NO. 4-96-0683
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In Re: the Marriage of ) Appeal from
PAULA B. MINEAR, ) Circuit Court of
Petitioner-Appellee, ) Douglas County
and ) No. 94D6
ROBERT E. MINEAR, )
Respondent-Appellant. ) Honorable
) Frank W. Lincoln,
) Judge Presiding.
_________________________________________________________________
JUSTICE KNECHT delivered the opinion of the court:
In February 1994, petitioner Paula Minear filed a peti-
tion for dissolution of her marriage to respondent Robert Minear.
In October 1994, the trial court granted the dissolution and en-
tered the final judgment on remaining issues on August 28, 1996.
Robert appeals, arguing the trial court abused its discretion by
(1) disregarding certain depreciation expenses when the court
calculated his net income, (2) failing to award him child sup-
port, (3) ordering him to pay Paula $500/month in maintenance,
(4) distributing the marital property "equally to the last pen-
ny," and (5) ordering him to pay part of Paula's attorney fees
and part of her prospective attorney fees on appeal. We affirm.
The parties were married in 1975. When the dissolution
proceedings began, Paula was 40 years old and Robert was 41. Two
children were born, Melissa in 1978 and Michael in 1981. As
Melissa reached her majority on July 21, 1996, no custody order
was entered. Robert was granted custody of Michael, which is not
disputed on appeal.
Robert disputes the trial court's calculation of his
net income. Specifically, he argues the trial court should have
reduced his net income by deducting certain depreciation expenses
related to the operation of his service station. Using Robert's
financial statement for the first nine months of 1995, the court
added Robert's claimed depreciation expense of $10,873 (for the
same nine months) to his base income in calculating net monthly
income of $3,063.
Robert argues this depreciation expense should have
been deducted from net income pursuant to section 505(a)(3) of
the Illinois Marriage and Dissolution of Marriage Act (Act) (750
ILCS 5/505(a)(3) (West 1994)). Section 505(a)(3)(h) allows a
deduction from net income for "[e]xpenditures for repayment of
debts that represent reasonable and necessary expenses for the
production of income." 750 ILCS 5/505(a)(3)(h) (West 1994).
Robert, relying on Posey v. Tate, 275 Ill. App. 3d 822, 656
N.E.2d 222 (1995), contends the trial court abused its discretion
in not permitting the depreciation deduction.
In Posey, the trial court allowed the defendant to
deduct depreciation expense from investment rental property from
gross income to calculate child support. The First District
Appellate Court, relying on section 505(a)(3)(h), found the trial
court did not abuse its discretion in doing so. Posey, 275 Ill.
App. 3d at 827, 656 N.E.2d at 226. The Posey court first looked
to Black's Law Dictionary, which defined "depreciation" as
follows:
"'spreading out [of] the cost of a capital
asset over its estimated useful life. *** A
decline in value of property caused by wear
or obsolescence and *** usually measured by a
set formula which reflects these elements
over a given period of useful life of proper-
ty. [Citation.] [The] [c]onsistent, gradual
process of estimating and allocating cost of
capital investments over estimated useful
life of asset in order to match cost against
earnings.'" Posey, 275 Ill. App. 3d at 826,
656 N.E.2d at 225, quoting Black's Law Dic-
tionary 441 (6th ed. 1990).
The court then held:
"[D]epreciation is not income, but a
return of capital. To subject depreciation
expense, which has been allowed as a deduc-
tion on a supporting parent's tax return, to
child support would be to assess such support
against capital instead of income. *** We
therefore find that the deduction of straight
line depreciation expense from net income by
defendant, a taxpayer who is obligated to pay
child support, is fair and proper, where he
has shown such a deduction to be a 'reason-
able and necessary expense for the production
of income,' and that it is subject to a spec-
ified repayment schedule, as contemplated by
section 505(a)(3)(h)." Posey, 275 Ill. App.
3d at 826-27, 656 N.E.2d at 225-26.
We find the reasoning of Posey questionable, since the
court found depreciation to be an "expenditure for repayment of
debt." See 750 ILCS 5/505(a)(3)(h) (West 1994). "Expenditure"
is defined as the "[s]pending or payment of money; the act of
expending, disbursing, or laying out of money; payment." Black's
Law Dictionary 717 (6th ed. 1990). "Payment" is defined as:
"The fulfil[l]ment of a promise, or the
performance of an agreement. ***
*** [T]he performance of a duty, prom-
ise, or obligation, or discharge of a debt or
liability, by the delivery of money or other
value by a debtor to a creditor, where the
money or other valuable thing is tendered and
accepted as extinguishing debt or obligation
in whole or in part." Black's Law Dictionary
1129 (6th ed. 1990).
