FOURTH DIVISION March 6, 2008
No. 1-07-2940
In re MARRIAGE OF ) Appeal from the Circuit ) Court of Cook County, JODY ROSENBAUM-GOLDEN, ) Domestic Relations Division ) Petitioner-Appellee, ) No. 04 D 1240 ) v. ) Honorable Charles Winkler, ) Judge Presiding BRUCE P. GOLDEN, ) ) Respondent-Appellant. )
JUSTICE MURPHY delivered the opinion of the court:
Petitioner, Jody Rosenbaum-Golden, and respondent, Bruce Golden, were married on
December 10, 1989, and dissolution proceedings began in February 2004. During the pendency
of the proceedings, the trial court awarded petitioner $150,000 in interim attorney fees pursuant
to section 501(c-1) of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/501(c-
1) (West 2004)). Respondent refused to pay the interim award because a premarital agreement
between the parties provided that petitioner and respondent waived their rights to attorney fees.
The trial court found respondent in contempt of court. Respondent appeals.
I. BACKGROUND No. 1-07-2940
Respondent and petitioner, represented by separate attorneys, entered into a premarital
agreement on December 9, 1989. At the time, petitioner was 35 years old and respondent was
46; both were attorneys. They married the next day and had a daughter in 1993. On February 5,
2004, petitioner filed a petition for dissolution of marriage, citing irreconcilable differences.
On September 21, 2007, petitioner filed a petition pursuant to section 501(c-1) seeking
$150,000 in interim attorney fees. In the petition, petitioner alleged that her prior and current
attorneys had been paid approximately $388,500 to date: $330,000 in interim fees and $58,500
that she paid her attorneys. Of those interim fees, respondent was ordered to pay $149,578.99 on
May 1, 2006, but did not do so until he was held in indirect civil contempt. He was ordered to
pay an additional $100,000 on December 6, 2006, but did not do so until March 2007, when his
interlocutory appeal was dismissed.
She further contended that respondent has paid, or was granted leave to pay, his attorneys
$735,000, including a $100,000 initial retainer to his current attorneys. According to the
petition, on October 26, 2006, respondent testified that he paid the following: $11,750 to Joel
Brodsky; $43,600 to Audrey Gaynor; $7,570 to the Law Offices of Wes Cowell; $35,249.80 to
Schiller, DuCanto & Fleck; and an additional $100,000 to his current attorneys. Furthermore,
respondent was granted leave to pay his current attorneys an additional $295,000 on December
13, 2006. The petition also relies on respondent’s Rule 13.3.1 (Cook Co. Cir. Ct. R. 13.3.1 (eff.
January 1, 2003)) disclosure statement, which showed a number of expenditures totaling
$585,500 for “divorce legal fees.”
-2- No. 1-07-2940
The supporting records assembled by the parties included neither the transcript of the
proceedings on October 26, 2006, nor the order entered on December 13, 2006.
In her petition, petitioner also argued that she had been working as a full-time teacher,
with a salary of $43,000 a year, but was not rehired for the 2007-08 school year and was
currently a substitute teacher. She later testified that she would begin a new job as a
kindergarten teacher at the end of October 2007, at approximately the same salary as her
previous teaching job. Respondent “operates a real estate listing business and earns substantial
income from investments.” She further stated that two months before she filed her petition for
dissolution, the couple had $2.5 million in joint bank accounts. However, those joint accounts
no longer existed, and of the funds that existed as of December 2003, she only withdrew
approximately $201,000.
In his response to petitioner’s petition, respondent argued that the petition was barred by
a provision of their premarital agreement that addresses attorney fees arising out of dissolution
proceedings. Paragraph 4(d) of the premarital agreement provides as follows:
“Bruce and Jody both release and waive any and all right to counsel fees,
accounting fees or other expenses relating to the separation of the parties or
termination of their marriage, except that (i) Bruce agreed that he shall bear 50%
of the cost of accounting fees or other expenses incurred by Jody, subject to a
maximum of $15,000, and (ii) either party shall be responsible for any such fees
or expenses of the other party created by dilatory or evasive action as determined
by a court of competent jurisdiction.”
-3- No. 1-07-2940
On July 11, 2007, the trial court found that respondent had been making “selective
disclosures”:
“Clearly, we have two years of undisclosed income, no attempt being
made to inform this Court as to what he earned during those years from the
business that he has maintained since about ‘02 up to the present time, that is, the
For Sale By Owner using the internet to promote it. He’s active in it today. He’s
told us what he’s earned so far this year. I have serious reservations about
whether or not he is telling me everything predicated on what I have heard before.
