In re Marriage of Guiher

NOTICE
This Order was filed under 2022 IL App (4th) 210322-U FILED
Supreme Court Rule 23 and is April 15, 2022
not precedent except in the NO. 4-21-0322 Carla Bender
limited circumstances allowed 4th Distiict Appellate
under Rule 23(e)(l). IN THE APPELLATE COURT Comt, IL

OF ILLINOIS

FOURTH DISTRICT

In re MARRIAGE OF ) Appeal from the
CARLA GUIHER, ) Circuit Court of
Petitioner-Appellee and ) Woodford County
Cross-Appellant, ) No. 18D53
and )
GARY THOMSEN, ) Honorable
Respondent-Appellant and ) Michael L. Stroh,
Cross-Appellee. ) Judge Presiding.

JUSTICE DeARMOND delivered the judgment of the comi.
Presiding Justice Knecht and Justice Steigmann conclmed in the judgment.

ORDER

,i 1 Held: The appellate comi affamed in part and reversed in pa.ii, holding the trial comi
did not abuse its discretion by denying respondent's motion to reconsider and
reopen proofs, but the trial court's decisions finding respondent' s nonmarital
assets lost their identity when collllllingled with mai·ital assets and then denying
respondent reimbursement for nonmarital contributions to the marital estate stood
against the manifest weight of the evidence; we remand for the trial comi to
evaluate petitioner's requests for maintenance and attorney fees in light of the
altered prope1iy division.

Respondent, Gary Thomsen, appeals the trial court' s judgment denying his

posttrial motion to reconsider and reopen proofs, arguing he "should have been pe1mitted to

present actual documentation and evidence" regarding a disputed Edward Jones individual

retirement account (IRA). Alternatively, he contends the trial comi's judgment of dissolution

erroneously denied him reimbursement for nonmarital contributions he made to the IRA.

Petitioner, Carla Guiher, cross-appeals, arguing the trial comi's judgment denying her requests
for maintenance and contribution toward attorney fees amounted to an abuse of discretion. We

partially agree with Gary, holding the trial court erred in classifying the entire IRA as marital

property because Gary’s nonmarital contributions retained their identity. Alternatively, the trial

court erred in denying Gary reimbursement for those contributions. We affirm in part and reverse

in part and remand for further proceedings consistent with this order.

¶3 I. BACKGROUND

¶4 Gary and Carla married on December 9, 2006, in Johnson County, Kansas. Over

the span of their marriage, the couple primarily resided in Kansas and Missouri, though they

periodically resided in Woodford County, Illinois, in a home owned by Carla’s family’s trust.

The couple separated in May 2017, and Gary remained in the marital residence in Lake Ozark,

Missouri, while Carla remained in the Woodford County, Illinois, home. Carla filed a petition for

dissolution of marriage on June 28, 2018. During the prolonged discovery period, the parties

traded various filings, including multiple motions to compel, fought over custody of one of their

three dogs, and disputed maintenance and attorney fees for Carla. In two separate agreed orders,

the trial court ordered Gary to pay Carla maintenance totaling $1825.65 every two weeks and

ordered Gary to pay $5000 toward Carla’s attorney fees.

¶5 The matter eventually culminated in a one-day trial on June 22, 2020. Carla

testified she was 67 years old. She recounted her marital, educational, and employment histories.

During her marriage to Gary, she worked as a counselor and a teacher. She worked as a

counselor in her own private practice (Counseling Clinic, Inc.) until 2010. She was an adjunct

professor at Johnson County Community College in Overland Park, Kansas, from 2001 to 2010.

Carla’s last job was as a part-time substitute teacher at Metamora Grade School in Metamora,

Illinois, from 2013 to 2017 (her highest earnings as a substitute teacher was $497/year). Carla

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testified she was not currently looking for work, though she could substitute teach if she wanted

when school resumed. She previously inquired about transitioning her volunteer work at Mended

Hearts, an animal-assisted therapy program, into paid employment as a counselor, but she had

not done it because she would have to recertify her license, pay 11 years’ worth of dues, and

complete 220 hours’ continuing education.

¶6 Carla testified she was in good health, despite having scoliosis and asthma. She

noted her conditions did not prevent her from caring for her two dogs. Carla testified she and

Gary enjoyed a “very comfortable lifestyle” during the marriage. She noted they traveled only

occasionally, but they “did a lot of dining out and movies, concerts. We really enjoyed going to

concerts in Kansas City.” Carla testified she had not been able to maintain that lifestyle since

separating from Gary, stating, “I’ve just really scaled back on every aspect of what I’ve done

***.” Carla specifically noted: “I don’t travel much anymore. *** I don’t eat out much. I

certainly don’t shop recreationally the way that I used to.”

¶7 Carla testified to her monthly expenses and her need for maintenance from Gary

since she had no other income. She testified she had already paid her attorney $21,000 in fees

and still owed on the balance. Carla noted she had not applied for Social Security benefits

because she planned to collect on her first husband’s earnings, but she could not do that until her

divorce from Gary was finalized. Carla did not say she would definitely apply for Social Security

benefits, but her “intention is to certainly look into it.”

¶8 Gary testified he was 68 years old and lived in the marital residence. He testified

he was a doctor and recounted his work history. Gary noted he was currently employed as a

telemedicine physician through Barton & Associates, averaging 15 hours per week and earning

$80 per hour. He also received Social Security benefits. Gary testified that before Carla filed for

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divorce, he had planned on retiring in fall 2020, but he had continued working because of the

divorce. He estimated his total monthly income averaged $6666. He testified he paid Carla the

court-ordered maintenance and paid $7800 of Carla’s attorney fees.

