In re Marriage of Tworek

2017 IL App (3d) 160188
Opinion filed October 11, 2017
_____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2017
In re MARRIAGE OF ) Appeal from the Circuit Court
) of the 12th Judicial Circuit,
AMY L. TWOREK, ) Will County, Illinois.
)
Petitioner-Appellee, ) Appeal No. 3-16-0188
) Circuit No. 12-D-2411
and )
)
DAVID J. TWOREK, ) Honorable
) Victoria M. Kennison,
Respondent-Appellant. ) Judge, Presiding.
)
_____________________________________________________________________________
JUSTICE O’BRIEN delivered the judgment of the court, with opinion.
Justices McDade and Wright concurred in the judgment and opinion.
_____________________________________________________________________________
OPINION
¶1 The respondent father appealed from trial court orders denying his motion to modify a
visitation notice provision in a judgment for dissolution of marriage, denying his motion to
deviate downward in child support, and granting the petitioner mother’s motion for contribution
to attorney fees.
¶2 FACTS
¶3 The respondent father, David Tworek, and the petitioner mother, Amy Tworek, were
married on November 1, 2003. They had two children during the marriage. The parties’
judgment for dissolution of marriage was entered on December 19, 2014, which incorporated the
parties’ marital settlement agreement and parenting agreement. The judgment provided that the
mother was to have residential custody of both children, subject to the father’s parenting time.
The father was to pay child support in the amount of $1044 per month and 28% of any net
income over $14,375 per quarter, plus half of health care, day care, school, and extracurricular
fees. There was a notice provision in the judgment, which provided that the father had to give
five days’ notice of any changes or cancellations, absent an emergency, or forfeit his visitation.
There was also a provision that allowed each party 14 days from the entry of the judgment leave
to file a petition for contribution to attorney fees.
¶4 On December 31, 2014, the mother filed a petition for contribution to attorney fees,
arguing that she lacked the financial resources to pay her own costs and fees. The affidavit
attached to the petition showed fees totaling $72,788.75 and costs of $2074.15, with a remaining
balance of $33,182.92.
¶5 On February 2, 2015, the father filed a motion to change the five-day visitation notice
provision, arguing that he could not give such notice due to last minute changes in his work
schedule and that the notice provision was contrary to the best interests of the children. He
requested that the notice be shortened.
¶6 At the hearing on the visitation notice motion, the father explained that the nature of his
job included last minute notices of meetings. The father testified that the meetings were client
meetings, generally after-hours social events to foster new business. The trial court denied the
motion to the extent that it sought a shorter notice period, noting that the five-day provision was
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an agreement between the parties. The trial court found that there had not been a substantial
change in the circumstances since the entry of the agreed judgment that would warrant a change
in the notice requirement. The trial court modified the notice provision to the extent that it
defined “emergency,” finding that it was in the best interests of the children to define emergency.
The trial court noted that the father had been at his current job long enough to get beyond any
probationary period and establish communication with his employer regarding his visitation
obligations with his children.
¶7 The father filed a motion to reconsider, arguing that the trial court incorrectly applied the
law and should have applied the best interest factors. In denying the motion to reconsider, the
trial court found that the mother was credible, the father was not credible, and the notice
provision was necessary because the father was abusing the visitation notice in his attempt to be
controlling and manipulative.
¶8 At the hearing on the contribution petition, held in August 2015, the mother submitted a
financial disclosure statement dated May 29, 2015. She testified that the financial disclosure
accurately reflected her financial condition at the time of the divorce. She had an annual income
of approximately $66,000 and the father had an annual income of $233,000. The trial court found
that, based on the financial information at the time of the hearing, the mother lacked the ability to
pay all of her attorney fees and the father had the ability to pay. The trial court considered the
reasonableness of the fees, the marital property settlement, and the parties’ present and future
earning abilities, and also considered the unnecessary increase in the cost of the litigation caused
by the father’s actions. Based on those findings, the trial court ordered the father to contribute
$24,000 to the mother’s fees.
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¶9 On June 18, 2015, the father filed a motion to deviate downward in statutory child
support, arguing that his commissions were greatly increased, so that the amount of child support
paid to the mother caused her to be unjustly enriched. The trial court denied the motion. The
father appealed the denial of his motion to modify the visitation notice provision, the denial of
his motion to deviate downward in child support, and the grant of the mother’s motion for
contribution to attorney fees.
