Gilmore v. Gilmore

• Decision Date: 19 July 1979
• Docket Number: No. 77-1559,77-1559
• Citation: 74 Ill.App.3d 831,393 N.E.2d 33,30 Ill.Dec. 378
• Parties: , 30 Ill.Dec. 378 Mary Jane GILMORE, Plaintiff, v. Robert Lee GILMORE, Defendant-Appellant, Jerome Berkson and Miles N. Beermann, Petitioners-Appellees.
• Court: United States Appellate Court of Illinois

Page 33

393 N.E.2d 33

74 Ill.App.3d 831, 30 Ill.Dec. 378

Mary Jane GILMORE, Plaintiff, v. Robert Lee GILMORE, Defendant-Appellant Jerome Berkson and Miles N. Beermann, Petitioners-Appellees.

No. 77-1559.

Appellate Court of Illinois, First District, Fourth Division.

July 19, 1979.

Zukowski & Bak, Wachowski & Wachowski and Andrew A. Ziemba, Chicago (Casimir R. Wachowski, Andrew A. Ziemba, Chicago, of counsel), for defendant-appellant.

Jerome Berkson, and Beermann, Swerdlove, Woloshin & Barezky, Chicago, Miles N. Beermann and Paul J. Bargiel, Chicago, of counsel, for petitioners-appellees.

JOHNSON, Justice:

Robert Lee Gilmore, defendant-appellant, brings this appeal from the order and judgment of the circuit court of Cook County granting $21,000 in attorneys' fees to Messrs. Jerome Berkson and Miles N. Beermann, petitioners-appellees, for services performed for Mary Jane Gilmore, plaintiff. The two attorneys represented plaintiff in the prosecution of a partially successful appeal and in post-judgment proceedings initiated by plaintiff's petitions for increase in alimony, for a hearing pursuant to the mandate of the appellate court issued in a prior appeal, and for defendant's payment of plaintiff's extraordinary medical expenses. We affirm the circuit court's ruling.

Plaintiff filed her complaint for divorce against defendant in 1970. On June 6, 1973, the uncontested portions of the original judgment were entered awarding custody of the minor children of the marriage to defendant and committing him to provide for their college educations. Defendant was ordered to maintain $25,000 in life insurance, payable to plaintiff; to pay her extraordinary medical and dental expenses; and to divide equally the furniture from the marital home.

Thereafter, plaintiff appealed from the contested portions of the judgment for divorce granting her $825 per month alimony and awarding sole possession of the jointly owned marital home to defendant until the youngest child reached majority. The home was to be sold at that time and the proceeds divided equally after crediting defendant, from plaintiff's share of the sale proceeds, with one-half of the payments to be made by him for real estate taxes, mortgage payments and capital improvements. Defendant did not file a cross-appeal. This court affirmed the alimony award and reversed and remanded the grant of possession of the home and credits for its maintenance to defendant. (Gilmore v. Gilmore (1975), 28 Ill.App.3d 36, 43, 328 N.E.2d 562, 567-68.) The parties were ordered to pay their own court costs.

Plaintiff then filed in her own name a petition seeking an increase in alimony and for a hearing requesting immediate sale of the marital home. Additionally, she filed a petition for extraordinary medical and dental expenses. Concurrently, her attorneys filed in their own names a petition for fees and subsequently sought to compel defendant to pay them for services rendered on the appeal and in the prosecution of plaintiff's post-judgment petitions. Defendant filed a counter-petition which sought to terminate alimony on the ground that plaintiff had been awarded a disproportionate share of the joint assets in that the formula enunciated in the appellate court opinion, in effect, awarded her alimony in gross.

Plaintiff's petition for an increase in alimony was denied by the trial court and defendant was ordered to pay plaintiff's medical and dental expenses. The court further ordered an immediate sale of the marital dwelling over defendant's objection that the trial court lacked jurisdiction to compel sale of the joint asset absent a complaint for partition.

Defendant's amended motion seeking to strike and dismiss the petition and for supplemental fees was denied prior to trial. The court ordered defendant to pay $21,000 in attorneys' fees for the prosecution of the appeal and plaintiff's post-judgment petitions. The parties were ordered to pay their own costs in both the appellate and trial courts. Defendant's motion to vacate the order and judgment granting attorneys' fees was denied.

