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In Re Marriage of Cecily B. Schinelli,And v. Bruce G. Schinelli

January 12, 2011

IN RE MARRIAGE OF CECILY B. SCHINELLI,AND
PETITIONER-APPELLEE,
v.
BRUCE G. SCHINELLI,
RESPONDENT-APPELLANT.



Appeal from the Circuit Court of Du Page County. No. 05-D-915 and Honorable Linda E. Davenport Judge, Presiding.

The opinion of the court was delivered by: Justice Schostok

JUSTICE SCHOSTOK delivered the judgment of the court, with opinion. Justices Zenoff and Burke concurred in the judgment and opinion.

OPINION

This is the second appeal before this court regarding the dissolution of the parties' marriage. On March 16, 2007, the circuit court of Du Page County entered an order dissolving the 25-year marriage of the parties, Bruce and Cecily Schinelli. The trial court divided the marital estate evenly, factoring in against Bruce's share a charge for dissipation in the amount of $26,273. The trial court ordered permanent maintenance to Cecily in the amount of $6,692 per month. Additionally, the trial court ordered additional maintenance to Cecily in the amount of one-third of Bruce's annual gross income between $200,000 and $650,000 (supplemental maintenance). Bruce appealed from that order. In the first appeal, Bruce argued that the trial court erred in (1) setting the amount of permanent maintenance; (2) ordering supplemental maintenance; and (3) finding that he dissipated $26,273 in marital assets. This court affirmed the trial court's order of permanent maintenance but reversed the trial court's order capping the supplemental maintenance range at $650,000 and instead capped it at $250,000. As to dissipation, this court affirmed a finding of dissipation of $2,625; we reversed a finding of $5,729; and we remanded for a new hearing to determine whether Bruce dissipated the remaining $17,919 withdrawn from the parties' joint tax-exempt money-market account. In re Marriage of Schinelli, No. 2-07-0617 (2008) (unpublished order under Supreme Court Rule 23) (Schinelli I).

On remand, the trial court entered three orders from which Bruce now appeals. Bruce contends that the trial court erred in (1) awarding Cecily $15,000 in attorney fees for defending the first appeal; (2) finding that he had dissipated $17,919 of marital assets; and (3) entering a "Qualified Domestic Relations Order" (QDRO) that improperly modified the judgment of the dissolution of marriage. For the following reasons, we reverse and remand for additional proceedings.

The record in this case is substantial. A great deal of evidence was presented in the trial court. Therefore, only those facts necessary to an understanding of this court's decision will be set forth below, and the relevant facts will be discussed in the analysis of the issues to which they are pertinent.

Award of Attorney Fees

On August 21, 2008, Cecily filed a petition for contribution of fees and costs incurred in the previous appeal. Cecily sought reimbursement for attorney fees of $30,570.07 and costs of $272.81. The petition was supported by an affidavit from Cecily's attorney regarding his firm's fees. The petition was not supported by any affidavit from Cecily. On December 11, 2008, following a hearing, the trial court ordered Bruce to pay $15,000 of Cecily's attorney fees. The trial court explained that if Bruce had appealed only the issue of supplemental maintenance, he would have prevailed and no contribution to fees would be warranted. However, since Bruce had also appealed the award of permanent maintenance and dissipation, the trial court held that contribution was appropriate.

On appeal, Bruce argues that the trial court's decision to award Cecily $15,000 in attorney fees was against the manifest weight of the evidence. Bruce contends that Cecily failed to show that she had an inability to pay her own fees. Bruce further argues that the trial court erred in determining that Cecily was entitled to a portion of her fees because she substantially prevailed on the first appeal.

At the outset, we consider Cecily's argument that we do not have jurisdiction over Bruce's first contention. Cecily notes that when the trial court entered its order awarding her attorney fees, the trial court indicated that its order was final. Cecily contends that, because the trial court's order was final, Bruce should have filed his appeal within 30 days rather than waiting for the trial court to resolve the other postjudgment petitions that had been filed in the case. As Bruce did not, Cecily argues that we may not consider the propriety of the award of attorney fees. In so arguing, Cecily acknowledges that her contention is inconsistent with this court's decisions in In re Marriage of Alyassir, 335 Ill. App. 3d 998 (2003), and In re Marriage of Duggan, 376 Ill. App. 3d 725 (2007). However, she urges this court to overrule Alyassir and to instead adopt the analysis set forth in the special concurrence in Duggan.