¶ 10 ANALYSIS
¶ 11 I. Visitation Notice
¶ 12 With respect to the agreed visitation notice, the father contends that the appropriate
standard that should have been applied to his motion to modify was the best interest of the child
standard not a substantial change in circumstances. The mother argues that the trial court did
consider the best interests of the children.
¶ 13 Section 607 of the Illinois Marriage and Dissolution of Marriage Act (Act), prior to its
amendment in 2016, provided that a “court may modify an order granting or denying visitation
rights of a parent whenever modification would serve the best interest of the child.” 750 ILCS
5/607(c) (West 2014). In determining the best interests of a child, the trial court considers the
factors listed in section 602(a) of the Act. 750 ILCS 5/602(a) (West 2014).
¶ 14 Generally, agreed orders are not judicial determinations of the parties’ rights but rather
agreements between the parties and are subject to the rules of contract interpretation. In re
Marriage of Kolessar, 2012 IL App (1st) 102448, ¶ 19. But, in marriage dissolution proceedings,
while “property disposition agreements between spouses are binding upon the court, unless
unconscionable *** the court is not bound by agreements providing for the support, custody, and
visitation of the children.” Blisset v. Blisset, 123 Ill. 2d 161, 167 (1988). Since this was an
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agreement regarding visitation, the modification should have been granted if it served the best
interests of the children. The reviewing court is not bound to accept the reasons given by the trial
court and the judgment may be sustained upon any ground warranted, regardless of whether it
was relied on by the trial court and regardless of whether the reason given by the trial court was
correct. Material Service Corp. v. Department of Revenue, 98 Ill. 2d 382, 387 (1983). We will
not reverse a trial court’s decision regarding the modification of visitation unless it was against
the manifest weight of the evidence or an abuse of discretion. In re Marriage of Adamson, 2016
IL App (3d) 150105, ¶ 10.
¶ 15 It is clear from the record that the trial court, although it did not specifically cite the
statutory factors, did consider the best interest of the children in making its decision. The trial
court considered the guardian ad litem’s recommendation regarding the visitation notice and the
need for it, in terms of the parties’ relationship with each other and with the children. The trial
court also noted that it was in the best interests of the children to define what would constitute an
emergency. The father sought to change the visitation notice provision on the basis of last-
minute changes to his work schedule. However, his testimony established that the last-minute
changes were to attend social events with customers. While the trial court recognized the
importance of the father’s job duties, it also recognized the importance of a parent
communicating with his employer and making sacrifices so that he could balance his
employment with his visitation obligations with his children. Due to the father’s history of
dictating and controlling visitation, the trial court concluded that the five-day notice provision
was in the best interest of the children. We affirm the trial court’s decision regarding the
modification of visitation, finding that it was not against the manifest weight of the evidence or
an abuse of discretion.
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¶ 16 II. Contribution to Attorney Fees
¶ 17 The father contends that the trial court abused its discretion in ordering him to contribute
to the mother’s attorney fees because there was no evidence of the mother’s financial
circumstances at the time of the hearing. The mother contends that the trial court did consider the
mother’s financial circumstances at the time of the hearing and its decision to order contribution
was not an abuse of discretion. The mother also argues that the father waived any issues
regarding the reasonableness or necessity of the fees by not raising those issues on appeal.
¶ 18 A trial court may order either party to pay the reasonable attorney fees of his spouse. 750
ILCS 5/508(a) (West 2014). Section 508(a) of the Act (750 ILCS 5/508(a) (West 2014)) directs
that contribution to attorney fees may be ordered from an opposing party in accord with section
503(j) of the Act (750 ILCS 5/503(j) (West 2014)). Pursuant to section 503(j)(2) of the Act, in
deciding the petition for contribution, the trial court must consider the factors for property
distribution set forth in section 503 (750 ILCS 5/503 (West 2014)) and for maintenance set forth
in section 504 (750 ILCS 5/504 (West 2014)) of the Act. 750 ILCS 5/503(j)(2) (West 2014). In
determining an award of attorney fees, the trial court considers the relative financial
circumstances of the parties, including the allocation of assets and liabilities, maintenance, and
the parties’ relative earning abilities. In re Marriage of Anderson, 2015 IL App (3d) 140257,
¶ 12. The proper timeframe for disclosure is the time of the hearing, not the date of the
dissolution. Id. ¶ 23. We review a trial court’s ruling regarding contribution for attorney fees in a
dissolution proceeding for an abuse of discretion. In re Marriage of Keip, 332 Ill. App. 3d 876,
884 (2002).
