Opinion
Nos. 2-03-1132, 2-03-1143 cons
November 19, 2004.
Appeal from the Circuit Court of Lake County, No. 00-D-254, Honorable John G. Radosevich, Judge, presiding.
The marriage of petitioner, Thomas Beeler, and respondent, Jennifer Beeler, was dissolved on September 22, 2000. The parties had two children during their marriage: Honor, born February 8, 1992, and Tessa, born November 24, 1993. In 2002, the parties began disputing issues relating to the children's vacation schedules and summer camps, resulting in various court orders. Respondent and her attorney's law firm, appellant Kalcheim, Schatz Berger (KSB), sought attorney fees from petitioner for the representation of respondent in these matters. Respondent and KSB appeal the trial court's September 2003 order requiring petitioner and respondent to pay half of Honor's summer camp expenses and assessing and apportioning attorney fees. We affirm.
I. BACKGROUND
The parties' dissolution judgment incorporates their marital settlement agreement (MSA) and joint parenting agreement (JPA). The MSA provides for the children's expenses as follows. Petitioner will pay the children's private school tuition and related expenses, and their medical expenses. He will also pay $4,500 per month in child support. Respondent will pay for the children's "activities (including but not limited to dance, horseback riding, etc.), including but not limited to all fees, lessons, equipment, clothing, travel, etc." The children will not be enrolled in or withdrawn from an activity by one party without the consent of the other party, and, in case of a dispute, the parties will submit the matter to mediation before seeking a court resolution. The parties are also to equally split the costs of "up to four (4) weeks of a local summer day camp" charging fees similar to those of two named day camps.
The JPA provides, in relevant part, as follows. The parties have joint legal custody of the children. The girls will alternate spring break and Easter vacation time with each parent. During the girls' summer vacation, each parent will have two nonconsecutive nine-day periods with them, after the children have completed their month-long summer day camp sessions. Each party is to notify the other of summer vacations plans by April 1, with each party having priority in alternating years. The parties will reach joint decisions regarding the girls' summer camp activities by January 31 of each year, as such activities fill up quickly. In the event that they cannot agree, either party can petition the court. They will mediate any disputes regarding the JPA, and equally share the mediation costs, before seeking a court resolution. However, the parties are not required to mediate the summer camp issue if a joint decision is not reached before January 31 of that year.
Many of the parties' disputes overlap in their timing, but for the sake of clarity we have separated them into distinct components.
A. Spring Break 2002
The first dispute relevant to this appeal arose in January 2002, when the parties realized that the girls' school had, for the first time, combined spring and Easter breaks into one 10½-day vacation. Respondent had already made arrangements to take the children to Florida for one week. She suggested that petitioner have visitation with the girls for the remaining 2½ days of their break, instead of the five days that would typically constitute Easter break, and that he could have three additional days during the school year. Petitioner disagreed and suggested that this issue, along with 11 other parenting issues, be submitted to a "parenting coordinator" for resolution. Respondent agreed but suggested framing the issues differently. She also made changes to the proposed order governing the submission of the issues to the mediator. Petitioner disagreed with the proposed changes to the order and stated that unless an agreement could be reached by February 1, 2002, "further efforts to come to an agreement as to the use of the Parenting Coordinator appear counter-productive."
On February 21, 2002, respondent petitioned to confirm her spring break parenting time. Petitioner stated that he would allow the children to go to Florida if he could receive respondent's five-day Thanksgiving vacation time. Petitioner also filed a response requesting compensatory time in one continuous block. The parties participated in mediation but were unable to agree. Petitioner then suggested that he receive five more days of summer vacation time with the children, to be tacked on to one of his nine-day vacation periods with them. Petitioner suggested that the five days could be taken out of respondent's summer vacation time.
On March 14, 2002, the trial court ruled that the children could vacation with respondent in Florida and that petitioner would receive an additional five days with them over the summer, independent of respondent's allotted summer vacation time.
