We were honored to win a recent case in the Illinois Appellate Court and to have the decision published as an opinion, meaning the case has become a part of Illinois law. The issue, which arose in a divorce case, was whether the trial court could order the wife’s sister to sell a house in Florida to raise money to pay the husband’s legal fees.
The answer was no.
Our client had become a party to the case because she had loaned money to her sister and brother-in-law to buy a house in Florida and wanted to be repaid. At the first trial the court ruled in our client’s favor and ordered the house transferred to her to satisfy her claim. That ruling was overturned by the appellate court in a prior appeal because the appellate court found the trial judge had made an incorrect ruling on a discovery issue.
When the case was returned to the trial court it was transferred among 9 different judges before being assigned to a 10th judge to rule on some motions. The husband’s lawyer complained that his client (a surgeon) had no money to pay his fees. The judge ordered our client to sell the house with the intent of using the equity to provide money for legal fees. In divorce law, the court can order payment of legal fees from marital assets. Such an order is usually considered interim relief and cannot be appealed.
We appealed, claiming the trial court’s order in this case was actually a mandatory injunction and therefore could be appealed. We asserted the injunction was improper for a number of reasons, including the fact the judge made the ruling when the issue was not before him for a hearing, that interim fees could not be assessed against a third-party, that the court’s order violated the Florida constitution, and that it was improper to order the sale of real estate to pay interim fees because such an act was irrevocable and could not be undone in the final trial. The appellate court agreed.
The appellate court also criticized the trial court for spending so much time on interim measures rather than moving the case to its second trial.
The opinion is important in that it clarifies the difference between an interim order and an injunctive order, it limits the assets a trial court can order sold to pay lawyers, and it makes clear a trial court has discretion to pass over interim relief to move the case to a final resolution. It give lawyers a basis to push back on delaying tactics in divorce cases.
You can download a copy of the opinion from the appellate court website here.
Attorney David Gotzh produced a You Tube video about the case, featuring the Chicago Bar Association Symphony Orchestra and Chorus performing “O fortuna” from Carmina Burana at Symphony Center. The wheel of fortune is a metaphor associated with the law back to medieval times. “O fortune, like the moon, ever-changing, you always wax or wane.…” When you visit our office you can see the hand-painted lithograph by the late Wilmette artist Curt Frankenstein called “Judicial Wheel of Fortune” that was featured on a cover of the ABA Journal. Any reversal by the appellate court is indeed a reversal of fortune. We are glad this time it was in our client’s favor.
Representing the wife in support of our appeal were Olga A. Allen and Brian J. Hurst of Hurst, Robin & Kay, LLC of Chicago.
Representing the husband on opposition to our appeal were Marvin J. Leavitt, David C. Adams, and Elizabeth D. Shindler of Grund & Leavitt, P.C. of Chicago.
Thank you, David Gotzh, for your fun and informative video.