"Debt" is defined as "[a] sum of money due by certain and express
agreement. A specified sum of money owing to one person from
another, including not only obligation of debtor to pay but right
of creditor to receive and enforce payment." Black's Law Dictio-
nary 403 (6th ed. 1990).
Thus, while in some circumstances depreciation may be a
"reasonable and necessary expense for the production of income"
(see 750 ILCS 5/505(a)(3)(h) (West 1994)), it is not an "expen-
diture for repayment of debt" as those terms are defined. Fur-
ther, section 505(a)(3)(h) states: "The court shall reduce net
income *** only for the period that such payments are due and
shall enter an order containing provisions for its self-executing
modification upon termination of such payment period." 750 ILCS
5/505(a)(3)(h) (West 1994). Depreciation expenses cannot reason-
ably be construed as "payments" subject to "payment periods" as
required by the Act.
This court recently emphasized the significance of this
language. In Gay v. Dunlap, 279 Ill. App. 3d 140, 664 N.E.2d 88
(1996), a case cited by neither party, the defendant deducted
from his income $10,500 for car and truck expenses, as well as
$1,075 for depreciation, legal and professional services, office
expense, supplies, meals, and entertainment. In holding such
business expenses not deductible under section 505(a)(3)(h) in
determining the defendant's child support obligations, this court
first distinguished the determination of net income from the
trial court's consideration of the "'financial resources and
needs of the noncustodial parent'" (Gay, 279 Ill. App. 3d at 146,
664 N.E.2d at 93) in deciding whether to apply the statutory
guidelines:
"A trial court decision about whether to
apply the statutory guidelines involves care-
fully balancing many factors--not limited to
those listed in the statute. (750 ILCS
5/505(a)(2) (West 1992).) The determination
of net income, on the other hand, should be a
straightforward, rigorous process. The leg-
islature defined 'net income,' for purposes
of the statute, as 'the total of all income
from all sources,' minus the specifically
enumerated allowable deductions, which it
then proceeded to list." Gay, 279 Ill. App.
3d at 146, 664 N.E.2d at 93.
This court emphasized the legislature's clearly expressed inten-
tion to permit deductions only where an expenditure is made for
the "repayment of debts":
"Allowing day-to-day business expenses to be
deducted under subsection (a)(3)(h) would
ignore the language 'for repayment of debts.'
The legislature could have enacted the stat-
ute without such language, but it chose to
include it. We will not read this language
out of the statute when the statute makes
perfect sense with it included.
Further, such a holding would also con-
flict with the second sentence of subsection
(a)(3)(h), which provides:
'The court shall reduce net income
in determining the minimum amount
of support to be ordered only for
the period that such payments are
due and shall enter an order con-
taining provisions for its
self-executing modification upon
termination of such payment peri-
od.' (750 ILCS 5/505(a)(3)(h)
(West 1992).)
This language would make no sense if business
expenses, ongoing and variable from month to
month, could be deducted." Gay, 279 Ill.
App. 3d at 147, 664 N.E.2d at 93.
This court in Gay again distinguished the calculation of net
income from the determination of child support:
"[W]e note the purpose of subsection
(a)(3) (including subsection (h)) is simply
to define the noncustodial parent's net in-
come. [Citation.] Subsection (a)(3) is not
intended to determine what the 'fair' amount
of child support is, nor does it have any-
thing to do with how much child support is to
be paid. All it does is define net income.
Expenses which it would be improper to deduct
under subsection (a)(3) can still play a role
in a trial court's decision regarding depar-
ture from the statutory guidelines. ***
We therefore hold only such expenses as
constitute 'repayment of debts' may be de-
ducted from net income under the first clause
of section 505(a)(3)(h) of the Act, and fur-
ther hold nonreimbursed business expenses do
not fit into this category." Gay, 279 Ill.
App. 3d at 147-48, 664 N.E.2d at 94.
