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In Re Marriage of Justema



APPEAL from the Circuit Court of Du Page County; the Hon. LEWIS V. MORGAN, JR., Judge, presiding.


Respondent, Elmer J. Justema, Jr., appeals from a judgment entered in favor of Attorney Alexander J. Burek for $10,000 awarded as temporary attorney's fees for representation of petitioner, Corrine Justema. The question presented by this appeal is whether the Illinois Marriage and Dissolution of Marriage Act authorizes the court to order payment of temporary attorney's fees to a party for services which have not yet been rendered. We conclude it does not and reverse the judgment of the circuit court.

Corrine Justema filed a petition for dissolution of her marriage to Elmer J. Justema, Jr., in which she sought temporary and permanent costs and attorney's fees, together with other relief. Petitioner alleged she lacked sufficient financial resources to provide legal services for herself and that respondent had the ability to do so having under his control assets worth approximately one million dollars, the exact nature of which she had no knowledge. On July 12, 1979, she presented a petition for an injunction, temporary maintenance and also for temporary attorney's fees to enable her to prepare for trial, have discovery depositions taken and appraisals made of the assets of the parties. At the hearing of the temporary attorney's fees question held July 24, it was disclosed that the respondent was a physician with an income in 1977 exceeding $200,000, although he stated it had decreased recently. Respondent testified he also had interests in real estate, commercial endeavors and investments in Illinois, Florida and Texas, together with substantial debts. The record does not specify the values of these property interests or present a clear view of respondent's net worth or liquidity at the time of the hearing. Petitioner testified she had approximately $10,500 in savings accounts and received temporary maintenance payments of $2,000 each month from respondent.

Counsel for petitioner acknowledged he had received a retainer of $1,000 from her but informed the trial court that another $10,000 was required to prepare for trial because of the need to investigate and appraise respondent's varied assets and business interests. No evidence was presented as to the legal services which had already been performed, the time expended in doing so and the fees necessarily incurred by petitioner to this point in the litigation. (See In re Marriage of Reczek (1981), 95 Ill. App.3d 220, 420 N.E.2d 161.) Petitioner's request for temporary attorney's fees was directed prospectively to meet the anticipated costs of future legal services to be rendered in this case. The trial court granted petitioner's request, and on July 24 entered an order directing respondent to pay $10,000 to petitioner's attorney, Alexander J. Burek, for temporary attorney's fees.

On April 17, 1980, respondent filed a motion to vacate the order for fees and, alternately, requested the trial court to modify it "to make it a judgment order in appealable form," noting the temporary order entered July 24, 1979, was interlocutory and not appealable. The court denied respondent's motion to vacate, but entered judgment in favor of attorney Burek and against respondent for $10,000, with execution to issue forthwith, and further found there was no just reason for delaying enforcement or appeal of the judgment. Respondent filed a notice of appeal on May 14, 1980, from the order for attorney's fees entered July 24, 1979, and the orders of April 17, 1980, denying vacation and entering judgment against him.

• 1 We note initially that the order entered July 24, 1979, awarding temporary attorney's fees was not final and was therefore not appealable. (See In re Marriage of Meyer (1981), 92 Ill. App.3d 679, 680, 416 N.E.2d 91, 93; see also Kuhns v. Kuhns (1968), 101 Ill. App.2d 258, 243 N.E.2d 460 (abstract); Hirsh v. Hirsh (1967), 81 Ill. App.2d 354, 225 N.E.2d 42.) Nor was the order entered April 17, 1980, denying respondent's motion to vacate that interlocutory order appealable. (See Danville Teachers Federal Credit Union v. Burell (1972), 6 Ill. App.3d 94, 284 N.E.2d 729.) The judgment entered on April 17 in favor of attorney Burek upon which execution was directed to issue (see Ill. Rev. Stat. 1979, ch. 40, par. 508(b)), although based upon the interlocutory order for temporary fees, did dispose of the rights of the parties to that extent and must be considered as final and appealable. (See Johnson v. Northwestern Memorial Hospital (1979), 74 Ill. App.3d 695, 697, 393 N.E.2d 712, 713.) An anomaly is presented in this situation as on final determination of the case the trial court may well find that petitioner is not entitled to any attorney's fees or, too, the parties may reconcile before the fees have been earned by Attorney Burek. Additionally, respondent arguably could be said to have consented to the entry of the judgment against himself, thus barring appeal. (See Jackson v. Ferolo (1972), 4 Ill. App.3d 1011, 283 N.E.2d 247; Rodriguez v. Chicago Transit Authority (1965), 58 Ill. App.2d 150, 206 N.E.2d 828.) We have concluded, however, that we will consider the merits of this appeal.

Section 508 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 508) provides in pertinent part as follows:

"(a) The court from time to time, after due notice and hearing, and after considering the financial resources of the parties, may order either spouse to pay a reasonable amount for his own costs and attorney's fees and for the costs and attorney's fees necessarily incurred by the other spouse, which award shall be made in connection with the following:

(1) The maintenance or defense of any proceeding under this Act.

(5) The costs and legal services of an attorney rendered in preparation of the commencement of the proceeding brought under this Act.

(b) The court may order that the award of attorney's fees and costs hereunder be paid directly to the attorney, who may enforce such order in his name, or that they be paid to the revelant party. Judgment may be entered and execution levied accordingly." (Emphasis added.)

• 2 It is well established in Illinois that attorney's fees may be awarded to a litigant only when they are expressly authorized by statute or by agreement of the parties. (Thornton v. Illinois Founders Insurance Co. (1981), 84 Ill.2d 365, 418 N.E.2d 744; Meyer v. Marshall (1976), 62 Ill.2d 435, 442, 343 N.E.2d 479, 483.) The authority of a court to decide matters relating to the dissolution of a marriage is limited to its specific statutory grant, especially when the court is asked to award attorney's fees. McArdle v. McArdle (1977), 55 Ill. App.3d 829, 837, 370 N.E.2d 1309, 1315; Rosenbaum v. Rosenbaum (1976), 38 Ill. App.3d 1, 19, 349 N.E.2d 73, 87.

• 3 Whether prospective temporary attorney's fees may be awarded under the Illinois Marriage and Dissolution of Marriage Act has not been considered by the reviewing courts> of Illinois. Respondent contends that the past tense language of the statute which permits the court to award costs and attorney's fees "necessarily incurred" and for "costs and legal services of an attorney rendered in preparation of the commencement of the proceedings" does not grant authority to award advanced unearned fees for legal services not yet performed. Petitioner looks to the prior divorce act and cases decided under it as supporting the fee award made to her attorney. Section 15 of the former divorce act provided in part:

"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 ...

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