Opinion
5-16-0546
12-03-2021
In re MARRIAGE OF KAREN MULVIHILL, Petitioner-Appellee and DAVID MULVIHILL, Respondent-Appellant.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Madison County No. 12-D-672, Honorable Thomas W. Chapman, Judge, presiding.
Welch and Moore, Justices concurred in the judgment.
ORDER
VAUGHAN, JUSTICE.
¶ 1 Held: The circuit court erred in finding David in indirect civil contempt where David had already complied with the court ordered stipulation and dissolution judgment by the time of the contempt hearing and therefore could not purge the contempt. Nevertheless, the circuit court's award of attorney fees was not an abuse of discretion where David willfully failed to comply with the stipulation and dissolution judgment without sufficient cause or justification.
¶ 2 David Mulvihill appeals the circuit court's order finding David in willful contempt and award of $500 in attorney fees for Karen Mulvihill. For the following reasons, we reverse the court's finding of contempt and affirm the award of attorney fees.
¶ 3 I. BACKGROUND
¶ 4 The parties were married on March 5, 1999, and two children were born of the marriage. A document entitled "Stipulations" (stipulation) and a judgment of dissolution of marriage (dissolution judgment) were filed and ordered in July 2014. The stipulation stated:
"Per statute, David shall provide medical and dental insurance for L.M. and K.M. through David's employment, until L.M. and K.M. reach majority. Karen and David shall each pay one-half (1/2) of any deductible or uninsured medical and dental expenses. If David is unable to obtain insurance through his employment, Karen and David shall each pay: one-half (1/2) of the cost of major medical insurance for the children; plus one-half (1/2) the cost of uninsured medical and dental expenses for the children, until the children reach majority. Each party shall submit evidence of uninsured medical and dental bills to the opposing party at least semi-annually, and each party should be required to pay his/her one-half of said uninsured bills within thirty (30) days of receiving such bills."
The dissolution judgment stated:
" [David] is hereby ordered to pay for one-half (1/2) of all daycare, extracurricular, and school expenses in this matter for the minor children. [Karen] may Submit Receipts or other invoices to [David] for reimbursement within thirty (30) days of receipt of said invoices. [David] must then submit payment directly to [Karen] for his portion of said expense within thirty (30) days of receipt."
¶ 5 Karen sent an email to David on May 21, 2016 (May 2016 email). The email stated:
"I've attached a copy of the receipts from January through March of this month as well as the receipts from January to December of 2015. I realize you already have them but I have not yet received payment for your half, so I wanted to get them to you again."
¶ 6 Karen sent another email on August 3, 2016, which attached a list of the children's expenses for April 1 through June 30, 2016. The email also reminded David that Karen had not received payment for expenses for the dates of January 1, 2015, through March 31, 2016, and requested payment by August 11, 2016.
¶ 7 On August 10, 2016, Karen sent David a reminder, via email, to pay her for all expenses through March 31, 2016, by the following day. A few hours later, David responded. He claimed that he only owed for medical expenses because none of the children's daycare, extracurricular, or school expenses were submitted within 30 days of the receipt of those expenses as required by the dissolution judgment. David requested more time to sort through the expenses. Karen responded a short time later, stating that she had given David all the receipts within the timeline specified by the dissolution judgment, and only after he failed to pay her did she repeatedly email the receipts. On August 11, 2016, David emailed Karen stating that he only owed her $279.89, which concerned only the submitted receipts for January 2016 through March 2016.
¶ 8 On August 12, 2016, Karen filed a petition for indirect civil contempt, alleging that David refused to pay his half of the children's medical deductibles and extracurricular expenses. The petition also requested that David pay $440 in reasonable attorney fees, pursuant to section 508(b) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/508(b) (West 2016)) for enforcement of the stipulation and dissolution judgment.
¶ 9 The same day, David placed a check for $279.89 on Karen's back porch, although the check did not clear the bank until August 23, 2016. David sent two subsequent checks for $1567.67 and $1167.39, dated August 25, 2016, and September 1, 2016, respectively.
¶ 10 At the hearing on Karen's petition for indirect civil contempt, held on September 14, 2016, David averred that his payments were up to date and submitted copies of the three above checks. At the hearing, David explained that because Karen gave him a year's worth of documentation in May 2016, he needed time to sort through the submitted expenses with his attorney to ensure his obligation to pay for expenses incurred in 2015. Defendant also contended that he had never received the expenses before May 21, 2016. He admitted the May 2016 email as proof that he first received the 2015 expenses on May 21, 2016.
¶ 11 Karen's counsel argued that the May 2016 email revealed it was another submission of the 2015 expenses that David never paid. The court-and David-acknowledged that the email refers to a prior submission of the 2015 expenses. David, however, denied ever receiving any receipts from Karen until May 2016.
