In re Marriage of Sanda

612 N.E.2d 1346, 245 Ill. App. 3d 314, 184 Ill. Dec. 186, 1993 Ill. App. LEXIS 581
CourtAppellate Court of Illinois
DecidedApril 27, 1993
DocketNo. 2-92-0690
StatusPublished
Cited by17 cases

This text of 612 N.E.2d 1346 (In re Marriage of Sanda) 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 Sanda, 612 N.E.2d 1346, 245 Ill. App. 3d 314, 184 Ill. Dec. 186, 1993 Ill. App. LEXIS 581 (Ill. Ct. App. 1993).

Opinion

JUSTICE GEIGER

delivered the opinion of the court:

The respondent, Karl L. Sanda, appeals from the court’s award of attorney fees to the petitioner, Donna J. Sanda, n/k/a Donna J. Seward, in this post-judgment dissolution of marriage case. The respondent argues on appeal that the court erred (1) in reopening proofs after granting his motion for a directed finding; (2) in awarding attorney fees pursuant to section 508(b) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1991, ch. 40, par. 508(b)), where the petitioner did not sufficiently prove that the fees requested were reasonable; and (3) because there was no hearing held to determine if the respondent failed to comply with a court order or that his failure to comply was without cause or justification.

The following are the pertinent facts for this appeal. On September 15, 1988, a judgment for dissolution of the parties’ marriage was entered following a trial. On May 3, 1991, one of the petitioner’s attorneys, Terry A. EM, filed a petition for post-decree enforcement attorney fees (hereinafter EM fees petition) against the respondent, pursuant to section 508(b) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1991, ch. 40, par. 508(b)). On May 6, 1991, another attorney for the petitioner, Arthur G. Jaros, Jr., filed a petition for attorney fees (hereinafter Jaros fees petition) against the respondent for three post-judgment matters.

A hearing on the petitions for fees was held on September 18, 1991. On the EM fees petition, Mr. EM testified in narrative form that he represented the petitioner in certain post-judgment orders which culminated in an agreed order. He explained to the court his office procedure regarding his time slips, which were filed with his petition for fees. He testified that the fee petition pertained to his efforts in representing the petitioner in enforcing certain court orders against the respondent. He requested an hourly rate of $125 per hour for his time. He also stated that some of his clients are billed at $200 per hour. He was not cross-examined by the respondent.

The respondent moved for a directed finding, arguing that the EM fees petition and accompanying testimony failed to include the necessary “elements of proof,” contained in the Rules of Professional Conduct (134 Ill. 2d R. 1.5). Mr. EM argued that the factors concerning attorney fees in Rule 1.5 do not apply to section 508(b) fees and that he was only required to show that a court order was violated and needed to be enforced and that the fees in the enforcement were reasonable and necessary. The court, sue sponte, offered to allow Mr. Ekl to reopen the proofs. When Mr. Ekl did not agree to do so, the court granted the respondent’s motion for a directed finding.

Mr. Jaros testified that he had represented the petitioner since 1986, that his fee petition sought payment for services rendered in conjunction with post-judgment disputes at the ordinary and customary rates that he normally charges his clients. Mr. Jaros also testified as to why his actions on behalf of the petitioner were necessary, and the results accomplished by his representation. The respondent moved for a directed finding on the same grounds as he had on the Ekl petition. The court reserved ruling on the Jaros fee petition and on the respondent’s motion for a directed finding. The court also granted Mr. Ekl permission to file a motion to reconsider.

On September 25, 1991, the court heard arguments on the petitioner’s motion to reconsider the judgment on the Ekl fees petition, the respondent’s motion to strike the petitioner’s motion to reconsider, and the petitioner’s objection to the respondent’s motion for a directed finding on the Jaros fees petition.

After arguments, the court reasoned that since the Jaros fees petition was based on section 508(b), Mr. Jaros had provided sufficient evidence to survive the respondent’s motion for a directed finding. With respect to the Ekl fees petition, the court made a similar finding that because the petition was brought under section 508(b), “certain elements need not be proved,” and it vacated the directed finding on the petition. The respondent renewed his objection to the sufficiency of the petitioner’s fees petitions and declined to further participate in the proceedings, believing that to do otherwise would waive the “error in the court.”

On May 14, 1992, the court entered its memorandum opinion and order which awarded $8,638.75 to the petitioner on the Ekl fees petition, and $18,297.80 on the Jaros fees petition. In that memorandum opinion, the judge stated, in part:

“[Bjased upon the evidence presented, based upon the court’s own knowledge of and familiarity with the case over a long period of time, based upon the court’s own knowledge of the fees customarily charged in Du Page County, based upon the skill and standing of both attorneys in the legal community and based upon the complexity of the matter and the degree of responsibility of the attorneys involved as well as the benefit of their efforts which resulted to the client, as well as a review of all records generated, the Court finds that the fees of each [attomey] were reasonable and the services performed were necessary, with the exception of certain disallowances. There being no evidence to the contrary, the Court finds that the actions of [the respondent] which brought the Post-Judgment litigation before the Court were without cause of [sic] justification.
To deprive [the petitioner] of her right pursuant to Section 508(b) to attorneys fees here because of procedural irregularities which could be and were remedied would, in this Court’s opinion, be to eviscerate Section 508(b) and ignore the clear legislative intent of the statute.”

On June 12, 1992, the respondent filed a timely notice of appeal, and on June 26, 1992, the petitioner filed a cross-appeal.

The respondent first argues oh appeal that the court erred in reopening the proofs. Our review of the record indicates that the court did not reopen the proofs, but merely offered Mr. Ekl the opportunity to reopen the proofs. When Mr. Ekl did not immediately do so, the court noted that Mr. Ekl declined the opportunity and granted the respondent’s motion for a directed finding. The court subsequently allowed a hearing on Mr. Ekl’s motion to reconsider and allowed Mr. Jaros to argue why the respondent’s motion for a directed finding should not be granted. In light of there being no perceived error relating to the reopening of the proofs, we proceed with this opinion addressing the remaining issues raised by the respondent.

The respondent next argues that the petitioner failed to prove that the fees generated by her attorneys were reasonable or necessary and that, therefore, he was entitled to a directed finding as a matter of law. Specifically, the respondent argues that the following criteria should have been pleaded by the petitioner and considered by the court in determining the allowance of attorney fees: (1) the relative financial position of the parties; (2) the skill and standing of the attorneys employed; (3) the importance, novelty and difficulty of the questions raised; (4) the degree of attorney responsibility involved from a management perspective; (5) the time and labor required; (6) the usual and customary charge in the community; and (7)' the benefits resulting to the client.

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Cite This Page — Counsel Stack

Bluebook (online)
612 N.E.2d 1346, 245 Ill. App. 3d 314, 184 Ill. Dec. 186, 1993 Ill. App. LEXIS 581, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-sanda-illappct-1993.