In re Marriage of O'Malley

2016 IL App (1st) 151118

• Court: Appellate Court of Illinois
• Decided: September 23, 2016
• Docket: 1-15-1118 1-15-2908 cons.
• Status: Unpublished

Opinion

2016 IL App (1st) 151118 Nos. 1-15-1118, 1-15-2908 (cons.) Fifth Division September 23, 2016

______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________

In re MARRIAGE OF ) ) Appeal from the Circuit Court KIM MATSON O’MALLEY, n/k/a/ Kim Godfrey, ) of Cook County. ) Petitioner-Appellee, ) No. 01 D 14530 ) and ) The Honorable ) Patricia Logue, PAUL R. O’MALLEY, ) Judge Presiding. ) Respondent-Appellant. ) ______________________________________________________________________________

PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion. Justices Reyes and Burke concurred in the judgment and opinion.

OPINION

¶1 Petitioner Kim Godfrey filed a petition to dissolve her marriage to respondent Paul R.

O’Malley, and the trial court entered a judgment dissolving the marriage, which incorporated

a marital settlement agreement (MSA) signed by the parties. After the entry of the judgment

for dissolution of marriage, the parties continued to litigate the terms of the MSA, including

the terms related to the disposition of the former marital residence. While two appeals

concerning the MSA have been before this court, the instant appeal concerns the trial court

finding Paul in “indirect civil contempt” for failing to abide by the MSA’s September 1,

2007, deadline for selling the marital residence or buying out Kim’s interest in the residence Nos. 1-15-1118, 1-15-2908 (cons.)

and its orders concerning the distribution of the proceeds from the sale of the residence and

awarding Kim attorney fees. For the reasons set forth below, we affirm in part and vacate in

part the trial court’s order.

¶2 BACKGROUND

¶3 Kim Godfrey and Paul O’Malley were married on November 18, 1983. 1 In 2001, Kim

filed a petition for dissolution of marriage, alleging irreconcilable differences as the reason

for the dissolution. Kim and Paul executed a MSA on July 16, 2003, which contained,

inter alia, a provision concerning the marital residence, a single family home located in Oak

Park, Illinois. The trial court entered a judgment for dissolution of the marriage on the same

day, which incorporated the MSA. The provision concerning the marital residence stated the

following:

“Paul and Kim will retain title and interest in Oak Park Marital real estate ***

as tenants in common while PAUL maintains possession exclusive of KIM;

PAUL will either place the Oak Park home for sale on or before September 1,

2007, or buy out Kim’s interest. In the event that PAUL elects to buy out KIM’s

interest—or the home is listed for sale—the parties will each have the right to

obtain separate SRA appraisals to determine the then current average market sale

price. If the first two (2) separate appraisals are not more than $100,000 apart,

either party may elect to have the first two (2) appraisers designated a 3rd SRA

appraiser to submit an independent appraisal, and in that event, the current

average market sale price shall be determined by averaging the two (2) highest

1 As this case has come before this court on two previous appeals, we take all relevant facts from our previous decisions. In re Marriage of O’Malley, 2013 IL App (1st) 131641-U; In re Marriage of O’Malley, No. 1-10-2639 (2011) (unpublished order under Supreme Court Rule 23).

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appraisals obtained. Cost of an appraisal shall be borne by the party requesting an

appraisal. Kim will receive on sale or buy out by PAUL, as set forth below:

(1) If the Oak Park marital home is sold to third party(ies), KIM will receive

50% of the net sale proceeds or at least $550,000, whichever is greater, after

deduction from the gross sale proceeds of any realtor or sales commission, closing

costs and for $250,000 representing the mortgage and home equity debt and any

credit due PAUL as stated herein. PAUL must have paid all expenses due on the

property prior to sale including all payments due on mortgages, home equity

loans, liens, taxes, insurance and utilities, and any such unpaid obligations will be

deducted from PAUL’s share of the equity realized from the sale of the residence.

PAUL will receive a credit for costs paid by him, not to exceed $100,000, for

special maintenance, preservation or improvement of the marital home, necessary

to maintain full market value. Costs so incurred by PAUL shall require written

documentation of work for costs and require pre-approval by KIM before work

takes place for PAUL to obtain a credit sale at closing.

(2) If PAUL elects to buy out Kim’s interest in the Oak Park marital home,

Kim will receive 50% of the then current average market sale price, determined as

stated in paragraph IC herein, or at least $550,000, whichever is greater, after

deduction for $250,000, representing the mortgage and home equity debt and any

credit due PAUL as stated herein. PAUL will receive a credit for costs paid by

him, not to exceed $100,000, for special maintenance, preservation, or

improvement of the marital home necessary to maintain full market value. Costs

so incurred by PAUL shall require written documentation of work and costs and

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require pre-approval by KIM before work takes place for PAUL to obtain a credit

a buyout closing.”

¶4 Thus, while Paul maintained exclusive possession of the marital residence, the property

was owned by Paul and Kim as tenants in common until either (1) Paul bought out Kim’s

half of the property or (2) the property was placed for sale with Paul and Kim splitting any

resulting proceeds. If the property was to be sold, the property was to be listed for sale on or

before September 1, 2007.

¶5 I. Kim’s Petition for Rule to Show Cause

¶6 On November 16, 2009, prior to the May 2012 sale of the marital residence, Kim filed a

“Petition for Rule to Show Cause, to Modify Judgment for Dissolution of Marriage, and

other Relief.” In count I of the petition, Kim alleged that after the judgment for dissolution of

marriage was entered, Paul was unconcerned about the MSA’s September 1, 2007, deadline

for putting up the marital residence for sale and that he made no efforts to arrange for the

necessary repairs that were needed prior to placing the residence on the market. Kim alleged

that Paul minimally participated in the repair and renovation process. Kim alleged Paul’s

exclusive possession of the home and his minimal participation caused a delay in putting the

marital residence on the market, which was ultimately done in 2008. Paul and Kim received

an offer in August 2008 of $1.775 million, but Kim alleged that Paul felt that was a low offer

and began to engage in negotiations with the prospective buyers. The final offer of $1.875

million was received on September 17, 2008, and contained an expiration time of 9 p.m. Kim

alleges that she signed the contract that day and expected Paul to do so as well. Paul

allegedly disregarded the 9 p.m. deadline, and the strict instructions that the final offer was

not subject to a counteroffer, and submitted a counteroffer anyway. The petition alleges that

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Paul and Kim’s realtor for the marital residence contacted Kim to tell her that the prospective

buyers had walked away from the deal because Paul submitted a counteroffer instead of a

signed contract. According to the petition, the deal would have entitled Kim to a net of over

$750,000 for her half of the sale. After the sale fell through, Kim allegedly had a large

amount of debt that she was unable to pay due to the lost sale of the marital residence. The

petition alleges that Paul’s uncooperative and unmotivated behavior resulted in the failure of

the completed sale on the home and that his obligations from the judgment of dissolution of

marriage were clear and his failure to comply with those terms were even clearer.