¶ 12 Because Karen was not at the hearing to testify as to what expenses she submitted and when, the court denied the motion for indirect civil contempt but allowed leave for 30 days to submit additional proofs. The court stated that if the additional proof raised an issue regarding the soundness of its denial, the court would call the matter back for rehearing.
¶ 13 Within 30 days, Karen filed a motion to reconsider with an affidavit. Karen attested that beginning in 2015, she physically gave David receipts for medical, extracurricular, and childcare expenses for their two children, because she saw David several times a week. She contended that David received most of the receipts within days of the date that she paid them. David would sometimes indicate that he would pay Karen but provided excuses to prolong payment. Karen averred that David never paid her during that time.
¶ 14 After nearly a year of no payment, Karen emailed David a copy of all the receipts as well as a spreadsheet explaining the expenses. According to Karen, David never acknowledged the emails, and continued to delay or refuse to pay for half of the expenses. She stated that, on August 12, 2016, she received a check for $279.89 on her back porch. She also received checks for $1567.67 and $1167.39 in the mail, on September 8, 2016, and September 9, 2016, respectively. Karen also attached the May 2016 email and the chain of August 2016 emails between Karen and David to support her claim.
¶ 15 David filed a response to Karen's motion to reconsider. He continued to deny receiving any receipts until May 2016. He contended that $3034.58 was ultimately paid to Karen by September 1, 2016, although most of the receipts submitted to David were not compliant with the dissolution judgment. David alleged this created a financial hardship for him and he was unable to claim any tax deductions on his portion of the 2015 expenses. He also averred that Karen sent two emails on May 21, 2016. One email was sent at 5:23 p.m. and contained an itemized description of the expenses for their children for January through March of 2016. However, the email also stated, "I'm having problems with attachments today. I will send the receipts in the next email." At 5:33 p.m., the previously discussed May 2016 email-which stated, "I realize you already have [the receipts]"-was sent. David argued that the second email was ambiguous and could have referred to the previous email in which she could not attach the receipts. David contended that the motion for contempt was incorrect and without basis because Karen was notified on August 10, 2016, that she would be paid, and he paid her on August 12, 2016.
¶ 16 A hearing on Karen's motion to reconsider took place on November 23, 2016. Karen testified that David and she have seen each other-at least-a couple times a week since their divorce in July 2014. Karen averred that when she saw David, she would physically hand him any copies of the receipts that she had and kept the original receipts in a manilla folder. The receipts were for small amounts of medical copays or for extracurricular activities. Karen would remind David, ever so often, that he still owed her half of the receipts. David would barely acknowledge she said anything.
¶ 17 When Karen did not receive any payment by December 2015, she made another set of copies for all of the receipts and handed them to David while standing in the foyer of his house. Karen stated that it was not until she copied her attorney on an email she sent to David in August 2016 that David replied to her request for payment. Karen averred that she also paid for her son's childcare expenses but did not request David to pay half and was not doing so now. Karen also testified that she found two emails that predated May 21, 2016, the date that David claims to have first received any receipts. One email, dated February 22, 2016 (February 2016 email), provided an itemized list of child related expenses for 2015 and a copy of those receipts. In that email, Karen also stated a few items, such as eye care costs, costs of certain sports that David did not agree to allow the child to play, and after school costs, were not included but she assumed he would not protest her nonrequest of payment for those items. She claimed the second email, dated March 2015, also referred to David's failure to pay half of the children's expenses. Only the February 2016 email was admitted as an exhibit.
¶ 18 When David began questioning Karen, he noted, "It's curious the [February 2016] email *** has an August 22th, 2016 e-mail header at the bottom ***." Karen explained that when she sent the email to her attorney, she could not forward it, so she copied and pasted it into a Word document and sent that document to her attorney. David acknowledged that Karen could have sent the email but contended he never received it. The court inquired if David received the manilla folder of receipts and he replied, "I never received any receipts from her up to the May date, the May [2016] e-mail." The court also asked David why he delayed payment between May and August of 2016. David averred that he was consulting with his attorney to determine if he had a legal obligation to pay for receipts over a year old.
¶ 19 Karen reiterated that she testified to everything truthfully. The court stated, "I don't know if I so much believe that, but, you know, it's kind of hard for me to believe that she concocted this [February 2016] e-mail in order to fool the Court, just to get her attorney's fees paid, after you paid this. That's rather elaborate." David agreed that Karen would not concoct anything to do with electronic documentation. He explained, however, that the manner in which Karen sent the February 2016 email to her attorney provided no information as to which of David's email addresses she originally sent it. Therefore, David was not sure whether Karen sent the email to one of his current email accounts. He made clear that while technical difficulties may have prevented him from receiving the email, he did not believe Karen created a phony document to fool the court.
