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In re Marriage of Patel

Court of Appeals of Illinois, First District, Sixth Division

June 28, 2013

In re MARRIAGE OF SUNIL A. PATEL, Petitioner-Appellee, and AMY E. SINES-PATEL, Respondent-Appellant.

Appeal from the Circuit Court of Cook County. No. 08 D 10380 Honorable Nancy Katz, Judge Presiding.

JUSTICE HALL delivered the judgment of the court, with opinion. Presiding Justice Lampkin and Justice Gordon concurred in the judgment and opinion.

OPINION

HALL JUSTICE

¶ 1 The respondent, Amy Sines-Patel (Amy), appeals from the entry of the judgment for dissolution of her marriage to the petitioner, Sunil Patel (Sunil). In her previous appeal, this court affirmed the trial court's decision to award sole custody of the parties' two minor children to Sunil and ordering that Amy's visitation with the children be supervised. See In re Marriage of Patel, 2011 IL App (1st) 111407-U (unpublished order pursuant to Supreme Court Rule 23) (Patel I).

¶ 2 In her present appeal, Amy contends that the trial court erred when it: (1) found that Amy dissipated marital assets; (2) determined that money Amy received from her father was not a marital debt; (3) awarded Amy nonmodifiable maintenance in gross; (4) awarded attorney fees to Amy's former attorneys; (5) denied Amy's request for contribution from Sunil to her attorney fees; (6) ordered Amy to contribute to Sunil's attorney fees; (7) ordered Amy to pay a disproportionate amount of the child representative's fees; and (8) ordered Amy to pay the cost of the visitation supervisor.[1]

¶ 3 Our review of the record on appeal reveals no error by the trial court, and we affirm the judgment for dissolution of marriage. The pertinent facts are taken from the record on appeal and from this court's order in Patel I.

¶ 4 BACKGROUND

¶ 5 Sunil and Amy were married on November 12, 2000. At the time of these proceedings, Sunil was 42 years-of-age and a physician, earning approximately $475, 000 per year. Amy was 35 years-of-age and had both undergraduate and graduate degrees but, until the parties' separation, she did not work outside of the home. At the time of the hearing, she earned approximately $14, 500 per year, doing office work for a doctor and working at her church. The parties had two children: Elizabeth, born October 2, 2002, and Joseph, born November 28, 2003.

¶ 6 I. Prehearing Proceedings

¶ 7 On October 17, 2008, Amy filed a petition for dissolution of marriage in the circuit court of Du Page County. She also filed a petition for an order of protection, alleging that Sunil had inflicted physical and emotional abuse on the parties' children and her. She later alleged Sunil had sexually abused Elizabeth. On October 28, 2008, Sunil filed his petition for dissolution of marriage in the circuit court of Cook County. Pursuant to Sunil's motion, the Du Page County circuit court transferred Amy's dissolution case, which had been consolidated with her order of protection petition, to the circuit court of Cook County. Thereafter, all proceedings took place in Cook County circuit court.

¶ 8 A. Temporary Custody and Support

¶ 9 On November 5, 2008, the circuit court entered an order appointing attorney Joel Levin as the child representative, ordered that Sunil's visitation with the children be supervised and that the supervisor's fee be paid by Sunil. Prompted by Amy's complaints, the Department of Children and Family Services (DCFS) investigated but concluded that Amy's charges of abuse against Sunil were unfounded. On February 10, 2009, the trial court granted Sunil unsupervised visitation with the children. The parties agreed that Sunil would pay Amy $6, 000 per month in temporary support.

¶ 10 On May 19, 2009, Dr. Phyllis Amabile, a psychiatrist and the court-appointed evaluator, filed her report with the court. Dr. Amabile concluded that many of the accusations Amy made against Sunil were false, but that in making the accusations, Amy was "delusional" rather than deliberately lying. Sunil then moved to have Amy undergo a mental health evaluation and for transfer of custody of the children to him. The trial court ordered that Amy be evaluated by Sunil's mental health expert, Dr. Stephen Dinwiddie, a forensic psychiatrist. Dr. Dinwiddie diagnosed Amy as suffering from "delusional disorder, " which "is characterized by the presence of fixed, false beliefs with minimal insight into the implausibility of those beliefs." Patel I, 2011 IL App (1st) 111407-U, ¶ 25. Amy's delusional disorder was associated with an elevated risk of violence toward her children. On June 26, 2009, following the submission of Dr. Dinwiddie's report, the court ordered that Sunil have temporary custody of the children and that Amy's visitation be supervised. Patel I, 2011 IL App (1st) 111407-U, ¶ 28.

