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Beyer v. Parkis, 324 Ill.App.3d = 305, 753=20 N.E.2d 1032, 257 Ill.Dec. 406 (Ill.App. 06/29/2001)

[1]	Illinois Appellate Court
[2]	No. 1-99-1676
[3]	324 Ill.App.3d 305, 753 N.E.2d 1032, 257 Ill.Dec. 406, = 2001.IL.0000546=20 = <http://www.versuslaw.com>
[5]	IN RE MARRIAGE OF: MARK BEYER,=20 PETITIONER-APPELLANT, v. NANCY PARKIS, F/K/A NANCY BEYER,=20 RESPONDENT-APPELLEE.
[6]	Appeal from the Circuit Court of Cook County. No. 91 D 4461 = Honorable=20 James J. Gavin Judge = Presiding
[7]	The opinion of the court was delivered by: Justice = Tully
[8]	UNPUBLISHED
[9]	Petitioner, Mark Beyer, appeals from the circuit court's order = holding=20 him in indirect civil contempt and subjecting him to a period of=20 incarceration for refusing to pay $19,0000 in interim attorney = fees to=20 respondent, Nancy Beyer, in violation of the circuit court's = order. The=20 circuit court granted respondent's petition for fees, pursuant to = section=20 501(c-1) of the Illinois Marriage and Dissolution Act (Dissolution = Act)=20 (750 ILCS 501(c-1) (West 1999)), in the course of an action = brought by=20 respondent to vacate a judgment for dissolution of marriage. In = reaching=20 its determination, the court relied upon information contained in = the=20 petition, response and attached affidavits, but did not hold an=20 evidentiary hearing. On appeal, petitioner contends the circuit = court was=20 without statutory authority to award fees under section 501(c-1) = because=20 this provision applies exclusively to pre dissolution decree = proceedings,=20 while section 508(a) (750 ILCS 508(a) (1999)), which allows for an = evidentiary hearing prerequisite to an award of fees, is the only=20 mechanism to obtain fees in a post decree proceeding. In the = alternate,=20 petitioner contends that the application of section 501(c-1) to = post=20 decree proceedings is unconstitutional, and that respondent's = petition for=20 fees was insufficient to support an interim award. This court has=20 jurisdiction pursuant to Supreme Court Rule 304(b)(5) (155 Ill.2d = R.=20 304(b)(5)), which allows for the appeal of orders of contempt = imposing=20 monetary or other penalties. For the reasons set forth below, we = affirm=20 the circuit court's order granting the petition for fees, and = vacate the=20 circuit court's order holding petitioner in = contempt.
[10]	Background
[11]	On December 15, 1998, respondent, Nancy Beyer (Nancy) filed a = motion=20 to vacate a judgment for dissolution of marriage, entered on July = 22,=20 1993, pursuant to section 2-1401 of the Illinois Code of Civil = Procedure=20 (Code) (735 ILCS 5/2-1401) (West 1998)). In her petition, Nancy = alleged=20 the marriage settlement agreement, incorporated into the = dissolution=20 judgment, was procured by fraud, in that, Mark Beyer (Mark) failed = to=20 disclose certain assets of the marriage, namely, an ownership = interest in=20 two gas stations and lottery proceeds totaling $289,0000, which = were not=20 considered in determining Nancy's maintenance and support for the = parties'=20 two minor children. On October 2, 1998, Nancy filed a petition, = pursuant=20 to section 501(c-1), seeking interim attorney's fees from Mark in = an=20 amount comparable to the fees Mark paid to his own attorney. In an = attached affidavit, Nancy represented she was without any = financial=20 resources to pay attorney's fees to pursue the action, while Mark = had=20 access to vast sources of income derived from the sale of one gas = station,=20 the operation of another gas station, and extensive lines of = credit with=20 financial institutions based on these assets. In an attached = affidavit,=20 Nancy's counsel represented that Nancy had incurred $13,701.25 in=20 attorney's fees in connection with the action to vacate the = judgment,=20 would likely incur an additional $15,000 in fees, because = substantial=20 discovery and depositions were necessary, and was without the = financial=20 ability to pay either her outstanding or prospective fees. = Attached to the=20 petition was also a financial disclosure affidavit setting forth = Nancy's=20 and the children's income and expenses. Mark moved to dismiss the = petition=20 pursuant to section 2-615 of the Code, on the basis the petition = failed to=20 set forth sufficient facts to support an award of fees, which = motion the=20 court denied. Mark thereafter filed a response to the petition,=20 representing that he had paid his attorney $18,977.50 in fees and = costs,=20 but neither admitting nor denying his ability to pay fees, = demanding=20 strict proof thereof. Mark did not present a counter affidavit or=20 financial disclosure statement with his response. *fn1 On February 3, 1999, after a hearing at = which counsel=20 for both parties appeared and argued, the circuit court granted = Nancy's=20 petition and ordered Mark to pay $19,000 of her attorney's fees. = In=20 reaching its determination, the court stated it relied upon the=20 allegations in the petition and the response, in relation to the = relevant=20 factors set forth under section 501(c-1)(1). On February 23, 1999, = Nancy=20 filed a petition for rule to show cause why Mark should not be = held in=20 contempt of court because of his continuing refusal to pay the = interim=20 fees. On March 18, 1999, Mark brought a motion to reconsider the = judgment=20 granting the interim fees, arguing the circuit court lacked = authority to=20 award fees under section 501(c-1), which the circuit court denied. = On=20 April 9, 1999, Nancy filed a second petition for rule to show = cause why=20 Mark should not be held in contempt of court. On May 18, 1999, the = circuit=20 court found Mark in contempt for failing to pay the fees and = sentenced=20 Mark to a period of incarceration not to exceed 180 days. Upon = posting a=20 bond, Mark obtained a stay of judgment pending = appeal.
