Appeal from the Circuit Court of Cook County. No. 10D4934 The Honorable Kathleen Kennedy and The Honorable Jeanne Cleveland Bernstein, Judges Presiding.
The opinion of the court was delivered by: Justice Fitzgerald Smith
JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion. Presiding Justice Lavin and Justice Epstein concurred in the judgment and opinion.
¶ 1 In this predecree dissolution of marriage case, respondent Robert Levinson appeals from orders of the circuit awarding interim attorney fees to petitioner Robin Mitchell Levinson and from the subsequent finding that Robert was in indirect civil contempt for failure to comply with the order. A subsequent body attachment issued against Robert for his failure to pay the monetary penalty imposed. On appeal, Robert contends the trial court abused its discretion by:
(1) denying his request for an evidentiary hearing and subsequently awarding Robin's counsel $78,500 in interim attorney fees where there allegedly existed no source of funds from which the fee award could be paid; and (2) finding Robert in indirect civil contempt for his failure to pay the court-ordered interim attorney fees. For the following reasons, we affirm in part and vacate in part.
¶ 3 The parties are involved in a contentious dissolution of marriage. This litigation has an extensive procedural history. This is the second time the parties have been before this court during the course of this dissolution. Previously, we reversed the circuit court's order granting the wife's petition for exclusive possession of the marital residence, finding it unsubstantiated by the evidence. See In re Marriage of Levinson, 2012 IL App (1st) 112567.*fn1 The parties were married in 2004 and have two young children: Bennet, born in 2007, and Jacob, born in 2005. Both Bennet and Jacob have special needs; Jacob has been diagnosed with sensory processing disorder and dyspraxia, and Bennet was, at the time the record was made, currently being tested for sensory processing disorder. Throughout the marriage, the parties lived together with their children at the marital residence.
¶ 4 In May 2010, Robin filed a petition for dissolution of marriage, alleging irreconcilable differences. She asked for full custody of the children, as well as exclusive possession of the marital residence. The court appointed a child representative and also began what the parties referred to as a "birdnesting" schedule, wherein each party occupied the marital residence during his or her parenting time, but vacated it during the other's parenting time. More specifically, the court granted Robin exclusive possession of the marital residence except during Robert's parenting time, during which Robin was required to vacate the residence.
¶ 5 In June 2010, Robert filed a counterpetition for dissolution of marriage in which he, too, requested custody of the children. In July 2011, Robin filed a motion requesting, in pertinent part, exclusive possession of the marital residence at all times. After a multiday hearing, the court granted the motion, finding that the birdnesting arrangement jeopardized the mental well-being of Robin and the children. Robert filed an interlocutory appeal in which he asked this court to reverse the order of the circuit court.
¶ 6 In that appeal, this court considered the meaning of "jeopardy" found in section 701 of the Illinois Marriage and Dissolution of Marriage Act (the Act) (750 ILCS 5/701 (West 2010)). In re Marriage of Levinson, 2012 IL App (1st) 112567, ¶¶ 32-44. On review, we "recognize[d] the trial court's concern that possession of the marital residence [was] being used as a tool in the arsenals of Robert and Robin, two individuals involved in a contentious divorce," but noted that we are required to follow the statutory language. In re Marriage of Levinson, 2012 IL App (1st) 112567, ¶ 44. We held that the determination of jeopardy was error, and reversed the judgment of the circuit court. In re Marriage of Levinson, 2012 IL App (1st) 112567, ¶ 44.
¶ 7 Meanwhile, in April 2011, Robin filed a petition in the circuit court in which she requested the court order Robert to pay approximately $125,000 for Robin's interim and prospective fees and costs. In this petition, she alleged that she had spent approximately $15,000 on attorney fees, that she had an outstanding balance due and owing her attorneys of $25,000, and that her estimated reasonable and necessary prospective attorney fees would total no less than $100,000. She alleged, inter alia: "8. ROBIN is the primary caretaker of the minor children and has been dependent on ROBERT for her support during their marriage. ROBIN does not have the financial ability to pay her attorneys' fees, expert fees, and other court costs.
9. ROBERT, conversely, is capable of discharging this Court's order for interim and prospective attorney's fees and costs. ROBERT is the owner and/or shareholder in numerous businesses, corporations, and/or entities, and he has access to or control of substantial assets and income.
