In re Marriage of Linta

Illinois Official Reports

Appellate Court

In re Marriage of Linta, 2014 IL App (2d) 130862

Appellate Court In re MARRIAGE OF TARA LINTA, Petitioner-Appellant, and
Caption WARREN LINTA, Respondent-Appellee.

District & No. Second District
Docket No. 2-13-0862

Filed September 17, 2014

Held In postjudgment proceedings with respect to a divorce initially entered
(Note: This syllabus in Nevada with a judgment that incorporated a marital settlement
constitutes no part of the agreement including a prevailing-party provision regarding attorney
opinion of the court but fees, and then the judgment was registered as an Illinois judgment, the
has been prepared by the trial court, after considering petitions brought by both parties, did not
Reporter of Decisions abuse its discretion in requiring each party to pay his or her own
for the convenience of attorney fees, where the court could have concluded that neither party
the reader.) “prevailed” and section 502(b) of the Illinois Marriage and
Dissolution of Marriage Act did not bind the court to follow the
prevailing-party provision when the proceedings involved the care and
custody of minors.

Decision Under Appeal from the Circuit Court of Kane County, No. 12-D-257; the
Review Hon. David P. Kliment and the Hon. Kevin T. Busch, Judges,
presiding.

Judgment Affirmed.

Counsel on Robert D. Felker, of Felker & Reganti, of Chicago, for appellant.
Appeal
No brief filed for appellee.
 Panel JUSTICE HUTCHINSON delivered the judgment of the court, with
opinion.
Justices Zenoff and Birkett concurred in the judgment and opinion.

OPINION

¶1 In 2011, a Nevada court entered a judgment that dissolved the marriage between petitioner,
Tara Linta, and respondent, Warren Linta. The dissolution judgment incorporated a marital
settlement agreement, which contained a prevailing-party provision with respect to attorney
fees (prevailing-party provision). Thereafter, the parties and their minor children relocated to
Illinois and the Nevada judgment was registered as an Illinois judgment. Following various
petitions brought by both parties, the trial court denied petitioner’s request for attorney fees
pursuant to the prevailing-party provision. Petitioner now appeals, contending that the trial
court erred in denying her request for fees. We affirm.
¶2 The record reflects that, on August 1, 2011, the circuit court of Washoe County, Nevada,
entered a judgment for dissolution of the marriage between petitioner and respondent. The
judgment incorporated a marital settlement agreement, which included the prevailing-party
provision: “In any action arising hereunder, or any separate action pertaining to the validity of
this Agreement, the prevailing party shall be awarded reasonable attorney fees and costs.”
¶3 Thereafter, both parties moved to Kane County with their two minor children. On February
21, 2012, petitioner filed petitions in the trial court to enroll the judgment of the Nevada court,
modify child support, and modify visitation. On April 12, 2012, the trial court entered an
agreed order that enrolled and entered the Nevada judgment.
¶4 On April 27, 2012, respondent responded to petitioner’s child-support and visitation
modification petitions, asking that the court deny them. On May 30, 2012, petitioner filed a
petition for temporary child support, requesting that respondent increase his payments to 28%
of his net income due to a wage increase.
¶5 On June 11, 2012, the trial court ordered the parties to mediate the visitation issue. The
parties reached an agreement through mediation on July 16, 2012. In the interim, respondent
petitioned to remove the action to Nevada or have the trial court apply Nevada law to the
pending petitions, pursuant to a removal and choice-of-law provision in the marital settlement
agreement. Additionally, on July 9, 2012, respondent filed his response to the petition for
temporary child support asking the court to deny petitioner’s petition. The trial court requested
briefs from both parties on the removal and choice-of-law issues.
¶6 On July 27, 2012, petitioner filed a petition for an emergency order of protection against
respondent, claiming that he had slapped one of the children, causing petitioner to fear for her
safety and the safety of the children. The court denied the emergency order of protection but
suspended respondent’s visitation for one day and appointed a guardian ad litem; the parties
were ordered to evenly split the cost. On July 30, 2012, the court resumed the visitation
schedule in the marital settlement agreement and ordered the parties to attend family
counseling.

