text:
    WARE ADAMS et al., Plaintiffs-Appellants, v. THOMAS R. MEYERS et al., Defendants-Appellees.
    First District (6th Division)
    No. 1 — 92—0310
    Opinion filed July 30, 1993.
    Rehearing denied September 15, 1993.

      Ware Adams, of Chicago, pro se, for appellants.
    Goldberg, Kohn, Bell, Black, Rosenbloom & Moritz, Ltd., of Chicago (Michael D. Karpeles, William C. Meyers, and David J. Chizewer, of counsel), for appellees.
   JUSTICE GIANNIS

delivered the opinion of the court:

Plaintiffs, unit owners in an Illinois condominium association, filed a complaint attacking several association election practices. After holding multiple hearings on the issues raised, the trial court ultimately ruled that plaintiffs lacked standing and dismissed the suit. Plaintiffs now appeal.

On November 8, 1990, plaintiff Ware Adams (Adams) filed his original, two-count complaint (complaint) against the Carl Sandburg Village Condominium Association No. 7 (Association) and its board of managers (Board). The Association is formed subject to the Condominium Property Act (Ill. Rev. Stat. 1991, ch. 30, par. 301 et seq.) and is incorporated pursuant to the General Not For Profit Corporation Act of 1986 (Ill. Rev. Stat. 1991, ch. 32, par. 101.01 et seq.; see Ill. Rev. Stat. 1991, ch. 32, par. 103.05(a)(25)). Adams was at the time, and apparently remains, a unit owner in the Association. He was also then a candidate for Board election. In count I, Adams sought to postpone the 1990 annual meeting of the Association, at which the Association’s election of Board members was scheduled to occur. Specifically, Adams alleged that: (1) the notice of the 1990 annual meeting was not timely delivered to unit owners; (2) the proxy contained in the notice mailing was defective and misleading; and (3) one of the options suggested by the proxy, by which a unit owner could deliver his blank proxy to the president of the Board and have it voted by a majority of the Board, was deceptive, fraudulent and violated Illinois law. Count II of Adams’ complaint sought the production of certain Association documents. Although Adams originally sued both the Association and each of its Board members, he apparently only served the Association and Thomas Meyers, the Association’s president. Adams did not bring his complaint as a derivative action or as a class action.

On the following day, November 9, 1990, Adams brought an “Emergency Motion” seeking a court order delaying the annual meeting. Following hearing, the trial court refused to postpone the meeting, but did strike from the Board’s proxy language indicating that the form could not be photocopied. The trial court also indicated to the parties that any proxy complying with Illinois law was to be accepted at the meeting and indicated that unit owners could thereby revoke any proxy previously submitted to the Board. Adams did not appeal the trial court’s order and was subsequently elected to the Board for a two-year term.

Approximately a year later, just prior to the 1991 election, the Board sent a letter dated October 31, 1991, to all unit owners (the October 31 letter). The October 31 letter and accompanying notice announced the November 12, 1991, annual meeting. The October 31 letter was also accompanied by biographies of the candidates, by the Association’s “Official Proxy,” as well as a stamped, self-addressed envelope. A subsequent letter, dated November 5, 1991, was also sent to all unit owners (the November 5 letter). The November 5 letter was apparently sent following complaints from Board candidate David DeHetre. The November 5 letter explained the rules regarding cumulative voting to unit owners and was accompanied by a proxy identical in form to the one which accompanied the November 5 letter.

On November 12, 1991, Adams amended his complaint by adding a third count and joining plaintiff David DeHetre. In count III, plaintiffs complained that: (1) the 1991 proxy and proxy solicitation materials failed to adequately inform unit owners of their right to cumulate their votes; (2) the notice of the annual meeting included with the October 31 letter discriminated against nonresident unit owners by arbitrarily setting November 5, 1991, as a deadline for nominating candidates for Board election; (3) defendant Meyers improperly incurred costs to the Association by including a self-addressed stamped envelope with the October 31 letter and by mailing the November 5 letter without receiving proper authorization from the Board; (4) the biographical information forms of candidates included in the proxy materials discriminated in favor of incumbent Board members and violated the Condominium Property Act (Ill. Rev. Stat. 1991, ch. 30, par. 318(a)(17)); and (5) the practice of the Board in voting blank proxies following the Association’s annual meeting violated certain open meeting provisions of the Condominium Property Act (Ill. Rev. Stat. 1991, ch. 30, par. 318(a)(9)). Count III of plaintiffs’ complaint did not, however, challenge the timeliness of the 1991 annual meeting notice as Adams had done the previous year.

To put plaintiffs’ claims in context, a brief review of the procedures used in the 1991 election is helpful. In order to vote at the 1991 election, a unit owner could choose any one of four methods as described by the materials included with the October 31 letter. First, a unit owner could appear at the annual meeting in person and cast a ballot in favor of any of the candidates. Second, the unit owner could vote by what the parties have referred to as a “restricted” proxy. Use of the restricted proxy simply involved the unit owner indicating in writing a preference for a particular candidate or candidates, including any write-in candidates, and such proxies would then be counted in strict accordance with the unit owner’s wishes. Third, a unit owner could vote by “unrestricted” proxy, wherein the proxy would be given to a particular unit owner who would vote it as the proxy holder saw fit. Finally, a unit owner could designate the president as his proxy who would then vote such proxy in conformance with the wishes of the majority of the Board members present at the meeting, in accordance with a standing Board resolution (the Proxy Resolution). The proxies sent to all unit owners in both 1990 and 1991 indicated that proxies returned signed, but blank, would be voted in this way.

That same day, the day of the annual meeting, November 12, 1991, plaintiff Adams, along with plaintiff DeHetre, again brought an emergency motion seeking a temporary restraining order. In their motion, plaintiffs principally argued that the proxies were invalid because they failed to adequately inform unit owners of their right to cumulate their votes, and because certain proxies were to be voted pursuant to the Proxy Resolution. Believing that the disputed proxies might not substantively affect the outcome of the election and that the plaintiffs’ arguments might then be moot, the trial judge ordered that the election could proceed, but restrained the Board from declaring any official results until he had the opportunity to review the results.

Two days later, on November 14, 1991, the trial court was presented with the results of the election. At the hearing, the trial court held that “as a matter of law,” the proxies which were restricted were valid, regardless of when they were dated. The court then ordered defendants to tabulate the election results, excluding unrestricted proxies dated prior to November 7, 1991, the date on which the trial court held that the November 5 letter would have been received, to determine if such an exclusion would have any impact upon the election results.

