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Teresa Kic v. William Bianucci

December 13, 2011

TERESA KIC,
PLAINTIFF-APPELLANT,
v.
WILLIAM BIANUCCI,
DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Cook County No. 06 D6 30547 Honorable Edward A. Arce, Judge Presiding.

The opinion of the court was delivered by: Justice Cunningham

JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion Presiding Justice Quinn and Justice Harris concurred in the judgment.

OPINION

¶ 1 This appeal arises from a February 9, 2010 order entered by the circuit court of Cook County, which denied plaintiff-appellant Teresa Kic's (Teresa) motion to reconsider the judgment for dissolution of marriage. On appeal, Teresa argues that: (1) the trial court erred in denying her motion for substitution of judge; (2) the trial court erred in reopening discovery after trial began and allowing the defendant-appellee, William Bianucci (William), to amend his pleadings; (3) the trial court improperly allowed William additional time to respond to a request to admit facts; (4) the trial court erred by failing to name a residential parent and failed to enter an order of child support, education expenses and extracurricular activities for the minor child; (5) the trial court improperly intervened and advised William, who was acting pro se, to testify; (6) the trial court's ruling allowing William a year to refinance the marital residence was inequitable and improper; (7) the trial court improperly penalized Teresa for the same financial matter more than once; (8) the trial court erred in failing to incorporate a list of marital property subject to distribution in its order; and (9) the trial court erred in failing to find a specific date regarding the breakdown of the marriage and its finding of dissipation of marital assets by Teresa was against the manifest weight of the evidence. In response, William argues that: (1) Teresa has forfeited four of the issues she raises on appeal for failing to include them in her motion to reconsider; (2) Teresa has forfeited eight of the issues she raises on appeal due to their deficiency under Illinois Supreme Court Rule 341(h)(7) (eff. July 1, 2008); and (3) the trial court properly denied Teresa's motion for substitution of judge. For the following reasons, we affirm the judgment of the circuit court of Cook County.

¶ 2 BACKGROUND

¶ 3 Teresa and William were married on August 29, 1987, and the marriage was registered in Cook County, Illinois. In 1998, the parties acquired the marital residence located at 11740 Shaker Ct., Orland Park, IL (Shaker Ct. home), through tenancy by the entirety. The parties obtained a mortgage at the time the residence was purchased, and after it was refinanced the home was encumbered by a mortgage of approximately $500,000. The home was further encumbered by a home equity line of credit with a balance of approximately $99,632. Between 1998 and 1999, the parties acquired a commercial building located at 525 Burnham St., Calumet City, IL (State Farm office), through joint tenancy. The State Farm office contains five total rental units, one of which is used for Teresa's sole proprietorship as an insurance agent for State Farm Insurance Company. Teresa rents the other four units in the building, generating income from the property which amounted to $16,104 in 2007. The State Farm office was encumbered by a mortgage of $53,187.67 as of October 2008.

¶ 4 On May 13, 2003, Teresa and William's only child, Robert Bianucci (Robert) was born. In December 2003, William was convicted 1 count of bank fraud and 12 counts of false statements to a bank. William was sentenced to 46 months' imprisonment and 60 months' supervised release and ordered to pay restitution in the sum of $3,418,854. The restitution lien against William also attached to both the Shaker Ct. home and the State Farm office. On June 29, 2004,William executed a durable power of attorney to Teresa which gave her the authority to control all his finances. William was incarcerated on June 30, 2004, and released on March 5, 2007. On July 12, 2005, Teresa formed a limited liability company called Bigsy Properties L.L.C. (Bigsy Properties). In July 2005, Bigsy Properties borrowed $400,000 from Teresa's mother, Jane Kic (Jane). These funds were used to purchase vacant lots pursuant to a business agreement between Bigsy Properties and R&D Development. On January 31, 2006, William revoked his power of attorney.

¶ 5 On May 18, 2006, Teresa filed a petition for dissolution of marriage. William, while he was still incarcerated, filed an answer to the petition for dissolution of marriage on June 26, 2006, acting pro se. William also filed a motion for a temporary stay of all proceedings until he was no longer incarcerated and able to return to Chicago. On the same day, Teresa filed a motion for a default prove-up. On September 13, 2006, William was granted leave to file an appearance.

