Shen v. Shen

Decision Date30 June 2015
Docket Number& 1–14–2118 cons..,1–13–1131,1–14–1795,Nos. 1–13–0733,s. 1–13–0733
Citation35 N.E.3d 1178
PartiesIn re Marriage of Feng SHEN, Petitioner–Appellee and Cross–Appellant, v. Janet SHEN, Respondent–Appellant and Cross–Appellee.
CourtUnited States Appellate Court of Illinois

Lake Toback, of Chicago (Michael G. DiDomenico, of counsel), for appellant.

Alan H. Shifrin & Associates, LLC, of Rolling Meadows (Terry D. Slaw, of counsel), for appellee.

OPINION

Presiding Justice PUCINSKI

delivered the judgment of the court, with opinion.

¶ 1 This marriage dissolution appeal was brought by way of numerous appeals, which we consolidated, and numerous issues on appeal. For clarity, we summarize our holdings as follows.

¶ 2 First, the circuit court's provision regarding maintenance in the dissolution judgment that the wife's maintenance terminate on her sixty-sixth birthday under the Illinois Marriage and Dissolution of Marriage Act (Act) ( 750 ILCS 5/101 et seq.

(West 2012)) was an abuse of discretion where there was no evidence in the record of the dissolution proceeding supporting the court's decision to award a limited duration of maintenance to the wife only up to the retirement age of 66, and the evidence instead established that the wife would not be able to support herself and would require permanent maintenance. We reverse the maintenance order in the dissolution judgment and order that the circuit court amend the provision in the dissolution judgment awarding maintenance to the wife to award her permanent maintenance, with the termination factors under section 510(c) of the Act (750 ILCS 5/510(c) (West 2012)), and including the court's provision for review of the maintenance award if the wife attains an income of at least $45,000.

¶ 3 Second, the circuit court erred when it entered an order on October 12, 2011 that ordered the husband's 401(k) retirement account liquidated to, in part, satisfy interim attorney fees in contravention of In re Marriage of Radzik, 2011 IL App (2d) 100374, 353 Ill.Dec. 124, 955 N.E.2d 591

, where the court held that retirement accounts are exempt under section 12–1006 of the Code of Civil Procedure (735 ILCS 5/12–1006 (West 2010) ). We therefore must reverse this order, entered on October 12, 2011. As the wife sought reversal of this order but did not indicate what relief she sought concerning the use of the retirement funds to pay the attorneys, we remand for further proceedings and relief on remand.

¶ 4 Third, the court did not use the wrong legal standard in deciding to deny the wife's request for contribution to attorneys fees, as the Illinois Supreme Court continues to espouse the rule from In re Marriage of Schneider, 214 Ill.2d 152, 174, 291 Ill.Dec. 601, 824 N.E.2d 177 (2005)

, that the spouse petitioning for contribution to attorney fees must show an inability to pay and the ability of the other spouse to pay, and this was the standard followed by the court. The evidence supported the husband also did not have the ability to pay fees and so the court's denial of the wife's request for contribution was not an abuse of discretion. We affirm the portion of the dissolution judgment denying the wife contribution to her attorney fees.

¶ 5 Fourth, we reject the wife's argument that the court's order requiring Janet to pay half of the child representative's fees was error because it was a de facto order that she pay the fees from her awarded half of the husband's retirement account because that was the only asset of value she was awarded in the judgment. The court did not in fact order payment of the child representative's fees from the retirement account funds but merely ordered that each party pay half of the fees, and the wife provided no support for this contention. We affirm the portion of the dissolution judgment requiring the wife to pay half of the child representative's fees.

¶ 6 Fifth, the provision in the dissolution judgment ordering that the parties' Florida time share be sold merely indicated priority of payment of the proceeds to the child representative first, and did not order the sale of the time share for the specific purpose of paying the child representative's fees. Moreover, section 506(b) of the Act (750 ILCS 5/506(b)

(West 2010)), governing child representative's fees, serves a different purpose than the general attorney fees provision of section 508 (750 ILCS 5/508 (West 2010) ) of the Act and, unlike section 508, allows payment from “any” source, including from “the marital estate.” We affirm the provision in the dissolution judgment ordering that the parties' Florida time share be sold.

