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Donnelley v. Donnelley

OPINION FILED JANUARY 14, 1980.

HELGA DONNELLEY, PLAINTIFF-APPELLEE,

v.

JAMES R. DONNELLEY, DEFENDANT-APPELLANT AND CROSS-APPELLEE. — (RINELLA & RINELLA, PETITIONER-APPELLEE AND CROSS-APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. RAYMOND P. DRYMALSKI, Judge, presiding.

MR. JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT:

This appeal is taken by James R. Donnelley (hereinafter defendant) from an order of the circuit court of Cook County awarding his wife, Helga Donnelley (hereinafter plaintiff), partial attorneys' fees as a part of their divorce judgment. On appeal the defendant argues: (1) that the trial court erred in requiring the defendant to pay a major portion of the plaintiff's attorneys' fees in the absence of proof that the plaintiff was unable to pay her own fees; and (2) that the fees awarded to plaintiff's attorneys were excessive. Pursuant to section 508(b) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 508(b)), plaintiff's attorneys cross-appealed, asserting that the trial court should have awarded them the full amount of attorneys' fees requested and that the defendant should be held solely liable for whatever fees are finally awarded. For the reasons hereinafter enumerated, we affirm the trial court's allocation of the plaintiff's attorneys' fees between the plaintiff and the defendant, but reverse and reduce the amount of the attorneys' fees awarded by the trial court.

Plaintiff's action for divorce was filed on October 16, 1975, to dissolve her 13-year-old marriage to the defendant. Subsequently, on March 11, 1976, the trial court ordered the defendant to pay the plaintiff $3,000 a month as temporary support during the pendency of the suit and $10,000 as temporary attorneys' fees. After 2 1/2 years of litigation, the trial court granted the plaintiff a judgment for divorce on September 30, 1977. The parties were granted joint custody of their two teenage children who attend school in Switzerland. The judgment also awarded the plaintiff, as alimony in gross, $720,000 in equal monthly payments of $4,000 without defeasance due to remarriage for the first 60 months. Additionally, the plaintiff received $200,000 in consideration of her equitable interests in the parties' two residences, a condominium in Chicago and an apartment in Switzerland. The parties divided the household furnishings themselves. The court reserved consideration on the question of attorneys' fees and court costs. No appeal has been taken from the judgment for divorce.

On November 22, 1977, the plaintiff's attorneys, Rinella and Rinella (hereinafter petitioner), filed a petition for the entry of an order for attorneys' fees and costs. The petition alleged that 546 1/2 hours were expended in providing the plaintiff with legal services during the 2 1/2 years the case was pending and sought an award of $85,000. The petition further alleged the defendant's ability to pay for attorneys' fees and court costs and the plaintiff's inability to pay based on her possession "of only nominal assets and income * * *."

The defendant filed an objection to the petition contesting the plaintiff's alleged inability to pay and also the reasonableness, efficiency, and effectiveness of petitioner's professional services. An evidentiary hearing was held on January 5, 1978. On March 9, 1978, the trial court entered a judgment order awarding petitioner $65,000 in attorneys' fees. The court ordered the defendant to pay $55,000 of this amount with a $10,000 credit for the amount paid by the defendant incident to the trial court's earlier award of $10,000 in temporary attorneys' fees. The plaintiff was ordered to pay the $10,000 balance plus costs in the amount of $1,250. It is from this order that the defendant appeals and petitioner cross-appeals. It should be noted that the plaintiff is not a party to this appeal.

• 1 The allowance of attorneys' fees is within the sound discretion of the trial court and such an award will not be reversed unless the trial court has clearly abused its discretion. (Canady v. Canady (1964), 30 Ill.2d 440, 197 N.E.2d 42; Ylonen v. Ylonen (1954), 2 Ill.2d 111, 117 N.E.2d 98; Gasperini v. Gasperini (1978), 57 Ill. App.3d 578, 373 N.E.2d 576.) To justify an allowance of attorneys' fees, the party seeking this relief must show financial inability to pay; financial needs within the context of the couple's prior standard of living; and the ability of the other spouse to pay the attorneys' fees. Gasperini v. Gasperini; Kenly v. Kenly (1977), 47 Ill. App.3d 694, 365 N.E.2d 379.

