In re Marriage of Reimer ( 2009 )

No. 3-07-0566
______________________________________________________________________________
Filed January 14, 2009
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2009
______________________________________________________________________________
In re MARRIAGE OF ) Appeal from the Circuit Court
) for the 12th Judicial Circuit,
LORIANNE REIMER, a/k/a ) Will County, Illinois,
Lorianne Aztlan, )
)
Petitioner-Appellant, )
) 91-D-160
and )
)
THOMAS REIMER, ) Honorable Robert P. Brumund
) Judge, Presiding.
Respondent-Appellee. )
______________________________________________________________________________
JUSTICE McDADE delivered the opinion of the court:
______________________________________________________________________________
Petitioner, Lorianne Reimer appeals from the trial court’s order requiring her to pay
respondent, Thomas Reimer, child support arrearages in the amount of $59,299.42. Petitioner
also appeals from the court’s order requiring her to pay respondent’s counsel the sum of $1,755
in fees and costs. We reverse and remand for further proceedings.
FACTS
On January 7, 1991, petitioner filed an action for dissolution of her marriage to
respondent. The parties were eventually granted a supplemental judgment for dissolution of
marriage on May 9, 1991. Pursuant to the terms of that judgment, petitioner was awarded
residential custody of the parties’ three children. Petitioner retained residential custody of the
children until June 18, 1991, when respondent was awarded sole custody pursuant to an
emergency order of protection. A subsequent order requiring petitioner to pay respondent child
support at the rate of $85 per week was entered on October 20, 1992.
On December 20, 1993, respondent filed a petition through the Will County State’s
Attorney’s office seeking payment of child support arrearages. On March 2, 1994, petitioner filed
a petition to abate child support alleging a loss of employment. The trial court’s minutes reflect
that a support arrearage of $3,695 was found on that same day. On March 30, 1994, the trial
court entered an order: (1) denying any finding of contempt, (2) abating petitioner’s obligation to
pay child support to respondent, (3) requiring petitioner to maintain a job search diary, and (4)
continuing the matter for status on April 27, 1994. The specific portion as to the abatement of
support stated:
“All support due and owing by [petitioner] is hereby abated nunc
pro tunc to March 2, 1994, the date of the filing of her petition to
abate.”
The court subsequently held multiple status hearings concerning petitioner’s employment
efforts. Finally, on December 21, 1994, the trial court’s minutes reflect that the matter was
continued generally on the motion of the State. Petitioner filed no further pleadings regarding the
abatement of child support.
The parties’ three children remained in the residential care and custody of respondent from
the effective date of the abatement, March 2, 1994, through their respective dates of
emancipation, except when two of the children were in the care of the State of Illinois due to
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emotional problems. Specifically, the eldest child was in the care of the State from February 1995
to April 1997. The youngest child was in the care of the State from March 1996 to April 1997.
Respondent received no financial support from the State or child support from petitioner
subsequent to the effective date of the abatement.
On May 11, 2006, respondent filed a pro se pleading seeking to collect child support
arrearages owing pursuant to the trial court’s order dated, October 20, 1992. On July 3, 2006,
respondent filed a three-count pleading seeking collection of the previously adjudicated arrearage,
a contempt finding for failure to report employment, and adjudication of arrearages accruing
during the abatement period. Count I was resolved by agreement of the parties by virtue of
petitioner’s tendering of $7,355.26 toward satisfaction of the March 2, 1994, arrearage
adjudication. Counts II and III were repled as amended count III. Respondent’s amended count
III pleading included a letter dated May 12, 2003, from petitioner and her new husband to
respondent. The letter states, in pertinent part:
“The tactic to avoid her having to pay child support was to
send her to school, and it worked; she graduated two years ago and
is now teaching full time in private school, and she never had to pay
a cent in child support or tuition, because of the desperate need for
teachers. So we actually came out ahead on that one.”
Petitioner filed a response to respondent’s amended count III. The response alleged the
affirmative defenses of equitable estoppel and laches.
After the matter was continued on multiple occasions, the court conducted a three-day
hearing on respondent’s amended count III. Respondent testified that he made no attempts to
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contact petitioner between 1994 and the date he filed his initial pro se pleading in 2006, stating
that he did not know where petitioner lived and that he was afraid of petitioner’s new husband.