*** Bruce has, in my opinion, a credibility issue, a serious one. I am not able to
determine at this time exactly where he is at with his income.”
On October 12, 2007, the trial court granted petitioner’s interim fee petition and ordered
respondent to pay petitioner’s counsel $150,000 by October 26, 2007. The court noted that
respondent’s responsive pleadings “failed to inform the Court of all the payments he has made to
his attorneys as mandated by statute, again manifesting his continued selective disclosure of
information and documents during this proceeding.” It further held that it had already found the
marital settlement agreement to be valid; however, it ruled that “to enforce the provision that
Jody pay her own fees, in light of the law that now governs divorce cases and the fact that
respondent has almost all the money that at one time was held in joint tenancy by the parties,
would be contrary to the law and unconscionable.” The trial court had previously noted that “the
interim fees are going back into the pot as part of the advancement on the marital estate.”
When respondent failed to pay the $150,000, the trial court found him in indirect civil
contempt of court and ordered that he remain incarcerated until he pays petitioner’s attorneys
-4- No. 1-07-2940
$150,000, as ordered on October 12, 2007. Pursuant to respondent’s emergency motions, this
court allowed respondent to post a bond and stayed the enforcement of the October 26, 2007,
order pending appeal.
II. ANALYSIS
A. Motions Taken With the Case
On December 20, 2007, the day before his reply brief was due, respondent filed an
“emergency motion” for leave to comply with Supreme Court Rule 19 (210 Ill. 2d R. 19)
instanter, which we took with the case.
Rule 19 provides that when the constitutionality of a statute is raised and the State is not
already a party, the litigant raising the constitutional issue “shall serve an appropriate notice
thereof on the Attorney General.” 210 Ill. 2d R. 19(a). The notice must be “served at the time of
suit, answer, or counterclaim, if the challenge is raised at that level, or promptly after the
constitutional or preemption question arises as a result of a circuit or reviewing court ruling or
judgment.” 210 Ill. 2d R. 19(b). The purpose of the notice is to afford the state the opportunity
to intervene in the case to defend the challenged law. 210 Ill. 2d R. 19(c).
Strict compliance with supreme court rules is generally required. These rules “are not
aspirational. They are not suggestions. They have the force of law, and the presumption must be
that they will be obeyed and enforced as written.” Bright v. Dicke, 166 Ill. 2d 204, 210 (1995).
However, the appellate court has the discretion to permit late compliance with Rule 19 and
address the constitutional issue if the purpose of the rule has been served. Village of Lake Villa
v. Stokovich, 211 Ill. 2d 106, 116 (2004).
-5- No. 1-07-2940
We grant respondent’s motion for leave to comply with Rule 19. Although respondent
failed to give the Attorney General notice when he raised the constitutionality of section 501(c-
1) in response to petitioner’s petition for rule to show cause regarding his refusal to pay interim
fees pursuant to an earlier order, petitioner complied with Rule 19 by sending notice. The
Attorney General declined to participate, and the trial court rejected respondent’s constitutional
arguments on June 22, 2006. Respondent sent the Attorney General notice on December 19,
2007, informing her that this appeal involves the constitutionality of section 501(c-1) and that
the briefing in this matter has been expedited. The Attorney General has not yet elected to
intervene in this court. See 210 Ill. 2d R. 19(c). We find that the purpose of Rule 19 was
fulfilled when the Attorney General “was offered and declined an opportunity to participate” in
both the trial court and on appeal. Stokovich, 211 Ill. 2d at 119.
We also took with the case petitioner’s motion to strike portions of respondent’s opening
brief and supplemental record, which he prepared pursuant to Supreme Court Rule 328 (155 Ill.
2d R. 328). Petitioner argues that several documents were improperly included in respondent’s
record because they were not admitted as trial exhibits. These include a Northern Trust bank
statement, Chase bank statements, and a letter from petitioner’s counsel to respondent’s counsel.
Respondent admits that these documents were not admitted into evidence. Rule 328 provides
that a supplemental record should contain the “trial court record”; Rule 321 provides that the
common law record “includes every document filed and judgment and order entered in the cause
and any documentary exhibits offered and filed by any party.” 210 Ill. 2d Rs. 328, 321. Because
the Northern Trust statement, Chase bank statements, and letter from petitioner’s counsel were
-6- No. 1-07-2940
not admitted as trial exhibits, we strike the documents from his supporting record and any
references thereto from his briefs.
