In re Marriage of Berto

Case Date: 11/17/2003
Court: 2nd District Appellate
Docket No: 2-02-1022 Rel

No. 2--02--1022

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IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

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In re  MARRIAGE OF
COLLEEN BERTO,

               Petitioner-Appellant,

and

DOUGLAS BERTO,

               Respondent-Appellee.

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Appeal from the Circuit Court
of Lake County.


No.  97--D--1406


Honorable
John G. Radosevich,
Judge, Presiding.


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PRESIDING JUSTICE HUTCHINSON delivered the opinion of the court:

Petitioner, Colleen Berto, appeals from the trial court's dismissal of her petition for attorneyfees brought pursuant to sections 508(a) and (b) of the Illinois Marriage and Dissolution of MarriageAct (the Act) (750 ILCS 5/508(a), (b) (West 2000)). Petitioner sought attorney fees following thedischarge of a rule to show cause against respondent, Douglas Berto, which was premised on hisfailure 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 feepetition based on this court's ruling in In re Marriage of Konchar, 312 Ill. App. 3d 441 (2000). Petitioner also appeals from the trial court's order discharging the rule to show cause and from thetrial 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 fordissolution of marriage, the trial court incorporated the parties' marital settlement agreement byreference. 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 maintenanceand child support would "be subject to review and possible modification based upon a substantial andmaterial change in circumstances." The agreement also provided that "[t]he parties may only amendor modify this Agreement by a subsequent written agreement dated and signed by them. No oralagreement shall be effective to, in any manner, modify or waive any terms or conditions of thisAgreement."

On May 29, 2001, respondent filed a petition to reduce unallocated maintenance and childsupport. 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 hisemployer 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 hisincome was "essentially halved," a substantial change in circumstances warranted the modificationof the unallocated maintenance and child support. On June 28, 2001, petitioner moved to dismissrespondent'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 showcause for indirect civil contempt for nonpayment of unallocated maintenance and child support. Inher petition, petitioner alleged that, without provocation or cause and without the permission of thetrial court, respondent unilaterally reduced his monthly $23,500 obligation by $10,000. Petitioneralso alleged that, as a result of respondent's conduct, she had incurred attorney fees in thepreparation, presentation, and litigation of her petition for rule to show cause. Petitioner requestedthe trial court to enter an order requiring respondent (1) to show cause why he should not be heldin 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 motionto dismiss respondent's petition to reduce unallocated maintenance and child support. The trial courtalso granted petitioner's petition and issued a rule to show cause against respondent for indirect civilcontempt 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 andchild 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 andpursuant to this Motion *** tendering costs to the defendant."

On September 6, 2001, the trial court conducted hearings on respondent's petition to reduceunallocated maintenance, including respondent's motion for voluntary nonsuit, and on the return ofthe rule to show cause for indirect civil contempt. The trial court found that respondent tendered thefull amount of the arrearage, which by that time was $30,000, in open court. It determined that theprovision of section 505 of the Act (750 ILCS 5/505 (West 2000)) regarding interest did not applyto 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 civilcontempt of court for his admitted failure to pay petitioner the proper amount owing for unallocatedmaintenance and child support. Petitioner's counsel requested a continuance on the hearing for therule to show cause so the court could hear argument on petitioner's fee petition at the same time; thetrial court denied the request. The trial court ordered the rule discharged and granted petitioner 28days 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'smotion for voluntary nonsuit applied only to respondent's petition to reduce unallocated maintenanceand child support, and the nonprosecution of respondent's petition to reduce worked no injustice orprejudice to petitioner. The trial court ordered that respondent's petition to reduce could benonsuited or withdrawn without prejudice.

On October 2, 2001, petitioner filed her petition for award of attorney fees, sanctions, andother relief pursuant to sections 508(a) and (b) of the Act (750 ILCS 5/508(a), (b) (West 2000)) andpursuant to Supreme Court Rule 137 (134 Ill. 2d R. 137). Petitioner sought $52,346 in previouslyincurred attorney fees, plus attorney fees and costs incurred responding to respondent's two petitionsto reduce his maintenance and child support obligation and prosecuting petitioner's petition for ruleto show cause. Petitioner also sought $110,500 in sanctions and fines pursuant to Rule 137 againstrespondent 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 hadactually increased.