[12]	Discussion
[13]	Petitioner initially contends that a plain reading of section = 501(c-1)=20 reveals the legislature intended this provision to apply only in = pre=20 dissolution decree proceedings, while a plain reading of section = 508(a)=20 indicates this provision was intended as the exclusive means to = recover=20 attorney's fees in a post dissolution decree proceeding. = Alternately,=20 petitioner maintains that even if section 501(c-1) applies in post = decree=20 litigation, its application in that context is unconstitutional. = Because=20 resolution of this appeal hinges on issues of statutory = construction and=20 constitutionality, our standard of review is de novo. E & E = Hauling,=20 Inc. v. Ryan, 306 Ill.App.3d 131, 136 (1999).
[14]	In construing a statute, the goal of the court is to effectuate = the=20 legislature's intent. People v. Pullen, 192 Ill.2d 36, 42 (2000). = To this=20 end, a court may consider the reason and necessity for the statute = and the=20 evils it was intended to remedy, and will assume the legislature = did not=20 intend an absurd or unjust result. Pullen, 192 Ill.2d at 42. Any = inquiry=20 into legislative intent, however, must begin with the language of = the=20 statute, which is the surest and most reliable indicator of = legislative=20 intent. Pullen, 192 Ill.2d at 42. Under the guise of construction, = a court=20 may not supply omissions, remedy defects, annex new provisions, = substitute=20 different provisions, add exceptions, limitations, or conditions, = or=20 otherwise change the law so as to depart from the plain meaning of = language employed in the statute. Superior Structures Co. v. City = of=20 Sesser, 292 Ill.App.3d 848, 852 (1997). If the language of the = statute is=20 clear, its plain and ordinary meaning must be given effect without = resorting to other aids of construction. In re Marriage of = Mitchell, 181=20 Ill.2d 169, 173 (1998).
[15]	On June 1,1997, the legislature amended the Dissolution Act, = thereby=20 creating a new regime governing the award of attorney's fees. See = Pub. Act=20 89-712, eff. June 1, 1997. Prior to amendment, section 508 alone = governed=20 attorney's fee awards, including "temporary" fee awards, and = provided in=20 pertinent part:
[16]	" (a) The court from time to time, after due notice and hearing, = and=20 after considering the financial resources of the parties, may = order any=20 party to pay reasonable attorney's fees necessarily incurred or, = for the=20 purpose of enabling a party lacking sufficient financial resources = to=20 obtain or retain legal representation, expected to be incurred by = any=20 party, which award shall be made in connection with the=20 following:***
[17]	(4) The maintenance or defense of a petition brought under = Section=20 2-1401 of the Code of Civil Procedure seeking relief from a final = order or=20 judgment under this Act *** " 750 ILCS 5/508(a) (West = 1996).
[18]	Although section 501 recognized certain forms of "temporary = relief"=20 which could be obtained through the submission of petitions and=20 affidavits, in the absence of an evidentiary hearing, and without=20 prejudice to later modification, attorney's fees were not one of = these.=20 750 ILCS 5/501 (West 1996). In order to obtain attorney's fees = under the=20 "old" version of 508, therefore, an evidentiary hearing was=20 necessary.
[19]	The 1997 amendments changed this, however, introducing a = separate,=20 independent provision to govern "temporary" or "interim" fee = awards,=20 section 501(c-1), and reconfiguring section 508(a) into an = umbrella=20 provision which links the separate statutes on attorney's fees = under the=20 Dissolution Act. As amended, section 508(a) now = reads:
[20]	" (a) The court from time to time, after due notice and hearing, = and=20 after considering the financial resources of the parties may order = any=20 party to pay a reasonable amount of his own or the other party's = costs and=20 attorney's fees. Interim attorney's fees and costs may be awarded = from the=20 opposing party, in accordance with subsection (c-1) of section = 501. At the=20 conclusion of the case, contribution to attorney's fees and costs = may be=20 awarded from the opposing party in accordance with subsection (j) = of 503.=20 Fees and costs may be awarded to counsel from a former client in=20 accordance with subsection (c) of this Section. Awards may be made = in=20 connection with the following: ***
[21]	(4) The maintenance or defense of a petition brought under = Section=20 2-1401 of the Code of Civil Procedure seeking relief from a final = order or=20 judgment under this Act. ***" 750 ILCS 508(a) (West = 1997).