On November 18, 1991, the parties returned to court. From a recounting it was discovered that plaintiff DeHetre placed fifth and had won a full two-year term on the Board. In the original count he had lost. The fact that plaintiff DeHetre won a seat on the Board prompted the court to ask the following:

“THE COURT: All right. Let me ask you this question, since the two plaintiffs in this case both won election, if we count all the votes, what is their interest in pursuing this case?”

The hearing adjourned with the court requesting additional briefing from the parties on standing and mootness issues.

After hearing on November 27, 1991, the trial court denied plaintiffs’ motion in its entirety and ordered that the Association’s 1991 election results could be released as official election results with full force and effect. The court also found that the Association’s notice regarding the election was legally sufficient, and that the challenged Proxy Resolution complied with applicable law. Plaintiffs did not appeal this order. However, the issues raised by count II of plaintiffs’ complaint, the document production demand, remained unresolved.

At a status hearing on December 9, 1991, plaintiff Adams indicated that progress was being made on count II, the document production demands, but that questions remained as to the applicability in future elections of section 18(a)(17) of the Condominium Property Act (Ill. Rev. Stat. 1991, ch. 30, par. 318(a)(17)). Section 18(a)(17) had recently been passed into law and plaintiffs contended that the application of this newly enacted section might become an issue in the 1992 elections. The court suggested that plaintiffs might wish to proceed under the declaratory judgment act (Ill. Rev. Stat. 1991, ch. 110, par. 2 — 701) and granted leave to file a motion and supporting memorandum on this issue. On December 20, 1991, plaintiffs filed their motion and memorandum. Instead of limiting their motion to the issue discussed on December 9, 1991, however, plaintiffs sought to raise three issues: (1) whether section 18(a)(17) of the Condominium Property Act (Ill. Rev. Stat. 1991, ch. 30, par. 318(a)(17)) nullified the Proxy Resolution; (2) whether the proxy provisions of the Business Corporation Act of 1983 (Ill. Rev. Stat. 1991, ch. 32, par. 7.55), as well as “relevant [F]ederal principles,” were applicable to the Association’s proxy solicitations; and (3) whether the Board had the legal authority to vote a condominium unit owned by the Association itself. In addition, in their supporting memorandum, plaintiffs alleged that counsel representing the Association had a conflict of interest vis-avis individual Board members. Defendants filed a motion to strike plaintiffs’ motion and memorandum for declaratory relief.

On January 13, 1992, after both sides had briefed defendants’ motion to strike, the trial court entered an order which stated:

“1) The Court finds there to be no Judicial Controversy, no one being injured or threatened ¿with injury at this time and consequently, there additionally being no standing of any party plaintiffs;
2) That all issue[s] having been resolved this Cause is dismissed without cost or fees, and with prejudice.”

Plaintiffs thereafter filed a notice of appeal seeking to raise the following issues (a review of the record and arguments raised on appeal indicates that all other issues raised by plaintiffs have been abandoned): (1) whether, “as unit owners,” plaintiffs have standing to bring declaratory judgment action with regard to the Association’s election practices; (2) whether the Board’s 1990 notice of annual meeting and any related election materials were delivered untimely; (3) whether Illinois condominiums and not-for-profit corporations must make specific disclosures regarding cumulative voting when soliciting proxies; (4) whether condominium units owned by the Association itself may be voted by the Board; and (5) whether the Proxy Resolution complies with Illinois law. In addition, plaintiffs raise the issue of whether defendant Meyers is liable to the Association for certain acts committed while serving as president of the Board.

An initial question that must be addressed in this case is whether plaintiffs have standing to raise any of the issues they now bring. Plaintiffs have fashioned their case, at the trial court’s suggestion, as a declaratory judgment action under section 2 — 701(a) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 701(a)). Under this section, “[t]he court may, in cases of actual controversy, make binding declarations of rights, having the force of final judgments, whether or not any consequential relief is or could be claimed.” (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 701(a).) The supreme court has held that, to have standing, a plaintiff seeking declaratory relief “must present an actual controversy between adverse parties, as to which controversy the plaintiff is not merely curious or concerned about the outcome but possesses some personal claim, status, or right, a distinct and palpable injury to which is fairly traceable to the defendant’s conduct and substantially likely to be prevented or redressed by the grant of such relief.” (Kluk v. Lang (1988), 125 Ill. 2d 306, 314, citing Greer v. Illinois Housing Development Authority (1988), 122 Ill. 2d 462, 493.) Therefore, in order to bring a declaratory judgment action, plaintiffs must allege the following elements with regard to each of their claims: (1) a tangible legal interest; (2) facts indicating that defendants’ conduct is opposed to those interests; and (3) an ongoing and actual controversy between the parties which is likely to be prevented or redressed by court action. See Griffin v. County of Cook (1938), 369 Ill. 380, 398 (Stone, J., specially concurring).

With regard to plaintiffs’ election procedure challenges, defendants claim that because both plaintiff Adams and plaintiff DeHetre were ultimately elected to serve on the Board, neither has suffered injury to a tangible legal interest. (See Goldstein v. Mitchell (1986), 144 Ill. App. 3d 474, 485-86; Lynch v. Devine (1977), 45 Ill. App. 3d 743, 747-48.) Defendants also argue that plaintiffs lack standing because they can cite no specific statutory authority for bringing their election challenge. In re Contest of the Election For the Offices of Governor & Lieutenant Governor (1983), 93 Ill. 2d 463, 474; see also Young v. Mikva (1977), 66 Ill. 2d 579; Brown v. VanKeuren (1930), 340 Ill. 118; Hall v. Thode (1874), 75 Ill. 173; Ross v. Kozubowski (1989), 182 Ill. App. 3d 687; Pinkerton v. Marcin (1979), 67 Ill. App. 3d 628.

