Drew v. Nicholas D. (In re Guardianship H.D.)
| Citation | 2021 IL App (4th) 200434 -U |
| Decision Date | 19 April 2021 |
| Docket Number | NO. 4-20-0434,4-20-0434 |
| Parties | In re GUARDIANSHIP OF H.D. and I.B., Minors (Nichelle Drew and Brad Drew, Petitioners-Appellants, v. Nicholas D., Steven B., and Paige B., Respondents-Appellees). |
| Court | United States Appellate Court of Illinois |
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).
Appeal from the Circuit Court of Douglas County
Honorable Richard Lee Broch Jr., Judge Presiding.
¶ 1 Held: The circuit court did not err in imposing sanctions under Illinois Supreme Court Rule 137 (eff. Jan. 1, 2018).
¶ 2 In November 2018, petitioners, Nichelle and Brad Drew, filed a petition for guardianship of H.D. (born in May 2006) and I.B. (born in November 2011). H.D.'s parents are respondents, Nicholas D. and Paige B.; and I.B.'s parents are respondents, Steven B. and Paige B. Petitioners are the aunt and uncle of the minor children. In March 2019, petitioners filed a motion for voluntary dismissal of their guardianship petition. At a March 11, 2019, hearing, the Douglas County circuit court allowed petitioners' motion for voluntary dismissal, subject to the issue of reimbursement of attorney fees. Both Nicholas D. and Steven B. sought attorney fees under Illinois Supreme Court Rule 137 (eff. Jan. 1, 2018). After an April 30, 2019, hearing, the court found Nicholas D. and Steven B. had satisfied the requirements of Rule 137 and entered judgment in favor of Nicholas D. and against petitioners in the amount of $1398.50 and in favor of Steven B. and against petitioners in the amount of $2707.16. Petitioners filed a motion to reconsider the court's April 30, 2019, order. Nicholas D. filed a response to the motion to reconsider. On September 5, 2019, the court denied petitioners' motion to reconsider. Four days later, Nicholas D. filed a motion to set additional attorney fees pursuant to Rule 137 and attached an affidavit of fees related to petitioners' motion to reconsider. After an August 2020 hearing, the court entered an additional judgment in favor of Nicholas D. and against petitioners in the amount of $390.
¶ 3 Petitioners appeal, asserting the circuit court erred by (1) not holding an evidentiary hearing on Steven B.'s and Nicholas D.'s requests for attorney fees under Rule 137, (2) awarding Steven B. and Nicholas D. attorney fees under Rule 137, (3) awarding attorney fees for legal work done on another case, and (4) granting Nicholas D.'s motion for additional fees. Additionally, both Steven B. and Nicholas D. ask this court to impose additional sanctions on petitioners under Illinois Supreme Court Rule 375 (eff. Feb. 1, 1994). We affirm and decline to impose Rule 375 sanctions.
¶ 5 Count I of the November 2018 guardianship petition alleged Paige B. was awarded custody of H.D. in Champaign County case No. 08-D-40 and both of H.D.'s parents had voluntarily relinquished custody of H.D. to petitioners. (In March 2019, Champaign County case No. 08-D-40 was transferred to Douglas County and became Douglas County case No. 19-D-24.) The petition contended it was in H.D.'s best interest to have a guardian of the person appointed and petitioners agreed to act as guardian if appointed. Count II of the guardianship petition asserted Douglas County case No. 17-D-49 was currently pending and an agreed orderregarding temporary parenting time was entered on October 1, 2018, as to I.B. It further alleged I.B.'s parents had voluntarily relinquished physical custody of I.B. to petitioners and it was in I.B.'s best interest to have a guardian of the person appointed. Petitioners agreed to act as I.B.'s guardian if appointed.
¶ 6 In December 2018, Nicholas D. filed a motion to dismiss the guardianship petition asserting petitioners lacked standing to seek guardianship and requesting attorney fees. Petitioners did not file a response to Nicholas D.'s motion to dismiss. Steven B. entered his appearance. Also, in December 2018, petitioners filed a petition to determine the existence of a parent-child relationship between Steven B. and I.B. since Steven B. and Paige B. were not married at the time of I.B.'s birth and Steven B. was not named on I.B.'s birth certificate. The petition also asserted Paige B. had repeatedly asserted Steven B. was not I.B.'s father.
