2017 IL 122046 

IN THE
 

SUPREME COURT
 

OF
 

THE STATE OF ILLINOIS
 

(Docket No. 122046) 

In re MARRIAGE OF CHRISTINE GOESEL, Appellant, and 

ANDREW GOESEL (Laura A. Holwell, Appellee). 

Opinion filed November 30, 2017. 

JUSTICE THOMAS delivered the judgment of the court, with opinion. 

Chief Justice Karmeier and Justices Freeman, Kilbride, Garman, Burke, and 

Theis concurred in the judgment and opinion. 

OPINION 

¶ 1 At issue is whether fees that have already been earned by an attorney in a 

dissolution of marriage proceeding are considered “available funds,” such that they 

may be disgorged under section 501(c-1)(3) of the Illinois Marriage and 

Dissolution of Marriage Act (Act) (750 ILCS 5/501(c-1)(3) (West 2014)). We hold 

that earned fees are not subject to disgorgement. 
 

 

 

 

 

 

 

 

¶ 2 BACKGROUND 

¶ 3 The facts of this case are set forth fully in the appellate court’s opinion. 2017 IL 

App (3d) 150101, ¶¶ 3-10. We set forth here only those facts necessary to an 

understanding of the specific question of law that we decide today. On January 18, 

2013, petitioner, Christine Goesel, filed a petition for dissolution of marriage from 

respondent, Andrew Goesel. Christine was originally represented by Goldstine, 

Skrodzki, Russian, Nemec and Hoff, Ltd. (Goldstine), and Andrew was represented 

by Janice Boback of Anderson & Boback, LLC. On October 10, 2013, contemnor 

Laura Holwell filed her appearance as Andrew’s counsel, and the trial court granted 

Boback leave to withdraw. Before withdrawing, Boback had moved to disqualify 

Goldstine. The disqualification motion alleged that Goldstine had improperly 

ordered Christine to provide it with Andrew’s mail that arrived at the marital home 

and that Goldstine had opened and viewed the mail. The trial court ultimately 

disqualified Goldstine, and Holwell billed Andrew $37,094.49 for her work on the 

disqualification matter. 

¶ 4 On March 10, 2014, the Law Offices of Edward R. Jaquays (Jaquays) appeared 

on behalf of Christine, and on June 6, 2014, Howard LeVine of LeVine, 

Wittenberg, Shugan, and Schatz, Ltd., appeared on behalf of Andrew. On June 12, 

2014, Christine filed a petition for interim attorney fees, which she amended on 

June 20, 2014. In the amended petition, Christine stated that she had paid Jaquays 

an initial retainer of $5000 and had an outstanding balance with him of $27,142.60. 

She argued that she lacked sufficient funds to pay any additional fees beyond the 

retainer, and she requested that the court, pursuant to the “leveling of the playing 

field” rules of the Act, order Andrew to pay her fees. Alternatively, if the court 

determined that Andrew lacked the ability to pay her attorney fees, Christine 

requested that the court order disgorgement of the necessary amount from the 

money that Andrew had already paid to Holwell. Andrew also filed a petition for 

prospective attorney fees, contending that, although he was employed, he did not 

have sufficient funds to pay his attorney fees. On June 20, 2014, Holwell moved to 

withdraw as Andrew’s counsel. The court granted the motion but retained 

jurisdiction over Holwell pending resolution of the disgorgement issue. 

¶ 5 At the hearing on the petition for interim attorney fees, the parties stipulated to 

the attorneys’ rates and that the work performed by the attorneys was reasonable 

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and necessary. Copies of invoices entered into evidence at the hearing showed that 

all of the money Holwell had received was for work already performed. Andrew 

still owed $17,500.38 to Holwell and $26,000 to LeVine. Additionally, Holwell 

testified that she was holding $13,000 that Andrew had previously paid to Boback 

and that Boback had then paid to Holwell, as there was a dispute as to who owned 

the money. 

¶ 6 On September 29, 2014, the court entered an order finding that both parties 

lacked an ability to pay reasonable attorney fees. The court found that the total 

attorney fees paid by Andrew were $100,022.27, with $66,382.28 going to 

Holwell, $10,000 to LeVine, and $23,639.99 to Boback. Christine had paid her 

attorneys $18,117.04, with $5000 going to Jaquays and $13,117.04 going to 

Goldstine. The court thus found that $118,139.31 had been paid to date, and to 

“level the playing field,” each party should have $59,069.65 for attorney fees. In 

order to achieve parity, the court found that it was necessary to order Holwell to 

disgorge $40,952.61. Accordingly, the court ordered Holwell to tender $40,952.61 

in fees to Jaquays with 14 days. 

¶ 7 After more than 14 days had passed and Holwell had not turned over the funds, 

Christine moved to have Holwell held in indirect civil contempt. Holwell requested 

to be held in friendly contempt of court so that she could appeal pursuant to Illinois 

Supreme Court Rule 304(b)(5) (eff. Feb. 26, 2010). On December 18, 2014, the 

court entered an order finding Holwell in friendly contempt of court. Christine later 

filed a motion to clarify the court’s contempt finding. Christine pointed out that, 

pursuant to Rule 304(b)(5), only contempt orders that impose a penalty are 

immediately appealable. Accordingly, Christine asked the court to impose a 

monetary or other penalty on Holwell. At the hearing on Christine’s motion, 

Holwell explained to the court that she was not willfully disobeying its order but 

that she did not have $40,000 to turn over. The court subsequently vacated its 

December 18, 2014, finding of friendly contempt, held Holwell in indirect civil 

contempt, charged her with a $10 per day penalty for each day that she did not pay 

the disgorgement, and sentenced her to an indeterminate amount of time in the Will 

County adult detention facility, not to exceed 179 days. The court stayed Holwell’s 

sentence for 30 days to give her time to file an appeal. The court stated that Holwell 

could purge herself of the contempt order by paying $40,952.61 to Jaquays by 

January 21, 2015. At a hearing on January 21, 2015, Holwell reiterated to the court 

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that she did not have the money but explained that she was making arrangements to 

borrow it. The court reaffirmed its contempt finding and penalty, and Holwell 

appealed to the Appellate Court, Third District. 

