## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

In re Marriage of Earlywin e , 2012 IL App (2d) 110730

Appellate Court Caption In re MARRI AGE OF J OHN J

. EARL YWI NE, Petitioner, and J ESSI CA A

. E A RL Y WI N E
, Re s p o n d e nt ( T h o ma s H

. Ja me s, Cont e mn o r

- A

p p e ll a nt; Richard Ha ime, Contemnee-A ppellee)

.

District & N o. Second District Docke t No. 2-11-0730

Filed J uly 13, 2012

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 order requiring that a p o rt i o n o f the money held in an advanc e p ayment reta iner by petitioner’s divorce counsel be turned over t o responde nt’s counsel as i n t erim attorney fee s was upheld pursuant to section 501(c-1)( 3) of the M arr iag e and Dissolution of Marriag e Act as

a means of further ing the policy of establishing parity betwee n the parties to dissolut ion actions by

“leve ling the pla

ying f ield.”

Dec ision Under Review Appea l f r om the Circuit Court of Stephenson County
, Nos. 10-D-119, 10- OP-202; the Hon. Ther esa L . Ursin, J udg e, pre siding.

J udg ment Affir med in part a

nd vacated in part.Counsel on

Appea l Thomas H. James, of J ames & Associates, of For reston, for

appellant.

No brief filed for appellee

.

Panel J USTI CE BO WMAN delivere d the judgme nt of the court, with opinion.
J ustices B urke a

nd Birke tt concurr ed in the judgment and opinion.

OP INION

¶ 1 Petitioner, J ohn J

. Early wine, petitioned to dissolve his marria g e to responde nt, Jessica A. Early wine. During the dissoluti on proce eding s, responde nt’s attorney , Richard Haime, petitioned for interim attorney fee s. The trial court g rante d that petition, order ing petitioner’s attorney , Thomas H. J ames, to turn over to Haime $4,000 that J am es h el d in an advanc e pay ment ret ai n er t h at petitioner had paid him. J ames moved to rec onsider, the trial court den i ed the motion, and J ames ref used to turn over the funds, asking
, instead, that the trial
court hold him in friendly contempt. The court did so and imposed a $50 sanction. At issue in this appea l is wheth er J am es m ay be order ed to turn over to Haime funds held in an advanc e pay

ment retai n er. We deter

mine that he may

. Acc ording ly
, we aff irm the trial court’s turnove r orde r. ¶ 2 The fa cts rele vant to r esolving this a ppeal are as follows. One child, a son, was born to petitioner and responde nt. That son was three y ear s old when petitioner petitioned to dissolve the marria g e. Petitioner soug ht to dissolve the marria g e when responde nt alleg edly eng ag ed in repe ated acts of mental and phy sical crue lty toward petitioner. Petitioner also claimed that responde nt w as abusive toward the parties’ son. Respondent contende d that petitioner wa s likewise guilty of such conduct, citing the fact t h at , during the m arr iag e, “[ petitioner] was repor ted to [t he Depa

rtment of Children and Fa mily Service s (DCFS)] following one of [hi s]

arr ests for Domestic Violence and the outcome of [t he DCFS] investig ation was founded.” ¶ 3 Given responde nt’s alleg ed abuse, petitioner petitioned for an order of protec tion a g ainst responde nt. T hat petition wa s g rante d, and on August 24, 2010, in the midst of subsequent
proce eding s i n t hat matter, petitioner hired J ames to repr esent him in his “matrimonial or family related matters there to or otherwise under I llinois Family L aw.” Petitioner’s petition
to dissolve the marria g e was filed that day

. The attorney-client ag ree ment executed betwee n petitioner and J ames provides, among other things, that “[petitioner] ag ree d to an advanc ed [ sic ] pay ment re t ai n er

. ” The ag ree ment then, in compliance with Rule 1.15 of the I llinois Rules of Professional Conduct (I ll. Rs. Prof. Conduct R. 1.15 (ef f. J an. 1, 2010)), delineate s the components o f t h e advanc e pay ment reta iner. An aff

idavit from petitioner’s mother explains that the funds in the advanc e pay ment reta iner came from her, her fianc é, petitioner’s fathe r, and petitioner’s fathe r’s wife. Petitioner’s financ ial aff idavit ref lects that

