APPEAL from the Circuit Court of Du Page County; the Hon.
PHILIP F. LOCKE, Judge, presiding.
MR. PRESIDING JUSTICE GUILD DELIVERED THE OPINION OF THE COURT:
The sole question presented in this case is whether the trial court improperly awarded attorney's fees and costs under the provisions of section 41 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 41) of $500 to the defendant, Richard M. Morris. Section 41 provides as follows:
Allegations and denials, made without reasonable cause and not in good faith, and found to be untrue, shall subject the party pleading them to the payment of reasonable expenses, actually incurred by the other party by reason of the untrue pleading, together with a reasonable attorney's fee, to be summarily taxed by the court at the trial."
In its order, the trial court made an express written finding pursuant to Supreme Court Rule 304(a) (Ill. Rev. Stat. 1975, ch. 110A, par. 304(a)).
On November 7, 1974, Gary D. Harris and Sylvia S. Harris (hereinafter petitioners), the natural mother of Cynthia Lee Morris and Richard M. Morris II, filed their petition to adopt the two minors. Service upon the defendant, Richard M. Morris, the natural father of the two minors, was had by publication and a copy of the summons was mailed to him at his address in Iowa on December 17, 1974, by the Clerk of the Circuit Court of Du Page County. On January 8, 1975, the defendant contacted his attorneys who in turn contacted the attorneys for the petitioners. The attorneys for the petitioners called defendant's counsel and advised them that the matter had been set for default on January 14, 1975. One of the attorneys for the defendant requested a continuance and the attorneys for the petitioners refused to agree to same. On January 14 the respective attorneys appeared in the circuit court of Du Page County and the trial judge entered an order giving the defendant until February 12, 1975, to answer. On the same date defendant's attorneys filed a petition for attorney's fees from petitioners for failure of the petitioners' attorneys to accede to a continuance, stating "that the aforesaid actions of the attorneys for the Petitioner constitute undue harassment and are taken in bad faith and without good cause therefor." It is to be noted there is no allegation in the petition for attorney's fees that any of the allegations in the petition for adoption were in bad faith, untrue or without reasonable cause as required by section 41 of the Civil Practice Act. Rather, the petition for fees merely stated that the actions of the attorneys in refusing to agree to a continuance constituted bad faith. On February 11, 1975, the order to answer was continued to February 21, 1975. The defendant did not plead and on March 18, 1975, the attorneys for the petitioners filed a motion for a default for failure of the defendant to plead to the petition for adoption. On March 18, 1975, attorney Fred Louis, who was one of the attorneys in the original petition for attorney's fees, filed a petition, which was subsequently granted, requesting that he alone be substituted as attorney for the defendant. On this date Fred Louis then filed a motion to strike the adoption petition, praying that the court dismiss the petition for adoption and award defendant $500 as attorney's fees and court costs. In this motion it was alleged that:
"Petitioners have alleged material facts that are untrue and are known to Petitioners to be untrue, thereby deceiving and misleading the Court as to the facts herein, the true facts being set forth in Exhibits A through G, true and correct copies of which are attached hereto, and included herein, which are signed by the Respondent and which demonstrate the inaccuracy of Petitioners allegations."
On that date the matter was set for hearing on April 8, 1975. On April 17, 1975, the petitioners filed an amended petition for adoption and the matter was continued for hearing to June 11. On May 29, by agreement, the matter was continued to June 20 and, finally, on June 9, 1975, the attorney for the defendant filed his answer to the amended petition. On June 20, 1975, the trial court heard attorney Louis' petition for attorney's fees and costs. At this hearing the attorney for the defendant stated that he had requested a continuance to which petitioner's attorney had refused to accede; that the court granted the continuance; and that:
"There is no rationale in the pleadings to explain petitioners' action and justifying the refusal to grant this continuance. It was not a matter of misunderstanding, but rather was calculated, I take it, to inflict economic punishment upon my client."
He further urged the court to assess costs because he charged the defendant for his appearance in court to obtain the continuance. The attorney for the defendant also stated, "under Rule 41 the only stated reason that the costs and expenses may be recovered * * * is if there are allegations of an untrue nature, which appear in the pleadings * * *." At that time the attorney for the defendant commented upon paragraph 9(a) of the petitioners' original petition for adoption which stated:
"(a) RICHARD M. MORRIS has never exercised nor attempted to exercise his right to visit the children or to have custody of the children during summer vacations pursuant to the decree of divorce dated July 7, 1967."
Mr. Louis pointed out that, in fact, the children were with his client during the month of July 1969 as well as on other occasions prior to that time, as evidenced by the defendant's statement. In his brief the attorney for the defendant further comments upon paragraph 9(b) of the original petition, which reads as follows:
"(b) RICHARD M. MORRIS has defaulted in his obligation to pay $50.00 per month per child pursuant to the decree of divorce dated July 7, 1967. The cumulative sum of such unpaid obligation now exceeds $5,000.00."
In his brief defendant's attorney refers us to the revision of this allegation found in the amended petition, wherein it is asserted that since the divorce defendant ...