## I L L I N O I S 

## O F F I C I A L 

## R E P O R T S Appellate Court

In re Marriage of Radzik , 2011 IL App (2d) 100374

Appellate Court Caption In re MA R R I AGE OF MAGDAL ENA RADZ I K, Petitioner and Counterre spondent-Appe llee, v. CHRI STOPHER J

. AG REL L A, Respondent and Counterpe titioner-Appellant.

District & N o. Second District Docke t No. 2-10-0374

Filed Aug ust 8, 2011

Held (Note : T

his syl lab us

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by the Rep o rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) An interim order requiring responde nt to pay p et i t ioner’s attorney fee s

was invalid wher e petitioner failed to establish responde nt’s ability to pay the amount awa

rded, his individual retire ment acc ount was exempt from

an y judgme nt for interim attorney fee s, and the contempt order responde nt e mploy ed in a g ood-fa ith effor t to challeng e the trial court’s order was va cate d.

Dec ision Under
Review Appea l from the Circuit Court of L ake County
, No. 09-D-113; the Hon. David P. Br odsky , J udg e, pre siding.

J udg ment Reverse d in part and va cate d in part; ca use re manded.Counsel on

Appea l Richard M. Va rche tto, of Elmhurst, for appe llant.

J ohn A. Coladarc i, of Coladarc i & Colada rci, of Chica g o, for a

ppellee.

Panel PRE S I DI NG J USTI CE J ORGENSEN delivere d the judgme nt of the court, with opinion.
J ustices McL are n and B owman concur red in the judgme nt and opinion.

OP INION

¶ 1 Petitioner, Mag dalena Radzik, and re s p o n d en t , Christopher J

. Ag rella, are eng ag ed in dissoluti on proce eding s befor e the trial court. On November 6, 2009, the trial court g rante d petitioner’s petition pursuant to section 501(c- 1) of the I llinois Marr iag e and Dissolution of Marr iag e Act (A ct o r Di ssolution Act) (750 I L CS 5/501(c-1) (West 2008)) for interim attorney fee s. On April 9, 2010, afte r responde nt f ailed to pa

y that awa

rd, the court enter ed
ag ainst responde nt a judg ment of conte mpt. ¶ 2 Respondent argues five issues on appea l: (1) the court err ed in finding him in contempt; (2) the court abused its discretion in enter ing the interim fee awa rd; (3) an ex parte order that issued a rule to show cause is void for lack of proper notice; (4) the court err ed in ordering the liquidation a

n d d is trib uti o n o f responde nt’s individual retire ment acc ount (I RA) to satisfy the interim fee awa

rd; and (5) the finding of contempt must be vacated beca use responde nt had no other av en ue for challeng ing the court’s November 6, 2009, fee order

. For the following rea sons, we conclude that: the November 6, 2009, i nterim fee awa rd constit utes

err or; the court may not, should a new petition for interim fee s be filed on rema nd, order that
any awa rd be paid throug h liquidation and distribution of responde nt’s I RA; and the contempt finding must be vacated.

¶ 3 I . BA CKGROUND ¶ 4 A. I nitial Orders, Pay ments, and Petition ¶ 5 On J anuar

y 22, 2009, petitioner filed a petition f or dissoluti on of the parties’ marria g e. The petition asser

ts that two children (ag es 4 and 19 months) wer e born of the marria g e and that petitioner had a daughte r (ag e 16) from a prior relationship whom responde nt had not adopted. Respondent was subsequently g rante d, appar ently throug h an emer g ency order of protec tion, sole car e and custody of t h e t hree minor children, as well as possession of the marital residenc e. That custody arr ang ement did not chang e during the pendenc y o f t h ese proce eding s. ¶ 6 On Fe b ru ar y 6
, 2 0 0 9
, petitioner filed a financ ial aff idavit in compliance with L ake

-2-County ’s local rules (19th J udicial Cir. Ct. R. 11.02 (ef f. Dec

. 1, 2006)). She listed her total 1 income as zero or unknown, her total monthly living expenses as $15,409, and her debts as unkn o wn

. I n ad d ition, that same day
, she petitioned for a minimum of $50,000 in interim attorney fee s and co s t s

. T h e petition for interim fee s asser ted that responde nt (ag e 46), an attorney with his own prac tice, ear ned a substantial income and had sole acc ess to the parties’
assets and, there fore
, was “we ll able” to pay petitioner’s interim fee s. I n contra st, petitioner (ag e 36) had alway s been a stay -at-h o m e mother, was unemploy ed, and did not have the financ ial ability to pay rea sonable attorney fee s. The petition was signe d and verified by petitioner and was signe d and cer tified by her att o rney s. Attache d as exhibi ts wer e petitioner’s re tainer a g ree ment with her attorney s, and the attorney s’ affidavits attesting to their re spective e ducation, experienc e, and billing rate s. ¶ 7 On April 7, 2009, responde nt responde d to the petition for interim fee s, larg ely denying petitioner’s alleg ations and asking the court to deny the petition. Respondent cer tified “under penalties of pe rjury” that his statements we re true and cor rec t. ¶ 8 On April 9, 2009, t h e ap p o i n t ed repr esentative for the minor children petitioned for $6,534.45 in attorney fee s. In her petition, she acknow ledg ed that re s p o n d en t had, per a J anua ry 2 7
, 2009, court order
, paid her an initial $750 reta iner fee

. Fur ther, she acknow ledg ed that re spondent had pa id her a n additional $3,000 in fee s. ¶ 9 On Apr i l 2 4
, 2 0 0 9
, t h e co u rt order ed responde nt to pay petitioner $230 wee kly as temporar y maintenanc e. The court order ed petitioner to seek employ ment, to keep a job log ref lecting her eff

orts to seek employ

ment at a minimum of three locations wee kly
, and to fax the job log to r espondent’s c ounsel monthly . The c ourt order ed respondent t o pay $10,000
to petitioner’s counsel as interim attorney fee s. Respondent repr esente d to the court that he would re fi n ance the marital residenc e to pay the interim fee awa rd, and the court subsequently g rante d responde nt a n extension of time to pa

y the fe es, to allow time f

or the ref inance loan to be appr oved. ¶ 10 On May 28, 2009, th e court g rante d the child repr esentative’s fee petition. On J uly 6, 2 0 0 9
, the child repr esenta tive filed a second petition, seeking $13,183.85 in attorney fee s

. The petiti on noted t hat, on J une 25, 2009, responde nt paid the re prese ntative $6,434.45 as order ed by

the cour t in May

. ¶ 11 On J uly 30, 2009, petitioner filed a second petit i o n fo r i n t erim attorney fee s and an “adde ndum” to the petition. The second petition e ssentially rea sserted the alleg ations from the first petition; namely
, that responde nt ear ned a “substantial income,” had sole acc ess to t h e parties’ assets, and was “we ll able” to pay petitioner’s interim attorney fee s, and t h at

Rule 11.0 2(B) pr ovides tha t “[a ]ny m oti on regard ing fina nci al re li ef re gardi ng att orn ey’s 1 fe es, cos ts , m ai nte nan ce, or chi ld sup por t sha ll be ser ved pur sua nt to Su p r e me Cour t Rule 11 and sha ll be sup por te d b y a cur ren t Com pre hen si ve Fin anc ia l Aff ida vit.” (Emphasi s add ed.) 19t h J udi ci al Cir . Ct. R. 11 .02( B) ( ef f. De c. 1, 2006 ). Sect ion 11.0 2(C) (3) pro vides tha t, at the hea ri ng, the par ty re que st ing fi nan ci al re li ef m ust pr oduc e his or her la st two pay st ubs
, la st thr ee fe der al i n c o me t a x re tur ns, and re cor ds of any add it ion al inc om e not re fl ect ed in tho se doc um ent s. 19 t h J udi ci al Cir . Ct. R. 11 .02( C)( 3) (e ff . Dec . 1, 2 006)