¶7 The second count, modification of the judgment, asked the court to modify the judgment

of dissolution of marriage to grant Kim exclusive possession of the residence so that Kim

could attempt to maximize the profits from the sale of the residence. The petition sought the

following relief:

“(1) Enter an order requiring Respondent PAUL O’MALLEY to show

cause, if any he can, for his failure to comply with the Judgment for

Dissolution of Marriage; (2) find Respondent in contempt of this Court for his

failure to abide by the terms of the Judgment for Dissolution of Marriage; (3)

[o]rder Respondent immediately to pay Petitioner the sum of $767,500,

representing Kim’s share of the proceeds of the lost sale of the Residence,

which sale was lost as a direct result of Respondent’s contemptuous action;

(4) [o]rder Respondent to be fully responsible for all improvement and

maintenance cost incurred since the date the sale was to be closed, with no

contribution from Kim; (5) [o]rder Respondent to tender Kim a sum equal to

her additional costs incurred that are directly related to Respondent’s failure to

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close the sale; (6) [o]rder Respondent to pay Petitioner’s attorney fees and

costs associated with prosecuting this [p]etition; (7) [g]rant such other and

further relief as this Court may deem just and equitable under the facts of this

case; *** (8) [m]odify the Judgment for Dissolution of Marriage to terminate

Respondent’s exclusive possession of the [r]esidence effective immediately;

(9) [m]odify the Judgment for Dissolution of Marriage to name Petitioner as

sole negotiator on any contracts for the sale of the [r]esidence; (10) [a]llow

Petitioner sole right to select and contract with whatever realtor she may deem

appropriate; and (11) [g]rant such other and further relief as this Court may

deem just and equitable under the facts and circumstances of this case.”

¶8 On December 10, 2009, Paul responded to the petition, denying the allegation that he

interfered with the sale. On January 5, 2012, the trial court found that Kim alleged a

prima facie case of indirect civil contempt and issued an order for Paul to show cause why he

should not be held in contempt of court for failing to comply with the terms of the judgment

for dissolution of marriage. 2

¶9 Trial on the petition was set for March 13, 2012, but ultimately did not commence until

September 2013. On March 12, 2012, Paul filed a motion for summary judgment arguing that

there was no evidence to support a finding that he was in contempt for noncompliance, but

his motion was denied. The marital residence was ultimately sold on May 18, 2012, for $1.5

million, before the trial court could rule on Kim’s petition. On May 29, 2012, the trial court

ordered that “ ‘[a]ny and all proceeds of sale of [the] former marital residence shall be held in

2 During this period, an interlocutory appeal was occurring on the disqualification of Paul’s attorney. In re Marriage of O’Malley, No. 1-10-2639 (2011) (unpublished order under Supreme Court Rule 23).

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escrow,’ ” and Paul and Kim were ordered to execute the necessary documentation to

establish that escrow account. In re Marriage of O’Malley, 2013 IL App (1st) 131641-U, ¶ 6.

Paul filed a motion to vacate this order on June 25, 2012, arguing that it was a preliminary

injunction. The trial court denied the motion on July 2, 2012, and we dismissed Paul’s appeal

for lack of jurisdiction. O’Malley, 2013 IL App (1st) 131641-U, ¶ 26.

¶ 10 II. Contempt Trial

¶ 11 The trial on Kim’s petition for rule to show cause commenced in September 2013, and

both parties called witnesses to testify on their behalf. Paul testified on his own behalf, while

Kim presented the testimony of (1) Catherine Deam, Kim and Paul’s real estate agent for the

marital residence; (2) Robert Polachek, Paul’s previous attorney; (3) Barbara Binik, the 2008

prospective buyers’ realtor; and (4) herself. Since Paul does not challenge the trial court’s

findings of fact, we relate here only the facts needed to understand the issues on appeal.

¶ 12 Deam testified 3 that she was chosen as Paul and Kim’s realtor to sell the marital

residence, which was placed on the market later than the September 1, 2007, date specified in

the MSA due to the staging of the marital residence, maintenance completed on the property,

and the selection process of choosing a realtor that Paul and Kim both agreed upon; Deam

explained that the marital residence was considered a historic home, as it was built by the

architects Tallmadge and Watson, and she had experience in selling historic homes similar to

the marital residence. The residence was eventually placed on the market in April 2008 for

$2.3 million, and Deam received an offer from prospective buyers for $1.775 million.

¶ 13 Robert Polachek testified that after Paul received the offer from the prospective buyers,

Paul asked Polachek to seek a modification of the final offer with respect to the closing date

3 Deam provided an evidence deposition on May 2, 2012, and her deposition was used in lieu of live testimony.

7 Nos. 1-15-1118, 1-15-2908 (cons.)

and radon mitigation costs. Polachek testified that an e-mail with a counteroffer regarding the

closing date and the radon costs was sent at 6:39 p.m. on September 17, 2008. Polachek also

testified that the prospective buyers did not respond and the sale was subsequently

terminated.

¶ 14 Barbara Binik, the prospective buyers’ realtor, testified that on September 17, 2008,

around 12:48 p.m., she sent Deam a fax on behalf of her clients with a new offer. She

additionally testified that this new offer was to be terminated at 9 p.m. that evening.

¶ 15 At trial, Kim testified that she and Paul agreed to use Deam as their realtor because she

and Paul felt that the property’s historic status required a certain level of experience and they

believed Deam was qualified to sell the marital residence. Kim testified that on August 11,

2008, Kim and Paul received an offer on the property, and that through a series of

negotiations, both parties agreed upon a price of $1.875 million for the marital property. The

prospective buyers imposed a 9 p.m. deadline on their final offer. Kim testified that she

signed the final offer prior to this deadline, but Paul did not. Kim testified that she became

aware of the incomplete sale on September 22, 2008.

