In re Marriage of Ulanov , 2020 IL App (1st) 182501-U ( 2020 )

2020 IL App (1st) 182501-UFIRST DIVISION
December 7, 2020
No. 1-18-2501
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent
by any party except in the limited circumstances allowed under Rule 23(e)(1).
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
In re MARRIAGE OF: )
Appeal from the
MARK T. ULANOV, )
Circuit Court of
)
Cook County
Petitioner-Appellee/Cross-Appellant, )
)
No. 96 D 2992
v. )
)
The Honorable
IRENE ULANOV, )
Mark Lopez,
)
Judge Presiding.
Respondent-Appellant/Cross-Appellee. )
JUSTICE PIERCE delivered the judgment of the court.
Presiding Justice Walker and Justice Coghlan concurred in the judgment.
ORDER
¶1 Held: The judgment of the circuit court is affirmed in part and reversed in part and we
remand for further proceedings. The circuit court did not err by (1) enforcing
petitioner’s obligation to maintain a life insurance policy by ordering petitioner to
self-insure, (2) rejecting petitioner’s impossibility defense, and (3) denying
respondent’s petition for attorney fees under Rule 137. We reverse the circuit
court’s denial of respondent’s petition for attorney fees under section 508 because
the circuit court applied the wrong standard, and we remand for further proceedings
on respondent’s fee petition.
¶2 Petitioner, Mark T. Ulanov, and respondent, Irene Ulanov, cross-appeal from the circuit
court’s judgment entered in a postdissolution of marriage proceeding. Irene filed a petition against
No. 1-18-2501
Mark for indirect civil contempt and for other relief, alleging in relevant part that he failed to
maintain a $250,000 life insurance policy and provide her with proof of that policy as required by
the parties’ martial settlement agreement (MSA). Mark acknowledged that his life insurance policy
lapsed but argued that, due to his age and previous health problems, he could no longer obtain a
replacement policy and that his obligation to provide a life insurance policy should be discharged
under the doctrine of impossibility. The circuit court rejected Mark’s impossibility defense and
ultimately ordered Mark to set aside $250,000 in an account with rights of survivorship in favor
of him and Irene. Irene requested attorney fees under section 508 of the Illinois Marriage and
Dissolution of Marriage Act (Act) (750 ILCS 5/508 (West 2018)) and under Illinois Supreme
Court Rule 137 (eff. Jan. 1, 2018). The circuit court denied all of Irene’s requests for attorney fees
under Rule 137 and under section 508.
¶3 On appeal, Irene contends that the circuit court abused its discretion by denying her fee
petitions. She also argues that the circuit court erred by only giving her a right of survivorship in
the account holding the $250,000 rather than naming her the sole owner of the account. Mark’s
cross-appeal argues that the circuit court lacked jurisdiction to modify his obligations under the
MSA and that the only justiciable matter before the circuit court was Irene’s contempt petition. He
contends that the circuit court erred by not discharging his obligation to provide a life insurance
policy due to impossibility. He further argues that the circuit court erred by modifying his life
insurance obligations in a contempt proceeding because Irene never asserted a breach of contract
claim based on Mark’s failure to maintain a life insurance policy.
¶4 For the reasons that follow, we affirm in part and reverse in part and remand for further
proceedings.
2
No. 1-18-2501
¶5 I. BACKGROUND
¶6 Mark’s and Irene’s marriage ended in March 1996 with a judgment of dissolution of
marriage that incorporated an MSA. Relevant to the issues on appeal, the MSA provided that Mark
was obligated to pay maintenance. He was also required to keep and maintain a life insurance
policy naming Irene as the beneficiary. Section 13.1 of the MSA provided that Mark
“shall keep and maintain in full force and effect a policy or policies of life insurance
on his life in the amount of Two Hundred Fifty Thousand ($250,000.00) naming
[Irene] as the sole and irrevocable beneficiary thereof. [Mark] shall provide on an
annual basis proof of payments and the existence of said policy.”
It is undisputed that at the time of the dissolution of marriage, Mark maintained a $250,000 life
insurance policy with Northwestern Mutual Life Insurance that he procured in 1989. It is also
undisputed that the policy was a term policy that would expire when Mark turned 70 years old.
¶7 In April 2016, Irene filed a petition for a finding of indirect civil contempt, which is at
issue in this appeal. She alleged in relevant part that Mark had not maintained a $250,000 life
insurance policy as required under section 13.1 of the MSA. For relief, Irene sought a rule to show
cause as to why Mark should not be held in indirect civil contempt for failing to comply with the
MSA, an order requiring Mark to obtain and maintain a life insurance policy that complied with
section 13.1 of the MSA, or in the alternative, “to deposit $250,000 in trust or escrow account to
be paid to Irene or her estate upon his death,” and attorney fees in the event that Mark was found
to be in indirect civil contempt.
