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In Re Marriage of Therese Sobieski

January 29, 2013

IN RE MARRIAGE OF THERESE SOBIESKI,
PETITIONER-APPELLEE, AND
JON W. SOBIESKI,
RESPONDENT-APPELLANT.



Appeal from the Circuit Court of Du Page County. No. 08-D-1877 Honorable James J. Konetski, Judge, Presiding.

The opinion of the court was delivered by: Justice Spence

JUSTICE SPENCE delivered the judgment of the court, with opinion. Justices Jorgensen and Zenoff concurred in the judgment and opinion.

OPINION

¶ 1 Respondent, Jon Sobieski, appeals from the judgment of the Du Page County circuit court dissolving his marriage to petitioner, Therese Sobieski, and from the order denying his motion to reconsider. Specifically, Jon contends that the trial court erred in ordering him to pay $43,180.50 of Therese's attorney fees and also erred in setting his monthly child support at $4,800. For the reasons set forth herein, we affirm the judgment of the trial court.

¶ 2 I. BACKGROUND

¶ 3 Jon and Therese were married on September 4, 1994, in Cook County, Illinois, and during the course of the marriage, the couple had four children. Jon and Therese separated on June 15, 2008, and Therese filed a petition for dissolution of marriage on August 28, 2008. The case proceeded to trial on May 19, 2011, and the relevant portions of the record and the findings of the trial court are set forth herein. The judgment for dissolution of marriage was entered on July 13, 2011. At the time of trial, Jon was 41 years old, Therese was 46, and their four children were 16, 14, 12, and 10.

¶ 4 Jon began working for his father, Vernon Sobieski, at Spirit of America, Inc.,*fn1 in 1987. Spirit of America, Inc., is a car wash business founded by Vernon. Vernon organized the company so that he and Marilyn Sobieski, his wife and Jon's mother, owned 50% of the company as joint tenants with rights of survivorship, Jon owned 25%, and Robert Sobieski, Jon's brother, owned the final 25%.

¶ 5 Upon Vernon's death in 2005, Marilyn became president of Spirit of America, Inc., and at the time of trial, the only three employees of Spirit of America, Inc., were Marilyn, Jon, and Robert. Jon was employed full-time at Spirit of America, Inc., throughout the entire duration of his marriage to Therese, and he acted as the company's secretary and general manager. In those capacities, he would visit the individual car wash sites, make any necessary repairs, clean the facilities, and collect the money, whether it be in the form of cash or credit card transactions.

¶ 6 The trial court determined that Jon's net monthly income was approximately $12,000. By the trial court's own admission, determining Jon's monthly net income was difficult. The trial court listed two primary reasons for its difficulty: (1) the trial court found that Jon's testimony lacked credibility, and (2) there was a lack of verifiable information about Jon's income. The trial court found Jon to be "inaccurate if not wholly untruthful about his income." The trial court further found that Spirit of America, Inc., handled significant amounts of cash, which Jon counted. When asked about the amount of cash received by Spirit of America, Inc., Jon responded, "it varies." The trial court noted that Jon's federal tax returns were "internally inconsistent and inconsistent with each other." Finally, the trial court found that Marilyn had provided Jon with "gifts"-e.g., paying for Jon's medical insurance-of at least $50,000 per year for the last five years leading up to trial, which the court found to be additional income to Jon.

¶ 7 Although Jon testified at trial that his gross income from all sources was only $10,000 per month, there was documentary evidence at trial that ran counter to Jon's assertion. On a mortgage refinancing application from 2004, Jon indicated that his income was $13,500 per month, or $162,000 per year. On an application for a home equity line from Chase Bank in 2007, Jon also listed his monthly income as $13,500. Jon claimed at trial that he never made that much money in a given year.

¶ 8 Based on the trial court's determination of Jon's net income at $12,000 per month, the trial court awarded Therese child support in the amount of $4,800 per month. The court arrived at this amount by following the child support guidelines from the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/101 et seq. (West 2010)), which set child support for four children at 40% of the supporting party's net income. Jon argued at trial that the amount of child support should be lower, suggesting $4,000 per month, but the trial court did not deviate from the guidelines.

