The Journal of The DuPage County Bar Association

Back Issues > Vol. 15 (2002-03)

A Survey of Recent Decisions in the Family Law Area
By Michael J. Calabrese

Injunctive Relief – Restoration of Estate Plan

In re Marriage of Centioli, 335 Ill.App.3d 650 (1st Dist. 2002).

The Appellate Court affirmed the trial court’s dismissal of the wife’s petition which sought restoration of wife as the beneficiary of an inter vivos revocable trust pursuant to mutual wills executed by the parties and a TRO prohibiting the transfer of any marital property. The terms of the trust specifically provided that either party could revoke their trusts, in whole or in part at any time during their lifetimes.

The Appellate Court held that the mere existence of mutual wills does not itself create a binding contract prohibiting revocation. Instead, there must be clear and convincing evidence of a binding contract not to revoke. The court found that granting an injunction would be unconstitutional as it would be equivalent to imposing an automatic stay.

Substitution of Judge, Classification of Marital Property

Partipilo v. Partipilo, 331 Ill.App.3d 394 (1st Dist. 2002).

The husband filed for divorce. Shortly thereafter, the wife filed 2 suits against husband in the chancery division. During the pendency of the divorce and chancery proceedings, the wife sought a stay of the divorce proceedings pending the outcome of the chancery proceedings. The divorce judge denied the request. Appellate Court held the denial was proper because, although the wife wanted to wait to be awarded the judgments as her non-marital property, it could not be classified as such until after the dissolution occurred. It would be contrary to public policy to allow the wife to stop the divorce proceedings until the conclusion of the chancery case.

Division of Marital Estate

In re Marriage of Gaumer, 2003 WL 194962 (Ill. App. 5th Dist. Jan. 29, 2003).

Judge’s award of disproportionate share of marital estate, (84%), to the wife in lieu of maintenance was proper. Trial court made award based upon length of marriage, (38 years), and the fact that the husband had social security income double that of the wife and pension income. The wife had only minimal social security benefits available to her and no pension. The trial court stated that, although the wife was in need of maintenance, the maintenance payments would have ceased upon the husband’s death, which would have left the wife financially vulnerable.

Dissolution of Marriage - Business valuation

In re Marriage of Cutler, 334 Ill.App.3d 731 (5th Dist. 2002).

Trial court accepted the value of the wife’s expert and valued the husband’s sole proprietorship of his Geico insurance business at $243,000. The husband appealed and the Appellate Court reversed and remanded with instructions to value the business at $32,000, the valuation of the husband’s expert, and for a redistribution of the marital property. In accepting the valuation by the husband’s expert, the Appellate Court rejected use of "fair value" in favor of "fair market value," which takes into account deductions based upon a hypothetical sale.

Marriage Settlement Agreement – Attorney-Client Privilege - Unconscionability

In re Marriage of Bielawski, 328 Ill.App.3d 243 (1st Dist. 2002).

The Appellate Court held that the marriage settlement agreement was not unconscionable, where the wife admitted that she entered into negotiations freely, understood and agreed with the terms of the agreement, and spent several days reviewing the agreement with her attorney. The court also properly denied the wife’s motion in limine seeking to have her former attorney barred from testifying during appeal hearing regarding the portion of the agreement allocating the husband’s pension, where she alleged that his testimony would violate the attorney-client privilege. The court stated that the wife effectively waived the privilege with respect to the pension because she was suing the attorney for malpractice on that particular issue.

Validity of Decree

Gile v. Gile, 333 Ill.App.3d 1161 (5th Dist. 2002).

The fact that a divorce decree is not signed does not invalidate, or void, the decree so long as it is approved by the presiding judge and entered into the record. The fact that a divorce decree does not specifically provide for payment of child support does not void the decree. In enacting the IMDMA, the legislature specifically provided that a court "may" make an order for child support, instead of requiring that the court do so. Moreover, even if a portion of a decree were to be found void for failing to award child support, it would not render the entire decree void. Where parts of a decree are separable, only the part which is in excess of the court’s authority is void – the remainder is valid.

Social Security Benefits – Division of the Marital Estate

In re Marriage of Crook, 334 Ill.App.3d 377 (4th Dist. 2002).

