Nos. 1-13-0733, 1-13-1131, 1-14-1795, & 1-14-2118 (cons.)

THIRD DIVISION June 30, 2015

______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________

In re Marriage of ) Appeal from the Circuit Court ) of Cook County. FENG SHEN, ) ) Petitioner-Appellee and Cross-Appellant, ) No. 09 D 2957 ) v. ) ) The Honorable JANET SHEN, ) Jeanne M. Reynolds, ) Judge Presiding. Respondent-Appellant and Cross-Appellee. ) ______________________________________________________________________________

PRESIDING JUSTICE PUCINSKI delivered the judgment of the court, with opinion. Justices Lavin and Hyman concurred in the judgment and opinion.

OPINION

¶1 This marriage dissolution appeal was brought by way of numerous appeals, which we

consolidated, and numerous issues on appeal. For clarity, we summarize our holdings as follows.

¶2 First, the circuit court's provision regarding maintenance in the dissolution judgment that

the wife's maintenance terminate on her sixty-sixth birthday under the Illinois Marriage and

Dissolution of Marriage Act (Act) (750 ILCS 5/101 et seq. (West 2012)) was an abuse of

discretion where there was no evidence in the record of the dissolution proceeding supporting the

court's decision to award a limited duration of maintenance to the wife only up to the retirement 1-13-0733, 1-13-1131, 1-13-1342, 1-14-1795 & 1-14-2118 cons.

age of 66, and the evidence instead established that the wife would not be able to support herself

and would require permanent maintenance. We reverse the maintenance order in the dissolution

judgment and order that the circuit court amend the provision in the dissolution judgment

awarding maintenance to the wife to award her permanent maintenance, with the termination

factors under section 510(c) of the Act (750 ILCS 5/510(c) (West 2012)), and including the

court's provision for review of the maintenance award if the wife attains an income of at least

$45,000.

¶3 Second, the circuit court erred when it entered an order on October 12, 2011 that ordered

the husband's 401(k) retirement account liquidated to, in part, satisfy interim attorney fees in

contravention of In re Marriage of Radzik,

, where the court held that

retirement accounts are exempt under section 12-1006 of the Code of Civil Procedure (735 ILCS

5/12-1006 (West 2010)). We therefore must reverse this order, entered on October 12, 2011. As

the wife sought reversal of this order but did not indicate what relief she sought concerning the

use of the retirement funds to pay the attorneys, we remand for further proceedings and relief on

remand.

¶4 Third, the court did not use the wrong legal standard in deciding to deny the wife's

request for contribution to attorneys fees, as the Illinois Supreme Court continues to espouse the

rule from In re Marriage of Schneider,

(2005), that the spouse petitioning

for contribution to attorney fees must show an inability to pay and the ability of the other spouse

to pay, and this was the standard followed by the court. The evidence supported the husband also

did not have the ability to pay fees and so the court's denial of the wife's request for contribution

was not an abuse of discretion. We affirm the portion of the dissolution judgment denying the

wife contribution to her attorney fees.

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¶5 Fourth, we reject the wife's argument that the court's order requiring Janet to pay half of

the child representative's fees was error because it was a "de facto" order that she pay the fees

from her awarded half of the husband's retirement account because that was the only asset of

value she was awarded in the judgment. The court did not in fact order payment of the child

representative's fees from the retirement account funds but merely ordered that each party pay

half of the fees, and the wife provided no support for this contention. We affirm the portion of

the dissolution judgment requiring the wife to pay half of the child representative's fees.

¶6 Fifth, the provision in the dissolution judgment ordering that the parties' Florida time

share be sold merely indicated priority of payment of the proceeds to the child representative

first, and did not order the sale of the time share for the specific purpose of paying the child

representative's fees. Moreover, section 506(b) of the Act (750 ILCS 5/506(b) (West 2010)),

governing child representative's fees, serves a different purpose than the general attorney fees

provision of section 508 (750 ILCS 5/508 (West 2010)) of the Act and, unlike section 508,

allows payment from "any" source, including from "the marital estate." We affirm the provision

in the dissolution judgment ordering that the parties' Florida time share be sold.

¶7 Sixth, because the issue of the trial court's award of the marital home to the husband may

be moot due to foreclosure, and the wife did not provide any citations to the record or any facts

responding to the issue of foreclosure, we cannot adequately address the wife's appeal of the

portion of the judgment awarding the marital home to the husband. We decline the wife's request

for us to exercise our power pursuant to Illinois Supreme Court Rule 366(a)(5) (eff. Feb. 1,

1994). Rather, since the case is being remanded, the wife has an opportunity to file a petition

pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2010)),

with an affidavit and supporting facts, for determination by the circuit court.

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¶8 Seventh, the trial court did not abuse its discretion in denying the husband's motion to

modify maintenance based on his alleged change in employment status. The court did not err in

its consideration of statutory factors where consideration of whether a change in employment

status was made in bad faith is required by section 510(a-5)(1) of the Act. 750 ILCS 5/510(a-

5)(1) (West 2010). The court also was well within its discretion under statute to consider any

other factor it deemed equitable and just under section 510(a-5)(9) of the Act (750 ILCS 5/510(a-

5)(9) (West 2010)), including the impact the husband's bad-faith change in his employment

status had on the minor child's health care costs and to consider the husband's pattern of not

paying support as part of the facts supporting its determination of bad faith. The manifest weight

of the evidence also supported the trial court's decision not to credit the husband's treating

physician's testimony of a lower back condition, where there was no objective evidence of such a

condition other than the husband's own self-reporting of symptoms. We affirm the trial court's

order denying the husband's petition to modify maintenance.

¶9 BACKGROUND

¶ 10 The parties, Feng Shen and Janet Shen, were married on July 21, 1990. The parties had

three children: Xiuli Shen, born March 27, 1991; Matthew Shen, born February 7, 1992; and

Andrew Shen, born March 3, 1996. Feng filed a petition for dissolution of the marriage on April

1, 2009. As of the date of the judgment for dissolution of marriage, Xiuli was 21 years old;

Matthew was 20 years old; and Andrew was 16 years old and the only minor child subject to

statutory child custody and support provisions.

¶ 11 On April 14, 2009, Janet filed a petition for temporary support and a petition for interim

attorney fees. Janet's petition for temporary support sought child support and contribution from

Feng for expenses related to the marital residence. On April 21, 2009, the case was transferred to

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district 2. On May 19, 2009, Feng filed his response to Janet's petition for temporary support and

petition for interim attorney fees. After holding a hearing, the court entered a temporary support

enter setting Feng's unallocated support at $1,260 per month. The portion petitioning for Feng's

contribution to the home expenses was entered and continued. After a second hearing, Feng was

ordered to pay $1,000 per month toward the mortgage and equity line on the marital residence

and was ordered to pay $1,500 to Janet's attorney for interim fees.

¶ 12 On May 3, 2010, the court, on its own motion, appointed a child's representative for the

parties' minor son Andrew. There were numerous issues presented regarding Andrew, including

Andrew's history of anxiety and other medical issues resulting in several hospitalizations, as well

as excessive school absenteeism since the eighth grade, which resulted in beginning a home-

schooling program, despite a January 12, 2010 court order to enroll Andrew in public school.

Janet and Feng were ordered to pay Andrew's representative $1,500 each for his initial retainer.

¶ 13 Prior to trial, Janet filed for bankruptcy and retained new counsel. The parties agreed to

waive the stay of the divorce proceedings.

¶ 14 A trial was held on July 14, 2010, through July 15, 2010, September 7, 2010, October 21,

2010, October 18, 2012, October 19, 2012, and October 23, 2012. Feng testified that in 2008 the

parties' combined income was about $105,000, approximately $70,000 earned by Feng and

$36,000 earned by Janet. Feng testified regarding his stock trading before and during the

marriage, as well as other financial matters, including the values of various accounts, including

his 401(k) account through his employer, Trader Joe's, where he worked as a manager. Feng also

testified regarding various debts owed, including promissory notes to his father and sister for

money Feng had borrowed to cover his expenses and the mortgage and home equity line of credit

on the marital residence, and various credit card debts. Feng further testified regarding the

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parties' minor child Andrew's education during 2008, his home-schooling during 2008-09,

Andrew's psychological issues, Feng's general relationship with Andrew, and his visitation with

the Andrew since the parties' separation. On cross-examination, Feng explained that he left the

marital residence on January 3, 2009, after an incident between him and Janet during which he

grabbed Janet's arm. Certain stipulations were also entered into the record.

¶ 15 Janet called Anna May Schadeck, who testified regarding her observations of Janet as a

parent and Janet's relationship with Andrew, as well as her knowledge of Andrew's and

Matthew's schooling and behavioral problems.

¶ 16 Janet also testified regarding her employment, the marital residence and her payments of

the mortgages, including the mortgage and equity line of credit, her credit card debt, Feng's

trading and investing, trips taken by Feng, her personal loans, her debts related to her bankruptcy

proceedings, and her attorney fees. Janet testified about her role in Matthew's schooling and

Andrew's home-schooling, the children's medical bills, social life, counseling, and Feng's

relationship with them. Janet also testified about the parties' retirement accounts. Janet further

testified that Feng had been violent with her and with Andrew in the past.

¶ 17 The child's representative for Andrew asked Janet about Andrew's grades and Matthew's

education, behavior and schooling, and counseling for Andrew. The representative also

questioned Janet about the bankruptcy proceedings as related to her expenses and income and

expenses. The child's representative further questioned Janet regarding incidents where police

were called to the marital residence.