¶9 Gary testified he opened an Edward Jones IRA during his marriage to Carla. He

stated the Edward Jones account was made up of various retirement accounts he held before he

married Carla in 2006. He presented Respondent’s Exhibit D, which included statements

detailing the following nonmarital accounts’ values on December 31, 2006: Wachovia Securities

IRA $344,090.23; Adventist Healthcare Retirement Plan (AHRP) 403(b) $69,180.84; AHRP

401(a) $40,792.95. Gary confirmed these three accounts “are *** part of what makes the corpus

of the Edward Jones [IRA].” He testified he transferred the money in the Wachovia account to

the Edward Jones IRA in 2011 and transferred the two AHRP accounts in March 2016. He

estimated each AHRP account was valued between $150,000 and $200,000 when he rolled them

into the Edward Jones IRA. Nevertheless, Gary requested only that the value of these nonmarital

accounts as of December 31, 2006, ($454,064.02) be classified as nonmarital property or that he

be reimbursed for those contributions.

¶ 10 Gary testified he borrowed $50,000 from his AHRP 403(b) account in 2011 as

part of the down payment he put on the marital residence in Missouri. He stated he paid back the

loan over a four- or five-year span using marital funds. He maintained he repaid the loan before

merging the account into the Edward Jones IRA in March 2016. Though he could not recall

exactly, Gary testified he used some funds from the Edward Jones IRA to purchase furniture and

appliances following his separation from Carla. Likewise, Gary stated he used money from the

Edward Jones IRA for living expenses when he was unemployed in 2019 and to pay Carla’s

maintenance from July 2019 through June 2020.

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¶ 11 Upon the close of evidence, the trial court instructed the parties it wanted written

closing arguments, though it gave them the option of also making oral arguments that day. Both

parties waived oral closing arguments and agreed to submit written closing arguments in 14

days. Before adjourning, the court confirmed with counsel for both parties what exhibits they

presented and asked to be admitted. Each attorney confirmed the court had the proper exhibits.

¶ 12 Each side submitted a timely written closing argument. As it pertains to issues on

appeal, Carla argued the Edward Jones IRA should be divided equally because any nonmarital

property Gary put in the account had become commingled with marital property, making the

entire account marital property. She argued Gary failed to trace the nonmarital deposits by clear

and convincing evidence. She argued she was entitled to at least half of the Edward Jones IRA

($957,350.16), plus an additional $113,102.66 for withdrawals Gary made from the account in

2019 and 2020.

¶ 13 Carla also argued she should be awarded maintenance given her diminished

lifestyle and lack of income. Based on statutory guidelines, Carla calculated her maintenance

should be $1847.17 per month for five and a half years, noting it was a decrease from the

temporary maintenance award. Carla finally argued Gary should contribute to her attorney fees

because she did not have the ability to pay while he did. As of the trial date, she had incurred

fees totaling $45,640 and expected to incur at least $7000 more. She attributed most of those fees

to discovery matters that required her to file three motions to compel. At the time of the closing

argument, Carla still owed $26,990 in attorney fees.

¶ 14 Gary’s closing argument reiterated much of his testimony as it relates to the issues

on appeal. He valued the Edward Jones IRA as of the trial date at $980,000. Based on

Respondent’s Exhibit D and Gary’s trial testimony, he argued $454,064 was nonmarital property

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that he transferred into the account during the marriage. Taking out the nonmarital property

would leave $525,936 in the account, and Gary argued each party should receive half of that

amount ($262,968).

¶ 15 Gary made two arguments as to maintenance, one for past maintenance and one

regarding future maintenance. He first argued for an abatement retroactive to July 2019, when

his income decreased. He noted Carla had been choosing not to work or receive Social Security

benefits. He maintained that he continued to pay Carla $1825.65 every two weeks when he

should have only had to pay her $1155.42 per month. He requested a credit for $30,682.63. Gary

next argued for the trial court to deny Carla’s request for present and future maintenance. He

noted Carla will be receiving a substantial sum of money in the property division. He further

noted Carla is in good health and could work, but she chose not to work. Likewise, Carla chose

not to receive Social Security benefits. For similar reasons, Gary argued against contribution for

Carla’s attorney fees.

¶ 16 On February 25, 2021, the trial court issued a written judgment of dissolution of

marriage. As is relevant here, the trial court classified the entire Edward Jones IRA as marital

property and denied Gary any reimbursement for nonmarital funds deposited into the account.

The trial court found, “[t]here is no doubt that [Gary] possessed three accounts prior to the

marriage which totaled $454,064” because “Respondent’s exhibit D clearly demonstrates that.”

However, the court determined it could not “conclude that the [commingled] funds maintained

their [nonmarital] identity.” The court explained, “there [was] insufficient evidence detailing the

exact amount transferred that can be appropriately traced,” which left “the court to speculate as

to the amount actually contributed to the Edward Jones Account.” The court concluded the entire

value of Edward Jones IRA was marital property and “shall be split evenly between the parties.”

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¶ 17 The trial court’s order then addressed Carla’s request for maintenance. It noted

the governing statute (750 ILCS 5/504(a) (West 2018)) outlined 14 factors for consideration. The

court addressed each one, though it made detailed findings on just a few factors. Concerning the

parties’ income, property, and financial obligations, the court made the following findings:

“[Carla], as a result of this order, is being apportioned in

property, equity, and investment accounts a total of $623,675.08.

She is currently unemployed but is eligible for social security

benefits for which she has not yet applied. According to her

testimony she plans to apply for such benefits at the conclusion of

this case. [Carla] retains the home located [in] *** Metamora,

Illinois, 61548. According to [her] financial affidavit, she does not

have a mortgage to pay on the property which implies she owns the

property free and clear. [Carla] is not responsible for the care of

any other individual.

