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In Re Marriage of Elizabeth Nash

October 1, 2012

IN RE MARRIAGE OF ELIZABETH NASH,
PETITIONER-APPELLEE,
AND HERIBERTO LOPEZ ALBEROLA, RESPONDENT-APPELLEE (ENRICO J. MIRABELLI, ) INTERVENOR AND CONTEMNOR-APPELLANT). )



Appeal from the Circuit Court of Cook County. No. 10 D 08689 Honorable Nancy J. Katz, Judge Presiding.

The opinion of the court was delivered by: Justice Rochford

JUSTICE ROCHFORD delivered the judgment of the court, with opinion. Justices Hall and Karnezis concurred in the judgment and opinion.

OPINION

¶ 1 During the course of marital dissolution proceedings between petitioner, Elizabeth Nash, and respondent, Heriberto Lopez Alberola, the trial court ordered respondent to pay interim attorney fees of $5,000 each to petitioner's attorney, A. Christine Svenson, and to the child representative, Patricia Lynn Wypych, pursuant to section 501(c-1)(3) of the Illinois Marriage and Dissolution of Marriage Act (the Act) (750 ILCS 5/501(c-1)(3) (West 2010)). In the same order, the trial court stated that if respondent did not pay the interim attorney fees within 14 days, then respondent's counsel, Enrico J. Mirabelli, must pay (i.e., disgorge) the fees out of the $15,000 retainer that respondent had already paid to Mr. Mirabelli's law firm, Nadler, Pritikin and Mirabelli, LLC (NPM, LLC). Respondent did not pay. Mr. Mirabelli then withdrew as respondent's counsel and filed a petition on behalf of NPM, LLC, to intervene in the case, and he attached thereto a motion to reconsider the disgorgement order.

The trial court allowed the intervention and denied Mr. Mirabelli's motion to reconsider. Mr. Mirabelli refused to pay, contending the trial court erred in its construction of section 501(c-1)(3) and unconstitutionally applied the Act to him by ordering him to pay the interim attorney fees out of the retainer paid to and earned by NPM, LLC. Recognizing that Mr. Mirabelli's argument raised novel questions of law, the trial court found him in "friendly contempt" for failing to pay the interim attorney fees and fined him $10 for each day he does not pay. Mr. Mirabelli appeals. We vacate the orders requiring Mr. Mirabelli to pay the interim attorney fees and finding him in contempt and remand for further proceedings.

¶ 2 Petitioner and respondent were married on August 20, 2008, and have one child, Bella, who was born on February 17, 2004. Petitioner filed a petition for dissolution of marriage on September 2, 2010. On October 22, 2010, the trial court appointed Ms. Wypych, a partner with the law firm of Rosenberg Wypych LLC, as child representative for Bella and ordered respondent to pay 100% of Ms. Wypych's fees. Ms. Wypych filed her appearance on November 1, 2010. Ms. Svenson appeared as counsel for petitioner on December 7, 2010.

¶ 3 Mr. Mirabelli, on behalf of NPM, LLC, entered into a representation agreement (the agreement) with respondent on January 4, 2011. The agreement provided that NPM, LLC, would represent respondent in return for a $15,000 retainer. The agreement further stated: "We are authorized by you to deposit the funds received as and for our retainer or any other funds received from you or on your behalf directly into our operating account." Mr. Mirabelli appeared as counsel for respondent on January 10, 2011.

¶ 4 On February 9, 2011, Ms. Wypych filed a petition for attorney fees pursuant to section 506(b) of the Act, which states in pertinent part: "The court shall enter an order as appropriate for costs, fees, and disbursements, including a retainer, when the attorney, guardian ad litem, or child's representative is appointed." 750 ILCS 5/506(b) (West 2010). Ms. Wypych requested fees in the amount of $11,274 to "be paid by the parties as this Court deems proper." The petition did not seek fees from Mr. Mirabelli.

¶ 5 Also, on February 9, 2011, Ms. Svenson filed a petition for attorney fees and costs seeking $50,000 from respondent. On April 12, 2011, Ms. Svenson filed a second-amended petition for attorney fees and costs seeking $50,000 from respondent. She did not seek fees from Mr. Mirabelli. Ms. Svenson's petition and second-amended petition for attorney fees and costs cited as their statutory basis section 501(c-1) of the Act. "Section 501(c-1) of the Act permits a trial court, while a case remains pending, to assess attorney fees and costs in favor of the petitioning party's counsel." In re Marriage of Radzik, 2011 IL App (2d) 100374, ¶ 40 (citing 750 ILCS 5/501(c-1) (West 2008)). "In enacting section 501(c-1), the legislature's goal was to level the playing field by equalizing the parties' litigation resources where it is shown that one party can pay and the other party cannot." In re Marriage of Beyer, 324 Ill. App. 3d 305, 315 (2001). Section 501(c-1)(3) states in pertinent part:

"In any proceeding under this subsection (c-1), the court (or hearing officer) shall assess an interim award against an opposing party in an amount necessary to enable the petitioning party to participate adequately in the litigation, upon findings that the party from whom attorney's fees and costs are sought has the financial ability to pay reasonable amounts and that the party seeking attorney's fees and costs lacks sufficient access to assets or income to pay reasonable amounts. *** If the court finds that both parties lack financial ability or access to assets or income for reasonable attorney's fees and costs, the court (or hearing officer) shall enter an order that allocates available funds for each party's counsel, including retainers or interim payments, or both, previously paid, in a manner that achieves substantial parity between the parties." 750 ILCS 5/501(c-1)(3) (West 2010).

¶ 6 "Except for good cause shown, a proceeding for (or relating to) interim attorney's fees and costs in a pre-judgment dissolution proceeding shall be nonevidentiary and summary in nature." 750 ILCS 5/501(c-1)(1) (West 2010).

¶ 7 On April 13, 2011, the trial court conducted a summary, nonevidentiary hearing on the petitions for attorney fees, the transcript for which has not been included in the record on appeal. Following the hearing, the trial court entered a written order stating respondent "shall pay to Lynn Wypych and Christine Svenson $5,000 each within 14 days or Mr. Mirabelli shall disgorge said amounts to Wypych and Svenson within said time frame." The trial court made no specific findings as to the parties' financial abilities to pay reasonable attorney fees.

¶ 8 Respondent did not make the $5,000 payments to Ms. Wypych and Ms. Svenson. On June 13, 2011, Mr. Mirabelli filed a motion to withdraw as counsel for respondent. The trial court granted the motion to withdraw on June 21, 2011.

ΒΆ 9 On June 28, 2011, Mr. Mirabelli filed a petition, on behalf of NPM, LLC, to intervene in the case, which the trial court granted on July 27, 2011. Mr. Mirabelli attached to the petition a motion to reconsider the April 13, 2011, order. In his motion to reconsider, Mr. Mirabelli argued: (1) the trial court failed to make the required finding under section 501(c-1)(3) that petitioner lacked the ability to pay her own attorney fees; (2) the trial court's order of April 13, 2011, is void because the court lacked statutory authority to order Mr. Mirabelli (on behalf of NPM, LLC) to disgorge the $5,000 each to Ms. Wypych and Ms. Svenson from fees NPM, LLC, had already been paid and earned and deposited into its operating account; (3) requiring NPM, LLC, to turn over fees it had already earned and deposited into its operating account would amount to an unwarranted deprivation of its property rights and constitute a violation of the constitutional ...


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