¶ 18 Feng's counsel cross-examined Janet regarding her anticipated income and expenses after

her bankruptcy, as well as the various incidents at the marital residence during which the police

were called.

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¶ 19 After a short recess on October 21, 2010, the court determined that the proceedings

should be stayed pending Janet's bankruptcy case, despite the parties' agreement to continue with

the proceedings. On May 19, 2011, the case was further stayed because Feng also filed for

bankruptcy.

¶ 20 On October 12, 2011, the court entered an order that stated:

"For purposes of paying for the anticipated counseling [for Andrew] and interim

attorney's fees, the Petitioner and the Respondent shall enter into a Qualified Domestic

Relations Order, that shall distribute certain 401(k) plan funds that the Petitioner has

acquired with Trader Joe's Company ***. *** [T]he amount of Sixty Thousand and

xx/100 ($60,000.00) Dollars shall be paid to the Respondent as an early withdrawal. The

funds, after setting aside money for the anticipated taxes *** shall be escrowed with

Petitioner's [Feng's] Attorney's IOLTA account for the payment of counseling fees and

the interim attorney's fees ***."

¶ 21 The October 12, 2011 order further provided that after the retirement funds are received

into Feng's attorney's "IOLTA" account, the disbursements were as follows: $9,000 to the child's

representative; $8,000 to Janet's attorney; and $19,750 to Feng's attorney. The remaining funds

were to be placed in escrow with Feng's attorney to pay taxes on the early withdrawal from the

401(k).

¶ 22 Pursuant to the court's October 12, 2011, Janet and Feng entered into a separate stipulated

qualified domestic relations order in accordance with the terms of the court's October 12, 2011

order. This order was entered on November 10, 2011 and stipulated only to the release of the

funds in the Trader Joe's 401(k). Both Janet and Feng, as well as both of their attorneys, signed

this stipulated qualified domestic relations order.

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¶ 23 On January 12, 2012, after an extensive hearing on Andrew's medical conditions, which

included a diagnosis of depression and agoraphobia, the court awarded Feng exclusive

possession of the marital residence and temporary custody of Andrew and ordered that Janet

vacate the residence. Janet and Matthew were ordered to vacate the marital residence within

seven days. Feng's child support obligation and payment to Janet for the mortgage were

terminated. Feng was ordered to pay the taxes and utilities on the martial residence. The order

further provided that "the parties with their respective counsel shall determine what course of

action should be taken as to the mortgages on the marital residence."

¶ 24 On February 7, 2012, Janet filed a petition for temporary maintenance, alleging that she

was unemployed and that she was receiving unemployment benefits of approximately $1,052 per

month. Janet further alleged that her unemployment benefits would decrease as a result of the

January 12, 2012 order granting Feng temporary custody of Andrew. Janet alleged that because

of her limited income, she could not obtain housing to rent. Janet requested $2,500 per month in

maintenance. On February 7, 2012, Janet also filed a petition for interim attorney fees: $4,593.50

for costs due; and $5,000 in prospective fees.

¶ 25 After the parties' bankruptcy cases concluded, trial recommenced on October 18, 2012.

Because Janet could not pay for an attorney, she appeared pro se on the October 19 and October

19, 2012 trial dates. On October 19, 2012, an order was entered quashing several subpoenas

served by Janet. Transcripts of the proceedings from October 18, 2012 and October 19, 2012 are

not part of the record on appeal because no court reporter was present.

¶ 26 On October 23, 2012, the court conducted an in camera examination of Andrew. The

same date, the court entered an order requiring the parties to exchange proof of all unpaid

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medical bills and to submit all bills and debts to the court. Ruling was set for December 21,

2012.

¶ 27 On December 11, 2012, Feng filed a petition for contribution to fees and costs from Janet

pursuant to section 503(j) of the Act (750 ILCS 5/503(j) (West 2012)). Feng's petition requested

that Janet pay $20,390.40 to Feng's attorney for unpaid fees or, alternatively, that Janet pay half

of the aggregate ultimately determined final attorneys fees, expert's fees, and costs incurred by

Feng. Feng's petition was denied on January 29, 2013. Feng does not appeal this order.

¶ 28 The court entered judgment for dissolution on January 29, 2013. The court found that

Janet had worked for three years as a billing administrator earning approximately $30,000 per

year and had worked part-time but was primarily the family's homemaker and that Feng's income

was the primary source of support for the family. The court found that Janet had been

unemployed since November 2011 and had no income as of the dates of trial in 2012. As of May

2012 Janet was homeless and living in her car or hotels. Janet's testimony was that her monthly

expenses were in excess of $2,630 and consisted of: $1,200 for hotel stays; $250 per week for

food; $60 four times a month for gas; $70 for car insurance; $20 for medical co-pays; and $100

for clothes for Andrew. Janet stated she was supported by personal loans and assistance from her

friends.

¶ 29 The court found that Feng earned a gross income of $79,192 for 2011 and a gross income

of $65,052 for the year 2012 through October 7, 2012. Feng's updated financial disclosures dated

February 1, 2012 showed a net income of $4,650.96 and expenses of $4,745, resulting in a

negative monthly cash flow. The monthly mortgage expense of $2,260 was not being paid as of

October 2012.

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¶ 30 The court found that "since May 2012, JANET has been homeless and living in her car or

hotels" and that she was living on personal loans and help from her friends. The court found that

Janet's future employment was "uncertain." The court also found that, after being ordered to keep

job diaries, Janet had kept some but not all required job diaries and that Janet admitted that she

had not actively sought employment.

¶ 31 The court awarded Janet maintenance in the amount of $1,300 per month, "until the first

to occur of [Janet's] death, remarriage, co-habitation with another person on a continuing resident

conjugal basis or her sixty-sixth birthday, the age upon which she is eligible for full social

security benefits."

¶ 32 The judgment granted custody of Andrew to both parties, with Feng having residential

custody and final decision-making authority over education and medical issues. The court found

that the parties were in agreement that Andrew should stay in the marital residence and the

current school district for the sake of Andrew's emotional stability.

¶ 33 The court reserved the issue of child support until Janet was employed and ordered Janet

to maintain a job diary.

¶ 34 The court awarded Feng exclusive ownership of the marital residence. Feng was made

solely responsible for payment of the mortgages, utilities, taxes, and insurance on the property.

¶ 35 The court awarded each party half of Feng's Trader Joe's 401(k) retirement plan, valued

at $80,429.81 as of September 30, 2012. Feng was ordered to ensure that a qualified domestic

relations order was entered within 60 days of the judgment for dissolution to properly transfer

Janet's share to her.

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¶ 36 The court ordered that the parties' time share in Florida "shall be listed for immediate sale

and sold" and that "[t]he sales proceeds shall first be applied to the Child Representative fees and

thereafter to the parties' nonreimbursed medical expenses for the children."

¶ 37 Regarding the child representative's fees, the court further ordered:

"The balance of the escrow and any proceeds from the parties Florida time share shall be

paid to the Child Representative toward his fees. Upon the final submission of the Child

Representative's fee petition, each party will be equally or 50% each responsible for

payment of the Child Representative's fees."

¶ 38 The judgment also ordered that the child's representative's fees were to be paid from any

remaining money held in escrow after the taxes were paid on the withdrawal taken pursuant to

the November 10, 2011 qualified domestic relations order.

¶ 39 Each party was awarded the bank accounts in his or her own name.

¶ 40 The court awarded Feng his automobile and the automobile being used by the parties'

daughter, Xiuli. The court awarded Janet the automobile she was using.

¶ 41 The judgment left each party responsible for the debts in his or her own name, with Feng

being assigned a greater percentage of the remaining marital debt. The parties stipulated that

Feng owed $41,000 in credit card debt and for personal loans, and that Janet owed $85,000 in

credit card debt and more than $8,000 in personal loans.

¶ 42 Regarding attorney fees, the court stated that Janet owed approximately $28,000 in

attorney fees and had asked for a contribution from Feng to her attorney fees. The court found

that Janet did not have the ability to pay the fees but found that Feng also did not have the ability

to pay Janet's attorney fees either and thus ordered Janet to pay her own fees.

¶ 43 On February 5, 2013, the child representative filed a petition for fees.

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¶ 44 On February 27, 2013, Janet filed a notice of appeal from the judgment of dissolution.

¶ 45 On February 28, 2013, Feng filed a motion to reconsider the judgment pursuant to section

2-1203 of the Code of Civil Procedure (735 ILCS 5/2-1203 (West 2012)), arguing that the award

of maintenance to Janet was against the manifest weight of the evidence.

¶ 46 On March 5, 2013, an agreed order was entered awarding the child representative fees in

the amount of $18,364.83 in costs, with each party to pay 50%. The order specified that "[w]hile

the amount is agreed, the allocation may be an issue on appeal." The March 5, 2013 order also

set a briefing schedule for Feng's motion to reconsider the judgment's maintenance award. The

March 5, 2013 order did not contain Illinois Supreme Court Rule 304(a) language. See Ill. S. Ct.

R. 304(a) (eff. Feb. 26, 2010).

¶ 47 On March 13, 2013, Janet filed an emergency petition for termination of joint custody

and award of sole custody of Andrew to Janet, temporary sole custody and possession, and to

suspend Feng's visitation. The basis of the petition was an alleged act of domestic violence that

occurred between Feng and Andrew at the martial residence wherein Feng threw a flower pot

and garbage can at Andrew. The flower pot struck Andrew and Feng was arrested by the

Streamwood police. The circuit court found that the matter was not an emergency and continued

Janet's petition. On March 13, 2013, Janet also filed her response to Feng's motion to reconsider.

