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No. 1-00-2763                                                                                                                                            First Division
May 13, 2002

PRESIDING JUSTICE COHEN delivered the opinion of the court:

BACKGROUND

Jon and Debra were married on May 5, 1989, in Honolulu, Hawaii. In 1990, Jon legallyadopted Debra's minor children: April, born August 29, 1976, and Cody, born May 17, 1978. Debra and Jon lived together in Iowa City, Iowa, until June of 1993, when Debra left the maritalhome and moved to Illinois with the children. Jon remained in Iowa.

On December 21, 1993, Debra filed a petition for dissolution of marriage in the circuitcourt of Cook County claiming irreconcilable differences. Over a period of three years, Debra'spetition was dismissed for want of prosecution and subsequently reinstated no fewer than threetimes. During this time period, Jon also filed a petition for dissolution of marriage in the districtcourt of Polk County, Iowa. On March 4, 1996, the Iowa district court entered a default decreeof dissolution of marriage on behalf of Jon. On April 3, 1996, Debra filed a motion to vacate thedefault order, which was granted on May 16, 1996. Jon then appealed to the Iowa appellatecourt. On September 24, 1997, the Iowa appellate court issued its decision affirming the districtcourt's order vacating the default judgment. Jon then appealed to the Iowa Supreme Court, whichdeclined to hear his case. Debra's cause was once again reinstated in the circuit court of CookCounty and finally, after years of procedural turmoil, trial began on April 13, 1998.

At trial, the parties stipulated as to the valuation of Jon's interest in his Iowa PublicEmployee's Retirement System (IPERS) defined benefit pension plan. The valuation was basedon an April 9, 1998, report drafted by Louis A. Epstein. Mr. Epstein, a certified publicaccountant, was hired by Jon's attorney to calculate the present value of Jon's pension plan. Mr.Epstein determined that the present value of the pension plan was $159,171. Mr. Epstein dividedthis total amount into nonmarital and marital portions. Mr. Epstein opined that $66,853represented Jon's nonmarital portion and $92,318 represented the marital portion.

On May 27, 1998, the circuit court entered a judgment of dissolution of marriageincorporating the stipulated value of Jon's pension plan. The judgment stated that the stipulatedmarital portion of the pension plan ($92,318) "shall be equally divided between the partiespursuant to an appropriate Qualified Domestic Relations Order." On August 12, 1998, after entryof judgment, the circuit court conducted a hearing on a petition for attorney fees filed on behalfof Debra. The court granted the petition and ordered Jon to contribute to Debra's attorney fees inthe amount of $4,250.

On February 8, 1999, Debra's attorney filed a motion to enter a proposed QDRO. Itappears that Jon filed a counterpetition to enter his own proposed QDRO. We state "appears"because although Jon's counterpetition is not in the record, it is referenced in a hearing conductedon June 14, 1999, and in a court order dated April 14, 1999. At the June 14, 1999, hearing, thecircuit court noted that at an April 14, 1999, hearing Jon argued⁽¹⁾ that the circuit court erred inaccepting the parties' stipulation with respect to the valuation of Jon's pension plan. The courtalso noted that Jon subsequently withdrew his argument regarding the court's erring in acceptingthe valuation. Nevertheless, the court chose to rule on the issue rejecting Jon's argument andentering Debra's proposed QDRO.

On July 7, 1999, Jon filed a motion to reconsider and modify the judgment. Jon argued,inter alia, that Mr. Epstein "erroneously applied an Illinois based immediate offset approach" todetermine the present value of Jon's pension plan resulting in Debra obtaining a share of the planin excess of the circuit court's judgment. Jon subsequently filed a motion to dismiss his priormotion to reconsider and modify the judgment, which was granted on September 10, 1999. Meanwhile, on July 12, 1999, Charlotte Schipper, QDRO administrator of IPERS, informed theparties that the QDRO submitted on June 22, 1999, was rejected because it did not comply withthe provisions of the IPERS plan.