¶ 6 On December 12, 2006, Teresa was awarded temporary sole custody of Robert. William was awarded visitation and ordered to pay child support in the amount of $70 per week. Teresa was allowed possession of the Shaker Ct. home from Sunday through Thursday night. William was allowed possession of the residence from Thursday night through Sunday. Teresa was also ordered to pay all utilities of the home and monthly installments of the home equity line of credit. William was ordered to pay the monthly mortgage payments and real estate taxes. On March 5, 2007, William was released from prison.

¶ 7 On August 7, 2007, counsel for Teresa filed a motion for leave to withdraw as attorney of record. The motion was granted on August 16, 2007. On May 9, 2008, Teresa, appearing pro se, filed a petition for legal separation. On January 10, 2008, the parties entered into a mediation agreement that established a joint custody agreement by which they each agreed to share residential responsibilities in caring for Robert. On May 1, 2008, Judge Naomi Schuster (Judge Schuster) set the matter for pretrial on June 18, 2008. Later that week, Judge Schuster was reassigned to a different court and Judge Edward Arce (Judge Arce) was assigned to handle the matter. On June 18, 2008, both parties appeared pro se and presented motions before Judge Arce. The matter was then set for trial. The trial date was continued and at a status hearing Teresa presented a motion for substitution of judge. On July 30, 2008, William presented an emergency motion that sought payment by Teresa for the real estate taxes; contribution to the monthly expenses of the marital residence; and to assert a claim dissipation of marital assets by Teresa.*fn1 On August 14, 2008, the court granted Teresa's emergency motion for leave to file an additional appearance by counsel. On September 30, 2008, Teresa's motion for substitution of judge was denied.

¶ 8 The trial commenced on November 18, 2008 in the circuit court of Cook County. Teresa appeared with counsel. William appeared pro se during the entirety of the trial. On January 26, 2009, William presented (but did not file) a motion claiming marital economic misconduct including but not limited to the dissipation of marital assets by Teresa. Teresa filed a motion to strike these additional allegations but the trial court allowed discovery on these issues.*fn2 After the parties exchanged discovery, William was allowed an extension beyond 28 days to respond to Teresa's request to admit facts. During trial on June 25, 2009, as William was preparing to rest his case in chief, the trial court asked him whether he planned to testify. The trial court then told William that without testimony from him there was nothing to consider with respect to William's case. William then gave his testimony in narrative form.

¶ 9 On September 8, 2009, the trial court entered the judgment for dissolution of marriage. The extensive order ruled on all of the contested issues including custody, maintenance, distribution of real property, distribution of retirement accounts, dissipation, and division of martial property. Most notably, the trial court reserved the issue of child support, granted William sole possession of the Shaker Ct. home with a year to refinance and remove Teresa's name from any attached obligations, and found that Teresa had dissipated the marital estate in the sum of $310,964.03.*fn3 On October 7, 2009, Teresa filed a motion to reconsider the court's ruling of September 8, 2009. Her motion alleged: (1) that the reopening of discovery and allowing William to assert a claim of economic misconduct in January 2009 after trial began was a manifest error of law; (2) that it was a manifest error of law to grant William an extension of time to answer Teresa's request to admit facts; (3) that allowing William a year to refinance the Shaker Ct. home is a manifest error of law; (4) that the trial court failed to specify the date of irretrievable breakdown of the marriage for the dissipation claim; and (5) that the finding of dissipation of marital assets by Teresa is against the manifest weight of the evidence. Teresa also sought modification of the judgment for dissolution in the amount that William was awarded regarding her State Farm mutual fund retirement account. On October 29, 2009, William filed a response to Teresa's motion to reconsider and for modification of the judgment for dissolution.

¶ 10 On February 9, 2010, the trial court ruled that Teresa's motion to reconsider was granted regarding William's award from the State Farm mutual fund, but that the remaining issues were denied. William's motion for modification was also denied. On February 25, 2010, Teresa filed a notice of appeal.

¶ 11 ANALYSIS

¶ 12 As a preliminary matter before we consider Teresa's arguments, we must determine if this court has jurisdiction. William argues that Teresa forfeited four of the issues*fn4 raised in her brief because she failed to include them in her motion to reconsider in the trial court. William presents a compelling argument that Teresa may not raise issues for the first time on appeal. William points out that Teresa raised the issues in a legal memorandum instead of in a motion. He argues that no exception to the forfeiture rule should apply to Teresa. In general, William's argument is correct as applied to jury cases. Specifically, a party ...


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