SECOND DIVISION August 12, 2014

No. 1-13-0465

In re MARRIAGE OF, ) Appeal from the ) Circuit Court of MURRAY PRATT, ) Cook County ) Respondent-Appellant, ) ) No. 04 D 12105 v. ) ) SHARON PRATT, ) Honorable ) Patricia Logue, Petitioner-Appellee. ) Judge Presiding.

PRESIDING JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Simon and Liu concurred in the judgment and opinion.

OPINION

¶1 Respondent, Murray Pratt, appeals the order of the circuit court modifying his child

support payments to $4,697 per month and awarding petitioner, Sharon Pratt, attorney fees in the

amount of $25,000. On appeal, Murray contends the trial court erred in modifying his child

support payments because (1) it made errors in calculating Murray's income for support

purposes; and (2) it failed to consider Sharon's obligation to support the children as well as the

financial impact of her new husband living in her household. Murray also contends that the

trial court's award of attorney fees to Sharon was an abuse of discretion because she failed to

prove her inability to pay for such fees. For the following reasons, we affirm. No. 1-13-0465

¶2 JURISDICTION

¶3 The trial court entered its order modifying child support payments pursuant to the

judgment for dissolution of marriage on February 10, 2012. Sharon filed her motion to

reconsider on March 9, 2012, and the trial court entered its amended order on July 16, 2012.

On August 15, 2012, Murray filed a motion to vacate or reconsider the amended order which the

trial court denied on January 15, 2013. On January 10, 2013, the trial court entered its order

awarding attorney fees to Sharon. Murray filed his notice of appeal on February 6, 2013.

Accordingly, this court has jurisdiction pursuant to Illinois Supreme Court Rules 301 and 303

governing appeals from final judgments entered below. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R.

303 (eff. May 30, 2008).

¶4 BACKGROUND

¶5 The parties were married on August 13, 1988. They had four children during the

marriage: Kevin, born October 10, 1991, Brian, born November 9, 1993, Melissa, born

November 13, 1996, and Heather, born September 11, 1998. The trial court entered a judgment

for the dissolution of marriage on February 2, 2007, into which the parties' marital settlement

agreement (MSA) was incorporated. The MSA provided that Murray would pay unallocated

maintenance and family support in the amount of $4,400 per month for 48 months, after which

time Sharon's right to receive unallocated maintenance and family support would terminate.

Additionally, Murray would pay Sharon 50 percent of the gross of any bonus he received minus

withholding for Medicare. The MSA further provided that "[a]ll unallocated maintenance and

family support payments shall terminate earlier and immediately in the event of SHARON's

death, remarriage, or co-habitation on a continuing resident conjugal basis and upon MURRAY's

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death." The MSA also contained a provision stating that "[a]ll restricted stock and stock

options awarded to Murray or Sharon as an award of his/her share of the marital estate *** shall

not be deemed income for child support purposes."

¶6 The parties agreed that Kevin, who has special needs, would live with Murray and the

other three children would live primarily with Sharon and stay with Murray one-third of the time.

The MSA set forth the amount of support which was based, in part, on Murray's anticipated

gross income from his employment at Kraft Foods Incorporated (Kraft) of $172,478 (which

includes base pay plus bonus), and Sharon's earned income from self-employment in 2006 of

$23,618. The parties also agreed to distribute property as follows: Murray received all benefits

of his employment with Kraft, his checking account at Glenview State Bank, his non-marital

retirement assets and 50% of his marital retirement assets including (1) 67.5 percent of his

401(k) Plan at Kraft; (2) 100 percent of his Vanguard IRA; (3) the remainder of his Kraft

Defined Benefit Pension Plan after Sharon received 50 percent of the marital portion; (4) 40

percent of the Altria stock options; (5) 40 percent of the Kraft restricted stock options; (6) his