¶ 11 B. Discovery

¶ 12 In January 2009, Amy's attorneys, the law firm of Schiller, DuCanto and Fleck (the Schiller firm) were granted leave to withdraw. The law firm of Rinella and Rinella (the Rinella firm) began representing Amy in February 2009.

¶ 13 On March 12, 2009, Sunil served Amy with a request for the production of documents and with interrogatories in order to ascertain the identity and testimony of the witnesses she intended to call at trial pursuant to Illinois Supreme Court Rule 213(f) (eff. Jan. 1, 2007). Patel I, 2011 IL App (1st) 111407-U, ¶¶ 29. While the rule required that Amy respond within 28 days, Amy did not respond to the request until July 17, 2009. She tendered some documents and listed only the parties as witnesses. On August 31, 2009, the trial court set a trial date of January 25, 2010, and ordered the parties to update their discovery disclosures by November 24, 2009. Patel I, 2011 IL App (1st) 111407-U, ¶¶ 29-30.

¶ 14 On September 21, 2009, Sunil filed a motion to compel Amy to comply with his document request of March 12, 2009. Sunil alleged that Amy's July 17, 2009, response was incomplete. He further alleged that his attorney had attempted to resolve the matter with Amy's attorney pursuant to Illinois Supreme Court Rule 201(k) (eff July 1, 2002)), but no additional documents were produced. Due to the withdrawal of the Rinella firm and the appearance of Amy's new attorneys, Pasulka and Associates, P.C. (the Pasulka firm), the trial date was continued to April 28, 2010, and the discovery cutoff date was extended to April 15, 2010. The trial court ordered Amy to comply with Sunil's March 12, 2009, production request by February 1, 2010. In the event she failed to comply, the order provided that Amy would incur a fine of $100 per day. As of February 1, 2010, Amy had not complied with the production request, and the fine began to accumulate. The Pasulka firm then withdrew. Patel I, 2011 IL App (1st) 111407-U, ¶¶ 35-34.

¶ 15 On February 16, 2010, the trial court ruled on Amy's emergency motion to reschedule the depositions of certain family members. The court entered an order allowing the substitution of law firm of Coladarci and Coladarci (the Coladarci attorneys) to represent Amy and continued the issue of the depositions to February 18, 2010. The order further provided that Sunil's attorney was to tender to Amy's attorney the bill for costs and fees necessitated by the rescheduling of the depositions. On February 18, 2010, the trial court rescheduled the depositions. The court acknowledged in the order that Sunil's attorney had tendered the bill for the depositions to Amy's attorney. Amy was ordered to pay the rescheduling fees at a pretrial hearing on March 3, 2010.

¶ 16 On April 5, 2010, Sunil filed a motion to bar Amy from using any documentary evidence at trial that she had not previously tendered and from calling any lay or expert witness she had not previously disclosed. Due to the unavailability of the trial judge, the April 28, 2010, trial date was continued, first to July 12, and then to July 19, 2010. On May 12, 2010, Amy disclosed 34 witnesses but requested that discovery be extended to allow her experts, Drs. Chapman and Krause, to submit their reports and to be deposed by Sunil. Sunil responded that it would be impossible to complete discovery with regard to Amy's experts by the trial date. Patel I, 2011 IL App (1st) 111407-U, ¶¶ 35-39.

¶ 17 On June 3, 2010, the Coladarci attorneys filed an emergency motion to withdraw as Amy's attorneys. The motion was denied without prejudice on June 9, 2010. On June 17, 2010, the trial court found that Amy's answers did not comply with Rule 213 and that she had failed to comply with the rules and court orders regarding the disclosure of her witnesses. The trial court refused to continue the trial date and barred Amy from introducing her expert witnesses' opinions at trial or from calling them as witnesses.

¶ 18 On June 30, 2010, the trial court heard arguments on several motions filed by the parties. Inter alia, the court found that Amy had violated the June 17, 2010, order by filing Dr. Chapman's report with the clerk of the court. The court prohibited Amy from filing any pro se motions without leave of court and barred her from using or referencing any documents that existed prior to February 2, 2010, but not previously tendered pursuant to prior court orders. On July 21, 2010, the trial court found that Amy had violated the court's June 30, 2010, order, inter alia, by filing motions with the court pro se and failing to file a formal response to Sunil's request for the production of documents. The court entered an order granting Amy's motion to represent herself and ordered the Coladarci attorneys[2] to act as standby counsel. The court barred Amy from using any trial exhibits except her financial disclosure statement, exhibits marked and tendered by Sunil and any documents of which the court could take judicial notice.