¶ 19 The father argues that the mother’s disclosure was not sufficient because it was filed on
May 29, 2015, for a hearing held on August 3 and 4, 2015. At the hearing, the mother testified as
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to her current earnings and to the amounts currently in her savings and checking accounts. She
also testified as to some of the differences between the date of the disclosure and the date of the
hearing, including the fact that she had reported $1483 for child care on the disclosure, but the
father was subsequently ordered to pay 50% of that cost. The trial court noted that the time frame
it was looking at was at the time of the hearing. We find that there was no abuse of discretion in
relying on a disclosure filed within two months prior to the hearing, along with testimony at the
hearing regarding the mother’s current financial circumstances. In any event, the father failed to
object to the admission of the May 29, 2015, affidavit in the trial court, so he waived the right to
challenge it on appeal. American Chartered Bank, v. USMDS, Inc., 2013 IL App (3d) 120397,
¶ 13.
¶ 20 As the mother points out, the father did not make any argument regarding the
reasonableness or necessity of the fee amount in his appellate brief, so those issues are also
waived. Id.
¶ 21 III. Child Support
¶ 22 Lastly, the father contends that the trial court abused its discretion in refusing to deviate
downward in child support. The mother contends the father did not sustain his burden of
producing evidence to compel a deviation. A trial court’s ruling on child support will not be
overturned unless it is against the manifest weight of the evidence, indicating an abuse of
discretion. In re Marriage of Olsen, 229 Ill. App. 3d 107, 116 (1992).
¶ 23 The statutory guideline for the support of two children is 28% of the supporting party’s
net income. 750 ILCS 5/505(a) (West 2014). The guideline creates a rebuttable presumption that
the support is appropriate, and the proponent of a deviation has the burden of producing evidence
that compel a deviation. In re Marriage of Hill, 2015 IL App (2d) 140345, ¶ 29. A trial court is
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justified in awarding child support below the guideline amount where the parties’ incomes are
more than sufficient to provide for the reasonable needs of the parties’ children, but it is not
required to do so. In re Marriage of Singleteary, 293 Ill. App. 3d 25, 36 (1997). When dealing
with a parent who has a high income, the trial court must balance the concerns that (1) a child
support award should not be a windfall and (2) the standard of living that the children would
have enjoyed absent the dissolution should be maintained. Id.
¶ 24 There was significant evidence regarding the parties’ income, standard of living during
the marriage, and standard of living after the marriage. The father testified that during the
marriage, his highest income was approximately $96,000. At that time, they lived a simple
lifestyle in a modest home, and their furniture was mostly gifted to them or refurbished used
furniture. However, they did take vacations. The father testified that his gross income in 2015
was $207,000, and he believed that 28% of that amount greatly exceeded the children’s
expenses. At the time of the hearing, the father lived in a shared house and was saving money for
a home. He replaced his car in April 2015, paying for a new Acadia with almost $41,000 in cash.
He had accumulated $35,000 in his savings account since the divorce.
¶ 25 The mother testified that her annual salary at the time of the hearing was $75,000. She
had not made any contributions to her retirement fund since the entry of the dissolution of
marriage of judgment, and she had minimal savings. She continued to spend money frugally, as
she had during the marriage, but she had not been able to afford some maintenance on her home.
¶ 26 The trial court considered the financial resources of each parent, the needs of the
children, and the standard of living the parties enjoyed during the marriage and found that the
downward deviation was not warranted. The trial court found that the father intentionally
reduced his expenses in his January 2016 expense affidavit in an attempt to support his claim that
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he was living frugally, while he was purchasing a vehicle with cash and amassing savings. The
mother, on the other hand, was driving an older vehicle, deferring maintenance on her home, and
not contributing to her retirement fund. Both parties testified that they lived modestly during the
marriage, so that they could save money, but now the mother and children were living frugally
out of necessity. Based on those findings, the conclusion that the father failed to meet his burden
of producing evidence showing that a deviation was necessary and the ultimate finding that a
downward deviation was not warranted were not against the manifest weight of the evidence.
¶ 27 CONCLUSION
¶ 28 The judgment of the circuit court of Will County is affirmed.
¶ 29 Affirmed.
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