In addition, petitioner argues that a reference to a Web site in footnote 2 of respondent’s
brief should be stricken because the information contained in the Web site was not part of the
trial record. Respondent responds that we can take judicial notice of pay schedules published by
the Chicago Public Schools pursuant to section 8-1001 of the Code of Civil Procedure (735
ILCS 5/8-1001 (West 2004)). However, the link to which respondent directs this court does not
work, and we cannot determine what the page contained. Accordingly, we strike references to
the Web site from respondent’s briefs.
Finally, petitioner objects to respondent’s citation to C154-156 and C168 as support for
his allegation that petitioner is entitled to a distribution of her mother’s estate in the amount of
$103,000, as those portions of the record do not contain any testimony or admitted trial exhibit
as support for his allegations. Respondent responds that he erroneously cited those pages and
redirects this court to C136, C155, and C174. Because these references are to pleadings filed in
the trial court, we decline to strike them from his brief.
In summary, we grant respondent’s motion for leave to comply with Rule 19 and grant in
part and deny in part petitioner’s motion to strike portions of respondent’s supplemental record
and briefs.
B. Whether the Premarital Agreement Controls
Respondent first argues that the trial court erred in awarding $150,000 in interim attorney
fees pursuant to section 501(c-1) because the terms of the premarital agreement control.
Paragraph 4(d) of the premarital agreement provides that the parties “release and waive any and
-7- No. 1-07-2940
all right to counsel fees.” Petitioner responds that paragraph 4(d) does not bar interim attorney
fees pursuant to section 501(c-1).
Prenuptial agreements are contracts, and the rules governing the interpretation of
contracts apply to their interpretation. In re Marriage of Best, 369 Ill. App. 3d 254, 265 (2006).
“A court’s primary goal in the construction of a contract is to decide and give effect to the intent
of the parties as it is expressed through the words of the contract.” Best, 369 Ill. App. 3d at 266.
“When a contract is unambiguous, a court must decide the intent of the parties solely from the
contract’s plain language.” Best, 369 Ill. App. 3d at 266.
Similarly, the goal of a court when construing a statute is to ascertain the legislature’s
intent, “and the surest indicator *** is the language in the statute.” Department of Public Aid ex
rel. Schmid v. Williams, 336 Ill. App. 3d 553, 556 (2003). “To this end, the court may consider
the reason and necessity for the statute and the evils it was intended to remedy, and will assume
that the legislature did not intend an unjust result.” In re Marriage of Beyer, 324 Ill. App. 3d
305, 309 (2001). A court may not supply omissions, remedy defects, substitute different
provisions, add exceptions, limitations, or conditions, or otherwise change the law so as to depart
from the plain meaning of the language employed in the statute. Beyer, 324 Ill. App. 3d at 309-
10. “If the language of the statute is clear, its plain and ordinary meaning must be given effect
without resorting to other aids of construction.” Beyer, 324 Ill. App. 3d at 310.
In 1997, the legislature amended the Illinois Marriage and Dissolution of Marriage Act,
“thereby creating a new regime governing the award of attorney fees.” Beyer, 324 Ill. App. 3d at
310, citing Pub. Act 89-712, eff. June 1, 1997. Before the amendment, “section 508 alone
governed attorney fee awards, including ‘temporary’ fee awards” (Beyer, 324 Ill. App. 3d at
-8- No. 1-07-2940
310), and provided as follows: “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 ***
reasonable *** attorney’s fees necessarily incurred or, for the purpose of enabling a party
lacking sufficient financial resources to obtain or retain legal representation, expected to be
incurred by any party ***.” 750 ILCS 5/508(a) (West 1996). The statute did not provide that a
temporary award of fees was without prejudice or an advance against the marital estate.
The 1997 amendments introduced a separate, independent provision to govern
“temporary” or “interim” fee awards to enable the petitioning party to participate adequately in
the litigation. 750 ILCS 5/501(c-1) (West 2004). Section 501(c-1)(2) provides that an interim
award shall be without prejudice as to any final allocation or claim of right of party or counsel.
750 ILCS 5/501(c-1)(2) (West 2004). Subsection 501(c-1)(2) specifically provides that, unless
ordered by the trial court at the final hearing, a subjection 503(j) hearing, or a subsection 508(c)
hearing, “interim awards, as well as the aggregate of all other payments by each party to counsel
and related payments to third parties, shall be deemed to have been advances from the parties’
marital estate.” 750 ILCS 5/501(c-1)(2) (West 2004). Furthermore, “[a]ny such claim or right
may be presented by the appropriate party or counsel at a hearing on contribution under
subsection (j) of Section 503 or a hearing on counsel’s fees under subsection (c) of Section 508.”