-2-his parents a nd steppare nts paid J ames $8,750. This money is list ed as a

debt. ¶ 4 On August 27, 2010, three da y s afte r petitioner and J ames executed the agree ment, the trial court enter ed an order in the order -of- protec tion proce eding s that provided, among other things, that “[b] oth parties are prohibited from selling or transfe ring [ sic ] marital proper ty .” A similar order

was e ntere d in the marria g e-dissolution case on N ovember 10, 2010. ¶ 5 During the dissoluti on-of- marria g e proce eding s, it was reve aled that, although petitioner

was working as a union elec trician on a part-time and sporadic basis, he had been unemploy ed for a long time and had acc umulated over $66,000 in debt. As a result of his financ ial situation, petitioner moved in with his mother. Respondent, who was unemploy ed during the parties’ marria g e, was also unemploy ed during the dissoluti on proce eding s. She, like petitioner, had move d in with her par ents. Both pa rties soug ht custody

of their son. ¶ 6 Given responde nt’s limit ed funds, Haime filed a petition fo r i n t er i m at t o rney fee s. Pursuant to section 5 0 1 (c -1) of the I llinois Marr iag e and Dissolution of Marr iag e Act (Mar riag e Act) (750 I L CS 5/501(c-1) (West 2010)), Haime soug ht $5,000 in interim attorney fee s, claiming that, g iven that the dissoluti on of marria g e conce rned, among o t h er things, custody of the parties’ son, his fee reque st was rea s o n ab l e. Ha i m e asked the court to, if

nece ssary , “orde r disg org ement of a ny amounts paid by

[petit ioner] to [ J ames.]” ¶ 7 In response , J ames claimed that petitioner should not have to pay responde nt any interim attorney fee s, beca

use he, like responde nt, had no money to pay his own attorney

. Nowher e in his response d i d J am es mention that petitioner had paid hi m using an advanc e pay ment reta iner. ¶ 8 The trial court g rante d Haime’ s petition for interim attorney fee s. In doing so, the court found t hat Haime’s reque st for fees was rea sonable a nd that responde nt was unable to pay her attorney fee s. The court then found that, despite petitioner’s financ ial situation, petitioner had the f inancial a bility to pay responde nt’s attorney

fee s. Specifica lly , the cour t stated: “[ A] s ubstantial amount has been paid to [J ames] from other source s. The court does believe it is rea sonable to order that [J ames] disgor g e a portion of those fee s in order to achie ve substantial parity

. Whil e [petit ioner] does not have the curr ent ability to put forth funds to support [Haime’s] fee s, the court believes that as reque sted in the motion filed by [ Ha i m e] and as allowed by statute, that an equitable solution is to require disgor g ement of the fee s paid to [J ames] by [petit ioner’s pare nts and steppare nts] in the amount of $4000.” ¶ 9 There afte r, J ames filed a motion to rec onsider. Attache d to the motion was the attorne y

client agree ment that peti tioner and J ames executed in August 2010 and the aff idavit
prepa red by petitioner’s mother. T he trial c ourt denied the motion to reconsider, f inding: “[Petit ioner] argues that the fee s paid to his attorney are in the nature of an ‘adva nce p ay ment reta iner’ as opposed to an advanc e of the marital estate and there fo re ar e n o t subject to disgor g ement. The stated policy of [section] 501(c- 1)(3) [of the Marr iag e Act (750 I L CS 5/501(c-1) (3) (W es t 2 0 1 0 ))] is to achie ve ‘substantial parity betwee n the part i es

. ’ That section further expressly desig nates ‘retaine rs .