¶8 Mark responded to the petition. He also filed a complaint seeking a declaration that several
of his obligations under the MSA were unenforceable, had been satisfied, or should be rescinded
because his performance was objectively impossible. Irene moved to dismiss Mark’s entire
3
No. 1-18-2501
complaint for declaratory judgment, which the circuit court ultimately granted. Mark does not raise
any argument on appeal regarding the dismissal of his complaint for declaratory relief.
¶9 In Mark’s amended response to Irene’s petition for a rule to show cause he asserted that he
had been diagnosed with diabetes and cancer, he had not earned any income from his business
since 2015, and his business closed in early 2016. With respect to the allegation that he failed to
maintain a life insurance policy, he claimed that “[Irene] and Mark had reached an agreement as
reflected in their MSA that Mark was to keep and continue his already-existing term policy though
the end of its term—which he did through age 70[.]” He argued that the obligation to provide a
life insurance policy was in the nature of support and was modifiable, and that the life insurance
policy was “to secure [his] maintenance obligation, thereby providing for Irene’s care and
support.”
¶ 10 In March 2017, Irene filed a petition for $56,000 in interim attorney fees under sections
501(c-1)(1) and 508 of the Act (750 ILCS 5/501(c-1)(1), 508 (West 2016)). After briefing, the
circuit court denied Irene’s petition for interim fees without prejudice to her seeking attorney fees
at the end of the litigation, finding that both parties had the ability to pay their own attorney fees.
Irene’s motion to reconsider was denied after briefing.
¶ 11 On August 16, 2017, the circuit court conducted a hearing on Irene’s petition for a finding
of indirect civil contempt and for other relief. The circuit court heard testimony from the parties
and admitted numerous documents into evidence. The circuit court found “good cause justification
for [Mark’s] noncompliance with the terms” of section 13.1 of the MSA. The circuit court
observed, however, that “the section 13.1 language is forever” and there was nothing in the MSA
that would support a finding that Mark’s obligation to maintain a life insurance policy ended at the
expiration of the term life insurance policy he already had in place. The circuit court concluded
4
No. 1-18-2501
that the obligation to provide a life insurance policy “remains in full force and effect.” The circuit
court ordered Mark to apply for a life insurance policy and stated that if it were not possible for
Mark to obtain such a policy, the court would “go to Plan B.” The circuit court did not elaborate
any details of “Plan B” on the record. The circuit court did not find Mark in contempt and Irene
has not sought appellate review of that ruling.
¶ 12 At a September 26, 2017, hearing, the circuit court heard that Mark had applied for a life
insurance policy in May 2017 and that his application was denied in August 2017. In November
2017, with leave of court, Mark filed affirmative defenses with respect to his life insurance
obligation. Two of those defenses are relevant to this appeal. First, Mark asserted that it was
impossible for him to comply with section 13.1 of the MSA and that his performance should be
excused. Second, he asserted that the terms of the MSA were nonmodifiable and provided no
alternative remedies to Irene. He alleged that “fashioning any other relief constitutes an
impermissible modification of the MSA.” He alleged that the MSA required Mark to maintain a
life insurance policy but did not contemplate Mark establishing any kind of account or trust in lieu
of an insurance policy.
¶ 13 Irene moved to strike and dismiss Mark’s affirmative defenses, arguing in part that Mark
never raised his affirmative defenses in his response to Irene’s August 2016 petition. She further
argued that Mark had asserted his affirmative defenses in his complaint for declaratory judgment,
which the circuit court dismissed. After briefing, argument, and considering the evidence presented
during the contempt hearing, the circuit court entered a written order on April 5, 2018, and made
the following findings. The doctrine of impossibility did “not absolve[ ] [Mark] of his contractual
duty to maintain a life insurance policy with Irene as the beneficiary.” Mark had “not demonstrated
that all other practical methods of performance are impossible.” The purpose of section 13.1 of the
5
No. 1-18-2501
MSA was to ensure that Irene “would receive a payment in the event of Mark’s prior death,” and
that to achieve that purpose, Mark could hold $250,000 in an account for the benefit of Irene should
Mark predecease her. Mark’s obligation to maintain a life insurance policy was “to secure his
maintenance obligation, which terminates upon either party’s death.” Mark’s affirmative defense
of impossibility was “denied,” and he was ordered to set aside $250,000 in an account, which
would be transferred to Irene if Mark predeceased her. If Irene predeceased Mark, the account
would become Mark’s property.
