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Beyer v. Parkis

June 29, 2001

IN RE MARRIAGE OF:
MARK BEYER, PETITIONER-APPELLANT,
v.
NANCY PARKIS, F/K/A NANCY BEYER, RESPONDENT-APPELLEE.



Appeal from the Circuit Court of Cook County. No. 91 D 4461 Honorable James J. Gavin Judge Presiding

The opinion of the court was delivered by: Justice Tully

UNPUBLISHED

Petitioner, Mark Beyer, appeals from the circuit court's order holding him in indirect civil contempt and subjecting him to a period of incarceration for refusing to pay $19,0000 in interim attorney fees to respondent, Nancy Beyer, in violation of the circuit court's order. The circuit court granted respondent's petition for fees, pursuant to section 501(c-1) of the Illinois Marriage and Dissolution Act (Dissolution Act) (750 ILCS 501(c-1) (West 1999)), in the course of an action brought by respondent to vacate a judgment for dissolution of marriage. In reaching its determination, the court relied upon information contained in the petition, response and attached affidavits, but did not hold an evidentiary hearing. On appeal, petitioner contends the circuit court was without statutory authority to award fees under section 501(c-1) because this provision applies exclusively to pre dissolution decree proceedings, while section 508(a) (750 ILCS 508(a) (1999)), which allows for an evidentiary hearing prerequisite to an award of fees, is the only mechanism to obtain fees in a post decree proceeding. In the alternate, petitioner contends that the application of section 501(c-1) to post decree proceedings is unconstitutional, and that respondent's petition for fees was insufficient to support an interim award. This court has jurisdiction pursuant to Supreme Court Rule 304(b)(5) (155 Ill.2d R. 304(b)(5)), which allows for the appeal of orders of contempt imposing monetary or other penalties. For the reasons set forth below, we affirm the circuit court's order granting the petition for fees, and vacate the circuit court's order holding petitioner in contempt.

Background

On December 15, 1998, respondent, Nancy Beyer (Nancy) filed a motion to vacate a judgment for dissolution of marriage, entered on July 22, 1993, pursuant to section 2-1401 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-1401) (West 1998)). In her petition, Nancy alleged the marriage settlement agreement, incorporated into the dissolution judgment, was procured by fraud, in that, Mark Beyer (Mark) failed to disclose certain assets of the marriage, namely, an ownership interest in two gas stations and lottery proceeds totaling $289,0000, which were not considered in determining Nancy's maintenance and support for the parties' two minor children. On October 2, 1998, Nancy filed a petition, pursuant to section 501(c-1), seeking interim attorney's fees from Mark in an amount comparable to the fees Mark paid to his own attorney. In an attached affidavit, Nancy represented she was without any financial resources to pay attorney's fees to pursue the action, while Mark had access to vast sources of income derived from the sale of one gas station, the operation of another gas station, and extensive lines of credit with financial institutions based on these assets. In an attached affidavit, Nancy's counsel represented that Nancy had incurred $13,701.25 in attorney's fees in connection with the action to vacate the judgment, would likely incur an additional $15,000 in fees, because substantial discovery and depositions were necessary, and was without the financial ability to pay either her outstanding or prospective fees. Attached to the petition was also a financial disclosure affidavit setting forth Nancy's and the children's income and expenses. Mark moved to dismiss the petition pursuant to section 2-615 of the Code, on the basis the petition failed to set forth sufficient facts to support an award of fees, which motion the court denied. Mark thereafter filed a response to the petition, representing that he had paid his attorney $18,977.50 in fees and costs, but neither admitting nor denying his ability to pay fees, demanding strict proof thereof. Mark did not present a counter affidavit or financial disclosure statement with his response. *fn1 On February 3, 1999, after a hearing at which counsel for both parties appeared and argued, the circuit court granted Nancy's petition and ordered Mark to pay $19,000 of her attorney's fees. In reaching its determination, the court stated it relied upon the allegations in the petition and the response, in relation to the relevant factors set forth under section 501(c-1)(1). On February 23, 1999, Nancy filed a petition for rule to show cause why Mark should not be held in contempt of court because of his continuing refusal to pay the interim fees. On March 18, 1999, Mark brought a motion to reconsider the judgment granting the interim fees, arguing the circuit court lacked authority to award fees under section 501(c-1), which the circuit court denied. On April 9, 1999, Nancy filed a second petition for rule to show cause why Mark should not be held in contempt of court. On May 18, 1999, the circuit court found Mark in contempt for failing to pay the fees and sentenced Mark to a period of incarceration not to exceed 180 days. Upon posting a bond, Mark obtained a stay of judgment pending appeal.

