                                       2016 IL App (1st) 151118
                                   Nos. 1-15-1118, 1-15-2908 (cons.)
                                                                                      Fifth Division
                                                                                 September 23, 2016

     ______________________________________________________________________________

                                         IN THE
                             APPELLATE COURT OF ILLINOIS
                                     FIRST DISTRICT
     ______________________________________________________________________________

     In re MARRIAGE OF                              )
                                                    )   Appeal from the Circuit Court
     KIM MATSON O’MALLEY, n/k/a/ Kim Godfrey,      )    of Cook County.
                                                    )
           Petitioner-Appellee,                     )   No. 01 D 14530
                                                    )
     and                                            )   The Honorable
                                                    )   Patricia Logue,
     PAUL R. O’MALLEY,                              )   Judge Presiding.
                                                    )
           Respondent-Appellant.                    )
     ______________________________________________________________________________

     PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion.
     Justices Reyes and Burke concurred in the judgment and opinion.

                                               OPINION

¶1         Petitioner Kim Godfrey filed a petition to dissolve her marriage to respondent Paul R.

        O’Malley, and the trial court entered a judgment dissolving the marriage, which incorporated

        a marital settlement agreement (MSA) signed by the parties. After the entry of the judgment

        for dissolution of marriage, the parties continued to litigate the terms of the MSA, including

        the terms related to the disposition of the former marital residence. While two appeals

        concerning the MSA have been before this court, the instant appeal concerns the trial court

        finding Paul in “indirect civil contempt” for failing to abide by the MSA’s September 1,

        2007, deadline for selling the marital residence or buying out Kim’s interest in the residence
     Nos. 1-15-1118, 1-15-2908 (cons.)


        and its orders concerning the distribution of the proceeds from the sale of the residence and

        awarding Kim attorney fees. For the reasons set forth below, we affirm in part and vacate in

        part the trial court’s order.

¶2                                         BACKGROUND

¶3          Kim Godfrey and Paul O’Malley were married on November 18, 1983. 1 In 2001, Kim

        filed a petition for dissolution of marriage, alleging irreconcilable differences as the reason

        for the dissolution. Kim and Paul executed a MSA on July 16, 2003, which contained,

        inter alia, a provision concerning the marital residence, a single family home located in Oak

        Park, Illinois. The trial court entered a judgment for dissolution of the marriage on the same

        day, which incorporated the MSA. The provision concerning the marital residence stated the

        following:

                “Paul and Kim will retain title and interest in Oak Park Marital real estate ***

            as tenants in common while PAUL maintains possession exclusive of KIM;

            PAUL will either place the Oak Park home for sale on or before September 1,

            2007, or buy out Kim’s interest. In the event that PAUL elects to buy out KIM’s

            interest—or the home is listed for sale—the parties will each have the right to

            obtain separate SRA appraisals to determine the then current average market sale

            price. If the first two (2) separate appraisals are not more than $100,000 apart,

            either party may elect to have the first two (2) appraisers designated a 3rd SRA

            appraiser to submit an independent appraisal, and in that event, the current

            average market sale price shall be determined by averaging the two (2) highest

            1
              As this case has come before this court on two previous appeals, we take all relevant
     facts from our previous decisions. In re Marriage of O’Malley, 2013 IL App (1st) 131641-U; In
     re Marriage of O’Malley, No. 1-10-2639 (2011) (unpublished order under Supreme Court Rule
     23).


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       appraisals obtained. Cost of an appraisal shall be borne by the party requesting an

       appraisal. Kim will receive on sale or buy out by PAUL, as set forth below:

          (1) If the Oak Park marital home is sold to third party(ies), KIM will receive

       50% of the net sale proceeds or at least $550,000, whichever is greater, after

       deduction from the gross sale proceeds of any realtor or sales commission, closing

       costs and for $250,000 representing the mortgage and home equity debt and any

       credit due PAUL as stated herein. PAUL must have paid all expenses due on the

       property prior to sale including all payments due on mortgages, home equity

       loans, liens, taxes, insurance and utilities, and any such unpaid obligations will be

       deducted from PAUL’s share of the equity realized from the sale of the residence.

       PAUL will receive a credit for costs paid by him, not to exceed $100,000, for

       special maintenance, preservation or improvement of the marital home, necessary

       to maintain full market value. Costs so incurred by PAUL shall require written

       documentation of work for costs and require pre-approval by KIM before work

       takes place for PAUL to obtain a credit sale at closing.

          (2) If PAUL elects to buy out Kim’s interest in the Oak Park marital home,

       Kim will receive 50% of the then current average market sale price, determined as

       stated in paragraph IC herein, or at least $550,000, whichever is greater, after

       deduction for $250,000, representing the mortgage and home equity debt and any

       credit due PAUL as stated herein. PAUL will receive a credit for costs paid by

       him, not to exceed $100,000, for special maintenance, preservation, or

       improvement of the marital home necessary to maintain full market value. Costs

       so incurred by PAUL shall require written documentation of work and costs and



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            require pre-approval by KIM before work takes place for PAUL to obtain a credit

            a buyout closing.”

¶4          Thus, while Paul maintained exclusive possession of the marital residence, the property

        was owned by Paul and Kim as tenants in common until either (1) Paul bought out Kim’s

        half of the property or (2) the property was placed for sale with Paul and Kim splitting any

        resulting proceeds. If the property was to be sold, the property was to be listed for sale on or

        before September 1, 2007.

¶5                               I. Kim’s Petition for Rule to Show Cause

¶6          On November 16, 2009, prior to the May 2012 sale of the marital residence, Kim filed a

        “Petition for Rule to Show Cause, to Modify Judgment for Dissolution of Marriage, and

        other Relief.” In count I of the petition, Kim alleged that after the judgment for dissolution of

        marriage was entered, Paul was unconcerned about the MSA’s September 1, 2007, deadline

        for putting up the marital residence for sale and that he made no efforts to arrange for the

        necessary repairs that were needed prior to placing the residence on the market. Kim alleged

        that Paul minimally participated in the repair and renovation process. Kim alleged Paul’s

        exclusive possession of the home and his minimal participation caused a delay in putting the

        marital residence on the market, which was ultimately done in 2008. Paul and Kim received

        an offer in August 2008 of $1.775 million, but Kim alleged that Paul felt that was a low offer

        and began to engage in negotiations with the prospective buyers. The final offer of $1.875

        million was received on September 17, 2008, and contained an expiration time of 9 p.m. Kim

        alleges that she signed the contract that day and expected Paul to do so as well. Paul

        allegedly disregarded the 9 p.m. deadline, and the strict instructions that the final offer was

        not subject to a counteroffer, and submitted a counteroffer anyway. The petition alleges that



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        Paul and Kim’s realtor for the marital residence contacted Kim to tell her that the prospective

        buyers had walked away from the deal because Paul submitted a counteroffer instead of a

        signed contract. According to the petition, the deal would have entitled Kim to a net of over

        $750,000 for her half of the sale. After the sale fell through, Kim allegedly had a large

        amount of debt that she was unable to pay due to the lost sale of the marital residence. The

        petition alleges that Paul’s uncooperative and unmotivated behavior resulted in the failure of

        the completed sale on the home and that his obligations from the judgment of dissolution of

        marriage were clear and his failure to comply with those terms were even clearer.