While Posey focused only on the requirement a deduction under
section 505(a)(3)(h) be a "reasonable and necessary expense for
the production of income" (see Posey, 275 Ill. App. 3d at 827,
656 N.E.2d at 226; see also Rimkus v. Rimkus, 199 Ill. App. 3d
903, 910, 557 N.E.2d 638, 643 (1990)), this court in Gay cau-
tioned two hurdles must be overcome to claim the deduction:
"[S]imply because an expense falls into
the category of a debt repayment does not
mean it is deductible. Qualifying as a re-
payment of debt is a necessary, but not a
sufficient, condition for deductibility under
subsection (a)(3)(h). Once this hurdle is
overcome, the proponent of the deduction must
also show the debts being repaid 'represent
reasonable and necessary expenses for the
production of income.'" Gay, 279 Ill. App.
3d at 148, 664 N.E.2d at 94, quoting 750 ILCS
5/505(a)(3)(h) (West 1992).
Cf. In re Marriage of Heil, 233 Ill. App. 3d 888, 599 N.E.2d 168
(1992) (one-half of mortgage payment, taxes, and insurance on
hunting lodge utilized 50% of time for business deductible); In
re Marriage of Partney, 212 Ill. App. 3d 586, 571 N.E.2d 266
(1991) (real estate investment losses improperly deducted from
net income where it could not be shown to be reasonable or
necessary to the production of income and could not be presented
in a specified repayment schedule); In re Marriage of Cornale,
199 Ill. App. 3d 134, 556 N.E.2d 806 (1990) (monthly installment
payments on real estate investment not properly deductible where
there was no indication payments were reasonable and necessary
for the production of income and where evidence disclosed proper-
ty was not producing income at the time); In re Marriage of Hart,
194 Ill. App. 3d 839, 551 N.E.2d 737 (1990) (in dicta, trial
court did not err in finding debt incurred in purchasing a plane
as a business investment to be expenditure for repayment of
debts); In re Marriage of McBride, 166 Ill. App. 3d 504, 519
N.E.2d 1095 (1988) (nonreimbursed business expenses properly not
deducted from gross business income where trial court specifical-
ly found there was insufficient evidence expenses were necessary
to generate income and parties had defined "net income" in
settlement agreement without including nonreimbursed business
expenses as deductions in the calculation of child support); In
re Marriage of Lefler, 185 Ill. App. 3d 677, 685, 542 N.E.2d 1, 5
(1988) (business expenses disallowed as a deduction in calcula-
ting net income because provision allowing for a business debt
deduction contemplates a specified repayment schedule tracking
time "such payments are due" and asserted expenses were not
presented by way of such a specified repayment schedule); see
generally Annotation, Treatment of Depreciation Expenses Claimed
for Tax or Accounting Purposes in Determining Ability to Pay
Child or Spousal Support, 28 A.L.R.5th 46 (1995).
Clearly, the trial court did not abuse its discretion
here by adding Robert's claimed depreciation expense back to his
income for purposes of determining child support and maintenance.
First, the trial court did consider Robert's evidence of poten-
tial environmental liability at the service station, deducting
$84,630 from the value of the business allocated to him, a
reduction in his favor. However, Robert failed to present any
evidence the claimed depreciation expenses were either "expendi-
tures for the repayment of debts" or "reasonable and necessary
expenses for the production of income," much less any specific
repayment schedule as required by the Act. See 750 ILCS
5/505(a)(3)(h) (West 1994). In fact, there was no testimony,
expert or otherwise, presented at trial as to the nature of these
expenses. The expenses are mentioned only in one of Paula's
exhibits, an "income statement" for Robert's service station.
This exhibit shows $10,873 in claimed depreciation expenses for
the first nine months of 1995, the figure used by the trial court
in calculating Robert's net income. This minimal evidence is
insufficient to justify a deduction under section 505(a)(3)(h).
Cf. In re Marriage of Holman, 122 Ill. App. 3d 1001, 462 N.E.2d
30 (1984) (depreciation expense of $9,351 added back to service
station owner's net business income in calculating maintenance
award); In re Marriage of Homann, 276 Ill. App. 3d 236, 241, 658
N.E.2d 492, 496 (1995) (questioning the actual income-expense
disparity of a spouse denied maintenance, where a $300/month
automobile depreciation "expense" was claimed); In re Marriage of
McDonald, 113 Ill. App. 3d 116, 118, 446 N.E.2d 559, 561 (1983)
(rejecting the claim of petitioner, whose "substantial income"
was reduced largely by depreciation expenses, he could not pay
maintenance, noting "[u]nless [depreciation] be funded, it
represents available funds").