B. Summer Camp 2002
In January 2002, the parties also began discussing the girls' proposed summer activities. They could not reach a final agreement by January 31, the deadline imposed by the JPA for resolving summer activity issues. On February 21, 2002, respondent filed a petition that stated, as amended, that respondent would like the children to attend the Lake Bluff Park District Camp for one four-week session. She asked that petitioner be ordered to pay half of the expenses, including the extra charges for swimming and tennis. In petitioner's reply, he alleged that respondent had "failed to act in good faith in imparting and communicating to [him] the necessary information which would have facilitated the parties discussing meaningful choices to make on behalf of the children." He agreed that the children would attend the Lake Bluff camp and stated that he would pay $395, one half of the costs. He argued that, under the JPA, respondent should pay the camp's tennis and swimming activity fees.
Respondent subsequently withdrew her request for tennis expenses, but the parties still disputed the $84 swimming activity fee. On March 14, 2002, the trial court ruled that the children could attend the Lake Bluff camp, including the swimming program for Tessa and excluding the swimming program for Honor, and that pursuant to the JPA and the MSA, the parties were to divide the costs. The order does not specifically mention the swimming fee.
C. Summer Camp 2003
In October and November 2002, the parties began discussing Honor's plans for the following summer. Honor was most interested in "Camp Nicolet," an overnight camp that cost $2,550 for a three-week session, including a horseback riding fee. Respondent sent petitioner information about overnight camps that she had researched, but the parties dispute whether she did so in a timely manner.
On December 11, 2002, petitioner suggested that the overnight camp issue be submitted to a parenting coordinator, along with issues that would require modifying the JPA. In particular, petitioner wanted to be able to schedule a nine-day summer vacation period adjacent to already scheduled parenting time, change the parenting rotation between the academic and nonacademic year, and have parenting time with one child even if the other child had a different schedule. Respondent wanted to decide on Honor's camp selection before resolving the other issues. She declined to use a parenting coordinator and suggested a mediator and a pretrial conference. Petitioner insisted on considering the issues together. He also contended that, under the JPA, his obligation for day camp, rather than overnight camp, was $1,155. He agreed to pay one half of Camp Nicolet's basic camp fee or $1,155, whichever was less.
By January 2003, the parties agreed that Honor would attend Camp Nicolet, and that they would modify the JPA to state that a parent would have regular parenting time with one child even if the other child had a different schedule. On January 16, 2003, they obtained an order memorializing this agreement. However, they still disputed the division of the camp's costs.
On January 21, 2003, respondent wrote to petitioner and suggested Lake Forest or Lake Bluff for Tessa's day camp. A few days later, petitioner said that Lake Bluff was acceptable.
On January 27, 2003, respondent filed a petition to require petitioner to pay all of Honor's overnight camp costs, and she also sought approval for Tessa to attend day camp at either Lake Bluff or Lake Forest. She asked that the parties split the cost of Tessa's day camp. The parties began mediating Honor's camp fees and related issues, but no agreement was reached. The parties accused each other of refusing to further mediate certain issues. On April 21, 2003, petitioner agreed to pay one half of Honor's camp fees, subject to the trial court's division of these fees. On September 9, 2003, the trial court ruled that the parties were to evenly split Honor's camp fees and the cost of certain camp supplies. There does not appear to be a court order addressing the issue of Tessa's day camp.
D. Summer Vacation 2003
As mentioned, in December 2002 petitioner suggested amending certain JPA provisions. On January 27, 2003, respondent petitioned for a determination of the parties' respective summer vacation time with the children. She alleged that she could not choose her two nine-day vacation periods because petitioner was seeking to change the JPA's parenting and vacation time provisions. On February 20, 2003, the trial court granted petitioner's motion to dismiss this claim as premature, as the JPA allowed the parties until April 1 to choose their summer vacation dates. On March 19, 2003, following mediation, the parties agreed to a summer vacation schedule, and respondent signed a memo approving the dates. On April 10, 2002, she filed a petition for the entry of an order designating the parties' summer vacation times. On June 24, 2003, the trial court entered an order memorializing the parties' choices of dates. On June 26, 2003, respondent filed an amended petition asking that the trial court enter an order confirming the same vacation dates. She also requested attorney fees.