¶7          The second count, modification of the judgment, asked the court to modify the judgment

        of dissolution of marriage to grant Kim exclusive possession of the residence so that Kim

        could attempt to maximize the profits from the sale of the residence. The petition sought the

        following relief:

                   “(1) Enter an order requiring Respondent PAUL O’MALLEY to show

               cause, if any he can, for his failure to comply with the Judgment for

               Dissolution of Marriage; (2) find Respondent in contempt of this Court for his

               failure to abide by the terms of the Judgment for Dissolution of Marriage; (3)

               [o]rder Respondent immediately to pay Petitioner the sum of $767,500,

               representing Kim’s share of the proceeds of the lost sale of the Residence,

               which sale was lost as a direct result of Respondent’s contemptuous action;

               (4) [o]rder Respondent to be fully responsible for all improvement and

               maintenance cost incurred since the date the sale was to be closed, with no

               contribution from Kim; (5) [o]rder Respondent to tender Kim a sum equal to

               her additional costs incurred that are directly related to Respondent’s failure to



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                close the sale; (6) [o]rder Respondent to pay Petitioner’s attorney fees and

                costs associated with prosecuting this [p]etition; (7) [g]rant such other and

                further relief as this Court may deem just and equitable under the facts of this

                case; *** (8) [m]odify the Judgment for Dissolution of Marriage to terminate

                Respondent’s exclusive possession of the [r]esidence effective immediately;

                (9) [m]odify the Judgment for Dissolution of Marriage to name Petitioner as

                sole negotiator on any contracts for the sale of the [r]esidence; (10) [a]llow

                Petitioner sole right to select and contract with whatever realtor she may deem

                appropriate; and (11) [g]rant such other and further relief as this Court may

                deem just and equitable under the facts and circumstances of this case.”

¶8          On December 10, 2009, Paul responded to the petition, denying the allegation that he

        interfered with the sale. On January 5, 2012, the trial court found that Kim alleged a

        prima facie case of indirect civil contempt and issued an order for Paul to show cause why he

        should not be held in contempt of court for failing to comply with the terms of the judgment

        for dissolution of marriage. 2

¶9          Trial on the petition was set for March 13, 2012, but ultimately did not commence until

        September 2013. On March 12, 2012, Paul filed a motion for summary judgment arguing that

        there was no evidence to support a finding that he was in contempt for noncompliance, but

        his motion was denied. The marital residence was ultimately sold on May 18, 2012, for $1.5

        million, before the trial court could rule on Kim’s petition. On May 29, 2012, the trial court

        ordered that “ ‘[a]ny and all proceeds of sale of [the] former marital residence shall be held in


            2
              During this period, an interlocutory appeal was occurring on the disqualification of
     Paul’s attorney. In re Marriage of O’Malley, No. 1-10-2639 (2011) (unpublished order under
     Supreme Court Rule 23).


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          escrow,’ ” and Paul and Kim were ordered to execute the necessary documentation to

          establish that escrow account. In re Marriage of O’Malley, 2013 IL App (1st) 131641-U, ¶ 6.

          Paul filed a motion to vacate this order on June 25, 2012, arguing that it was a preliminary

          injunction. The trial court denied the motion on July 2, 2012, and we dismissed Paul’s appeal

          for lack of jurisdiction. O’Malley, 2013 IL App (1st) 131641-U, ¶ 26.

¶ 10                                         II. Contempt Trial

¶ 11          The trial on Kim’s petition for rule to show cause commenced in September 2013, and

          both parties called witnesses to testify on their behalf. Paul testified on his own behalf, while

          Kim presented the testimony of (1) Catherine Deam, Kim and Paul’s real estate agent for the

          marital residence; (2) Robert Polachek, Paul’s previous attorney; (3) Barbara Binik, the 2008

          prospective buyers’ realtor; and (4) herself. Since Paul does not challenge the trial court’s

          findings of fact, we relate here only the facts needed to understand the issues on appeal.

¶ 12          Deam testified 3 that she was chosen as Paul and Kim’s realtor to sell the marital

          residence, which was placed on the market later than the September 1, 2007, date specified in

          the MSA due to the staging of the marital residence, maintenance completed on the property,

          and the selection process of choosing a realtor that Paul and Kim both agreed upon; Deam

          explained that the marital residence was considered a historic home, as it was built by the

          architects Tallmadge and Watson, and she had experience in selling historic homes similar to

          the marital residence. The residence was eventually placed on the market in April 2008 for

          $2.3 million, and Deam received an offer from prospective buyers for $1.775 million.

¶ 13          Robert Polachek testified that after Paul received the offer from the prospective buyers,

          Paul asked Polachek to seek a modification of the final offer with respect to the closing date

              3
                 Deam provided an evidence deposition on May 2, 2012, and her deposition was used in
       lieu of live testimony.


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          and radon mitigation costs. Polachek testified that an e-mail with a counteroffer regarding the

          closing date and the radon costs was sent at 6:39 p.m. on September 17, 2008. Polachek also

          testified that the prospective buyers did not respond and the sale was subsequently

          terminated.

¶ 14          Barbara Binik, the prospective buyers’ realtor, testified that on September 17, 2008,

          around 12:48 p.m., she sent Deam a fax on behalf of her clients with a new offer. She

          additionally testified that this new offer was to be terminated at 9 p.m. that evening.

¶ 15          At trial, Kim testified that she and Paul agreed to use Deam as their realtor because she

          and Paul felt that the property’s historic status required a certain level of experience and they

          believed Deam was qualified to sell the marital residence. Kim testified that on August 11,

          2008, Kim and Paul received an offer on the property, and that through a series of

          negotiations, both parties agreed upon a price of $1.875 million for the marital property. The

          prospective buyers imposed a 9 p.m. deadline on their final offer. Kim testified that she

          signed the final offer prior to this deadline, but Paul did not. Kim testified that she became

          aware of the incomplete sale on September 22, 2008.

