In Re Marriage of Birt

512 N.E.2d 390, 159 Ill. App. 3d 281, 111 Ill. Dec. 274, 1987 Ill. App. LEXIS 2964
Appellate Court of Illinois·Decided August 14, 1987·No. 2-86-0458·Published·Cited by 12 cases

Opinions

JUSTICE NASH

delivered the opinion of the court:

Paul P. Didzerekis, an attorney, appeals from an order of the circuit court of Du Page County in case No. 84 D 3284 dismissing his petition for attorney fees and costs incurred in the preparation and presentation of a previously dismissed petition for dissolution of marriage in case No. 82 D 1142, which had been filed on behalf of his former client, Sarah A. Birt, the wife, against Maurice W. Birt, the husband.

Didzerekis raises the following issues on appeal: (1) whether the trial court incorrectly dismissed his petition for attorney fees incurred in the prior dissolution of marriage proceeding between the same parties in a separate case, and (2) whether the trial court erred in denying the petition for change of venue filed by the wife in the dissolution of marriage proceeding between those parties.

On December 21, 1984, the husband filed a petition for dissolution of marriage in this cause, No. 84 D 3284, and the wife filed a counter-petition for legal separation on February 13, 1985. The marriage was dissolved in a judgment entered on May 28, 1985, and a judgment on the remaining issues was entered on March 17, 1986. However, on July 15, 1985, Didzerekis filed a petition for attorney fees in this cause for services rendered to the wife in a prior action for dissolution, in case No. 82 D 1142, which had been dismissed on December 20,1984.

The petition for attorney fees alleged that Didzerekis was retained by the wife on June 7, 1982, to represent her in a dissolution of marriage action which she filed against the husband and continued to represent her on the prior action until November 28, 1983, when the wife apparently retained new counsel. He also alleged that the husband and wife had agreed in the prior action that the husband was to compensate the attorney for his work and reimburse him for his costs and expenses. Didzerekis listed his time spent on the prior case and stated that $8,894 was due to him for services and costs rendered between June 7, 1982, and November 11, 1983, when an order was entered in the previous case allowing him to withdraw as attorney. Didzerekis further represents in his appellate brief that on December 20, 1984, the trial court dismissed the first petition for dissolution of this marriage filed in case No. 82 D 1142 at the request of the parties, and the present action for dissolution of marriage was filed one day later. Although the dismissal order in the first case is not in the record of this proceeding, the husband does not dispute that the dismissal of the first case occurred on December 20,1984.

The husband moved to dismiss Didzerekis’ petition for attorney fees and costs pursuant to section 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2 — 619). He contended that the trial court lacked jurisdiction to award in this proceeding the requested attorney fees incurred in another proceeding by one of the parties to this proceeding. After reviewing the memorandum of the parties, the trial court determined that it did not have jurisdiction to award attorney fees incurred in a different case and granted the motion dismissing the petition. The attorney appeals.

By section 508 of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1985, ch. 40, par. 508), the legislature has provided the circuit court with the authority to award attorney fees incurred by either spouse in connection with proceedings under the Act. (In re Marriage of Bussey (1985), 108 Ill. 2d 286, 299, 483 N.E.2d 1229.) Section 508 provides as follows:

“(a) The court from time to time, after due notice and hearing, and after considering the financial resources of the parties, may order either spouse to pay a reasonable amount for his own costs and attorney’s fees and for the costs and attorney’s fees necessarily incurred by the other spouse, which award shall be made in connection with the following:
(1) The maintenance or defense of any proceeding under this Act.
(2) The enforcement or modification of any order or judgment under this Act other than the enforcement of a provision for child support.
(3) The defense of an appeal of any order or judgment under this Act, including the defense of appeals of post-judgment orders.
(4) The maintenance or defense of a petition brought under Section 2 — 1401 of the Code of Civil Procedure seeking relief from a final order or judgment under this Act.
(5) The costs and legal services of an attorney rendered in preparation of the commencement of the proceeding brought under this Act.
(b) In every proceeding for the enforcement of an order or judgment for child support in which relief is granted to the parent having custody of the child and the court finds that the failure to pay child support was without cause or justification, the court shall order the party against whom the proceeding is brought to pay the custodial parent’s costs and reasonable attorney’s fees.
(c) The court may order that the award of attorney’s fees and costs hereunder shall be paid directly to the attorney, who may enforce such order in his name, or that they be paid to the relevant party. Judgment may be entered and enforcement thereof had accordingly.” Ill. Rev. Stat. 1985, ch. 40, par. 508.

Section 508 derives from section 313 of the Uniform Marriage and Divorce Act, with certain modifications, and has the objective of diminishing any advantage one spouse may have over the other in the presentation of a case due to a disparity in their respective financial resources. (Ill. Ann. Stat., ch. 40, par. 508, Historical and Practice Notes, at 635 (Smith-Hurd 1980).) Subsection (c) provides that the court may order that the award of attorney fees be paid directly to the attorney who may enforce such order in his name. (Ill. Rev. Stat. 1985, ch. 40, par. 508(c); In re Marriage of Baltzer (1986), 150 Ill. App. 3d 890, 894-95, 502 N.E.2d 459.) The attorney has standing pursuant to section 508(c) to pursue an action for fees himself as a party in interest (150 Ill. App. 3d 890, 893, 502 N.E.2d 459; In re Marriage of Dague (1985), 136 Ill. App. 3d 297, 300, 483 N.E.2d 322), and section 508(c) promotes judicial economy by eliminating the need for an attorney to bring a separate suit to collect fees from his client. In re Marriage of Baltzer (1986), 150 Ill. App. 3d 890, 895, 502 N.E.2d 459; In re Marriage of Pitulla (1986), 141 Ill. App. 3d 956, 961, 491 N.E.2d 90.

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In Re Marriage of Birt, 512 N.E.2d 390, 159 Ill. App. 3d 281, 111 Ill. Dec. 274, 1987 Ill. App. LEXIS 2964 (Ill. Ct. App. 1987).

512 N.E.2d 390 (In Re Marriage of Birt) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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In Re Marriage of Birt
512 N.E.2d 390 (Appellate Court of Illinois, 1987)