E. Attorney Fees
Though KSB filed attorney fees petitions at various times, we mention only some of the petitions. On March 14, 2002, it petitioned for attorney fees under sections 503(j) and 508(a) of the Illinois Marriage and Dissolution of Marriage Act (the Act) ( 750 ILCS 5/503(j), 508(a) (West 2002)). It alleged that from January 1 to March 12, 2002, when the "Spring Break 2002" and "Summer Camp 2002" issues were being resolved, respondent incurred $3,776.77 in attorney fees. The matter was continued for several months. On August 14, 2002, KSB amended its fee petition to show a balance of $10,403.84, as of July 23, 2002. On January 9, 2003, KSB filed a petition reflecting $14,017.34 in fees.
On April 29, 2003, petitioner moved for summary judgment on the issue of respondent's attorney fees, which had reached $41,875.70. He argued that respondent could pay her own attorney fees and that the fees were unreasonable. The trial court denied the motion. On June 20, 2003, respondent petitioned for attorney fees of $54,152.34.
Respondent's final bill reflected fees of $73,490.82 as of June 26, 2003, which KSB delineated as follows: (1) $6,939.37 for "Spring Break 2002" and "Summer Camp 2002" issues; (2) $7,424.16 for "Summer Camp 2003" issues; (3) $5,834.16 for "Summer Vacation 2003" issues; (4) $15,184.38 for a "financial disparity analysis"; (5) $14,520 for obtaining and responding to discovery; (6) $14,085 for trial preparation; (7) $3,182.50 for responding to petitioner's summary judgment motion; (8) $790 for ancillary matters, including mediation; and (9) $2,237.32 for costs. We note that the specified amounts add up to only $70,196.89.
KSB's evidentiary exhibit shows over 237 hours of work by KSB employees. Michael Kalcheim did much of the work, approximately 104 hours, at rates of $375 per hour for office time and $425 per hour for court time. Jan Kowalski, a paralegal, spent about 52 hours on the case, at rates of $150 to $190 per hour.
Petitioner spent a total of $55,854.75 in resolving the disputed issues. He paid his attorney $8,016 for January 8, 2002, to May 12, 2002. He paid his substitute counsel $41,907 for April 24, 2002, to June 12, 2003. Petitioner also paid $5,931.75 in expert fees for September 2002 through September 2003.
F. Parties' Finances
Before their marriage, the parties signed a premarital agreement that provided for five years' of maintenance for respondent. She receives $7,083 a month in maintenance, which will expire in September 2005. Respondent worked part-time in 2001 and began law school in 2002. In May 2003, after her first year of law school, she had assets worth $141,715.53, $12,500 of which was in the children's custodial accounts. Respondent had an additional $80,000 of equity in her home and $62,000 in her Individual Retirement Account (IRA). She anticipated that after law school graduation, she will have spent $127,000 on law school expenses. This sum includes $1,600 per month for child care. Respondent will have to start repaying her law school loans six months after she graduates.
On March 4, 2003, petitioner confirmed respondent's allegation that his estate was worth over $5 million. Trial exhibits showed that his net assets totaled over $6 million.
G. Trial Court's Ruling
On June 26, 2003, the trial court began hearing the issues of contribution toward Honor's 2003 overnight summer camp expenses and respondent's attorney fees. After petitioner and respondent had begun testifying, the parties entered an agreed order stating as follows. There would be no further testimony, and the parties would submit all relevant documentary evidence, including pleadings, responses, depositions, and correspondence between the parties and between their attorneys, to the trial court. This would allow the trial court to expeditiously render a decision and would minimize litigation costs.
The parties submitted over 1,000 pages of documents. Petitioner's submissions included the deposition of an expert who concluded that respondent's petitions, and the resulting attorney fees, were unnecessary. Another expert concluded that respondent had the ability to pay her own attorney fees.
On September 9, 2002, the trial court ruled as follows. It had heard the parties' arguments and viewed the documents provided. On the issue of respondent's attorney fees, "considering the novelty of the issues, the result obtained, the abilities of the attorneys, the number of people who worked on the file and section 508, 503 and 504 of [the Act], the sum of $70,000+ sought is not reasonable and that the reasonable sum at best is $10,000." Petitioner was to pay $6,000 of this amount. The parties were to equally divide the costs of Honor's summer camp fees and certain camp supplies. Respondent and KSB timely appealed the trial court's decision.
