Appeal from the Circuit Court of Lake County. No. 09-D-113 Honorable David P. Brodsky, Judge, Presiding.
The opinion of the court was delivered by: Presiding Justice Jorgensen
PRESIDING JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices McLaren and Bowman concurred in the judgment and opinion.
¶ 1 Petitioner, Magdalena Radzik, and respondent, Christopher J. Agrella, are engaged in dissolution proceedings before the trial court. On November 6, 2009, the trial court granted petitioner's petition pursuant to section 501(c-1) of the Illinois Marriage and Dissolution of Marriage Act (Act or Dissolution Act) (750 ILCS 5/501(c-1) (West 2008)) for interim attorney fees. On April 9, 2010, after respondent failed to pay that award, the court entered against respondent a judgment of contempt.
¶ 2 Respondent argues five issues on appeal: (1) the court erred in finding him in contempt; (2) the court abused its discretion in entering the interim fee award; (3) an ex parte order that issued a rule to show cause is void for lack of proper notice; (4) the court erred in ordering the liquidation and distribution of respondent's individual retirement account (IRA) to satisfy the interim fee award; and (5) the finding of contempt must be vacated because respondent had no other avenue for challenging the court's November 6, 2009, fee order. For the following reasons, we conclude that: the November 6, 2009, interim fee award constitutes error; the court may not, should a new petition for interim fees be filed on remand, order that any award be paid through liquidation and distribution of respondent's IRA; and the contempt finding must be vacated.
¶ 4 A. Initial Orders, Payments, and Petition
¶ 5 On January 22, 2009, petitioner filed a petition for dissolution of the parties' marriage. The petition asserts that two children (ages 4 and 19 months) were born of the marriage and that petitioner had a daughter (age 16) from a prior relationship whom respondent had not adopted. Respondent was subsequently granted, apparently through an emergency order of protection, sole care and custody of the three minor children, as well as possession of the marital residence. That custody arrangement did not change during the pendency of these proceedings.
¶ 6 On February 6, 2009, petitioner filed a financial affidavit in compliance with Lake County's local rules (19th Judicial Cir. Ct. R. 11.02 (eff. Dec. 1, 2006)).*fn1 She listed her total income as zero or unknown, her total monthly living expenses as $15,409, and her debts as unknown. In addition, that same day, she petitioned for a minimum of $50,000 in interim attorney fees and costs. The petition for interim fees asserted that respondent (age 46), an attorney with his own practice, earned a substantial income and had sole access to the parties' assets and, therefore, was "well able" to pay petitioner's interim fees. In contrast, petitioner (age 36) had always been a stay-at-home mother, was unemployed, and did not have the financial ability to pay reasonable attorney fees. The petition was signed and verified by petitioner and was signed and certified by her attorneys. Attached as exhibits were petitioner's retainer agreement with her attorneys, and the attorneys' affidavits attesting to their respective education, experience, and billing rates.
¶ 7 On April 7, 2009, respondent responded to the petition for interim fees, largely denying petitioner's allegations and asking the court to deny the petition. Respondent certified "under penalties of perjury" that his statements were true and correct.
¶ 8 On April 9, 2009, the appointed representative for the minor children petitioned for $6,534.45 in attorney fees. In her petition, she acknowledged that respondent had,per a January 27, 2009, court order,paid her an initial $750 retainer fee. Further, she acknowledged that respondent had paid her an additional $3,000 in fees.
¶ 9 On April 24, 2009, the court ordered respondent to pay petitioner $230 weekly as temporary maintenance. The court ordered petitioner to seek employment, to keep a job log reflecting her efforts to seek employment at a minimum of three locations weekly, and to fax the job log to respondent's counsel monthly. The court ordered respondent to pay $10,000 to petitioner's counsel as interim attorney fees. Respondent represented to the court that he would refinance the marital residence to pay the interim fee award, and the court subsequently granted respondent an extension of time to pay the fees, to allow time for the refinance loan to be approved.
¶ 10 On May 28, 2009, the court granted the child representative's fee petition. On July 6, 2009, the child representative filed a second petition, seeking $13,183.85 in attorney fees. The petition noted that, on June 25, 2009, respondent paid the representative $6,434.45 as ordered by the court in May.