¶ 14 Both parties moved to modify the April 5, 2018, order. Irene also filed a petition for
attorney fees pursuant to Rule 137 and section 508 of the Act. On October 31, 2018, after briefing
and argument, the circuit court modified the April 5, 2018, order to provide that Mark would
deposit $250,000 into an account titled “Mark T. Ulanov and Irene Ulanov, as joint tenants with
right of survivorship, subject to court order.” Any accrued interest on the account would be paid
to Mark, and the account would not be subject to the claims of creditors of either party. Also on
October 31, 2018, the circuit court denied Irene’s petition for attorney fees. No evidentiary hearing
was held on Irene’s fee petition.
¶ 15 Irene filed a timely notice of appeal on November 28, 2018. Mark filed a timely notice of
cross-appeal on December 6, 2018.
¶ 16 II. ANALYSIS
¶ 17 At the outset, we remind counsel for both parties that Supreme Court Rule 342 (eff. July
1, 2017) requires that an appellant’s brief contain an appendix consisting of
“a table of contents for the appendix, the judgment appealed from, any opinion,
memorandum, or findings of fact entered by the trial judge[,] *** any pleadings or
other materials from the record that are the basis of the appeal or pertinent to it, the
6
No. 1-18-2501
notice of appeal, and a complete table of contents, with page references, of the
record on appeal.”
Neither Irene’s appellant’s brief nor Mark’s appellee/cross-appellant’s brief contain any appendix
at all, in violation of Rule 342. We remind all counsel that our supreme court’s rules governing
appellate briefs are mandatory rather than advisory or aspirational (In re Marriage of Hluska, 2011
IL App (1st) 092636, ¶ 57), and we caution that future violations will not be tolerated.
¶ 18 Turning to the merits of the appeal and cross-appeal, we find it more logical to first address
the arguments raised by Mark in his cross-appeal, which bear on the validity of the circuit court’s
underlying orders.
¶ 19 Mark argues that the circuit court lacked jurisdiction to do anything other than adjudicate
Irene’s contempt petition because that was the only pleading before the circuit court, and the circuit
court exceeded its jurisdiction by addressing a property disposition issue. Relatedly, he argues that
the circuit court lacked jurisdiction to impose new obligations on Mark that were not contemplated
by the parties’ MSA. He contends that there is a jurisdictional difference between the circuit court
enforcing the terms of an MSA—which derives from the circuit court’s inherent authority to
enforce the terms of a judgment—and the circuit court imposing new obligations more than 30
days after a final judgment. We are not persuaded that the circuit court exceeded its jurisdiction.
¶ 20 The Act provides that “[t]he provisions as to property disposition may not be revoked or
modified, unless the court finds the existence of conditions that justify the reopening of a judgment
under the laws of this State.” 750 ILCS 5/510(b) (West 2016). After 30 days, “property provisions
in a[n] MSA are not modifiable, but a trial court has jurisdiction to modify property distribution if
circumstances exist that give cause to reopen a judgment as in other civil cases” such as fraud,
coercion, or misrepresentation. In re Marriage of O’Malley ex rel Godfrey, 2016 IL App (1st)
7
No. 1-18-2501
151118, ¶ 42 (citing In re Marriage of Hall, 404 Ill. App. 3d 160, 164 (2010)). “Property rights
created by a judgment of dissolution become vested when the judgment is final, and a trial court
lacks general jurisdiction to modify an order affecting these rights.” In re Marriage of Hubbard,
215 Ill. App. 3d 113, 116 (1991). The circuit court, however, has “indefinite jurisdiction to enforce
the terms of a judgment that included a[n] MSA ***.” Id.¶ 21 We reject Mark’s argument that the circuit court did not have the jurisdiction to adjudicate
anything other than Irene’s contempt petition. He contends that “the only justiciable issue before
the trial court raised in Irene’s [c]ontempt petition was whether Mark willfully and contumaciously
failed to comply with the parties’ [j]udgment.” Mark’s argument ignores that Irene’s August 2016
petition specifically sought to enforce Mark’s obligation under—and sought relief for Mark’s
noncompliance with—section 13.1 of the MSA. The issue of Mark compliance with the agreement
was clearly before the circuit court. The circuit court had authority to adjudicate Irene’s request
for relief given her allegation that Mark breached the MSA and her request to enforce an express
term in the MSA. See In re Marriage of O’Malley ex rel Godfrey, 2016 IL App (1st) 151118, ¶ 36
(observing that “[a] trial court can determine whether a party to a[n] MSA violated the agreement
between the parties. [Citation.] Judges in the domestic relations division make these decisions
almost on a daily basis.”). Mark’s argument that the circuit court somehow exceeded its authority
by addressing Irene’s enforcement claim is unavailing.
