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In Re Parentage of Alan James v. Alan Peter Respondent-Appellee (Landau and ) Timothy J. Mcjoynt

March 14, 2011


Appeal from the Circuit Court of Du Page County. No. 08-F-150 Janet M. Lamar, Petitioner, Honorable Rocca, Judge, Presiding.

PRESIDING JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices McLaren and Burke concurred in the judgment and opinion.


In this paternity action filed under the Illinois Parentage Act of 1984 (Parentage Act) (750 ILCS 45/1 et seq. (West 2008)), Eliot A. Landau of Landau & Associates, P.C., petitioned for final attorney fees from his former client, petitioner Janet M. Lamar. On February 10, 2010, the trial court granted Landau's petition for fees from Lamar, but the court dismissed Landau's request for contribution toward those fees from respondent, Alan Peter Rocca. The court denied contribution on the basis that a settlement agreement entered into between Lamar and Rocca after Landau had withdrawn as counsel included a provision waiving all claims for contribution. Landau appeals the court's dismissal of his request for contribution from Rocca. For the following reasons, we reverse and remand.


On March 17, 2008, Lamar filed a parentage action seeking to establish Rocca as the father of her two children. Landau represented Lamar in the case and, on April 14, 2008, Landau filed a petition for interim attorney fees. In the petition, Landau asserted on Lamar's behalf that Lamar had not been employed since becoming disabled in or about April 2005 and that Rocca owns a jewelry shop and earns over $150,000 per year. The petition alleged that Lamar had insufficient income to pay the legal fees necessary to prosecute the paternity action. In response, Rocca asserted that he earned approximately $125,000 annually. Landau and Rocca's counsel subsequently exchanged correspondence on the interim fees; Rocca's counsel at one point represented that Rocca would contribute toward attorney fees an amount to be agreed upon. Landau sent Rocca's counsel a letter noting that, although Rocca had paid a portion of Landau's requested fees, Landau had not received further payments despite oral assurances that additional payments would be forthcoming.

The petition for interim fees was continued several times. Ultimately, the petition was not heard because, on February 13, 2009, Landau moved to withdraw as counsel. In his motion to withdraw, Landau requested that the court hold hearings to determine his final attorney fees and to assess Rocca's contribution thereto. Further, in his notice of motion, Landau asserted that, on February 26, 2009, there would be "an immediate hearing on the issue of interim attorney's fees based on the petition filed April 14, 2008." On February 26, 2009, the court granted Landau's motion to withdraw. The court did not hold a hearing that day on Landau's interim-fees petition but, rather, granted Landau leave to file a "petition for final fees and contribution within 30 days." Lamar hired replacement counsel.

Less than three months later, on May 4, 2009, the court entered a settlement agreement that had been executed by the parties with the assistance of their counsel (not Landau). The agreement noted Rocca's gross annual income of $125,000. Further, it provided:

"Attorney's Fees: Each party shall be solely and exclusively responsible for payment of any and all attorney's fees that have been, or will be, incurred by that party. Each party waives any right to a hearing on contribution to fees that he or she may possess against the other."

Landau asserts that, at the time, he had no notice of the parties' execution of the agreement or the court date during which the agreement was entered. The record does not indicate to the contrary.

One month after the settlement agreement was entered, on June 4, 2009, Landau petitioned for final attorney fees. The petition noted that, upon information and belief, Lamar received social security disability benefits and, for the entire 2008 calendar year, had been unemployed. Accordingly, Landau requested an "award in full or a substantial contribution" from Rocca toward Lamar's attorney fees.

Rocca moved to strike and dismiss Landau's postjudgment petition, arguing that it was untimely and that all claims for contribution were waived in the parties' settlement agreement.

On February 10, 2010, the court granted Rocca's motion. First, however, the court rejected the argument that, because Landau's petition was filed more than 30 days after the court's February 26, 2009, order, it was untimely. The court instead found sufficient that it was a final fees petition filed 30 days after entry of the parties' settlement agreement.

The court then found that, in the settlement agreement, the parties waived from one another any contribution toward each other's fees:

"THE COURT: I find that Mr. Landau's fee petition is a contribution fee petition against, not his client, [but] against Mr. Rocca. And I find that that was waived by both Ms. Lamar and Ms. [sic] Rocca, and they both had counsel at the time, and that is binding on the parties.

Unfortunately, Mr. Landau wasn't a party to that agreement, but that was Mr. Rocca's and Ms. Lamar's ability to do. They can agree as to how they wish. That to me bars any fee petition for contribution against dad. So I'm going to grant the motion.


MR. LANDAU: Exception, your honor, under Lee v. Lee, [302 Ill. App. 3d 607 ...

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