Opinion
No. 2-14-0437
07-21-2015
In re MARRIAGE OF ELLEN MICHELI, Petitioner-Appellee and JOHN MICHELI, 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 Lake County.
No. 09-D-1256
Honorable Charles D. Johnson, Judge, Presiding.
JUSTICE BURKE delivered the judgment of the court.
Justices Hutchinson and Spence concurred in the judgment.
ORDER
¶ 1 Held: The trial court did not abuse its discretion in awarding ex-wife $17,500 for attorney fees and costs incurred during appeal of marriage dissolution judgment.
¶ 2 Following a judgment of marriage dissolution, respondent, John Micheli, appealed, and petitioner, Ellen Micheli, cross-appealed. In re Marriage of Micheli, 2014 IL App (2d) 121245 (Micheli I). While the appeal and cross-appeal were pending, Ellen petitioned for a contribution to her appellate attorney fees and costs, which she claimed were more than $35,000 to date. Ellen stated that half were incurred in response to John's appeal. Accordingly, the trial court ordered John to pay $17,500 toward Ellen's appellate fees, and John appeals.
¶ 3 John argues that the trial court abused its discretion in awarding Ellen fees because (1) the law of the case establishes that she can afford to pay her own fees and (2) he was improperly denied the opportunity to introduce evidence in support of his motion to reconsider. In his reply brief, John argues that, even if Ellen is entitled to fees in some amount, the $17,500 award is excessive. We affirm.
¶ 4 I. BACKGROUND
¶ 5 The judgment of dissolution was entered on June 28, 2012. Following various postjudgment motions, John filed a notice of appeal on November 7, 2012, and Ellen cross-appealed on November 26, 2012. On August 5, 2013, while the appeal and cross-appeal were pending in this court, Ellen petitioned the trial court for attorney fees under section 508(a) of the Illinois Marriage and Dissolution of Marriage Act (Dissolution Act) (750 ILCS 5/508(a) (West 2012)). The petition asserted that John earned a substantial annual income while Ellen's primary source of income was maintenance from John. Ellen stated that she lacked the financial means to pay her own attorney fees and costs incurred in defense of John's appeal. Ellen claimed $35,491 in appellate attorney fees and costs, through July 29, 2013. The petition conceded that about half the fees and costs were related to John's appeal and the other half related to her cross-appeal.
¶ 6 On August 26, 2013, John filed a response to the petition, generally denying Ellen's claim that she lacked the financial ability to pay her own fees and costs. John pointed out that he paid Ellen at least $230,000 in maintenance, "bonus" maintenance, and stock option proceeds from January 2013 through July 2013. John described the amount of Ellen's appellate fees and costs as "unconscionable."
¶ 7 The trial court heard Ellen's fee petition on November 15, 2013. The record contains a written order but not a transcript of the hearing. The order reflects that Ellen was present with counsel, and John's counsel appeared, but John did not personally appear. The court ordered that "John shall contribute the sum of $17,500 to Ellen's appellate fees within 60 days hereafter."
¶ 8 On December 12, 2013, John filed a motion to reconsider, arguing that Ellen could afford to pay her own fees and was unduly litigious. John claimed that the order to pay $17,500 in appellate fees and costs was inconsistent with the dissolution judgment, which ordered John to contribute a "de minimus" sum of $5,000 to Ellen's substantial predecree fees and costs. In a written response, Ellen argued that the amount of fees and costs incurred before the judgment is not relevant to the interim award of appellate fees. Ellen also asserted a disparity of income between the parties, which allegedly was widened further by John's new spouse earning a substantial income.
¶ 9 On April 7, 2014, the trial court entered a written order, acknowledging that it had failed to make a proper finding at the November 15, 2013, hearing regarding Ellen's ability to pay her own appellate fees and costs. On that limited basis, the court granted John's motion to reconsider. However, the court also found that, upon reconsideration, Ellen could not pay her own appellate fees and costs to defend John's appeal. The court again awarded Ellen $17,500 under section 508(a) of the Dissolution Act, nunc pro tunc to November 15, 2013, which was the date of the original order. The April 7, 2014, written order contains an express finding under Supreme Court Rule 304(a) (eff. Feb. 26, 2010) that there was no just reason for delaying either enforcement or appeal or both. John timely appealed on May 5, 2014.