¶ 16 Prior to the prospective buyers’ final offer, Paul testified that he had the financial ability

to buy out Kim’s interest in the marital residence but chose not to buy out her interest

because it was not in his financial best interest to do so. In regards to the prospective buyers’

final offer, Paul testified at trial that he told his attorney to e-mail the prospective buyers and

seek a modification on the final offer. Paul testified that after the prospective buyers’ final

offer terminated, the price of the marital residence was reduced over the years, and the final

asking price was reduced to $1.59 million in 2012. The property sold in May 2012 for $1.5

million.

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¶ 17 III. Contempt Order

¶ 18 On April 2, 2014, the trial court found Paul to be in “indirect civil contempt” and ordered

Paul to pay an amount equal to half of the 2008 final offer of $1.875 million. Additionally,

the trial court found Kim, Polachek, and Binik to be credible witnesses and Paul to be an

incredible witness. The trial court ordered the following:

“(A) [t]he court has jurisdiction over the parties and the subject matter; (B)

[t]he petition for Rule to Show Cause is granted. Paul failed to show cause for his

failure to comply with the MSA and JDOM property provisions; (C) Paul R.

O’Malley is held in indirect civil contempt of court for his willful and

contumacious failures to abide by the parties’ MSA and JDOM as set forth above,

including failing to comply with the September 1, 2007, MSA deadline and

related obligations; recklessly destroying the September 17, 2008, contract

opportunity for Kim without good cause; and failing repeatedly to deal fairly and

in good faith with Kim and her contractual interests; (D) Paul breached his

contract with Kim under the MSA by these same actions, causing her economic

losses and other harms; (E) Paul shall pay Kim; 1) $153,473.30, representing the

remaining principal due owing from the MSA distribution formula, after paying

from Paul to Kim [the amount] of $157,000 from the escrow account; 2)

$120,115.90 on prejudgment interest on the full principal amount of $310,473.30

at 5% per annum simple interest for the period from September 1, 2007, through

entry of the court’s judgment as an equitable remedy for the delays, expenses and

other harms Paul caused to Kim during this period; 3) $14,487.65 for

reimbursement of real estate taxes charged to Kim; and 4) 9% interest per annum

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on all amounts due and owing upon this judgment, until fully paid per 735 ILCS

5/2-1303; (F) [a]ll remaining funds in the escrow fund will be distributed to Kim

with Paul receiving credits, as described above; (G) Kim’s motion to strike Paul’s

affirmative defense of laches as to Count I of the Petition is granted; (H) Paul’s

motion to dismiss Count II of Kim’s Petition of alleged lack of citation to legal

authority is denied; [I] [t]he court incorporates by reference its prior rulings in this

case, including rulings on dispositive motions; (J) [t]he parties may file any

petitions for fees costs, and/or contribut[ions] arising under a statute and/or the

MSA within 35 days of this order; and (K) [t]he court retains jurisdiction to

enforce the terms of this order.”

¶ 19 IV. Posttrial Motions

¶ 20 Paul filed his posttrial motion to vacate the court’s order on April 29, 2014. The posttrial

motion was denied on March 18, 2015. On April 17, 2015, Paul filed his notice of appeal

based on the contempt findings and the amount of proceeds awarded to Kim that were based

upon the 2008 final offer price. On September 17, 2015, the trial court awarded Kim

$64,229.43 for attorney fees and costs. On October 13, 2015, Paul filed a notice of appeal on

the trial court’s finding that Kim was entitled to recover for attorney fees and costs. Both

appeals, regarding the contempt finding and the amount awarded to Kim including attorney

fees, were consolidated on November 5, 2015.

¶ 21 ANALYSIS

¶ 22 On appeal, Paul argues that (1) Paul was actually held in indirect criminal contempt, not

indirect civil contempt, which violated his constitutional rights; (2) the trial court’s damages

award for breach of “the implied covenant of good faith and fair dealing” was invalid; (3) the

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trial court did not have the authority to modify the terms of the property provisions of the

parties’ MSA; (4) the trial court did not have the authority to award prejudgment interest as a

remedy for contempt; (5) the petition for rule to show cause failed to state a cause of action

and his motion to dismiss should have been granted; and (6) Kim was not entitled to attorney

fees based off a fee-shifting provision in the MSA. We consider each argument in turn.

¶ 23 I. Contempt

¶ 24 Paul first argues that he was held in indirect criminal contempt in violation of his

constitutional rights. Paul claims that the trial court’s contempt finding was actually criminal

in nature because the requirements under the MSA no longer existed. By contrast, Kim

contends that Paul was properly found to be in indirect civil contempt, as Paul was not

punished by the court but coerced into complying with the MSA. The trial provided the

following reasons as its basis for the indirect civil contempt finding:

“Paul *** is held in indirect civil contempt *** for his willful and

contumacious failure to abide by the parties’ MSA and JDOM as set forth

above, including failing to comply with the September 1, 2007, deadline and

related obligations; recklessly destroying the September 17, 2008, contract

opportunity for Kim without good cause; and failing repeatedly to deal fairly

and in good faith with Kim and her contractual interests.”

¶ 25 When a contempt appeal is filed, the standard of review is an abuse of discretion. Illinois

Emcasco Insurance Co. v. Nationwide Mutual Insurance Co., 393 Ill. App. 3d 782, 785

(2009). A trial court abuses its discretion only when “ ‘no reasonable person would take the

view adopted by the trial court.’ ” (Internal quotation marks omitted.) Willbourn v.

Cavalenes, 398 Ill. App. 3d 837, 848 (2010) (quoting Foley v. Fletcher, 361 Ill. App. 3d 39,

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46 (2005)). “Whether a contempt finding should be vacated is a question to be determined on

the individual facts of the particular appeal.” Dole v. Township High School District 211,

2015 IL App (1st) 140857, ¶ 121 (citing Consolidation Coal v. Bucyrus-Eire Co., 89 Ill. 2d

103, 122 (1982)).