¶ 8 Holwell raised several issues on appeal. Holwell argued that the trial court erred 

in (1) ordering disgorgement without making a specific finding that Christine 

lacked the ability to pay, (2) finding that the disgorgement order was a judgment 

because disgorgement orders are temporary advances against the marital estate, and 

(3) holding Holwell in indirect civil contempt without notice and a hearing and 

without inquiring into Holwell’s ability to pay. After the Appellate Court, First 

District, issued its opinion in In re Marriage of Altman, 2016 IL App (1st) 143076, 

which held that earned fees are not subject to disgorgement, Holwell filed a 

supplemental brief arguing that the court’s disgorgement order was in error because 

the entirety of the $40,952.61 ordered disgorged was for fees that had already been 

earned. 

¶ 9 The appellate court reversed the disgorgement order. The court first held that, 

contrary to Holwell’s claim, the trial court had made a specific finding that neither 

party had the ability to pay attorney fees. 2017 IL App (3d) 150101, ¶ 15. The court 

then reviewed the evidence from the hearing on attorney fees and concluded that 

the court had not abused its discretion in determining that neither party had the 

ability to pay. Id. ¶¶ 18-21. The court agreed with Holwell, however, that the court 

had erred in ordering disgorgement of fees that were paid to Holwell for services 

already rendered. The court determined that the relevant question is what the word 

“available” means in section 501(c-1)(3), when it states that trial courts may “enter 

an order that allocates available funds for each party’s counsel, including retainers 

or interim payments, or both, previously paid” (750 ILCS 5/501(c-1)(3) (West 

2014)). 2017 IL App (3d) 150101, ¶ 25. The court noted that there was a split in the 

appellate court on this issue. Id. ¶ 31. In In re Marriage of Squire, 2015 IL App (2d) 

150271, the Second District held that retainers or interim payments may be 

disgorged whether or not they had been earned by the attorney. According to the 

Second District, “available” in section 501(c-1)(3) simply means that the funds 

“exist somewhere.” Id. ¶ 22. The First District rejected this view in Altman, 2016 

IL App (1st) 143076. According to the First District, “available” should be 

construed to mean those funds that have not yet been earned. Id. ¶ 36. In the case 

before us, the Third District determined that Altman expressed the correct 

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interpretation of section 501(c-1)(3). 2017 IL App (3d) 150101, ¶ 31. Accordingly, 

since the parties had stipulated that Holwell’s fees were reasonable and necessary, 

and there was no question that the fees that the court ordered disgorged had all been 

earned by Holwell, the appellate court held that the trial court’s disgorgement order 

must be reversed. Id. ¶ 34. Because it held the disgorgement order invalid, the court 

reversed the contempt finding against Holwell. Id. ¶ 36. 

¶ 10 This court allowed Christine’s petition for leave to appeal. Ill. S. Ct. R. 315 (eff. 

Mar. 15, 2016). This court also allowed the Illinois State Bar Association and the 

Illinois Chapter of the American Academy of Matrimonial Lawyers to file a joint 

brief amici curiae in support of Holwell. 

¶ 11 ANALYSIS 

¶ 12 Christine raises two issues on appeal. First, Christine argues that the appellate 

court erred in holding that earned fees are not available for disgorgement under the 

Act. Second, Christine contends that the appellate court erred in vacating the 

contempt finding against Holwell. According to Christine, Holwell was not 

engaging in a good-faith attempt to appeal the trial court’s contempt finding. The 

second issue was not raised in Christine’s petition for leave to appeal and is thus 

forfeited. See Crossroads Ford Truck Sales, Inc. v. Sterling Truck Corp., 2011 IL 

111611, ¶ 62. Accordingly, we will confine our analysis to whether the 

disgorgement order was proper.1 

¶ 13 The issue before us is one of statutory construction, and the principles guiding 

our review are familiar. The primary goal of statutory construction, to which all 

other rules are subordinate, is to ascertain and give effect to the intention of the 

legislature. Jackson v. Board of Election Commissioners, 2012 IL 111928, ¶ 48. 

The best indication of legislative intent is the statutory language, which must be 

given its plain and ordinary meaning. Metropolitan Life Insurance Co. v. Hamer, 

1

As an alternative basis for affirming the appellate court’s judgment, Holwell argues that the 

trial court abused its discretion in finding that neither party had the ability to pay attorney fees. 

However, given that we allowed the petition for leave to appeal to resolve the conflict in the 

appellate court over whether earned fees are subject to disgorgement, and we agree with Holwell 

that her earned fees were not subject to disgorgement, we see no need to address this issue. 

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2013 IL 114234, ¶ 18. It is improper for a court to depart from the plain statutory 

language by reading into the statute exceptions, limitations, or conditions that 

conflict with the clearly expressed legislative intent. Id. Words and phrases should 

not be viewed in isolation but should be considered in light of other relevant 

provisions of the statute. Midstate Siding & Window Co. v. Rogers, 204 Ill. 2d 314, 

320 (2003). Further, each word, clause, and sentence of a statute must be given a 

reasonable construction, if possible, and should not be rendered superfluous. 

