In re Marriage of Nesbitt
| Decision Date | 14 November 2007 |
| Docket Number | No. 1-06-1665.,No. 1-05-3972.,No. 1-06-0108.,No. 1-06-0531.,1-05-3972.,1-06-0108.,1-06-0531.,1-06-1665. |
| Citation | 377 Ill.App.3d 649,879 N.E.2d 445 |
| Parties | In re MARRIAGE OF Elisabeth NESBITT, Petitioner-Appellee, and Bruce Nesbitt, Respondent-Appellant. |
| Court | United States Appellate Court of Illinois |
Schiller DuCanto and Fleck, Chicago (Sarane C. Siewerth, David H. Hopkins, of counsel), for Appellee.
Petitioner Elisabeth (Lisa) Nesbitt and respondent Bruce Nesbitt married in 1993. On March 22, 2001, Lisa filed a petition for dissolution of marriage. The parties entered into an agreed order allocating, between themselves, the majority of their marital property and reserving the issues of maintenance and attorney fee contribution for adjudication in the trial court. After Lisa filed a petition for contribution to attorney fees and costs, the trial court conducted a hearing on the matter and both parties filed written closing arguments on the issue. Lisa subsequently filed a motion for Rule 137 (155 Ill.2d R. 137) sanctions against Bruce, asserting that the arguments advanced in his written closing argument were not grounded in fact or law. Bruce responded with a motion to strike Lisa's motion for sanctions. The trial court ultimately ordered Bruce to contribute $700,000 toward the attorney fees incurred by Lisa and granted Bruce's motion to strike Lisa's motion for sanctions. Both parties appealed and we have consolidated the appeals. On appeal, Bruce asserts the trial court erred when it entered an order requiring him to contribute toward his wife's attorney fees because the trial court was unable to determine with precision whether all of the work performed by Lisa's firm was reasonable. Lisa, in turn, asserts the trial court erred when it struck her motion for sanctions and allocated the proceeds of a 401(k) plan entirely to Bruce. We affirm as modified.
Lisa and Bruce, both divorcees, met in 1991. Lisa was a psychotherapist with an established private practice while Bruce was the founder and sole shareholder of a company that specialized in applying a coating to various products including cookware. They married on June 19, 1993. In 1994, the couple purchased a penthouse apartment in Chicago located on top of a rental building and acquired a time-share interest in a condominium located in Aspen, Colorado. At Bruce's request, Lisa closed her private practice to supervise renovations to the penthouse and became a "corporate wife." She also commenced a career as an artist, although it failed to prove profitable. In 1997, Bruce acquired interests in two additional companies.
On March 20, 2001, Lisa filed a petition for an order of protection following a physical altercation that took place in Aspen. According to the petition, Bruce struck her and her brother while they were on a skiing vacation. The petition also alleged that Bruce had inflicted verbal, psychological, and physical abuse on Lisa during the course of their marriage. The trial court granted Lisa's petition and issued an emergency order of protection on the same date. Pursuant to the terms of the order, Bruce was prohibited from entering or remaining at their Chicago apartment. She filed a petition for dissolution of marriage two days later.
Thereafter, the parties engaged in discovery. Lisa filed a number of motions to compel Bruce to comply with discovery requests. On January 23, 2004, Lisa and Bruce entered into an agreed order, allocating the major components of the marital estate between them. Pursuant to the terms of the order, the trial court found that Bruce received approximately $2,672,621 in marital property, which was approximately 61% of the marital estate and Lisa received $1,695,746 in marital property, approximately 39% of the marital estate. In addition, Bruce's nonmarital estate was valued at $3,351,612 while Lisa's nonmarital estate was valued at $619,454. The parties reserved the issues of maintenance and contribution to attorney fees for adjudication in the trial court.
