In re Marriage of Thompson

• Court: Appellate Court of Illinois
• Decided: June 23, 2008
• Docket: 1-06-0472 Rel
• Status: Published

Opinion

FIRST DIVISION June 23, 2008

No. 1-06-0472

In re MARRIAGE of DEBORAH A. THOMPSON, ) Appeal from ) the Circuit Court Petitioner, ) of Cook County and ) ) LAWRENCE E. THOMPSON, ) No. 01 D 16181 ) Respondent-Appellant ) ) (The Muller Firm Ltd., ) Honorable ) Mark Joseph Lopez, Appellee). ) Judge Presiding.

PRESIDING JUSTICE CAHILL delivered the opinion of the court:

This appeal arises out of a dissolution of marriage proceeding brought by Deborah A.

Thompson against Lawrence E. Thompson. The Muller Firm Ltd. (the firm) was appointed by

the trial court to represent the parties' children in the proceeding. At issue here is whether the

trial court erred in granting the firm's fee petition without first holding an evidentiary hearing on

that petition. We hold it did and reverse and remand for further proceedings.

We recite only those facts necessary to this dispute. Deborah filed a petition for

dissolution of marriage on October 12, 2001. The parties sought joint custody of their two minor

children. On March 1, 2002, the trial court appointed the firm to represent the children under

section 506 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/506

(West 2002)). The order listed Todd Walters as the firm's contact.

The firm filed a petition for interim attorney fees on July 30, 2002. On August 23, 2002, 1-06-0472

Lawrence moved to disqualify Walters and the firm. Lawrence argued, among other things, that

there was a conflict of interest in the firm's representation and Walters was unqualified to hold

the position of child representative. The firm moved to strike the motion. After a hearing held

on March 18, 2003, the trial court granted the firm's motion to strike. The court held that Walters

and the firm acted professionally throughout the proceedings and committed no wrongdoing.

Despite this, the court, on its own motion, discharged Walters and the firm from their

appointment as the child representative, noting the delays caused by the disqualification dispute.

The court directed the firm to file a "final fee petition" within 30 days and appointed a successor

child representative.

The firm filed a "petition for setting final fees and costs" on March 26, 2003. The trial

court granted the petition on June 26, 2003. The court awarded the firm $20,000. Lawrence was

ordered to pay $13,000 of that amount and Deborah was ordered to pay the remaining $7,000.

Lawrence moved to vacate the award on July 24, 2003, arguing he was not afforded sufficient

discovery to contest the petition. The trial court granted Lawrence's motion and vacated the June

26, 2003, fee award. The court continued the firm's petition for fees until after trial on the

dissolution proceedings.

The firm filed an "amended petition for setting final fees and costs" on October 2, 2003.

The court denied Lawrence's request for an evidentiary hearing and granted the firm's petition on

January 11, 2006. The court awarded the firm $15,000 in fees and costs. Lawrence was ordered

to pay $12,500 of that amount and Deborah was ordered to pay the remaining $2,500. Lawrence

argues on appeal that the trial court erred in denying his request for an evidentiary hearing on the

firm's fee petition. We agree.

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Section 506(b) of the Act requires that a child representative be compensated for

"reasonable and necessary" attorney fees. Sections 501 and 508 of the Act (750 ILCS 5/501, 508

(West 2002)) govern fee petitions brought under section 506(b). 750 ILCS 5/506(b) (West

2002); see also In re Marriage of Beyer, 324 Ill. App. 3d 305, 753 N.E.2d 1032 (2001)

(describing interplay between sections 501 and 508 of the Act).

Section 501 relates to temporary relief and authorizes courts to award "interim attorney's

fees and costs," defined by the statute as "attorney's fees and costs assessed from time to time

while a case is pending, in favor of the petitioning party's current counsel, for reasonable fees

and costs either already incurred or to be incurred." (Emphasis added.) 750 ILCS 5/501(c-1)

(West 2002). "Except for good cause shown, a proceeding for (or relating to) interim attorney's

fees and costs shall be nonevidentiary, summary in nature, and expeditious." 750 ILCS 5/501(c-

1)(1) (West 2002).

Section 508 of the Act, on the other hand, governs attorney petitions for final fees and

costs. Petitions brought under section 508 require due notice and a hearing. 750 ILCS 5/508

(West 2002). When a petition for fees under section 508 is contested and a hearing is requested,

the trial court must hold an evidentiary hearing on the petition. Kaufman v. Kaufman, 22 Ill.