As noted, the Association is a not-for-profit corporation formed pursuant to the General Not For Profit Corporation Act of 1986 (Ill. Rev. Stat. 1991, ch. 32, par. 101.01 et seq.). Significantly, none of the cases cited by defendants involving election challenges involve a challenge to a corporate election. Unlike a citizen who seeks to challenge a municipal or State election without the benefit of statutory authority to do so, plaintiffs’ challenges are based upon specific allegations that defendants failed to conform their conduct to relevant statutory authority, to the Association’s declaration and its bylaws. Unlike the average citizen who has been held to have “ ‘merely a general interest common to all members of the public’ ” (Kluk v. Lang (1988), 125 Ill. 2d 306, 318, quoting Schlesinger v. Reservists Committee to Stop the War (1974), 418 U.S. 208, 219-20, 41 L. Ed. 2d 706, 718, 94 S. Ct. 2925, 2931), the relation of a stockholder to a corporation is more concrete, being contractual in nature. (Hanna v. Breese Trenton Min ing Co. (1983), 114 Ill. App. 3d 657, 660; Roth v. Ahrensfeld (1939), 300 Ill. App. 312, 316, aff'd (1940), 373 Ill. 550. See also Van Daele v. Vinci (1972), 51 Ill. 2d 389, 397 (“[t]he basis for judicial reversal of association action has *** ordinarily been a violation of the constitution or bylaws of the association, or, that the association rules and proceedings violate concepts of fundamental fairness, or, that the association action was motivated by prejudice or bad faith”) (Underwood, J., dissenting).) Thus, while plaintiffs must still allege an “actual, substantial injury and not one which is technical, inconsequential, or speculative” (Lynch v. Devine (1977), 45 Ill. App. 3d 743, 750), it is clear that, as members of the Association, they have tangible and substantial legal interests in being represented by a duly elected board of directors. See Kluk v. Lang (1988), 125 Ill. 2d 306, 313-20 (discussing liberalization of the standing requirement under the declaratory judgment act and finding two voters to have standing to challenge the statutory procedure for filling legislative vacancies, despite fact that neither was a contender for office); see also In Blasius Industries, Inc. v. Atlas Corp. (Del. Ch. 1988), 564 A.2d 651; Aprahamian v. H B O & Co. (Del. Ch. 1987), 531 A.2d 1204.

The trial court’s dismissal of plaintiffs’ amended complaint was based upon the misconception that plaintiffs would have to have been at risk of losing an election to the Board or have actually lost such an election in order for them to have a tangible legal interest in the procedures used by the Board in conducting elections. A reviewing court may sustain a judgment, however, on any grounds called for by the record, regardless of the grounds relied upon by the trial court. (Landmarks Preservation Council v. City of Chicago (1988), 125 Ill. 2d 164, 174; Estate of Johnson v. Condell Memorial Hospital (1988), 119 Ill. 2d 496, 502.) Because additional review will expedite the resolution of the claims raised below, issues raised and briefed by the parties are now considered, including remaining standing considerations.

First, plaintiffs claim that defendant Meyers has wasted the Association’s assets by paying election-related expenditures without Board approval. An incorporated entity such as the Association, however, is an entity separate and distinct from its members. (People v. Parvin (1988), 125 Ill. 2d 519.) The Association’s rights are its own and may not be directly championed by its members. In Illinois, such derivative suits require that demand be made upon the entity in whose favor the action is brought, as well as a showing that such demand was refused. (Karris v. Water Tower Trust & Savings Bank (1979), 72 Ill. App. 3d 339, 350; see also Feen v. Ray (1985), 109 Ill. 2d 339, 345-46 (taxpayer derivative suit).) Alternatively, plaintiffs may show that such a demand would have been futile. (Karris, 72 Ill. App. 3d at 350.) Because plaintiffs have not fashioned their complaint in the form of a derivative suit, nor met the demand requirements of such an action, they fail to present a tangible legal interest in this claim. They therefore lack standing to challenge Meyer’s conduct in this regard. But see Sawko v. Dominion Plaza One Condominium Association No. 1 — A (1991), 218 Ill. App. 3d 521, 526.

In addition, and with specific regard to plaintiffs’ general claims that Meyers has impermissibly used his position on the Board to manipulate Board elections, it should be noted that section 5.10 of the Association’s declaration expressly provides that members of the Board shall not be liable for any mistake of judgment or for any other acts or omissions of any nature except for acts or omissions found by a court to constitute gross negligence or fraud. Such exculpatory clauses do not violate public policy. (Kelly v. Astor Investors, Inc. (1985), 106 Ill. 2d 505, 510; see also Ill. Rev. Stat. 1991, ch. 32, par. 108.70 (limiting directors and officer liability of not-for-profit corporations to acts or omissions amounting to willful or wanton conduct).) While it is true that such exculpatory clauses will not protect Meyers against conduct amounting to a breach of loyalty to the Association, plaintiffs have failed to plead sufficient facts to indicate that such is the case here. Thus, plaintiffs’ claims against Meyers must be dismissed.

Next, plaintiffs allege that the Board failed to give them timely notice of the Association’s 1990 and 1991 annual meetings by mailing such notices 10 days before the respective meetings. Article 5.05 of the Association’s declaration provides that notices of meetings are to be delivered to unit owners no less than 10 days prior to the date fixed for such meeting. Adams alleged in count I of his complaint that he did not receive notice of the 1990 annual meeting until just eight days before the meeting. Additionally, while not raised in his amended complaint, plaintiffs now also argue that they received only eight days’ notice for the Association’s 1991 annual meeting. In reviewing his allegations with regard to the 1990 annual meeting during Adams’ emergency motion, the trial court declined to stay the election and ultimately confirmed the election results. Adams did not appeal this decision.

We conclude that plaintiffs’ failure to raise the notice issue with regard to the 1991 election has waived this claim. (Skokie Gold Standard Liquors, Inc. v. Joseph E. Seagram & Sons, Inc. (1983), 116 Ill. App. 3d 1043, 1052; Cosentino v. Price (1985), 136 Ill. App. 3d 490, 494.) In addition, the passage of time with regard to the 1990 election has rendered the issue moot and not, therefore, subject to review under the declaratory judgment act.

A case is said to be moot when it involves no real controversy. (Szczurek v. City of Park Ridge (1981), 97 Ill. App. 3d 649, 654.) Even when brought under the declaratory judgment act, a case should not be reviewed merely to resolve an abstract question, to establish a precedent, or to render a judgment to guide future potential litigation. (Clyde Savings & Loan Association v. May Department Stores (1981), 100 Ill. App. 3d 189, 192; Rasky v. Anderson (1978), 62 Ill. App. 3d 633, 635.) Defendants argue that because the 1991 election has come and gone, and because the 1990 election results have been confirmed, there no longer exists a real controversy with regard to this issue. They cite Kohan v. Rimland School for Autistic Children (1981), 102 Ill. App. 3d 524, for the proposition that challenges to a private association’s election are mooted by occurrence of subsequent elections. Plaintiffs do not disagree with this general principle, but argue that the “public interest exception” to the mootness doctrine should allow them to pursue their claim. See Kohan, 102 Ill. App. 3d at 528; Kern v. Chicago & Eastern Illinois R.R. Co. (1963), 44 Ill. App. 2d 468, 476.

