In re Marriage of Berto

• Decision Date: 17 November 2003
• Docket Number: No. 2-02-1022.,2-02-1022.
• Citation: 279 Ill.Dec. 482,344 Ill. App.3d 705,800 N.E.2d 550
• Parties: In re MARRIAGE OF Colleen BERTO, Petitioner-Appellant, and Douglas Berto, Respondent-Appellee.
• Court: United States Appellate Court of Illinois

800 N.E.2d 550

344 Ill. App.3d 705

279 Ill.Dec. 482

In re MARRIAGE OF Colleen BERTO, Petitioner-Appellant, and

Douglas Berto, Respondent-Appellee.

No. 2-02-1022.

Appellate Court of Illinois, Second District.

November 17, 2003.

David B. Yavitz, Lake, Toback & Yavitz, Chicago, Andrea B. Friedlander, Deerfield, for Colleen Berto.

Robert A. White, Christopher A. White, White, Scott & White, Lake Bluff, for Douglas Berto.

Presiding Justice HUTCHINSON delivered the opinion of the court:

Petitioner, Colleen Berto, appeals from the trial court's dismissal of her petition for attorney fees brought pursuant to sections 508(a) and (b) of the Illinois Marriage and Dissolution of Marriage Act (the Act) (750 ILCS 5/508(a), (b) (West 2000)). Petitioner sought attorney fees following the discharge of a rule to show cause against respondent, Douglas Berto, which was premised on his failure to pay the required amount of unallocated maintenance and child support to petitioner. Following a hearing, the trial court determined that it lacked jurisdiction to hear petitioner's fee petition based on this court's ruling in In re Marriage of Konchar, 312 Ill.App.3d 441, 245 Ill.Dec. 224, 727 N.E.2d 671 (2000). Petitioner also appeals from the trial court's order discharging the rule to show cause and from the trial court's refusal to award interest on the arrearage of unallocated maintenance and child support. We affirm in part, reverse in part, and remand.

In October 1999 the trial court dissolved the marriage of the parties. In its judgment for dissolution of marriage, the trial court incorporated the parties' marital settlement agreement by reference. Pursuant to the marital settlement agreement, respondent agreed to pay petitioner, for "Unallocated Reviewable Maintenance and Child Support," $23,500 per month, from September 10, 1999, through August 31, 2007. The agreement reflected that the amount of unallocated maintenance and child support would "be subject to review and possible modification based upon a substantial and material change in circumstances." The agreement also provided that "[t]he parties may only amend or modify this Agreement by a subsequent written agreement dated and signed by them. No oral agreement shall be effective to, in any manner, modify or waive any terms or conditions of this Agreement."

On May 29, 2001, respondent filed a petition to reduce unallocated maintenance and child support. In his petition, respondent stated that, at the time of the dissolution, he "was making" approximately $1.3 million per year. Respondent averred that, as a result of the division of his employer on June 1, 2001, he would become a salaried employee with an anticipated income of $57,750 per month, subject to taxes and withholding. Respondent further averred that, because his income was "essentially halved," a substantial change in circumstances warranted the modification of the unallocated maintenance and child support. On June 28, 2001, petitioner moved to dismiss respondent's petition to reduce pursuant to section 2-615 of the Code of Civil Procedure (the Code) (735 ILCS 5/2-615 (West 2000)), challenging the foundational bases of respondent's averments. On June 28, 2001, the trial court allowed the filing of petitioner's petition for rule to show cause for indirect civil contempt for nonpayment of unallocated maintenance and child support. In her petition, petitioner alleged that, without provocation or cause and without the permission of the trial court, respondent unilaterally reduced his monthly $23,500 obligation by $10,000. Petitioner also alleged that, as a result of respondent's conduct, she had incurred attorney fees in the preparation, presentation, and litigation of her petition for rule to show cause. Petitioner requested the trial court to enter an order requiring respondent (1) to show cause why he should not be held in contempt; (2) to pay the $10,000 arrearage; and (3) to pay petitioner's attorney fees and costs.

Following a hearing conducted on July 24, 2001, the trial court granted petitioner's motion to dismiss respondent's petition to reduce unallocated maintenance and child support. The trial court also granted petitioner's petition and issued a rule to show cause against respondent for indirect civil contempt for his failure to pay proper amounts of support, which at that time was $20,000 in arrears.

On August 7, 2001, respondent filed a second petition to reduce unallocated maintenance and child support. On September 4, 2001, respondent moved to "voluntarily nonsuit" "this action" pursuant to section 2-1009 of the Code (735 ILCS 5/2-1009 (West 2000)) "without prejudice and pursuant to this Motion * * * tendering costs to the defendant."

