In re Marriage of Hirsch

482 N.E.2d 625, 135 Ill. App. 3d 945, 90 Ill. Dec. 646, 1985 Ill. App. LEXIS 2337
CourtAppellate Court of Illinois
DecidedAugust 12, 1985
DocketNos. 83—1685, 83—2276, 84—218 cons.
StatusPublished
Cited by24 cases

This text of 482 N.E.2d 625 (In re Marriage of Hirsch) 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
In re Marriage of Hirsch, 482 N.E.2d 625, 135 Ill. App. 3d 945, 90 Ill. Dec. 646, 1985 Ill. App. LEXIS 2337 (Ill. Ct. App. 1985).

Opinion

PRESIDING JUSTICE BUCKLEY

delivered the opinion of the court:

In these three consolidated appeals, petitioner Robert A. Hirsch (Robert) seeks reversal of certain orders entered subsequent to the entry of a judgment of dissolution of marriage between him and respondent Judith Y. Hirsch (Judith). The orders now appealed from corrected the dissolution judgment nunc pro tunc, awarded attorney fees and costs to the attorneys representing the guardian of Judith’s estate, required Robert to pay certain medical expenses incurred by Judith and awarded attorney fees and costs to Judith’s court-appointed guardian ad litem. Additionally, Robert appeals the denial of his motion to quash certain citations to discover assets which were served on a brokerage firm and financial institutions where Robert maintained accounts. For the following reasons, we affirm in part, modify in part, and reverse in part.

The protracted litigation which has resulted in the present three appeals and a prior appeal to this court commenced on December 19, 1978, when Robert filed a petition to dissolve his 28-year marriage to Judith, alleging mental cruelty. During the following year, a settlement proposal was negotiated between Judith and Robert. However, in November 1979, Judith discharged her attorney and retained as her new counsel the law firm of Montgomery & Montgomery (the Montgomerys), who rejected the settlement proposal. Judith was subsequently hospitalized at Chicago Reed Mental Health Center in Chicago, as a result of a petition for involuntary judicial admission filed by her son, Harold Hirsch.

In the spring of 1980, the Montgomerys filed a petition in the probate court requesting that Judith be declared a disabled person and that the Heritage Standard Bank & Trust Company of Evergreen Park (Heritage Bank) be appointed the guardian of Judith’s estate. The petition was granted, and Heritage Bank retained the Montgomerys to represent the bank in its capacity as guardian of Judith’s estate. During the guardianship proceeding, attorney Robert J. Weber was appointed by the probate court to serve as Judith’s guardian ad litem. On May 9, 1980, Weber was appointed Judith’s guardian ad litem for purposes of the dissolution proceeding. Thereafter, on December 11, 1980, Weber filed an affirmative defense based on mental incompetency and a counterpetition for dissolution on behalf of Judith.

A detailed recitation of the testimony presented during the trial of the dissolution proceeding is not necessary for resolution of the issues presented in these appeals. It is sufficient to note that testifying on Judith’s behalf were Dr. Robert Gross, a physician and neurologist, Dr. Charles Kitchen, a psychiatrist, and William McShane, a trust officer at Heritage Bank. McShane testified as to Judith’s current economic condition. Judith’s attorneys also called Robert as an adverse witness.

Robert offered the testimony of Dr. Dover Roth, a psychiatrist, to rebut the guardian ad litem’s argument that Judith was not responsible for her actions during the marriage. He also called as a witness his accountant, Albert Sommers, who gave testimony pertaining to the identification of marital and nonmarital property, and Albert C. Balderman, vice president and trust officer of Heritage Bank, who testified as to assets of Judith in the bank’s possession. Additionally, Robert testified on his own behalf as to the parties’ property interests.

On January 7, 1982, the trial court issued an oral ruling as to most of the pending issues. In announcing its decision, the court struck the affirmative defense presented by the guardian ad litem and found that grounds for dissolution had been established. The court stated that the marital assets far exceeded $150,000 and, after considering both marital and nonmarital assets, the trial judge concluded, “I am going to give one hundred fifty thousand dollars ($150,000) to the Heritage Bank for the benefit of Judith Hirsch.” The court also awarded Judith maintenance of $100 a week, barred Robert from maintenance, and ordered that Judith be named primary beneficiary of a $100,000 insurance policy on Robert’s life. The court stated that it would reserve ruling on the matter concerning who would pay Judith’s hospital bills. Counsel for both parties then indicated they wished to file petitions for fees. Fee petitions were subsequently filed by the Montgomerys, the guardian ad litem and Robert’s attorney.

On February 18, 1982, the trial court entered the written judgment for dissolution. The court, however, reserved the issues of attorney fees, liability for Judith’s medical bills and the division of approximately $8,500 in the parties’ joint escrow account at First Federal Savings & Loan Association of Chicago.1 On February 26, 1982, a petition for payment of certain costs and medical expenses was filed on Judith’s behalf.

On March 25, 1982, Heritage Bank, as guardian of Judith’s estate, filed a petition for rule to show cause as to why Robert should not be held in contempt for failure to comply with the judgment of dissolution of February 18, 1982, requiring him to pay $150,000 in cash to Heritage for the benefit of Judith. At a hearing on the petition for rule to show cause on May 21, 1982, Robert maintained that he was entitled to an offset against the $150,000 he was required to pay under the judgment of dissolution; the asserted offset represented Judith’s existing funds in the Heritage account.2 The trial court stated that it did not agree with Robert’s interpretation of the judgment and, to be sure there was no misunderstanding, the court on May 21, 1982, ordered a correction nunc pro tunc. The nunc pro tunc order provided that Robert pay $150,000 in cash by July 21, 1982, and continued other matters including the petitions for attorney fees and costs and the disposition of the escrowed funds.

Robert appealed from the May 21, 1982, order (Docket No. 82— 1681). On June 13, 1983, this court dismissed the appeal as premature in an unpublished order pursuant to Supreme Court Rule 23 (87 Ill. 2d R. 23). (In re Marriage of Hirsch (1983), 114 Ill. App. 3d 1151 (Rule 23 order).) We reasoned that since ancillary issues remained pending in the trial court, the dissolution was not final and the appeal therefore could not be maintained under In re Marriage of Leopando (1983), 96 Ill. 2d 114, 449 N.E.2d 137.

During the pendency of the above appeal, the trial court considered the issues reserved by the February 18, 1982, judgment of dissolution. The court first considered the petitions for attorney fees submitted by the Montgomerys. The Montgomerys twice amended their fee petition. Their first amended fee petition sought in excess of $70,000 for a total of 652.5 hours, while their second amended petition sought $39,831, for a total of 372.50 hours. Both petitions sought hourly rates of $125 for court time and $100 for office time.

Robert and the guardian ad litem filed objections to the fee petition, and the court therefore conducted an evidentiary hearing on the petition at which Walter Montgomery and his son, Lee, testified. Walter Montgomery testified that he and his son conduct a general neighborhood practice in Chicago. During the 46 years he has practiced law, he has tried approximately 75 contested divorce cases.

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Bluebook (online)
482 N.E.2d 625, 135 Ill. App. 3d 945, 90 Ill. Dec. 646, 1985 Ill. App. LEXIS 2337, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-hirsch-illappct-1985.