In re Crecos
Decision Date | 22 June 2020 |
Docket Number | No. 1-18-2211,1-18-2211 |
Parties | IN RE MARRIAGE OF Diana Lynn Barr CRECOS, Petitioner-Appellee, and Gregory Crecos, Respondent-Appellant. |
Court | United States Appellate Court of Illinois |
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.
¶ 1 In the course of divorce proceedings from Gregory Crecos, Diana Barr Crecos filed a motion for an award of attorney fees incurred in two appeals. The trial court awarded Diana the requested fees and found no just reason to delay enforcement or appeal of the award. Gregory appealed, claiming that Diana had not substantially prevailed in the prior appeals because the appellate court's order left several issues unresolved, in need of retrial. We find that the need for further litigation of other issues pursuant to this court's remand makes the award of fees here an interim award under sections 508(a) and 501(c-1) of the Illinois Marriage and Dissolution of Marriage Act (Act) ( 750 ILCS 5/508(a), 501(c-1) (West 2016)). We dismiss the appeal from the interlocutory order for lack of jurisdiction.
¶ 3 In 2007, Diana Barr Crecos petitioned to dissolve her marriage to Gregory Crecos. On December 24, 2009, Judge Reynolds entered a final judgment dissolving the marriage and allocating the marital property. Gregory appealed Judge Reynolds's decision, and this court affirmed the judgment. In re Marriage of Crecos , 2012 IL App (1st) 102158-U (Crecos I ).
¶ 4 Both parties filed postdecree petitions. After denying a timely motion for substitution of judge, Judge Raul Vega entered a series of orders against Diana. Diana appealed, and this court vacated all of those orders, as well as all orders that followed from and depended on Judge Vega's orders. In re Marriage of Crecos , 2015 IL App (1st) 132756, 395 Ill.Dec. 203, 38 N.E.3d 80 ( Crecos II ). Our order vacating all of Judge Vega's orders left unresolved all issues addressed in Judge Vega's many orders.
¶ 5 In March 2016, Diana filed petitions under section 508(a) of the Act ( 750 ILCS 5/508(a) (West 2016)) for attorney fees incurred for the appeals in Crecos I and Crecos II .
¶ 6 On September 17, 2018, the trial court ordered Gregory to pay Diana's attorney $32,952.50 for the appeal in Crecos I and $89,465.50 for the appeal in Crecos II. The court added, "There is no just reason to delay enforcement or appeal of this order."
¶ 7 Gregory appealed on October 16, 2018, naming the September 17 order as the subject of the appeal.
¶ 9 On appeal, Gregory contends that the trial court should not have awarded Diana all the fees she sought because she did not prevail on all issues. He argues, "[Diana] did not prevail at all because the theft-of-personal-property issue is still pending in the circuit court below, awaiting re-trial."
¶ 10 We asked the parties to submit briefs concerning our jurisdiction. Both parties assert that this court has jurisdiction to consider the appeal 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 2018)); instead the court entered a final award of attorney fees under section 503(j) of the Act ( 750 ILCS 5/503(j) (West 2018)). We note that neither the motion for fees nor the court's order cited section 503(j) as the statute authorizing the award.
¶ 11 Section 508(a) of the Act provides:
¶ 12 Section 503(j) provides that, "[a]fter proofs have closed in the final hearing on all other issues between the parties * * *, a party's petition for contribution to fees and costs incurred in the proceeding shall be heard and decided." 750 ILCS 5/503(j) (West 2018).
¶ 13 The parties argue that section 501(c-1) does not apply because the appeals involve postdecree petitions. However, "[s]ection 501(c-1) applies to both predissolution and postdissolution decree proceedings." In re Marriage of Oleksy , 337 Ill. App. 3d 946, 950, 272 Ill.Dec. 497, 787 N.E.2d 312 (2003). Section 503(j) on its face applies only when the court has resolved "all * * * issues between the parties" other than the award of attorney fees. 750 ILCS 5/503(j) (West 2018). The parties admit that the court has not yet resolved some issues in the case, particularly Gregory's claim that Diana took his personal property. Because issues remain pending, the trial court may reconsider its initial allocation of attorney fees, and provide for an assessment of further attorney fees in connection with the pending issues, in its final judgment. See In re Marriage of Arjmand , 2017 IL App (2d) 160631, ¶ 20, 412 Ill.Dec. 217, 74 N.E.3d 1140.
¶ 14 Section 501 of the Act defines "interim attorney fees and costs" as "attorney's fees and costs assessed from time to time while a case is pending, in favor of the petitioning party's current counsel." 750 ILCS 5/501(c-1) (West 2018). Because the case is still pending, awaiting retrial on issues Gregory raised, the order of September 17, 2018, awards amounts that meet the statutory definition of "interim attorney fees."
¶ 15 Interim awards of attorney fees are temporary in nature, and they are subject to adjustment (including, if necessary, the disgorgement of overpayments to an attorney) at the close of the dissolution proceeding. Arjmand , 2017 IL App (2d) 160631, ¶ 20, 412 Ill.Dec. 217, 74 N.E.3d 1140.
Arjmand , 2017 IL App (2d) 160631, ¶ 21, 412 Ill.Dec. 217, 74 N.E.3d 1140.
(Emphasis in original.) In re Marriage of Johnson , 351 Ill. App. 3d 88, 96, 285 Ill.Dec. 841, 812 N.E.2d 661 (2004).
¶ 16 We find this case similar to In re Marriage of Derning , 117 Ill. App. 3d 620, 72 Ill.Dec. 785, 453 N.E.2d 90 (1983). The trial court in Derning divided the marital property but reserved its ruling on the issue of attorney fees. The wife appealed. The appellate court held that it lacked jurisdiction to consider the appeal because the trial court had not entered a final order. The Derning court explained:
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Crecos v. Crecos
...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. ......