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In re Marriage of Michael H. McGuire

June 16, 1999

IN RE MARRIAGE OF MICHAEL H. MCGUIRE, PETITIONER-APPELLEE, AND CAROL SUE MCGUIRE, RESPONDENT-APPELLANT.


Appeal from the Circuit Court of Williamson County. No. 96-D-361 Honorable William H. Wilson, Judge, presiding.

Honorable Gordon E. Maag, J. Honorable Terrence J. Hopkins, J., and Honorable Clyde L. Kuehn, J.,

The opinion of the court was delivered by: Justice Maag

Respondent appeals from a judgment of dissolution entered in the circuit court of Williamson County on February 20, 1998. On appeal, respondent claims that the trial court abused its discretion in failing to award her attorney fees.

The facts pertinent to this appeal are as follows. Petitioner, Michael McGuire, and respondent, Carol Sue McGuire, were married on November 30, 1975, in Salem, Illinois. During the course of the marriage, the parties had one child and adopted another. Neither child was a minor or a dependent at the time the dissolution was commenced.

Petitioner worked as a sales representative for Grocery Supply Company. His monthly gross income was approximately $4,800. At the time of trial, he was 47 years old and was in good health. Respondent was self-employed in her own interior decorating business, A Touch of Class. She has been involved in that business since 1979. Respondent reported gross receipts of $58,635 in 1994, $98,273 in 1995, $58,801 in 1996, and $26,138 through 11 months in 1997. Respondent attributed the recent decline in her business to ongoing health conditions that flared up in the fall of 1996. Respondent, also 47 years old, sustained neck and back injuries as a result of auto accidents in 1986 and 1989. She was diagnosed with an arthritic condition, fibromyalgia, in the late 1980s. She also suffered from anxiety and depression and had been treated on and off for this condition since 1985.

On September 26, 1996, petitioner filed a petition to dissolve the marriage. On October 5, 1996, respondent filed a counterpetition. The trial was held on December 20, 1997. The judgment of dissolution of marriage was entered on February 20, 1998.

Respondent claims that the trial court abused its discretion in refusing to award her attorney fees pursuant to section 503(j) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/503(j) (West 1996)). Specifically, respondent claims that the trial court failed to consider the factors referenced in section 503(j)(2) of the Act (750 ILCS 5/503(j)(2) (West 1996)). Section 503(j) is a new provision that was added when the legislature amended the Act in 1997 (750 ILCS 5/503(j) (West 1996)). Respondent claims that section 503(j) marks a significant departure from the previous method of determining attorney fees in dissolution cases.

Prior to the 1997 amendments, section 508 of the Act governed the award of attorney fees and final fee petitions (i.e., whether attorney fees are reasonable and necessary) in dissolution cases. 750 ILCS 5/508 (West 1992). Under the former provisions of section 508(a), the court, after due notice and hearing, and after considering the financial resources of the parties, could enter an order requiring any party to pay a reasonable amount for his own costs and attorney fees and for the costs and attorney fees necessarily incurred by the opposing party. 750 ILCS 5/508(a) (West 1992).

The legislature decided that petitions for contributions to attorney fees and petitions for approval of final fees should be considered in separate and distinct proceedings. One purpose of this legislation was to reduce the potential for conflicts of interest between attorneys and their clients and for infringement upon the attorney-client privilege in cases where attorney fees became an issue. In 1997, the legislature revised a number of provisions in the Act, including provisions governing attorney fees. See 750 ILCS 5/503(j), 508 (West 1996).

Section 508(a), as amended, states in pertinent part as follows:

"The court from time to time, after due notice and hearing, and after considering the financial resources of the parties, may order any party to pay a reasonable amount for his own or the other party's costs and attorney's fees. *** At the Conclusion of the case, contribution to attorney's fees and costs may be awarded from the opposing party, in accordance with subsection (j) of Section 503. Fees and costs may be awarded to counsel from a former client in accordance with subsection (c) of this Section." 750 ILCS 5/508 (West 1996).

Section 503(j) provides in pertinent part as follows:

"(j) After proofs have closed in the final hearing on all other issues between the parties (or in conjunction with the final hearing, if all parties so stipulate) and before judgment is entered, a party's petition for contribution to fees and costs incurred in the proceeding shall be heard and decided, in accordance with the following provisions:

(1) A petition for contribution, if not filed before the final hearing on other issues between the parties, shall be filed no later than 30 days after the closing of proofs in the final ...


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