In re Altman

• Decision Date: 27 July 2016
• Docket Number: No. 1–14–3076.,1–14–3076.
• Citation: 406 Ill.Dec. 136,59 N.E.3d 914
• Parties: In re MARRIAGE OF Heather ALTMAN, Petitioner–Appellee, and Jeffrey BLOCK, Respondent–Appellee (Steven D. Gerage, Contemnor–Appellant).
• Court: United States Appellate Court of Illinois

59 N.E.3d 914
406 Ill.Dec. 136

In re MARRIAGE OF Heather ALTMAN, Petitioner–Appellee,
and
Jeffrey BLOCK, Respondent–Appellee (Steven D. Gerage, Contemnor–Appellant).

No. 1–14–3076.

Appellate Court of Illinois, First District, Third Division.

July 27, 2016.

59 N.E.3d 916

Lake Toback, of Chicago (Michael G. DiDomenico and Sean M. Hamann, of counsel), for appellant.

No brief filed for appellees.

Paul L. Feinstein and Grund & Leavitt PC (Jamie R. Fisher and David Adams, of counsel), for amicus curiae.

OPINION

Presiding Justice MASON delivered the

59 N.E.3d 917

judgment of the court, with opinion.^*

406 Ill.Dec. 139

¶ 1 At issue in this appeal are the “leveling of the playing field” provisions of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/501(c–1) (West 2012)) providing for interim attorney fee awards, and, in particular, we are asked to resolve whether, in cases where both parties lack the financial ability or access to assets or income to pay for reasonable attorney fees and costs, (i) one spouse can be required to utilize a nonmarital retirement account to pay attorney fees and (ii) funds already paid to a party's attorney for past services rendered are “available” to be allocated within the meaning of the Act. We agree with the trial court's conclusion that, under the circumstances presented here, a spouse cannot be required to access a nonmarital retirement account to pay interim attorney fees, but determine that sums paid to a law firm for services already rendered are not “available” to be allocated, and, therefore, we reverse the order holding respondent's former counsel in contempt for failing to comply with an order directing him to disgorge sums paid to him by respondent for past services rendered.

¶ 2 Petitioner, Heather Altman, and respondent, Jeffrey Block, were married on September 5, 2005. The parties had triplets born of the marriage who were five years old at the time these proceedings were commenced. Altman originally sought an order of protection against Block on May 14, 2013, and, shortly thereafter, filed her petition for dissolution of marriage. The two proceedings were consolidated.

¶ 3 Both parties were represented by counsel. Altman has been represented throughout by the firm of Bradford & Gordon, LLC. Block was originally represented by Scott Tzinberg, who was granted leave to withdraw on October 3, 2013. Stephen Gerage was then granted leave to appear as substitute counsel. Gerage was granted leave to withdraw on August 14, 2014, and, since that date, Block has proceeded pro se.

¶ 4 The record indicates that the proceedings have been “extremely contentious” and the parties “overly litigious,” as characterized by the circuit court. There have been numerous pleadings, affidavits and motions filed by both parties relative to the order of protection filed by Altman. Block also sought his own order of protection and further requested that Altman submit to random drug testing as a result of her alleged abuse of prescription drugs. Additionally, both parties have litigated issues regarding temporary custody, visitation and parenting time, and several orders have been entered relative thereto, including, due to problems concerning interaction between Altman and Block, an order that pickups and drop-offs of the children occur at a police station. The court eventually had to order Block to leave the police station parking lot within 10 minutes of dropping off or picking up the children as Altman claimed that he would sit in the parking lot for an extended period of time in an attempt to confront her on these occasions, and she was required to wait in the police station—either alone or with the children—until he left. A children's representative was ultimately appointed to represent the children and has been required to broker disputes relating to what school and summer camps the children should be enrolled in and parenting time over the summer and holidays.