¶ 16          Prior to the prospective buyers’ final offer, Paul testified that he had the financial ability

          to buy out Kim’s interest in the marital residence but chose not to buy out her interest

          because it was not in his financial best interest to do so. In regards to the prospective buyers’

          final offer, Paul testified at trial that he told his attorney to e-mail the prospective buyers and

          seek a modification on the final offer. Paul testified that after the prospective buyers’ final

          offer terminated, the price of the marital residence was reduced over the years, and the final

          asking price was reduced to $1.59 million in 2012. The property sold in May 2012 for $1.5

          million.



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¶ 17                                       III. Contempt Order

¶ 18          On April 2, 2014, the trial court found Paul to be in “indirect civil contempt” and ordered

          Paul to pay an amount equal to half of the 2008 final offer of $1.875 million. Additionally,

          the trial court found Kim, Polachek, and Binik to be credible witnesses and Paul to be an

          incredible witness. The trial court ordered the following:

                 “(A) [t]he court has jurisdiction over the parties and the subject matter; (B)

              [t]he petition for Rule to Show Cause is granted. Paul failed to show cause for his

              failure to comply with the MSA and JDOM property provisions; (C) Paul R.

              O’Malley is held in indirect civil contempt of court for his willful and

              contumacious failures to abide by the parties’ MSA and JDOM as set forth above,

              including failing to comply with the September 1, 2007, MSA deadline and

              related obligations; recklessly destroying the September 17, 2008, contract

              opportunity for Kim without good cause; and failing repeatedly to deal fairly and

              in good faith with Kim and her contractual interests; (D) Paul breached his

              contract with Kim under the MSA by these same actions, causing her economic

              losses and other harms; (E) Paul shall pay Kim; 1) $153,473.30, representing the

              remaining principal due owing from the MSA distribution formula, after paying

              from Paul to Kim [the amount] of $157,000 from the escrow account; 2)

              $120,115.90 on prejudgment interest on the full principal amount of $310,473.30

              at 5% per annum simple interest for the period from September 1, 2007, through

              entry of the court’s judgment as an equitable remedy for the delays, expenses and

              other harms Paul caused to Kim during this period; 3) $14,487.65 for

              reimbursement of real estate taxes charged to Kim; and 4) 9% interest per annum



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              on all amounts due and owing upon this judgment, until fully paid per 735 ILCS

              5/2-1303; (F) [a]ll remaining funds in the escrow fund will be distributed to Kim

              with Paul receiving credits, as described above; (G) Kim’s motion to strike Paul’s

              affirmative defense of laches as to Count I of the Petition is granted; (H) Paul’s

              motion to dismiss Count II of Kim’s Petition of alleged lack of citation to legal

              authority is denied; [I] [t]he court incorporates by reference its prior rulings in this

              case, including rulings on dispositive motions; (J) [t]he parties may file any

              petitions for fees costs, and/or contribut[ions] arising under a statute and/or the

              MSA within 35 days of this order; and (K) [t]he court retains jurisdiction to

              enforce the terms of this order.”

¶ 19                                        IV. Posttrial Motions

¶ 20          Paul filed his posttrial motion to vacate the court’s order on April 29, 2014. The posttrial

          motion was denied on March 18, 2015. On April 17, 2015, Paul filed his notice of appeal

          based on the contempt findings and the amount of proceeds awarded to Kim that were based

          upon the 2008 final offer price. On September 17, 2015, the trial court awarded Kim

          $64,229.43 for attorney fees and costs. On October 13, 2015, Paul filed a notice of appeal on

          the trial court’s finding that Kim was entitled to recover for attorney fees and costs. Both

          appeals, regarding the contempt finding and the amount awarded to Kim including attorney

          fees, were consolidated on November 5, 2015.

¶ 21                                              ANALYSIS

¶ 22          On appeal, Paul argues that (1) Paul was actually held in indirect criminal contempt, not

          indirect civil contempt, which violated his constitutional rights; (2) the trial court’s damages

          award for breach of “the implied covenant of good faith and fair dealing” was invalid; (3) the



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          trial court did not have the authority to modify the terms of the property provisions of the

          parties’ MSA; (4) the trial court did not have the authority to award prejudgment interest as a

          remedy for contempt; (5) the petition for rule to show cause failed to state a cause of action

          and his motion to dismiss should have been granted; and (6) Kim was not entitled to attorney

          fees based off a fee-shifting provision in the MSA. We consider each argument in turn.

¶ 23                                            I. Contempt

¶ 24          Paul first argues that he was held in indirect criminal contempt in violation of his

          constitutional rights. Paul claims that the trial court’s contempt finding was actually criminal

          in nature because the requirements under the MSA no longer existed. By contrast, Kim

          contends that Paul was properly found to be in indirect civil contempt, as Paul was not

          punished by the court but coerced into complying with the MSA. The trial provided the

          following reasons as its basis for the indirect civil contempt finding:

                     “Paul *** is held in indirect civil contempt *** for his willful and

                 contumacious failure to abide by the parties’ MSA and JDOM as set forth

                 above, including failing to comply with the September 1, 2007, deadline and

                 related obligations; recklessly destroying the September 17, 2008, contract

                 opportunity for Kim without good cause; and failing repeatedly to deal fairly

                 and in good faith with Kim and her contractual interests.”

¶ 25          When a contempt appeal is filed, the standard of review is an abuse of discretion. Illinois

          Emcasco Insurance Co. v. Nationwide Mutual Insurance Co., 393 Ill. App. 3d 782, 785

          (2009). A trial court abuses its discretion only when “ ‘no reasonable person would take the

          view adopted by the trial court.’ ” (Internal quotation marks omitted.) Willbourn v.

          Cavalenes, 398 Ill. App. 3d 837, 848 (2010) (quoting Foley v. Fletcher, 361 Ill. App. 3d 39,



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          46 (2005)). “Whether a contempt finding should be vacated is a question to be determined on

          the individual facts of the particular appeal.” Dole v. Township High School District 211,

          2015 IL App (1st) 140857, ¶ 121 (citing Consolidation Coal v. Bucyrus-Eire Co., 89 Ill. 2d

          103, 122 (1982)).