[Gary] is currently employed earning approximately $6,666

per month between employment and [Social Security benefits]. He

has been awarded the marital home and the debts associated with it

which include a mortgage payment of $1259 per month and taxes

and insurance of $414 per month. He has been rewarded [sic]

$478,675.08 in equity and investment accounts.”

As for the needs of each party, the court concluded “neither party live[d] an extravagant

lifestyle,” “[n]either party *** suffer[s] from any harsh medical conditions requiring extra care

and attention,” and “[b]oth parties are physically able to care for themselves.” Turning its

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attention to the parties’ earning capacity, the court noted the parties’ ages (Carla 67 and Gary 69)

and determined “[b]oth are well past the age to qualify for retirement benefits.” The court noted

Gary had hoped to retire soon. The court concluded their future earning potential would decrease

and both “will become reliant upon their retirement and [Social Security benefits] as they

increase in age.” Concerning the couple’s standard of living during the marriage, the court

described it as a “modest but comfortable lifestyle that enabled them to travel, dine out, and

maintain two homes.” As for the duration of the marriage, the court noted the pair was married

for 12 years. The court found the remaining statutory factors either did not apply or were covered

by the above findings. The court ultimately concluded “that an award of maintenance [was] not

appropriate,” citing the parties’ ages, impending retirements, sufficient resources, and their

ability to care for themselves. The court also denied Gary’s request for a retroactive downward

deviation from prior maintenance payments.

¶ 18 The trial court next addressed Carla’s request for contribution toward her attorney

fees. It noted it must consider many of the same factors it did for the maintenance decision. The

court found it relevant that Carla had been allocated $623,329.18 in assets while Gary received

$478,675.08. Though Gary stilled worked and received Social Security benefits, he assumed all

debt in the marital residence. Similarly, the trial court found it relevant that Carla did not work

but planned to “look into” receiving Social Security benefits. The court noted Gary hoped to

retire soon. The court acknowledged the divorce proceedings were “long lasting” but found they

were “not complicated.” The court noted the discrepancy in legal fees—$52,000 for Carla and

$20,000 for Gary. It further noted Gary already contributed $5000 toward Carla’s fees. Upon

consideration of these factors, the court denied Carla’s request for fees, “conclud[ing] that

requiring [Carla] to pay her attorney fees would not exhaust her estate or strip her of her means

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of support or undermine her economic stability.” The court reiterated Carla had “adequate

resources to cover the cost,” noting she had “been awarded a substantial amount of money and is

in possession of a house that is unencumbered by a mortgage.”

¶ 19 On the same day the trial court entered its judgment, Gary’s counsel moved for

leave to withdraw from the case, and days later another attorney entered his appearance. The trial

court eventually allowed Gary’s first attorney to withdraw. On March 11, 2021, Carla filed a

motion to correct, clarify, and reconsider the judgment. The motion highlighted several

typographical errors and asked those be corrected. The motion requested clarification on

valuation dates and dates payable, amongst other things. Finally, the motion asked the court to

reconsider its decisions denying Carla maintenance and not ordering Gary repay the $113,102.66

he took from the Edward Jones IRA in 2019 and 2020.

¶ 20 Two weeks later, Gary countered by filing a motion to reconsider and reopen

proofs. He attached to the motion several exhibits. Gary argued the entirety of the Edward Jones

IRA should be his nonmarital property since it began with him rolling-over other nonmarital

retirement accounts into that one IRA—and the new exhibits would confirm that argument. He

argued these documents would remove any speculation as to the exact amount of nonmartial

contributions to the Edward Jones IRA. Despite offering this additional evidence, Gary

maintained he already proved the nonmarital accounts’ existence and values through clear and

convincing evidence, namely Respondent’s Exhibit D. Gary noted he testified he closed those

accounts and then transferred the funds into the Edward Jones IRA, and that testimony stood

uncontroverted. Gary claimed everyone at the trial (his counsel, Carla’s counsel, and the court)

mistakenly concluded the Edward Jones IRA was marital property and that mistake should now

be corrected. Contrary to his trial testimony and closing argument, Gary’s postjudgment motion

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maintained the entire Edward Jones IRA should be classified as nonmarital property and offered

evidence to support his claim.

¶ 21 On May 20, 2021, the trial court heard their respective motions. The trial court

granted Carla’s motion for correction and clarification but denied her motion to reconsider its

conclusions as to maintenance and property division, “relying on its findings of 2/25/21.” The

trial court also denied Gary’s motion for reconsideration and to reopen evidence. The court

found the exhibits Gary offered “are not newly discovered evidence, as contemplated, which

would justify a re-opening of the case.” The court determined, “[t]he proposed evidence was

available to [Gary] at the time of trial,” and “[n]eglecting to present such evidence at the original

trial is not reason enough to give [Gary] a [second] bite at the apple.” The trial court issued an

amended judgment addressing Carla’s recommended corrections, but it did not alter any of its

prior findings or conclusions.

¶ 22 This appeal followed.

¶ 23 II. ANALYSIS

¶ 24 Gary challenges the trial court’s decision denying his motion to reconsider and

reopen proofs as an abuse of discretion. He further contends the court’s determination that he

was not entitled to reimbursement for nonmarital contributions he made to the Edward Jones

IRA stands against the manifest weight of the evidence. Carla meanwhile argues the trial court

abused its discretion in denying her requests for maintenance and contribution toward her

attorney fees. For the reasons below, we affirm in part, reverse in part, and remand for further

proceedings consistent with this order.

¶ 25 A. Gary’s Motion to Reconsider and Reopen Evidence

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¶ 26 Gary argues the trial court abused its discretion in denying his combined motion

to reconsider and/or reopen the evidence. Since Gary’s motion addressed the motion to reopen

first and then addressed the motion to reconsider, we take them in the same order.