In asserting that the public interest exception to the mootness doctrine should be invoked, plaintiffs allege that the Association’s untimely notice in 1990 and 1991 constitutes a pattern of improper conduct. They also argue that a ruling on this issue would resolve an important question of public interest. It is important to bear in mind, however, that defendants have not argued that eight days’ notice is sufficient under the declaration. Because the parties appear to be in agreement on the impropriety of eight days’ notice, there no longer appears to be an ongoing and actual controversy with regard to this issue. It should also be noted that plaintiffs have not supplemented their pleadings with allegations that notice was tardy for the elections that presumably occurred in 1992. Again, courts of review should not issue opinions merely to establish precedent. The public interest exception to the mootness doctrine should not, therefore, be invoked.

Plaintiffs also seek a declaration that the Board’s procedure in not disclosing to unit owners their right to cumulatively vote proxies was improper and that the failure to make such a disclosure necessarily interferes with the fairness of the election process. Both sides agree that section 5.06 of the Association’s declaration guarantees members the right to cumulate their votes in Board elections. At a Board meeting on October 16, 1991, plaintiff Adams submitted the following resolution to the Board which the Board refused to adopt:

“RESOLVED: that the proxy form distributed by the association for board elections *** detail the right of the Unit Owner to cumulate his vote and vote all his individual votes for one candidate or to spread his vote for more than one candidate.”

The three elements necessary to bring a claim under the declaratory judgment act are present raider these facts. First, and as noted, plaintiffs have a tangible legal interest in being represented by a Board that is duly elected. Second, plaintiffs argue that the Association opposed plaintiff Adams’ attempt to advance those interests when it refused to implement his resolution. Finally, while it might be argued that the November 5 letter sent by Meyers indicates that this issue is moot or that there is no ongoing and actual controversy between the parties with regard to this issue, a review of the arguments raised by defendants indicates that this is not the case. Defendants have taken the position that they were under no obligation to give notice to unit owners of cumulative voting rights. Presumably defendants will take such a position in future elections. In such circumstances court review is proper. Kern v. Chicago & Eastern Illinois R.R. Co. (1963), 44 Ill. App. 2d 468.

Despite the fact that plaintiffs have standing to raise this issue, however, the substance of their argument must fail. For support, plaintiffs cite provisions of both the Business Corporation Act (Ill. Rev. Stat. 1991, ch. 32, par. 7.55 (governing Illinois business corporation proxy solicitations)) and the federally enacted Securities Exchange Act of 1934 (15 U.S.C. §78n (1988); see also 17 C.F.R. §240.14a — 9 (1992) (regulations governing proxy solicitations and cumulative voting disclosures trader Federal securities law)). They argue that these provisions indicate the desirability of such a rule being applied to the Association.

As defendants contend, however, the Association was under no obligation to provide a detailed explanation of cumulative voting. As noted, Illinois condominium associations are governed by the Condominium Property Act (Ill. Rev. Stat. 1991, ch. 30, par. 301 et seq.). The Condominium Property Act comprehensively regulates the creation and operation of Illinois condominium associations. The Condominium Property Act sets forth several detailed requirements concerning voting, and, in particular, contains two requirements with respect to proxies. The first is found in section 18(a)(18), which requires only that:

“[A]ny proxy distributed for board elections gives unit owners the opportunity to designate any person as the proxy holder and gives the unit owner the opportunity to express a preference for any of the known candidates for the board or to write in a name.” (Ill. Rev. Stat. 1991, ch. 30, par. 318(a)(18).)

The second provision is found in section 18(b)(9), which states:

“that unless the Articles of Incorporation or the bylaws otherwise provide, a unit owner may vote by *** his duly authorized attorney in fact; that the proxy shall be invalid after 11 months from the date of its execution, unless otherwise provided in the proxy, and that every proxy must bear the date of execution.” (Ill. Rev. Stat. 1991, ch. 30, par. 318(b)(9).)

A review of the record indicates that the Association complied with both sections. Thus, citation to neither provision supports plaintiffs’ claim.

Plaintiffs next argue that “no omissions of material facts should be tolerated” and that section 7.55 of the Business Corporation Act of 1983 (Ill. Rev. Stat. 1991, ch. 32, par. 7.55) should be applicable to all corporations, not for profit corporations, and condominiums. However, plaintiffs’ argument ignores the fact that the Association is a not-for-profit corporation whose affairs are governed not by the provisions of the Business Corporation Act of 1983, but rather, by the General Not For Profit Corporation Act of 1986 (Ill. Rev. Stat. 1991, ch. 32, par. 101.01 et seq.). While the General Not For Profit Corporation Act and the Business Corporation Act have similar provisions with respect to some matters, the proxy provisions in the General Not For Profit Corporation Act and the Business Corporation Act are distinct. Significantly, the General Not For Profit Corporation Act, which was passed after passage of the Business Corporation Act, omits the Business Corporation Act provisions relating to proxy solicitations and disclosures cited by plaintiffs. Thus, it is clear that the legislature, which enacted both statutes, did not intend for the Association to be subject to the Business Corporation Act’s proxy solicitation requirements.

We also reject plaintiffs’ suggestion that the principles embodied in Federal securities law should be applied to the Association’s proxies. Courts are not legislative bodies, and absent relevant statutory authority, we decline to impose burdens on not-for-profit corporations which the legislature deliberately omitted.

Plaintiffs next question whether the defendant Meyers, as president of the Board, may rightfully vote in elections on behalf of units which are owned by the Association itself. One of the Association’s traits is used by the building engineer as his residence and this unit was voted, pursuant to the Association’s declaration, by defendant Meyers in the 1990 and 1991 elections. Because the voting of the Association-owned unit made no difference in the outcome of either election, however, and because there is the strong possibility that such practice may never affect the outcome of subsequent elections, plaintiffs can allege no specific harm to their representational rights. They therefore fail to have standing to raise this claim.

Finally, plaintiffs attack the voting by the Association of units pursuant to the Board’s proxy resolution. In both 1990 and 1991 defendant Meyers, as president of the Association, sent letters to unit owners which stated:

“If you designate that your proxy is to be voted by me at the Annual Meeting, then I will vote your proxy consistent with the vote of a simple majority of the Board members present at the meeting. This procedure was established through a Board resolution several years ago as a way for the Board members to vote the proxies in the same manner that all other matters are decided by the Board. You may also designate anyone else to vote your proxy.”

