In re Marriage of Rosenbaum-Golden

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State: Illinois

Court: 1st District Appellate

Docket No: 1-07-2940 Rel

Case Date: 03/06/2008

Preview:FOURTH DIVISION March 6, 2008

No. 1-07-2940

In re MARRIAGE OF JODY ROSENBAUM-GOLDEN, Petitioner-Appellee, v. BRUCE P. GOLDEN, Respondent-Appellant.

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Appeal from the Circuit Court of Cook County, Domestic Relations Division No. 04 D 1240 Honorable Charles Winkler, Judge Presiding

JUSTICE MURPHY delivered the opinion of the court: Petitioner, Jody Rosenbaum-Golden, and respondent, Bruce Golden, were married on December 10, 1989, and dissolution proceedings began in February 2004. During the pendency of the proceedings, the trial court awarded petitioner $150,000 in interim attorney fees pursuant to section 501(c-1) of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/501(c1) (West 2004)). Respondent refused to pay the interim award because a premarital agreement between the parties provided that petitioner and respondent waived their rights to attorney fees. The trial court found respondent in contempt of court. Respondent appeals. I. BACKGROUND

No. 1-07-2940 Respondent and petitioner, represented by separate attorneys, entered into a premarital agreement on December 9, 1989. At the time, petitioner was 35 years old and respondent was 46; both were attorneys. They married the next day and had a daughter in 1993. On February 5, 2004, petitioner filed a petition for dissolution of marriage, citing irreconcilable differences. On September 21, 2007, petitioner filed a petition pursuant to section 501(c-1) seeking $150,000 in interim attorney fees. In the petition, petitioner alleged that her prior and current attorneys had been paid approximately $388,500 to date: $330,000 in interim fees and $58,500 that she paid her attorneys. Of those interim fees, respondent was ordered to pay $149,578.99 on May 1, 2006, but did not do so until he was held in indirect civil contempt. He was ordered to pay an additional $100,000 on December 6, 2006, but did not do so until March 2007, when his interlocutory appeal was dismissed. She further contended that respondent has paid, or was granted leave to pay, his attorneys $735,000, including a $100,000 initial retainer to his current attorneys. According to the petition, on October 26, 2006, respondent testified that he paid the following: $11,750 to Joel Brodsky; $43,600 to Audrey Gaynor; $7,570 to the Law Offices of Wes Cowell; $35,249.80 to Schiller, DuCanto & Fleck; and an additional $100,000 to his current attorneys. Furthermore, respondent was granted leave to pay his current attorneys an additional $295,000 on December 13, 2006. The petition also relies on respondent's Rule 13.3.1 (Cook Co. Cir. Ct. R. 13.3.1 (eff. January 1, 2003)) disclosure statement, which showed a number of expenditures totaling $585,500 for "divorce legal fees."

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No. 1-07-2940 The supporting records assembled by the parties included neither the transcript of the proceedings on October 26, 2006, nor the order entered on December 13, 2006. In her petition, petitioner also argued that she had been working as a full-time teacher, with a salary of $43,000 a year, but was not rehired for the 2007-08 school year and was currently a substitute teacher. She later testified that she would begin a new job as a kindergarten teacher at the end of October 2007, at approximately the same salary as her previous teaching job. Respondent "operates a real estate listing business and earns substantial income from investments." She further stated that two months before she filed her petition for dissolution, the couple had $2.5 million in joint bank accounts. However, those joint accounts no longer existed, and of the funds that existed as of December 2003, she only withdrew approximately $201,000. In his response to petitioner's petition, respondent argued that the petition was barred by a provision of their premarital agreement that addresses attorney fees arising out of dissolution proceedings. Paragraph 4(d) of the premarital agreement provides as follows: "Bruce and Jody both release and waive any and all right to counsel fees, accounting fees or other expenses relating to the separation of the parties or termination of their marriage, except that (i) Bruce agreed that he shall bear 50% of the cost of accounting fees or other expenses incurred by Jody, subject to a maximum of $15,000, and (ii) either party shall be responsible for any such fees or expenses of the other party created by dilatory or evasive action as determined by a court of competent jurisdiction."

