NOTICE 2016 IL App (5th) 150222 Decision filed 05/27/16. The text of this decision may be NO. 5-15-0222 changed or corrected prior to the filing of a Peti ion for Rehearing or the disposition of IN THE the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ________________________________________________________________________
LESLIE N. CROUCH, f/k/a ) Appeal from the Leslie N. Smick, ) Circuit Court of ) Madison County. Petitioner-Appellee, ) ) v. ) No. 09-D-544 ) GABRIEL B. SMICK, ) Honorable ) Philip B. Alfeld, Respondent-Appellant. ) Judge, presiding ________________________________________________________________________
JUSTICE STEWART delivered the judgment of the court, with opinion. Presiding Justice Schwarm and Justice Goldenhersh concurred in the judgment and opinion.
OPINION
¶1 On January 8, 2015, the attorney for the respondent, Gabriel Smick, filed a
petition for attorney fees pursuant to section 508 of the Illinois Marriage and Dissolution
of Marriage Act (Marriage Act) (750 ILCS 5/508 (West 2012)). On April 14, 2015, the
trial court denied the petition. On April 21, 2015, Gabriel filed a motion to reconsider or
for a Supreme Court Rule 304(a) (Ill. S. Ct. R. 304(a) (eff. Feb. 26, 2010)) order allowing
an interlocutory appeal. On May 15, 2015, the trial court entered an order denying the
motion to reconsider. The court found that section 508 of the Marriage Act did not apply
1 to termination and adoption proceedings. It held that the "American Rule" applied and
that each party must bear his or her own attorney fees and costs. The court entered a
finding under Rule 304(a) allowing for an interlocutory appeal. Gabriel filed a timely
notice of appeal. We reverse and remand for further proceedings.
¶2 BACKGROUND
¶3 Leslie and Gabriel married on June 4, 2005. Two children were born of the
marriage: Xander Y. Smick, born August 30, 2006, and Wilhemina Smick, born July 9,
2008. In April 2009, Gabriel suffered a series of strokes that left him wheelchair-bound
and unable to communicate.
¶4 On June 1, 2009, Leslie filed a petition for dissolution of marriage. Gabriel filed a
counterpetition for dissolution of marriage. On July 8, 2010, the circuit court of Madison
County entered a judgment of dissolution awarding Leslie legal, physical, and residential
custody of the minor children and Gabriel visitation rights.
¶5 On December 22, 2010, Leslie filed a motion to divest jurisdiction pursuant to the
Uniform Child-Custody Jurisdiction and Enforcement Act (Uniform Child-Custody Act)
(750 ILCS 36/101 et seq. (West 2010)). She alleged that she and the children relocated to
Missouri to be closer to her job; that, due to Gabriel's disability, he was not actively
involved in the children's lives; that substantially all of the evidence concerning the
children's care, protection, training, and personal relationships was in Missouri; and that
she and the children no longer had any significant connection with the State of Illinois.
Gabriel filed an objection to the motion to divest jurisdiction. On April 13, 2011, the
court denied the motion. 2 ¶6 On August 1, 2011, the court entered a consent order granting Leslie the right to
remove the children to California and modifying the visitation order. This was the first
modification of the judgment of dissolution. Gabriel was granted visitation with the
children on Thanksgiving, Christmas, New Years, and spring break in alternating years,
and four consecutive weeks of visitation with the children starting in the summer of 2012.
In November 2011, Leslie married Daniel Crouch.
¶7 On February 27, 2013, Leslie and Daniel filed a petition in San Diego County,
California, to free the children from Gabriel's custody and control, alleging that he was
developmentally and physically disabled or mentally impaired and was not capable of
supporting or controlling the minor children in a proper manner. Daniel filed a
companion petition for adoption. On April 15, 2013, Gabriel filed a motion to clarify and
retain jurisdiction in Illinois.