[22]	As amended, section 501, in turn, provides:
[23]	"Temporary Relief. In all proceedings under this Act, temporary = relief=20 shall be as follows:***
[24]	(c-1) As used in this subsection (c-1), "interim attorney's fees = and=20 costs" means attorney's fees and costs assessed from time to time = while a=20 case is pending, in favor of the petitioning party's current = counsel, for=20 reasonable fees and costs either already incurred or to be = incurred, and=20 "interim award" means an award of interim attorney's fees and = costs.=20 Interim awards shall be governed by the = following:
[25]	(1) Except for good cause shown, a proceeding for (or relating = to)=20 interim fees and costs shall be nonevidentiary, summary in nature, = and=20 expeditious. When a party files a petition for interim attorney's = fees and=20 costs supported by one or more affidavits that delineate relevant = factors,=20 the court (or hearing officer) shall assess an interim award after = affording the opposing party a reasonable opportunity to file a = responsive=20 pleading. A responsive pleading shall set out the amount of each = retainer=20 or other payment or payments, or both, previously paid to the = responding=20 party's counsel by or on behalf of the responding party. In = assessing an=20 interim award the court shall consider all relevant factors, as = presented,=20 that appear reasonable and necessary, including:
[26]	(A) the income and property of each party, including alleged = marital=20 property within the sole control of one party and alleged = non-marital=20 property within access to a party;
[27]	(B) the needs of each party;
[28]	(C) the realistic earning capacity of each = party;
[29]	(D) any impairment to present earning capacity of either party,=20 including age and physical and emotional health;
[30]	(E) the standard of living established during the=20 marriage;
[31]	(F) the degree of complexity of the issue, including custody,=20 valuation or division (or both) of closely held businesses, and = tax=20 planning, as well as reasonable need for expert investigations or = expert=20 witnesses, or both;
[32]	(G) each party's access to relevant = information;
[33]	(H) the amount of the payment or payments made or reasonably = expected=20 to be made to the attorney for the other party; = and
[34]	(I) any other factor that the court expressly finds to be just = and=20 equitable.
[35]	(2) Any assessment of an interim award (including one pursuant = to an=20 agreed order) shall be without prejudice to any final allocation = and=20 without prejudice as to any claim or right of either party or any = counsel=20 of record at the time of the award. Any such claim or right may be = presented by the appropriate party or counsel at a hearing on = contribution=20 under subsection (j) of section 503 or a hearing on counsel's fees = under=20 subsection(c) of Section 508. Unless ordered by the court at the = final=20 hearing between the parties or in a hearing under subsection (j) = of 503 or=20 subsection (c) of 508, interim awards, as well as the aggregate of = all=20 other payments by each party to counsel and related payments to = third=20 parties shall be deemed to have been advances from the marital = estate. Any=20 portion of an interim award constituting an overpayment shall be = remitted=20 back to the appropriate party or parties or, alternatively, to = successor=20 counsel, as the court determines and directs, after = notice.
[36]	(3) In any proceeding under this subsection (c-1), the court (or = hearing officer)shall assess an interim award against an opposing = party in=20 an amount necessary to enable the petitioning party to participate = adequately in the litigation, upon findings that the party from = whom=20 attorney's fees and costs are sought has the financial ability to = pay=20 reasonable amounts and that the party seeking attorney's fees and = costs=20 lacks sufficient access to assets or income to pay reasonable = amounts. In=20 determining an award, the court shall consider whether adequate=20 participation in the litigation requires expenditure of more fees = and=20 costs for a party that is not in control of assets or relevant=20 information. Except for good cause shown, an interim award shall = not be=20 less than payments made or reasonably expected to be made to the = counsel=20 for the other party. If the court finds that both parties lack = financial=20 ability or access to assets or income for reasonable attorney's = fees and=20 costs, the court (or hearing officer) shall enter an order that = allocates=20 available funds for each party's counsel, including retainers or = interim=20 payments, or both, previously paid, in a manner that achieves = substantial=20 parity between the parties.
[37]	(4)The changes to this Section 501 made by this amendatory Act = of 1996=20 apply to cases pending on or after June 1, 1997, except as = otherwise=20 provided in Section 508.
[38]	(d) A temporary order entered under this = Section:
[39]	(1) does not prejudice the rights of the parties or the child = which=20 are to be adjudicated at subsequent hearings in the=20 proceeding;
[40]	(2) may be revoked or modified before final judgment, on a = showing by=20 affidavit and upon a hearing; and
[41]	(3) terminates when the final judgment is entered or when the = petition=20 for dissolution of marriage or legal separation or declaration of=20 invalidity of marriage is dismissed." (emphasis added) 750 ILCS = 5/501=20 (West 1997).