.
-3-petitioner was unemploy ed and lacke d the financ ial ability to pa y rea sonable attorney fee s. Although the second petition ref ere nced her financ ial aff idav i t , t he rec ord ref

lects no financ ial aff

idavit attache d to the petition. Despite signature and verific ation sections at the end of the petition, petitioner did not sign or verify the petition. The petition contained a

s i gn ed at t orney cer

tification, stating that, upon rea sonable inqui ry , the petit ion was, to th e best of counsel’s knowledg e, well g rounded in fac t. The addendum purported to incorporate the first petition, and it noted that additional fee s wer e incurre d afte r that petition was filed, that petitioner’s o u t s t anding balanc e for her fee s was $49,913.15, and that there exis ted another $29,677.50 in unbilled time and expenses. The addendum acknow ledg ed that responde nt, in compliance with the e arlier court orde r, paid pe titioner’s counsel $10,000. ¶ 12 On August 24, 2009, responde nt re s p o n ded to petitioner’s second petition for inter im fee s. He denied that he could pay the fee s and noted that, despite the court order
, petitioner failed to timely fax job logs to his counsel. (Previously
, respon d en t moved for a contempt fi n d i n g o n t h i s basis.) He noted that petitioner failed to supply the court with a curr ent financ ial aff

idavit and he asser

ted t hat petit ioner wa s voluntarily impoverishing herself so

as to reque st contribution when, i n fac t, she owned various proper ty and other assets. Respondent argued that, since the inception of the proce eding s, he: (1) had borne the s o le financ ial respons i b i l i t y to car e for all three children (including the pay ment of health insurance premiums, school tuition and fee s, and bills for medical car e, thera py , and $8,000 in dental car e for the eldest chi l d who suffe red from a serious liver disease) ; (2) was responsible for the mo rt g ag e and other household expenses; (3) paid petitioner $230 in

wee kly maintenanc e, paid her vehicle insurance and expenses, and paid her health insurance
at $ 5 3 6 ev er y two months; (4) had paid approximately $10,000 to the curr ent child
repr esentative, more than $10,000 to the past and curr ent child repr esentatives, and $10,000 to petitioner’s attorne y s; and (5) ha d paid and c ontinues to owe his own attorne y s for their fee s. He conclude d that he “simply lacks any additional funds and cannot aff ord any further expenditures on behalf of petit ioner.” Ag ain, respondent cer tified that his statements wer e true a nd corr ect. ¶ 13 Fur

ther, on November 6, 2009, responde nt moved to strike the petitions for interim fee s and moved for sanctions ag ainst petitioner, arguing that, while petitioner repr esente d to the
court at prior hear ings that she had no money , she had ear ned “thousands of dollars” selling items on eB ay throug h an online business and she had made various unnece ssary purcha ses (including a “butt enhanc er” ). Respondent attache d to the motion printouts purportedly from petitioner’s eB ay acc ount, of various items sold or purcha sed and their sale p ri ces. Respondent argued that petitioner actively d efrauded the court and misrepre sented her financ ial status in an eff

ort to require responde nt to pay more to her

than war rante d.

¶ 14 B. N ovember 6, 2009, I nterim Fe e Awa rd ¶ 15 On November 6, 2009, the parties appea red befor e the court on petitioner’s petition f or interim fee s. Petitioner’s counsel a rg ued that re spondent: ear ned an a djusted g ross income of $103,000 in 2008; made a $27,871 contribution to his 401(k) in April 2009 (it is unclea r whether this is the I RA at issue in this appea l); sold stocks for $15,000 in September 2009;

-4-ref inance d a home and withdrew $50,000 from a h o m e eq u i t y line of cre dit; pay s private scho o l t u i t i o n for the children, pay s $1,300 per month in childcar e, and boug ht the eldest child a conver

tible. Petitioner’s counsel asser ted that the income petitioner made from eB ay ref lected her need to sell persona l items to incre ase her ca s h fl o w and that the “butt enhanc er” was for a Ha lloween c ostume. Counsel argued that the court neede d to le vel the playing fi el d b ec au s e responde nt had sole acc ess and control of the marital assets and, despite her

eff orts to obtain employ

ment, petitioner re mained unemploy ed. ¶ 16 Respondent’s counsel arg ued that petitioner’s failure t o disclose the eB ay income, her failure to comply with the court’s order that she submit job logs ref lecting job sear ch eff

orts, and her failure to pr oduce a cur rent fina ncial af fidavit ref lected that an evidentiar

y hear ing would be appropr iate. Respondent explai n ed that the conver tible for the eldest child cost $1,500 and t h at the $50,000 was not taken from a line of cre dit but, rathe r, came from a mortg ag e ref

inance and was used to pay petitioner’s attorney fee s and other expenses. Respond en t s t at ed t hat “we would be more than happy to do an evidentiar y hear ing” and
argued, “ag ain, there ’s no billing statement. There ’s no aff idavit. They just fly in he re with these cra zy fee s, and there ’s nothing backing it up–zero. I t’s not in compliance with the

re quirements.” Petitioner’s counsel interjec ted, “Judge, if y ou look at the end of our fe e petition, there a

re our aff idavits, and our petitions are verifie d.” ¶ 17 The court deter mined that it could “e as i ly make this deter mination on [t he petiti on for fee s] with a nonevidentiar y hear ing,” noting that section 501(c) (1) of the Act require s a h ear ing that is summary and ex peditious. The court stated t hat i t would consider all of t h e fac tors in se ction 501(c) (1) and noted that the proce eding s befor e it we re complex and that

ever y issue had been contested. The court asser ted that both parties had “pled poor” and that neither pa rty had a g reat amount of money to be “ove rlitigating” the ca se. The c ourt found that petitioner require d contribution from responde nt to be able to adequately participate in the litigation. The court stated:
“I don’t know exactly

what all of the assets ar e. The re’ s been–w e’ve had a numbe r of differ ent things t h at h av e b een mentioned. I think it was on the last court date [respondent] mentioned having a $40

, 0 0 0 as s et of some sort that he would have been able to–may have been able to liquidate for living expenses, and I ’m not–Idon’t know
any of those ***.

*** The c ourt does not know ex actly how much money

is in thi s estate ***, but I think that in the interim the court is g oi n g t o m ak e an awa rd of interim fee s and that I think should be sufficie nt to keep this litigation going , and that awa rd is g oing to be $32,000 in interim attorney

fee s.” Respondent interjec ted, “[S] o that I ’m not he ld [to] be in c ontempt of court–I don’t have it *** I don’t have it.” At the conclusion of t he hearing
, responde nt’s counsel stated, “And I understand the court did not have an evident i ar y hear ing. Howeve r, for the rec ord, I am putting on the rec ord that [respondent] does not have $32,000 at his acc ess. I just wa nt that on the re cord.”

-5-¶ 18 C. Respondent’s Motion to R econside r the Interim Fe e Awa rd ¶ 19 On Dec em b er 4
, 2 009, responde nt moved the court to rec onsider its order that he pay $32,000 in interim fee s. Respondent arg ued that petitioner failed to establ i s h eit her her

curr ent financ ial status or responde nt’s ability to pa y her fee s. Fur

ther, responde nt a sserted that he could not pay his 2009 income taxes and that he owed his own counsel approximately $10,000. Respondent noted that, despite discovery and document production, petitioner did not pr oduce any documents to support her asser tion that responde nt could aff ord to pay the fee s. ¶ 20 On Dec ember 30, 2009, the court stated that it was denying responde nt’s m o t i o n t o

rec onsi d er , “without any kind of a hear ing on it. I ’ve read it, I ’m ruling on the pl eading s.” T h e court stated that the $32,000 order ed was “extremely rea sonable” in this “hotly contested” litigation, that $32,000 was “we ll-within” responde nt’s ability to pay , and that it

rec alled responde nt r epre senting that he had a $40,000 source of income to of fer petitioner

as a settlement. I t sug g ested that responde nt us e t h at , or another source , to pay the awa rd. The court noted that petitioner was being litigated into poverty and that, acc ording ly
, one of its priorities was to level the playing field. I t order ed responde nt to pay the $32,000 fee awa rd by noon the next day

. ¶ 21 Respondent interjec ted to the court that: the $40,000 it mentioned was in an I RA; he had previously offe red only to split that I RA as a settlement of marital proper ty ; if he withdrew
t he money
, a 10% penalty and tax es would be im posed; the I RA was a retire ment acc o u n t and not income; and peti tioner had not shown that responde nt has, nor does he have, any other source of funds. Respondent asser ted that he could not follow the court’s order
, stating, “I do not have the money

. I have no acc ess to money such as that. I t can’ t happen. I am living with three k i d s , an d I do pay my stepdaug hter’s medical bills.” Respondent’s counsel

asser ted that he did not have an opportunity to prove responde nt’s inability to pay , to which the court responde d, “both parties had a chanc e to prese nt whateve r they wanted to pr esent at that hea

ring .”