Respondent acknowledged having a service address for petitioner in 1994, but was unaware if
that address was still valid after 1994. Respondent was unable to identify Supreme Court Rule
296 (134 Ill. 2d R. 296).
Petitioner also testified that she was unaware of Rule 296 or the law concerning
abatement. She stated that she did not have any idea that she had to pay child support after
March 1994. She testified that her understanding of abatement was that she did not have to pay
child support while she was unemployed. She admitted that she turned down multiple offers of
employment in favor of educational pursuits. She did not apply for any jobs while pursuing her
degree. She earned her degree in December 2001 and obtained employment in March 2002.
Petitioner earned $22,906 in gross income during the year of 2002 and $36,300 during the year of
2003. Petitioner made no efforts to contact respondent prior to her letter dated May 12, 2003.
On June 11, 2007, the court declined to hold petitioner in indirect civil contempt.
However, the court found that petitioner owed respondent a child support arrearage from March
30, 1994, to February 26, 2003, in the amount of $85 per week. Specifically, the court, relying
upon Rule 296(f), found that as of November 22, 2006, petitioner owed respondent a child
support arrearage with interest in the amount of $59,299.42. The court rejected petitioner’s
affirmative defenses of equitable estoppel and laches, stating:
“So there is no confusion again, [the court’s order dated
October 20, 1992,] obligated [plaintiff] to pay to [respondent] the
sum of $85.00 per week. Sometime prior to March 30, 1994,
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actually March 2, 1994, [plaintiff] requested the court by and
through an attorney that her obligation to pay support be abated,
not suspended. The clear language of the order and the clear
language of the motion did not request a suspension. It requested
an abatement. Whether or not the attorney for [plaintiff] at the time
knew the difference, she knew the difference or anybody else knew
the difference, there was, in effect at the time Rule 296, which
provides in part that a party may seek a temporary abatement of
support. That temporary abatement of support is in existence for a
period of six months. And any period of abatement which a party
seeks to have thereafter they must come in and request the court to
do so. It further provides that the support shall continue to accrue
at the same amount which was abated. That’s my understanding
and belief of the interpretation of *** Rule 296[f].”
Counsel for respondent also filed a petition for attorney fees seeking contribution from
petitioner. The balance of counsel’s fees was $2,708. The parties each provided the trial court
with financial disclosure statements. Petitioner’s amended affidavit reflects budgetary expenses of
$3,841. This amount includes the monthly $750 arrearage payment petitioner was obligated to
pay respondent. Petitioner’s affidavit reflects net monthly income of $3,119. Petitioner testified
that she satisfies 40% of her reported expenses and her husband satisfies the remaining 60%.
Respondent’s affidavit reflects household expenses of $4,246 and net monthly income of $4,910.
On July 13, 2007, the court entered an order finding the fees and costs pled to be usual,
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customary and reasonable. The order also required petitioner to pay respondent’s counsel the
sum of $1,755 in fees and costs.
Petitioner now appeals the trial court’s orders requiring her to pay respondent $59,299.42
in arrearages and respondent’s counsel $1,755 in fees and costs.
ANALYSIS
In this appeal, petitioner first contends that the trial court erred in finding that she owed
respondent a child support arrearage with interest in the amount of $59,299.42. Petitioner
presents three arguments in support of this assertion. Initially, petitioner contends that the court
erred by not applying the doctrines of (1) equitable estoppel and (2) laches to respondent’s claim
that petitioner owed past-due child support when respondent has not attempted to enforce the
support order since 1994. Additionally, petitioner argues that the trial court erred in relying upon
Rule 296(f) because the Will County Judicial Circuit has yet to specifically adopt Rule 296. We
begin by discussing the relevant case law concerning abatement and Rule 296.
