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07/13/89 Oscar Davis Et Al., v. Marvin N. Sprague

July 13, 1989

OSCAR DAVIS ET AL., PLAINTIFFS-APPELLEES

v.

MARVIN N. SPRAGUE, DEFENDANT-APPELLANT (THEODIS LEWIS, CONTEMNOR-APPELLANT)



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

541 N.E.2d 831, 186 Ill. App. 3d 249, 133 Ill. Dec. 620 1989.IL.1097

Appeal from the Circuit Court of Adams County; the Hon. David K. Slocum, Judge, presiding.

APPELLATE Judges:

JUSTICE GREEN delivered the opinion of the court. McCULLOUGH, P.J., and KNECHT, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GREEN

Both defendant Marvin N. Sprague and his attorney Theodis Lewis appeal from an order of the circuit court of Adams County entered September 30, 1988, in which the court in part (1) ordered defendant to pay plaintiffs' attorney fees and court costs in the total amount of $5,598.75 and (2) held Lewis in contempt for his failure to appear at a prior court hearing. They contend the court erred in making each of those decisions. We disagree and, therefore, affirm.

This case has a long and detailed history. It initially began on May 14, 1984, when plaintiffs Oscar and Catherine Davis petitioned the court to obtain custody of their daughter's minor child. They subsequently sought a finding from the court that defendant was the father of that child and an order requiring him to pay child support. The court awarded plaintiffs custody of the child and entered judgment on a jury verdict finding defendant to be the child's father.

The court granted plaintiffs temporary relief on March 27, 1986, when it ordered defendant to pay temporary child support pending a final Disposition of the matter. In the interim, the court held defendant in contempt because he was in arrearage in paying that child support. The court entered its final order on October 26, 1987, in which it ordered defendant to pay child support and arrearages, other expenses, and plaintiffs' attorney fees in the amount of $7,000.

Soon thereafter, the court found defendant in contempt for his failure to appear at a previously scheduled court hearing and to remain current in the child support payments previously ordered by the court. It again found him in contempt on March 23, 1988, for his failure to appear at another hearing.

On May 1, 1988, attorney for plaintiffs filed a petition asking the court to order defendant to pay the additional attorney fees incurred since October 26, 1987. In his petition the attorney stated he had "performed regular and continued service for [plaintiffs] . . . in an attempt to keep child support . . . current, collect the extraordinary expenses allowed by the Court . . ., to collect the arrearage and collect attorney fees; in the course thereof, . . . the Defendant herein ha[d] done everything possible to evade payment, delay payment and obfuscate the entire proceedings. . . . he conduct of the Defendant reflect[ed] an attitude of avoidance of any obligation of support, avoidance of the orders of the Court and efforts to escape the obligations imposed by the Court." (Emphasis added.)

As explained in more detail later, both defendant and his attorney failed to appear at a hearing set to review all pending matters. Plaintiffs moved for the imposition of sanctions, including an "award of attorney fees for the total and complete inconvenience and delay caused" to plaintiffs. At a subsequent hearing held July 19, 1988, attorney for defendant presented the court with an objection to the petition for attorney fees. In the pleading, he alleged the rates charged by the attorney were unreasonable, the attorney had already received a large award of fees, and defendant was unable to pay.

In its order of September 30, 1988, from which defendant has appealed, the court concluded defendant's objections were not timely filed, and it took the statements contained in the petition as true. The court decided the charges set forth in the petition were reasonable and ordered defendant to pay the fees and costs in the total amount of $5,598.75.

On appeal, defendant contends this award was improper because there was no showing of plaintiffs' inability, and defendant's ability, to pay it nor was any evidence presented with regard to the reasonableness of the requested fees.

Section 17 of the Illinois Parentage Act of 1984 (Act) states that "the court may order reasonable fees of counsel . . . and other costs of the action and pre-trial proceedings to be paid by the parties in proportions and at times ...


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