¶ 22 We also find that the circuit court was enforcing the MSA and we disagree with Mark that
the circuit court exceeded its authority by imposing additional obligations on Mark that were not
set forth in the parties’ MSA. Mark contends that the MSA never contemplated him paying
$250,000 of his own money to comply with section 13.1 of the MSA. He argues that the circuit
court cannot engraft new obligations onto a dissolution of marriage judgment or equitably modify
8
No. 1-18-2501
the judgment. He relies on In re Marriage of Waggoner, 78 Ill. 2d 50 (1979), In re Marriage of
Clark, 149 Ill. App. 3d 613 (1986), In re Marriage of Milliken, 199 Ill. App. 3d 813, 820 (1990),
and In re Marriage of Hubbard, 215 Ill. App. 3d 113 (1991), to support his argument. Those cases,
however, are distinguishable because they all involved a party’s attempt to obtain relief that would
have required a property disposition that was inconsistent with the express terms of the dissolution
judgment or would have required modifying a property disposition provided for in the MSA. Here,
Irene specifically sought to enforce Mark’s contractual obligation to provide her with a death
benefit if he predeceased her—an obligation expressly set forth in the MSA itself.
¶ 23 In Waggoner, the parties’ dissolution of marriage judgment provided that the plaintiff,
Mary, would “retain the residence of the parties, the motor vehicle and furnishings, subject to the
indebtedness on said items.” (Emphasis added.) 78 Ill. 2d at 51. More than 30 days after the
judgment became final, Mary filed a motion requesting that the circuit court order the defendant,
John, to remove a judgment lien and second mortgage on the residence. Id. The circuit court denied
Mary’s motion and this court affirmed. Id. Our supreme court affirmed, finding that the circuit
court lacked subject-matter jurisdiction to hear Mary’s motion because the motion sought “to
compel [John] to remove the judgment lien and the second-mortgage lien from the chain of title[,]”
while the dissolution judgment “did not provide that [John] was to perform these acts.” Id. at 53-
54. The judgment clearly stated that Mary would obtain the residence subject to the indebtedness.
Mary’s motion did not “not seek to enforce the terms of the decree, but instead to graft new
obligations onto the decree.” Id. at 54.
¶ 24 Here, unlike in Waggoner, Mark’s obligation to do the thing Irene’s petition sought was
set forth in the MSA. Mark was required to (1) “keep and maintain in full force and effect a policy
or policies of life insurance on his life in the amount of Two Hundred Fifty Thousand
9
No. 1-18-2501
($250,000.00);” (2) name Irene “as the sole and irrevocable beneficiary thereof;” and (3) “provide
on an annual basis proof of payments and the existence of said policy.” Irene did not seek to impose
additional requirements on Mark that were not established by the MSA.
¶ 25 In Clark, the parties’ dissolution of marriage judgment, in relevant part, awarded the
plaintiff, Madonna, the marital residence. 149 Ill. App. 3d at 614. After the judgment became final,
the defendant, Thomas, filed a petition seeking to compel Madonna to transfer possession of the
marital residence to him through a quitclaim deed. Id. The circuit court denied Thomas’s petition,
and we affirmed. Under the terms of the dissolution judgment, Thomas had “the right to elect to
buy out the plaintiff’s interest by paying half of the difference between the outstanding mortgage
and taxes due at the time he exercised such option and the market value at the time of the judgment,
$72,000.00.” Id. at 617. Madonna was originally not required to pay the mortgage, taxes, or
insurance until a date certain, but was subsequently ordered to assume responsibility for those
expenses and expenses for maintaining the property. Id. Madonna failed to make any payments
related to the residence, resulting in foreclosure proceedings. Id. We held that the circuit court had
no jurisdiction to grant Thomas’s petition because he was seeking a quitclaim deed, “which clearly
placed the matter within the realm of the division of property.” Id. at 618. Furthermore, his petition
would have required the circuit court to “void the buy-out provision specified in the judgment,”
which would require modifying the dissolution judgment. Id.¶ 26 In Milliken, the parties’ 1985 judgment of dissolution of marriage expressly provided that
the respondent, James, “shall be solely responsible for, and shall hold [the petitioner, Grace]
harmless of any liability *** for the debt of [James] to [Grace’s brother, Owen], in the amount of
$3,000.” 199 Ill. App. 3d at 814. James never paid, and three years after the dissolution judgment,
Grace paid Owen $3810—$3000 in principal and $810 in interest—and then petitioned the circuit
10
No. 1-18-2501
court seeking reimbursement from James. Id. at 814-15. The circuit court ordered James to
reimburse Grace, but we reversed. We primarily relied on Waggoner to support our finding that
the circuit court lacked jurisdiction to grant Grace any relief because the parties’ judgment of
dissolution did not make James and Grace jointly liable for the debt to Owen. Id. at 819. Instead,
the judgment provided that James was solely liable for the debt, and nothing in the dissolution
judgment established that Grace was liable for the debt in any manner. Id. at 820. Therefore,
Grace’s petition for reimbursement was not seeking to enforce the judgment but instead sought to
alter it. Id.¶ 27 Here, unlike in Milliken and Clark, Mark’s insurance obligation is set forth in the parties’
MSA. Irene’s petition did not seek anything that was not set forth in the MSA and requiring Mark
to comply did not result in any provision of the MSA being voided or a reallocation of the MSA’s
property division.