At the outset, we note that Illinois “courts have long possessed the authority to abate
support under certain circumstances.” People ex rel. Greene v. Young, 367 Ill. App. 3d 211, 216,
854 N.E.2d 300, 305 (2006). In Coons v. Wilder, 93 Ill. App. 3d 127, 416 N.E.2d 785 (1981),
the trial court abated half of respondent’s monthly support obligation from December 1977 until
January 1, 1980, at which time the support would resume at 1.5 times the original payment until
all abated payments were satisfied. Coons, 93 Ill. App. 3d at 130, 416 N.E.2d at 789. On appeal,
the Second District stated “[w]e find no authority in the Act *** for the proviso ordered by the
court that the *** balance of the original support order would only temporarily abate and would
continue to accrue as an eventual obligation to be paid.” Coons, 93 Ill. App. 3d at 134, 416
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N.E.2d at 792. Coons clearly held that payments cannot accrue while the support obligation is
abated. Coons, 93 Ill. App. 3d at 134, 416 N.E.2d at 792.
Eight years after the Coons decision, our supreme court promulgated Rule 296, entitled
“Enforcement of Order for Support.” 134 Ill. 2d R. 296. Rule 296(f) governs a petition for
abatement and states the following:
“Upon written petition of the obligor, and after due notice
to obligee (and the Department of Public Aid, if the obligee is
receiving public aid), and upon hearing by the court, the court may
temporarily reduce or totally abate the payments of support, subject
to the understanding that those payments will continue to accrue as
they come due, to be paid at a later time. The reduction or
abatement may not exceed a period of six months except that, upon
further written petition of the obligor, notice to the obligee, and
hearing, the reduction or abatement may be continued for an
additional period not to exceed six months.” (Emphasis added.)
134 Ill. 2d R. 296(f).
The committee comments to Rule 296(f) state:
“This paragraph applies only to the short-term inability of
the obligor to pay support due to a temporary layoff from
employment or other factors. It recognizes that obligors often
become temporarily unemployed, rendering them unable to meet
their support obligations. This provision is short of a written
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modification of the Order for Support. It allows the obligor to
petition the court, prior to the filing of a petition for adjudication of
contempt, for an opportunity to repay those amounts in small
increments after employment is regained.
This rule is contrary to the holding of the appellate court in
Coons v. Wilder, (1981) 93 Ill. App. 3d 127, [416 N.E.2d 785,] in
which the court stated, ‘We find no statutory or case authority for
the trial court to temporarily abate that portion of a support order
the supporting parent is without means to presently pay ***.’
[Coons,] 93 Ill. App. 3d at 135 [, 416 N.E.2d at 792].
The obligor has the option of filing for a modification of the
Order for Support under section 510 of the Illinois Marriage and
Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 510)
[(now 750 ILCS 5/510 (West 2006))]. If a court may modify an
Order for Support under section 510 of the Act, it follows that it
may also temporarily abate the Order for Support, subject to
accrual, during a period of temporary unemployment of the
obligor.” 134 Ill. 2d R. 296(f), Committee Comments, at 225-26.
The trial court relied upon Rule 296(f) in determining that petitioner owed respondent a
child support arrearage with interest in the amount of $59,299.42. Petitioner contends that the
trial court erred in relying upon Rule 296(f) to determine that she owed respondent past-due child
support. Specifically, petitioner cites subsection (n) of Rule 296 for the proposition that Rule
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296(f) is not applicable to the instant case. Rule 296(n) states the following:
“Effective Date. The Supreme Court will authorize
experimental sites to operate pursuant to this rule, in counties in
which both the chief circuit judge and the clerk of the circuit court
have agreed to undertake the experimental use of the procedures
contained herein, and have jointly sought the Court’s permission to
do so, by filing a petition with the Administrative Director.” 134
Ill. 2d R. 296(n).
The committee comments to Rule 296(n) state:
“In those counties in which the chief judges and the clerks
of the circuit courts agree to participate in an experimental
installation, and petition the Administrative Office for leave to
implement it at this time, the rule would allow the Supreme Court
to authorize a county to operate under the new rule.” 134 Ill. 2d R.
296(n), Committee Comments, at 230.
