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Lee v. Lee

December 18, 1998

JASON D. LEE, PETITIONER-APPELLEE,
v.
LAURI LEE, RESPONDENT. BEERMANN, SWERDLOVE, WOLOSHIN, BAREZKY, BECKER, GENIN & LONDON, AND BERNARD HAMMER, LTD., FEE PETITIONERS-APPELLANTS.



Appeal from the Circuit Court of Cook County. The Honorable Drella C. Savage, Judge, Presiding. No. 94 D 1085

The opinion of the court was delivered by: Justice Hourihane:

Appellant law firms, Beermann, Swerdlove, Woloshin, Barezky, Becker, Genin & London (Beermann), and Bernard Hammer, Ltd. (Hammer), are former counsel to Lauri Lee, respondent in a dissolution of marriage proceeding. Beermann and Hammer petitioned the circuit court for an award of fees from Jason Lee, petitioner in that proceeding. Prior to any hearing on the petitions, and over the objections of Beermann and Hammer, the court entered its judgment of dissolution of marriage, which incorporated the parties' marital settlement agreement. The agreement provided that each party would be solely responsible for payment of his or her attorney fees. Mr. Lee subsequenlty filed a motion to strike the fee petitions, which the court granted. Beermann and Hammer appeal, arguing that the court erroneously denied their right to a hearing as provided under section 508 of the Illinois Marriage and Dissolution of Marriage Act (Act). 750 ILCS 5/508 (West 1994).

For the reasons that follow, we reverse and remand for further proceedings.

BACKGROUND

On February 17, 1994, Mr. Lee filed his petition for dissolution of marriage. In that proceeding, Beerman initially represented Mrs. Lee. She later discharged Beermann, and on February 10, 1995, the circuit court granted Hammer leave to substitute as counsel.

On September 13, 1995, Hammer filed an "Emergency Petition for Attorneys Fees, or in the Alternative, to Withdraw". The petition sought a judgment against Mr. Lee in the amount of $15,210 for legal fees related to its representation of Mrs. Lee, and an additional sum from Mr. Lee towards anticipated trial fees. In the alternative, Hammer sought leave to withdraw, which was apparently granted, as the record indicates that in late September Joy Feinberg of Feinberg & Barry, P.C. (Feinberg) entered her appearance on behalf of Mrs. Lee.

On September 25, 1995, Beermann filed a "Petition and Schedule of Attorney's Fees and Costs", seeking a judgment against both parties for legal fees on behalf of Mrs. Lee in the amount of $10,118.57. Mr. Lee filed his response to that petition, as well as Hammer's fee petition, denying the material allegations therein.While Mrs. Lee was represented by Feinberg, the parties negotiated a marital settlement agreement which was signed by the parties on January 24, 1996. Article X of the agreement states in relevant part:

"Except as provided in Paragraph 10.1 above [which requires Mr. Lee to pay $5,000 to Feinberg towards Mrs. Lee's attorney fees], each of the parties hereby agrees that they shall be solely responsible for payment of their own individual attorneys' fees and costs in connection with this Agreement and in connection with the pending dissolution of marriage proceedings. JASON agrees to indemnify and hold LAURI harmless from any and all attorneys' fees or costs which []he may have incurred in connection with this Agreement or in connection with the dissolution proceedings. LAURI agrees to indemnify and hold JASON harmless from any and all attorneys' fees or costs which she may have incurred in connection with this Agreement or in connection with the pending dissolution proceedings. LAURI acknowledges that there remains outstanding Attorney Fees Petitions from Miles Beermann and Bernard Hammer which must be adjudicated." (Emphasis added.)

The settlement agreement also provides that the parties waive any right to maintenance from the other; that Mrs. Lee will have sole custody of the parties' two minor children; that Mr. Lee will pay child support of $3000 per month, maintain medical insurance for the minor children, and pay all uninsured extraordinary medical expenses of the children; that the parties have equitably divided the marital property, including unspecified sums of money in savings and checking accounts; and that Mr. Lee will be solely responsible for certain income taxes due the Internal Revenue Service by Mr. Lee individually, or jointly with Mrs. Lee, in the approximate amount of $130,000.

At the January 25, 1996, prove-up of the settlement agreement, Beermann and Hammer objected to the attorney fee provision, arguing that a hearing was required before entering an agreement which affected their right to proceed against Mr. Lee for attorney fees. The circuit court determined that it would proceed with the prove-up of the settlement agreement, which was the only matter before the court that day, and consider the fee petitions at a later date.

At the prove-up, Mrs. Lee testified that she read and understood the terms of the agreement and was aware that by waiving maintenance she would be unable to seek support from Mr. Lee in the future. As to outstanding legal fees, Mrs. Lee testified that while she did not question Hammer's and Beermann's entitlement thereto, she had no ability to pay them.

The court found the settlement agreement was equitable and not unconscionable, and incorporated the agreement into the judgment of dissolution of marriage which was entered that same day. The court also granted Mr. Lee time to respond or otherwise plead to the fee petitions of Hammer and Beermann.

On February 21, 1996, Mr. Lee filed a motion to strike Hammer's fee petition. The court later ruled that the defenses raised by Mr. Lee would also apply to Beermann's petition. On July 12, 1996, the court granted Hammer leave to file his "trial brief", set a briefing schedule thereon, and set the motion to strike for ruling on July 29, 1996.

Hammer's "trial brief" essentially responded to Mr. Lee's motion to strike. Hammer argued that under Heiden v. Ottinger, 245 Ill. App. 3d 612, 616 N.E.2d 1005 (1993), Mrs. Lee's agreement to pay her own attorney fees ...


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