Marriage of Zannis, In re

• Decision Date: 17 May 1983
• Docket Number: No. 82-1457,82-1457
• Parties: , 70 Ill.Dec. 545 In re the MARRIAGE OF Nancy ZANNIS, Petitioner-Appellee, and Anthony Zannis, Respondent-Appellant.
• Court: United States Appellate Court of Illinois

Page 892

449 N.E.2d 892

114 Ill.App.3d 1034, 70 Ill.Dec. 545

In re the MARRIAGE OF Nancy ZANNIS, Petitioner-Appellee and Anthony Zannis, Respondent-Appellant.

No. 82-1457.

Appellate Court of Illinois First District, Second Division.

May 17, 1983.

Schiller, Du Canto & Fleck, Ltd. and Nicholas Zagone, Chicago, for respondent-appellant; Donald C. Schiller and Terry J. Finman, Chicago, of counsel.

Feiwell, Galper & Lasky, Ltd., Chicago, for petitioner-appellee; George S. Feiwell, Michael J. Berger, Lawrence S. Starkopf and Andrew D. Eichner, Chicago, of counsel.

DOWNING, Presiding Justice:

In this dissolution of marriage action, respondent Anthony Zannis appeals from the denial of his petition for substitution of judges (Ill.Rev.Stat.1981, ch. 110, par. 501), and from the award of temporary attorney fees to petitioner Nancy Zannis' attorney and also to the minor child's representative. Ill.Rev.Stat.1981, ch. 40, pars. 506, 508.

The issues presented on appeal are: whether the pre-trial denial of the petition for change of venue was improper, therefore making the subsequent orders of attorney fees null and void; and, whether the award of attorney fees to petitioner's attorney and to the minor's representative was an abuse of the trial court's discretion.

On December 19, 1980, petitioner filed a petition for dissolution of marriage which alleged extreme and repeated mental cruelty on the part of respondent. During 1981, several rulings were made in regards to various motions filed by the parties, including: an award to petitioner of $2,000 a month for temporary maintenance and child support; a denial of petitioner's request for temporary exclusive possession of the marital home; resolutions of numerous discovery conflicts; and a demand for a bill of particulars regarding the grounds for dissolution.

Petitioner filed her first petition for temporary attorney fees on September 21, 1981. The minor child's representative filed his first petition for attorney fees and an order was entered on November 17, 1981 requiring both respondent and petitioner to pay the sum of $2,500 in fees from the couple's joint funds to the child's representative.

On January 12, 1982, petitioner filed an amended petition for attorney fees and eight days later, before any hearing on the fees, respondent filed a petition for substitution of judges. Respondent claimed that the motion judge in the Domestic Relations Division of the County Department of the Circuit Court was prejudiced against him, that he could not expect a fair trial by him, and that said prejudice first came to his knowledge on January 18, 1982. The motion judge denied the petition and respondent filed a notice of appeal of the order on January 27.

Two days later, a hearing was held on the issue of attorney fees and respondent's attorney refused to participate, saying that because of his appeal of the denial of a change of venue, the court had lost its jurisdiction to hear the matter. The motion judge responded by stating that a denial of a change of venue is not an appealable order, therefore, the court retained jurisdiction and the hearing would proceed. Petitioner's attorneys testified as to the accuracy of the figures contained in the petition for attorney fees for services rendered and respondent's attorney refused to cross-examine them. The trial court calculated that the fees and costs incurred by the law firm to that date totaled $14,166 and with the deduction of the $3,500 retainer paid by petitioner in December of 1980, the firm was due the sum of $10,616. Respondent was therefore ordered to pay that sum. The trial judge refused to specify the source of the funds, saying that the trial court would consider it in the ultimate disposition. Upon petitioner's request, the award was reduced to a judgment on February 9, 1982.

The minor child's representative filed a motion for a money judgment for the award of attorney fees previously granted him, which was allowed and entered on February 11, 1982. The source of the funds was also unspecified. Respondent appeals from the entry of the two orders for attorney fees.

I.

Respondent acknowledges that a denial of a change of venue is not an appealable order (Stark v. Roussey & Assoc., Inc. (1st Dist.1970), 131 Ill.App.2d 379, 382, 266 N.E.2d 439), but argues that the orders entered after the improper denial of the petition should be declared null and void (Anderson v. City of Wheaton (2d Dist.1975), 25 Ill.App.3d 100, 105, 323 N.E.2d 129). Respondent urges that in this case, the trial court erred in not granting his petition for substitution of judges, filed on January 20, 1982, and that the improper denial of this motion makes the subsequent orders of attorney fees void.