750 ILCS 5/508(c-1)(2) (West 2004). Section 501(c-1) applies to any dissolution of marriage
case pending on or after June 1, 1997. 750 ILCS 5/501(c-1)(4) (West 2004).
When the trial court ordered respondent to pay interim fees pursuant to section 501(c-1),
it did not violate the premarital agreement, as the $150,000 in interim fees that the trial court
awarded and that respondent refused to pay constituted an advance against the marital estate.
-9- No. 1-07-2940
750 ILCS 5/501(c-1)(2) (West 2004); Beyer, 324 Ill. App. 3d at 314, quoting 750 ILCS 5/501(c-
1)(2) (West 1998) (section 501(c-1)(2) creates a presumption that “ ‘interim awards’ are deemed
to be ‘advances from the parties’ marital estate’ ”); In re Marriage of Johnson, 351 Ill. App. 3d
88, 97 (2004) (trial court can undo interim awards); In re Marriage of DeLarco, 313 Ill. App. 3d
107, 112 (2000). Paragraph 4(a) of the agreement states that, except “as provided in Section
2(d)(ii) and unless Bruce and Jody agree otherwise, Marital Property shall be divided equally.”
We agree with petitioner that when the trial court ordered respondent to pay interim attorney
fees, it simply ordered him to pay her “a portion of the funds to which she is already entitled
under the Premarital Agreement’s requirement that the parties divide marital property equally, in
the form of a payment to her attorneys rather than to her directly.”
Strong policy considerations underlie our decision that the premarital agreement does not
constitute a waiver of interim attorney fees, which are an advance against the marital estate: this
is the precise situation that the new interim fee system was enacted to address. “This Act shall
be liberally construed and applied to promote the underlying purposes, which are to * * * make
reasonable provision for spouses and minor children during and after litigation, including
provision for the timely awards of interim fees to achieve substantial parity in the parties’ access
to funds for litigation costs.” (Emphasis added.) 750 ILCS 5/102(5) (West 2004). The new
interim fee system was “an attempt to address the problem of the ‘economically disadvantaged
spouse,’ where one spouse uses his or her greater control of assets or income as a litigation tool,
making it difficult for the disadvantaged spouse to participate adequately in the litigation.” In re
Stella, 353 Ill. App. 3d 415, 419 (2004).
-10- No. 1-07-2940
The trial court, whose findings of fact are entitled to deference (Fox v. Heimann, 375 Ill.
App. 3d 35, 46 (2007)), found that respondent’s posture throughout the litigation was that
petitioner “doesn’t get a dime. *** She can wing it without a lawyer.” It also found that
respondent, who had “a credibility issue, a serious one,” was making “selective disclosures” of
his own income. Furthermore, while petitioner’s attorneys had been paid $330,000 to date, the
trial court found that respondent failed to disclose all payments made to his attorneys. Indeed,
although petitioner contends that respondent has either paid or been granted leave to pay his
attorneys $735,000, we cannot determine how much he actually paid all of his attorneys. More
significantly, the trial court concluded that respondent had almost all the money that at one time
was held in joint tenancy by the parties. If we accepted respondent’s argument, we would ignore
the clear policy of the amendments to “level the playing field” and give respondent an unfair
advantage.
While petitioner cites authority as to when a premarital agreement can be found to be
unfair and unreasonable (In re Marriage of Murphy, 359 Ill. App. 3d 289, 299 (2005); In re
Marriage of Berger, 357 Ill. App. 3d 651, 657-58 (2005); Warren v. Warren, 169 Ill. App. 3d
226, 231 (1988); see also 750 ILCS 5/502(b) (West 2004)), we need not reach this issue, as we
found that the premarital agreement does not constitute a waiver of interim attorney fees.
Furthermore, the cases that respondent relies on, Kohler v. Kohler, 316 Ill. 33 (1925), and
Cimino v. Cimino, 93 Ill. App. 2d 412 (1968), are distinguishable, as they predated the “leveling
the playing field” amendments and did not involve interim attorney fees.
C. Constitutional Arguments
-11- No. 1-07-2940
Respondent contends that the application of section 501(c-1) violates the contract clause
and his due process rights. “All statutes enjoy a strong presumption of constitutionality, and the
party challenging a statute bears the burden of clearly rebutting this presumption.” In re Estate
of Jolliff, 199 Ill. 2d 510, 517 (2002). “The constitutionality of a statute is a question of law, and
our review is de novo.” Jolliff, 199 Ill. 2d at 517.
