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People Ex Rel. Donelson v. Cowling

OPINION FILED NOVEMBER 21, 1984.

THE PEOPLE EX REL. DONELSON, PETITIONER-APPELLEE,

v.

MICHAEL COWLING, RESPONDENT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. John P. McGury, Judge, presiding.

JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Respondent appeals from an order denying his request that attorney's fees be assessed against the State's Attorney's Office pursuant to section 2-611 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-611), for statements made within a petition for rule to show cause and a motion to vacate which respondent alleged were untrue and made without reasonable cause.

We affirm and pertinent to our decision are the following.

Upon respondent's stipulation that he was the father of petitioner Letitia Donelson's children, Kyle and Jillian, he was ordered on October 5, 1982, to pay her the sum of $100 per month as child support. She requested a rehearing on November 4, 1982, alleging that respondent's financial affidavits concerning his ability to pay for support contained statements of questionable veracity. On April 5, 1983, after a rehearing, the court entered its modified order directing that respondent pay $125 monthly, retroactive to September 1, 1982. On April 13, 1983, respondent paid the clerk of the circuit court $1,000 as payment in full for September through April and made a further payment on May 24, 1983, of $125 as ordered. Letitia cashed the clerk's $1,000 check on May 25, 1983.

On June 1, 1983, the State's Attorney filed a petition requesting that the court issue to respondent a rule to show cause why he should not be held in contempt for his failure to make payments as ordered. The petition was dated May 26, 1983, and was signed by an assistant State's Attorney who swore that he had read the petition, and knew "the contents to be true in substance and in fact based on information and belief." In addition, the State's Attorney filed a petition signed by Letitia seeking to vacate the April 5, 1983, order urging the same reasons previously advanced, i.e., respondent's misstatements as to his transportation and car expenses, and requesting new hearings on child support.

The rule was entered although neither respondent nor his counsel was given notice and neither was present in court.

At a hearing on June 27, 1983, the State's Attorney withdrew the request for the rule to show cause and acknowledged that Letitia had received the payments due, but requested instead a hearing on petitioner's motion to vacate the April 5, 1983, order. Pursuant to this request, the trial court considered petitioner's motion, but denied it on the grounds that the same allegations contained therein had been settled by the court's order of April 5, 1983.

Thereupon, respondent, alleging harassment at being required to defend allegations that he claimed were made without reasonable cause and found to be untrue, filed his petition for attorney fees pursuant to section 2-611 of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-611). In his petition, he represented to the court that although he had already paid to the clerk of the circuit court the child support payments as ordered on April 5, 1983, he was never notified of the State's Attorney's petition for a rule to show cause and, further, he was being harassed by the petitioner's motion to vacate the April 5, 1983, order, which he claimed contained the same representations of his alleged misstatements as had been previously ruled upon in the court's order of April 5, 1983.

The State's Attorney filed his answer to the petition for fees in which it denied respondent's allegations. After hearings begun on September 23, 1983, and completed on October 13, 1983, the court denied respondent's request for fees, and this appeal follows.

OPINION

Respondent contends the trial court abused its discretion in denying his petition for expenses and attorney fees incurred in defending against the State's petition for a rule to show cause, as well as petitioner's motion to vacate. The petition was brought pursuant to section 2-611 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-611, formerly Ill. Rev. Stat. 1981, ch. 110, par. 41), which in part provides:

"Allegations and denials, made without reasonable cause and found to be untrue, shall subject the party pleading them to the payment of reasonable expenses, actually incurred by the other party by reason of the untrue pleading, together with a reasonable attorney's fee, to be summarily taxed by the court upon motion made within 30 days of the judgment or dismissal.

The State of Illinois or any agency thereof shall be subject to the provisions of this Section in the same manner as any other party."

• 1-4 The purpose of section 2-611 is to prevent abuse of the judicial process by penalizing the litigant who brings vexatious or harassing actions based on false statements or brought without legal foundation. (Farwell Construction Co. v. Ticktin (1978), 59 Ill. App.3d 954, 960, 376 N.E.2d 621.) Because the statute is penal in nature, it may be invoked only in cases falling strictly within its terms. (Fewer v. Grant (1982), 111 Ill. App.3d 747, 750, 444 N.E.2d 628.) The movant bears the burden of proving that allegations or denials were untrue and that they were made without reasonable cause. (See Johnson v. La Grange State Bank (1978), 73 Ill.2d 342, 366, 383 N.E.2d 185.) The application of this statute should be limited to cases where a party has abused his right of free access to the courts> by pleading untrue statements of fact which the party knew or reasonably should have known were untrue. (Third Establishment, Inc. v. 1931 North Park Apartments (1981), 93 Ill. App.3d 234, 243, 417 N.E.2d 167.) The lower court's decision regarding ...


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