App. 3d 1045, 1051, 318 N.E.2d 282, 287 (1974). " 'The rule of law is that the value of such

services must be established [by proof] and that such proof must be preserved in the record, or

the decree must show that such evidence was in fact introduced, and that upon a consideration

thereof the court found that such fees were reasonable, customary and usual fees for such

services.' " Jones v. Jones, 48 Ill. App. 2d 232, 240, 198 N.E.2d 195, 199 (1964), quoting

Gehlbach v. Gehlbach, 219 Ill. App. 503, 505 (1920). Only where a party fails to request a

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hearing may a trial judge rely on the pleadings, affidavits on file and his own experience to award

attorney fees in a divorce case. Kaufman, 22 Ill. App. 3d at 1051.

The firm's March 26, 2003, petition, as well as the amended petition filed October 2,

2003, sought final fees and costs. As such, the petitions fell within the ambit of section 508 of

the Act. Because Lawrence challenged the petition and requested an evidentiary hearing, the trial

court erred by refusing to hold such hearing. We reverse on this ground and remand the cause to

the trial court to hold an evidentiary hearing on the firm's petition for final fees and costs.

The dissent maintains that the petition for fees was brought under section 501 of the Act,

rendering an evidentiary hearing unnecessary in the absence of good cause shown. See 750 ILCS

5/501(c-1)(1) (West 2002). It clearly was not. The firm was no longer representing the children

at the time the petition was filed. See 750 ILCS 5/501(c-1) (West 2002) (defining "interim

attorney fees and costs" as "attorney's fees and costs assessed from time to time while a case is

pending, in favor of the petitioning party's current counsel, for reasonable fees and costs either

already incurred or to be incurred" (emphasis added)). Also, the petition sought a determination

of final fees and costs. If, as the dissent suggests, the trial court treated the petition as one falling

under section 501 of the Act, it erred in doing so.

The judgment of the circuit court is reversed and the cause remanded with directions.

Reversed and remanded.

R.E. GORDON, concurs.

GARCIA, J., dissents.

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JUSTICE GARCIA, dissenting.

Each of the three circuit court judges involved in the

proceedings below considered whether an evidentiary hearing was

required before awarding child representative fees. Each

answered "no."

Judge Boyd, during the pretrial proceedings, stated he would

allow the respondent to challenge the fees sought by the

representative but it would be in a "nonevidentiary hearing. I

feel there is no need to take evidence, but I'm going to give you

your day in court."

Judge Brewer, the trial judge, the respondent acknowledges

in footnote 1 in his main brief, determined that an evidentiary

"hearing is not required in regard to assessing fees for a

guardian ad litem."

Judge Lopez, during the postdecree proceedings, held that in

the absence of a showing of "good cause," which the respondent

did not satisfy, he was not entitled to an evidentiary hearing.

Against this consensus position taken by each of the circuit

court judges involved in this case, the majority holds that the

section 506 fee petition filed by the representative must be

vetted at an evidentiary hearing based solely on a request for

such a hearing, relying on Kaufman and Jones, cases involving fee

disputes under section 508 between parties to a divorce, as

authority for this proposition. Slip op. at 3-4.

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A child representative does not stand in the same shoes as

counsel to a party in a divorce proceeding. It is the trial

court that appoints counsel for the children. In appointing a

child representative, the trial court undertakes a concomitant

duty to ensure the child representative acts in accordance with

the best interest of the minor children and to ensure that

services rendered on behalf of the children are "reasonable and

necessary." As a judge presiding over the litigation, the judge

acquires direct knowledge of the services rendered by the child

representative. This explains the decision by each of the three

circuit court judges, that the respondent's mere request for an

evidentiary hearing was insufficient to entitle him to one.

Unless the respondent gives a good reason for one, the judge,

being sufficiently familiar with the litigation, is able to

resolve the fee petition without an evidentiary hearing. This

familiarity explains Judge Boyd's assessment of the respondent's

request for an evidentiary hearing: "I feel there is no need to

take evidence."

To be clear, I am not saying an evidentiary hearing is

foreclosed to the respondent. Rather, he must make a showing

entitling him to challenge the section 506 fee petition at an

evidentiary hearing, in this case, by establishing "good cause."