¶ 7 On March 1, 2019, petitioners filed a motion for voluntary dismissal, seeking dismissal without prejudice of their guardianship petition. On March 11, 2019, the circuit court held a hearing on the motion for voluntary dismissal. The other parties did not object to the motion. The court allowed the motion subject to the issue of reimbursement of attorney fees; gave Nicholas D.'s and Steven B.'s attorneys until April 1, 2019, to file a statement of attorney fees; and gave petitioners' counsel until April 15, 2019, to file any responsive pleading.
¶ 8 In his motion for attorney fees, Nicholas D. asserted petitioners were aware he had not given up his interest in H.D. when they filed their guardianship action. He also noted the petition asserted Paige B. had given up her interest in caring for H.D. but later petitioners' counsel became Paige B.'s attorney in the divorce proceedings. Nicholas D. argued it was unethical for petitioners' counsel to assert Paige B. was an unfit parent in the guardianship petition and then represent Paige B. in the divorce proceedings and seek to intervene in thedivorce on behalf of the petitioners. He also noted petitioners did not appear in court on January 31, 2018, which caused unnecessary delay and costs to Nicholas D. He also suffered additional costs and fees when petitioners dismissed their claims 10 days before the next court date of March 11, 2019, and by filing the petition in Douglas County rather than Champaign County where the divorce was originally filed. Nicholas D. requested $1398.50 in attorney fees.
¶ 9 In his petition for reimbursement of attorney fees and costs, Steven B. asserted petitioners alleged in the guardianship petition they had physical custody of I.B. However, Paige B. later made representations to the court contradicting petitioners' allegation with no rebuttal from petitioners. He also alleged petitioners' allegation I.B.'s parents voluntarily relinquished physical custody of I.B. was absolutely false as to him. Steven B. asserted petitioners knew or should have known that allegation was false because the record in Douglas County case No. 17-D-49 was a publicly accessible file and showed Steven B. requested expanded visitation and physical custody of I.B. in a motion filed on November 15, 2018. Steven B. further alleged, when comparing the guardian ad litem report in case No. 17-D-49 with the pleadings in this case and also with other pleadings in the divorce case, it appeared the guardian ad litem was deliberately misinformed about who was caring for I.B. at the time the report was prepared. He also asserted petitioners lacked standing to bring their guardianship petition as alleged in the motion to dismiss the guardianship petition. Additionally, Steven B. argued petitioners' petition to determine the existence of a parent-child relationship was false in that petitioners knew or should have known about prior genetic testing showing Steven B. was I.B.'s father. He asserted the guardianship petition and the petition to determine the existence of a parent-child relationship were not well-grounded in law and were interposed to harass and/or cause unnecessary delay in the divorce proceedings. Steven B. requested $2707.16 in attorney fees.
¶ 10 Petitioners were given 14 days to file a responsive pleading to the requests for attorney fees but did not file one.
¶ 11 On April 30, 2019, the circuit court held a hearing on the requests for attorney fees. In his argument, petitioners' counsel first asserted an evidentiary hearing was required. He then referred to facts in the divorce case No. 17-D-49. After hearing the parties' arguments, the court found both Nicholas D. and Steven B. were entitled to the requested attorney fees. The court noted petitioners had to show the parents of the minor children were unfit or for some other reason unable to provide for the daily care and control of the minor children. It found a cursory review of the docket entries alone in each of the divorce cases would show each of the fathers was paying child support and had a visitation schedule. In fact, both fathers were trying to get their visitation expanded. The court also found petitioners knew or should have known Steven B. was the father of I.B. because Paige B. would have known and is related to one of the petitioners. The court concluded the fathers had satisfied the requirements of Rule 137.
¶ 12 Petitioners filed a timely motion to reconsider, asserting the circuit court erred by (1) not holding an evidentiary hearing, (2) finding petitioners' petition to determine the existence of a parent-child relationship was interposed for an improper purpose, and (3) awarding Steven B. $575 in attorney fees unrelated to the guardianship case. Nicholas D. filed a response to the motion to reconsider, requesting the court deny the motion to reconsider and grant additional attorney fees. Steven B. did not file a response to the motion to reconsider. After a September 5, 2019, hearing, the court denied petitioners' motion to reconsider.
¶ 13 On September 9, 2019, Nicholas D. filed a motion to set additional attorney fees under Rule 137, requesting an additional $390 in attorney fees. On October 4, 2019, petitioners filed a notice of appeal. On June 26, 2020, this court dismissed petitioners' appeal as prematurebecause Nicholas D.'s motion for additional fees was still pending in the circuit court. In re Guardianship of H.D., No. 4-19-0719 (June 26, 2020) (...
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