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No. 1-07-2940 On July 11, 2007, the trial court found that respondent had been making "selective disclosures": "Clearly, we have two years of undisclosed income, no attempt being made to inform this Court as to what he earned during those years from the business that he has maintained since about `02 up to the present time, that is, the For Sale By Owner using the internet to promote it. He's active in it today. He's told us what he's earned so far this year. I have serious reservations about whether or not he is telling me everything predicated on what I have heard before. *** Bruce has, in my opinion, a credibility issue, a serious one. I am not able to determine at this time exactly where he is at with his income." On October 12, 2007, the trial court granted petitioner's interim fee petition and ordered respondent to pay petitioner's counsel $150,000 by October 26, 2007. The court noted that respondent's responsive pleadings "failed to inform the Court of all the payments he has made to his attorneys as mandated by statute, again manifesting his continued selective disclosure of information and documents during this proceeding." It further held that it had already found the marital settlement agreement to be valid; however, it ruled that "to enforce the provision that Jody pay her own fees, in light of the law that now governs divorce cases and the fact that respondent has almost all the money that at one time was held in joint tenancy by the parties, would be contrary to the law and unconscionable." The trial court had previously noted that "the interim fees are going back into the pot as part of the advancement on the marital estate." When respondent failed to pay the $150,000, the trial court found him in indirect civil contempt of court and ordered that he remain incarcerated until he pays petitioner's attorneys -4-

No. 1-07-2940 $150,000, as ordered on October 12, 2007. Pursuant to respondent's emergency motions, this court allowed respondent to post a bond and stayed the enforcement of the October 26, 2007, order pending appeal. II. ANALYSIS A. Motions Taken With the Case On December 20, 2007, the day before his reply brief was due, respondent filed an "emergency motion" for leave to comply with Supreme Court Rule 19 (210 Ill. 2d R. 19) instanter, which we took with the case. Rule 19 provides that when the constitutionality of a statute is raised and the State is not already a party, the litigant raising the constitutional issue "shall serve an appropriate notice thereof on the Attorney General." 210 Ill. 2d R. 19(a). The notice must be "served at the time of suit, answer, or counterclaim, if the challenge is raised at that level, or promptly after the constitutional or preemption question arises as a result of a circuit or reviewing court ruling or judgment." 210 Ill. 2d R. 19(b). The purpose of the notice is to afford the state the opportunity to intervene in the case to defend the challenged law. 210 Ill. 2d R. 19(c). Strict compliance with supreme court rules is generally required. These rules "are not aspirational. They are not suggestions. They have the force of law, and the presumption must be that they will be obeyed and enforced as written." Bright v. Dicke, 166 Ill. 2d 204, 210 (1995). However, the appellate court has the discretion to permit late compliance with Rule 19 and address the constitutional issue if the purpose of the rule has been served. Village of Lake Villa v. Stokovich, 211 Ill. 2d 106, 116 (2004).

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No. 1-07-2940 We grant respondent's motion for leave to comply with Rule 19. Although respondent failed to give the Attorney General notice when he raised the constitutionality of section 501(c1) in response to petitioner's petition for rule to show cause regarding his refusal to pay interim fees pursuant to an earlier order, petitioner complied with Rule 19 by sending notice. The Attorney General declined to participate, and the trial court rejected respondent's constitutional arguments on June 22, 2006. Respondent sent the Attorney General notice on December 19, 2007, informing her that this appeal involves the constitutionality of section 501(c-1) and that the briefing in this matter has been expedited. The Attorney General has not yet elected to intervene in this court. See 210 Ill. 2d R. 19(c). We find that the purpose of Rule 19 was fulfilled when the Attorney General "was offered and declined an opportunity to participate" in both the trial court and on appeal. Stokovich, 211 Ill. 2d at 119. We also took with the case petitioner's motion to strike portions of respondent's opening brief and supplemental record, which he prepared pursuant to Supreme Court Rule 328 (155 Ill. 2d R. 328). Petitioner argues that several documents were improperly included in respondent's record because they were not admitted as trial exhibits. These include a Northern Trust bank statement, Chase bank statements, and a letter from petitioner's counsel to respondent's counsel. Respondent admits that these documents were not admitted into evidence. Rule 328 provides that a supplemental record should contain the "trial court record"; Rule 321 provides that the common law record "includes every document filed and judgment and order entered in the cause and any documentary exhibits offered and filed by any party." 210 Ill. 2d Rs. 328, 321. Because the Northern Trust statement, Chase bank statements, and letter from petitioner's counsel were