2005 Toyota Sienna; and (7) the residence at 2508 Violet Boulevard in Glenview, Illinois.

¶7 Sharon received Glenview State Bank checking and money market accounts, and her

non-marital retirement assets and 50 percent of her marital retirement assets including (1) 100

percent of her IBM 401(k); (2) 100 percent of her IBM Retirement Plan; (3) 100 percent of her

Vanguard IRA account; (4) 32.5 percent of Murray's 401(k) Thrift Plan; (5) 50 percent of

Murray's accrued benefits in the Kraft Defined Benefit Pension; (6) 60 percent of the net

proceeds resulting from Murray's exercise of Altria and Kraft stock options; (7) the 1998 Toyota

Sienna; (8) the residence at 1417 Plymouth Lane in Glenview, Illinois; and (9) hotel and airline

mileage. Furthermore, since Sharon received 60 percent of the equity in the parties' real estate

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and automobiles, the MSA provided that she "shall pay to Murray the sum of $137,154.98 within

sixty (60) days of the entry of the Judgment for Dissolution of Marriage." In order to pay this

sum, Sharon directed Murray to sell her share of the restricted stock and stock options, which

amounted to $207,000. As a result of selling those shares, Murray's income increased in 2007

which put him in a higher tax bracket.

¶8 Each party agreed to take responsibility for his or her own debts and obligations from the

time of their separation on July 22, 2005. Each party also waived the right to seek contribution

for attorney fees and costs under sections 503(j) and 508(a) of the Illinois Marriage and

Dissolution of Marriage Act (Act) (750 ILCS 5/503(j); 508(a) (West 2010)).

¶9 On May 19, 2010, Sharon filed a motion to modify the judgment for dissolution of

marriage and for other relief. In her motion, Sharon requested that the trial court (1) set

guideline child support; (2) modify Murray's obligation to require him to pay all of the minor

children's uninsured health-related expenses; (3) modify the judgment to require Murray to pay

all of the curricular and extracurricular expenses, summer-related expenses, cell phone bills and

other expenses; and (4) provide any other relief deemed appropriate. Sharon also

acknowledged that she has been cohabitating with Kevin Count since March 1, 2010. They

subsequently married and he resides with Sharon and her minor children at the 1417 Plymouth

Lane residence in Glenview.

¶ 10 In November 2011, the trial court conducted a hearing and entered an order on February

10, 2012, modifying the judgment. The parties filed cross-motions to reconsider. The trial

court granted the motions to reconsider and at the hearing focused on Murray's income in 2011.

In its amended order of July 16, 2012, the trial court noted that the language of the parties' MSA

"obviates any need to show a substantial change of circumstances before the child support

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aspects of the Judgment may be modified." The MSA provided that upon termination of

maintenance "Murray shall pay to Sharon child support pursuant to the guidelines set forth in"

the Act. Nevertheless, the trial court found that a substantial change in circumstances existed

due to "Sharon's cohabitation and remarriage, changes in the parties' earnings since the MSA,

and significant increases in the children's expenses as they have grown up."

¶ 11 At the hearing, the trial court found that Murray's base salary for 2011 was $153,735 and

he received bonus income of $20,887. It also found that Murray received dividends from his

non-retirement Vanguard holdings and unvested restricted stock from Kraft in the amount of

$918 for the first quarter of 2011. The trial court then multiplied the amount by four to estimate

the total for the year ($3,672). It further found that Murray took a one-time IRA distribution of

$5,000 in the first quarter of 2011 and "contributed heavily to his retirement accounts since the

divorce." The trial court noted that as of July 1, 2010, his financial disclosure statement

showed more than $1 million on deposit in retirement funds. Murray also "converted a

substantial portion of a traditional IRA into a Roth IRA in 2010, even though doing so increased

his income taxes by more than $70,000." Finally, the trial court found that certain restricted

stock vested in 2011 and Murray exercised five sets of stock options that were awarded in prior

years, all of which resulted in income to him.

