*1 LUCHT, Petitioner-Appellee, and ERROLYN MARRIAGE OF WAYNE In re LUCHT,Respondent-Appellant. JOYCE Division) (3rd No. 1 — 97 — 2937 First District September Opinion filed Field, Swiger, Cozzi, & J. both of Golan J. Arendt and Matthew William Chicago, appellant. (William Clark, Jr., Associates, Ltd., Chicago Clark, Jr., G. &
William G. Zahn, counsel), appellee. and Lisa Marie opinion the court: PRESIDING JUSTICE CAHILL delivered holding in Watson We are asked to deviate from the App. 637, (1948), that an attorney may a pe- file tition for a divorce action after the case has been vol- dismissed, untarily though even is filed within 30 the dismissal. The trial court followed Watson and refused to entertain petition. We affirm.
Wayne Lucht filed a marriage dissоlution of August on 1996. Six date, before the scheduled trial June he moved for voluntary dismissal. granted The trial court petition. Respondent Errolyn Joyce Lucht then moved for *2 peti- leave to file a attorney tion for fees. The motion 23, 1997, was denied. On June re- spondent moved to vacate the order denying pеtition her for attorney fees. The trial motion, court denied the and it is from that order the respondent filed timely this appeal under Supreme Court Rule 303 (155 303(a)(1)). IU. 2d R.
Respondent argues on appeal that she should have been allowed to
petition
file a
attorney
fees even though the
procеed
ings were voluntarily dismissed.
Jeka,
She relies on Nottage v.
235,
App. 3d
653
(1995), rev’d,
386,
172 Ill. 2d
667 N.E.2d
(1996)
I).
91
(Nottage
I,
In Nottage
plaintiff successfully
sued the
defendant for breach of contract to
attorney
recover
a
from for
mer client in a domestic relations case. The defendant appealed, argu
508(a)
ing that section
of the Illinois Marriage and Dissolution of Mar
(750
5/508(a) (West 1996)) (the Act)
riage Act
ILCS
was the exclusive
remedy available to
attorney
recover
fees under the Act.
appellate
508(a)
agreed.
court
holding
After
that section
attorney’s
was the
exclusive avenue
seeking attorney fees,
the court elaborated on the
508(a)
availability of section
petitions even after the dismissal of dis
solution proceedings. The court departed
from. Watson v.
335
637,
Ill. App.
(1948),
In rejecting Erby, Watson and I Nottage court reasoned:
“It is unassailable that a subject ju- where trial court has matter risdiction of a personal jurisdiction case and over the and attorneys, their jurisdiction it that days retains until 30 have expired from the time of a [Citations.] dismissal. As an irrefutable corollary, so as a 508 underly- section is filed an while
543 a of the or within from dismissal ing underlying action, pending action 30 hear, decide has Marriage Dague re petition. (Cf.In and rule on the section 508 (1985), 297, Marriage 300, 136 N.E.2d In re Ill. 3d 1240.)” 1065-66, Conway (1986), Ill. 487 N.E.2d 3d Nottage, I, analysis not because of the supreme Nottage Our court reversed 508(a) held jurisdiction, but it that section subject because from an remedy preclude and did not
was not exсlusive Nottage recover separate a of contract suit to fees. bringing breach II). (1996) 392-98, (Nottage Jeka, Ill. 2d 667 N.E.2d 93-96 I an at part Nottage holding now that the that Respondent argues 508(a) file a of a torney may section within law, spite supreme remains of the court’s reversal good 508(a) dis remedy. an exсlusive finding and that section was not agree. Erby was
Nottage compelled Is discussion Watson and 508(a) assumption threshold that was the exclusive court’s section position in a action. remedy recovery for the of fees divorce Once Watson n taken, compelled or leave was court wаs to deviate remedy. lawyer supreme Once the uncollected without 508(a) the need remedy, found that section was not an exclusive unnecessary. We holding Erby was to deviate Watson if al- reasoning Nottage I had agree with trial court *3 suit, to the breach contract there would have been no need lowed of Erby. address Watson and however, in disagree, language Erby suggesting with the attorney fees in cases is postdismissal petition
that a for divorce barred, for out in but because policy the reasons set jurisdiction. Erby, 3d at subject App. the court lacks matter See 84 Ill. Subject I respect, Nottage 676. In thаt was correct. scope granted the circuit to decide cases power
addresses court’s Ill. Const. under the Illinois and Illinois statutes. See Constitution 9; C., 761, 765, VI, § 3d 665 N.E.2d art. In re Chiara 279 Ill. (1996). public requires But that a trial policy sometimes Barrows jurisdiction. decline to exercise Hospital, Ill. 2d 525 N.E.2d Northwestern Memorial She quarrels announced in Watson. Respondent policy attorney attorney filing petition a argues prohibiting unnecessary and voluntary “[draws] fees within 30 of a all oth- distinctions between dissolution actions and unwarranted is drawn argues er also that an distinction [s].” She “unwarranted” between proceedings that are dismissed and those that are involuntarily dismissed. In re Marriage Dague, Cf. (1985) 297, 300, 136 Ill. App. 3d (petition attorney died). fees allowed after petitioner dismissal because The distinctions are not unwarranted. Illinois has recognized policy preserving a relationship. the marital At times the policy has been See, invoked at а to legal cost other interests. e.g., (1990) Marriage Malec, re (attorney may not recover on a contingency agreement because the preserving interest of a marriage outweighs possible unjust enrich concerns). ment The policy set out in encourages nonlegal Watson resolution of disagreements marital helps couples disentangle to litigation they once have decided not to divorce.
