Opinion
No. 2-13-0642
04-25-2014
In re MARRIAGE OF THOMAS S. BLOOM, Petitioner-Appellee, v. MICHELLE M. BLOOM, Respondent-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court
of Du Page County.
No. 06-D-2265
Honorable
Robert A. Miller,
Judge, Presiding.
JUSTICE delivered the judgment of the court.
Presiding Justice Burke and Justice McLaren concurred in the judgment.
ORDER
¶ 1 Held: Respondent failed to establish that trial court abused its discretion in awarding sanctions to petitioner as a result of her filing several frivolous petitions seeking to hold petitioner in contempt. ¶ 2 Respondent, Michelle Bloom, appeals an order of the circuit court of Du Page County imposing sanctions against her as a result of her filing several petitions for rules to show cause pertaining to the enforcement of a marital settlement agreement (MSA) between her and petitioner, Thomas Bloom. The trial court deemed several of the petitions not well grounded in fact and law. For the reasons that follow, we affirm. ¶ 3 Illinois Supreme Court Rule 137 (eff. January 4, 2013) provides, in pertinent part, as follows:
"Every pleading, motion and other document of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. * * * The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other document; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. * * * If a pleading, motion, or other document is signed in violation of this rule, the court, upon motion or upon its own initiative, may impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of reasonable expenses incurred because of the filing of the pleading, motion or other document, including a reasonable attorney fee."Rule 137 is penal in nature and must be strictly construed. Mohica v. Cvejin, 2013 IL App (1st) 111695, ¶ 47. A trial court's decision to impose sanctions will not be reversed unless the trial court has abused its discretion. In re Rocca, 2013 IL App (2d) 121147, ¶ 30. An abuse of discretion occurs only if no reasonable person could agree with the position taken by the trial court. Edwards v. Addison Fire Protection District Firefighters' Pension Fund, 2013 IL App (2d) 121262, ¶ 41. Relevant facts are set forth in appeal No. 2-13-0642 in our discussion of the substance of the various petitions for rules to show cause filed by respondent, and we will not restate them here. Additional facts will be discussed, as necessary, in analyzing the issues presented in this appeal. ¶ 4 As a preliminary matter, we note that we may affirm on any basis apparent in the record. In re Marriage of Gary, 384 Ill. App. 3d 979, 987 (2008). Respondent's demeanor during proceedings before the trial court indicate that her petitions were, as a whole, filed for an improper purpose, specifically, to harass. Respondent repeatedly bickered with the trial judge, spoke over him, and refused to follow simple directions that were repeatedly given to her. Her failure to prosecute these petitions in a reasonable and serious manner belies any claim that respondent was acting in good faith. ¶ 5 Respondent first charges that the trial court should not have sanctioned her regarding her petition filed in connection with a credit card the parties set up to pay for their children's tennis expenses. Petitioner removed respondent as an authorized user of the card after she used it to fly to Phoenix to attend her sons' tennis tournament. Charges included meals at which her sons were not present and a spa treatment. The trial court found that petitioner had good cause to remove her from the credit card. A reasonable person could certainly conclude that respondent knew she was misusing the card and that seeking a contempt finding on this basis was frivolous. As such, the trial court committed no abuse of discretion here. ¶ 6 Respondent next complains of the trial court's decision to sanction her regarding her attempt to have petitioner held in contempt for failing to provide her with medical insurance cards for the parties' children. Petitioner in fact provided insurance for the children and gave them medical cards. Respondent did not contest these facts; rather, she based this request solely upon petitioner's failure to provide her such a card. Given the de minimis nature of this alleged violation of the MSA, a reasonable person could conclude that this petition was filed for an improper purpose, namely to harass. C.f., Parkway Bank & Trust Co. v. Korzen, 2013 IL App (1st), ¶ 88 (holding that appeal, "viewed as a whole," was frivolous). ¶ 7 Respondent was also sanctioned for her petition pertaining to petitioner's alleged refusal to provide certain tax information. The trial court essentially found that this matter had been litigated in connection with an earlier discovery request, which was denied, and