¶ 22 D. Hea ring s Reg ardingFirst Rule to Show Cause ¶ 23 On J anuar

y 22, 2010, petitioner petitioned for a rule to show cause , beca use re spondent had not paid the fee s. The cour t issued the rule. That same day
, responde nt’s attorney withdrew. I n an appea

ranc e befor e the court, responde nt’s new co u n s el repr esente d that responde nt’s former counsel withdrew beca use responde nt was unable to pay any more attorney fee s. He said that he was repr esenting responde nt on a pro bono basis. Fur ther, he
argued that the rule to show cause was based on responde nt’s violation of an order with which he could not comply

. Petitioner’s attorney s (whose earlier reque st to withdraw had been denied) reiter ated that they could not aff ord to continue to repr esent her. The court, in turn, reiter ated that it was “extremely serious about making sure that [petit ioner’s] attorney s g et paid” and that, afte r a hear ing, it had found that responde nt was capa ble of paying, ag ain, based on a

former offe r of $40,000 to settle the c ase. The followingdialog ue ensue d:
“RESPONDENT’S COUNSEL : I think y ou misint erpr eted his off er. THE COURT: Idid not. Idid not. Ihear d him loudly and cle arly

.

-6-RESP ONDEN T’S COUNSEL : He said if he did a pre- disbursement of ma r it a l a s s e ts.
THE COURT: He has $40,000 in marital assets. There is a place wher e he could g et those attorney ’s fe es. RESP ONDEN T’S COUNSEL : And I absolutely agree with y ou, J udg e, acc ept [ sic ] for one problem. I f my client takes $40,000 out of an I RA and g ives it to counsel, he will only g et $20,000 beca

use they wi ll take a 10 perc ent penalty
, and they will take the income tax out of it. I f[,] on the other ha nd[,] y ou transfe r it, and it can only happen by
ag ree ment, *** as part of a disbursement of marital–without prejudice
, J udg e, to a final finding of di sbursement of the assets, if he tr ansfe rs it to her and she takes it out of t he

acc ount, she will only pay a min i m u m of taxes. What we are saying is *** instead of blowing $20,000 in martial assets to the g overnme nt, we only blow $ 5
, 0 0 0 of marital
assets to the g overnme nt. I t doesn’t make any sense for my client to blow 20, I mean it’s $20,000 she could g et later on.” ¶ 24 On Fe bruar

y 19, 2010, responde nt’s former attorney petitione d fo r fe es , alleg ing that

re spondent had an outstanding balanc e due in the amount of $48,682 and reque stin g a judgme nt for those fee s. Fur ther, the child repr esentative petitioned for and was awa rded $13,395 in fee s. ¶ 25 On Fe bruar

y 24, 2010, the parties ap p ea re d o n t h e re turn of the rule to show ca use. Acc ording to the common-law rec ord
, responde nt was order ed to pay , within 72 hours, 2 petitioner and her attorney s $32,000 and the child repr esentative $8,000 from the I RA. The order provided that “[respondent] shall transf er the funds to [petit ioner] in her name, and [petit ioner] shall deliver the funds” to her attorney s and the child repr esentative immediately there afte r. The he aringon the rule w as continued to Mar ch 5, 2010. ¶ 26 On Marc h 5, 2010, the court was informed that responde nt had liquidated stocks within the I RA and had or dere d a tra nsfer of the funds to pe titioner for her to pa y her c ounsel and the child repr esentative. Howeve r, petitioner ref used to open an I RA in her name to rec eive the funds. Petitioner’s attorney s repr esente d that they understood that the order was desig ned
to save taxes; if petitioner rec eived the funds and withdrew them from an I RA in he r name she would be taxed only 10% to 15% on the withdrawa l, wher eas a direc t withdrawa l f rom responde nt’s acc ount would result in a 28% to 34% pe nalty
, and respondent had agree d to
pay the withdrawa l penalty that would o cc ur when petitioner withdrew the funds. Neve rtheless, petitioner’s attorney s we re u n able to convince her to open an acc ount to

rec eive the funds and, there fore, they reque sted that tax conseque nces be viewed as only seconda ry to the enfor ceme nt of the order and that responde nt disburse the funds direc tly to them. Respondent’s counsel, in turn, repr esente d that responde nt had authoriz ed in excess of $44,000 to be transfe rre d and, there fore
, he asked the court to order petitioner to open the I RA, beca use “the court has an obligation to protec t the marital estate. We are talking about throwing awa

y $15,000.” ¶ 27 T h e co u rt o rd er ed re s p o ndent to cash out $40,000 from the I RA to direc t l y p ay petitioner’s attorney s and the child repr esentative. The cou rt rese rved the issue as to who

T he r eco rd con ta ins no t ra nsc ri pt of thi s po rt ion of th e Fe bru ar y 24, 201 0, he ar ing. 2

-7-would pay the additional income taxes that would result from petitioner’s ref usal to open the

acc ount, warningpetitioner that she will proba bly , ultimately , be “on the hook” for : “[T] he $15,000 that y ou’re wasting by ref using to do what it is that ever y one is telling
y ou to do, but that’s okay

. I f y ou don’t want to do that, if y ou want to waste that $15,000, that’s g oing to c ome from your side of the balanc e shee t.

***
I mean it’s a simple thing for her to open up the acc ount. He was g oing to pay the tax l i ab i l i t y

. Really
, there was no downside to it from her, but I understand if she doesn’t
want to do that, that’s fine. I f y ou would rathe r pay the $15,000, I will let y ou do that, Ma’a m. *** You have a

rig ht to do that.

***
*** [W ]e had a proce dure laid out to save about $15,000 in tax money

. I understand
y ou don’t want to do that. You have a r ight to stop that.”
T h e fi n al order provided, “responde nt objects t o the l iquidation of hi s I RA acc ount to pay interim attorney fee s.” Petitioner’s counsel’s rene wed reque st to withdraw was continued to Marc h 16, 2010. ¶ 28 On Marc h 16, 2010, petitio n er ’s at t o rney s repr esente d that they rema ined unable to convince petitioner to open an I RA, so they had asked responde nt to pay direc tly

. The next day
, howeve r, petitioner had sent them a letter saying that she did, in fac t, open the I RA but also that she wanted them to withdraw. I n court, re spondent’s counse l a sserted that he was prepa red to transfe r the funds to petitioner upon verific ation that the ac co u n t exis ted. Petitioner stated that she opened the acc ount, and responde nt’s counsel stated that he would “be happy to tr ansfe r it, J udg e, if y ou’d g ive me the acc ount numbe r.” The court, howeve r, replied, “I ’m g oing to have that transfe rre d direc tly to [ p et i t i o ner’ s counsel and the child
repr esentative].” Respondent’s counsel asked “why we’ re g oing backw ards,” and the court stated that, in light of the potentially adver se relationship that exis ted betwee n petitioner and her at t o rn ey s, it wanted to ensure that the attorney s rec eived their money

. I t order ed that
respo n d en t s h ould within 24 hours direc tly pay petitioner’s counsel and the child
repr esentative from the I RA and that the funds should not g o throug h an acc ount in petitioner’s name. Fur

ther, it g rante d petitioner’s c ounsel’s motion to withdraw.

¶ 29 E. Hea ring on Second Rule to Show Cause ¶ 30 Acc ording to the common-law rec ord, t h re e day s later, on Marc h 19, 2010, petitioner 3 filed anothe r petition for a rule to show ca

use, because respondent had not paid counsel in compliance wi t h t he court’s Marc h 16, 2010, order

. In addition, petitioner reque sted an additional $11,397 in fee s. Also that day
, the court issued the rule with a return date of April 9, 2010. The rule was issued ex parte , with only the child repr esentative, petitioner, and her attorney listed a s having been prese nt in open court. No cer tificate of service is attache d to the petition.

T her e i s no tr ans cr ipt fr om th is cou rt hea ri ng, if

th er e was one , co nta ine d i n t he r eco rd. 3

-8-¶ 31 On April 9, 2010, the court held a hear ing on the ru l e t o s h o w ca u s e. Respondent’ s

counsel argued that neither he nor responde nt was serve d with the rule and that the rule was

a void or der. Fur

ther, responde nt’s counsel a rg ued that re spondent would ref use to pa y the
money beca

use he was of the opinion that it was leg ally inappropriate for the court to order him to li quidate the I RA to pay interim attorney

fee s. The cour

t replied:
“THE COURT: [I ]t was [respondent] who sug g ested that that was the wa y t hat it would g et paid, not the cour t. He off ere d that up to the court as a method of pay ing the child–
RESP ON D EN T ’ S CO U

N SE L : T h e r e ’ s a b ig d if

f e r e n c e b e tw e en him transfe rring that
money to her a nd her pa ying he r lawy er. THE COURT: I don’t know how y ou can complain afte r putting it in an order when he’s the one who sug g ested it.
RESP ONDEN T’S COUNSEL : I t’s not a differ ence without a distinction. I t is a differ ence with a big distinction, and the distinction is that y ou can’ t or der him to do it. He c an ag ree to transfe r money , marital asse ts.

