In re The Matter of Sivels

2022 IL App (1st) 210346-U
CourtAppellate Court of Illinois
DecidedNovember 2, 2022
Docket1-21-0346
StatusUnpublished

This text of 2022 IL App (1st) 210346-U (In re The Matter of Sivels) 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 The Matter of Sivels, 2022 IL App (1st) 210346-U (Ill. Ct. App. 2022).

Opinion

2022 IL App (1st) 210346-U

THIRD DIVISION November 2, 2022 No. 1-21-0346

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________ IN RE THE MATTER OF: ) ) Appeal from LaTONYA SIVELS, ) the Circuit Court ) of Cook County Petitioner-Appellee, ) ) 2012-D-08393 and ) ) Honorable CLINTON WASHINGTON, ) Maritza Martinez, ) Judge Presiding Respondent-Appellant )

PRESIDING JUSTICE McBRIDE delivered the judgment of the court. Justices Reyes and Burke concurred in the judgment.

ORDER

¶1 Held: Appellate court lacked jurisdiction over untimely filed interlocutory appeal.

¶2 For the past decade, petitioner LaTonya Sivels and respondent-appellant

Clinton Washington have been litigating questions of custody and support for their two children,

the younger of whom is now 17 years old. Washington brings this interlocutory appeal from orders

awarding $33,204 as reasonable attorney fees to the minor children’s representative,

Matthew A. Kirsh, and finding Washington in indirect civil contempt for failing to comply with

the fee order. Washington argues the circuit court abused its discretion by granting Kirsh’s fee 1-21-0346 petition without reviewing any evidence of the reasonableness or necessity of the amounts that

were requested.

¶3 Kirsh has not filed an appellate response brief, however, we consider the merits of

Washington’s appeal because the record is simple and the claimed error can easily be decided

without the aid of an appellee’s brief. First Capitol Mortgage Corp. v. Talandis Construction

Corp., 63 Ill. 2d 128, 133 (1976).

¶4 Kirsh was appointed as the children’s representative when this case began in 2012. He

continued in that capacity after the older child became emancipated in 2017.

¶5 Kirsh filed a fee petition on December 20, 2018 indicating that the parents had “received

detailed monthly billing for all services rendered by [Kirsh] since his appointment.” He claimed

that a total of $51,152.50 “reasonable and necessary” fees and costs had accrued during his

representation of the children or younger child. After deducting the $500 retainer that each parent

paid pursuant to the order appointing Kirsh to the case and Washington’s subsequent payment of

$18,400, there was an unpaid balance of $32,424.50. Kirsh asked the circuit court to enter

judgment in that amount against Sivels and Washington and that they be granted the right to file

pleadings allocating responsibility for their respective shares of the judgment.

¶6 In his written response, Washington admitted receiving detailed billing, but contended it

was “on an untimely basis.” He identified seven issues with the amount of attorney fees that Kirsh

was requesting:

“the majority of services performed by Movant were unreasonable and unnecessary; the

majority [of] services performed by Movant did not materially benefit the parties or their

child; the fees charged by Movant for its representation of the parties’ child were excessive;

-2- 1-21-0346 the hourly rates charged by Movant for its representation of the parties’ child [were]

unreasonable; Movant did not adequately meet with the child as part of his investigation;

Movant did not adequately meet with the parties as part of his investigation; Movant

needlessly incurred expenses rendering impermissible opinions; and Movant needlessly

incurred expenses rendering impermissible recommendations.”

¶7 The court heard Kirsh’s fee petition on April 3, 2019. We cannot summarize what

happened during that hearing because the record on appeal does not include a hearing transcript.

The court’s written order indicates that “a hearing on the fee petition” took place and the court was

“fully advised” when it found that the “reasonable fees owed by the parties to the child

representative through 12/14/18 are $31,742.50.” The order also indicates that Kirsh orally

withdrew his request for entry of judgment and that the court scheduled a hearing on May 16, 2019

for the litigants to address the allocation of fees and make closing arguments. They were given 21

days to “prepare and exchange updated financial affidavits and Rule 13.3.2 supporting documents”

and until May 1, 2019 to give the court their memoranda of law.

¶8 However, when the matter was set on May 16, 2019, the court entered an agreed order

stating in relevant part: “3. This matter is set for hearing on the allocation and reasonableness of

the child representative’s fees on 09/11/19, at 10:30 a.m.; and Mr. Kirsh shall tender updated

billing statements by 09/04/19. The 237(b) notice to appear and produce previously served on

[Washington] is continued to the above-stated date and time.” Illinois Supreme Court Rule 237,

entitled “Compelling Appearances of Witnesses at Trial,” concerns the required attendance of

witnesses and their production of documents, and authorizes a sanction or other appropriate

remedy for noncompliance. Ill. S. Ct. R. 237 (eff. July 1, 2005).

-3- 1-21-0346 ¶9 On the next scheduled court date, September 11, 2019, the court again addressed Kirsh’s

fee petition. This is another date, however, for which there is a written order but no transcript in

the record on appeal. The order indicates that the parties were represented by counsel and after the

court was “fully advised,” it found that Kirsh’s reasonable fees and costs through September 10,

2019 were $54,320, of which he was owed $35,420. The court (1) allocated $33,204 of the fees to

Washington and $2,216 to Sivels; (2) ordered them to pay Kirsh within 7 days (that is, by

September 18, 2019); (3) scheduled a court date for October 8, 2019 to address the status of their

payments; and (4) further ordered, “Both parties shall appear on 10/8/19.”

¶ 10 A written order entered on October 8, 2019 indicates that Kirsh tendered a verified petition

for rule to show cause as to why Washington should not be held in indirect civil contempt of court

for his willful failure to obey the payment order entered on September 11, 2019. The court ordered

Washington to appear on October 15, 2019.

¶ 11 Despite that order, Washington did not appear as scheduled on October 15, 2019 for the

rule to show cause hearing. The October 15, 2019 order indicates that Kirsh had also “served an

Illinois Rule 237(b) and 237(c) [notice] upon [Washington] requiring his appearance in court at

11:30 a.m. this morning.” Washington’s attorney did not attend the hearing either, despite having

told Kirsh to anticipate him being “15 minutes late” that morning. The order concludes that the

court, “having heard the testimony of the parties and witnesses, together with all pleadings,

exhibits, and arguments of counsel, and being fully advised in the premises,” (1) “found and

declared [Washington] to be in indirect civil contempt of Court for willful failure to obey the

Court’s order,” and (2) “ordered [him] committed to the Cook County Jail” until he purged himself

of contempt by paying Kirsh $33,204. The court stayed Washington’s commitment until October

-4- 1-21-0346 29, 2019, scheduled a status hearing for that morning, and ordered Washington to appear at that

date and time.

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