II. ANALYSIS A. Attorney Fees
In a dissolution of marriage proceeding, attorney fees are primarily the obligation of the party for whom the services are rendered. In re Marriage of Schneider, 343 Ill. App. 3d 628, 637 (2003). However, section 508(a) of the Act allows the trial court to require one party to pay "a reasonable amount" for the other party's attorney fees and costs in dissolution and postdissolution proceedings. 750 ILCS 5/508(a) (West 2002). In determining whether to award attorney fees, the trial court should consider the circumstances of the judicial proceedings and which spouse precipitated the need for the fees. In re Marriage of Bowlby, 338 Ill. App. 3d 720, 730 (2003).
A trial court's award of attorney fees in a postdissolution proceeding is within the trial court's sound discretion and will not be disturbed absent an abuse of discretion. 750 ILCS 5/508(c)(3) (West 2002); In re Marriage of Devick, 335 Ill. App. 3d 734, 742 (2002). A trial court abuses its discretion when its acts arbitrarily, without conscientious judgment, or, in view of all of the circumstances, exceeds the bounds of reason and ignores recognized principles of law, resulting in substantial injustice. In re Marriage of Marsh, 343 Ill. App. 3d 1235, 1240 (2003).
We note that in this case, the parties chose to discontinue the hearing and have the trial court make a decision based on documentary evidence, which could support de novo review. However, an abuse of discretion standard is still more appropriate here. The trial judge who rendered the decision was first assigned to the case in January 2003, making him very familiar with the "Summer Camp 2003" and "Summer Vacation 2003" issues. This experience most likely aided him in determining appropriate attorney fees. Furthermore, the issue of attorney fees is one of the few issues in which a trial judge may rely on his own experience, along with the pleadings and affidavits on file. In re Marriage of Brophy, 96 Ill. App. 3d 1108, 1118 (1981). As such, we review the trial court's decision for an abuse of discretion.
We first address petitioner's argument that respondent was not entitled to any attorney fee contribution because she failed to prove the existence of a consensual fee obligation to KSB for postjudgment matters. For a reviewing court to consider a ruling that is adverse to an appellee, the appellee must file a cross-appeal raising the issue. Paxton-Buckley-Loda Education Ass'n, IEA-NEA v. Illinois Educational Labor Relations Board, 304 Ill. App. 3d 343, 355 (1999). Here, petitioner has not appealed the trial court's ruling that respondent was entitled to attorney fees. Thus, we examine this issue only as it relates to petitioner's argument that he should not be required to pay attorney fees greater than the $6,000 ordered by the trial court.
Petitioner points out that respondent, in her deposition, testified that she never had a written fee arrangement with KSB and had not paid anything for the 2002 and 2003 proceedings. After Kalcheim's deposition, he produced the "Engagement Agreement" used to represent respondent in the initial dissolution proceedings. The agreement states that it "will terminate when KSB's representation of [respondent] ends." Petitioner contends that respondent has failed to prove the existence of a consensual fee obligation for postjudgment matters. However, petitioner cites no authority for the proposition that a separate agreement for postjudgment matters is necessary, and thus he has waived this issue. Official Reports Advance Sheet No. 21 (October 17, 2001), R. 341(e)(7), eff. October 1, 2001; La Salle Bank, N.A. v. DeCarlo, 336 Ill. App. 3d 280, 287 (2003). We therefore proceed to determine whether the trial court abused its discretion in ruling that a "reasonable" amount of fees was $10,000. The attorney fees award should be fair to all parties and should reflect compensation for only reasonable and necessary services. In re Marriage of Powers, 252 Ill. App. 3d 506, 508 (1993). An attorney has the burden of establishing the value of his services. In re Marriage of Shinn, 313 Ill. App. 3d 317, 323 (2000). The amount of "reasonable" fees depends on (1) the skill and standing of the attorney; (2) the nature of the case and the issues' complexity; (3) the importance of the subject matter; (4) the responsibility involved in the case's management; (5) the time and labor required; (6) the customary fee in the community; and (7) the benefit to the client. Shinn, 313 Ill. App. 3d at 325. We examine each of these factors in turn.