[42]	In amending sections 508(a) and 501(c-1), the legislature also = amended=20 section 102 of the Dissolution Act, which sets forth the purpose = and rules=20 of construction under the Act. Prior to amendment, section 102 = provided,=20 in pertinent part:
[43]	"This Act is to be liberally construed and applied to promote = its=20 underlying purposes, which are to: ***
[44]	(5) make reasonable provisions for spouses and their children = during=20 and after litigation;***" 750 ILCS 102(5) (West = 1996).
[45]	As amended, section 102 now reads:
[46]	"This Act is to be liberally construed and applied to promote = the=20 underlying purposes, which are to: ***
[47]	(5) make reasonable provision for spouses and minor children = during=20 and after litigation, including provision for the timely awards of = interim=20 fees to achieve substantial parity in the parties access to funds = for=20 litigation costs; ***" 750 ILCS 5/102(5) (West = 1997).
[48]	As an indication that section 501(c-1) was intended to apply = only in=20 pre dissolution decree proceedings, petitioner points out that = several of=20 the factors listed under 501(c-1)(1) are applicable only in a pre=20 dissolution decree setting, most notably, section 501(c-1)(1)(A), = the=20 parties' access to "alleged marital property" and "alleged non- = marital=20 property." As further indicia of this intent, petitioner notes the = language of section 501(c-1)(2) creates a presumption that = "interim=20 awards*** shall be deemed to have been advances from the marital = estate";=20 a presumption which can only operate prior to the entry of a = dissolution=20 decree.
[49]	The problem with this proposed construction is that it ignores = the=20 plain language of the statue and concentrates only on limited = language=20 excised from the context of the statute as a whole. The most = compelling=20 evidence that the legislature intended 501(c-1) to apply in post = decree=20 proceedings, however, is the express language of section 501 = itself, which=20 indicates that "temporary relief," including "interim attorney's = fees," is=20 available in "all proceedings" under the Dissolution Act. Further, = section=20 501(c-1) must reasonably be understood in view of the concomitant = changes=20 to section 508(a). Section 508(a), when read as an integrated = whole,=20 expressly indicates that "interim attorney's fees and costs" may = be=20 awarded "in accordance with subsection (c-1) of section 501" and = in=20 connection with "the maintenance or defense of a petition brought = under=20 Section 2-1401 of the Code of Civil Procedure seeking relief from = a final=20 order or judgment under this Act." This construction, we note, = further=20 agrees with the amended language of section 102(5), which defines = the goal=20 of interim awards broadly as "substantial parity in the parties = access to=20 funds for litigation costs" both "during and after=20 litigation."
[50]	Although petitioner is correct that some of the factors listed = under=20 501(c-1)(1) would be irrelevant in a post decree proceeding, we = note the=20 statute does not mandate consideration of each and every factor = listed,=20 only the "relevant factors, as presented, that appear reasonable." = Similarly, although the language of section 501(c-1)(2) creates a=20 presumption that "interim awards" are to be deemed "advances from = the=20 marital estate" this is presumption is qualified with the = prefatory=20 language, "unless ordered by the court at the final hearing = between the=20 parties or in a hearing under subsection (j) of 503 or subsection = (c) of=20 508." Ideally, any judicial inquiry into legislative intent should = begin=20 and end with a plain reading of the statute. Such a situation is = presented=20 here, as the plain language of section 501(c-1), as well as = section=20 508(a), is unambiguous. Under a plain reading of the statute, we = conclude=20 the legislature intended section 501(c-1) to apply in post decree=20 proceedings.
[51]	Having determined that section 501(c-1) applies in post decree=20 proceedings, we still must address whether its application in that = context=20 is constitutional. While petitioner's brief is unclear as to = whether his=20 constitutional attack on section 501(c-1) is brought under = substantive due=20 process or procedural due process, petitioner appears to contend = that in a=20 post decree proceeding section 501(c-1): (1) violates substantive = due=20 process because it is an overly broad restraint on non marital = property,=20 and (2) violates procedural due process because it does not afford = a party=20 the right of an evidentiary hearing before taking non marital=20 property.
[52]	In evaluating a substantive due process claim concerning non=20 fundamental rights, the court applies the "rational basis test." = Kaufman,=20 Litwin & Feinstein v. Edgar, 301 Ill.App.3d 826, 836 (1998). = Under=20 this test, the court must determine whether the legislation has a=20 reasonable relationship to the public interest sought to be = protected and=20 whether the means the legislature adopted to achieve its goals = reasonably=20 related to such goals. Kaufman, 301 Ill.App.3d at 836. Previously, = in=20 Kaufman, this court examined the constitutionality of section = 501(c-1),=20 under the rubric of substantive due process. Applying the rational = basis=20 test, the court found section 501(c-1) to be facially = constitutional,=20 rejecting plaintiff's claim the statute violated substantive due = process=20 by depriving lawyers of the right to keep fees they had earned. = Kaufman,=20 301 Ill.App.3d at 836. Still, the court noted its holding would = not=20 preclude a later finding that section 501(c- 1) was = unconstitutionally=20 applied under particular circumstances. Kaufman, 301 Ill.App.3d at = 836. In=20 this case, because we are presented with a constitutional attack = on a=20 different aspect of the statute than was presented in Kaufman, we = engage=20 in an independent analysis under substantive due = process.
