In re Marriage of Cholach

1

2024 IL App (1st) 221927-U

In re MARRIAGE OF YARYNA CHOLACH, Petitioner-Appellee, and NAZAR CHOLACH, Respondent-Appellant.

No. 1-22-1927

Court of Appeals of Illinois, First District, Fourth Division

February 15, 2024

This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Cook County. No. 19 D 230474 Honorable Jeanne Marie Reynolds, Judge, presiding.

JUSTICE OCASIO delivered the judgment of the court. Presiding Justice Rochford and Justice Martin concurred in the judgment.

ORDER

OCASIO, JUSTICE

¶ 1 Held: We affirm the trial court's contempt determination and the underlying orders granting interim attorney fees, childcare expenses, and 508(b) fees.

¶ 2 The respondent, Nazar Cholach, appeals the circuit court's order that held him in indirect civil contempt for disobeying court orders for interim attorney fees child-related expenses, and attorney fees under section 508(b) (508(b) fees) of the Illinois Marriage and Dissolution Act (Act) (750 ILCS 5/508(b) (West 2020)). A body attachment was issued against Nazar for failing to pay the purge amount. We affirm.

¶ 3 BACKGROUND

¶ 4 The parties are involved in a dissolution-of-marriage proceeding. This is the second time the parties have been before this court during the course of this dissolution. Previously, we affirmed the circuit court's allocation of decision-making responsibilities, finding it was not against the manifest weight of the evidence. See In re Marriage of Cholach, 2023 IL App (1st) 221776-U.

¶ 5 Yaryna filed a petition for dissolution of marriage on October 19, 2019. On October 29, 2019, the circuit court ordered Nazar to pay for half of the day-care expenses. A guardian ad litem (GAL) was appointed for the minor children on October 22, 2021. On July 20, 2022, an order was entered requiring the parties to pay the GAL an additional retainer of $4000. One-third was to be paid by Yaryna, and the remaining two-thirds was to be paid by Nazar.

¶ 6 On August 24, 2022, Yaryna filed a "Petition for Specific Contribution to Petitioner's Attorney's Fees and Costs Incurred Due to Respondent's Failure to Pay Guardian Ad Litem Fees," which she later amended on September 16, 2022. Yaryna argued Nazar's failure to pay his portion of the GAL's additional retainer caused her to incur additional attorney fees and costs.

¶ 7 On September 12, 2022, Yaryna filed a "Verified Petition for Rule to Show Cause and for Other Relief." Yaryna argued Nazar should be held in indirect civil contempt of court as "Nazar has willfully and contemptuously failed to pay all his Day Care, extra-curricular expense, and school fee obligations due to Yaryna" despite the October 29, 2019 order. Additionally, "Nazar is unable to provide any good cause or justification on why he has failed to pay his share of the Day Care expenses for the parties' youngest minor child." In his response, Nazar argued he was not obligated to contribute to the day-care expenses as he was not provided an invoice.

¶ 8 On September 16, 2022, Yaryna filed a "Verified Petition for a Finding of Civil Contempt, to Set a Purge, and for Sanctions." Yaryna alleged Nazar was in willful indirect civil contempt for his failure to comply with the July 20, 2022 order requiring him to pay two-thirds of the GAL's additional retainer. Yaryna asked the circuit court to find Nazar in contempt of court and requested 508(b) fees due to the attorney costs incurred due to Nazar's conduct.

¶ 9 On September 16, 2022, Yaryna filed a "Petition for Contribution to Interim and Prospective Attorney's Fees." The petition alleged Yaryna had "exhausted her financial resources, available credit, and [could not] further pay interim and prospective attorney's fees." It also alleged "Nazar's willful refusal to participate efficiently in the judicial process by attending a Pre-Trial Conference and his constant failure to respond to discovery requests has caused unnecessary attorney time to be expended in the instant case." In support of her petition, Yaryna attached a signed and notarized affidavit in which she stated she "[had] no financial assets" and she "incurred debt to pay [her] attorneys' fees and [her] credit cards [were] maxed out." Additionally, "Nazar is self-employed" and "according to his financial affidavit earns a gross monthly salary of $7,000.00 from said employment."

¶ 10 Nazar filed a response to the petition asking the circuit court to deny Yaryna's request for interim attorney fees. Nazar alleged Yaryna owned her own cleaning business and made approximately $121,647 after expenses. Further, Nazar alleged his net income from the previous year was $52,877 and he paid the mortgage, association dues, taxes, electricity for the martial home.