¶ 19 II. The Hearings

¶ 20 On July 21, 2010, the trial court found that the grounds for the dissolution of the parties' marriage had been proven. The case then proceeded to a contested hearing on the remaining issues. The proceedings were held on various dates and concluded on November 1, 2010. The majority of the testimony at trial was related to the issue of child custody, which is not at issue in this appeal. See Patel I, 2011 IL App (1st) 111407-U (providing a detailed discussion of the evidence and testimony at trial bearing on the issue of custody and the need for supervised visitation).

¶ 21 The evidence pertinent to the maintenance and attorney fees issues are summarized below. Additional pertinent evidence will be set forth in connection with the issue to which it relates.

¶ 22 A. Maintenance for Amy

¶ 23 Amy graduated from the University of Michigan in 1997 with a Bachelor of Arts degree in psychology. In 2002, she received a law degree from De Paul University but did not take the bar examination. At the time of trial, Amy was 35 years old and in good health. She wanted to take the bar examination and estimated the cost of a review class and taking of the exam to be $5, 000. However, she had not yet signed up for the exam. Instead, Amy was attending Northern Seminary part-time to obtain a Master's degree in Theology. She took one class per semester at a cost of $1, 320 per class. She had completed 4 out of the 15 classes necessary for her degree. Her goal was to work at the Lawndale Christian Center, which provides medical and legal services to the poor. Amy acknowledged that a master's degree was not required to work at the Center.

¶ 24 Amy worked part-time for Dr. Park, an internist, doing office work and taking patients' vital signs, and at Christ Church of Oak Brook doing childcare several hours a week. Amy worked approximately 25 hours per week at $9 an hour for Dr. Park and earned $30 per week at Christ Church. Amy applied for work as a server at a number of restaurants and at a tanning salon, working behind the counter. She did not seek a management position. None of the jobs she applied for required her advanced degrees. Amy denied that she would be able to earn sufficient income to provide for herself by working for Dr. Park. She acknowledged that she had answered yes to the same question in her deposition. With regard to Amy's ability to work, Dr. Dinwiddie testified that Amy's delusional disorder did not mean she could not work or work effectively.

¶ 25 Amy was questioned extensively about her living expenses listed on her disclosure statement. Her testimony revealed that she was uncertain as to the amount of her expenses and that her disclosure statement contained inaccuracies. For example, Amy initially stated that her father had paid $200, 000 of her legal expenses. After modifying the amount to $170, 000, she stated that her father would be better able to testify as to the amount.

¶ 26 B. Attorney Fees

¶ 27 Between November 15, 2010, and January 4, 2011, the trial court conducted a hearing on the final attorney fee petitions filed by Sunil's attorney and the various law firms that had represented Amy. Throughout these proceedings, Sunil was represented by attorney Diane Panos. From October 2008 until January 2009, Amy was represented by the Schiller firm.[3] Thereafter, she was represented by three different law firms until the trial court granted her motion to appear pro se. Each of the law firms provided detailed billing statements itemizing the outstanding fees and costs owed to it and presented testimony as to the work performed. Amy cross-examined the the witnesses, but she presented her own case only in response to the Coladarci fee petition.

¶ 28 1. The Rinella Firm

¶ 29 The Rinella firm represented Amy from February 3, 2009, until October 30, 2009. Amy did not dispute the expertise or the hourly rates of the attorneys who performed the legal services on her behalf in this case. Attorneys Joseph Phelps and Michael Chiero testified on behalf of the Rinella firm and were cross-examined by Amy as to the services they performed for her

¶ 30 In her cross-examination, Amy attempted to secure admissions from the attorneys that they had failed to adequately comply with discovery requests, failed to ensure that the reports of Drs. Chapman and Krause would be completed and disclosed timely, and as of October 2009, had not begun to prepare for trial then scheduled for January 2010. According to attorney Chiero, Amy refused to comply with discovery requests and refused to sign the responses to Sunil's motions that he prepared.

¶ 31 The Rinella attorneys explained that their fees were increased by the involvement of James Sines, Amy's father, in the case. Amy authorized the attorneys to communicate with Mr. Sines, who involved himself in the strategy and direction of the case. The Rinella attorneys spent time communicating with attorneys representing the Sines' family in dealing with Sunil's attempts to secure the production of documents and depositions. The fees were also increased by Amy's insistence that two attorneys appear for her at court appearances because two attorneys appeared on Sunil's behalf at court appearances.

