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In Re Marriage of Hirsch



Appeal from the Circuit Court of Cook County; the Hon. Monica D. Reynolds and the Hon. John F. Reynolds, Judges, presiding.


Rehearing denied September 25, 1985.

In these three consolidated appeals, petitioner Robert A. Hirsch (Robert) seeks reversal of certain orders entered subsequent to the entry of a judgment of dissolution of marriage between him and respondent Judith Y. Hirsch (Judith). The orders now appealed from corrected the dissolution judgment nunc pro tunc, awarded attorney fees and costs to the attorneys representing the guardian of Judith's estate, required Robert to pay certain medical expenses incurred by Judith and awarded attorney fees and costs to Judith's court-appointed guardian ad litem. Additionally, Robert appeals the denial of his motion to quash certain citations to discover assets which were served on a brokerage firm and financial institutions where Robert maintained accounts. For the following reasons, we affirm in part, modify in part, and reverse in part.

The protracted litigation which has resulted in the present three appeals and a prior appeal to this court commenced on December 19, 1978, when Robert filed a petition to dissolve his 28-year marriage to Judith, alleging mental cruelty. During the following year, a settlement proposal was negotiated between Judith and Robert. However, in November 1979, Judith discharged her attorney and retained as her new counsel the law firm of Montgomery & Montgomery (the Montgomerys), who rejected the settlement proposal. Judith was subsequently hospitalized at Chicago Reed Mental Health Center in Chicago, as a result of a petition for involuntary judicial admission filed by her son, Harold Hirsch.

In the spring of 1980, the Montgomerys filed a petition in the probate court requesting that Judith be declared a disabled person and that the Heritage Standard Bank & Trust Company of Evergreen Park (Heritage Bank) be appointed the guardian of Judith's estate. The petition was granted, and Heritage Bank retained the Montgomerys to represent the bank in its capacity as guardian of Judith's estate. During the guardianship proceeding, attorney Robert J. Weber was appointed by the probate court to serve as Judith's guardian ad litem. On May 9, 1980, Weber was appointed Judith's guardian ad litem for purposes of the dissolution proceeding. Thereafter, on December 11, 1980, Weber filed an affirmative defense based on mental incompetency and a counterpetition for dissolution on behalf of Judith.

A detailed recitation of the testimony presented during the trial of the dissolution proceeding is not necessary for resolution of the issues presented in these appeals. It is sufficient to note that testifying on Judith's behalf were Dr. Robert Gross, a physician and neurologist, Dr. Charles Kitchen, a psychiatrist, and William McShane, a trust officer at Heritage Bank. McShane testified as to Judith's current economic condition. Judith's attorneys also called Robert as an adverse witness.

Robert offered the testimony of Dr. Dover Roth, a psychiatrist, to rebut the guardian ad litem's argument that Judith was not responsible for her actions during the marriage. He also called as a witness his accountant, Albert Sommers, who gave testimony pertaining to the identification of marital and non-marital property, and Albert C. Balderman, vice president and trust officer of Heritage Bank, who testified as to assets of Judith in the bank's possession. Additionally, Robert testified on his own behalf as to the parties' property interests.

On January 7, 1982, the trial court issued an oral ruling as to most of the pending issues. In announcing its decision, the court struck the affirmative defense presented by the guardian ad litem and found that grounds for dissolution had been established. The court stated that the marital assets far exceeded $150,000 and, after considering both marital and non-marital assets, the trial judge concluded, "I am going to give one hundred fifty thousand dollars ($150,000) to the Heritage Bank for the benefit of Judith Hirsch." The court also awarded Judith maintenance of $100 a week, barred Robert from maintenance, and ordered that Judith be named primary beneficiary of a $100,000 insurance policy on Robert's life. The court stated that it would reserve ruling on the matter concerning who would pay Judith's hospital bills. Counsel for both parties then indicated they wished to file petitions for fees. Fee petitions were subsequently filed by the Montgomerys, the guardian ad litem and Robert's attorney.

On February 18, 1982, the trial court entered the written judgment for dissolution. The court, however, reserved the issues of attorney fees, liability for Judith's medical bills and the division of approximately $8,500 in the parties' joint escrow account at First Federal Savings & Loan Association of Chicago. *fn1 On February 26, 1982, a petition for payment of certain costs and medical expenses was filed on Judith's behalf.

On March 25, 1982, Heritage Bank, as guardian of Judith's estate, filed a petition for rule to show cause as to why Robert should not be held in contempt for failure to comply with the judgment of dissolution of February 18, 1982, requiring him to pay $150,000 in cash to Heritage for the benefit of Judith. At a hearing on the petition for rule to show cause on May 21, 1982, Robert maintained that he was entitled to an offset against the $150,000 he was required to pay under the judgment of dissolution; the asserted offset represented Judith's existing funds in the Heritage account. *fn2 The trial court stated that it did not agree with Robert's interpretation of the judgment and, to be sure there was no misunderstanding, the court on May 21, 1982, ordered a correction nunc pro tunc. The nunc pro tunc order provided that Robert pay $150,000 in cash by July 21, 1982, and continued other matters including the petitions for attorney fees and costs and the disposition of the escrowed funds.