¶ 28 Finally, in Hubbard, the judgment of dissolution of marriage provided that the parties’
debts were to be paid from the sale of the marital home and that both parties were barred from
receiving maintenance. 215 Ill. App. 3d at 114. More than 30 days after the judgment, the
petitioner, Carol, filed a petition requesting that the respondent, John, be ordered to pay for debts
that Carol incurred and would incur while preparing the marital residence for sale. Id. at 115. The
circuit court ordered John to pay a portion of the costs of repairs. Id. On appeal, we reversed,
relying in part on Waggoner, Clark, and Milliken, among others. We found that the circuit court
lacked jurisdiction to order John to pay a portion of the expenses because “the judgment did not
provide that [John] was to pay any part of the cost of preparing the marital residence for sale.” Id.
at 118. Furthermore, “the judgment stated that [Carol] was awarded ‘the remaining net proceeds
of sale of the marital real estate.’ ” Id.11
No. 1-18-2501
¶ 29 The principle set forth in Waggoner, Clark, Milliken, and Hubbard is that the circuit court
cannot modify the disposition of property in the judgment for dissolution of marriage unless there
is some basis for reopening the judgment itself. Where a party seeks relief that is contrary to or not
contemplated by the express terms of the judgment of dissolution of marriage, the circuit court
lacks jurisdiction to grant such relief. That is simply not the case here. Mark’s obligation to keep
and maintain life insurance for the benefit of Irene is provided for in the MSA and judgment. The
MSA gave Irene a property right in the death benefit from Mark’s life insurance policy. Irene’s
petition did not seek to impose an obligation on Mark not found in the MSA, but instead sought to
enforce an obligation clearly set forth in the MSA. We therefore find that the circuit court had
jurisdiction to enter an order enforcing Mark’s obligation to provide Irene with a death benefit.
¶ 30 Next, Mark argues that the circuit court should have discharged his obligation under section
13.1 of the MSA under the doctrine of impossibility. On appeal, he argues that he demonstrated
that his compliance with section 13.1 was objectively impossible due to his age and health. We
disagree.
¶ 31 “The doctrine of legal impossibility, or impossible performance, excuses performance of a
contract only when performance is rendered objectively impossible either because the subject
matter is destroyed or by operation of law.” Innovative Modular Solutions v. Hazel Crest School
Dist. 152.5, 2012 IL 112052, ¶ 37 (citing YPI 180 N. LaSalle Owner, LLC v. 180 N. LaSalle II,
LLC, 403 Ill. App. 3d 1, 7, (2010)). “The party advancing the doctrine must show that the events
or circumstances which he claims rendered his performance impossible were not reasonably
foreseeable at the time of contracting.” YPI 180 N. LaSalle Owner, 403 Ill. App. 3d at 6-7 (citing
Illinois–American Water Co. v. City of Peoria, 332 Ill. App. 3d 1098, 1106 (2002)).
12
No. 1-18-2501
“The doctrine of impossibility of performance requires that the circumstances
creating the impossibility were not and could not have been anticipated by the
parties, that the party asserting the doctrine did not contribute to the circumstances,
and that the party demonstrate that it has tried all practical alternatives available to
permit performance.” Illinois American Water Co., 332 Ill. App. 3d at 1106 (citing
Farm Credit Bank of St. Louis v. Dorr, 250 Ill. App. 3d 1, (1993)).
“Where a contingency that causes the impossibility might have been anticipated or guarded against
in the contract, it must be provided for by the terms of the contract or else impossibility does not
excuse performance.” YPI 180 N. LaSalle Owner, 403 Ill. App. 3d at 7.