This, I submit, is consistent with the observation made by our

supreme court in Raintree Health Care Center v. Illinois Human

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Rights Comm'n, 173 Ill. 2d 469, 495, 672 N.E.2d 1136 (1996),

"[C]ourts frequently award attorney fees without discovery by the

party charged with paying them and without holding evidentiary

hearings," citing Singer v. Brookman, 217 Ill. App. 3d 870, 880,

578 N.E.2d 1 (1991) (attorney fees properly awarded without an

evidentiary hearing where "detailed breakdown of fees and

expenses" was provided by counsel); Kellett v. Roberts, 276 Ill.

App. 3d 164, 175, 658 N.E.2d 496 (1995) ("trial court did not err

in failing to hold a hearing on the amount of fees" where fee

request was supported by legally sufficient affidavit and

detailed time sheet).

I am not convinced that the rule the majority correctly

states - - "When a petition for fees under section 508 is

contested and a hearing is requested, the trial court must hold

an evidentiary hearing on the petition" - - has any application

here. Slip op. at 3. Unlike Kaufman and Jones, this case does

not involve a fee dispute under section 508 between parties to a

divorce, but a section 506 petition by a child representative.1

1 Judge Boyd determined that the alternative dispute

resolution provision in section 508 (750 ILCS 5/508(c)(4) (West

2002)) had no application regarding a section 506 petition. Does

the majority really mean to suggest the contrary? That is

precisely where this decision takes us, by seemingly deciding

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The observation that "[s]ections 501 and 508 of the Act

[citation] govern fee petitions brought under section 506(b)"

(slip op. at 3) explains our conflict; it does not resolve it.

That a "final" section 506 fee petition should be treated as if

it were a "final" section 508 fee petition based on the reference

to section 508 in section 506(b) is not an answer because section

506 also makes reference to section 501 under which a "good

cause" showing must be made before an evidentiary hearing need be

ordered. Deciding that section 508 governs over the "good cause"

provision of section 501 regarding final fee petitions under

section 506 requires more than a syllogism: Section 508 requires

an evidentiary hearing upon request regarding a "final" fee

petition, this is a "final" fee petition under section 506, which

references section 508, therefore an evidentiary hearing must be

held upon request regarding a "final" fee petition under section

506. At best, the language in section 506 referencing section

508 and section 501 is ambiguous as to which of the sections

ought to govern under the circumstances of this case. And, it is

this unaddressed ambiguity that provides the bottom-line reason

the respondent must lose given the state of this appeal.

In his brief, the respondent makes no argument that the

section 506 fee petition involved here should be treated as if it

that this "final" fee petition should be considered solely under

the provisions of section 508 regarding "final" fee petitions.

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were a section 508 fee petition, entitling him to an evidentiary

hearing upon request. He simply assumes this is so. The only

case the respondent cites as authority for this contention is In

re Marriage of Soraparu, 147 Ill. App. 3d 857, 498 N.E. 2d 565

(1986). The respondent contends Soraparu stands for the

proposition that an award of fees to an attorney or a guardian ad

litem without an evidentiary hearing is improper when the

necessity and reasonableness of the fees are disputed. However,

our holding in Soraparu is far narrower than the respondent

states. The decision in Soraparu turned on the insufficient

showing made to support the award to the guardian. Soraparu, 147

Ill. App. 3d at 864. In finding the award to be an abuse of

discretion we explained, "Although the guardian testified that he

spent '25 hours or more' on this case, no showing was made

concerning what particular services were included in these '25

hours or more,' nor was there any indication of their necessity."

Soraparu, 147 Ill. App. 3d at 864. In reversing, we remanded the

matter "for such hearings as necessary to determine the value of

the services rendered by the guardian." (Emphasis added.)

Soraparu, 147 Ill. App. 3d at 865. Contrary to the respondent's

assertion, we did not order an evidentiary hearing be held on

remand. I submit Soraparu stands for the proposition that the

circuit court, based on its familiarity with the proceedings, is

in the best position to determine the type of hearing required

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based on the nature of the challenge to the final section 506 fee

petition, which is precisely what occurred here.

I submit under Supreme Court Rule 341(h)(7) (210 Ill. 2d R.

341(h)(7)), we need not resolve the undeveloped argument that a

final section 506 fee petition must be treated no differently

than a final section 508 fee petition in deciding whether an

evidentiary hearing should be granted to challenge the fees

sought here.

Absent persuasive authority that the respondent is entitled

to an evidentiary hearing under the facts of this case, I cannot

agree that this cause should be remanded for an evidentiary

hearing based on a mere request for one.

I therefore dissent.