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FOURTH DIVISION
AUGUST 30, 2001

1-99-3721

Respondent Theodore LaFeber, III (Ted) appeals from certain provisions ofa reconsidered judgment for dissolution of marriage entered in the circuit courtof Cook County on September 28, 1999, and from a memorandum order and opinionentered in connection with the reconsidered judgment on August 6, 1999. Onappeal, Ted raises multiple issues, contending that the court abused itsdiscretion in its award of attorney and expert fees and costs, and refusing toreadjust and reallocate its division of marital assets and liabilities aftercorrecting an initial error in the categorization and award of a 1997 income taxrefund.

Ted also moved to set bond on October 25, 1999, to stay enforcement of themoney judgment for attorney fees. The circuit court initially set thesupersedeas bond for $675,000 on December 3, 1999, to cover the entire amount ofthe judgment; however, Ted successfully moved to reduce the bond in this courton the basis that the only money judgment issue he would appeal related to theaward of attorney fees and expert fees amounting to $83,500. Approval of thebond, reduced to $150,000 to cover those obligations, was granted on May 18,2000. After Ted's brief was filed with this court, petitioner Francesca Suriano(Francesca) moved to strike the second section of his brief, alleging thatbecause the supersedeas bond covered only the amount of attorney fees and expertfees, Ted could not raise the argument on appeal for readjustment andreallocation of the 1997 income tax refund, contained in point II. On June 16,2000, an order was entered to take the motion with the case.

The issues presented on appeal include whether the circuit court abused itsdiscretion (1) in its award of attorney and expert fees and costs to Francesca;and (2) in its allocation and nonadjustment of a 1997 income tax refund.

Francesca and Ted were married on May 27, 1990, in Chicago, and have twominor children from the marriage. They separated on or about July 17, 1997. OnSeptember 2, 1997, Francesca petitioned for dissolution of marriage. Tedresponded and filed a counter-petition for dissolution of marriage on October 10,1997. Francesca filed a response to the counter-petition on November 4, 1997.

Thereafter, the case moved through discovery, raising questions ofvaluation of Ted's business interests, dissipation of assets, maintenance, childsupport and other contested matters. Trial commenced on June 24, 1999. On July29, 1999, the circuit court heard closing argument, the focus of which dealt withthe issue of whether Ted's business interests would be deemed marital property. The court took the matter under advisement and thereafter ordered, inter alia,that petitions for contribution to attorney fees were to be filed before August10, 1999, and that the judgment for dissolution of marriage would not be entereduntil resolution of the contribution issue.

On August 6, 1999, the circuit court issued a written memorandum opinion,findings, conclusions and order following trial on the issue of dissolution. Thememorandum opinion made findings as to both valuation and division of theproperty, and expressly stated that it was "not a final order and is to besuperseded by the judgment of dissolution to be entered herein. Pending entry,enforceability, and effectiveness of such judgment, all temporary orders shallcontinue." The court ruled that Ted's interests in the family businessesconstituted marital property, and awarded Francesca $608,017, being 40.91% of themarital estate. Ted was awarded with $878,171, or 59.09% of the total value ofmarital property. Also, the court found that a 1997 income tax refund (taxrefund) was an asset of the estate, which it awarded to Ted.

The memorandum opinion anticipated the adjudication of fee contributionpetitions and its impact on the division of property by the circuit court priorto the entry of judgment for dissolution of marriage; it expressly provided thathearings for the petitions for contribution were to be scheduled for a date priorto the entry of judgment and draft judgments of dissolution in conformity withthe memorandum were to be submitted leaving provision for inclusion of a section503(j) (750 ILCS 5/503(j) (West Supp. 1999) (section 503(j))) contributionpursuant to the Marriage and Dissolution of Marriage Act (750 ILCS 5/101 (West1998) (Act)).