¶ 32 Here, section 13.1 of the MSA unequivocally states that Mark
“shall keep and maintain in full force and effect a policy or policies of life insurance
on his life in the amount of Two Hundred Fifty Thousand ($250,000.00) naming
[Irene] as the sole and irrevocable beneficiary thereof. [Mark] shall provide on an
annual basis proof of payments and the existence of said policy.”
There is nothing ambiguous about Mark’s obligation to keep and maintain a life insurance policy,
and there is no temporal limit on how long Mark was required to keep and maintain such a policy.
There are no provisions in the MSA that contemplate Mark allowing a life insurance policy to
lapse or that contemplate his potential uninsurability. At the time the parties executed the MSA,
Mark might not have known of his future health problems, but it was reasonably foreseeable that
a term life insurance policy that would expire at the age of 70 would be insufficient to comply with
his continuing obligation to maintain a life insurance policy if he lived past 70. At the time, Mark
was apparently in good health, and he does not make any argument as to whether, when the parties
executed the MSA, he expected to reach the age of 70. Furthermore, Mark does not identify any
13
No. 1-18-2501
efforts that he made in the years leading up to the lapse of his term life insurance policy to comply
with section 13.1. Instead, he asserts that after he had already breached his obligation to maintain
a life insurance policy, he could not obtain a new policy due to his health. In other words, Mark’s
inaction in the face of an unambiguous contractual requirement contributed to his inability to
comply with section 13.1. Having failed to guard against the lapse of his life insurance coverage,
knowing full well that his existing policy would expire on a date certain, Mark cannot seek to
avoid his obligation under section 13.1 of the MSA on impossibility grounds.
¶ 33 Mark argued in the circuit court—but not in this court—that Irene knew that the policy he
had in place at the time of the divorce was a term policy that would end when he turned 70 years
old. But nothing in the MSA specifically referenced the policy that Mark already had; there is
simply nothing in the parties’ written agreement to suggest that Irene agreed that Mark’s existing
term life insurance policy was sufficient to satisfy section 13.1. Furthermore, as the circuit court
observed, the purpose of Mark’s life insurance obligation was to provide Irene with a payment if
Mark predeceased Irene to secure his maintenance obligation. And, as the circuit court observed,
impossibility is unavailable where there are practical alternatives available to permit performance.
We see no error in the circuit court’s rejection of Mark’s affirmative defense of impossibility.
¶ 34 Irene raises one issue in her appeal directed at the circuit court’s judgment relative to
Mark’s life insurance obligation. She argues that the circuit court erred by only giving her a right
of survivorship in the account holding the $250,000 rather than naming her the sole owner of the
account. She contends that section 13.1 of the MSA required Mark to name her as an irrevocable
beneficiary, giving her an “absolute right to receive $250,000 upon Mark’s death.” She argues—
without citing to the record or to any authority—that by virtue of being named an irrevocable
beneficiary, “the money was Irene’s, whether she received it on Mark’s death or it went to her
14
No. 1-18-2501
estate if she predeceased him.” In response, Mark argues that Irene waived this argument because
she expressly asked the circuit court to award her a right of survivorship, and she is therefore
barred from taking a contrary position on appeal. Alternatively, he argues that, as the circuit court
found, section 13.1. of the MSA was designed to secure Mark’s maintenance obligation and not to
guarantee that Irene and her eventual estate would receive the $250,000. We find no merit to
Irene’s argument.
¶ 35 In the circuit court, Irene initially argued that if she predeceased Mark, the proceeds of any
life insurance policy would be paid to her estate upon Mark’s death because there was nothing in
the MSA to suggest that the life insurance policy merely secured Mark’s maintenance obligation.
The circuit court did not agree, and Irene eventually took the position that the parties should have
a right of survivorship in the account holding the $250,000. We need not decide whether Irene is
barred from challenging the survivorship aspect of the circuit court’s judgment because her
argument fails regardless. Irene does not cite any authority or any aspect of the record to support
her underlying theory that when a beneficiary to a life insurance policy dies, the beneficiary’s
estate becomes—or has a right to become—the new beneficiary. Unless otherwise defined by the
insurance policy itself, when a beneficiary of a life insurance policy dies, the policy holder
ordinarily has the right to new name a new beneficiary. Nothing in the parties’ MSA or in the
record on appeal reflects that Irene’s estate would be substituted as the irrevocable beneficiary of
the life insurance policy upon Irene’s death. Instead, the MSA reflects that Irene was to be named
the irrevocable beneficiary, which, by its own terms, means that Mark could not change the
beneficiary designation during his lifetime. Nothing in MSA or in the record suggests that Irene’s
estate had a right to become a successor beneficiary to Mark’s life insurance policy. In the absence
of any authority to support her position, we have no basis from which to conclude that the circuit
15
No. 1-18-2501
court erred. The circuit court reasonably concluded that, if Irene predeceased Mark, Mark would
keep the account holding the $250,000 along with any accrued interest. Irene’s right to be named
as a beneficiary only created a contingent right in $250,000, the contingency being Mark
predeceasing Irene. The circuit court did not err in giving Mark a right of survivorship in the
account.
