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First Division
June 29, 2001

Petitioner, Mark Beyer, appeals from the circuit court's order holding him in indirect civilcontempt and subjecting him to a period of incarceration for refusing to pay $19,0000 in interimattorney fees to respondent, Nancy Beyer, in violation of the circuit court's order. The circuitcourt granted respondent's petition for fees, pursuant to section 501(c-1) of the Illinois Marriageand Dissolution Act (Dissolution Act) (750 ILCS 501(c-1) (West 1999)), in the course of anaction brought by respondent to vacate a judgment for dissolution of marriage. In reaching itsdetermination, the court relied upon information contained in the petition, response and attachedaffidavits, but did not hold an evidentiary hearing. On appeal, petitioner contends the circuitcourt was without statutory authority to award fees under section 501(c-1) because this provisionapplies exclusively to pre dissolution decree proceedings, while section 508(a) (750 ILCS 508(a)(1999)), which allows for an evidentiary hearing prerequisite to an award of fees, is the onlymechanism to obtain fees in a post decree proceeding. In the alternate, petitioner contends thatthe application of section 501(c-1) to post decree proceedings is unconstitutional, and that respondent's petition for fees was insufficient to support an interim award. This court hasjurisdiction pursuant to Supreme Court Rule 304(b)(5) (155 Ill.2d R. 304(b)(5)), which allowsfor the appeal of orders of contempt imposing monetary or other penalties. For the reasons setforth below, we affirm the circuit court's order granting the petition for fees, and vacate thecircuit court's order holding petitioner in contempt.

Background

On December 15, 1998, respondent, Nancy Beyer (Nancy) filed a motion to vacate ajudgment for dissolution of marriage, entered on July 22, 1993, pursuant to section 2-1401 of theIllinois Code of Civil Procedure (Code) (735 ILCS 5/2-1401) (West 1998)). In her petition,Nancy alleged the marriage settlement agreement, incorporated into the dissolution judgment,was procured by fraud, in that, Mark Beyer (Mark) failed to disclose certain assets of themarriage, namely, an ownership interest in two gas stations and lottery proceeds totaling$289,0000, which were not considered in determining Nancy's maintenance and support for the parties' two minorchildren. On October 2, 1998, Nancy filed a petition, pursuant to section 501(c-1), seekinginterim attorney's fees from Mark in an amount comparable to the fees Mark paid to his ownattorney. In an attached affidavit, Nancy represented she was without any financial resources topay attorney's fees to pursue the action, while Mark had access to vast sources of income derivedfrom the sale of one gas station, the operation of another gas station, and extensive lines of creditwith financial institutions based on these assets. In an attached affidavit, Nancy's counselrepresented that Nancy had incurred $13,701.25 in attorney's fees in connection with the action tovacate the judgment, would likely incur an additional $15,000 in fees, because substantialdiscovery and depositions were necessary, and was without the financial ability to pay either heroutstanding or prospective fees. Attached to the petition was also a financial disclosure affidavitsetting forth Nancy's and the children's income and expenses. Mark moved to dismiss thepetition pursuant to section 2-615 of the Code, on the basis the petition failed to set forthsufficient facts to support an award of fees, which motion the court denied. Mark thereafter fileda response to the petition, representing that he had paid his attorney $18,977.50 in fees and costs,but neither admitting nor denying his ability to pay fees, demanding strict proof thereof. Mark didnot present a counter affidavit or financial disclosure statement with his response.⁽¹⁾

On February3, 1999, after a hearing at which counsel for both parties appeared and argued, the circuit courtgranted Nancy's petition and ordered Mark to pay $19,000 of her attorney's fees. In reaching itsdetermination, the court stated it relied upon the allegations in the petition and the response, inrelation to the relevant factors set forth under section 501(c-1)(1). On February 23, 1999, Nancyfiled a petition for rule to show cause why Mark should not be held in contempt of court becauseof his continuing refusal to pay the interim fees. On March 18, 1999, Mark brought a motion toreconsider the judgment granting the interim fees, arguing the circuit court lacked authority toaward fees under section 501(c-1), which the circuit court denied. On April 9, 1999, Nancy fileda second petition for rule to show cause why Mark should not be held in contempt of court. OnMay 18, 1999, the circuit court found Mark in contempt for failing to pay the fees and sentencedMark to a period of incarceration not to exceed 180 days. Upon posting a bond, Mark obtained astay of judgment pending appeal.

