{ "id": 3625183, "name": "JILL M. FOGLIANO, Petitioner-Appellant, v. ANTHONY T. FOGLIANO, Respondent-Appellee", "name_abbreviation": "Fogliano v. Fogliano", "decision_date": "1983-04-14", "docket_number": "No. 82-431", "first_page": "1018", "last_page": "1024", "citations": [ { "type": "official", "cite": "113 Ill. App. 3d 1018" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "373 N.E.2d 1332", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "71 Ill. 2d 13", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5448551 ], "opinion_index": 0, "case_paths": [ "/ill-2d/71/0013-01" ] }, { "cite": "396 N.E.2d 659", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "77 Ill. App. 3d 716", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3289762 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/77/0716-01" ] }, { "cite": "232 N.E.2d 316", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "318" } ], "opinion_index": 0 }, { "cite": "89 Ill. App. 2d 481", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2544491 ], "pin_cites": [ { "page": "485" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/89/0481-01" ] }, { "cite": "1981 Ill. Laws 2613", "category": "laws:leg_session", "reporter": "Ill. Laws", "opinion_index": 0 } ], "analysis": { "cardinality": 578, "char_count": 13377, "ocr_confidence": 0.766, "pagerank": { "raw": 2.5181844199340315e-07, "percentile": 0.8112322378640608 }, "sha256": "bae9be846d3644078561f111f55afa2f8bfdd140c42489fdc677f7ee6edea907", "simhash": "1:b838e90c1449ac65", "word_count": 2240 }, "last_updated": "2023-07-14T20:40:35.449940+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JILL M. FOGLIANO, Petitioner-Appellant, v. ANTHONY T. FOGLIANO, Respondent-Appellee." ], "opinions": [ { "text": "PRESIDING JUSTICE BARRY\ndelivered the opinion of the court:\nThe parties were divorced on July 12, 1976. Custody of the parties\u2019 minor child was given to the petitioner, Jill M. Fogliano. The decree provided that the respondent, Anthony T. Fogliano, pay a sum of $25 per week for the support of the minor child. The support payments were to increase to $40 per week after the respondent completed an apprenticeship.\nOn January 28, 1982, the petitioner filed a petition for rule to show cause why the respondent should not be held in contempt for wilfully failing to pay the weekly child support payments. The petition alleged that $9,835 in arrears was due her. She also asked the court to award attorney fees and court costs.\nThe respondent stated his reasons for his failure to make support payments in his response to interrogatories put to him by the petitioner. He alleged that the petitioner came to him in 1979 and told him \u201cit was more important that the Respondent be a father to the minor child than the actual money.\u201d The respondent said he was in poor financial condition at that time. He claimed that the petitioner said that if \u201che saw and kept the minor child for the Petitioner the Petitioner would not take Respondent into Court to collect this money.\u201d\nThe respondent also stated in his answers to the interrogatories that he did not complete the apprenticeship program mentioned in the divorce decree.\nOn April 6, 1982, the respondent filed a petition to suspend child support because he was being \u201claid off\u201d from his job at Caterpillar Tractor Company. He filed a motion for specific visitation of the minor child on April 14,1982.\nAfter a hearing on petitioner\u2019s petition for rule to show cause, the court entered an order on June 7, 1982. The order stated that the respondent had failed to prove his asserted defense of equitable estoppel. The duty of support was due and owing from the respondent to the petitioner at all times since the parties\u2019 divorce. The amount of support was $25 per week and not $40 per week, so that the amount in arrearage was $6,160. The order provided for a judgment against the respondent in the amount of $6,150. The court found the respondent in wilful contempt of court for failing to pay child support.\nThe order provided that the respondent pay the $25 per week support for so long as his supplemental unemployment benefits were received. In the event that the benefits ceased during his unemployment, the duty to pay support would abate. The respondent was ordered to use his best efforts to obtain employment. When the respondent became employed, he was to pay the petitioner $25 per week as support and an additional $25 per week towards the arrearage.\nThe respondent's motion for specific visitation was denied in the order.\nThe order further stated: \u201cThat Petitioner\u2019s request for attorney\u2019s fees is denied and that each party is directed to pay his and her own respective fees.\u201d\nThe petitioner filed a timely appeal. She asserts that the trial court did not have the discretionary power to deny attorney fees under section 508(b) of the Illinois Marriage and Dissolution of Marriage Act (111. Rev. Stat. 1981, ch. 40, par. 508(b)). The petitioner argues that while the court had discretion to determine reasonable fees, it had no authority to deny fees. She asks this court to vacate the order denying her request for fees and to remand the cause to the trial court for a determination of a reasonable amount of attorney fees.