On September 6, 2001, the trial court conducted hearings on respondent's petition to reduce unallocated maintenance, including respondent's motion for voluntary nonsuit, and on the return of the rule to show cause for indirect civil contempt. The trial court found that respondent tendered the full amount of the arrearage, which by that time was $30,000, in open court. It determined that the provision of section 505 of the Act (750 ILCS 5/505 (West 2000)) regarding interest did not apply to unallocated maintenance and child support and, therefore, no interest was due petitioner. Following arguments of the parties, the trial court declined to hold respondent in indirect civil contempt of court for his admitted failure to pay petitioner the proper amount owing for unallocated maintenance and child support. Petitioner's counsel requested a continuance on the hearing for the rule to show cause so the court could hear argument on petitioner's fee petition at the same time; the trial court denied the request. The trial court ordered the rule discharged and granted petitioner 28 days to file a petition for an award of attorney fees.

On September 7, 2001, the trial court issued a written order finding, inter alia, respondent's motion for voluntary nonsuit applied only to respondent's petition to reduce unallocated maintenance and child support, and the nonprosecution of respondent's petition to reduce worked no injustice or prejudice to petitioner. The trial court ordered that respondent's petition to reduce could be nonsuited or withdrawn without prejudice.

On October 2, 2001, petitioner filed her petition for award of attorney fees, sanctions, and other relief pursuant to sections 508(a) and (b) of the Act (750 ILCS 5/508(a), (b) (West 2000)) and pursuant to Supreme Court Rule 137 (134 Ill.2d R. 137). Petitioner sought $52,346 in previously incurred attorney fees, plus attorney fees and costs incurred responding to respondent's two petitions to reduce his maintenance and child support obligation and prosecuting petitioner's petition for rule to show cause. Petitioner also sought $110,500 in sanctions and fines pursuant to Rule 137 against respondent and his counsel for allegedly making false statements in their pleadings and in open court, and for intentionally misrepresenting that respondent's income would be "halved," when it had actually increased.

On December 4, 2001, respondent filed his response to petitioner's petition for attorney fees and sanctions. Respondent admitted that, for the months of June, July, and August 2001, he unilaterally reduced his support obligation by $10,000 and made only partial payments of $13,500. Thereafter, on June 17, 2002, respondent filed a motion for leave to withdraw his December 2001 response. Respondent sought to file instead a motion to strike and dismiss petitioner's fee petition for lack of jurisdiction pursuant to section 2-615 of the Code (735 ILCS 5/2-615 (West 2000)). Respondent argued that the fee petition was barred pursuant to section 503(j) of the Act (750 ILCS 5/503(j) (West 2000)), as interpreted by this court in Konchar, 312 Ill.App.3d 441, 245 Ill.Dec. 224, 727 N.E.2d 671.

On June 17, 2002, the trial court conducted a hearing on respondent's motion to dismiss petitioner's fee petition. Following arguments of the parties, the trial court entered an order dismissing all allegations and requests for fees pursuant to section 508 of the Act in that "the court lacks jurisdiction to hear the fees." The trial court denied petitioner's request for a Supreme Court Rule 304(a) (155 Ill.2d R. 304(a)) finding. On July 9, 2002, petitioner filed her motion to reconsider the trial court's rulings on respondent's dismissal motion and the Rule 304(a) finding. On September 3, 2002, following arguments of the parties, the trial court denied petitioner's motion to reconsider as it related to the fee petition, but it made a finding pursuant to Supreme Court Rule 304(a). Petitioner timely appeals.

Before reaching the merits of petitioner's appeal, we must dispense with respondent's objection to jurisdiction. When an action involves multiple claims for relief, an order that finally resolves only one claim is not immediately appealable unless the trial court has found in writing that there is no just reason to delay either enforcement or appeal or both. 155 Ill.2d R. 304(a); In re Marriage of Alyassir, 335 Ill.App.3d 998, 999, 270 Ill.Dec. 419, 782 N.E.2d 978 (2003), citing Marsh v. Evangelical Covenant Church, 138 Ill.2d 458, 464, 150 Ill.Dec. 572, 563 N.E.2d 459 (1990). Here, neither party disputes that the trial court made a Rule 304(a) finding. Respondent argues, however, that the trial court abused its discretion when it made the Rule 304(a) finding because petitioner's claim for fees pursuant to section 508 of the Act is so entwined with the remaining claim for sanctions pursuant to Rule 137 that a "piecemeal" appeal of the dismissed claim is improper. We disagree.

On August 22, 2002, respondent filed his response to petitioner's motion to reconsider. As to the Rule 304(a) issue, respondent stated only "[w]hether [the trial court's] order is final for purposes of appeal is irrelevant to the inquiry under Section 503(j)...