Cases Pending, edited by Hon. Clare J. Quish (pictured left) and Gretchen Sperry, has been updated to discuss the Illinois Supreme Court’s January Term, which begins Monday, January 10, 2017, with oral arguments scheduled for January 10, 11, 12 and 18, 2017. A total of 9 cases will be heard – 5 civil and 4 criminal. The following civil cases are scheduled for argument this Term:
In re Marriage of Heroy—No.
The City of Chicago v.
The Carle Foundation v.
120427, 120433 cons.—January 12
Chultem v. Ticor Title
Barr v. Cunningham—No. 120751—January 18
Below is a summary for one
of these civil cases, In re Marriage of Heroy. Summaries for this case
and others pending with the Illinois Supreme Court can be found in our Cases Pending publication, accessible to ALA members on the ALA's website.
In re Marriage of Heroy
The issue in this case
involves what factors are to be considered in determining whether to award
attorney’s fees to a party in a divorce proceeding and whether a party must
show her inability to pay her own fees in order to receive them from the other
In 2006, and as part of the
parties’ divorce, the trial court awarded Donna $35,000 per month in permanent
maintenance, plus $4,500 per month in retroactive temporary maintenance in
addition to the $6,000 per month she had been receiving prior to the entry of
judgment. On appeal, the appellate court affirmed the trial court’s award of
$35,000 per month in permanent maintenance. In 2009, David filed a petition
requesting the termination or modification of Donna’s permanent maintenance
award due to a decrease in his income, a decrease in his net worth, and Donna’s
failure to make any reasonable efforts to become self-supporting since the
dissolution judgment. After an extensive hearing, the trial court found that
David had met his burden of establishing a substantial change in circumstances
as required by Section 510 of the Illinois Marriage and Dissolution of Marriage
Act (750 ILCS 5/510), entitling him to modification of the permanent
maintenance payments to Donna, but rejected David’s request to terminate the
payments. The court lowered Donna’s permanent maintenance payments to $27,500
per month. The court also ordered David to contribute $125,000 toward Donna’s
attorney’s fees incurred during the maintenance modification proceedings. After
David filed a notice of appeal, Donna sought an order requiring David to make a
contribution to her prospective attorney’s fees related to the appeal. The
trial court granted Donna’s motion and ordered David to pay $35,000 toward her
prospective attorney’s fees.
The Illinois Appellate
Court first rejected David’s argument that the trial court should have placed
more emphasis on Donna’s failure to make reasonable efforts to become
financially self-supporting, finding that, since the trial court in its 2006
order addressed Donna’s self-sufficiency and her ability to support herself in
the lifestyle she enjoyed during her marriage in awarding permanent
maintenance, those issues were res
judicata. The court then reviewed the record and determined that the trial
court made a calculation error and had intended to make Donna’s permanent
maintenance award to be 25% of David’s cash flow, which would be $25,745 in
monthly maintenance to Donna, and not $27,500. The appellate court vacated the
trial court’s award of modified permanent maintenance and remanded the case to
the trial court with directions to enter a modified permanent maintenance award
of 25% of David’s cash flow. The court also reversed the order requiring David
to pay some of Donna’s attorney’s fees, citing In re Marriage of Schneider, 214 Ill. 2d 152 (2005), and reasoning
that the question was not whether David had more financial resources than
Donna, but whether Donna had the ability to pay her own fees without depleting
her assets to such an extent as to undermine her financial stability. As the
record was devoid of any evidence that payment of her attorney’s fees would
undermine Donna’s financial stability, the court held that the record did not
support the award of attorney’s fees to Donna.
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