\nThe respondent argues that the petitioner\u2019s appeal cannot prevail because she has failed to file a complete record of the trial court\u2019s proceedings; that her issue cannot be reviewed without a report of proceedings or bystander\u2019s report. The respondent also argues that the awarding of attorney fees was discretionary with the court. He points out that the trial court acted properly in denying .the petitioner\u2019s attorney fees, because there was no evidence presented, either in the trial court or in the record, concerning the basis of reasonableness of the fees requested. There is no response to these allegations as the plaintiff did not file a reply brief.\nThe respondent filed a motion to dismiss the appeal on the ground that an inadequate record has been filed by the petitioner. He alleges that the petitioner has not filed a report of proceedings and has failed to comply with Supreme Court Rule 323 (87 Ill. 2d R. 323). This motion, along with the petitioner\u2019s objection to the motion, are taken with the case.\nThe petitioner argues against the respondent\u2019s motion to dismiss on the ground that the June 7, 1982, order constitutes a sufficient record for review of the question of law presented to us.\nWe have reviewed the June 7, 1982, order and find that it contains sufficient information to allow review of the petitioner\u2019s issue. Therefore, the respondent\u2019s motion to dismiss is denied.\nSection 508 of the Illinois Marriage and Dissolution of Marriage Act (111. Rev. Stat. 1981, ch. 40, par. 508), was recently amended by Public Act 82 \u2014 515, effective January 1, 1982. The Act changed the section to read:\n\u201cSec. 508. *** (a) The court from time to time, after due notice and hearing, and after considering the financial resources of the parties, may order either spouse to pay a reasonable amount for his own costs and attorney\u2019s fees and for the costs and attorney\u2019s fees necessarily incurred by the other spouse, which award shall be made in connection with the following:\n* * *\n(2) The enforcement or modification of any order or judgment under this Act other than the enforcement of a provision for child support.\n(b) In every proceeding for the enforcement of an order or judgment for child support in which relief is granted to the parent having custody of the child and the court finds that the failure to pay child support was without cause or justification, the court shall order the party against whom the proceeding is brought to pay the custodial parent\u2019s costs and reasonable attomey\u2019s fees.\u201d (Underlined portions were added by Public Act 82-515.) (1981 Ill. Laws 2613.)\nThe language of former part (b) remains unchanged; however, it is found under part (c).\nThe petitioner argues that under the new section 508(b), she should have been awarded reasonable attorney fees. She claims that the awarding of such fees is no longer discretionary with the trial court. The petitioner points out that the court had the discretion to determine reasonable fees in any amount but had no power to deny fees outright.\nThe primary consideration in construing the language of a statute is to give effect to the intent of the legislature. Where several constructions may be placed on a statute, the court should select that which leads to a logical result and avoid those which would be absurd. (Board of Education v. Community High School District No. 211 (1967), 89 Ill. App. 2d 481, 485, 232 N.E.2d 316, 318.) From a review of the case law, we note that the interpretation of section 508(b) in the instant case appears to be one of first impression in Illinois.\nSection 508(a) allowed the trial court to exercise its discretion in awarding attorney\u2019s fees and costs in certain actions brought under the Illinois Marriage and Dissolution of Marriage Act. (111. Rev. Stat. 1981, ch. 40, par. 508(a); In re Marriage of Pedersen (1979), 77 Ill. App. 3d 716, 396 N.E.2d 659.) Public Act 82 \u2014 515 specifically excludes support orders or judgments from that discretionary provision by the additional language in 508(a)(2). The language in section 508(a)(2), \u201cother than the enforcement of a provision for child support,\u201d states an exception to that to which section 508(a) applies. The trial court\u2019s discretionary power to order a spouse to pay a reasonable amount for costs and attorney fees incurred by the other spouse in the enforcement or modification of any order or judgment under chapter 40 does not apply to child support enforcement actions. An examination of section 508(b) under traditional rules of statutory construction reinforces this interpretation.\nPublic Act 82 \u2014 515 not only specifically excluded child support enforcement actions from the court\u2019s discretionary power in awarding costs and attorney fees, but added an additional paragraph, section 508(b), concerning support actions. The language of section 508(b) provides that the court \u201cshall\u201d order the payment of costs and fees under certain conditions. Those conditions require that in every child support enforcement action where the custodial parent of the child is granted relief and the failure to pay child support was \u201cwithout cause or justification,\u201d the party against whom the action was brought \u201cshall\u201d be ordered to pay the costs and reasonable attorney fees incurred by the custodial parent. While the statute\u2019s meaning appears quite clear, it is necessary to determine whether the use of the word \u201cshall\u201d requires a mandatory interpretation.