Proxies distributed with this letter contained the following language:

“I, _, hereby represent that I am an Owner of Unit No. _in Carl Sandburg Village Condominium Association No. 7, and do hereby grant my proxy to__If no designation is made, then this proxy shall be deemed to be granted to Thomas R. Meyers, President, or in his absence, Nathan Swift, Vice-President ***.”

The proxy resolution adopted by the Board in 1987 states:

“RESOLVED, that the President, or in his absence the Vice-President *** who votes proxies at the Annual Meeting of the Homeowners, be so instructed to vote those proxies in accordance with the wishes of the Board members present at that meeting. The voting by Board members present at the meeting shall be on a non-cumulative basis and the ballots shall be confidential and collected by the President, or in his absence by the Vice-President *** and those ballots counted after the adjournment of the Annual Meeting in the presence of at least 2, but not more than 3, other officers and/or members of the board, and the way the proxies were voted by disclosed as part of the minutes of the succeeding Board meeting.”

In support of this procedure, the Association contends that owners may prefer to exercise this voting option if satisfied with the Board’s handling of the affairs of the Association and if the unit owner either does not trust an individual with his proxy or believes that the Board is in a better position than the unit owner to evaluate the slate of candidates. Indeed, at the hearing before the circuit court on November 18, 1991, the court was informed that 33 proxies had been cast in the 1991 election pursuant to the proxy resolution.

Of the five incumbent candidates running for reelection in 1991, all five received the benefit of votes from the president voted pursuant to the proxy resolution. Two incumbents would not have been elected without this support. Plaintiff DeHetre did not receive the support of the Board. Because the plaintiffs have a tangible legal interest in the voting procedures used to elect the Board, because the Association, through the Board, blocked plaintiffs’ attempts to revoke the proxy resolution, because this Board practice has had an effect on past elections and because the defendants have indicated that they intend to continue this practice, plaintiffs have standing to raise this claim.

Plaintiffs first point to section 18(a)(17) of the Condominium Property Act (Ill. Rev. Stat. 1991, ch. 30, par. 318(a)(17)), which states:

“[T]he board of [directors] may disseminate to unit owners biographical and background information about candidates for election to the board if: (1) no preference is expressed in favor of any candidate; and (2) reasonable efforts to identify all candidates are made and all candidates are given an opportunity to include biographical and background information in the information to be disseminated.”

Plaintiffs contend that this provision prohibits the president from voting proxies, pursuant to the proxy resolution, because doing so expresses a Board preference for a particular candidate. However, as the trial court correctly noted, “the purpose of the provision is not to use the money of the organization to advocate any particular candidate to be elected to office.” Because the Board’s proxies did not advocate any particular candidate, section 18(a)(17) was not violated.

Plaintiffs also note that the Condominium Property Act (Ill. Rev. Stat. 1991, ch. 30, par. 318(a)(l)) and section 5.03 of the Association’s declaration restrict proxy designees to “unit owners.” They also point out that that there is a distinction between Board “resolutions” and “bylaws” and argue that the Proxy Resolution, in that it is “a permanent and continuing rule which is general in its operation and nature and is to be applied on all future occasions” (8 W. Fletcher, Cyclopedia of Corporations §4167, at 675 (rev. 1992)), is really a bylaw requiring two-thirds owner approval. They argue that because the Board never received two-thirds owner approval, proxies may not be voted pursuant to the proxy resolution.

These arguments, while inventive, are also without merit. Plaintiffs fail to appreciate that a unit owner, by leaving his proxy blank, gives his proxy to the Board’s president, who is indeed a unit owner. Plaintiffs also fail to appreciate that, even in the absence of the Proxy Resolution, the president of the Association, as president, has the authority to solicit proxies to be voted in any manner so long as he complies with the Condominium Property Act, the General Not For Profit Corporation Act, and the Association’s declaration. While such a solicitation could, in theory, rise to the level of fraud or a breach of fiduciary duty, it must be stressed again that plaintiffs have alleged no facts to indicate that such is the case here. Because the Association’s practice of allowing the president to solicit proxies has not violated any relevant statutory or common law principle, plaintiffs’ claims in this regard must fail.

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

Affirmed.

EGAN and RAKOWSKI, JJ., concur.


source: Caselaw Access Project

author: JUSTICE CAMPBELL

license: Public Domain

text:
      In re MARRIAGE OF MARLYN HYDE AGOSTINELLI, Petitioner-Appellee, and PETER L. AGOSTINELLI, Respondent-Appellant.
    First District (1st Division)
    Nos. 1 — 91—3500, 1 — 92—1573 cons.
    Opinion filed July 26, 1993.

      Schiller, Du Canto & Fleck, of Chicago (Sarane C. Siewerth and R. Christopher Ditton, of counsel), for appellant.
    Rosenfeld, Rotenberg, Hafron & Shapiro, of Chicago (Kathryn D. Farmer and Howard H. Rosenfeld, of counsel), for appellee.
   JUSTICE CAMPBELL

delivered the opinion of the court:

Respondent, Peter Agostinelli (Peter), appeals from a judgment of dissolution of his marriage to petitioner, Marlyn Hyde Agostinelli (Marlyn). On appeal, Peter contends that the trial court erred in: (1) determining that two custodial savings accounts set up on behalf of the couple’s then minor children created an irrevocable gift under the Illinois Uniform Gifts to Minors Act (UGMA) (Ill. Rev. Stat. 1979, ch. 110½, par. 201 et seq.); and (2) denying his request that Marlyn pay his attorney fees. For the following reasons, we affirm.

THE DISSOLUTION PROCEEDINGS

The record sets forth the following relevant facts. Peter and Marlyn were married on March 30, 1962. At the time of the dissolution proceeding, Peter was 58 and Marlyn was 51. Two children were born of the marriage, Janet and Paul, ages 27 and 17, respectively. The parties began experiencing serious marital difficulties in 1986. Marlyn filed a petition for dissolution on August 27, 1987, and on August 1,1988, Marlyn moved out of the marital residence.

The record discloses that at the time of trial on August 7, 1990, Marlyn was employed as an office manager at Organizational Dynamics Inc. (ODI), with an annual income of approximately $25,000. Prior to this employment, Marlyn had been a homemaker. Until his resignation in 1986, Peter was employed by G.D. Searle & Co. (Searle) as a corporate planner at an annual salary of $60,000. At the time of trial, Peter was working as a temporary accountant earning an annual income of approximately $17,000.