Here, petitioner alleges that Will County is not one of the counties which has petitioned
the supreme court for authorization to employ the provisions of Rule 296. Respondent does not
dispute this claim. Instead, respondent argues that the mere existence of Rule 296 provides
authority for a court in a county which has not adopted the rule to abate support payments subject
to accrual of the abated amount. Respondent cites In re Marriage of Fink, 275 Ill. App. 3d 960,
656 N.E.2d 1131 (1995) in support of his claim.
The Attorney General in Fink filed an intervening brief because the respondent raised a
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peripheral challenge to the constitutionality of Rule 296. The respondent, a resident of Piatt
County, had argued that if accrual of the reduction of his child support payments to be repaid at a
later date was mandatory pursuant to Rule 296, the rule denied him equal protection of the laws
because he would not be subject to such an accrual if he were living in a county which had not
adopted the rule. The Fourth District, relying on its earlier decision in In re Marriage of Horn,
272 Ill. App. 3d 472, 650 N.E.2d 1103 (1995), found no constitutional violation. Specifically, the
court stated:
“We note that Piatt County has chosen to operate pursuant
to Rule 296. [Citation.] This court has held that the existence of
Rule 296 provides authority for a court in a county which has not
adopted the rule to abate support payments subject to accrual of the
abated amount in appropriate circumstances. [Citation.] [The
respondent] has not been denied equal protection of the laws by
virtue of the fact that he resides in a county which has adopted the
rule.” Fink, 275 Ill. App. 3d at 965-66, 656 N.E.2d at 1135.
The respondent in Horn filed a petition to modify child support in the trial court of Macon
County after his union went on strike. The trial court reduced the payments but also ordered that
the original child support order would be reinstated the first Friday after the strike ended. While
the pertinent question on appeal was whether the respondent’s voluntary participation in the strike
constituted a legitimate basis for reducing support, the Fourth District took the opportunity to
address Coons and the applicability of Rule 296 in a county which has not adopted the rule.
Specifically, the court stated:
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“We recognize the court in Coons observed there was no
statutory or case authority for the trial court to temporarily abate a
portion of a support order the supporting parent was without
present means to pay. [Citation.] As a general rule, that principle
is correct since the Illinois Marriage and Dissolution of Marriage
Act [citation] is geared toward a present ability to pay support.
However, there are limits to that general rule. If a payor of child
support sacrifices $10,000 of income this year in exchange for
receiving $20,000 of income in future years, we should not allow
him to impose the burden of child support on the custodian based
on his current sacrifice and ignore his future benefit (which may not
be reachable for child support at the time it is received). The
Supreme Court of Illinois has recently promulgated Supreme Court
Rule 296(f) [citation], which permits suspended payments to
accrue. Based on this authority, we conclude the Coons rejection
of [temporary] abatement is no longer applicable to situations
which, by their very nature, are inherently temporary.
We take judicial notice that Macon is not one of the
counties which has petitioned the supreme court for authorization
to employ the full panoply of procedural and substantive provisions
of Rule 296. We believe, nevertheless, the existence of the rule,
which permits a court to temporarily reduce payments for a period
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of six months, but requires that the abated amount continue to
accrue and be repaid at a later date, provides authority for any
court to do the same in appropriate circumstances irrespective of
whether the county is operating under the broader provisions of the
rule.” Horn, 272 Ill. App. 3d at 478-79, 650 N.E.2d at 1108.
Fink and Horn are the only appellate opinions interpreting subsection (n) of Rule 296.
Both are Fourth District opinions, however, and we are not bound to follow appellate decisions
outside our district. See American Economy Insurance Co. v. Holabird & Root, 382 Ill. App. 3d
1017, 1034, 886 N.E.2d 1166, 1181 (2008). Therefore, upon our own review of Rule 296, we
believe that the trial court erred in relying upon subsection (f) when examining whether payments
accrued after it abated petitioner’s support obligation. Rule 296 was not in effect in Will County
either at the time the abatement order was entered or at the time the respondent filed his pro se
pleading seeking to collect child support arrearages.
The language of Rule 296(n) is clear and unambiguous – Rule 296 is only applicable “in
counties in which both the chief circuit judge and the clerk of the circuit court have agreed to
undertake the experimental use of the procedures contained herein, and have jointly sought the
Court’s permission to do so, by filing a petition with the Administrative Director.” 134 Ill. 2d R.
