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In re Marriage of Janna D. Tetzlaff

April 23, 1999


The opinion of the court was delivered by: Justice Quinn

Appeal from the Circuit Court of Cook County Honorable Patricia Banks, Judge Presiding

This is an appeal from an order of the circuit court directing petitioner's counsel, Nottage and Ward, to place $35,000 of a $65,000 interim attorney fee award into an escrow account. Nottage and Ward contends that: (1) the circuit court violated section 501(c-1) of the Illinois Marriage and Dissolution of Marriage Act (the Act) ((750 ILCS 5/501(c-1) (West 1996)) and abused its general and equitable powers by ordering the law firm to place attorney fees that had been awarded pursuant to an interim fee petition into escrow for the benefit of successor counsel. We hold that court orders awarding interim attorney fees pursuant to section 501(c-1) of the Act are not subject to interlocutory appeal under Supreme Court Rule 307 (155 Ill. 2d R. 307), and therefore the appeal must be dismissed for lack of jurisdiction.

After 17 years of marriage, petitioner, Janna Tetzlaff, filed a petition for dissolution of marriage on February 11, 1997. Petitioner is a licensed attorney. Respondent, Theodore Tetzlaff, is also an attorney and partner with the firm of Jenner and Block. Petitioner and respondent have three children and have acquired an extensive list of marital property.

On April 28, 1997, Nottage and Ward, counsel representing petitioner in the dissolution action, filed a petition for temporary and prospective attorney fees, stating that as of April 28, 1997, the law firm was owed $35,223.40 for services rendered, and estimating that in order to complete the factual investigation in the case, services were estimated to cost $50,000, which Nottage and Ward requested as prospective fees. Nottage and Ward filed an amended petition for interim attorney fees on June 30, 1997, and indicated that as of May 30, 1997, the total amount owed for services rendered was $66,942,92. Nottage and Ward also requested prospective fees in the amount of $25,000 in order to retain an expert to perform a valuation of assets.

On June 1, 1997, the "leveling the playing field" amendments to the Act became effective and, inter alia, changed the method of petitioning for interim fees and the procedure that the court must follow in awarding such fees. 750 ILCS 5/501 et seq. (West 1996).

Section 501 provides:

"5/501. Temporary Relief "§ 501. Temporary Relief. In all proceedings under this Act, temporary relief shall be as follows: * * *(c-1) As used in this subsection (c-1), 'interim attorney fees and costs' means attorney's fees and costs assessed from time to time while a case is pending, in favor of the petitioning party's current counsel, for reasonable fees and costs either already incurred or to be incurred, and "interim award" means an award of interim attorney's fees and costs. Interim awards shall be governed by the following: "(1) Except for good cause shown, a proceeding for (or relating to) interim attorney's fees and costs shall be nonevidentiary, summary in nature, and expeditious. When a party files a petition for interim attorney's fees and costs supported by one or more affidavits that delineate relevant factors, the court (or a hearing officer) shall assess an interim award after affording the opposing party a reasonable opportunity to file a responsive pleading."

A responsive pleading shall set out the amount of each retainer or other payment or payments, or both, previously paid to the responding party's counsel by or on behalf of the responding party. In assessing an interim award, the court shall consider all relevant factors, as presented, that appear reasonable and necessary, including:

"(A) the income and property of each party, including alleged marital property within the sole control of one party and alleged non-marital property within access to a party; "(B) the needs of each party; "(C) the realistic earning capacity of each party; "(D) any impairment to present earning capacity of either party, including age and physical and emotional health; "(E) the standard of living established during the marriage; "(F) the degree of complexity of the issues, including custody, valuation, or division (or both) of closely held businesses, and tax planning, as well as reasonable needs for expert investigations or expert witnesses or both; "(G) each party's access to relevant information; "(H) the amount of the payment or payments made or reasonably expected to be made to the attorney for the other party; and "(I) any other factor that the court expressly finds to be just and equitable."

(2) Any assessment of an interim

"award (including one pursuant to an agreed order) shall be without prejudice to any final allocation and without prejudice as to any claim or right of either party or any counsel of record at the time of the award. Any such claim or right may be presented by the appropriate party or counsel at a hearing on contribution under subsection (j) of Section 503 or a hearing on counsel's fees under subsection (c) of Section 508. Unless otherwise ordered by the court at the final hearing between the parties or in a hearing under subsection (j) of Section 503 or subsection (c) of Section 508, interim awards, as well as the aggregate of all other payments by each party to counsel and related payments to third parties, shall be deemed to have been advances from the parties' marital estate. Any portion of any interim award constituting an overpayment shall be remitted back to the appropriate party or parties, or, alternatively, to successor counsel, as the court determines and directs, after notice."

(3) In any proceedings under this

"subsection (c-1), the court (or hearing officer) shall assess an interim award against an opposing party in an amount necessary to enable the petitioning party to participate adequately in the litigation, upon findings that the party from whom attorney's fees and costs are sought has the financial ability to pay reasonable amounts and that the party seeking attorney's fees and costs lacks sufficient access to assets or income to pay reasonable amounts. In determining an award, the court shall consider whether adequate participation in the litigation requires expenditure of more fees and costs for a party that is not in control of assets or relevant information. Except for good cause shown, an interim award shall not be less than payments made or reasonably expected to be made to the counsel for the other party. If the court finds that both parties lack financial ability or access to assets or income for reasonable attorney's fees and costs, ...

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