¶ 12 Sharon's employment since the divorce "has been off and on" and as of November 2011,

Sharon worked a temporary job with Wells Fargo at $24 per hour. However, Sharon was

training for a full-time, commission-based sales position. Her new husband was working to

develop his optical business which he financed with the help of Sharon, who took a six-figure

withdrawal from her equity line leaving her around $16,000. This business had not yet turned a

profit at the time of the hearing.

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¶ 13 Sharon also testified that although her new husband now resides with her and the

children, her expenses in the home have not increased as a result since Count contributes to food

expenses and pays for his own car, clothes, grooming, and insurance. She stated that thus far

she has paid for all of Brian's tuition, books, fees, lunches, cell phone, football and camp

expenses, and other sports activities. She has also paid Melissa's tuition, books, fees, and fees

and costs associated with extracurricular activities including dance, theater, and baseball.

Although Murray contributes to Heather's soccer expenses, Sharon has paid for her volleyball

activities. Sharon also testified that she pays for all car insurance, gas to and from school, and

parking. She stated that in 2011 the children's educational expenses totaled more than $6,100

and Murray has reimbursed $500-$600 of that amount. Melissa is also in need of orthodontic

work.

¶ 14 After all of the evidence was presented, the trial court determined that Murray's total

gross income for 2011 was $254,267 and after running a FinPlan analysis, it found that his net

income for child support purposes was $176,146. Using the applicable guideline support

percentages contained in the Act (32 percent of Murray's net income), the trial court ordered

support for the three minor children of $4,647 per month. After Brian's graduation, the amount

reduces to $4,110 per month and after Melissa's emancipation, it further reduces to $2,936 per

month until Heather's emancipation.

¶ 15 Regarding payment for the children's activities, the trial court found that the parties met

with parenting coordinators and/or mediators but could not resolve the issue. The trial court

modified the judgment to define "curricular", "extracurricular" and "summer camp" as used in

the MSA. It also removed the original paragraph 7.8 dealing with the children's activities and,

relevant to this appeal, entered the following text:

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"b. Murray shall pay $2500 by May 1st each year to Sharon as his share of the cost of

their daughters' summer activities (this amount includes any camp costs). Sharon

will pay any additional summer activity costs. After Melissa emancipates, Murray's

contribution will be reduced to $1250 for Heather's summer activities.

c. Murray shall additionally pay Sharon the flat sum of $200/month year-round toward

the costs of their minor daughters' school-year activities (other than those covered by

subparagraphs d, e, or f). Sharon will pay any additional costs. When Melissa

emancipates, Murray's monthly payment will be reduced to $100/month. Murray's

last monthly payment will be due the month Heather emancipates."

The trial court further ordered that the parties split 50/50 the costs of required school fees, books,

supplies, uniforms or equipment, and the costs of graduation, senior prom and other

school-related celebrations. It also ordered Murray to contribute 80 percent of the orthodontia

expenses unreimbursed by insurance "in recognition of his larger income."

¶ 16 Finally, the trial court ordered that pursuant to the MSA Murray's obligation to pay

unallocated support and maintenance terminated on March 1, 2010, due to Sharon's cohabitation.

It ordered Sharon to reimburse Murray $22,500 within one year for the gross bonus payment

made to her in 2010. The trial court also found that "[e]ffective May 19, 2010, Murray shall

owe Sharon the difference between the $4400 in child support he already has paid monthly and

any additional amounts due under this order. The $22,500 amount Sharon owes Murray shall

be reduced by any additional amounts owing under this paragraph for child support." On

August 15, 2012, Murray filed a motion to vacate or reconsider the court's July 16, 2012, order.

¶ 17 On August 21, 2012, Sharon filed an amended motion for contribution to attorney's fees

and costs. In support of her motion, Sharon alleged that she incurred substantial fees and costs

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due to Murray's actions throughout the discovery process, namely his failure to produce records

of the children's accounts and his failure to update his financial disclosure statement. Sharon

further argued that a great disparity in income and assets exists between her and Murray, and this

factor is "critical" in determining whether Murray must contribute to her attorney fees and costs.