***
He ag ree d to transfe r the money

. He didn’t ag ree to liquidate his I RA acc ount to pay attorney ’s fee s. He ag ree d to transfe r the money to [petit ioner]. There ’s a big differ ence betwee n the two things. He’ s never ag ree d nor offe red to do the other, okay
, and beca use he offe red to transfe r the money so that we could ‘eve n the play ing field’ here
, it doesn’t

mean that the court has the rig ht to order him to pay funds out of an I RA, which I don’t think y ou do.
THE COURT: He a g ree d to that order.
RESP ONDEN T’S COUNSEL : No he did not. I f y ou’ll see, the order say s he ag ree d to the order

to transfe r the money

. THE COURT: S ee, I fee l a littl e set up here

. I order ed him to pay ***. He then
sug g ested that this is the method by which we will do it, and I said okay
, that’s an

acc eptable method. We put it in an ag ree d order
, and now y ou’re saying I can’ t order him and that’s why

it’s invalid.” ¶ 32 Counsel then repr esente d to the court that he would transfe r t he entire I RA of $80,000
to p et i t i o n er, even though he claimed that some of it was nonmarital, in return for: (1)

rec eiving “cr edit” at trial for having done t hat; and (2) th e lum p-sum transfe r di sposing of
t h e petition for interim fee s. Petitioner’s counsel objected, partially on the potenti al t ax ramifica tions that such an “income ” would have for pe titioner. ¶ 33 The court expressed that “it’s over today

. That money is g oing to g et paid. We’re g oing
to h a v e th e h e a r in g to day .” There afte r, in opening statements, responde nt’s counsel reminded the court that, at the hear ing at which the $32,000 interim fee awa rd was enter ed, there was

no: (1) prese ntation of any evidenc e; (2) financ ial aff idavit as require d by local rules; or (3)
statement as to which of petitioner’s counsel’s fee s wer e rela ted to the divorce (as opposed
to other proce eding s pending involving the parties)

. Counsel argued that the evidenc e would show that responde nt c ould not pay the fee s from any source other than the I RA; however
,

-9-counsel argued, the court could not order responde nt to liquidate t h at as s et , and doing so

might constitute dissipation of the estate beca use of money

unnece ssarily

lost to t axes. ¶ 34 I n sum, responde nt test i fi ed t h at he had one chec king acc ount with $195 in it. As of November 1, 2009, responde nt possessed three assets: (1) a condominium in Chicag o that

was in fore closure, was being offe red at $200,000 as a short sale, and that had not sold; (2) his house, burdene d with $643,000 secur ed ag ainst it; and (3) the $80,000 I RA. Respondent testified t hat, after t h e re fi nancing in J uly 2009 (to pay , in part, the initial $10,000 interim fee awa rd), his line of cre dit had been closed (par tly due to the condo fore closure) and he was not permitted to further borrow ag ainst the house. Respondent testified t h at h e could not prese ntly borrow money and that he was a solo prac titioner, with his law prac tice constituting his sole source of income. As of November 1, 2009, his aver ag e monthly net pay was $7,500
to $8,000, but he had not been “eve n close” to paying all of his bills. Specifica lly
, he testified that: ( 1) he was curr ently two months be hind on his of fice rent; (2) he was around $13,000 behind on bills related to treating the eldest child’s hepatitis and to other expenses, including her psy cholog ical counseling ; (3) he just paid his $900 g as bill, which he had not paid during the winter; (4) he wa s seven months behind on his condo mortg ag e; (5) while he g ener ally paid the children’ s nanny $300 per wee k, he had missed a few pay ments and owed her $600; (6) he paid $350 p er m o n t h i n one child’s school tuition; (7) he paid his first attorney $20,000 to $30,000, but owed him $55,000; and (8) he just beca me curr ent on the home mortg ag e, which was $3,600 per month. “I ’m short every m o n t h
, short ever y month.” Fur ther, he did not, in 2009, make estimated tax pay ments for his law prac tice and he did not have the approximately $20,000 to $25,000 he would owe i n taxes for the 2009 tax y ear

. Respondent testified that, since 2009, he had been solely responsible for “eve ry penny” for the t hree children and their care. Respondent ag ree d th at h e boug ht the eldest child a used

car for $1,500 and spent $600 to $800 to fix it. He also paid the insurance for that car , as well

as for the car petitioner drove, in an amount totaling around $300 per month. He paid support to pe titioner in the amount of $230 wee kly
, per the court order

. Respondent had two cre dit

car ds, one he did not use and did not know if there was a balanc e on. The other had a balanc e of approximately $4,000. Respondent testified that he did not know the cre dit limit s on the

car ds. ¶ 35 As to the court’s order that he tra nsfer money from the I RA into an I RA in petitioner’s name, respondent testi fied that he took “all the steps [he] could t o make that happen up to and including l iquidating stocks into ca sh” on or a bout J anuar

y 22, 2010, and conta cting a repr esentative from Ameritra de who explained the proce ss and sent the proper forms for the transfe r authorization. “I was on the phone for day s making it happen.” Respon d ent explained that, when petitioner finally opened up an acc ount, she opened a Roth I RA instead of a traditional I RA and so the transfe r of $44,000, “which I fully authorized sever al times,

was stopped cold.” Respondent’s attorney prese nted the court with responden t ’s curr ent financ ial aff

idavit, which responde nt testified fairly and acc urate ly repr esente d his monthly
expenses with the exception that t h e m edical bills had incre ased. The child repr esentative asked respondent if, other than his bel i ef t h at h e d id not have a l eg al obl iga tion to pay the interim fee s out of the I RA, there was any rea son that he had not done s o , an d he replied “No.”

-10-¶ 36 The court found responde nt in indirect civil contempt for violating the order s enter ed on

November 6, 2009, Dec ember 30, 2009, Fe bruar y 24, 2010, Marc h 5, 2010, and Marc h 16, 2010, in that “ althoug h he had the ability to pa y said attorney s fee s he failed to do so.” The court stated that the i ssue of liquidating the I RA was a red herringbeca use “on November 6, 2009[,] this court had a hear ing in which [i t] found that [respondent] had the ability to pay the attorney ’s fee s in the amount of $32,000” and noted the importance of that in light of the “scor ched ear

th” litigation. The court found “ludicrous” responde nt’s a r g u me n t that the court could not order him to pay the fee s from the I RA, beca use it was responde nt’s “sug g estion”
to do it that way

. Further, the court stated that, if responde nt had a desire to pay in

acc ordanc e with the cour

t’s order s, he would have contacte d petitioner’s attorney s and the child repr esentative to arr ang e to make pay ments. “Not one penny had been paid. There has been no g ood faith attempt to make pay ments, no eff

ort whatsoeve r to mak e pay ments, there ’s been no eff

ort to comply with the court’s order s.” The court sentenc ed responde nt to the custody of the sheriff of L ake County with a purg e amount of $40,000; the sentenc e was stay ed unti l May 21, 2010. Respondent’s counsel asked the court to clar ify whether it was orderi n g re s p o n dent to take the purg e amount out of the I RA, “bec ause there had been
uncontrove rted testimony he has no money except what’s in that acc ount.” The court replied, “I disag ree

. The court has previously found that he has the ability to make those pay ments.” Respondent re plied, “B ased on w hat evidenc e, Judge? ” ¶ 37 On April 16, 2010, responde nt filed his notice of appea l. On May 14, 2010, the trial court stay ed the e nforc ement of the contempt orde r duringthe pende ncy of this appea l.

¶ 38 I I . ANALYSI S ¶ 39 A. Statutory Authority

for Interim Fe es ¶ 40 Section 501(c- 1) of the Act permits a trial court, while a case rema ins pending
, to a ssess attorney fee s and costs in favor of the petitioning party ’s counsel. 750 I L CS 5/501(c-1) (West 2008). The party seeking interim attorney fee s is expected to file a petition “supported by one

or more aff

idavits that delineate rele vant fac tors.” 750 I L CS 5/501(c-1) (1) (West 2008); Kaufman, Litw in & Feinstein v. Edgar
, 301 I ll. App. 3d 826, 836 (1998) (noting that section 501(c- 1) provides that the fee petition must be supported by one or more aff idavits); see also David H. Hopkins, “Leveling the Playing Field” in Divorce : Questions and Answers About the New Law
, 85 I ll. B.J. 410, 412 (1997) (“A petition for an interim awa rd must be supported by at least one aff idavit, ordinarily that of the petitioning litigant. Any petition for

an i n terim awa

rd not acc ompanied by at least one supporting aff idavit is susceptible to a motion to strike.”)

