In re Dragoizulicic

2021 IL App (1st) 191732

195 N.E.3d 695

457 Ill.Dec. 559

IN RE MARRIAGE OF Priscilla M. DRAGOIZULICIC, Petitioner-Appellee, AND Nermin Nikola ZULICIC, Respondent-Appellant.

No. 1-19-1732

Appellate Court of Illinois, First District, SIXTH DIVISION.

Filed March 5, 2021

Robert C. Sheridan, of Law Offices of Beverly A. Pekala, P.C., of Chicago, for appellant.

Annette M. Fernholz, of Law Offices of Annette M. Fernholz, P.C., of Chicago, for appellee.

PRESIDING JUSTICE MIKVA delivered the judgment of the court, with opinion.

¶ 1 Petitioner Priscilla Dragoi-Zulicic and respondent Nermin Zulicic divorced on September 8, 2017. They had no children. The judgment of dissolution of their marriage included an order for Priscilla to pay Nermin maintenance and delegated payment of the judgment for unpaid condominium assessment fees to Nermin.

¶ 2 Nermin failed to pay off any of the judgment on the condominium fees, and, on May 29, 2019, Priscilla filed a motion to abate her maintenance obligation to Nermin and to use those funds to pay off an agreed judgment against her for the unpaid condominium fees. The circuit court, finding the motion was more properly categorized as a motion to enforce the judgment for dissolution, ordered Priscilla to use her maintenance payments to pay off the condominium assessment judgment.

¶ 3 Nermin now appeals, arguing that the circuit court erred in (1) granting Priscilla's motion and awarding her an unlawful offset, (2) denying his emergency motion to dismiss Priscilla's motion to abate maintenance payments, and (3) failing to require that Priscilla file a financial affidavit pursuant to Cook County Circuit Court Rule 13.3.1(b) or respond to discovery requests regarding her financial circumstances. For the following reasons, we affirm the decision of the circuit court.

¶ 4 I. BACKGROUND

¶ 5 Priscilla and Nermin were married on October 19, 2003. On July 1, 2015, Priscilla filed a petition for dissolution of marriage after moving out of the marital home, which was a condominium. As of September 2015, neither party was paying their condominium assessment fees to the Malibu East Condominium Association (Malibu East). On July 12, 2016, the circuit court ordered Nermin to pay the monthly assessment fee.

¶ 6 On September 8, 2017, the circuit court awarded a judgment for dissolution of the marriage. The circuit court determined that Nermin was entitled to maintenance payments from Priscilla in the amount of $1490 per month for 84 months. The court split the parties’ retirement assets equally. As Nermin had failed to pay the assessment fees to Malibu East pursuant to the court's prior order, the court delegated payment of the judgment that had been entered for those fees against both parties to him, stating, "Nermin *** shall otherwise indemnify and hold Priscilla *** harmless for any other amounts related to the [j]udgment." Priscilla moved to reconsider the dissolution judgment, and on March 2, 2018, the court entered an order reducing the amount of maintenance to $756 per month for the same duration.

¶ 7 On May 29, 2019, Priscilla filed a motion to abate maintenance. She alleged that on May 15, 2019, an agreed judgment order had been entered against her for $24,858.88, plus court costs, in favor of Malibu East for the unpaid assessment fees. The May 15, 2019, judgment order, which had been entered in a 2018 municipal division case, was attached to Priscilla's motion. The order made clear that Priscilla and Nermin were jointly and severally liable for the judgment.

¶ 8 In her May 29, 2019, motion, Priscilla argued that Nermin's failure to pay the condominium judgment left her vulnerable to collection efforts by Malibu East. Priscilla argued that the May 15, 2019, agreed judgment against her was a substantial change in her financial circumstances and requested that her maintenance obligation be abated while she paid the debt that had been delegated to Nermin. Because the debt was greater than the amount that would be paid in maintenance—which was only $21,948.38 at the time of her motion—Priscilla also requested the dissolution judgment be modified to give her sole possession of the funds in the parties’ retirement accounts, which would make up for some, but not all, of the difference between what she would have paid in maintenance and would have to pay to satisfy the agreed judgment against her.

¶ 9 On July 16, 2019, Nermin filed a motion to enforce Cook County Circuit Court Rule 13.3.1(b), arguing that Priscilla failed to file a financial affidavit or proof of income with her motion to abate maintenance, as the rule required. He also sought leave to serve Priscilla with discovery regarding her financial situation. On July 24, 2019, Nermin filed an emergency motion to dismiss Priscilla's motion to abate maintenance pursuant to section 2-615 of the Code of Civil Procedure (Code) ( 735 ILCS 5/2-615 (West 2018) ), arguing that the motion to abate maintenance was "completely devoid of any facts to support Priscilla's allegations" that she experienced a substantial change in financial circumstances. Nermin again argued that Priscilla failed to comply with Cook County Circuit Court Rule 13.3.1(b) because she did not file a financial affidavit within the requisite 30 days.