Upon division of the marital estate, the trial court refused to consider the husband’s future receipt of social security benefits. The wife appealed. The Appellate Court stated that social security benefits are not considered marital property and may not be divided by state courts as part of an equitable division of property. However, a trial court cannot refuse to consider anticipated social security benefits. Citing a split in authority between the states, the court held that a trial court must consider the fact that one party may receive a substantial benefit at some later date and fashion a division of the marital estate that will place the parties in a similar financial situations.

Post-Decree – IRA Transfer - Interest

In re Marriage of Carrier, 332 Ill.App.3d 654 (2nd Dist. 2002).

Where a marital settlement agreement provides that a wife is entitled to a specific sum from her husband’s IRA and husband fails to take the necessary actions to transfer the sum to the wife, pursuant to section 2-1303 of the Code, the wife is entitled to post-judgment interest dating back to the time the transfer was to be made. Here, the Appellate Court held that section 2-1303 should be applied even when a dissolution judgment is entered pursuant to a marital settlement agreement because the proceeding remains in the nature of a chancery proceeding and the rules governing such proceedings still apply. As a result, the decision to award interest on any dissolution judgment, other than a judgment for child support, is a matter for the court’s discretion. One of the judges dissented, opining that as the agreement was silent to who should effectuate the transfer, the wife should share in the interest loss.

Post-Decree - Reasonable Medical Expenses

In re Marriage of Turrell, 335 Ill.App.3d 297 (2nd Dist. 2002).

The wife filed a petition against the husband for payment of extraordinary medical expenses and an increase in child support. The Appellate Court affirmed the ruling with respect to the wife’s obligation to notify the husband before incurring any extraordinary medical expenses. The court stated that the term ‘medical expense’ as used in the marital settlement agreement encompassed only those expenses that are reasonable and necessary, and the reasonableness of the expense included only those costs that were incurred for treatment[s] recognized by the medical community, which the proposed treatment was not.

Life Insurance – Post-Decree

In re Marriage of Osborne, 327 Ill.App.3d 249 (3rd Dist. 2002).

The husband was not entitled to terminate life insurance with the former wife named as irrevocable beneficiary after the children were emancipated. The plain language of the relevant provisions of the marital settlement agreement did not mention the children or say that the insurance was security for child support.

Post-Decree Discovery – Privilege - Premarital Agreement

Puterbaugh v. Puterbaugh, 327 Ill.App.3d 792 (3rd Dist. 2002).

A prenuptial agreement between the father and his new wife was not protected by the spousal privilege from discovery in a post-decree petition to increase child support. On remand, the trial court must review document in camera to determine its relevance.

Enforcement of Foreign Judgments

In re Marriage of Kohl, 334 Ill.App.3d 867 (1st Dist. 2002).

The former wife filed petition for enforcement of support order under the Uniform Interstate Family Support Act. Section 606 of the Act provides that a party seeking to contest the registration of such an order must request a hearing within 20 days of either being personally served with the notice, or of the mailing of notice of the petition for registration. Pursuant to Section 605 of the Act, before Section 606 can be applied, a party seeking to register such an order must include specific language indicating that the payor has been notified of the 20-day time limit. The payor must also be notified that his failure to respond would bar him from ever doing so in the future. In the instant case, none of the documents given to the husband contained any such information, thus, Section 606 did not apply.

Child Support – Proper Calculation of Net Income – Tax Exemptions

IDPA ex rel Schmid v. Williams, 2003 WL 252136 (Ill. App. 4th Dist., Feb. 4, 2003).

Trial court’s calculation of child support was properly based upon the federal income tax that the obligor was actually paying (married with 5 dependents), rather that than amount of federal income tax he had been paying at the time of the original support calculation (single with two dependents). Since the date of the original child support award, the payor had remarried and had two additional children. Following the Pylawka case, the Appellate Court stated that "to consider an obligor parent’s withholding exemptions to be fixed in time, without regard to his or her actual number of withholding exemptions, would defeat the purpose of section 510(a)(1), because the trial court could not modify the order of a child support in response to a change in the parent’s actual net income."

