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Gilmore v. Gilmore

OPINION FILED JULY 19, 1979.

MARY JANE GILMORE, PLAINTIFF,

v.

ROBERT LEE GILMORE, DEFENDANT-APPELLANT. — (JEROME BERKSON ET AL., PETITIONERS-APPELLEES.)



APPEAL from the Circuit Court of Cook County; the Hon. CHARLES J. GRUPP, Judge, presiding.

MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

Robert Lee Gilmore, defendant-appellant, brings this appeal from the order and judgment of the circuit court of Cook County granting $21,000 in attorneys' fees to Messrs. Jerome Berkson and Miles N. Beermann, petitioners-appellees, for services performed for Mary Jane Gilmore, plaintiff. The two attorneys represented plaintiff in the prosecution of a partially successful appeal and in post-judgment proceedings initiated by plaintiff's petitions for increase in alimony, for a hearing pursuant to the mandate of the appellate court issued in a prior appeal, and for defendant's payment of plaintiff's extraordinary medical expenses. We affirm the circuit court's ruling.

Plaintiff filed her complaint for divorce against defendant in 1970. On June 6, 1973, the uncontested portions of the original judgment were entered awarding custody of the minor children of the marriage to defendant and committing him to provide for their college educations. Defendant was ordered to maintain $25,000 in life insurance, payable to plaintiff; to pay her extraordinary medical and dental expenses; and to divide equally the furniture from the marital home.

Thereafter, plaintiff appealed from the contested portions of the judgment for divorce granting her $825 per month alimony and awarding sole possession of the jointly owned marital home to defendant until the youngest child reached majority. The home was to be sold at that time and the proceeds divided equally after crediting defendant, from plaintiff's share of the sale proceeds, with one-half of the payments to be made by him for real estate taxes, mortgage payments and capital improvements. Defendant did not file a cross-appeal. This court affirmed the alimony award and reversed and remanded the grant of possession of the home and credits for its maintenance to defendant. (Gilmore v. Gilmore (1975), 28 Ill. App.3d 36, 43, 328 N.E.2d 562, 567-68.) The parties were ordered to pay their own court costs.

Plaintiff then filed in her own name a petition seeking an increase in alimony and for a hearing requesting immediate sale of the marital home. Additionally, she filed a petition for extraordinary medical and dental expenses. Concurrently, her attorneys filed in their own names a petition for fees and subsequently sought to compel defendant to pay them for services rendered on the appeal and in the prosecution of plaintiff's post-judgment petitions. Defendant filed a counterpetition which sought to terminate alimony on the ground that plaintiff had been awarded a disproportionate share of the joint assets in that the formula enunciated in the appellate court opinion, in effect, awarded her alimony in gross.

Plaintiff's petition for an increase in alimony was denied by the trial court and defendant was ordered to pay plaintiff's medical and dental expenses. The court further ordered an immediate sale of the marital dwelling over defendant's objection that the trial court lacked jurisdiction to compel sale of the joint asset absent a complaint for partition.

Defendant's amended motion seeking to strike and dismiss the petition and for supplemental fees was denied prior to trial. The court ordered defendant to pay $21,000 in attorneys' fees for the prosecution of the appeal and plaintiff's post-judgment petitions. The parties were ordered to pay their own costs in both the appellate and trial courts>. Defendant's motion to vacate the order and judgment granting attorneys' fees was denied.

The issues for review are (1) whether the Illinois Constitution and Rules of the Supreme Court permit recovery of attorneys' fees from defendant for the partially successful prosecution of an appeal by the attorneys for plaintiff; (2) whether attorneys' fees can be recovered for the successful prosecution of an appeal regarding property rights; (3) whether attorneys' fees can be recovered from defendant by the attorneys for plaintiff where the petition for fees is not signed by plaintiff but is signed by the attorneys and brought solely for their benefit; (4) whether the allowance of attorneys' fees for the prosecution of an appeal and post-judgment petitions under the Divorce Act conflicts with the provisions of the Illinois Constitution prohibiting special and discriminatory legislation; (5) whether attorneys' fees can be recovered from defendant by the attorneys prosecuting post-judgment petitions on behalf of plaintiff and on their own behalf where plaintiff does not allege her inability to pay such fees; (6) whether attorneys' fees can be recovered in post-judgment litigation where there is no allegation in any petition charging any action or inaction by defendant which necessitates relief; and (7) whether the evidence adduced at trial established that plaintiff was financially able to pay the fees of her attorneys.

The first issue to be discussed is whether the Illinois Constitution and Rules of the Supreme Court permit recovery of attorneys' fees from defendant for the partially successful prosecution of an appeal by the attorneys for plaintiff.

Appellant argues that the Supreme Court of the State of Illinois has not provided by rule for the payment of attorney's fees for an appeal prosecuted by a party litigant in a divorce action or any other action; therefore, the right to such payment from defendant does not exist as a matter of law. We disagree.

In relevant part, section 15 of the Divorce Act (Ill. Rev. Stat. 1975, ch. 40, par. 16) provides the following:

"In all cases of divorce the court at any time after service of summons and proper notice to the husband or wife may require the husband to pay to the wife or pay into the court for her use or may require the wife to pay to the husband or pay into the court for his use during the pendency of the suit such sum or sums of money as may enable her or him to maintain or defend the suit; * * *. * * * In case of appeal by the husband or wife, the court in which the decree or order is rendered may grant and enforce the payment of such money for her or his defense * * * as to such court shall seem reasonable and proper.

In all actions for divorce in which the court grants to the wife or husband, as the case may be, attorney's fees in the prosecution or defense of the action, as the case may be, such fees may, in the discretion of the court, be made payable in whole or in part, to the attorney entitled thereto, and judgment may be entered and execution levied accordingly."

Appellees argue that the court properly awarded their fees for services to plaintiff in prosecuting the appeal and several post-judgment petitions in her behalf. Bramson v. Bramson (1958), 17 Ill. App.2d 87, 149 N.E.2d 399, lends support to this position. In Bramson, the husband argued that whereas the awarding of fees would have been proper for the defense of the appeal, they were not properly awarded for the prosecution of the appeal. (Bramson, at 97.) The court, in Bramson, stated:

"There is not a word in Section 15 indicating that the legislature intended to prohibit compensation for appellate services in procuring the reversal of an erroneous decree at the final hearing ...


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