In re Goesel
| Decision Date | 24 January 2017 |
| Docket Number | Appeal No. 3-15-0101 |
| Citation | 2017 IL App (3d) 150101,71 N.E.3d 793 |
| Parties | IN RE MARRIAGE OF Christine GOESEL, Petitioner-Appellee, and Andrew Goesel, Respondent, (Laura A. Holwell, Contemnor-Appellant). |
| Court | United States Appellate Court of Illinois |
Gina L. Colaluca, of Chicago, for appellant.
Mark Ellis, Martin Rudman, and Edward R. Jaquays, of Law Offices of Edward R. Jaquays, of Joliet, for appellee.
Howard M. LeVine, of LeVine, Wittenberg, Shugan & Schatz, Ltd., of Tinley Park, for respondent.
Nancy Donlon, of Panos & Associates LLC, of Palos Heights, guardian ad litem.
¶ 1 This appeal arises from the dissolution of marriage proceedings between petitioner, Christine Goesel, and respondent, Andrew Goesel. Contemnor, Laura Holwell, served as an attorney for Andrew. After Christine filed a petition for interim attorney fees, the trial court found that neither Andrew nor Christine had the current ability to pay attorney fees and ordered Holwell to disgorge $40,952.61 of attorney fees that Andrew had paid to her. Holwell did not pay the disgorgement amount, and the trial court held her in contempt. On appeal, Holwell argues that the trial court erred in ordering the disgorgement of fees from her, finding the disgorgement order was a judgment, and holding Holwell in indirect civil contempt. Holwell also argues that the contempt orders and sanctions entered against her should be vacated because her refusal to comply with the disgorgement order constituted a good-faith effort to determine if the disgorgement was proper. We reverse the disgorgement order and vacate the trial court's order finding Holwell in contempt of court.
¶ 3 Christine and Andrew were married on March 4, 1995. On January 18, 2013, Christine filed for divorce. Christine was represented by the firm Goldstine, Skrodzki, Russian, Nemec and Hoff, Ltd. (Goldstine), and Andrew was represented by Janice Boback of Anderson & Boback, LLC (Boback). During the dissolution proceedings, Christine lived in the marital home. Christine's attorneys instructed her to provide them Andrew's mail that arrived at the marital home. Goldstine then opened and viewed Andrew's mail.
¶ 4 On October 10, 2013, Laura Holwell, the contemnor in this matter, filed her appearance as Andrew's counsel, and Boback was granted leave to withdraw. Prior to withdrawing, Boback filed a motion to disqualify Goldstine as Christine's counsel because the firm had obtained privileged information about Andrew by viewing his mail. The trial court eventually disqualified Goldstine on March 4, 2014. Holwell billed $37,094.49 to Andrew for work related to the disqualification of Goldstine. Goldstine did not charge Christine for its defense of the motion to disqualify.
¶ 5 On March 10, 2014, the Law Offices of Edward R. Jaquays (Jaquays) appeared on behalf of Christine. On June 6, 2014, Howard LeVine of LeVine, Wittenberg, Shugan and Schatz, Ltd. (LeVine), appeared on behalf of Andrew. On June 12, 2014, Christine filed a petition for interim attorney fees, which she later amended.
Within the amended petition, Christine indicated that she paid Jaquays an initial retainer of $5000, currently owed Jacquays $27,142.60, and lacked sufficient funds to pay the outstanding fees. Christine requested that the trial court either order Andrew to pay her attorney fees or, if the court found that Andrew lacked the ability to do so, enter an order disgorging the necessary amount from the money that Andrew had already paid to Holwell. Andrew also filed a petition for attorney fees, indicating that he did not have the ability to pay his attorney fees.
¶ 6 On June 20, 2014, Holwell filed a motion to withdraw as Andrew's counsel. In response, Christine requested that the trial court condition its grant of Holwell's leave to withdraw upon the disgorgement of attorney fees. On June 27, 2014, the trial court issued an order allowing Holwell to withdraw but retained jurisdiction over Holwell should the court find disgorgement to be an issue, with Holwell to be notified of future dates pertaining to the disgorgement issue.