\nThe use of the word \u201cshall\u201d is generally regarded as mandatory, however, it does not have a fixed or inflexible meaning. It can be construed as meaning \u201cmay\u201d depending on the legislative intent. (Andrews v. Foxworthy (1978), 71 Ill. 2d 13, 373 N.E.2d 1332.) In order to construe the meaning of \u201cshall\u201d in section 508(b), we have examined the intent of the legislators who enacted it.\nIn reviewing the legislative history of Public Act 82 \u2014 515, the arguments in the House and Senate clearly indicate that the awarding of costs and attorney fees was intended to be mandatory. (Illinois House of Representatives, 82nd General Assembly, Transcription of Debate, House Bill 534, April 22, 1981, at 63-64; May 14, 1981, at 267-76; June 29, 1981, at 23-28; Illinois Senate, 82nd General Assembly, Transcription of Debate, House Bill 534, June 16, 1981, at 72-73; June 23, 1981, at 76-79.) The legislature was concerned with the problem of nonsupport by parents who had been ordered by prior court decree to pay child support. It was pointed out during the debates that in the majority of cases the parent who is supposed to be paying child support to the custodial parent fails to do so. Because of this lack of support many custodial parents and their children must live on public aid. If the custodial parent tries to enforce the order of child support by court action, the party has the added financial burden of paying costs and attorney fees. This financial burden deters many custodial parents from enforcement action. It was noted that in some instances the amount of fees can exceed the amount of support arrearage so that there is no advantage in enforcement. The legislature also thought that if the change were enacted, out-of-court settlement of these child support cases would increase because the delinquent parent would know he or she was liable for costs and fees if the matter went to court.\nThe legislature also took into consideration the fact that in certain cases the delinquent parent may have reasons for nonpayment of support. The original bill was amended in the Senate to reflect this consideration by adding the requirement that nonpayment of support was \u201cwithout cause or justification.\u201d The legislature specified that it would be within the discretion of the trial court to determine if the nonpayment of support was without cause or justification.\nClearly the intention of the legislature was that the word \u201cshall\u201d in section 508(b) be mandatory. The purpose behind the amendment to section 508 would not be served if a permissive meaning was placed on \u201cshall.\u201d The custodial parent would be in the same position he or she was prior to the passage of the amendment if \u201cshall\u201d is not meant to be mandatory. Therefore, we find that section 508(b) is a mandatory provision requiring the trial court to order the parent against whom the child support enforcement action was brought to pay the costs and reasonable attorney fees incurred by the custodial parent in bringing the action. Of course, the court must find the delinquent parent failed to pay support \u201cwithout cause or justification.\u201d\nThe trial court in the instant case failed to order the respondent to pay the reasonable attorney fees incurred by the petitioner. The June 7, 1982, order indicates that the respondent was \u201cwithout cause or justification\u201d in his failure to pay child support. The order stated that the respondent failed to prove his defense of equitable estoppel and found the respondent in wilful contempt of court. The petitioner, the custodial parent, was awarded relief in her child support enforcement action against the respondent. Section 508(b) required that the respondent be ordered to pay the petitioner\u2019s costs and reasonable attorney fees under the circumstances here.\nBased on the foregoing analysis, that part of the order of the circuit court of Tazewell County which denied attorney fees to the petitioner is vacated. The cause is remanded for a hearing to determine the costs and reasonable attorney fees incurred by the petitioner in the enforcement action, the payment of which is to be made by the respondent.\nVacated and remanded.\nALLOY and SCOTT, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE BARRY" } ], "attorneys": [ "Stephen W. Bush and Michael L. Bush, both of Bush and Bush, of Morton, for appellant.", "Jack C. Vieley, of Peoria, for appellee." ], "corrections": "", "head_matter": "JILL M. FOGLIANO, Petitioner-Appellant, v. ANTHONY T. FOGLIANO, Respondent-Appellee.\nThird District\nNo. 82-431\nOpinion filed April 14, 1983.\nStephen W. Bush and Michael L. Bush, both of Bush and Bush, of Morton, for appellant.\nJack C. Vieley, of Peoria, for appellee." }, "file_name": "1018-01", "first_page_order": 1042, "last_page_order": 1048 }