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¶7 On August 23, 2012, the trial court determined that Illinois law applied to the petitions for
modification of child support and visitation. The trial court granted petitioner’s petition for
modification of child support. The trial court further ordered that the parties share equally in
the cost of child care and ordered petitioner to submit a bill to respondent no later than the tenth
day of each month or incur the total of that month’s expenses. The trial court also ordered that
the parties adhere to the visitation schedule agreed upon with the mediator. With the trial
court’s leave, both parties filed petitions for attorney fees with respect to the petition to enroll
the Nevada judgment, the petition for an emergency order of protection, the petition to modify
child support, the petition to modify visitation, and the removal and choice-of-law briefs.
¶8 Thereafter, on January 11, 2013, respondent filed a petition to modify child support. The
trial court granted respondent’s petition on February 7, 2013. Respondent then filed an
amended petition for attorney fees.
¶9 On April 29, 2013, the trial court denied both petitioner’s and respondent’s respective
petitions for attorney fees. The trial court found that the attorney fees were to be “offset in their
entirety” and that “[e]ach party shall be responsible for their own attorney fees.” Petitioner
timely appealed.
¶ 10 Before we address the merits, we note that respondent has not filed a response brief.
However, the record is simple and the claimed errors are such that we can easily decide them
without the aid of an appellee’s brief. See First Capitol Mortgage Corp. v. Talandis
Construction Corp., 63 Ill. 2d 128, 133 (1976).
¶ 11 Turning to the merits, petitioner’s only contention in this appeal is that the trial court erred
in denying her petition for attorney fees. Petitioner claims that the prevailing-party provision
was binding on the trial court. Petitioner argues that, by denying an attorney-fee award, the
trial court effectively vacated that provision from the marital settlement agreement. Petitioner
further argues that the trial court abused its discretion in denying her petition for fees.
¶ 12 With respect to the marital settlement agreement, section 502(b) of the Illinois Marriage
and Dissolution of Marriage Act provides: “The terms of the agreement, except those
providing for the support, custody and visitation of children, are binding upon the court unless
it finds, after considering the economic circumstances of the parties and other relevant
evidence produced by the parties, on their own motion or on request of the court, that the
agreement is unconscionable.” 750 ILCS 5/502(b) (West 2010). Marital settlement agreements
are contracts, and thus the rules governing the interpretation of contracts apply. See
In re Marriage of Murphy, 359 Ill. App. 3d 289, 300 (2005). Generally, the primary obligation
for the payment of attorney fees in a marriage-dissolution action rests on the party on whose
behalf the services were rendered. In re Marriage of Patel, 2013 IL App (1st) 112571, ¶ 113.
An exception exists when a contract provides for an award of attorney fees. Mirar
Development, Inc. v. Kroner, 308 Ill. App. 3d 483, 488 (1999). Contractual provisions for
attorney fees must be strictly construed. Id.
¶ 13 At the outset, we note that under Illinois law the prevailing-party provision is
unenforceable as applied to issues related to the children. Petitioner is seeking to invoke the
provision with respect to her petitions to modify child support and visitation. Section 502(b)
expressly provides that marital settlement agreements are binding “except those providing for
the support, custody and visitation” of children. 750 ILCS 5/502(b) (West 2010). Portions of a
marital settlement agreement that relate to support, custody, and visitation of children are not
binding on the trial court. In re Marriage of Ingram, 259 Ill. App. 3d 685, 689 (1994).

