal purports to accept the trial court's findings and asks this court to determine only whether the court abused its discretion based on those findings. However, most of the foregoing calculations concern figures not found in the judgment. If, for purposes of this argument, Kamal wishes us to extend our review to facts beyond those summarized by the trial court, we note that his references to the record fail to present a comprehensive view of the issue. For example, Kamal does not challenge the court's findings that his gross income is $230,897, with a net income of $150,546.50. The court heard testimony that, during the pendency of proceedings, Kamal traveled, both with and without the children, to places including Wisconsin, Arizona, and Florida. The court noted that, during the proceedings, Kamal managed to pay for both the marital home and University Lane property, as well as daycare expenses and $2,000 per month in unallocated support. Although the judgment imposes a specific child support amount, Kamal is no longer paying unallocated support, no longer paying for the University Lane property, and is paying less in daycare expenses. ¶ 39 In contrast, although the trial court found that both parties are high-income earners, it notably made no specific finding regarding Chandran's salary. In fact, the court heard evidence that Chandran's current position earned her a gross salary of $180,000 (plus a $20,000 bonus to apply to malpractice insurance), which is lower than Kamal's. Further, the court heard evidence that Chandran's employment was only recently obtained and that the security of her employment was contingent on her passing the pediatric board exam, which she had twice failed. Chandran retains the University Lane property with its monthly shortfall of $1,200, as well as credit card debt of around $33,000. She loses the unallocated support and receives no maintenance or contribution toward attorney fees. Chandran is the residential parent of two children, is paying more than half of the children's daycare expenses, and, as noted, has a lower income and less job security. As such, we cannot find the court's decision finding no compelling evidence warranting a deviation constitutes an abuse of discretion. ¶ 40 We briefly note that, in Demattia, the father made arguments similar to Kamal's here. In rejecting those arguments, the court noted that a downward deviation must be supported by evidence; where the court determined that both parties earned approximately the same salary, that the wife (as primary custodial parent) was the party responsible for maintaining the children's standard of living, and there was no evidence that the wife was receiving any windfall from the child support payment, the evidence simply did not support a deviation from the statutory child support guidelines. Id. Here, as in Demattia, it falls to Chandran, as primary residential parent, to maintain the children's standard of living, which the judgment reflects formerly consisted of luxury homes and cars and "at least" three vacations per year. ¶ 41 In sum, Kamal bears the burden of establishing compelling evidence to rebut the presumption that child support, as delineated in the Act, is appropriate. He has failed to do so. Kamal has not established that Chandran is receiving a windfall or that he will be financially destitute if forced to pay in accordance with the guidelines. The trial court did not err in declining to deviate from the guidelines.
¶ 42 E. Failure to Offset Petitioner's Unallocated Support
¶ 43 Kamal's final argument is that the court erred where it failed to consider that, in accordance with the court's January 12, 2011 order, he continued to pay monthly unallocated support to Chandran even after she obtained full-time employment earning $180,000 per year. He asserts that his motion to modify this temporary support, filed July 2, 2012, was not ruled upon, except to reduce his daycare expense obligations, something that he did not request. He argues that the court failed to rule on whether, given Chandran's employment: (1) his unallocated temporary support should have been reduced; (2) Chandran should have been required to contribute to the household expenses; and (3) Chandran's obligations to contribute should be awarded retroactively. Kamal asks that we remand and instruct the court to grant him an offset for the support payments he made from June 2012 through September 2012, after Chandran became employed. ¶ 44 First, we note that Kamal's argument is somewhat vague and largely unsupported. See Petrik, 2012 IL App (2d) 110495, at ¶ 39 (finding forfeited for violating Rule 341 a father's arguments where, when he did cite authority it was not relevant or, if it was relevant, was not presented in support of coherent legal arguments). In addition, Kamal completely fails to mention that the trial court rejected these arguments in detail when ruling on Kamal's motion to reconsider. There, the court noted that Kamal's motion to modify, filed in July 2012, was ruled on in the sense that in September, two months later, a final judgment was entered, which addressed all of Kamal's financial obligations, effectively modifying and terminating the temporary order entered January 2011. ¶ 45 Kamal notes that the court claimed to have granted his motion to modify by reducing his daycare expense obligation, but that was not something he requested in the motion to modify. To the extent Kamal complains that the court, without request, reduced one of his financial obligations, the complaint is not well-taken. To the extent Kamal simply asserts that the judgment does not appear to have addressed the relief specifically sought by the motion to modify, we disagree. As noted by the trial court, Kamal's motion was to modify the unallocated support order: the court's final judgment did so by eliminating any maintenance component of the obligation, imposing child support based on the guidelines (which was actually more than he had been paying in unallocated support), and by decreasing the amount he was required to pay toward daycare expenses. ¶ 46 In other words, one way or another, the motion to modify was addressed. To the extent it was denied in that no credit was issued, our review of the record reflects that the court noted, when denying Kamal's motion to reconsider, that it had considered the fact that, even if Chandran had obtained employment, both parties nevertheless had a continuing duty to support the children. Therefore, it rejected Kamal's assertion that he should be credited for paying support after Chandran became employed. ¶ 47 Kamal's only citation, to In re Marriage of Crouch, 88 Ill. App. 3d 426 (1980), is inapposite. There, the court considered the husband's temporary support obligations as an offset to the wife's claim that she was entitled to compensation for improving the husband's non-marital property. Crouch, 88 Ill. App. 3d at 432-33. Kamal asserts that Crouch therefore stands for the proposition that temporary obligations should be considered when reaching a final judgment and, here, the court did not do so. Instead, he contends, he was essentially forced to pay "temporary maintenance" to Chandran even after she started earning $180,000 per year. We disagree. Even if Crouch (in which, we note, the support obligation did not contain a child-support component) stands for the proposition that temporary obligations should be considered when reaching a final judgment, Kamal fails to show that the trial court here did not consider those obligations. Again, because Kamal remained responsible for providing for his children, even after Chandran became employed, the court considered and rejected Kamal's argument that a credit was appropriate. As the court found that Kamal's statutory child support obligation was more than the $2,000 he had previously paid in unallocated support, it implicitly found a credit to Kamal inappropriate. ¶ 48 We simply cannot find the court abused its discretion to the extent that it ruled on or granted Kamal's motion to modify support by virtue of entering the dissolution judgment and resolving all obligations therein and, to the extent that Kamal's motion requested a credit, rejecting that request.
¶ 49 III. CONCLUSION
¶ 50 For the foregoing reasons, the judgment of the circuit court of McHenry County is affirmed. ¶ 51 Affirmed.