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Filko v. Filko

JUNE 12, 1970.




Appeal from the Circuit Court of Cook County; the Hon. RAYMOND P. DRYMALSKI, Judge, presiding. Affirmed.


Rehearing denied July 21, 1970.

This is an appeal from a decree of the Circuit Court of Cook County in a proceeding filed as an action for separate maintenance and, in the alternative, for divorce by plaintiff Muriel G. Filko as against defendant Vladimir Filko.

The record discloses that the parties to this cause through their attorneys negotiated for about two years and finally reached an oral agreement for settlement which was agreed to by both parties and confirmed by testimony in open court before the trial judge. Before the written decree was entered, the plaintiff Muriel G. Filko retained a new attorney who appeared at the time the decree was to be entered. He objected, on behalf of plaintiff, to the entry of the decree. The trial court did not allow the plaintiff's new attorney to enter an appearance as plaintiff's counsel at that time. Thereupon, the decree was entered. Plaintiff's new attorney, within a period of 30 days, later moved to vacate the decree. Such motion was denied.

Plaintiff's action for separate maintenance or, in the alternative, for a divorce, was filed in June 1967. Negotiations with respect to this domestic conflict were carried on for approximately two years on questions of property settlement, alimony and support payments. When the cause came to trial on April 14, 1969, plaintiff was represented by attorney Salita. Plaintiff had been represented previously by two different attorneys in the proceeding. Following nearly six hours of conferences on April 14, 1969, in which the parties, their attorneys and the trial judge participated in some manner, an agreement was reached by the parties. Plaintiff and her attorneys acquiesced in the terms of the agreement. The cause then proceeded as a divorce case, and proof was made by plaintiff of the physical cruelty by defendant. Each provision of the agreed property settlement and the proposed provisions of the decree for support, alimony, and other provisions were verified in testimony given by plaintiff in open court on April 14, 1969.

By reason of the fact that the agreement was reached on April 14, 1969 (the day of the hearing) the decree had not been prepared so that the parties met again on April 25, 1969, before the trial court, for the purpose of having the written decree entered. At this time, plaintiff appeared in open court with the new attorney, a Mr. Collins, and attorney Collins requested that he be substituted as attorney for plaintiff in place of Mr. Salita. Mr. Salita refused to withdraw and the trial judge refused to substitute Mr. Collins as an attorney for plaintiff at this time. The divorce decree, which had been prepared by the attorney for defendant and examined by Mr. Salita, was presented, and plaintiff's new attorney, although not her attorney of record, objected to the entry of the decree. This attorney, Mr. Collins, offered to present proof that plaintiff was emotionally imbalanced when she orally consented to the decree and that she did not understand the provisions of the decree. The court permitted the new attorney to make this offer of proof. The attorney also offered to show that the 18-year-old son of the parties to the divorce action was suffering from a permanent mental illness as a result of taking LSD and that this son was inadequately provided for in the decree. At this hearing, attorney Collins also offered to prove that defendant was worth more financially than the facts previously presented disclosed and that, as a result, the plaintiff's property settlement was inadequate. The attorney stated that he had information to show that defendant owned 37 1/2% of a company that made one million dollars in the prior year. The attorney also stated that plaintiff withdrew her consent to the decree. The trial judge stated several times that he would permit Mr. Collins to make his record, but would not permit him to introduce any testimony in the state of the record. The petition which was prepared and later filed by attorney Collins set forth the objections to the entry of the decree and was made a part of the transcript of the hearing of April 25, 1969. The decree was entered by the Judge on April 25, 1969, following the discussion between the attorneys and the trial judge. Thereafter, on April 29, 1969, there was a hearing fixing fees for plaintiff's attorney, Mr. Salita.

On May 7, 1969, attorney Collins filed a motion to vacate the decree for divorce alleging that the written decree varied from the oral agreement of the parties in several respects such as the alimony provisions, insurance policies for the two children's education, and provisions as to defendant leaving a portion of his estate to the two children of the marriage. This petition also repeated the matters relating to the 18-year-old son of the parties and the alleged understatement of the financial condition of the defendant. A hearing on the motion to vacate was held on May 15, 1969, with attorney Collins, attorney Salita, and defendant's attorney all present. While no testimony was permitted, attorney Collins made an offer of proof as to his allegations in the motion to vacate the decree. The motion to vacate the decree was denied.

The first question before this Court is whether the trial judge committed reversible error in not permitting plaintiff's new attorney, Mr. Collins, to file his appearance on April 25, 1969, at the time the hearing was held to have the written decree entered. Plaintiff contends, in this connection, that she had a right to be represented by an attorney of her own choosing and that she could substitute attorneys at any time. It was the contention of plaintiff that when the court continued to recognize Mr. Salita as attorney for the plaintiff, the court committed reversible error. On appeal in this Court, plaintiff cites a number of Illinois cases in support of the contention that plaintiff had the unlimited right to retain new counsel. In Price v. Seator, 337 Ill. App. 248, 85 N.E.2d 848, at 258, the court indicated that a litigant has the unquestioned right to discharge an attorney at any time, with or without cause, subject only to his obligation to compensate an attorney without fault for services theretofore rendered. This case, however, does not deal specifically with the right to substitute attorneys but rather the question of whether an attorney had a right to compensation after being discharged by the client. There were similar considerations in Pressney v. Pressney, 339 Ill. App. 371, 90 N.E.2d 119, and Miller v. Solomon, 49 Ill. App.2d 156, 199 N.E.2d 660.