On December 4, 2001, respondent filed his response to petitioner's petition for attorney feesand sanctions. Respondent admitted that, for the months of June, July, and August 2001, heunilaterally 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 2001response. Respondent sought to file instead a motion to strike and dismiss petitioner's fee petitionfor 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 ILCS5/503(j) (West 2000)), as interpreted by this court in Konchar, 312 Ill. App. 3d 441.

On June 17, 2002, the trial court conducted a hearing on respondent's motion to dismisspetitioner's fee petition. Following arguments of the parties, the trial court entered an orderdismissing all allegations and requests for fees pursuant to section 508 of the Act in that "the courtlacks jurisdiction to hear the fees." The trial court denied petitioner's request for a Supreme CourtRule 304(a) (155 Ill. 2d R. 304(a)) finding. On July 9, 2002, petitioner filed her motion to reconsiderthe trial court's rulings on respondent's dismissal motion and the Rule 304(a) finding. On September3, 2002, following arguments of the parties, the trial court denied petitioner's motion to reconsideras 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'sobjection to jurisdiction. When an action involves multiple claims for relief, an order that finallyresolves only one claim is not immediately appealable unless the trial court has found in writing thatthere is no just reason to delay either enforcement or appeal or both. 155 Ill. 2d R. 304(a); In reMarriage of Alyassir, 335 Ill. App. 3d 998, 999 (2003), citing Marsh v. Evangelical Covenant Church,138 Ill. 2d 458, 464 (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 Rule304(a) finding because petitioner's claim for fees pursuant to section 508 of the Act is so entwinedwith the remaining claim for sanctions pursuant to Rule 137 that a "piecemeal" appeal of thedismissed claim is improper. We disagree.

On August 22, 2002, respondent filed his response to petitioner's motion to reconsider. Asto the Rule 304(a) issue, respondent stated only "[w]hether [the trial court's] order is final forpurposes of appeal is irrelevant to the inquiry under Section 503(j)." At the September 3 hearing,respondent posed no objection to the trial court's inclusion of Rule 304(a) language in its orderdenying petitioner's motion to reconsider. The trial court included the Rule 304(a) language,reasoning, "I could give that language because it has absolutely nothing to do with any other issues. It is a stand-alone issue. And there doesn't seem to be any reason to let it hang there, any otherissues; and it is post-decree anyway. So I suppose you are entitled to that language." The trial courthas discretion to determine whether a piecemeal appeal under Rule 304(a) best serves judicialeconomy and the parties' interests. Alyassir, 335 Ill. App. 3d at 1001. On our review of the record,we agree with the trial court's reasoning and find no abuse of its discretion.

Respondent also argues that various statements in petitioner's statement of facts violateSupreme Court Rule 341(e)(6) (Official Reports Advance Sheet No. 21 (October 17, 2001), R.341(e)(6), eff. October 1, 2001) and requests that we strike those statements in petitioner's brief. Webelieve the record speaks for itself, and this court will turn to the record to resolve any factualinconsistencies that the parties have represented in the briefs on appeal. Therefore, we deny therequest to strike, but, to the extent that petitioner's statement of facts contains inaccurate, unfair, andargumentative statements, we will disregard those objected-to statements.

Turning to the merits, petitioner presents three issues for our consideration: (1) whether thetrial court properly discharged the rule to show cause; (2) whether the trial court erred when itdismissed petitioner's section 508 fee petition for lack of jurisdiction; and (3) whether the trial courterred when it refused to award interest on the arrearage of respondent's unallocated maintenance andchild support.

Petitioner contends that the trial court should not have discharged the rule to show cause andshould have held respondent in contempt for his failure to pay the full amount of unallocatedmaintenance and child support for the months of June, July, and August 2001. The trial court foundthat, at the hearing on the rule to show cause, respondent presented a check for $30,000, representingthe three-month arrearage. The trial court determined that, once respondent was in compliance, itno longer had the authority to find him in contempt. Petitioner relies on In re Marriage of Betts, 172Ill. App. 3d 742 (1988) (Betts III), in support of her argument that the trial court had discretion, evenafter respondent's compliance, to find respondent in contempt. Respondent counters that he ceasedto be in violation of the trial court's order once he paid the arrearage and, therefore, continuing witha civil contempt proceeding would have been essentially pointless. Alternatively, respondent arguesthat the trial court did not abuse its discretion when it discharged the rule to show cause because hewas no longer in violation of the rule.

