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In re Marriage of DeLarco, No. 2-98-1469

2nd District, 5 May 2000

JUSTICE GALASSO delivered the opinion of the court:

The petitioner, Mark DeLarco (Mark), appeals from that portion of the judgment for dissolution of his marriage to the respondent, Elizabeth DeLarco (Elizabeth), ordering him to contribute the sum of $19,000 to Elizabeth's attorney fees. On appeal, Mark raises the following issues: (1) whether the trial court's finding that Mark had paid his attorney the sum of $18,957.84 was against the manifest weight of the evidence; (2) whether the trial court abused its discretion when it ordered Mark to contribute the sum of $19,000 to Elizabeth's attorney fees; and (3) whether the trial court erred in admitting into evidence Elizabeth's attorney's computerized billing records.

After the filing of the briefs in this case, Mark filed a motion to strike a portion of Elizabeth's appellee's brief on the basis that it raises a new issue and that Elizabeth has not filed a cross-appeal from the judgment. We ordered the motion taken with the case.

An appellee need not file a cross-appeal to preserve an argument ruled on adversely to the appellee in the trial court if the judgment of the trial court was not, at least in part, against him. Stratman v. Brent, 291 Ill. App. 3d 123, 133 (1997). As no part of the judgment was against Elizabeth, we may consider the merits of the issue she raises. Therefore, the motion to strike is denied.

By way of background, Mark and Elizabeth were married on June 18, 1983. Mark is a high school graduate with some college credit hours. Since 1985, he has been employed at the College of Du Page as a programer. He is paid a biweekly gross salary of $2,397.60.

Elizabeth is a college graduate. At the time of the marriage, she worked as a secretary and receptionist and later worked temporary jobs. At the time of trial, she was employed by an insurance company and received a biweekly gross salary of $965.13. In 1987, the parties purchased a house in Glen Ellyn, at which time Elizabeth stopped working outside the home. Later she worked for Mark's father's company, managing the office. In 1994, Elizabeth entered a drug rehabilitation program. In November 1994, following Elizabeth's release from treatment, Mark moved out of the marital residence at Elizabeth's request. On May 1, 1996, Mark filed his petition for the dissolution of the parties' marriage.

During their separation, Mark had contributed to Elizabeth's support. In July 1996, following the filing of his petition for dissolution of marriage, Mark was ordered to pay the sum of $1,500 per month to Elizabeth for temporary support. The trial in this case was heard in May 1998, and the hearing on Elizabeth's petition for contribution to her attorney fees was held in August 1998.

At trial, Mark testified that his payments to his attorney came from his First Chicago bank account. Elizabeth testified that she paid her attorney fees from a joint account she had with her father. The account was funded by her father; she did not deposit any funds into that account. She only used the money to pay attorney fees. She also testified that she had an obligation to repay her father, although she had not written any notes to her father to evidence the debt. Later, at the hearing on her petition for contribution to her attorney fees, Elizabeth testified that, since trial, she had borrowed the sum of $9,500 for the payment of her attorney fees. On cross-examination, she acknowledged that she did not sign a note for the above sum.

Mark contends, first, that the trial court's finding that he paid his attorney $18,957.84 was against the manifest weight of the evidence. We agree.

The evidence of Mark's payments to his attorney came from two sources, namely, Mark's testimony and his bank statements. At trial, Mark testified that he had paid his attorney $11,402.80 as of March 1998 and had, subsequent to that date, made two payments to her of between $220 and $250. He had also paid an expert witness $1,029.50. However, he also testified that his bank statements reflected all of the attorney fees and related expenses he had paid. His checking account statements indicated that as of March 5, 1998, he had paid $10,627.80 to his attorney. Adding in the additional payments totaling at most $500, brought the amount to $11,127.80. Elizabeth testified that, as of April 5, 1998, she had made payments to her attorney totaling $18,957.84. That same figure was set forth on Elizabeth's closing argument summary, which was dated May 8, 1998. During the hearing on attorney fees the trial court stated as follows:

"[Mark] has testified that he has spent 18,000 some dollars from the marital estate, and I can give you the exact figure from his own testimony and records that he spent."

It is clear from the evidence at trial that the most Mark paid to his attorney for fees, excluding the expert witness's fees, was $11,902.80 and not the "18,000 some dollars" as found by the trial court. Therefore, we agree with Mark that the trial court's finding that he paid his attorney $18,957.84 was against the manifest weight of the evidence.

Mark contends, next, that the trial court abused its discretion in ordering him to contribute $19,000 in attorney fees to Elizabeth, since Elizabeth was only personally liable for the balance due to her attorney of $776.65. There is no dispute that Elizabeth had been paying her attorney during these proceedings and that, as of August 11, 1998, the remaining balance due from Elizabeth to her attorney was $776.65.

