This intention will be given full force and effect unless it is repugnant to another rule of law or is against public policy. Cimino v. Cimino (1968), 93 Ill. App.2d 412, 236 N.E.2d 299. In Cimino, the divorce judgment between the parties provided that each of the parties should bear his or her own fees arising out of the divorce proceedings.
"If the contract is not ambiguous, then its provisions as written must be accepted without resort to any rules of interpretation and intent of the parties must be determined from the language used in the written contract." See Founders' Insurance Co. v. Lanco Development Corp., 221 Cal.App.2d 503, 34 Cal.Rptr. 522 (2d Dist. 1963); Cimino v. Cimino, 93 Ill. App.2d 412, 236 N.E.2d 299 (1st Dist. 1968); Whiting Stoker Co. v. Chicago Stoker Corp., 171 F.2d 248 (7th Cir. 1948). Under the most basic principles of contract, Sealy "cannot now be heard to claim, for its own benefit, that the actual undertaking of the parties was other than that which appears in their written agreement . . . . Even though it might prefer to have the court decide the plain effect of this agreement to be contrary to the expressed intention set forth in the contract between the parties, it is not within the power of the court to make a new or different contract."
The court held: "In determining whether an allowance of fees is proper, it is necessary to examine the circumstances which initiate the invocation of judicial proceedings for relief. ( Cimino v. Cimino, 93 Ill. App.2d 412, 236 N.E.2d 299.) And where the party upon whom the fees are sought to be imposed has done nothing which necessitated or required judicial action, the allowance of fees is error.
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
) The court further noted that the parties' intent would be given full force and effect since it was not "repugnant to another rule of law [or] * * * against public policy." Kessler, 110 Ill. App.3d at 75; see also Cimino v. Cimino (1968), 93 Ill. App.2d 412, 416. Unlike Kessler, it is admitted in this case that the mother does not have the ability to pay her attorney fees.
The parties' intention will be given full force and effect unless it is repugnant to another rule of law or is against public policy. ( Cimino v. Cimino (1968), 93 Ill. App.2d 412, 417, 236 N.E.2d 299.) Our primary objective is, of course, to give the agreement its plain and ordinary meaning according to the intent of the parties. See Olson v. Olson (1983), 114 Ill. App.3d 28, 31, 448 N.E.2d 229.
In addition, it appears to us that the award of $1,400 temporary attorneys' fees in that order is also excessive. Attorneys' fees in a divorce proceeding are the primary obligation of the party for whom the services are rendered, but where the plaintiff shows that he or she is financially unable to pay them and that the other spouse is able to do so, justification exists for an award of fees in favor of plaintiff. ( Cimino v. Cimino (1968), 93 Ill. App.2d 412, 236 N.E.2d 299; Jones v. Jones (1964), 48 Ill. App.2d 232, 198 N.E.2d 195; Ill. Rev. Stat. 1975, ch. 40, par. 16.) Allowance of such fees rests in the discretion of the trial court.
The rule concerning the allowance of attorneys' fees in a divorce action is well stated in Kaufman v. Kaufman (1974), 22 Ill. App.3d 1045, 1050-51, 318 N.E.2d 282, 286-87: "It is a settled rule that to justify allowance of attorneys fees in a divorce suit, the party seeking this relief must show financial inability to pay and the ability of the other spouse to do so. ( Woodshank v. Woodshank, 13 Ill. App.3d 692, 693, 300 N.E.2d 494; Berg v. Berg, 85 Ill. App.2d 98, 229 N.E.2d 282; Cimino v. Cimino, 93 Ill. App.2d 412, 236 N.E.2d 299.) However, in this context, financial inability does not mean destitution.
Therefore, the question we must decide is whether the trial court erred when, without expressly finding that defendant was financially unable to pay her own expenses, it awarded her additional temporary attorneys fees, despite her possession of $13,000 in treasury notes, certificates of deposit, a savings account balance and some stocks. • 2 It is a settled rule that to justify allowance of attorneys fees in a divorce suit, the party seeking this relief must show financial inability to pay and the ability of the other spouse to do so. ( Woodshank v. Woodshank, 13 Ill. App.3d 692, 693, 300 N.E.2d 494; Berg v. Berg, 85 Ill. App.2d 98, 229 N.E.2d 282; Cimino v. Cimino, 93 Ill. App.2d 412, 236 N.E.2d 299.) However, in this context, financial inability does not mean destitution.
Although the allowance of attorney's fees rests in the discretion of the trial court ( Canady v. Canady, 30 Ill.2d 440, 197 N.E.2d 42), in order to justify such allowance, the complainant must show financial inability to pay and the ability of the spouse to do so. Jones v. Jones, 48 Ill. App.2d 232, 198 N.E.2d 195, Berg v. Berg, 85 Ill. App.2d 98, 229 N.E.2d 282 and Cimino v. Cimino, 93 Ill. App.2d 412, 236 N.E.2d 299. • 3, 4 According to the findings of the trial court, plaintiff does not have sufficient financial ability to pay her attorney's fees and costs, and defendant does have sufficient assets and earning capacity to pay the additional attorney's fees and costs.