We note initially that the recently decided Illinois supreme court case of In re Marriage of Leopando, 96 Ill.2d 114, 70 Ill.Dec. 263, 449 N.E.2d 137, (Ill.1983), held that "issues raised in a dissolution-of-marriage case are not separate claims and therefore not appealable under [Supreme Court] Rule 304(a)." (87 Ill.2d R. 304(a).) Although that case concerned appellate review of an interlocutory child custody order, we feel the policy consideration of not allowing unnecessary piecemeal litigation applies in this issue. Dissolution of marriage cases present many questions and issues. Attorney fees are purely collateral to the main issue. The piecemeal appeals in dissolution cases create an unnecessary expense to the litigants and delay in the administration of justice.

However, case law at the time this appeal was taken allowed for a review of an award of temporary attorney fees before the entire dissolution was decided when, as here, the trial court expressly stated that there was "no just reason for delaying enforcement or appeal." We therefore allow review of the issue. For that reason, we decline to exercise our authority to dismiss this appeal, but alert the bar to this development.

Section 1 of the Venue Act allows a change in venue in a civil action "(2) Where any party or his attorney fears that he will not receive a fair trial in the court in which the action is pending, because * * * the judge is prejudiced against him, or his attorney * * *." (Ill.Rev.Stat.1981, ch. 110, par. 501.) Section 3 provides that:

" * * * A petition for change of venue shall not be granted unless it is presented before trial or hearing begins and before the judge to whom it is presented has ruled on any substantial issue in the case, provided that if any grounds for such change of venue occurs thereafter, a petition for change of venue may be presented based upon such grounds."

Ill.Rev.Stat.1981, ch. 110, par. 503.

It is recognized that the right to a change in venue is absolute if it is filed before the judge has ruled on any substantial issue. (American State Bank v. County of Woodford (4th Dist.1977), 55 Ill.App.3d 123, 128, 13 Ill.Dec. 515, 371 N.E.2d 232, appeal denied (1978), 71 Ill.2d 597.) Once there has been a ruling on a substantial issue, however, the movant must state specific allegations to support the claim of prejudice and the change should be granted only in the sound discretion of the court. (Templeton v. First Nat'l Bank of Nashville (5th Dist.1977), 47 Ill.App.3d 443, 447, 5 Ill.Dec. 720, 362 N.E.2d 33, appeal denied, 66 Ill.2d 637.) The rationale for providing a mandatory right of removal before there has been a ruling on a substantial issue is that a party should not be compelled to present his case "before a judge who is prejudiced, whether actually or only by suspicion"; the correlative principle for requiring actual allegations of prejudice after a ruling on a substantial issue is that a party "may not 'judge shop' until he finds one in total sympathy to his cause." American State Bank, 55 Ill.App.3d at 128, 13 Ill.Dec. 515, 371 N.E.2d 232.

In this case, respondent did not allege specific instances of prejudice by the motion judge in his petition, but argues that petitioner's request for temporary attorney fees was a new cause of action, collateral and independent of the dissolution of marriage action. Respondent contends that because no rulings had been made on the petition for fees, he had an absolute right to a substitution of judges. He finds support for his contention that a petition for attorney fees is an independent action in the case of In re Marriage of Ligas (1st Dist.1982), 110 Ill.App.3d 1, 65 Ill.Dec. 763, 441 N.E.2d 1277. There, the trial court had ruled on a petition for prospective attorney fees, after an appeal had been taken, to defend the appeal from the disposition of marital property upon the dissolution of the marriage. This court held that the trial court properly ruled on the fees issue since it was an independent issue that was merely collateral to the divorce proceedings. Ligas, at 8, 65 Ill.Dec. 763, 441 N.E.2d 1277.

The ruling in Ligas was concerned only with the question of whether an award of attorney fees is collateral to issues involved in an appeal of the disposition of marital property upon the dissolution of a marriage. As stated in a case upon which Ligas primarily relies, in such an instance, the main concern is whether the ruling by the trial court "would have the effect of interfering with review of the judgment from which the appeal has been taken." (In re Marriage of Giammerino (1st Dist.1981), 94 Ill.App.3d 1058, 1061, 50 Ill.Dec. 490, 419 N.E.2d 598.) Therefore, the analogy that respondent is making is not appropriate.

The request for attorney fees in a dissolution action that has not...