¶ 18 At the hearing on Sharon's fee petition, the evidence showed that in 2011 Murray's gross

income was $254,267 and Sharon's gross income was $55,000. At the time of the hearing,

Sharon's fees totaled $107,677 of which she still owed $34,840. Murray had paid his attorneys

$86,000. Sharon testified that she had liquid assets around $11,000 and retirement and Roth

IRA funds totaling $837,000. She acknowledged that she loaned her new husband money from

her equity line to start a business, but stated that at the time she did not know she would be in

litigation with Murray for three more years. Murray testified that he contributed more than

$20,000 to his retirement funds in 2012 and received options from Kraft totaling about $60,000

pre-tax if he exercised those options. At the time of the hearing he had $1,695,654 in

retirement and Roth IRA accounts. The evidence also showed that Murray's monthly expenses

totaled $19,000 per month and Sharon's expenses amounted to just over $11,000 per month.

¶ 19 On January 10, 2013, the trial court entered its order on Sharon's fee petition. It found

that "Sharon is unable to pay her full attorneys' fees but is able to pay more than she has to date."

It also found that Murray "has the ability to pay additional fees and costs" due to his "much

larger income, extensive transfers of disposable income into retirement accounts and overstated

expenses of over $18,000/month when the full-time household is smaller than Sharon's." The

trial court ordered Murray to contribute $25,000 to Sharon's fees and costs, pursuant to section

508(a) of the Act. 750 ILCS 5/508(a) (West 2010). The trial court denied Sharon's request for

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a larger contribution from Murray, "due to [Sharon's] own resources and spending that is subject

to future reduction to pay fees without undue hardship."

¶ 20 On January 15, 2013, the trial court denied Murray's motion to vacate or reconsider its

July 16, 2012, order. On February 6, 2013, Murray filed his timely notice of appeal from both

the July 16, 2012, order and the January 10, 2013, order on Sharon's fee petition.

¶ 21 ANALYSIS

¶ 22 Murray contends on appeal that the trial court erred in calculating his income for

purposes of child support. "The findings of the trial court as to net income and the award of

child support are within its sound discretion and will not be disturbed on appeal absent an abuse

of discretion." In re Marriage of Breitenfeldt,

(2005). The trial

court abuses its discretion when no reasonable person would take its view. In re Marriage of

Eberhardt,

(2008).

¶ 23 First, Murray contends that the trial court erred when it failed to consider the financial

resources of Sharon's new husband, Kevin Count. Murray further complains that the child

support he pays to Sharon is being used in part to support Count. There is no indication in the

record that Murray raised these issues before the trial court during the hearing on Sharon's

petition to modify, nor did he include them in his motion to vacate or reconsider the court's July

16, 2012, order. Arguments raised for the first time on appeal are waived.

.

Nonetheless, Sharon testified that although he lives in the residence with her and the children,

Count is responsible for his own expenses and no evidence was presented that Sharon and Count

comingled their assets or financial resources. See In re Marriage of Drysch,

(2000) (although the court acknowledged that a new spouse has no legal obligation

to support his stepchildren, where petitioner and her new spouse "pooled their income to pay

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their family expenses" it may be necessary to consider the new spouse's income when

determining petitioner's financial resources for purposes of child support.) Again, no evidence

was presented of commingling or pooling.

¶ 24 Murray next contends that the trial court erred in calculating his income for child support

purposes. First, he argues that the trial court looked solely at his 2011 income "which included

disputed items which significantly increased" his income for that year. Instead, the trial court

should have looked at his 2010 income "and used that calculation to set guidelines support at

least for 2010." Murray does not cite to any cases that support his argument, in violation of

Illinois Supreme Court Rule 341(h)(7) (arguments made must be accompanied by citations to

authority and to the relevant pages in the record, or they are waived). Ill. S. Ct. R. 341(h)(7)

(eff. Feb. 6, 2013). In any event, our supreme court has held that the relevant focus for

determining income under section 505 of the Act "is the parent's economic situation at the time

the child support calculations are made by the court." In re Marriage of Rogers,

(2004). Since the trial court held the hearing in 2011, it properly focused on Murray's

income for that year in determining his income for child support purposes.