Discussion

Petitioner initially contends that a plain reading of section 501(c-1) reveals the legislature intended this provision to apply only in pre dissolution decree proceedings, while a plain reading of section 508(a) indicates this provision was intended as the exclusive means to recover attorney's fees in a post dissolution decree proceeding. Alternately, petitioner maintains that even if section 501(c-1) applies in post decree litigation, its application in that context is unconstitutional. Because resolution of this appeal hinges on issues of statutory construction and constitutionality, our standard of review is de novo. E & E Hauling, Inc. v. Ryan, 306 Ill.App.3d 131, 136 (1999).

In construing a statute, the goal of the court is to effectuate the legislature's intent. People v. Pullen, 192 Ill.2d 36, 42 (2000). To this end, a court may consider the reason and necessity for the statute and the evils it was intended to remedy, and will assume the legislature did not intend an absurd or unjust result. Pullen, 192 Ill.2d at 42. Any inquiry into legislative intent, however, must begin with the language of the statute, which is the surest and most reliable indicator of legislative intent. Pullen, 192 Ill.2d at 42. Under the guise of construction, a court may not supply omissions, remedy defects, annex new provisions, substitute different provisions, add exceptions, limitations, or conditions, or otherwise change the law so as to depart from the plain meaning of language employed in the statute. Superior Structures Co. v. City of Sesser, 292 Ill.App.3d 848, 852 (1997). If the language of the statute is clear, its plain and ordinary meaning must be given effect without resorting to other aids of construction. In re Marriage of Mitchell, 181 Ill.2d 169, 173 (1998).

On June 1,1997, the legislature amended the Dissolution Act, thereby creating a new regime governing the award of attorney's fees. See Pub. Act 89-712, eff. June 1, 1997. Prior to amendment, section 508 alone governed attorney's fee awards, including "temporary" fee awards, and provided in pertinent part:

" (a) The court from time to time, after due notice and hearing, and after considering the financial resources of the parties, may order any party to pay reasonable attorney's fees necessarily incurred or, for the purpose of enabling a party lacking sufficient financial resources to obtain or retain legal representation, expected to be incurred by any party, which award shall be made in connection with the following:***

(4) The maintenance or defense of a petition brought under Section 2-1401 of the Code of Civil Procedure seeking relief from a final order or judgment under this Act *** " 750 ILCS 5/508(a) (West 1996).

Although section 501 recognized certain forms of "temporary relief" which could be obtained through the submission of petitions and affidavits, in the absence of an evidentiary hearing, and without prejudice to later modification, attorney's fees were not one of these. 750 ILCS 5/501 (West 1996). In order to obtain attorney's fees under the "old" version of 508, therefore, an evidentiary hearing was necessary.

The 1997 amendments changed this, however, introducing a separate, independent provision to govern "temporary" or "interim" fee awards, section 501(c-1), and reconfiguring section 508(a) into an umbrella provision which links the separate statutes on attorney's fees under the Dissolution Act. As amended, section 508(a) now reads:

" (a) The court from time to time, after due notice and hearing, and after considering the financial resources of the parties may order any party to pay a reasonable amount of his own or the other party's costs and attorney's fees. Interim attorney's fees and costs may be awarded from the opposing party, in accordance with subsection (c-1) of section 501. At the conclusion of the case, contribution to attorney's fees and costs may be awarded from the opposing party in accordance with subsection (j) of 503. Fees and costs may be awarded to counsel from a former client in accordance with subsection (c) of this Section. Awards may be made in connection with the following: ***

(4) The maintenance or defense of a petition brought under Section 2-1401 of the Code of Civil Procedure seeking relief from a final order or judgment under this Act. ***" 750 ILCS 508(a) (West 1997).

As amended, section 501, in turn, provides:

"Temporary Relief. In all proceedings under this Act, temporary relief shall be as follows:***

(c-1) As used in this subsection (c-1), "interim attorney's fees and costs" means attorney's fees and costs assessed from time to time while a case is pending, in favor of the petitioning party's current counsel, for reasonable fees and costs either already incurred or to be incurred, and "interim award" means an award of interim attorney's fees and costs. Interim awards shall be governed by the following:

(1) Except for good cause shown, a proceeding for (or relating to) interim fees and costs shall be nonevidentiary, summary in nature, and expeditious. When a party files a petition for interim attorney's fees and costs supported by one or more affidavits that delineate relevant factors, the court (or hearing officer) shall assess an interim award after affording the opposing party a reasonable opportunity to file a responsive pleading. A responsive pleading shall set out the amount of each retainer or other payment or payments, or both, previously paid to the responding party's counsel by or on behalf of the responding party. In assessing an interim award the court shall consider all relevant factors, as presented, that appear reasonable and necessary, including:

(A) the income and property of each party, including alleged marital property within the sole control of one party and alleged ...


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