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Gasperini v. Gasperini

OPINION FILED FEBRUARY 10, 1978.

SOPHIE GASPERINI, PLAINTIFF-APPELLEE,

v.

ERNEST GASPERINI, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. EDWARD E. PLUSDRAK, Judge, presiding.

MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

This appeal concerns the award of fees to plaintiff's attorneys in her divorce action against defendant. The trial court awarded fees of $11,251 to be paid by defendant to the attorneys; namely, $10,317 to Nathan Gomberg, and $934 to Allan Neiderman, and entered judgment thereon. Defendant appealed from the order and judgment. Subsequently, on the petition of plaintiff, the trial court awarded Gomberg $1500 to represent plaintiff on this appeal. Defendant challenges the awards of fees before this court. We reverse in part, and affirm in part as modified. The pertinent facts follow.

Plaintiff and defendant were married on May 15, 1970. On March 5, 1973, plaintiff retained attorney Niederman to represent her in this divorce action, and the complaint for divorce was filed on April 25, 1973. On October 3, 1973, attorney Gomberg entered the case as co-counsel for plaintiff. He performed the bulk of the work subsequently connected with this action.

After the defendant filed his answer and a counterclaim for divorce, an agreed order of attempted reconciliation was entered and all proceedings were suspended. On January 22, 1974, the matter was placed on the dormant calendar. On January 24 Gomberg and Niederman received $2000 in temporary fees for their work to date on the case. On April 2, 1974, the case was removed from the dormant calendar and set for trial.

A partial decree of divorce was entered on December 19, 1974, dissolving the marriage but continuing until a later date determinations concerning property settlements and attorneys' fees. Gomberg filed a petition for fees on December 15, 1975, requesting $15,425. Niederman filed a petition on January 8, 1976, requesting $5462.50. The requested fees aggregated $20,887.50. Defendant filed separate answers denying the material allegations of the petitions and prayed that the relief be denied. Hearings were held on each petition, at which Niederman, Gomberg and their witnesses testified.

Thereafter, on February 13, 1976, a supplemental decree was entered which inter alia awarded plaintiff $24,884.76 and defendant $73,390.38 from specified funds on deposit; allowed defendant credit for temporary alimony paid subsequent to December 20, 1974; ordered that each party keep as his or her sole property any and all of the stocks, bonds, real estate and personal property in their respective possession; and reserved alimony for plaintiff. It further provided that having heard testimony and arguments and having received documents in evidence thereon, the court was taking the request for fees under advisement with an order to issue at a later date.

On March 19, 1976, after reviewing the proceedings had concerning attorneys' fees, the trial court found that Gomberg was entitled to a fee of $12,000 plus $312.35 for costs. However, the court determined that counsel had previously received a retainer of $350 and the further amount of $1333 as a portion of the temporary fees previously allowed and paid. Accordingly, Gomberg was awarded the balance of $10,317 for fees plus the foregoing costs. The court further found that Niederman was entitled to fees of $2100 and had received $500 as a retainer and $666 from the temporary fees previously allowed. Based thereon Niederman was awarded the balance of $934. A second supplemental decree was entered on March 19, 1976, ordering defendant to pay the fees and costs so determined and further ordered judgment and execution thereon.

Defendant on April 14, 1976, filed his notice of appeal from the award of fees. Subsequently, the trial court entered an order pursuant to plaintiff's petition requiring defendant to pay Gomberg $1500 in fees for the defense of defendant's appeal.

OPINION

• 1 The general rule in divorce cases is that to justify allowance of attorneys' fees the party seeking the relief must show financial inability to pay and the ability of the other spouse to do so. (Kaufman v. Kaufman (1974), 22 Ill. App.3d 1045, 318 N.E.2d 282; Berg v. Berg (1967), 85 Ill. App.2d 98, 229 N.E.2d 282.) We disagree with defendant's contention that no such showing was made in the instant case.

While neither plaintiff nor defendant testified at the hearings on fees, the trial court had previously heard evidence concerning the respective assets of the parties in determining what property settlement should be entered. Based on this knowledge the trial court concluded as follows concerning the relative abilities of the parties to pay fees:

"Now as to the final decision of the litigants, plaintiff wife is fifty-five and earns eight thousand as a gross earnings per year. She receives some twenty-one thousand dollars as part of the marital property which I had ruled upon, and the testimony is that she has a two-flat building which was occupied by the parties during their married life, and according to one of the reports, her net income from that building was three hundred dollars per year.

The defendant is a stationery engineer, and he had a [sic] gross wages of nineteen thousand three hundred fourteen dollars. He has a six-flat building with a gross income of ten thousand six hundred and sixty dollars. Of the money that was in dispute here, he was awarded seventy thousand dollars and it appears that the Defendant has other accounts which were not contested and which amount was not determined, and the interest on those deposits was not ascertained.

This Court finds that the defendant, based on the record, is financially more able to pay attorney's fees than the Plaintiff. The Plaintiff cannot exhaust her financial ...


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