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In re DeLarco

May 05, 2000

IN RE MARRIAGE OF MARK DELARCO, PETITIONER-APPELLANT,
AND
ELIZABETH DELARCO, RESPONDENT-APPELLEE.



Appeal from the Circuit Court of Du Page County. No. 96--D--1213 Honorable Terrence M. Sheen, Judge, Presiding

The opinion of the court was delivered by: Justice Galasso

The petitioner, Mark DeLarco (Mark), appeals from that portion of the judgment for dissolution of his marriage to the respondent, Elizabeth DeLarco (Elizabeth), ordering him to contribute the sum of $19,000 to Elizabeth's attorney fees.

On appeal, Mark raises the following issues:

(1) whether the trial court's finding that Mark had paid his attorney the sum of $18,957.84 was against the manifest weight of the evidence; (2) whether the trial court abused its discretion when it ordered Mark to contribute the sum of $19,000 to Elizabeth's attorney fees; and (3) whether the trial court erred in admitting into evidence Elizabeth's attorney's computerized billing records.

After the filing of the briefs in this case, Mark filed a motion to strike a portion of Elizabeth's appellee's brief on the basis that it raises a new issue and that Elizabeth has not filed a cross-appeal from the judgment. We ordered the motion taken with the case.

An appellee need not file a cross-appeal to preserve an argument ruled on adversely to the appellee in the trial court if the judgment of the trial court was not, at least in part, against him. Stratman v. Brent, 291 Ill. App. 3d 123, 133 (1997). As no part of the judgment was against Elizabeth, we may consider the merits of the issue she raises. Therefore, the motion to strike is denied.

By way of background, Mark and Elizabeth were married on June 18, 1983. Mark is a high school graduate with some college credit hours. Since 1985, he has been employed at the College of Du Page as a programer. He is paid a biweekly gross salary of $2,397.60. Elizabeth is a college graduate. At the time of the marriage, she worked as a secretary and receptionist and later worked temporary jobs. At the time of trial, she was employed by an insurance company and received a biweekly gross salary of $965.13. In 1987, the parties purchased a house in Glen Ellyn, at which time Elizabeth stopped working outside the home. Later she worked for Mark's father's company, managing the office. In 1994, Elizabeth entered a drug rehabilitation program. In November 1994, following Elizabeth's release from treatment, Mark moved out of the marital residence at Elizabeth's request. On May 1, 1996, Mark filed his petition for the dissolution of the parties' marriage.

During their separation, Mark had contributed to Elizabeth's support. In July 1996, following the filing of his petition for dissolution of marriage, Mark was ordered to pay the sum of $1,500 per month to Elizabeth for temporary support. The trial in this case was heard in May 1998, and the hearing on Elizabeth's petition for contribution to her attorney fees was held in August 1998.

At trial, Mark testified that his payments to his attorney came from his First Chicago bank account. Elizabeth testified that she paid her attorney fees from a joint account she had with her father. The account was funded by her father; she did not deposit any funds into that account. She only used the money to pay attorney fees. She also testified that she had an obligation to repay her father, although she had not written any notes to her father to evidence the debt. Later, at the hearing on her petition for contribution to her attorney fees, Elizabeth testified that, since trial, she had borrowed the sum of $9,500 for the payment of her attorney fees. On cross-examination, she acknowledged that she did not sign a note for the above sum.

Mark contends, first, that the trial court's finding that he paid his attorney $18,957.84 was against the manifest weight of the evidence. We agree.

The evidence of Mark's payments to his attorney came from two sources, namely, Mark's testimony and his bank statements. At trial, Mark testified that he had paid his attorney $11,402.80 as of March 1998 and had, subsequent to that date, made two payments to her of between $220 and $250. He had also paid an expert witness $1,029.50. However, he also testified that his bank statements reflected all of the attorney fees and related expenses he had paid. His checking account statements indicated that as of March 5, 1998, he had paid $10,627.80 to his attorney. Adding in the additional payments totaling at most $500, brought the amount to $11,127.80. Elizabeth testified that, as of April 5, 1998, she had made payments to her attorney totaling $18,957.84. That same figure was set forth on Elizabeth's closing argument summary, which was dated May 8, 1998.

During the hearing on attorney fees the trial court stated as follows:

"[Mark] has testified that he has spent 18,000 some dollars from the marital estate, and I can give you the exact figure from his own testimony and records that he spent."

It is clear from the evidence at trial that the most Mark paid to his attorney for fees, excluding the expert witness's fees, was $11,902.80 and not the "18,000 some dollars" as found by the trial court. Therefore, we agree with Mark that the trial court's finding that he paid his attorney $18,957.84 was against the manifest weight of the evidence.

Mark contends, next, that the trial court abused its discretion in ordering him to contribute $19,000 in attorney fees to Elizabeth, since Elizabeth was only personally liable for the balance due to her attorney of $776.65. There is no dispute that Elizabeth had been paying her attorney during these proceedings and that, as of ...


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