Generally, provisions regarding maintenance and child support contained in a maritalsettlement agreement and incorporated into a judgment of dissolution are enforced through contemptproceedings. See 750 ILCS 5/502(e) (West 2002); In re Marriage of Ramos, 126 Ill. App. 3d 391,396 (1984). The contempt petition is known as a "petition for rule to show cause." See Gentile v.Gentile, 87 Ill. App. 3d 311, 313-14 (1980). A trial court's grant of the petition results in its issuanceof a "rule to show cause." See Gentile, 87 Ill. App. 3d at 313. A rule to show cause is one meansby which to bring an alleged contemnor before the trial court when the failure to comply with a courtorder is the alleged contemptuous behavior. In re Marriage of Rizza, 237 Ill. App. 3d 83, 87 (1992),citing In re Marriage of Betts, 200 Ill. App. 3d 26, 52-53 (1990) (Betts V); see also Ex Parte Petrie,38 Ill. 498, 501-02 (1865). A reviewing court will not overturn a trial court's decision to dischargea rule to show cause absent a clear abuse of the trial court's discretion. Igney v. Igney, 303 Ill. App.563, 570 (1940).

In the present case, the October 1999 marital settlement agreement provided that, beginningin September 1999, respondent would pay petitioner $23,500 per month for unallocated maintenanceand child support. In June 2001 respondent unilaterally reduced his support payment to petitionerby $10,000. Shortly thereafter, petitioner brought forth a "Petition for Rule to Show Cause forIndirect Civil Contempt for Nonpayment of Unallocated Maintenance and Child Support." In July2001 the trial court issued a rule to show cause for indirect civil contempt and ordered respondentto appear and "show cause why he *** should not be held in Contempt of this Court and sentencedto jail until *** he complies with this Court's order." At the time the trial court issued the rule toshow cause, respondent had unilaterally reduced his July 2001 payment to petitioner by $10,000, andtherefore was $20,000 in arrears. Respondent also admittedly reduced his August 2001 payment topetitioner by $10,000, for a total arrearage of $30,000. At the September 6, 2001, hearing on therule to show cause, respondent tendered his check for $30,000 in open court. The trial courtdetermined that respondent was in compliance and discharged the rule to show cause.

We find no clear abuse of the trial court's discretion in discharging the rule to show cause. Petitioner requested the trial court to issue a rule to show cause for indirect civil contempt. Thepurpose of civil contempt is to coerce compliance with the order of a court. Rizza, 237 Ill. App. 3dat 87, citing In re Marriage of Logston, 103 Ill. 2d 266, 289 (1984); Betts V, 200 Ill. App. 3d at 44. Accordingly, the proceedings on petitioner's petition for rule to show cause for indirect civil contemptwere initiated for the purpose of compelling respondent to pay the arrearage. At the hearing,respondent appeared and paid the entire $30,000 arrearage. In proceedings concerning civilcontempt, the trial court seeks only to secure obedience to its prior order. Logston, 103 Ill. 2d at289. Upon the trial court's receipt of the tendered arrearage, respondent was in compliance.

We further find that the trial court neither abused its discretion nor reached a decisioncontrary to the manifest weight of the evidence when it declined to find respondent in indirect civilcontempt of court. See Logston, 103 Ill. 2d at 287. A finding of civil contempt is not proper unlessthe means to purge the alleged contempt is within the power of the contemnor, and, therefore, afinding of civil contempt cannot survive the dismissal of the underlying action that was its basis. Rizza, 237 Ill. App. 3d at 87, citing Logston, 103 Ill. 2d at 289. In this case, once respondenttendered the $30,000 payment, there was no longer an arrearage of unallocated maintenance and childsupport. Therefore, there was no means left by which respondent could "purge" himself of thealleged contempt, and accordingly, no basis to find respondent in contempt. See Rizza, 237 Ill. App.3d at 87.