On March 20, 2000, Debra's attorney filed a motion to enter an amended QDRO. Theamended QDRO contained the following formula for IPERS to implement in distributing toDebra her half of the marital portion of Jon's pension plan: "50% of the gross monthly or lumpsum benefit payable at the date of distribution to the Member multiplied by the 'service factor.' The numerator of the service factor is 66.48(quarters); and the denominator is the Member's totalquarters of service covered by IPERS."⁽²⁾ On April 10, 2000, Jon filed a "Motion to Deny Motionto Enter QDRO," arguing that the amended QDRO "may be fruit from a poisonous tree," "lacksintegrity" and "contains segments that do not comply with 735 ILCS 5/503 and ordinary commonsense."

On July 18, 2000, the circuit court granted Debra's motion for entry of the amendedQDRO. The court also granted Debra's motion for postjudgment attorney fees and ordered Jon topay $1,046.20 to Debra's trial attorney. This appeal followed.

ANALYSIS

Initially, we address Debra's motion to strike Jon's brief and dismiss his appeal pursuantto Supreme Court Rules 341 (177 Ill. 2d R. 341) and 342 (155 Ill. 2d R. 342). Jon filed anobjection and we ordered the motion be taken with the case. We note that most of thedeficiencies in respondent's brief of which Debra complains were remedied on February 19,2002, when Jon filed a supplemental record containing missing trial transcripts. We do agreewith Debra, however, that some of the commentary in Jon's "statement of facts" section isargumentative and unsupported by the record in violation of Supreme Court Rule 341(e)(6). 177Ill. 2d R. 341(e)(6). Nevertheless, we deny Debra's motion to strike Jon's brief and dismiss hisappeal. Suffice it to say, that although we are denying Debra's motion, we will consider onlythose parts of Jon's "statement of facts" that are proper. The parts that are improper will notimpact our decision in this case. See People v. Tolbert, 323 Ill. App. 3d 793, 796 (2001);Goodwin v. McHenry County Sheriff's Department Merit Comm'n, 316 Ill. App. 3d 1238, 1242(2000). 1. Stipulation

Jon first argues that the circuit court erred in accepting the stipulation entered into by theparties with respect to Mr. Epstein's valuation of Jon's IPERS pension plan. Jon asserts for thefirst time on appeal that the stipulation improperly classified his pension plan as both marital andnonmarital. According to Jon, the existence of his pension plan for 20 years prior to the marriagesupports his assertion that the pension should be classified as nonmarital property and beawarded solely to him. Jon also asserts that Mr. Epstein's calculation contains mathematicalerrors, both contrary to general accounting principles and Illinois law, which resulted in an"overly large" marital portion. Jon claims that these errors combined render the entire stipulationunconscionable.

An issue is waived on appeal unless a timely objection is made at trial and is specificallyraised in a written posttrial motion. People v. Reid, 136 Ill. 2d 27, 38 (1990). Our supreme courthas outlined two purposes behind the waiver rule. "First, timely objections allow the circuitcourt to promptly correct any error. [Citation.] Second, a party who fails to object cannot obtainthe advantage of receiving a reversal by failing to act." Reid, 136 Ill. 2d at 38.

The record reveals that Jon was present in court when his attorney entered into thestipulation with respect to the value of his IPERS pension plan. Jon never voiced an objection tothe stipulation, nor did he ever inform the circuit court that he misunderstood or questioned anypart of the stipulation. On July 7, 1999, Jon filed a motion to reconsider and modify thejudgment arguing, among other things, that Mr. Epstein "erroneously applied an Illinois basedimmediate offset approach" in determining the present value of Jon's pension plan. No argumentwas made concerning the classification of the pension plan as both marital and nonmarital. Moreover, Jon's posttrial motion was subsequently dismissed on Jon's own motion on September10, 1999, and never addressed by the circuit court. Thus, Jon has failed to properly preservethese issues and they are waived for purposes of our review. See Hubbard v. Sherman Hospital,292 Ill. App. 3d 148, 156 (1997); Parson v. City of Chicago, 117 Ill. App. 3d 383, 390-91(1983).