¶ 48 On April 3, 2013, before resolution of Feng's motion to reconsider the judgment, Janet

filed a second notice of appeal from the agreed order of March 5, 2013 that the child

representative's fees be split between the parties and also appealing from the January 29, 2013

judgment.

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¶ 49 On April 15, 2013, a qualified domestic relations order was entered pursuant to the terms

of the judgment for the transfer to Janet of 50% of the funds in Feng's Trader Joe's 401(k)

retirement plan.

¶ 50 On April 15, 2013, the court also conducted a hearing on Feng's motion to reconsider the

judgment. Feng argued that the award of maintenance to Janet should not have been permanent

but should be reviewable because Janet was capable of working. The court entered an order on

April 15, 2013 modifying the judgment's maintenance award provision, making it reviewable

upon Janet's earning $45,000 in gross income per year. The amount of monthly maintenance and

the termination terms of the order remained unmodified. The April 15, 2013 order provided that

the case was continued to April 25, 2013 for entry of a withholding order.

¶ 51 The April 15, 2013 order did not contain Illinois Supreme Court Rule 304(a) language.

See

Nevertheless, on April 19, 2013, Feng filed a notice of appeal from the April 15, 2013

order.

¶ 52 On April 22, 2013, a plenary order of protection was entered against Feng and protecting

Andrew in the criminal case against Feng based on the domestic violence incident against

Andrew in the marital home. Feng was ordered to stay away from Andrew and was prohibited

from physically abusing, harassing, or intimidating Andrew and from interfering with Andrew's

personal liberty, effective until April 21, 2014. Feng agreed to the entry of the order of protection

and did not stand trial.

¶ 53 On April 25, 2013, the circuit court entered a withholding order authorizing the payment

of $15,059 to the Internal Revenue Service for the taxes owed on the 2011 disbursement from

Feng's Trader Joe's retirement plan. The court order also provided that the remaining balance of

the escrow account was to be paid to the child representative per the dissolution judgment.

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¶ 54 The court also entered a separate order on April 25, 2013 regarding Janet's emergency

petition for termination of joint custody, awarding sole custody of Andrew to Janet, thereby

modifying the child custody provisions in the judgment of dissolution, given the order of

protection against Feng entered in criminal court protecting Andrew. The issue of Feng's

visitation with Andrew was reserved and the child representative was discharged. Feng did not

appeal this order.

¶ 55 On May 9, 2013, we entered an order consolidating all the appeals filed by the parties.

Feng's April 19, 2013 appeal was initially consolidated with the prior appeals and allowed to

stand as a cross-appeal, but later this case was severed and dismissed for want of prosecution.

¶ 56 On May 14, 2013, Janet filed a petition to set child support. The petition was continued.

¶ 57 On September 17, 2003, Janet filed a motion to enforce the dissolution judgment in the

circuit court, alleging that Feng had stopped paying the utilities on the former marital residence.

¶ 58 On December 2, 2013, Feng filed a petition to modify maintenance in the circuit court,

raising several modification factors under section 510(a)(5) of the Act, including that he left his

employment at Trader Joe's because of his alleged inability to work due to his health condition,

which was severe back pain, which he argued was a change in circumstance to modify

maintenance. Feng also argued that Janet did not seek to be gainfully employed. Feng further

alleged that the marital home was "in foreclosure and will soon be lost in those proceedings."

¶ 59 On January 14, 2014, Janet filed a response in opposition to Feng's motion to modify

maintenance, arguing that Feng's voluntary change in employment was not in good faith and that

it was an attempt to evade his maintenance obligation. The same date, Janet also filed a petition

for indirect civil contempt for Feng's failure to pay maintenance for November and December

2013.

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¶ 60 The court held a hearing and heard testimony on April 16, 2014, on Feng's petition to

modify maintenance and on Janet's petition for indirect civil contempt for failing to pay

maintenance and Janet's petition for child support, which the parties agreed to hear

concurrently. 1 The court issued a rule to show cause on Feng at the start of the hearing, which

was returnable instanter by way of the contempt hearing.

¶ 61 The parties stipulated that the guideline amount for statutory child support would be $632

per month, which was based on Feng's income at Trader Joe's. Feng's defense to child support

was that Andrew was emancipated, but the court rejected this defense.

¶ 62 Feng first called Janet as an adverse witness. Janet testified that at the time of the hearing

she had lived in Hoffman Estates, Illinois, since August 15, 2013 and that she paid $1,020 per

month in rent. Counsel for Feng examined Janet based on her financial affidavit, which was

admitted at trial. According to the affidavit, at the time of trial Janet was unemployed but had

$5,914 in monthly living expenses for her needs. Janet testified that, to meet her monthly

financial needs for the year of 2013, she borrowed $75,000 from Anna May Schadeck. Janet also

testified that she received maintenance from Feng and that she received $2,000 from her sister,

who lives in Australia. Janet also testified regarding her work history from the January 29, 2013

date of the judgment for dissolution of marriage. Janet testified that she was currently

unemployed and that the last time she worked was for one day on February 12, 2014, through an

assignment from a temporary work agency, and from January 15, 2014 to February 12, 2014 on

another temporary assignment for $11.50 per hour. Janet testified that she had no employment

from the January 29, 2013 entry of judgment for dissolution of marriage until October 10, 2013.

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¶ 63 Feng also testified. Feng testified that he resides in Hoffman Estates with his girlfriend,

Hong Zhi Liu. Feng also testified regarding his financial affidavit that was admitted at trial. Feng

testified that during the course of the marriage and for 11 months following the judgment of

dissolution he was employed at Trader Joe's. On the date of dissolution, Feng held the title of

"operational merchant." Feng testified that a substantial part of his job was the lifting and

moving of heavy pallets, for approximately 50% to 60% of his work time. Feng worked for 9.5

hours a day, 5 days a week. Feng testified that he paid his maintenance obligation to Janet up

until he stepped down to a part-time position in November 2013 because he opened a therapeutic

massage business in Barrington, Illinois. Feng testified that he was in constant back pain as far

back as 2010 and had seen several chiropractic and medical specialists for his back problems

between 2010 and 2012 but worked during this time period because he "did not have a choice of

not working at all." Feng testified that if he did the heavy lifting required in his previous position

at Trader Joe's he would have severe back pain and that he was having difficulty doing his job

even part-time in November 2013 due to his condition. Feng testified that at his massage

business he does not perform the massages and is able to work there because there is no physical

work involved. Feng admitted that no doctor ever told him that he could not work at Trader Joe's.

Feng never asked Trader Joe's for any accommodation for his back issues. The position to which

he demoted himself, operational manager, was actually more physically demanding than his

previous higher position as mate. Feng ultimately resigned from Trader Joe's and began his

massage business, signing a lease for the new business in November 2013. Feng testified that he

had no income from his new job and that the prospects are not good. Feng recently applied for a

job back in the food industry at Maggiano's Food Market. Feng further testified that he believed

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Andrew's hospitalizations were unnecessary and that his medical conditions were not real but,

rather, were attention-seeking behaviors.

¶ 64 Feng offered into evidence the evidence deposition of Dr. Richard Bryan, taken on April

2, 2013 at Dr. Bryan's office in Chicago, Illinois, which was admitted into evidence without

objection from Janet. Dr. Bryan's qualifications as an expert in the field of chiropractics was

stipulated to by Janet. Dr. Bryan first saw Feng on October 15, 2010 for left shoulder and neck

issues. Feng had pain in his left shoulder and decreased range of motion in his neck. Dr. Bryan

also saw Feng on October 22, 2010 and October 29, 2010. Dr. Bryan prescribed neck and

shoulder exercises to strengthen those areas. On January 11, 2011, Dr. Bryan treated Feng with

strengthening exercises and manipulations. Dr. Bryan also treated Feng on: January 15, 2011;

March 10, 2011; March 18, 2011; June 10, 2011; and September 27, 2011. During each visit Dr.

Bryan treated Feng with exercises and manipulations. Dr. Bryan testified that Feng was still

complaining of lower back pain in September of 2011. There was a three-year gap in treatment.

Dr. Bryan next saw Feng on April 2, 2014 and Feng's condition was worse than it had been in

September 2011. Dr. Bryan testified within a reasonable degree of chiropractic certainty that

Feng had "a condition of the lower back," and that he "has symptoms of a disk bulge." Dr. Bryan

reviewed an X-ray taken November 5, 2013, which was ordered by Feng's family practitioner,

but according to Dr. Bryan's report the X-ray did not show any injury or condition. Dr. Bryan

recommended that Feng have an MRI, but Feng did not do so. Dr. Bryan further testified that he,

in part, relies on subjective reporting of symptoms. In 2010 and 2011, Feng regularly followed

his treatment and advice in 2010 and 2011, but when he examined Feng in January 2014, Feng

did not undertake any of his suggested treatment.