¶ 10 II. ANALYSIS
¶ 11 John appeals from the orders awarding Ellen $17,500 in appellate attorney fees and costs and denying his motion to reconsider the award. John argues that the trial court abused its discretion because (1) the law of the case establishes that Ellen can afford to pay her own appellate fees and (2) he was improperly denied the opportunity to support his motion to reconsider by introducing evidence of Ellen's financial condition.
¶ 12 Although attorney fees are generally the responsibility of the party who incurred them, section 508(a) of the Dissolution Act permits a trial court to order a party to contribute to the other party's reasonable attorney fees in light of the parties' respective financial situations. 750 ILCS 5/508(a) (West 2012); Micheli I, 2014 IL App (2d) 121245, ¶ 45. Section 508(a) provides that attorney fees and costs may be awarded to an attorney in connection with the attorney's representation of his client in the original marriage dissolution and predecree proceeding, such as in "[t]he maintenance or defense of any proceeding under this Act" (750 ILCS 5/508(a)(1) (West 2012)), and in postdecree proceedings, such as in "[t]he enforcement or modification of any order or judgment under this Act," and in the prosecution or defense of claims on appeal (750 ILCS 5/508(a)(2), (a)(3), (a)(3.1) (West 2012)). The attorney can obtain a judgment for attorney fees from the attorney's own client or, pursuant to a petition for contribution, from an opposing spouse. 750 ILCS 5/508(a) (West 2012).
¶ 13 We review for an abuse of discretion a trial court's award of attorney fees under section 508(a) of the Dissolution Act (750 ILCS 5/508(a) (West 2012)). Micheli I, 2014 IL App (2d) 121245, ¶ 44. A trial court abuses its discretion when it 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. Micheli I, 2014 IL App (2d) 121245, ¶ 44.
¶ 14 John relies on the doctrine of the law of the case to refute the award, but his reliance on the doctrine is misplaced. The law-of-the-case doctrine limits relitigation of a previously decided issue in the same case. Village of Ringwood v. Foster, 2013 IL App (2d) 111221, ¶ 33 (citing Krautsack v. Anderson, 223 Ill. 2d 541, 552 (2006)). The doctrine encompasses not only the reviewing court's explicit decisions, but those issues decided by necessary implication. Reich v. Gendreau, 308 Ill. App. 3d 825, 829 (1999). The doctrine applies to questions of law on remand to the trial court as well as on subsequent appeals. Radwill v. Manor Care of Westmont, IL, LLC, 2013 IL App (2d) 120957, ¶ 8.
¶ 15 Among the contested issues in Micheli I was attorney fees. The trial court had initially ordered John to contribute $10,000 to Ellen's predecree attorney fees, but the court later reduced the amount by $5,000 after giving John credit for a payment to Ellen for the child representative's fee. On cross-appeal, Ellen argued that John should pay more for her attorney fees or that, at a minimum, John should not receive full credit for the payment, which was made from a marital account. We held that the original contribution order was not an abuse of discretion but that the court potentially erred in crediting John $5,000 for the payment. We allowed the trial court to address the potential error on remand. Micheli I, 2014 IL App (2d) 121245, ¶ 51. The $10,000 attorney fee award to Ellen and subsequent $5,000 credit to John are not at issue in this appeal, and neither party has directed this court to any order entered on remand that resolves the issue.
¶ 16 Citing the attorney fee issue in Micheli I, John argues that, when the trial court awarded Ellen appellate fees, it "abused its discretion by ignoring its previous finding of Ellen's ability to pay her own attorney fees." John argues that (1) Ellen had spent $54,000 more than he did for predecree fees; (2) Ellen had been found to have spent too much in predecree fees; (3) by the
time the judgment was entered, Ellen had received $135,000 from the sale of stock; and (4) since the judgment was entered, Ellen had received $60,000 in "bonus" maintenance.
¶ 17 The law-of-the-case doctrine did not compel the trial court to deny Ellen's petition for appellate fees. First, her petition does not amount to a relitigation of a previously decided issue, because the $10,000 attorney fee award to Ellen and subsequent $5,000 credit to John are related to predecree expenses, which are not at issue in this appeal. The extent to which Ellen could pay her predecree expenses does not necessarily implicate her ability to pay the expenses related to the postdecree appeal and cross-appeal because her financial condition could have changed in the interim.