Discussion

Petitioner initially contends that a plain reading of section 501(c-1) reveals the legislatureintended this provision to apply only in pre dissolution decree proceedings, while a plain readingof section 508(a) indicates this provision was intended as the exclusive means to recoverattorney's fees in a post dissolution decree proceeding. Alternately, petitioner maintains thateven if section 501(c-1) applies in post decree litigation, its application in that context isunconstitutional. Because resolution of this appeal hinges on issues of statutory construction andconstitutionality, our standard of review is de novo. E & E Hauling, Inc. v. Ryan, 306 Ill.App.3d131, 136 (1999).

In construing a statute, the goal of the court is to effectuate the legislature's intent. Peoplev. Pullen, 192 Ill.2d 36, 42 (2000). To this end, a court may consider the reason and necessity forthe statute and the evils it was intended to remedy, and will assume the legislature did not intendan absurd or unjust result. Pullen, 192 Ill.2d at 42. Any inquiry into legislative intent, however,must begin with the language of the statute, which is the surest and most reliable indicator oflegislative intent. Pullen, 192 Ill.2d at 42. Under the guise of construction, a court may notsupply omissions, remedy defects, annex new provisions, substitute different provisions, addexceptions, limitations, or conditions, or otherwise change the law so as to depart from the plainmeaning of language employed in the statute. Superior Structures Co. v. City of Sesser, 292Ill.App.3d 848, 852 (1997). If the language of the statute is clear, its plain and ordinary meaningmust be given effect without resorting to other aids of construction. In re Marriage of Mitchell,181 Ill.2d 169, 173 (1998).

On June 1,1997, the legislature amended the Dissolution Act, thereby creating a newregime governing the award of attorney's fees. See Pub. Act 89-712, eff. June 1, 1997. Prior toamendment, section 508 alone governed attorney's fee awards, including "temporary" fee awards,and provided in pertinent part:

" (a) The court from time to time, after due notice and hearing, and afterconsidering the financial resources of the parties, may order any party to payreasonable attorney's fees necessarily incurred or, for the purpose of enabling aparty lacking sufficient financial resources to obtain or retain legal representation,expected to be incurred by any party, which award shall be made in connectionwith the following:***

(4) The maintenance or defense of a petition brought under Section 2-1401 of the Code of Civil Procedure seeking relief from a final order or judgment under this Act *** " 750 ILCS 5/508(a) (West 1996).

Although section 501 recognized certain forms of "temporary relief" which could be obtained through the submission of petitions and affidavits, in the absence of an evidentiary hearing, andwithout prejudice to later modification, attorney's fees were not one of these. 750 ILCS 5/501(West 1996). In order to obtain attorney's fees under the "old" version of 508, therefore, anevidentiary hearing was necessary.

The 1997 amendments changed this, however, introducing a separate, independent provision to govern "temporary" or "interim" fee awards, section 501(c-1), and reconfiguringsection 508(a) into an umbrella provision which links the separate statutes on attorney's feesunder the Dissolution Act. As amended, section 508(a) now reads:

" (a) The court from time to time, after due notice and hearing, and afterconsidering the financial resources of the parties may order any party to pay areasonable amount of his own or the other party's costs and attorney's fees. Interimattorney's fees and costs may be awarded from the opposing party, in accordancewith subsection (c-1) of section 501. At the conclusion of the case, contribution toattorney's fees and costs may be awarded from the opposing party in accordancewith subsection (j) of 503. Fees and costs may be awarded to counsel from aformer client in accordance with subsection (c) of this Section. Awards may bemade in connection with the following: ***

(4) The maintenance or defense of a petition brought under Section 2-1401of the Code of Civil Procedure seeking relief from a final order orjudgment under this Act. ***" 750 ILCS 508(a) (West 1997).