¶ 36 In sum, Irene’s petition clearly presented the circuit court with the issue of Mark’s failure
to comply with the MSA and whether to enforce his obligation to provide Irene with a death benefit
in the event that he predeceased her. Under the MSA, Irene had a right to be named as “the sole
and irrevocable beneficiary” of a $250,000 life insurance policy, and the circuit court’s order did
not modify Mark’s obligation, but instead enforced it. The circuit court did not err by rejecting
Mark’s impossibility defense because Mark—the one claiming impossibility—was the one who
allowed his term life insurance policy to lapse at a time that he was likely uninsurable.
Furthermore, at the time the parties executed the MSA, it was reasonably foreseeable that the term
life insurance policy would lapse when Mark reached 70 years old, making it unavailable to satisfy
section 13.1, and Mark does not argue that it is impractical or impossible for him to set aside
$250,000. The circuit court looked to the intent of the parties and the purpose of section 13.1 and
concluded that Mark could meet his contractual obligation to Irene by depositing $250,000 in an
account for the benefit of Irene should Mark predecease her, with a right of survivorship. We see
no error in the circuit court’s analysis or conclusion.
¶ 37 Next, Irene argues that the circuit court abused its discretion by denying her requests for
attorney fees under section 508 of the Act and Rule 137. She essentially argues that the circuit
court failed to consider whether requiring her to pay her own fees would strip her of her means of
support or undermine her financial stability. She further asserts that, even though the circuit court
16
No. 1-18-2501
did not find Mark in contempt, section 508(b) is a basis for awarding her attorney fees because she
was forced to litigate due to Mark’s noncompliance with the MSA. She also contends that she was
entitled to attorney fees under Rule 137 because Mark’s declaratory judgment complaint and his
attempts to modify his obligations under the MSA without providing a basis for reopening the
judgment were not well grounded in fact or law.
¶ 38 First, we reject Irene’s argument that she was entitled to attorney fees under Rule 137
because she has not presented an adequate basis for this court to reverse the circuit court’s
judgment. Her argument on this point is conclusory and not supported by any citations to relevant
authority. Her failure to develop and advance an argument supported by relevant authority results
in forfeiture. Ill. S. Ct. R. 341(h)(7). We therefore affirm the circuit court’s denial of Irene’s request
for attorney fees under Rule 137.
¶ 39 Next, we consider Irene’s argument that the circuit court abused its discretion by denying
her section 508 petition for attorney fees. She primarily contends that the circuit court applied the
wrong standard when it determined that Irene had the ability to pay her own fees because the circuit
court should have considered “whether requiring Irene to pay her fees would strip her of her means
of support or undermine her financial stability.” We agree.
¶ 40 Ordinarily, we review the circuit court decision on a fee petition for an abuse of discretion.
In re Marriage of Heroy, 2017 IL 120205. The circuit court “abuses its discretion when no
reasonable person would agree with the decision [citation], or when it bases its decision on an
incorrect view of the law.” In re Marriage of Izzo, 2019 IL App (2d) 180623, ¶ 26. A determination
of the correct standard to be applied by the circuit court is a question of law subject to de novo
review. Id.17
No. 1-18-2501
¶ 41 Section 508(a) of the Act provides, in relevant part, that the circuit court may order a party
to pay a reasonable amount of the other party’s attorney fees in connection with maintaining or
defending any action under the Act, the enforcement or modification of an order or judgment under
the Act, or any ancillary litigation incident to, or reasonably connected with, proceedings under
the Act. 750 ILCS 5/508(a)(1), (2), (6) (West 2018). “Section 508 governs attorney fees generally,
including petitions for contribution of attorney fees and costs incurred in postdecree proceedings
and initial dissolution proceedings.” Blum v. Koster, 235 Ill. 2d 21, 46 (2009). In ruling on a
petition for contribution of attorney fees, the circuit court “must (1) consider the financial
resources of the parties and (2) make its decision on a petition for contribution in accordance with
subsection (j) of Section 503.” (Internal quotation marks omitted.) Heroy, 2017 IL 120205, ¶ 19
(citing 750 ILCS 5/508(a) (West 2014)). Section 503(j)(2) provides that when the circuit court
decides a petition for contribution of attorney fees, “[a]ny award of contribution to one party from
the other party shall be based on the criteria for division of marital property under this Section 503
and, if maintenance has been awarded, on the criteria for an award of maintenance under Section
504.” Id. Section 503(d) identifies 12 factors for the circuit court to consider when dividing marital
property. 750 ILCS 5/503(d) (West 2018).
