In re Marriage of Peklo

2023 IL App (2d) 210339-U

• Court: Appellate Court of Illinois
• Decided: February 15, 2023
• Docket: 2-21-0339
• Status: Unpublished

Opinion

2023 IL App (2d) 210339-U No. 2-21-0339 Order filed February 15, 2023

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

In re MARRIAGE OF ) Appeal from the Circuit Court JUSTINE A. PEKLO, ) of Du Page County. ) Petitioner-Appellee, ) ) and ) No. 14 D 1966 ) JOHN C. PEKLO, ) Honorable ) Kenton J. Skarin, Respondent-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE HUTCHINSON delivered the judgment of the court. Justices Schostok and Birkett concurred in the judgment.

ORDER

¶1 Held: We affirm the trial court’s decision to order respondent to pay petitioner’s fees incurred in successfully defending respondent’s postdissolution action to reduce maintenance. First, contrary to respondent’s characterization, the trial court did not consider petitioner’s success in the underlying action as a factor in deciding whether to shift fees, but only as a factor in deciding the amount of the fee award. Second, the decision to shift fees was not an abuse of discretion, because the parties’ monthly incomes showed that petitioner could not reasonably afford to pay her fees but respondent could.

¶2 In a postdissolution-of-marriage proceeding, respondent, John C. Peklo, petitioned to

reduce his maintenance obligation to petitioner, Justine A. Peklo. The trial court denied his

petition. Petitioner then petitioned under section 508(a)(1) of the Illinois Marriage and Dissolution 2023 IL App (2d) 210339-U

of Marriage Act (Act) (750 ILCS 5/508(a)(1) (West 2020)) to require respondent to pay the

attorney fees she incurred in defending his action. After a hearing, the trial court granted the

petition. Respondent appeals, contending that (1) the court improperly based the award on the

merits of his proceeding to reduce maintenance and (2) the award was improper given the parties’

relative financial circumstances. We affirm.

¶3 I. BACKGROUND

¶4 On January 13, 2016, the trial court dissolved the parties’ marriage. The judgment awarded

petitioner $815 in monthly maintenance and $1087 in monthly child support.

¶5 On March 18, 2019, respondent petitioned to reduce the maintenance award, based on

changed circumstances. 1 See 750 ILCS 5/510(a) (West 2018). In general, he alleged that

petitioner’s income had increased substantially. On October 21, 2019, after a hearing, 2 the trial

court granted petitioner a directed finding and denied the petition. Respondent moved to reconsider

the judgment. On August 20, 2020, the court, on petitioner’s motion, struck the motion to

reconsider, without prejudice. Respondent did not refile the motion.

¶6 On September 2, 2020, petitioner petitioned for attorney fees she incurred to defend

respondent’s petition ($5340) and prepare the fee petition ($500). Respondent filed a response. On

March 3, 2021, the trial court held a virtual hearing on the fee petition.

¶7 At the hearing, petitioner called respondent. The trial court admitted copies of his 2020

federal income tax return and IRS Form W-2, Wage and Tax Statement (W-2). The court also

admitted a copy of respondent’s financial affidavit, dated September 15, 2020. Respondent

1 Originally, the petition also requested a decrease in respondent’s support obligation for

the parties’ two children. Later, respondent voluntarily struck this request. 2 The record contains no transcript (or substitute for a transcript) of the hearing.

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testified that he worked at Minuteman International in 2020 and was still employed there. He had

had no other employment, and his pay structure had not changed since January 1, 2021. His gross

income for 2020 was $83,562.55, which included a bonus of between $3000 and $5000 before

taxes. He owned a house with no mortgage and a fair market value of $235,000, the purchase price

in January 2018. Respondent testified that his 2020 financial affidavit reflected his current

expenses.

¶8 Petitioner testified that she resided in a house with the parties’ two sons. She identified

invoices from the law firm representing her in the postdissolution proceeding. She testified that

the trial court continued the proceedings from January 19, 2021, to March 3, 2012, because

respondent’s counsel had serious health problems. From the date she filed her fee petition through

January 21, 2021, she incurred an additional $1768.75 in fees.

¶9 The trial court admitted copies of petitioner’s 2020 W-2 and her financial affidavit, dated

October 30, 2020. She testified that the information in her financial affidavit was current. Petitioner

testified that she worked at Pentair Filtration Solutions in 2020 and was still employed there. She

had no other employment income. She received from respondent monthly maintenance of $815

and child support of $1087.

