In re Heroy

2017 IL 120205

89 N.E.3d 296

IN RE MARRIAGE OF Donna Tuke HEROY, n/k/a Donna M. Tuke, Appellant, and David F. Heroy, Appellee.

Docket No. 120205

Supreme Court of Illinois.

Opinion filed March 23, 2017.

Leon I. Finkel, Peter Sullivan, and Myra A. Foutris, of Berger Schatz, of Chicago, for appellant.

Schiller DuCanto & Fleck LLP, of Chicago (Michele M. Jochner, Tanya J. Stanish, and Karen M. Schetz, of counsel), for appellee.

JUSTICE GARMAN delivered the judgment of the court, with opinion.

¶ 1 David Heroy filed a petition to modify or terminate his monthly maintenance payment to his former spouse, Donna Tuke. The circuit court granted the award in part, reducing the payment from $35,000 per month to $27,500 per month. Tuke filed a petition for attorney fees, which was granted in part. Heroy appealed both judgments. Tuke filed a petition for prospective attorney fees to defend against the appeal, which was also granted in part. Heroy appealed, and the appeals were consolidated. The appellate court reversed the awards for attorney fees and modified the maintenance award after finding the circuit court had committed a calculation error. Tuke appealed to this court, pursuant to Illinois Supreme Court Rule 315 (eff. Mar. 15, 2016), and Heroy requested cross-relief, pursuant to Illinois Supreme Court Rule 318 (eff. Feb. 1, 1994).

¶ 2 BACKGROUND

¶ 3 Donna Tuke and David Heroy were married in 1980. By an order of the circuit court of Cook County, their marriage was dissolved in 2006. As part of the dissolution order, the court ordered Heroy to pay to Tuke $35,000 per month in permanent maintenance. The court based the award on its finding that the couple had enjoyed a lavish standard of living while married and that Tuke could not reasonably be expected to be able to maintain that lifestyle on her own. The court did find, however, that Tuke could reasonably be expected to earn $40,000 to $50,000 per year, based on her prior experience as a law librarian and publisher of a law bulletin. The dissolution order instructed both parties to pay their own attorney fees. The circuit court denied Heroy's petition for reconsideration, the appellate court affirmed the judgment ( In re Marriage of Heroy , 385 Ill.App.3d 640, 324 Ill.Dec. 310, 895 N.E.2d 1025 (2008) ), and this court denied Heroy's petition for leave to appeal ( Heroy v. Heroy , 231 Ill.2d 632, 327 Ill.Dec. 698, 902 N.E.2d 1084 (2009) (table)).

¶ 4 Less than one year later, Heroy filed a petition to terminate or modify the maintenance award. While this litigation was ongoing, Tuke filed a petition for contribution to her attorney fees. On January 23, 2012, the circuit court issued a memorandum opinion and order in which it concluded that Heroy had proven that his income had decreased, justifying a modification of the maintenance award from $35,000 per month to $27,500 per month. The court found no reason to further reduce the amount based on Heroy's complaint that Tuke had failed to make adequate efforts to support herself.

¶ 5 The court also granted in part Tuke's petition for contribution to her attorney fees. During oral arguments, the court acknowledged a tension between this court's statement in In re Marriage of Schneider , 214 Ill.2d 152, 291 Ill.Dec. 601, 824 N.E.2d 177 (2005), and section 508 of the Illinois Marriage and Dissolution of Marriage Act (the Act) regarding the standard for awarding attorney fees. In Schneider , this court stated that an award of contribution is appropriate when the petitioning party is unable to pay his or her attorney fees and the other party has an ability to do so. Id. at 174, 291 Ill.Dec. 601, 824 N.E.2d 177. On the other hand, section 508 instructs the court to apply a list of factors to determine whether one party should be required to contribute to the attorney fees of the other, including the criteria used to divide marital property and award maintenance. 750 ILCS 5/508 (West 2014). The court noted that it would apply the standard from Schneider and, in its written opinion, concluded that Tuke had some ability to pay the fees but that if she were required to pay all of the fees, her financial stability would be undermined. The court also found that Heroy was able to pay Tuke's fees. The parties stipulated that $345,000 was a reasonable amount for attorney fees related to the petition to modify maintenance. In her petition, Tuke stated that her fees at that point exceeded $1 million. The court instructed Heroy to pay $125,000 of Tuke's attorney fees.