Petitioner's reliance on Betts III, 172 Ill. App. 3d 742, is not without merit. In Betts III, therespondent paid his child support obligation in full one day prior to the hearing on the petition for ruleto show cause. The trial court found the respondent in contempt even though it acknowledged nosupport was due. The reviewing court affirmed, finding "it was contemptuous of respondent to waitto pay the past-due support on the eve of the date set for hearing." Betts III, 172 Ill. App. 3d at 746. The deficiency we note in Betts III is that, although the respondent was found in "contempt," neitherthe trial court nor the reviewing court made a specific finding as to whether the respondent was incivil or criminal contempt or direct or indirect contempt. Because we believe Betts III offers anincomplete analysis of the question, we decline to follow it.

We believe that a more reasoned decision can be made using the rationale of Betts V. In BettsV, the reviewing court stated:

"The primary determinant of whether contempt proceedings are civil or criminal innature is the purpose for which contempt sanctions are imposed. If contempt sanctions areimposed for coercive purposes--to compel the contemnor to perform a particular act--thecontempt is civil in nature. On the other hand, criminal contempt sanctions are imposed forthe purpose of punishing past misconduct." Betts V, 200 Ill. App. 3d at 43.

In the present case, the basis of the trial court's rule to show cause was respondent's failureto pay petitioner the full amount of support owed. Holding respondent in indirect civil contempt ofcourt after he presented his $30,000 arrearage would not have had the effect of coercing respondentto make the full support payments due for the previous three months, but rather would have punishedhim for failing to make the support payments at the time petitioner was entitled to receive them. Respondent's unilateral reduction of amounts of support that petitioner was entitled to were past actsthat he could not undo. Because coercion is the goal of indirect civil contempt of court andpunishment is the goal of criminal contempt of court, respondent could not have properly been heldin indirect civil contempt of court as a method of punishing him for his past misconduct. See FirstMidwest Bank/Danville v. Hoagland, 244 Ill. App. 3d 596, 611-12 (1993) (reversing the trial court'sfinding of indirect civil contempt because of the defendant's compliance).

The record reflects petitioner's acknowledgment of the foregoing distinctions betweenproceedings for indirect civil and criminal contempt. During the September 6 hearing, when the trialcourt explained that, "so long as the rule is for indirect civil contempt, as soon as he comes intocompliance with the order I am dead in the water," counsel for petitioner surmised, "I suppose weare foreclosed from filing a motion for criminal contempt." The record is clear that petitioner did notpursue a petition for a rule to show cause why respondent should not be found in criminal contemptfor disregarding his obligation to provide timely support payments to petitioner. Moreover, petitionerdid not seek leave to amend her petition for rule to show cause to add a count of criminal contempt. Whether respondent could have been or should have been found in criminal contempt, though, areissues not properly before us at this time. We, therefore, decline to consider the matter. See In reMarriage of Lehr, 317 Ill. App. 3d 853, 859 (2000) (reviewing courts lack authority to renderadvisory opinions).

Petitioner next contends that the trial court erred when it dismissed petitioner's section 508petition for attorney fees for lack of jurisdiction. Both petitioner and respondent expend considerableamounts of effort in their briefs discussing the ramifications of Konchar, 312 Ill. App. 3d 441, andwhether the trial court had jurisdiction to consider petitioner's fee petition. We find, however, thatKonchar is inapplicable to our analysis of this issue.

In Konchar, a case concerning a postjudgment motion regarding visitation, the trial courtentered an order establishing a new visitation schedule for the parties. The order was silent withrespect to the issue of attorney fees. Approximately one month after the trial court issued its order,the petitioner filed a petition for attorney fees, which the trial court denied as untimely filed. Thiscourt held that a petition for contribution to attorney fees that was filed within 30 days of the closingof proofs but after judgment was entered was untimely. Konchar, 312 Ill. App. 3d at 443-44. Wereviewed sections 508 and 503(j) of the Act and held that a petition for attorney fees must be heardand decided before the final judgment is entered. Konchar, 312 Ill. App. 3d at 443-44.

In the present case, petitioner included an allegation concerning the services of her counseland the expense involved in attempting to enforce the terms of the marital settlement agreement. Throughout the course of this enforcement proceeding, petitioner repeatedly attempted to obtain ahearing on attorney fees. At one point during the September 6, 2001, hearing, counsel for petitionereven requested that the petition for rule to show cause "be continued to the future date when we aregoing to have the hearing on the fee petition so the Court can hear all of this at the same time." Thetrial court denied the request, stating that it had already issued the rule requested in the petition. However, despite all of this, when the trial court discharged the rule, it expressly granted petitioner"28 days to file a Petition for award of attorneys fees in connection herewith."