Francesca petitioned for contribution to attorney and expert fees and costson August 10, 1999, seeking payment totaling $151,534, pursuant to section 503(j)of the Act, contending that because Ted received a disproportionate share of themarital estate and was awarded a business interest that would continue togenerate significant income, Ted should pay for her attorneys' and experts' feesand costs. Ted filed his petition for contribution to attorney fees the sameday, under sections 508(a) and (b) (750 ILCS 5/508(a) and (b) (West 1998)(section 508(a))) of the Act. Ted's petition claimed, in relevant part, thatFrancesca was obligated to contribute to the payment of his attorneys' fees dueto her own conduct throughout the divorce proceedings, which included a findingof contempt of court and sanctions. In her response to Ted's petition, Francescadenied Ted's substantive allegations and argued that the circuit court wasobliged to make any and all fee determinations under the considerations ofsection 503 (750 ILCS 5/503 (West Supp. 1999) (section 503)). Ted, in hisresponse to Francesca's petition, denied that section 503 trumps section 508 (750ILCS 5/508 (West 1998) (section 508)) and, as a result, limits the court in termsof what factors and criteria may be considered with respect to fee petitions. Ted contended that an evidentiary hearing mandatorily was required and demandedsuch a hearing on the outstanding fee issues. On September 2, 1999, the courtconducted a hearing on the petitions for contribution for attorney fees.⁽¹⁾

During the hearing, Ted reasserted the arguments made in his writtenpleadings challenging the reasonableness of Francesca's request for fees andcontinued to demand that the circuit court conduct an evidentiary hearing for thepost-trial fee dispute, noting the unfairness of paying additional sums toFrancesca's estate when his award primarily consisted of liquid assets. Finally,Ted sought to make an offer of proof with regard to pre-trial settlementnegotiations to resolve the fee dispute.

After lengthy argument by both parties, the circuit court rejected Ted'soffer of proof of settlement negotiations and found that section 503 did notmandate an evidentiary hearing for attorney fees. Further, the court deniedTed's petition and granted Francesca's petition to the extent that it ordered Tedto contribute from his share of the marital estate the aggregate sum of $93,491toward Francesca's attorneys' and experts' fees and costs. The aggregate sumamounted to 75% of the 82% balance owed to Francesca's attorneys and expertwitnesses. The court also rejected Ted's request that the fee award be handledon a percentage basis of fees actually and unilaterally paid by Francesca, asopposed to fees billed but unpaid at the time of the hearing and decision.

On September 3, 1999, the circuit court heard further argument concerningthe specific language sought by each party in the forthcoming judgment fordissolution of marriage. The parties discussed scheduling a hearing on any post-trial motions that either party may file pursuant to section 2-1203 of the Codeof Civil Procedure (735 ILCS 5/2-1203 (West 1998) (section 2-1203)), seekingclarification, reconsideration or modification of the judgment. The courtentered an order providing for the judgment on the fees and set a hearing forSeptember 13, 1999, for any post-trial motions to be filed.

The judgment for dissolution of marriage was entered on September 7, 1999,and included the circuit court's findings on the petitions for contribution toattorney fees, specifically acknowledging the hearing on Francesca's and Ted'spetitions for contribution pursuant to section 503 on September 2, 1999, and thatTed was obliged to pay Francesca a total of $93,491 for attorney and expert feesand costs. Attached to the judgment was the court's memorandum opinion. Certainparagraphs of the judgment specifically made reference to the memorandum opinionalthough the judgment did not expressly incorporate it.

On September 9, 1999, each party filed a section 2-1203 motion seekingreconsideration of the judgment. Ted alleged five circuit court errors in thejudgment, including (1) the failure to conduct an evidentiary hearing; (2) thefindings and order pertaining to the tax refund; (3) the refusal to considerevidence of settlement offers when hearing the cross-petitions for attorney fees;(4) the classification of Ted's business interests as marital property; and (5)the failure to adjust the property settlement after ordering Ted to contributeto Francesca's attorneys' fees. Francesca's motion for reconsideration soughtcertain findings pertaining to the nondischargeability in bankruptcy by Ted ofthe awards of property to Francesca under the judgment, including the attorneyand expert fees contribution award.

On September 13, 17 and 22, 1999, the circuit court heard extensiveargument on the section 2-1203 motions. Thereafter, the court entered asupplemental order on September 28, 1999, which clarified and modified theSeptember 7, 1999 judgment for dissolution of marriage. Also on September 28,1999, the court entered a reconsidered judgment for dissolution of marriage(reconsidered judgment), in which the court took the findings contained in thefour-page supplemental order and rewrote the court's September 7, 1999 judgmentto include the modifications.

The supplemental order granted Francesca's request for findings pertainingto Ted's nondischargeability in bankruptcy of the property awarded to her,including attorney fees. The circuit court found that Ted's tax refund was ofno value to him, nor an asset of the estate and, as a result, the reconsideredjudgment reflected a deletion of the tax refund as a marital asset and as anaward to Ted, but not an adjustment of the parties' total awards. Similar to theSeptember 7, 1999 judgment, the reconsidered judgment also required Ted to pay$93,491 for Francesca's attorneys' and experts' fees and costs. Lastly, thecourt denied all other relief not otherwise granted therein to Francesca anddenied all other relief sought by Ted.

