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07/29/88 Linda Brandon, Ex'r of the v. Armand Robert Caisse

July 29, 1988

LINDA BRANDON, EX'R OF THE ESTATE OF FAYE CAISSE, DECEASED, PLAINTIFF-APPELLANT

v.

ARMAND ROBERT CAISSE, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

527 N.E.2d 118, 172 Ill. App. 3d 841, 122 Ill. Dec. 746 1988.IL.1174

Appeal from the Circuit Court of Kane County; the Hon. Timothy Q. Sheldon, Judge, presiding.

APPELLATE Judges:

JUSTICE NASH delivered the opinion of the court. REINHARD and UNVERZAGT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE NASH

In these consolidated cases, Linda Brandon, executor of the estate of Faye Caisse, deceased, appeals from orders of the circuit court which dismissed the executor's petition in which she sought recovery from defendant, Armand Caisse, for the attorney fees and costs incurred by the executor in the defense of an appeal taken by defendant in this dissolution of marriage proceeding. We affirm.

The executor contends that the trial court erred in granting defendant's motion to dismiss the petition, asserting that there is no jurisdictional requirement that such a petition must be filed within 30 days of the final order in the dissolution action, citing section 508(a)(3) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1985, ch. 40, par. 508(a)(3)), and Riddlesbarger v. Riddlesbarger (1951), 410 Ill. 329, 102 N.E.2d 319. Alternatively, the executor argues that, if the petition was required to be filed within 30 days of the filing of the mandate of this court in the circuit court after the first appeal, the time did not commence to run until the fee of the circuit clerk for filing of a remanding order has been paid pursuant to section 27.1 of "An Act to revise the law in relation to clerks of courts" (Ill. Rev. Stat. 1985, ch. 25, par. 27.1(u)(2)), and the executor thus filed her petition in apt time.

In Brandon v. Caisse (1986), 145 Ill. App. 3d 1070, 496 N.E.2d 755, this court reversed, without remand, a judgment which had dissolved the marriage and allocated the property of decedent, Faye Caisse, and defendant, Armand Caisse, in an appeal brought by defendant, finding that the cause of action had abated on the wife's death, which had occurred prior to entry of the judgment of dissolution. The executor defended against that appeal in this court and, after our opinion was filed, sought, and was denied, leave to appeal to the supreme court. The clerk of this court thereafter issued our mandate on February 27, 1987, which was filed by the circuit clerk of Kane County on March 2, 1987.

The executor's petition for fees and costs incurred in defending the appeal was filed in cause No. D KA 83-1131 on April 27, 1987 (it appears from the record that on March 27, 1987, petitioner sent a notice to counsel for defendant, together with a copy of the petition, but did not file either in the circuit court until April 27, 1987). Defendant moved to dismiss the petition pursuant to section 2-619(a)(1) of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2-619(a)(1)) on the ground that the trial court had lost jurisdiction to hear the petition as it had been filed more than 30 days after the final judgment in the case.

The record also discloses that, for reasons which are not clear to us, on May 4, 1987, the circuit clerk refiled the mandate of this court, which had already been file-stamped on March 2, under a new case number (D KA 87 -- 0681), and on May 8, the executor filed a similar petition for fees under the new case number. Defendant thereafter moved to dismiss case No. D KA 87 -- 0681 on the same jurisdictional grounds urged in cause No. D KA 83 -- 1131.

After a hearing, the trial court dismissed the petitions for fees and costs on the grounds that they were filed more than 30 days after the mandate of the appellate court was filed in the circuit court, which thus lacked jurisdiction to consider the relief sought.

The executor has filed two notices of appeal, one under each of the case numbers assigned by the circuit clerk, and we have consolidated the cases for decision in this court.

Section 508 of the Illinois Marriage and Dissolution of Marriage Act provides:

"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 the costs and attorney's fees necessarily incurred by the ...


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