respondent was attempting to relitigate the issue. This decision is not an abuse of discretion. Quite simply, respondent had already received an adverse ruling on this issue and was proceeding in derogation of that order. Respondent contends that our decision in In re Marriage of Bloom, 2013 IL App (2d) 1210863-U, somehow renders her request petition unsanctionable. In that case, however, we held a portion of the MSA was arguably unconscionable. While this may have rendered some of the material she sought relevant, she does not explain why it was reasonable (in the context of Rule 137) for her to seek a contempt finding based on petitioner's actions that were in conformity with an earlier order of the trial court. As such, we find respondent's argument on this point unpersuasive. ¶ 8 Regarding additional tax information, respondent states that "a reasonable argument could be made that she was entitled to the material." If there was such an argument to be made, this would have been the time for respondent to make it. It is respondent's burden on appeal to show error (see TSP-Hope, Inc. v. Home Innovators of Illinois, LLC, 382 Ill. App. 3d 1171, 1173 (2008)), and we will not serve as advocate for respondent (see Stapp v. Jansen, 2013 IL App (4th) 120513, ¶ 14) ¶ 9 Respondent also complains of the trial court's decision to sanction her regarding her petition based on the tax loss carry forward. The trial court determined that the parties had contracted to be bound by federal tax law regarding how this asset could be divided, if it could be divided at all. While respondent did provide citations to case law about such assets, she provided nothing regarding how the asset would be treated by the Internal Revenue Service, which was the relevant consideration. As such, a reasonable person could conclude that this petition did not have a sound basis in law. Hence, we cannot conclude that the trial court abused its discretion. ¶ 10 Respondent notes that the trial court did not sanction her with respect to her petition based on petitioner failing to provide proof that he maintained life insurance on himself for the benefit of the parties' children. She also notes that petitioner did not move for sanctions regarding one of her petitions. However, she does not identify any particular charges with specificity. We therefore deem this issue forfeited. See People v. Universal Public Transportation, Inc., 2012 IL App (1st) 073303-B, ¶ 50. We also note that respondent provides no authority in support of this argument as well. ¶ 11 Respondent also makes a number of general allegations about petitioner's request for attorney fees, including such issues as the specificity of petitioner's counsel's billing, that all entries were rounded to the quarter hour, and that some entries were purportedly duplicative. Petitioner asserts that respondent did not raise the bulk of these issues before the trial court. See Helping Others Maintain Environmental Standards v. Bos, 406 Ill. App. 3d 669, 695 (2010). However, respondent did file written objections to the fee petition sufficient to preserve such issues for appeal. As noted above, we review these issues using the abuse of discretion standard. In re Rocca, 2013 IL App (2d) 121147, ¶ 30. ¶ 12 Respondent generally does not identify with particularity any specific charges to which she objects; rather, she asserts that "[t]his [c]ourt can easily review the time records and see that the fees for five petitions for rule, heard together, cannot possibly approach $20,000." Having reviewed the records, we disagree with respondent. It is respondent's burden on appeal to clearly show error in the trial court's decision (TSP-Hope, Inc., 382 Ill. App. 3d at 1173), and it was therefore respondent's job to analyze these records. We will not do this for her. ¶ 13 Instead, as respondent presents her arguments in a general manner, we will analyze them in a similar fashion. Respondent first complains that petitioner's attorneys spent time researching contempt and the ability to purge. She states, "one would hope that all of these experienced attorneys had previously researched" such matters. As we cannot conclude that no reasonable person could agree that an attorney should proceed to litigate such matters without conducting any research, this argument provides no basis for concluding the trial court abused its discretion. ¶ 14 Respondent correctly points out that it is insufficient to simply multiply hours expended by an hourly rate to determine a fee award. See Kaiser v. MPEC American Properties, Inc., 164 Ill. App. 3d 978, 983-84 (1987); In re Marriage of Collins, 154 Ill. App. 3d 655, 660 (1987). While true as a proposition of law, it is simply not what happened in this case. We note that the billing