2. QDRO

Jon asserts that the circuit court, in its June 14, 1999, oral ruling, misapplied In reMarriage of Hunt, 78 Ill. App. 3d 653 (1979), as authority for accepting Debra's proposed QDRO. Although the circuit court cited Hunt with respect to Debra's first proposed QDRO, thatQDRO was subsequently rejected by IPERS. Consequently, Debra offered a proposed amendedQDRO on March 20, 2000, which was accepted and entered by the circuit court on July 18, 2000. Unfortunately, the circuit court's order does not state its reasons for approving Debra's amendedQDRO. Jon has failed to provide us with a transcript of the circuit court's oral ruling, indeed ifthere was such an oral ruling, on Debra's motion to enter the amended QDRO. Without anyrecord, we are unable to determine whether the circuit court relied on the Hunt decision at all, letalone erroneously, when accepting Debra's amended QDRO. "Any doubts which may arise fromthe incompleteness of the record will be resolved against the appellant." Foutch v. O'Bryant, 99Ill. 2d 389, 392 (1984). "[I]n the absence of such a record on appeal, it will be presumed that theorder entered by the trial court was in conformity with law and had a sufficient factual basis." O'Bryant, 99 Ill. 2d at 392.

Jon next argues that the circuit court erred in accepting Debra's proposed amended QDROwith respect to the distribution of the marital portion of Jon's pension plan. According to Jon, theformula provided in paragraphs 5 and 6 of the amended QDRO contains a mathematical errorresulting in "unconscionable privileges to the Debra." Specifically, Jon disputes the use of 16.62as the "year factor" where the parties were only married for a total of 9 years.

The circuit court's judgment for dissolution of marriage ordered that the stipulated maritalportion of Jon's pension plan ($92,318) be "divided equally between the parties pursuant to anappropriate Qualified Domestic Relations Order." After the initial QDRO was rejected byIPERS, Debra's attorney filed a motion to enter an amended QDRO. Paragraph 5 of the amendedQDRO contained the following formula for IPERS to implement in distributing to Debra hermarital portion of Jon's pension plan: "50% of the gross monthly or lump sum benefit payable atthe date of distribution to the Member multiplied by the 'service factor.' The numerator of theservice factor is 66.48(quarters); and the denominator is the Member's total quarters of servicecovered by IPERS." Paragraph 6 consists of the formula used to determine the "service factor."

The stipulated marital portion of Jon's pension plan is $92,318. The circuit court orderedthe stipulated marital portion to be divided equally between the parties. Thus, Jon should receive$46,159 of the stipulated marital portion of the pension plan and likewise Debra should receive$46,159 of the stipulated marital portion of the pension plan. Paragraph 5 of the amendedQDRO directs IPERS to pay Debra half of the stipulated marital portion of Jon's pension plan, or$46,151.⁽³⁾ This represents an $8 difference from the circuit court's judgment in Jon's favor. Wefind this difference to be de minimis and remand on this basis to be unnecessary.

Jon makes two additional contentions with respect to Debra's proposed amended QDRO:(1) "the QDRO sets a frozen compensation rate based upon an erroneous stipulation"; and (2)"the QDRO does not consider improvements to the pension not attributable to the marriage." Weagree with Debra that Jon's general reference to the issues above, unsupported by citation toauthority, fails to merit our consideration on appeal. See Hutchings v. Bauer, 212 Ill. App. 3d172, 183 (1991), rev'd on other grounds, 149 Ill. 2d 568 (1992). 3. Attorney Fees

Lastly, Jon argues that the circuit court erred in awarding Debra contributory attorney feesafter judgment was entered. Jon also contests the circuit court's award of postjudgment attorneyfees to Debra, but states in his brief that he disputes this issue only "if the dismissal [of Jon'smotion to reconsider and modify judgment] with prejudice impacts this appeal." Jon asserts thatif the order dismissing his motion to reconsider and modify judgment with prejudice "does notaffect this appeal," then his argument is moot. Because we find no error in the circuit court'sdismissal, at Jon's own request (of Jon's motion to reconsider and modify judgment,) we addressonly Jon's argument as to the circuit court's August 12, 1998, order granting Debra $4,250 incontributory attorney fees.

Jon claims that any award of contributory attorney fees should have been made, pursuantto section 503(j) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS5/503(j) (West 1998)), prior to entry of judgment. More artfully framed, Jon argues that becauseDebra's petition was untimely filed, the circuit court lacked subject matter jurisdiction to grantthe petition, thus rendering its order void. Section 503(j), added to the Act in 1997, states in part:

"After proofs have closed in the final hearing on all other issues betweenthe parties (or in conjunction with the final hearing, if all parties so stipulate) andbefore judgment is entered, a party's petition for contribution to fees and costsincurred in the proceeding shall be heard and decided * * *." (Emphasis added.) 750 ILCS 5/503(j) (West 1998).