1. Compliance with Supreme Court Rule 19
Petitioner argues that respondent waived his constitutional arguments because he did not
notify the Attorney General when he filed his notice of appeal or docketing statement, which
raised the constitutional issues, nor did he serve a copy of his appellate brief on the Attorney
General, in violation of Supreme Court Rule 19 (210 Ill. 2d R. 19). We found above that the
purpose of Rule 19 was fulfilled when petitioner gave the Attorney General notice in earlier
proceedings and respondent gave notice of this appeal in December 2007. Where, as here, “the
issue is of constitutional dimensions and has been fully briefed and argued, we choose to address
plaintiff’s contention.” Poullette v. Silverstein, 328 Ill. App. 3d 791, 797 (2002).
2. Contract clause
Respondent argues that application of section 501(c-1) violates the contract clauses of the
United States and Illinois Constitutions because it impairs an otherwise valid and enforceable
premarital agreement and imposes obligations that petitioner waived. The United States
Constitution provides that no state shall pass any law impairing the obligations of contracts.
U.S. Const. art. I, § 10. The Illinois Constitution provides that no law shall be passed impairing
the obligation of contracts. Ill. Const. 1970, art. I, §16.
-12- No. 1-07-2940
To establish a violation of the contract clause, a plaintiff must meet a four-part test: “
‘First, the new legislation must involve a contractual obligation. Second, the legislation must
impair the obligation. Third, the impairment must be substantial. Fourth, in order to be valid,
the impairment must be “reasonable and necessary to serve an important public purpose.” ’ ”
Kaufman, Litwin & Feinstein v. Edgar, 301 Ill. App. 3d 826, 837-38 (1998), quoting Bricklayers
Union Local 21 v. Edgar, 922 F. Supp. 100, 105 (N.D. Ill. 1996). The contract clause is only
implicated when an existing contract is substantially impaired. Reed v. Farmers Insurance
Group, 188 Ill. 2d 168, 175 (1999).
“[A] statute does not violate the Contract Clause simply because it has the effect of
restricting, or even barring altogether, the performance of duties created by contracts entered into
prior to its enactment.” Sanelli v. Glenview State Bank, 108 Ill. 2d 1, 20 (1985). In contractual-
impairment cases, the primary inquiry is “whether the state law has, in fact, operated as a
substantial impairment of a contractual relationship.” Panzella v. River Trails School District
26, 313 Ill. App. 3d 527, 535 (2000). Respondent contends, without citing authority, that
“[t]here is no question that the impairment was substantial” since he was ordered to pay
$150,000 to petitioner’s counsel under section 501(c-1). Without belaboring the points made
above, we reiterate that interim fee awards are merely an advance against the marital estate. 750
ILCS 5/501(c-1)(2) (West 2004); Beyer, 324 Ill. App. 3d at 314. Furthermore, section 501(c-1)
specifically provides that a party may claim an overpayment of fees at a contribution hearing
pursuant to section 503(j). 750 ILCS 5/501(c-1), 503(j) (West 2004). We find that section
501(c-1) does not substantially impair any contractual obligation that the parties had regarding
attorney fees.
-13- No. 1-07-2940
Finally, respondent argues that “there is no important public purpose served by the
impairment.” While citing authority regarding the sanctity of enforcing contracts as written
(McClure Engineering Associates, Inc. v. Reuben H. Donnelley Corp., 95 Ill. 2d 68, 72 (1983);
Sweney Gasoline & Oil Co. v. Toledo, Peoria & Western R.R. Co., 42 Ill. 2d 265, 267 (1969)),
respondent ignores the policy behind the “leveling the playing field” amendments. “[A]
‘fundamental reason’ for the new interim fee system contained in the Marriage Act is to ‘prevent
a party from using his or her relative wealth as a litigation tool.’ ” Stella, 353 Ill. App. 3d at 420,
quoting D. Hopkins, “Leveling the Playing Field” in Divorce: Questions & Answers About the
New Law, 85 Ill. B.J. 410, 411 (1997). This is exactly what the trial court found that respondent
was doing.
Accordingly, we find that application of section 501(c-1) does not violate the contract
clauses of the United States and Illinois Constitutions.
3. Due process
Respondent also argues that section 501(c-1) violates his substantive due process rights.