¶ 7 Sixth, because the issue of the trial court's award of the marital home to the husband may be moot due to foreclosure, and the wife did not provide any citations to the record or any facts responding to the issue of foreclosure, we cannot adequately address the wife's appeal of the portion of the judgment awarding the marital home to the husband. We decline the wife's request for us to exercise our power pursuant to Illinois Supreme Court Rule 366(a)(5)

(eff. Feb. 1, 1994). Rather, since the case is being remanded, the wife has an opportunity to file a petition pursuant to section 2–1401 of the Code of Civil Procedure (735 ILCS 5/2–1401 (West 2010) ), with an affidavit and supporting facts, for determination by the circuit court.

¶ 8 Seventh, the trial court did not abuse its discretion in denying the husband's motion to modify maintenance based on his alleged change in employment status. The court did not err in its consideration of statutory factors where consideration of whether a change in employment status was made in bad faith is required by section 510(a–5)(1) of the Act. 750 ILCS 5/510(a5)(1)

(West 2010). The court also was well within its discretion under statute to consider any other factor it deemed equitable and just under section 510(a–5)(9) of the Act (750 ILCS 5/510(a5)(9) (West 2010)), including the impact the husband's bad-faith change in his employment status had on the minor child's health care costs and to consider the husband's pattern of not paying support as part of the facts supporting its determination of bad faith. The manifest weight of the evidence also supported the trial court's decision not to credit the husband's treating physician's testimony of a lower back condition, where there was no objective evidence of such a condition other than the husband's own self-reporting of symptoms. We affirm the trial court's order denying the husband's petition to modify maintenance.

¶ 9 BACKGROUND

¶ 10 The parties, Feng Shen and Janet Shen, were married on July 21, 1990. The parties had three children: Xiuli Shen, born March 27, 1991; Matthew Shen, born February 7, 1992; and Andrew Shen, born March 3, 1996. Feng filed a petition for dissolution of the marriage on April 1, 2009. As of the date of the judgment for dissolution of marriage, Xiuli was 21 years old; Matthew was 20 years old; and Andrew was 16 years old and the only minor child subject to statutory child custody and support provisions.

¶ 11 On April 14, 2009, Janet filed a petition for temporary support and a petition for interim attorney fees. Janet's petition for temporary support sought child support and contribution from Feng for expenses related to the marital residence. On April 21, 2009, the case was transferred to district 2. On May 19, 2009, Feng filed his response to Janet's petition for temporary support and petition for interim attorney fees. After holding a hearing, the court entered a temporary support enter setting Feng's unallocated support at $1,260 per month. The portion petitioning for Feng's contribution to the home expenses was entered and continued. After a second hearing, Feng was ordered to pay $1,000 per month toward the mortgage and equity line on the marital residence and was ordered to pay $1,500 to Janet's attorney for interim fees.

¶ 12 On May 3, 2010, the court, on its own motion, appointed a child's representative for the parties' minor son Andrew. There were numerous issues presented regarding Andrew, including Andrew's history of anxiety and other medical issues resulting in several hospitalizations, as well as excessive school absenteeism since the eighth grade, which resulted in beginning a homeschooling program, despite a January 12, 2010 court order to enroll Andrew in public school. Janet and Feng were ordered to pay Andrew's representative $1,500 each for his initial retainer.

¶ 13 Prior to trial, Janet filed for bankruptcy and retained new counsel. The parties agreed to waive the stay of the divorce proceedings.

¶ 14 A trial was held on July 14, 2010, through July 15, 2010, September 7, 2010, October 21, 2010, October 18, 2012, October 19, 2012, and October 23, 2012. Feng testified that in 2008 the parties' combined income was about $105,000, approximately $70,000 earned by Feng and $36,000 earned by Janet. Feng testified regarding his stock trading before and during the marriage, as well as other financial matters, including the values of various accounts, including his 401(k) account through his employer, Trader Joe's, where he worked as a manager. Feng also testified regarding various debts owed, including promissory notes to his father and sister for money Feng had borrowed to cover his expenses and the mortgage and home equity line of credit on the marital residence, and various credit card debts. Feng further testified regarding the parties' minor child Andrew's education during 2008, his home-schooling during 2008–09, Andrew's psychological issues, Feng's general relationship with Andrew, and his visitation with the Andrew since the parties' separation. On cross-examination, Feng explained that he left the marital residence on January 3, 2009, after an incident between him and Janet during which he grabbed Janet's arm. Certain stipulations were also entered into the record.

¶ 15 Janet called Anna May Schadeck, who testified regarding her observations of Janet as a...

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