¶8 On May 29, 2013, Gabriel filed an emergency motion to enforce the visitation
agreement and for a rule to show cause. He asserted that Leslie texted him that she
would not allow further visitation pending resolution of the petition she filed to terminate
his parental rights. He requested that the court issue a rule to show cause why Leslie
should not be held in contempt for threatening not to comply with the visitation order and
for an order directing her to comply with the visitation order. On May 31, 2013, the court
entered an order stating that "[e]xcept as specifically modified by the agreed order
entered on August 1, 2011, the Judgment of Dissolution remains in full force and effect."
¶9 On June 24, 2013, Gabriel filed a motion for a rule to show cause. He alleged that
Leslie refused to transport the children to Illinois to exercise visitation with him. He 3 asked that the court issue a rule to show cause why Leslie should not be held in contempt
for failing to comply with the visitation agreement and for an order directing her to
comply with the orders of the court and establishing an alternative visitation agreement.
¶ 10 On September 20, 2013, the Illinois trial court entered an order finding that it had
exclusive jurisdiction over the parties and subject matter concerning the custody of the
children. It found that it had no jurisdiction to hear Daniel's petition for stepparent
adoption filed in California. The court determined that the petition to free the minor
children from Gabriel's custody and control would be decided in accordance with
California law. The court requested that the Superior Court of California consent or
transfer the pending petition to free the minor children from Gabriel's custody and control
to the Illinois court. The court held that the interests of comity and judicial economy
indicated that the petitions for rule to show cause and the petition to free the minor
children from Gabriel's custody and control be heard at the same time.
¶ 11 The court in California also entered an order on September 20, 2013. The court
held that Illinois remained the home state because Gabriel still resided there. The court
found that Leslie's petition to terminate Gabriel's parental rights must be heard in the
Madison County circuit court, but the court would apply California law in reaching its
decision.
¶ 12 On October 15, 2013, Gabriel filed a supplement to the motion for a rule to show
cause alleging that the June 24, 2013, motion for a rule to show cause prompted Leslie to
cooperate to a limited degree with his right to visitation. He stated that she allowed him
one week of visitation with his daughter and two weeks of visitation with his son, as 4 opposed to the four consecutive weeks of visitation during the summer he was granted in
the agreed visitation order. He further asserted that, in a letter dated September 19, 2013,
Leslie denied him communication with his children by precluding his father and power of
attorney from coordinating and setting up the communications, which effectively
terminated his ability to communicate with his children in violation of the agreed
visitation order.
¶ 13 On November 18, 2013, Leslie filed a motion for stay of visitation and stay of
proceedings asking the court to stay any proceedings concerning custody and visitation
until the proceedings to declare the minor children free from parental custody and control
were resolved. On November 20, 2013, Gabriel filed a response to Leslie's motion for
stay of visitation and stay of proceedings. On November 21, 2013, the court entered an
order denying Leslie's motion to stay visitation finding that "no useful purpose would be
gained by denying such visitation."
¶ 14 On April 2, 2014, Gabriel filed an emergency motion to enforce the visitation
agreement and for a rule to show cause. He argued that Leslie sent him a letter dated
March 31, 2014, informing him that she would not allow visitation pending resolution of
her petition to terminate his parental rights. He asked the court to issue a rule to show
cause why she should not be held in contempt for threatening not to comply with the
visitation order and for an order directing her to comply with the visitation order. The
court heard the motion and ordered that Gabriel's April visitation with the children was to
be replaced by an additional week of visitation in the month of June and that it was "in
addition to any other scheduled visitation that might have been or shall be ordered." 5 ¶ 15 The case was tried on May 5 and 6, 2014. During the trial, the court applied
California substantive law. On June 2, 2014, the Illinois court entered an order declaring
the children free from the custody and control of Gabriel. It also found that termination
of Gabriel's parental rights was in the children's best interests and that adoption would
provide stability in their lives. On June 2, 2014, Gabriel filed a motion to reconsider. On
June 9, 2014, Gabriel filed a motion to stay the order terminating parental rights pending
the resolution of the posttrial motion and appeal. That same day, he filed a motion to
enforce visitation asking the court to enforce the existing visitation order. On July 3,
2014, Leslie filed a response to the motion to reconsider. On July 7, 2014, the motion to
reconsider was denied. Gabriel filed a timely notice of appeal.
