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10/21/97 MARRIAGE SARA DAVIS v. ROBERT DAVIS

October 21, 1997

IN RE: THE MARRIAGE OF SARA DAVIS, PETITIONER-APPELLEE,
v.
ROBERT DAVIS, RESPONDENT-APPELLANT.



Appeal from Circuit Court of Vermilion County. No. 88D557. Honorable Joseph P. Skowronski, Judge Presiding.

Released for Publication November 20, 1997.

Honorable Rita B. Garman, J., Honorable Robert J. Steigmann, P.j. - Concur, Honorable James A. Knecht, J. - Concur. Justice Garman delivered the opinion of the court.

The opinion of the court was delivered by: Garman

The Honorable Justice GARMAN delivered the opinion of the court:

Respondent Robert Davis appeals from a judgment of the circuit court of Vermilion County pursuant to section 508 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/508 (West 1996)) requiring that he reimburse petitioner Sara Davis $7,423.66 in attorney fees. The fees at issue were paid by Sara to the attorney who successfully represented her in a lawsuit brought against both Robert and Sara by the Edgar County Bank and Trust Company. The subject of that lawsuit was an unpaid debt allocated to Robert at the time of the parties' divorce. For the reasons stated below, we affirm.

FACTS

Robert Davis and Sara Davis were divorced in 1988 after 27 years of marriage. Sara's petition for dissolution was initially filed in Edgar County, where both parties reside, but the matter was transferred to Vermilion County by agreement of the parties. A judgment of dissolution of marriage was entered by the circuit court of Vermilion County on December 22, 1988, reserving all other issues. On August 16, 1990, a supplemental order was entered dealing with the division of property and the payment of rehabilitative maintenance to Sara. Under the supplemental order, a debt of $67,800 dating from August 1987 to the Edgar County Bank and Trust Company, "characterized as a business loan," was "allocated" to Robert.

On March 19, 1991, Sara filed a petition for rule to show cause in connection with Robert's nonpayment of the bank loan. The record of the April 23, 1991, proceedings on that petition was not provided. The rule to show cause was not issued. (Sara's attorney indicated at a subsequent hearing on October 19, 1993, that the petition was denied because Sara had sustained no damage at that time as a result of Robert's nonpayment of the loan.)

On September 13, 1991, the bank filed suit against both Sara and Robert for nonpayment of the loan. Robert filed for bankruptcy under chapter 13 of the United States Bankruptcy Code on October 18, 1991, and was later dismissed from the bank's lawsuit, which proceeded against Sara. Sara filed a second petition for rule to show cause in connection with this debt on November 12, 1991. Apparently no hearing was held on that petition.

The circuit court of Edgar County found Sara not liable on the business loan and issued a memorandum decision to that effect on August 11, 1992. On September 1, 1992, Robert moved to voluntarily dismiss his bankruptcy case (which he had converted to a chapter 7 bankruptcy proceeding in the interim). He then secured a loan from another bank and paid the business loan in full on October 16, 1992.

Sara, who did not make any payments on the business loan, did, however, incur legal defense fees and costs in connection with the successful defense of the bank lawsuit. On July 30, 1993, Sara filed a third petition for rule to show cause on this matter. Count I sought to have Robert held in contempt for his failure to pay the business loan in a timely manner and ordered to pay her attorney fees for the bank lawsuit. Count II dealt with the ongoing dispute between the parties regarding maintenance payments and is not relevant to this appeal.

On August 20, 1993, Robert entered a special and limited appearance for the purpose of objecting to the jurisdiction of the trial court in this matter and a hearing was held on October 23, 1993. The trial court ruled on November 15, 1993, that it did have subject-matter jurisdiction. The written order was entered on November 28, 1995, nunc pro tunc March 14, 1995. This order also denied the petition to find Robert in contempt inasmuch as he had paid the debt to the bank in full and a finding of civil contempt was not needed to coerce his compliance with an order of the court.

Sara's attorney meanwhile had obtained a default judgment against her in the amount of $7,723.69 in the circuit court of Coles County on December 15, 1993. Between that time and the September 20, 1996, hearing on the parties' relative financial ability to pay the attorney fees, those fees were paid from the proceeds of the sale of Sara's mother's home. There is a factual dispute as to how those funds should be characterized. Robert says that the money used to pay Sara's attorney fees was essentially a gift--it was never repaid, there was no note, and no terms of repayment were established. Sara says that the amount used to pay her attorney was taken from her share of her mother's estate. (During the pendency of this proceeding, Sara's mother sold her home, moved into a nursing home, and later died.)

The trial court entered a final order on December 20, 1996, containing four findings: (1) the trial court did have subject-matter jurisdiction under section 508 of the Act (750 ILCS 5/508 (West 1996)); (2) fundamental fairness requires Robert to reimburse Sara in the amount of $7,423.66 for the attorney fees at issue; (3) Sara lacks the financial resources to pay this debt and had to use a portion of the proceeds of her mother's estate for this purpose, thereby diminishing assets needed for her living expenses and future retirement; and (4) Robert, although he does not have substantial liquid assets, does own property and is able to reimburse Sara if given sufficient time to do so. The order requires Robert to repay Sara $7,423.66 in 60 monthly installments of $123.72 each.

Robert appeals, arguing that (1) the trial court lacked subject-matter jurisdiction under section 508 of the Act, (2) section 508 of the Act does not apply to attorney fees incurred in litigation outside divorce court, and (3) the award of attorney fees to Sara was an abuse of discretion and contrary to law.

I. SUBJECT-MATTER JURISDICTION OF THE TRIAL COURT

The trial court, in its ruling on November 15, 1993, found that it did have subject-matter jurisdiction for the purpose of enforcing the terms of the original judgment. The court thus explicitly rejected Robert's argument that Sara's petition was an impermissible attempt to modify the terms of the property disposition by imposing new terms and conditions. Robert argues that the trial court was in error because count I of Sara's petition, seeking a finding of ...


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