. Fur

ther, except for g ood cause shown, proce eding s reg arding interim fee

awa rds shall be nonevidentiar y , summary , and expeditious

. Edgar
, 301 I ll. App. 3d at 836;

see also David H. Hopkins, 85 I ll. B.J. at 411 (“inter im fee hear ings may be non-evide ntiary
, with a cour t h ea ri n g argument of counsel but otherwise ruling on the pleading s and aff idavits”). Although an evidentiar y hear ing is not require d under section 501(c- 1), an interim fee awa

rd must b e s u p p o rt ed by “non-te stimoni al evidenc e, as submitt ed by the parties in the form of aff idavits, financ ial disclosure statements, [or] reque sts for judicial notice.” In re Marriage of Bey er , 324 I ll. App. 3d 305, 319 (2001); see also Edgar
, 301 I ll.

-11-App. 3d at 836-37 (re asonable attorney fee s may proper ly be deter mined by a nonevidentiar

y proce eding if the t rial court can determine from the evidence presented in t h e p etition and
response what amount would be a rea so n able awa rd and the opposing party has an opportunity

to be hea rd). ¶ 41 Section 501(c- 1)(1) provides that, in assessinginterim fee s, the court sha ll consider:

“(A ) the income and proper ty of eac h party , including alleg ed marital proper ty within the sole control of

one par ty and alleg ed non-ma

rital proper

ty within acce ss to a party ; (B ) the ne eds of e ach pa

rty ; (C) the re alistic ear

ning c apac ity

of ea ch par

ty ; (D) any impairment to prese nt ear ning capa city of either party , including ag e and phy sical and e motional health; (E) the standard of

living esta

blished during the marr iag e; (F ) the de g ree of complexity of the iss ues, i ncluding custody
, valuation or divi sion (or both) of closely held businesses, and tax planni ng , as well as rea sonable needs for expert investigations or expert witnesses, or both; (G) e ach pa

rty ’s ac cess to re levant information; (H) the amount of the pay

ment or pay

ments made or rea sonably expected to be made to the attorney

for the othe r par

ty ; and (I ) any other fac tor that the court expressly finds to be just and equitable.” 750 I L CS 5/501(c-1) (1)( A) throug h (c- 1)(1) (I ) (West 2008). ¶ 42 Upon findin g t h at t h e p ar t y seeking fee s lacks “ac cess to assets or income” to pay

rea sonable amounts and that the party from whom fee s are soug ht does have the financ ial ability to pay rea sonable amounts, the court shall assess an interim fee awa rd in “an amount

nece ssary to enable the petitioning party to participate adequately in the litigation.” 750 I L CS 5/501(c-1)(3 ) (West 2008). “In deter mining an awa

rd, the court shall consider whether adequate participation in the litigation require s expenditure of more fee s and costs for a party that is not in control of assets or rele vant information.” Id

. I f the court finds that both parties lack financial abilit y or acce ss to assets or income, the co u rt s h all allocate available funds for eac h party ’s counsel in a manner that achie ves substantial parity betwee n the parties. Id

. Be fore final judgme nt, a temporar y order may be revoke d or modified “o n a s h o wi ng by aff idavit and upon hear ing” and it terminates when the final judgme nt is enter ed. 750 I L CS 5/501(d)(2) (West 2008). ¶ 43 I nterim fee awa rds shall be without prejudice to (1) any final allocation; or (2) any claim of right of party or counsel at t he ti m e o f t he award (such claims or rights may be brought under the Act at a contribution hear ing or a hear ing on couns el ’s fi n al fee s). 750 I L CS 5/501(c-1) (2) (West 2008). An interim fee awa rd is deeme d an advanc e from the parties’ marital estate, and any portion of an interim awa rd co n s t i t u t i n g an overpa y ment shall be remitted bac k to the appropr iate per son or par ty

. Id

.

-12-¶ 44 B. N ovember 6, 2009, I nterim Fe e Or der ¶ 45 We note first that a court order awa rding interim attorney fee s under section 501(c- 1) of the Act is not an appea lable interlocutory order

. In re Marriage of Tetzlaff
, 304 I ll. App. 3d 1030, 1039 (1999). However
, when a party appea ls from a contempt sanction i mposed for violating a

n interim fee order
, the contempt finding is final and appe alable a nd prese nts to the revie wing court the propriety of the underly ing order

. See, e.g. , Reda v. Advoc ate Health Care
, 199 I ll. 2d 47, 54 (2002). We revie w for an abuse of discre t i o n the trial court’s decision to a

war d attorney fee s. In re Marriage of B eye r , 324 I ll. App. 3d 305, 320 (2001). Her e, we agr ee with responde nt that the trial court abused its discretion in issuing the November

6, 2009, interim fee awa

rd. ¶ 46 I n as s es s i n g t he propriety of the court’s order
, we find Bey er instructive. There , th e hus b an d appealed the propriety of a section 501(c- 1) awa rd, arguing that the wife did not sufficie ntly establish either hi s ab i l i ty to pay the fee s or that the fee s reque sted wer e

rea sonabl e. In assessing the husband’s arguments, the appellate court noted the specific alleg ations in the wife’ s petition, her aff idavit, a nd her attorney ’s af

fidavit, which tog ether spoke to the wife’ s income and expenses, the husband’s acc ess to various source s of income and lines of cre dit, and the husband’s attempts to thwart discovery
, which limit ed her acc ess to additional information. Id

. The court there fore reje cted the husband’s ar g u me nt th a t, wh e r e he was in control of the rele vant information, the wife should also hav e att ache d to her petition the husband’s curr ent pay stubs, bank statements, and financ ial aff idavits to support h er al l egations. Id

. Fur

ther, the court found signific ant that the husband did not fil e a counter aff

idavit or financ ial disclosure statement denying his ability to pay

. Id

. Finally
, the
court noted that, wher e the trial court was familiar wi t h t h e case and was in a position to

assess cooper ation with discovery and eac h party ’s acc ess to rele vant information, the court did not abuse its discretion in g ranting the interim fee awa rd, “in view of the uncontra dicted
repr esentations conce rning [t he husband’s] ab i l ity to pay .” Id

. As to the reasonablene ss of the fe es soug ht, the court noted that the statute specific ally did not r equire itemiz ed billing statements, that the wife’ s attorney had submitt ed an aff i d av it repr esenting the amount of fe es incurre d and likely to be incurre d, that the husband had not previously contested t h e

rea sonablene ss of the fe es, and that the trial judge
, who had presided over the c ase f or one y ea r, had knowledg e of the proce dural history of the case and was able to rely on h i s knowledg e whe n decidingthe re asonable ness of the f ees. Id . at 321. ¶ 47 We also find instructive In re Marriage of R osenbaum-G olden
, 381 I ll. App. 3d 65, 82 (2008), where the court reje cted the respondent’ s argument that the i nterim fee awa rd was

err or beca use the petition wa s unsupported by aff idavits and there was no showing that the petitioner lacke d the ability to pay fee s. I nstead, the court found that th e d o cu m en tary evidenc e attache d to the verifie d petition, including both parties’ tax returns and the responde nt’s financ ial disclosure statement, support ed t h e trial court’s conclusion that the petitioner lacke d sufficie nt acc ess to assets or income to pay fee s. Id

. at 81. Fur ther, the court noted that the responde nt’s asser tions that the petitioner could aff ord to pay wer e either not included i n his response or wer e unsubstantiated alleg ations “instead of testimony or documentar

y evidenc e.” Id . at 80. ¶ 48 He re , i n co n t rast, the second petition for interim fee s (filed J uly 2009) contain ed n o

-13-affidavit
, whether from petitioner or her attorney s. As noted abov e, s ection 501(c- 1)

specific ally require s that at least one aff idavit be attache d beca

use, while the proce eding may be nonevidentiar

y , proof m ay i n stead be provided via the require d aff idavits. 750 I L CS 5/501(c-1) (West 2008). I n addition, the local rules require d that the petition co n t ai n a

curr ent financ ial aff

i davit and that other updated financ ial documents be produce d at the hear ing. 19th J udicial Cir. Ct. R. 11.02 (ef f. Dec

