Illinois Supreme Court Reverses Appellate Court, Affirms Trial Court’s Fee Contribution Award
In In re Marriage of Heroy, 2017 IL 120205, after a postjudgment hearing, the trial court reduced the ex-husband’s maintenance obligation from $35,000 per month to $27,500 per month and awarded the ex-wife $125,000 in contribution to fees. The court also awarded her $35,000 in prospective attorneys’ fees to defend the appeal that the ex-husband filed on both issues. The appellate court reversed the trial court’s contribution award by vacating it on the basis that there was no evidence in the record that the ex-wife was unable to pay her own fees. The Supreme Court reversed the appellate court and held that the trial court did not abuse its discretion when awarding the ex-wife $160,000 in attorneys’ fees. The critical component of the decision was the court’s analysis of its prior case, In re Marriage of Schneider, 214 Ill.2d 152, 824 N.E.2d 177, 291 Ill.Dec. 601 (2005), and the “inability to pay” standard. The various districts in Illinois had been split on their interpretation of whether Schneider validly interpreted §508(a) of the Illinois Marriage and Dissolution of Marriage Act, 750 ILCS 5/508. In this decision, the Supreme Court did not overrule Schneider, but it held that when determining fee contribution, the trial court “must . . . ‘consider[ ] the financial resources of the parties.’ ” 2017 IL 120205 at ¶19, quoting 750 ILCS 5/508. The court suggested that the Schneider holding is a gloss to be applied to this analysis, to the extent that “the inability to pay standard was never intended to limit awards of attorney fees to those situations in which a party could show a $0 bank balance.” Id. The court concluded that a party is unable to pay if, after consideration of all the relevant statutory factors, requiring the party to pay the entirety of the fees would undermine his or her financial stability.
Appellate Court Lacked Jurisdiction To Review Temporary Child Support and Maintenance Orders
In In re Marriage of Dougherty, 2017 IL App (1st) 161893, the husband sought leave to appeal pursuant to Supreme Court Rule 306 on an interlocutory basis the trial court’s temporary maintenance and child support orders. The court granted the petition for leave to appeal and took the wife’s motion to dismiss with the case. Ultimately, the court concluded that temporary support orders did not fall within the purview of “interlocutory orders affecting the care and custody of or the allocation of parental responsibilities for unemancipated minors” as provided for in Rule 306. 2017 IL App (1st) 161893 at ¶¶6, 15, quoting Rule 306(a)(5). The court rejected the husband’s argument that the word “care” could be interpreted to include support orders and held that “care and custody” related only to orders involving the custodial placement of the minor children. 2017 IL App (1st) 161893 at ¶5.
Immediate Appeal of Turnover Order Pursuant to Garnishment Proceeding Incident to Interim Fee Award Improper
In In re Marriage of Arjmand, 2017 IL App (2d) 160631, a heavily litigated matter, the appellate court dismissed the husband’s appeal of a turnover order that ordered various financial institutions to turn over funds to the wife to enforce an interim fee award in the amount of $230,000. The husband had refused to comply with the original fee order and requested, and was denied, S.Ct. Rule 304(a) language to immediately appeal the interim fee award. The appellate court agreed with the trial court’s decision, finding that there was no “friendly contempt” component to the husband’s potential appeal because there was a not a good-faith effort to secure an interpretation of an issue without direct precedent — rather, he simply disagreed with the ruling. 2017 IL App (2d) 160631 at ¶12. The wife subsequently had to file for a nonwage garnishment in order to enforce the interim fee order, and the husband filed a motion to quash the garnishment, which was denied and resulted in the turnover order. The husband argued on appeal that Rule 304(b)(4), which permits interlocutory appeals with respect to final judgments in citation to discover assets proceedings, should be extended to garnishment proceedings. He also argued that if an interim fee award was enforceable through garnishment, it should also be immediately appealable. The Second District wholly disagreed and held that, despite their enforceability, interim orders in a dissolution case, such as temporary support orders or temporary attorneys’ fees orders, are not immediately appealable. The breadth of extensive caselaw and statutory authority clearly provides that all issues in a dissolution case are to be appealed only once final judgment has been entered.
Thank you to IICLE Family Law Flashpoints April 2017, Donald C. Schiller & Michelle A. Lawless, Schiller DuCanto & Fleck LLP, for its contributions this month.