As amended, section 501, in turn, provides:

"Temporary Relief. In all proceedings under this Act, temporary relief shall be asfollows:***

(c-1) As used in this subsection (c-1), "interim attorney's fees and costs" meansattorney's fees and costs assessed from time to time while a case is pending, infavor of the petitioning party's current counsel, for reasonable fees and costs eitheralready incurred or to be incurred, and "interim award" means an award of interimattorney's fees and costs. Interim awards shall be governed by the following:

(1) Except for good cause shown, a proceeding for (or relating to) interim fees andcosts shall be nonevidentiary, summary in nature, and expeditious. When a partyfiles a petition for interim attorney's fees and costs supported by one or moreaffidavits that delineate relevant factors, the court (or hearing officer) shall assessan interim award after affording the opposing party a reasonable opportunity tofile a responsive pleading. A responsive pleading shall set out the amount of eachretainer or other payment or payments, or both, previously paid to the respondingparty's counsel by or on behalf of the responding party. In assessing an interimaward the court shall consider all relevant factors, as presented, that appearreasonable and necessary, including:

(A) the income and property of each party, including alleged maritalproperty within the sole control of one party and alleged non-maritalproperty within access to a party;

(B) the needs of each party;

(C) the realistic earning capacity of each party;

(D) any impairment to present earning capacity of either party, includingage and physical and emotional health;

(E) the standard of living established during the marriage;

(F) the degree of complexity of the issue, including custody, valuation ordivision (or both) of closely held businesses, and tax planning, as well asreasonable need for expert investigations or expert witnesses, or both;

(G) each party's access to relevant information;

(H) the amount of the payment or payments made or reasonably expectedto be made to the attorney for the other party; and

(I) any other factor that the court expressly finds to be just and equitable.

(3) In any proceeding under this subsection (c-1), the court (or hearingofficer)shall assess an interim award against an opposing party in an amountnecessary to enable the petitioning party to participate adequately in thelitigation, upon findings that the party from whom attorney's fees and costsare sought has the financial ability to pay reasonable amounts and that theparty seeking attorney's fees and costs lacks sufficient access to assets orincome to pay reasonable amounts. In determining an award, the court shallconsider whether adequate participation in the litigation requires expenditure ofmore fees and costs for a party that is not in control of assets or relevantinformation. Except for good cause shown, an interim award shall not be lessthan payments made or reasonably expected to be made to the counsel forthe other party. If the court finds that both parties lack financial ability or accessto assets or income for reasonable attorney's fees and costs, the court (or hearingofficer) shall enter an order that allocates available funds for each party's counsel,including retainers or interim payments, or both, previously paid, in a manner thatachieves substantial parity between the parties.

(4)The changes to this Section 501 made by this amendatory Act of 1996 apply to cases pending on or after June 1, 1997, except as otherwise provided in Section508.

(d) A temporary order entered under this Section:

(1) does not prejudice the rights of the parties or the child which are to beadjudicated at subsequent hearings in the proceeding;

(2) may be revoked or modified before final judgment, on a showing by affidavitand upon a hearing; and

(3) terminates when the final judgment is entered or when the petition for dissolution of marriage or legal separation or declaration of invalidity of marriage is dismissed." (emphasis added) 750 ILCS 5/501 (West 1997).

In amending sections 508(a) and 501(c-1), the legislature also amended section 102 of theDissolution Act, which sets forth the purpose and rules of construction under the Act. Prior toamendment, section 102 provided, in pertinent part:

"This Act is to be liberally construed and applied to promote its underlying purposes,which are to: ***

(5) make reasonable provisions for spouses and their children during and afterlitigation;***" 750 ILCS 102(5) (West 1996).

As amended, section 102 now reads:

"This Act is to be liberally construed and applied to promote the underlying purposes,which are to: ***

(5) make reasonable provision for spouses and minor children during and after litigation,including provision for the timely awards of interim fees to achieve substantial parity inthe parties access to funds for litigation costs; ***" 750 ILCS 5/102(5) (West 1997).