¶ 16 In Crouch v. Smick, 2014 IL App (5th) 140382, ¶ 28, this court found that the trial
court erred in holding a trial based on California pleadings and California law because if
Illinois had been found to be the home state under the Uniform Child-Custody Act, the
court had necessarily found that Illinois had the most significant contacts for custody
decisions, and Illinois law applied. This court reversed the judgment of the trial court
and remanded the matter to give Leslie the opportunity to file a petition to terminate
parental rights in the Illinois court.
¶ 17 On January 8, 2015, Gabriel's attorney filed a petition for attorney fees pursuant to
section 508 of the Marriage Act. He requested $14,900 in attorney fees and $187.22 for
costs and expenses incurred representing Gabriel in the proceeding initiated by Leslie to
terminate Gabriel's parental rights and for Daniel to adopt the children and to enforce
visitation. He asserted that, because the action was filed in California, Gabriel had to 6 retain California counsel and incurred fees to them in the amount of $9,273.98. Gabriel
also paid $2,000 in attorney fees for his appeal and $1,685.20 for court reporter
transcripts. He requested an order directing Leslie to pay all of these fees.
¶ 18 On March 3, 2015, Daniel and Leslie filed a petition, in the original dissolution
case, for related parent adoption in the circuit court of Madison County.
¶ 19 On April 14, 2015, the trial court denied the petition for attorney fees "based upon
the American Rule." On April 21, 2015, Gabriel filed a motion to reconsider or for a
Rule 304(a) order, allowing an interlocutory appeal.
¶ 20 On May 11, 2015, the trial court heard arguments on the motion to reconsider. On
May 15, 2015, the trial court entered an order denying the motion to reconsider. It found
that the case was brought as a petition to terminate parental rights and for adoption,
which was a proceeding independent of the dissolution. It noted that a petition to
terminate can only be brought within an adoption or juvenile proceeding and that section
508 of the Marriage Act does not apply to termination of parental rights and adoption.
The court found that the Adoption Act does not have a provision authorizing the award of
attorney fees and, therefore, applied the "American Rule" that each party be responsible
for his or her own respective attorney fees. The court made the necessary finding to
allow for an interlocutory appeal under Rule 304(a). Gabriel filed a timely notice of
appeal.
¶ 21 ANALYSIS
¶ 22 Gabriel argues that the trial court erred in denying his petition for attorney fees
pursuant to section 508(a) of the Marriage Act. Gabriel asserts that the attorney fee 7 provision of the Marriage Act applies to proceedings to enforce his visitation rights and
extends to the defense of parental fitness and termination of parental rights as part of a
related child adoption. Gabriel limits his arguments to the situation in which there is a
related child adoption as defined in section 1(B) of the Adoption Act (750 ILCS 50/1(B)
(West 2012)) where a stepparent is petitioning for adoption by virtue of being married to
one natural parent, who is required to join the adoption suit under section 2 of the
Adoption Act (750 ILCS 50/2 (West 2012)), while trying to terminate the parental rights
of the other natural parent.
¶ 23 Section 508 of the Marriage Act (750 ILCS 5/508 (West 2012)) governs attorney
fees in postdecree dissolution proceedings. Blum v. Koster, 235 Ill. 2d 21, 45 (2009).
Section 508(a) provides in pertinent part:
"(a) The court from time to time, after due notice and hearing, and after
considering the financial resources of the parties, may order any party to pay a
reasonable amount for his own or the other party's costs and attorney's fees. ***
Awards may be made in connection with the following:
***
(2) The enforcement or modification of any order or judgment under
this Act.
(6) Ancillary litigation incident to, or reasonably connected with, a
proceeding under this Act." 750 ILCS 5/508(a)(2), (6) (West 2012).
8 ¶ 24 This court reviews the construction and application of a statute de novo. Blum,
235 Ill. 2d at 44. In construing a statute, the primary objective is to ascertain and give
effect to legislative intent. Id. In determining the meaning of a statute, the court
considers the plain and ordinary meaning of the statutory language, the statute in its
entirety, the subject it addresses, and the intent of the legislature in enacting it. Id.