Respondent claimed at oral argument that the trial court "violated the statute" when it allowedpetitioner 28 days to file her fee petition. Respondent essentially argues that the trial court lackedauthority to reserve the issue of attorney fees because section 503(j) expressly states that the feepetition "shall be heard and decided" "before judgment is entered." 750 ILCS 5/503(j) (West 2000). We decline to adopt such a strict interpretation of an isolated portion of a statute taken out ofcontext. The primary rule of statutory construction requires that this court ascertain and give effectto the legislative intent and, in doing so, we "must consider all of the parts of the statute together andgive every word or phrase some reasonable meaning." Konchar, 312 Ill. App. 3d at 443. Section 508of the Act is the relevant statute pertaining to petitions for attorney fees. It states, in relevant part:

"The court from time to time, after due notice and hearing, and after considering thefinancial resources of the parties, may order any party to pay a reasonable amount for his ownor the other party's costs and attorney's fees. *** At the conclusion of the case, contributionto attorney's fees and costs may be awarded from the opposing party in accordance withsubsection (j) of Section 503." 750 ILCS 5/508(a) (West 2000).

Section 503(j) of the Act provides in relevant part:

"After proofs have closed in the final hearing on all other issues between the parties*** and before judgment is entered, a party's petition for contribution to fees and costsincurred in the proceeding shall be heard and decided, in accordance with the followingprovisions:

(1) A petition for contribution, if not filed before the final hearing on otherissues between the parties, shall be filed no later than 30 days after the closing ofproofs in the final hearing or within such other period as the court orders." (Emphasisadded.) 750 ILCS 5/503(j) (West 2000).

Therefore, contrary to respondent's claim, section 508, in conjunction with section 503(j)(1),clearly authorized the trial court to allow petitioner an additional 28 days in which to file her petitionfor attorney fees. By granting petitioner an additional 28 days to file her petition, the trial court,therefore, had not yet entered a "final judgment" in the matter. Further, courts have consistentlyacknowledged a trial court's authority to reserve the issue of attorney fees following decisions indissolution of marriage cases. See, e.g., In re Marriage of Ruchala, 208 Ill. App. 3d 971 (1991).

A judgment is final if it finally disposes of the rights of the parties, either on the entirecontroversy or a separate branch thereof, and an order is nonetheless final for purposes of reviewwhere matters left for future determination are merely incidental to the ultimate rights that have beenadjudicated by the judgment. See 155 Ill. 2d R. 304; Franson v. Micelli, 172 Ill. 2d 352, 356 (1996). However, if a trial court reserves issues for future consideration within a support order, such asretroactive child support or reimbursement, then the order is not final. Franson, 172 Ill. 2d at 356. Here, the trial court's express reservation of the issue of attorney fees distinguishes the present casefrom the circumstances presented in Konchar. Accordingly, the trial court erred when it determinedthat it lacked jurisdiction to hear petitioner's fee petition, especially since it had expressly reservedthe issue for later consideration.

There are two separate provisions under section 508 of the Act that apply to enforcement. Under section 508(a) of the Act, the award of attorney fees is discretionary with the trial court andis made after considering the relative financial resources of the parties. 750 ILCS 5/508(a) (West2002). Section 508(b) of the Act, however, is a mandatory provision by which the trial court must,in an enforcement proceeding such as this one, order the delinquent respondent to pay the petitioner'scosts and reasonable attorney fees. See In re Parentage of M.C.B., 324 Ill. App. 3d 1, 4 (2001),citing In re Marriage of Walters, 238 Ill. App. 3d 1086, 1098 (1992). In so doing, the trial courtexercises its discretion in deciding whether the delinquent respondent's failure to abide by the termsof the marital settlement agreement and timely pay the proper amount of support to the petitioner iswithout cause or justification. 750 ILCS 5/508(b) (West 2002); M.C.B., 324 Ill. App. 3d at 4, citingIn re Marriage of Wassom, 165 Ill. App. 3d 1076, 1081 (1988). Section 508(b) provides in relevantpart:

"In every proceeding for the enforcement of an order or judgment when the courtfinds that the failure to comply with the order or judgment was without compelling cause orjustification, the court shall order the party against whom the proceeding is brought to paypromptly the costs and reasonable attorney's fees of the prevailing party." 750 ILCS 5/508(b)(West 2002).