¶ 26 In order to determine whether a contempt finding is civil or criminal in nature, it is

important to consider “ ‘the purpose for which the contempt sanctions are imposed.’ ” Emery

v. Northeast Illinois Regional Transportation Co., 374 Ill. App. 3d 974, 977 (2007) (quoting

In re Marriage of Sharp, 369 Ill App. 3d 271, 278 (2006)). Civil contempt is “ ‘designed to

compel future compliance with a court order’ ” and is “ ‘avoidable through obedience.’ ”

Emery, 374 Ill. App. 3d at 977 (quoting Sharp, 369 Ill. App. 3d at 279). A person held in

civil contempt must have the ability to purge the contempt by complying with the court

order. Pryweller v. Pryweller, 218 Ill. App. 3d 619, 633 (1991). Contempt based on past

actions which cannot be undone means that the contemnor lacks the ability to purge the

contempt (see Luttrell v. Panozzo, 252 Ill. App. 3d 597, 602 (1993)) because the purpose of

civil contempt is to compel compliance with court orders, not to punish (County of Cook v.

Lloyd A. Fry Roofing Co., 59 Ill. 2d 131, 135 (1974)). Therefore, whenever a court order

cannot be complied with, there cannot be a finding of civil contempt. In re Marriage of Betts,

200 Ill. App. 3d 26, 46 (1990).

¶ 27 By contrast, criminal contempt is “ ‘instituted to punish, as opposed to coerce, *** for

past contumacious conduct.’ ” Emery, 374 Ill. App. 3d at 977 (quoting Sharp, 369 Ill. App.

3d at 279). Criminal sanctions are retrospective in that “ ‘they seek to punish a contemnor for

past acts [that] he cannot now undo.’ ” Emery, 374 Ill. App. 3d at 977 (quoting Betts, 200 Ill.

App. 3d at 46). “ ‘[I]ndirect civil contempt is a continuation of the original cause of action,’ ”

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while criminal contempt proceedings are separate and distinct and not part of the original

case being tried. Levaccare v. Levaccare, 376 Ill. App. 3d 503, 509 (2007) (quoting People v.

Budzynski, 333 Ill. App. 3d 433, 438 (2002)). In short, criminal contempt consists of

punishing for doing what has been prohibited or not doing what has been ordered, while civil

contempt is invoked to coerce what has been ordered (Budzynski, 333 Ill. App. 3d at 438),

and once the contemnor complies, no further civil sanctions are imposed (Betts, 200 Ill. App.

3d at 44). In sum, the attributes of civil contempt are that (1) the contemnor is able to

perform the action demanded by the court and (2) no further civil sanctions are imposed if

the contemnor complies. Betts, 200 Ill. App. 3d at 44.

¶ 28 In the case at bar, Paul contends that the trial court’s finding of civil contempt was

actually indirect criminal contempt, and thus his constitutional rights were violated. Kim

argues that the trial court properly found Paul to be in civil contempt and that the court

merely ordered him to comply with his obligations set forth in the judgment for dissolution

of marriage. 4 The trial court’s April 2, 2012, order found Paul to be in “indirect civil

contempt” for the following reasons: (1) his failure to abide by the September 1, 2007,

deadline for selling the marital residence; (2) lying about his capacity to buy out Kim’s share

of the property; and (3) “killing” the 2008 sale without consulting Kim. The trial court found

Paul to be an incredible witness, and as the trial court is the finder of fact and in the best

position to observe the conduct and determine the credibility of the witnesses, we give the

trial court deference and apply the manifest weight of the evidence standard of review upon

our review of any factual findings. See Eychaner v. Gross, 202 Ill. 2d 228, 252 (2002). While

4 The parties do not dispute that the contempt was indirect, since it did not occur in the trial court’s presence. See Levaccare, 376 Ill. App. 3d at 509; Budzynski, 333 Ill. App. 3d at 436 (discussing how the petitioner in Levaccare filed a petition for adjudication of indirect civil contempt, as the respondent failed to comply with the court’s order).

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the trial court labeled the contempt as civil in nature, the substance of the contempt finding,

not the label given, is what will determine whether the contempt finding was criminal or civil

in nature. SKS & Associates, Inc. v. Dart, 2012 IL App (1st) 103504, ¶ 15 (the appellate court

is not bound to the trial court’s designation of civil or criminal contempt, but instead will

examine the nature of the sanctions imposed).

¶ 29 Once the sale was complete, Paul could not comply with MSA or any court orders

requiring him to comply. As a result, the trial court’s order actually found him to be in

criminal contempt, not civil contempt. The fundamental nature of civil contempt is to coerce

an individual to comply with a court order by giving that individual the opportunity to purge

himself of contempt through compliance. Pancotto v. Mayes, 304 Ill. App. 3d 108, 111

(1999). In the case at bar, the trial court based its finding of civil contempt upon the

condition it would afford Paul the opportunity to purge himself of the contempt charge

“[u]pon Kim’s receipt of all escrowed funds allocated to her under this order.” However, a

finding of civil contempt is not proper unless the ability to purge a contempt finding is within

the power of the contemnor. In re Marriage of Berto, 344 Ill. App. 3d 705, 713 (2003).

¶ 30 For instance, in Berto, the appellate court found that once the respondent paid the

unallocated maintenance and child support that was owed to the petitioner, he no longer had

the ability to “ ‘purge’ ” himself of the alleged contempt, and thus, there remained no basis

for a finding of civil contempt. Berto, 344 Ill. App. 3d at 713. In the case at bar, the marital

residence was sold on July 16, 2012, which meant Paul did not have the ability to comply

with the order at the time of the contempt hearing because he could not have put the marital

residence up for sale or bought out Kim’s share of the home because it had been sold to

another person. A finding of civil contempt would only have been proper if Paul had the

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ability to place the home on the market or buy out Kim’s share. However, since the sale of

the home was completed, Paul was unable to buy out Kim’s share of the home. The purge

provision of the trial court’s order could not provide Paul with the opportunity to comply

with the MSA because that opportunity did not exist once the home was sold. As a result, the

contempt finding can only be determined to be criminal in nature because it was punishing

Paul for his past conduct.