Robert next contends the trial court abused its discre-
tion when it refused to award him child support. He complains of
the court's failure to find, pursuant to section 505(a)(2) of the
Act, application of the statutory guidelines would be inappropri-
ate, and its failure to state the amount which would have been
required under the guidelines and reasons for the variance. See
750 ILCS 5/505(a)(2) (West 1994). Paula contends this court
should not consider the absence of express findings, since Robert
never called this failure to the attention of the trial court.
In re Marriage of Harper, 191 Ill. App. 3d 245, 547 N.E.2d 574
(1989). We agree with Paula.
In Harper, the petitioner alleged, as does Robert here,
the trial court's failure to make express findings explaining the
reasons for its departure from the statutory guidelines for child
support required reversal. Harper, 191 Ill. App. 3d at 246, 547
N.E.2d at 575; see 750 ILCS 5/505(a)(2) (West 1994). As here,
the issue was raised for the first time on appeal. This court
refused to address the merits:
"Were we to do so, this case might be remand-
ed with directions to the trial court to
provide written findings in accordance with
section 505(a). The trial court might then
make those findings, certify them back to
this court, and we might then find them to be
entirely appropriate. It is even possible
that plaintiff initially might have chosen
not to pursue this appeal based upon the
trial court's findings. The point is that
judicial resources were wasted by plaintiff's
appeal of this issue. This waste of resourc-
es could have been avoided had plaintiff, at
the time the trial court rendered its deci-
sion or within 30 days thereafter, but asked
for the written findings to which he claims
to be entitled." Harper, 191 Ill. App. 3d at
246, 547 N.E.2d at 575.
For the same reasons, Robert cannot now challenge the trial
court's alleged failure to make express findings in this case.
See also In re Marriage of Mohr, 260 Ill. App. 3d 98, 631 N.E.2d
785 (1994); In re Marriage of Kern, 245 Ill. App. 3d 575, 615
N.E.2d 402 (1993) (waiver of trial court's failure to make
express findings, following Harper); In re Marriage of Baptist,
232 Ill. App. 3d 906, 598 N.E.2d 278 (1992) (waiver of trial
court's failure to make express findings, following Harper); but
see In re Marriage of Wright, 212 Ill. App. 3d 392, 571 N.E.2d
197 (1991) (refusing to follow Harper).
Moreover, the trial court made adequate findings. The
court found Paula's net monthly income to be $1,086 and Robert's
to be $3,063. Based on this disparity, the court ordered Robert
to pay Paula $500/month maintenance, and then concluded:
"[T]aking into consideration the amount of
maintenance Respondent is hereby ordered to
pay to the Petitioner, Respondent has a net
income in excess of that of Petitioner and is
not in need of child support from the Peti-
tioner by reason thereof."
This was an express and sufficient finding satisfying the re-
quirements of section 505(a)(2). See In re Marriage of Burris,
263 Ill. App. 3d 495, 499, 636 N.E.2d 71, 74 (1994) (trial
judge's oral comment on the disparity of income between the
parties prior to denying child support satisfied requirements of
section 505(a)(2)); Kern, 245 Ill. App. 3d at 577, 615 N.E.2d at
404 ("the requirement that the court make 'express findings'
(Ill. Rev. Stat. 1991, ch. 40, par. 505(a)(2)) is not a require-
ment that the findings be written or incorporated into the
court's order").
Robert next challenges the maintenance award. As
noted, the trial court ordered Robert to pay Paula $500/month in
periodic, indefinite maintenance "until further order of the
court." The court based its award on Robert's superior earning
capacity, Paula's inability to maintain herself "anywhere near
the standard of living enjoyed by the parties during the course
of their marriage," the length of the marriage, and the unlike-
lihood of Paula being able to substantially increase her earning
capacity. The evidence here indicated Paula worked full-time as
a medical receptionist at Carle Clinic. She took home approx-
imately $1,086/month, and her monthly expenses were $1,920.
Robert challenges the amount and duration of the award.
Robert suggests the trial court "did not discuss, or apparently
even consider" the court's award to Paula of $98,452, exactly
one-half the value of the marital property. However, it is well
settled a spouse should not be required to sell or otherwise
impair capital assets in lieu of maintenance, especially where
the other spouse has sufficient income to meet both his needs and
the needs of his spouse. Homann, 276 Ill. App. 3d at 241, 658
N.E.2d at 495; In re Marriage of Cheger, 213 Ill. App. 3d 371,
379-80, 571 N.E.2d 1135, 1141 (1991). Moreover, Robert was
awarded the service station, the major income-producing asset of
the marriage.