¶ 25 "Illinois normally follows the 'American Rule,' which stands for the proposition
that a party is responsible for his or her own attorney fees." In re Marriage of Pal, 397
Ill. App. 3d 903, 910 (2010). In enacting section 508 of the Marriage Act, the legislature
abrogated the "American Rule" in dissolution proceedings so that a spouse with greater
financial resources would not have an unfair advantage. Id.
¶ 26 Attorney fees and costs may be awarded for services rendered to enforce any order
or judgment under the Marriage Act. 750 ILCS 5/508(a)(2) (West 2012). Gabriel filed
numerous petitions to enforce his visitation rights, and the trial court never awarded
attorney fees in those actions. The proceedings to enforce visitation are clearly the type
of proceedings for which an award for attorney fees may be granted under the Marriage
Act.
¶ 27 On July 8, 2010, the court entered a judgment of dissolution, dissolving Leslie and
Gabriel's marriage. On August 1, 2011, the trial court granted Leslie's motion for leave
to remove the children to California and modified the visitation order. This was the first
modification of the judgment of dissolution.
¶ 28 On February 27, 2013, Leslie and Daniel filed a petition in California to free the
children from Gabriel's custody and control and a companion petition for adoption. Once 9 these petitions were filed, Leslie refused to fully cooperate with the existing visitation
order forcing Gabriel to take steps to enforce the order. On May 29, 2013, Gabriel filed
an emergency motion to enforce the visitation agreement and for a rule to show cause.
He alleged that he consistently abided by the terms of the modified visitation order and
cherished the limited time he spent with his children and that on May 23, 2013, Leslie
informed him that she would not allow any further visitation pending the resolution of the
petition she filed in California to terminate his parental rights.
¶ 29 On June 24, 2013, Gabriel filed a motion for rule to show cause, alleging that he
was entitled to visitation pursuant to the modified visitation order and that Leslie refused
to transport the children to Illinois to exercise visitation with him pursuant to the
visitation order. On October 15, 2013, Gabriel filed a supplement to the motion for rule
to show cause. He alleged that the filing of his June 2013 motion for rule to show cause
prompted Leslie to cooperate to a limited extent with the visitation order and that,
because of her interference, he only received one week of visitation with Wilhemina and
two weeks of visitation with Xander as opposed to the four-week summer visitation
provided for in the visitation order. Additionally, he alleged that on September 19, 2013,
Leslie wrote him a letter prohibiting his father from coordinating and setting up
communication between him and the children, which he asserted had, in effect,
terminated his ability to communicate with the children in violation of the visitation
order, which provided that "each party shall be provided reasonable telephonic contact
with the minor children while in the custody of the other parent."
10 ¶ 30 On November 18, 2013, Leslie filed a motion for stay of visitation and stay of
proceedings asking the court to stay any proceedings concerning custody or visitation
until the proceedings to declare the minor children free from Gabriel's parental custody
and control were resolved. Gabriel filed a response to the motion for stay of visitation
and stay of proceedings. On November 21, 2013, the court entered an order denying
Leslie's motion to stay visitation and finding that no useful purpose would be gained by
denying visitation.
¶ 31 On April 2, 2014, Gabriel filed an emergency motion to enforce the visitation
agreement and for a rule to show cause alleging that Leslie would not allow visitation
over spring break from April 5 through April 12, 2014, or any additional visitation
pending the hearing and ruling on the termination of his parental rights. The trial court
entered an order that the spring break visitation was to be replaced with an additional
week of visitation in the month of June.
¶ 32 The trial court subsequently entered an order terminating Gabriel's parental rights,
and on June 9, 2014, he filed a motion to reconsider and an appeal. The same day, he
filed a motion to enforce the visitation order asking the court to require that the visitation
order be followed pending the outcome of posttrial proceedings. On January 8, 2015,
Gabriel filed an emergency motion to enforce the visitation agreement and for a rule to
show cause. He alleged that this court's reversal of the trial court's decision terminating
his parental rights under California law and remanding for further proceedings preserved
his parental rights and the existing court orders.