¶ 31 A person charged with criminal contempt is entitled to similar constitutional protections

and procedural rights that a criminal defendant is afforded. In re Marriage of Weddigen,

2015 IL App (4th) 150044, ¶ 27. For instance, in Weddigen, the appellate court found that the

respondent was not afforded many of the constitutional and procedural rights he should have

been afforded when the indirect civil proceedings transformed into indirect criminal

contempt proceedings. Weddigen, 2015 IL App (4th) 150044, ¶ 28. Even though the

contempt proceedings in Weddigen appeared to be both civil and criminal in nature, the court

found that once the original petition, which sought civil contempt, transitioned to be criminal

in nature, certain constitutional and procedural protections were required. Weddigen, 2015 IL

App (4th) 150044, ¶¶ 26, 28. A failure to provide constitutional and procedural guarantees

results in vacatur of the contempt finding. Luttrell, 252 Ill. App. 3d at 601. The constitutional

protections that are allowed for all criminal defendants are (1) right to jury trial when

incarceration exceeds six months or the fine exceeds $500; (2) right to counsel; (3) right to

change of judge; (4) right to be charged with a written complaint, petition, or information; (5)

right to personal service and to know the nature of the charges; (6) right to file an answer and

a have public trial; (7) right to present evidence, subpoena witnesses, and to confront and

cross-examine witnesses; (8) right to the presumption of innocence and against self-

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incrimination; and (9) right to be proven guilty beyond a reasonable doubt. Budzynski, 333

Ill. App. 3d at 439. In addition, the trial court must admonish defendant of his constitutional

rights.

¶ 32 In the case at bar, Paul was not notified of a criminal contempt proceeding, was not

admonished as to his rights, nor found guilty beyond a reasonable doubt for a criminal

contempt charge. Thus, Paul was not afforded his constitutional rights when found to be in

contempt that was criminal in nature. As a result, the contempt finding is vacated.

¶ 33 II. Breach of Contract and Remedy Awards

¶ 34 Next, Paul argues on appeal that the trial court’s award for breach of “the implied

covenant of good faith and fair dealing” was improper because using the implied covenant of

good faith and fair dealing as the sole basis for a breach of contract finding is improper. In

the case at bar, the trial court based its breach of contract finding on Paul’s failure to abide by

the parties’ MSA and judgment for dissolution of marriage, which included Paul failing to

comply with the September 1, 2007, deadline and related obligations, recklessly destroying

the 2008 contract opportunity, and failing to repeatedly deal in good faith with Kim.

However, the trial court indicated that breach of contract was an alternative basis to its

contempt findings by stating, “Should the contempt finding or remedy be invalidated for any

reason, in whole or in part, the parallel contract remedy shall apply instead as to any invalid

portions.” As we find the contempt finding to be improper, it is therefore necessary to

consider whether the alternative contract remedy was legally proper.

¶ 35 Paul bases his argument on the allegation that Kim’s petition did not state a claim for

breach of contract or upon a breach of the implied covenant of good faith and fair dealing. As

a result, Paul argues that Kim is unable to recover from a cause of action that was not

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pleaded in her pleadings. Paul contends that this finding should also be vacated so that Paul

can demand a jury trial and provide a proper defense. Kim argues that the trial court merely

provided an alternative basis to find that Paul violated the MSA.

¶ 36 A trial court can determine whether a party to a MSA violated the agreement between the

parties. See In re Marriage of Lyman, 2015 IL App (1st) 132832. Judges in the domestic

relations division make these decisions almost on a daily basis.

¶ 37 In the case at bar, the trial court found that “Paul breached his contract with Kim under

the MSA *** causing her economic losses and other harms.” The trial court found that Paul’s

conduct in not notifying, discussing, or obtaining Kim’s approval to counteroffer or to buy

her out was a willful and contumacious failure to abide by the parties’ MSA. The trial court

found that Paul recklessly destroyed the September 17, 2008, offer to purchase and

repeatedly failed to deal with Kim fairly and in good faith.

¶ 38 Paul correctly states that in Illinois, the implied covenant of good faith and fair dealing is

“not an independent source of duties for the parties to a contract.” Fox v. Heimann, 375 Ill.

App. 3d 35, 42 (2007). However, although the implied covenant of good faith and fair

dealing is included among the reasons by the trial court as to why Paul was found to be in

breach of the MSA, it is not the sole basis the trial court used to find that Paul breached the

contract. Thus, we review the question of the trial court’s finding that Paul breached the

MSA in light of all of the trial court’s stated reasons, not just the implied covenant of good

faith and fair dealing.

¶ 39 The express terms of the MSA stated that Paul was required to either put the marital

residence up for sale on or before September 1, 2007, or buy out Kim’s interest. The home

was not up for sale by the expressed deadline, and Paul did not buy out Kim’s interest.

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Furthermore, the trial court found that Paul failed to provide a credible reason as to why he

failed to comply with the September 1, 2007, deadline. Paul also testified that he had the

ability to buy out Kim’s share of the property, but chose not to do so, thus testifying that he

chose not to comply with the contract. Thus, we affirm the trial court’s finding of Paul to be

in breach of the MSA.

¶ 40 III. Trial Court Authority to Modify the MSA

¶ 41 Next, Paul argues that the trial court did not have authority to modify the terms of the

property provisions of the parties’ MSA. Paul seeks a remand for redistribution of the sale

proceeds in accordance with the unmodified provisions of the MSA. Kim contends that the

court had the inherent power to enforce its judgments, and that the terms of the MSA are

enforceable by all remedies available. Additionally, Kim argues that the trial court merely

modified the valuation provisions of the marital residence. In the case at bar, the trial court

determined that the property distribution formula, which establishes the amount Kim is

entitled to, should be calculated based upon the offer for the purchase of the marital home

tendered to Paul and Kim in 2008. We agree with Kim that the trial court did not modify the

terms of the MSA, but rather enforced the terms of the MSA.

¶ 42 The trial court’s jurisdiction over a modification to the parties’ MSA is a question of law

and thus subject to de novo review. In re Marriage of Hall, 404 Ill. App. 3d 160, 164 (2010);

In re Marriage of Allen, 343 Ill. App. 3d 410, 412 (2003). De novo review means the

reviewing court performs the same analysis that a trial judge would perform. Khan v. BDO

Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011). A trial court may not revoke or modify

property dispositions “ ‘unless the court finds the existence of [a condition] that justif[ies] the

reopening of a judgment under the laws of this State.’ ” Hall, 404 Ill. App. 3d at 164 (quoting

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750 ILCS 5/510(b) (West 2008)). After a 30-day period, 5 property provisions in a MSA are

not modifiable, but a trial court has jurisdiction to modify property distribution if

circumstances exist that give cause to reopen a judgment as in other civil cases. Hall, 404 Ill.