As an indication that section 501(c-1) was intended to apply only in pre dissolutiondecree proceedings, petitioner points out that several of the factors listed under 501(c-1)(1) areapplicable only in a pre dissolution decree setting, most notably, section 501(c-1)(1)(A), theparties' access to "alleged marital property" and "alleged non-marital property." As furtherindicia of this intent, petitioner notes the language of section 501(c-1)(2) creates a presumptionthat "interim awards*** shall be deemed to have been advances from the marital estate"; apresumption which can only operate prior to the entry of a dissolution decree.

The problem with this proposed construction is that it ignores the plain language of thestatue and concentrates only on limited language excised from the context of the statute as awhole. The most compelling evidence that the legislature intended 501(c-1) to apply in postdecree proceedings, however, is the express language of section 501 itself, which indicates that "temporary relief," including "interim attorney's fees," is available in "all proceedings" under theDissolution Act. Further, section 501(c-1) must reasonably be understood in view of theconcomitant changes to section 508(a). Section 508(a), when read as an integrated whole,expressly indicates that "interim attorney's fees and costs" may be awarded "in accordance withsubsection (c-1) of section 501" and in connection with "the maintenance or defense of a petitionbrought under Section 2-1401 of the Code of Civil Procedure seeking relief from a final order orjudgment under this Act." This construction, we note, further agrees with the amended languageof section 102(5), which defines the goal of interim awards broadly as "substantial parity in theparties access to funds for litigation costs" both "during and after litigation."

Although petitioner is correct that some of the factors listed under 501(c-1)(1) would beirrelevant in a post decree proceeding, we note the statute does not mandate consideration of eachand every factor listed, only the "relevant factors, as presented, that appear reasonable."Similarly, although the language of section 501(c-1)(2) creates a presumption that "interimawards" are to be deemed "advances from the marital estate" this is presumption is qualified withthe prefatory language, "unless ordered by the court at the final hearing between the parties or ina hearing under subsection (j) of 503 or subsection (c) of 508." Ideally, any judicial inquiry intolegislative intent should begin and end with a plain reading of the statute. Such a situation ispresented here, as the plain language of section 501(c-1), as well as section 508(a), isunambiguous. Under a plain reading of the statute, we conclude the legislature intended section501(c-1) to apply in post decree proceedings.

Having determined that section 501(c-1) applies in post decree proceedings, we still mustaddress whether its application in that context is constitutional. While petitioner's brief is unclearas to whether his constitutional attack on section 501(c-1) is brought under substantive dueprocess or procedural due process, petitioner appears to contend that in a post decree proceedingsection 501(c-1): (1) violates substantive due process because it is an overly broad restraint onnon marital property, and (2) violates procedural due process because it does not afford a partythe right of an evidentiary hearing before taking non marital property.

In evaluating a substantive due process claim concerning non fundamental rights, thecourt applies the "rational basis test." Kaufman, Litwin & Feinstein v. Edgar, 301 Ill.App.3d 826,836 (1998). Under this test, the court must determine whether the legislation has a reasonablerelationship to the public interest sought to be protected and whether the means the legislatureadopted to achieve its goals reasonably related to such goals. Kaufman, 301 Ill.App.3d at 836.

Previously, in Kaufman, this court examined the constitutionality of section 501(c-1), under therubric of substantive due process. Applying the rational basis test, the court found section 501(c-1) to be facially constitutional, rejecting plaintiff's claim the statute violated substantive dueprocess by depriving lawyers of the right to keep fees they had earned. Kaufman, 301 Ill.App.3dat 836. Still, the court noted its holding would not preclude a later finding that section 501(c-1)was unconstitutionally applied under particular circumstances. Kaufman, 301 Ill.App.3d at 836. In this case, because we are presented with a constitutional attack on a different aspect of thestatute than was presented in Kaufman, we engage in an independent analysis under substantivedue process.