¶ 27 1. Motion to Reopen Evidence

¶ 28 “[T]he decision to reopen a case to allow for the introduction of additional

evidence rests within the sound discretion of the trial court, and the trial court’s decision will not

be disturbed by a reviewing court absent an abuse of discretion.” Dunahee v. Chenoa Welding &

Fabrication, Inc., 273 Ill. App. 3d 201, 210, 652 N.E.2d 438, 445 (1995). “An abuse of

discretion occurs when ‘the trial court’s ruling is arbitrary, fanciful, unreasonable, or where no

reasonable person would take the view adopted by the trial court.’ ” Lisk v. Lisk, 2020 IL App

(4th) 190364, ¶ 22, 143 N.E.3d 1240.

¶ 29 “The [four] factors to be considered in determining whether a party should be

permitted to reopen proofs include (1) whether the failure to introduce the evidence occurred

because of inadvertence or calculated risk, (2) whether the adverse party will be surprised or

unfairly prejudiced by the new evidence, (3) whether the new evidence is of the utmost

importance to the movant’s case, and (4) whether any cogent reason exists to justify denying the

request.” Stringer v. Packaging Corp. of America, 351 Ill. App. 3d 1135, 1141, 815 N.E.2d 476,

482 (2004). “If evidence offered for the first time in a post-trial motion could have been

produced at an earlier time, it is not an abuse of discretion for the court to deny its introduction

into evidence.” In re Marriage of Davis, 215 Ill. App. 3d 763, 776, 576 N.E.2d 44, 53 (1991);

see also Stringer, 351 Ill. App. 3d at 1142 (stating the same principle). The rationale for that

principle is finality. “This court has recognized that it is the parties’ obligation to present

evidence *** and has adopted the view that reviewing courts cannot continue to reverse and

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remand dissolution cases where the parties have had an adequate opportunity to introduce

evidence but have failed to do so.” In re Marriage of Holder, 137 Ill. App. 3d 596, 603, 484

N.E.2d 485, 490-91 (1985). “Trial courts should not permit litigants to stand mute, lose a motion,

and then frantically gather evidentiary material to show that the court erred in its ruling. Civil

proceedings already suffer from far too many delays, and the interests of finality and efficiency

require that the trial courts not consider such late-tendered evidentiary material, no matter what

the contents thereof may be.” (Emphasis in original.) Gardner v. Navistar International

Transportation Corp., 213 Ill. App. 3d 242, 248-49, 571 N.E.2d 1107, 1111 (1991).

¶ 30 Gary contends he made the necessary showing for the trial court to reopen the

evidence—he attributes his failure to submit this new evidence to inadvertence, he maintains the

evidence is of the utmost importance to his case because it shows the entire Edward Jones IRA is

nonmarital, and he believes Carla will neither be surprised nor unfairly prejudiced if the evidence

is reopened. We do not agree with him.

¶ 31 Gary argues his counsel, Carla’s counsel, the trial court “inadvertently presumed

that the Edward Jones IRA was marital property when it was, in fact, Gary’s nonmarital

property.” This errant presumption, in Gary’s view, caused his counsel to “inadvertently

exclude” this new evidence because she “thought she had presented sufficient evidence” to

establish Gary’s nonmarital contribution. Gary, however, provides nothing other than his bald

assertion that this failure to introduce the evidence amounts to inadvertence. Simply using the

word “inadvertent” or some variation thereof in the appellate briefing does not satisfy Gary’s

burden here.

¶ 32 Merriam-Webster defines “inadvertence” as “(1): the fact or action of being

inadvertent; (2) the result of inattention.” Merriam-Webster Online Dictionary,

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https://www.merriam-webster.com/dictionary/inadvertence (accessed March 14, 2022). Seeing

the first definition is unhelpful, we look further and find another definition for “inadvertent” is

“unintentional.” Merriam-Webster Online Dictionary, https://www.merriam-

webster.com/dictionary/inadvertent (accessed March 14, 2022). Even Gary’s conclusory

explanations—his attorney “inadvertently presumed” the Edward Jones IRA was marital

property so she “thought she had presented sufficient evidence” for reimbursement—do not

qualify as “inadvertence” under Merriam-Webster’s definitions because those explanations do

not show counsel’s failure to submit the evidence was unintentional or resulted from inattention.

Based on Gary’s argument, his trial counsel calculated (or perhaps miscalculated) that the

evidence she submitted satisfied his burden for reimbursement or for showing the nonmarital

property retained its identity. Inadvertence is not incompetence. Gary can litigate his prior

counsel’s competence in another court.

¶ 33 On another note, Gary has not alleged he could not have presented the new

evidence at trial. We surmise Gary had an opportunity to present this evidence at trial and did

not. Though we do not have the benefit of the transcript detailing the hearing on Gary’s and

Carla’s posttrial motions, the trial court’s order supports our conclusion that Gary did not allege,

let alone show, he could not have produced this evidence at an earlier time. The trial court’s

docket entry stated: “The proposed evidence was available to [Gary] at time of trial. Neglecting

to present such evidence at the original trial is not reason enough to give [him] a [second] bite at

the apple.”

¶ 34 We find this case comparable to In re Marriage of Sawicki, 346 Ill. App. 3d 1107,

806 N.E.2d 701 (2004). There, the husband moved to reopen the evidence after the trial court

entered the judgment of dissolution, which the trial court denied. Sawicki, 346 Ill. App. 3d at

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1120. Restating the principle that a trial court does not abuse its discretion by denying a motion

to reopen proofs when the evidence offered for the first time in a posttrial motion could have

been presented at an earlier time, this court affirmed the trial court’s decision. Sawicki, 346 Ill.