The policy behind section 508(b) is to eliminate the financial burden on a custodial parent that is theconsequence of an enforcement action. M.C.B., 324 Ill. App. 3d at 4, citing Wassom, 165 Ill. App.3d at 1081. This is because in some instances it is possible that the amount of attorney fees and costswill exceed the amount of arrearage. M.C.B., 324 Ill. App. 3d at 4, citing Fogliano v. Fogliano, 113Ill. App. 3d 1018, 1023 (1983). In such a case, there would be no advantage in enforcement and thedelinquent party could escape his obligations under the prior court order. M.C.B., 324 Ill. App. 3dat 4, citing Fogliano, 113 Ill. App. 3d at 1023.

In the present case, the question of indirect civil contempt was resolved when respondentpresented to the trial court payment of the $30,000 arrearage. However, petitioner apparentlybelieved that the trial court needed to make a finding of contempt as a prerequisite to an award ofattorney fees under section 508(b) of the Act (750 ILCS 5/508(b) (West 2002)). This is not the case. See In re Marriage of Baggett, 281 Ill. App. 3d 34 (1996); In re Marriage of Dieter, 271 Ill. App. 3d181 (1995); In re Marriage of Roach, 245 Ill. App. 3d 742 (1993). A finding of contempt is sufficientto require an award of fees under section 508(b), but such a finding is not necessary. In re Marriageof Davis, 292 Ill. App. 3d 802, 811 (1997). The party that fails to comply with an order bears theburden of proving that compelling cause or justification for the noncompliance exists. In re Marriageof McGuire, 305 Ill. App. 3d 474, 481 (1999).

In Roach, the petitioner brought proceedings seeking, inter alia, to hold the respondent incontempt for his failure to make maintenance payments and requesting attorney fees. The respondentwas in arrears for maintenance from May 1989 through November 1990. In November 1990 thepetitioner filed a petition for rule to show cause, and the trial court issued the rule. In March 1991the respondent made eight payments. By the time of the hearing on the petition for rule to showcause the respondent had made all the required payments. The trial court declined to find therespondent in contempt and ruled against the petitioner on her request for attorney fees. Roach, 245Ill. App. 3d at 744-48. The reviewing court affirmed, except on the issue of attorney fees. Roach,245 Ill. App. 3d at 748. The reviewing court noted that, although the trial court declined to find therespondent in contempt, it nevertheless made a finding that the respondent's failure to make timelymaintenance payments was without cause or justification. Roach, 245 Ill. App. 3d at 748. Based onthe trial court's finding, the reviewing court ruled that section 508(b) of the Act mandated an awardof attorney fees. Roach, 245 Ill. App. 3d at 748. The reviewing court explained:

"That the maintenance payments were eventually made does not change the fact it wasnecessary for [the petitioner] to employ an attorney and to file a petition to receive theamounts owed her." Roach, 245 Ill. App. 3d at 748.

The reviewing court reversed the trial court's judgment and remanded the case so the trial court coulddetermine the amount of attorney fees. Roach, 245 Ill. App. 3d at 748.

In Baggett, the respondent was ordered to pay 25% of his income in child support to thepetitioner. Two years later, the petitioner filed, inter alia, a petition for rule to show cause for indirectcivil contempt and attorney fees based on the respondent's failure to pay child support. The trialcourt found that the respondent was not in contempt and declined to award attorney fees. Baggett,281 Ill. App. 3d at 39-40. The reviewing court affirmed the trial court's refusal to find the respondentin contempt of court. Baggett, 281 Ill. App. 3d at 40. However, with respect to the petitioner'srequest for section 508(b) attorney fees, the reviewing court examined the record and determined that"the record [was] devoid of any evidence of [the respondent's] cause or justification for notcomplying with the order." Baggett, 281 Ill. App. 3d at 40. The reviewing court reversed the trialcourt's judgment and remanded the case, holding that the trial court erred in not granting attorneyfees to the petitioner. Baggett, 281 Ill. App. 3d at 40.