[53]	Here, the crux of petitioner's substantive due process claim is = that=20 section 501(c-1), as it applies in post decree proceedings, is = analogous=20 to the statute at issue in Messenger v. Edgar, 157 Ill.2d 162 = (1993),=20 which the Illinois Supreme Court found unconstitutional under a=20 substantive due process analysis. In Messenger, the statute in = question=20 was section 501.1(a)1 of the Dissolution Act, which created an = automatic=20 stay prohibiting spouses from transferring or disposing of any = property,=20 both marital and non marital property, upon the filing of a = dissolution=20 action. Messenger, 157 Ill.2d at 167-69. Applying the rational = basis test,=20 the Supreme Court found that the statute was not a rational means = of=20 accomplishing its stated goal, preventing the dissipation and = concealment=20 of marital assets because it imposed an automatic stay restraining = not=20 only martial property, but also non marital property, which the = other=20 spouse could in no way lay claim to. Messenger, 157 Ill.2d at=20 176-77.
[54]	Contrary to petitioner's assertion, we do not find section = 501(c-1)=20 shares the same constitutional infirmity as the statute in = Messenger. In=20 enacting section 501(c-1), the legislature's goal was to level the = playing=20 field by equalizing the parties litigation resources where it is = shown=20 that one party can pay and the other party cannot. In re Marriage = of=20 DeLaraco, 313 Ill.App. 3d 107, 113 (2000). Essentially the same = goal=20 underlies section 508(a): to equalize the relative positions of = the=20 parties before the court by shifting liability for attorney fees, = thereby=20 diminishing the advantage one party may have over the other in the = presentation of a case due to a disparity in their respective = financial=20 resources. Lee v. Lee, 302 Ill.App.3d 607, 612 (1998). Here, = petitioner=20 acknowledges section 508(a), in permitting liability for = attorney's fees=20 to be reallocated between the parties in post decree actions, is = valid a=20 means rationally related to a legitimate public objective. = Petitioner's=20 attack on section 501(c-1) is therefore directed primarily against = the=20 means adopted, rather than the legitimacy of the statute's public=20 purpose.
[55]	As distinguished from section 508(a), section 501(c-1) = streamlines the=20 method by which a financially disadvantaged party may obtain = attorney's=20 fees during the pendency of litigation. By eliminating the hurdle = of an=20 evidentiary hearing in most cases, section 501(c-1) limits the = ability of=20 a party in a financially advantageous position from using the = other=20 party's lack of adequate funds as tactical tool, and allows an=20 economically disadvantaged party to retain counsel in a timely = fashion.=20 See A General Explanation of the "Leveling the Playing Field" in = Divorce=20 Litigation Amendments, 11-SEP CBA Rec.32 (1997). Section 501(c-1), = unlike=20 section 508(a), also presumes to equalize the parties' access to=20 litigation resources, creating a rebuttable presumption that "an = interim=20 award shall not be less than the payments made or expected to be = made to=20 the counsel for the other party." 750 ILCS 501(c-1)(3) (West = 1997). Still,=20 this presumption can only come into play once the party seeking = fees=20 demonstrates an inability to pay fees and the ability of the other = party=20 to do so; this being the same burden a party seeking fees must = sustain=20 when bringing a petition under section 508(a). By allowing interim = awards=20 pursuant to summary procedures, yet also allowing for the = modification of=20 awards before a final hearing, section 501(c-1) attempts to effect = an=20 equitable compromise between two competing concerns. On the one = hand, by=20 permitting underlying claims to proceed towards a determination on = the=20 merits, without a protracted sub- trial on fees at the outset, = section=20 501(c-1) prohibits a financially advantaged party from "stringing = out" the=20 litigation so as to force a financially disadvantaged party into = ceding=20 valid claims. See A General Explanation of the "Leveling the = Playing=20 Field" in Divorce Litigation Amendments, 11-SEP CBA Rec.32(1997); = See=20 also, "Leveling the Playing Field in Divorce: Questions and = Answers About=20 the New Law, 85 Ill.Bar Journal 410-11 (1997). On the other hand, = in=20 recognition that interim awards are truly a form of "temporary = relief,"=20 and that facts and circumstances change and develop in course of=20 litigation, section 501(c-1) still allows for the modification or=20 revocation of any award. 11-SEP CBA Rec.32-33.