The parties stipulated that Peter had the following assets: an account through the Calvert Group with a balance of $71,659.20; an Individual Retirement Account (IRA) totalling $20,913.48; a pension fund through Searle in the amount of $20,520.07; a capital accumulation account valued at $18,560.23; and a Veteran’s Administration insurance policy with a cash value of $11,386. The parties further stipulated that Marlyn had an IRA account valued at $2,171.56, and that they would split the proceeds from the sale of the marital residence pursuant to court order. In addition, Janet’s and Paul’s tax returns were admitted into evidence.

Marlyn testified that when Paul was young, Peter suggested that they start savings accounts for the children. Marlyn initially objected to putting all of their savings into accounts for the children, but Peter reassured her, telling her not to worry, that he was making a good salary. At that time, Peter’s annual salary was $40,000 or $50,000, and the parties had additional savings in an IRA account, the Searle capital fund and the Searle pension fund. Peter told Marlyn that the purpose of the accounts was to save for the children’s college education and provide funds for their “getting started in life.”

The record shows that in 1980, Peter established two custodial savings accounts, one each for Janet and Paul, under the UGMA. Peter named himself as custodian of the accounts with sole signatory power and deposited approximately $28,000 in each account.

Marlyn and Peter had discussions with both Janet and Paul, individually, to inform them about the existence of the accounts. Peter told Janet that funds were put aside in her name for college, and Peter told Paul that he had put some money in savings for Paul for when he grew up.

In late May 1986 Paul was hospitalized. In June 1986 Peter resigned from his position at Searle. Peter testified that he resigned because he was disorganized and extremely depressed. Peter stated that he remained in bed for three months following his resignation, after which time he sought medical treatment in the form of private and group therapy. At the time of trial, Peter sought therapy weekly. Peter offered no expert testimony regarding his mental condition.

Upon his resignation from Searle, Peter elected to terminate his family medical insurance. During 1986, Peter withdrew approximately $25,000 to $30,000 from Paul’s UGMA account to pay Paul’s hospitalization and medical expenses. On another occasion, Peter withdrew $9,000 from Janet’s account to buy a car and to pay household expenses. Marlyn testified that she was unaware of these withdrawals, having first learned that Peter had withdrawn money from the UGMA accounts at Peter’s deposition. The record shows that deposits were made into the two UGMA accounts between June 9, 1980, and December 1, 1982, and that all withdrawals were made from the UGMA accounts between January 24, 1986, and April 18, 1988. In addition, the record shows that Peter prepared tax returns on behalf of both Janet and Paul, claiming UGMA account interest.

Peter disputed Marlyn’s testimony regarding the establishment of the UGMA accounts. Peter stated that he established the savings accounts in the children’s names for “tax avoidance” purposes, without informing Marlyn. Peter stated that he had sole control of the accounts and used them as his personal “stash” to shield money from taxes. At the time of the proceeding, the remaining funds from the UGMA accounts totalled $71,659.20 and were held in an account in Peter’s name only. Peter made no additional offer of proof.

At the conclusion of the hearing, the trial court granted dissolution, finding that Peter’s transfer of the parties’ savings to the children in 1980 under the UGMA constituted a fully completed gift. The court stated that Peter’s characterization of “tax avoidance” was actually tax evasion, which is illegal. The court found improper Peter’s action of transferring the UGMA accounts into his individual name and ordered Peter to return the $71,659.20, plus interest, to Janet and Paul. In addition, the trial court ordered Peter to pay any tax liability incurred by Janet and Paul by virtue of his action of removing assets from their accounts, and to reimburse their accounts for the money he removed out of his share of the proceeds from the sale of the marital residence. The trial court awarded 55% of the marital assets to Marlyn and 45% of the marital assets to Peter, and ordered each party to pay his and her own debts. Judgment for dissolution of marriage was entered on September 5, 1990, reflecting the trial court’s findings.

HEARING ON PETER’S MOTION TO RECONSIDER

On October 5, 1990, Peter filed motions to vacate the judgment and to reconsider. The trial court held a hearing on Peter’s motions on January 15, 1991, and March 11, 1991. At the hearing, the trial court initially denied Peter’s motion to vacate the judgment.

Regarding his motion to reconsider, Peter argued that the trial court failed to consider his evidence at trial rebutting the presumption of a gift under the UGMA. In response, the trial court stated that Peter had the opportunity to present evidence to rebut the presumption of a gift under the UGMA, but that the trial court found the evidence Peter presented insufficient to rebut the presumption. The court found that the only evidence Peter presented to rebut the presumption was Peter’s testimony as to his own state of mind, and that Peter made no additional offer of proof. The court stated that it was not persuaded by Peter’s rebuttal because his description of his intentions constituted tax evasion and the court did not believe that Peter intended to do an illegal act at the time he created the UGMA accounts. The court further stated that the presumption of a gift was reinforced by the facts that Peter established the UGMA according to the proper procedure, and complied with the appropriate tax requirements for the accounts on his tax returns.

Peter further contested the court’s jurisdiction to order him to reimburse the children for the monies he had taken from the UGMA accounts because the children had not intervened as parties in the lawsuit and therefore were not properly before the court. At the conclusion of the hearing, the trial court ruled that it had erred in ordering Peter to reimburse the children any sums of money because it did not have the proper jurisdiction. The trial court found that the account held in Peter’s name containing the proceeds from the children’s UGMA accounts was no longer a marital asset, but rather belonged to Janet and Paul as a fully completed gift. As such, the trial court deleted its finding relative to tax evasion, as well as that portion of the decree ordering Peter to reimburse the children out of the proceeds of the sale of the marital home. An amended judgment for dissolution of marriage was entered on September 16, 1991, reflecting the trial court’s findings.

Following the trial court’s denial of his post-trial motion, Peter filed his timely notice of appeal from the amended judgment of dissolution on October 28,1991.

ATTORNEY FEES PETITIONS

On December 12, 1990, Marlyn filed a petition for attorney fees, but withdrew her petition at the commencement of the hearing on October 17,1991.

Meanwhile, on October 15, 1991, Peter filed a petition for attorney fees under section 508 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1991, ch. 40, par. 508(a)), requesting that Marlyn reimburse him for all fees paid in connection with the trial and post-trial proceedings. The hearing on Peter’s motion for attorney fees commenced on February 5, 1992. At the hearing, William P. Gieseke, Peter’s psychotherapist, testified on Peter’s behalf that he has been treating Peter since 1986. The trial court ruled that Gieseke was not an expert relative to the diagnosis of mental disorders and thus could not testify as to Peter’s alleged emotional condition.