1. Attorney's Skill and Standing
KSB submitted Michael Kalcheim's resume, which details Kalcheim's extensive experience in family law. Petitioner does not challenge Kalcheim's competency, but points out that there is no evidence regarding the backgrounds of KSB's 11 other attorneys and 1 paralegal who worked on the case.
2. Case's Nature and Issues' Complexity
The complexity of the issues presented is a significant factor in determining what constitutes a reasonable award of attorney fees. See Brophy, 96 Ill. App. 3d at 1120. KSB admits that the issues involved here "were not complex" and that over $70,000 in attorney fees is "an enormous amount of money spent to resolve issues which should have been fairly easily resolved." However, it contends that petitioner's refusal to discuss, mediate, and resolve these issues in good faith caused respondent to incur these fees. We address the parties' litigiousness later in this decision.
3. Importance of Subject Matter
The disputed issues in this case were minor parenting matters compared to serious issues like child custody. Furthermore, the parties disagreed as to the division of expenses which were, compared to the attorney fees incurred, extremely minimal. For example, the disputed swimming activity fee for "Summer Camp 2002" was $84, and Honor's Camp Nicolet costs were $2,550.
4. Responsibility Involved in the Case's Management
As the disputed issues were simple and not of great importance, any significant responsibility in the case's management involved only procedural issues.
5. Time and Labor Required
As mentioned, appellants contend that respondent incurred her attorney fees as a direct result of petitioner's refusal to discuss, mediate, and resolve the disputed issues. Appellants maintain that respondent had to file the majority of the petitions to resolve situations, as petitioner was using his greater wealth to cause respondent to either incur attorney fees or "submit to his coercive post-decree litigation tactics." Petitioner, on the other hand, argues that respondent's motive in filing multiple petitions was to cause him to incur attorney fees to defend himself while also requiring him to pay respondent's attorney fees. Petitioner maintains that respondent hoped to make it so expensive for him to contest further actions that he would give in to respondent's wishes.
Both parties contributed to the failure to resolve the camp and vacation issues in a timely manner. While respondent claims that she had to file the majority of the petitions, some of the claims for relief were clearly unnecessary. For example, respondent sought court approval for Tessa to attend either Lake Forest or Lake Bluff day camp during the summer of 2003, and a court order requiring the parties to evenly split the camp costs. However, a few days earlier, petitioner agreed that Tessa could attend Lake Bluff day camp, and he never disputed that he was responsible for half of the costs.
Furthermore, in January 2003, respondent petitioned the court to determine the parties' summer vacation dates despite the fact that, under the JPA, the parties had until April 2003 to choose their dates. The trial court dismissed this request as premature. After mediation, the parties agreed to summer vacation dates. Still, a few weeks later, respondent petitioned for the entry of an order designating the parties' agreed upon summer vacation times. After the court entered this order, respondent filed an amended petition asking the court to confirm the exact same vacation dates.
Our purpose in pointing out these unnecessary claims for relief is not to place the entire responsibility for the drawn-out litigation, and resulting attorney fees, on respondent. Rather, they, along with the entire record, show that respondent's attorney fees were not all due to petitioner's litigiousness, because respondent was at least as litigious as petitioner.
We additionally note the following: (1) KSB's $14,520 in discovery costs mostly related to ascertaining petitioner's finances, but these costs were incurred after petitioner had already acknowledged, in writing, that his estate was worth over $5 million; (2) KSB charged $14,085 for "trial preparation" for the relatively simple issues of Honor's overnight camp expenses and the firm's pending fee petitions; (3) KSB charged $15,184.38 for matters relating to what they characterize in their brief as a "financial disparity analysis"; and (4) only $20,197.69 of KSB's total charges was spent on resolving the parenting issues.
6. Customary Fee in the Community
As stated, Kalcheim spent over 100 hours on this case at rates of $375 to $425 per hour. However, KSB did not submit any evidence as to the customary fee in the community. In determining reasonable attorney fees, the trial court could use the knowledge it had acquired in the discharge of professional duties. In re Marriage of Pitulla, 202 Ill. App. 3d 103, 113 (1990).