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¶ 65 At the conclusion of the hearing, the court made the following preliminary findings

regarding Feng's decision to change his employment and request to reduce maintenance:

"The Court is concerned about the timing of such, especially in light of the fact that

for 2012 and 2013 he earned significant, significant funds. There is no testimony that he

ever requested an accommodation from Trader Joe's to assist him in his back injury. In

fact, he voluntarily demoted himself, by his own admission ***. I'm not quite sure why

he would do that. It doesn't make any economic sense, full well knowing that he had a

maintenance obligation,. And at the time he did this, he also had an obligation to support

the child, whether the child was living with him or the child was living with his mother,

because both parents have an absolute obligation to support their child. Again, the Court

is extremely concerned on how the child's health insurance was allowed to lapse. I find

that just deeply troubling because Mr. Shen was absolutely aware of Andrew's extensive

medical condition. This is not a child who has been able to function on his own. The

issue of Andrew's progress and treatments and abilities to help himself have been the

subject of much litigation. Mr. Shen has been intricately involved in discussions with

therapists, psychiatrists. There's been extreme issues with homeschooling. He's been

involved with the school, with the IEP that was developed for this child. For Mr. Shen to

take the position that somehow the child is intentionally causing this issue is beyond the

Court's comprehension. It is also beyond the Court's comprehension that Mr. Shen hasn't

paid in a dime in child support, not one dime. Child support will be ordered retroactive to

the date of filing. By the parties' stipulation, the amount of $5,056, which would be the

statutory amount through at least May of 2013 through the end of the year while he was

still working at Trader Joe's. The amount of income that may or may not be imputed to

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him will be reserved so the Court can take a look to see what his earning capabilities are.

The Court is deeply troubled by Mr. Shen embarking on a speculative venture. And even

his testimony that he doesn't go into the business all the time, that he has never drawn a

salary from that, he has expenses of himself in excess of $3,000 per month, per his own

13.3 [affidavit], and very little, if any, debt set forth, so somehow he is able to pay all his

personal expenses as well as all of his business expenses. He doesn't have to take a

salary. And yet, he was aware when he voluntarily terminated his employment that he

had a maintenance obligation and very well had a child support obligation."

¶ 66 Concerning Dr. Bryan's testimony specifically, the court stated that it had "severe

concerns about the adequacy" of Dr. Bryan's opinions. Dr. Bryan's testimony was not based on

an MRI, and Dr. Bryan confirmed that the X-ray of Feng's "low back was unremarkable" and

showed no injury. Meanwhile, Dr. Bryan relied on Feng's self-reporting during a short

consultation with Feng. The court further found that Dr. Bryan's treatment of Feng was

"completely inconsistent," and that there was a two-year and four-month period when Dr. Bryan

did not see Feng at all. The court expressed "serious concerns" about Dr. Bryan's opinion and

stated it gave "very little, if any, weight to Dr. Bryan's testimony." The court concluded that it

"does not find Mr. Shen's claim that he was physically impaired rendering him incapable to work

at Trader Joe's to be credible." The court further found that Feng's voluntary change in

employment was not in good faith and specifically found it to be in "bad faith." The court

explained that Feng had "not complained of back pain during the divorce proceedings" and

"continued at the same level of employment at Trader Joe's during the divorce. It was only after

the judgment was entered that he voluntarily terminated that employment."

¶ 67 The court entered a written order on April 16, 2014, which provided as follows:

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"This cause coming on to be heard for trial on: (1) Janet's petition to set child support;

(2) Janet's petition for rule to show cause for non-payment of maintenance; and (3) Feng's

petition to modify maintenance, both parties appearing through counsel, the court having

conducted an evidentiary hearing, and having made certain preliminary findings on the

record made in open court which are incorporated into this order, and being otherwise

fully advised;

IT IS HEREBY ORDERED:

1. Janet's petition to set child support is granted, retroactive to the date of filing. Feng

Shen shall pay $5,056 to Janet Rizon immediately. Said sum representing guideline child

support from the date of filing through December 2013. Feng shall pay an additional

$2,747 which shall immediately be placed into escrow with Janet's attorney;

2. Further ruling on the petition to set child support and ruling on Feng's petition to

modify maintenance and Janet's petition for rule is set for May 20, 2014 at 11:00 a.m.;

3. Upon conclusion of the hearing, Feng advised his attorney and the court that the

$7,803 tax refund (which are the funds referenced in paragraph 1 of this order) is located

in a safe deposit box at Chase Bank in Schaumburg. This is contrary to his sworn trial

testimony that the funds were located in his home. Funds shall be delivered to offices of

Lake Toback [Janet's counsel] by 11 am tomorrow."

¶ 68 The trial court ruled on the petition to modify maintenance and the petition for indirect

civil contempt on May 20, 2014, finding that "both parties were well aware [that] their son,

Andrew had special needs and struggles with severe anxiety and mental disorders requiring

numerous hospitalizations, including the recent incidents and hospitalizations required on

November 20, 2003 and March 7, 2014." The court further found that Feng "made no

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contribution to Andrew's expenses for 2014 that the Court is aware of or since the date he

voluntarily transferred custody of Andrew to Ms. Rizon." The court found that Feng "did not

testify as to any physical injuries or conditions that prevented his full-time employment during

the course of the parties' dissolution trial." The court found that despite Feng's claim of injury at

the April 16, 2014 hearing, "he did continue working, and he was aware that he had an obligation

to support Janet and to pay child support." The court further found that Feng's massage business

was "a completely speculative venture," which he had "used $12,000 in funds" to establish. The

court found that Feng voluntarily resigned from his Trader Joe's employment in December 2013.

The court stated it did "not find it a mere coincidence that he [Feng] had no income from his new

job, and that the prospects are not good."

¶ 69 The court entered an order on May 20, 2013 denying Feng's motion to modify

maintenance and granting Janet's petition to hold Feng in indirect civil contempt and setting

purge amounts. The court ordered payment of the maintenance arrearage of $3,889 to Janet to

purge the contempt and ordered payment of child support arrearage.

¶ 70 Feng filed a notice of appeal on June 13, 2013, seeking reversal only of the court's order

of May 20, 2014 denying Feng's motion to modify maintenance.

¶ 71 On June 24, 2014, the court entered an order memorializing partial payment of the

arrearage by Feng reflecting that Janet voluntarily withdrew her petition to enforce the judgment

for dissolution.

¶ 72 Feng filed another notice of appeal on July 14, 2014, appealing from the order entered on

June 24, 2014. Feng stated in this notice of appeal that "[t]he trial court's June 24, 2014 order

now made final for purposes of appeal the trial court's denial of the Petitioner's Motion to

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Modify Maintenance on May 20, 2014." Feng stated in this notice of appeal that he continued to

seek reversal of the court's denial of his motion to modify maintenance.

¶ 73 We consolidated Feng's 2014 appeals.

¶ 74 We then subsequently consolidated all the cases.

¶ 75 ANALYSIS

¶ 76 Janet argues that the court erred in entering the following provisions in the dissolution

judgment entered on January 29, 2013: (1) the court erred in ordering that her maintenance

terminate on her sixty-sixth birthday; (2) the court erred when it ordered interim attorney fees

paid from Feng's retirement account at Trader Joe's; (3) the court used the wrong legal standard

in deciding to deny Janet's request for contribution to attorneys fees; (4) the court erred in its

order granting the child representative fees in requiring Janet to pay half of the child

representative's fees because it is a de facto order that she pay it from a retirement account

because that was the only asset of value she was awarded in the judgment; (5) the court erred in

ordering the sale of the Florida time share to pay the child representative's fees because under the

attorney fees provision of section 508 of the Act a court cannot order payment of fees from the

marital estate; and (6) the court erred in its order granting ownership and exclusive possession of

the former marital residence to Feng.

¶ 77 Feng agrees with Janet on her first issue and likewise appeals from the court's provision

for Janet's maintenance in the dissolution judgment. Feng also appeals from the order of May 20,

2014 denying his petition to modify maintenance. Feng argues that the court did not consider the

relevant factors as set forth in section 510(a-5) and instead considered Feng's decision to change

careers as an improper and irrelevant factor. Feng also argues that the trial court's decision to not

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give any weight to the testimony of Dr. Bryan was an abuse of its discretion and was against the

manifest weight of the evidence.

¶ 78 We consolidated the parties' appeals. We address Janet's arguments first in sections I

through VI and then we address Feng's argument regarding his appeal from the court's order

denying his motion to modify maintenance in section VII.

¶ 79 I. Termination of Maintenance on Janet's Sixty-sixth Birthday

¶ 80 Janet first argues that the court erred in ordering in the dissolution judgment (entered on

January 29, 2013) that her maintenance terminate on her sixty-sixth birthday. We recognize that

it is not for this court to reweigh the statutory factors, and absent an abuse of discretion, we will

not substitute our judgment for that of the trial court. In re Marriage of Virdi,

(citing In re Marriage of Donovan,

(2005)). "The trial

court has discretion to determine the propriety, amount, and duration of a maintenance award."

In re Marriage of Reynard,

(2003). "A clear abuse of discretion occurs

when 'the trial court's ruling is arbitrary, fanciful, unreasonable, or where no reasonable person

would take the view adopted by the trial court.' " Blum v. Koster,

(2009)

(quoting People v. Hall,

(2000). "Under the abuse of discretion standard, the

question is not whether this court might have decided the issue differently, but whether any

reasonable person could have taken the position adopted by the trial court." In re Marriage of

Samardzija,

(2006).