Child Support – Deviation

In re Marriage of Garrett, 2003 WL 231604 (Ill. App. 5th Dist., Feb. 3, 2003).

Trial court properly refused to deviate below guidelines, even though the ordered support amount exceeded the child’s "shown needs" and the obligee’s monthly household living expenses. Absent compelling reasons, the guidelines must be applied. When one parent earns a disproportionately greater income than the other, and is able to pay support in excess of the stated needs of the child, a court may order child support in excess of the needs to enable the child to enjoy the standard of living he or she would have had if the marriage had not been dissolved. Additionally, the Appellate Court stated that it did not want to "instruct that unless a custodial parent spends the allotted child support money within the month it is received, the court will deem the excess unnecessary."

Child Support –Final Appealable Order

Shermach v. Brunory, 333 Ill.App.3d 313 (1st Dist. 2002).

Where an order resolves less than all the claims brought by a party, the order is not final and appealable under Supreme Court Rule 301. Here, the court ordered child support to be set at 20% of the mother’s income, rather than at a stated dollar amount, and directed counsel to enter a uniform support order which included a finding of the mother’s net income. Since the parties could potentially dispute the 20% amount, the court did not fully resolve the issue of permanent child support, and the order lacked the essentials of a final judgment.

Child Support Increase – Per Diem Allowances - Burden of Proof

In re Marriage of Worrall, 334 Ill.App.3d 550 (2nd Dist. 2002).

IDPA filed petition to increase child support, alleging an inconsistency of at least 20% between the amount of the existing order and the amount of support that would result from the application of the guidelines. The defendant was an over-the-road truck driver who received a set per diem allowance for expenses in addition to his base pay. Per diem should not be excluded from support calculation, and per diem allowances for travel expenses generally constitute income for the purpose of calculating child support, subject to reduction to the extent that the payer can prove that the per diem was used for actual travel expenses and not for his economic gain. The defendant bore the burden of establishing that it should not have been included in his income calculation, as he has far better access to the relevant evidence.

Child Support – Jurisdiction

Mattmuller v. Mattmuller, 2003 WL 256923 (Ill. App. 5th Dist., Feb. 6, 2003).

An Indiana court dissolved the parties’ marriage. The husband moved to New Mexico. The wife and children moved to Illinois, where she registered the Indiana Judgment and filed a petition to modify visitation and child support. The husband filed petition to modify in Indiana, but the Indiana court declined jurisdiction. The husband then filed the petition in Illinois. While the parties’ petitions were pending, the husband moved to Illinois and the wife and children moved to Wisconsin. Trial court granted the wife’s petition to modify support but deferred all remaining issues to Indiana court. The husband appealed and argued that Illinois lacked subject matter jurisdiction to rule on the wife’s petition pursuant to the Full Faith and Credit Act ("the Act") and the Uniform Interstate Family Support Act. The Appellate Court stated the Illinois court’s assumption of jurisdiction did not violate the Act because the Indiana court declined jurisdiction in favor of the Illinois court, and Illinois was the state in which the wife and children lived at the time the wife’s petition was filed.

Post-Decree Modification of Child Support

In re Marriage of Sassano, 2003 WL 1227984 (Ill. App. 2nd Dist., March 13, 2003).

Trial court properly refused to decrease the husband’s child support obligation where he purposefully concealed a second source of income during settlement negotiations. After entry of final judgment, the husband filed a motion to reduce his child support obligation, alleging that the loss of his second job constituted a substantial change in circumstances warranting a reduction in his child support payments. The trial court denied the motion stating that the husband’s failure to disclose the second job to his attorney, opposing counsel or the trial court prior to the prove-up, amounted to either fraudulent misrepresentation or equitable estoppel. In either case, he could not reap the economic benefit of his deceit. The Appellate Court expressly ruled that his failure to disclose the additional income negated the parties’ waiver of formal discovery in light of their related stipulation that each gad made a full disclose of all assets acquired during the marriage.

Moral Considerations

In re Marriage of Craig, 326 Ill.App.3d 1127 (4th Dist. 2002).