Prazen v. Shoop, 2013 IL 115035, ¶ 21. Where statutory language is clear and 

unambiguous, it will be given effect without resort to other aids of construction. 

Kunkel v. Walton, 179 Ill. 2d 519, 534 (1997). If the meaning of an enactment is 

unclear from the statutory language, the court may consider the purpose behind the 

law and the evils the law was designed to remedy. Gruszeczka v. Illinois Workers’ 

Compensation Comm’n, 2013 IL 114212, ¶ 12. A statute is ambiguous when it is 

capable of being understood by reasonably well-informed persons in two or more 

different senses. Solon v. Midwest Medical Records Ass’n, 236 Ill. 2d 433, 440 

(2010). In determining legislative intent, we may also consider the consequences 

that would result from construing the statute one way or the other, and in doing so, 

we presume that the legislature did not intend absurd, inconvenient, or unjust 

consequences. Id. at 441. Our review is de novo. In re Marriage of Heroy, 2017 IL 

120205, ¶ 13. 

¶ 14 The relevant statute—section 501(c-1)(3) of the Marriage and Dissolution of 

Marriage Act—was enacted as part of the “leveling of the playing field 

amendments,” which became effective on June 1, 1997. See In re Marriage of 

Earlywine, 2013 IL 114779, ¶ 21. This section provides as follows: 

“In any proceeding under this subsection (c-1), the court (or hearing officer) 

shall assess an interim award against an opposing party in an amount necessary 

to enable the petitioning party to participate adequately in the litigation, upon 

findings that the party from whom attorney’s fees and costs are sought has the 

financial ability to pay reasonable amounts and that the party seeking attorney’s 

fees and costs lacks sufficient access to assets or income to pay reasonable 

amounts. In determining an award, the court shall consider whether adequate 

participation in the litigation requires expenditure of more fees and costs for a 

party that is not in control of assets or relevant information. Except for good 

cause shown, an interim award shall not be less than payments made or 

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reasonably expected to be made to the counsel for the other party. If the court 

finds that both parties lack financial ability or access to assets or income for 

reasonable attorney’s fees and costs, the court (or hearing officer) shall enter an 

order that allocates available funds for each party’s counsel, including retainers 

or interim payments, or both, previously paid, in a manner that achieves 

substantial parity between the parties.” 750 ILCS 5/501(c-1)(3) (West 2014). 

The statute does not use the term “disgorgement.” The term was adopted by courts 

to describe the process whereby a court orders an attorney to turn over previously 

paid interim fees or retainers. As this court explained in Earlywine, the purpose of 

the “leveling of the playing field” amendments was to “ ‘equaliz[e] the parties’ 

litigation resources where it is shown that one party can pay and the other cannot.’ ” 

Earlywine, 2013 IL 114779, ¶ 26 (quoting In re Marriage of Beyer, 324 Ill. App. 3d 

305, 315 (2001)). The legislature was addressing the problem of one party using his 

or her greater control of assets as a tool, making it more difficult for the 

disadvantaged spouse to participate equally in the litigation. Id. 

¶ 15 We discuss first this court’s decision in Earlywine. The Second District in 

Squire believed that Earlywine settles the question before the court, while the First 

and Third Districts did not believe that Earlywine spoke to it. Thus, we will first 

consider whether Earlywine settles this question because, if so, we need go no 

further. In Earlywine, this court considered whether an advance payment retainer 

was subject to disgorgement under section 501(c-1)(3). In that case, the petitioner 

husband had paid his attorney by way of an advance payment retainer. Upon 

finding that neither party had the ability to pay attorney fees, the trial court ordered 

that $4000 be disgorged from the husband’s attorney, Thomas James. Id. ¶ 5. James 

then asked to be held in friendly contempt. Id. ¶ 9. The court agreed, held James in 

friendly contempt, and fined him $50. Id. James appealed, contending that advance 

payment retainers are not subject to disgorgement because they become the 

property of the attorney upon payment. The appellate court affirmed, explaining 

that (1) section 501(c-1)(3) simply used the term “retainers” and did not limit the 

type of retainers to which it applied and (2) allowing a party to avoid disgorgement 

through the use of an advance payment retainer would defeat the purpose of the 

leveling of the playing field amendments. Id. ¶ 10. This court affirmed the appellate 

court. 

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¶ 16 This court first discussed the different types of retainers that are allowed in 

Illinois. The first is the “general” retainer, which is paid to secure a lawyer’s 

availability during a specified time or for a specified matter. It becomes the 

lawyer’s property upon payment. Id. ¶ 15. The second type is the security retainer. 

A security retainer is held in a client trust account and remains the property of the 

client until the attorney applies it to charges for services rendered. Id. The third type 

of retainer is the advance payment retainer, which was first recognized by this court 

in Dowling v. Chicago Options Associates, Inc., 226 Ill. 2d 277 (2007). Earlywine, 

2013 IL 114779, ¶ 15. This type of retainer is a present payment for a commitment 

to provide legal services in the future. Id. ¶ 16. Unlike a security retainer, the funds 

become the attorney’s property immediately upon payment and must be deposited 

in the lawyer’s general account. Id. As with a security retainer, however, the lawyer 

has an ethical obligation to refund to the client any portion of the retainer that is 

neither earned nor required for expenses. Ill. R. Prof’l Conduct (2010) R. 1.15(c)(4) 

(eff. Jan. 1, 2010). Earlywine noted that Dowling had explained that advance 

payment retainers should be used sparingly and only to accomplish a purpose that 

cannot be accomplished with a security retainer. Earlywine, 2013 IL 114779, ¶ 17. 