¶ 20 After the court ensured that the expenses were paid and the only issue before the court was whether David should pay $500 of Karen's attorney fees, the court granted the motion to reconsider. It found David in willful contempt, awarded Karen $500 in attorney fees, and determined David purged the contempt by paying the expenses late.
¶ 21 On December 2, 2016, David filed a motion to reconsider. He argued that the February 2016 email was not authentic, and that his statement in court that Karen would not fabricate the email did not admit the email was authentic or that he received the email. He explained that nothing in the February 2016 email indicated proof of delivery because only David's name, and not his email, was listed after "To:". He further asserted the document was deceptive in that it showed a response from him, dated August 11, 2016, that was from an entirely different email thread. The motion also contended that the court erred in finding David in contempt for failing to timely pay the receipts because Karen had a history of not submitting receipts in accordance with the stipulation and dissolution judgment, as evidenced by her acknowledgment that she did not submit any receipts for the children's 2014 expenses.
¶ 22 The court denied David's motion to reconsider. David timely appealed.
¶ 23 II. ANALYSIS
¶ 24 On appeal, David continues to assert that the court erred in finding him in willful contempt and awarding Karen attorney fees. We address each contention of error in turn.
¶ 25 Indirect civil contempt is the failure to do something ordered by a court to be done outside the presence of the court. In re Marriage of Tatham, 293 Ill.App.3d 471, 480 (1997). Civil contempt is prospective in nature and designed to coerce future compliance with a court order; it is not intended to punish. In re Marriage of OMalley, 2016 IL App (1st) 151118, ¶¶ 26-27. As such, the fundamental attributes of civil contempt are "(1) the contemnor must be capable of taking the action sought to be coerced and (2) no further contempt sanctions are imposed upon the contemnor's compliance with the pertinent court order." In re Estate of Baldassarre, 2018 IL App (2d) 170996, ¶ 27.
¶ 26 Before any hearing on Karen's motion for indirect civil contempt or the court's order finding David in indirect civil contempt, David paid all the outstanding expenses requested by Karen. At the hearing on Karen's motion to reconsider, Karen's counsel clarified that Karen was not asserting that David continued to fail to comply with the stipulation and dissolution judgment. Instead, Karen only sought $500 in attorney fees. Because David had already paid half of the expenses-pursuant to the stipulation and dissolution judgment-he could not purge any finding of civil contempt. The court therefore erred in finding David in willful civil contempt. In re Marriage of OMalley, 2016 IL App (1st) 151118, ¶ 26 ("A person held in civil contempt must have the ability to purge the contempt by complying with the court order.").
¶ 27 David's argument regarding the award of attorney fees is not entirely clear. He seemingly contends that because the court erred in finding David in contempt-on the basis that the February 2016 email was improperly admitted, and the record showed that David was not required to pay Karen's untimely submission of receipts-the award for attorney fees was also error. We disagree. ¶ 28 Section 508(b) of the Act states:
"In every proceeding for the enforcement of an order or judgment when the court finds that the failure to comply with the order or judgment was without compelling cause or justification, the court shall order the party against whom the proceeding is brought to pay promptly the costs and reasonable attorney's fees of the prevailing party." 750 ILCS 5/508(b) (West 2016).
¶ 29 Generally, we review a court's determination of whether to grant attorney fees for an abuse of discretion. In re Marriage of Baggett, 281 Ill.App.3d 34, 40 (1996). However, an award of attorney fees is mandatory when a party fails to comply with a court order without cause or justification. Id.; In re Marriage of Berto, 344 Ill.App.3d 705, 719 (2003).
¶ 30 While a finding of contempt is a sufficient basis to award fees under section 508(b), such finding is unnecessary. In re Marriage of Baggett, 281 Ill.App.3d at 39; In re Marriage of Berto, 344 Ill.App.3d at 717. This is so because a noncompliant party places the other party in an inexorable position by initially refusing to comply with a court order then subsequently decides to comply the order after the other party already employed the services of counsel to litigate the matter. In re Marriage of Berto, 344 Ill.App.3d at 719; In re Marriage of Roach, 245 Ill.App.3d 742, 748 (1993). Once it is shown that a party failed to comply with an order, the noncompliant party bears the burden of proving compelling cause or justification. In re Marriage of Baggett, 281 Ill.App.3d at 40.
¶ 31 Accordingly, our holding that the court erred in finding David in contempt does not preclude the award of attorney fees. We may reverse the court's award only if the record shows that David did not willfully fail to comply with a court order or David had sufficient cause or justification for noncompliance.
