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In Re Marriage of John J. Earlywine

July 13, 2012

IN RE MARRIAGE OF JOHN J. EARLYWINE,
PETITIONER, AND JESSICA A. EARLYWINE, RESPONDENT (THOMAS H. JAMES, CONTEMNOR-APPELLANT;
RICHARD HAIME, CONTEMNEE-APPELLEE. )



Appeal from the Circuit Court of Stephenson County. Honorable Theresa L. Ursin, Judge, Presiding.

The opinion of the court was delivered by: Justice Bowman

No. 10-D-119; 10-OP-202

JUSTICE BOWMAN delivered the judgment of the court, with opinion.

Justices Burke and Birkett concurred in the judgment and opinion.

OPINION

¶ 1 Petitioner, John J. Earlywine, petitioned to dissolve his marriage to respondent, Jessica A. Earlywine. During the dissolution proceedings, respondent's attorney, Richard Haime, petitioned for interim attorney fees. The trial court granted that petition, ordering petitioner's attorney, Thomas

H. James, to turn over to Haime $4,000 that James held in an advance payment retainer that petitioner had paid him. James moved to reconsider, the trial court denied the motion, and James refused to turn over the funds, asking, instead, that the trial court hold him in friendly contempt. The court did so and imposed a $50 sanction. At issue in this appeal is whether James may be ordered to turn over to Haime funds held in an advance payment retainer. We determine that he may. Accordingly, we affirm the trial court's turnover order.

¶ 2 The facts relevant to resolving this appeal are as follows. One child, a son, was born to petitioner and respondent. That son was three years old when petitioner petitioned to dissolve the marriage. Petitioner sought to dissolve the marriage when respondent allegedly engaged in repeated acts of mental and physical cruelty toward petitioner. Petitioner also claimed that respondent was abusive toward the parties' son. Respondent contended that petitioner was likewise guilty of such conduct, citing the fact that, during the marriage, "[petitioner] was reported to [the Department of Children and Family Services (DCFS)] following one of [his] arrests for Domestic Violence and the outcome of [the DCFS] investigation was founded."

¶ 3 Given respondent's alleged abuse, petitioner petitioned for an order of protection against respondent. That petition was granted, and on August 24, 2010, in the midst of subsequent proceedings in that matter, petitioner hired James to represent him in his "matrimonial or family related matters thereto or otherwise under Illinois Family Law." Petitioner's petition to dissolve the marriage was filed that day. The attorney-client agreement executed between petitioner and James provides, among other things, that "[petitioner] agreed to an advanced [sic] payment retainer." The agreement then, in compliance with Rule 1.15 of the Illinois Rules of Professional Conduct (Ill. Rs. Prof. Conduct R. 1.15 (eff. Jan. 1, 2010)), delineates the components of the advance payment retainer. An affidavit from petitioner's mother explains that the funds in the advance payment retainer came from her, her fiance, petitioner's father, and petitioner's father's wife. Petitioner's financial affidavit reflects that his parents and stepparents paid James $8,750. This money is listed as a debt.

¶ 4 On August 27, 2010, three days after petitioner and James executed the agreement, the trial court entered an order in the order-of-protection proceedings that provided, among other things, that "[b]oth parties are prohibited from selling or transfering [sic] marital property." A similar order was entered in the marriage-dissolution case on November 10, 2010.

¶ 5 During the dissolution-of-marriage proceedings, it was revealed that, although petitioner was working as a union electrician on a part-time and sporadic basis, he had been unemployed for a long time and had accumulated over $66,000 in debt. As a result of his financial situation, petitioner moved in with his mother. Respondent, who was unemployed during the parties' marriage, was also unemployed during the dissolution proceedings. She, like petitioner, had moved in with her parents. Both parties sought custody of their son.

¶ 6 Given respondent's limited funds, Haime filed a petition for interim attorney fees. Pursuant to section 501(c-1) of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/501(c-1) (West 2010)), Haime sought $5,000 in interim attorney fees, claiming that, given that the dissolution of marriage concerned, among other things, custody of the parties' son, his fee request was reasonable. Haime asked the court to, if necessary, "order disgorgement of any amounts paid by [petitioner] to [James.]"

¶ 7 In response, James claimed that petitioner should not have to pay respondent any interim attorney fees, because he, like respondent, had no money to pay his own attorney. Nowhere in his response did James mention that petitioner had paid him using an advance payment retainer.

ΒΆ 8 The trial court granted Haime's petition for interim attorney fees. In doing so, the court found that Haime's request for fees was reasonable and that respondent was unable to pay her attorney fees. The court then found that, despite petitioner's financial situation, petitioner had the ...


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