Illinois Attorney's Fees and the Leveling the Playing Field Act

More documents

Recommendations

Info

Parentage Visitation Line of Cases / Stella I and II: Another line of cases addressing incorporation by reference issues is the parentage/visitation line of case law. One such case is Stockton v. Oldenburg, 305 Ill.App.3d 897, 238 Ill.Dec. 1013, 713 N.E.2d 259 (4th Dist. 1999), GDR 99-57, that followed the decision of Department of Pub. Aid v. Gagnon, 288 Ill.App.3d 424, 223 Ill.Dec. 776, 680 N.E.2d 509 (4th Dist. 1997), GDR 97-51. The issue was whether the above quoted reference to § 14(a)(1) of the Parentage Act issue was to § 607 of the IMDMA [stating that a parent not granted custody is entitled to reasonable visitation unless the court finds reasonable visitation would seriously endanger the child] or whether it referred to IMDMA § 602 [providing that custody is determined based upon the best interest of the child]. Gagnon ruled that the reference in § 14(a)(1) of the Parentage Act is a reference to IMDMA § 602 (custody) but not to § 607 (visitation). The same analysis in Tysl, R.M.F., Gagnon, etc., is pertinent to the law as to whether Sections 501(c-1) and 503(j) apply to parentage proceedings. If the legislature intended these statutory sections to apply, it is urged the legislature would have specifically amended the pertinent provisions of the Parentage Act as well as the IMDMA. However, this interpretation is not consistent with the First District's October 2004 decision in Stella II. In the original Stella v. Garcia opinion (Stella I), 339 Ill. App. 3d 610, 791 N.E.2d 187 (2003), the First District court held that section 501(c-1) of the IMDMA regarding interim attorney fees does not apply to parentage proceedings. It stated that the court in parentage proceedings does not have authority to order "disgorgement" of a retainer. This rationale of this case was exactly in line with my original discussion. The quotation from the case was, "(n)owhere in section 17 of the Parentage Act did the legislature refer to disgorgement of fees. Nor does it cross-reference subsection 501(c-1) of the Marriage Act. The only cross-reference to the Marriage Act in section 17 of the Parentage Act is to section 508.” In Stella II (October 2004), the appellate court took the position that in parentage proceedings the court can award interim attorney's fees under the provisions of Section 501(c-1) of the IMDMA, so long as it does not require disgorgement. The appellate court stated in the beginning of its decision: The trial court in this case, relying entirely on Stella I , held the Parentage Act does not provide for interim attorney's fees. We intended no such result and today we clear the air by addressing two questions certified for interlocutory appeal pursuant to Illinois Supreme Court Rule 308(a): "Question 1: Can interim attorney's fees be awarded under section 17 of the [Parentage Act]? Question 2: If the answer to Question 1 is "Yes," can those interim attorney's fees be awarded using the methods, factors, and procedures, set forth in section 501(c- 1)(1), (2), and (3) of the [Marriage Act] without considering disgorgement?" Gunnar J. Gitlin Gitlin Law Firm, P.C. www.gitlinlawfirm.com
We answer the certified questions "yes" and "yes." The Stella II court first commented that, “Neither of the articles written by the bar association committees that promoted the 1997 amendments suggests that the level playing field provisions in subsection (c-1)(3) were intended to apply to parentage actions.” Stella II then stated, “Our courts have held attorney's fees cannot be awarded in paternity actions without contractual or statutory authority. That flat statement does not resolve our inquiry, it begins it.” The labored reasoning of the appellate court then suggests, “While section 17 makes no specific reference to interim fees, it requires entry into section 508, which does.” In defense of its position the court opines, “We do not see that the lack of a marital estate as a source of fees has any particular bearing on our resolution of legislative intent.” I disagree with the decision in Stella II. The opinion seems persuasive until one reasons that overlaying the provisions of the temporary relief in divorce cases is extraordinarily troublesome. One of the key safety provisions in divorce cases is that while the proceedings are summary in nature any “overpayment” may be recovered at the conclusion of the case because all fees would be deemed an advance against the marital estate. There simply is no marital estate in parentage cases so overlaying this statute makes little sense. After drafting this article, an article was published in the ISBA’s Family Law Newsletter addressing the same issue, i.e., attorney’s fees in paternity cases. See April 2005, Vol. 48, No. 3. http://www.isba.org/Sections/FamilyLaw/4-05.pdf. The authors of that article suggest that the language in Stella II might be used to argue against a requirement of disgorgement by an attorney in divorce cases. The authors stated, “The authorizing paragraph of the Parentage Act is no more limiting: “the court may order reasonable fees of counsel... to be paid by the parties...” Therefore, while this court has clarified that interim awards are authorized and disgorgement orders are not, it may have opened the door yet another unintended consequence.” Interim Fees and Post-Dissolution of Marriage Proceedings and First District's Beyer Opinion: An issue which has been clarified by one First District appellate court decision is whether IMDMA § 501(c-1) and § 503(j) apply to post-dissolution of marriage proceedings. Trial courts had been divided on this issue. A 2001 opinion addressed this issue. IRMO Beyer, 324 Ill.App.3d 305, 257 Ill.Dec. 406, 753 N.E.2d 1032 (1st Dist., 1st Div. 2001). However, Beyer did not address the issue of whether a hearing in post-decree proceedings should be an expedited basis. Argument Re 501(c-1) Applying: The argument that the interim fee portion of the statute applies to post-judgment proceedings (as made in Beyer), is: 1) 508(a)(2)'s Reference to Enforcement or Modification Proceedings: The language of IMDMA § 508(a) that provides in pertinent part that, “Interim attorney's fees and costs may be awarded from the opposing party, in accordance Gunnar J. Gitlin Gitlin Law Firm, P.C. www.gitlinlawfirm.com
Page 1 and 2: THE REVOLUTION THAT WASN’T: LEVEL
Page 3 and 4: petition at such later date is 60 d
Page 5: is one appellate court case which h
Page 9 and 10: hearing, etc. Both of these concern
Page 11 and 12: Pamela's request. Further, we note
Page 13 and 14: that she had the ability to pay her
Page 15 and 16: child support or maintenance obliga
Page 17 and 18: trial court level, the Holthaus app
Page 19 and 20: more case which conflicts with the
Page 21 and 22: that petitioner is unable to pay he
Page 23 and 24: Timing for Filing Contribution Peti
Page 25 and 26: The amended section 508(a)'s refere
Page 27 and 28: 2002), (1st Dist., 1st Div. filed M
Page 29 and 30: costs is mandatory. See In re Marri
Page 31 and 32: The case also contains a succinct d
Page 33 and 34: including the defense of appeals of
Page 35 and 36: sentence immediately following, whi
Page 37 and 38: emedies that may otherwise exist un

Illinois Attorney's Fees and the Leveling the Playing Field Act

Create successful ePaper yourself

Delete template?

Save as template?