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Van Fleet v. Van Fleet

OPINION FILED JULY 13, 1977.

FRED VAN FLEET, PLAINTIFF-APPELLANT,

v.

BEVERLY B. VAN FLEET, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Warren County; the Hon. STEPHEN G. EVANS, Judge, presiding.

MR. PRESIDING JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:

This is an appeal from an order of the Circuit Court of Warren County directing plaintiff to pay certain sums as attorney's fees and costs to defendant, with a cross-appeal assigning error on the part of the trial court in not allowing the complete amount of attorney's fees requested by the attorney for defendant.

Fred Van Fleet commenced a proceeding for divorce against defendant Beverly Van Fleet on May 5, 1975, and charged defendant with mental cruelty. In a discovery deposition taken on December 22, 1975, plaintiff admitted that he had participated in sexual intercourse with a woman (other than defendant) whom he had known for 2 1/2 years and that the most recent occurrence of extramarital sex was within a week of the deposition. On January 29, 1976, defendant filed a motion for summary judgment in favor of defendant which was granted by the court on February 20, 1976. At the time of the entry of summary judgment the trial court took under advisement the issue of attorney's fees and costs to be awarded to defendant.

On August 26, 1976, a hearing was held in the trial court on defendant's petition for attorney's fees and costs. Testimony on behalf of defendant showed that the net worth of the defendant in solely and separately owned property totaled approximately $177,000 and (by stipulation of the parties) plaintiff's net worth was in excess of $200,000. There was some indication that such net worth was considerably in excess of the $200,000 figure. It appeared at the hearing that while defendant's attorneys had not contemporaneously compiled time records of the time spent in the representation of the defendant in this cause, defendant's attorney testified that by reviewing the docket entries of the court and the files of his law firm in the matter, he was able to compute the attorney's work time on the case. He determined that it was between 60 and 65 hours, and stated that his reasonable hourly rate of $75 produced a total payable for such attorney's fees of at least $4,500. Defendant also testified that he had expended the sum of $273.20 for court costs, sheriff's costs, and court reporter fees.

Following consideration of the issue under advisement, the trial court on September 29, 1976, entered an order directing plaintiff to pay attorney's fees in the amount of $2,750 and costs in the amount of $273.20 to be paid to defendant.

• 1 It is initially argued by plaintiff that the trial court abused its discretion in awarding attorney's fees and costs to defendant. On this issue we have stated in Lane v. Lane (3d Dist. 1976), 40 Ill. App.3d 229, 233, 352 N.E.2d 19:

"The general rule regarding the allowance of attorney fees is that the awarding of such fees in a divorce proceeding rests in the sound discretion of the trial court and will not be interfered with unless such discretion is clearly abused. (Canady v. Canady, 30 Ill.2d 440, 197 N.E.2d 42.)"

In support of plaintiff's contention several cases are cited including Goldberg v. Goldberg (1st Dist. 1975), 30 Ill. App.3d 769, 332 N.E.2d 710, for a recital of the "`settled rule that to justify allowance of attorneys fees in a divorce suit, the party seeking this relief must show financial inability to pay and the ability of the other spouse to do so * * *'" (30 Ill. App.3d 769, 773). Plaintiff argues that due to the substantial financial position of defendant, the granting of attorney's fees to defendant was an abuse of the trial court's discretion. In awarding the attorney's fees, however, the trial court referred to the principle announced in Albert v. Albert (1st Dist. 1972), 10 Ill. App.3d 539, 541, 294 N.E.2d 695, where the court stated:

"[T]he significant circumstance of the case was not the relative ability of the parties to pay, each of whom had sufficient means, but rather the litigiousness of [plaintiff]."

Even though both parties in the Albert case were financially capable of paying attorney's fees, the trial court there ordered the husband to pay two-thirds of the wife's attorney's fees, and the reviewing court held that it was an abuse of the trial court's discretion not to award the wife the complete amount of her attorney's fees. In the Albert case the court stated (10 Ill. App.3d 539, 542):

"[W]e believe the defendant in the instant case may make use of whatever procedures are open to him under the law, but if there is a lack of good faith he is under an obligation to pay for the resulting litigation. The court found the defendant to be at fault and granted the divorce to his wife. His motions to strike contained the untrue allegation that the parties were living together as husband and wife, and his counterclaim for divorce was not pursued in good faith and contained untrue allegations concerning his wife's fitness as a mother. He caused the extended litigation and, in view of the record in this case, it was an abuse of discretion for the trial court not to grant the plaintiff the full amount of her attorneys' fees."

• 2 It is noted that the trial court in the instant case determined that plaintiff did not pursue his complaint for divorce in good faith, and in light of plaintiff's admitted adultery and the record in this case, we are unable to conclude that the determination of the trial court and the consequent award of attorney's fees to defendant was an abuse of the trial court's discretion. We believe it was a proper exercise of the court's discretion on the basis of the record.

• 3 Plaintiff makes a further argument that the record in the instant case does not support the award of attorney's fees to defendant's attorneys because the attorneys failed to keep accurate and contemporaneous records of their time. In Welsh v. Welsh (1st Dist. 1976), 38 Ill. App.3d 35, 39-40, 347 N.E.2d 512, the appellate court said:

"The matter of fixing attorney's fees is one of the few areas in which a trial judge may `rely on the pleadings, affidavits on file and his own experience * * *.' (Kaufman v. Kaufman (1974), 22 Ill. App.3d 1045, 1051, 318 N.E.2d 282.) `It has been the rule in this state for many years that courts> will not be bound by the opinion of attorneys as to what constitutes reasonable attorneys' fees. The courts> may use the knowledge they have acquired in the discharge of professional duties as to the value of legal services rendered.' (Richheimer v. Richheimer (1965) 59 Ill. App.2d 354, 365, 208 N.E.2d 346.) In reviewing the record before us we are obliged to consider the discretionary ...


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