In re Marriage of Rybka

2022 IL App (3d) 210516-U

• Court: Appellate Court of Illinois
• Decided: October 21, 2022
• Docket: 3-21-0516
• Status: Unpublished

Opinion

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

2022 IL App (3d) 210561-U

Order filed October 21, 2022 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

In re MARRIAGE OF ) Appeal from the Circuit Court ) of the 12th Judicial Circuit, ROSE CECILI RYBKA, n/k/a ) Will County, Illinois ROSE CECILI LEACH, ) ) Appeal No. 3-21-0561 Petitioner-Appellant, ) Circuit No. 18-D-143 ) 18-D-177 and ) ) EDWARD JOHN RYBKA, ) Honorable ) Dinah Lennon Archambeault, Respondent-Appellee. ) Judge, Presiding. ____________________________________________________________________________

PRESIDING JUSTICE O’BRIEN delivered the judgment of the court. Justices Holdridge and Hettel concurred in the judgment. ____________________________________________________________________________

ORDER

¶1 Held: Trial court did not err in allocating guardian ad litem fees between parents in proceedings on mother’s petition to remove minor child.

¶2 Petitioner Rose Cecili Leach, f/k/a Rose Cecili Rybka, petitioned to relocate with A.R., a

child she shares with respondent Edward John Rybka, and for the appointment of a guardian

ad litem (GAL). The trial court granted the request for a GAL and denied the petition to relocate. The court allocated the GAL fees between Rose and Edward. Rose appeals the fee allocation. We

affirm.

¶3 I. BACKGROUND

¶4 Rose Leach, and Edward Rybka were married in 2014 and A.R. was born in 2015. The

marriage was dissolved in 2019. A parenting agreement was incorporated with the judgment of

dissolution and granted Rose and Edward joint decision-making authority and equal parenting

time, with Rose being the primary residential parent.

¶5 An agreed order entered in August 2020 stated that A.R.

“shall attend public school(s) in Naperville School District 203, the school district in

which MOTHER resides, *** provided, based on MOTHER’S stipulation hereinbelow,

that she will remain living within Naperville School District 203 to allow for A.R. to

attend Maplebrook Elementary School through completion of fifth (5th) grade[.]”

The order further stated:

“MOTHER stipulates and agrees that she will remain within Naperville School

District 203 to allow for A.R. to attend Maplebrook Elementary School through

completion of fifth (5th) grade. Said stipulation shall be consistent with the statutory

modification factors set forth in 750 ILCS 5/610.5 as well as 750 ILCS 5/609.2 that,

upon a showing of changed circumstances, necessitates modification to serve the best

interests of the child AND is not caused by MOTHER’s voluntary choice. By way of

example, if during the aforesaid period, MOTHER should choose to remarry and decide

to relocate to Tennessee to be with her husband, that fact alone will not be deemed a

sufficient basis to warrant a modification or relocation premised upon 750 ILCS

5/610.5 and 750 ILCS 5/609.2[.]”

2 ¶6 In April 2021, Rose filed a notice of relocation and a petition for leave to remove A.R. to

Nashville, Tennessee, where her job was headquartered and her fiancé lived. She also sought the

appointment of a GAL to investigate whether relocation was in A.R.’s best interests. The trial court

appointed the GAL in May 2021 and the appointment order stated: “The initial retainer shall be

allocated as follows: EVENLY (50-50) SUBJECT TO REALLOCATION.”

¶7 The GAL, after finishing his investigation and noting the difficulty of his decision,

concluded relocation was in A.R.’s best interest. The parties jointly deposed the GAL. Prior to the

start of trial, Edward requested the GAL attend the entirety of the trial in case the evidence

presented would alter his decision. The GAL continued his investigation as the trial proceeded,

and by agreement of the parties, he was the last witness to testify. Thereafter, the trial court denied

the petition to relocate.

¶8 A hearing took place on the GAL’s fee petition. The GAL’s total fee was $29,865. The

parties agreed the fees were reasonable and necessary. Rose had already paid $14,038.75 and

Edward had paid $11,500. Rose requested an allocation consistent with the parties’ incomes,

arguing Edward’s income was 80% greater. She added that it was Edward who required the GAL’s

presence at the trial which accrued more fees, further necessitating a greater allocation to him.

According to Rose’s calculations, the GAL’s trial attendance caused at least $10,000 in fees. Rose

pointed to her $3000 monthly financial deficit as additional support for a reallocation. Edward

argued for a 50%-50% allocation, citing that Rose filed the petition to relocate which resulted in

the appointment of the GAL.

¶9 The trial court stated that disgorgement did not apply under the circumstances. It noted that

Rose had paid $14,038.75, which established she had the ability to pay. The court also noted that

Rose travelled regularly back and forth to Tennessee and spent money to do so. The court

3 determined, in part, that because Edward sought the GAL’s presence at trial, it would allocate a

greater amount than 50% to him. The court ordered Edward to pay the remaining balance of

$4326.25, for a total contribution at $15,826.25. Rose appealed the trial court’s allocation of

attorney fees for the GAL.