In evaluating a substantive due process claim concerning nonfundamental rights, the court
applies the “rational basis test.” Messenger v. Edgar, 157 Ill. 2d 162, 176 (1993). Under this
test, the court must determine whether the legislation has a reasonable relationship to the public
interest sought to be protected and whether the means the legislature has adopted to achieve its
goals are reasonably related to such goals. Messenger, 157 Ill. 2d at 176. Respondent contends
that making him pay $150,000 in interim attorney fees under section 501(c-1) constitutes a
substantive due process violation because it unreasonably denies him the benefit of the bargain
he negotiated, as reflected in the premarital agreement.
-14- No. 1-07-2940
In claiming that section 501(c-1) is unconstitutional, respondent relies on Messenger. In
Messenger, a statute provided for a “dissolution action stay” that restrained the parties from
transferring or otherwise disposing of property upon service of a summons and petition.
Messenger, 157 Ill. 2d at 166. In enacting the statute, the legislature sought to prevent the
dissipation and concealment of marital assets once proceedings to dissolve a marriage had
begun. Messenger, 157 Ill. 2d at 176. “In attempting to accomplish this purpose, however, the
legislature has imposed upon parties to the dissolution of marriage a stay of *** not only marital
assets but also” non-marital property, to which the other spouse can lay no claim. Messenger,
157 Ill. 2d at 176-77. Because the section had an “excessively broad sweep” to include a
restraint on nonmarital property, “the means adopted by the legislature is not a rational means of
accomplishing its purpose.” Messenger, 157 Ill. 2d at 177.
Respondent claims that section 501(c-1) is “equally broad in its sweep” to the extent that
it is applied to effect fee shifting during dissolution proceedings in derogation of a valid
premarital agreement waiving a right to attorney fees. As we found in Kaufman and Beyer, there
is no such over breadth problem here, as the statute provides that any overpayment of fees can be
ordered to be remitted back to a party. Beyer, 324 Ill. App. 3d at 317; Kaufman, 301 Ill. App. 3d
at 836. Furthermore, unlike the statute in Messenger, which applied indiscriminately to restrain
all nonmarital property, for a party to be compelled to pay another party’s interim fees, “a
genuine disparity in the parties’ respective access to financial assets must first be demonstrated,
as would prevent one party from participating equally in pending litigation.” Beyer, 324 Ill.
App. 3d at 317.
-15- No. 1-07-2940
“In enacting section 501(c-1), the legislature’s goal was to level the playing field by
equalizing the parties’ litigation resources where it is shown that one party can pay and the other
party cannot.” Beyer, 324 Ill. App. 3d at 315. We reiterate that “interim awards are truly a form
of ‘temporary relief,’ and *** section 501(c-1) still allows for the modification or revocation of
any award.” Beyer, 324 Ill. App. 3d at 316. “The legislature’s goal is to level the playing field
by equalizing the parties’ litigation resources. The interim fee provisions bear a rational
relationship to the purpose of the amendments.” Kaufman, 301 Ill. App. 3d at 836.
Respondent further argues that the trial court violated his procedural due process rights
because he was not permitted an evidentiary hearing. “Procedural due process claims concern
the constitutionality of the specific procedures employed to deny a person’s life, liberty or
property.” Beyer, 324 Ill. App. 3d at 317, citing Segers v. Industrial Comm’n, 191 Ill. 2d 421,
434 (2000). “Procedural due process is meant to protect people from the mistaken or unjustified
deprivation of life, liberty or property, not from the deprivation itself.” Beyer, 324 Ill. App. 3d at
318. “To survive a facial challenge, the procedures a statute incorporates must at least be
adequate to authorize the deprivation with respect to some of the persons subject to it.” Beyer,
324 Ill. App. 3d at 318. “At a minimum, due process requires that a deprivation of property
cannot occur without providing notice and an opportunity for a hearing appropriate to the nature
of the case.” Beyer, 324 Ill. App. 3d at 318.