Ted's notice of appeal dated October 25, 1999, was filed by additionalcounsel, separate from counsel that appeared at the September 2, 1999contribution hearing. Ted appeals from the reconsidered judgment with regard tothe circuit court's findings as to marital property, dissipation, the tax refund,contribution to attorney fees and, expanding on the foregoing assertions of abuseof discretion, he appeals the entire reconsidered judgment and memorandumopinion.⁽²⁾

On May 10, 2000, Francesca moved to strike section II of Ted's brief, whichseeks review of the circuit court's reclassification and nonadjustment of the taxrefund. In her motion to strike, Francesca alleges that Ted should be barredfrom reasserting an issue on appeal which he had abandoned after he obtained areduced supersedeas bond. On June 16, 2000, the appellate court ordered thatFrancesca's motion to strike be taken with the case.⁽³⁾

In determining the award of attorney and expert fees and costs, Tedcontends the circuit court abused its discretion by: (1) refusing to conduct anevidentiary hearing in connection with the parties' cross petitions forcontribution of their respective attorneys' fees; (2) rejecting evidence of apre-trial settlement as an offer of proof; (3) requiring Ted to pay a set amountof billed attorney and expert fees; and (4) allocating a substantial amount ofthe award of Ted's estate assets as contribution to the payment of Francesca'sattorneys' and experts' fees.

Ted initially asserts that sections 503 and 508 of the Act require that anevidentiary hearing be conducted in connection with the cross petitions forcontribution of attorney fees and costs, which the circuit court denied, therebyviolating his due process rights. Ted contends that sections 503 and 508 mustbe considered in conjunction with one another, noting that proceedings broughtunder section 503(j) shall be heard and decided based on a petition forcontribution and, absent an agreement between the parties, must be determined ina hearing pursuant to subsection (c) of section 508 (750 ILCS 5/508(c) (West1998) (section 508(c))).

The allowance of attorney fees and the amount awarded are matters withinthe sound discretion of the circuit court and will not be reversed on appealabsent an abuse of discretion. In re Marriage of DeLarco, 313 Ill. App. 3d 107,111, 728 N.E.2d 1278 (2000). A reviewing court is not justified in substitutingits discretion for that of the circuit court. In re Marriage of Lee, 78 Ill.App. 3d 1123, 1127, 398 N.E.2d 126 (1979) (Lee). The question for the reviewingcourt is not whether it agrees with the circuit court's decision; rather, thereviewing court must analyze whether the circuit court, in the exercise of itsdiscretion, acted arbitrarily without conscientious judgment or, in view of allthe circumstances, exceeded the bounds of reason and ignored recognizedprinciples of law so that substantial injustice resulted. Lee, 78 Ill. App. 3dat 1127.

Application of sections 503 and 508 in this case involves an issue ofstatutory construction. In construing a statute, the reviewing court's primaryobjective is to ascertain and give effect to the intent of the legislature. People v. Robinson, 172 Ill. 2d 452, 457, 667 N.E.2d 1305 (1996) (Robinson). Themost reliable indicator of legislative intent is the plain and ordinary meaningof the language used in the statute. Robinson, 172 Ill. 2d at 457. Where thelanguage is clear and unambiguous, the statute must be applied without thefurther aids of statutory construction. Robinson, 172 Ill. 2d at 457. Statutoryconstruction is a question of law and, therefore, the standard of review is denovo. Robinson, 172 Ill. 2d at 457.

In the instant case, Ted misinterprets section 508's connection to section503(j) of the Act. In 1997, the Illinois legislature revised a number ofprovisions in the Act, including those governing attorney fees. See 750 ILCS5/503(j), 5/508 (West 1996). Prior to the 1997 amendments, section 508 of theAct governed the award of attorney fees and final petitions in marriagedissolution cases. 750 ILCS 5/508 (West 1992). Under the former provisions ofsection 508(a), after due notice and hearing, and after considering the financialresources of the parties, the circuit court could enter an order requiring anyparty to pay a reasonable amount for his or her own costs and attorney fees andfor the costs and attorney fees necessarily incurred by the opposing party. 750ILCS 5/508(a) (West 1992).

