Eisterhold v. Gizewski

225 N.E.3d 28

2022 IL App (1st) 210490

James EISTERHOLD, Petitioner-Appellee,

v.Candice GIZEWSKI, Respondent-Appellant.

Nos. 1-21-0490 & 1-21-0788 (cons.)

Appellate Court of Illinois, First District, First Division.

Filed December 27, 2022

Appeal from the Circuit Court of Cook County, No. 18 D 79352, The Honorable Elizabeth Loredo Rivera, Judge Presiding.

Anthony Sammarco, of The Stogsdill Law Firm, P.C., of Wheaton, for appellant.

Michele M. Jochner and Elaine H. Knowles, of Schiller DuCanto & Fleck LLP, of Chicago, for appellee.

OPINION

PRESIDING JUSTICE LAVIN delivered the judgment of the court, with opinion.

¶ 1 In this parentage proceeding, respondent, Candice Gizewski, and petitioner, James Eisterhold, signed an agreed allocation judgment governing their parenting rights and obligations. Shortly thereafter, Candice filed a motion seeking to have James’s monthly child support payments withheld from his paycheck. Candice, however, subsequently moved to voluntarily dismiss her motion. The circuit court continued her motion to voluntarily dismiss several times, and James filed a petition for Illinois Supreme Court Rule 137 (eff. Jan. 1, 2018) sanctions and for attorney fees and costs under section 508(b) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/508(b) (West 2018)). After several continuances, the circuit court granted Candice’s motion to voluntarily dismiss and later sanctioned Candice and her attorneys at The Stogsdill Law Firm, P.C. (Stogsdill law firm), under Rule 137 and awarded James attorney fees and costs under section 508(b) of the Act.

¶ 2 In these consolidated appeals, Candice argues the circuit court erred in its handling of her motion to voluntarily dismiss. She also challenges the circuit court’s Rule 137 sanctions judgment and its decision to award James attorney fees and costs under section 508(b) of the Act. We affirm the circuit court’s judgment in appeal No. 1-21-0490 and dismiss appeal No. 1-21-0788 as moot.

¶ 3 I. BACKGROUND

¶ 4 On March 18, 2018, James filed a petition seeking a declaration that he was the biological father of a child born to Candice in February 2018 and to set a parenting schedule and child support. Candice did not dispute that James was the child’s biological father. On June 14, 2019, the circuit court entered an agreed allocation judgment that, in relevant part, provides James will pay $295 per month in child support. Article IX(B) of the agreed allocation judgment provides "All child support payments are to be made directly to Candice from James."

¶ 5 On June 24, 2019, Candice, through her attorneys at the Stogsdill law firm, filed a "Motion for Entry of Withholding Order" pursuant to section 20 of the Income Withholding' for Support Act (Withholding Act) (750 ILCS 28/20(a)(1) (West 2018)). She asserted that James’s counsel had "agreed that after the [allocation judgment] was entered, a Uniform Order of Support would subsequently be entered," but that James’s counsel refused "to agree to enter a Uniform Order for Support that withholds [James’s] child support payments through his employer." The motion further asserted that while "the language of the [allocation [j]udgment reflects that [James] shall make payments directly to [Candice], a Uniform Order of Support was contemplated by the parties" prior to the entry of the allocation judgment. The motion was signed and verified by Eric T. Telander of the Stogsdill law firm.

¶ 6 Candice presented her motion on July 16, 2019. There is no transcript or report of proceedings from the July 16, 2019, court hearing. In an order dated July 16, the circuit court gave James time to respond to Candice’s motion and set a hearing date. The order also reflects that James’s counsel represented that "he paid child support ($295) for June 2019 in June 2019 and for July 2019 in July 2019. Respondent represents that [James] did not pay child support in June or July 2019." James’s counsel was ordered to bring proof of his child support payments to the next court date.

¶ 7 James’s written response to Candice’s motion made the following arguments. The allocation judgment accurately reflected the parties’ agreement regarding the method of paying child support. Pursuant to section 20(a)(1) of the Withholding Act (id.), the support order did not need to require that an income withholding notice be served on James’s employer because the parties had entered into a written agreement that James would pay Candice directly. James was not delinquent in his child support payments, and Candice’s motion did not allege that the allocation judgment no longer ensured payment. James’s response provided evidence that James had paid child support in June and July 2019 and asserted that Candice—prior to the July 16 presentment of her motion—acknowledged James’s July 2019 payment in an Our Family Wizard message dated July 6, 2019. James asserted the statements made by Candice’s counsel on. July 16—that James had not paid child sup- port—were false and an attempt to cure the deficiencies in her motion.