296(n). By putting these requirements in a section entitled “Effective Date,” we believe the
supreme court has clearly signaled an intent that the applicability of the new rule is conditional on
compliance with its requirements. None of these requirements has been met in the present case.
The Fourth District’s holdings in Fink and Horn simply ignore the express language of
Rule 296(n). Instead, the Fourth District has created its own judicial exception to the limiting
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language found in subsection (n). While we believe it would be equitable for us to also ignore this
language, we are required to strictly comply with the rules promulgated by our supreme court.
The court has stated:
“‘The rules of court we have promulgated 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.’” (Emphasis added.) Village of Lake Villa v. Stokovich,
211 Ill. 2d 106, 116, 810 N.E.2d 13, 20 (2004), quoting Bright v.
Dicke, 166 Ill. 2d 204, 210, 652 N.E.2d 275, 277 (1995).
Subsection (n) provides, in pertinent part, that “[t]he Supreme Court will authorize
experimental sites to operate pursuant to this rule.” 134 Ill. 2d R. 296(n). Because the court has
never revisited Rule 296 in the 19 years since its adoption, we must assume that it still only
intends for Rule 296 to be applicable in counties “in which both the chief circuit judge and the
clerk of the circuit court have agreed to undertake the experimental use of the procedures
contained herein, and have jointly sought the Court’s permission to do so, by filing a petition with
the Administrative Director.” 134 Ill. 2d R. 296(n). With that in mind, we respectfully suggest
that the time has come for our supreme court to examine the overall applicability of Rule 296.
The procedure allowing trial courts to temporarily reduce or totally abate support
payments subject to the understanding that those payments will continue to accrue and must be
paid at a later time serves the interest of both the custodial parent and the noncustodial parent.
On one hand, it provides the trial court flexibility to accommodate the noncustodial parent in
times of temporary layoff from employment or other instances where he/she is unable to meet
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their support obligations. On the other hand, it ensures that the custodial parent eventually
receives all the support provided for in the relevant child support order.
Absent Rule 296, noncustodial parents are presented with the inequitable opportunity to
escape completely from fulfilling their support obligations. See Coons, 93 Ill. App. 3d at 134,
416 N.E.2d at 792. We believe such a scenario violates the public policy of this state as codified
in the Illinois Parentage Act of 1984 (Act) (750 ILCS 45/1 et seq. (West 2006)). Section 1-1.1 of
the Act expressly provides that “Illinois recognizes the right of every child to the physical, mental,
emotional and monetary support of his or her parents under this Act.” 750 ILCS 45/1-1.1 (West
2006). Moreover, our supreme court has specifically recognized that Illinois has a strong interest
in preserving and promoting the welfare of children. People ex rel. Sheppard v. Money, 124 Ill.
2d 265, 277, 529 N.E.2d 542, 547 (1988). The court has noted that “[a] parent’s duty to support
his or her minor child is among the oldest principles of law.” Sheppard, 124 Ill. 2d at 269-70, 529
N.E.2d at 544. Unless expressly provided in a court order, “the obligation to support a child only
terminates upon the emancipation of the child.” Finely v. Finely, 81 Ill. 2d 317, 325, 410 N.E.2d
12, 16 (1980). Noncustodial parents should not be allowed the opportunity to escape from
paying support merely because they choose to remain unemployed. If anything, their obligation
should encourage them to obtain employment sooner rather than later.
In conclusion, we are required by the language of Rule 296(n) to find that the trial court
erred in relying upon Rule 296(f) to determine that petitioner owed respondent a child support
arrearage, with interest, in the amount of $59,299.42. We refrain from taking any position on
whether the doctrines of equitable estoppel or laches bar respondent’s claim that petitioner owed
past-due child support. Instead, we remand with instructions for the trial court to conduct a
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hearing in order to determine what effect, if any, the March 30, 1994, abatement order had upon
the support order entered October 20, 1992. This finding must be made absent any consideration
of Rule 296 due to the fact that Rule 296 was not in effect in Will County at the time the
abatement order was entered or at the time the respondent filed his pro se pleading seeking to
collect child support arrearages.