App. 3d at 1120 (citing Davis, 215 Ill. App. 3d at 776). Upon finding the husband “failed to

allege that the evidence he wanted to introduce could not have been produced at an earlier time,”

we held the trial court did not abuse its discretion by denying the motion. Sawicki, 346 Ill. App.

3d at 1120. Likewise, we see no abuse of discretion in the trial court’s decision denying Gary’s

motion to reopen proofs when he did not allege he could not have presented the additional

evidence at an earlier time. Indeed, the trial court could have denied the motion to reopen on that

basis alone. See Stringer, 351 Ill. App. 3d at 1142 (“[I]f evidence offered for the first time in a

posttrial motion could have been produced at an earlier time, the court may deny its introduction

into evidence on that basis.”); see also Chicago Transparent Products, Inc. v. American National

Bank and Trust Co. of Chicago, 337 Ill. App. 3d 931, 942, 788 N.E.2d 23, 32 (2002) (stating

“[i]t is the parties’ responsibility to present evidence at trial” in denying a motion to reopen

proofs when the party could have produced the evidence at trial).

¶ 35 Since Gary failed to establish inadvertence, we need not consider the remaining

three Stringer factors. He has not met his burden for reopening the evidence. The trial court’s

decision here took account of the facts before it and the applicable case law; consequently, it was

not arbitrary, fanciful, or unreasonable. See Lisk, 2020 IL App (4th) 190364, ¶ 22.

¶ 36 2. Motion to Reconsider

¶ 37 “Motions to reconsider are retrospective in nature.” Stringer, 351 Ill. App. 3d at

1141. “The purpose of a motion to reconsider is to bring to the trial court’s attention (1) newly

discovered evidence not available at the time of the hearing, (2) changes in the law, or (3) errors

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in the court’s previous application of existing law.” Stringer, 351 Ill. App. 3d at 1140. “When a

party seeks reconsideration based on newly discovered evidence,” as we have here, “the party

must present a reasonable explanation for why the evidence was not available at the time of the

original hearing.” Devyn Corp. v. City of Bloomington, 2015 IL App (4th) 140819, ¶ 65, 38

N.E.3d 1266. A reasonable explanation sufficient for granting the motion to reconsider should

include a showing “that the newly discovered evidence existed before the initial hearing but had

not yet been discovered or was otherwise unobtainable,” despite due diligence from the moving

party. Stringer, 351 Ill. App. 3d at 1141. “The decision to grant or deny a motion to reconsider

lies within the trial court’s discretion, and we will not disturb the court’s ruling absent an abuse

of discretion.” Stringer, 351 Ill. App. 3d at 1140.

¶ 38 Based upon the trial court’s docket entry, it appears Gary sought reconsideration

based on newly discovered evidence, yet he produced no reasonable explanation why the

evidence was not available at the June 2020 trial but was then available in March and April 2021.

The trial court gave the following reasoning for denying Gary’s motion to reconsider: “[Gary’s]

Ex[hibits] 1-24 offered on 4/13/21 are not newly discovered evidence, as contemplated, which

would justify a re-opening of the case.” Like his motion in the trial court, Gary’s appellate brief

does not address the newly-discovered-evidence standard, but seeks to relitigate the property

division, particularly the Edward Jones IRA. Since Gary makes no effort to provide a reasonable

explanation for why his proffered exhibits constitute newly discovered evidence (why they were

not discoverable or obtainable at trial), nor does he try to explain why the trial court should have

granted the motion to reconsider, we will not strive to divine such arguments. The trial court

denied the motion, and based on the facts and argument before us, we do not see that decision as

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unreasonable, fanciful, or arbitrary. See Lisk, 2020 IL App (4th) 190364, ¶ 22. Consequently, we

conclude the trial court did not abuse its discretion in denying Gary’s motion to reconsider.

¶ 39 B. The Edward Jones IRA

¶ 40 The trial court found Gary commingled three nonmarital retirement accounts into

the Edward Jones IRA (a marital asset) during the marriage. It then found those funds transmuted

into marital property. Since Gary did not trace the funds by clear and convincing evidence, the

court determined Gary was not entitled to reimbursement under section 503(c)(2)(A) of the

Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/503(c)(2)(A) (West 2018)). On

appeal, Gary argues the trial court’s decision denying him reimbursement for the $454,064

nonmarital contribution he made to the Edward Jones IRA goes against the manifest weight of

the evidence. We agree, though we reach our decision by different means.

¶ 41 “[A] trial court’s factual findings in a marriage dissolution proceeding—such as

whether property is marital or nonmarital or whether reimbursement is appropriate—will not be

reversed on appeal unless they are against the manifest weight of the evidence.” In re Marriage

of Dhillon, 2014 IL App (3d) 130653, ¶ 46, 20 N.E.3d 1272; see also In re Marriage of Berberet,

2012 IL App (4th) 110749, ¶ 60, 974 N.E.2d 417 (“ ‘A trial court’s property classification will

not be disturbed unless it is contrary to the manifest weight of the evidence.’ ” (quoting In re

Marriage of Henke, 313 Ill. App. 3d 159, 166, 728 N.E.2d 1137, 1143 (2000))). This includes a

determination of whether commingled property lost or retained its identity. In re Marriage of

Samardzija, 365 Ill. App. 3d 702, 706, 850 N.E.2d 880, 884 (2006). “A court’s decision is

contrary to the manifest weight of the evidence if the opposite conclusion is clearly evident or if

its findings are unreasonable, arbitrary, and not based upon any of the evidence.” Berberet, 2012

IL App (4th) 110749, ¶ 60.