¶ 26          In order to determine whether a contempt finding is civil or criminal in nature, it is

          important to consider “ ‘the purpose for which the contempt sanctions are imposed.’ ” Emery

          v. Northeast Illinois Regional Transportation Co., 374 Ill. App. 3d 974, 977 (2007) (quoting

          In re Marriage of Sharp, 369 Ill App. 3d 271, 278 (2006)). Civil contempt is “ ‘designed to

          compel future compliance with a court order’ ” and is “ ‘avoidable through obedience.’ ”

          Emery, 374 Ill. App. 3d at 977 (quoting Sharp, 369 Ill. App. 3d at 279). A person held in

          civil contempt must have the ability to purge the contempt by complying with the court

          order. Pryweller v. Pryweller, 218 Ill. App. 3d 619, 633 (1991). Contempt based on past

          actions which cannot be undone means that the contemnor lacks the ability to purge the

          contempt (see Luttrell v. Panozzo, 252 Ill. App. 3d 597, 602 (1993)) because the purpose of

          civil contempt is to compel compliance with court orders, not to punish (County of Cook v.

          Lloyd A. Fry Roofing Co., 59 Ill. 2d 131, 135 (1974)). Therefore, whenever a court order

          cannot be complied with, there cannot be a finding of civil contempt. In re Marriage of Betts,

          200 Ill. App. 3d 26, 46 (1990).

¶ 27          By contrast, criminal contempt is “ ‘instituted to punish, as opposed to coerce, *** for

          past contumacious conduct.’ ” Emery, 374 Ill. App. 3d at 977 (quoting Sharp, 369 Ill. App.

          3d at 279). Criminal sanctions are retrospective in that “ ‘they seek to punish a contemnor for

          past acts [that] he cannot now undo.’ ” Emery, 374 Ill. App. 3d at 977 (quoting Betts, 200 Ill.

          App. 3d at 46). “ ‘[I]ndirect civil contempt is a continuation of the original cause of action,’ ”



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          while criminal contempt proceedings are separate and distinct and not part of the original

          case being tried. Levaccare v. Levaccare, 376 Ill. App. 3d 503, 509 (2007) (quoting People v.

          Budzynski, 333 Ill. App. 3d 433, 438 (2002)). In short, criminal contempt consists of

          punishing for doing what has been prohibited or not doing what has been ordered, while civil

          contempt is invoked to coerce what has been ordered (Budzynski, 333 Ill. App. 3d at 438),

          and once the contemnor complies, no further civil sanctions are imposed (Betts, 200 Ill. App.

          3d at 44). In sum, the attributes of civil contempt are that (1) the contemnor is able to

          perform the action demanded by the court and (2) no further civil sanctions are imposed if

          the contemnor complies. Betts, 200 Ill. App. 3d at 44.

¶ 28          In the case at bar, Paul contends that the trial court’s finding of civil contempt was

          actually indirect criminal contempt, and thus his constitutional rights were violated. Kim

          argues that the trial court properly found Paul to be in civil contempt and that the court

          merely ordered him to comply with his obligations set forth in the judgment for dissolution

          of marriage. 4 The trial court’s April 2, 2012, order found Paul to be in “indirect civil

          contempt” for the following reasons: (1) his failure to abide by the September 1, 2007,

          deadline for selling the marital residence; (2) lying about his capacity to buy out Kim’s share

          of the property; and (3) “killing” the 2008 sale without consulting Kim. The trial court found

          Paul to be an incredible witness, and as the trial court is the finder of fact and in the best

          position to observe the conduct and determine the credibility of the witnesses, we give the

          trial court deference and apply the manifest weight of the evidence standard of review upon

          our review of any factual findings. See Eychaner v. Gross, 202 Ill. 2d 228, 252 (2002). While

              4
                The parties do not dispute that the contempt was indirect, since it did not occur in the
       trial court’s presence. See Levaccare, 376 Ill. App. 3d at 509; Budzynski, 333 Ill. App. 3d at 436
       (discussing how the petitioner in Levaccare filed a petition for adjudication of indirect civil
       contempt, as the respondent failed to comply with the court’s order).


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          the trial court labeled the contempt as civil in nature, the substance of the contempt finding,

          not the label given, is what will determine whether the contempt finding was criminal or civil

          in nature. SKS & Associates, Inc. v. Dart, 2012 IL App (1st) 103504, ¶ 15 (the appellate court

          is not bound to the trial court’s designation of civil or criminal contempt, but instead will

          examine the nature of the sanctions imposed).

¶ 29          Once the sale was complete, Paul could not comply with MSA or any court orders

          requiring him to comply. As a result, the trial court’s order actually found him to be in

          criminal contempt, not civil contempt. The fundamental nature of civil contempt is to coerce

          an individual to comply with a court order by giving that individual the opportunity to purge

          himself of contempt through compliance. Pancotto v. Mayes, 304 Ill. App. 3d 108, 111

          (1999). In the case at bar, the trial court based its finding of civil contempt upon the

          condition it would afford Paul the opportunity to purge himself of the contempt charge

          “[u]pon Kim’s receipt of all escrowed funds allocated to her under this order.” However, a

          finding of civil contempt is not proper unless the ability to purge a contempt finding is within

          the power of the contemnor. In re Marriage of Berto, 344 Ill. App. 3d 705, 713 (2003).

¶ 30          For instance, in Berto, the appellate court found that once the respondent paid the

          unallocated maintenance and child support that was owed to the petitioner, he no longer had

          the ability to “ ‘purge’ ” himself of the alleged contempt, and thus, there remained no basis

          for a finding of civil contempt. Berto, 344 Ill. App. 3d at 713. In the case at bar, the marital

          residence was sold on July 16, 2012, which meant Paul did not have the ability to comply

          with the order at the time of the contempt hearing because he could not have put the marital

          residence up for sale or bought out Kim’s share of the home because it had been sold to

          another person. A finding of civil contempt would only have been proper if Paul had the



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          ability to place the home on the market or buy out Kim’s share. However, since the sale of

          the home was completed, Paul was unable to buy out Kim’s share of the home. The purge

          provision of the trial court’s order could not provide Paul with the opportunity to comply

          with the MSA because that opportunity did not exist once the home was sold. As a result, the

          contempt finding can only be determined to be criminal in nature because it was punishing

          Paul for his past conduct.

¶ 31          A person charged with criminal contempt is entitled to similar constitutional protections

          and procedural rights that a criminal defendant is afforded. In re Marriage of Weddigen,

          2015 IL App (4th) 150044, ¶ 27. For instance, in Weddigen, the appellate court found that the

          respondent was not afforded many of the constitutional and procedural rights he should have

          been afforded when the indirect civil proceedings transformed into indirect criminal

          contempt proceedings. Weddigen, 2015 IL App (4th) 150044, ¶ 28. Even though the

          contempt proceedings in Weddigen appeared to be both civil and criminal in nature, the court

          found that once the original petition, which sought civil contempt, transitioned to be criminal

          in nature, certain constitutional and procedural protections were required. Weddigen, 2015 IL

          App (4th) 150044, ¶¶ 26, 28. A failure to provide constitutional and procedural guarantees

          results in vacatur of the contempt finding. Luttrell, 252 Ill. App. 3d at 601. The constitutional

          protections that are allowed for all criminal defendants are (1) right to jury trial when

          incarceration exceeds six months or the fine exceeds $500; (2) right to counsel; (3) right to

          change of judge; (4) right to be charged with a written complaint, petition, or information; (5)

          right to personal service and to know the nature of the charges; (6) right to file an answer and

          a have public trial; (7) right to present evidence, subpoena witnesses, and to confront and

          cross-examine witnesses; (8) right to the presumption of innocence and against self-




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          incrimination; and (9) right to be proven guilty beyond a reasonable doubt. Budzynski, 333

          Ill. App. 3d at 439. In addition, the trial court must admonish defendant of his constitutional

          rights.