. 1, 2006). Not only did the second petition violate the Act and local rules wher e it did not include aff idavits, but it also failed to attach
any other financ ial documents, such as those that the courts in Bey er and Rosenbaum- Golden found supported the judgme nts they revie wed. ¶ 49 We acknow ledg e that the adde n d u m t o t h e petition purported to incorporate the first petition, filed five months ear lier (althoug h it did not attach that first petition or the Fe bruar y 2009 financ ial aff

idavit) and that the first petition for interi m fee s included petitioner’s financ ial aff

idavit and aff

idavits from petitioner’s attorney s. Ho wever, even if the court considere d both petitions and their exhibi ts toge ther, the ev i d en ce to support petitioner’s inability to pay and responde nt’s ability to pay was l ac k i ng

. The petition alleg ed only
g ener ally that petitioner could not pay and that responde nt had a substantial income and was “we ll able” to pay

. As to petitioner’s inability to pay , the financ ial aff idavit was clea

rly outdated and inacc urate

. For example, the financ ial aff idavit was fi l ed befor e petitioner beg an rec eiving maintenanc e and, there fore
, did not acc urate ly ref lect all source s of income. I n addition, and unlike the responde nt in Rosenbaum- Golden
, responde nt here provided not just alleg ations, but evidenc e, in the form of eB ay printouts, ref lecting that petitioner’s financ ial aff

idavit was li kely an inaccurate pi cture o f her curre nt financ ial status. Notably
, at the hear ing, petitioner’s arguments focuse d on her need to eng ag e in I n t er n et sales, as opposed to the acc urac y of the information in the documents. Whil e the eB ay sales might not have made petitioner financ ially solvent to the point of being able to pay her own fee s, they

cer tainly wer e rele v an t t o the acc urac y of the information provided to the court so that it could make a well-infor

med decision of what amount , if any , was a rea sonable amount to require responde nt to pay

. ¶ 50 As to the petition’s alleg ation that responde nt was “we ll-able” to pay , t h e co u rt hear d
argument from counsel rega rd ing respondent’ s 2008 adjusted gross income and money he spent on the children’s schooling
, childcar e, and a used vehicle for the eldest child. I t also hear d the appar ent misrepre sentation that responde nt withdrew $50,000 from a home equity line of cre dit. Howeve r, both in the response to the petition and at the hear ing, questions wer e raised reg arding the extent to which responde nt could prese ntly aff ord to pay , in light of his acting as sole provider for the three minor children, his support obligations to petitioner, his past pay ments to both counsel and the child repr esentatives, and the fac t that he had alre ady ref inance d the marital res i d en ce t o pay a fee awa rd. Unlike in Bey er , responde nt here expli citly and repe atedly d en i ed his ability to pay the amount the court order ed, and he
repe atedly reque sted (both befor e and afte r the awa rd was enter ed) an evidentiar y hear ing to

so establish. Despite petitioner’s argument to the contra ry , we do not find that responde nt’s failure to file a separ ate, written motion for an evidentiar y hear ing in any way diminis hed the
reque st. ¶ 51 The party reque sting interim fee s has a burden to prove that he or she i s entitled to the

-14-relief reque sted. Bey er , 324 I ll. App. 3d at 320 (par ty reque sting fee s has the burden to show the ot her party ’s abi l i t y to pay ). On this rec ord, where the trial court had rea son to believe that the minimal support provided for the fee reque st might be inacc urate , petitioner failed
to meet that burden. At a min i m um, we think that g ood cause was shown to hold an evidentiar y hear ing. 750 I L CS 5/501(c-1) (1) (West 2008). We rema in mindful that the trial
court possessed knowledg e of this c ase and the litigious nature of the proc eeding s and that

a hear ing on an interim fee petition is to be expeditious and summary “except for g ood cause shown.” The court’s knowledg e of the case cer tainly might have aided its assessment of the theore tical rea sonablene ss of the fee s that petitioner reque sted or its deter mination that responde nt was li k ely in a superior financ ial position to petitioner. Howeve r, the court abused its discretion in deter mining that petitioner established responde nt’s ab i lity to pay , beca use it rec eived virtually no evidenc e reg arding responde nt’s prese nt ab i l ity to pay the
amount that the cour

t awar ded. 4 ¶ 52 We further note that the court, in announcing its decision, expli citly stated that it did not base its awa

rd on any knowledg e of responde nt’s ability to pay

. I n fac t, the court mentioned

sever al times that it did not know the nature or extent of the marital estate or available assets. I t re ca l l ed that responde nt once mentioned that he had at his disposal a “$40,000 asset o f

some sort,” but it did not “know any of those.” The court’ s as s u m p t ions that responde nt prese n t ly held t hose funds, that responde nt could access those funds as opposed t o mere ly transfe r them to petitioner, and that the interim awa rd, which was to be an advanc e ag ainst the estate, was appropr iate when the court did not, in fac t, know the value of the estate or the
assets (such that, theore tically
, the awa rd could have exceede d the value of the estate and/or assets) c onstitut e an a

buse of discr etion. ¶ 53 I n sum, we conclude that a court’s knowledg e of the case can stretch only so far

. The Act permits nonevidentiar

y , summary

hear ings on inter im fee pe titions , but it does not obviate the need for proof. The Act require s the petitioning party , throug h the petition, aff idavits, and
any other rele vant documents, to establish both his or her inability to pay and the responding party ’s ability to pay

. Whil e the court here m i g ht have been able to deter mine from its k n o wl ed ge of the case that an interim fee awa rd might be appropr iate or that the fee s t h at

couns el ch arge d (and, in turn, that petitioner reque sted) wer e theore tically rea sonable, the

rec ord does not ref

lect that petitioner in any way established responde nt’s ability to pay the
amount that the court, in fac t, awa rded. Thus, we reve rse the November 6, 2009, interim fee

awa rd.

We not e tha t, genera ll y spe aking, whil e the pet it ion ing par ty nee d not be des ti tut e to re cei ve 4

an at tor ney fe e awar d, the re spo ndi ng p ar ty nee d no t b e de st it ute to avo id paying th e f

ees ; n ei the r par ty’s est at e sho uld be exh aus te d, nor the ir eco nomic st abi l i t y u n d e r mi ned

. See
, e.g. , In re Ma rri age of

Ma nte i
, 222 I ll

. App. 3d 933, 941 (19 91) ; see al so In re Ma rri age of Kri vi
, 283 I ll

. App. 3d 772, 783 (19 96) (r ever si ng a fi nal j udgm ent ord er ing the re spo nde nt to pay the pet it ion er ’s
at tor ney fe es wher e the pet it ion er ’s fi nan ci al ci rc um st anc es re fl ect ed an abi li ty to pay her own at tor ney fe es, even tho ugh l i t t l e m one y re m ai ned af te r paying her li ving exp ens es, and wher e, al tho ugh the re spo nde nt ear ned m ore m one y t han the pet it ion er , he al so had great er exp ens es a nd

cou ld bar el y cover hi s monthl y expen ses , in cl udi ng chil d su ppor t)

.
-15-¶ 54 C. Retirement Acc ounts for Interim Fe es

¶ 55 I f, on reman d
, p et i t i o n er fi l es a new petition for interim attorney fee s, the question whether responde nt’s I RA, part of which he conce des contains marital funds, may be order ed liquidated to satisfy an interim fee awa rd will likely rec ur. Thus, fo r the sake of judicial 5 eff iciency
, we consider the issue and answer the question in the negative. Specifica lly
, we conclude that, while I RAs may b e o rd ere d liquidated to enfor ce support judgme nts, they

rema in exempt from judgments for interim attorney

fee s. ¶ 56 Respondent’s arg ument that the t rial court coul d n o t order him to pay interim attorney fee s by liquidating a retire ment acc ount is based on section 12-1006 of the Code of Civil P ro ce d ure (Code). 735 I L CS 5/12-1006 (West 2008). Section 12-1006 provides that retire ment plans, including I RAs, are exempt from judgme nt, attachme nt, execution, and seizure for the s atisfac tion of debts. Case law interpre ting the section 12-10 0 6 exemption, as i t applies t o the Act, holds that the ex emption does not apply to support arr ear ag es. For example, in In re Marriage of Murphy
, 338 I ll. App. 3d 1095, 1098 (2003), the court reje cted the responde nt’s argument that cer tificates of deposit purcha sed with his pension funds could not, p er section 12-1006, be order ed to be transfe rre d to the petitioner to satisfy a child support arr ear ag e. The court noted that section 15(d) of the I ncome Wit hholding for Support Act (Support Act) (750 I L CS 28/15(d) (West 2000) (orig inally codified within the Dissolution Act and which applies to withholding income to secur e support order ed under the Dissolution Act (now s ee 750 I L CS 5/706.1 (West 2008))) ) specific ally provides that “income” includes periodic pay ments from retire ment source s and that any sta te laws exempting such income are inapplicable. Murphy
, 338 I ll. App. 3d at 1098. Emphasizing that it is this state’s publi c poli cy to ensure that support judgments (de fined in the S upport Act

as order s for temporar

y or final child support or maintenanc e) are enfor ced by all available

m ea n s , t h e court held that section 12-1006 of the Code did not apply and that t h e responde nt’s retire ment benef its wer e subj ect to judicial proce ss for the satisfac t ion of t he child support arr ear ag e. Id

.

