In re Marriage of Johnson

• Decision Date: 29 June 2004
• Docket Number: No. 1-03-2359.,1-03-2359.
• Citation: 812 N.E.2d 661,285 Ill.Dec. 841,351 Ill.App.3d 88
• Parties: In re The Marriage of Mary Beth JOHNSON, Petitioner, v. Vernon Johnson, Respondent Law Offices of Jeffery M. Leving, Ltd., Appellant, v. Michael A. Weiman and David J. Wessel, Appellees.
• Court: United States Appellate Court of Illinois

812 N.E.2d 661

351 Ill.App.3d 88

285 Ill.Dec. 841

In re The Marriage of Mary Beth JOHNSON, Petitioner, v. Vernon Johnson, Respondent Law Offices of Jeffery M. Leving, Ltd., Appellant, v. Michael A. Weiman and David J. Wessel, Appellees.

No. 1-03-2359.

Appellate Court of Illinois, First District, Second Division.

June 29, 2004.

Rehearing Denied July 15, 2004.

Paul L. Feinstein, Paul L. Feinstein, Ltd., Chicago; and Randy K. Johnson, Ariano Hardy Nyuli Johnson Richmond Richmond Fleck Goettel & Castillo, P.C., Elgin, for Appellant.

Michael A. Weiman, Weiman & Associates, Chicago; and David J. Wessel, Law Offices of Wessel & Doheny, Chicago, for Appellees.

Presiding Justice WOLFSON delivered the opinion of the court:

A law firm contends the statute that authorizes disgorgement of interim fees paid to it by its client in a marriage dissolution case is constitutionally defective. We conclude a decision on the issue will have to wait for another day. We lack jurisdiction to decide it.

The appellant, the Law Offices of Jeffery M. Leving, Ltd. (Leving), appeals an interim order entered by the trial court prior to the final divorce decree, ordering Leving to disgorge certain attorney fees paid by its client Vernon Johnson (Vernon).

The issues raised by Leving on appeal are: (1) does this court have jurisdiction to hear this matter, given that an interim order is not a final order; (2) does section 501(c-1)(3) (750 ILCS 5/501(c-1)(3) (West 2002)) violate the separation of powers clause in the Illinois Constitution; (3) does section 501(c-1)(3) (750 ILCS 5/501(c-1)(3) (West 2002)) violate substantive or procedural due process, either on its face or as applied to Leving; (4) is the trial court's order void because the court lacked statutory authority to order Leving to disgorge "earned" fees; and (5) is the trial court's order void because no proper pleading requesting disgorgement was filed at the time of the order?

The disgorgement order was entered pursuant to section 501(c-1)(3) of the Illinois Marriage and Dissolution of Marriage Act (the Act), which states, in part:

"If the court finds that both parties lack financial ability or access to assets or income for reasonable attorney's fees and costs, the court (or hearing officer) shall enter an order that allocates available funds for each party's counsel, including retainers or interim payments, or both, previously paid, in a manner that achieves substantial parity between the parties." 750 ILCS 5/501(c-1)(3) (West 2002).

Section 501(c-1)(3) of the Act was enacted as part of the "leveling of the playing field" amendments in 1997, changing the petition methods and court procedures for interim fee awards in dissolution of marriage actions. 750 ILCS 5/501 et seq. (West 2002); In re Marriage of Tetzlaff, 304 Ill.App.3d 1030, 1032, 238 Ill.Dec. 243, 711 N.E.2d 346 (1999).

FACTS

On August 10, 2000, Mary Beth Johnson filed a petition for dissolution of marriage against Vernon Johnson. Linda Schneider filed an appearance as Vernon's attorney. Michael Weiman was granted leave to file his substitution as Mary Beth's attorney on December 5, 2000. The court appointed David Wessel as attorney for the minor children.

On January 15, 2002, Schneider withdrew, and Leving entered an appearance as attorney for Vernon. Leving filed a motion to withdraw on April 9, 2002, contending Vernon failed to fulfill an agreement on expenses and fees. Leving later withdrew the motion. Leving filed a second motion to withdraw on July 12, 2002, citing the same reasons. The court granted Leving leave to withdraw on July 17, 2002. On July 30, 2002, Leving filed a petition for attorney fees in the amount of $12,247.57, pursuant to section 508 of the Act. 750 ILCS 5/508 (West 2002). On August 22, 2002, Michael Ochoa, an attorney with Leving, filed an additional appearance as Vernon's attorney.

On August 23, 2002, the court entered an order setting a hearing date on Mary Beth's petition to modify visitation. The order also stated:

"The issue of the child's representative's fees and a prospective leveling of the playing field pursuant to 750 ILCS 5/501(c-1) shall be adjudicated at such time as well as the setting of trial dates."

On August 27, 2002, Leving refiled its additional appearance and filed a motion for leave to file appearance.

