In re Marriage of Magdalena Radzik

• Decision Date: 08 August 2011
• Docket Number: No. 2–10–0374.,2–10–0374.
• Citation: 353 Ill.Dec. 124,2011 IL App (2d) 100374,955 N.E.2d 591
• Parties: In re MARRIAGE OF Magdalena RADZIK, Petitioner and Counterrespondent–Appellee,andChristopher J. AGRELLA, Respondent and Counterpetitioner–Appellant.
• Court: United States Appellate Court of Illinois

2011 IL App (2d) 100374
955 N.E.2d 591
353 Ill.Dec. 124

In re MARRIAGE OF Magdalena RADZIK, Petitioner and Counterrespondent–Appellee,andChristopher J. AGRELLA, Respondent and Counterpetitioner–Appellant.

No. 2–10–0374.

Appellate Court of Illinois, Second District.

Aug. 8, 2011.

[955 N.E.2d 592]

Richard M. Varchetto, Attorney at Law, Elmhurst, for Christopher J. Agrella.John A. Coladarci, Coladarci & Coladarci, Chicago, for Magdalena Radzik.[353 Ill.Dec. 125] OPINION Presiding Justice JORGENSEN delivered the judgment of the court, with opinion.

¶ 1 Petitioner, Magdalena Radzik, and respondent, Christopher J. Agrella, are engaged in dissolution proceedings before the trial court. On November 6, 2009, the trial court granted petitioner's petition [353 Ill.Dec. 126]

[955 N.E.2d 593]

pursuant to section 501(c–1) of the Illinois Marriage and Dissolution of Marriage Act (Act or Dissolution Act) (750 ILCS 5/501(c–1) (West 2008)) for interim attorney fees. On April 9, 2010, after respondent failed to pay that award, the court entered against respondent a judgment of contempt.

¶ 2 Respondent argues five issues on appeal: (1) the court erred in finding him in contempt; (2) the court abused its discretion in entering the interim fee award; (3) an ex parte order that issued a rule to show cause is void for lack of proper notice; (4) the court erred in ordering the liquidation and distribution of respondent's individual retirement account (IRA) to satisfy the interim fee award; and (5) the finding of contempt must be vacated because respondent had no other avenue for challenging the court's November 6, 2009, fee order. For the following reasons, we conclude that: the November 6, 2009, interim fee award constitutes error; the court may not, should a new petition for interim fees be filed on remand, order that any award be paid through liquidation and distribution of respondent's IRA; and the contempt finding must be vacated.

¶ 3 I. BACKGROUND ¶ 4 A. Initial Orders, Payments, and Petition

¶ 5 On January 22, 2009, petitioner filed a petition for dissolution of the parties' marriage. The petition asserts that two children (ages 4 and 19 months) were born of the marriage and that petitioner had a daughter (age 16) from a prior relationship whom respondent had not adopted. Respondent was subsequently granted, apparently through an emergency order of protection, sole care and custody of the three minor children, as well as possession of the marital residence. That custody arrangement did not change during the pendency of these proceedings.

¶ 6 On February 6, 2009, petitioner filed a financial affidavit in compliance with Lake County's local rules (19th Judicial Cir. Ct. R. 11.02 (eff.Dec.1, 2006)).¹ She listed her total income as zero or unknown, her total monthly living expenses as $15,409, and her debts as unknown. In addition, that same day, she petitioned for a minimum of $50,000 in interim attorney fees and costs. The petition for interim fees asserted that respondent (age 46), an attorney with his own practice, earned a substantial income and had sole access to the parties' assets and, therefore, was “well able” to pay petitioner's interim fees. In contrast, petitioner (age 36) had always been a stay-at-home mother, was unemployed, and did not have the financial ability to pay reasonable attorney fees. The petition was signed and verified by petitioner and was signed and certified by her attorneys. Attached as exhibits were petitioner's retainer agreement with her attorneys, and the attorneys' affidavits attesting to their respective education, experience, and billing rates.

¶ 7 On April 7, 2009, respondent responded to the petition for interim fees, largely denying petitioner's allegations and asking the court to deny the petition. Respondent[353 Ill.Dec. 127]

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certified “under penalties of perjury” that his statements were true and correct.

¶ 8 On April 9, 2009, the appointed representative for the minor children petitioned for $6,534.45 in attorney fees. In her petition, she acknowledged that respondent had, per a January 27, 2009, court order, paid her an initial $750 retainer fee. Further, she acknowledged that respondent had paid her an additional $3,000 in fees.