Robert also alleges the trial court failed to consider
"Paula's household had diminished from a family of four to a
single person." However, maintenance is granted to a spouse to
enable that person to maintain the lifestyle enjoyed prior to
dissolution, or an approximation thereof. The absence of chil-
dren and Robert after dissolution is irrelevant to that determi-
nation.
Robert argues the trial court considered neither his
ability to pay nor the standard of living during the marriage.
Yet, the court's order of dissolution states it took into consid-
eration the parties' disparate incomes and Paula's inability to
maintain a lifestyle "anywhere near" the standard established
during her marriage. We emphasize while "[o]ne notable goal of
the Act is to make separating spouses financially independent[,]
unfortunately, often this is not possible due to the limited re-
sources of both parties." In re Marriage of Koberlein, 281 Ill.
App. 3d 880, 885, 667 N.E.2d 695, 699 (1996); see also In re Mar-
riage of Gunn, 233 Ill. App. 3d 165, 174-75, 598 N.E.2d 1013,
1020 (1992); In re Marriage of Simmons, 87 Ill. App. 3d 651, 661,
409 N.E.2d 321, 328 (1980). As to Robert's claim the trial court
failed to consider Melissa's upcoming college expenses, no
evidence was adduced at trial as to the nature and extent, if
any, of such expenses, so the trial court's order is appropri-
ately silent with respect to these speculative "expenses." The
trial court did not abuse its discretion in awarding Paula
$500/month in maintenance. See In re Marriage of Dunseth, 260
Ill. App. 3d 816, 833, 633 N.E.2d 82, 95 (1994) (award of mainte-
nance may not be disturbed absent an abuse of discretion).
Robert challenges the duration of the maintenance
award, claiming it was error to award "permanent" maintenance
with no provision for review. An award of maintenance is not
permanent and may be modified upon a showing of a substantial
change in circumstances. 750 ILCS 5/510(a) (West 1994); In re
Marriage of Werries, 247 Ill. App. 3d 639, 651, 616 N.E.2d 1379,
1389 (1993); Gunn, 233 Ill. App. 3d at 173, 598 N.E.2d at 1018.
Where a spouse is employable at an income not overly dispropor-
tionate relative to the standard of living established during the
marriage, limited maintenance is appropriate. Werries, 247 Ill.
App. 3d at 652, 616 N.E.2d at 1390; see Dunseth, 260 Ill. App. 3d
at 833, 633 N.E.2d at 95. On the other hand, where a spouse is
not employable or is employable only at a low income compared to
the previous standard of living, indefinite maintenance would be
appropriate. Werries, 247 Ill. App. 3d at 652, 616 N.E.2d at
1390.
The trial court concluded it was unlikely Paula would
be able to increase her income to a level approaching Robert's.
These facts distinguish this case from those cited by Robert, In
re Marriage of Heller, 153 Ill. App. 3d 224, 505 N.E.2d 1294
(1987), and In re Marriage of Girrulat, 219 Ill. App. 3d 164, 578
N.E.2d 1380 (1991). In Heller, the former wife was well-educated
with "speculative" earning capacity due to a variety of employ-
ment skills she possessed, including culinary cooking skills and
training as a travel agent. In Girrulat, the former wife was
working 30 hours per week at $4 per hour, but there was evidence
she would be obtaining a high school equivalency certificate
which would enable her to earn considerably more in the near
future. In both cases, it was found to be error to award mainte-
nance without a provision for review. Heller, 153 Ill. App. 3d
at 236, 505 N.E.2d at 1301; Girrulat, 219 Ill. App. 3d at 169,
578 N.E.2d at 1383. Given the obvious distinctions between these
cases and the instant case, we cannot say the trial court abused
its discretion in awarding Paula indefinite maintenance.
tion when it distributed the marital property "exactly equally to
the last penny." The trial court awarded Paula the marital
residence ($49,000), certain cash and investment accounts
($24,813), household furniture ($10,025), a note receivable
($4,000), the couples' 1990 Grand Am automobile (value undeter-
mined), and an equalizing payment from Robert ($10,615), for a
total marital property award of $98,453. The court awarded
Robert the net value of the service station ($80,370, after
deducting $84,630 in potential environmental liability), certain
cash and investment accounts ($17,732), and various other proper-
ty ($10,965), for a total marital property award of $98,453
(after considering the equalizing payment made to Paula).