. . . previously paid’ as a

source for disg org ement. Public policy allowing divorce litiga n t s to participate equally should overr ide the

-3-advanc e pay ment reta iner device of protec ting the fee s of one side. To allow [petit ioner]
to shelter the fee s paid on his behalf as an advanc e pay ment reta iner defe ats the purpose of t he ‘substantial parity ’ provisi ons of t he * * * M ar ri ag e Act. Divorce court is a court of equity , in which the cour t has a substantial amount of discr etion.” ¶ 10 J ames moved the court to find him in friendly contempt, t he court g ran t ed the motion, and the court enter ed a $50 sanction. This timely appea l followed (see I ll. S. Ct. R. 304(b)( 5) (ef f. F eb. 26, 2010))

. ¶ 11 At issue in this appea l is whether an attorney in a dissoluti on-of- marria g e action who is paid fo r h i s s er vices via an advanc e pay ment reta iner may be order ed, pursuant to section 501(c- 1)(3) of the Marr iag e Act (750 I L CS 5/501(c-1) (3) (West 2010)), t o turn over to opposing counsel as interim attorney fee s monies held in that reta iner. Be fore addre ssing that issue, we note that no appellee ’s brief has bee n filed in this case. The lack of an appellee ’s brief does not preve nt us from addre ssing the issue raised, as the rec ord is simple and the claimed err or is such that we can decide it without the assistance of an appellee ’s brief. See First Capi tol Mortgage Corp. v. Talandis Construction C orp. , 63 I ll. 2d 128, 133 (1976). ¶ 12 Turning to the meri t s , re s o l v i n g t h e i s s u e ra ised require s us to consider se ction 501(c- 1)(3) of the Marr iag e Act in light of Dowling v. Chicago Options Associates, Inc.
, 226 I ll. 2d 277 (2007). In Dowling
, our supreme court discussed the t wo gen erally rec og nized ty pes of reta iners i n ex i s t en ce in I llinois in 2007. The first, ref err ed to as a “ ‘true,’ ” “ ‘g ener al,’ ” or “ ‘cla ssic’ ” reta iner, is pay ment securing the attorney ’s availability during

a specific period or for a specific matter. Id. at 286. This reta iner “is ear ned when paid and immediately become s proper ty of the lawyer, reg ardle ss of whether the lawyer ever actua lly perf orms any service s for the client.” Id. The second ty pe is a “ ‘sec urity ’ ” reta iner, in which
pay ments made re main the prope rty of the c lient until t he attorne y applies it to charg es for service s actua lly rende red. Id. Be cause the m oney belong s to the client, a securit y re t ainer
must be deposit ed i n a s ep arate client trust acc ount. Id. After detailing these two ty pes of retainers, the Dowling court “explicitly rec og nize[ d] the exis tence of advanc e pay ment reta iners,” which wer e not gen era lly rec ognized in I llinois prior to that. Id. at 292. This
reta iner repr esents a prese nt pay ment to the attorney for his commitment t o provide leg al service s in the future. Id. at 287. Monies in a dvance pay ment reta iners bec ome prope rty of the attorney immediately upon pay ment and are deposit e d in

to th e a tt orney ’s g ener al acc ount. Id. ¶ 13 After acknow ledg ing that advanc e pay ment re t ai n er s wer e now viable in I llinois , our supreme court cautioned that “adva nce pay ment reta iners should be used only sparingly
, when nece ssary to acc omplish some purpose for the client that cannot be acc omplished using

a security reta iner.” Id. at 293. For example, the court deter mined that an advanc e pay ment reta iner would be appropr iate “whe re[, as was the case in Dowling ,] the client wishes to hire counsel to repr esent him or her ag ainst judgme nt cre ditors.” Id

. An advanc e pay ment reta iner is more appropr iate in that context beca use “[p] aying the lawyer a secur ity reta iner means the funds rema in the proper

ty of the client and may there fore be s ub j ect to the claims of the client’s cre ditors.” Id. Be cause the funds rema in the client’s, it could be difficult fo r t he client to hire leg al counsel but for the option of paying the attorney via an advanc e pay ment reta iner. Id.

-4-¶ 14 Pursuant to Dowling
, J ames clai m s t h at h e p ro perly executed an advanc e pay ment reta iner with petitioner and that, beca use t he moni es i n that reta iner be long to him and not petitioner, t h e t ri al court could not order J ames to turn over any money in the reta iner to Haime. We disagree