Upon amending the Act, the legislature prescribed that petitions forcontributions to attorney fees and petitions for approval of final fees beconsidered in separate and distinct proceedings. See In re Marriage of McGuire,305 Ill. App. 3d 474, 477, 712 N.E.2d 411 (1999) (McGuire). One purpose of thislegislation was to reduce the potential for conflicts of interest betweenattorneys and their clients and for infringement upon the attorney-clientprivilege in cases where attorney fees became an issue. McGuire, 305 Ill. App.3d at 477.

Amendments to section 508(a) and the addition of section 503(j) did notconstitute substantive changes; rather, they altered the procedures by whichissues regarding attorney fees are presented and heard in dissolution cases. McGuire, 305 Ill. App. 3d at 478. Judicial discretion in the determination ofwhere and how much to award as attorney fees was neither eliminated nor dilutedby these amendments. McGuire, 305 Ill. App. 3d at 478.

The statutory language of section 503(j) is clear and unambiguous. Section503(j) neither makes provision for nor mandates an evidentiary hearing inconnection with the circuit court's determination of the allocation of attorneyfees and costs. Indeed, the statutory language is contrary to Ted's contentionthat contribution hearings brought pursuant to section 503(j) must be determinedunder section 508(c) hearings. See 750 ILCS 5/503(j)(4) (West Supp. 1999). Section 508(c) becomes pertinent in a final determination only after a judgmentfor dissolution of marriage awards contribution for attorney fees to thepetitioning party. Further, section 508(c) requires that filing counselpreviously has been granted leave to withdraw as counsel of record or has fileda motion for leave to withdraw as counsel prior to a final hearing for attorneyfees and costs against their former client. See 750 ILCS 5/508(c)(1) (West1998).⁽⁴⁾ The record contains no motion for leave to withdraw as counsel by Ted'sattorneys.

In In re Marriage of Brackett, 309 Ill. App. 3d 329, 345, 722 N.E.2d 287(1999) (Brackett), the court cautioned against too literal a reading of section503(j), stating, "[w]e do not read section 503(j) as requiring an additionalhearing, which would further burden already overburdened trial courts, but,rather, as requiring a trial court to hear, through testimony or otherwise,additional proofs when a petition for contribution is filed in accordance withsection 503(j) in the context of preexisting proceedings. If the trial courtwishes to hold a separate and distinct hearing on the petition, it has thediscretion to do so." In Brackett, the record contained no indication that thecircuit court made a separate ruling on respondent's petition for contributionand no evidence was presented, either at a separate hearing or during any of theproceedings regarding the amount of attorney fees owed by respondent orpetitioner. 309 Ill. App. 3d at 345-46.

The present case is distinguishable from Brackett because the circuit courtprovided the parties with a contribution hearing on September 2, 1999, duringwhich the parties argued at length about the allocation of assets and liabilitiesand the relative earning abilities of the parties, to determine contributiontoward payment of the other party's attorney fees. See In re Marriage of Carr,221 Ill. App. 3d 609, 612-13, 582 N.E.2d 752 (1991) (Carr). The court heardargument specifically concerning the necessity for an evidentiary hearing and anoffer of proof of settlement negotiations involving attorney fees, and it waswithin the court's discretion whether to allow an additional, separate hearing. The plain and ordinary meaning of section 503(j) does not require a separateevidentiary hearing. Because the statute is plain and unambiguous, there is noneed to turn to other tools of statutory construction for interpretation. In reMarriage of Mitchell, 181 Ill. 2d 169, 173, 692 N.E.2d 281 (1998) (Mitchell).

Accordingly, the circuit court did not abuse its discretion by refusing toconduct an additional evidentiary hearing in connection with the parties' crosspetitions for contribution of attorney and expert fees and costs.

Ted next contends that the circuit court abused its discretion by notconsidering an offer of proof of pre-trial settlement negotiations. In hisresponse to Francesca's petition for attorney fees, he attached both a copy ofthe marital settlement agreement which, according to Ted, could have beenaccepted, and an affidavit of Theodore LaFeber, III, explaining the circumstancesbehind rejection of the settlement. Ted does not assert that the issuesregarding the settlement should have been considered in connection with thesubstantive divorce case. In essence, he argues that the entire trial had beenunnecessary, given the availability prior to trial of the same propertysettlement arrangements and the same net financial benefits to Francesca, byagreement. Ted asserts there is no controlling Illinois authority regarding thisissue, but points out that other jurisdictions have accepted the proposition thatsettlement potential is properly considered as relevant and probative of issuesrelating to requests for the payment of attorney or other professional fees.⁽⁵⁾

