APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
Walker, Petitioner-Appellee, and MILO JOSEPH ZIEMER,
546 N.E.2d 229, 189 Ill. App. 3d 966, 137 Ill. Dec. 475 1989.IL.1606
Appeal from the Circuit Court of Macon County; the Hon. Scott B. Diamond, Judge, presiding.
PRESIDING JUSTICE McCULLOUGH delivered the opinion of the court. KNECHT and STEIGMANN, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH
On September 1, 1988, this court affirmed a trial court order which restricted respondent Milo Ziemer's overnight visitation with his daughter and ordered him to pay $250 in attorney fees. (In re Marriage of Ziemer (4th Dist. 1988), No. 4--88--0256 (unpublished order under Supreme Court Rule 23).) On October 6, 1988, Susan Ziemer, petitioner, filed a petition for fees incurred as a result of the appeal. Her attorney fees and costs in defending the appeal were $1,907.32. The trial court ordered Milo to pay $1,500 of that amount. Milo appeals arguing the trial court abused its discretion in that it did not adequately consider Susan's current husband's income, her income alone did not show an inability to pay the attorney fees, he was unable to pay fees, and the trial court erred in finding he had transferred property to avoid imposition of attorney fees.
The parties submitted statements of assets and liabilities. Although Susan had remarried, she prorated her and Mindy's expenses and did not include expense amounts for Steven Walker, her current husband. Susan had a net income from her employment of $820 per month. She received $300 per month from Milo as child support, though stated Milo's payments were sporadic. Milo admitted he was $844 in arrears in his payments. Susan and Mindy's monthly expenses were $1,080. Susan admitted the $175 car payment expense was deducted from Steven's check. Steven also gave her an additional $200 per week. However, she paid $65 of this money to support Steven's child.
Susan and Steven jointly owned a home valued at $33,000 with a $12,564 mortgage. They had $500 in equity in a separate parcel of real estate, with a $19,500 joint debt. They had several other joint debts. Milo listed $1,475 in monthly expenses and $3,401 in debts. He had been unemployed for the week prior to the hearing but expected to be reemployed. When working, he earned $18.75 per hour as an electrician with a weekly take-home pay of $506. When not working, he received $230 per week in unemployment compensation. In 1986 and 1987, respectively, Milo had an adjusted gross income of $35,039 and $33,724.
Milo admitted that during the prior appeal, he gave real estate to his father. Milo testified the real estate was worth $8,000. He admitted he had previously valued it at $20,000 and did not have any indebtedness regarding the real estate.
The trial court found Susan lacked sufficient financial resources to pay her attorney fees and Milo had the ability to pay the fees. It also found Milo dissipated assets by giving realty to his father. Milo had a good job as an electrician, though his work was seasonal. In denying Milo's motion for reconsideration, the court noted Milo's conduct necessitated Susan's legal proceedings to protect Mindy. The modification arose as a result of Milo's practice of showering with eight-year-old Mindy and sleeping in the same bed with her.
An award of attorney fees is a matter within the sound discretion of the trial court, and its decision will not be disturbed on appeal, absent an abuse of discretion. (In re Marriage of Stockton (1988), 169 Ill. App. 3d 318, 523 N.E.2d 573.) Attorney fees are the primary responsibility of the person for whom the services are rendered. (In re Marriage of Rink (1985), 136 Ill. App. 3d 252, 483 N.E.2d 316.) A person seeking an award of fees must establish that he is unable to pay the fees and the other party is able to pay them. (Stockton, 169 Ill. App. 3d 318, 523 N.E.2d 573; In re Marriage of Westcott (1987), 163 Ill. App. 3d 168, 516 N.E.2d 566.) It is not necessary that the spouse seeking fees be destitute; it is sufficient that the payment would exhaust his estate or strip him of his means of support or undermine his economic stability. (In re Marriage of ...