Awarding custody of child to the mother was not abuse of discretion despite mother’s engaging in "exhibitionism and sexual behavior," which the court termed "moral indiscretions" that did not affect her relationship to the child. The court found that all Section 602 best interests factors weighed in favor of custody to the mother. The visitation schedule including midweek overnights was also appropriate given father’s work schedule. It was also not error for the court to award the home to the mother because she was awarded custody and runs a day care business out of the home.

Removal – Split Custody

In re Marriage of Collingbourne, 332 Ill.App.3d 665 (2nd Dist. 2002).

Each parent had phsical custody of one of the parties’ two children. The court refused to grant the mother permission to remove the child and held that it is insufficient to focus only on the improvement in the custodial parent’s life, i.e., an increased standard of living, a larger home, or greater income. Instead, the improvement in that parent’s life is important only insofar as it increases the child’s quality of life. The mother failed to present evidence of any direct benefit to the child. In addition, the court considered the 10 year old son’s wish to remain in Illinois because he would miss his father who was actively involved in his life.

Summer “Custody”

In re Marriage of Deem, 328 Ill.App.3d 453 (4th Dist. 2002).

Court’s designation of father’s visitation with child during entire summer break as "custody" was an abuse of discretion because alternating or rotating custodial arrangements are disfavored as they deny the child a stable home environment. The case was remanded for further determination of the extent of summer visitation.

Custody Judgment Contrary to Expert’s Opinion

In re Marriage of Stopher, 328 Ill.App.3d 1037 (4th Dist. 2002).

It was not an abuse of discretion for the trial court to award custody to a developmentally disabled mother despite a contrary recommendation of the child custody evaluator where the court considered the factors listed in 750 ILCS 5/602 in making its finding. The court noted that the mother had a strong family support system, the child was well integrated into the mother’s family and community, and expressed concern regarding the father’s ability to nurture the child.

Visitation – Move Within State

In re Marriage of Means, 329 Ill.App.3d 392 (4th Dist. 2002).

The trial court erred when it failed to modify the JPA to accommodate the mother’s move from Sangamon County to McHenry, Illinois. The terms of a joint parenting agreement do not affect the general rule that the custodian of a child may move anywhere in the State of Illinois without seeking leave of court.


In re Marriage of Ludwinski, 329 Ill.App.3d 1149 (4th Dist. 2002).

Trial court did not violate UCCJA when it exercised continuing jurisdiction over all child-related post-dissolution matters, even though one party had moved to another state. The movement of a party or the children does not divest a court of jurisdiction acquired during modification proceedings underway, but still pending.

Imposed Joint Custody

In re Marriage of Seitzinger, 333 Ill.App.3d 103 (4th Dist. 2002).

Granting joint custody to parties who both sought sole custody was not error. However, the court erred when it awarded the mother physical custody of the child, conditioned on her residing in the same county or an adjacent county. The court’s order that physical custody was to change to father if mother moved was also error. The court held that it is not necessary for a custodial parent to obtain permission from a court before moving to another location in Illinois. The custody status of a child should not change automatically upon the removal of a parent from his or her present location without considering the child’s best interests.


Debilio v. Rodgers, 2002 WL 31370569 (Ill. App. 3rd Dist., Oct. 17, 2002).

Custodial parent of a child born out of wedlock does not have to obtain court’s permission to relocate the child out of state; however, trial court should consider whether custodial parent’s move out of state is in child’s best interest before modifying visitation with the noncustodial parent in order to accommodate the move.

While a court may not enjoin a parent from leaving the state with their child, the custodial parent must ask the court’s permission if leaving would result in a violation of the visitation order. Pursuant to Section 16 of the Parentage Act, the modification of a visitation order must be in accordance with the factors specified in Section 607(c) of the IMDMA which provides that a court may modify a visitation order if it is in the best interest of the child.

Voluntary Acknowledgement of Paternity - Challenges

IDPA ex rel. Howard v. Graham 328 Ill.App.3d 433 (3rd Dist. 2002).