¶ 10 Respondent’s financial affidavit disclosed the following. He owned (1) a house with a fair

market value of $235,000 and no mortgage; (2) motor vehicles valued at $13,000; and (3) a 401(k)

plan valued at $7500. His aggregate monthly gross income was $6783.76. His monthly deductions

of $1617.14 and expenses of $2619.80 resulted in a monthly net income of $2546.82.

¶ 11 Petitioner’s financial affidavit disclosed the following. She owned (1) a house with a fair

market value of $320,000 and a balance due of $105,000; (2) cash or cash equivalents of

$22,595.89; (3) motor vehicles valued at $16,000; and (4) retirement plans valued at $165,878.69.

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Her monthly gross income, including maintenance and child support, was $7564.06. Her monthly

deductions of $1237.46 and expenses of $4885.08 resulted in a net monthly income of $1441.52.

¶ 12 In her closing argument, petitioner noted that she had been granted a directed finding on

respondent’s petition to reduce maintenance. However, respondent failed to timely set a hearing

on his motion to reconsider and the court dismissed the motion. As of August 25, 2020, petitioner

had incurred attorney fees of $5340. Further, the continuances necessitated by the illness of

respondent’s counsel resulted in additional fees of $1768.75. Petitioner argued that, because

respondent owned a residence worth $235,000 with no mortgage, had other assets that could be

used to contribute to petitioner’s fees, and had a gross income in 2020 of $83,562.55, he should

have to pay her fees.

¶ 13 In his closing argument, respondent contended that the medical emergencies that caused

the continuances were not a proper basis to award fees. He noted that petitioner owned a house

with a net value of $215,000, a little less than the value of his house. Further, adjusting for

maintenance and child support, respondent’s gross income for 2020 was only $60,738.55.

Respondent contended that, under section 508(a), petitioner had to show that requiring her to pay

her own fees would undermine her financial stability, which she had not done.

¶ 14 The trial court stated:

“Petitioner’s financial affidavit [states that] her income and total gross monthly

income, including the maintenance and child support that she receives, is $7,564.06 per

month. *** It also shows total expenses of *** $4,635.08, which gives a difference on Page

6 of available income per month [of] $1,441.52.”

¶ 15 After reviewing further financial data, the court continued:

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“When I look at this, the gist of it is, I essentially have two parties who have

relatively minimal ability to pay attorneys overall given their relatively modest incomes.

They do have similar assets in terms of their housing ***.

***

[T]he petitioner is not able to pay the entirety of her fees given the modest income

that she has even taking into account the support and maintenance that she receives. ***

[O]nce she’s done paying her expenses, $1,441.52 per month *** it would be a significant

burden to pay those amounts *** from that sum.

In addition, *** the Court does take into account the history of this case and the

complete success obtained by [petitioner’s attorney]. ***

The Court is again reevaluating [the record of the fees charged] and does conclude

that those fees [of $5340] were reasonable and necessary and that they were particularly so

in light of the success obtained.”

¶ 16 However, the court declined to award the $1768.75 in further fees requested, explaining

that the expenditure resulted from “acts of God rather than *** anything that either party attempted

to do.” Finally, the court awarded petitioner $600 for the fees incurred in connection with her fee

petition, entering a judgment for a total of $5940.

¶ 17 Respondent moved to reconsider, contending that (1) section 508(a) of the Act did not

make the success of a litigant a proper factor in deciding whether to award fees and (2) the award

was unsupported by evidence that petitioner could not pay her own fees. At the hearing on the

motion, the court rejected the argument that it should “ignore *** the history of the litigation

including the outcome of the litigation in determining what is a reasonable amount of attorney[ ]

fees.” The court further denied that, “when the Court assesses a reasonable amount for *** the

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other party’s costs and attorney[ ] fees, *** the Court should entirely disregard the history of the

litigation[.]” Therefore, the court denied respondent’s motion. He timely appealed.

¶ 18 II. ANALYSIS

¶ 19 On appeal, respondent contends that (1) it was improper for the trial court to consider the

underlying litigation result (respondent’s proceeding to reduce maintenance) in determining

whether to award fees to petitioner and (2) the court abused its discretion in shifting the payment

of the fees to respondent without a basis to find that petitioner could not pay them herself.

¶ 20 Petitioner has not filed an appellee’s brief. However, the issues are simple enough that we

can decide the case without petitioner’s input. See First Capitol Mortgage Corp. v. Talandis

Construction Corp., 63 Ill. 2d 128, 133 (1976).