Respondent parties contends that the here have not “recon ciled,” rendering policy objective Nothing of Watson futile. record, other attorney’s than the in appellate argument, remark reveals parties whether the have reconciled. clear What is from the record parties longer is that the are no seeking a That divorce. is suf ficient to invoke
Respondent argues also that the Watson rule is party futile since a to a dissolution suit in separate be sued a attorney action for 508(e) Act, under section and the parties may remain “embroiled in litigation” turn, if that party, sues her spouse for contribution. The argument speculative. is Although attorney may sue his client fees, it does not follow that the couple litigate married will issue, and it does not keeр they divorce where they have decided longer no want to be.
Respondent argues that the Watson rule should be overruled encourages because it “unrestrained use of dismissals by plaintiffs.” Respondent argues petitioner voluntarily dismissed the suit six before trial to avoid an adverse outcome at trial. Again, argument speculative and irrelevant. There is no evi- dence in the record pointing voluntary dismissal, reason for the nor is the movant required give one. does the contain Nor record evidence that widespread there exists a practice improperly motivated voluntary creаting dismissals concern sufficient to outweigh the clear policy concerns discussed in Erby. Watson and
Affirmed.
GORDON, J., concurs.
545 LEAVITT, dissenting: JUSTICE reliance affirming place here majority and the the trial court Both (1948). In Watson 637, Watson, Ill. 82 v.
on Watson
hear the fee is-
lacking jurisdiction was
determined that
this court
addressing
the court
policy precludеd
public
and also that
sue
action.
of the dissolution
voluntary dismissal
following
public policy
it was deemed
at 640-41. In Watson
335 Ill.
both
litigation when
continuing hostile
marriage
in
forbade
favor
a divorce suit dismissed.
parties sought to have
112, 119-20,
50 N.E.
Steger,
also Anderson
see
(1867).
majority recog-
The
(1898);
should, public policy argument on the based a fee after its to hear decline to exercise majority of this court the dissolution action. While dismissal of affirmative, I in the hold otherwise. question now answers the would that once existed jurisdictional barriers Not have Act, vanished, legislative changes reflected Dissolution but also, my in of our have subsequent supreme well as decisions concern in older largely public policy undermined the voiced opinion, Act, unlike the statu- Notably, cases such as Watson. Dissolution it, attorneys representing tory preceded expressly permits scheme that clients while in to seek fees from their proceedings dissolution 5/508(a) 750 ILCS proceedings ongoing. are still (West Jeka, 1996);Nottage v. client, limited
Moreover, is not seeking fees from a Act, supreme under the Dissolution as our provided to the remedies found Nottage, supreme clear. In recently court has made that section 508 of the Dissolution this court erred its conclusion attorney could recover a fee. Not- Act the sole means which an was legislative present that the tage, Ill. 2d at 392. It was determined contract designed bringing to exclude a common law scheme was not to, not remedy in addition damages. statutory action for was of, right. Nottage, 172 Ill. 2d at any exclusive common law in cases such as this jurisdictional bar to a fee Since client for fees either dur- long gone attorney may and an now sue his me the it would seem to ing subsequent proceedings, or to dissolution recogniz- avoiding not public policy away state’s has shifted —or guarantees one that ing disputes spouses between toward —fee *5 only process a fair complete but also a disposition and final of the mat ter, including payment the of fees. This countervailing policy is well recognized and equally standing as the one reiterated in Watson. generally Annotation, Right Attorney to Continue Separation Divorce or against Suit Client, Wishes His 92 A.L.R.2d 1009, 1017-20 Morrison, Morrison v. N.J. Eq. (N.J. 1937), A. 908 stated, Ch. it was well albeit in somewhat outdated fashion:
“In matrimonial
regard
cases we
suitor,
the wife as the favored
call upon the
pay
husband to
moneys; otherwise,
her suit
many
cases the
powerless
wife would be
to assert
legal rights against
her
him.
