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April 27, 1995


Appeal from Circuit Court of Livingston County. No. 90D195. Honorable William M. Roberts, Judge Presiding.

Released for Publication June 6, 1995. As Corrected May 31, 1995.

Honorable Robert W. Cook, J., Honorable Carl A. Lund, J., Honorable Frederick S. Green, J., Concurring

The opinion of the court was delivered by: Cook

JUSTICE COOK delivered the opinion of the court:

Respondent Robert Alan McCoy appeals an order granting petitioner Patricia Kay McCoy sole custody of the parties' minor children. Robert contends the trial court abused its discretion in granting Patricia sole custody, because the parties had been successfully operating under an alternate-week custody schedule for more than two years prior to the court's order. Robert also appeals an order requiring him to pay $5,000 of Patricia's attorney fees. Robert contends that this order was in error, because Patricia established neither that she was unable to pay her own fees, nor that he had the ability to pay. We affirm.

Robert and Patricia were married on February 7, 1981, in Pontiac, Illinois, where they continued to reside. Two children were born of the marriage: Sharla Marie (born July 14, 1981) and Andrea Kay (born August 3, 1982). Patricia filed for dissolution of marriage in September 1990. At the time of the filing, Patricia was 29 years old and employed as a secretary for the Livingston County sheriff's office. Robert was 35 and self-employed as a drafter.

The trial court entered a judgment of dissolution of marriage on November 9, 1991, but reserved issues of custody and visitation. From the time the parties separated in August 1990 until Patricia was awarded sole custody, the children spent alternate weeks with each parent. Robert lived in the marital home, while Patricia obtained an apartment a mile distant. The children kept a complete set of clothes at each residence.

On April 2, 1992, Patricia filed a petition for an emergency order of protection, which accompanied battery charges filed against Robert alleging he hit her and shoved her against a car. The trial court granted the emergency order ex parte. The order entered prohibited Robert from entering or remaining at Patricia's place of employment or the children's school and enjoined him from having any contact with Patricia. Robert failed to appear at the April 10, 1992, hearing on the emergency order of protection, and the court extended the order's effect until April 10, 1993. After a bench trial held October 23, 1992, Robert was convicted of battery.

Following the battery trial, custody hearings commenced before the same judge. During the four days of hearings, Robert argued that the parties' alternate-week custody schedule should continue, while Patricia requested sole custody of Sharla and Andrea. Robert presented evidence that he had been able to cooperate with Patricia regarding parenting during the past two years, and that the children were doing well under the joint-custody arrangement. In contrast, Patricia testified that Robert has a violent temper and that the only time the parties can agree is when she accepts his position. Otherwise, Patricia cannot cope with Robert's anger. Patricia stated that the parties have disagreed over school matters, the hours of telephone contact, sharing the children's clothes and the children's grooming. Patricia also testified that Robert uses marijuana.

On December 30, 1992, the trial court awarded Patricia sole custody of the children. Robert was allowed reasonable, unsupervised visitation upon his submission, and the court's approval, of a plan for screening alcohol or illegal substance use prior to each scheduled visitation. Upon receiving a copy of the custody order, Robert went to the sheriff's office where Patricia was employed, and he stared at her through her office door until the sheriff and several officers asked him to leave. Two days later, Robert attempted suicide.

Robert sought to appeal the restrictions placed on his visitation before the trial court approved a visitation plan. He later moved this court to dismiss the appeal for lack of a final order. (See In re Marriage of McCoy (July 8, 1993, 4th Dist. Gen. No. 4-93-0212) (order of dismissal).) Meanwhile, Patricia sought a second emergency order of protection against Robert. In April 1993, the trial court granted first the emergency order and then a plenary order. Robert appealed the plenary order of protection, and this court affirmed. See In re Marriage of McCoy (1993), 253 Ill. App. 3d 958, 625 N.E.2d 883, 192 Ill. Dec. 728.

On November 8, 1993, Patricia filed a petition pursuant to section 508 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/508 (West 1992)), seeking to compel Robert to pay her attorney fees and court costs. Patricia attested in an affidavit accompanying her petition that she had monthly expenses of approximately $1,303, and a monthly net income of $1,316, excluding Robert's child support payments of $325 a month.

At the March 4, 1994, hearing on the petition, Robert stipulated that Patricia's outstanding fees of $10,000 were reasonable in light of the extensive litigation in this case. However, he argued that Patricia could pay her own fees, while he could not afford to pay both his own and Patricia's legal bills. Patricia testified that in addition to her full-time position as a secretary in the sheriff's office, she worked three part-time jobs. Patricia worked 15 to 20 hours each week for the Livingston County Emergency Telephone System Board, and five hours as a church choir director. In the summer, she worked three hours weekly as a musician in the municipal band. She received her highest rate of pay as a secretary, earning $7.13 per hour. Patricia's adjusted gross income was $19,357 in 1993, and her monthly net income was $1,538, including child support payments. However, Robert was $1,597 in arrears on the date of the hearing. Patricia explained that the net income figure in her affidavit was in error, because she had forgotten to subtract all her taxes.

Patricia stated that her monthly expenses were now $1,590. She explained that several of her expenses had increased since she filed her affidavit. Included in her expenses were payments on a loan she had taken out to pay her attorney fees. In addition to the $10,000 in fees she now owed, Patricia had already paid $2,400. Her credit card debts totalled ...

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