¶ 11 On November 3, 2022, the circuit court heard testimony from the parties and the GAL regarding the pending motions. With regard to the "Petition for Specific Contribution to Petitioner's Attorney's Fees and Costs Incurred Due to Respondent's Failure to Pay Guardian Ad Litem Fees," the circuit court stated, "I do recognize the fact that as a direct result of the respondent's noncompliance, that fees were incurred. And I do believe that they were willfully incurred." Further, it found "[t]he respondent's behavior in this case did cause numerous court proceedings to occur that didn't need to occur" and awarded $2500 in 508(b) fees.

¶ 12 With regard to the "Petition for Contribution of Interim Attorney's Fees," Yaryna argued there had been "an enormous rate of time trying to chase [Nazar] around, filing petitions, pursuing discovery, getting discovery, subpoenaing documents." Additionally, Nazar had received approximately $225,000 in deposits in 2021 and through June 2022 he had approximately $150,000 in deposits. Nazar also transferred $300,000 from his bank accounts to a bank in Ukraine. Yaryna also argued Nazar had a number of assets and collected rental income. Nazar argued Yaryna had a higher gross income and he was paying for the mortgage, the association fees, and other utilities and bills.

¶ 13 The circuit court awarded $25,000 in interim fees finding "there are large sums of cash available to [Nazar] from his business records" and "[Nazar] has a greater ability than [Yaryna] does to pay the interim fees."

¶ 14 With regard to the "Verified Petition for Rule to Show Cause and for Other Relief," Yaryna testified Nazar had not paid his half of the day-care expenses. In 2020, she paid the total amount for day care in August, September, and October as Nazar did not pay his portion. Yaryna testified she sent Nazar invoices for the amount due for summer camp from June 2022 to August 2022. Nazar did not pay his half of the summer-camp expenses.

¶ 15 Nazar testified he was aware he was required to pay half of the childcare expenses to the provider. Nazar admitted he did not make payments in August, September, and October 2020. Nazar testified he did not make the payments because Yaryna "received support from the government based on taxes." Nazar further testified he did not make payments for summer camp because "[t]here were too many different statements."

¶ 16 The circuit court found Nazar had an obligation to pay the childcare expenses. Yaryna emailed Nazar about summer camp and extracurricular activities and Nazar did not respond. The court found "summer camp necessary for childcare for an eight-year-old child while her mother is working, and her father is out of town working." The circuit court found Nazar's unpaid childcare expenses to be $4909.

¶ 17 In a written order, the circuit court found Nazar had the financial ability to contribute to the interim and prospective attorney fees of Yaryna and Yaryna did not have the financial ability to pay. Nazar had "caused this entire proceeding to be elongated by his unreasonable conduct and failure to cooperate, which has caused substantial additional time and expense to be incurred by [Yaryna] for legal fees which would have been unnecessary." The circuit court ordered Nazar to pay $25,000 in interim attorney fees. The circuit court also found Nazar had "intentionally and willfully failed to pay the child care expenses" and was in "willful violation of the October 2019 Court order." The circuit court found Nazar in contempt and ordered him to pay the $4909 in back childcare expenses. Finally, the circuit court awarded $2500 in 508(b) fees, which were incurred due to Nazar's failure to pay GAL fees, to Yaryna's attorney "due to the contemptuous conduct on the part of [Nazar]" and "the itemized billing statements [were] reasonable and necessary."

¶ 18 On November 9, 2022, the circuit court ordered Nazar to pay Yaryna's attorney $27,500, which included the $25,000 in interim attorney fees, as ordered by November 14, 2022, and $2500 in 508(b) fees as ordered by December 1, 2022. The circuit court also ordered Nazar to pay Yaryna $4909 for back childcare expenses by November 14, 2022.

¶ 19 On November 21, 2022, Yaryna filed a petition to find Nazar in indirect civil contempt. Yaryna alleged Nazar had failed to pay the $25,000 in interim attorney fees as ordered, failed to pay the $4909 in back childcare expenses, and had not paid the $2500 in 508(b) fees.

¶ 20 Nazar filed a motion to vacate and reconsider the November 3, 2022 and the November 9, 2022 court orders.

¶ 21 The circuit court denied Nazar's motion and issued a rule to show cause as to why he should not be held in contempt for failing to comply with the court's orders.

¶ 22 On December 13, 2022, the circuit court held a hearing on the petition for the rule to show cause and contempt. Yaryna her attorney, and Nazar's attorney were present in person;...