In re Marriage of Kane
In re Marriage of Kane
Opinion
*142 ¶ 1 I. BACKGROUND
¶ 2 This is the second time this case has come before this court. Attorney Michael D. Canulli formerly represented Gregory Phillip Kane in his dissolution-of-marriage case. During the pendency of the dissolution proceedings, Canulli was granted leave to withdraw as Kane's attorney, and Kane eventually retained new counsel. Within the then-pending dissolution action, Canulli filed against Kane a petition for setting final fees and costs pursuant to section 508(c) of the Illinois Marriage and Dissolution of Marriage Act (Act or Dissolution
*676
*143
Act) ( 750 ILCS 5/508(c) (West 2016) ), wherein he sought $48,000 in unpaid attorney fees allegedly incurred. Following a hearing held subsequent to the dissolution of Kane's marriage, the circuit court of Du Page County awarded Canulli $12,500. Canulli appealed, and this court affirmed the award in
In re Marriage of Kane
,
¶ 3 On March 7, 2017, Kane filed against Canulli a petition for attorney fees pursuant to section 508(a)(3) of the Act, which provides that the court may order any party to pay a reasonable amount for the other party's attorney fees and costs in connection with the defense of an appeal of any order or judgment under the Act, including a postjudgment order. 750 ILCS 5/508(a)(3) (West 2016). The petition alleged that Kane incurred $11,640 in attorney fees defending against Canulli's appeal in Kane I and that Canulli had the ability to pay these fees. Canulli moved to dismiss on April 13, 2017, contending that he was not a "party" for purposes of section 508(a) and therefore could not be liable for fees thereunder. Kane responded that section 508(a) does not limit the word "party" to the original named litigants in the dissolution action and that "Canulli became a party to this matter and subjected himself to the jurisdiction of [the circuit court] by filing a petition for final fees and costs." He also stressed that, under section 508(c)(2), Canulli's petition for final fees and costs was a "distinct cause of action."
¶ 4 On July 11, 2017, the circuit court denied Canulli's motion to dismiss and found that "Canulli is a party for purposes of the petition for fees for defending an appeal filed by [Kane]." The court stated that, "[t]hrough [Canulli's] conduct of filing the petition [for final fees and costs], engaging in a day-long hearing, filing a notice of appeal, arguing the appeal and having [the circuit court] affirmed, [he] made [himself] a party to the collection of the funds." Canulli filed a motion to reconsider, which the circuit court denied on November 7, 2017.
¶ 5 In order to establish Canulli's financial ability to pay the fees as alleged in Kane's fee petition, Kane then initiated discovery against Canulli, seeking information regarding his income, living expenses, assets, and liabilities. Canulli reiterated his argument that he was not a "party" for purposes of section 508(a) and declined to comply with Kane's discovery requests. Kane filed a motion to compel, which the circuit court granted on January 16, 2018. The court then entered a discovery order directing Canulli to tender to Kane's attorney certain documents relating to Canulli's 2017 income.
¶ 6 Canulli filed a motion requesting that the circuit court hold him in "friendly contempt" for the explicit purpose of appealing the court's interlocutory discovery order. On February 13, 2018, the court granted Canulli's request, held him in friendly civil contempt based on his willful failure to comply with the discovery order, and sanctioned him $1. Canulli timely appealed pursuant to Illinois Supreme Court Rule 304(b)(5) (eff. Mar. 8, 2016), which provides that "[a]n order finding a person or entity in contempt of court which imposes a monetary or other penalty" is immediately appealable. The Illinois Chapter of the American Academy of Matrimonial Lawyers filed an
amicus
brief in support of Canulli's legal position only, stating that it did not condone his conduct as outlined in
Kane I
,
¶ 8 A. Jurisdiction
¶ 9 As a preliminary matter, we first address the various procedural barriers that Canulli asserts precluded the circuit court from acting on Kane's petition. According to Canulli, the court lacked jurisdiction to entertain Kane's fee petition, because, in the prior appeal, we affirmed the court's judgment but "did not remand with instructions which would allow Kane to file a fee petition against Canulli." Canulli contends that, because there was no remand, "the only proceedings which could follow from the appeal [would be] related to the enforcement of Canulli's judgment." He also points to two First District cases for the general proposition that a circuit court has the authority to award prospective attorney fees for the defense of an appeal in a dissolution matter. See
In re Marriage of Pahlke
,
¶ 10 We reject each argument in turn. Illinois Supreme Court Rule 369 (eff. July 1, 1982) governs the filing of a mandate in a circuit court and guides the proceedings therein following the issuance of the mandate. As our supreme court has explained, "[t]he mandate of a court of review is the transmittal of the judgment of that court to the circuit court, and revests the circuit court with jurisdiction."