• 2 The defendant makes no claim that he is unable to pay. Rather he claims that the plaintiff's ample assets prove her capacity to pay. We disagree. The trial judge who heard the parties' divorce case also presided over the petition for fees. Therefore, the trial court was well apprised of the parties' relative financial positions as well as the specific individual assets of each party. Moreover, we should note that it is not necessary for a party to be destitute in order for a trial court to award attorneys' fees. (Gilmore v. Gilmore (1979), 74 Ill. App.3d 831, 393 N.E.2d 33; Carvallo v. Carvallo (1978), 62 Ill. App.3d 394, 378 N.E.2d 1288.) Rather, as the court noted recently in Gasperini v. Gasperini:

"It is sufficient to support an award of fees that disbursement of the wife's funds would exhaust her own estate, or strip her of her means of support and undermine her economic stability." (57 Ill. App.3d 578, 582.)

Based on these principles, courts> have sustained a trial court's award of fees where the party seeking the award had a regular income or salary (Gilmore v. Gilmore; Gasperini v. Gasperini); a savings account (Kaufman v. Kaufman (1974), 22 Ill. App.3d 1045, 318 N.E.2d 282); stocks, securities or other liquid assets (Kenly v. Kenly (1977), 47 Ill. App.3d 694, 365 N.E.2d 379; Kaufman v. Kaufman); or real estate (Gasperini v. Gasperini, Kenly v. Kenly).

In the present case, the plaintiff was granted alimony in gross in the amount of $720,000 and an additional $200,000 as a settlement of her rights in the parties' residences in Chicago and Switzerland. Her assets at the time of filing for divorce of approximately $200,000 were composed of $90,000 in R.R. Donnelley stock, $15,000 in securities, $68,300 in furs and jewelry, and $27,000 in cash. The plaintiff had an income of $5,300 from her assets but no liabilities at this time. The plaintiff was not employed at the time the divorce was filed. At this time the defendant had net assets of $3,676,400. His assets included $3,394,100 in his own trust, $200,000 in shares of R.R. Donnelley stock, $270,000 in real estate, $284,000 in art work, and a yearly gross income of $171,800. The defendant is also the beneficiary under his father's will of a residual trust valued at between $1,500,000 and $2,000,000 with a yearly income value of between $75,000 and $100,000.

While the present case is unique because of the great wealth of the parties, we are still required to decide this case upon settled legal principles. A reading of Illinois divorce attorney's fees cases suggests that the propriety of an award of attorney's fees depends on the particular facts of each case. In determining whether a party is unable to pay attorney's fees the assets of that party must be weighed in light of the parties' standard of living. (Kenly v. Kenly (1977), 47 Ill. App.3d 694, 365 N.E.2d 379.) In the present case it is undisputed that the parties were very wealthy and that the trial court took this factor into consideration in awarding attorneys' fees. The plaintiff had only $27,000 in cash with an expected yearly income of only $5,300. It was not necessary, as the defendant urges, for the plaintiff to liquidate her assets and consequently reduce her income-producing assets in order to be able to pay her own attorneys' fees. (Kenly v. Kenly.) In Kenly this court sustained an award of attorney's fees where the plaintiff had a 50% share in $136,000 constituting the proceeds from the sale of the family residence, income of $22,500 from securities and trusts, $350,000 in securities, $25,000 to $30,000 in bank deposits and $90,000 equity in her home. There, we noted that:

"* * * the wife should not be required to deplete her capital resources or income-producing assets in order to provide for her support or to pay her attorney during the pendency of the suit for separate maintenance or divorce. [Citations.]" (47 Ill. App.3d 694, 697.)

We concluded that the plaintiff's "substantial securities holdings and other assets do not alter this result." 47 Ill. App.3d 694, 697.

• 3 Nor do we find the defendant's argument that the plaintiff could have paid her attorneys out of her alimony in gross award or out of the additional $200,000 award persuasive. (Hall v. Hall (1976), 43 Ill. App.3d 97, 356 N.E.2d 1156; Green v. Green (1976), 41 Ill. App.3d ...


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