11 ¶ 33 Gabriel consistently exercised his visitation rights under the original and modified
dissolution judgments. Once Leslie and Daniel initiated the actions to terminate Gabriel's
parental rights and for adoption, Leslie would not allow visitation, and Gabriel was
forced to fight vigorously to maintain visitation with his children. Under section
508(a)(2) of the Marriage Act, the court may order a party to pay attorney fees for the
enforcement of any order or judgment under this Act. The circuit court erred in refusing
to consider Gabriel's claim for attorney fees incurred to enforce his right to visitation with
his children under section 508(a)(2) of the Marriage Act.
¶ 34 Leslie argues that, because her petitions to terminate Gabriel's parental rights and
for adoption were not proceedings under the Marriage Act, section 508 authorizing the
trial court to award attorney fees and costs in actions under the Marriage Act does not
apply.
¶ 35 Section 508 has two separate provisions that authorize attorney fee awards for
proceedings to enforce an order or judgment under the Marriage Act. 750 ILCS
5/508(a)(2), (b) (West 2012). Under section 508(a), the trial court can, in its discretion,
award attorney fees after considering the relative financial resources of the parties. In re
Marriage of Davis, 292 Ill. App. 3d 802, 811 (1997). Under section 508(b), the award of
attorney fees is mandatory upon a finding that the failure to comply with the order was
without justification or cause. Id.
¶ 36 In In re Marriage of Kent, 267 Ill. App. 3d 142 (1994), the court addressed the
availability of section 508 fees in collateral proceedings. The couple's marriage was
dissolved on January 11, 1991. Id. at 143. The dissolution incorporated a property 12 settlement, in which the husband agreed to pay the wife $20,000 in exchange for her
share of equity in their home. Id. On March 31, 1992, the husband filed a petition for
bankruptcy in bankruptcy court, listing the wife as a creditor. Id. On April 10, 1992, he
filed an adversary complaint in bankruptcy court against the wife, seeking to discharge
his obligation to pay the $20,000 owed pursuant to the settlement agreement. Id. The
wife retained the services of her attorney to represent her in the bankruptcy proceedings.
Id. On July 12, 1993, the wife filed a petition for attorney fees incurred in the bankruptcy
proceedings, asking that the husband be required to pay her attorney fees pursuant to
section 508 of the Marriage Act. Id. at 143-44. The husband filed a motion to strike the
petition, arguing that the trial court did not have jurisdiction to award attorney fees
incurred in bankruptcy proceedings, and the court granted the motion to strike. Id. at
144. The wife appealed, and the appellate court held that the mere fact that the fees were
incurred in a federal court did not remove the fees from the purview of the statute. Id.
The court found that the plain meaning of section 508(b) of the Marriage Act allowed
recovery of fees incurred in any proceeding that has as its goal the enforcement of an
order or judgment entered in a dissolution proceeding. Id. The court found that the trial
court had jurisdiction to award attorney fees pursuant to section 508(b). Id. at 145.
¶ 37 In In re Marriage of Davis, 292 Ill. App. 3d at 808, the court examined whether
section 508 of the Marriage Act was applicable to collateral proceedings incurred
defending a separate civil lawsuit in a different court. The parties divorced in 1988, and,
in 1990, a supplemental order was entered characterizing a $67,800 debt as a business
loan and allocating it to the husband. Id. at 804-05. On September 13, 1991, the bank 13 filed suit against both parties for nonpayment of the loan. Id. at 805. On October 18,
1991, the husband filed bankruptcy and was later dismissed from the bank's lawsuit,
which proceeded against the wife. Id. The court found the wife not liable on the
business loan. Id. The husband moved to voluntarily dismiss his bankruptcy case,
secured a loan from another bank, and paid the business loan in full. Id. The wife filed a
petition, asking the court to order the husband to pay her attorney fees for the bank
lawsuit. Id. The trial court entered an order, finding that it had subject-matter
jurisdiction under section 508 of the Marriage Act, that fundamental fairness required the
husband to reimburse the wife for the attorney fees, that the wife lacked the financial
resources to pay the debt, and that the husband was able to pay the fees if given sufficient
time. Id. at 806. The husband appealed.