Mary Beth, through Weiman, presented to the court a petition for interim and prospective attorney fees and costs pursuant to section 501(c-1) (750 ILCS 5/501(c-1) (West 2002)), alleging Vernon was well able to pay Mary Beth's interim and prospective attorney fees. Wessel presented a petition for interim attorney fees and prospective trial fees, pursuant to section 506 (750 ILCS 5/506 (West 2002)). Neither petition was filed with the clerk of the court. Copies of the petitions had been sent to Leving. Wessel's petition asked the trial court to order funds already paid by the parties toward legal fees of their own attorneys "to be disgorged by their attorneys and paid to David Wessel * * *." Weiman's petition said "there must be a leveling of the playing field between the parties" and it asked the trial court to decide the fees issue "on a non-evidentiary basis pursuant to Section 501(c)(1)."

Vernon filed a motion to strike or dismiss the petition for interim and prospective attorney fees and costs. In his motion, Vernon acknowledged having been served with the petition.

On August 28, 2002, following a visitation hearing, the court heard arguments regarding the fee petitions. Ochoa told the court he had received $23,500 in fees since January 2002, which Vernon had borrowed from his parents. Weiman asked the court to disgorge fees paid to Ochoa, because Ochoa had received $11,000 as a retainer at the beginning of the case. Ochoa objected that Weiman's petition did not ask for disgorgement and objected to any hearing on the fee petition because he had just received it 90 minutes before. The court overruled the objection but did not order disgorgement. The court ordered Vernon to pay $15,000 in attorney fees to Weiman and $7,500 to Wessel within 30 days and denied Vernon's motion to strike the fee petition. The order was entered on September 9, 2002.

On November 12, 2002, Mary Beth filed an emergency petition for rule to show cause why Vernon should not be held in contempt for failure to pay the attorney fees under the court's September 9, 2002, order and failure to pay child support. The court issued a rule against Vernon pursuant to the petition. Vernon filed a financial disclosure statement, indicating he owed Leving $16,113.91 in attorney fees, as of October 31, 2002.

On December 2, 2002, the court held Vernon in indirect civil contempt of court following a hearing on the rule to show cause. The court remanded Vernon to the custody of the Sheriff of Cook County with commitment stayed until December 4, 2002. The purge was set for Vernon to pay $7,500 to Wessel, $7,300 to Weiman, and $2,200 to Mary Beth for child support. On December 4, 2002, the cause came before the court for return of the body attachment issued against Vernon. With Vernon not having met the ordered purge, the trial judge ordered disgorgement of half the attorney fees paid to Leving, stating:

"in light of the fact you [Vernon] paid $23,000 to your present attorney, under the statute, the laws of the State of Illinois, I'm going to order that half of that be disgorged and given in equal amounts to Mr. Weiman to cover his fees and Mr. Wessel to cover his fees. * * * I want the record to reflect the reason the Court is taking this action is that it has been shown, through the evidence presented at the prove up, that there are no assets in this case whatsoever to take attorney's fees from. None. Therefore, this is the only equitable way under the law to see that both sides and plus the child's representative are paid their attorney's fees."

The following exchange between Ochoa and the trial judge took place:

"MR. OCHOA: Mr. Weiman is correct. Mr. Johnson has paid $23,500. With regard to the issue on Petition for Rule to Show Cause, this was brought about by two petitions for interim fees and this Emergency Petition for Rule to Show Cause, this being the second petition. Nowhere does anyone ask for a purge— sorry. Nowhere does anyone ask for disclosure.¹

THE COURT: In this petition they ask for any and all other relief.

MR. OCHOA: Well, if that's going to be the case in the pleading, then there's no point in saying anything other than that. You can just simply say relief allowed by the statute.

THE COURT: Are you suggesting instead of the Court making this order that your client go to jail?

MR. OCHOA: No. I'm suggesting the Court do something else. Make a payment history. Payment plan. Somehow enable him to pay once he becomes employed. * * *

THE COURT: I think that will be an excellent idea. He will owe you more fees now that I am disgorging you of half of the fees. I think it's an excellent idea for the Leving firm to enter an agreement based on your future employment to make payment to them."

The court ordered payment in 14 days. The court's order, entered December 5, 2002, stated, in part:

"1. Pursuant to 750 ILCS 5/501(c-1) and the agreement of the parties, the law firm of Jeffery M. Leving, Ltd. is hereby disgorged of one-half (1/2) of the fees paid by respondent which total $11,750. This disgorgement shall be made within 14 days via the following payments to be made by Jeffery M. Leving, Ltd.:

A. $5,875.00 to David Wessel, Esq.

B. $5,875.00 to Michael Weiman, Esq.

* * *

3. In the event there is compliance with Paragraph 1 of this order, the purge set forth in the 12/2/02 order relative to fees, as well as all claims for fees by petitioner and the children's representative against the respondent, shall be deemed satisfied in full." (Emphasis added.)

The court granted the parties 30 days to resolve any remaining issues related to division of personal property. The court reserved...