In Re Marriage of Powers

624 N.E.2d 390, 252 Ill. App. 3d 506, 191 Ill. Dec. 541, 1993 Ill. App. LEXIS 1742
CourtAppellate Court of Illinois
DecidedNovember 29, 1993
Docket2-92-1060
StatusPublished
Cited by27 cases

This text of 624 N.E.2d 390 (In Re Marriage of Powers) 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 Powers, 624 N.E.2d 390, 252 Ill. App. 3d 506, 191 Ill. Dec. 541, 1993 Ill. App. LEXIS 1742 (Ill. Ct. App. 1993).

Opinion

PRESIDING JUSTICE INGLIS

delivered the opinion of the court:

Petitioner, John Powers (the husband), appeals from an order of the circuit court of Du Page County which required him to pay a portion of the attorney fees incurred by respondent, Phyllis Powers (the wife), in defense of an appeal, and prosecution of a cross-appeal, brought after judgment was rendered in post-dissolution-of-marriage proceedings. The trial court granted judgment for $4,519.84 in favor of the wife’s attorneys and against the husband. The amount included both sums for work done on the appeal and sums for preparation of the wife’s petition for attorney fees. In this appeal, the husband argues that the award of attorney fees was contrary to law and against the manifest weight of the evidence; that the trial judge should not have asked questions of the wife’s attorney at the hearing on the fee petition; and that the court should not have allowed attorney fees for time spent preparing the fee petition.

Following an order of this court affirming the judgment of the trial court in the post-dissolution proceedings (the first appeal), the wife brought a petition in the trial court for an award of $5,388.61 in attorney fees incurred in the first appeal. The first appeal concerned the propriety of an increase in child support and an award of attorney fees to the wife’s counsel for work done in connection with the child support proceedings.

A hearing on the fee petition was held on August 4, 1992. The wife testified as to her income, assets and liabilities. Neal Ceme, the wife’s attorney, testified that he was admitted to practice law in Illinois in November 1988, that he concentrated in matrimonial law, and that he belonged to several legal associations. He represented the wife in the first appeal. He identified time slips he and a law clerk had prepared in connection with his representation of the wife. The time slips had been prepared directly after the work performed and noted the type of work done. Mr. Ceme charged $90 per hour for court time and $80 per hour for office time. He charged the wife for 50.5 hours of work in connection with the appeal and for 4.75 hours of work in connection with the fee petition. He charged approximately five hours of time at $30 per hour for the law clerk’s work in preparing the fee petition. Mr. Ceme testified as to costs incurred of $99.86. Approximately 25 hours of time were not included in monthly billing statements because time slips representing those hours did not show the case number on their face. These 25 hours were included in the fee petition.

The court found that Mr. Cerne’s $80-per-hour-rate was reasonable and allowed 50.5 hours for the appeal. It allowed 4.75 hours for the preparation of the fee petition. The court also found that the amount of costs was reasonable. It did not allow the fees requested for work performed by the law clerk. Judgment was entered in favor of Mr. Cerne’s law firm in the amount of $4,519.84. The husband filed a timely appeal.

The husband first argues that the wife’s attorney did not prove the reasonableness of his fee or that the work alleged in his records was reasonably required or necessary for the proper performance of legal services in connection with the appeal. The wife asserts that the husband has waived this argument because he failed to raise it below.

Initially, the record of the fee petition hearing clearly shows that the husband’s attorney argued to the court that the wife did not meet her burden as to the reasonableness and necessity of the fees requested and that she was not entitled to attorney fees. Consequently, the husband has not waived his first point.

Attorney fees may be awarded for defending an appeal of any order or judgment entered under the Illinois Marriage and Dissolution of Marriage Act (the Act). (750 ILCS 5/508(aX3) (West 1992).) When awarding attorney fees under the Act, “a trial court must consider the relative financial abilities of the parties, the nature of the controversy, the question at issue, the significance or importance of the subject matter, the degree of responsibility involved, the standing or skill of the attorney, and the time and labor involved.” (In re Marriage of Ackerman (1988), 168 Ill. App. 3d 438, 443.) The most important of these factors is the amount of time necessarily spent on the case. (In re Marriage of Winton (1991), 216 Ill. App. 3d 1084, 1092.) However, the amount awarded should be fair to all parties and should reflect compensation only for reasonable and necessary services. (In re Marriage of Pitulla (1990), 202 Ill. App. 3d 103, 111.) The trial judge may rely on his or her own knowledge and experience when deciding the value of the services provided. (In re Marriage of Walters (1992), 238 Ill. App. 3d 1086, 1099.) Finally, the award of attorney fees is within the discretion of the trial judge, whose decision will not be reversed absent an abuse of that discretion. In re Marriage of Schmidt (1993), 242 Ill. App. 3d 961, 971.

The husband relies principally on Gasperini v. Gasperini (1978), 57 Ill. App. 3d 578, and In re Marriage of Brophy (1981), 96 Ill. App. 3d 1108, in support of his claim. These cases are distinguishable. In Gasperini, the appellate court ordered a reduction in the fees a husband had to pay his wife’s attorneys. The court noted that one attorney had charged at his “court time” rate for time he spent filing documents with the court clerk and obtaining agreed orders and trial dates. (Gasperini, 57 Ill. App. 3d at 583-84.) Moreover, another attorney in that case did not keep contemporaneous time records, charged 2.5 hours for review of a simple answer and countercomplaint, and charged excessive time for simple office work. (Gasperini, 57 Ill. App. 3d at 584-85.) The attorneys there had initially requested almost $21,000 in fees for an uncomplicated case that concerned only $24,000 in marital property, most of which was in the form of bank accounts. Gasperini, 57 Ill. App. 3d at 582-83.

In Brophy, the reviewing court held that awarding the wife’s attorney $6,000 for work done in a dissolution action was excessive, especially in light of the fact that the parties were of modest means and the proceedings were uncomplicated. (Brophy, 96 Ill. App. 3d at 1120-21.) Further, the attorney requested compensation for 30 hours of “conferences,” apparently without elaboration on the nature or necessity of those conferences. (Brophy, 96 Ill. App. 3d at 1120.) The attorney also sought to charge at his “court time” rate for 22 hours spent in preparation for, attendance at, and review of depositions. Brophy, 96 Ill. App. 3d at 1120.

Here, the wife’s attorney requested payment at his office rate of $80 per hour. There is no question of improper “court time” charges. In addition, Mr. Ceme offered into evidence copies of his time slips, prepared immediately after work was performed. We disagree with the husband’s contention that the time slips contain “only the most general notations.” For example, the time slip for March 12, 1991, states “work on appeal, read cases, did outline” and notes 2.75 hours worked. The time slip for March 18, 1991, states “prepare brief, review cases, modifications, review other brief” and notes five hours worked. The next day’s time slip states “research, draft of brief” and notes seven hours worked.

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Bluebook (online)
624 N.E.2d 390, 252 Ill. App. 3d 506, 191 Ill. Dec. 541, 1993 Ill. App. LEXIS 1742, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-powers-illappct-1993.