59 N.E.3d 918

406 Ill.Dec. 140

¶ 5 Substantial discovery was conducted, including interrogatories, notices to produce, subpoenas, and enforcement actions related thereto concerning all issues in this case. The issues of temporary maintenance, child support and household expenses were also hotly contested. Both parties filed various motions regarding these issues. On March 13, 2014, after further motion practice, the court directed Block to liquidate a marital retirement account and, based on Altman's claim that Block had been using this marital asset to fund not only the litigation, but also expenses unrelated to the support of his children and household expenses, directed that the proceeds be held in escrow by Altman's counsel pending further order.

¶ 6 The financial aspect of the case was further complicated as a result of Block's claim that he was laid off from his employment as a principal of a business, where he earned more than $160,000 per year. In August 2013, Altman filed an emergency petition seeking to require Block to contribute to the parties' household and living expenses. Altman's petition represented that at the end of May 2013, Block was terminated from his employment. The record is not clear as to when Altman learned of Block's termination. Altman is essentially a full-time mother who earns under $30,000 per year as a rabbi. After a multi-day evidentiary hearing,¹ the trial court set temporary child support of $1412.12 per month based on Block's representation that he was currently earning roughly $4441 per month.

¶ 7 Included in the record is Altman's motion to reconsider that order based on her claim that Block falsified his income and utilized sham entities to hide his true income and assets from Altman and the court. Altman's motion attached documents purporting to show that from May 2013 to January 2014, Block earned income of at least $215,000, but paid only $475 in child support. True to form, Block, by then representing himself, filed a counter-motion to reconsider claiming that the court improperly calculated his child support obligation and requesting that it be set at a lower amount. These motions were pending at the time Gerage appealed the contempt finding and so their disposition is not contained in the record.

¶ 8 On February 13, 2014, nine months after Altman first sought an order of protection and after numerous motions and hearings in the consolidated proceedings, some of which are referenced above, Altman filed a petition requesting interim attorney fees in the amount of $36,864.30 for fees already incurred and $25,000 for prospective attorney fees and costs. An amended petition was filed on May 13, 2014. By this time, Altman alleged she had incurred fees of $63,598.68, had paid $9500 and therefore owed her attorneys $54,098.68. Altman requested that Block be ordered to pay the fees, or, in the alternative, Gerage be disgorged of the sums that had been previously paid. On June 26, 2014, the children's representative likewise sought an award of fees in the amount of $5784 for past services and $2500 in prospective fees.

¶ 9 It was also disclosed that Altman had access to a nonmarital retirement account valued at approximately $100,000. In response to the interim fee petition, Block contended that Altman should be required to access that account to fund her attorney fees. Block's response represented that he had paid Gerage $41,500 for services rendered and that he owed his lawyer $17,112.50. Block also represented that he had paid Tzinberg $25,000 and claimed to owe him an additional $18,542.

59 N.E.3d 919

406 Ill.Dec. 141

¶ 10 Following the hearing on Altman's fee petition, the circuit court issued an order on July 16, 2014, indicating that it took into consideration evidence of the financial circumstances of the parties presented during the prior evidentiary hearings on various motions regarding child support and maintenance. The court found that both parties lacked sufficient access to assets or income to pay reasonable attorney fees and costs and that the case presented a classic scenario for invocation of the Act's “leveling of the playing field” provisions. The court recited that Block had paid his attorneys a total of $66,500, Altman had paid her attorney a total of $9500, and, as of June 30, 2014, there was a balance due to Bradford of $62,000. The court found that Bradford was holding $35,000 in his client trust account (the remaining proceeds of Block's retirement account), which represented the balance of the parties' marital assets. The order allocated $33,284 of the $35,000, with $25,000 to Bradford, and $8284 to the children's representative. The court failed to allocate the remaining $1716 held in the account. In addition, the court ordered that Gerage disgorge a total of $16,000 in fees paid for services already rendered and ordered this amount to be paid to Bradford within seven days. The division of the remaining marital assets, plus the disgorgement, resulted in each party's attorney being allocated a total of $50,500.

¶ 11 After Gerage failed to comply with the order, Altman...