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Strom v. Strom

APRIL 9, 1957.




Appeal from the Superior Court of Cook county; the Hon. FRANK M. PADDEN, Judge, presiding. Orders affirmed in part, reversed in part, and cause remanded with directions. JUDGE SCHWARTZ DELIVERED THE OPINION OF THE COURT.

Plaintiff husband appeals from an order allowing attorneys' fees, master's fees and costs in the prosecution of a petition filed by defendant wife which resulted in an increase in child support and reimbursement to the wife for certain unusual expenses occurring after the entry of a divorce decree. A cross-appeal was filed by defendant from that portion of the chancellor's order which, while allowing additional support, denied defendant's petition for the creation of a fund for the benefit of a minor child who had been stricken with poliomyelitis, from which fund the child could be provided with care and a college education even after attaining her majority. A motion was made by plaintiff to dismiss the cross-appeal on the ground that the order in question was entered by the court December 15, 1953, that it was a final order, and that an appeal should have been taken at that time. The order reserved for hearing the matter of attorneys' fees prayed for by defendant, which was referred to a master. There was thus left unsettled a substantial part of the case. When this was finally disposed of, plaintiff appealed and brought the entire record before the court, including a transcript of the proceedings with respect to the increase in child support. Piecemeal reviews are not encouraged by the court, and where substantial matters remain to be decided, the order is not final. Simpson v. Simpson, 4 Ill. App.2d 526 (1955); People v. Stony Island Savings Bank, 355 Ill. 401 (1934); Hunter v. Hunter, 100 Ill. 519 (1881). The motion to dismiss the cross-appeal is denied.

The parties to this action were divorced in 1941. At that time custody of the child Barbara, then three years old, was awarded to the defendant wife together with a lump sum property settlement of $135,000 and an award of $80 per month for support and maintenance of the child. In 1953 the defendant wife petitioned the court for an increase in the allowance for the child's support. This petition also sought reimbursement for moneys borrowed for the benefit of the child and for $5,000 derived from an insurance policy taken out by a third person (the then husband of the defendant wife) insuring the child against polio, and further asked that plaintiff be ordered to pay reasonable amounts to provide the daughter with a four year college education or, in the alternative, to establish a trust fund to safeguard and insure her education in the future. As before stated, the petition also sought attorneys' fees, expenses and costs. Both in his answer and in subsequent proceedings plaintiff resisted any increase whatsoever in the allowance to his child. There were numerous continuances, over the objections of defendant's attorneys. There was controversy over the actual net worth of plaintiff, although his attorney ultimately stipulated for the record that he was worth $950,000.

On December 15, 1953, the chancellor entered an order increasing the child's support from $80 to $250 per month and reimbursing the defendant wife for some of the extraordinary expenses requested. He denied reimbursement for moneys derived from the insurance policy and denied the prayer of the petition that provision be made for the child's education beyond the period of her minority on the ground that he had no jurisdiction. The court allowed fees of $5,520 for the attorneys and $1,750 for the master.

The plaintiff husband contends that the court improperly referred the matter of attorneys' fees to a master and that the fees allowed the attorneys were unreasonable. The record shows no objection made to the court's reference of the cause to a master at the time such reference was made. As a matter of fact, counsel for defendant wife say they objected to this reference and that the court ignored their objection. In support of this the record shows that at the first hearing before the master, one of the attorneys for the wife said that the matter had been referred to the master over their objection, saying: "We thought he [the court] should be the one to decide and he said no, he didn't have time, and referred it to the master." To this statement counsel for the husband did not reply nor did he press his objection to the master's hearing of the case but proceeded to adduce evidence therein.