records of petitioner's counsel contains notations such as "[p]repare for resumption of hearing on contempt regarding tax loss carryforward [sic] issues." They also contain the hours expended, identify the attorney performing the services, and list a total amount (from which the attorney's rate can be deduced). This complies with case law cited by respondent. See Kaiser, 164 Ill. App. 3d at 984 ("Rather, the petition for fees must specify the services performed, by whom they were performed, the time expended thereon and the hourly rate charged therefor."). Collins, 154 Ill. App. 3d at 660, which is cited by respondent, makes relevant "the skill and standing of the attorneys employed, the nature of the controversy, the novelty and difficulty of the questions at issue, the amount and importance of the subject matter, the degree of responsibility involved in the management of the case, the time and labor required, the usual and customary charge in the community, and the benefits resulting to the client." In its oral ruling, the trial court expressly stated the fees sought in this case were "reasonable," "within the usual and customary amounts," and "related to the underlying motions." The trial court also expressly acknowledged that relevance of "the skill and standing of the attorneys, the nature of the controversy, the novelty and difficulty of the questions at issue, the amount and importance of the subject matter, the degree of responsibility involved in management, [and] the time and labor required." In short, the trial court did not simply multiply hours times a rate. Respondent's argument is thus not well taken. ¶ 15 Respondent next claims that petitioner's attorneys' billing records improperly refer to multiple tasks that are inappropriately "lumped together." Our review of the record indicates that, though some entries refer to multiple tasks, nothing is so comingled as to render the trial court's decision an abuse of discretion. ¶ 16 Citing Kaiser, 164 Ill. App. 3d at 989-90, respondent claims that overhead costs—in this case, a fee for messenger services—may never be recovered. However, our reading of that case indicates that the Kaiser court did not hold that such costs may never be recovered as a matter of law; rather, it was considering the question in light of the facts of the case before it. See Kaiser, 164 Ill. App. 3d at 984 ("We are not persuaded otherwise by the assertion of the attorney from Freeborn & Peters that it is the firm's policy to separately charge for these items according to each client's use rather than raising the hourly rate charged to all clients as there was nothing presented establishing the existence of such a policy or any showing that its fees were lower than those customarily charged in the community for the same services."). Kaiser does not stand for the per se proposition that respondent claims it does. ¶ 17 Respondent contends that duplicative fees for the same services were awarded. This would, of course, be improper. See In re Marriage of Kosterka, 174 Ill. App. 3d 954, 960 (1988). However, while our review of billing records shows that multiple attorneys may have worked on the subject, it is not apparent to us that they were billing for the same services. Moreover, respondent does not attempt to identify any such charges that were for the same work. ¶ 18 Respondent complains that petitioner's counsel rounded the time they performed their work to the nearest quarter hour. She cites In re Marriage of Yakin, 107 Ill. App. 3d 1103, 1120 (1982), for the proposition that such billing is improper. In Yakin, the attorney testified that "even if a phone call lasted less than a quarter hour he would bill for a quarter of an hour." Id. Thus, the issue in that case was not whether fees could be rounded; rather, it was whether it was proper to always round up. Respondent cites nothing addressing rounding generally. ¶ 19 Finally, respondent claims that the trial court improperly determined that travel expenses, which it subtracted from the award, were $4,200 rather than $6,518.25, which was the amount contained in the billing statement. This issue was addressed by the trial court, which accepted the explanation of petitioner's attorney that travel time actually included both travel time and time spent at the courthouse prior to a hearing, during which he would perform work for petitioner. In turn, the trial court found that actual travel time was less than the amount billed for, and it reduced the fee award accordingly. Respondent makes no attempt to explain why that finding is contrary to the manifest weight of the evidence, so we need not address it further. ¶ 20 In light of the foregoing, the order of the circuit court of Du Page County is affirmed. ¶ 21 Affirmed.