“In evaluating procedural due process claims, courts use a three-part test, under which
the court (1) asks the threshold question whether there exists a liberty or property interest that
[the state] has interfered with ***, (2) examines the risk of an erroneous deprivation of such an
interest through the procedures already in place, while considering the value of additional
-16- No. 1-07-2940
safeguards, and (3) addresses the effect the administrative burden would have on the state’s
interest.” Beyer, 324 Ill. App. 3d at 318. Respondent only addresses the first factor. See Beyer,
324 Ill. App. 3d at 318 (“[A]ny person who is compelled to pay an opposing party’s fees
pursuant to section 501(c-1) has his property interfered with by the state”). Nevertheless, this
court has already determined that nonevidentiary hearings are “procedurally proper means of
deciding fee petitions, as long as the decision maker can determine, from the evidence presented
in the petition and answer, what amount would be a reasonable award of fees and the opposing
party has an opportunity to be heard.” Beyer, 324 Ill. App. 3d at 318; Kaufman, 301 Ill. App. 3d
at 837. Furthermore, “because an evidentiary hearing is still held if it is found necessary under
section 501(c-1), there [is] no violation of procedural due process.” Beyer, 324 Ill. App. 3d at
319; Kaufman, 301 Ill. App. 3d at 837. Section 501(c-1) is sufficient “to protect against the
erroneous deprivation of property, be it nonmarital or marital.” Beyer, 324 Ill. App. 3d at 319.
C. Interim Fee Award
Respondent argues that even if section 501(c-1) applies, the trial court erred in granting
the interim award because (1) the petition was unsupported by affidavits, (2) the amount was
manifestly unreasonable, (3) there was no showing that petitioner lacked the ability to pay fees,
and (4) there was no consideration of the statutory factors.
Section 501(c-1)(1) lists factors that a court should consider in deciding whether to award
interim fees: (1) the income and property of each party; (2) the needs of each party; (3) the
realistic earning capacity of each party; (4) any impairment to the present earning capacity of
either party; (5) the standard of living established during the marriage; (6) the degree of
complexity of the issues; (7) each party’s access to relevant information; and (8) the amount of
-17- No. 1-07-2940
payments made or reasonably expected to be made to the attorney for the other party. 750 ILCS
5/501(c-1)(1) (West 2004). “The allowance of attorney fees and the amount awarded are matters
within the sound discretion of the trial court.” DeLarco, 313 Ill. App. 3d at 111. Although an
evidentiary hearing is not required under section 501(c-1), an interim award must be supported
by “nontestimonial evidence, as submitted by the parties in the form of affidavits, financial
disclosure statements, [or] requests for judicial notice.” Beyer, 324 Ill. App. 3d at 320.
Section 501(c-1)(3) provides that a court must find that “the party from whom attorney’s
fees and costs are sought has the financial ability to pay reasonable amounts and that the party
seeking attorney’s fees *** lacks sufficient access to assets or income to pay reasonable
amounts.” 750 ILCS 5/501(c-1)(3) (West 2004). See Beyer, 324 Ill. App. 3d at 320 (for
purposes of a section 501(c-1) petition, the party seeking the fees must demonstrate the inability
to pay and the ability of the other party to pay both parties’ fees). Respondent contends that the
trial court erred in granting an interim award because petitioner failed to demonstrate that she
was unable to pay her own fees.
We agree with petitioner that documentary evidence attached to her petition supports the
conclusion that she lacks sufficient access to assets or income to pay attorney fees. She attached
their respective Form 1040s for 2006 and respondent’s disclosure statement. According to
petitioner, respondent operated a real estate listing business and earned substantial income from
investments; respondent’s Form 1040 showed that his total income in 2006 was $139,443, and
the trial court previously found that respondent selectively disclosed his income. Petitioner’s
Form 1040 for 2006 showed an income of $9,102. Her verified petition provided that her
previous salary was $43,000 a year and that she was not rehired and was substitute teaching.
-18- No. 1-07-2940
Later, she testified that she would be starting a new job as a kindergarten teacher the next week
at approximately the same salary as her previous job. In the petition, she described the advances
she had received and how much the parties’ attorneys had been paid thus far. She also attached
transcripts and orders finding respondent in indirect civil contempt for failing to pay petitioner’s
interim attorney fees; finding that respondent selectively disclosed income information; finding
that he engaged in discovery abuse; and describing his delay tactics. Furthermore, petitioner
alleged, and the trial court found, that respondent had control over previously joint funds.
In support of his argument that petitioner was able to pay her own attorney fees,
respondent cites a number of documents and testimony in the record, arguing that they establish
the following: (1) petitioner’s mortgage application shows her income as $96,000; (2) in addition
to her salary as a teacher, she has earnings as a licensed attorney, the owner of a real estate
brokerage firm, an adjunct professor, and a Sunday school teacher; (3) she disclosed “some stale
account information” showing cash assets of more than $170,000; (4) her inability to pay is self-
imposed because their summer home in Michigan cannot be sold; and (5) petitioner is the sole
titleholder of her deceased mother’s co-op apartment, valued at over $90,000. However,
respondent neither attached nor referenced any of these alleged facts in his response to
petitioner’s petition. To the extent that he relies on petitioner’s entitlement to a disbursement
from her mother’s estate, the record only contains respondent’s unsubstantiated allegations in his
response to petitioner’s petition instead of testimony or documentary evidence. Furthermore,
while petitioner testified on October 26, 2007, that she would begin a new teaching position the
next week at what she believed would be approximately $43,000 a year, she had been substitute
-19- No. 1-07-2940
teaching until then, and the trial court heard her testimony regarding the new teaching position
before imposing the contempt order.