¶ 9 On April 24, 2009, the court ordered respondent to pay petitioner $230 weekly as temporary maintenance. The court ordered petitioner to seek employment, to keep a job log reflecting her efforts to seek employment at a minimum of three locations weekly, and to fax the job log to respondent's counsel monthly. The court ordered respondent to pay $10,000 to petitioner's counsel as interim attorney fees. Respondent represented to the court that he would refinance the marital residence to pay the interim fee award, and the court subsequently granted respondent an extension of time to pay the fees, to allow time for the refinance loan to be approved.

¶ 10 On May 28, 2009, the court granted the child representative's fee petition. On July 6, 2009, the child representative filed a second petition, seeking $13,183.85 in attorney fees. The petition noted that, on June 25, 2009, respondent paid the representative $6,434.45 as ordered by the court in May.

¶ 11 On July 30, 2009, petitioner filed a second petition for interim attorney fees and an “addendum” to the petition. The second petition essentially reasserted the allegations from the first petition; namely, that respondent earned a “substantial income,” had sole access to the parties' assets, and was “well able” to pay petitioner's interim attorney fees, and that petitioner was unemployed and lacked the financial ability to pay reasonable attorney fees. Although the second petition referenced her financial affidavit, the record reflects no financial affidavit attached to the petition. Despite signature and verification sections at the end of the petition, petitioner did not sign or verify the petition. The petition contained a signed attorney certification, stating that, upon reasonable inquiry, the petition was, to the best of counsel's knowledge, well grounded in fact. The addendum purported to incorporate the first petition, and it noted that additional fees were incurred after that petition was filed, that petitioner's outstanding balance for her fees was $49,913.15, and that there existed another $29,677.50 in unbilled time and expenses. The addendum acknowledged that respondent, in compliance with the earlier court order, paid petitioner's counsel $10,000.

¶ 12 On August 24, 2009, respondent responded to petitioner's second petition for interim fees. He denied that he could pay the fees and noted that, despite the court order, petitioner failed to timely fax job logs to his counsel. (Previously, respondent moved for a contempt finding on this basis.) He noted that petitioner failed to supply the court with a current financial affidavit and he asserted that petitioner was voluntarily impoverishing herself so as to request contribution when, in fact, she owned various property and other assets. Respondent argued that, since the inception of the proceedings, he: (1) had borne the sole financial responsibility to care for all three children (including the payment of health insurance premiums, school tuition and fees, and bills for medical care, therapy, and $8,000 in dental care for the eldest child who suffered from a serious liver disease); (2) was responsible for the mortgage and other household expenses; (3) paid petitioner $230 in weekly maintenance[353 Ill.Dec. 128]

[955 N.E.2d 595]

paid her vehicle insurance and expenses, and paid her health insurance at $536 every two months; (4) had paid approximately $10,000 to the current child representative, more than $10,000 to the past and current child representatives, and $10,000 to petitioner's attorneys; and (5) had paid and continues to owe his own attorneys for their fees. He concluded that he “simply lacks any additional funds and cannot afford any further expenditures on behalf of petitioner.” Again, respondent certified that his statements were true and correct.

¶ 13 Further, on November 6, 2009, respondent moved to strike the petitions for interim fees and moved for sanctions against petitioner, arguing that, while petitioner represented to the court at prior hearings that she had no money, she had earned “thousands of dollars” selling items on eBay through an online business and she had made various unnecessary purchases (including a “butt enhancer”). Respondent attached to the motion printouts purportedly from petitioner's eBay account, of various items sold or purchased and their sale prices. Respondent argued that petitioner actively defrauded the court and misrepresented her financial status in an effort to require respondent to pay more to her than warranted.

¶ 14 B. November 6, 2009, Interim Fee Award

¶ 15 On November 6, 2009, the parties appeared before the court on petitioner's petition for interim fees. Petitioner's counsel argued that respondent: earned an adjusted gross income of $103,000 in 2008; made a $27,871 contribution to his 401(k) in April 2009 (it is unclear whether this is the IRA at issue in this appeal); sold stocks for $15,000 in September 2009; refinanced a home and withdrew $50,000 from a home equity line of credit; pays private school tuition for the children, pays $1,300 per month in childcare, and bought the eldest child a convertible. Petitioner's counsel asserted that the income petitioner made from eBay reflected her need to sell personal items to increase her cash flow and that the “butt enhancer” was for a Halloween costume. Counsel argued that the court needed to level the playing field because respondent had sole access and control of the marital assets and, despite her efforts to obtain employment, petitioner remained unemployed.

¶ 16 Respondent's counsel argued that petitioner's failure to disclose the eBay income, her failure to comply with the court's order that she submit job logs...