Robert appealed from the May 21, 1982, order (Docket No. 82-1681). On June 13, 1983, this court dismissed the appeal as premature in an unpublished order pursuant to Supreme Court Rule 23 (87 Ill.2d R. 23). (In re Marriage of Hirsch (1983), 114 Ill. App.3d 1151 (Rule 23 order).) We reasoned that since ancillary issues remained pending in the trial court, the dissolution was not final and the appeal therefore could not be maintained under In re Marriage of Leopando (1983), 96 Ill.2d 114, 449 N.E.2d 137.

During the pendency of the above appeal, the trial court considered the issues reserved by the February 18, 1982, judgment of dissolution. The court first considered the petitions for attorney fees submitted by the Montgomerys. The Montgomerys twice amended their fee petition. Their first amended fee petition sought in excess of $70,000 for a total of 652.5 hours, while their second amended petition sought $39,831, for a total of 372.50 hours. Both petitions sought hourly rates of $125 for court time and $100 for office time.

Robert and the guardian ad litem filed objections to the fee petition, and the court therefore conducted an evidentiary hearing on the petition at which Walter Montgomery and his son, Lee, testified. Walter Montgomery testified that he and his son conduct a general neighborhood practice in Chicago. During the 46 years he has practiced law, he has tried approximately 75 contested divorce cases. He stated that his firm did not keep contemporaneous records of the time spent in this case but instead reconstructed their time by reviewing their files and the fee petitions of other attorneys in this case. Lee Montgomery testified that he has practiced law since 1973 and has tried nearly 100 cases to judgment or verdict. Five to ten of those cases were contested divorces.

On June 16, 1983, the trial court entered a written order awarding the Montgomerys costs of $1,702 and fees of $30,519 as compensation for all of the 372.5 hours listed on the second amended fee petition. The fee award was based upon an hourly rate of $100 for court time and $75 for office time. The court ordered that the fees and costs be paid in the following manner: (1) $8,559 from the balance of the parties' joint escrow account; (2) $16,564 (70% of balance) from Robert; and (3) $7,099 (30% of balance) from Heritage Bank as guardian of Judith's estate. On July 12, 1983, Robert filed an appeal from the June 16 order (Docket No. 83-1685).

Subsequently, on September 1, 1983, the guardian ad litem presented a motion to resolve all pending matters, including his petition for fees and the unpaid medical bills. Over Robert's objection, the guardian ad litem submitted and testified as to five unpaid bills totaling $11,835 for medical services rendered to Judith prior to the entry of the judgment for dissolution. The guardian ad litem further noted that proceeds from two insurance policies totaled $4,800. Applying that credit to the total of the outstanding bills there remained an unpaid balance of $7,035. On September 13, 1983, the court entered an order requiring Robert to pay $7,035 to Heritage Bank to satisfy the unpaid medical bills.

Also on September 13, 1983, the trial court entered an order awarding the guardian ad litem fees and costs in the amount of $9,300. The order required Robert to pay $7,440 of the award, with the remaining $1,860 to be paid by Heritage Bank, as guardian of Judith's estate. The two orders of September 13 resolved all of the remaining issues in the case.

On September 19, 1983, Robert filed a notice of appeal from both orders of September 13, 1983, the nunc pro tunc order of May 21, 1982, and the order of June 16, 1983, awarding fees and costs to the Montgomerys (Docket No. 83-2276). Robert did not file a petition to stay enforcement of the orders appealed from nor seek leave to file an appeal bond. Consequently, on December 12, 1983, citations to discover assets were filed. Robert moved to quash the citations. On January 12, 1984, after hearing arguments, the trial court denied the motion to quash, and ordered that certain assets belonging to Robert and being held by a brokerage house and financial institution be turned over to satisfy the judgments rendered in the instant case. Robert appealed the order (Docket No. 84-218). His motion to consolidate the three appeals was granted by this court.


• 1 In the first of the three consolidated appeals (Docket No. 83-1685), Robert challenges the order of June 16, 1983, awarding fees and costs to the Montgomerys. This appeal must be dismissed because Robert filed his notice of appeal on July 12, 1983, which was prior to the time that the ancillary issues involving Judith's medical expenses and guardian ad litem fees were resolved on September 13, 1983. Until that time, the case was not finally adjudicated and the appeal in question could not be taken. (In re Marriage of Leopando (1983), 96 Ill.2d 114, 449 N.E.2d 137.) This result is unchanged by the fact that the order in question contained a recital that there was no just reason for delay or enforcement of this appeal. 96 Ill.2d 114, 120.

The record shows, however, that Robert did properly raise the issue of the Montgomerys' fee award in his notice of appeal for his second appeal (Docket No. 83-2276), which was timely filed within 30 days of the final adjudication of this case. Consequently, this issue is properly before this court as apart of the second appeal and will be discussed below.


In his second appeal (Docket No. 83-2276), Robert challenges the following orders: (1) the nunc pro tunc order of May 21, 1982; (2) the order of June 16, 1983, awarding attorney fees to the Montgomerys; (3) the order of September 13, 1983, requiring him to pay medical expenses incurred by Judith; and (4) the order of September 13, 1983, awarding attorney fees to the guardian ad litem.


We turn first to Robert's arguments pertaining to the nunc pro tunc order. The order was entered to correct the February 18, 1982, judgment of dissolution which was drafted by Robert's ...

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