encourage reputаble
represent
counsel to
wives in
cases, upon
meritorious
implied
the
they
assurance that
will be
compensated for the reasonable value of their
through
services
against
orders
the husbands.
applaud
We also
and encourage their
efforts,
as officers of the
to effect
рos-
reconciliations where
sible. Unless all
platitude,
this is mere
penalize
how can we
them
doing
preach
what we
to
duty?
so,
them is their
If we do
how
can
expect
we
willing
counsel to be
to undertake a destitute wife’s
against
husband,
case
her
no matter how meritorious?
Public
requires that lack of
dеprive
means shall not
the wife of the ser-
competent solicitor,
vices of a
and it
contrary
follows
it is
to
public policy
deny
to
compensation
reasonable
to such solicitor in
proper
paid by
cases to be
Morrison,
the husband ***.”
122 N.J.
Eq. at
See, (Colo. 1933). e.g., Frederick, Frederick v. 25 F.2d 734-35 Of cоurse, recognize we today’s that in world neither party to a dissolu tion action is favored and that either spouse may enjoy the benefit of present the statutory scheme.
This same policy pervades “Leveling the'new Playing Field” amendments to our Dissolution 501(c 1), Act. Under section a spouse — may now receive award of interim attorney fees while a dissolution 5/501(c 1) (West 1996). case pending. is See 750 ILCS very The — purpose of such interim awards is “to achieve substantial parity in parties’ 5/102(5) access to funds for litigation costs.” See 750 ILCS (West 1996). Clearly, then, encouraging attorneys to take represen- on tation of economically disadvantaged spouses, through implied as- they aisle,” surances that can be, fees, “cross the if need for their integral achieving the primary goal of the current Dissolution Act— leveling playing field in Thus, actions. who takes a case such as the present understanding one with an that fees sought from the other side should not now find that he cannot collect fees for his work party from the able to due pay to the volun- tary by petitioning party. On facts identical to those similar refused to sanction here, Court of Colorado Supreme of the husband: part conduct on the open husband], аngry, humiliated his wife with
“Frederick [the necessity she divorce]. In sheer charges [by filing slanderous The of counsel. wife rightly might, the services sought, as she understood, and the fact was her counsel represented, compensation be the breach could precipitated him had who *** the husband is custom kind in which had. The cаse was of the by spouse. His employed his remunerate counsel arily required to wife, to be com charge against his conclusion to withdraw obligation. discharge his full mended, course, operate did not wife, counsel, gave rise to He, initiated that which not his not her folly. properly The court added of his the reasonable burden In man appearing. no purpose case for the retained control of the interfere with did continued control ner whatever such Frederick, 25 F.2dat 734-35. parties.” reconciliation decision majority’s public policy supposedly advanced *6 us. There was is, moreover, entirely on the record before speculative to this case suggesting parties no evidence before flatly denies as actually process reconciling; respondent were (or in her at- much, acquiesces and fact that continues tó she to) appeal in an to this torneys’ press efforts the fee contribution issue deterioration, reconciliation. As re- suggestive court is of marital out, this case from distinguishes this fact alone spondent points See undisputed. where reconciliation was (“Public to a divorce suit should parties at 641 forbids that it litigation seeking when both are to have kept be a state of hostile dismissed”). added.) (Emphasis
Regardless, petitioner if it can be assumed even reconciling, it petition purpose his in this case for dismissed go forward necessarily permitting respondent does not follow that If process. her fee here will hinder the reconciliation is “so insincеre alleged parties reconciliation between these peti- [as a cause a fee impermanent jeopardized by so trivial tion], consideration, and it well be unworthy it is at best evading as a means of pretense part, adopted mere on the husband’s 235-36, A. Morrison, at just obligation.” Eq. his N.J. dismissing Further, respondent’s argument 909. I concur with does little to assure the in the domestic relations division if hostility litigation, the result continuing are free from the ac- the form of a common law contract litigation is that continues —in heard in another cor- respondent tion between and her counsel—to be ridor of the same courthouse. reasons,
For I respectfully these dissent. al., MARIE BILL Plaintiffs-Appellants, C. et v. EDUCATION OFFICERS ELECTORAL BOARD OF COMMUNITY CONSOLIDATED SCHOOL al.,
DISTRICT NO. 181 et Defendants-Appellees. (3rd Division) First District through Nos. 1 — 97 —3805 1—97—3807 cons.
Opinion September 30, filed