¶ 8 On August 9, 2019, Candice filed a "Motion for Voluntary Non-Suit of Motion for Entry of Withholding Order" and noticed the motion for the August 20, 2019, court date. On August 20, 2019, the circuit court gave James time "to respond or otherwise plead" to the motion to voluntarily dismiss and continued that motion, along with the motion for any entry of a withholding order, for hearing. The circuit court also ordered Candice to appear at the hearing date "because the information presented by respondent on 7/16/19 was false."

¶ 9 On August 22, 2019, Candice filed a motion to reconsider or vacate the circuit court’s August 20, 2019, order. In the motion to reconsider, Candice asserted that on July 16, 2019, her counsel "mistakenly represented to the [c]ourt that no child support payments had been made to [Candice] by [James] for June 2019, and July 2019, when in fact, although payments were made, they were untimely." Candice argued the circuit court should have granted her motion to voluntarily dismiss on August 20, 2019, because section 2-1009(a) of the Code of Civil Procedure (Code) (735 ILCS 5/2-1009(a) (West 2018)) permitted her to dismiss her action upon proper notice before trial or hearing. Candice also requested the circuit court vacate its August 20, 2019, order because there had not been any hearings to determine whether Candice made false statements at the July 16, 2019, court date.

¶ 10 On September 9, 2019, James filed a petition for Rule 137 sanctions and attorney fees pursuant to Rule 137 and section 508(b) of the Act. James alleged that after the parties signed the agreed allocation judgment, Candice’s counsel drafted a uniform order of support requiring James’s child support obligation be withheld from his paycheck and demanded that James’s counsel agree to it, despite the plain language of the agreed allocation judgment. At the presentment of her motion for the entry of a withholding order, Candice’s counsel falsely represented that James had not paid child support of June and July 2019. During the court proceedings, Candice’s counsel represented that Candice had informed him that James had not paid child support. Candice’s allegations, both in her motion and through her counsel’s representations to the court, were baseless and false because James had paid child support for June and July 2019, and her actions needlessly increased to cost of the litigation. Candice’s motion to reconsider asserted that while James had paid child support, the payments were late, directly contradicting the assertions made, in her motion for withholding and by her counsel in open court, Count I of James’s petition sought sanctions under Rule 137, and count II sought attorney fees and costs under section 508(b) of the Act, which provides, in relevant part,

"If at any time a court finds that a hearing under this Act was precipitated or conducted for any improper purpose, the court shall allocate fees and costs of all parties for the hearing to the party or counsel found to have acted improperly. Improper purposes include, but are not limited to, harassment, unnecessary delay, or other acts needlessly increasing the cost of litigation." 750 ILCS 5/508(b) (West 2018).

James argued a hearing was "precipitated" when the parties appeared in court on Candice’s motion for a withholding order, the purpose of the motion was to harass James and drive up the cost of the litigation, and James incurred attorney fees and costs of $4822 in responding to the motion and preparing his sanctions petition. The parties briefed James’s petition, James filed a response to Candice’s motion to reconsider and a motion to strike Candice’s motion to reconsider, and the court continued all the pending motions several times for hearing.

¶ 11 On February 26, 2020, the circuit court granted Candice’s motion to voluntarily dismiss her motion for a withholding order.

¶ 12 The circuit court heard argument on James’s petition for sanctions and attorney fees and took the matter under advisement. On November 13, 2020, the circuit court entered a written order granting James’s petition for sanctions and fees and made the following findings. Candice’s, motion for withholding contained the false assertion that James had not paid child support for June and July 2019, and Candice, through her counsel, repeated that assertion at the presentment of her motion, even after the circuit court paused the proceedings and had counsel for both parties contact their clients. Candice’s August 22, 2019, motion to reconsider and vacate falsely stated that James had refused to sign a uniform order of support; instead, he was prepared to sign a support order consistent with the agreed allocation judgment. Candice’s motion to reconsider also asserted that, at the July 16, 2019, court date, Candice’s counsel informed the circuit court that Candice represented to her counsel that James had not...