The appellate court in In re Marriage of Passiales, 144 Ill. App. 3d 629,494 N.E.2d 541 (1986) (Passiales) provides the controlling Illinois precedent forthe issue of admitting pre-trial settlements into evidence to resolve attorneyfee disputes. In Passiales, the court found that the circuit court did not abuseits discretion in refusing to allow respondent to make an offer of proof ofpetitioner's rejection of a settlement offer. Where an offer of proof isnecessary, it is error for the circuit court to refuse counsel's request to makeone. Blazina v. Blazina, 42 Ill. App. 3d 159, 166, 356 N.E.2d 164 (1976). Anoffer of proof is unnecessary, however, when the nature of the proposed evidenceis obvious. Allen & Korkowski & Associates v. Pettit, 108 Ill. App. 3d 384, 388,439 N.E.2d 102 (1982).

The Passiales court also found that the circuit court did not abuse itsdiscretion in refusing to admit the respondent's evidence of the repudiatedsettlement, ruling that "[m]atters relating to offers of settlement or compromiseare ordinarily inadmissible, but admission of other facts elicited incidentallyduring settlement discussions may be introduced as evidence." Passiales, 144Ill. App. 3d at 640. The evidence respondent sought to introduce was not anincidental fact elicited during settlement talks; rather, respondent sought toestablish that petitioner refused to agree with a proposed settlement. Suchevidence is inadmissible because it is a matter relating to an offer ofcompromise or negotiation. Passiales, 144 Ill. App. 3d at 640. Another reasonfor excluding matters relating to settlement is that "'public policy favors suchcompromises and in that light they should be considered inadmissible.'" Smileyv. Manchester Insurance & Indemnity Co., 49 Ill. App. 3d 675, 681, 364 N.E.2d 683(1977), quoting Hill v. Hiles, 309 Ill. App. 321, 331, 32 N.E.2d 933 (1941). Finally, the Passiales court held that petitioner's conduct during negotiationswas inadmissible not only due to public policy, but also because such evidenceis irrelevant to the issue of whether petitioner was liable for respondent'sattorney fees. 144 Ill. App. 3d at 641.

In the case sub judice, the circuit court heard extensive argument fromboth parties to determine whether evidence of a settlement proposal should beadmitted. Ted wanted to introduce evidence that Francesca repudiated asettlement agreement. Here, as in Passiales, an offer of proof was unnecessarybecause the nature of the evidence was obvious. Further, the evidence Ted soughtto introduce in this case was not an incidental fact elicited during thesettlement negotiations. The court properly found this evidence inadmissiblebecause it was a matter relating to an offer of compromise or negotiation. Additionally, evidence of Francesca's conduct during negotiations was irrelevantto the issue of liability for attorney fees. The failure to reach a settlementdoes not mandate, in and of itself, that a litigant must pay his opponent's fees,nor does it justify the amount of a fee award. Bellow v. Bellow, 94 Ill. App.3d 361, 371, 419 N.E.2d 924 (1981).

The circuit court did not abuse its discretion in refusing to admitevidence of a pre-trial settlement as an offer of proof.

Ted next argues that the circuit court abused its discretion under thecircumstances of this case by awarding a set dollar amount of fees claimed andbilled rather than a percentage of fees ultimately paid by Francesca to hercounsel. Ted asserts it is inherently inequitable to order a husband to pay$93,500 in attorney fees and then permit the wife to compromise with her counselthe balance on which the award was based.

Ted cites no legal authority to support his contention on this issue. Lackof citation to legal authority in briefs before this court constitutes a failureto comply with Supreme Court Rule 341(e)(7) (177 Ill.2d R. 341(e)(7)) and resultsin waiver. People v. Hood, 210 Ill. App. 3d 743, 746, 569 N.E.2d 228 (1991)("[c]ontentions supported by some argument but absolutely no authority do notmeet the requirements of Supreme Court Rule 341(e)(7)"); People v. Barlow, 188Ill. App. 3d 393, 405, 544 N.E.2d 947 (1989) ("failure to provide this court withany legal argument or citation to supporting authority waives this issue forreview").

Notwithstanding the foregoing, according to section 503(j) of the Act, uponwhich the record shows the circuit court based its decision, a contribution awardmay take the form of either a set dollar amount or a percentage of fees andcosts. 750 ILCS 5/503(j)(5) (West Supp. 1999). The statute does not requireallocation of attorney fees based on a percentage of fees ultimately paid. Thelanguage of the statute being clear and unambiguous, there is no need to rely onother methods of statutory construction for interpretation. Mitchell, 181 Ill.2d at 173.