¶ 18 Second, even if the law-of-the-case doctrine applied, our ruling in Micheli I regarding predecree fees was a mixed result. Although we affirmed the trial court's decision that Ellen must pay most of her predecree expenses, we also affirmed the court's finding that she was unable to pay at least a portion of those expenses. Micheli I, 2014 IL App (2d) 121245, ¶ 48.
¶ 19 On appeal, John makes several factual claims regarding Ellen's ability to pay her own appellate fees, but we lack an adequate record to test the veracity of John's assertions. The record shows that the court heard and granted Ellen's petition on November 15, 2013. The record lacks a report of proceedings from the hearing, but the parties' arguments indicate that some information or evidence was presented. At the hearing on the motion to reconsider, John's counsel stated that the information was presented in non-evidentiary form, while Ellen's counsel states on appeal that documentary evidence and testimony was presented. We simply cannot review what information was presented or how it was presented at the November 15, 2013, hearing, because the record does not contain a report of proceedings or a suitable substitute.
¶ 20 Under Foutch v. O'Bryant, 99 Ill. 2d 389 (1984), John, the appellant, has the burden to present a sufficiently complete record of the proceedings at trial to support a claim of error; and in the absence of such a record on appeal, we presume that the order entered by the trial court conformed with the law and had a sufficient factual basis. See Foutch, 99 Ill. 2d at 391-92. In the absence of a report of proceedings, John could have easily remedied the deficiency in the record. In this court, John could have filed a bystander's report under Illinois Supreme Court Rule 323(c) (eff. Dec. 13, 2005) or an agreed statement of facts under Rule 323(d) (eff. Dec. 13, 2005). Either could have facilitated a review by providing the reasons for the trial court's ruling, but John has supplemented the record with neither.
¶ 21 The lack of a transcript from the November 15, 2013, hearing does not end our inquiry, however, as the trial court commented on the appellate fee award when hearing John's motion to reconsider on April 7, 2014. The transcript from the April 7, 2014, hearing shows that the court considered the information presented at the November 15, 2013, hearing in finding Ellen unable to pay about half her appellate fees and making the new order nunc pro tunc to that date.
¶ 22 John claims the award must be reversed because he was denied an evidentiary hearing on Ellen's ability to pay. If one of the parties requests a hearing on whether one spouse's attorney should be paid by the other spouse, that party is entitled to a hearing on the matter. In re Marriage of Blazis, 261 Ill. App. 3d 855, 870 (1994). However, if a party does not request a hearing before the trial court on attorney fees, then the right to that hearing is forfeited, and the court may enter an order based solely upon the submitted fee petitions and affidavits. Blazis, 261 Ill. App. 3d at 871.
¶ 23 In this case, the record does not show that John requested an evidentiary hearing before the court awarded Ellen $17,500 for appellate fees and costs; and therefore, he has forfeited his
right to such a hearing. John did not request an evidentiary hearing in his written response to Ellen's fee petition, his motion to reconsider, or during any argument prior to the court's award of appellate fees. In light of his pleadings and without an adequate record of the November 15, 2013, hearing, John can offer no indication that counsel demanded and was denied an evidentiary hearing on Ellen's ability to pay her appellate expenses. We are left to presume that counsel acquiesced to the court proceeding on the petition by way of argument.
¶ 24 Finally, John asserts in his reply brief that, even if Ellen is entitled to appellate fees and costs in some amount, the $17,500 award is excessive. One could argue that this contention is simply a restatement of his position that the award was an abuse of discretion, which we have rejected. To the extent that his claim of excessiveness is distinct from the related argument, it is forfeited, because John raises it for the first time in his reply brief. See Ill. S. Ct. R. 341(h)(7) (eff. July 1, 2008) ("Points not argued [in appellate brief] are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing"). Significant time and resources have been expended in this marriage dissolution, and this appeal illustrates the fundamental importance of making an adequate record to preserve issues and avoid forfeiture on appeal.
¶ 25 III. CONCLUSION
¶ 26 For the reasons stated, we hold that the trial court did not abuse its discretion in awarding Ellen $17,500 for attorney fees and costs incurred in Micheli I.
¶ 27 Affirmed.