¶ 11 On July 30, 2009, petitioner filed a second petition for interim attorney fees and an "addendum" to the petition. The second petition essentially reasserted the allegations from the first petition; namely, that respondent earned a "substantial income," had sole access to the parties' assets, and was "well able" to pay petitioner's interim attorney fees, and that petitioner was unemployed and lacked the financial ability to pay reasonable attorney fees. Although the second petition referenced her financial affidavit, the record reflects no financial affidavit attached to the petition. Despite signature and verification sections at the end of the petition, petitioner did not sign or verify the petition. The petition contained a signed attorney certification, stating that, upon reasonable inquiry, the petition was, to the best of counsel's knowledge, well grounded in fact. The addendum purported to incorporate the first petition, and it noted that additional fees were incurred after that petition was filed, that petitioner's outstanding balance for her fees was $49,913.15, and that there existed another $29,677.50 in unbilled time and expenses. The addendum acknowledged that respondent, in compliance with the earlier court order, paid petitioner's counsel $10,000.
¶ 12 On August 24, 2009, respondent responded to petitioner's second petition for interim fees. He denied that he could pay the fees and noted that, despite the court order, petitioner failed to timely fax job logs to his counsel. (Previously, respondent moved for a contempt finding on this basis.) He noted that petitioner failed to supply the court with a current financial affidavit and he asserted that petitioner was voluntarily impoverishing herself so as to request contribution when, in fact, she owned various property and other assets. Respondent argued that, since the inception of the proceedings, he: (1) had borne the sole financial responsibility to care for all three children (including the payment of health insurance premiums, school tuition and fees, and bills for medical care, therapy, and $8,000 in dental care for the eldest child who suffered from a serious liver disease); (2) was responsible for the mortgage and other household expenses; (3) paid petitioner $230 in weekly maintenance, paid her vehicle insurance and expenses, and paid her health insurance at $536 every two months; (4) had paid approximately $10,000 to the current child representative, more than $10,000 to the past and current child representatives, and $10,000 to petitioner's attorneys; and (5) had paid and continues to owe his own attorneys for their fees. He concluded that he "simply lacks any additional funds and cannot afford any further expenditures on behalf of petitioner." Again, respondent certified that his statements were true and correct.
¶ 13 Further, on November 6, 2009, respondent moved to strike the petitions for interim fees and moved for sanctions against petitioner, arguing that, while petitioner represented to the court at prior hearings that she had no money, she had earned "thousands of dollars" selling items on eBay through an online business and she had made various unnecessary purchases (including a "butt enhancer"). Respondent attached to the motion printouts purportedly from petitioner's eBay account, of various items sold or purchased and their sale prices. Respondent argued that petitioner actively defrauded the court and misrepresented her financial status in an effort to require respondent to pay more to her than warranted.
¶ 14 B. November 6, 2009, Interim Fee Award
¶ 15 On November 6, 2009, the parties appeared before the court on petitioner's petition for interim fees. Petitioner's counsel argued that respondent: earned an adjusted gross income of $103,000 in 2008; made a $27,871 contribution to his 401(k) in April 2009 (it is unclear whether this is the IRA at issue in this appeal); sold stocks for $15,000 in September 2009; refinanced a home and withdrew $50,000 from a home equity line of credit; pays private school tuition for the children, pays $1,300 per month in childcare, and bought the eldest child a convertible. Petitioner's counsel asserted that the income petitioner made from eBay reflected her need to sell personal items to increase her cash flow and that the "butt enhancer" was for a Halloween costume. Counsel argued that the court needed to level the playing field because respondent had sole access and control of the marital assets and, despite her efforts to obtain employment, petitioner remained unemployed.
¶ 16 Respondent's counsel argued that petitioner's failure to disclose the eBay income, her failure to comply with the court's order that she submit job logs reflecting job search efforts, and her failure to produce a current financial affidavit reflected that an evidentiary hearing would be appropriate. Respondent explained that the convertible for the eldest child cost $1,500 and that the $50,000 was not taken from a line of credit but, rather, came from a mortgage refinance and was used to pay petitioner's attorney fees and other expenses. Respondent stated that "we would be more than happy to do an evidentiary hearing" and argued, "again, there's no billing statement. There's no affidavit. They just fly in here with these crazy fees, and there's nothing backing it up-zero. It's not in compliance with the requirements." Petitioner's counsel interjected, "Judge, if you look at the end of our fee petition, there are our affidavits, and our petitions are verified."