¶ 38 The appellate court held that "Kent clearly supports the proposition that it is the
purpose, not the location, of the proceeding that determines whether section 508 of the
[Marriage] Act applies." Id. at 809. The court found that the wife did not initiate the
proceeding in another court; she merely defended her interests under the terms of the
supplemental order. Id. at 810. The court held that an award of attorney fees under
section 508 of the Marriage Act may be made for expenses incurred in connection with a
proceeding to enforce the provisions of a dissolution order, even if that proceeding occurs
in a different court. Id. The court found that enforcement means giving effect to the
terms of the order in collateral litigation. Id. at 811. The court found that because the
wife's claim was based on enforcement of the original order, her attorney fees were not
merely incidental expenses, but were specifically allowed by statute under certain 14 circumstances. Id. The court found that section 508(a)(2) was the proper provision under
which the wife's petition for attorney fees should have been considered. Id. at 811-12.
¶ 39 Once Leslie and Daniel filed a petition in California to free the children from
Gabriel's custody and control and a companion petition for adoption, Gabriel was forced
to defend it. An order of adoption relieves the natural parent of all parental
responsibilities for the child and deprives him of all parental rights with regard to the
child. In re Adoption of Schumacher, 120 Ill. App. 3d 50, 52 (1983). Adoption
constitutes a complete and permanent severance of all legal and natural rights between
the biological parent and the child. In re M.M., 156 Ill. 2d 53, 62 (1993). "Included in
the biological parents' severed bundle of rights is the right to visitation, which is a form
of custody." Id. An order terminating parental rights also relieves a natural parent of
responsibility for his child and deprives him of all legal rights to the child. 750 ILCS
50/17 (West 2012).
¶ 40 The parties' judgment of dissolution sets out the rights and responsibilities of each
biological parent to his or her children. If Gabriel's parental rights are terminated, he will
be deprived of all legal rights to his children including his right to visitation, which is a
form of custody. This constitutes the ultimate modification of his visitation rights.
¶ 41 Leslie and Daniel's filing of the petitions to terminate Gabriel's parental rights and
for adoption forced Gabriel to incur legal fees in California and Illinois to enforce his
rights under the judgment of dissolution and to fight to prevent his rights from being
modified by termination. Section 508 allows the recovery of attorney fees for expenses
incurred in any proceeding to enforce an order or judgment entered in a dissolution 15 proceeding, even if that proceeding occurs in collateral litigation. In re Marriage of
Kent, 267 Ill. App. 3d at 144. Section 508(a)(2) provides that attorney fees may be
awarded in connection with actions to enforce or modify any order or judgment under the
Marriage Act. 750 ILCS 5/508(a)(2) (West 2012). Gabriel did not want to give up his
rights to his children, and he did not want to modify his visitation rights. Gabriel's
attorney fees incurred in defense against actions brought by Leslie and Daniel were
efforts to enforce the judgment of dissolution. Thus, in this case, where there was a
petition for a related adoption where the dissolution judgment set out the rights of the
natural parents, attorney fees may be awarded under section 508(a)(2) because the
petition to terminate parental rights seeks to modify the natural parent's rights by
termination, and the fees were incurred to enforce and prevent the modification of the
dissolution judgment.
¶ 42 Attorney fees and costs may be awarded in connection with ancillary litigation
related to a proceeding under the Marriage Act. 750 ILCS 5/508(a)(6) (West 2012).
While this court could find no cases directly on point, the court has awarded ancillary
fees where fees are reasonably related to the divorce matter.