Robert argues he, as the custodial parent, should have
been awarded the marital residence. It is true an award of the
marital home in favor of the custodial parent is normally pre-
ferred. See 750 ILCS 5/503(d)(5) (West 1994) (in dividing
marital property, trial court must consider "the relevant econom-
ic circumstances of each spouse when the division of property is
to become effective, including the desirability of awarding the
family home, or the right to live therein for reasonable periods,
to the spouse having custody of the children"); In re Marriage of
Zirngibl, 237 Ill. App. 3d 1049, 1057, 606 N.E.2d 1, 6 (1991); In
re Marriage of Brenner, 95 Ill. App. 3d 100, 102, 419 N.E.2d 400,
402 (1981). Yet this factor is but one of many a trial court
must consider in apportioning marital property. See 750 ILCS
5/503(d) (West 1994). Here, it was entirely reasonable for the
trial court to award Robert the service station, the major
income-producing asset of the marriage, so he could continue to
run it. Robert does not suggest how the trial court could have
divided the remaining marital property fairly without awarding
Paula the marital residence.
Robert refers to the trial court's equalizing payment
as "bizarre." We see nothing "bizarre" about the trial court's
attempt to apportion the marital property of the parties evenly
through the use of an equalizing payment. See In re Marriage of
Swanson, 275 Ill. App. 3d 519, 528, 656 N.E.2d 215, 222 (1995)
("[w]hen awarding income-producing assets to one spouse becomes
necessary, the trial court may achieve an equitable distribution
by authorizing off-setting payments to the other spouse or by
awarding a greater share of total marital assets to the spouse
who does not receive the income-producing assets"); In re Mar-
riage of Jarvis, 245 Ill. App. 3d 1007, 1013, 614 N.E.2d 1294,
1298 (1993) (where ex-husband was awarded income-producing assets
of the marriage, award to ex-wife of double the value of marital
property received by him obviated need for equalizing payments);
In re Marriage of Morrical, 216 Ill. App. 3d 643, 645-46, 576
N.E.2d 465, 467 (1991); In re Marriage of Hellwig, 100 Ill. App.
3d 452, 459, 426 N.E.2d 1087, 1092 (1981). Equal distribution of
marital property is generally favored, unless application of the
statutory factors demonstrates an equal division would be inequi-
table. In re Marriage of Moll, 232 Ill. App. 3d 746, 755, 597
N.E.2d 1230, 1236 (1992). Here, while Robert has custody of Mi-
chael, he was awarded the major income-producing asset of the
marriage. Under these circumstances, we cannot say the trial
court abused its discretion in splitting the marital property
50/50. Cf. Moll, 232 Ill. App. 3d 746, 597 N.E.2d 1230 (no abuse
of discretion by trial court in awarding ex-husband 50% of
marital property, where he was granted custody and ex-wife
awarded family farm); Heller, 153 Ill. App. 3d 224, 505 N.E.2d
1294 (affirming 50/50 split of marital property based on dispari-
ty of incomes, despite ex-husband's protestations maintenance and
child's tuition expenses consumed 50% of his income); In re
Marriage of Brooks, 138 Ill. App. 3d 252, 486 N.E.2d 267 (1985)
(affirming 50/50 split of marital property).
Robert's final two arguments are related. He claims
the trial court abused its discretion by ordering him to pay part
of Paula's attorney fees incurred in the dissolution and part of
her prospective fees on appeal. The trial court calculated
Robert's income to be 73.82% of the parties' total income and
ordered him to pay 73.82% of Paula's attorney fees. Paula had
claimed $3,700 in legal fees arising from the dissolution and was
awarded $2,781. Paula estimated her legal fees on appeal would
be $3,000 and asked for an award of $2,000. The trial court,
noting Paula requested less than 73.82% of her prospective
attorney fees ($2,215), granted her request.
Robert argues there was no showing of either Paula's
inability to pay her attorney fees or his ability to pay. As a
general matter, attorney fees are the primary responsibility of
the person for whom the services are rendered. Werries, 247 Ill.
