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Jones v. Jones

APRIL 9, 1964.

EVELYN S. JONES, PLAINTIFF-APPELLEE,

v.

J. EDWARD JONES, DEFENDANT-APPELLANT.



Appeal from the Superior Court of Cook County; the Hon. DRYMALSKI and WELLS, Judges, presiding. Reversed and remanded.

MR. JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT.

Evelyn S. Jones filed a petition for printing costs and attorney's fees arising out of an appeal by J. Edward Jones from a decree of divorce granted her in a previous action. Two orders, from which the present appeal is taken, were entered as the result of the petition; one allowed her the printing costs of defending the appeal, the other granted her attorney fees. The first was entered by Judge Drymalski, the second by Judge Wells. Since the orders appealed from were entered at two different hearings before two different judges, they lend themselves to separate consideration and we shall treat them in the order of their entry.

This is another in the series of Jones v. Jones cases but none of the prior ones concern us here save that case from which the costs and fees in dispute arose. In 1961 the plaintiff brought an action for divorce against the defendant and was awarded a default decree after service by publication. An accompanying prayer for support of the two minor daughters of the parties was reserved until such time as personal service could be obtained on the defendant. Later he was personally served and an order was entered for him to pay fifty dollars a week support for the children. For failure to comply with this order he was found in contempt and confined in the Cook County jail. He appealed from these orders which were affirmed in part and reversed in part. Jones v. Jones, 40 Ill. App.2d 217, 189 N.E.2d 33 (1963). It was the costs and the attorney's fees for defending this appeal which the plaintiff was seeking in the present action.

Her petition alleged that she was not working and was unable to pay any of the expenses involved in the appeal, including attorney's fees and the costs of printing her brief and an additional abstract. She further alleged that the defendant was able-bodied, a practicing lawyer and was fully capable of paying the expenses. She prayed that the defendant be ordered to pay the printing costs of $464.34 and attorney's fees of $1,500.

We have no report of the proceedings on November 5, 1962, the date the petition was first called for hearing. The order reads in part as follows:

"It is hereby ordered that defendant J. Edward Jones pay to the Gunthorp-Warren Publishing Co. the sum of $464.34 as printing costs on said appeal; that question of attorney's fees to Bernard B. Brody, attorney for plaintiff be deferred; that defendant be given 7 days to file an answer or any other pleading to said petition; . . ."

The order does not indicate that any evidence was taken at the hearing and there is nothing in the record before us to show that there was. The order directs Jones to pay the printing bill, defers the question of attorney's fees and gives Jones seven days to answer the petition. We can infer from the order that Jones asked time to answer the petition. Although he was allowed seven days, he was at once directed to pay one of the two items requested in the petition without waiting for his answer and without hearing his defense.

An order for the allowance of expenses must be based on an adequate hearing and the order or record must show that there have been findings of fact. Czarnecki v. Czarnecki, 341 Ill. 629, 173 N.E. 752; Golstein v. Golstein, 328 Ill. App. 335, 66 N.E.2d 106. It is not always necessary that the facts on which an order is based be set out as such in the body of the order. However, if findings of fact are made in the order it will be presumed that the court heard enough evidence to justify those findings. Smith v. Smith, 36 Ill. App.2d 55, 183 N.E.2d 559. Again, if an order gives some clue indicating that a full hearing was had, or if it uses language which imparts that meaning such as "the court was fully advised in the premises," a presumption of a hearing will arise. Smith v. Smith, supra. None of these conditions was present in the order of November 5th. While it might be argued that the trial court must have found that the plaintiff did, in fact, owe to the Gunthorp-Warren Co. the sum of $464.34, no such finding of fact is made in the order and there is nothing from which this court could reasonably infer it.

The order gives us no clue as to what took place at the hearing but simply orders that the defendant pay the printing bill. The order does not contain either a direct or an indirect showing that a hearing was had, or what basis was used to determine the assessment of costs. Under the circumstances it is insufficient to constitute a valid order for payment of the printer's charges and it must be set aside.

The defendant's answer denied his former wife's impoverished financial condition, set out descriptions of property which she owned and alleged that she derived income from these properties. He also denied that he was able-bodied and set out the details of his previous incarceration together with averments that due to this he had been for some time unable to pursue his profession, could not meet his own expenses and was, therefore, unable to pay her fees and costs.

On December 28, 1962, a hearing was held as to attorney's fees. We do have a report of this hearing. Although the defendant's answer was on file, no evidence of any kind was heard. The plaintiff's counsel merely stated that he had "put in a lot of work and the plaintiff has no funds." The court ordered the defendant to pay a fee of $1,500, which was the sum requested in the petition. There was no supporting evidence as to the services the attorney rendered, the value of those services or the propriety of the sum requested. There was no testimony as to the plaintiff's inability to pay as she had asserted in her petition, or as to her ability to pay as the defendant had asserted in his answer, or as to his ability or inability to do so. The defendant protested but the court would not hear him. Excerpts from the transcript reflect what took place:

Plaintiff's counsel: On November 5th I came in on a petition for fees. We put in a lot of work on the appeal and the plaintiff has no funds. She is not able to pay any fees.

Jones: May I be heard before we get into the ...


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