¶ 42 While courts have often recited that a party seeking attorney fees must first establish their
inability to pay (see Heroy, 2017 IL 120205, ¶ 15 (collecting cases)), our supreme court has
clarified that the standard is more nuanced. As the court explained in Heroy, “[a] party is unable
to pay [their own attorney fees] if, after consideration of all of the relevant statutory factors, the
court finds that requiring the party to pay the entirety of the fees would undermine his or her
financial stability.” Id. “[F]inancial inability to pay does not demand a showing of destitution, and
the fee-seeking spouse is not required to divest himself of capital assets before requesting fees.”
18
No. 1-18-2501
In re Marriage of Minear, 287 Ill. App. 3d 1073, 1085 (1997). “It is sufficient to show payment
would exhaust his estate or strip him of his means of support or undermine his economic stability.”
Id.¶ 43 Here, the circuit court made no findings as to whether requiring Irene to pay all the attorney
fees she incurred pursuing her petition for rule to show cause and enforcement action would
undermine her financial stability. Irene’s petition for attorney fees asserted that she was 71 years
old and unemployed. As of the end of April 2018, she had paid her attorneys $21,500 and owed a
balance of over $65,000. By the time of the circuit court’s hearing in July 2018, Irene’s counsel
argued that she owed over $85,000 in fees. According to her financial affidavit, dated March 21,
2017, Irene had a net monthly income of $3373.50, monthly living expenses of $3323.22, and was
paying $1000 per month toward attorney fees, resulting in a monthly deficit of $950. She had less
than $17,000 in her bank and brokerage accounts, $40,000 in retirement funds, and owns a
$300,000 home with no mortgage. In his written response to Irene’s petition, Mark asserted that
he was 72 years old, no longer employed, in poor health, had less than $650,000 in his bank
accounts, and “runs a substantial deficit of approximately $7300 per month.” The circuit court,
after considering the parties’ financial affidavits and hearing argument, concluded that Irene could
afford her own attorney fees based on her income ($3000 per month in maintenance and her social
security) and her other assets. The circuit court stated that that “the standard is always does one
party have the ability to pay her fees,” and observed that while Mark might have more assets than
Irene, “that’s not the standard.”
¶ 44 As Heroy and the cases discussed therein instruct, the circuit court should have considered
both Irene’s and Mark’s financial resources and the statutory factors when determining whether to
order Mark to contribute to Irene’s attorney fees. In determining whether Irene could afford to pay
19
No. 1-18-2501
her attorney fees, the circuit court should have examined whether requiring Irene to pay all her
attorney fees would undermine her financial stability. Her petition laid bare that her future income
and available liquid assets would be dwarfed by her attorney fees. The circuit court did not
expressly conduct this kind of analysis or make any findings on the record other than that Irene
could afford to pay her attorneys, and therefore did not expressly exercise its discretion when
ruling on Irene’s petition. Under these circumstances, where the circuit court expressly applied the
wrong standard and did not properly exercise its discretion, we reverse the circuit court’s denial of
Irene’s petition for attorney fees under section 508 and remand to the circuit court so that it can
apply the correct standard to Irene’s fee request.
¶ 45 As a final matter, Irene argues that she was entitled to attorney fees because they were
incurred in enforcing her rights under the MSA. She asserts that while she was not entitled to
mandatory attorney fees under section 508(b)—which mandates the recovery of attorney fees
where the circuit court finds “that the failure to comply with [an] order or judgment was without
compelling cause or justification” (750 ILCS 5/508(b) (West 2018))—the circuit court still should
have considered whether she incurred fees as a result of Mark’s conduct, both in letting his life
insurance policy lapse and in driving up the cost of litigation by attempting to modify a
nonmodifiable judgment. On remand, the circuit is free to consider Irene’s arguments that she is
entitled to fees due to Mark’s conduct in driving up the cost of the litigation.
¶ 46 III. CONCLUSION
¶ 47 For the foregoing reasons, the judgment of the circuit court rejecting Mark’s impossibility
defense and requiring Mark to self-insure to comply with his obligations under the MSA is
affirmed. We also affirm the circuit court’s denial of Irene’s request for attorney fees under Rule
20
No. 1-18-2501
137. We reverse the circuit court’s denial of Irene’s request for attorney fees under section 508 of
the Act, remand for further proceedings consistent with this order.
¶ 48 Affirmed in part and reversed in part; remanded.
21