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11/01/88 H. Joseph Gitlin, v. Sheryl Hartmann

November 1, 1988

H. JOSEPH GITLIN, PLAINTIFF-APPELLANT

v.

SHERYL HARTMANN, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

530 N.E.2d 584, 175 Ill. App. 3d 805, 125 Ill. Dec. 426 1988.IL.1588

Appeal from the Circuit Court of McHenry County; the Hon. Michael Sullivan, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE UNVERZAGT

Plaintiff, H. Joseph Gitlin, brought suit in the circuit court of McHenry County against defendant, Sheryl Hartmann, to recover attorney fees defendant owed plaintiff. Plaintiff represented defendant in proceedings for visitation pursuant to the provisions of the Illinois Parentage Act of 1984 (Ill. Rev. Stat. 1985, ch. 40, par. 2517), brought in the circuit court of Kane County by the father of Hartmann's child. Defendant moved to dismiss plaintiff's petition for fees, asserting that the trial court did not have subject matter jurisdiction to hear the matter of fees. The trial court granted defendant's motion and dismissed plaintiff's petition without prejudice. Plaintiff appeals, contending the trial court erred in basing its dismissal on a determination that plaintiff's application for fees must be made within the pending proceeding brought under the Illinois Marriage and Dissolution of Marriage Act (Dissolution Act) (Ill. Rev. Stat. 1985, ch. 40, par. 101 et seq.).

The defendant has not filed a brief in this court. However, the record is simple and the claimed error is such that this court can decide the issue without defendant's brief, so we will reach the merits of the appeal. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128.

Plaintiff's complaint for fees stated that defendant had retained plaintiff to represent her in proceedings brought by the father of defendant's child; that the terms of the retention agreement between plaintiff and defendant were memorialized in a letter from plaintiff to defendant, which was attached to the complaint; that the services rendered by plaintiff were reasonably necessary in his representation of defendant; that defendant owed plaintiff $8,475.75; and that defendant had breached the retention agreement by failing to pay plaintiff the amount owed.

In her motion to dismiss plaintiff's petition for fees, defendant alleged that plaintiff represented her in the circuit court of Kane County; that the Illinois Marriage and Dissolution of Marriage Act (Dissolution Act) (Ill. Rev. Stat. 1985, ch. 40, par. 508) and the Illinois Parentage Act of 1984 (Ill. Rev. Stat. 1985, ch. 40, par. 2517) provide for the payment of attorney fees and that such fees should be determined by the trial court; that the forum selected by plaintiff for his lawsuit was inconvenient to defendant, who had a right to have the suit brought in the proceedings in Kane County; and that the court was without jurisdiction to hear the matter of attorney fees, as the question of fees must be filed within the pending Kane County proceeding.

At the hearing on defendant's motion to dismiss plaintiff argued that the matter before the court was a question of venue. Plaintiff maintained that the defendant and he had orally entered into a retention agreement in McHenry County where plaintiff's law offices are located; that the parties' agreement was memorialized in a letter signed by plaintiff and defendant; and that venue was proper because the transaction, or some part thereof, out of which the cause of action arose, occurred in McHenry County. Plaintiff pointed out that no petition for fees was ever filed or presented to the circuit court of Kane County and stressed that section 508 of the Dissolution Act (Ill. Rev. Stat. 1985, ch. 40, par. 508) and section 17 of the Illinois Parentage Act of 1984 (Ill. Rev. Stat. 1985, ch. 40, par. 2517) do not constitute the exclusive means of enforcing fees against one's client in proceedings brought under the Dissolution Act. Plaintiff contended that an attorney can also choose to bring a common law action for breach of contract instead of allowing the court to determine reasonable fees under the Dissolution Act.

Defendant argued that, based on the case of In re Marriage of Baltzer (1986), 150 Ill. App. 3d 890, the court which first acquires jurisdiction retains it to the exclusion of all other courts until its duty has been performed, and since the Illinois Parentage Act of 1984 proceedings were still pending in Kane County, plaintiff was required to file his petition, or complaint, for fees in that pending proceeding.

Basing its ruling on Baltzer, the trial court found that plaintiff's petition for fees must be made in the pending Kane County proceeding. As a result, the court determined that it had no jurisdiction to hear the matter of plaintiff's fees and granted defendant's motion to dismiss. Plaintiff appeals from the trial court's order.

Most of plaintiff's arguments are directed at section 508 of the Dissolution Act, although the proceedings in Kane County were under the Illinois Parentage Act of 1984 (Ill. Rev. Stat. 1985, ch. 40, par. 2501 et seq.). The applicable fee statute is section 17, and that provision and section 508 are analogous although not identical.

On appeal, plaintiff argues that the question of his fees constituted a part of the retention agreement, or contract of employment, entered into between plaintiff and defendant at the time defendant retained plaintiff as her attorney; that a contract for fees in a domestic relations matter should be enforced like any other fee contract and not on the basis of the reasonable value of the attorney's services as provided in section 508 of the Dissolution Act (Ill. Rev. Stat. 1985, ch. 40, par. 508); and that, therefore, the application for attorney fees need not be made ...


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