¶ 7 From July 29 to July 31, 2014, at the hearing on Christine and Andrew's petitions for attorney fees, Holwell provided testimony, and the parties provided financial disclosures. With regard to real estate, the financial disclosures indicated that (1) the parties' marital residence was valued at $440,000, and there was a mortgage balance of $350,000 that was four months in arrears; (2) the parties' investment real estate in Florida had approximately $60,000 in equity; (3) Christine had a Michigan home with an unknown value that Andrew "gifted" to her; and (4) there was investment or business real estate valued at $150,000 that was in arrears in association dues and property taxes. The financial disclosures also indicated that the parties owned four motor vehicles, with a total value of $30,500. Christine had a checking account with a balance of $4610.99, and Andrew had two checking accounts with a combined balance of $50. The financial disclosures further indicated Andrew had an individual retirement account (IRA) with a fair market value between $2000 and $4000 and a health savings account (HSA) with a fair market value of $12,000. Christine had multiple retirement accounts including (1) a Roth IRA with an unknown fair market value, (2) an IRA with a fair market value of $32,819.88, (3) a 403(b) plan with a fair market value of $42,498.86, (4) a 401(a) plan with a fair market value of $13,292.21, (5) a rollover plan with a fair market value of $3838.04, (6) a 403(b) plan with a fair market value of $27,954.71, and (7) a retirement and savings plan with a fair market value of $17,356.23. Christine had $16,339.12 in credit card debt and owed $34,560.86 in attorney fees. After expenses, Christine's net monthly income was $362.94. Her monthly income included a court-ordered support payment of $3500, but her expenses did not reflect the monthly mortgage payment for the marital home or the Florida rental home's expenses. Andrew owed creditors approximately $17,150, and his business, Goesel Chiropractic, owed creditors approximately $69,180. The amount he owed to his attorneys was "unknown." The difference between Andrew's monthly income and expenses was a negative amount of $3318.44.
¶ 8 At the outset of the hearing for interim attorney fees, the parties stipulated to the attorneys' rates and that the work performed by the attorneys was reasonable and necessary. Holwell testified she was holding approximately $13,000 that Andrew had previously paid to Boback and Boback then paid to Holwell because there was a dispute as to which party owned the money. Copies of Holwell's invoices were entered into evidence and indicated that all money she had receivedwas for work already performed. Andrew still owed Holwell $17,500.38 and owed Levine $26,000. Levine was holding $10,000 received for work already performed because there was a question as to whether the money was paid from a proper source.
¶ 9 On September 29, 2014, the trial court found that both parties currently lacked the financial ability to pay reasonable attorney fees. The trial court determined that the total attorney fees paid by the parties, as of September 29, 2014, was $118,193.31 and each party should be allotted $59,069.65 for their attorney fees. To achieve parity, the trial court ordered that Holwell disgorge $40,952.61 of fees paid to her by Andrew, which were to be tendered to Christine's attorneys within 14 days of the order.
¶ 10 On October 24, 2014, Christine filed a petition for the trial court to enter an order of indirect civil contempt with sanctions against Holwell because Holwell had not paid any money toward the disgorgement order. On December 18, 2014, in response to the petition, the trial court clarified that the disgorgement order was a judgment and held Holwell in "friendly" contempt of court. On January 13, 2015, Christine filed a motion for sanctions to be imposed against Holwell because the contempt order was not immediately appealable without a penalty. On January 16, 2015, the trial court found Holwell to be in indirect civil contempt and sentenced her to an indeterminate jail sentence, which was to be stayed for 30 days during the pendency of an appeal. A fine of $10 per day was to be imposed for each day the jail time was stayed. The trial court also indicated that Holwell could purge the contempt by paying $40,952.61 to Christine's attorneys by January 21, 2015. On January 21, 2015, the trial court found that Holwell failed to purge herself of contempt, and the order of contempt was found to be final and appealable. Holwell appealed.
¶ 12 On appeal, Holwell argues that the trial court erred in (1) ordering disgorgement of her fees because it failed to make a specific finding with respect to Christine's ability to pay, the evidence showed Christine had the ability to pay, and Holwell was deprived of notice and an opportunity to be heard; (2) finding the disgorgement order was a judgment because disgorgement orders are temporary advances against the marital estate; and (3) holding Holwell in indirect civil contempt because it deprived Holwell of her right to notice and a hearing and the trial court failed to inquire into Holwell's ability to comply with the disgorgement order. Holwell also argues that the contempt orders and sanctions entered against her should be vacated because her refusal to comply with the disgorgement order constituted a good-faith effort to determine if the disgorgement was proper.
¶ 13 A court order granting interim attorney fees is not an appealable interlocutory order. In re Marriage of Radzik , 2011 IL App (2d) 100374, ¶ 45, 353 Ill.Dec. 124, 955 N.E.2d 591. However, when the trial court has issued a contempt sanction for violating an interim fees order, the contempt finding is final and appealable....
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