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¶ 42 We begin our analysis where the parties and trial court seemingly began theirs—

Gary’s Edward Jones IRA, opened during the marriage, amounted to a marital asset comprised of

commingled marital and nonmarital funds. Section 503(c) of the Act governs commingled

property, providing the following:

“(c) Commingled marital and non-marital property shall be

treated in the following manner, unless otherwise agreed by the

spouses:

(1)(A) If marital and non-marital property are

commingled by one estate being contributed into the other,

the following shall apply:

(i) If the contributed property loses its

identity, the contributed property transmutes to the

estate receiving the property, subject to the

provisions of paragraph (2) of this subsection (c).

(ii) If the contributed property retains its

identity, it does not transmute and remains property

of the contributing estate.

(B) If marital and non-marital property are

commingled into newly acquired property resulting in a

loss of identity of the contributing estates, the commingled

property shall be deemed transmuted to marital property,

subject to the provisions of paragraph (2) of this subsection

(c).

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 (2)(A) When one estate of property makes a

contribution to another estate of property, the contributing

estate shall be reimbursed from the estate receiving the

contribution notwithstanding any transmutation. No such

reimbursement shall be made with respect to a contribution

that is not traceable by clear and convincing evidence or

that was a gift.” 750 ILCS 5/503(c) (West 2018).

Under section 503(c), commingling and transmutation are neither synonymous nor even

coextensive terms, meaning trial courts may not equate commingling with transmutation. Indeed,

we have noted there is no “presumption that commingled property always *** transmute[s] to

marital property.” Henke, 313 Ill. App. 3d at 168. When evaluating commingled property for

purposes of property division, a trial court must first determine whether the contributing estate

lost its identity when it commingled with the receiving estate. If the court finds the contributed

property lost its identity, then the court must find that property transmuted to the receiving estate.

750 ILCS 5/503(c)(1)(A)(i), (B) (West 2018). Transmuted property is subject to reimbursement

under the statute (750 ILCS 5/503(c)(1)(A)(i), (B) (West 2018)), meaning the estate contributing

property to the receiving estate may be reimbursed for that contribution. 750 ILCS

5/503(c)(2)(A) (West 2018). By contrast, if the court finds the contributed property retained its

identity, then no transmutation occurs and the contributed property remains property of the

contributing estate, which ends the analysis and renders a reimbursement analysis

unecessary.750 ILCS 5/503(c)(1)(A)(ii) (West 2018). For example, if nonmarital property is

commingled with marital property yet retains its identity, then it remains nonmarital property and

should be classified and divided accordingly. The party contributing the nonmarital property

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under these circumstances does not need to trace the property for reimbursement purposes under

section 503(c)(2)(A).

¶ 43 The trial court’s order conflates and confuses this analysis, particularly the

classification, transmutation, and reimbursement analyses. After quoting from section

503(c)(2)(A) on the standard for reimbursement, the trial court then concluded, “The burden then

is on [Gary] to show these funds have not been transmuted.” As we outlined above, the

transmutation determination must be made after classification but before proceeding to a

reimbursement analysis. Nevertheless, the trial court made the following findings about Gary’s

three nonmarital retirement accounts:

“There is no doubt that [Gary] possessed three accounts prior to

the marriage which totaled $454,064. Respondent’s exhibit D

clearly demonstrates that. [Gary] also testified that these funds

were closed sometime after the marriage and transferred to the

Edward Jones Account. This testimony was uncontroverted at

trial.”

The trial court, however, found it “[could] not conclude that the commingled funds maintained

their identity.” Noting Carla’s argument that Gary did not provide evidence showing the value of

the three accounts on the dates of transfer, the trial court found, “[t]here [was] insufficient

evidence detailing the exact amount transferred that can be appropriately traced.” (Emphasis

added.) With this finding, the trial court essentially compressed the classification, transmutation,

and reimbursement findings into one. Even with our deferential standard of review, we cannot

affirm the trial court’s conclusion there was insufficient evidence that Gary’s nonmarital

contribution to the Edward Jones IRA—the $454,064 in three retirement accounts as of

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December 31, 2006—retained its identity as nonmarital property. To the contrary, the evidence

showed Gary’s nonmarital property (investments) remained investments once he began

commingling them with nonmarital property (contributions and appreciation).

¶ 44 With In re Marriage of Werries, 247 Ill. App. 3d 639, 642, 616 N.E.2d 1379,

1383-84 (1993), this court explained a party’s nonmarital money often loses its identity when it

is used to purchase marital property. We gave the example that if “H uses his personal savings

account to buy the family station wagon after the kids are born,” then “the cash loses its identity

as a nonmarital asset.” Werries, 247 Ill. App. 3d at 642. This would be transmutation under

section 503(c)(1)(A)(i). We also explained another way a party’s nonmarital money could be

transmuted. In this example “H and W each sell nonmarital homes to buy a new home,” making

the new home marital property. Werries, 247 Ill. App. 3d at 642. This would be transmutation

under section 503(c)(1)(B). Here, by contrast, Gary’s property never changed nor lost its

identity; he rolled money from three separate retirement accounts into one new account. Money

remained money. Once he clearly identified his nonmarital portion ($454,064) and conceded

anything more than that is marital property, the nonmarital property retained its identity. Any

suggestion from Carla’s closing statement that Gary transferred less than $454,064 into the

Edward Jones IRA is not supported by the evidence.