Here, judgment was entered on May 27, 1998; however, it was not until August 12, 1998,that the circuit court conducted a hearing on a petition for attorney fees filed on behalf of Debra. The court ultimately granted the petition and ordered Jon to contribute to Debra's attorney fees inthe amount of $4,250, but not without reservation. During its oral ruling, the circuit court statedthe following: "THE COURT: * * * Since we are talking about the statute, I mightfurther add that in the future both myself and the lawyers need to make sure thatwe do these contribution hearings before I enter judgment. The statute isextremely clear this hearing should have been done prior to my entering thejudgment.

There is no remedy provided for that. I will hold that any objection iswaived, since nobody objected to it. Nevertheless, that is a specific statute. I haveruled on the issues." (Emphasis added.)

We agree with both the trial judge and Jon that "under section 503(j) of the Act, a petitionfor attorney fees must be heard and decided before the final judgment is entered." In re Marriageof Konchar, 312 Ill. App. 3d 441, 443-44 (2000). Under the Act, a judgment for dissolution ofmarriage becomes final "when entered." 750 ILCS 5/413(a) (West 2000). Because Debra didnot file her petition for attorney fees until after the judgment for dissolution was entered in thismatter, her petition was clearly untimely pursuant to section 503(j) of the Act.

Finding Debra's petition untimely pursuant to section 503(j) does not, however, end ouranalysis of the issue. Despite the untimeliness of Debra's petition for contributory attorney fees,the circuit court granted the petition, stating that because no objection had been made, the issueof untimeliness was waived. Thus, the narrower issue for our review is whether the timingrequirement in section 503(j) of the Act may be waived.

Recently, our supreme court rejected a long line of precedent, including its own, holdingthat "the legislature, in defining a justiciable matter, may impose 'conditions precedent' to thecourt's exercise of jurisdiction that cannot be waived. [Citations.]" Belleville Toyota, Inc. v.Toyota Motor Sales, U.S.A, Inc., No. 90340, slip op. at 6 (March 15, 2002). The court foundsuch precedent contrary to article VI of the Illinois Constitution and reasoned:

"Characterizing the requirements of a statutory cause of action as nonwaivableconditions precedent to a court's exercise of jurisdiction is merely another way ofsaying that the circuit court may only exercise that jurisdiction which thelegislature allows. We reiterate, however, that the jurisdiction of the circuit courtis conferred by the constitution, not the legislature. Only in the area ofadministrative review is the court's power to adjudicate controlled by thelegislature. [Citations.]" Belleville Toyota, slip op. at 6-7.

Following Belleville Toyota, we must find that the timing provision of section 503(j) of the Act,although mandatory (see People v. O'Brien, 197 Ill. 2d 88, 93 (2001) (holding that thelegislature's use of "shall" demonstrates its intent to create a mandatory, rather than directive,provision)), is not a jurisdictional prerequisite and thus may be waived. Here, not only did Jonfail to object to the untimeliness of Debra's petition for contributory attorney fees, he alsosubstantively argued the merits of the petition before the circuit court. Jon has waived the issueof contributory attorney fees on appeal.

For the foregoing reasons, the judgment of the trial court is affirmed.

Affirmed.

McNULTY and COUSINS, JJ., concur.

1. Jon was represented by counsel at trial. On June 15, 1998, Jon's attorney filed a motionto withdraw, which was granted on July 2, 1998. Jon did not file his pro se appearance untilApril 14, 1999.

2. Debra's attorney calculated the "service factor" by implementing the following formula:marital portion + nonmarital portion = total pension value ($92,318 + $66,853) = $159,171);marital portion / total pension value = marital percent ($92,318 / $159,171 = .58); total years ofservice x marital percent = year factor (28.66 x .58 = 16.62); year factor x 4 = quarterly servicefactor (16.62 x 4 = 66.48).

3. .50 x $159,171 x (66.48/114.64)  = $46,151