Gieseke testified that. Peter complained of depression and paranoia, and that he treated Peter for his behavioral fears including the fears that: he is being followed by previous employers; his phones are tapped; his lawyers and his wife are conspiring against him to take away his money; that people pry into his personal affairs; and that he has a very hard time working because of these fears. Following this testimony the court specifically found that Peter is not a disabled person. Gieseke stated that Peter is currently being treated with medication for depression and anxiety.

Gieseke testified that Peter would like to gain full-time employment, but that because of his fears that supervisors are monitoring him and employees talking about him, he is unsuccessful at maintaining long-term employment. Gieseke stated that Peter does well in temporary work, however, because his fears do not become amplified and do not attach to any specific person. On cross-examination, Gieseke admitted that he never specifically told Peter that he is unable to obtain full-time employment.

Peter testified on his own behalf that he has a bachelor’s degree and master’s degree in production management and has taken the certified public accountant examination. Peter is currently employed as a temporary accountant at $9.50 per hour and during 1991 he earned a gross annual income in excess of $17,000. Peter stated that his ordinary living expenses total $2,382.18 per month, but that his current net income of $1,043.16 per month does not permit him to spend money as shown on his expense affidavit. As an illustration, Peter stated that he has not had a haircut in six months, has not taken his clothes to the cleaners in three years, and cannot put any money away for savings. However, Peter stated that he is able to live within the income he is making. On cross-examination, Peter admitted that his income is actually higher than that reflected in his income affidavit and that his expenses are actually lower.

Peter stated his current assets consist of $79,927.24 as his share of the proceeds from the sale of the marital residence, $65,000 of which he used for his appeal bond; an IRA consisting of approximately $22,000; his Searle capital accumulation plan account consisting of $28,000 to $30,000; the Calvert account valued at $78,194.83, which the court designated nonmarital and belonging to the Agostinelli children; and a checking account with a balance of approximately $2,100. In addition, Peter has a savings account held in joint tenancy with his mother, but Peter stated that he did not know the balance of the account and that he cannot use the money for his own purposes.

Peter testified that he paid the following amounts in attorney fees: $1,734.35 to Frederick Lurie, Peter’s first attorney; $6,900 to Burton Witt, Peter’s trial attorney; $10,500 to Sarane Siewerth for the post-trial matters and the appeal; and $6,000 to $8,000 to Jay Grodner, Peter’s attorney for the fee hearings. Peter testified that in order to pay his attorney fees, he borrowed money from his mother and signed notes for repayment terms. When the notes started coming due, Peter borrowed $11,500 against his life insurance policy to pay off some of the notes, but he stated that he still owes his mother some money.

Marlyn testified that she is currently a course instructor for the Management Association of Illinois. As a course instructor, she conducts 8-week, 20-hour training courses. She is contracted by course and paid $560 at the end of the term for each course. As of the date of the hearing, Marlyn had not yet finished her first course and had not yet been paid.

Marlyn testified that she was laid off from her position as office manager for GDI on December 31, 1991, and received severance payments of approximately $3,300. Following her termination, Marlyn was able to continue her insurance benefits under the COBRA program at her own cost of $628.13 per month.

Marlyn stated that as of July 1991 her salary at ODI was approximately $27,000. Marlyn’s tax return for 1990 reflected a gross income of $24,020.01 from ODI. Marlyn stated that she cashed in an IRA account in the amount of $6,800 to purchase computer equipment for a word processing business. During 1990, Marlyn earned approximately $5,000 from her word processing business. In addition, she earned $190 from a speaking engagement at the Winnetka Community House, and $1,120 from the Management Association of Illinois.

In January and February 1992 Marlyn received $892.66 monthly in unemployment compensation, but the payments ceased after she notified the government that she had obtained part-time employment. Marlyn testified that she is actively seeking full-time employment.

Marlyn stated that she received $115,000 in proceeds from the sale of her marital home. Of that money, $25,000 remains in an escrow account pending the appeal of this matter, $10,000 was paid to Marlyn’s attorney for the appeal, and Marlyn anticipated additional attorney fees of $15,000. Marlyn spent $17,903 to repay credit card and automobile debts and other personal expenses. Marlyn stated that after all her expenses are paid, she will have left approximately $22,000, some of which she must use to pay capital gains tax penalties on the sale of the marital home. Marlyn noted that Peter will not have to pay capital gains taxes on his share of the proceeds from the house because he is over 60 years old and is therefore exempt. Marlyn’s additional assets consisted of $3,675 in profit sharing from ODI and $10,208.13 representing her portion of the Searle capital accumulation plan.

Sarane Siewerth testified on her own behalf that she was retained by Peter in the fall of 1990 to handle his motion to reconsider and his subsequent appeal. The court stated that it would only consider the time Siewerth expended through the entry of the amended judgment and would not consider her testimony relative to the fee petition because she was merely a witness and not an advocate on Peter’s behalf. The court further stated that it would not consider Siewerth’s work on Peter’s appeal because that work was not the subject of the fee petition. Siewerth stated that Marlyn negotiated to settle the case, but that Peter chose to try the case. Siewerth stated that her hourly fee was $240 and that she sought fees totalling $10,634.50.

Jay Grodner testified that Peter retained him in August 1991 to defend Marlyn’s fee petition and that Peter informed him that he would be working and consulting with Siewerth. The court stated that although an attorney is not entitled to seek fees as a result of a fee hearing to collect his own fees, he is entitled to seek fees as a result of seeking fees on behalf of his client. Grodner testified that his hourly rate is $175 and that he is seeking a total of $4,197.50 in fees for 32.5 hours expended. The court allowed Grodner to testify to the hours he expended on behalf of Peter beyond his filing of the fee petition. However, Grodner did not testify as to time or fees he incurred as a result of prosecuting Peter’s fee petition, stating it was his interpretation that the court would not consider the time compensable.

Following the closing arguments of counsel, the trial court found that Peter is far better educated than Marlyn, and that he is able to earn money, but that he elected not to obtain a job. The trial court considered the parties’ assets and Peter’s tax-exempt status relevant to the sale of the marital home. The trial court found that Peter failed to establish any basis for which attorney fees could be charged against Marlyn. The trial court therefore denied Peter’s fee petition, indicating that Peter had failed to sustain his burden under section 508(a). Peter’s timely appeal of the trial court’s order denying his petition for attorney fees followed on May 11, 1992, and his two appeals were consolidated by this court.