¶ 32          In the case at bar, Paul was not notified of a criminal contempt proceeding, was not

          admonished as to his rights, nor found guilty beyond a reasonable doubt for a criminal

          contempt charge. Thus, Paul was not afforded his constitutional rights when found to be in

          contempt that was criminal in nature. As a result, the contempt finding is vacated.

¶ 33                            II. Breach of Contract and Remedy Awards

¶ 34          Next, Paul argues on appeal that the trial court’s award for breach of “the implied

          covenant of good faith and fair dealing” was improper because using the implied covenant of

          good faith and fair dealing as the sole basis for a breach of contract finding is improper. In

          the case at bar, the trial court based its breach of contract finding on Paul’s failure to abide by

          the parties’ MSA and judgment for dissolution of marriage, which included Paul failing to

          comply with the September 1, 2007, deadline and related obligations, recklessly destroying

          the 2008 contract opportunity, and failing to repeatedly deal in good faith with Kim.

          However, the trial court indicated that breach of contract was an alternative basis to its

          contempt findings by stating, “Should the contempt finding or remedy be invalidated for any

          reason, in whole or in part, the parallel contract remedy shall apply instead as to any invalid

          portions.” As we find the contempt finding to be improper, it is therefore necessary to

          consider whether the alternative contract remedy was legally proper.

¶ 35          Paul bases his argument on the allegation that Kim’s petition did not state a claim for

          breach of contract or upon a breach of the implied covenant of good faith and fair dealing. As

          a result, Paul argues that Kim is unable to recover from a cause of action that was not



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          pleaded in her pleadings. Paul contends that this finding should also be vacated so that Paul

          can demand a jury trial and provide a proper defense. Kim argues that the trial court merely

          provided an alternative basis to find that Paul violated the MSA.

¶ 36          A trial court can determine whether a party to a MSA violated the agreement between the

          parties. See In re Marriage of Lyman, 2015 IL App (1st) 132832. Judges in the domestic

          relations division make these decisions almost on a daily basis.

¶ 37          In the case at bar, the trial court found that “Paul breached his contract with Kim under

          the MSA *** causing her economic losses and other harms.” The trial court found that Paul’s

          conduct in not notifying, discussing, or obtaining Kim’s approval to counteroffer or to buy

          her out was a willful and contumacious failure to abide by the parties’ MSA. The trial court

          found that Paul recklessly destroyed the September 17, 2008, offer to purchase and

          repeatedly failed to deal with Kim fairly and in good faith.

¶ 38          Paul correctly states that in Illinois, the implied covenant of good faith and fair dealing is

          “not an independent source of duties for the parties to a contract.” Fox v. Heimann, 375 Ill.

          App. 3d 35, 42 (2007). However, although the implied covenant of good faith and fair

          dealing is included among the reasons by the trial court as to why Paul was found to be in

          breach of the MSA, it is not the sole basis the trial court used to find that Paul breached the

          contract. Thus, we review the question of the trial court’s finding that Paul breached the

          MSA in light of all of the trial court’s stated reasons, not just the implied covenant of good

          faith and fair dealing.

¶ 39          The express terms of the MSA stated that Paul was required to either put the marital

          residence up for sale on or before September 1, 2007, or buy out Kim’s interest. The home

          was not up for sale by the expressed deadline, and Paul did not buy out Kim’s interest.



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          Furthermore, the trial court found that Paul failed to provide a credible reason as to why he

          failed to comply with the September 1, 2007, deadline. Paul also testified that he had the

          ability to buy out Kim’s share of the property, but chose not to do so, thus testifying that he

          chose not to comply with the contract. Thus, we affirm the trial court’s finding of Paul to be

          in breach of the MSA.

¶ 40                           III. Trial Court Authority to Modify the MSA

¶ 41          Next, Paul argues that the trial court did not have authority to modify the terms of the

          property provisions of the parties’ MSA. Paul seeks a remand for redistribution of the sale

          proceeds in accordance with the unmodified provisions of the MSA. Kim contends that the

          court had the inherent power to enforce its judgments, and that the terms of the MSA are

          enforceable by all remedies available. Additionally, Kim argues that the trial court merely

          modified the valuation provisions of the marital residence. In the case at bar, the trial court

          determined that the property distribution formula, which establishes the amount Kim is

          entitled to, should be calculated based upon the offer for the purchase of the marital home

          tendered to Paul and Kim in 2008. We agree with Kim that the trial court did not modify the

          terms of the MSA, but rather enforced the terms of the MSA.

¶ 42          The trial court’s jurisdiction over a modification to the parties’ MSA is a question of law

          and thus subject to de novo review. In re Marriage of Hall, 404 Ill. App. 3d 160, 164 (2010);

          In re Marriage of Allen, 343 Ill. App. 3d 410, 412 (2003). De novo review means the

          reviewing court performs the same analysis that a trial judge would perform. Khan v. BDO

          Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011). A trial court may not revoke or modify

          property dispositions “ ‘unless the court finds the existence of [a condition] that justif[ies] the

          reopening of a judgment under the laws of this State.’ ” Hall, 404 Ill. App. 3d at 164 (quoting



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       Nos. 1-15-1118, 1-15-2908 (cons.)


          750 ILCS 5/510(b) (West 2008)). After a 30-day period, 5 property provisions in a MSA are

          not modifiable, but a trial court has jurisdiction to modify property distribution if

          circumstances exist that give cause to reopen a judgment as in other civil cases. Hall, 404 Ill.

          App. 3d at 164; In re Marriage of Hubbard, 215 Ill. App. 3d 113, 116 (1991). A reopening of

          a judgment is deemed proper if the MSA execution had some element of fraud, coercion, or

          misrepresentation. In re Marriage of Munford, 173 Ill. App. 3d 576, 579 (1988); Thompson

          v. Thompson, 91 Ill. App. 3d 943, 945 (1980). However, a trial court has indefinite

          jurisdiction to enforce the terms of a judgment that included a MSA and that is what the trial

          court did here. Hall, 404 Ill. App. 3d at 164.

