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Macaluso v. Macaluso

May 15, 2002


Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois No. 95-D-13366 Honorable Kathleen Kallan Judge, Presiding.

The opinion of the court was delivered by: Justice Holdridge


This appeal arises from a post-dissolution proceeding involving Nancy Macaluso, n/k/a Nancy Ventrello (Nancy) and Louis Macaluso (Lou). Nancy appeals from a judgment of the circuit court of Will County dismissing as untimely her petition for contribution from Lou toward her attorney's fees and costs. On appeal, she maintains that the trial court erred in holding that her petition was untimely. We reverse and remand with direction that the trial court grant her petition.

A judgment of dissolution of marriage dissolving Nancy's and Lou's marriage was entered on January 10, 1997. On February 18, 1998, Lou filed a three-count petition for modification. Count III of the petition sought a change in custody of the party's two children. On October 27, 1998, the court entered an order appointing attorney Michelle Hansen as guardian ad litem (GAL) for the children. In the order appointing the GAL, the court reserved the issue of apportionment of the GAL's fees between the parties. On March 12, 1999, a hearing was held on the GAL's petition for attorney fees to date, and an agreed order for judgment was entered against both parties for $1,625.

On June 22, 1999, following 15 non-consecutive days of hearing, the trial court entered an order dismissing count I of Louis' petition as moot, and denying counts II and III. On July 13, 1999, Nancy filed her petition for adjudication of costs and fees seeking contribution from Louis toward her attorney fees and costs. On August 16, 1999, Louis filed a response to Nancy's petition for costs and fees, denying each allegation of the petition, but raising no affirmative defense. In September 1999, the GAL filed a supplemental petition for fees and on March 22, 2000, the GAL filed a final petition for fees. Hearing on both the GAL fee petition and Nancy's petition for fees and costs were continued from time to time over a 15-month period, until both were heard on October 24, 2000.

On October 24, 2000, the trial court entered an order finding that the GAL petition was timely and granting her fees totaling $10,034.25. The parties were ordered to split the GAL fees equally, with Louis to be given credit for a previous payment. Judgment was entered against Louis for $5,017.12 and against Nancy for $3,392.13. In that same order, the trial court found that the fees sought by Nancy's counsel were reasonable and necessary; and that it would be appropriate to order Louis to contribute 60% towards Nancy's attorney's fees. However, the trial court, on October 24, 200, dismissed Nancy's petition as untimely, finding that it was bound by In re Marriage fo Konchar, 312 Ill. App. 3d 441 (2000).

Application for attorney fees in a post-decree dissolution proceeding are governed by section 508 of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) 750 ILCS 5/508 (West 2000). Section 508(a) states in relevant 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 2000).

Reference is made in section 508 to section 503(j), which states:

"(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 hearing or within such other period as the court orders.

(2) Any award of contribution to one party from the other party shall be based on the criteria for division of marital property under this Section 503 and, if maintenance has been awarded, on the criteria for an award of maintenance under Section 504.

(3) The filing of a petition for contribution shall not be deemed to constitute a waiver of the attorney-client privilege between the petitioning party and current or former counsel; and such a waiver shall not constitute a prerequisite to a hearing for contribution. If either party's presentation on contribution, however, includes evidence within the scope of the attorney-client privilege, the disclosure or disclosures shall be narrowly construed and shall not be deemed by the court to constitute a general waiver of the privilege as to matters beyond the scope of the presentation.

(4) No finding on which a contribution award is based or denied shall be asserted against counsel or former counsel for purposes of any hearing under subsection (c) or (e) of ...

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