We fi nd of no import her e the dis put e bet ween whet her re spo nde nt “of fe re d” the I RA fun ds 5

versus whet her the cou rt “or de r e d ” him t o dis bur se the m

. T he onl y ba si s the cou rt off er ed for the
amount of the int er im fe e awar d it “or der ed” w a s the $40, 000 ass et , i.e

. , the I RA. T he cou rt “su gg est ed” th at re spo nde nt pay the awar d f rom tha t o r any oth er sou rc e. As re spo nde nt al le gedly had no oth er sou rc e fr om whic h to pay, he m ade vario us ef for ts to comply wit h the cou rt ’s ord er in

a m ann er tha t wo uld avoid pos si ble dis si pat ion of the m ar it al est at e. We do not v ie w the se act ion s

as an off er to pay fr om the I RA so m uch as an at te m

pt to sat is fy the cou rt ord er in the le ast wast ef ul

m ann er . I n fact , the rec ord m akes cle ar tha t res pond ent never off er ed t o li qui dat e and cas h out the I RA; he off

e r e d t o t r a nsf

er fun ds fr om the I RA. Fur the r, the re was no eviden ce at the con te m pt h e a r i n g (t he onl y eviden ti ar y hea ri ng tou chi ng on re spo nde nt’ s abi li ty to pay) to cou nte r

re spo nde nt’ s te st imony tha t the I RA was the onl y sou rc e fr om whic h he cou ld con cei vably pay the int er im fe e awar d. He did not pay as ord er e d f r o m t h a t s our ce, bec aus e he ass er te d tha t the cou rt

cou ld not impose the obl igati on to do so. T hus
, the que st ion is whet her re spo nde nt’ s unde rs ta ndi ng is cor re ct

.
-16-¶ 57 Simi larly
, in In re Marriage of Thomas
, 339 I ll. App. 3d 214 (2003), the case upon which

petitioner heavily relied to argue that the court could order responde nt to pay the fee awa rd from the I RA, the court considere d a support order . Specifica lly , in Thomas
, the trial court

awa rded the petitioner past-due support and attorney fee s. This court considere d the question whether the t rial court proper ly allowed th e p et i t i oner to rec over the support arr ear ag e via qualified domestic relations order s (QDROs). We conclude d that a court may enter QDROs 6
to transfe r the value of pension and retire ment acc ounts to satisfy a support arr ear ag e but that the assig nment must be limit ed to the value of the acc ounts at the time o f t h e m ar ri ag e dissoluti on. Id . at 227. Specific ally , we state d, “we hold that ERI SA permits a trial cour t’s entry of a QDRO to assig n pension and other retire ment benef its to a former spouse to satisfy

a judgme nt for past-due maintenance a n d ch i ld support .” (Emphasis added.) Id. I n so holding, we reje cted the responde nt’s argument that section 12-1006 of the Code prohibited the assig nment, noting that, insofar as a benef icial interest was acquir ed during the marria g e, retire ment benef

its are marital proper

ty and, therefore
, “whe n a former spouse seeks the assig nment of the plan participa nt’s retirem en t acc ounts afte r obtaining a judgme nt for a maintenance and child support arrearage , the spouse is not a ty pical cre ditor as that term is used i n section 12-1006.” (Emphasis adde d.) Id . at 227-28. We then procee ded to note t he societal import of timely

pay ments of support obligations. Id . at 228. ¶ 58 I n contra st, there is support for responde nt’s argument that, while retire ment acc ounts a re not exempt under section 12-1006 from judgme nt for support order s, they rema in exempt for order s perta ining to attorney fee s. For example, in Jakubik v. Jakubik
, 208 I ll. App. 3d 119 (1991), this court reje cted the argument that attorney fee s share the section 12-1006 exemption enjoy ed by support arr ear ag es. Specific ally , in Jakubik, the trial cour t entere d a judgme nt g arnishing the defe ndant’s I RA to enfor ce its awa rd of fee s to the plaintiff’s attorney s. The trial court reje cted the defe ndant’s argument that section 12-1006 exempted I RAs from judgme nt, holding instead that the strong public policy favor ing collec t ion of child support and maintenanc e obligations cre ated an exception “to the proper ty exemption
statute [ i.e.
, section 12-1006] for attorney fee s incurre d in collection of support obligations.” Id . at 122. This court re verse d. Noting that section 12-1006’s exemption does not apply to chil d support and maintenanc e obligations, beca use there are expli cit statutory exceptions for those obligations, we held that “attorne y fee s enjoy no exception to the exemption

s t at u t es

. ” Jakubik

, 208 I ll. App. 3d at 123. This court reje cted the plaintiff’s attorney ’s
argument that attorney fees g ener ated during a proce eding conce rning support obliga tions

assume the same quality as support and, there fore
, enjoy t h e same exceptions to proper ty

ex emption as child support and maintenanc e. We noted that while express, unequivoca l exceptions for child support and maintenanc e exis t in the Dissolution Act an d t h e NonSupport of Spouse and Children Act (Non-Support Act) (I l l. Rev. Stat. 1983, ch. 40, ¶ 11021) (the Suppor t Act repla ced the Non-Support Act (750 I L CS 28/5 (West 2008)))
,

T he Em plo yee Ret ir ement I nco m e Sec uri ty Act of 1974 (ERI SA) (29 U.S.C. § 1001 et seq

. 6 (20 00) ) pro vides tha t a QDRO is one m ech ani sm for divid i n g p e nsi on and re ti re m ent ben ef it s bet ween the employee spo use and the none m pl o ye e s pous e pur sua nt to a dis sol uti on of m ar ri age. Thomas , 339 I ll . App. 3d a t 2 25.

-17-attorney fee s do not constitute an exception to the section 12-1006 exemptions

. Jakubik
, 208

I ll. App. 3d at 124. We conclude d that “only support obliga tions enjoy the exception from
proper ty exemption.” Id . at 125. ¶ 59 Fur

ther, we noted that the public policy behind section 12-1006 is identical to that behind the Dissolution and Non-Support Acts, namely
, that “[t] he proper ty exemptions allow [t he] d eb tor to reta in sufficie nt assets so that he or she m ay continue to meet family obliga tions of support, there by avoiding the public expense of assuming such obligations.” Id

. at 125-26. Finally
, we addre ssed the plaintiff’s attorney ’s argument that, absent the ability to collect

awa rded fee s, a spouse will be unable to obtain repr esentation to protec t his or her rig hts. We noted that the plaintiff’s attorney may enfor ce his judgme nt ag ainst the defe n d an t ’s nonexempt assets, as may any other c reditor, noting : “I llinois ’ public policy favor s the pay ment of child support and maintenanc e obliga tions from exempt proper

ty to promote the support of the family
, not the support of attorney s. I ndeed, pay

ment of attorney fee s from source s held exempt for family obliga tions could deplete such resour ces so as to leave no assets available to satisfy the support obligation itself. The attorney

fee s as an extension of the exception would thus defeat the suppor t obligation that is the very essenc e of the exception. The long and well-e stablished public policy enuncia

ted in the Dissolution Ac t and the Non-Support Act, as well as the
proper ty exemption statutes, is to maintain assets for family support. That policy would be subverted, not promoted, if exc ep t i on to the persona l proper ty exemptions was extended to attorney

fee s.” Id . at 126. ¶ 60 Simi larly
, in In re Marriage of W alsh
, 109 I ll. App. 3d 17 1 (1982), the appellate court found that the trial court abused its discretion wher e it order ed the sale of stock jointly owned by the parties, the proce eds of which wer e to be delivere d to the petitioner’s attorney

. Id

. at 176. The court found no statutory autho ri ty empower ing the trial court to order that stock,

a marital asset, be sold in order to direc tly satisfy the pay ment of fee s. Id

. I nstead, the court found that section 508(a) of the Dissolution Act empower s a trial court to order that fee s and
costs be direc tly paid to the attorney , who may then enfor ce the judgme nt in his or her own name, not to order an asset sold for the direc t pay ment of fee s. Id