¶ 25 Murray next argues that the trial court improperly included $5,000 that he converted from

a traditional IRA to a Roth IRA as income when he received no funds from the conversion.

Murray does not indicate in the record where the trial court considered this evidence, or its

reasoning, in violation of Rule 341(h)(7). He also fails to cite to any authority stating that a

conversion of funds from an IRA to a Roth IRA does not constitute income for child support

purposes. He simply argues that he did not receive funds and thus received no benefit.

However, as Sharon points out, the conversion to a Roth IRA is a taxable event indicating some

type of benefit or income to Murray. Section 505(a)(3) defines net income for child support

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purposes as "the total of all income from all sources." 750 ILCS 5/505(a)(3) (West 2010).

The trial court did not abuse its discretion when it included the $5,000 as income.

¶ 26 Third, Murray contends that the trial court erred in estimating his annual income from

dividends when it took the dividends earned in the first quarter of 2011 and multiplied that

amount by four for a total of $3,672. Murray argues that he actually received only $1,212 in

total dividends in 2011. The exact amount of future dividend income may be subject to change

and is uncertain. However, in determining income for child support purposes, the trial court has

the authority to compel a party to pay "at a level commensurate with [his] earning potential." In

re Marriage of Sweet,

(2000). If present income is uncertain, the trial

court may impute income to the payor.

When the trial court made its calculations

regarding Murray's net income for 2011, it had only the first quarter dividend earnings of $918.

By estimating that Murray's dividend income for 2011 would be $918 multiplied by four, or

$3,672, the trial court acted within its authority to estimate a party's income for child support

purposes. Although Murray did not actually earn as much in dividend income in 2011, he could

very well earn more than that amount in another year.

¶ 27 Murray also contends that the inclusion of this dividend income was erroneous because it

represented a one-time payment to him. The mutual funds and restricted stock which paid the

dividends were liquidated in January 2012, and he will never again earn dividend income from

these sources. A one-time payment can be considered income, although the "nonrecurring

nature" of the payment may be a factor in how the trial court allocates the payment. In re

Marriage of Mayfield,

. When a party's net income consists of a

nonrecurring payment, the trial court may consider a deviation from the Act's support guidelines

is necessary. Id. ¶ 25. However, it is up to the payor to request the deviation. Id.

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¶ 28 Murray argues that he should not have had to request a deviation from guidelines support

without notice that he was required to make such a request. He contends that no party asked for

a deviation and the trial "court cannot sua sponte adjudicate an issue." We are not persuaded by

Murray's argument. Section 505(a) of the Act sets forth guidelines for the minimum amount of

support (as a percentage of the supporting party's net income) according to the number of

children involved. 750 ILCS 5/505(a) (West 2012). The guidelines create a rebuttable

presumption that child support conforming to the guidelines is appropriate. In re Marriage of

Adams,

(2004). This presumption also applies in modification

proceedings. People ex rel. Hines v. Hines,

(1992). If a deviation is

sought, the party seeking the deviation bears the burden of showing a compelling reason to

justify the deviation. Roper v. Johns,

(2004). The trial court here

set support at the guideline amount, which is presumed appropriate. If Murray disagreed with

the guideline amount, for any reason, he needed to request a deviation and prove why a deviation

was required. There is no language in the Act stating that he must be notified of his

responsibility to seek a deviation from the guidelines. There is no indication in the record that

Murray requested a deviation from the guidelines. The trial court did not abuse its discretion in

estimating Murray's 2011 dividend earnings.