A man who signs a voluntary acknowledgement of paternity and fails to rescind the acknowledgement within the statutory 60-day period cannot challenge the acknowledgement or his paternity in a subsequent child support action, despite allegation of fraudulent inducement. The only remedy is a motion brought under 750 ILCS 2-1401 challenging the acknow-ledgement and it is available only in limited circumstances where fraud, duress or material mistake of fact are alleged. Under the unique circumstances of this case where the trial court entered summary judgment against the presumed father, the 2 year limitations period of 2-1401 was equitably tolled from the date summary judgment was entered.

Termination – Equal Protection and Due Process

In the Interest of J.B. and T.B., 328 Ill.App.3d 175 (1st Dist. 2002).

Section 1(D)(q) of the Adoption Act, setting forth that grounds for parental unfitness may include a prior conviction for aggravated battery, heinous battery or attempted murder of any child, is constitutional and does not violate a party’s right to due process. The parent alleged that the section allows the trial court to make a finding of unfitness based solely on a parent’s status before the abuse occurs. The court held that the section provides a narrowly tailored means of identifying parents who pose a danger to their children’s health and safety and provides a time framework that is tied to the parent’s conduct as it relates to her competence to care for their child. The court held that the 1998 amendment adding the section could be applied retroactively in this case where the parent had plead guilty to aggravated battery of her child in 1992.

Termination – Equal Protection

In re Yasmine P., 328 Ill.App.3d 1005 (3rd Dist. 2002).

In a suit to terminate the respondent’s parental rights, his equal protection rights were not violated by admission of certified copy of his medical and psychological records pursuant to Section 2-18-(4) of the Adoption Act. The Adoption Act must be read in conjunction with the Juvenile Court Act, thus the hearsay exception of the Juvenile Court Act would apply to the Adoption Act, whether the suit to terminate was brought under the Juvenile Act or the Adoption Act. The Juvenile Court Act’s certification requirement ensures adequate indicia of reliability for the admissibility of documentary evidence in an abuse, neglect or dependency proceeding. The circumstances of the making of such documents affect the weight to be given to the documents, but do not affect their admissibility.

Termination – Registration with Putative Father Registry

In re Tinya W., 328 Ill.App.3d 405 (2nd Dist. 2002).

It was improper for trial court to consider the father’s failure to register his name with the putative father registry in making its fitness determination. The purpose of the registry was to bring finality to adoption proceedings and to preclude a putative father from later challenging the legality of an adoption, not for determining the fitness of a parent. Nevertheless, the court held the error to be harmless. The father’s failure to contact or support the child since birth adequately supported the termination of his rights.

Juvenile Court Act – Final Orders – Separation of Powers

In re Curtis B, 203 Ill.2d 53 (2002).

The legislature’s attempt to make a non-final judgment appealable as a matter of right was unconstitutional and violated the Separation of Powers Clause in Article VI, section 6 of the Illinois Constitution. The legislature erred when it provided for immediate appeal of permanency orders under 2-28(3) of the Juvenile Court Act as final orders under Supreme Court Rule 304(b)(1). The Supreme Court held that none of the determinations in a permanency order can be considered final since section 2-28 of the Act provides that all the rights and obligations in a permanency order must remain open for reexamination and/or possible revision every 6 months until the permanency goal is achieved. Permanency orders are interlocutory in nature, thus appealable only on a discretionary basis pursuant to section 306(a)(5) of the Act.

Adoption Act – Fees - Separation of Powers and Equal Protection

In re Adoption of K.L.P. 198 Ill.2d 448 (2002).

The Illinois Supreme Court held that doctrine of separation of powers is not violated by trial court having authority to order county to pay fees of counsel assigned to an indigent mother defending against a private adoption petition seeking termination of her parental rights. If mother were not afforded same rights as in petition brought by State under Juvenile Court Act for termination, equal protection would be violated.

Statute of Limitations – Adoption – Negligence

Lubin v. Jewish Children’s Bureau of Chicago, 328 Ill.App.3d 169 (1st Dist. 2002).

The court reversed dismissal of adoptive parents’ negligence suit where parents discovered late in child’s life that their schizophrenic child came from a family with mental illness. The court stated that statute of limitations had not run because reasonable people could disagree about whether child’s schizophrenia gave parents sufficient notice that the adoption agency may have acted wrongfully when they misrepresented to parents, prior to adoption, that child’s natural family had no history of mental illness.