Furthermore, section 501(c-1)(1) provides, “A responsive pleading shall set out the
amount of each retainer or other payment or payments, or both, previously paid to the
responding party’s counsel by or on behalf of the responding party.” 750 ILCS 5/501(c-1)(1)
(West 2004). The trial court found that respondent failed to disclose all of the payments he
made to his attorneys in his responses to the interim fee petition, in violation of section 501(c-
1)(1). Respondent stated in his responsive memorandum that his counsel has received $253,000.
On appeal, he reiterates in a footnote that his current counsel has received $253,117 for this
divorce. However, respondent does not account for his previous attorneys: in his specific
responses to petitioner’s petition, he admitted petitioner’s allegations that respondent paid
$11,750 to Joel Brodsky; $43,600 to Audrey Gaynor; $7,570 to the Law Offices of Wes Cowell;
$35,249.80 to Schiller, DuCanto & Fleck; an additional $100,000 to his current attorneys; and
was granted leave to pay his current attorneys an additional $295,000 on December 13, 2006.
Furthermore, his disclosure statement showed expenditures for “divorce legal fees” in the
amount of $585,500. Therefore, his response failed to set out every payment he made to every
attorney, and his briefs and the record do not simplify matters.
On appeal, respondent contends that he does not have the financial ability to pay the
ordered fees. He states that he is 64 years old and lives almost exclusively on the interest and
dividends generated by his historical investments. He also lists household and living expenses
he incurs on a monthly basis, such as his phone and heating bills, and his property tax bill.
However, respondent’s response to petitioner’s petition makes no mention of his own financial
-20- No. 1-07-2940
circumstances, except to allege the amount he has already paid in fees to her attorneys, nor did
he file his own affidavit. “Although the party seeking fees has the burden of showing the ability
of the other party to pay, we note that waiver of a party’s claim of inability to pay attorney fees
may occur where a party refuses to present evidence of his own financial circumstances.” Beyer,
324 Ill. App. 3d at 320.
Respondent also contends that the amount of the fees awarded was excessive. Section
501(c-1) provides that an interim award must reflect “reasonable [attorney] fees and costs.” 750
ILCS 5/501(c-1) (West 2004). According to respondent, petitioner’s counsel incurred an
additional $133,700 in fees since November 30, 2006, and this number cannot be justified based
on the trial schedule during the relevant period. Petitioner responds that since November 2006,
the trial proceeded on seven days; a child support hearing occurred over three days; transcribed
hearings proceeded on three days; and the parties’ counsel appeared in court a number of other
times for settlement discussions and hearings not transcribed by the court reporter. In addition,
petitioner incurred fees for an interlocutory appeal and an emergency petition for supervisory
order filed by respondent. Finally, petitioner incurred fees responding to respondent’s motion to
reconsider the trial court’s child support award after the July 2007 hearing. Under these
circumstances, we do not believe that the trial court abused its discretion in finding an award of
$150,000 in interim fees to be reasonable. Indeed, “the trial judge, who had presided over the
case for more than a year, was in a position to assess the reasonableness of the fees, based on his
own experience and knowledge of the procedural history of the case.” Beyer, 324 Ill. App. 3d at
321.
E. Contempt Order
-21- No. 1-07-2940
It is well settled that exposing oneself “to a finding of contempt is an appropriate method
of testing the validity of a court order.” Beyer, 324 Ill. App. 3d at 321. “Furthermore, where a
refusal to comply with the court’s order constitutes a good-faith effort to secure an interpretation
of an issue without direct precedent, it is appropriate to vacate a contempt citation on appeal.”
Beyer, 324 Ill. App. 3d at 321-22. Because respondent represented to the trial court that “the
issue is not to be contemptuous. It’s to test the validity of the order,” we vacate the October 26,
2007, contempt finding.
III. CONCLUSION
For the foregoing reasons, we affirm the trial court’s order compelling respondent to pay
interim fees and vacate the contempt order.
Affirmed; contempt order vacated.
QUINN, P.J., and NEVILLE, P.J., concur.
-22-