¶ 81 Janet argues that the order for maintenance in the dissolution judgment is "for monthly

payments for an indefinite and unknown period of time" and therefore is not maintenance in

gross but periodic maintenance. Janet argues that the court erred as a matter of law in ordering

that her periodic maintenance terminate on her sixty-sixth birthday, absent agreement by the

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parties, because the court awarded periodic maintenance but deviated from the statutory

maintenance termination events of death, remarriage and cohabitation found in section 510(c) of

the Act (750 ILCS 5/510(c) (West 2012)), and only an award of maintenance in gross can

deviate from these termination events. Janet argues that for traditional periodic maintenance, a

court can only impose the termination events in section 510(c) and cannot impose any other

termination event.

¶ 82 Feng also appeals from the maintenance provision in the dissolution judgment and agrees

that the court did not award maintenance in gross, and that the court erred in awarding Janet

maintenance until her sixty-sixth birthday because it did not follow the standards set forth in

section 510(c). Feng further argues that the court should have entered an order making any

maintenance order reviewable after a period of time pursuant to the factors in section 510(a-5)

and requests that the orders regarding maintenance be reversed and that the matter be remanded

to the trial court for further evidentiary hearings.

¶ 83 Section 510(c) provides the following:

"(c) Unless otherwise agreed by the parties in a written agreement set forth in the

judgment or otherwise approved by the court, the obligation to pay future maintenance is

terminated upon the death of either party, or the remarriage of the party receiving

maintenance, or if the party receiving maintenance cohabits with another person on a

resident, continuing conjugal basis."

¶ 84 The four common types of maintenance included in a final judgment are: (i) permanent

maintenance (indefinite in duration); (ii) rehabilitative maintenance for a fixed term (terminates

on the term's end or the occurrence of some event); (iii) rehabilitative maintenance (subject to a

set review date); and (iv) maintenance in gross (specific, nonmodifiable sum, usually in lieu of

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property). "Permanent" does not mean everlasting; a better description would be "indefinite." An

award of permanent maintenance may be modified or terminated either by agreement or as

provided in section 510(c) of the Act. See In re Marriage of Culp,

(2003) (burden of proving change in circumstances to justify termination or modification on

paying party); In re Marriage of Dunseth,

(1994) (permanent

maintenance appropriate "where it is evident the recipient spouse is either unemployable or

employable only at an income considerably lower than the standard of living established during

the marriage").

¶ 85 The judgment specifically states that Janet is to receive "permanent maintenance," but the

trial court included a termination event—her sixty-sixth birthday when "she is eligible for full

social security benefits"—in addition to the statutory events. See 750 ILCS 5/510(c) (West

2012).

¶ 86 The parties agree that the maintenance arrangement ordered by the trial court, as a matter

of law, does not constitute maintenance in gross. See In re Marriage of Freeman,

(1985). We agree. What distinguishes maintenance in gross is its definite sum and vesting

date. See In re Marriage of D'Attomo,

(maintenance in gross

involves "a definite total sum upon the entry of the decree or a definite total sum in installments

over a definite period of time" (quoting In re Marriage of Mass,

(1981))). Instead the parties, again in agreement, assert that the trial court ordered permanent

maintenance, but erroneously deviated from the statutory termination events by providing that

Janet's maintenance end on her becoming fully entitled to social security benefits. We agree.

¶ 87 "A spouse should not be required to lower the standard of living established in the

marriage as long as the payor spouse has sufficient assets to meet his needs and the needs of his

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former spouse." In re Marriage of Walker,

(2008) (permanent

maintenance may be reduced when wife nearly eligible for retirement benefits as teacher where

total amount remained substantially unchanged). Here, however, the trial court terminates

maintenance without knowing anything about Janet's or Feng's financial circumstances at the

time Janet reaches age 66, many years in the future. Terminating in this manner violates section

510(c), as a matter of law. Whether permanent maintenance is still required when Janet becomes

social security eligible should be a matter to be decided at that time and not now. Trial judges

cannot gaze into a crystal ball and foresee what the future holds for the parties. This explains

why permanent maintenance is always modifiable or terminable should there occur a substantial

change in circumstances.

¶ 88 Having determined that the trial court erred when it ordered Janet's maintenance to

terminate on her becoming social security eligible, we disagree with Feng that the appropriate

relief would be for us to reverse and remand for a further evidentiary hearing on maintenance.

As Janet observes, under Supreme Court Rule 366(a)(5), we may strike the erroneous

termination event without further hearing before the trial court. No new hearing on maintenance

is warranted and would be a waste of judicial resources.

¶ 89 II. Interim Attorney Fees Order

¶ 90 Janet argues that the court erred when it entered the October 12, 2011 order, ordering that

interim attorney fees be paid from Feng's 401(k) at Trader Joe's, relying on In re Marriage of

Radzik,

, where the court held that retirement accounts are exempt

under section 12-1006 of the Code of Civil Procedure (735 ILCS 5/12-1006 (West 2010)) from

orders pertaining to attorney fees and cannot be ordered liquidated to pay attorney fees. Janet

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argues that, similar to Radzik, the trial court had no statutory authority to order the liquidation of

Feng's Trader Joe's 401(k) to pay attorney fees.

¶ 91 "The trial court's decision to award attorney fees is generally reviewed for an abuse of

discretion." In re Marriage of Nash,

(citing In re Marriage of

Radzik,

). "However, to the extent an appeal from the award of

attorney fees 'hinges on issues of statutory construction and constitutionality, our standard of

review is de novo.' "

(quoting In re Marriage of Beyer,

(2001)).

¶ 92 We agree with Janet and hold that the court improperly ordered the liquidation of Feng's

Trader Joe's 401(k) to pay interim attorney fees, in contravention of Radzik and section 12-1006

of the Code of Civil Procedure, and we reverse the court's order of October 12, 2011.

¶ 93 We note that on appeal Janet seeks only reversal of the October 12, 2011 order and does

not specify any further form of relief if the attorneys were already paid from these funds. We

therefore remand the case to the circuit court for proceedings consistent with our holding, where

Janet can seek further relief due to the erroneous entry of the October 12, 2011 order.

¶ 94 III. Contribution to Attorney Fees

¶ 95 Next, Janet argues that the court erred in denying any contribution from Feng to her

attorneys fees because it applied the wrong standard in stating that it must be established that

"the party requesting the attorneys' fees has an inability to pay, and that the other party has the

ability to pay." Janet argues this is a misstatement of the law and "appears nowhere in any

statute." Janet also argues that the court's ultimate determination was an abuse of discretion

where Feng has a superior ability to pay attorneys fees and that the denial of any contribution

from him was error.

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¶ 96 "[A] trial court's decision to award or deny fees will be reversed only if the trial court

abused its discretion." In re Marriage of Schneider,

(2005). The trial court

abuses its discretion when it applies an improper legal standard. Rockford Police Benevolent &

Protective Ass'n v. Morrissey,

(2010). An abuse of discretion also

occurs "when the trial court's ruling is arbitrary, fanciful, unreasonable, or where no reasonable

person would take the view adopted by the trial court." (Internal quotation marks omitted.) Blum

v. Koster,

(2009).

¶ 97 The court found and ordered the following:

"JANET has retained five different law firms to represent her in this proceeding and paid

in excess of $19,000 to her attorneys. Attorneys' fees owed by JANET were discharged

during her bankruptcy proceeding. An additional $28,000 remains owing. JANET has

asked for a contribution to her attorney's fees. Generally, each party is responsible for

their own attorney's fees. When a court does award contribution, it must assure that the

fees are reasonable through an analysis of the criteria enumerated in section 503. In

determining if a contribution award is warranted, it is not necessary that the party

requesting contribution be destitute or divest or exhaust their financial resources. In re

Marriage of Pond, 379 Ill[.] App. 3d 982 *** (2008). However, in order to prevail on an

award of attorney's fees, it must be established that the party requesting the attorney's fees

has an inability to pay, and that the other party has the ability to pay. Although no actual

retainer agreements of invoices were submitted by JANET, it is clear that she does not

have the ability to pay her own attorneys fees. Although FENG KUI is working, he also

has his own attorney's fees to be paid as well as he has been assigned a greater percentage

of the remaining marital debt. FENG KUI does not have the ability to pay JANET's

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attorneys fees either. JANET will be responsible for payment of her own attorney's fees

and costs."

¶ 98 Janet argues that the court applied the wrong legal standard in stating that "in order to

prevail on an award of attorney's fees, it must be established that the party requesting the

attorney's fees has an inability to pay, and that the other party has the ability to pay." Janet also

argues that the court's ultimate determination regarding attorney fees and denying her

contribution was against the manifest weight of the evidence.

¶ 99 We find the court did not apply the wrong legal standard. The primary obligation for the

payment of attorney fees rests on the party on whose behalf the services were rendered. In re

Marriage of Mantei,

(1991). Under section 508(a) of the Act, the trial

court may order a party to contribute a reasonable amount of the opposing party's attorney fees.

750 ILCS 5/508(a) (West 2010). But the spouse seeking the contribution must establish his or

her inability to pay and the other spouse's ability to pay. Schneider,

. A party

has the financial inability to pay attorney fees if the payment of the fees would strip that party of

his or her means of support or undermine the party's financial stability.

A contribution award

is based on the criteria for the division of marital property and, where maintenance has been

awarded, the criteria for an award of maintenance. 750 ILCS 5/508(a), 503, 504 (West 2010).

The criteria include the property awarded to each spouse, their incomes and present and future

earning capacities and "any other factor that the court expressly finds to be just and equitable."

See 750 ILCS 5/508(a), 503(d), 504(a) (West 2010).