The circuit court did not abuse its discretion in requiring Ted to pay aset amount of billed attorney and expert fees and costs.

Ted next asserts that the circuit court abused its discretion by allocatinga substantial amount of the award of Ted's marital estate assets as contributorypayment of Francesca's attorneys' and experts' fees and costs. According to Ted,each party should have paid his or her own fees and costs, given the allocationof marital assets, unallocated support and maintenance. Ted argues that afterthe judgment on the petition for contribution was entered, he was awarded aninequitable distribution of assets because he received only 49.48% of the maritalestate while Francesca was awarded a 50.51% distribution. This contention isbased on the fact that the August 6, 1999 memorandum opinion, which expresslystated it was not a final judgment, awarded Ted with 59.09% of the marital estateand Francesca with 40.01% of the marital assets. Ted concedes, however, thatthis allocation of attorney fees was a result of no additional source of fundsor assets with which to pay this obligation, other than the assets awarded to Tedas part of his equitable distribution.

Francesca argues that the judgment for dissolution entered September 7,1999, did not reduce any award to Ted because the memorandum opinion was not afinal and fully contemplated adjudication of the parties' petitions forcontribution to attorney fees.

Attorney fees are the primary responsibility of the party for whom theservices are rendered. In re Marriage of Krivi, 283 Ill. App. 3d 772, 780, 670N.E.2d 1162 (1996) (Krivi). When determining an award of attorney fees, theallocation of assets and liabilities, maintenance and the relative earningabilities of the parties should be considered. Carr, 221 Ill. App. 3d at 611. A party seeking an award of attorney fees must show that he or she is unable topay those fees and the other party is able to do so. Krivi, 283 Ill. App. 3d at780. Whether the attorney fees of one spouse should be paid by the other spouse,and in what proportion, is a decision that lies within the sound discretion ofthe circuit court. Carr, 221 Ill. App. 3d at 611. An abuse of discretion canbe shown in cases where the evidence reveals a gross disparity in income andearning capacity and the financial inability of the spouse seeking relief to pay. In re Marriage of Carpenter, 286 Ill. App. 3d 969, 976, 677 N.E.2d 463 (1997).

Here, the record demonstrates that Ted did not meet his burden to show thathe was unable to pay his attorney fees and that Francesca was able to pay them. See McGuire, 305 Ill. App. 3d at 479. Financial inability exists where paymentwould undermine the economic stability of the spouse incurring the debt. SeeKrivi, 283 Ill. App. 3d at 780. Based on evidence submitted during trial, Tedis clearly capable of generating significant income, earning a gross monthlyincome from salary and business interests of over $41,000. Also, even if thecourt allocated illiquid assets to Ted, because Ted earns income through businessinterests, he has the ability to continue generating future income.

Further, Ted has not demonstrated that Francesca is in any better positionto pay her attorney fees. The record indicates that Francesca's net monthlyincome is $4,406. This case illustrates a gross disparity in the abilities ofeach party to generate income. The record shows that the circuit courtconsidered allocation of attorney fees in conjunction with section 503(j) of theAct. See 750 ILCS 5/503(j)(2) (West Supp. 1999). Although Ted may be requiredto make some sacrifices in order to pay Francesca's attorneys' and experts' fees,there is no evidence that his economic stability will be undermined as a result.

There was no abuse of discretion by the circuit court in the amount ofallocation of contribution for Francesca's attorneys' and experts' fees and coststo Ted.

Ted next insists that the circuit court abused its discretion in refusingto readjust its division and award of marital assets and liabilities aftercorrecting an error in the initial categorization and award of the tax refund inthe amount of $97,540.

The memorandum opinion awarded the $97,540 to Ted as a marital asset. Thetax refund was applied to the 1998 tax return during the existence of themarriage and, consequently, at a hearing subsequent to trial, the circuit courtfound that the $97,540 was a marital debt rather than a marital asset. In thereconsidered judgment, the court ruled that the tax refund was not an asset ofthe marriage and specifically made no adjustment to the division of maritalassets from the memorandum. Ted maintains that the failure to reallocate the taxrefund between the parties resulted in a reduction of Ted's share of the estate. Thereafter, in ordering Ted to pay $93,500 in attorney fees to Francesca, thecourt shifted the percentage of the marital estate awarded to him de facto from59.09% to 49.48 percent. According to Ted, it is both a factual and legalimpossibility to determine that a deviation in excess of 10% of the maritalestate to the detriment of one party from the memorandum opinion to thereconsidered judgment is fair and equitable under both sets of circumstances. As a result, Ted contends that the balance sheets dividing the marital awardsshould be adjusted.