[56]	Unlike the statute in Messenger, which imposed a sweeping = restraint on=20 all non martial assets for purposes of preventing the dissipation = of=20 marital assets, however, section 501(c-1) specifically avoids the = problem=20 of over breadth by providing that any over payment of fees, = whether=20 derived from marital or non marital property, can be ordered to be = remitted back to a party. See,1 H. Gitlin, Gitlin on Divorce = =C2=A7 19-8, at 92=20 (2d ed. supp. 1997). Further, unlike the statute in Messenger, = section=20 501(c-1) does not operate indiscriminately or automatically to = restrain=20 all non marital property. Rather, for a party to be compelled to = give up=20 non marital assets to pay another party's fees, a genuine = disparity in the=20 parties' respective access to financial assets first must be = demonstrated,=20 as would prevent one party from participating equally in pending=20 litigation. Any restraint on non marital property resulting under = section=20 501(c-1), moreover, remains a product of judicial discretion, = rather than=20 the mechanical application of the statute, as a judge familiar = with case=20 must ultimately determine what if any award is necessary to allow = both=20 parties to participate equally. Further, in a given case, it is = the judge=20 too who must determine whether expedited summary procedures are = even=20 appropriate, or whether an evidentiary hearing is necessary to = making an=20 informed determination.
[57]	Statutes carry a strong presumption of constitutionality, and = the=20 party challenging the constitutionality of a statute bears the = burden of=20 rebutting that presumption. Lulay v. Lulay, 193 Ill.2d 455, 470 = (2000).=20 Whether a statute is wise is a different question from whether a = statue is=20 constitutional. Village of Schaumburg v. Doyle, 277 Ill.App.3d = 832,=20 (1996). Here, we cannot say that the means adopted by the = legislature to=20 level the playing field during pending litigation, under section = 501(c-1),=20 are unreasonable or over broad as applied in post decree=20 proceedings.
[58]	Petitioner argues separately that section 501(c-1) as it applies = in=20 post decree proceedings violates procedural due process because it = allows=20 the taking of non marital property without affording the right of = an=20 automatic evidentiary hearing. Again, it is not clear from = petitioner's=20 brief whether his constitutional attack is a facial attack on the = statute=20 or an attack on the statute as it applied to him in this case. = Still, the=20 record indicates that petitioner never requested an evidentiary = hearing or=20 argued there was good cause for a hearing, and therefore waived = that=20 right. See In re Marriage of McHenry, 292 Ill.App.3d 634, 643 = (1997).=20 Under these circumstances, we must assume petitioner's procedural = due=20 process attack on the statute is facial in = nature.
[59]	Procedural due process claims concern the constitutionality of = the=20 specific procedures employed to deny a person's life, liberty or = property.=20 Segers v. Industrial Comission,191 Ill.2d 421, 434 (2000). = Procedural due=20 process is meant to protect persons from the mistaken or = unjustified=20 deprivation of life, liberty or property, not from the deprivation = itself.=20 Segers,191 Ill.2d at 434. To survive a facial challenge, the = procedures a=20 statute incorporates must at least be adequate to authorize the=20 deprivation with respect to some of the persons subject to it. = Matter of=20 Perona, 294 Ill.App.3d 755, 762 (1998). At a minimum, due process = requires=20 that a deprivation of property cannot occur without providing = notice and=20 an opportunity for a hearing appropriate to the nature of the = case. City=20 of Marseilles v. Union Bank, 317 Ill.App.3d 931, (2000). In = evaluating=20 procedural due process claims, the court uses a three part test, = under=20 which the court (1) asks the threshold question whether there = exists a=20 liberty or property interest which has been interfered with by the = State,=20 (2) examines the risk of an erroneous deprivation of such an = interest=20 through the procedures already in place, while considering the = value of=20 additional safeguards, and (3) addresses the effect the = administrative=20 burden would have on the state's interest. Segers v. Industrial=20 Commission, 191 Ill.2d 421, 434 (2000).
[60]	Looking to the first of the due process considerations above, it = is=20 clear that petitioner, and any person who is compelled to pay an = opposing=20 party's attorney's fees pursuant to section 501(c-1) has their = property=20 interfered with by the State. As to the second element of the due = process=20 test, which requires us to examine the procedures already in place = under=20 the statute, we find the court's analysis in Kaufman to be=20 pertinent.
[61]	In Kaufman, the court was presented with a facial challenge to = section=20 501(c-1) under procedural due process. There, plaintiff argued = that=20 section 501(c-1) violated procedural due process because a lawyer = who had=20 already earned fees could be forced to return fees to the marital = estate=20 without the opportunity of a fair hearing. Kaufman, 301 Ill.App.3d = at 836.=20 The court rejected this argument, finding section 501(c-1) to be=20 constitutional. Citing the Illinois Supreme Court's decision in, = Raintree=20 Health Care Center v. Illinois Human Rights Commission, 173 Ill.2d = 469=20 (1996) the court noted that nonevidentiary hearings have been held = to be=20 procedurally proper means of deciding fee petitions, as long as = the=20 decision maker can determine, from the evidence presented in the = petition=20 and answer, what amount would be a reasonable award of fees and = the=20 opposing party has an opportunity to be heard. Kaufman, 301 = Ill.App.3d at=20 837. The court further observed that section 501(c-1) incorporates = the=20 basic protections of procedural due process by providing that a = fee=20 petition must be supported by affidavits, a party opposing a fee = petition=20 must be given a reasonable opportunity to file a responsive = pleading, and=20 gives parties the opportunity of an evidentiary hearing on good = cause=20 shown. Kaufman, 301 Ill.App.3d at 837. The court concluded that = because an=20 evidentiary hearing is still held if it is found necessary under = 501(c-1),=20 there was no violation of procedural due process. Kaufman, 301 = Ill.App.3d=20 at 837.