App. 3d at 164; In re Marriage of Hubbard, 215 Ill. App. 3d 113, 116 (1991). A reopening of

a judgment is deemed proper if the MSA execution had some element of fraud, coercion, or

misrepresentation. In re Marriage of Munford, 173 Ill. App. 3d 576, 579 (1988); Thompson

v. Thompson, 91 Ill. App. 3d 943, 945 (1980). However, a trial court has indefinite

jurisdiction to enforce the terms of a judgment that included a MSA and that is what the trial

court did here. Hall, 404 Ill. App. 3d at 164.

¶ 43 In Hall, the petitioner and respondent’s judgment for dissolution of marriage incorporated

a MSA entered into by the parties, which contained two provisions concerning the division of

the respondent’s retirement plans. Hall, 404 Ill. App. 3d at 162-63. One provision provided

that the parties would enter into a qualified domestic relations order (QDRO) providing for

the distribution of 50% of the account balance of two specified retirement plans to the

petitioner. Hall, 404 Ill. App. 3d at 162-63. The second provision provided that “ ‘[i]t is the

intention of this [article] that [petitioner] is to receive fifty percent (50%) of the account

balance of each of [respondent’s] retirement plans valued as of the date of the entry of this

[judgment for dissolution of marriage].’ ” Hall, 404 Ill. App. 3d at 163. After the division of

assets, the petitioner noticed that she had not received benefits from two additional pension

plans belonging to the respondent and filed a petition to modify or reform the dissolution

judgment, alleging that the pension plans had been omitted from the MSA due to a mutual

5 Pursuant to the Code of Civil Procedure, any party, within 30 days after the entry of the judgment, may file a motion for a rehearing, retrial, or modification of the judgment. 735 ILCS 5/2-1203 (West 2014).

19 Nos. 1-15-1118, 1-15-2908 (cons.)

mistake of fact. Hall, 404 Ill. App. 3d at 163. The trial court found that it did not have

jurisdiction to modify or reform the judgment because the petitioner did not first establish a

basis to vacate the judgment as a result of duress, disability, or fraudulent concealment. Hall,

404 Ill. App. 3d at 163.

¶ 44 On appeal, the Hall court found that the trial court had jurisdiction to enforce the MSA

without first establishing a basis to vacate the dissolution judgment because “petitioner is not

seeking to impose new or different obligations on the parties. Rather she is attempting to

enforce the parties’ rights and obligations with respect to respondent’s retirement plans,

which were clearly laid out in the marital settlement agreement and judgment of dissolution.”

Hall, 404 Ill. App. 3d at 165. Accordingly, the court proceeded to interpret the language of

the agreement to determine if the parties had intended to include all four retirement plans or

only the two specified in the agreement. Hall, 404 Ill. App. 3d at 167.

¶ 45 We find the Hall court’s analysis instructive. See Hall, 404 Ill. App. 3d at 161. In the

case at bar, the trial court was enforcing Paul and Kim’s MSA by using the valuation of the

sale that should have been completed, but was not, due to Paul’s conduct in breaching the

MSA. The trial court did not modify the MSA, but rather enforced the terms of the MSA that

required Paul to pay Kim a specified amount. The amount Paul was to pay was based on a

distribution formula that was based upon the marital home being sold to a third party in

which Kim would receive 50% of the net sales proceeds or at least $550,000, whichever was

greater.

¶ 46 Paul cites In re Marriage of Clark, 149 Ill. App. 3d 613, 617 (1986), and In re Marriage

of Hubbard, 215 Ill. App. 3d at 117, to illustrate how a trial court lacks subject matter

jurisdiction to modify the judgment for dissolution of marriage, specifically with respect to

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the parties’ marital residence. In Clark, the defendant filed a petition to modify the property

division of the parties’ MSA to transfer possession of the marital residence to him and to

execute a quitclaim deed in his favor. In re Marriage of Clark, 149 Ill. App. 3d at 614. The

reviewing court affirmed the trial court’s determination to deny the defendant’s petition, as

requiring the plaintiff to convey her interest to the defendant through a quitclaim deed

required the court to modify the judgment. In re Marriage of Clark, 149 Ill. App. 3d at 618.

Paul’s use of Clark is not instructive to this court, as the parties in Clark were required to

comply with an additional obligation, while Kim’s petition merely seeks enforcement of the

existing MSA. In re Marriage of Clark, 149 Ill. App. 3d at 617.

¶ 47 In Hubbard, the reviewing court was to determine whether the trial court’s award for

expenses incurred during the preparation for placing the marital residence on the market was

beyond its jurisdiction. Hubbard, 215 Ill. App. 3d at 114. The Hubbard court found that

apportionment of expenses that were not expressly stated in the MSA could not be enforced

by the trial court, regardless of equitable and reasonable circumstances to enforce the

apportionment. Hubbard, 215 Ill. App. 3d at 118. Like Clark, Hubbard does not provide this

court with any guidance as that case involved a dispute over repair and maintenance requests

and the trial court’s order requiring the respondent to pay for a portion of the repairs not

covered under the MSA, while the case at bar only required Paul to comply with the MSA

and did not impose any additional obligations or costs on Paul. Hubbard, 215 Ill. App. 3d at

114. While both cases show that the trial court does not have jurisdiction to modify a MSA

under these specific circumstances, the trial court in the case at bar was merely enforcing the

terms and provisions that Paul and Kim agreed upon.

¶ 48 In the case at bar, the trial court was enforcing, not modifying, the MSA by using the

21 Nos. 1-15-1118, 1-15-2908 (cons.)

valuation of the sale that should have been completed, but was not, due to Paul’s conduct.

The trial court found that Paul’s conduct was the reason that the 2008 offer was not accepted,

and based its award upon the 2008 lost sale. The trial court’s order, based upon Paul’s

conduct, actually enforced the MSA and did not modify it. Thus, we affirm the trial court’s

use of the lost 2008 sale price in the MSA distribution formula.

¶ 49 IV. Prejudgment Interest Award

¶ 50 Paul next contends that the trial court lacked authority to award prejudgment interest to

Kim. The trial court found that a prejudgment interest award was warranted due to Paul’s

failing to comply with the MSA’s September 1, 2007, deadline, recklessly destroying a

contract opportunity without good cause, failing repeatedly to deal fairly and in good faith

with Kim, and breaching the MSA. Paul argues that Kim does not have the right to recover

prejudgment interest. Thus, Paul argues that the award must be reversed. Kim argues that the

trial court was well within its discretion when awarding prejudgment interest, as this award

was not compensatory in nature. The trial court here awarded Kim prejudgment interest for

Paul’s failure to place the house on the market by the deadline or buy Kim’s shares as an

equitable remedy for the long delays and significant expense caused by Paul’s conduct.