Dowling had explained that examples of the appropriate use of an advance payment 

retainer are those situations in which a client may have trouble hiring counsel 

unless he can shield the attorney fees from claims by his or her creditors. Id. ¶ 18. A 

security retainer leaves funds in the client’s name, thus subjecting them to claims 

by creditors. Examples of appropriate situations for an advance payment retainer 

would be those of “a debtor [who] hired counsel to represent him in proceedings 

against a judgment creditor; a criminal defendant whose property remains subject 

to forfeiture; and a debtor in a bankruptcy case.” Id. In Earlywine, James argued 

that similar policy concerns should allow parties in dissolution proceedings to 

shield attorney fees from being turned over to opposing counsel. Id. ¶ 20. This court 

disagreed. 

¶ 17 First, this court noted that section 501(c-1) used the general word “retainers” 

and did not place any qualifications on the types of retainers that could be 

disgorged. Id. ¶ 25. This court then considered the policy underlying the leveling of 

the playing field amendments. This court explained that allowing advance payment 

retainers to be used in the manner suggested by James would undermine the 

purpose of the amendments. Id. ¶ 27. It was obvious that the retainer in Earlywine 

was set up specifically to circumvent the leveling of the playing field rules. Id. 

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Accepting James’s argument would have meant that avoiding the application of the 

rules was as simple as putting the funds in an advance payment retainer. Id. Thus, 

the rules would no longer prevent an economically advantaged spouse from gaining 

an unfair advantage over the other spouse. Id. The policy concerns expressed in 

Dowling are simply not present in dissolution cases. Id. ¶ 28. Thus, this court held 

that advance payment retainers must be subject to disgorgement in order to avoid 

“defeat[ing] the express purpose of the Act and render[ing] the ‘leveling of the 

playing field’ provisions powerless.” Id. ¶ 29. 

¶ 18 As noted, the Second District in Squire believed that Earlywine largely settled 

the question before the court by holding that advance payment retainers are subject 

to disgorgement. Squire, 2015 IL App (2d) 150271, ¶ 22. Advance payment 

retainers become the property of the attorney upon payment, and therefore a trial 

court can order an attorney to disgorge funds that belong to him or her. Id. Earned 

fees are also the property of the attorney, and therefore, pursuant to Earlywine, they 

may also be disgorged. Id. We do not believe that the issue is that simple. First, the 

main takeaway from Earlywine is that advance payment retainers should not be 

used in dissolution cases when the purpose of the retainer is to block the other 

spouse’s access to funds for attorney fees. As this court explained, advance 

payment retainers are appropriate only in special circumstances, and circumventing 

the leveling of the playing field rules and blocking the other spouse’s access to 

funds for attorney fees are not the special circumstances that this court had in mind. 

Earlywine, 2013 IL 114779, ¶¶ 27-29. Second, although Earlywine stands for the 

general proposition that an advance payment retainer is subject to disgorgement, 

there was no argument or discussion in that case about what portion of the retainer 

had been earned. As the appellate court pointed out, although an advance payment 

retainer becomes the property of the attorney upon payment, the attorney still has to 

earn the retainer and must refund any unearned portion to the client. 2017 IL App 

(3d) 150101, ¶¶ 28-30. No issue was raised in Earlywine regarding what portion of 

the advance payment retainer was earned. Rather, Earlywine merely addressed the 

general question of whether section 501(c-1)(3)’s reference to retainers includes 

advance payment retainers. Thus, we do not believe that Earlywine answers the 

question before the court today. 

¶ 19 The first court to consider the precise issue of whether earned fees are subject to 

disgorgement was the Second District in Squire, 2015 IL App (2d) 150271. In that 

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case, the petitioner husband filed a petition for dissolution of marriage in 2013 and, 

in June 2014, petitioned for interim and prospective attorney fees. Id. ¶ 2. The 

petitioner alleged that he lacked funds to pay his attorney fees, while the respondent 

had access to significant funds to pay her lawyers. Id. By the time of the hearing on 

contribution, the petitioner had paid his attorneys $2500, but owed them 

approximately $53,000. Id. ¶ 3. The respondent was unemployed but had borrowed 

approximately $130,000 from her mother to pay her attorneys. Approximately 

$10,000 of this amount went to her previous attorney, and the rest was paid to her 

current attorneys (the Stogsdill Law Firm (Stogsdill)) as a retainer. Id. ¶ 4. Stogsdill 

argued that it had already earned the entire retainer and deposited it in its general 

account and thus it was not subject to disgorgement. Id. ¶ 5. The court granted the 

interim fee petition. The court ordered Stogsdill to pay petitioner’s counsel $60,000 

within 14 days. Id. ¶ 6. The court explained that, pursuant to this court’s decision in 

Earlywine, 2013 IL 114779, it did not matter that the retainer had already become 

Stogsdill’s property. Squire, 2015 IL App (2d) 150271, ¶ 6. The trial court held 

Stogsdill in friendly contempt of court, ordered it to pay the $60,000 by March 19, 

2015, and imposed a fine of $100 per day for each day that Stogsdill refused to pay. 

Id. ¶ 7. 