¶ 17 The court determined that it could "easily make this determination on [the petition for fees] with a nonevidentiary hearing," noting that section 501(c)(1) of the Act requires a hearing that is summary and expeditious. The court stated that it would consider all of the factors in section 501(c)(1) and noted that the proceedings before it were complex and that every issue had been contested. The court asserted that both parties had "pled poor" and that neither party had a great amount of money to be "overlitigating" the case. The court found that petitioner required contribution from respondent to be able to adequately participate in the litigation. The court stated:
"I don't know exactly what all of the assets are. There's been-we've had a number of different things that have been mentioned. I think it was on the last court date [respondent] mentioned having a $40,000 asset of some sort that he would have been able to-may have been able to liquidate for living expenses, and I'm not-I don't know any of those ***.
The court does not know exactly how much money is in this estate ***, but I think that in the interim the court is going to make an award of interim fees and that I think should be sufficient to keep this litigation going, and that award is going to be $32,000 in interim attorney fees."
Respondent interjected, "[S]o that I'm not held [to] be in contempt of court-I don't have it *** I don't have it." At the conclusion of the hearing, respondent's counsel stated, "And I understand the court did not have an evidentiary hearing. However, for the record, I am putting on the record that [respondent] does not have $32,000 at his access. I just want that on the record."
¶ 18 C. Respondent's Motion to Reconsider the Interim Fee Award
¶ 19 On December 4, 2009, respondent moved the court to reconsider its order that he pay $32,000 in interim fees. Respondent argued that petitioner failed to establish either her current financial status or respondent's ability to pay her fees. Further, respondent asserted that he could not pay his 2009 income taxes and that he owed his own counsel approximately $10,000. Respondent noted that, despite discovery and document production, petitioner did not produce any documents to support her assertion that respondent could afford to pay the fees.
¶ 20 On December 30, 2009, the court stated that it was denying respondent's motion to reconsider, "without any kind of a hearing on it. I've read it, I'm ruling on the pleadings." The court stated that the $32,000 ordered was "extremely reasonable" in this "hotly contested" litigation, that $32,000 was "well-within" respondent's ability to pay, and that it recalled respondent representing that he had a $40,000 source of income to offer petitioner as a settlement. It suggested that respondent use that, or another source, to pay the award. The court noted that petitioner was being litigated into poverty and that, accordingly, one of its priorities was to level the playing field. It ordered respondent to pay the $32,000 fee award by noon the next day.
¶ 21 Respondent interjected to the court that: the $40,000 it mentioned was in an IRA; he had previously offered only to split that IRA as a settlement of marital property; if he withdrew the money, a 10% penalty and taxes would be imposed; the IRA was a retirement account and not income; and petitioner had not shown that respondent has, nor does he have, any other source of funds. Respondent asserted that he could not follow the court's order, stating, "I do not have the money. I have no access to money such as that. It can't happen. I am living with three kids, and I do pay my stepdaughter's medical bills." Respondent's counsel asserted that he did not have an opportunity to prove respondent's inability to pay, to which the court responded, "both parties had a chance to present whatever they wanted to present at that hearing."
¶ 22 D. Hearings Regarding First Rule to Show Cause
¶ 23 On January 22, 2010, petitioner petitioned for a rule to show cause, because respondent had not paid the fees. The court issued the rule. That same day, respondent's attorney withdrew. In an appearance before the court, respondent's new counsel represented that respondent's former counsel withdrew because respondent was unable to pay any more attorney fees. He said that he was representing respondent on a pro bono basis. Further, he argued that the rule to show cause was based on respondent's violation of an order with which he could not comply. Petitioner's attorneys (whose earlier request to withdraw had been denied) reiterated that they could not afford to continue to represent her. The court, in turn, reiterated that it was "extremely serious about making sure that ...