¶ 21 To present the context for both of respondent’s contentions of error, we set out the pertinent

portion of section 508(a) of the Act:

“(a) The court from time to time, after due notice and hearing, and after considering

the financial resources of the parties, may order any party to pay a reasonable amount for

his own or the other party’s costs and attorney’s fees. Interim attorney’s fees and costs may

be awarded from the opposing party, in a pre-judgment dissolution proceeding in

accordance with subsection (c-1) of Section 501 and in any other proceeding under this

subsection [(750 ILCS 5/501(c-1) (West 2020))]. At the conclusion of any pre-judgment

dissolution proceeding under this subsection, contribution to attorney’s fees and costs may

be awarded from the opposing party in accordance with subsection (j) of section 503 [(id.

§ 503(j))] and in any other proceeding under this subsection.” 750 ILCS 5/508(a) (West

2020).

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¶ 22 As pertinent here, section 503(j)(2) of the Act states, “Any award of contribution to one

party from the other party shall be based on the criteria for division of marital property under this

Section 503 and, if maintenance has been awarded, on the criteria for an award of maintenance

under Section 504 [(750 ILCS 5/504(a) (West 2020)).]”

¶ 23 Respondent’s first contention of error is that the trial court erred in assuming that the

petitioner’s success in court was a proper basis for shifting attorney fees. He notes that this

purported basis does not appear in sections 503 and 504 of the Act as a criterion for distributing

property and awarding maintenance. He notes further that, according to our supreme court, the

overarching principle of section 508(a) is that a party seeking to require the other party to

contribute to attorney fees “must establish that he or she is unable to pay his or her attorney fees

and that the other party is able to do so.” In re Marriage of Heroy, 2017 IL 120205, ¶ 30.

¶ 24 We agree with respondent’s statement of the applicable law principles, but we do not read

the trial court’s comments as showing disregard for those principles. In its decision awarding

petitioner fees, the trial court said it “[took] into account the history of this case and the complete

success obtained by [petitioner’s attorney] ***.” Notably, the court said it considered petitioner’s

success in the underlying postdissolution proceeding on maintenance, but the court did not say it

considered that success as a basis for shifting fees to respondent. Later, in denying respondent’s

motion to reconsider, the court clarified just how it considered the outcome of the underlying

proceeding. The court explained that it would not “ignore *** the history of the litigation *** in

determining what is a reasonable amount of attorney[ ] fees.” (Emphasis added.) Thus, the court

reasoned that, after finding a proper basis to shift fees, it could consider petitioner’s successful

defense of the underlying action in deciding what amount of fees was reasonable. Thus, the court

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used petitioner’s success not to decide whether to require respondent to contribute but only to

decide how much was proper.

¶ 25 We turn to respondent’s second claim of error: that the trial court abused its discretion in

ordering him to pay petitioner’s fees where the record did not reflect that petitioner could not pay

them herself. Respondent argues that petitioner failed to show that she was any less able to pay the

fees at issue than he was.

¶ 26 We will not disturb a trial court’s award of fees unless the court abused its discretion. In re

Marriage of Vest, 208 Ill. App. 3d 325, 332 (1991). Although the petitioning party must show a

financial inability to pay, she need not show destitution, nor is she required to liquidate her assets

to pay her own fees before making the required showing. Id. at 331-32.

¶ 27 Here, the trial court stated that both parties had relatively few resources to pay attorney

fees. However, the court concluded that, given her smaller monthly net income—even after

receiving child support and maintenance—petitioner could not reasonably afford to pay her fees

in defending respondent’s action. Respondent contends that this was unreasonable, as undisputed

evidence showed that (1) after subtracting maintenance and child support, his yearly gross income

was less than petitioner’s and (2) petitioner’s assets exceed his, given the greater value of her

retirement plans and the similar net values of their residences.

¶ 28 We cannot say that the trial court abused its discretion in requiring respondent to pay the

fees at issue. In considering the parties’ respective abilities to pay, the court could focus on their

monthly net incomes and properly discount their relatively illiquid assets, such as their residences

and retirement plans, neither of which would likely provide a ready source of income.

Respondent’s monthly net income was slightly more than $1000 greater than petitioner’s, and the

court reasonably concluded that shifting fees was justified by the burden petitioner would incur

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were she solely responsible for them. We do not hold that a different allocation would have been

improper, but only that the trial court acted within its broad discretion.

¶ 29 III. CONCLUSION

¶ 30 For the reasons stated, we affirm the judgment of the circuit court of Du Page County.

¶ 31 Affirmed.

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