Statute of Repose – Malpractice – Premarital Agreement

Sorenson v. Poehlmann, 327 Ill.App.3d 706 (2nd Dist. 2002).

The court properly dismissed Plaintiff’s legal malpractice action for alleged failure to draft an enforceable prenuptial agreement based upon the six year statute of repose. Agreement was drafted in 1985, divorce was filed in 1994, completed in 1998 and malpractice action was filed in 2000.

Statute of Repose – Malpractice – QDROs

O’Brien v. Scovil, 332 Ill.App.3d 1088 (3rd Dist. 2002).

The statute of repose on attorney malpractice begins to run on the last act of representation, even if continuing omissions may contribute to the injury. Here the attorney failed to file a QDRO in 1994 and his client did not find out about omission until 2000. The court held that the representation ended in 1995 and since the client did not file her complaint until more than six years after the representation ended, her malpractice complaint was barred by the statute of repose. The court stated that since the statue was designed to place an outer limit on the time in which claims may be brought, it was immaterial that the client did not discover her injury before it was barred.

Slander of Title - Attorney’s Lien

Chicago Title & Trust Co. v. Levine, 333 Ill.App.3d 420 (3rd Dist. 2002).

An attorney commits slander of title when he maliciously files a lien against property held in a land trust in contravention of the Illinois Attorney’s Lien Act. Here, lien was filed in violation of standing order not to encumber any of the property belonging to the parties.

Domestic Violence – Limitations - Monetary Damages for Abuse

Feltmeier v. Feltmeier, 333 Ill.App.3d 1167 (5th Dist. 2002).

A victim of domestic violence can maintain a civil action to recover monetary damages for a pattern of abuse inflicted over a number of years and resulting in severe emotional distress which was proximately caused by husband’s abuse. The wife suffered physical and mental abuse from husband for entire 11-year marriage and period thereafter. The court held that she stated a case for intentional infliction of emotional distress because she specifically alleged severe emotional distress which caused her to incur medical and psychological expenses; and given the pattern of abuse, her husband knew or should have known that his conduct would have long-term consequences. The court also held that the applicable statute of limitations for this type of abuse begins to run when the conduct finally terminates. Finally, the court held that boilerplate language in a marital settlement agreement, wherein the parties agree to release future causes of action against each other, cannot be used to release unknown claims such as the one in this case where the agreement contained ‘catch-all’ release language. The dissent agreed that the conduct was extreme but opined that the claims were barred by the statue of limitations, and waiver and release provisions of the Marital Settlement Agreement.

Order of Protection – Hearsay

In re Marriage of Flannery, 328 Ill.App.3d 602 (2nd Dist. 2002).

Section 205(a) of the Domestic Violence Act requires that § 8-2601 of the Code of Civil Procedure be used, rather than § 606(e) of the IMDMA, when determining the admissibility of hearsay statements in a proceeding where an order of protection is sought pursuant to the Domestic Violence Act and the parent seeks "physical care" of the child rather than "temporary custody." Section 8-2601 requires: (1) that the court conduct a hearing with respect to the hearsay statements; and (2) a finding that the statements are corroborated and there is sufficient indicia of reliability, i.e., that there is independent evidence that would support a logical and reasonable inference that he act of abuse or neglect described in the hearsay statement occurred. The physical evidence in the case and physical conduct of a child when relating the hearsay statements are insufficient corroboration.

Attorneys Fees on Appeal

In re Marriage of Murphy, 2003 WL 164732 (Ill. Jan 24, 2003).

The Fourth District Appellate Court erred when it reversed an award of attorneys’ fees to the wife finding that she had not "substantially prevailed" in her appeal, suggesting that the terms means prevailing on 50% or more of the issues. The Illinois Supreme Court noted that the language of section 508(a)(3.1) allows for an award of fees for "prosecution of any claim on appeal (if the prosecuting party has substantially prevailed)." The Court found that inclusion of the claim specific language was not inadvertent. The Court held that appellate fees must thus be analyzed on a claim by claim basis instead of considering the appeal as a whole.