It is true, as urged by counsel for plaintiff, that the Divorce Act does not specifically provide for the reference of an issue on attorneys' fees to a master and that the Supreme Court rules provide that reference to a master shall be the exception, not the rule. It appears to us that where the court, as in the instant case, heard all the evidence on the main issues, a relatively brief hearing on attorneys' fees lasting but a few hours should have been sufficient to enable the court to decide the appropriate fees to be allowed. However, plaintiff's failure to object and his proceeding with the case would make it highly inequitable to hold that he can now urge this point. The cases support this conclusion. Freese v. Glos, 248 Ill. 280 (1911); Phillips v. O'Connell, 331 Ill. App. 511 (1947). Bushnell v. Cooper, 289 Ill. 260 (1919), cited by plaintiff, appears to us to support the principle that a party who participates without objection in a hearing before a master may not, after the master's findings are made, argue for his benefit that the reference was improper.

Plaintiff husband argues that the award of $5,520 to the wife's attorneys was excessive. The master found that they had spent a total of 184 hours on the petition, so that the fee would represent an allowance of about $30 an hour. The wife's attorneys think this is inadequate and argue that they should be allowed $7,500. Certainly, for a matter of this sort the time spent seems excessive, yet an examination of the record reveals that plaintiff deliberately undertook to impose every impediment he could, technical and otherwise, in opposition to the petition on behalf of the child. One of the attorneys for the wife testified that he was informed by plaintiff's lawyer that this was plaintiff's policy, and the record amply supports this observation. Under such circumstances we can well understand how lawyers could expend a great amount of time in the prosecution of a suit so bitterly defended. However, the figure referred to includes not only the time spent by the senior counsel but by his two sons, one in practice but a short time, and is larger than we believe reasonable. The fee allowed to the wife's attorneys should be reduced 20 per cent. This does not include any allowance for the time spent on the question of providing for the child beyond her minority. When upon remandment pursuant to this decision the court hears the matter further, it should make an additional allowance to the wife's attorneys for the time spent on this phase of the case. We find no basis for the allowance of any fees for the time spent on the petition for fees.

The master's charge of $1,750 is based on a total time of 102 hours, or $87.50 a day. The Supreme and Appellate Courts of this state frequently have been critical of fees charged by masters and have compared them with the earnings of judges, to whom they are in a sense assistants. Perhaps in this respect courts have overlooked the fact that a master has many expenses a judge does not have, such as office rent, stenographic services, and other charges. Nevertheless, the master's fee in the instant case is considerably larger than that warranted under the decisions of our courts, and a reduction of 20 per cent is likewise ordered with respect to the master's fee.

There is further controversy with respect to the chancellor's denial of costs incurred by defendant in the service of a subpoena duces tecum on the father in order that his true worth might be determined. The court felt that the husband's admission that he was worth $950,000 was all that was required and that the production of books and records was unnecessary. Under the circumstances we think the trial court ruled correctly. The wealth and substantial ability of the father to provide for his daughter in any manner the court should ultimately find reasonable was adequately established and it would only have been time-consuming to press that phase of the matter further.

We come now to the important question in this case which arises on the cross-appeal of the wife. Is the father of a child stricken with a serious disease during minority completely relieved of obligation for the child's care and education upon her reaching majority (save such as may be provided by a pauper's suit in County Court) or may a court of chancery, having taken jurisdiction in a divorce proceeding, proceed to provide for such child's care and education beyond the period of her minority? Defendant urges that the chancery court has such power and that it should be exercised in a provision for the depositing of funds with the court or other suitable depositary.

The Divorce Act (Ch. 40, Par. 14, Sec. 13, Ill. Rev. Stat. 1955) provides that the court may make an order concerning custody and care of minor children during the pendency of a suit and may award the custody of a minor child to either party, as the child's interest may require, and then this provision follows:

". . . and may make such provision for the education and maintenance of the child or children out of the property of either or both of its parents. . . ."

It is to be noted that the word "minor" is not used in qualification of the phrase "child or children" in this last provision. Moreover, in the section relating to permanent alimony and custody and support of children (Ch. 40, Par. 19, Sec. 18, Ill. Rev. Stat. 1955) which is the section applicable to this proceeding, it is provided that the court upon the granting of a divorce

". . . may make such order touching . . . the care, custody and support of the children . . . as shall ...

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