¶ 51 A determination to award prejudgment interest is within the trial court’s discretion, and

such a determination will not be disturbed unless an abuse of discretion is present. Lyon

Metal Products, L.L.C. v. Protection Mutual Insurance Co., 321 Ill. App. 3d 330, 348 (2001).

An abuse of discretion is present when “ ‘no [other] reasonable person would agree with the

position adopted by the trial court.’ ” Tully v. McLean, 409 Ill. App. 3d 659, 672 (2011)

(quoting Schwartz v. Cortelloni, 177 Ill. 2d 166, 176 (1997)). Prejudgment interest is proper

when it is authorized by a statute, authorized by agreement of the parties, or warranted by

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equitable considerations. Tully, 409 Ill. App. 3d at 684-85. In terms of equitable

considerations, the determination of whether equity supports an award of interest lies within

the discretion of the trial court, and we will not disturb a determination that it exists unless

the trial court abused its discretion. Tully, 409 Ill App. 3d at 685; In re Estate of Wernick, 127

Ill. 2d 61, 87 (1989).

¶ 52 When equitable considerations warrant prejudgment interest, the award must not conflict

with justice and equity. In re Estate of Wernick, 127 Ill. 2d at 87. However, prejudgment

interest may not be awarded when the defendant provides a good faith justification for failure

to provide payments upon which the plaintiff seeks prejudgment interest. In re Marriage of

Schurtz, 382 Ill. App. 3d 1123, 1127 (2008) (the court determined that the husband’s good

faith justification for not sharing his disability payments did not warrant prejudgment

interest). Likewise, prejudgment interest awards are improper if the court fails to set forth

any equitable considerations as a basis for a prejudgment interest award. In re Marriage of

Blinderman, 283 Ill. App. 3d 26, 34 (1996). In the case at bar, the trial court’s determination

to award prejudgment interest was proper because equitable considerations were present and

Paul created an unreasonable delay in the selling of the marital residence, thus not only

delaying the payment to Kim but causing her to receive less than the offer Kim agreed to

receive. Additionally, Paul failed to provide a good faith justification for failing to comply

with the MSA, as he explicitly admitted that he had the ability to comply but chose not to.

The trial court cited Paul’s delays, expenses, and other harms as a basis to award

prejudgment interest to Kim. The original petition requested Kim’s bargained-for interest in

the sale of the home and for any additional relief the trial court found to be just and equitable

under the circumstances. We find that the award of prejudgment interest to Kim was within

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the authority of the trial court to award a prejudgment interest, with a proper basis to

establish a prejudgment interest award.

¶ 53 The trial court awarded Kim prejudgment interest at 5% per annum on the $310,473.30

owed from Paul to Kim for the period from September 1, 2007, when Paul failed to place the

house on the market or buy out Kim, to March 31, 2014, as an equitable remedy for the long

delays caused by Paul’s conduct. The trial court calculated the prejudgment interest as

starting from September 1, 2007, the date that the marital residence was to be on the market,

through the date that the trial court entered its order. Paul’s intentional interference provides

a basis for a prejudgment interest because his conduct resulted in an unreasonable delay of

the sale of the home and caused Kim to receive less for her portion of the sale. Likewise, the

formula based the 5% per annum interest on the amount of $310,473.30, which is the

additional amount owed to Kim in order to provide her 50% of the net proceeds from the sale

of the residence, as set forth in the MSA. 6 This formula amounted to $102,115.90 in

prejudgment interest. The amount awarded does not appear to be irrational or inequitable, as

it is interest provided to Kim for time delay that Paul caused. Thus, we affirm the trial court’s

finding of prejudgment interest in the amount of 5% per annum on the $310,473.30, equaling

$102,115.90 from Paul to Kim.

¶ 54 V. Petition for Rule to Show Cause and Cause of Action

¶ 55 Paul originally filed a motion to dismiss, pursuant to section 2-615 of the Code of Civil

Procedure, on March 26, 2013, and the trial court denied that motion to dismiss on the same

6 The trial court’s order used the 2008 final offer in the distribution formula to determine the amount owed to Kim. This formulation gives Kim $761,875, as Kim was entitled to either 50% of the net proceeds or $550,000, whichever was greater, under the terms of the MSA. Kim had already received $451,401.70 from an earlier distribution of escrowed funds. Thus, Kim was entitled to $310,473.30 from Paul in order to be compliant with the MSA.

24 Nos. 1-15-1118, 1-15-2908 (cons.)

day. 735 ILCS 5/2-615 (West 2012). Paul’s argument, that the petition for rule to show cause

failed to state a cause of action, is based upon the proposition that a civil contempt

proceeding cannot award compensatory damages and because the awards to Kim were

compensatory in nature the petition failed to state a cause of action. Due to the failure to state

a cause of action, Paul contends that dismissal of the petition is proper. See In re Marriage of

Blankshain, 346 Ill. App. 3d 750, 752-53 (2004). Kim argues that even though her petition

sought monies that could be considered compensatory in nature, Kim was also seeking the

enforcement of the judgment for dissolution of marriage. Her petition, as Kim contends, did

not only seek monies that could appear to be compensatory, but rather a multitude of requests

including damages as a result of Paul’s conduct in breaching the MSA.

¶ 56 Paul is correct that a civil contempt order cannot award compensatory damages.

However, the trial court used an alternative theory concerning the breach of the MSA and we

affirm on that basis, as we may affirm on any basis found in the record. People v. Johnson,

237 Ill. 2d 81, 89 (2010) (a reviewing court may affirm on any basis found in the record).

¶ 57 The trial court awarded Kim (1) the remaining principal due to her based upon the MSA

distribution formula; (2) prejudgment interest, based upon the period of time from when the

home was ordered to be on the market; (3) real estate taxes charged to Kim; and (4) attorney

fees and costs based upon a fee-shifting provision in the MSA. The trial court found that Paul

intentionally interfered with the sale of the home and intentionally disregarded the terms of

the MSA. The award to Kim based upon the remaining principal owed to Kim was the result

of the trial court awarding Kim her rights under the MSA, as we concluded in the breach of

contract section of our analysis. Similarly, as we have discussed, the trial court has authority

to award prejudgment interest when certain conditions are met and, as the trial court properly

25 Nos. 1-15-1118, 1-15-2908 (cons.)

found, equitable considerations were present here that justify the trial court awarding Kim

prejudgment interest. Additionally, the trial court found that Paul intentionally interfered

with the sale of the home, and the unreasonable delay in the sale of the home further justifies

that award. Neither party contests Kim’s award for real estate taxes charged to her, and in

turn it will not be addressed. Finally, a contract that includes a fee-shifting provision will

generally be enforced by the courts, and we enforce the attorney fees as we discuss below.