¶ 100 Janet relies on two Fourth District Appellate Court cases in support of her argument that

the court applied the wrong legal standard in requiring a showing of the petitioning spouse's

inability to pay with a showing of the other spouse's ability to pay: In re Marriage of Haken, 394

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Ill. App. 3d 155, 162 (2009); and In re Marriage of Price,

. The

court in Haken criticized the rule requiring a showing of inability of the petitioning spouse to

pay/ability of the other spouse because the rule was not explicitly in the statute. The court stated

that "[s]ome courts have repeated language from older cases" and "fail to note the language

added to section 508(a) in 1996" that "[a]t the conclusion of the case, contribution to attorney's

fees and costs may be awarded from the opposing party in accordance with subsection (j) of

[s]ection 503." Haken, 394 Ill. App. 3d at 162 (quoting 750 ILCS 5/508(a) (West 1998)). The

court in Price followed this holding in Haken. See Price,

("[T]his court has concluded a party seeking contribution to attorney fees under section 508(a) of

the Dissolution Act must no longer show an inability to pay or the other spouse's ability to pay as

no such requirement is contained in the statute." (citing Haken, 394 Ill. App. 3d at 163)).

¶ 101 But Schneider was decided by the Illinois Supreme Court in 2005, well after the 1996

amendment to the Act, and so the supreme court continues to adhere to long-standing precedent

that a spouse petitioning for contribution to attorney fees must show an inability to pay and the

ability of the other spouse to pay.

¶ 102 We note also that the statute does contain a provision requiring consideration of the

financial status of the parties, in the very first sentence of section 508(a):

"§ 508. Attorney's Fees; Client's Rights and Responsibilities Respecting Fees and

Costs.

(a) The court from time to time, after due notice and hearing, and after considering

the financial resources of the parties, may order any party to pay a reasonable amount for

his own or the other party's costs and attorney's fees." (Emphasis added.) 750 ILCS

5/508(a) (West 2010).

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¶ 103 The statute itself thus does require consideration of the financial resources of the parties.

The Fourth District Appellate Court did not mention this provision in the statute in either Haken

or Price. Given that there is supporting language in the statute, and that the supreme court

continues to espouse the rule even after the amendment to the statute, the holdings of Haken and

Price are based on a faulty premise.

¶ 104 Recently in In re Marriage of Patel,

, we noted the Fourth

District's disagreement with precedent, but we followed the Illinois Supreme Court's continued

adherence in Schneider to the long-standing rule. Id., ¶ 113. We continue to follow the Illinois

Supreme Court's precedent and decline Janet's request to follow the Fourth District's holdings.

The trial court in this case recited and applied the correct standard in denying Janet contribution

to her attorney fees in the dissolution judgment.

¶ 105 The court's finding that neither party had the ability to pay also was not an abuse of

discretion. Feng's monthly cash flow was negative. The evidence supports the trial court's

specific conclusion that Feng, while he was working, also did not have the ability to pay Janet's

attorney fees.

¶ 106 While Janet argues that her award of a one-half interest in Feng's Trader Joe's retirement

account should not be considered, she acknowledges that the relative financial circumstances of

the parties must be considered. Again, Janet's argument is erroneous both factually and legally.

Factually, the provision denying contribution in the dissolution judgment (section 9(f)) did not

even mention the award to Janet of half of Feng's Trader Joe's 401(k). Legally, section 508(a)

provides that costs may be awarded from the opposing party in accordance with subsection (j) of

Section 503. 750 ILCS 5/508(a) (West 2010). Section 503(j) in turn provides that "[a]ny award

of contribution to one party from the other party shall be based on the criteria for division of

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marital property under this Section 503 and, if maintenance has been awarded, on the criteria for

an award of maintenance under Section 504." 750 ILCS 5/503(j)(2) (West 2010). Thus, the same

criteria regarding the division of marital property thus must be considered in determining a

request for contribution to attorney fees.

¶ 107 The court did not err in its recitation and application of the legal standard and did not

abuse its discretion in its determination denying Janet contribution for her attorney's fees. We

thus affirm the portion of the dissolution judgment denying Janet contribution for her attorney

fees.

¶ 108 IV. The Court Ordered Each Party to Pay Half of the Child Representative's

Fees and Did Not Order Payment From the Retirement Account

¶ 109 Janet argues that the court erred in ordering Janet to pay half of the child representative's

fees 2 in the dissolution judgment because it is a de facto order that she pay it from a retirement

account where her half of Feng's Trader Joe's 401(k) was the only asset of value she was

awarded in the judgment. Janet argues for the application of Radzik to the facts of this case. In

Radzik, the circuit court expressly ordered the liquidation of an individual retirement account

(IRA) for payment of interim attorney fees, and on appeal the court held that the husband's IRA

could not be ordered liquidated to satisfy an interim attorney fee award. Radzik,

. Janet argues that, similar to Radzik, this court should hold that retirement

accounts cannot be considered when assessing a party's financial ability to pay fees to a child

representative.

2 We note, as Janet points out, that the order was agreed only to the extent that neither party challenged the amount or reasonableness of the fees, but that the right to challenge the allocation of fees was reserved for appeal. -32- 1-13-0733, 1-13-1131, 1-13-1342, 1-14-1795 & 1-14-2118 cons.

¶ 110 Janet further moved to cite the additional authority of In re Marriage of Crook,

(2004) for the same proposition. In Crook, the Illinois Supreme Court held that because

of federal preemption Illinois courts are not permitted to consider federal social security benefits

when distributing marital property in dissolution proceedings. We find Crook to be inapposite, as

we are not dealing with federal social security benefits but, rather, with a 401(k) retirement plan

sponsored by an employer.

¶ 111 First, we note the obvious difference that the retirement account at issue here is Feng's

retirement account – not her own – as Janet was awarded half of Feng's retirement account.

Second, regardless of whose retirement account funds are at issue, the court in this case did not

in fact order the liquidation of the Trader Joe's 401(k) for the payment of the child

representative's fees. Rather, as we discussed in section II above, the court ordered liquidation of

Feng's 401(k) for payment of Andrew's counseling and for interim attorney fees in its October

12, 2011 order, and a subsequent qualified domestic relations order was entered to that effect on

November 10, 2011. In the dissolution judgment, the court merely ordered that each party pay

half of the child representative's fees and ordered that any remaining money held in escrow –

after the withdrawal from the retirement account pursuant to the qualified domestic relations

order – was to be applied toward the child representative's fees.

¶ 112 Moreover, Janet cites to no authority holding that orders for payment of fees can be

considered "de facto" orders of payments from a retirement account where the assets in an

individual retirement account are the only or significant remaining assets awarded to a party, nor

can we find any. Rather, as we explain in the next subsection of our analysis, section 506

governing child representative fees allows for payment from "any *** source." See 750 ILCS

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5/506(b) (West 2012). We affirm the provision in the dissolution judgment ordering each party

to pay half of the child representative's fees.

¶ 113 V. The Court Did Not Order the Sale of the Florida Time Share to

Pay Child Representative's Fees; It Merely Ordered That the Proceeds of the Sale

Be Applied First to the Payment of the Child Representative's Fees.

¶ 114 Janet also argues that the court erred in the portion of the dissolution judgment ordering

the sale of the Florida time share to pay the child representative's fees. While the award of a child

representative's fees is normally reviewed for an abuse of discretion (In re Marriage of

Soraparu,

(1986)), to the extent an award of fees relies on statutory

construction our review is de novo. In re Marriage of Nash,

(quoting In re Marriage of Beyer,

(2001)).

¶ 115 Janet's argument on this point is incorrect both factually and legally. First, according to

Janet's recitation of the facts, the court ordered the sale of the time share for the specific purpose

of paying the child representative fees. This is not the case. In the dissolution judgment, the court

merely ordered that the parties' Florida time share be sold. The court then delineated the order of

priority of application of the proceeds. The court ordered that the balance of the proceeds of the

sale of the Florida time share in escrow were to be applied first to pay the child representative's

fees and then were to be applied to the non-reimbursed medical expenses for the children.

Thereafter, upon the final submission of the Child Representative's fee petition, each party would

be equally responsible for payment of the child representative's fees. The court did not order the

sale of the Florida time share for the purpose of paying the child representative's fees. Rather, it

is apparent that the sale of the Florida time share was part of the court's division of property and

the court merely ordered that the proceeds of the sale of the Florida time share apply first to

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satisfy the child representative's fees. The proper division of marital property rests within the

sound discretion of the trial court (In re Marriage of Rapacz,

(1985)), not this court, and we cannot reverse a trial court's division of property absent an abuse

of discretion. In re Marriage of Koral,

(1989) (citing In re Marriage of

Ackerman,

(1988)). Janet does not dispute the division of property

generally.

¶ 116 Second, Janet's argument is not well grounded legally. Janet relies on In re Marriage of

Walsh,

(1982), for the proposition that section 508 of the Act does not

permit a court to order the sale of marital assets to directly satisfy the payment of fees. But in

Walsh, attorney fees were at issue, not child representative fees. Under section 508, which

governs attorney fees generally (750 ILCS 5/508 (West 2012)), a court may not order payment of

attorney fees directly from the marital estate. See Walsh,

. On the other

hand, the plain language of section 506(b), which governs child representatives specifically (750

ILCS 5/506(b) (West 2012)), provides that the court may order payment from "any other party or

source," including "the marital estate" or the child's separate estate, to pay the fees and costs of a

child representative.