. ¶ 15 First
, o u r s upreme court expli citly stated in Dowling that advanc e pay ment reta iners should be used sparing ly and only to acc omplish some specific purpose for a client that other forms of reta iners would g rea tly frustr ate. Id. Permitting the use of an advanc e pay ment reta iner in this case would serve the purpose of doi ng awa y with levelingthe pl aying field betwee n the parties. We do not believe that this is the ty pe of purpose o u r s upreme court envisioned whe n it condoned the use of adva nce pa y ment reta iners. ¶ 16 Moreove r, in i n t er p re t i n g s ec t i o n 5 0 1 (c -1 )( 3 ) o f t h e M arri ag e Act (750 I L CS 5/501(c-1) (3) (West 2010)), which was enac ted in 1997, 10 y ear s befor e Do w l i n g was decide d, we b el i ev e t hat advanc e pay ment reta iners are subject to turnover in marria g edissoluti on case s. ¶ 17 Section 501(c- 1)(3) of the Mar riag e Ac t provides: “(c -1) As used in this subsection (c- 1), ‘interim attorney fee s and costs’ means attorney ’s fee s and costs assessed from time to time while a case is pending
, in favor of

a petitioning party ’s curr ent counsel, for rea sonable fee s and costs either alre ady incurre d

or to be incurred
, an d ‘i n terim awa rd’ means an awa

rd of interim attorney ’s fee s and costs. Interim awa

rds shall be g overne d by

the following : * * * (3) I n any proce eding under t h i s subsection (c-1), the court (or hearing office r) shall assess an i n t er i m aw ard ag ainst an opposing party in an amount nece ssary to enable the petitioning party to participa te adequately in the litigation, upon finding s that the party from whom attorney ’s fee s and costs are soug ht has the financ ial ability
to pay rea sonable amounts and that the party seeking attorney ’s fee s and costs lacks sufficie nt acc ess to assets or income to pay rea sonable amounts. *** I f the court finds that both parties lack financ ial abil i t y o r acc ess to assets or income for rea sonable attorney ’s fee s and costs, the court (or hear ing office r) shall enter an order that allocate s available funds for eac h party ’s coun s el
, including retainers or interim
pay ments, or both, previously paid, in a manner that achi ev es substantial parity between theparties .” (Empha ses adde d.) Id. ¶ 18 In interpre ting whether this section of the Marr iag e Act allows for monies in an advanc e pay ment reta iner to be turned over to opposing co u n sel, we are guided by the well-settled rules of st at u t ory construction. The fundame ntal objective of statutory construction is to

asce rtain and g ive eff

ect to the leg islature’s intent. Blum v. Koster
, 235 I ll. 2d 21, 29 (2009). The most reliable indicator of leg islative intent is the statutory l an gu age, which must be
g iven its plain and ordinary meaning

. Cinkus v. Village of Stickney Municipal Officers Electoral Board
, 228 I ll. 2d 200, 216 (2008). When the statutory languag e is clea r and

u n a mb iguous, it must be applied as written without resor ting to extrinsi c aids of construct io n

. MidAme r ica Bank, FSB v. Charter One Bank, FSB
, 232 I ll. 2d 560, 565 (2009). In interpre ting a statute, we will not depar t from the plain statuto ry l anguag e by rea ding into

-5-that languag e exceptions, limit ations, or conditions that conflict with the expressed intent of

the leg islature. Id. at 565-66. That is not to say , howeve r, that we cannot consider the purpose for enac ting the statute. In re Marriage of Ro s en b a um-Golde n , 381 I ll. App. 3d 65, 72 (2008). Rather, “ ‘the court may consider the rea son and nece ssity for the statute and the evils it was intended to reme dy
, and will assume t h at t h e leg islature did not intend an unjust result.’ ” Id. The interpr etation of a statute prese nts a question of law, which we r eview de

novo

. Sandholm v. Kuec ker , 2012 I L111443, ¶ 64. ¶ 19 Her e, the languag e of section 501(c- 1)(3) of the Marr iag e Act provides that, in or der to establish substantial parity betwee n the parties in a dissoluti on-of- marria g e action, the court may order that funds held by one party ’s attorney in a “re tainer” be turned over to opposing counsel as interim attorney fee s. The statutory languag e does not limit what ty pe of “re tainer” is subject to this disgor g ement. That is, the statutory languag e does not char acte rize the “re tainer” as “ ‘ true,’ ” “ ‘g ener al,’ ” “ ‘c lassic,’ ” “ ‘security ,’ ” or “ ‘a dvance pay ment.’ ” See Dowling
, 226 I ll. 2d at 286-87. Given that the statute does not speci fy wh at t y p e of
reta iner is subject t o disgor g ement, the question wi th which we are left i s how t o interpre t a statute that uses a