¶ 20 On appeal, Stogsdill argued that it could not be required to turn over fees that it 

had already earned. Section 501(c-1)(3) refers to “available” funds being subject to 

disgorgement, and Stogsdill argued that funds that have been earned by the attorney 

and have become the attorney’s property are no longer “available.” Id. ¶ 9. The 

appellate court rejected Stogsdill’s argument. The court’s decision was based 

largely on this court’s decision in Earlywine, which held that advance payment 

retainers are subject to disgorgement. The court noted that an advance payment 

retainer, in contrast to a security retainer, becomes the attorney’s property upon 

payment and is to be deposited in the attorney’s general account. Id. ¶¶ 17, 22. 

Thus, it could not be correct that funds that are the property of the attorney are not 

subject to disgorgement. Id. ¶ 22. The court also believed that Stogsdill’s position 

would frustrate the purposes of the statute because an attorney could block the other 

side’s access to fees by filing voluminous pleadings and motions early in the case, 

thus earning the retainer, while leaving the other spouse with insufficient funds to 

respond properly. Id. ¶ 21. Accordingly, the Second District concluded that the 

word “available” in section 501(c-1)(3) must simply mean that the funds “exist 

somewhere.” Id. ¶ 22. 

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¶ 21 In Altman, the First District rejected the Second District’s interpretation. In that 

case, the wife petitioned for a dissolution of marriage. Altman, 2016 IL App (1st) 

143076, ¶ 2. She was represented by Bradford & Gordon, LLC (Bradford). Id. ¶ 3. 

The respondent husband was initially represented by Scott Tzinberg, who was 

eventually granted leave to withdraw. Id. Tzinberg was replaced by Stephen 

Gerage, who also later withdrew from the case. Id. Following Gerage’s withdrawal, 

the respondent proceeded pro se. Id. Nine months into the litigation, the petitioner 

sought interim attorney fees of $36,864.30 for fees already incurred and $25,000 

for prospective fees and costs. Id. ¶ 8. By the time that the petitioner later filed an 

amended petition for fees, she alleged that she had incurred fees of $63,598.68 and 

had paid only $9500. Id. Thus, she still owed her attorneys $54,098.68. Id. The 

petitioner requested that the respondent pay her fees or, in the alternative, that the 

court order Gerage to disgorge sums that he had been previously paid. Id. 

¶ 22 Following a hearing, the trial court determined that neither party had sufficient 

access to assets or income to pay attorney fees and that the leveling of the playing 

field provisions of the Act should be applied. Id. ¶ 10. As part of its order allocating 

funds for attorney fees, the court found that it would be necessary to order Gerage 

to disgorge $16,000 in fees that he had earned and that this amount needed to be 

turned over to Bradford within seven days. Id. Gerage failed to turn the money 

over, was held in contempt of court, and appealed. Id. ¶ 11. 

¶ 23 On appeal, Gerage argued, inter alia, that the disgorgement order was improper 

because he had earned the funds and deposited them into his general operating 

account. Gerage argued that the legislature’s use of the term “available” in section 

501(c-1)(3) must mean that some funds are “unavailable” and this should include 

funds that an attorney has earned. Id. ¶ 27. The First District reviewed the Second 

District’s decision in Squire and stated that, if “leveling the playing field” were the 

only consideration, it would be inclined to agree with Squire. Id. ¶ 33. 

Nevertheless, the court held that it could not ignore the legislature’s use of the word 

“available” and that it would be a “tortured reading of the statute to say that even 

though the firm has earned the fees, paid itself (as it was entitled to do), and used 

that income to pay salaries, overhead, and litigation expenses for items such as 

experts and court reporters, it can nonetheless be required to refund those fees, not 

to its client, but to a third party.” Id. The court noted that Squire had not discussed 

the significant policy concerns in holding that earned fees are subject to 

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disgorgement. Id. ¶ 34. The court believed that small firms and solo practitioners 

could face significant financial hardships when attempting to comply with 

disgorgement orders, particularly when the fees have been earned over several 

months and transferred in and out of their operating accounts. Id. The court noted 

that such concerns were exacerbated in cases such as the one before it where a party 

delays filing the fee petition. Id. The court further noted that, logically, the Squire 

interpretation means that a lawyer who had withdrawn from the case could be 

called upon months or even years later to write a check to the opposing party’s 

counsel, as the funds still “exist somewhere.” Id. ¶ 35. The court stated that it 

would not construe the statute as allowing such absurd results. Id. The court 

acknowledged that it was addressing interim fee awards and that accounts may be 

“trued up” when a final dissolution judgment is entered. Id. ¶ 36. However, the 

court explained that, because disgorgement is ordered upon a finding that neither 

party is able to pay attorney fees, it is not realistic to assume that the attorneys will 

ever be paid. Id. The court did not believe that the legislature intended that the 

“financial burden of leveling the playing field should be borne, in substantial part, 

by lawyers who must refund, under pain of contempt, fees they have earned.” Id. 

The court thus reversed both the trial court’s order and the contempt order. Id. 