7. Benefit to Client
Neither party "won" the majority of claims. For the "Spring Break 2002" issue, respondent succeeded in being allowed to take the children to Florida. While petitioner did receive five continuous days of compensatory time, it was not taken out of respondent's vacation time. For the "Summer Camp 2002" issue, the only disputed claim was the swimming fee, which the order does not specifically apportion to either party. In the "Summer Camp 2003" proceedings, respondent sought to have petitioner pay all of Honor's camp costs, but the trial court ruled that the parties were to equally split these costs. For "Summer Vacation 2003," the parties obtained the vacation schedules they had agreed to following mediation.
8. Trial Court's $10,000 Award
In sum, the parties disputed minor parenting issues, and the attorney fees resulted from the failure of both parties to agree in a timely manner and without the involvement of outside parties. KSB did not submit any evidence that its fees were customary or that respondent needed Kalcheim's expertise, and related costs, for the over 100 hours of work that he billed. Based on all the factors discussed, we conclude that the trial court did not abuse its discretion in determining that a "reasonable" amount of attorney fees was $10,000.
KSB argues that the trial court failed to award it attorney fees for the costs and time spent preparing the contribution petitions and costs. See Powers, 252 Ill. App. 3d at 512-13 (attorney fees under the Act include time spent in preparing contribution petitions). However, there is no evidence that the $10,000 award does not include "reasonable" fees for preparing such petitions and "reasonable" costs.
KSB additionally argues that the trial court erred in considering the number of people who worked on the file as a factor in the reasonableness of the fees. KSB argues that it used many associates and a paralegal in routine matters so as to minimize fees. KSB recognizes that the number of people working on a case could be a consideration in the degree of responsibility in the case's management. We agree that the use of numerous employees is not necessarily negative. Still, our review of all of the relevant factors shows that the trial court did not abuse its discretion in awarding $10,000 in fees.
Finally, KSB argues that the amount that petitioner spent in attorney fees supports the reasonableness of its own fees. Petitioner spent $49,923 on attorney fees during the relevant period, exclusive of expert fees. This is about 32% less than KSB's fees. More significantly, the reasonableness of petitioner's fees is not at issue in this case.
9. Petitioner's Contribution
We next examine appellants' argument that the trial court erred in requiring petitioner to contribute only $6,000 toward the fees. As stated, section 508(a) of the Act allows the trial court to require one party to pay all or part of the other party's attorney fees in dissolution and postdissolution proceedings. 750 ILCS 5/508(a) (West 2002). The trial court must base such an award on the criteria for marital property division ( 750 ILCS 5/503(d) (West 2002)) and, if maintenance has been awarded, the criteria for maintenance ( 750 ILCS 5/504(a) (West 2002)). 750 ILCS 5/503(j)(2) (West 2002). These criteria include the parties' net assets, needs, and future earning potential. 750 ILCS 5/503(d), 504(a) (West 2002).
The party seeking attorney fees has the burden of establishing an inability to pay those fees and the ability of the other spouse to do so. Schneider, 343 Ill. App. 3d at 637. Financial inability to pay the fees exists where the payment would strip a party of his or her means of support and undermine the party's economic stability, but the party need not show destitution. In re Marriage of Carpel, 232 Ill. App. 3d 806, 832 (1992). Still, the ability to pay does not mean the ability to pay without pain or sacrifice. Schneider, 343 Ill. App. 3d at 638.
Appellants argue that "[c]learly, [respondent] is unable to pay the balance of her attorneys' fees in the amount of $67,304 ($73,304 less $6,000 award)." Appellants misconstrue the issue, as the question is whether respondent can pay $4,000, which is the remainder of the $10,000 attorney fee award deemed "reasonable" by the trial court.
Appellants also contend that, after considering respondent's law school expenses, she effectively has only $14,000. However, while appellants include respondent's future law school expenses in this computation, they do not include the over $7,000 a month in maintenance that respondent will receive until September 2005. They also ignore the fact that respondent testified that she has to start repaying her law school loans six months after graduation. Therefore, respondent can pay these loans over a period of time as she earns money as an attorney, rather than in one lump-sum payment.