In In re Marriage of Gutman, 232 Ill. 2d 145, 151 (2008), our supreme court recently explained:

" 'An order is final and appealable if it terminates the litigation between the parties on the merits or disposes of the rights of the parties, either on the entire controversy or a separate part thereof.' R.W. Dunteman Co. v. C/G Enterprises, Inc., 181 Ill. 2d 153, 159 (1998). Absent a Rule 304(a) finding, a final order disposing of fewer than all of the claims is not an appealable order and does not become appealable until all of the claims have been resolved. Marsh v. Evangelical Covenant Church of Hinsdale, 138 Ill. 2d 458, 464 (1990). This court has defined a 'claim' as 'any right, liability or matter raised in an action.' Marsh, 138 Ill. 2d at 465. The rule was meant 'to discourage piecemeal appeals in the absence of a just reason and to remove the uncertainty which existed when a final judgment was entered on fewer than all of the matters in controversy.' Marsh, 138 Ill. 2d at 465."

Here, the trial court's order awarding Cecily attorney fees did not include a finding pursuant to Supreme Court Rule 304(a) (eff. Jan 1, 2006). Thus, pursuant to Gutman, the trial court's order was not appealable until all of the other claims had been resolved. As Bruce properly filed his notice of appeal after the trial court had resolved all of the claims pending between the parties, this court has jurisdiction over the issue of the award of attorney fees. See Gutman, 232 Ill. 2d at 151. In so ruling, we note that our supreme court's decision is consistent with our decisions in Alyassir and Duggan. We therefore decline Cecily's invitation to revisit either of those cases.

Turning to the merits of Bruce's first contention, we note that attorney fees are generally the responsibility of the party who incurred the fees. In re Marriage of Cantrell, 314 Ill. App. 3d 623, 630 (2000). Section 508(a) of the Illinois Marriage and Dissolution of Marriage Act (the Dissolution Act) (750 ILCS 5/508(a) (West 2008)) provides in part:

"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 for his own or the other party's costs and attorney's fees." 750 ILCS 5/508(a) (West 2008).

The propriety of an award of attorney fees is dependent upon a showing by the party seeking them of an inability to pay and the ability of the other spouse to do so. Cantrell, 314 Ill. App. 3d at 630. Although awarding fees rests largely in the trial court's discretion, such an award will be reversed when the financial circumstances of both parties are substantially similar and the party seeking fees has not shown an inability to pay. In re Marriage of Roth, 99 Ill. App. 3d 679, 686 (1981).

Here, the trial court abused its discretion in ordering Bruce to pay $15,000 of Cecily's attorney fees. The record reveals that Bruce earned substantially more than Cecily. He earned approximately $200,000 a year while Cecily earned approximately $30,000 a year. However, in dissolving the parties' marriage, the trial court attempted to rectify this difference, ordering that Bruce pay Cecily permanent monthly maintenance of $6,692 ($80,304 a year). Thus, considering the combination of Cecily's annual salary and her maintenance award ($30,000 $80,000 = $110,000) in conjunction with Bruce's salary and his maintenance obligations ($200,000 - $80,000 = $120,000), the parties' financial circumstances were substantially similar. Based on this fact, and because Cecily did not demonstrate that she was unable to pay her attorney fees, the trial court erred in ordering Bruce to pay those fees. See id.

In so ruling, we find Cecily's reliance on In re Marriage of Minear, 181 Ill. 2d 552, 561 (1998), to be misplaced. In that case, the wife had monthly net income of $1,086 and also received monthly maintenance of $500 (for a total of $1,586 a month). The husband's monthly net income, after making the maintenance payment, was $2,563. At a hearing on her motion to have the husband pay her attorney fees, the wife testified that she could not pay her legal fees and that she could not afford to continue paying $675 in monthly mortgage payments. The trial court subsequently awarded the wife her attorney fees. In this case, Cecily's maintenance award was ...


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