¶ 24 In the present case, the Third District considered the interpretations set forth in 

Squire and Altman and determined that Altman was correct. 2017 IL App (3d) 

150101, ¶ 31. The court held that “the most reasonable interpretation of the term 

‘available funds,’ as that term relates to previously paid ‘retainers or interim 

payments’ to an attorney as used in section 501(c-1)(3) of the Act, are those funds 

that are currently being held for a client that have not yet been earned by the 

attorney at the time the attorney is given notice of the petition for interim attorney 

fees and would be ‘available’ to be returned to the client if the attorney were to 

immediately cease services.” Id. ¶ 25. The court did not believe that this court’s 

decision in Earlywine, which held that advance payment retainers are subject to 

disgorgement, answered the question before the court. The court explained that, 

even though an advance payment retainer becomes the property of the attorney 

upon receipt, the attorney still has an obligation to refund to the client any unearned 

portion of the retainer. Id. ¶ 28. The court noted that the Squire court had failed to 

discuss an attorney’s obligation to refund any unearned portion of an advance 

payment retainer to the client. Id. ¶ 32. As noted in the quoted passage above, 

however, the Third District added a wrinkle to the test adopted by Altman. Altman 

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held that earned fees were not subject to disgorgement, whereas here the Third 

District held that only fees that had been earned prior to the filing of the petition for 

interim fees were exempt from disgorgement. Id. ¶¶ 23, 25, 34. The court adopted 

this position by analogy to section 510(a) of the Act (750 ILCS 5/510(a) (West 

2014)), which provides that judgments regarding maintenance or support 

obligations may be modified only as to “installments accruing subsequent to due 

notice by the moving party of the filing of the motion for modification.” (Internal 

quotation marks omitted.) 2017 IL App (3d) 150101, ¶ 23. The court ultimately 

determined that, because all of Holwell’s fees were earned prior to her receiving 

notice of the petition for interim fees, there were no funds available to be disgorged. 

Id. ¶ 34. Accordingly, the court reversed both the trial court’s disgorgement order 

and its contempt order. Id. ¶¶ 34, 36. 

¶ 25 We agree with the appellate court that the relevant question is what it means for 

funds to be “available” under section 501(c-1)(3). The legislature did not merely 

say that retainers and interim payments were subject to disgorgement. Rather, it 

stated that those funds must also be “available.” As the appellate court has noted, 

this implies that some funds are “unavailable.” Id. ¶ 25; Altman, 2016 IL App (1st) 

143076, ¶ 33. We must give each word in the statute a reasonable construction, if 

possible, and no word should be rendered superfluous. Prazen, 2013 IL 115035, 

¶ 21. The legislature could have easily said that all funds that had been paid to an 

attorney are subject to disgorgement, but the legislature instead chose to use the 

modifier “available.” 

¶ 26 “Available” means “such as may be availed of: capable of use for the 

accomplishment of a purpose: immediately utilizable” or “that is accessible or may 

be obtained: personally obtainable.” Webster’s Third New International Dictionary 

150 (1993). As used in section 501(c-1)(3), the appellate court has defined 

“available funds” three different ways. In Squire, the Second District determined 

that it meant simply that the funds “exist somewhere.” Squire, 2015 IL App (2d) 

150271, ¶ 22. In Altman, the First District concluded that only funds that have not 

yet been earned by the attorney are “available”: “funds earned by and paid to a 

party’s lawyer in the normal course of representation for past services rendered are 

not ‘available funds’ within the meaning of section 501(c-1)(3).” Altman, 2016 IL 

App (1st) 143076, ¶ 36. Finally, in the present case, the Third District held that 

“available funds” are “those funds that are currently being held for a client that 

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have not yet been earned by the attorney at the time the attorney is given notice of 

the petition for interim attorney fees and would be ‘available’ to be returned to the 

client if the attorney were to immediately cease services.” 2017 IL App (3d) 

150101, ¶ 25. 

¶ 27 For several reasons, we believe that Altman represents the correct 

interpretation. For one thing, it is consistent with the plain meaning of the term 

“available.” It is difficult to see how an interim payment or retainer that has been 

earned by the attorney is nevertheless “available.” Once an attorney has used up a 

retainer, there is clearly no longer an available retainer. Indeed, there is no longer 

even a retainer. If there is no retainer “available” as between the attorney and the 

client, it is difficult to see how one can be available to third parties. Christine relies 

on the statute’s inclusion of “interim payments,” and Christine contends that a 

“payment” is the discharge of a debt or liability by the delivery or money or other 

value. Thus, Christine suggests that an “interim payment” will always be for an 

amount that the lawyer has already earned. “Payment,” however, can also mean 

more generally “the act of paying or giving compensation.” Webster’s Third New 

International Dictionary 1659 (1993). The statute defines “interim attorney’s fees 

and costs” as including “reasonable fees and costs either already incurred or to be 

incurred.” (Emphasis added.) 750 ILCS 5/501(c-1) (West 2014). Moreover, the 

phrase “previously paid” in section 501(c-1)(3) also modifies the term “retainers,” 

which means that the legislature is clearly using the term “paid” as including sums 

that the attorney has not yet earned. 

¶ 28 We acknowledge that, when the meaning of a legislative enactment is unclear, 

the court may consider the purpose behind the law and the evils the law was 

designed to remedy. Gruszeczka, 2013 IL 114212, ¶ 12. As we set forth above, the 

purpose of the “leveling of the playing field” amendments was to “ ‘equaliz[e] the 

parties’ litigation resources where it is shown that one party can pay and the other 

cannot.’ ” Earlywine, 2013 IL 114779, ¶ 26 (quoting Beyer, 324 Ill. App. 3d at 

315). If this were the only consideration, we would be inclined to hold that all 

retainers and interim payments were subject to disgorgement, regardless of whether 

they had been earned by the attorney. It will obviously be much easier for the trial 

court to equalize the parties’ position if the entire amount of all interim payments 

and retainers is considered available. 