. at 176-77. Thus, the stock should have been apportioned betwee n the parties. Id

. at 177; see also In r e Ma r r i age of Campbell
, 261 I ll. App. 3d 483, 490 (1993) (wh er e t h e co u rt, rely ing in part on W

alsh
, ag ree d with the petiti o n er t h at a trial court “may not order a marital asset sold in order to satisfy attorney fee obligations”); Auto Owners Insurance v. Berkshire
, 225 I ll. App. 3d 695, 700 (1992) (asse ssing the scope of section 12-1006 and noting that fede ral law, which also protec ts retire ment benef its from attachment o r gar nishment, permits funds from one plan
to be rolled over into another plan but, “[a]s debtors can have no expectation of rec eiving the funds prior to retire ment, cre ditors cannot expect to satisfy their claims from those assets

even when they

are pay able a s a lump sum”). ¶ 61 We rec o gn i z e t h at t he foreg oing case law holdi ng that retire ment acc ounts may not be order ed liquidated to satisfy attorney fee awa

rds were all decide d prior to t he “L evelingof the Play ing Field in Divorce L itigation Amendments” to the Ac t , ef fe cti ve J une 1, 1997, throug h Public Act 89-712 (1997 amendments). Th e 1 9 9 7 amendments made interim fee

awa rds available to attorney s for the “ ‘funda mental rea son’ ” of try

ing to “ ‘pre vent a party

-18-from using his or her relative wea lth as a litiga tion tool.’ [C itation.] ” In re Minor Child

Stella
, 353 I ll. App. 3d 415, 420 (2004). In addition to adding the provisions delineating the
proce sses for “leveling the pl aying f ield” throug h interim fee and contribution awa rds, t he amendments added to section 102(5) of the Act, which provides that the Act shall be liberally construed to promote its underlying purposes, including the purpo s e of “mak[ing] rea sonable provision for spouses and minor children during and afte r litigation, including provision for the timely awards of interim fees to achiev e substantial parity in the parties’ acce ss to funds for litigat ion costs .” (Emphasis added.) 750 I L CS 5/102(5) (2008). One court, in concluding that a prema

rital ag ree ment waiving attorney fee s did not constitute a waive r of interim attorney fee s, based its decision, in part, on the purpose define d in section 102 (5 ) and the fac ts that: (1) the interim fee provisions seek to addre ss, wher e it is shown that one party can pay but the other cannot, the problems that the economica lly disadvantag ed spouse fac es in trying t o p ar t i cipate adequately in the litigation when the opposing spouse uses his or her
gre at er co n t ro l of assets or income as a litigation tool; and (2) interim fee s are mere ly an advanc e ag ainst the estate. Rosenbaum- Golden , 381 I ll. App. 3d at 74, 77-78. ¶ 62 We conc l u d e t h at t h e 1 9 9 7 am en dments, while seeking to preve nt the financ ially disadvantag ed spouse from being “outliti g ated” by the financially superior spouse, mere ly overha uled the methods by which and timing of when attorney s may obtain fee s; they did not funda m en t al l y alter any of the bases for the ruling s in Jakubik
, W alsh
, and Campbell that section 12-1006 of the Code exempts re t i rement acc ounts from attorney fee awa rds. For example, petitioner has not shown, nor has our resear ch found, t h at t he 1997 amendments in any way added as an ex plicit exception to s ec t i o n 12-1006 i nterim or ot her attorney fee

awa rds ( Jakubik ). The Act, as be fore the 1997 amendme nts, provides that an a ttorney may enfor ce a n awa rd in his or her own name ( Jakubik
, W

alsh ). And the 1997 amendments did
not purport to alter the policy as expressed in Jakubik that the purpose behind sec t i o n 1 2- 1006’s exemption is, in fac t, to ensure that resour ces rema in availab l e t o satisfy support obligations. Thus, the 1997 amendmen ts d id not alter the courts’ conclusions in the fore g oing

case s that there is no authority for a trial court to order the liquidation and distribution of an I RA to satisfy

an attorne y

fee awa rd. ¶ 63 We note further that the interim fee sy stem’s purpose of seeking to level the play ing field when one party uses hi s or her g reater control of assets as a litigation t ool is not serve d by liquidating a retire ment asset that even responde nt could not use in the litigation. Whil e the I RA is an asset that will be distributed in the fi n al d i s p osition of the marital estate, responde nt was not during the litigation draw ing any funds from the I RA. In other words, wher e the I RA benef

itted neither party in th e l i t i gat i on, forc ing its liquidation and distribution did not serve to counter responde nt’s use of an asset b eca use, by virtue of the

acc ount’s very n at u re , re spondent could have no expectation of acc essing it. I n contra st, howeve r, and in acc ord with section 501(c- 1)’s ref ere nce to deter

mining a petitioning party ’s need by considering eac h party ’s acc ess to assets, respondent did, in fac t, tap into the

acc essible, nonexempt assets when he ref inance d the marital home to pa y , in part, the first interim fee awa

rd. I f, afte r that asset was tapped, there rema ined no other nonexempt assets fr o m which to draw funds, the Act permitted the trial court to find that both parties lack financ ial ability and to “alloca te[ ] available funds for eac h party ’s counsel *** in a manner

-19-that achie ves substantial pa rity betwee n the parties.” 750 I L CS 5/501(c- 1)(3) (West 2008). ¶ 64 I n sum, we conclude that the trial court may not order that an interim fee awa rd be paid by liquidating and distributing the I RA. I f petitioner files a new petition for interim fee s, the
court shall assess responde nt’s ability to pay without considering the I RA, the dispositi on of which will be deter

mined in the final allocation of the marital estate. We note, howeve r, that while the I RA is not curr ently “income” as define d u n d er the Support Act beca use responde nt rec eives no periodic pay ment there from (750 I L CS 28/15(d) (West 2008)), that would chang e if responde nt voluntarily and prematurely cashe s out the I RA. I n that case , the court, in de termining responde nt’s ability to pay , may consider the amount that responde nt

rec eived and, in its final allocation of the marital estate, the court may consider the amount dissipated from the estate in unnece ssary taxes and penalties for the premature withdrawa l.

¶ 65 D. Contempt Order Vac ated ¶ 66 We va cate the contempt order beca use we have conclude d that the orde r upon which it is based, the November 6, 2009, interim fe e aw ar d
, is invalid. See, e.g. , In re Marriage of W atling
, 183 I ll. App. 3d 18, 22 (1989) (conte mpt orde r v ac ated when trial court err ed in
enter ing the violated child support order ); see also Reda
, 199 I ll. 2d at 63 (re versing contempt finding based on violation of invalid discovery order ); In re Marriage of Bonneau
, 294 I l l

. App. 3d 720, 723 (1998) (“w here the trial court’s discovery order is invalid, a contempt judg ment for f

ailure to c omply

with the discovery

order must be reve rsed” ). ¶ 67 Moreove r, “[i] t is well settled that exposi ng onese l f ‘t o a fi nding of contempt is an
appropr iate method of t esti n g t h e v ali dity of a court order.’ ” Rosenbaum- Golden
, 381 I ll. App. 3d at 82 (quoting Bey er , 324 I ll. App. 3d at 321). I t is appropr iate to vacate a contempt finding on appea l wher e the ref usal to comply with the court’s order constitutes a g ood-fa ith eff ort to secur e an interpre tation of an issue without direc t prec edent. Id

. Her e, responde nt’s refusal to liquidate the I RA, based on his belief that the order was leg ally inappropriat e, formed the basis of the contempt order

. The fore g oing analy sis reg arding whether I RAs are exempt from judgme nt to satisf y i n t er i m fee awa

rds, particula

rly in light of the 1997 amendments to the Act, ref lects t hat t his issue was without direc t prec edent. W e conclude that responde nt’s ref

usal to liquidate t h e I RA stemmed from a g ood-fa ith eff ort to secur e interpre tation of this issue. Acc ording ly
, even if the interim fee awa rd wer e not reve rsed, we would vacate the conte mpt finding on this basis. ¶ 68 We note that our resolution of these issues rende rs it u n n ec es s ar y fo r us to rea ch the

rema ining issues ra ised on appe al.

¶ 69 I I I . CONCL USI ON ¶ 70 For the fore g oing rea sons, the judgme nt of the circ uit court of L ake County is rever sed, and the c ontempt order is va cate d.

¶ 71 Reverse d in part and va cate d in part; ca use re manded.

-20-