In re Marriage of Best, 2-05-0947.

• Court: United States Appellate Court of Illinois
• Citation: 901 N.E.2d 967
• Docket Number: No. 2-05-1001.,No. 2-05-0947.,2-05-0947.,2-05-1001.
• Parties: In re MARRIAGE OF Steven Richard Devore BEST, Petitioner and Counterrespondent-Appellant, and Angela K. Farlow Best, Respondent and Counterpetitioner-Appellee.
• Decision Date: 09 January 2009

901 N.E.2d 967 In re MARRIAGE OF Steven Richard Devore BEST, Petitioner and Counterrespondent-Appellant, and
Angela K. Farlow Best, Respondent and Counterpetitioner-Appellee. No. 2-05-0947. No. 2-05-1001. Appellate Court of Illinois, Second District. January 9, 2009.

[901 N.E.2d 968]

Charles J. Fleck, Celia G. Gamrath, Schiller, DuCanto & Fleck, Lake Forest, IL, for Appellant.

Matthew E. Kaplan, Sara L. Roberts, Matthew Kaplan & Associates, Libertyville, IL, for Appellee.

Justice O'MALLEY delivered the opinion of the court:

Petitioner and counterrespondent, Steven Richard Devore Best, appealed the trial court's decision to grant declaratory judgment in favor of respondent and counterpetitioner, Angela K. Farlow Best, on the issue of whether the parties' premarital agreement prohibited petitioner's being compelled to pay respondent's attorney fees related to child support issues. Without reaching the merits of the issue, we reversed the trial court's judgment on the ground that declaratory judgment was an improper circumvention of the process for certifying an interlocutory appeal. In re Marriage of Best, 369 Ill.App.3d 254, 307 Ill.Dec. 173, 859 N.E.2d 173 (2006). The supreme court then reversed our holding that declaratory judgment was improper and remanded the matter to this court to decide on the merits whether the trial court correctly interpreted the attorney fees clause of the premarital agreement. In re Marriage of Best, 228 Ill.2d 107, 319 Ill.Dec. 815, 886 N.E.2d 939 (2008). Pursuant to the supreme court's decision, we now consider that issue. For the reasons that follow, we hold that the agreement was intended to encompass fees incurred in litigation of custody and other child-related issues, but we deem the agreement to be against public policy (and therefore unenforceable) as applied to the child-related issues.

We begin by interpreting the intended scope of the agreement. Premarital

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agreements are contracts, and thus the rules governing the interpretation of contracts apply. See In re Marriage of Murphy, 359 Ill.App.3d 289, 300, 295 Ill.Dec. 831, 834 N.E.2d 56 (2005). When a contract is unambiguous, a court must decide the intent of the parties solely from the contract's plain language. FTI International, Inc. v. Cincinnati Insurance Co., 339 Ill.App.3d 258, 259-60, 274 Ill.Dec. 135, 790 N.E.2d 908 (2003). Construction of a contract presents a question of law, subject to de novo review. Dean Management, Inc. v. TBS Construction, 339 Ill. App.3d 263, 269, 274 Ill.Dec. 161, 790 N.E.2d 934 (2003).

As relevant here, the parties' premarital agreement provided that "[t]he parties acknowledge, understand and agree that in the event of any court proceeding of and concerning their marital relationship or dissolution thereof, that [sic] each party shall pay and be responsible for payment of their own respective attorney fees and all ancillary costs incurred in connection with any such proceeding." Because the bar on shifting attorney fees was intended to apply to any court proceeding "of and concerning [the parties'] marital relationship or dissolution thereof," the key question for us is whether child support "concern[s] [the parties'] marital relationship or dissolution thereof." We conclude that it does.

The plain language of the premarital agreement indicates that its prohibition on fee-shifting applies in either of two types of litigation: that which concerns the parties' marital relationship and that which concerns the dissolution of the marital relationship. The first type of litigation does not encompass child support. The term "marriage," defined as "[t]he legal union of a man and woman as husband and wife" (Black's Law Dictionary 986 (7th ed.1999)), describes a relationship between two spouses, not a relationship between two parents and their children. Cf. In re Estate of Zenkus, 346 Ill.App.3d 741, 745, 282 Ill.Dec. 240, 805 N.E.2d 1257 (2004) (party's capacity as a spouse considered separate from her capacity as guardian of the parties' child).¹ Petitioner's child support obligation arises, not out of the parties' marital relationship—indeed, the child was conceived prior to the marriage—but rather out of the fact of his paternity. See 750 ILCS 45/14 (West 2006) (providing for child support judgments against parents). Thus, the issue of child support is not connected to the parties' marital relationship.

However, the second type of litigation described in the premarital agreement-litigation concerning the dissolution of the parties' marriage—does encompass child support. On this point, petitioner directs us to our supreme court's decision in In re Marriage of Leopando, 96 Ill.2d 114, 70 Ill.Dec. 263, 449 N.E.2d 137 (1983), which we find instructive. In Leopando, the supreme court described the relationship between marital dissolution actions and custody and support issues as follows:

"A petition for dissolution advances a single claim; that is, a request for an order dissolving the parties' marriage. The numerous other issues involved, such as custody, property disposition, and support are merely questions which

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are ancillary to the cause of action. [Citation.] They do not represent separate, unrelated claims; rather, they are separate issues relating to the same claim. In fact, it is difficult to conceive of a situation in which the issues are more interrelated than those involved in a dissolution proceeding. Should the trial court decline to grant the petition for dissolution, no final relief may be obtained relevant to the other issues involved. On the other hand, where a dissolution of marriage is granted, a determination as to which party receives custody will necessarily affect how much, if any, support and maintenance are paid. Practically speaking, then, until all of the ancillary issues are resolved, the petition for dissolution is not fully adjudicated." (Emphases in original.) Leopando, 96 Ill.2d at 119, 70 Ill.Dec. 263, 449 N.E.2d 137.

As petitioner argues, our supreme court indicated quite clearly in Leopando that a child support issue is inextricably tied to the dissolution action in which it arises, so much so that the dissolution action cannot be considered fully adjudicated until child support is resolved. We must therefore conclude that the issue of child support "concern[s] [the parties'] marital relationship or dissolution thereof," so that the premarital agreement would bar fee-shifting for costs incurred in connection with child support.

However, even though we determine that the...