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¶ 29 Nevertheless, we must also consider the consequences that would result from 

construing the statute one way or the other, and in doing so, we presume that the 

legislature did not intend absurd, inconvenient, or unjust consequences. Solon, 236 

Ill. 2d at 441. As the First and Third Districts have noted, the consequences of 

holding that earned fees are subject to disgorgement can be severe, and such a 

holding could very easily lead to absurd, inconvenient, and unjust consequences. 

We must presume that this was not the legislature’s intent. As the appellate court 

explained in Altman: 

“It is not speculation to predict that some lawyers, particularly solo 

practitioners and those in small law firms, may be unable to comply with orders 

to disgorge funds that they have earned over several months and that have been 

transferred into (and out of) their operating accounts, at least not without 

serious financial hardship.” Altman, 2016 IL App (1st) 143076, ¶ 34. 

The court further noted that lawyers who have already been granted leave to 

withdraw from the case could be called upon months or years later to write a check 

to opposing party’s counsel. Id. ¶ 35. In the present case, the Third District cited 

with approval Altman’s statement that it was not the legislature’s intent that “ ‘the 

financial burden of leveling the playing field should be borne, in substantial part, by 

lawyers who must refund, under pain of contempt, fees they have earned.’ ” 2017 

IL App (3d) 150101, ¶ 33 (quoting Altman, 2016 IL App (1st) 143076, ¶ 36). As 

Holwell has argued, if this court were to hold that earned fees are subject to 

disgorgement, then “Illinois attorneys must question whether they should utilize 

the fees they have rightfully earned to run their businesses, or hoard the funds for 

fear of disgorgement and place their businesses at risk.” 

¶ 30 Amici have identified further policy concerns that would arise if earned fees 

were subject to disgorgement. First, it would mean that Illinois divorce lawyers pay 

themselves at their own risk. Illinois Rule of Professional Conduct 1.15(c) (eff. July 

1, 2015) allows attorneys to withdraw money from a client trust account as fees are 

earned and expenses incurred. If an attorney used this money as he or she was 

entitled to do, then he or she would have to have a backup plan—either sufficient 

cash reserves or a line of credit—if later ordered to comply with a disgorgement 

order. Attorneys practicing in other areas do not act at their own risk when they pay 

themselves fees they have rightfully earned. Second, the Act does not state what 

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defenses an attorney has to a disgorgement order. Here, Holwell told the trial court 

that she did not have the money, and no hearing was held on the matter. Rather, 

Christine’s attorney proceeded immediately with a citation to discover assets and 

froze Holwell’s bank accounts.2 These concerns are serious, especially given that 

the Act contemplates that proceedings relating to interim attorney fees and costs be 

conducted in summary fashion. 750 ILCS 5/501(c-1)(1) (West 2014). Third, most 

people’s wealth is typically concentrated in their homes and retirement accounts. 

The appellate court held that a party cannot be required to sell real estate to pay 

attorney fees (2017 IL App (3d) 150101, ¶ 20), and both the Third District in the 

present case and the First District in Altman held that retirement accounts cannot be 

considered when assessing a party’s ability to pay fees. Id. ¶ 19; Altman, 2016 IL 

App (1st) 143076, ¶¶ 22-25. This would mean that the parties are able to maintain 

their wealth, while attorneys must forfeit their own property to allow the parties to 

keep litigating. Fourth, construing section 501(c-1)(3) to mean that lawyers must 

forfeit their own property raises due process concerns.3 

¶ 31 We agree with the appellate court, amici, and Holwell that these concerns are 

substantial. Picture the case of a solo practitioner who earns $60,000 during the first 

year of representing a party in a contentious dissolution proceeding and applies 

those funds to overhead and operating expenses in the normal course of business. 

Holding that such funds are available for disgorgement would mean that the 

attorney could be ordered to pay all of that money in a lump sum to another party’s 

counsel years later, despite the fact that the funds belonged to the attorney and he or 

she had used them in a way that he or she had every legal right to do. And if the 

attorney does not comply, he or she can be held in contempt and jailed. The present 

case shows that such concerns are not merely theoretical. Holwell represented 

Andrew for eight months and then was granted leave to withdraw. During this 

2

The parties disagreed over whether a disgorgement order is an enforceable judgment, and the 

trial court ruled that it was. 3

Although this court has not had occasion to address the due process implications of section 

501(c-1)(3)’s disgorgement provisions, the appellate court upheld this section under facial 

substantive and procedural due process challenges in Kaufman, Litwin & Feinstein v. Edgar, 301 Ill. 

App. 3d 826, 835-37 (1998). That court cautioned, however, that its rejection of a facial challenge 

did not preclude a finding that, in certain circumstances, the statute was being unconstitutionally 

applied. Id. at 836. 

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period, Holwell earned over $50,000. The trial court later ordered her to turn over 

$40,952.61 to Christine’s counsel. Holwell did not turn the money over, and she 

explained to the court that she was not willfully disobeying its order but that she did 

not have the money. The court held her in indirect civil contempt, fined her, and 

sentenced her to jail. Moreover, Christine’s attorney immediately put a freeze on 

Holwell’s bank accounts and issued a citation to discover assets against her. If this 

was the way that the legislature intended the statute to work, and if this is the type 

of result that the legislature intended, then the legislature needs to say so explicitly 

in the statute. We are not going to construe the statute in a way that leads to absurd, 

unjust, or inconvenient results. See Solon, 236 Ill. 2d at 441. 

