Davis v. Sprague

541 N.E.2d 831, 186 Ill. App. 3d 249, 133 Ill. Dec. 620, 1989 Ill. App. LEXIS 1058
CourtAppellate Court of Illinois
DecidedJuly 13, 1989
Docket4-88-0809
StatusPublished
Cited by5 cases

This text of 541 N.E.2d 831 (Davis v. Sprague) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Davis v. Sprague, 541 N.E.2d 831, 186 Ill. App. 3d 249, 133 Ill. Dec. 620, 1989 Ill. App. LEXIS 1058 (Ill. Ct. App. 1989).

Opinion

JUSTICE GREEN

delivered the opinion of the court:

Both defendant Marvin N. Sprague and his attorney Theodis Lewis appeal from an order of the circuit court of Adams County entered September 30, 1988, in which the court in part (1) ordered defendant to pay plaintiffs’ attorney fees and court costs in the total amount of $5,598.75 and (2) held Lewis in contempt for his failure to appear at a prior court hearing. They contend the court erred in making each of those decisions. We disagree and, therefore, affirm.

This case has a long and detailed history. It initially began on May 14, 1984, when plaintiffs Oscar and Catherine Davis petitioned the court to obtain custody of their daughter’s minor child. They subsequently sought a finding from the court that defendant was the father of that child and an order requiring him to pay child support. The court awarded plaintiffs custody of the child and entered judgment on a jury verdict finding defendant to be the child’s father.

The court granted plaintiffs temporary relief on March 27, 1986, when it ordered defendant to pay temporary child support pending a final disposition of the matter. In the interim, the court held defendant in contempt because he was in arrearage in paying that child support. The court entered its final order on October 26, 1987, in which it ordered defendant to pay child support and arrearages, other expenses, and plaintiffs’ attorney fees in the amount of $7,000.

Soon thereafter, the court found defendant in contempt for his failure to appear at a previously scheduled court hearing and to remain current in the child support payments previously ordered by the court. It again found him in contempt on March 23, 1988, for his failure to appear at another hearing.

On May 1, 1988, attorney for plaintiffs filed a petition asking the court to order defendant to pay the additional attorney fees incurred since October 26, 1987. In his petition the attorney stated he had “performed regular and continued service for [plaintiffs] *** in an attempt to keep child support *** current, collect the extraordinary expenses allowed by the Court ***, to collect the arrearage and collect attorney fees; in the course thereof, *** the Defendant herein ha[d] done everything possible to evade payment, delay payment and obfuscate the entire proceedings. *** [T]he conduct of the Defendant reflected] an attitude of avoidance of any obligation of support, avoidance of the orders of the Court and efforts to escape the obligations imposed by the Court.” (Emphasis added.)

As explained in more detail later, both defendant and his attorney failed to appear at a hearing set to review all pending matters. Plaintiffs moved for the imposition of sanctions, including an “award of attorney fees for the total and complete inconvenience and delay caused” to plaintiffs. At a subsequent hearing held July 19, 1988, attorney for defendant presented the court with an objection to the petition for attorney fees. In the pleading, he alleged the rates charged by the attorney were unreasonable, the attorney had already received a large award of fees, and defendant was unable to pay.

In its order of September 30, 1988, from which defendant has appealed, the court concluded defendant’s objections were not timely filed, and it took the statements contained in the petition as true. The court decided the charges set forth in the petition were reasonable and ordered defendant to pay the fees and costs in the total amount of $5,598.75.

On appeal, defendant contends this award was improper because there was no showing of plaintiffs’ inability, and defendant’s ability, to pay it nor was any evidence presented with regard to the reasonableness of the requested fees.

Section 17 of the Illinois Parentage Act of 1984 (Act) states that “the court may order reasonable fees of counsel *** and other costs of the action and pre-trial proceedings to be paid by the parties in proportions and at times determined by the court.” Ill. Rev. Stat. 1987, ch. 40, par. 2517.

Once a finding of paternity has been made under the Act, its provisions allow a court to enter judgment establishing a duty of support and to enforce any judgment rendered. (Ill. Rev. Stat. 1987, ch. 40, par. 2514.) The Act further provides that any “[fjailure to comply with any order of the court shall be punishable as contempt as in other cases of failure to comply under the ‘Illinois Marriage and Dissolution of Marriage Act.’ ” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 40, par. 2515(b).

Section 508(b) of the Illinois Marriage and Dissolution of Marriage Act provides as follows:

“In every proceeding for the enforcement of an order or judgment when the court finds that the failure to comply with the order or judgment was without cause or justification, the court shall order the party against whom the proceeding is brought to pay the costs and reasonable attorney’s fees of the prevailing party.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 40, par. 508(b).)

Under this provision, a court need not determine the ability or inability of a party to pay the requested fees. Rather, a court shall award reasonable attorney fees incurred by the custodial parents during child support enforcement proceedings if the court finds the noncustodial parent’s failure to pay was without cause or justification. (In re Marriage of Betts (1987), 155 Ill. App. 3d 85, 507 N.E.2d 912.) The Illinois Parentage Act of 1984 contains no express provision linking the award of attorney fees incurred in enforcing support orders to similar provisions of the Illinois Marriage and Dissolution of Marriage Act as is the case with contempt proceedings to enforce support orders. However, because of the close relationship between the two acts, we deem it appropriate to hold that the attorney fees awarded under section 17 of the Act are to be awarded under the same standard as those awarded under section 508(b) of the Illinois Marriage and Dissolution of Marriage Act.

We recognize the court in the instant case treated the petition for attorney fees as defaulted due to defendant’s failure to file a timely objection to it. However, the record is replete with inordinate delays and orders finding defendant in contempt for his failure to remain current in his child support payments and would clearly support an implicit finding by the court that defendant’s repeated failures to comply with the court’s order were “without cause or justification.” Furthermore, plaintiffs’ petition for attorney fees sets forth the fees requested in some detail, and the court determined they were reasonable. For these reasons, we cannot conclude the court erred in ordering defendant to pay plaintiffs’ attorney fees.

Defendant’s attorney, Theodis Lewis, also appeals the court’s decision to hold him in contempt for his failure to appear at a court hearing scheduled for July 7, 1988. Initially we note a question arises as to whether Lewis has filed a proper notice of appeal from that order of contempt because the notice indicates he appeals only in his capacity as counsel for defendant.

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Cite This Page — Counsel Stack

Bluebook (online)
541 N.E.2d 831, 186 Ill. App. 3d 249, 133 Ill. Dec. 620, 1989 Ill. App. LEXIS 1058, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-sprague-illappct-1989.