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No. 1-07-2940 not admitted as trial exhibits, we strike the documents from his supporting record and any references thereto from his briefs. In addition, petitioner argues that a reference to a Web site in footnote 2 of respondent's brief should be stricken because the information contained in the Web site was not part of the trial record. Respondent responds that we can take judicial notice of pay schedules published by the Chicago Public Schools pursuant to section 8-1001 of the Code of Civil Procedure (735 ILCS 5/8-1001 (West 2004)). However, the link to which respondent directs this court does not work, and we cannot determine what the page contained. Accordingly, we strike references to the Web site from respondent's briefs. Finally, petitioner objects to respondent's citation to C154-156 and C168 as support for his allegation that petitioner is entitled to a distribution of her mother's estate in the amount of $103,000, as those portions of the record do not contain any testimony or admitted trial exhibit as support for his allegations. Respondent responds that he erroneously cited those pages and redirects this court to C136, C155, and C174. Because these references are to pleadings filed in the trial court, we decline to strike them from his brief. In summary, we grant respondent's motion for leave to comply with Rule 19 and grant in part and deny in part petitioner's motion to strike portions of respondent's supplemental record and briefs. B. Whether the Premarital Agreement Controls Respondent first argues that the trial court erred in awarding $150,000 in interim attorney fees pursuant to section 501(c-1) because the terms of the premarital agreement control. Paragraph 4(d) of the premarital agreement provides that the parties "release and waive any and -7-

No. 1-07-2940 all right to counsel fees." Petitioner responds that paragraph 4(d) does not bar interim attorney fees pursuant to section 501(c-1). Prenuptial agreements are contracts, and the rules governing the interpretation of contracts apply to their interpretation. In re Marriage of Best, 369 Ill. App. 3d 254, 265 (2006). "A court's primary goal in the construction of a contract is to decide and give effect to the intent of the parties as it is expressed through the words of the contract." Best, 369 Ill. App. 3d at 266. "When a contract is unambiguous, a court must decide the intent of the parties solely from the contract's plain language." Best, 369 Ill. App. 3d at 266. Similarly, the goal of a court when construing a statute is to ascertain the legislature's intent, "and the surest indicator *** is the language in the statute." Department of Public Aid ex rel. Schmid v. Williams, 336 Ill. App. 3d 553, 556 (2003). "To this end, the court may consider the reason and necessity for the statute and the evils it was intended to remedy, and will assume that the legislature did not intend an unjust result." In re Marriage of Beyer, 324 Ill. App. 3d 305, 309 (2001). A court may not supply omissions, remedy defects, substitute different provisions, add exceptions, limitations, or conditions, or otherwise change the law so as to depart from the plain meaning of the language employed in the statute. Beyer, 324 Ill. App. 3d at 30910. "If the language of the statute is clear, its plain and ordinary meaning must be given effect without resorting to other aids of construction." Beyer, 324 Ill. App. 3d at 310. In 1997, the legislature amended the Illinois Marriage and Dissolution of Marriage Act, "thereby creating a new regime governing the award of attorney fees." Beyer, 324 Ill. App. 3d at 310, citing Pub. Act 89-712, eff. June 1, 1997. Before the amendment, "section 508 alone governed attorney fee awards, including `temporary' fee awards" (Beyer, 324 Ill. App. 3d at -8-

No. 1-07-2940 310), and provided as follows: "The court from time to time, after due notice and hearing, and after considering the financial resources of the parties, may order any party to pay *** reasonable *** attorney's fees necessarily incurred or, for the purpose of enabling a party lacking sufficient financial resources to obtain or retain legal representation, expected to be incurred by any party ***." 750 ILCS 5/508(a) (West 1996). The statute did not provide that a temporary award of fees was without prejudice or an advance against the marital estate. The 1997 amendments introduced a separate, independent provision to govern "temporary" or "interim" fee awards to enable the petitioning party to participate adequately in the litigation. 750 ILCS 5/501(c-1) (West 2004). Section 501(c-1)(2) provides that an interim award shall be without prejudice as to any final allocation or claim of right of party or counsel. 750 ILCS 5/501(c-1)(2) (West 2004). Subsection 501(c-1)(2) specifically provides that, unless ordered by the trial court at the final hearing, a subjection 503(j) hearing, or a subsection 508(c) hearing, "interim awards, as well as the aggregate of all other payments by each party to counsel and related payments to third parties, shall be deemed to have been advances from the parties' marital estate." 750 ILCS 5/501(c-1)(2) (West 2004). Furthermore, "[a]ny such claim or right may be presented by the appropriate party or counsel at a hearing on contribution under subsection (j) of Section 503 or a hearing on counsel's fees under subsection (c) of Section 508." 750 ILCS 5/508(c-1)(2) (West 2004). Section 501(c-1) applies to any dissolution of marriage case pending on or after June 1, 1997. 750 ILCS 5/501(c-1)(4) (West 2004). When the trial court ordered respondent to pay interim fees pursuant to section 501(c-1), it did not violate the premarital agreement, as the $150,000 in interim fees that the trial court awarded and that respondent refused to pay constituted an advance against the marital estate. -9-