¶ 32 Christine points out that construing the statute the other way could also lead to 

inequities and absurd results. Christine points out that one spouse may engage in a 

“scorched earth” campaign of liquidating the marital assets and using the money to 

pay his or her attorney. While this is indeed a concern, Holwell points out that the 

disadvantaged spouse has some remedies available, including (1) filing the petition 

for interim attorney fees at the beginning of the case and (2) seeking a preliminary 

injunction or temporary restraining order under section 501(a)(2)(i) (750 ILCS 

5/501(a)(2)(i) (West 2014)) (allowing parties to seek a temporary restraining order 

or preliminary injunction “restraining any person from transferring, encumbering, 

concealing or otherwise disposing of any property except in the usual course of 

business or for the necessities of life”). By contrast, the Act provides no remedy for 

an attorney who is ordered to turn over money that the attorney no longer has. 

¶ 33 The other interpretation of “available” was that set forth by the Second District 

in Squire. The Second District defined “available” as meaning that the funds “exist 

somewhere.” Squire, 2015 IL App (2d) 150271, ¶ 22. It is impossible to know what 

Squire even meant with this definition. Altman assumed that the Second District 

meant that it does not matter whether the attorney has already spent the funds 

because, even then, the funds “exist somewhere.” See Altman, 2016 IL App (1st) 

143076, ¶ 33. Amici read Squire the same way and argue that it would be unfair to 

say that funds that “exist” in the hands of third parties they have been paid to are 

nevertheless “available” to Holwell to turn over to other attorneys. This is certainly 

a fair and reasonable reading of Squire, given that the Second District put no limit 

on the term “somewhere.” This definition would seem directly contrary to the plain 

meaning of “available,” as the funds would no longer be accessible, obtainable, or 

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immediately utilizable. In fairness to the Second District, however, it is possible 

that by “exist somewhere” it meant that the funds existed somewhere within the 

attorney’s control. But this is problematic too, as once the funds are deposited in the 

lawyer’s general account and comingled with fees from other cases, it would not be 

possible to say which funds are from which fees. The Squire court might also have 

meant that “exist somewhere” simply means that the lawyer has the financial 

ability to turn over the amount ordered disgorged, but this would impose a much 

greater burden on small firms and solo practitioners. Whatever Squire meant by 

“exist somewhere,” the court’s interpretation was driven largely by its belief that 

Earlywine settled this question. We have determined that Earlywine did not speak 

to the question before the court today, and thus Squire’s analysis is of limited 

relevance. We disagree with the Squire court’s interpretation, and we hereby 

overrule that decision. 

¶ 34 As we noted above, the appellate court in the present case modified Altman’s 

rule that earned fees are not subject to disgorgement. The Third District held that 

available funds are those funds that are being held for a client and that have not yet 

been earned by the attorney at the time the attorney receives notice of the petition 

for interim fees. 2017 IL App (3d) 150101, ¶ 25. The Third District adopted this 

test by analogy to section 510(a) of the Act (750 ILCS 5/510(a) (West 2014)), 

which provides that judgments for maintenance or support obligations may be 

modified only as to “installments accruing subsequent to due notice by the moving 

party of the filing of the motion for modification.” (Internal quotation marks 

omitted.) 2017 IL App (3d) 150101, ¶ 23. The policy reasons for the Third 

District’s holding are obvious: once an attorney receives notice of a fee petition, the 

attorney will have an incentive to earn his or her fees as quickly as possible, thus 

rendering them unavailable to be disgorged. Nevertheless, we must keep in mind 

that the primary goal of statutory construction is to ascertain and give effect to the 

intention of the legislature. Jackson, 2012 IL 111928, ¶ 48. It is impossible to 

believe that, if the legislature meant something as technical and specific as that 

“available funds” means “fees that have not been earned by an attorney prior to 

receiving due notice of a petition for interim attorney fees,” it would not have said 

this in the statute. Moreover, section 510(a) shows that when the legislature means 

something like this, it says so explicitly. We stated above that we believe that the 

legislature needs to take another look at this statute. If the Third District’s 

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interpretation was the legislature’s intent, then the legislature should amend the 

statute to make its intention clear. 

¶ 35 For all of the above reasons, we believe that Altman’s interpretation is correct. 

“[F]unds earned by and paid to a party’s lawyer in the normal course of 

representation for past services rendered are not ‘available funds’ within the 

meaning of section 501(c-1)(3).” Altman, 2016 IL App (1st) 143076, ¶ 36. This is a 

difficult question, and the policy concerns on both sides are substantial. It is not 

possible to construe the statute in such a way that will not lead to unfairness and 

inequitable results in some situations. We therefore proceed today with an 

abundance of caution. We believe that the legislature needs to take another look at 

section 501(c-1)(3) and make its intentions absolutely clear. Specifically, the 

legislature should define what it means by “available funds” and explain whether 

this includes fees that the attorney has already earned, whether attorneys who are 

no longer in the case may also be ordered to disgorge fees, and whether it is a 

defense to disgorgement that the attorney no longer has the money. Absent such an 

explanation from the legislature, we hold that fees that have been earned by an 

attorney are not subject to disgorgement. Here, there is no dispute that the amount 

that the trial court ordered disgorged from Holwell represented earned fees, and the 

parties stipulated that Holwell’s fees were reasonable and necessary. Accordingly, 

we affirm the appellate court’s judgment, which reversed both the disgorgement 

order and the finding of contempt. We likewise agree with the appellate court that 

there is not sufficient certainty and clarity in the record regarding the $13,000 in 

fees that had been paid to Boback but were being held by Holwell. 2017 IL App 

(3d) 150101, ¶ 34 n.1. The ownership of these funds was disputed, and we do not 

address them here. 

¶ 36 Affirmed. 

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