App. 3d at 655, 616 N.E.2d at 1392. Pursuant to section 508 of
the Act, however, the trial court may, in its discretion and
after consideration of the financial resources of the parties,
order one spouse to pay all or part of the other's attorney fees
arising out of dissolution proceedings. See 750 ILCS 5/508(a)
(West 1994); In re Marriage of Kennedy, 214 Ill. App. 3d 849,
861, 573 N.E.2d 1357, 1365 (1991). Section 508(a)(3) also ex-
pressly authorizes a prospective award of attorney fees to a
party for the defense of an appeal. 750 ILCS 5/508(a)(3) (West
1994); In re Marriage of Talty, 166 Ill. 2d 232, 240, 652 N.E.2d
330, 334 (1995); In re Marriage of Brent, 263 Ill. App. 3d 916,
928, 635 N.E.2d 1382, 1390 (1994); cf. Pub. Act 89-712, eff. June
1, 1997 (amending 750 ILCS 5/508(a) (West 1994)) (permitting
awards of interim attorney fees or contributions to attorney fees
and costs as well). Either award of attorney fees requires the
party seeking fees to demonstrate an inability to pay and the
ability of the other spouse to meet the obligations of both. In
re Marriage of Phillips, 244 Ill. App. 3d 577, 595, 615 N.E.2d
1165, 1178-79 (1993); see Talty, 166 Ill. 2d at 242, 652 N.E.2d
at 335; cf. Pub. Act 89-712, eff. June 1, 1997 (adding 750 ILCS
5/501(c-1)(3) (West 1994)) (permitting award of interim attorney
fees from time to time while a case is pending, based upon the
same criteria). Yet financial inability to pay does not demand a
showing of destitution, and the fee-seeking spouse is not re-
quired to divest himself of capital assets before requesting
fees. Kennedy, 214 Ill. App. 3d at 861-62, 573 N.E.2d at 1365.
It is sufficient to show payment would exhaust his estate or
strip him of his means of support or undermine his economic sta-
bility. Phillips, 244 Ill. App. 3d at 595-96, 615 N.E.2d at 1179.
The trial court based its award of attorney fees on the
disparate income of the parties, an approach Robert repeatedly
refers to as "cavalier." However, even with the $500/month
maintenance award, Robert's net monthly income was almost $1,000
more than Paula's. Robert again complains all of Melissa's
upcoming college expenses were "dumped on" him, but the trial
court's order did not address this subject. Robert complains of
the trial court's use of the parties' relative incomes in deter-
mining the proportion of Paula's attorney fees he should pay.
However, whether one spouse's attorney fees should be paid by the
other spouse and what proportion of these fees is to be paid are
decisions which lie within the sound discretion of the trial
court. In re Marriage of Blazis, 261 Ill. App. 3d 855, 870, 634
N.E.2d 1295, 1305 (1994); Phillips, 244 Ill. App. 3d at 596, 615
N.E.2d at 1179; cf. Pub. Act 89-712, eff. June 1, 1997 (adding
750 ILCS 5/503(j)(5) (West 1994)) (where one party petitions for
contribution for fees and costs from the other party, contribu-
tion award "may be in the form of either a set dollar amount or a
percentage of fees and costs (or a portion of fees and costs)").
We find no abuse of this discretion here.
For the reasons stated, we affirm the judgment of the
trial court.
Affirmed.
GARMAN, J., concurs.
COOK, J., dissents.
JUSTICE COOK, dissenting:
I respectfully dissent.
Why should we even be concerned with whether deprecia-
tion expense should have been deducted from Robert's net income
under section 505(a)(3) of the Act? Section 505(a)(3) deals with
child support, and Robert has not been ordered to pay child
support. Robert was ordered to pay maintenance and attorney
fees. I question whether section 505(a)(3)'s definition of net
income has any bearing on maintenance or attorney fees. I
address the issue, however, because it is addressed in the
majority opinion.
For the reasons set out in my separate opinion in Gay
(279 Ill. App. 3d at 150-52, 664 N.E.2d at 95-96), I disagree
with the majority's conclusion that section 505(a)(3) provides a
comprehensive listing of the deductions that may be taken in
determining income or net income. The section may work satis-
factorily for employees who receive a paycheck, but it cannot be
rigidly applied to determine the income of self-employed individ-
uals. As I understand the majority opinion, a self-employed
individual may deduct expenses such as cost of goods sold, rent,
utilities, and secretarial help only if he jumps through the
hoops of section 505(a)(3)(h) and shows that those expenses are
in the form of debts which are being repaid and will be paid off
at some definite time. A self-employed individual who pays these
expenses as they come due is not liable for the "repayment of
debt" and is accordingly not entitled to a deduction under the
majority's view. Even if the expenses are paid sometime after
they become due, and there is accordingly a "debt" for some
period of time, there cannot be a deduction for continuing
expenses because such expenses never terminate.