¶ 117 Janet concedes that section 506(b) provides that the child representative's fees can be

ordered from "any" source or from "the marital estate," but argues that section 506 also provides

that sections 501 and 508 apply, and section 508 allows a court to order the payment of fees only

directly to the attorney but does not allow a court to order an asset sold for the payment of fees.

¶ 118 But we note that section 506, governing child representatives, serves a different purpose

from the general provision for parties' attorneys in section 508. The child representative is "a

'hybrid' of a child's attorney and a child's guardian ad litem who acts as an arm of the court in

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assisting in a neutral determination of the child's best interests" and to aid the court "must be

accorded absolute immunity so as to allow him to fulfill his obligations without worry of

harassment and intimidation." Vlastelica v. Brend,

. Because the

person represented is the child, not either of the divorcing parties, section 506 is substantively

different in allowing payment from "any source" as follows:

"Any order approving the fees shall require payment by either or both parents, by any

other party or source, or from the marital estate or the child's separate estate. ***

Unless otherwise ordered by the court at the time fees and costs are approved, all fees

and costs payable to an attorney, guardian ad litem, or child representative under this

Section are by implication deemed to be in the nature of support of the child and are

within the exceptions to discharge in bankruptcy under 11 U.S.C.A. 523. The provisions

of Sections 501 and 508 of this Act shall apply to fees and costs for attorneys appointed

under this Section." (Emphases added.) 750 ILCS 5/506(b) (West 2012).

¶ 119 We cannot ignore the legislature's specific language in section 506 allowing the payment

of child representative fees from "any" source by using the more general provision of section 508

governing parties' attorneys to override section 506. Instead, the more specific provision of

section 506 prevails. All provisions of a statute should be viewed as a whole. Sandholm v.

Kuecker,

. Words and phrases of a statute should be interpreted in light of

other relevant provisions of the statute and should not be construed in isolation.

(citing

DeLuna v. Burciaga,

(2006)). "A court presumes that the legislature intended

that two or more statutes which relate to the same subject are to be read harmoniously so that no

provisions are rendered inoperative." Knolls Condominium Ass'n v. Harms,

, 458-

59 (2002) (citing Henrich v. Libertyville High School,

(1998)). When two

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statutory provisions relate to the same subject, the more specific provision prevails. See

at

459 (citing People v. Villarreal,

(1992) and People ex rel. Kempiners v.

Draper,

(1986)).

¶ 120 Thus, the more specific provision in section 506 governing child representative fees thus

prevails over the more general attorney fee provision of section 508. Whereas generally attorney

fees cannot be ordered paid from marital assets under section 508, section 506(b) specifically

provides that child representative fees can be paid from "from the marital estate." 750 ILCS

5/506(b) (West 2012). The court in this case did not err in ordering that the proceeds of the sale

of the Florida time share apply first to satisfy the child representative's fees.

¶ 121 VI. Permanent and Exclusive Possession of Former Marital Home

¶ 122 We reject Janet's last request that we reverse the court's award of permanent and

exclusive possession of the former marital home to Feng pursuant to Illinois Supreme Court Rule

366(a)(5) (eff. Feb. 1, 1994).

¶ 123 While Janet argues that the trial court lost jurisdiction after her first appeal, we note that

the child representative's fee petition was still pending and Feng had filed a motion to reconsider

the judgment of dissolution within 30 days of the judgment (see Ill. S. Ct. R. 303(a)(2) (eff. May

30, 2008) (providing that when a timely postjudgment motion has been filed, a notice of appeal

becomes effective only upon resolution of the motion)). The parties also continued to litigate in

the trial court after Janet appealed. We further note that Janet filed an emergency petition for

termination of joint custody and award of sole custody of Andrew but did not also seek a reversal

of the award of the marital home from the trial court within 30 days.

¶ 124 Janet concedes that a distribution of property is generally unable to be reopened. See 750

ILCS 5/510(b) (West 2010). But, "hat in hand," because of the stringent requirements of a

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section 2-1401 petition (735 ILCS 5/2-1401 (West 2010)), Janet requests us to exercise our

supervisory power pursuant to Illinois Supreme Court Rule 366(a)(5) (eff. Feb. 1, 1994).

¶ 125 Feng responds that the award of the marital home is moot as he has abandoned the

marital home and the marital home is in foreclosure. Janet claims in her reply brief that Feng's

argument regarding mootness due to foreclosure "ha[s] no place in this appellate brief" and that

we should simply disregard the issue of foreclosure. The issue regarding the award of the marital

residence may indeed be moot, as Feng contends. A cause of action is deemed moot if no actual

controversy exists or if events occur that make it impossible for the court to grant effectual relief.

Gatreaux v. DKW Enterprises, LLC,

, ¶ 12. It is well established that

this court does not consider moot questions or "consider issues where the result will not be

affected regardless of how those issues are decided." In re Alfred H.H.,

(2009). Our supreme court has "consistently held that '[a]n appeal is moot when it involves no

actual controversy or the reviewing court cannot grant the complaining party effectual relief.' " In

re Marriage of Donald B.,

(quoting Steinbrecher v. Steinbrecher,

(2001)). If the marital home property has been foreclosed we cannot grant Janet

the relief she is requesting and her appeal is indeed moot. See Schwind v. Mattson,

(1974) (finding the appeal moot where a bank foreclosed on property and then bought

and sold it to a third party, and the appellants failed to perfect a stay of the judgment).

¶ 126 It is unclear whether the marital home is indeed in foreclosure, as Feng asserts, or

perhaps has been foreclosed in the interim. Feng offers no citation to the record, nor does Janet.

Janet argues that we should disregard Feng's argument because he fails to cite to the record,

citing Illinois Supreme Court Rule 341 (eff. July 1, 2008). Meanwhile Janet also herself fails to

cite to the record. Even were we inclined to exercise our discretionary power under Supreme

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Court Rule 366, we cannot make a determination on this issue as we do not have the relevant

facts. See Ill. S. Ct. R. 341(h)(6), (h)(7) (eff. July 1, 2008). Also, it is the appellant's burden to

provide this court with a sufficiently complete record to support her claim, and any doubts due to

the incompleteness of the record will be resolved against the appellant. Foutch v. O'Bryant,

(1984). Janet provides no facts concerning the status of the marital home. We

decline to exercise our supervisory power to reverse the award of the marital home to Feng.

¶ 127 Since we are remanding, Janet has the opportunity to file a section 2-1401 petition (735

ILCS 5/2-1401 (West 2010)) with a supporting affidavit and any other showing regarding new

facts, if there are any, for determination by the circuit court. See Ill. S. Ct. R. 366(a)(5) (eff. Feb.

1, 1994).

¶ 128 VII. Feng's Petition to Modify Maintenance

¶ 129 Feng's only argument on appeal is that the court erred in denying his petition to modify

maintenance, in that the court did not consider all the statutory factors and instead focused on his

decision to leave his employment, with the effect that Andrew lost health insurance coverage, as

an improper factor. As part of this argument, Feng also maintains that the court's decision to

disregard Dr. Bryan's testimony was against the manifest weight of the evidence. 3

¶ 130 A. The Court Considered the Appropriate Statutory Factors

And Did Not Abuse Its Discretion

¶ 131 Feng argues that the trial court abused its discretion in its ruling in its order of May 20,

2014 denying his petition to modify maintenance because it did not consider the relevant factors

3 We note that Janet argues in her reply brief in her appeals in reply to Feng's cross-appeal that we should not address the court's ruling on the motion to modify maintenance because Feng does not include a copy of the motion in the certified record on appeal. But Feng filed two appeals after Janet's appeals, and a copy of Feng's motion to modify maintenance is in the record in his appeals. On December 8, 2014, we granted Feng's counsel leave to prepare the record in Feng's appeals. -39- 1-13-0733, 1-13-1131, 1-13-1342, 1-14-1795 & 1-14-2118 cons.

as set forth in section 510(a-5) and instead considered Feng's decision to change careers as an

improper and irrelevant factor. Feng argues that "[t]he court in its May 20, 2014 ruling went to

great length to express its displeasure about Feng's loss of medical insurance for his son, A.S.

*** when Feng resigned his position at Trader Joes'" and that the court in its "lengthy" ruling

"made comment about Feng's lack of financial contribution" to Andrew. Feng asserts that "he

acknowledges his son's emotional condition is tragic," but that bringing the issue of support of

Andrew into the ruling regarding his petition for the modification of maintenance was "arbitrary

and unreasonable." Feng argues that combining the issue of child support with the issue of

maintenance constitutes an abuse of discretion. Feng further argues that "there should have been

a specific finding by the trial court as to Janet's attempt to find work when rendering its

decision."

¶ 132 Maintenance may be modified or terminated by a court pursuant to section 510(a-5) of

the Act only upon a showing of a "substantial change in circumstances." 750 ILCS 5/510(a-5)

(West 2010). A "substantial change in circumstances" as required under section 510(a-5) means

that either the needs of the spouse receiving maintenance or the ability of the other spouse to pay

that maintenance has changed. In re Marriage of Anderson,

(2011).

The party seeking modification bears the burden of establishing a substantial change of

circumstances.