PSL Realty Co. v. Granite Investment Co.
,
¶ 11 We are not persuaded by Canulli's citation to
Pahlke
,
¶ 12 Finally, we determine that Canulli has forfeited the issue of whether Kane's fee petition was barred by the doctrine of
res judicata
, as he failed to provide any argument on this point in his opening brief. Illinois Supreme Court Rule 341(h)(7) (eff. Nov. 1, 2017) requires that an appellant's brief include "[a]rgument, which shall contain the contentions of the appellant and the reasons therefor, with citation of the authorities and the pages of the record relied on." This rule is not a mere suggestion, but has the force of law.
Rodriguez v. Sheriff's Merit Comm'n of Kane County
,
¶ 13 B. Whether an Attorney Is a "Party" under Section 508 (a)
¶ 14 Having determined that the circuit court had jurisdiction to consider Kane's fee petition, we now turn to the merits of this appeal. In general, Illinois courts follow the "American Rule," which provides that, absent statutory authority or a contractual agreement, each party is responsible for his or her own attorney fees.
Morris B. Chapman & Associates, Ltd. v. Kitzman
,
¶ 15 When interpreting a statute, "the court must ascertain and give effect to the intent of the legislature." (Internal quotation marks omitted.)
In re Marriage of Heroy
,
*146
*679
¶ 16 It is with the above guiding principles that we consider section 508 of the Dissolution Act, which governs attorney fees generally, including petitions for contribution in initial dissolution proceedings and in postdecree proceedings.
In re Marriage of Cozzi-DiGiovanni
,
"The court from time to time, after due notice and hearing, and after considering the financial resources of the parties, may order any party to pay a reasonable amount for his own or the other party's costs and attorney's fees. Interim attorney's fees and costs may be awarded from the opposing party, in a pre-judgment dissolution proceeding in accordance with subsection (c-1) of Section 501 and in any other proceeding under this subsection. At the conclusion of any pre-judgment dissolution proceeding under this subsection, contribution to attorney's fees and costs may be awarded from the opposing party in accordance with subsection (j) of Section 503 and in any other proceeding under this subsection. Fees and costs may be awarded in any proceeding to counsel from a former client in accordance with subsection (c) of this Section. Awards may be made in connection with the following:
* * *
(3) The defense of an appeal of any order or judgment under this Act, including the defense of appeals of post-judgment orders." 750 ILCS 5/508(a)(3) (West 2016).
¶ 17 Based on a plain reading of the above language, section 508(a) contemplates three distinct types of fee proceedings: (1) interim attorney fees and costs in accordance with section 501(c-1) ( id. § 501(c-1) ), (2) contribution to attorney fees and costs in accordance with section 503(j) ( id. § 503(j) ), and (3) fees and costs to counsel from a former client in accordance with section 508(c) ( id. § 508(c) ). Here, we must determine whether a client who has incurred attorney fees defending against an appeal stemming from the third type of proceeding may use the second type of proceeding to seek attorney fees from his or her former counsel.
¶ 18 According to Kane, an attorney who files against a former client a petition for final fees and costs pursuant to section 508(c) of the Act is, for purposes of that petition, a "party" under section 508(a) such that the court is authorized to order the attorney to pay his or her former client's fees and costs related to the section 508(c) fee petition. Kane cites no case law to support this assertion, but rather maintains that it is supported by the plain language of section 508. Specifically, he highlights section 508(c)(2), which provides that "the relief requested under a Petition for Setting Final Fees and Costs constitutes a distinct cause of action" (
id.