That result cannot be correct and is not the way income
is calculated in practice. Even in Gay, the self-employed
realtor was allowed to deduct expenses such as rent, utilities,
and secretarial help because those items were subtracted from the
check given him by Coldwell Banker, and we did not look past that
check to his total commissions, despite section 505(a)(3)'s
admonition that we begin with "the total of all income from all
sources," and subtract only the listed deductions. 750 ILCS
5/505(a)(3) (West 1994). Perhaps some sense can be made of
section 505(a)(3) by the explanation that the section addresses
only net income, and that additional deductions are allowed in
determining gross income. As a matter of accounting, cost of
goods sold is deducted in determining gross income. Section
505(a)(3) is not a comprehensive statement of what constitutes
income, but is a statement of legislative intent to limit the
deductions that may be made in calculating net income for purpos-
es of calculating child support.
I agree, however, that a circuit court is not required
to deduct depreciation in determining net income for purposes of
the child support guidelines. While tax law principles may be
useful in determining what net income is available for child
support, they are not controlling. Ivanyi v. Granoff, 171 Ill.
App. 3d 411, 421-22, 526 N.E.2d 189, 197 (1988) (refusing to
consider items which defendant was required to report on his tax
return but did not in fact receive). What is important is not
what is shown on the tax return, but the individual's current
ability to pay child support.
I disagree with the majority's decision that Robert is
not entitled to child support from Paula because Robert has more
income than Paula does. A child is entitled to the support of
both of his parents. In re Marriage of Duerr, 250 Ill. App. 3d
232, 238, 621 N.E.2d 120, 125 (1993); In re Marriage of Maczko,
263 Ill. App. 3d 991, 994, 636 N.E.2d 559, 562 (1992); see also
750 ILCS 5/505(a) (West 1994) ("the court may order either or
both parents owing a duty of support to a child of the marriage
to pay an amount reasonable and necessary for his support"). The
argument that a payor of child support should receive some sort
of reduction when the custodian has income has repeatedly been
rejected. See Kern, 245 Ill. App. 3d at 579, 615 N.E.2d at 405;
In re Marriage of Blaisdell, 142 Ill. App. 3d 1034, 1047, 492
N.E.2d 622, 630 (1986). Assuming that Robert's net income is
$3,063, and that Paula's is $1,086, and that the child receives
support at the guidelines amount from both, the child would
receive $829.80 of support per month. I do not see that as
excessive.
The circuit court attempted to divide the property
equally between the parties. In doing so the circuit court
awarded Paula the residence, the furniture, the automobile, the
accounts, and an equalizing payment ($10,615), all of which to-
talled $98,453. Robert was also awarded $98,453, but $80,630 of
his award came from the service station he operated. Robert was
then given custody of the minor child, but no child support.
There is a double counting problem here. Paula can
sell all the property she was awarded and still have a monthly
income of $1,086. Robert's monthly income of $3,063 is dependent
on his continued ownership of the service station. Robert cannot
sell the service station and buy a residence, for example. Some
portion of Robert's $3,063 is not income from employment, but a
return on capital. When the circuit court considered the full
amount of the $3,063 in awarding maintenance, but awarded the
service station to Robert as the major portion of Robert's
property division, it erroneously counted the same asset twice.
See In re Marriage of Zells, 143 Ill. 2d 251, 256, 572 N.E.2d
944, 946, (1991); Talty, 166 Ill. 2d at 236-40, 652 N.E.2d at
332-34. The court compounded the error when it required Robert
to pay a portion of Paula's attorney fees corresponding to his
share of the parties' total income (73.82%). (Why was Paula not
required to pay 26.18% of Robert's attorney fees?) This was not
just a case of double counting, but of triple counting. I ques-
tion whether Robert would have much greater income potential than
Paula if he no longer had the service station.
The majority justifies the award of attorney fees by
citing Kennedy for the proposition that Paula is not required to
divest herself of capital assets before seeking fees. That rule
does not apply, however, if Robert would likewise be required to
divest himself of capital assets in order to pay attorney fees.
Kennedy, 214 Ill. App. 3d at 861, 573 N.E.2d at 1365 (spouse
seeking fees must establish financial ability of other spouse to
pay them). There is not a lot of money in this case. It seems
clear that both parties will be required to invade their capital
assets, and there is no justification for shifting Paula's fees
to Robert.
I would reverse the circuit court's order as it relates
to child support, maintenance, property division, and attorney
fees, and remand for reconsideration and the entry of an order in
accord with the views expressed herein.