¶ 133 Section 510(a-5) of the Act sets forth these specific factors to consider in determining a

motion to modify maintenance:

"(1) any change in the employment status of either party and whether the

change has been made in good faith;

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(2) the efforts, if any, made by the party receiving maintenance to become self-

supporting, and the reasonableness of the efforts where they are appropriate;

(3) any impairment of the present and future earning capacity of either party;

(4) the tax consequences of the maintenance payments upon the respective

economic circumstances of the parties;

(5) the duration of the maintenance payments previously paid (and remaining to

be paid) relative to the length of the marriage;

(6) the property, including retirement benefits, awarded to each party under the

judgment of dissolution of marriage, judgment of legal separation, or judgment of

declaration of invalidity of marriage and the present status of the property;

(7) the increase or decrease in each party's income since the prior judgment or

order from which a review, modification, or termination is being sought;

(8) the property acquired and currently owned by each party after the entry of the

judgment of dissolution of marriage, judgment of legal separation, or judgment of

declaration of invalidity of marriage; and

(9) any other factor that the court expressly finds to be just and equitable." 750

ILCS 5/510(a-5) (West 2012).

¶ 134 In addition, in determining whether and to what degree a maintenance award shall be

modified, the court should also consider the same factors assessed in determining the initial

award found in section 504(a) of the Act. Blum v. Koster,

(2009); 750 ILCS

5/504(a) (West 2012). These factors are as follows:

"(1) the income and property of each party, including marital property

apportioned and non-marital property assigned to the party seeking maintenance;

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(2) the needs of each party;

(3) the present and future earning capacity of each party;

(4) any impairment of the present and future earning capacity of the party seeking

maintenance due to that party devoting time to domestic duties or having forgone or

delayed education, training, employment, or career opportunities due to the marriage;

(5) the time necessary to enable the party seeking maintenance to acquire

appropriate education, training, and employment, and whether that party is able to

support himself or herself through appropriate employment or is the custodian of a child

making it appropriate that the custodian not seek employment;

(6) the standard of living established during the marriage;

(7) the duration of the marriage;

(8) the age and the physical and emotional condition of both parties;

(9) the tax consequences of the property division upon the respective economic

circumstances of the parties;

(10) contributions and services by the party seeking maintenance to the education,

training, career or career potential, or license of the other spouse;

(11) any valid agreement of the parties; and

(12) any other factor that the court expressly finds to be just and equitable."

¶ 135 A trial court's ruling on a petition for modification of maintenance will not be reversed

absent an abuse of discretion. In re Marriage of Virdi,

, ¶ 26. "Under

the abuse of discretion standard, the question is not whether this court might have decided the

issue differently, but whether any reasonable person could have taken the position adopted by the

trial court." In re Marriage of Samardzija,

(2006). "[W]hen the basis

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for an award of maintenance is established in the record, it is not mandatory that the trial court

make explicit findings for each of the statutory factors." Blum,

. See also In re

Marriage of Virdi,

(citing In re Marriage of Reynard,

(2008)).

¶ 136 In his reply brief, Feng concedes that under Blum maintenance orders will not be reversed

solely because specific findings are not made. Thus, we reject Feng's argument that the court did

not consider all the statutory factors solely because it did not make specific findings in its order.

¶ 137 We also reject at the outset Feng's argument that that "there should have been a specific

finding by the trial court as to Janet's attempt to find work when rendering its decision." A

motion to modify maintenance must be based on a substantial change in circumstances, and there

was no change in Janet's employment status.

¶ 138 Feng argues that the trial court focused inordinately on his decision to resign his

employment at Trader Joe's. We note that the very first factor in proceedings to modify

maintenance that the court must consider is "any change in the employment status of either party

and whether the change has been made in good faith." 750 ILCS 5/510(a-5) (West 2012). When

determining motions to modify maintenance payments, a court should consider whether a party's

situation is necessary or incurred by choice. See Reynard,

. See, e.g., In

re Marriage of Smith,

(1979) (held because the change in circumstances was

brought about by husband's own actions, it could not be the basis of a modification of

maintenance). The trial court's consideration of this factor is required by statute and thus is not

error.

¶ 139 Feng further argues that combining the issue of child support with the issue of

maintenance constitutes an abuse of discretion. Janet argues in response that the court heard her

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petition for indirect civil contempt concerning payment of child support and Feng's petition to

modify maintenance at the same time, by agreement. The court thus was considering both issues

at the same time with the agreement of the parties and ruled on both petitions on May 20, 2014.

Feng's argument on this point is therefore disingenuous.

¶ 140 Janet also argues that Feng's failure to cite authority for his proposition that the court

commits reversible error by merely discussing an issue related to a minor child when deciding

maintenance issues dictates forfeiture of this argument. We agree with Janet. A contention that is

supported by some argument, but by no authority whatsoever, does not satisfy the requirements

of Supreme Court Rule 341(e)(7). In re Marriage of Wade,

(1987)

(citing In re Marriage of Anderson,

(1985), citing Fuller v. Justice,

(1983)). "A reviewing court *** is not simply a depository into which the appealing

party may dump the burden of argument and research." (Internal quotation marks omitted.)

Vilardo v. Barrington Community School District 220,

(2010); see also

Vancura v. Katris,

(2010). We agree with Janet that Feng forfeited his

contention that discussing the issue of child support in the context of a motion to modify

maintenance is an abuse of discretion.

¶ 141 In any event, we find no abuse of discretion because the statute allows consideration of

"any other factor that the court expressly finds to be just and equitable." 750 ILCS 5/510(a-5)(9)

(West 2012). The court was well within its discretion to consider the impact Feng's bad-faith

change in his employment status had on the minor child's health care costs and to consider Feng's

pattern of not paying support as part of the facts supporting its determination of bad faith. The

trial court concluded that Feng's decision to voluntarily resign Trader Joe's was made in bad

faith, and the fact that he was willing to take this measure to reduce his maintenance obligation,

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notwithstanding the loss of his own son's medical insurance, was further evidence of Feng's bad

faith. The failure to pay support for Andrew was additional evidence of Feng's bad-faith pattern.

The trial court thus did not err in its consideration of statutory factors for modification of

maintenance.

¶ 142 B. The Court's Finding Regarding Dr. Bryan's Testimony

Was Not Against the Manifest Weight of the Evidence

¶ 143 Finally, Feng argues that the trial court's decision to not give any weight to the testimony

of Dr. Bryan in his motion to modify maintenance was an abuse if its discretion and was against

the manifest weight of the evidence.

¶ 144 Janet responds that the court appropriately refused to credit Dr. Bryan's testimony

because Dr. Bryan conceded on cross-examination that Feng did not see him between January

23, 2014 and the date of his evidence deposition and did not have any future appointments

scheduled. Dr. Bryan also testified that he, in part, relies on subjective reporting of symptoms.

¶ 145 The relevant issue was whether Feng's alleged change in circumstances – his change in

his employment status – was in good faith. When determining maintenance payments, a court

should consider whether a party's situation is necessary or incurred by choice. See Reynard,

. The word "ability" in "ability to pay" indicates that we should consider the

level at which the maintenance-paying spouse is able to contribute, not merely the level at which

he is willing to work. In re Marriage of Smith,

.

¶ 146 The trial court's decision to not give much weight to Dr. Bryan's testimony was not

against the manifest weight of the evidence, as Dr. Bryan's testimony indicated that there was a

three-year gap in treatment, and an X-ray taken at the relatively late date of November 5, 2013,

when Feng was allegedly suffering worse symptoms, did not show any injury or condition.

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Further, Feng did not submit to an MRI even though Dr. Bryan recommended one. All of Feng's

symptoms were entirely subjective, and Dr. Bryan conceded that he relied on the reporting of

symptoms to reach his determination that Feng had a condition of the lower back. There was no

other objective evidence that Feng indeed had such a condition, much less that the condition was

debilitating enough to disable him from his previous position at Trader Joe's.

¶ 147 The trial court's decision to discredit Dr. Bryan's testimony was not against the manifest

weight of the evidence. We affirm the trial court's order denying Feng's motion to modify

maintenance.

¶ 148 CONCLUSION

¶ 149 Pursuant to our consideration of the issues above, we hold there was an abuse of

discretion in the maintenance provision where there was no evidence in the record of the

dissolution proceeding supporting the court's decision to award a limited duration of

maintenance to Janet only up to the retirement age of 66, and the evidence instead established

that Janet would not be able to support herself. We reverse the maintenance order in the

dissolution judgment and order that the circuit court amend the provision in the dissolution

judgment awarding maintenance to Janet to award her permanent maintenance, with the

termination factors under section 510(c) of the Act (750 ILCS 5/510(c) (West 2012)), and

including the court's provision for review of the maintenance award if Janet attains an income of

at least $45,000.

¶ 150 We affirm the following January 29, 2013 judgment of dissolution provisions: (1)

denying Janet's request for contribution to attorneys fees; (2) requiring Janet to pay half of the

child representative's fees; (3) ordering the sale of the Florida time share to; and (4) granting

ownership and exclusive possession of the former marital residence to Feng.

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¶ 151 We also affirm the court's May 20, 2014 order denying Feng's motion to modify

maintenance.

¶ 152 We reverse only the trial court's order of October 12, 2011, which ordered that Feng's

401(k) be liquidated to (in part) pay interim attorney fees. Because Janet did not specify the form

of relief for this error, however, we remand to the circuit court where she may request

appropriate relief. Also, Janet's appeal of the provision of the dissolution judgment awarding the

marital home to Feng may be moot if the home has been foreclosed. Janet fails to cite to the

record or provide us with any facts regarding the outstanding question of whether the marital

home has been foreclosed. Because we are remanding, Janet may address this in the circuit court

on remand with a section 2-1401 petition.

¶ 153 Affirmed in part and reversed in part; cause remanded, with instructions.

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