¶ 6 Heroy filed a petition for reconsideration, and after limited oral argument, the court denied the motion and issued a second memorandum opinion and order. In this second opinion, the court reiterated its conclusions that the maintenance payment should not be reduced based on Tuke's efforts at rehabilitation and that Tuke could not pay the entirety of her attorney fees without risking financial instability. Heroy appealed, and Tuke filed a petition seeking $100,000 in prospective attorney fees to defend against the appeal. The circuit court granted the petition in part and ordered Heroy to pay $35,000 in prospective attorney fees. Heroy again appealed.

¶ 7 The appellate court consolidated Heroy's appeals and reversed the judgment of the circuit court in part. 2015 IL App (1st) 130290-U, 2015 WL 5690909. First, the appellate court considered the propriety of the circuit court's decision to reduce Heroy's maintenance payment. Though the court found no error in the conclusion that the payment should be reduced, it determined that the circuit court made an error when calculating the amount of the modified payment. The court focused on the language used in the conclusion paragraph of the circuit court's second order: "the Court approximates an award of about 25% of David's cash flow." The court noted that $27,500 was closer to 28.5% of Heroy's cash flow and thus determined the maintenance award should be $25,745 per month. The court then concluded that the circuit court had not erred when it declined to reduce the maintenance payment based on Tuke's efforts (or lack thereof) at supporting herself.

¶ 8 Finally, the appellate court reversed the circuit court's awards for attorney fees. In doing so, the court concluded there was no evidence in the record supporting Tuke's claim that she was unable to pay the fees. The court therefore vacated the awards of attorney fees and remanded the case to the circuit court with instructions to enter a maintenance award of $25,745 per month. This court allowed Tuke's petition for leave to appeal, and Heroy requested cross-relief. Ill. S. Ct. R. 315 (eff. Mar. 15, 2016); R. 318 (a) (eff. Feb. 1, 1994).

¶ 9 ANALYSIS

¶ 10 Tuke asserts that the appellate court failed to comply with the requirements of section 508 of the Act ( 750 ILCS 5/508 (West 2014) ) when it reversed the circuit court's judgments regarding attorney fees. Tuke also challenges the appellate court's conclusion that the circuit court made a calculation error and asks this court to reinstate the $27,500 per month maintenance award. Alternatively, she contends that the appellate court lacked the authority to modify the award and should have remanded the case to the circuit court to recalculate the amount. Finally, Heroy argues, in his request for cross-relief, that the circuit court should have further reduced his monthly maintenance payment based on Tuke's failure to take adequate steps to support herself. Each of these issues is reviewed in turn.

¶ 11 Contribution Toward Tuke's Attorney Fees

¶ 12 Two awards for attorney fees are at issue before this court. The first was granted by the circuit court for fees already incurred and, at least in part, already paid by Tuke. She filed the petition after Heroy filed his petition to modify the maintenance award. The second is an award for prospective attorney fees; it was granted after Heroy filed his notice of appeal. Heroy's appeals from both awards have been consolidated.

¶ 13 The circuit court's decision to award attorney fees will not be disturbed absent an abuse of discretion. Schneider , 214 Ill.2d at 174, 291 Ill.Dec. 601, 824 N.E.2d 177 ; In re Marriage of Bussey , 108 Ill.2d 286, 299, 91 Ill.Dec. 594, 483 N.E.2d 1229 (1985). However, determining whether the circuit court applied the correct standard when it awarded the fees requires interpretation of section 508 of the Act, which is a legal question that the court reviews de novo . In re Marriage of Murphy , 203 Ill.2d 212, 219, 271 Ill.Dec. 874, 786 N.E.2d 132 (2003). When interpreting a statute, "the court must ascertain and give effect to the intent of the legislature." In re Marriage of King , 208 Ill.2d 332, 340, 280 Ill.Dec. 695, 802 N.E.2d 1216 (2003). To do so, the court looks first to the plain language of the statute. Id. Where the language is clear and unambiguous, the court applies the statute without resort to further aids of construction. Id. Where the language is ambiguous, the court may look to other sources to ascertain the legislature's intent. Id.

¶ 14 Section 508 of the Act provides:

"(a) 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 a reasonable amount for his own or the other party's costs and attorney's fees. Interim attorney's fees and costs may be awarded from the opposing party, in a pre-judgment dissolution proceeding in accordance with subsection (c-1) of Section 501 and in any other proceeding under this subsection. At the conclusion of any pre-judgment dissolution proceeding under this subsection, contribution to attorney's fees and costs may be awarded from the opposing party in accordance with subsection (j) of Section 503 and in any other proceeding under this subsection." 750 ILCS 5/508(a) (West 2014).

In turn, subsection 503(j) provides:

"(j) After proofs have closed in the final hearing on all other issues between the parties * * * and before judgment is

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