In the present case, the record reflects that, at the time of the judgment of dissolution inOctober 1999 and for the year 2000, respondent "was making" approximately $1.3 million annually.The record does not reflect whether the $1.3 million figure was only his wages from employmentearnings, or whether it included income from other sources. Nevertheless, we believe it is fair to saythat respondent's income or wealth is considerable to the extent that he entered into a maritalsettlement agreement and agreed to pay $23,500 per month to petitioner for unallocated maintenanceand child support. However, the record also reflects that, in June, July, and August 2001, respondentadmittedly reduced his obligation by $10,000 per month. Although respondent filed two petitionsto reduce his $23,500 monthly obligation, the first petition was dismissed on petitioner's motion andthe second petition was never pursued or presented to the trial court for its determination as towhether respondent indeed incurred a "substantial and material change in circumstances." The recordclearly reflects that, despite being both able and aware of his obligation to pay unallocatedmaintenance and child support to petitioner in the amount of $23,500, respondent admittedly did notfulfill his obligation and paid only $13,500 to petitioner for the months of June, July, and August2001. As a result of respondent's unjustified refusal to pay his unallocated maintenance and childsupport obligation, petitioner incurred the expense of legal action.

An award of attorney fees is mandatory upon a court's finding of a failure to pay withoutcause or justification. 750 ILCS 5/508(b) (West 2002). In the present case, the trial court refusedto make such a finding, apparently believing that it was "dead in the water" once respondent tenderedhis check. Pursuant to Baggett, the trial court's failure to make an express finding does not precludethis court from reviewing the record and determining whether the trial court erred. See Baggett, 281Ill. App. 3d at 40. We find nothing in the record from which the trial court could have reasonablyconcluded that respondent's failure to make timely and complete payments to petitioner in June, July,and August 2001 was due to some compelling cause or justification. That respondent presented acheck for $30,000 on the date the trial court had ordered him to appear does not absolve him of theconsequences that transpired following his unilateral decision to withhold $10,000 from petitionerfor three months. See Baggett, 281 Ill. App. 3d 34; Dieter, 271 Ill. App. 3d 181; Roach, 245 Ill.App. 3d 742. Respondent placed petitioner in the inexorable position of having to engage theservices of counsel and litigating this matter so that she could receive what was rightfully owed her. In accordance with section 508(b) of the Act, petitioner should be reimbursed for reasonable costsand attorney fees in connection with her petition for rule to show cause. Accordingly, we reverse thetrial court's dismissal of petitioner's section 508 fee petition and remand so that the trial court maydetermine the amount of those fees and costs.

Last, petitioner contends that the trial court abused its discretion when it refused to awardinterest on the $30,000 arrearage. The decision to award interest on any dissolution judgment, otherthan a judgment for child support, is a discretionary matter for the trial court. In re Marriage ofCarrier, 332 Ill. App. 3d 654, 660 (2002). Section 505(b) of the Act provides that a supportobligation that becomes due and remains unpaid for 30 days or more shall accrue simple interest atthe rate of 9% per annum. 750 ILCS 5/505(b) (West 2002). In the present case, the $30,000arrearage was for "unallocated maintenance and child support," meaning that there was no specificamount designated for either maintenance or child support. The trial court explained its inability tocalculate an interest amount because of the type of award involved. The trial court concluded thatsection 505(b) of the Act did not apply to an award of unallocated maintenance and child support anddeclined to award interest on that basis. Petitioner's argument that the trial court abused its discretionbecause it failed to recognize that it had discretion, with no supporting authority other than ourstandard of review, is simply insufficient to persuade this court that an abuse of discretion occurred. See County of McHenry v. Thoma, 317 Ill. App. 3d 892, 892 (2000) (reviewing court is not arepository into which an appellant can dump the burden of research). The issue was presented to thetrial court, the trial court considered the issue, and the trial court ruled on the matter. We concludethat the trial court did not abuse its discretion when it declined to award interest on the unallocatedmaintenance and child support arrearage.

For the foregoing reasons, the judgment of the circuit court of Lake County is affirmed inpart, reversed in part, and remanded for further proceedings.

Affirmed in part and reversed in part; cause remanded.

GROMETER and KAPALA, JJ., concur.