Opinion

Initially, Peter contends that the trial court erred in deciding that the marital funds used to establish two custodial accounts under the Uniform Gift to Minors Act (UGMA) (Ill. Rev. Stat. 1979, ch. 110½, par. 201 et seq.) (as amended, the Uniform Transfers to Minors Act (Ill. Rev. Stat. 1991, ch. 110½, par. 251 et seq.)) constituted fully completed gifts to the parties’ children, Janet and Paul Agostinelli. In its amended judgment of dissolution, the trial court concluded that the funds were not marital property, but rather belonged to the children. Peter argues that the money is in fact marital and must be distributed as part of the marital estate. Peter argues that the trial court failed to consider the fact that the necessary donative intent for the establishment of a gift under the UGMA was lacking at the time he opened the two bank accounts in the names of his minor children.

Sections 2 and 3 of the UGMA provide as follows:

“An adult may, during his lifetime *** provide for a gift of a security or money *** to a person who is a minor on the date of the gift or distribution:
* * *
(3) if the subject of the gift is money, by paying or delivering it to a broker or domestic financial institution for credit to an account in the name of the donor, another adult or a trust company, followed, in substance, by the words: ‘as custodian for ... (name of minor) under the Illinois Uniform Gifts to Minors Act.’ ” Ill. Rev. Stat. 1979, ch. 110½, par. 202(a)(3).
“A gift made in a manner prescribed in this Act is irrevocable and conveys to the minor indefeasibly vested title to the security or money, *** but no guardian of the minor has any right, power, duty or authority with respect to the custodial property except as provided in this Act.” Ill. Rev. Stat. 1979, ch. 110 ½, par. 203(a).

In Heath v. Heath (1986), 143 Ill. App. 3d 390, 493 N.E.2d 97, this court noted that the UGMA is designed to make an inter vivos gift to a minor and that a valid inter vivos gift requires proof of donative intent and delivery of the subject matter. (Heath, 143 Ill. App. 3d at 394, 493 N.E.2d at 100.) The court then held that documentary compliance with the statutory mechanisms of the UGMA constitutes prima facie evidence that a gift was made and intended, but that in appropriate circumstances, extrinsic evidence may be introduced to rebut the prima facie showing provided by the prescribed documentation of the Act. Heath, 143 Ill. App. 3d at 395; see also Gordon v. Gordon (1979), 70 A.D.2d 86, 419 N.Y.S.2d 684; In re Marriage of Jacobs (1982), 128 Cal. App. 3d 273, 180 Cal. Rptr. 234; Golden v. Golden (Fla. Dist. Ct. App. 1983), 434 So. 2d 978.

Here, Peter admitted opening the accounts in the names of his children under the provisions of the UGMA. The documentary evidence of the accounts thus constituted a prima facie showing that the accounts were intended to be irrevocable gifts to the named minors under the UGMA. Although Peter argues that he opened the accounts for “tax avoidance” purposes, not for gift purposes, and that he intended to use the accounts as his own personal “stash” to shield money from taxes, Peter’s testimony is contradicted by the record. Marlyn testified to a conversation with Peter some time prior to the opening of the accounts wherein Peter stated that it was his intention to put money into savings for the children’s education. Marlyn further testified that Peter had separate conversations with each child, informing them of the existence of the accounts. The record further shows that Peter made deposits into the two UGMA accounts between June 9, 1980, and December 1, 1982, and that he did not withdraw any money from the UGMA accounts until January 24, 1986, the year in which the parties began to have serious marital difficulties. In addition, the record shows that Peter prepared tax returns for both children, claiming UGMA account interest. Cf. Jacobs, 128 Cal. App. 3d at 278, 284-85, 180 Cal. Rptr. at 237, 240-41 (both parties testified that throughout the marriage they placed extra money into UGMA accounts to avoid adverse tax consequences and that they treated the money in the accounts as their own).

The burden was upon Peter, as the one questioning the creation of a gift, to overcome the presumption of donative intent by clear, convincing, unequivocal, and unmistakable evidence. (Heath, 143 Ill. App. 3d at 396, 493 N.E.2d at 101.) The record shows that Peter was given the opportunity, but failed to overcome the presumption of donative intent.

Regarding Peter’s assertion that his ability to overcome the presumption of donative intent was unduly restricted by the trial court, Peter’s failure to make any offer of proof during the trial constitutes a waiver of any error on review: “[A] party claiming he has not been given the opportunity to prove his case must provide a reviewing court with an adequate offer of proof of what the excluded evidence would have been.” (Chicago Park District v. Richardson (1991), 220 Ill. App. 3d 696, 701, 581 N.E.2d 97, citing Lukas v. Lightfoot (1985), 131 Ill. App. 3d 566, 476 N.E.2d 1.) In the absence of an offer of proof, the issue of whether evidence was improperly excluded is deemed waived. Richardson, 220 Ill. App. 3d at 702.

Peter further argues that the trial court improperly denied his request that Marlyn pay his attorney fees. Section 508(a) of the Illinois Marriage and Dissolution of Marriage Act (Act) provides that the court may order either spouse to pay attorney fees incurred by the other spouse after it considers the financial resources of the parties. (Ill. Rev. Stat. 1991, ch. 40, par. 508(a).) The award of attorney fees is within the discretion of the trial court and will not be disturbed absent an abuse of discretion. In re Marriage of Olbrecht (1992), 232 Ill. App. 3d 358, 597 N.E.2d 635.

After considering the property distributed to Peter and to Marlyn, and their respective assets and employment potential, the court found that each party should be responsible for his or her own attorney fees. The record does not support Peter’s contention that he was prevented from presenting additional offers of proof regarding his payment of attorney fees. In fact, the record shows that Peter’s counsel elected not to testify regarding certain fees based only on his presumption that the trial court would not entertain such testimony. As such, this issue is waived. See Richardson, 220 Ill. App. 3d at 702.

Peter’s further argument that Marlyn failed to disprove the reasonableness of Peter’s attorney fees in reliance on Kaiser v. MEPC American Properties, Inc. (1987), 164 Ill. App. 3d 978, 518 N.E.2d 424, is without merit. In Kaiser, this court specifically stated that the burden is on the party seeking the fees to produce detailed facts and computations upon which the claim for fees is predicated. (Kaiser, 164 Ill. App. 3d at 975.) Peter has not demonstrated an inability to pay his own attorney fees; therefore, we uphold the trial court’s ruling. See In re Marriage of Madoch (1991), 212 Ill. App. 3d 1007, 1017, 571 N.E.2d 1029.

For the reasons stated above, we affirm the judgment of the trial court.

Affirmed.

MANNING, P.J., and O’CONNOR, J., concur.