¶ 9 Shortly after Jon and Therese separated, Therese became employed part-time as a sales associate and fitter at Elegance Underneath, a clothing store. She testified that she was working around 20 hours per week at $10 per hour. Therese had been employed full-time at Nordstrom when she and Jon were married, but she quit that job upon the birth of her first child and did not return. She held two different part-time positions during the course of her marriage to Jon. She worked for the Naperville Chamber of Commerce from late 1999 to late 2001 making around $80 per week, and she worked at a law office, in a position that was supposed to function as an externship for her paralegal studies, from October 2006 to January 2007 at $15 per hour. Although she intends to finish her paralegal studies, by the time of trial she had not completed a paralegal studies program.

¶ 10 The trial court found that Therese, with her part-time job that paid $10 per hour at the time of trial, was not self-supporting, and the court was also satisfied with Therese's search for full-time employment. The court found that there was clearly a disparity in incomes as well as a significant disparity in their respective future prospects to earn income.

¶ 11 Also of relevance to the trial court's findings was Therese's health. She has suffered from physical and emotional illness in the course of the marriage. Therese is bipolar, suffers from depression, and is in remission from non-Hodgkin's Lymphoma since June 2007. Therese also testified that she had part of her cervix removed shortly before trial to remove a "secondary cancer." The trial court found that her health insurance cost approximately $685 per month. Based on the aforementioned findings, the trial court ordered that Jon pay Therese $2,500 per month as maintenance.

¶ 12 As to the children, Jon and Therese entered into a joint parenting agreement on April 20, 2011, that was incorporated into the judgment for dissolution of marriage. The parenting agreement provided for joint custody of the children, but the primary physical residence of the children would be with Therese. The parenting agreement provided Jon with extended parenting time during the school year and over holidays. The parties agreed to sell the marital residence, and it was sold for $392,500 on December 1, 2011. Therese received 65% and Jon received 35% of the $62,551.06 net proceeds.

¶ 13 The court divided the rest of the property between Jon and Therese as follows. The court awarded Jon his non-marital property, which includes: all shares of Integrys that Jon held jointly with his mother; all interest, including stock, that Jon owned in Spirit of America, Inc.*fn2 ; and five motor vehicles held jointly with his mother. The marital assets were divided by awarding a 2008 Ford Expedition to Therese and a 2011 Ford Focus to Jon, awarding the parties their respective bank accounts, awarding Jon three term life insurance policies, dividing Jon's individual retirement account equally between Jon and Therese, and awarding the parties the personal property in their respective possessions.

¶ 14 As for indebtedness of the marital estate, Jon was to pay $6,000 toward Therese's debt of approximately $14,000 as of March 31, 2011. He was also to cover a dentist bill for approximately $1,000 that both he and Therese had listed as indebtedness. Jon's debt totaled approximately $38,000 as of March 31, 2011, with $28,000 of that debt being fees he owed to his attorney.

¶ 15 On May 26, 2011, Therese filed a petition, pursuant to sections 508 and 503(j) (750 ILCS 5/508, 503(j) (West 2010)) of the Marriage Act, for contribution to her attorney fees and costs. She stated that she had incurred $86,361 in attorney fees and that $73,261 remained unpaid. She claimed that she was unable to pay her fees because she was in poor health, lacked assets, and had limited earnings. On the other hand, she contended, Jon earned around $14,000 a month, much more than her approximately $1,000 a month, and he was in better health. Jon also sought contribution to attorney fees in a separate petition. Both Jon and Therese stipulated that the rates and hours of their respective attorneys were reasonable and necessary.

¶ 16 The trial court granted Therese's petition, ordering contribution of $43,180.50, and denied Jon's petition. Both Therese and Jon made motions to reconsider the judgment for dissolution of marriage, which were denied, with the final denial on October 14, 2011.

ΒΆ 17 Jon timely ...


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