10. ROBIN cannot hope to litigate this matter on a level playing field with ROBERT without a substantial contribution for the payment of her attorneys' fees and court costs and expert witness fees and costs by ROBERT."
¶ 8 Robert then filed a response to the petition in which he asked court to deny Robin's petition, compel Robin to seek employment, compel Robin to pay specific attorney fees and costs incurred by Robert, and order a disgorgement of attorney fees in favor or Robert. He alleged, inter alia, that he provides $2,500 in monthly support to Robin, in addition to other financial support such as her housing costs, health insurance, automobile insurance, and utilities. He stated he believes Robin has "sufficient access to funds to cover her own legal fees and costs." He also argued that some of Robin's attorney fees and costs were not reasonable or necessary. He alleged that Robin is a licensed attorney in the State of Illinois and that she should seek "appropriate employment to cover her own legal fees and expenses." He explained that he works in the real estate market, but has not earned funds from the sale or purchase of real estate since 2008. He alleged he has used funds secured from family members to support himself and Robin. Regarding attorney fees, Robert stated:
"22. Robert Levinson has paid approximately $53,000.00 to Swanson, Martin & Bell, LLP and $5,955.50 to Brian Hurst for a total of approximately $59,455.50.00. Robert Levinson owes $4,173.00 to Brian Hurst (through 3/31/11) and $14,412.95 to Swanson, Martin & Bell, LLO (which may be higher to account for more recent fees and costs).
23. Robin Levinson has paid $55,375.00 to the law firm of Katz, Goldstein & Warren, $15,000.00 to the law firm of Lake Toback, and $7,500.00 to Lee Gould (her financial expert) for a total of $77,875.00.
24. Robin Levinson has paid more attorneys' fees and costs tha[n] Robert Levinson by the sum of $18,419.50, and therefore, there is no 'field' to 'level.'
25. That under the Level the Playing Field principal, the Court has authority to order a disgorgement of attorneys' fees and costs in favor of Robert Levinson." ¶ 9 On July 18, 2011, the circuit court heard oral arguments from the parties and ordered:
"(1) [Robert] shall pay the sum of $100,000 to Lake Toback as and for the court ordered award of interim and prospective attorneys fees within 30 days, without prejudice.
(2) From said [$]100,000 Dr. Palen shall receive his costs for deposition and trial testimony and preparation in connection with the hearing on Robin's petition for modification filed 7/14/2011.
(3) Howard D. Roseberg shall be paid approx. [$]13,000 upon presentation of his statement.
(5) The award above is entered per 750 ILCS 5/501(c-1) over Robert's counsel's objection and demand for evidentiary hearing."
¶ 10 Robert then filed a motion to reconsider, arguing that the court erred in ordering him to pay $100,000 to Robin's counsel for interim and prospective attorney fees, and "at no time did the Court permit a full hearing. The court did not allow any testimony of parties or any presentation of evidence." He argued that Robin failed to present adequate evidence to make a showing that she did not have the ability pay her own fees and that Robert does not have the ability to make the payment. He claimed he had "no liquidity," that he had incurred debt in the amount of $165,000 since the beginning of the litigation, and that he is required to borrow money to cover the family and household expenses. He also argued that Robin's counsel and experts had been "substantially paid more than Robert's attorneys," and that Robin has "in excess of $100,000 in a retirement account that could be liquidated."
¶ 11 The court agreed to reconsider its decision and ordered the parties to submit "memos setting forth amounts due; amounts paid for fees; resource of the funds; updated [financial disclosure statements], or other current financial info of each party; and respective positions regarding payment of fees." The parties did so.*fn2 Robert filed several documents, including: a memo describing his financial situation, including a description of assets available to pay for ongoing litigation costs; an updated financial disclosure statement; addendum lists of marital assets and liabilities, and premarital and non-marital assets; Robert's projected annual income statement; a table showing the parties' cash or cash equivalents; a table showing the parties' liabilities; a statement of contingent liabilities; a table reflecting attorney fees for both parties in the dissolution litigation; Robert's 2010 tax returns; a statement of liabilities; a statement of assets; a statement of business interests reflecting loans advanced by Robert to affiliated real estate limited liability companies; Robert's business monthly income and expense statement; a statement reflecting rental income for 2009-10; and a table showing real estate owned (both individually and in various shared ownership situations).
