Crecos v. Crecos

• Decision Date: 20 May 2021
• Docket Number: Docket No. 126192
• Citation: 2021 IL 126192,183 N.E.3d 67,451 Ill.Dec. 21
• Parties: IN RE MARRIAGE OF Diana Lynn Barr CRECOS, Appellee, and Gregory Crecos, Appellant.
• Court: Illinois Supreme Court

2021 IL 126192

183 N.E.3d 67

451 Ill.Dec. 21

IN RE MARRIAGE OF Diana Lynn Barr CRECOS, Appellee, and Gregory Crecos, Appellant.

Docket No. 126192

Supreme Court of Illinois.

Opinion filed May 20, 2021.

Michael G. DiDomenico and Sean M. Hamann, of Lake Toback DiDomenico, of Chicago, for appellant.

James R. Branit and Brian W. Norkett, of Litchfield Cavo LLP, of Chicago, for appellee.

OPINION

JUSTICE MICHAEL J. BURKE delivered the judgment of the court, with opinion.

¶ 1 Respondent Gregory Crecos appealed an award of attorney fees in favor of petitioner Diana Lynn Barr Crecos. The appellate court dismissed the appeal based upon lack of jurisdiction. 2020 IL App (1st) 182211, 445 Ill.Dec. 431, 166 N.E.3d 861. The appellate court characterized the fee award as an interim fee award, subject to correction in the final judgment. Id. ¶ 18. The appellate court also noted that other issues in the case remained unresolved. Id. For that reason, the appellate court held that the fee award was not a final judgment ripe for review under Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016). 2020 IL App (1st) 182211, ¶ 21, 445 Ill.Dec. 431, 166 N.E.3d 861. This court subsequently allowed Gregory's petition for leave to appeal. Ill. S. Ct. R. 315(a) (eff. Oct. 1, 2019).

¶ 2 BACKGROUND

¶ 3 Diana Lynn Barr Crecos initiated divorce proceedings from Gregory Crecos in 2007. A final judgment dissolving the marriage and allocating marital property was entered in Cook County circuit court on December 24, 2009. Gregory appealed, and the judgment was affirmed. In re Marriage of Crecos , 2012 IL App (1st) 182211-U, 445 Ill.Dec. 431, 166 N.E.3d 861 ( Crecos I ). Both parties filed postdecree petitions. Diana filed a timely motion for substitution of judge, which was denied. The judge then entered a series of orders against Diana. Diana appealed, arguing as a threshold issue that the trial court erred in denying her motion for substitution of judge as of right. The appellate court agreed that the trial court erred in denying Diana's motion for substitution of judge. In re Marriage of Crecos , 2015 IL App (1st) 132756, 395 Ill.Dec. 203, 38 N.E.3d 80 ( Crecos II ). Given that error, all orders entered after the erroneous denial of the motion for substitution of judge were "void." Id. ¶ 28. The Crecos II court therefore reversed the orders entered by the circuit court and remanded the case to the trial court. Id.

¶ 4 On March 18, 2016, Diana filed a petition pursuant to section 508(a)(3.1) of the Illinois Marriage and Dissolution of Marriage Act (Act) ( 750 ILCS 5/508(a)(3.1) (West 2016)) for attorney fees and costs incurred in the appeal of Crecos II . On March 31, 2016, Diana filed a petition pursuant to section 508(a)(3) of the Act (id. § 508(a)(3) ) for attorney fees and costs incurred in the defense of Crecos I .

¶ 5 On September 17, 2018, the trial court ordered Gregory to pay Diana's attorney fees in the amount of $32,952.50 for the Crecos I appeal and $89,465.50 for the Crecos II appeal. The trial court's order included a Rule 304(a) finding that "there is no just reason to delay enforcement or appeal of this order." Gregory then appealed the trial court's order, arguing that the trial court should not have awarded Diana all the fees she sought.

¶ 6 As a threshold matter, the appellate court asked the parties to submit briefs concerning the court's jurisdiction. 2020 IL App (1st) 182211, ¶ 10, 445 Ill.Dec. 431, 166 N.E.3d 861. Both parties argued that the appellate court had jurisdiction because the trial court did not enter an interim award of fees under section 501(c-1) of the Act ( 750 ILCS 5/501(c-1) (West 2016)) but instead entered a final award of attorney fees under section 503(j) of the Act (id. § 503(j)). 2020 IL App (1st) 182211, ¶ 10, 445 Ill.Dec. 431, 166 N.E.3d 861. The parties also argued that section 501(c-1) did not apply because the appeals involved postdecree petitions. Id. ¶ 13.