¶ 45 Gary clearly and convincingly identified his nonmarital property ($454,064) at the

time of the marriage—the trial court found as much. The trial court’s order found “[t]here [was]

no doubt that [Gary] possessed three accounts prior to the marriage which totaled $454,064,” and

“Respondent’s exhibit D clearly demonstrates that.” (Emphases added.) Besides finding clear

evidence identified the nonmarital funds, having “no doubt” signals the trial court was convinced

by that evidence. The court went on to find that Gary’s testimony that he closed the accounts

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during marriage and transferred those funds (two of which at least doubled, if not tripled, since

December 2006) into the Edward Jones IRA “was uncontroverted at trial.” (Emphasis added.)

Notably, the trial court made no express credibility finding as to Gary’s testimony, although the

above factual findings indicate the trial court found Gary’s testimony believable. The language

the trial court used in making factual findings does not correlate to its legal conclusion that

Gary’s nonmarital property did not maintain its identity during commingling, especially given

Werries’s guidance on when money loses its identity.

¶ 46 There was no evidence suggesting Gary had less in those accounts at the time of

transfer. Gary testified (and Respondent’s exhibit D confirmed) he had $344,090.23 in the

Wachovia account in December 2006, and then he confirmed “that money was then transferred

into the IRA” in 2011. Gary testified (and Respondent’s exhibit D confirmed) his AHRP 403(b)

totaled $69,180.84 and his AHRP 401(a) totaled $40,792 in December 2006, but he then

estimated those accounts totaled between $150,000 and $200,000 each when he transferred them

in March 2016. His handwritten notation on page 12 of Respondent’s exhibit D, which was

admitted for demonstrative purposes, indicated he transferred $250,000 from the AHRPs into the

Edward Jones IRA. Although Gary acknowledged he borrowed $50,000 from AHRP 403(b) for

the down payment on the marital residence in 2011, he also testified he repaid the loan before

transferring the account to the Edward Jones IRA in March 2016. Even so, the down payment on

the marital home amounted to a marital expense that both parties benefitted from for the

remainder of the marriage. See In re Marriage of Snow, 277 Ill. App. 3d 642, 650, 660 N.E.2d

1347, 1352 (1996) (noting martial estate need not be reimbursed when it has already been

compensated by use of the property).

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¶ 47 Despite Gary’s “clear” evidence identifying his nonmarital property, which left

the trial court with “no doubt” the property existed, and his “uncontroverted” testimony he

transferred all of those funds into the Edward Jones IRA, the trial court found the money could

not “be appropriately traced” because Gary did not provide documentation of the transfers,

particularly the exact values on the date of transfer. This finding does not align with the

uncontroverted evidence.

¶ 48 Carla’s written closing argument tried to inject doubt as to what amount was

actually transferred into the Edward Jones IRA, yet she had made no claims Gary dissipated

assets. Carla’s (and by extension the trial court’s) concern that Gary failed to prove the exact

account values on the date of transfer are negated by Gary’s concession that any appreciation in

the accounts was marital from the date of the marriage forward. Gary forewent any claims or

argument that appreciation on the accounts remained his nonmarital property. See 750 ILCS

5/503(a)(7) (West 2018) (classifying as “non-marital property” “the increase in value of

non-marital property, irrespective of whether the increase results from a contribution of marital

property, non-marital property, the personal effort of a spouse, or otherwise, subject to the right

of reimbursement”); In re Marriage of Steinberg, 299 Ill. App. 3d 603, 610, 701 N.E.2d 254, 258

(1998) (stating the Act “specifically provides that the increase in the value of nonmarital

property is also nonmarital property,” subject to reimbursement). He conceded anything added to

the accounts between December 2006 and 2011 and March 2016 when he transferred them into

the Edward Jones IRA was a marital contribution.

¶ 49 The trial court’s decision finding “it cannot conclude that the [commingled] funds

maintained their identity” stands against the manifest weight of the evidence. Given the clear

evidence and uncontroverted testimony, which left the trial court with no doubt as to Gary’s

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nonmarital retirement accounts, the opposite conclusion is clearly evident. See Berberet, 2012 IL

App (4th) 110749, ¶ 60. Gary’s nonmarital retirement accounts retained their identity as they

were rolled into the newly created Edward Jones IRA, especially since he conceded any

additions or appreciation to that amount were marital property subject to a 50-50 split. More

importantly, the practical effect of Gary’s concession that all amounts after the marriage were

marital removes the need to ascertain the extent of commingling at the dates of transfer since he

conceded everything above his clearly identifiable nonmarital contribution was marital. Upon

finding the nonmarital property retained its identity, it should have been classified as such and

assigned to Gary in the property division. 750 ILCS 5/503(c)(1)(A)(ii) (West 2018).

¶ 50 In our view, there was no need to do a reimbursement analysis outlined in section

503(c)(2)(A) because Gary’s commingled nonmarital property did not transmute into marital

property, but even so, we find the trial court erroneously decided Gary was not entitled to

reimbursement under the statute. By proving he held $454,064 in three retirement accounts at the

time of the marriage and testifying he transferred that money into the Edward Jones IRA, Gary

traced his nonmartial property by clear and convincing evidence. For this issue, we rely on the

Third District’s decision in Dhillon.