¶ 29 Murray next contends that the trial court improperly converted marital property awarded

to him in the dissolution judgment to income for child support purposes. Specifically, Murray

challenges the inclusion of $58,864.45 from stock option sales in 2011, in determining his

income. He argues that the parties' MSA explicitly prohibits such earnings from income for

child support purposes. Furthermore, he alleges that the trial court ignored Sharon's earnings

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from such sources. There is no evidence in the record that the trial court did not consider such

income for Sharon, or even that she had such income, in 2011.

¶ 30 Murray's claim that the MSA contains a provision that "[a]ll restricted stock and stock

options awarded to Murray or Sharon as an award of his/her share of the marital estate *** shall

not be deemed income for child support purposes" is true. This provision precluding certain

sources of income from consideration for child support purposes is against Illinois public policy

and is thus void. We shall not enforce it. Section 502(f) of the Act ensures that child support

is always modifiable upon a showing of substantial change in circumstances. 750 ILCS

5/502(f) (West 2012); see also In re Marriage of Rife,

(2007).

Although parties may agree to the terms relating to their children's custody, support, and

visitation, they may not circumvent the trial court's authority to determine whether in the future

the best interests of the children require a modification of those terms.

"[T]he primary

objective of the court is to provide adequate support for" the children. In re Marriage of Hart,

(1990). The trial court here acted within its authority when it

modified that provision and included earnings from Murray's sale of restricted stock options as

income for child support purposes.

¶ 31 Murray contends, however, that it is fundamentally unfair to include this income because

he was awarded the restricted stock options as marital property in the dissolution judgment and,

by receiving a portion of the income from the sale, Sharon is "double dipping." He argues that

Sharon received her portion of the stocks as marital property and now she is receiving as child

support a portion of Murray's income from his share. This is not "double dipping." The trial

court can consider marital property as income for child support purposes, even if the income

comes from vested stock options awarded as marital property to one of the parties. In re

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Marriage of Colangelo,

(2005); see also In re Marriage of Klomps,

(1997).

¶ 32 Murray disagrees that Colangelo applies, arguing that unlike the stock options at issue

here, the deferred compensation in Colangelo was "not valued, not listed in the agreement, not

separately split between the parties, nor separately saleable." We note that Murray does not

support this argument with any citations to authority. Nonetheless, the court in Colangelo did

not base its determination on the type of deferred compensation at issue before it, but on the fact

that deferred compensation and retirement benefits are income and they are not listed in the Act

as an applicable deduction from income. Colangelo,

. The trial court

acted correctly and did not abuse its discretion in finding that Murray's earnings from restricted

stock option sales in 2011 constituted income for child support purposes.

¶ 33 Murray also challenges the trial court's determination making the modified child support

payments retroactive to March 2010, even though "[he] had not yet received this income in

2010." First, we note that Murray does not cite to supporting authority for his argument in

violation of Rule 341(h)(7). In any event, no error occurred here. The trial court is authorized

to order retroactive payments pursuant to section 510(a) of the Act. In re Marriage of

Hawking,

(1992). "[T]he earliest point to which retroactive

modification of maintenance or support payments may be ordered is the date on which the

nonmoving party receives 'due notice' from the moving party of the filing of the modification

petition."

The record indicates that Murray received notice of Sharon's petition to modify

on May 19, 2010. The trial court's amended order made the modified payments retroactive to

May 19, 2010, not March of 2010. Therefore, the trial court acted correctly and did not abuse

its discretion in making the modified payments retroactive to May 19, 2010.

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¶ 34 Finally, Murray contends that the trial court's award of $2,500 per year for the children's

summer activities and $200 per month for activities throughout the year improperly constitute a

windfall to Sharon. He complains that he is paying more than Sharon actually spends on the

activities and there is no provision in the order for reimbursement for moneys not spent.