[62]	Applying the same reasoning as employed in Kaufman, we agree = section=20 501(c-1) is facially sufficient to protect against the erroneous=20 deprivation of property, be it non marital or marital. Section = 501(c-1),=20 like section 508(a), mandates that before any fees can be awarded, = the=20 party seeking fees must first demonstrate the inability to pay and = the=20 ability of the other party to meet both their obligations. In re = Marriage=20 of Minear, 287 Ill.App.3d 1073, 1084-85 (1997). Further, although = an=20 evidentiary hearing is not required under section 501(c-1), any = interim=20 award must nevertheless be supported by non-testimonial evidence, = as=20 submitted by the parties in the form of affidavits, financial = disclosure=20 statements, requests for judicial notice, etc. See FAMILY LAW = =C2=A7 2.88=20 (Illinois Institute for Continuing Legal Education, 1998, = Supp.2001). Most=20 significantly, however, and as emphasized by the court in Kaufman, = section=20 501(c-1) does not foreclose the opportunity of an evidentiary = hearing, but=20 still allows for a hearing where good cause is shown. Considering = the=20 third element of the due process test, we further observe that = mandating=20 an evidentiary hearing in every post decree proceeding would = undermine the=20 State's interest: to achieve substantial parity in the parties = access to=20 funds for litigation, including the timely award of interim fees, = in all=20 proceedings under the Dissolution Act. Although a party arguably = has a=20 greater interest in non marital property than in marital property, = in that=20 the interest is not shared with another, this individual interest = must be=20 balanced against the State's public interest in the institution of = marriage, and by extension, the State's interest in ensuring the = fairness=20 and integrity of all proceedings related to dissolution. West v. = West, 294=20 Ill.App.3d 356, 361 (1998) (In dissolution proceedings, the State = is a=20 third party, representing the public interest in the institution = of=20 marriage). As it applies in post decree proceedings, we find = section=20 501(c-1) does not violate procedural due = process.
[63]	Petitioner alternately contends that even if section 501(c-1) = applies=20 in post decree proceedings, the circuit court erred in granting = the=20 interim award because the petition: (1) failed to adequately = establish=20 petitioner's ability to pay fees and (2) failed to adequately = establish=20 that the fees requested were "reasonable." While petitioner frames = his=20 argument as an attack upon the facial sufficiency of the = petition's=20 allegations, his argument is essentially evidentiary in nature. A = section=20 501(c-1) petition is unique in that it serves both as the claim = for relief=20 and the evidence on which any relief must be based. In substance,=20 petitioner's claim here is that there was inadequate documentary = evidence=20 attached to the petition to substantiate that petitioner was able = to pay=20 fees and the fees sought were reasonable. We review the circuit = court's=20 decision to award attorney's fees to determine if the court abused = its=20 discretion. In re Marriage of DeLarco, 313 Ill.App.3d 107, 111 = (2000) (The=20 decision of whether to allow attorney's fees in dissolution = actions is=20 within the trial court's discretion).
[64]	For purposes of a section 501(c-1) petition, the party seeking = fees=20 must demonstrate the inability to pay and the ability of the other = party=20 to pay both parties fees. 750 ILCS 501(c-1)(3) (West 1999). Here,=20 petitioner contends the circuit court erred in granting an interim = award=20 because the petition failed to adequately demonstrate his ability = to pay=20 Nancy's attorney's fees.
[65]	However, a review of Nancy's financial disclosure affidavit = indicates=20 the balance between her income and expenses established she was = unable to=20 pay her own fees. In her petition and affidavit, Nancy further = alleged=20 that petitioner had the ability to pay both her and his own = attorney's=20 fees because he had access to vast sources of income from the = operation of=20 one gas station, the proceeds from the sale of second gas station, = and=20 extensive lines of credit with financial institutions based on = these=20 assets and income. Nancy and her attorney further represented in=20 affidavits that petitioner had thwarted discovery in the past and = retained=20 control of the relevant information pertaining to these assets. = Petitioner=20 now contends, however, that in order to establish his ability to = pay it=20 was incumbent upon Nancy to attach documents to substantiate the=20 petition's allegations, including petitioner's current pay stub, = savings=20 and other bank account statements, and petitioner's current = financial=20 income and expense affidavit. The problem with this position is = obvious,=20 as petitioner, rather than respondent, was in control of the = relevant=20 information. Significantly, petitioner chose not to file a counter = affidavit or a financial disclosure statement, and did not deny = having the=20 ability to pay, demanding strict proof thereof. Although the party = seeking=20 fees has the burden of showing the ability of the other party to = pay, we=20 note that waiver of a party's claim of inability to pay attorney's = fees=20 may occur where a party refuses to present evidence of his own = financial=20 circumstances. See In re Marriage of Walters, 238 Ill.App.3d 1086 = (1992).=20 Waiver aside, the trial judge, who was familiar with the case, was = in a=20 position to assess past hurdles in discovery and consider = petitioner and=20 respondent's access to information as a factor relevant to a=20 determination. 750 ILCS 501(c-1)(1)(G) (West 1998). In sum, we = cannot say=20 that it was an abuse of discretion to grant the interim award, in = view of=20 the uncontradicted representations concerning petitioner's ability = to=20 pay.