¶ 51 In Dhillon, the husband argued “the trial court erred in finding that his entire

401(k) account was marital property, including a portion that had been accumulated prior to the

marriage.” Dhillon, 2014 IL App (3d) 130653, ¶ 44. He asserted he was entitled to

reimbursement “for the contributions that were made to the 401(k) account prior to the

marriage.” (Emphasis added.) Dhillon, 2014 IL App (3d) 130653, ¶ 44. The husband held

retirement accounts prior to the marriage in 2002 and, once married, he continued contributing to

his Mahle 401(k) account. When he left Mahle for Caterpillar in 2005, he rolled over his Mahle

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401(k) into his new 401(k). In the dissolution proceedings, the husband testified to the retirement

accounts, he presented an account statement for the Mahle 401(k) from six months before the

marriage showing a balance of $3170.97, and he submitted “another statement showing the total

amount of the rollover[ ] a few years after the marriage.” Dhillon, 2014 IL App (3d) 130653,

¶ 47. The trial court, however, found the “husband’s nonmarital estate was not entitled to

reimbursement for contributions that were made to husband’s 401(k) account prior to the

marriage because those funds had lost their identity and had become entirely marital property

when they were rolled into the marital retirement account at Caterpillar.” Dhillon, 2014 IL App

(3d) 130653, ¶ 15. The husband appealed, and the appellate court reversed on this point, holding,

“[t]he trial court *** erred when it determined that the entire Caterpillar 401(k) was marital

property and that husband’s nonmarital estate was not entitled to reimbursement.” Dhillon, 2014

IL App (3d) 130653, ¶ 47.

¶ 52 Gary invokes Dhillon to support his argument that he was entitled to

reimbursement for his nonmarital contribution to a marital retirement account. Carla, meanwhile,

distinguishes Dhillon, noting how there, unlike here, the husband submitted a document

“showing the total amount of the rollover, a few years after the marriage.” Dhillon, 2014 IL App

(3d) 130653, ¶ 47. Carla’s point is well taken, but her distinguishing point does not diminish

Dhillon’s rationale or its sway here. Though the husband in Dhillon submitted the extra

document showing the rollover amount, that did not factor into the appellate court’s analysis or

decision. The Third District reversed, even though the trial court had found the husband’s

testimony not credible, because “the documentary evidence established the exact amount that

husband had contributed to his 401(k) account shortly before the marriage.” (Emphasis added.)

Dhillon, 2014 IL App (3d) 130653, ¶ 47. The appellate court’s emphasis on the amount of

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nonmarital property at the time of the marriage and not at the time of the rollover is evidenced by

its decision to “remand for the trial court to order a credit of $3,170.97 to husband’s nonmarital

estate (the nonmarital portion of husband’s 401(k) account).” Dhillon, 2014 IL App (3d) 130653,

¶ 47. The Third District did not trace the appreciation of the nonmarital portion, nor did it trace

the marital contributions, though it could have with the additional documentation the husband

provided. The Third District appellate court determined the husband was entitled to a credit for

the amount proved to have been in his nonmarital property at the time of the marriage, which is

what had he requested.

¶ 53 Notably, the Dhillon “trial court found that *** husband had no credibility,

(emphasis added) (Dhillon, 2014 IL App (3d) 130653, ¶ 15), and even with the deferential

standard of review the appellate court still reversed because the husband clearly identified his

nonmarital property prior to the marriage. The trial court here, by contrast, did not specifically

express a credibility determination as to Gary’s testimony he transferred the Wachovia and

AHRPs into the Edward Jones IRA, but it did label it “uncontroverted.” If evidence is not

disputed and noted as such in the trial court’s order, we surmise it was credible. And as we

outlined supra, Gary testified he rolled over the Wachovia account into the Edward Jones IRA in

2011 and in March 2016 rolled over the two AHRP accounts (with estimated values between

$150,000 and $200,000 each). That is (and was) undisputed. Because Gary clearly identified his

nonmarital retirement accounts (totaling $454,064) and testified he transferred them into the

Edward Jones IRA and only the Edward Jones IRA, he sufficiently traced the funds in

accordance with section 503(c)(2)(A). The trial court’s contrary finding stands against the

manifest weight of the evidence.

¶ 54 C. Maintenance and Attorney Fees

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¶ 55 Carla cross-appealed, arguing the trial court abused its discretion in denying her

requests for maintenance and contribution toward her attorney fees. In her briefing, she

maintained:

“If this Court grants any of the requests contained in

[Gary’s] appeal than [sic] it will be necessary for this Court or the

trial court to reconsider the rulings denying Carla maintenance and

a contribution to attorney fees as each of those rulings was

premised on Carla receiving $623,329.18 from the division of the

equity in the marital residence, value of the vehicles, and division

of retirement accounts including the payment from the Edward

Jones IRA.”

Although we express no opinion on the trial court’s original decision to deny Carla’s request for

maintenance and attorney fees, we agree with her that the trial court will need to reconsider these

claims based on the new property division. The Act outlines the necessary considerations for

maintenance and attorney fees determinations, including the property division in the underlying

dissolution action. Section 504(a) governs maintenance awards, and the first factor listed for the

trial court’s consideration is “the income and property of each party, including marital property

apportioned and non-marital property assigned to the party seeking maintenance as well as all

financial obligations imposed on the parties as a result of the dissolution of marriage.” 750 ILCS

5/504(a)(1) (West 2018). Concerning contribution to attorney fees, section 503(j)(2) likewise

provides, “[a]ny award of contribution to one party from the other party shall be based on the

criteria for division of marital property under this Section 503 and, if maintenance has been

awarded, on the criteria for an award of maintenance under Section 504.” 750 ILCS 5/503(j)(2)

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(West 2018). See also In re Marriage of Nesbitt, 377 Ill. App. 3d 649, 658, 879 N.E.2d 445, 452

(2007) (“To determine a reasonable contribution award, the trial court must consider the marital

property criteria under section 503 and, if maintenance is awarded, the maintenance criteria

under section 504.”). Since the Act requires the trial court to consider the property division in

these decisions and this order alters that division, we remand this matter to the trial court for

further evaluation of Carla’s request for maintenance and contribution in light of the new

property division.

¶ 56 III. CONCLUSION

¶ 57 For the reasons stated, we affirm in part, reverse in part, and remand the matter

for further proceedings consistent with this order.

¶ 58 Affirmed in part and reversed in part; cause remanded.

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