APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
BIRT, Respondent (Paul P. Didzerekis,
Maurice W. Birt, Respondent-Appellee)
512 N.E.2d 390, 159 Ill. App. 3d 281, 111 Ill. Dec. 274 1987.IL.1184
Appeal from the Circuit Court of Du Page County; the Hon. Robert A. Cox, Judge, presiding.
JUSTICE NASH delivered the opinion of the court. UNVERZAGT, J., concurs. JUSTICE REINHARD, Dissenting.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH
Paul P. Didzerekis, an attorney, appeals from an order of the circuit court of Du-Page County in case No. 84 D 3284 dismissing his petition for attorney fees and costs incurred in the preparation and presentation of a previously dismissed petition for dissolution of marriage in case No. 82 D 1142, which had been filed on behalf of his former client, Sarah A. Birt, the wife, against Maurice W. Birt, the husband.
Didzerekis raises the following issues on appeal: (1) whether the trial court incorrectly dismissed his petition for attorney fees incurred in the prior dissolution of marriage proceeding between the same parties in a separate case, and (2) whether the trial court erred in denying the petition for change of venue filed by the wife in the dissolution of marriage proceeding between those parties.
On December 21, 1984, the husband filed a petition for dissolution of marriage in this cause, No. 84 D 3284, and the wife filed a counterpetition for legal separation on February 13, 1985. The marriage was dissolved in a judgment entered on May 28, 1985, and a judgment on the remaining issues was entered on March 17, 1986. However, on July 15, 1985, Didzerekis filed a petition for attorney fees in this cause for services rendered to the wife in a prior action for dissolution, in case No. 82 D 1142, which had been dismissed on December 20, 1984.
The petition for attorney fees alleged that Didzerekis was retained by the wife on June 7, 1982, to represent her in a dissolution of marriage action which she filed against the husband and continued to represent her on the prior action until November 28, 1983, when the wife apparently retained new counsel. He also alleged that the husband and wife had agreed in the prior action that the husband was to compensate the attorney for his work and reimburse him for his costs and expenses. Didzerekis listed his time spent on the prior case and stated that $8,894 was due to him for services and costs rendered between June 7, 1982, and November 11, 1983, when an order was entered in the previous case allowing him to withdraw as attorney. Didzerekis further represents in his appellate brief that on December 20, 1984, the trial court dismissed the first petition for dissolution of this marriage filed in case No. 82 D 1142 at the request of the parties, and the present action for dissolution of marriage was filed one day later. Although the dismissal order in the first case is not in the record of this proceeding, the husband does not dispute that the dismissal of the first case occurred on December 20, 1984.
The husband moved to dismiss Didzerekis' petition for attorney fees and costs pursuant to section 2-619 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-619). He contended that the trial court lacked jurisdiction to award in this proceeding the requested attorney fees incurred in another proceeding by one of the parties to this proceeding. After reviewing the memorandum of the parties, the trial court determined that it did not have jurisdiction to award attorney fees incurred in a different case and granted the motion dismissing the petition. The attorney appeals.
By section 508 of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1985, ch. 40, par. 508), the legislature has provided the circuit court with the authority to award attorney fees incurred by either spouse in connection with proceedings under the Act. (In re Marriage of Bussey ...