§ 508(c)(2) ) and section 508(c)(5), which contains the phrase "[a] counsel who becomes a party by filing a Petition for Setting Final Fees and Costs" (
id.
§ 508(c)(5) ). Finally, he points to section 508(a), which authorizes the court to order "
any party
to pay a reasonable amount for his own or the other party's costs and attorney's fees." (Emphasis added).
¶ 19 In evaluating this issue, we find
In re Marriage of Pal
,
¶ 20 On appeal, the boyfriend argued that he was eligible to seek fees because, as an intervenor, he had the same rights as an original party to the dissolution proceeding and because section 508(a) refers only to parties (and not spouses), which he argued describes a broader category of litigants.
Id.
at 909,
¶ 21 Put simply, for purposes of evaluating whether one is a "party" under section 508(a) of the Dissolution Act, we see no reason to distinguish between the boyfriend-intervenor in
Pal
and Canulli, an attorney who has exercised his statutory right to petition for fees under section 508(c). Indeed, Kane's primary argument on appeal largely mirrors those that the Fourth District rejected explicitly in
Pal.
Although the General Assembly has since revised the section outlining the purposes of the Dissolution Act, it nevertheless remains clear that the term "party" in section 508(a) is limited to the spouses in the original dissolution action commenced under
*681
*148
the Act.
2
We agree with the conclusion in
Pal
that, under section 508(a), "[t]he spouses are the 'opposing' parties [in a dissolution action]."
¶ 22 Moreover, just as in
Pal
, applying section 503(j) to the instant matter would be illogical given that the factors on which an award of contribution must be based have no relevance between an attorney and a former client. The factors include the value of the property assigned to each spouse, the duration of the marriage, and the reasonable opportunity of each spouse for future acquisition of capital assets and income, among others.
"The language in section 508 is clear and unambiguous. The trial court must (1) 'consider[ ] the financial resources of the parties' and (2) make its decision on a petition for contribution 'in accordance with subsection (j) of Section 503.' 750 ILCS 5/508(a) (West 2014). To say that the court should not consider the statutory factors is clearly contrary to the plain language of the statute." Heroy ,2017 IL 120205 , ¶ 19,417 Ill.Dec. 648 ,89 N.E.3d 296 .
¶ 23 Kane attempts to distinguish Pal by pointing out that Canulli did not intervene in the dissolution action, but rather sought fees under section 508(c), which is a "distinct cause of action" See 750 ILCS 5/508(c)(2) (West 2016). Although this section states that "the relief requested under a Petition for Setting Final Fees and Costs constitutes a distinct cause of action" ( id. ), nothing about this language-even if read in complete isolation as implicitly argued by Kane and as quoted in his brief-confers on an individual the ability to seek attorney fees from his or her former counsel under section 508(a) or makes counsel a "party" thereunder. Indeed, our supreme court has already clarified the phrase "distinct cause of action," and the court's explanation does not aid Kane's argument.
*149
*682
In
King
,
¶ 24 In sum, because Canulli was not a party to the underlying dissolution action, Kane had no statutory right to seek fees from him under section 508(a) of the Dissolution Act.
¶ 25 III. CONCLUSION
¶ 26 For the above-stated reasons, we reverse the discovery order and vacate the contempt order and $1 sanction.
¶ 27 Discovery order reversed.
¶ 28 Contempt order vacated.
Justices Jorgensen and Schostok concurred in the judgment and opinion.
Canulli does not argue that Kane's fee petition was not an "other proceeding" under Rule 369(b).
One of the stated purposes of the Dissolution Act is to "make reasonable provision for support during and after an underlying dissolution of marriage, legal separation, parentage, or parental responsibility allocation action, including provision for timely advances of interim fees and costs to all attorneys, experts, and opinion witnesses including guardians ad litem and children's representatives, to achieve substantial parity in parties' access to funds for pre-judgment litigation costs in an action for dissolution of marriage or legal separation." 750 ILCS 5/102(8) (West 2016).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.