On June 14, 2004, Lisa filed a petition for contribution to attorney fees and costs under the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/101 et seq. (West 2004)). The petition alleged that Lisa incurred $1,109,103.09 in attorney fees and costs and that all of the work performed by her firm, Schiller, DuCanto, & Fleck, was reasonable. Lisa had paid $227,024.71 toward the outstanding balance; however, the petition alleged that Bruce was in a better financial position to contribute and pay for Lisa's attorney fees because her estate would be exhausted should she have to pay the entirety of the costs incurred throughout the dissolution proceedings. Attached to the petition was the affidavit of David H. Hopkins, the attorney primarily responsible for providing services to Lisa. He averred that "much of the work carried out by [his firm] * * * was necessitated by Bruce's misconduct or, alternatively, by baseless and harassing tactics initiated by him, including defiance of court orders." Affixed to Hopkins' affidavit were billing statements, which consisted of a listing of dates and the amount of fees charged for the work performed on those dates.
Bruce filed his response to Lisa's petition for contribution to attorney fees and costs on August 11, 2004, denying that he had a greater ability to contribute to Lisa's litigation costs and that her "litigation costs were needlessly driven up by him." He also asserted as an affirmative defense that the attorney fees charged by Lisa's firm were excessive and unreasonable.
Lisa filed two supplemental petitions for attorney fees. The first supplemental petition was filed on October 29, 2004, and contained "additional charges for Schiller, DuCanto & Fleck's services over the June-September 2004 period" totaling $111,784.05. She filed her second supplemental petition on April 1, 2005, which contained "additional charges for Schiller, DuCanto & Fleck's services over the October-December 2004 period" totaling $228,779.64. Attached to both supplemental petitions were billing statements containing a list of dates, a description of the work performed on those dates, the initials of the person who performed the work, the hourly rate charged, and the total number of hours of work performed.
The trial court held a hearing on the issue of contribution. David Hopkins, the attorney at Schiller, DuCanto & Fleck, primarily responsible for representing Lisa, testified that his firm prepared and sent 37 bills to Lisa during the course of the litigation. Pursuant to firm policy, the billing statements sent to clients contain a list of tasks performed on a given day as well as the total amount of time spent on those tasks per day. The time allocated to each individual task does not appear on the billing statement. Hopkins testified that at his firm, attorneys, law clerks, and paralegals are required to maintain records of the work they perform on specific cases. The employees complete handwritten time sheets, which are then input into a computer to produce billing records for the client. Schiller, DuCanto & Fleck does not require its employees to assign a time component to each task performed for a client throughout the day; rather, an employee may aggregate the time for all of the work performed on a given day. While some associates itemize their time sheets, these itemizations are eliminated when billing records are sent to the client. Hopkins testified that Illinois law does not require billing statements to itemize the time spent per task and that doing so would be difficult because sometimes it is "impossible to draw lines of demarcation between this task and that task."
Hopkins was questioned in detail about the billing statements produced in the Nesbitt case. He discussed the work performed by various members of his firm on specific days and discussed the benefits that Lisa received from their work. Hopkins conceded that the litigation charges in the Nesbitt case were "overwhelmingly high when compared to [Lisa's] share of the marital estate," but explained that the amount of legal fees incurred was the direct result of the complexities and unique circumstances of the case. He testified that time and money were spent assigning value to unique assets, including the Nesbitt's penthouse, Bruce's three businesses, and Bruce's racing car collection. In addition, the firm was forced to file a number of motions to compel Bruce to comply with discovery requests. Finally, the firm also spent time tracking several ancillary legal proceedings that had the potential to impact the marital estate, including a Colorado criminal case in which Bruce was the defendant, a wrongful termination suit in which Bruce was the defendant, and a legal malpractice suit initiated by Bruce against the attorney who initially represented him in the dissolution proceedings. In Hopkins' opinion, all of the work billed by his firm was fair and reasonable.
Elizabeth Theyssen, an associate at Schiller, DuCanto & Fleck, also performed substantial work on Lisa's case. She testified that she billed Lisa approximately $267,000 for her services. She was not told to itemize her billing statements and break down the time spent on each task; rather, the firm permitted her to list the work she performed and provide one number indicating the total amount of time she spent on all of the combined tasks. Occasionally, on some of her handwritten time sheets, she did provide time allotments for individual tasks; however, some tasks "couldn't be broken out." She was questioned about various billing entries and provided explanations for the work she performed on the Nesbitt case.
Sarane Sierwerth, head of the appellate department at Schiller, DuCanto & Fleck, also worked on the Nesbitt case, billing $36,828.50 for her services. "[F]or the most part," when Sarane completes her...
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