The cases in this State, however, do indicate that the right to substitute counsel is not an absolute right. As pointed out in the case of People v. Franklin, 415 Ill. 514, 114 N.E.2d 661, where the court denied the motion for substitution of a new attorney for defendant and proceeded to trial (at pages 516-17):

"The right of a client to discharge his attorney at any time, or to substitute attorneys at any stage of a proceeding either with, or without cause, is well established. (See: 7 CJS, Attorney & Client, sec 119.) It is not, however, a right so absolute that its exercise may not be denied where it will unduly prejudice the other party or interfere with the administration of justice. To hold otherwise would enable a defendant in a criminal proceeding such as this, to delay his trial until he had exhausted his capabilities of hiring different counsel and to thus harass and delay the effective prosecution of crime."

In the case of People v. Franklin, supra, the court concluded that defendant's case was not prejudiced and that there was no abuse of discretion in the refusal of the trial court to allow the substitution of attorneys before proceeding with the trial. To the same effect is People v. Mueller, 2 Ill.2d 311, 118 N.E.2d 1. We consider it significant that both the Franklin and Mueller cases were criminal cases and that in such cases the right of the accused to the attorney of his choice is guarded even more closely than in civil matters. A trial judge has discretion in allowing substitution, and if substitution of counsel would unduly prejudice the other party or interfere with the administration of justice, the decision of the trial judge in refusing to allow such substitution should be upheld unless there is an abuse of such discretion. The court should also give consideration to whether the party seeking the substitution would suffer by reason of the prosecution of the lawsuit through a refusal to allow the substitution.

In applying these tests to the case before us, it is clear that the trial judge did not abuse his discretion in refusing to allow plaintiff to substitute counsel on April 25, 1969, the time when the decree was to be entered. An agreement involving the divorce decree had been agreed upon orally by the plaintiff while she was represented by Mr. Salita. There was no showing that Mr. Salita was at fault in any way at the time in his representation of the plaintiff. Everything which was required to be done had been completed in the divorce action and if a decree had been ready it would have been entered at such time. All that was required to conclude the proceeding, which had been orally agreed upon and stipulated to in open court by the parties, was the entry of the written decree. To permit a new attorney to step in and represent the plaintiff at this stage of the litigation and thereby attempt to withdraw plaintiff's consent, would obviously interfere with the administration of justice and would be unfair to the defendant. Unless a plaintiff could show some valid reason for substitution of attorney at this stage of the proceedings, there would be no basis for setting aside the determination of the trial judge in refusing the request for substitution of attorneys.

In Savich v. Savich, 12 Ill.2d 454, 147 N.E.2d 85, a request for substitution of attorney had been made before the hearing began and the old attorney agreed to withdraw. Plaintiff in that case stated that she did not trust her present attorney but the court made her proceed with the old attorney even though the old attorney offered to withdraw. In that case the trial judge was properly reversed for failing to allow the substitution. In the cause before us, there is no showing of any prejudice to plaintiff by refusal of the court to allow her new attorney to file his appearance and proceed as counsel for plaintiff. There was no showing of any misconduct on the part of plaintiff's attorney, Mr. Salita. Plaintiff's new attorney did not show where he could have presented anything new which would have aided plaintiff's case at the stage of the litigation when he sought to be substituted. Plaintiff had already consented to the terms of the decree in open court and she could not change her consent merely by changing attorneys (In re Estate of Moss, 109 Ill. App.2d 185, 248 N.E.2d 513). The trial judge allowed Mr. Collins to make a record at the time the decree was entered and to make an offer of proof. He was also permitted to appear later at a hearing on fees and eventually he was substituted as plaintiff's attorney when he filed a motion to vacate the decree. The attorney she desired, therefore, participated as attorney for plaintiff and did virtually anything he could have done if he had been subsituted as plaintiff's attorney of record on April 25, 1969. In view of the record and on the basis of the Franklin case we do not feel that this Court would be justified in interfering with the discretion exercised by the trial court since there was no showing of prejudice to plaintiff in this cause.

We also feel that there was no error in the entry of the decree in this cause in light of the objections made by Mr. Collins as counsel for plaintiff. Plaintiff offered to prove that, at the time she orally assented to the decree while testifying in open court, she was in the state of emotional imbalance and did not understand the settlement. This contention was general in nature and was not sufficient cause to require the trial judge to refuse to enter the decree. The trial judge personally talked for several hours to plaintiff on the day she testified and gave her verbal agreement to the proposed decree. The trial judge stated for the record, "I want the record to show that I talked at great length with Mr. Filko, that I talked at great length with Mrs. Filko, prior to the hearing." Based upon the extended conversations which the trial judge had with the plaintiff on the day of the hearing and his observation of Mrs. Filko, we do not believe that the objection of plaintiff that she was emotionally imbalanced at the time she testified could be an appropriate basis for a contention that the trial judge had abused his discretion in entering the decree. The record of her testimony shows no indication ...

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