Mark relies on In re Marriage of Magnuson, 156 Ill. App. 3d 691 (1987). In that case, the wife and her attorney entered into an agreement whereby the wife's obligation to pay attorney fees was limited to $10,000. The wife's amended petition for attorney fees alleged that she had paid her attorney $11,750.45 and owed him an additional $14,542.50. The trial court ordered the husband to pay $8,500 to the attorney for fees.

This court reversed the order for the payment of attorney fees. The case turned on whether the wife "necessarily incurred" the attorney fees as required under section 508 of the Illinois Marriage and Dissolution of Marriage Act (the Act) (750 ILCS 5/508 (West 1996)). This court concluded that "necessarily incurred" requires that the spouse be personally liable for such fees before the other spouse can be required to pay them. Because the wife's liability was limited to $10,000, she could not be said to have incurred fees in any amount exceeding the $10,000 for which she could be held liable under the contract with her attorney. Magnuson, 156 Ill. App. 3d at 702.

We agree with Elizabeth that Magnuson is distinguishable because the evidence showed that the wife in that case was personally liable for her attorney fees.

A court of review should not second-guess the trial court's factual findings on the validity of a debt when that finding is based upon the trial court's assessment of the credibility of the witnesses and the weight it gives to their testimony, unless the trial court's findings are against the manifest weight of the evidence. In re Marriage of Blazis, 261 Ill. App. 3d 855, 869 (1994).

Elizabeth's testimony that she was obligated to repay her father the funds with which she paid her attorney fees was uncontradicted by Mark. In its letter opinion, the trial court stated that there was no evidence of debt except for the mortgage on the marital residence and the loans from Elizabeth's father, and the trial court ordered that Elizabeth be solely responsible for any debt owed to her father. Therefore, we conclude that Elizabeth was personally liable for all of her attorney fees.

Next, Mark contends that the trial court erred in ordering him to contribute $19,000 to Elizabeth's attorney fees since she failed to demonstrate an inability to pay her fees. Mark points out that Elizabeth paid her attorney fees with funds she received from her father. He also argues that the amount of the fees he was ordered to pay is unreasonable, given that the parties have no children and the marital estate consisted mainly of a house and a pension plan.

The allowance of attorney fees and the amount awarded are matters within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion. In re Marriage of Waltrip, 216 Ill. App. 3d 776, 781 (1991). Where the basis of the award is statutory, as it is in this case, the trial court is bound by the statutory grant. Waltrip, 216 Ill. App. 3d at 781. Pursuant to section 508 of the Act, however, the trial court may, in its discretion and after consideration of the financial resources of the parties, order one spouse to pay all or part of the other's attorney fees arising out of the dissolution proceedings. In re Marriage of Minear, 287 Ill. App. 3d 1073, 1084 (1997), aff'd, 181 Ill. 2d 552 (1998); see 750 ILCS 5/508(a) (West 1996). In making an award pursuant to a party's petition for contribution to fees and costs, the trial court must base the award on the criteria for the division of marital property set forth in section 503 of the Act (750 ILCS 5/503(d) (West 1996)) and, if maintenance has been awarded, the criteria for an award of maintenance set forth in section 504 of the Act (750 ILCS 5/504(a) (West 1996)). 750 ILCS 5/503(j)(2) (West 1996).

In its letter opinion in this case, the trial court made the following determinations:

"4. The Court, after considering all the statutory factors and considering that [Mark] used marital funds to pay his various attorneys and experts (the sum of $18,975.84), orders [Mark] contribute the sum of $19,000 towards the attorney fees incurred by [Elizabeth]. The funds in the joint account with [Elizabeth] and her father, were at best non-marital property. That determination is based on a presumption of a gift of one-half of this joint account. It doesn't change the fact that [Mark] used marital funds to pay his attorney which depleted the marital estate by the sums he paid his attorney.

5. The Court finds after considering all the evidence that no dissipation has been committed by [Mark]. The Court finds that the alleged dissipation of funds was not proven at trial. The Court finds that [Mark] used the funds to pay his attorney and expert fees. Since the Court has ordered [Mark] to pay some of [Elizabeth's] fees, the Court has already compensated [Elizabeth] for [Mark's] use of marital funds."

Apart from the contribution from Mark to Elizabeth's attorney fees, both parties were ordered to pay their own attorney fees.

Despite its statement that it found no dissipation on Mark's part, it is clear that the trial court ordered Mark to make the $19,000 contribution to Elizabeth's attorney fees in order to repay the marital estate for Mark's use of marital assets to pay his attorney fees.

The doctrine of dissipation applies to allegedly improper expenditures of marital funds for purposes unrelated to the marriage, at a time after the marriage has irretrievably or irreconcilably broken down. In re Marriage of Toole, 273 Ill. App. 3d 607, 615 (1995). Expenditures for attorney fees out of marital assets are a dissipation of marital assets. In re Marriage of Weiler, 258 Ill. App. 3d 454, 464 (1994). Under the recently enacted section 501(c-1) of the Act (Pub. Act 89--712,