Each award that was given to Kim was properly awarded to her, as damages are proper in a

breach of contract action. See InsureOne Independent Insurance Agency, LLC v. Hallberg,

2012 IL App (1st) 092385, ¶ 89 (“ ‘[A]ll damages which naturally and generally result from

a breach [of contract] are recoverable.’ ”(quoting Midland Hotel Corp. v. Reuben H.

Donnelley Corp., 118 Ill. 2d 306, 318 (1987))). Thus, we affirm the trial court’s dismissal of

Paul’s motion to dismiss for failure to state a cause of action.

¶ 58 IV. Contribution of Attorney Fees and Costs

¶ 59 Finally, Paul argues that the award of attorney fees and costs, based upon the fee-shifting

provision in the MSA, should be reversed because contractual fee-shifting provisions should

only be rewarded to a prevailing party. Paul contends that the “American Rule,” in which

litigants are required to pay their own attorney fees, should be applied to the case at bar.

Citing to Powers v. Rockford Stop-N-Go, Inc., 326 Ill. App. 3d 511, 516 (2001), Paul

attempts to argue that the trial court did not compel him to perform some type of act, and

thus the fee-shifting provision cannot be acted upon. 7 Additionally, Paul argues that the

7 We find Paul’s use of Powers unpersuasive, as Kim was the prevailing party in the trial court’s order. In Powers, the attorney fees provision did not apply because the trial court held that the matter of property damages was independent of the lease between both parties. Powers, 252 Ill. App. 3d at 517. Additionally, the appellate court determined that because the defendant prevailed on a majority of the issues before the trial court and the plaintiff prevailed on only

26 Nos. 1-15-1118, 1-15-2908 (cons.)

enactment of the MSA’s fee-shifting provision requires two conditions to occur: (1) there is

an enforcement of a condition and (2) the condition enforced is found within the terms and

provisions of this agreement. Thus, Paul contends that because neither prerequisite is

satisfied in the case at bar, Kim should not be able to recover attorney fees and costs. Kim

argues that the award of attorney fees and costs was proper and will not be disturbed unless

there is an abuse of discretion. See In re Marriage of Powers, 252 Ill. App. 3d 506, 508-09

(1993). The MSA states the following:

“If Paul fails to perform his financial and other undertakings, and as a result

Kim incurs any expenses including legal fees to enforce the terms and provisions

of the agreement, Paul shall indemnify her against and hold her harmless in

connection with any such expenses even [though] Kim at the time, may have the

ability to pay her own such expenses.”

¶ 60 The standard of review for a trial court’s determination of awarding attorney fees and

costs is an abuse of discretion. Bright Horizons Children’s Centers, LLC v. Riverway

Midwest II, LLC, 403 Ill. App. 3d 234, 245 (2010). “ ‘[W]hether and in what amount to

award attorney fees is within the discretion of the trial court, and the decision will not be

disturbed on appeal absent an abuse of that discretion.’ ” Bright Horizons Children’s

Centers, 403 Ill. App. 3d at 245 (quoting R.J. Management Co. v. SRLB Development Corp.,

346 Ill. App. 3d 957, 971 (2004)). An abuse of discretion occurs when the ruling is

“arbitrary, fanciful, or unreasonable, or when no reasonable person would take the same

view.” Favia v. Ford Motor Co., 381 Ill. App. 3d 809, 815 (2008).

issues related to property damage, the trial court abused its discretion, as the plaintiff was not the prevailing party in the matter, which means the trial court should not have awarded attorney fees. Powers, 252 Ill. App. 3d at 518.

27 Nos. 1-15-1118, 1-15-2908 (cons.)

¶ 61 Ordinarily, a losing party in a lawsuit cannot be required to pay attorney fees to the

winning party, but if there is a contractual “fee-shifting” provision for the award of attorney

fees, it will be enforced by the courts. Bright Horizons Children’s Centers, 403 Ill. App. 3d

at 254. If a fee-shifting provision for attorney fees is present in a contractual obligation, we

are required to strictly construe the provision. Bright Horizons Children’s Centers, 403 Ill.

App. 3d at 254.

¶ 62 Kim was awarded $64,229.43 for attorney fees and costs, based upon the fee-shifting

provision in the MSA. As the fee-shifting provision states, Paul was required to indemnify

Kim for any expenses, including legal fees, that were a result of her attempting to enforce the

terms and provisions of the MSA. The trial court determined that the $64,229.43 was the

correct amount to award Kim for her attorney fees and costs, as Paul was found to be in

breach of contract for failing to abide by the provisions of the MSA. Due to the extensive

litigation history surrounding the case at bar, combined with the trial court’s findings of Paul

interfering and intentionally ignoring the MSA, the trial court did not abuse its discretion

when awarding attorney fees. Eight years have passed since the original petition for rule to

show cause was filed, and four years since the home has been sold. Paul’s appeals on the

MSA resulted in an extensive delay in the trial on Kim’s petition for rule to show cause.

Likewise, it was Paul’s conduct that resulted in the lost 2008 sale and the breached contract.

Paul’s conduct has resulted in Kim incurring large amounts of attorney fees. Thus, we affirm

the trial court’s order awarding attorney fees and costs to Kim.

¶ 63 CONCLUSION

¶ 64 For the foregoing reasons, we affirm in part and vacate in part the order of the circuit

court of Cook County. We find that the trial court abused its discretion when finding Paul to

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be in indirect civil contempt and vacate the contempt finding but affirm its alternative finding

of breach of the MSA and the award of damages. We cannot say that the trial court abused its

discretion when it awarded prejudgment interest to Kim or when it awarded Kim attorney

fees and costs. Further, we find that the trial court was not modifying the terms of the MSA,

but merely enforcing the terms of the MSA, when it calculated the amount due to Kim by

using the 2008 contract price instead of the 2012 price.

¶ 65 Affirmed in part and vacated in part.