¶ 43 In In re Marriage of Nienhouse, 355 Ill. App. 3d 146, 154 (2004), the appellate
court considered whether the trial court erred in assessing attorney fees against the
husband pursuant to the judgment for dissolution of marriage for an attorney appointed to
represent a child during domestic violence proceedings. Two children were born during
the pendency of the couple's marriage. Id. at 147. The husband was not the biological
father of the youngest child. Id. A guardian ad litem was hired to represent the youngest 16 child. Id. The trial court entered a judgment of dissolution awarding sole custody and
control of the oldest child to the husband and incorporated an agreement for sibling
visitation into the judgment for dissolution of marriage. Id. at 148. There were numerous
proceedings related to the custody of the youngest child and her visitation with the
husband. Id. at 154. The husband filed a petition for an order of protection on behalf of
himself and the two children. Id. The court granted the husband's request for the
appointment of a child representative to represent the youngest child's best interest. Id.
Following a hearing involving the care and custody of the youngest child, the trial court
denied the husband's petition for a plenary order of protection. Id. The child's
representative filed a petition for attorney fees and costs pursuant to section 506(b) of the
Marriage Act (750 ILCS 5/506(b) (West 2002)), which provides that a child's
representative shall be entitled to fees. In re Marriage of Nienhouse, 355 Ill. App. 3d at
155. The judgment for dissolution incorporated an order awarding fees and costs to the
attorney and assessing the fees against the husband, and the husband appealed. Id. The
appellate court held that section 508(a)(6) of the Marriage Act specifically authorized the
payment of fees in litigation reasonably connected with a proceeding under the Marriage
Act. Id. The court found that the issues involved in the domestic violence proceeding
were reasonably connected with the dissolution action for purposes of authorizing
payment of these fees. Id.
¶ 44 Attorney fees Gabriel incurred related to the petition to free the children from his
custody and control and for adoption filed under California law and the petition for
related parent adoption filed under Illinois law were incurred in an effort to maintain his 17 parental rights under the judgment of dissolution of marriage. "[I]t is the purpose, not the
location, of the proceeding that determines whether section 508 of the [Marriage] Act
applies." In re Marriage of Davis, 292 Ill. App. 3d at 809. The judgment of dissolution
set out each biological parent's rights to the children including Gabriel's rights to
visitation, which is a form of custody. Because the related child adoption litigation
instituted by Leslie and Daniel sought to terminate Gabriel's rights as set forth in the
Marriage Act order, the related child adoption litigation is reasonably connected with the
Marriage Act order. Gabriel sought to enforce the judgment of dissolution and fought to
prevent Leslie and Daniel from modifying the judgment to the ultimate degree by
terminating his visitation and custody. Gabriel's attorney fees incurred to fight the
petitions to free the children from his custody and control and for adoption filed under
California law and the petition for related parent adoption filed under Illinois law were
reasonably connected with proceedings under the Marriage Act and are subject to
contribution under section 508(a)(6).
¶ 45 CONCLUSION
¶ 46 For the reasons stated, the judgment of the circuit court of Madison County is
reversed, and the cause is remanded for a hearing on the petition for contribution of
attorney fees, including the ancillary fees incurred in the defense of the related parent
adoption petition.
¶ 47 Reversed and remanded.
18 2016 IL App (5th) 150222
NO. 5-15-0222
IN THE
FIFTH DISTRICT
LESLIE N. CROUCH, f/k/a ) Appeal from the Leslie N. Smick, ) Circuit Court of ) Madison County. Petitioner-Appellee, ) ) v. ) No. 09-D-544 ) GABRIEL B. SMICK, ) Honorable ) Philip B. Alfeld, Respondent-Appellant. ) Judge, presiding __________________________________________________________________________
Opinion Filed: May 27, 2016 __________________________________________________________________________
Justices: Honorable Bruce D. Stewart, J.
Honorable S. Gene Schwarm, P.J., and Honorable Richard P. Goldenhersh, J., Concur __________________________________________________________________________
Attorney Tim Kalinowski, Attorney at Law, 2 Butternut Lane, Glen Carbon, IL for 62034 Appellant __________________________________________________________________________
Attorney Frederick M. Steiger, Steiger Law Offices, 215 South Main Street, for Edwardsville, IL 62025 Appellee __________________________________________________________________________