g ener al term that e ncompasses ma ny specific terms. ¶ 20 Instructive on this issue is Landis v. Marc Realty, L.L.C
., 235 I ll. 2d 1 (2009). There , four
y ear s afte r they vaca

ted their apar

tment, two tenants sued their landlord pursuant to a municipal ordinanc e for

their sec urity

deposit plus interest. Id. at 3-4. The landlord move d
to dismiss
, arguing that the statute of limit ations had run. Id. at 6. At issue was whether the
tena n t s ’ ca u se of action fell within the t wo-year statute of l imitations in section 13-202 of the Code of Civil Procedur e (735 I L CS 5/13-202 (West 2004)). Landis
, 235 I ll. 2d at 6. That is, whether the tenants’ cause of action was for a “ ‘s tatutory penalty .’ ” Id. Our supreme court deter

mined that “statutory” included a municipal ordinanc e. Id. at 12. In rea ching that conclusion, the court observe d that “[i] t is a g ener al principle of statutory interpre tation that

we g ive statutes the fullest, rathe r than t h e n ar ro west, possible meaning to which they are susceptible.” Id. at 11. ¶ 21 Her e, like in Landis
, we must g ive “re tai n er ” i t s fu l l es t p o s s i ble meaning . Thus, “re tainer” means any ty

pe of reta iner, including, for purposes of t h i s appea l, advanc e pay m en t re tainers. So even though, under Dowling
, the money in the advanc e pay ment reta iner technica lly belong ed to J ames and not petitioner, the trial court could order that that
money be turne d over to opposingcounsel. ¶ 22 Strong policy considerations underlie our decision on this p o in t. Se e R o s e n b a u m

- G o lden
, 381 I ll. App. 3d at 74. That is, the leg islature provided for an awa rd of interim attorney fee s

as a way to “ ‘leve l the play in g fi el d ’ ” betwee n spouses g oing throug h the dissoluti on of their marria g e. Id. By “leve ling the playing f ield,” a spouse who has acc ess to f unds to pa

y for an attorney cannot control the litigation betwee n the parties and put the opposing spouse at a disadvantag e in participating in the litigation. Id. I f we wer e to construe the statute in the
way that J ames sug g ests, by concluding

that the funds in the adva nce pa y ment reta iner are
not subject to section 501(c- 1)(3)
, we would be defe ating the very purpose of the statute. We

ca n n o t d o t h i s

. See Harve l v. City of Johnston City
, 146 I ll. 2d 277, 284 (1992) (“I f the languag e of a statute is susceptible to two cons t ru ct i o n s , one of which will car ry out its
purpose and another which will defe at it, the statute will rec eive the former construction.”)

.

-6-¶ 23 In rea ching this conclusion, we are also awa re of the fac t that the money in the adva nce pay ment reta iner was l oaned to petitioner by his pare nts and st eppar ents. Although we are

sure that petitioner’s family had no intention that the money they g ave J am es t o p ay for petitioner’s leg al fee s would also be u s ed t o p ay responde nt’s attorney , that fac t does not chang e our result. In Dowling
, our supreme court had to c onsider only whether a judgme nt

cre ditor could seek satisfac tion of the judgme nt by making claims to money held in the advanc e pay

ment reta iner that the debtor had with his attorney

. Although Dowling involved a lar g e sum of money
, at s take here are the lives of petitioner, r espondent, a nd their young

son. The evidenc e prese nted indicated that their family life was volatile at best. To say that J ames is not require d to turn over money in the advanc e pay ment reta iner to Haime could result in even more damag ing life chang es. Such a result would not advanc e any public policy of which w e ar e aw are

. ¶ 24 Fo r t h es e re as o n s , t h e turnover order of the circ uit court of Stephenson Coun t y i s aff irmed. Howeve r, we vaca te the contempt order
, as J ames acte d solely to respe ctfully test the propriety of the turnover o rder

. See Dufour v. Mobile Oil Corp.
, 301 I ll. App. 3d 156, 162-63 (1998)

.

¶ 25 Affir

med in part a

nd vacated in part.

-7-