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In Re Marriage of Erby

OPINION FILED MAY 16, 1980.

IN RE MARRIAGE OF MARY ERBY, PETITIONER-APPELLANT, AND EUGENE C. ERBY, RESPONDENT. — (WARREN KRINSKY, APPELLEE.)


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

MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Petitioner appeals from an order of the circuit court denying her section 72 petition (Ill. Rev. Stat. 1977, ch. 110, par. 72) to vacate the fee order awarded to petitioner's attorney against the petitioner in an action for dissolution of marriage.

On appeal she contends that: (1) section 508(a) of the Illinois Marriage and Dissolution of Marriage Act constitutes special legislation in violation of article IV, section 13 of the Illinois Constitution; (2) the trial court erred in assessing fees against her; and (3) the trial court erred in not granting the section 72 petition to vacate the fee order.

On November 29, 1977, petitioner Mary Erby filed a petition for a dissolution of marriage. Her attorneys filed additional petitions on her behalf, including those for exclusive possession of the marital home and injunctional relief against respondent Eugene Erby. About three months later, on February 23, 1978, attorney Warren Krinsky (the appellee herein) was granted leave to substitute as attorney for petitioner, replacing her initial counsel. That day, in response to a motion previously filed by respondent for custody of the Erbys' children, Krinsky filed an answer, denying that respondent was a fit person, and requested that the motion be denied.

On March 14, 1978, an agreed order drafted by Krinsky was entered providing $90 per week temporary child support, reserving maintenance and attorney's fees and requiring respondent to pay the mortgage, taxes and insurance on the marital home.

Then, on June 14, 1978, Krinsky filed a petition for leave to withdraw as attorney for petitioner, and for the court to set his attorney's fees. The court allowed Krinsky to withdraw, and set the hearing on the motion for attorney's fees for July 24, 1978.

Accordingly, Krinsky sent a copy of the order to petitioner, accompanied by a letter dated June 14, 1978, which stated:

"IT IS EXTREMELY URGENT THAT YOU RETAIN COUNSEL TO REPRESENT YOU AND BE PREPARED TO PROCEED ON JULY 24TH. UNDER NO CIRCUMSTANCES SHOULD YOU FAIL TO BE PRESENT ON THAT DATE."

Meanwhile, on July 3, 1978, respondent petitioned the court to dismiss the suit for dissolution for petitioner's failure to appear at depositions scheduled for April 25, 1978, and June 23, 1978. The court ordered on July 3, 1978, after "due notice mailed to petitioner" that the petition for dissolution of marriage was dismissed with prejudice. No notice of the hearing for dismissal was sent to Krinsky.

A hearing was held on July 24, 1978, to determine the attorney's fees. Present at the hearing were Krinsky and counsel for respondent. Krinsky testified to over 12 hours of service on petitioner's behalf which included the following activities: preparation of petitions, verified pleadings and orders, court appearances, conferences with his client, telephone calls with his client and opposing counsel, review of books and records, and negotiations toward a disposition of the matter. The court awarded Krinsky $900 for his services to petitioner, $350 of which was payable by respondent, and petitioner owing the balance of $550. Because petitioner had earlier paid Krinsky $200, she was ordered to pay the $350 difference. The court also dismissed "the cause, including all injunctional orders."

In a letter dated July 26, 1978, Krinsky advised petitioner of the attorney's fees awarded him by the court two days earlier, enclosed a copy of the order, and requested payment of the $350 due on her account.

On September 6, 1978, Krinsky petitioned the court for judgments of $350 against each party and for execution to issue because neither party had paid any fees from the order of July 24, 1978. The requested order was issued.

Petitioner, after obtaining new counsel, filed a petition to vacate the fee order on December 1, 1978. Three days later, Krinsky filed an answer to the petition. On February 17, 1979, the court granted leave to petitioner to amend the petition, and denied the petition as amended ...


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