In re Andres
| Docket Number | 2-19-1146 |
| Decision Date | 13 August 2021 |
| Citation | 2021 IL App (2d) 191146,196 N.E.3d 430,458 Ill.Dec. 126 |
| Parties | IN RE MARRIAGE OF Nicholas T. ANDRES, Petitioner-Appellant, and Alissa Andres, Respondent-Appellee (Mirabella, Kincaid, Frederick & Mirabella, LLC, Respondent-Appellee). |
| Court | United States Appellate Court of Illinois |
Natalie M. Stec, of Wolfe & Stec, Ltd., of Woodridge, for appellant.
Kira N. Albrecht and Lindsay C. Stella, of Mirabella Kincaid Frederick & Mirabella, LLC, of Wheaton, for appellee Mirabella Kincaid Frederick & Mirabella, LLC.
No brief filed for other appellee.
¶ 1 This appeal arises from the petition for termination of maintenance filed by petitioner, Nicholas T. Andres (Nick), based on the cohabitation of his ex-wife, respondent, Alissa Andres with Larry Eastman and the resulting proceedings. The appeal raises several issues: (1) whether the trial court's determination that Alissa began cohabiting with Larry on November 27, 2017, instead of an earlier date, was in error; (2) whether the trial court erred in holding Nick in contempt for violating its prior orders to continue to pay maintenance during the pendency of the trial, where the trial court ultimately decided to terminate maintenance; (3) whether, for the purpose of determining past due child support on a previously entered order of support, the trial court should have applied a version of section 505 of the Illinois Marriage and Dissolution of Marriage Act (Act) ( 750 ILCS 5/505 (West 2018) ) that became effective after the entry of the order of support; and (4) whether the trial court abused its discretion when it found that the amount of time billed by Nick's trial counsel, Mirabella, Kincaid, Frederick & Mirabella, LLC (MKFM), and its minimum billing increment of 15 minutes were both reasonable. For the reasons stated herein, we affirm.
¶ 3 Nick and Alissa were married on May 25, 1996, and had two children, born in 2002 and 2004. On June 7, 2013, a judgment for dissolution of marriage was entered, which incorporated a marital settlement agreement.
¶ 4 On November 13, 2014, an agreed order was entered modifying the marital settlement agreement (Agreed Order). Nick's income was based partially on commissions because he worked in sales. Pursuant to the Agreed Order, Nick was to pay 28% of his net income in child support and 30% of his gross income in maintenance. The Agreed Order assumed a base annual gross income of $150,000 and set forth fixed monthly payments for both child support and maintenance, based on that amount. Additionally, each month, Nick was to pay 28% of the net and 30% of the gross of any income that exceeded $12,500 (which represents the monthly gross income for a salary of $150,000). Effectively, these additional payments would true-up to the 28% net and 30% gross owed for child support and maintenance. Nick was also to submit copies of his paystubs to Alissa each month. In practice, the base payments were withheld from Nick's pay automatically, whereas the additional payments were made by Nick to the Illinois State Disbursement Unit. Maintenance was capped at a gross income of $250,000 and child support was capped at a gross income of $375,000. Per the terms of the Agreed Order, maintenance would terminate upon one of the following events:
¶ 6 On November 27, 2017, Nick filed a petition seeking to terminate maintenance, based on Alissa's cohabitation with Larry, and to modify child support. At that time, Nick stopped making the additional maintenance and child support payments provided by the Agreed Order; however, the base amounts were still being automatically withheld from his pay. On January 4, 2018, Alissa filed a petition for adjudication of indirect civil contempt for Nick's failure to make the required additional maintenance payments. On March 7, 2018, the trial court entered an order on Alissa's petition in which it did not find Nick in contempt but ordered him to pay the past due maintenance amounts within 30 days and to continue to make the required payments consistent with the Agreed Order.
¶ 7 On March 16, 2018, Alissa filed a second contempt petition on the basis that Nick had stopped making the additional child support payments and had also failed to provide Alissa with copies of his paystubs in accordance with the Agreed Order. On March 23, 2018, the trial court ruled on Alissa's second contempt petition, finding that Nick's failures to make child support payments and to provide his paystubs were without reasonable cause or legal justification, but it did not find him in contempt. The trial court allowed Alissa to submit a fee petition against Nick for the costs of bringing the petition. The trial court also set a status date for April 30, 2018, to determine the amount of child support arrearages and determine a payment plan. At that status hearing, the trial court found that Nick was $14,195.40 in arrearage on his child support obligations and ordered him to make monthly payments of $1250 to pay the arrearage. The trial court also reiterated that the terms of the Agreed Order were to remain in full effect.
