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05/08/87 In Re Marriage of Steven L. Bashwiner

May 8, 1987

IN RE MARRIAGE OF STEVEN L. BASHWINER, PETITIONER-APPELLEE,


APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

and ARDEN J. BASHWINER, Respondent-Appellant

508 N.E.2d 419, 155 Ill. App. 3d 531, 108 Ill. Dec. 258 1987.IL.603

Appeal from the Circuit Court of Cook County; the Hon. Richard H. Jorzak, Judge, presiding.

APPELLATE Judges:

JUSTICE PINCHAM delivered the opinion of the court. LORENZ and MURRAY, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE PINCHAM

This is a consolidated appeal from a post-judgment award of attorney fees in a dissolution of marriage proceeding between Steven Bashwiner, petitioner, and Arden Bashwiner, respondent. In case number 85 -- 3054, petitioner contends that the trial court improperly ordered him to pay respondent's attorney fees because there was no showing that the services rendered to respondent by her attorney were reasonable and that attorney fees may not be awarded for services rendered by an attorney in opposition to a motion for preliminary injunction. In case number 85 -- 0401 respondent asserts that the trial court erroneously dismissed her petition for attorney fees incurred by respondent in opposing petitioner's motion to vacate the dissolution judgment.

According to the record, on July 24, 1980, a judgment for dissolution of marriage was granted to the parties which incorporated a settlement agreement that granted custody of the minor children to respondent and visitation to petitioner. On March 18, 1981, respondent filed a petition to remove the children to Washington, D.C., where respondent planned to live after she married her fiance, who worked there. Petitioner filed a response which alleged that respondent's desired move would not be in the best interest of the children. Petitioner also filed a petition pursuant to section 72 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 72), now codified as section 2-1401 of the Civil Practice Law (Ill. Rev. Stat. 1985, ch. 110, par. 2-1401), to vacate the dissolution of marriage judgment in which he contended that respondent had fraudulently concealed her plans to marry and to remove the children from Illinois and that the dissolution judgment was void ab initio. Petitioner also sought custody of the children.

In her response to the petition for vacature, respondent denied that she had procured the dissolution judgment by fraud and requested that the vacature petition be dismissed and that she be awarded attorney fees for the costs incurred by her in opposing the vacature petition. After an evidentiary hearing on March 31, 1981, the trial court entered an order which found that the settlement agreement, included in the dissolution of marriage judgment, had been procured by fraud and that the provisions involving custody of the children, maintenance, support and the Disposition of marital property were void and vacated those portions of the judgment.

In an appeal from that judgment by respondent we held that the trial court's order finding that respondent had committed fraud was against the manifest weight of the evidence and reversed the judgment of vacature. In re Marriage of Bashwiner (1982), 107 Ill. App. 3d 772, 438 N.E.2d 490.

However, while respondent's appeal and her motion for removal were pending, on May 23, 1981, the trial court entered an order which stated that the parties had stipulated in open court that respondent's instant motion to remove the children to Washington, D.C., would be the "final removal" motion tried in this case and denied the motion.

Litigation continued on matters including petitions for rule to show cause, possession of the marital residence, custody of the children, support, and maintenance. Additionally, on April 12, 1983, respondent filed a petition for attorney fees for representing her in opposing petitioner's section 72 petition to vacate the dissolution of marriage judgment based on respondent's alleged fraud, for prosecution of her appeal, and in her petition for removal of the children to Washington, D.C.

On June 2, 1983, respondent filed a petition to establish the Cook County circuit court dissolution of marriage judgment in the circuit court of Lake County, and on the following day respondent filed in the circuit court of Lake County a petition to remove the children from Illinois and for other relief. In the removal petition, respondent alleged that she and the minor children resided in Lake County, that the circuit court of Cook County had denied a prior petition for removal, that her new husband worked in Washington, D.C., and had been unable to obtain employment in Illinois, that petitioner's right to reasonable visitation with the children would not be obstructed, that the removal statute was unconstitutional, and that her move with the children to Washington, D.C., would be in the best interest of the children.

After receiving notice of respondent's action in the circuit court of Lake County, on June 7, 1983, petitioner filed a motion for preliminary injunction in the circuit court of Cook County to enjoin respondent from proceeding on her removal petition in the circuit court of Lake County. In an ex parte proceeding and without notice to the respondent, the circuit court of Cook County entered a 10-day temporary restraining order enjoining respondent from proceeding on her removal petition in the circuit court of Lake County. Respondent, on June 15, 1983, filed a motion to dissolve the temporary restraining order and to dismiss petitioner's motion for preliminary injunction. Nine days later, the circuit court of Cook County denied respondent's motion to dissolve the temporary restraining order. Fourteen days later, the circuit court of Cook County found that petitioner would be irreparably harmed if respondent were permitted to proceed in the circuit court of Lake County on her ...


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