Murray also challenges the trial court's order that he pay 80 percent of the orthodontia expenses

unreimbursed by insurance. Murray does not cite any authority to support his contentions in

violation of Rule 341(h)(7) and thus has waived review of this issue. Rosier v. Cascade

Mountain, Inc.,

(2006). However, even on the merits, he does not

prevail. The trial court noted the contentious relationship between Murray and Sharon and

determined that it was in the best interest of the children to resolve the issues relating to the

children's activities.

¶ 35 In determining support payments, the trial court may consider the children's standard of

living had the marriage not been dissolved even though this level of support may extend beyond

base financial need. In re Marriage of Bussey,

(1985). Participation in

these activities would have been the norm for Murray's children had he and Sharon not divorced.

Murray protests that the amount he must pay is more than what was actually expended in a given

year; however, in the future the expenditures may amount to more than his required payments.

As to its determination that he pay 80 percent of the orthodontia expenses unreimbursed by

insurance "in recognition of his larger income," the trial court did not err. Although child

support is the obligation of both parents, if one parent earns a disproportionately greater income

than the other he or she should bear a larger share of the support. In re Marriage of Singletary,

(1997). The evidence showed that in 2011 Murray's gross income was

$254,267 and Sharon's gross income was $55,000. The trial court did not abuse its discretion.

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¶ 36 Murray next contends that the trial court erred in awarding Sharon attorney fees and costs

because she has not shown an inability to pay. The trial court may award attorney fees

associated with proceedings under the Act if one party lacks financial resources and the other

party has the ability to pay. See 750 ILCS 5/508 (West 2012). However, the party seeking

contribution must establish an inability to pay and the other party's ability to do so. In re

Marriage of Schneider,

(2005). "Financial inability exists where requiring

payment of fees would strip that party of her means of support or undermine her financial

stability."

Since the "trial court is in a superior position to assess the credibility of

witnesses and weigh the evidence, a reviewing court will not overturn the trial court's findings

merely because the reviewing court may have reached a different decision." In re April C.,

(2001). A reviewing court will reverse the trial court's determination to

award or deny fees only if it abused its discretion. Schneider,

.

¶ 37 First, we note that under the MSA, Murray and Sharon agreed to pay for their own

attorney fees and costs. Courts generally uphold this type of provision if the parties entered

into the agreement freely and the agreement is approved by the trial court. See In re Marriage

of Kessler,

(1982). However, the court in Kessler indicated that if a

petitioner showed an inability to pay, the effect of such a provision would render it void as

against public policy.

¶ 38 Here, the evidence showed that in 2011 Murray's gross income was $254,267 and

Sharon's gross income was $55,000. At the time of the hearing, Sharon's fees totaled $107,677

of which she still owed $34,840, and Murray had paid his attorneys $86,000. Sharon had liquid

assets around $11,000 and retirement and Roth IRA funds totaling $837,000. Murray testified

that he contributed more than $20,000 to his retirement funds in 2012 and received options from

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Kraft totaling about $60,000 pre-tax if he exercised those options. At the time of the hearing he

had $1,695,654 in retirement and Roth IRA accounts. The evidence also showed that Murray's

monthly expenses totaled $19,000 per month and Sharon's expenses amounted to just over

$11,000 per month.

¶ 39 The trial court found that "Sharon is unable to pay her full attorneys' fees but is able to

pay more than she has to date." It also found that Murray "has the ability to pay additional fees

and costs" due to his "much larger income, extensive transfers of disposable income into

retirement accounts and overstated expenses of over $18,000/month when the full-time

household is smaller than Sharon's." The trial court ordered Murray to contribute $25,000 to

Sharon's fees and costs but denied Sharon's request for a larger contribution from Murray, "due

to [Sharon's] own resources and spending that is subject to future reduction to pay fees without

undue hardship." The trial court did not abuse its discretion in awarding Sharon $25,000 in fees

and costs.

¶ 40 For the foregoing reasons, the judgment of the circuit court is affirmed.

¶ 41 Affirmed.

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