¶ 12 Robin submitted an updated financial disclosure statement as well as a memorandum in support of her petition for interim fees, which included: a table showing attorney and expert fees and costs due and paid by both parties; a section explaining that Robin did not have the ability to pay attorney and expert fees and costs which included the statement that Robin had already liquidated her non-marital individual retirement account (IRA) to pay attorney fees; as well as a table showing the "balance of funds Robin has received to supplement her income;" a section purporting to show that Robert had the ability to pay the attorney fees and costs, which noted that Robert's net worth in May 2011, as reflected in his personal financial statement, was $1,737,000; and including a table reflecting properties in which Robert maintains an interest. In addition, Robin provided Robert's financial statement he made with First Eagle Bank dated May 1, 2011, in which he reported having a net worth of $1,737,000, as well as another of Robert's personal financial statements dated April 15, 2010, in which he reported having a net worth of $8,909,000.
¶ 13 On March 16, 2012, the court granted the motion to reconsider without prejudice, and awarded Robin $78,500 from Robert as an "interim award for attorneys' and experts' fees without prejudice and as an advance from the marital estate." Robert was ordered to pay this amount to Robin's attorneys no later than April 2, 2012. In its memorandum order, the court noted:
"After hearing argument in February 2012 the court declined to conduct the evidentiary hearing requested by [Robert], finding no good cause shown to do so, but granted reconsideration, and ordered the parties to submit specific information."
¶ 14 It then addressed the requirements of section 501(c-1) of the Act, which provides for interim fees as temporary relief, and stated:
"6. The following reflects, in part, the court's consideration of the statutory factors based on the parties' submissions, reasonable inferences from the submissions, and the court's familiarity with the case:
(A) the income and property of each party, including alleged marital property within the sole control of one party and alleged non-marital property within access to a party
Petitioner is a licensed attorney who works sporadically as an arbitrator and has not been employed full-time outside the home since the birth of the parties' first child. Respondent's income supports the family and far exceeds Petitioner's earnings from occasional work. Respondent is a successful real estate professional whose business suffered financially after the 2008 downturn in the U.S. economy. It is undisputed here that the marital estate and Respondent's alleged non-marital estate includes real estate holdings. The complex nature of this property, and the time that would be needed to prepare and present evidence about the character and value of the property is one reason the court did not find good cause for an evidentiary hearing on interim fees. Respondent made various financial arrangements after 2008 to maintain the marital, as well as his alleged non-marital real estate holdings. The parties paid their living expenses and some of their attorneys' and experts' fees from income tax refunds that are now depleted. Respondent solely controls the alleged marital property. Respondent has not accessed directly his alleged non-marital assets to pay attorneys' and experts' fees. Petitioner, in contrast, accessed her alleged non-marital property to pay fees, specifically, a retirement asset, receiving $37,258.52 and paying $32,500, with a large portion taken for taxes and penalties, and a savings account, receiving and paying approximately $46,000. She has not yet accessed her sole remaining alleged non-marital asset, deferred compensation valued in February 2012 at approximately $28,000. At this point there are no liquid marital assets, and no liquid non-marital assets of Respondent.
(B) the needs of each party
Based on the litigiousness they have displayed so far, both parties need exorbitant funds to finance their divorce litigation. Petitioner has spent more so far, but she is not the party in control of the marital assets and the information about them. The undisputed pattern here is that Respondent alone supports the family financially.
(C) the realistic earning capacity of each party
Although the future may be different, Petitioner's current realistic earning capacity, especially during contentious divorce litigation while primary caregiver of two young special needs children, is low, and Respondent's, despite the economic downturn, is high.
(D) any impairment to present earning capacity of either party, including age and physical and emotional health
Petitioner's present earning capacity is limited based on her marital role as primary caregiver for the parties' two sons.
(E) the standard of living established during the marriage The parties established a '1%-lifestyle' standard of living during the marriage. They may have reduced expenses to some degree after 2008. However, since these proceedings began almost two years ago both parties have, consistent with that marital lifestyle, incurred over half a million dollars in attorneys' and experts' fees. Although they may say otherwise, the only reasonable inference from the parties' conduct is that they both believe that the marital estate has sufficient assets to finance their litigation. Respondent, not Petitioner, controls the marital assets.
(F) the degree of complexity of the issues, including custody, valuation or division (or both) of closely held businesses, and tax planning, as well as reasonable needs for ...