Francesca further seeks to strike section II of Ted's brief arguing theabove issue because Ted filed a motion to set bond to cover the amount ofcontribution for attorney fees instead of the amount for the entire judgment,relying upon Supreme Court Rule 305(a) (155 Ill. 2d R. 305(a) (Rule 305(a))). Francesca did not oppose Ted's attempt to set bond based on the amount ofattorney fees. She relied on a letter that Ted's attorney sent to her statingthat the only money judgment issue on appeal relates to the award of attorney andexpert fees addressed in the reconsidered judgment of dissolution. Because Tedsought the bond only to cover attorney fees, Francesca maintains he should notbe allowed to argue reallocation of the tax refund on appeal. Francesca,however, cites no legal authority in support of her motion.

The issue of reallocation of the tax refund was raised at trial,specifically discussed in the circuit court's findings and preserved in Ted'snotice of appeal. The motion to strike, taken with the case, is hereby denied.

First, the issue of whether the amount of the supersedeas bond properly wasreduced from $675,000 to $150,000 must be revisited. Under Supreme Court Rule305(g) (155 Ill. 2d R. 305(g)), the reviewing court has the authority, uponmotion, to change the amount of the appeal bond. Rule 305(a) states that thebond "shall be in an amount sufficient to cover the amount of judgment, interestand costs." The committee comments to the 1993 amendments (155 Ill. 2d R.305(a), Committee Comments, at 88) state that "[t]his rule has been reorganizedto provide greater clarity to the practice of obtaining a stay of the trial courtjudgment. Paragraph (a) makes clear that the bond in money judgment cases mustbe sufficient to cover the entire amount of the judgment, interest and costs." In Ted's motion to set bond, he sought to cover the amount of the disputedattorney and expert fees; however, his notice of appeal requested review of theentire amount of awarded marital assets. The circuit court ordered Ted to pay$350,000 in installments to Francesca beginning January of 2002 and continuinguntil the year 2005 to effectuate the property division of land and stocks whichTed owns free and clear as a result of the reconsidered judgment. A stay issuedby the appellate court is intended to maintain the status quo pending the appealby suspending enforcement of a judgment and to preserve the fruits of ameritorious appeal where they might otherwise be lost. Stacke v. Bates, 138 Ill.2d 295, 302, 562 N.E.2d 192 (1990).

In the present case, Ted has proceeded to appeal the entire amount of theawarded marital assets, instead of limiting the review only to the attorney andexpert fees awarded by the circuit court, and which had been the basis forreducing the amount of the supersedeas bond by the appellate court. The appealbond should also cover the full amount of the reconsidered judgment, includingthe award of attorney and expert fees and costs.⁽⁶⁾ Accordingly, the appeal bondmust be modified to reflect the full amount of judgment.

Addressing the allocation of the 1997 tax refund, in a dissolution ofmarriage proceeding, the Act requires the circuit court to divide the maritalproperty in just and equitable proportions. 750 ILCS 5/503(d) (West Supp. 1999). The court's distribution of marital assets will be reversed only if its decisionis against the manifest weight of the evidence and, therefore, an abuse ofdiscretion. In re Marriage of Abma, 308 Ill. App. 3d 605, 614, 720 N.E.2d 645(1999) (Abma). A judgment is against the manifest weight of the evidence if acontrary conclusion is clearly evident. Abma, 308 Ill. App. 3d at 614.

In the present case, Francesca maintains that the circuit court could notaward the tax refund because the memorandum opinion was not a final order. Therecord indicates, however, that the court integrated the $97,540 into Ted'smarital award in the memorandum opinion. The record also shows that the taxrefund was nonexistent because it was already applied to the 1998 tax return. When the court incorrectly awarded the tax refund to Ted as a marital asset inthe memorandum opinion, it did not subsequently subtract and readjust the balanceof the parties' marital awards upon correcting its mistake of allocation in thereconsidered judgment. The court's decision to make no adjustment to thedivision of marital assets ordered in the reconsidered judgment clearly wasagainst the manifest weight of the evidence and an abuse of discretion, whichmust be reversed.