¶ 10 During the hearing on the motions, the court determined that Priscilla's motion to abate maintenance was more properly categorized as a motion to enforce the judgment, stating "[i]t's a Motion to Enforce, to enforce him to pay what he was supposed to pay on the judgment." The circuit court ordered Priscilla's maintenance payments to be redirected from Nermin to the agreed judgment that had been entered against Priscilla, "such that Priscilla shall make mainten[ance] payment directly toward the judgment." The court ordered that the $756 per month payment was not otherwise modified and that, should Priscilla pay off the judgment against her for assessments prior to the termination of the maintenance, the remaining payments would again be made to Nermin. However, if the judgment against her was "not satisfied by the mainten[ance] payments prior to the termination of mainten[ance]," Priscilla could "seek reimbursement for amounts paid in excess of the maintenance obligat[ion]." The circuit court denied Priscilla's request for attorney fees and to redistribute the retirement accounts. The court also denied Nermin's motion to enforce Cook County Circuit Court Rule 13.3.1, found that no discovery was necessary for its order, and held that Nermin's emergency motion to dismiss would serve as his response to Priscilla's motion.

¶ 11 Nermin now appeals.

¶ 12 II. JURISDICTION

¶ 13 The circuit court entered its order resolving Priscilla's postdissolution motion on July 24, 2019. An order resolving a postdissolution claim, where no other claims remain outstanding, is final and appealable. In re Custody of Purdy , 112 Ill. 2d 1, 5, 96 Ill.Dec. 73, 490 N.E.2d 1278 (1986). Nermin filed his timely notice of appeal on August 22, 2019. Accordingly, this court has jurisdiction pursuant to Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994) and Rule 303 (eff. July 1, 2017), governing appeals from final judgments entered by the circuit court in civil cases.

¶ 14 III. ANALYSIS

¶ 15 On appeal, Nermin argues the circuit court erred by (1) granting Priscilla's motion to abate maintenance and awarding her an offset with respect to her maintenance payments, (2) denying his emergency motion to dismiss Priscilla's motion to abate maintenance payments, and (3) failing to require that Priscilla file a financial affidavit pursuant to Cook County Circuit Court Rule 13.3.1(b) and respond to discovery requests regarding her financial circumstances.

¶ 16 Nermin's arguments on appeal rest in large part on the premise that Priscilla was required—but failed—to sufficiently demonstrate a substantial change in circumstances in her motion to abate maintenance. As Nermin points out, section 510 of the Illinois Marriage and Dissolution of Marriage Act (Dissolution Act) expressly provides that "[a]n order for maintenance may be modified or terminated only upon a showing of a substantial change in circumstances." 750 ILCS 5/510(a-5) (West 2018). This is the basis for Nermin's argument that the court erred in both denying his emergency motion to dismiss and granting Priscilla's motion. Nermin's argument that the court erred in denying him discovery similarly relies extensively on this notion. He states that "[b]y denying [his] Motion for Enforcement, which also requested leave to conduct additional discovery, [he] was denied the opportunity to obtain discovery from [Priscilla] regarding whether she was experiencing a substantial change in circumstances."

¶ 17 Nermin is correct that Priscilla's motion was titled a "motion to abate maintenance." However, our supreme court has made clear that, "when analyzing a party's request for relief, courts should look to what the pleading contains, not what it is called." In re Haley D. , 2011 IL 110886, ¶ 67, 355 Ill.Dec. 375, 959 N.E.2d 1108. The circuit court determined that Priscilla's motion was more properly viewed as a motion to enforce Nermin's obligations under the dissolution judgment. Nermin does not argue on appeal that the court erred in this characterization of Priscilla's motion. Indeed, he makes no mention of this fact at all in his opening brief. In his reply brief, he states simply that her "trial motion was not to enforce the dissolution judgment, nor was it brought pursuant to section 511 of [the Dissolution Act]." See 750 ILCS 5/511 (West 2016). Nermin, having failed to properly raise or support any argument that the circuit court erred in its characterization of Priscilla's motion, has forfeited his right to do so. See 1010 Lake Shore Ass'n v. Deutsche Bank National Trust Co. , 2015 IL 118372, ¶ 14, 398 Ill.Dec. 95, 43 N.E.3d 1005 (arguments not raised on appeal are forfeited); Franciscan Communities, Inc. v. Hamer , 2012 IL App (2d)...