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In re Marriage of Wayne Lucht

September 30, 1998

IN RE MARRIAGE OF WAYNE LUCHT, PETITIONER-APPELLEE, AND ERROLYN JOYCE LUCHT, RESPONDENT-APPELLANT.


The opinion of the court was delivered by: Presiding Justice Cahill

Appeal from the Circuit Court of Cook County

No. 96 D 11525

Honorable Anthony L. Young, Judge Presiding.

We are asked to deviate from the holding in Watson v. Watson, 335 Ill. App. 637, 82 N.E.2d 671 (1948), that an attorney may not file a petition for attorney fees in a divorce action after the case has been voluntarily dismissed, even though the petition is filed within 30 days of the dismissal. The trial court followed Watson and refused to entertain the petition. We affirm.

Wayne Lucht filed a petition for dissolution of marriage on August 9, 1996. Six days before the scheduled trial date, June 2, 1997, he moved for voluntary dismissal. The trial court granted the petition. Respondent Errolyn Joyce Lucht then moved for leave to file a petition for attorney fees. The motion was denied. On June 23, 1997, respondent moved to vacate the order denying her petition for attorney fees. The trial court denied the motion, and it is from that order the respondent filed this timely appeal under Supreme Court Rule 303 (155 Ill. 2d R. 303(a)(1)).

Respondent argues on appeal that she should have been allowed to file a petition for attorney fees even though the dissolution proceedings were voluntarily dismissed. She relies on Nottage v. Jeka, 274 Ill. App. 3d 235, 653 N.E.2d 803 (1995), rev'd, 172 Ill. 2d 386, 667 N.E.2d 91 (1996) (Nottage I). In Nottage I, the plaintiff successfully sued the defendant for breach of contract to recover attorney fees from a former client in a domestic relations case. The defendant appealed, arguing that section 508(a) of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/508(a) (West 1996)) (the Act) was the exclusive remedy available to recover attorney fees under the Act. The appellate court agreed. After holding that section 508(a) was the attorney's exclusive avenue for seeking attorney fees, the court elaborated on the availability of section 508(a) petitions even after the dismissal of dissolution proceedings. The court departed from Watson v. Watson, 335 Ill. App. 637, 82 N.E.2d 671 (1948), and In re Marriage of Erby, 84 Ill. App. 3d 672, 406 N.E.2d 79 (1980), where we held that a trial court may not consider a petition for attorney fees after a divorce case has been voluntarily dismissed. See also In re Marriage of Birt, 159 Ill. App. 3d 281, 284, 512 N.E.2d 390 (1987); In re Marriage of Reczek, 95 Ill. App. 3d 220, 420 N.E.2d 161 (1981) (where Watson was followed). In Watson, we explained that "[p]ublic policy forbids that parties to a divorce suit should be kept in a state of hostile litigation" after the divorce has been dismissed. Watson, 335 Ill. App. at 641.

In rejecting Watson and Erby, the Nottage I court reasoned:

"It is unassailable that where a trial court has subject matter jurisdiction of a case and personal jurisdiction over the parties and their attorneys, it retains that jurisdiction until 30 days have expired from the time of a dismissal. [Citations]. As an irrefutable corollary, so long as a section 508 petition is filed while an underlying action is pending or within 30 days from a dismissal of the underlying action, the trial court has jurisdiction to hear, decide and rule on the section 508 petition. Cf. In re Marriage of Dague (1985), 136 Ill. App. 3d 297, 300, 483 N.E.2d 322; In re Marriage of Conway, (1986), 139 Ill. App. 3d 1062, 1065-66, 487 N.E.2d 1240." Nottage, 274 Ill. App. 3d at 242.

Our supreme court reversed Nottage I, not because of the analysis of subject matter jurisdiction, but because it held that section 508(a) was not an exclusive remedy and did not preclude an attorney from bringing a separate breach of contract suit to recover fees. Nottage v. Jeka, 172 Ill. 2d 386, 392-98, 667 N.E.2d 91, 93-96 (1996) (Nottage II). Respondent now argues that the part of Nottage I holding that an attorney may file a section 508(a) petition within 30 days of a voluntary dismissal remains good law, in spite of the supreme court's reversal and finding that section 508(a) was not an exclusive remedy.

We disagree.

Nottage I's Discussion of Watson and Erby was compelled by the court's threshold assumption that section 508(a) was the exclusive remedy for the recovery of fees in a divorce action. Once that position was taken, the court was compelled to deviate from Watson or leave a lawyer with an uncollected fee without a remedy. Once the supreme court found that section 508(a) was not an exclusive remedy, the need to deviate from the holding in Watson and Erby was unnecessary. We agree with the reasoning of the trial court that if Nottage I had allowed the breach of contract suit, there would have been no need to address Watson and Erby.

We disagree, however, with the language in Erby suggesting that a postdismissal petition for attorney fees in divorce cases is barred, not only for the policy reasons set out in Watson, but because the court lacks subject matter jurisdiction. See Erby, 84 Ill. App. 3d at 676. In that respect, Nottage I was correct. Subject matter jurisdiction addresses the scope of the circuit court's power to decide cases granted under the Illinois Constitution and Illinois statutes. See Ill. Const. 1970, art. VI, §9; In re Chiara C., 279 Ill. App. 3d 761, 765, 665 N.E.2d 404 (1996). But sometimes public policy requires that a trial court decline to exercise jurisdiction. See Watson, 335 Ill. App. 637; Barrows v. Northwestern Memorial Hospital, 123 Ill. 2d 49, 57, 525 N.E.2d 50 (1988).

Respondent quarrels with the policy announced in Watson. She argues that prohibiting an attorney from filing a petition for attorney fees within 30 days of a voluntary dismissal "[draws] unnecessary and unwarranted distinctions between dissolution actions and all other[s]." She also argues that an "unwarranted" distinction is drawn between dissolution proceedings that are voluntarily dismissed and those that are involuntarily dismissed. Cf. In re Marriage of Dague, 136 Ill. App. 3d 297, 300, 483 N.E.2d 322 (1985) (petition for attorney fees allowed after dismissal because petitioner died).

The distinctions are not unwarranted. Illinois has long recognized a policy of preserving the marital relationship. At times the policy has been invoked at a cost to other legal interests. See, e.g., In re Marriage of Malec, 205 Ill. App. 3d 273, 289, 562 N.E.2d 1010 (1990) (attorney may not recover on a contingency fee agreement because the interest of preserving a marriage outweighs possible unjust enrichment concerns). The policy set out in Watson encourages the non-legal ...


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