¶ 32 On this record, we cannot find the court abused its discretion awarding Karen attorney fees. The stipulation stated Karen "shall submit evidence" of the children's medical and dental expenses semi-annually, and the dissolution judgment stated Karen "may Submit Receipts or other invoices" of the children's daycare, extracurricular, and school expenses, within 30 days of receipt of said invoices. It is undisputed that the dissolution judgment and stipulation required David to pay any timely submitted receipts within 30 days of their submission.
The parties dispute whether the word "may" in the dissolution judgment was permissive or required Karen to submit expenses for the children's daycare, extracurricular, and school expenses, within 30 days of receipt of such expenses. We decline to address this issue, as it is not necessary for the resolution of this appeal.
¶ 33 The resolution of whether David willfully failed to comply with the dissolution judgment and stipulation depends on whether Karen timely submitted the 2015 receipts. If the court had believed that Karen untimely submitted receipts for the 2015 expenses in violation of the dissolution judgment and stipulation-the court could have found that David did not fail to comply with the dissolution judgment and stipulation by failing to pay the 2015 receipts within 30 days of the May 2016 email. David argues that his testimony proves that the 2015 receipts were untimely submitted for the first time on May 21, 2016, and the court erroneously relied on Karen's February 2016 email to find to the contrary.
We note that, under the dissolution judgment and stipulation, David would have been required to pay-in 2016-any 2015 receipts for medical expenses if evidence of the expenses was submitted within six months of when they were incurred. Because the receipts-themselves-are not in the record, it is possible that David was required to pay some of the 2015 expenses even if the expenses were first submitted in 2016.
¶ 34 With respect to the February 2016 email, David-at the hearing-thrice stated that Karen would not falsify the email, and only argued that he did not receive such email due to technical difficulties. He therefore cannot now claim the court was in error for admitting the email. Bruntjen v. Bethalto Pizza, LLC, 2014 IL App (5th) 120245, ¶ 152 ("the doctrine of invited error prohibits a party from complaining of an error on appeal which that party induced the court to make or to which that party consented" (internal quotation marks omitted)). He also forfeited such argument by disputing the authenticity of the email for the first time in his motion to reconsider. Zander v. Carlson, 2020 IL 125691, ¶ 34.
¶ 35 Nevertheless, while the court clearly considered the February 2016 email in determining David's credibility, the court did not rely upon the email as-and the email did not provide- undeniable proof that Karen submitted the receipts in accordance with the dissolution judgment and stipulation. Ultimately, the court was left with the contradicting testimonies of David and Karen as to when Karen first submitted the documents. It is within the province of the circuit court to weigh the conflicting versions of events and determine the credibility of the witnesses. People v. Ross, 229 Ill.2d 255, 272 (2008). David contends that his version of the events was more credible. The record, however, also supports Karen's narrative and we will not substitute our judgment for that of the circuit court. In re Marriage of Fatkin, 2019 IL 123602, ¶ 34.
¶ 36 Moreover, the record makes clear that David failed to pay other expenses in accordance with the dissolution judgment and stipulation. On May 21, 2016, Karen also submitted receipts for January through March of 2016. David does not-in the circuit court or on appeal-dispute the timeliness of Karen's submission of the 2016 receipts. By his own pleadings, David concedes he failed to pay the 2016 receipts until August 12, 2016, well over the 30-day time limit required by the dissolution judgment and stipulation. When the court asked David about the delay in payment from May 2016 to August 2016, David responded only with an excuse regarding the 2015 receipts. While Karen sent a subsequent email on August 3, 2016, allowing David to pay the expenses by August 11, 2016, we do not find such email excuses David's noncompliance when the email was sent well after David failed to comply with the 30-day payment period required by the court orders, and David failed to make payment until August 12, 2016. Therefore, despite any alleged abuse of discretion in finding noncompliance based on the 2015 receipts or admitting the February 2016 email into evidence, we do not find the court abused its discretion in awarding attorney fees pursuant to section 508(b) of the Act. See John O. Schofield, Inc. v. Nikkel, 314 Ill.App.3d 771, 786 (2000) ("a court of review is not bound to accept the reasons given by a circuit court for its judgment and the judgment may be sustained upon any ground warranted, regardless of whether the circuit court relied upon such ground and regardless of whether the reason given by the circuit court was correct").
¶ 37 III. CONCLUSION
¶ 38 The circuit court erred in finding David in contempt where David complied with the dissolution judgment and stipulation by the time of the contempt hearing. However, because David willfully failed to comply with the dissolution judgment and stipulation by failing to make timely payments of the expenses for his children until Karen's counsel filed a motion for contempt to enforce the dissolution judgment and stipulation, the court did not err in awarding Karen attorney fees pursuant to section 508(b) of the Act. Accordingly, we affirm the award of attorney fees and reverse the finding of contempt.
¶ 39 Affirmed in part and reversed in part.