Here, the crux of petitioner's substantive due process claim is that section 501(c-1), as itapplies in post decree proceedings, is analogous to the statute at issue in Messenger v. Edgar, 157Ill.2d 162 (1993), which the Illinois Supreme Court found unconstitutional under a substantivedue process analysis. In Messenger, the statute in question was section 501.1(a)1 of theDissolution Act, which created an automatic stay prohibiting spouses from transferring ordisposing of any property, both marital and non marital property, upon the filing of a dissolutionaction. Messenger, 157 Ill.2d at 167-69. Applying the rational basis test, the Supreme Courtfound that the statute was not a rational means of accomplishing its stated goal, preventing thedissipation and concealment of marital assets because it imposed an automatic stay restrainingnot only martial property, but also non marital property, which the other spouse could in no waylay claim to. Messenger, 157 Ill.2d at 176-77.

Contrary to petitioner's assertion, we do not find section 501(c-1) shares the sameconstitutional infirmity as the statute in Messenger. In enacting section 501(c-1), the legislature'sgoal was to level the playing field by equalizing the parties litigation resources where it is shownthat one party can pay and the other party cannot. In re Marriage of DeLaraco, 313 Ill.App. 3d107, 113 (2000). Essentially the same goal underlies section 508(a): to equalize the relativepositions of the parties before the court by shifting liability for attorney fees, thereby diminishingthe advantage one party may have over the other in the presentation of a case due to a disparity intheir respective financial resources. Lee v. Lee, 302 Ill.App.3d 607, 612 (1998). Here, petitioneracknowledges section 508(a), in permitting liability for attorney's fees to be reallocated betweenthe parties in post decree actions, is valid a means rationally related to a legitimate publicobjective. Petitioner's attack on section 501(c-1) is therefore directed primarily against the meansadopted, rather than the legitimacy of the statute's public purpose.

As distinguished from section 508(a), section 501(c-1) streamlines the method by which afinancially disadvantaged party may obtain attorney's fees during the pendency of litigation. Byeliminating the hurdle of an evidentiary hearing in most cases, section 501(c-1) limits the abilityof a party in a financially advantageous position from using the other party's lack of adequatefunds as tactical tool, and allows an economically disadvantaged party to retain counsel in atimely fashion. See A General Explanation of the "Leveling the Playing Field" in DivorceLitigation Amendments, 11-SEP CBA Rec.32 (1997). Section 501(c-1), unlike section 508(a),also presumes to equalize the parties' access to litigation resources, creating a rebuttablepresumption that "an interim award shall not be less than the payments made or expected to bemade to the counsel for the other party." 750 ILCS 501(c-1)(3) (West 1997). Still, thispresumption can only come into play once the party seeking fees demonstrates an inability to payfees and the ability of the other party to do so; this being the same burden a party seeking feesmust sustain when bringing a petition under section 508(a). By allowing interim awards pursuantto summary procedures, yet also allowing for the modification of awards before a final hearing,section 501(c-1) attempts to effect an equitable compromise between two competing concerns.On the one hand, by permitting underlying claims to proceed towards a determination on themerits, without a protracted sub- trial on fees at the outset, section 501(c-1) prohibits afinancially advantaged party from "stringing out" the litigation so as to force a financiallydisadvantaged party into ceding valid claims. See A General Explanation of the "Leveling thePlaying Field" in Divorce Litigation Amendments, 11-SEP CBA Rec.32(1997); See also, "Leveling the Playing Field in Divorce: Questions and Answers About the New Law, 85 Ill.BarJournal 410-11 (1997). On the other hand, in recognition that interim awards are truly a form of"temporary relief," and that facts and circumstances change and develop in course of litigation,section 501(c-1) still allows for the modification or revocation of any award. 11-SEP CBARec.32-33.

Unlike the statute in Messenger, which imposed a sweeping restraint on all non martialassets for purposes of preventing the dissipation of marital assets, however, section 501(c-1)specifically avoids the problem of over breadth by providing that any over payment of fees,whether derived from marital or non marital property, can be ordered to be remitted back to aparty. See,1 H. Gitlin, Gitlin on Divorce