¶ 10 II. ANALYSIS

¶ 11 Rose argues that the trial court’s fee allocation was an abuse of discretion. She submits that

the allocation should be proportionate, that Edward earned a larger salary, and that he should be

required to pay more of the fees. She further submits that Edward prolonged the trial and required

the attendance of the GAL, which substantially increased the GAL fee. According to Rose, the

trial court did not recognize it could reallocate a portion of fees Rose had already paid in order to

fairly apportion the entirety of the fee.

¶ 12 The trial court may appoint an attorney to serve as a GAL in proceedings involving custody

and visitation of a minor child. 750 ILCS 5/506(a)(2) (West 2020). The GAL “shall testify or

submit a written report to the court regarding his or her recommendations in accordance with the

best interest of the child.” Id. The GAL may be called to testify for cross-examination purposes

regarding his or her report or recommendations. Id. The court may enter a fee order when a GAL

is appointed. Id. § (b). “Any order approving the fees shall require payment by either or both

parents ***.” Id.

¶ 13 In allocating the GAL fees between the parents, the court should consider their financial

resources. In re Marriage of Kennedy, 94 Ill. App. 3d 537, 549 (1981). Which party precipitated

the need for the fees is a factor to be considered. Gibson v. Barton, 118 Ill. App. 3d 576, 583

(1983). Other factors include the facts and circumstances of the case; the parents’ circumstances;

the skill and standing of the GAL; the importance, novelty and difficulty of the issues raised; the

4 degree of management responsibility; time and labor involved; the usual and customary fees in the

community; and the benefits to the client. Id. at 582-83. This court reviews an allocation of GAL

fees for an abuse of discretion. In re Marriage of Soraparu, 147 Ill. App. 3d 857, 864 (1986).

¶ 14 We find that the trial court did not abuse its discretion in allocating the GAL fees. In

considering the parties’ ability to pay, Rose argued that her salary was approximately $77,000

compared to what she estimated was Edward’s salary of $350,000. She asks for a proportionate

reallocation of the GAL fees. Edward’s financial affidavit is not in the record and although his

2020 tax returns indicate an annual income of approximately $350,000, the record does not

establish his monthly expenses. Accepting that Edward’s monthly income was substantially

greater than Rose’s income, we reject her proportionality argument. Rose’s financial affidavit

indicates she had considerable resources, including a recent accounts receivable payment of

$56,175. In addition, she had $39,000 in her bank accounts, and received $60,000 in a settlement

with her prior employer and 60% of the marital assets, including $88,000 in retirement funds.

Although Rose’s financial affidavit stated that she had a $3000 per month shortfall, the trial court

properly noted that despite her monthly deficit, Rose regularly travelled to Tennessee, spending

funds she apparently did not have to do so.

¶ 15 In In re Marriage of Kramer, 211 Ill. App. 3d 401, 413 (1991), the trial court allocated half

of the fees for the child’s attorney to the wife despite the husband’s substantially greater income.

The reviewing court considered that the lower court properly attributed a substantial part of the

proceedings necessitating fees to the wife’s conduct. Id. Rose, on the other hand, attributes a

substantial portion of the GAL’s fees to Edward’s insistence the GAL attend the trial. We consider

his request was reasonable. The GAL completed his report immediately prior to the start of trial

and Edward wanted the ability to cross-examine the GAL after the GAL heard the other testimony

5 in case the GAL changed his opinion. Moreover, the GAL’s investigation was extensive and

continued throughout the trial, which served to benefit A.R. in the long run. When the trial court

asked how much of the fees was attributable to the trial, Rose’s counsel, after the court had

apportioned the fees, estimated the amount to be $10,000 without offering evidence in support of

that figure.

¶ 16 Claims of financial insecurity notwithstanding, Rose did not establish an inability to pay.

In re Marriage of Adams, 92 Ill. App. 3d 797, 805 (1981) (wife ordered to pay one-half of attorney

fees for child representative and her own attorney fees despite her claims of “near destitution”).

As the court noted, Rose had already paid nearly half of the GAL’s fee, indicating she in fact had

the ability to pay. In re Marriage of Mantei, 222 Ill. App. 3d 933, 942 (1991) (“[p]etitioner has

demonstrated her ability to pay by already having paid about half of the fees”). The GAL was

appointed on Rose’s motion and in response to her petition to relocate A.R.

¶ 17 Finally, Rose argues that, in rejecting disgorgement, the trial court was unaware it could

reallocate the fees by requiring Edward to reimburse Rose for a portion of the GAL fees she already

paid. There is no evidence the trial court was stymied by a misapplication of the law. As the court

found, disgorgement was inapplicable under the facts as the GAL fees had already been earned.

See In re Marriage of Goesel, 2017 IL 122046, ¶¶ 14, 35 (disgorgement is “the process whereby

a court orders an attorney to turn over previously paid interim fees or retainers” but does not apply

to fees already earned). The court found a simple way to require Edward to pay an additional

amount by allocating the fee balance due to him. We find there was no error in the trial court’s

allocation of the GAL fees.

¶ 18 III. CONCLUSION

¶ 19 For the foregoing reasons, the judgment of the circuit court of Will County is affirmed.

6 ¶ 20 Affirmed.