In May 2003, respondent had $129,215.53 in assets, exclusive of the children's custodial accounts, her IRA, and her home equity. Based on these assets, plus the substantial maintenance payments, the trial court did not abuse its discretion in ordering her to pay $4,000 of her attorney fees, notwithstanding respondent's law school expenses.
B. Honor's 2003 Summer Camp Expenses
Finally, respondent argues that the trial court failed to consider the parties' financial disparity in holding her responsible for half of Honor's 2003 summer camp expenses. A trial court's decision relating to a child's expenses will not be disturbed absent an abuse of discretion. See In re Marriage of Florence, 260 Ill. App. 3d 116, 122 (1994) (trial court did not abuse its discretion in ordering father to pay, in addition to child support, a portion of child's instrument cost).
In the JPA, the parties agreed to equally share the costs of summer day camp. The trial court presumably extended this provision to overnight camp, and we conclude that it did not abuse its discretion in doing so.
C. Petitioner's Motion
Ordered taken with this case was petitioner's motion for sanctions under Supreme Court Rule 375 (155 Ill. 2d R. 375). Petitioner argues that he is entitled to sanctions under Rule 375(a) (155 Ill. 2d R. 375(a)) because appellants failed to include his trial exhibits in the record on appeal. Although petitioner argues that this failure was willful, he has no convincing evidence to support this claim.
We do agree that appellants behaved improperly after petitioner sought to supplement the record. After petitioner pointed out the deficiency in the record, the parties entered an agreed order in the trial court, stating that petitioner's exhibits "may properly be made part of the record on appeal." However, when petitioner moved to supplement the record on appeal, appellants objected to the majority of exhibits as being duplicative. Though we do not condone appellants' behavior, we have already awarded petitioner fees and costs associated with supplementing the record on appeal, and we decline to further sanction appellants.
Petitioner also argues that appellants should be sanctioned for filing an appeal that is frivolous and not in good faith, in violation of Rule 375(b) (155 Ill. 2d R. 375(b)). An appeal is frivolous if "it is not reasonably well grounded in fact and not warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law." 155 Ill. 2d R. 375(b). An appeal is not in good faith where its primary purpose is to delay, harass, or cause unnecessary expense. 155 Ill. 2d R. 375(b). A Rule 375 sanction should be imposed only in the most egregious of circumstances. See Janisco v. Kozloski, 261 Ill. App. 3d 963, 968 (1994). Appellants' arguments were not so lacking in merit as to justify sanctions, nor is there any evidence that appellants' primary purpose was to cause petitioner to incur additional attorney fees. Accordingly, we deny petitioner's motion.
D. Conflict of Interest
Though not raised on appeal, the issue of appellants' joint representation concerns this court. Both respondent and KSB are represented by the same attorney on appeal even though their interests potentially conflict. For example, it was in KSB's interest to obtain a ruling that the trial court abused its discretion in awarding just $10,000 in attorney fees and that $73,490.82 was a reasonable amount of fees. However, such a ruling could have been adverse to respondent, as we might still have held that the trial court did not err in apportioning 40% of the fees to respondent. Respondent would then be liable to KSB for $29,396.28, rather than just the $4,000 she owed under the trial court's decision. As such, it was contrary to respondent's interest to challenge the trial court's ruling that $10,000 was a reasonable amount of attorney fees.
Rule 1.7 of the Illinois Rules of Professional Conduct (134 Ill. 2d R. 1.7) provides that a lawyer shall not represent a client if the representation will be directly adverse to another client, or if the representation may be materially limited by the lawyer's responsibilities to another client, unless (1) the lawyer reasonably believes the representation will not affect the relationship with the other client, and (2) each client consents after disclosure. 134 Ill. 2d Rs. 1.7(a), (b). An attorney representing multiple clients in a single matter must also explain the implications of the common representation and the advantages and risks involved. 134 Ill. 2d R. 1.7(c). In this case, there is no indication that appellants' attorney did not make the necessary disclosures and obtain appellants' consent. We point out the conflict of interest only to remind practitioners of the potential perils involved with joint representation.
III. CONCLUSION
For the foregoing reasons, the judgment of the Lake County circuit court is affirmed.
Affirmed.
O'MALLEY, P.J., and GILLERAN JOHNSON, J., concur.