Moreover, the record must be developed in order to understand why the matter was
continued generally on December 21, 1994, and what the effect of that order was. As previously
noted, the trial court’s minutes on that day merely reflect that the matter was continued generally
on the motion of the State. The March 30, 1994, abatement order, however, specifically required
that petitioner maintain a job search diary and continued the matter for status, apparently to
monitor petitioner’s employment efforts. The record, however, fails to provide us with any
answer as to why no further status hearings were held after December 21, 1994, even though
petitioner did not obtain employment until March 2002. Moreover, we are extremely troubled by
the fact that petitioner simply decided to cease searching for employment because she wanted to
attend school. It appears she was required, by court order, to continue to search for employment
and her failure to do so might be contempt of the court’s order.
Petitioner also contends in this appeal that the trial court erred in ordering her to pay
respondent’s counsel the sum of $1,755. in fees and costs. Petitioner asserts the parties are not in
similar financial circumstances. Specifically, petitioner argues that the parties’ financial affidavits
reveal a substantial discrepancy of income and expenses. A trial court’s decision to award or
deny fees will be reversed only if the trial court abused its discretion. In re Marriage of
Schneider, 214 Ill. 2d 152, 174, 824 N.E.2d 177, 190 (2005).
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Section 508 of the Illinois Marriage and Dissolution of Marriage Act allows for an award
of attorney fees where one party lacks the financial resources and the other party has the ability to
pay. 750 ILCS 5/508 (West 2006). The party seeking an award of attorney fees “must establish
his own inability to pay and the other spouse’s ability to do so.” (Emphasis added.) In re
Marriage of Puls, 268 Ill. App. 3d 882, 889, 645 N.E.2d 525, 530 (1994). “Financial inability
exists where requiring payment of fees would strip that party of his means of support or
undermine the party’s financial stability.” Puls, 268 Ill. App. 3d at 889, 645 N.E.2d at 530. In
addition, the trial court may consider a party’s misconduct when determining whether to award
attorney fees. In re Marriage of Hale, 278 Ill. App. 3d 53, 58, 662 N.E.2d 180, 184 (1996).
Here, petitioner reported monthly expenses of $3,841. This amount includes the monthly
$750 arrearage payment petitioner was obligated to pay respondent. Petitioner’s net monthly
income is $3,119. Petitioner testified that she satisfies 40% of her reported expenses and her
husband satisfies the remaining 60%. Respondent reported monthly expenses of $4,246.
Respondent’s net monthly income is $4,910. Reviewing the parties’ financial affidavits, we
believe respondent has failed to show an inability to pay his own attorney fees. Respondent’s
monthly income exceeds his monthly expenses by $664. While petitioner’s monthly income also
exceeds her monthly expenses, incorporating the fact that she only pays 40% of her expenses does
not alone justify an award of attorney fees. Respondent was required to prove both his inability to
pay and petitioner’s ability to do so. See Puls, 268 Ill. App. 3d at 889, 645 N.E.2d at 530.
Respondent has not met this burden. Thus, we find that the trial court’s award of attorney fees
constitutes an abuse of discretion.
In coming to this conclusion, we reject respondent’s reliance upon the fact that the origin
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of this action arose from petitioner’s failure to pay child support. Specifically, respondent argues
that petitioner’s failure to pay child support constitutes misconduct and cites Hale for the
proposition that the trial court did not abuse its discretion because misconduct of the parties can
be considered when determining whether to award attorney fees. While petitioner’s failure to
support her children reflects poorly upon her personal character, we do not believe that this
questionable judgment is equivalent to the misconduct discussed in Hale. Hale involved a
spouse’s fraudulent acquisition of marital property. See Hale, 278 Ill. App. 3d at 57, 662 N.E.2d
at 183. Here, respondent does not allege that petitioner engaged in any fraudulent conduct.
Thus, we find Hale distinguishable on its facts.
For the foregoing reasons, we reverse that portion of the trial court’s order requiring
petitioner to pay respondent child support arrearages in the amount of $59,299.42. We also
reverse that portion of the trial court’s order requiring petitioner to pay respondent’s counsel the
sum of $1,755 in fees and costs. The matter is remanded for further proceedings consistent with
this opinion.
O’BRIEN, P.J. and WRIGHT, J., concur.
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