The issues for review are (1) whether the Illinois Constitution and Rules of the Supreme Court permit recovery of attorneys' fees from defendant for the partially successful prosecution of an appeal by the attorneys for plaintiff; (2) whether attorneys' fees can be recovered for the successful prosecution of an appeal regarding property rights; (3) whether attorneys' fees can be recovered from defendant by the attorneys for plaintiff where the petition for fees is not signed by plaintiff but is signed by the attorneys and brought solely for their benefit; (4) whether the allowance of attorneys' fees for the prosecution of an appeal and post-judgment petitions under the Divorce Act conflicts with the provisions of the Illinois Constitution prohibiting special and discriminatory legislation; (5) whether attorneys' fees can be recovered from defendant by the attorneys prosecuting post-judgment petitions on behalf of plaintiff and on their own behalf where plaintiff does not allege her inability to pay such fees; (6) whether attorneys' fees can be recovered in post-judgment litigation where there is no allegation in any petition charging any action or inaction by defendant which necessitates relief; and (7) whether the evidence adduced at trial established that plaintiff was financially able to pay the fees of her attorneys.

The first issue to be discussed is whether the Illinois Constitution and Rules of the Supreme Court permit recovery of attorneys' fees from defendant for the partially successful prosecution of an appeal by the attorneys for plaintiff.

Appellant argues that the Supreme Court of the State of Illinois has not provided by rule for the payment of attorney's fees for an appeal prosecuted by a party litigant in a divorce action or any other action; therefore, the right to such payment from defendant does not exist as a matter of law. We disagree.

In relevant part, chapter 40, section 15 of the Divorce Act (Ill.Rev.Stat.1975, ch. 40, par. 16) provides the following:

"In all cases of divorce the court at any time after service of summons and proper notice to the husband or wife may require the husband to pay the wife or pay into the court for her use or may require the wife to pay to the husband or pay into the court for his use during the pendency of the suit such sum or sums of money as may enable her or him to maintain or defend the suit; * * *. * * * In case of appeal by the husband or wife, the court in which the decree or order is rendered may grant and enforce the payment of such money for her or his defense * * * as to such court shall seem reasonable and proper. * * *

In all actions for divorce in which the court grants to the wife or husband, as the case may be, attorney's fees in the prosecution or defense of the action, as the case may be, such fees may, in the discretion of the court, be made payable in whole or in part, to the attorney entitled thereto, and judgment may be entered and execution levied accordingly."

Appellees argue that the court properly awarded their fees for services to plaintiff in prosecuting the appeal and several post-judgment petitions in her behalf. Bramson v. Bramson (1958), 17 Ill.App.2d 87, 149 N.E.2d 399, lends support to this position. In Bramson, the husband argued that whereas the awarding of fees would have been proper for the defense of the appeal, they were not properly awarded for the prosecution of the appeal. (Bramson, at 97, 149 N.E.2d 399.) The court, in Bramson, stated:

"There is not a word in Section 15 indicating that the legislature intended to prohibit compensation for appellate services in procuring the reversal of an erroneous decree at the final hearing of the case after the reversal has been effected.

* * We are of the opinion that under Section 15 the chancellor at the final hearing had power to allow attorneys' fees for services in the entire case, including the services rendered on the prior appeal, which was a part of the case. The fact that the chancellor may in certain circumstances allow fees to defend an appeal before the final hearing and before services are rendered is not a limitation on what services may be compensated at the final hearing. The disputed sentence affects the time when the particular allowance may be made.

There seems to be no conceivable reason why the legislature should want to deny compensation for services in reversing an erroneous and therefore unjust decree. " (Bramson, at 98-100, 149 N.E.2d at 404-405.

The Bramson court was followed in McCarrel v. McCarrel (1977), 48 Ill.App.3d 666, 670, 6 Ill.Dec. 669, 672, 363 N.E.2d 198, 201, which affirmed the award of attorney's fees for the prosecution of an appeal.

Appellant argues that even if section 15 of the Divorce Act permits an award of attorney's fees for the prosecution of an appeal, Public Act 79-1360 repealed that portion of section 15 which provided for the payment of attorney's fees in defense of an appeal.

Public Act 79-1360, which became effective October 1, 1976, resulted in the deletion of the following language in section 15 of the Divorce Act:

"In case of appeal by the husband or wife, the court in which the decree or order is rendered may grant and enforce the payment of such money for her or his defense and such equitable alimony during the pendency of the appeal as to such court shall seem reasonable and proper."

Appellant argues if one portion of the statute concerning the award of fees for defense of an appeal is invalidated, another portion of the statute cannot be construed as allowing an award of attorney's fees for the partially successful prosecution of an appeal. Appellees argue that section 15 was never intended to create a substantive right or remedy for attorney's fees on appeal, but solely dealt with the time when fees to defend an appeal could be awarded. We need not reach this question as...