No. 1-07-2940 750 ILCS 5/501(c-1)(2) (West 2004); Beyer, 324 Ill. App. 3d at 314, quoting 750 ILCS 5/501(c1)(2) (West 1998) (section 501(c-1)(2) creates a presumption that " `interim awards' are deemed to be `advances from the parties' marital estate' "); In re Marriage of Johnson, 351 Ill. App. 3d 88, 97 (2004) (trial court can undo interim awards); In re Marriage of DeLarco, 313 Ill. App. 3d 107, 112 (2000). Paragraph 4(a) of the agreement states that, except "as provided in Section 2(d)(ii) and unless Bruce and Jody agree otherwise, Marital Property shall be divided equally." We agree with petitioner that when the trial court ordered respondent to pay interim attorney fees, it simply ordered him to pay her "a portion of the funds to which she is already entitled under the Premarital Agreement's requirement that the parties divide marital property equally, in the form of a payment to her attorneys rather than to her directly." Strong policy considerations underlie our decision that the premarital agreement does not constitute a waiver of interim attorney fees, which are an advance against the marital estate: this is the precise situation that the new interim fee system was enacted to address. "This Act shall be liberally construed and applied to promote the underlying purposes, which are to * * * 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 in the parties' access to funds for litigation costs." (Emphasis added.) 750 ILCS 5/102(5) (West 2004). The new interim fee system was "an attempt to address the problem of the `economically disadvantaged spouse,' where one spouse uses his or her greater control of assets or income as a litigation tool, making it difficult for the disadvantaged spouse to participate adequately in the litigation." In re Stella, 353 Ill. App. 3d 415, 419 (2004).

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No. 1-07-2940 The trial court, whose findings of fact are entitled to deference (Fox v. Heimann, 375 Ill. App. 3d 35, 46 (2007)), found that respondent's posture throughout the litigation was that petitioner "doesn't get a dime. *** She can wing it without a lawyer." It also found that respondent, who had "a credibility issue, a serious one," was making "selective disclosures" of his own income. Furthermore, while petitioner's attorneys had been paid $330,000 to date, the trial court found that respondent failed to disclose all payments made to his attorneys. Indeed, although petitioner contends that respondent has either paid or been granted leave to pay his attorneys $735,000, we cannot determine how much he actually paid all of his attorneys. More significantly, the trial court concluded that respondent had almost all the money that at one time was held in joint tenancy by the parties. If we accepted respondent's argument, we would ignore the clear policy of the amendments to "level the playing field" and give respondent an unfair advantage. While petitioner cites authority as to when a premarital agreement can be found to be unfair and unreasonable (In re Marriage of Murphy, 359 Ill. App. 3d 289, 299 (2005); In re Marriage of Berger, 357 Ill. App. 3d 651, 657-58 (2005); Warren v. Warren, 169 Ill. App. 3d 226, 231 (1988); see also 750 ILCS 5/502(b) (West 2004)), we need not reach this issue, as we found that the premarital agreement does not constitute a waiver of interim attorney fees. Furthermore, the cases that respondent relies on, Kohler v. Kohler, 316 Ill. 33 (1925), and Cimino v. Cimino, 93 Ill. App. 2d 412 (1968), are distinguishable, as they predated the "leveling the playing field" amendments and did not involve interim attorney fees. C. Constitutional Arguments

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No. 1-07-2940 Respondent contends that the application of section 501(c-1) violates the contract clause and his due process rights. "All statutes enjoy a strong presumption of constitutionality, and the party challenging a statute bears the burden of clearly rebutting this presumption." In re Estate of Jolliff, 199 Ill. 2d 510, 517 (2002). "The constitutionality of a statute is a question of law, and our review is de novo." Jolliff, 199 Ill. 2d at 517. 1. Compliance with Supreme Court Rule 19 Petitioner argues that respondent waived his constitutional arguments because he did not notify the Attorney General when he filed his notice of appeal or docketing statement, which raised the constitutional issues, nor did he serve a copy of his appellate brief on the Attorney General, in violation of Supreme Court Rule 19 (210 Ill. 2d R. 19). We found above that the purpose of Rule 19 was fulfilled when petitioner gave the Attorney General notice in earlier proceedings and respondent gave notice of this appeal in December 2007. Where, as here, "the issue is of constitutional dimensions and has been fully briefed and argued, we choose to address plaintiff's contention." Poullette v. Silverstein, 328 Ill. App. 3d 791, 797 (2002). 2. Contract clause Respondent argues that application of section 501(c-1) violates the contract clauses of the United States and Illinois Constitutions because it impairs an otherwise valid and enforceable premarital agreement and imposes obligations that petitioner waived. The United States Constitution provides that no state shall pass any law impairing the obligations of contracts. U.S. Const. art. I,

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