¶ 32 2. The Pasulka Firm

¶ 33 The Pasulka firm represented Amy from November 9, 2009, until February 16, 2010. Attorney Jon Stromstra testified on behalf of the Pasulka firm and was cross-examined by Amy.

¶ 34 Attorney Stromstra graduated from law school in 1984. His experience in the practice of law included litigation for various firms and agencies. Prior to joining the Pasulka firm in 2008, he had some family law experience as part of his general practice. The billing rates set forth in invoices sent to Amy were the same as those set forth in the engagement contract between Amy and the Pasulka firm. The hourly rate of $375 was considered fair and reasonable in Cook County.

¶ 35 Attorney Stromstra was in charge of Amy's case. After receiving Amy's file from the Rinella firm, he prepared responses to motions that had not previously been answered and responded to Sunil's production request with the documents Amy had provided. He obtained a continuance of the January 25, 2010, trial date because of the progress he was making in filing responses and complying with Sunil's discovery requests.

¶ 36 During the Pasulka firm's representation of Amy, attorney Stromstra was contacted by Mr. Sines who wanted to discuss Amy's case with him. With Amy's consent and authorization, attorney Stromstra had telephone conversations with Mr. Sines. Mr. Sines also participated in a conference attorney Stromstra had with Amy and other Pasulka personnel. Amy discharged the Pasulka firm immediately prior to the February 16, 2010, scheduled depositions of her family members.

¶ 37 3. The Coladarci Attorneys

¶ 38 Attorneys John Coladarci and Anne Coladarci represented Amy from February 16, 2010, until August 26, 2010. Both attorneys testified as to their work on behalf of Amy and were cross-examined by Amy.

¶ 39 When the Coladarci attorneys accepted Amy's case, they were aware that a great deal of work was required to prepare the case for the April 2010, trial date. Initially, their intent was to achieve a successful result for Amy in a trial. After reviewing the file, the attorneys determined that the best strategy was to avoid a trial at all costs and settle the case.

¶ 40 The Coladarci attorneys understood that custody of the children was a significant issue in the case. They advised Amy and Mr. Sines that pursuing the claims that Sunil had abused the children would not be successful. In response, Amy and Mr. Sines brought in attorney Arnold Goldstein, who was more enthusiastic about pursuing the abuse claims against Sunil. Attorney Goldstein never filed an appearance in the case.[4] Nonetheless, his involvement created additional work for the Coladarci attorneys because he had to be brought up to date on the status of the case and was pursuing a strategy they had previously rejected.

¶ 41 The Coladarci attorneys acknowledged that they did not file the motions requested by Mr. Sines. In their view, the motions were either unnecessary, would be unsuccessful, or were matters for the hearing on the petition for dissolution, such as Amy's request to have her visitation unsupervised.

¶ 42 The Coladarci attorneys were aware that Amy did not want to pursue a settlement but attempted to persuade her that, in light of what they believed the evidence at hearing would reveal, settling the case would be in her best interests. At the same time, their efforts to prepare for trial were hampered by Amy's refusal to communicate with them. The attorneys attempted to withdraw from the case, but their motion was initially denied. While they eventually received Dr. Chapman's report, the doctor's "outside" contact with Amy compromised any benefit his report or testimony might have for her case. Dr. Krause needed to interview Sunil before he could finalize his evaluation, but the trial court refused to delay the trial.

¶ 43 III. Judgment

¶ 44 On August 9, 2011, the trial court entered a judgment dissolving the marriage of the parties, awarding sole custody of the children to Sunil, dividing the parties' marital and nonmarital assets and debts and allocating the payment of maintenance, attorney fees and other fees incurred during the litigation. The court awarded Amy 55% of the assets and Sunil 45% of the assets. The portions of the judgment pertinent to the issues raised on appeal are set forth below.

¶ 45 A. Dissipation of Marital Assets

¶ 46 Between November 8, 2008, and February 3, 2009, Sunil's visitation with the children was supervised. The supervision was necessitated by Amy's false claims of abuse against Sunil and her coaching of the children to make false statements against Sunil. The trial court concluded that Amy had dissipated marital assets in the amount $6, 923.75, the cost of the supervised visitation.

¶ 47 B. Marital Debts

ΒΆ 48 The trial court ordered that each party be responsible for his or her own credit card indebtedness. While Amy had included $45, 000 of credit card debit on her disclosure form, the court found that there was no credible evidence to support that amount. The court further found that Amy had failed to establish that $170, 000 she received from her father was a ...


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