Attorney’s Fees – Contribution

Macaluso v. Macaluso, 334 Ill.App.3d 1043 (3rd Dist. 2002).

The court erred when it placed strict time limit for hearing of petition for contribution to attorney’s fees pursuant to Section 5-508 since the Guardian Ad Litem’s petition for fees was still pending. The Appellate Court cited Section 5-508 and held that so long as the trial court has jurisdiction over the case, either party may file a petition for contribution to attorneys fees ‘at the conclusion of the case.’ In addition, the court found that the procedural requirements of 5-503 have no effect on post-dissolution proceedings since that section generally deals with the distribution of property in an original dissolution decree.

Attorney’s Fees – Contribution

In re Marriage of Robinson, 331 Ill.App.3d 261 (1st Dist. 2002).

The timing provision of section 503(j), which provides that petitions for attorney’s fees must be filed and heard before final judgment is entered, is not a jurisdictional prerequisite and may be waived.

Construction of Attorney’s Fees Contract

Guerrant v. Roth, 2002 WL 31051555 (Ill. App. 1st Dist. September 13, 2002).

The contingent fee agreement provided that the plaintiffs were to pay all "customary costs and reasonable out of pocket expenses" . . . these expenses include, court reporting services, expert witness fees, reasonable travel expenses, witness fees . . . . The parties disagreed on the meaning of "include." The trial court found that the firm was not entitled to recover its costs for computer-assisted legal research, photocopy charges, a court reporter bill, telephone charges and cab fare because, as a matter of law, the expenditures were not expressly included in the fee agreement. The Appellate Court held that any ambiguities in a contingent fee agreement dispute between an attorney and a client are to be construed against the drafter, because the drafter is an attorney. Contractual provisions for attorney’s fees are to be strictly construed and fees cannot be recovered for any services unless they are provided for by the specific terms. Although this was a case concerning contingent fees, it would appear that the scrutiny of contract terms could be applied to all fee agreements drafted by attorneys.

Attorney’s Fees and Sanctions

In re Marriage of Devick, 335 Ill.App.3d 734 (2nd Dist. 2002).

Pursuant to Rule 137 petition, the trial Court awarded $3,000 to the defendant as sanctions against attorney. Attorney filed petition for fees and costs against the client at the end of the litigation. Included in the petition was the $3,000 sanction award. The trial court awarded all fees sought. The Appellate Court reversed with respect to the $3,000 sanctions award. Appellate Court held that attorney could not transfer its Rule 137 sanctions to the plaintiff via a petition for attorney’s fees because: (1) there had been no determination of sanctionable conduct on the part of the plaintiff; and (2) an attorney cannot seek compensation from its client for his own actionable conduct under the guise of an attorney fee due the attorney. Although the plaintiff had paid attorney the $3,000 sanction amount, stating that she ‘felt sorry’ for him, the Appellate Court held that the $3,000 should be credited towards the award of remaining attorney’s fees.

Post-Decree – Rule 137 Sanctions, Interim Attorney’s Fees

In re Marriage of Oleksy, 2003 WL 1240511 (Ill. App. 1st Dist., Mar. 18, 2003).

The trial court improperly imposed Rule 137 sanctions against the husband and his attorney for drafting order that purported to be agreed upon by opposing counsel, but in reality was not agreed. The Appellate Court found that Rule 137 sanctions were inappropriate because the Agreed Order was not a "pleading, motion, and other paper of a party" as required by Rule 137. A court order is a ruling of a judge, and not a "paper" of a party, regardless of who drafts the order. Instead, the court found that the appropriate sanction for the attorney’s conduct was a finding of criminal contempt because the order misrepresented the ruling of the judge and was designed to commit a fraud upon the court.

Award of interim attorney’s fees was not final, appealable order. The court stated that this was so because the Order was not specifically designated as a one time or final interim fee payment or set for future review, and the underlying petitions were still pending before the trial court.

Michael Calabrese is the principal of Calabrese Associates in Wheaton, Illinois, concentrating in all areas of family law litigation and appeals. He has a bachelor’s degree cum laude in Communication Arts & Sciences from Rosary College. His law degree is from DePaul University College of Law, where he was a member of the Law Review and the Order of the Coif.

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