¶ 7 Citing In re Marriage of Oleksy , 337 Ill. App. 3d 946, 272 Ill.Dec. 497, 787 N.E.2d 312 (2003), the appellate court held that section 501(c-1) applies to both predissolution and postdissolution decree proceedings. 2020 IL App (1st) 182211, ¶ 13, 445 Ill.Dec. 431, 166 N.E.3d 861. In addition, because section 503(j) applies only when the court has resolved " ‘all *** issues between the parties’ " other than the award of attorney fees, that section did not apply because some issues remained pending in the case. Id. (quoting 750 ILCS 5/503(j) (West 2018)). The appellate court found that the September 18, 2018, order awarded interim attorney fees under section 501(c-1), which are temporary in nature and subject to adjustment. Id. ¶ 14.

¶ 8 The appellate court concluded that this case was similar to In re Marriage of Derning , 117 Ill. App. 3d 620, 72 Ill.Dec. 785, 453 N.E.2d 90 (1983). 2020 IL App (1st) 182211, ¶ 16, 445 Ill.Dec. 431, 166 N.E.3d 861. In Derning , the trial court divided the marital property but reserved its ruling on the issue of attorney fees. 117 Ill. App. 3d at 621-22, 72 Ill.Dec. 785, 453 N.E.2d 90. The wife appealed. The Derning court held that it had jurisdiction of the case only if the divorce decree was a final judgment or if the fees were a separate claim pursuant to Rule 304(a). Id. at 626, 72 Ill.Dec. 785, 453 N.E.2d 90. Based upon this court's decision in In re Marriage of Leopando , 96 Ill. 2d 114, 70 Ill.Dec. 263, 449 N.E.2d 137 (1983), Derning held that an attorney fee judgment in a dissolution of marriage case was not a separate claim but rather was integral to the order dissolving the parties’ marriage. Derning , 117 Ill. App. 3d at 627, 72 Ill.Dec. 785, 453 N.E.2d 90.

¶ 9 The appellate court held that the September 17, 2018, order for attorney fees, like that in Derning , was inextricably intertwined with the property issues that remained partially unresolved. 2020 IL App (1st) 182211, ¶ 18, 445 Ill.Dec. 431, 166 N.E.3d 861.¹ The claim for attorney fees was not a separable claim for purposes of appeal, and the order awarding attorney fees did not finally resolve any separate claim. Id. The court thus held that, "when the trial court awards fees for an appeal in a divorce case and the trial court has issues other than fees still pending, the award grants interim fees not subject to immediate appeal." Id. In addition, the inclusion of Rule 304(a) findings did not make the trial court's interlocutory order final and appealable. Id. ¶ 19. The appellate court therefore dismissed the appeal for lack of jurisdiction.

¶ 10 ANALYSIS

¶ 11 On appeal, Gregory argues that the appellate court had jurisdiction to determine the merits of the circuit court's fee award because the circuit court's order was final and the circuit court made the requisite Rule 304(a) findings to make the order appealable. Rule 304(a) provides, in pertinent part,

"If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying either enforcement or appeal or both." Ill. S. C. R. 304(a) (eff. Mar. 8, 2016).

Diana agrees with Gregory, joining his argument that the appellate court had jurisdiction to review the circuit court's September 18, 2018, order in its entirety. Because the issue of whether a court has jurisdiction presents an issue of law, our review is de novo. In re A.H. , 207 Ill. 2d 590, 593, 280 Ill.Dec. 290, 802 N.E.2d 215 (2003).

¶ 12 The issue of attorney fees is addressed in section 508 of the Act. 750 ILCS 5/508 (West 2018). Section 508(a) provides:

"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." Id. § 508(a).

¶ 13 Section 508(a) thus contemplates three distinct types of fee proceedings: (1) interim attorney fees and costs in accordance with section 501(c-1) or section 508(a)(5) (id. §§ 501(c-1), 508(a)(5) ), (2) contribution to attorney fees and costs in accordance with section 503(j) or 508(a) (id. §§ 503(j), 508(a) ), and (3) fees and costs to counsel from a former client in accordance with section 508(c) (id. § 508(c) ).

¶ 14 The appellate court held that it did not have jurisdiction because the September 17, 2018, fee award was an interim fee award pursuant to section 501(c-1). Citing Oleksy , the appellate court held that section 501(c-1) applies to both predissolution and postdissolution decree proceedings. 2020 IL App (1st) 182211, ¶ 13, 445 Ill.Dec. 431, 166 N.E.3d 861 (citing Oleksy , 337 Ill. App. 3d at 950, 272 Ill.Dec. 497, 787 N.E.2d 312 ). This is incorrect.

¶ 15 Section 501(c-1) provides:

"As used in this subsection (c-1), ‘interim attorney's fees and costs’ means 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, and ‘interim award’ means an award of interim attorney's fees and costs. Interim awards shall be governed by the following:

(1) Except for good cause shown, a proceeding for (or relating to) interim attorney's fees and costs in a prejudgment dissolution proceeding shall be

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