The circuit court's decision as to the foregoing issue is remanded withinstructions to adjust and reallocate the total amount of marital assets withoutthe existence of the 1997 tax refund so the balances to Ted and Francesca reflectthe appropriate division of marital awards, and to readjust the supersedeas bondaccordingly, if Ted desires to stay the judgment while proceeding further.

For the reasons aforesaid, the judgment of the circuit court of Cook Countyis affirmed with respect to the attorney and expert fee allocations, and isreversed and remanded in regard to the division of marital assets. A newsupersedeas bond, if any, should reflect the entire judgment, as presented inthis appeal.

Affirmed in part, reversed in part and remanded with directions.

HOFFMAN and SOUTH, JJ., concur.

1. Additional counsel appeared on behalf of Ted at the hearing for anyattorney fees that would arise subsequent to trial. The additional counsel didnot file Ted's petition for contribution, response to Francesca's petition forcontribution or the notice of appeal.

2. Also, on October 25, 1999, Ted filed a motion to set bond, seeking to stayenforcement of part of the judgment. Ted's motion sought a bond to cover the$93,500 contribution amount to Francesca's attorneys' and experts' fees. Francesca's response to the motion alleged that the bond needed to besubstantially higher because Ted had in fact sought an appeal of the entirejudgment. Ted filed a reply to Francesca's response. The circuit court heardthe motion on December 3, 1999, and entered an order setting bond at $675,000. Subsequently, on January 3, 2000, the appellate court reduced the bond to$150,000.

On April 6, 2000, the appellate court entered an order approving the appealbond and letter of credit subject to the condition that any stay entered pursuantthereto will terminate upon expiration of the letter of credit securing said bond(October 24, 2001) or upon final disposition of the instant appeal, whicheveroccurs sooner. On May 1, 2000, Ted moved for final approval of the appeal bond. The appellate court granted the motion on May 18, 2000, subject to the conditionsof the April 6, 2000 order.

3. An appellate court order entered September 21, 2000, dismissed Francesca'scross-appeal.

4. Also, section 508(c)(2) states:

"No final hearing under this subsection (c) is permittedunless: (i) the counsel and client had entered into awritten engagement agreement at the time the clientretained the counsel (or reasonably soon thereafter) andthe agreement meets the requirements of subsection (f);(ii) the written engagement agreement is attached to anaffidavit of counsel that is filed with the petition orwith counsel's response to a client's petition; (iii)judgment in any contribution hearing on behalf of theclient has been entered or the right to a contributionhearing under subsection (j) of Section 503 has beenwaived; (iv) the counsel has withdrawn as counsel ofrecord; and (v) the petition seeks adjudication of allunresolved claims for fees and costs between the counseland the client. Irrespective of a Petition for SettingFinal Fees and Costs being heard in conjunction with aproceeding under this Act, the relief requested under aPetition for Setting Final Fees and Costs constitutes adistinct cause of action. A pending but undeterminedPetition for Setting Final Fees and Costs shall notaffect appealability of any judgment or otheradjudication in the original proceeding." (Emphasisadded.) 750 ILCS 5/508(c)(2) (West 1998). In the instant case, the record does not indicate relief requested pursuantto a petition for setting final fees and costs. Also, evidence from the recorddoes not show compliance with subsections (i)-(v) of section 508(c)(2). In otherwords, Ted or his counsel could not request a section 508 hearing until ajudgment was entered pursuant to section 503(j) (or a hearing under section503(j) was waived) and compliance with the requirements listed in section508(c)(2).

5. See Fenters v. Fenters, 238 Ga. 131, 133, 231 S.E.2d 741 (1977) (holdingthat "while it undoubtedly is true that evidence as to settlement negotiationsis inadmissible at trial to determine the issue of liability, after a divorce andalimony case has been settled by agreement (except as to attorney fees), theeffort needed by counsel to reach such settlement is a matter which can beconsidered in determining the amount of attorney fees to be awarded"); Gutierrezv. Gutierrez, 193 Ariz. 343, 351, 972 P.2d 676 (1998) (finding that the circuitcourt may consider a party's settlement position in determining reasonablenessof attorney fees under Arizona statute); Lawrence v. Boles, 631 S.W.2d 764, 769(Tex. Ct. App. 1981) (evidence properly was admitted where it was the party whohad offered to settle the dispute that introduced evidence thereof as a defenseagainst the imposition of attorney fees).

6. The proper amount of the appeal bond depends on the determination ofwhether the balances of the marital awards will be readjusted without allocationof the tax refund, post.