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¶ 14 We find this court’s holding in In re Marriage of Best, 387 Ill. App. 3d 948 (2009),
instructive. In Best, the parties’ premarital agreement provided that “ ‘[t]he parties
acknowledge, understand and agree that in the event of any court proceeding of and concerning
their marital relationship or dissolution thereof, that [sic] each party shall pay and be
responsible for payment of their own respective attorney fees and all ancillary costs incurred in
connection with any such proceeding.’ ” Id. at 949. We found that the fee-shifting ban violated
Illinois public policy requiring that a child’s right to support may not be adversely affected by
a premarital agreement. Id. at 954. We emphasized that the law severely limits on
public-policy grounds the enforceability of contracts affecting the custody and support of
children. Further, Illinois law per se rejects premarital agreements that impair child-support
rights or specify custody. Id. at 951.
¶ 15 In reaching our holding in Best, we looked beyond Illinois to In re Marriage of Ikeler, 161
P.3d 663 (Colo. 2007), for guidance on whether fee-shifting bans violate public policy. Best,
387 Ill. App. 3d at 952. Ikeler noted that a fee-shifting ban could harm children by
“substantially impair[ing]” the lesser-earning spouse’s ability to effectively litigate issues
involving children. Ikeler, 161 P.3d at 670-71. The inability to effectively litigate issues
involving the best interests of children would, in turn, negatively impact the court’s ability to
assess the best interests of children. Id. In Best, we adopted this reasoning in determining that
fee-shifting bans in premarital agreements violate Illinois public policy. Best, 387 Ill. App. 3d
at 954.
¶ 16 The Ikeler court’s reasoning is equally persuasive as to a prevailing-party provision in a
marital settlement agreement. As with attorney-fee bans, a lesser-earning spouse seeking to
litigate child-related issues might be hesitant to bring a petition, even when doing so would be
in the children’s best interests. Specifically, that spouse could fear being unsuccessful and
having to pay not only his or her attorney fees, but also the other spouse’s attorney fees
pursuant to a prevailing-party provision. This, in turn, would negatively impact a court’s
ability to assess the children’s best interests. Courts have a responsibility to protect the best
interests of the children in child-support matters; to this end, courts are not bound by the
parties’ agreements as to child support, and settlement agreements may not be made
nonmodifiable in that regard. In re Marriage of Wittland, 361 Ill. App. 3d 785, 788 (2005). We
note that section 508 still allows a court to order any party to pay a reasonable amount for his
own or the other party’s costs and attorney fees, after considering the financial resources of the
parties. See 750 ILCS 5/508(a) (West 2010). However, we hold that, as a matter of Illinois
public policy, a marital settlement agreement cannot preordain attorney fees to a prevailing
party in matters related to the best interests of children.
¶ 17 We now turn to petitioner’s claims for attorney fees pursuant to the prevailing-party
provision as it relates to the agreed order enrolling the Nevada judgment in Kane County, the
issue of removal to Nevada, and the trial court’s choice-of-law ruling.
¶ 18 We find City of Elgin v. All Nations Worship Center, 373 Ill. App. 3d 167 (2007), to be
persuasive on the issue of petitioner’s claimed victory in enrolling the Nevada judgment in
Kane County by way of an agreed order. In City of Elgin, this court addressed a
prevailing-party provision in a contract and found against All Nations, which sought attorney
fees pursuant to an agreed order. The agreed order allowed All Nations to continue conducting
church services in an area that did not permit a church, pursuant to a zoning ordinance.
Id. at 168. The trial court denied the fee award and we affirmed. We determined that the agreed

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 order preserved the status quo rather than altered the parties’ legal relationship. Id. at 170. We
emphasized that to hold that a party who wins any type of victory during the course of
litigation, no matter how fleeting, is entitled to attorney fees would expand the definition of
“prevailing party” beyond all meaning. Id.
¶ 19 Similarly, here, petitioner is seeking an award pursuant to an agreed order, which enrolled
the Nevada judgment in Kane County. This order operated to preserve the status quo and did
not alter the legal relationship between the parties. Moreover, with respect to the choice-of-law
and removal issues, though the trial court ruled in petitioner’s favor on some issues, those
favorable rulings do not necessarily create a basis for a fee award. When a dispute involves
multiple claims, and both parties have won and lost on different claims, it is appropriate to find
that neither party is the prevailing party and that an award of attorney fees to either would be
inappropriate. See Brown & Kerr, Inc. v. American Stores Properties, Inc., 306 Ill. App. 3d
1023, 1034-35 (1999) (holding that the trial court did not err in denying an attorney-fee request
where the parties “both won and lost on claims” before the trial court). Here, while petitioner
was successful in the ruling denying respondent’s petition to apply Nevada law and remove to
Nevada, all other rulings resulted in the agreed order or grants and denials on some issues for
each party.
¶ 20 In sum, we find that petitioner is not entitled to attorney fees based on the prevailing-party
provision. The language of section 502(b) does not bind the trial court to the settlement
agreement for issues involving the care and custody of minors. 750 ILCS 5/502(b) (West
2010). In addition, we reject petitioner’s assertion that the trial court erred as a matter of law in
its interpretation of the prevailing-party provision. Rather, whether and in what amount to
award attorney fees was within the trial court’s discretion and its decision will not be disturbed
on review absent an abuse of that discretion. In re Estate of Callahan, 144 Ill. 2d 32, 43-44
(1991). Because the trial court could have concluded that neither party “prevailed,” its
determination to offset the attorney fees in their entirety between both parties and to make each
party responsible for his or her own attorney fees was not an abuse of discretion.
¶ 21 For the reasons stated, we affirm the judgment of the circuit court of Kane County.

¶ 22 Affirmed.

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