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06/28/95 ROSAIRE M. NOTTAGE D/B/A NOTTAGE & WARD v.

June 28, 1995

ROSAIRE M. NOTTAGE D/B/A NOTTAGE & WARD, PLAINTIFF-APPELLEE
v.
RICHARD F. JEKA, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable John G. Laurie, Judge Presiding.

As Corrected June 29, 1995. Second Correction July 6, 1995. Rehearing Denied August 22, 1995. Petition for Leave to Appeal Allowed December 6, 1995.

The Honorable Justice Rizzi delivered the opinion of the court: Tully, J., and Cerda, J., concur.

The opinion of the court was delivered by: Rizzi

JUSTICE RIZZI delivered the opinion of the court:

Plaintiff, Rosaire M. Nottage, an attorney, filed a common law contract action in the circuit court of Cook County to recover attorney fees from her former client, the defendant, Richard F. Jeka. Judgment was entered in favor of Nottage in a bench trial. Jeka appeals contending that the common law contract action should have been dismissed because Section 508 (508) of the Illinois Marriage and Dissolution Act (Act), is the exclusive remedy for recovering attorney fees for legal services rendered under the Act. See 750 ILCS 5/508 (West 1992). We vacate the judgment of the circuit court of Cook County and dismiss the contract action.

Pursuant to a written retainer agreement, Nottage represented Jeka in a domestic relations action brought under the Act in the 18th judicial circuit, Du Page County. Nottage represented Jeka in the action from approximately April of 1989 to January of 1990, when her representation was terminated, but the action remained pending. During the pendency of the action, on May 8, 1991, Nottage filed a 508 petition to obtain a judgment against Jeka for her attorney fees. No further action was taken on the 508 petition.

On July 1, 1993, Nottage filed a common law contract action against Jeka in the circuit court of Cook County, Illinois, CountyDepartment, Municipal Division. The contract action was brought to recover fees for the legal services rendered in the proceedings filed under the Act in the Du Page County domestice relations action. The legal services which formed the basis of the contract action were the same legal services which formed the basis of the 508 petition that had been filed in the Du Page County domestic relations action.

Jeka filed a motion to dismiss on the basis that the contract action was improper because 508 is the exclusive remedy to obtain a judgment for attorney fees for proceedings under the Act. The motion to dismiss was denied. Jeka then filed an Answer and a Jury Demand. In his Answer Jeka claimed as a defense: "The amount now being claimed due is $4,230.72, however, the Defendant has already paid to the Plaintiff the sum of $10,514.00 which the Defendant believes more than fair and reasonable compensation for the work performed and the results obtained. The question is not whether $4,230.72 is due but rather, whether $10,514.00 is adequate payment for the services provided."

Although the jury demand appears to have been timely filed, on its own action, but over Jeka's objection, the trial court struck the jury demand. In doing so, the trial court stated orally that the reason for striking the jury demand was that the Court believed its filing to be "dilatory." The case then proceeded to a bench trial. The trial judge found in favor of Nottage and entered judgment against Jeka in the amount of $4,009.72 plus costs. The amount claimed by Nottage was reduced by $221 because there was no evidence produced at trial to verify certain hours of legal service. It appears that because the case was a common law contract action, the fairness and reasonableness of the attorney fees was not determined, and no 508 factors were considered.

We agree with Jeka that 508 is the exclusive remedy to obtain a judgment for attorney fees for proceedings under the Act, and that the common law contract action should have been dismissed. The legislative intent and the raison d'etre for 508 demands this conclusion.

Prior to the adoption of the Act (eff. Oct. 1, 1977), matrimonial proceedings were governed by the Divorce Act (Ill. Rev. Stat. 1975, ch. 40, repealed October 1, 1977). Section 8 of the Divorce Act specifically provided: "When the defendant appears and denies the charges in the plaintiff's complaint for a divorce, either party shall have the right to have the cause tried by a jury." Also, it was generally held, that a court had no jurisdiction to enter a judgment in favor of an attorney against her own client in the divorce proceeding itself. There was no provision for this in the Divorce Act. If the attorney sought a judgment for attorney fees against her own client, the attorney had to file a common law contract action separate from the divorce proceeding. See Pressney v. Pressney (1950), 339 Ill. App. 371, 90 N.E.2d 119; cf. Seniuta v. Seniuta (1977), 49 Ill. App. 3d 329, 331, 364 N.E.2d 327, 7 Ill. Dec. 166.

Contrary to the Divorce Act, the Act provides: "There shall be no trial by jury under this Act." 750 ILCS 5/103 (West 1992). Also, in contrast to the Divorce Act, the Act contains 508, which gives the trial court in the underlying action subject matter and personal jurisdiction to enter a judgment in favor of an attorney against the attorney's own client for legal services arising under the Act.

In addition, 508 provides that the court from time to time, after considering the financial resources of the parties, may order any party to pay a reasonable amount for her own costs and attorney fees and for the costs and attorney fees necessarily incurred or, for the purpose of enabling a party lacking sufficient financial resources to obtain or retain legal representation, expected to be incurred by any party, which award shall be made in connection with the following: (1) The maintenance or defense of any proceeding under the Act; (2) The enforcement or modification of any order or judgment under the Act; (3) The defense of an appeal of any order or judgment under the Act, including the defense of appeals of post-judgment orders; (4) The maintenance or defense of a petition brought under Section 2-1401 of the Code of Civil Procedure seeking relief from a final order or judgment under the Act; and (5) The costs and legal services of an attorney rendered in preparation of the commencement of the proceeding brought under the Act. Also, 508 provides that the court may order that the award of attorney fees and costs shall be paid directly to the attorney, who may enforce such order in her name, or that they be paid to the relevant party. Judgment may be entered and enforcement thereof had accordingly. In all instances, the recovery of attorney fees arising from matters under the Act is a part of the underlying action that was brought under the Act.

Based on the changes brought about by the adoption of the Act and the all-encompassing provisions in 508 for determining, allocating, obtaining, enforcing and receiving a judgment for attorney fees for services rendered under the Act, the purpose of 508 and the intent of the legislature with regard to attorney fees for services rendered under the Act is plainly evident. ...


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