[66]	Petitioner also contends that the circuit court erred in = granting the=20 fee petition because the petition failed to set forth adequate = information=20 to substantiate that the fees sought were "reasonable." = Specifically,=20 petitioner maintains that in order to demonstrate the = "reasonableness" of=20 the fees being sought under section 501(c-1), Nancy was required = to=20 provide an itemized billing statement of the services rendered by = her=20 attorney, a copy of the retainer agreement with her attorney, and = her=20 attorney's hourly rate. We disagree.
[67]	The preamble and text of section 501(c-1) specifically indicate = that=20 any interim award must reflect, "reasonable attorney's fees and = costs." It=20 follows that a petition under section 501(c-1) must adequately = address the=20 element of "reasonableness" prerequisite to an interim award. = Subsection=20 (1) of section 501(c-1) indicates, however, that a petition for = fees need=20 only be supported by affidavits which delineate the relevant = statutory=20 factors. Thus, contrary to petitioner's assertion, it is clear = from the=20 express language of the statute that itemized billing statements = and a=20 copy of a retainer agreement are not necessary to establish=20 "reasonableness." Here, in an attached affidavit, Nancy's attorney = represented that Nancy had incurred $13,701.25 in attorney's fees = in=20 connection with the action to vacate the judgment, and would = likely be=20 incur an additional $15,000 in fees, because substantial discovery = and=20 depositions would be necessary. Again, petitioner never contested = the=20 reasonableness of the fees being sought, instead taking the = position the=20 petition was legally insufficient because it lacked adequate = documentary=20 evidence. To the extent petitioner now urges the fees were = unreasonable,=20 he waived this issue by failing to raise it in the trial court. In = re=20 Marriage of LaTour, 241 Ill.App.3d 500, 506 (1993). Even assuming = the=20 issue was not waived, the trial judge, who had presided over the = case for=20 more than a year, was in a position to assess the reasonableness = of the=20 fees, based on his own experience and knowledge of the procedural = history=20 of the case. See In re Marriage of Powers, 252 Ill.App.3d 506, 508 = (1993)=20 (In awarding attorney fees under the Dissolution Act, trial judge = may rely=20 on his or her own knowledge and experience when deciding value of = services=20 provided). Under the circumstances, we find no abuse of discretion = in=20 granting the petition for interim fees.
[68]	Finally, petitioner requests this court to vacate the contempt = order=20 because his conduct was not contemptuous and did not hold the = circuit=20 court is disdain or subject it to scorn.
[69]	It is well settled that exposing one's self to a finding of = contempt=20 is an appropriate method of testing the validity of a court order. = Buckholtz v. MacNeal Hosp., 313 Ill.App.3d 521(2000). Further, = where a=20 refusal to comply with the court's order constitutes a good-faith = effort=20 to secure an interpretation of an issue without direct precedent, = it is=20 appropriate to vacate a contempt citation on appeal. In re = Marriage of=20 Daniels, 240 Ill.App.3d 314, 338-39 (1992).
[70]	In this case, the record indicates that petitioner asked to be = held in=20 contempt, so as to allow review of a novel issue of Illinois law. = In the=20 absence of a contempt order, the issue would not otherwise have = been=20 reviewable, as orders addressing interim attorney fee awards are = not=20 subject to interlocutory appeal. In re Marriage of Tetzlaff, 304=20 Ill.App.3d 1030 (1999). The circuit court's order also reflects = the court=20 understood that petitioner's reason for refusing to pay the fees = was to=20 obtain appellate review. In light of this, we direct the circuit = court to=20 vacate the order of contempt against petitioner.
[71]	For the foregoing reasons, the circuit court's order compelling=20 petitioner to pay interim fees is affirmed and the order of = contempt is=20 vacated.
[72]	Affirmed; contempt order vacated.
[73]	MCNULTY, P.J., and COHEN, J., concur.

	Opinion Footnotes

[74]	*fn1 Petitioner has supplemented the record with = his=20 unsigned affidavit. However, the record is unclear as to whether = this=20 evidence was ever tendered or considered by the circuit court.=20 Accordingly, it will not be considered on appeal. Palmros v. = Barcelona,=20 284 Ill.App.3d 642, 645 (1996)(A reviewing court will not consider = evidence not before trial = court).

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