¶ 43          In Hall, the petitioner and respondent’s judgment for dissolution of marriage incorporated

          a MSA entered into by the parties, which contained two provisions concerning the division of

          the respondent’s retirement plans. Hall, 404 Ill. App. 3d at 162-63. One provision provided

          that the parties would enter into a qualified domestic relations order (QDRO) providing for

          the distribution of 50% of the account balance of two specified retirement plans to the

          petitioner. Hall, 404 Ill. App. 3d at 162-63. The second provision provided that “ ‘[i]t is the

          intention of this [article] that [petitioner] is to receive fifty percent (50%) of the account

          balance of each of [respondent’s] retirement plans valued as of the date of the entry of this

          [judgment for dissolution of marriage].’ ” Hall, 404 Ill. App. 3d at 163. After the division of

          assets, the petitioner noticed that she had not received benefits from two additional pension

          plans belonging to the respondent and filed a petition to modify or reform the dissolution

          judgment, alleging that the pension plans had been omitted from the MSA due to a mutual

              5
              Pursuant to the Code of Civil Procedure, any party, within 30 days after the entry of the
       judgment, may file a motion for a rehearing, retrial, or modification of the judgment. 735 ILCS
       5/2-1203 (West 2014).



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       Nos. 1-15-1118, 1-15-2908 (cons.)


          mistake of fact. Hall, 404 Ill. App. 3d at 163. The trial court found that it did not have

          jurisdiction to modify or reform the judgment because the petitioner did not first establish a

          basis to vacate the judgment as a result of duress, disability, or fraudulent concealment. Hall,

          404 Ill. App. 3d at 163.

¶ 44          On appeal, the Hall court found that the trial court had jurisdiction to enforce the MSA

          without first establishing a basis to vacate the dissolution judgment because “petitioner is not

          seeking to impose new or different obligations on the parties. Rather she is attempting to

          enforce the parties’ rights and obligations with respect to respondent’s retirement plans,

          which were clearly laid out in the marital settlement agreement and judgment of dissolution.”

          Hall, 404 Ill. App. 3d at 165. Accordingly, the court proceeded to interpret the language of

          the agreement to determine if the parties had intended to include all four retirement plans or

          only the two specified in the agreement. Hall, 404 Ill. App. 3d at 167.

¶ 45          We find the Hall court’s analysis instructive. See Hall, 404 Ill. App. 3d at 161. In the

          case at bar, the trial court was enforcing Paul and Kim’s MSA by using the valuation of the

          sale that should have been completed, but was not, due to Paul’s conduct in breaching the

          MSA. The trial court did not modify the MSA, but rather enforced the terms of the MSA that

          required Paul to pay Kim a specified amount. The amount Paul was to pay was based on a

          distribution formula that was based upon the marital home being sold to a third party in

          which Kim would receive 50% of the net sales proceeds or at least $550,000, whichever was

          greater.

¶ 46          Paul cites In re Marriage of Clark, 149 Ill. App. 3d 613, 617 (1986), and In re Marriage

          of Hubbard, 215 Ill. App. 3d at 117, to illustrate how a trial court lacks subject matter

          jurisdiction to modify the judgment for dissolution of marriage, specifically with respect to



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       Nos. 1-15-1118, 1-15-2908 (cons.)


          the parties’ marital residence. In Clark, the defendant filed a petition to modify the property

          division of the parties’ MSA to transfer possession of the marital residence to him and to

          execute a quitclaim deed in his favor. In re Marriage of Clark, 149 Ill. App. 3d at 614. The

          reviewing court affirmed the trial court’s determination to deny the defendant’s petition, as

          requiring the plaintiff to convey her interest to the defendant through a quitclaim deed

          required the court to modify the judgment. In re Marriage of Clark, 149 Ill. App. 3d at 618.

          Paul’s use of Clark is not instructive to this court, as the parties in Clark were required to

          comply with an additional obligation, while Kim’s petition merely seeks enforcement of the

          existing MSA. In re Marriage of Clark, 149 Ill. App. 3d at 617.

¶ 47          In Hubbard, the reviewing court was to determine whether the trial court’s award for

          expenses incurred during the preparation for placing the marital residence on the market was

          beyond its jurisdiction. Hubbard, 215 Ill. App. 3d at 114. The Hubbard court found that

          apportionment of expenses that were not expressly stated in the MSA could not be enforced

          by the trial court, regardless of equitable and reasonable circumstances to enforce the

          apportionment. Hubbard, 215 Ill. App. 3d at 118. Like Clark, Hubbard does not provide this

          court with any guidance as that case involved a dispute over repair and maintenance requests

          and the trial court’s order requiring the respondent to pay for a portion of the repairs not

          covered under the MSA, while the case at bar only required Paul to comply with the MSA

          and did not impose any additional obligations or costs on Paul. Hubbard, 215 Ill. App. 3d at

          114. While both cases show that the trial court does not have jurisdiction to modify a MSA

          under these specific circumstances, the trial court in the case at bar was merely enforcing the

          terms and provisions that Paul and Kim agreed upon.

¶ 48          In the case at bar, the trial court was enforcing, not modifying, the MSA by using the



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       Nos. 1-15-1118, 1-15-2908 (cons.)


          valuation of the sale that should have been completed, but was not, due to Paul’s conduct.

          The trial court found that Paul’s conduct was the reason that the 2008 offer was not accepted,

          and based its award upon the 2008 lost sale. The trial court’s order, based upon Paul’s

          conduct, actually enforced the MSA and did not modify it. Thus, we affirm the trial court’s

          use of the lost 2008 sale price in the MSA distribution formula.

¶ 49                                 IV. Prejudgment Interest Award

¶ 50          Paul next contends that the trial court lacked authority to award prejudgment interest to

          Kim. The trial court found that a prejudgment interest award was warranted due to Paul’s

          failing to comply with the MSA’s September 1, 2007, deadline, recklessly destroying a

          contract opportunity without good cause, failing repeatedly to deal fairly and in good faith

          with Kim, and breaching the MSA. Paul argues that Kim does not have the right to recover

          prejudgment interest. Thus, Paul argues that the award must be reversed. Kim argues that the

          trial court was well within its discretion when awarding prejudgment interest, as this award

          was not compensatory in nature. The trial court here awarded Kim prejudgment interest for

          Paul’s failure to place the house on the market by the deadline or buy Kim’s shares as an

          equitable remedy for the long delays and significant expense caused by Paul’s conduct.