¶ 8 On April 5, 2018, Nick filed a petition to modify the March 7, 2018, order to allow him more time to repay the past due maintenance. On May 30, 2018, Nick moved to reconsider the April 30, 2018, order. On June 4, 2018, the court entered an order giving Nick until June 29, 2018, to pay the past due maintenance and indicated that it would take the motion to reconsider the April 30, 2018, order with the trial on Nick's petition to terminate maintenance.
¶ 9 On August 6, 2018, while the trial was ongoing, Alissa filed a third contempt petition on the basis that Nick had failed to pay all past due maintenance by June 29, 2018, and had failed to produce his paystubs in compliance with the court's orders. On December 10, 2018, the trial court found Nick in contempt for failure to make maintenance payments and provide Alissa with his paystubs as ordered by the March 7, 2018, and June 4, 2018, orders. The court stated that Nick could purge the contempt if, within 30 days, he paid all past due maintenance and submitted all paystubs not previously provided.
¶ 11 Prior to trial, on May 20, 2018, Larry was killed in an automobile accident. A trial was held over the course of four days, on June 20 to June 21, 2018, August 23, 2018, and October 5, 2018. Alissa brought two motions in limine : the first sought to bar certain evidence produced after the close of discovery and the second sought to bar the testimony of Mark Grena, a private investigator hired by Nick. Regarding the first motion, Alissa argued that Nick had submitted certain discovery documents on May 30, 2018, after the close of discovery on May 29, 2018, and that those documents should be barred. The trial court granted the motion and barred any documents that had not been produced by the close of discovery. This included records from BMO Harris, JP Morgan, CNW Insurance, Glen Oak Country Club, JP Morgan Chase Securities, and Thomas Giuliano, Alissa and Larry's landlord. We note that, while these documents were barred, Nick's counsel was able to utilize some of the documents for other purposes, such as rebuttal.
¶ 12 With regard to the second motion in limine , Alissa argued that Grena could not be called as an expert witness, because Nick had failed to provide the opinions to which he would testify and had failed to establish his qualifications as an expert as required by Illinois Supreme Court Rule 213(f)(3) (eff. Jan. 1, 2018). Additionally, Alissa argued that he should be barred from testifying, because, in the process of gathering information, he had committed various crimes, such as filming Alissa and her children through their home's windows as well as going through their mail. The trial court ruled that Grena could not testify as an expert but could be called as a fact witness, though the court would admonish him regarding his rights. Grena ultimately was not called.
¶ 13 The following evidence was produced at trial regarding the issue of cohabitation. Alissa testified as follows. She met and befriended Larry in 2013, after her divorce from Nick. They did not begin dating until spring 2016. On October 11, 2016, she and Larry executed a lease for a home at 418 Hill Avenue, Glen Ellyn, and they moved in on November 1, 2016. That home was the primary residence of Alissa, her children, and Larry. After they moved in, Larry had no other residence prior to his death. Larry was listed as an emergency contact for Alissa's daughter. Alissa's children and Larry's daughter had their own rooms at 418 Hill Avenue, and Larry's son would sleep in the guest bedroom when visiting. Alissa and Larry would share a bedroom and had been intimate. However, she and Larry fought often, and, if they were fighting, he would sleep in a different bedroom or leave for a couple nights.
¶ 14 Alissa and Larry hosted several holidays together. In 2016 they hosted Thanksgiving and celebrated Christmas with her children. Alissa and Larry hosted Thanksgiving again in 2017 with some of their friends, Larry's children, and Alissa's aunts and uncles. Alissa and Larry also hosted Christmas Eve in 2017 with their children and Larry's parents from Minnesota.
¶ 15 Alissa and Larry went on several trips together. In April 2017, Alissa, Larry, and their children traveled to South Carolina to visit Alissa's father and stepmother for approximately five days. In May 2017, Alissa and Larry traveled to Mexico. It was a week-long business trip for Larry's company, and she did not recall paying for anything. In the summer of 2017, Alissa, Larry, and their children traveled to Wisconsin, where they...
To continue reading
Request your trial