¶ 51          A determination to award prejudgment interest is within the trial court’s discretion, and

          such a determination will not be disturbed unless an abuse of discretion is present. Lyon

          Metal Products, L.L.C. v. Protection Mutual Insurance Co., 321 Ill. App. 3d 330, 348 (2001).

          An abuse of discretion is present when “ ‘no [other] reasonable person would agree with the

          position adopted by the trial court.’ ” Tully v. McLean, 409 Ill. App. 3d 659, 672 (2011)

          (quoting Schwartz v. Cortelloni, 177 Ill. 2d 166, 176 (1997)). Prejudgment interest is proper

          when it is authorized by a statute, authorized by agreement of the parties, or warranted by



                                                      22
       Nos. 1-15-1118, 1-15-2908 (cons.)


          equitable considerations. Tully, 409 Ill. App. 3d at 684-85. In terms of equitable

          considerations, the determination of whether equity supports an award of interest lies within

          the discretion of the trial court, and we will not disturb a determination that it exists unless

          the trial court abused its discretion. Tully, 409 Ill App. 3d at 685; In re Estate of Wernick, 127

          Ill. 2d 61, 87 (1989).

¶ 52          When equitable considerations warrant prejudgment interest, the award must not conflict

          with justice and equity. In re Estate of Wernick, 127 Ill. 2d at 87. However, prejudgment

          interest may not be awarded when the defendant provides a good faith justification for failure

          to provide payments upon which the plaintiff seeks prejudgment interest. In re Marriage of

          Schurtz, 382 Ill. App. 3d 1123, 1127 (2008) (the court determined that the husband’s good

          faith justification for not sharing his disability payments did not warrant prejudgment

          interest). Likewise, prejudgment interest awards are improper if the court fails to set forth

          any equitable considerations as a basis for a prejudgment interest award. In re Marriage of

          Blinderman, 283 Ill. App. 3d 26, 34 (1996). In the case at bar, the trial court’s determination

          to award prejudgment interest was proper because equitable considerations were present and

          Paul created an unreasonable delay in the selling of the marital residence, thus not only

          delaying the payment to Kim but causing her to receive less than the offer Kim agreed to

          receive. Additionally, Paul failed to provide a good faith justification for failing to comply

          with the MSA, as he explicitly admitted that he had the ability to comply but chose not to.

          The trial court cited Paul’s delays, expenses, and other harms as a basis to award

          prejudgment interest to Kim. The original petition requested Kim’s bargained-for interest in

          the sale of the home and for any additional relief the trial court found to be just and equitable

          under the circumstances. We find that the award of prejudgment interest to Kim was within




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       Nos. 1-15-1118, 1-15-2908 (cons.)


          the authority of the trial court to award a prejudgment interest, with a proper basis to

          establish a prejudgment interest award.

¶ 53          The trial court awarded Kim prejudgment interest at 5% per annum on the $310,473.30

          owed from Paul to Kim for the period from September 1, 2007, when Paul failed to place the

          house on the market or buy out Kim, to March 31, 2014, as an equitable remedy for the long

          delays caused by Paul’s conduct. The trial court calculated the prejudgment interest as

          starting from September 1, 2007, the date that the marital residence was to be on the market,

          through the date that the trial court entered its order. Paul’s intentional interference provides

          a basis for a prejudgment interest because his conduct resulted in an unreasonable delay of

          the sale of the home and caused Kim to receive less for her portion of the sale. Likewise, the

          formula based the 5% per annum interest on the amount of $310,473.30, which is the

          additional amount owed to Kim in order to provide her 50% of the net proceeds from the sale

          of the residence, as set forth in the MSA. 6 This formula amounted to $102,115.90 in

          prejudgment interest. The amount awarded does not appear to be irrational or inequitable, as

          it is interest provided to Kim for time delay that Paul caused. Thus, we affirm the trial court’s

          finding of prejudgment interest in the amount of 5% per annum on the $310,473.30, equaling

          $102,115.90 from Paul to Kim.

¶ 54                      V. Petition for Rule to Show Cause and Cause of Action

¶ 55          Paul originally filed a motion to dismiss, pursuant to section 2-615 of the Code of Civil

          Procedure, on March 26, 2013, and the trial court denied that motion to dismiss on the same


              6
                The trial court’s order used the 2008 final offer in the distribution formula to determine
       the amount owed to Kim. This formulation gives Kim $761,875, as Kim was entitled to either
       50% of the net proceeds or $550,000, whichever was greater, under the terms of the MSA. Kim
       had already received $451,401.70 from an earlier distribution of escrowed funds. Thus, Kim was
       entitled to $310,473.30 from Paul in order to be compliant with the MSA.


                                                       24
       Nos. 1-15-1118, 1-15-2908 (cons.)


          day. 735 ILCS 5/2-615 (West 2012). Paul’s argument, that the petition for rule to show cause

          failed to state a cause of action, is based upon the proposition that a civil contempt

          proceeding cannot award compensatory damages and because the awards to Kim were

          compensatory in nature the petition failed to state a cause of action. Due to the failure to state

          a cause of action, Paul contends that dismissal of the petition is proper. See In re Marriage of

          Blankshain, 346 Ill. App. 3d 750, 752-53 (2004). Kim argues that even though her petition

          sought monies that could be considered compensatory in nature, Kim was also seeking the

          enforcement of the judgment for dissolution of marriage. Her petition, as Kim contends, did

          not only seek monies that could appear to be compensatory, but rather a multitude of requests

          including damages as a result of Paul’s conduct in breaching the MSA.

¶ 56          Paul is correct that a civil contempt order cannot award compensatory damages.

          However, the trial court used an alternative theory concerning the breach of the MSA and we

          affirm on that basis, as we may affirm on any basis found in the record. People v. Johnson,

          237 Ill. 2d 81, 89 (2010) (a reviewing court may affirm on any basis found in the record).

¶ 57          The trial court awarded Kim (1) the remaining principal due to her based upon the MSA

          distribution formula; (2) prejudgment interest, based upon the period of time from when the

          home was ordered to be on the market; (3) real estate taxes charged to Kim; and (4) attorney

          fees and costs based upon a fee-shifting provision in the MSA. The trial court found that Paul

          intentionally interfered with the sale of the home and intentionally disregarded the terms of

          the MSA. The award to Kim based upon the remaining principal owed to Kim was the result

          of the trial court awarding Kim her rights under the MSA, as we concluded in the breach of

          contract section of our analysis. Similarly, as we have discussed, the trial court has authority

          to award prejudgment interest when certain conditions are met and, as the trial court properly



                                                       25
       Nos. 1-15-1118, 1-15-2908 (cons.)


          found, equitable considerations were present here that justify the trial court awarding Kim

          prejudgment interest. Additionally, the trial court found that Paul intentionally interfered

          with the sale of the home, and the unreasonable delay in the sale of the home further justifies

          that award. Neither party contests Kim’s award for real estate taxes charged to her, and in

          turn it will not be addressed. Finally, a contract that includes a fee-shifting provision will

          generally be enforced by the courts, and we enforce the attorney fees as we discuss below.

          Each award that was given to Kim was properly awarded to her, as damages are proper in a

          breach of contract action. See InsureOne Independent Insurance Agency, LLC v. Hallberg,

          2012 IL App (1st) 092385, ¶ 89 (“ ‘[A]ll damages which naturally and generally result from

          a breach [of contract] are recoverable.’ ”(quoting Midland Hotel Corp. v. Reuben H.

          Donnelley Corp., 118 Ill. 2d 306, 318 (1987))). Thus, we affirm the trial court’s dismissal of

          Paul’s motion to dismiss for failure to state a cause of action.

¶ 58                           IV. Contribution of Attorney Fees and Costs

¶ 59          Finally, Paul argues that the award of attorney fees and costs, based upon the fee-shifting

          provision in the MSA, should be reversed because contractual fee-shifting provisions should

          only be rewarded to a prevailing party. Paul contends that the “American Rule,” in which

          litigants are required to pay their own attorney fees, should be applied to the case at bar.

          Citing to Powers v. Rockford Stop-N-Go, Inc., 326 Ill. App. 3d 511, 516 (2001), Paul

          attempts to argue that the trial court did not compel him to perform some type of act, and

          thus the fee-shifting provision cannot be acted upon. 7 Additionally, Paul argues that the


              7
                We find Paul’s use of Powers unpersuasive, as Kim was the prevailing party in the trial
       court’s order. In Powers, the attorney fees provision did not apply because the trial court held
       that the matter of property damages was independent of the lease between both parties. Powers,
       252 Ill. App. 3d at 517. Additionally, the appellate court determined that because the defendant
       prevailed on a majority of the issues before the trial court and the plaintiff prevailed on only


                                                       26
       Nos. 1-15-1118, 1-15-2908 (cons.)


          enactment of the MSA’s fee-shifting provision requires two conditions to occur: (1) there is

          an enforcement of a condition and (2) the condition enforced is found within the terms and

          provisions of this agreement. Thus, Paul contends that because neither prerequisite is

          satisfied in the case at bar, Kim should not be able to recover attorney fees and costs. Kim

          argues that the award of attorney fees and costs was proper and will not be disturbed unless

          there is an abuse of discretion. See In re Marriage of Powers, 252 Ill. App. 3d 506, 508-09

          (1993). The MSA states the following:

                  “If Paul fails to perform his financial and other undertakings, and as a result

              Kim incurs any expenses including legal fees to enforce the terms and provisions

              of the agreement, Paul shall indemnify her against and hold her harmless in

              connection with any such expenses even [though] Kim at the time, may have the

              ability to pay her own such expenses.”

¶ 60          The standard of review for a trial court’s determination of awarding attorney fees and

          costs is an abuse of discretion. Bright Horizons Children’s Centers, LLC v. Riverway

          Midwest II, LLC, 403 Ill. App. 3d 234, 245 (2010). “ ‘[W]hether and in what amount to

          award attorney fees is within the discretion of the trial court, and the decision will not be

          disturbed on appeal absent an abuse of that discretion.’ ” Bright Horizons Children’s

          Centers, 403 Ill. App. 3d at 245 (quoting R.J. Management Co. v. SRLB Development Corp.,

          346 Ill. App. 3d 957, 971 (2004)). An abuse of discretion occurs when the ruling is

          “arbitrary, fanciful, or unreasonable, or when no reasonable person would take the same

          view.” Favia v. Ford Motor Co., 381 Ill. App. 3d 809, 815 (2008).



       issues related to property damage, the trial court abused its discretion, as the plaintiff was not the
       prevailing party in the matter, which means the trial court should not have awarded attorney fees.
       Powers, 252 Ill. App. 3d at 518.


                                                        27
       Nos. 1-15-1118, 1-15-2908 (cons.)


¶ 61          Ordinarily, a losing party in a lawsuit cannot be required to pay attorney fees to the

          winning party, but if there is a contractual “fee-shifting” provision for the award of attorney

          fees, it will be enforced by the courts. Bright Horizons Children’s Centers, 403 Ill. App. 3d

          at 254. If a fee-shifting provision for attorney fees is present in a contractual obligation, we

          are required to strictly construe the provision. Bright Horizons Children’s Centers, 403 Ill.

          App. 3d at 254.

¶ 62          Kim was awarded $64,229.43 for attorney fees and costs, based upon the fee-shifting

          provision in the MSA. As the fee-shifting provision states, Paul was required to indemnify

          Kim for any expenses, including legal fees, that were a result of her attempting to enforce the

          terms and provisions of the MSA. The trial court determined that the $64,229.43 was the

          correct amount to award Kim for her attorney fees and costs, as Paul was found to be in

          breach of contract for failing to abide by the provisions of the MSA. Due to the extensive

          litigation history surrounding the case at bar, combined with the trial court’s findings of Paul

          interfering and intentionally ignoring the MSA, the trial court did not abuse its discretion

          when awarding attorney fees. Eight years have passed since the original petition for rule to

          show cause was filed, and four years since the home has been sold. Paul’s appeals on the

          MSA resulted in an extensive delay in the trial on Kim’s petition for rule to show cause.

          Likewise, it was Paul’s conduct that resulted in the lost 2008 sale and the breached contract.

          Paul’s conduct has resulted in Kim incurring large amounts of attorney fees. Thus, we affirm

          the trial court’s order awarding attorney fees and costs to Kim.

¶ 63                                         CONCLUSION

¶ 64          For the foregoing reasons, we affirm in part and vacate in part the order of the circuit

          court of Cook County. We find that the trial court abused its discretion when finding Paul to



                                                      28
       Nos. 1-15-1118, 1-15-2908 (cons.)


          be in indirect civil contempt and vacate the contempt finding but affirm its alternative finding

          of breach of the MSA and the award of damages. We cannot say that the trial court abused its

          discretion when it awarded prejudgment interest to Kim or when it awarded Kim attorney

          fees and costs. Further, we find that the trial court was not modifying the terms of the MSA,

          but merely enforcing the terms of the MSA, when it calculated the amount due to Kim by

          using the 2008 contract price instead of the 2012 price.

¶ 65          Affirmed in part and vacated in part.




                                                      29
