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In Re Marriage of

August 5, 2011

IN RE MARRIAGE OF
KRISTINA A. BANIAK,
PETITIONER-APPELLANT, AND
RICHARD BANIAK, RESPONDENT (DEAN DUSSIAS, APPELLEE.)



Appeal from the Circuit Court of Cook County. Honorable Raul Vega, Judge Presiding. No. 06 D 7352

The opinion of the court was delivered by: Justice Howse

JUSTICE HOWSE delivered the judgment of the court, with opinion.

Presiding Justice Fitzgerald Smith and Justice Epstein concurred in the judgment and opinion.

OPINION

¶ 1 Petitioner Kristina Baniak appeals from a judgment granting attorney fees to her former attorney, Dean Dussias, entered by the circuit court of Cook County resulting from Dussias' representation of Baniak in a dissolution of marriage matter. On appeal Kristina argues the trial court abused its discretion when it issued its order awarding attorney fees to Dussias because: (1) Dussias failed to file his fee petition within 30 days of entry of the judgment for dissolution of marriage as required by section 508(c)(5) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/508(c)(5) (West 2008)); (2) Dussias failed to seek leave to withdraw as Kristina's counsel before filing his fee petition as required by section 508(c)(1) of the Act (750 ILCS 5/508(c)(1) (West 2008)); (3) the trial court failed to conduct an evidentiary hearing on the fee petition; (4) Dussias' engagement letter is defective; (5) and Dussias' fees are excessive. For the reasons set forth below, we affirm.

¶ 2 BACKGROUND

¶ 3 Petitioner Kristina Baniak entered into a written "Engagement Agreement" with attorney Dean Dussias for his representation in a dissolution of marriage proceeding on April 8, 2008. The cause was resolved by a marriage settlement agreement, where Kristina agreed to be solely responsible to pay her attorney fees in the matter. The trial court entered a judgment for dissolution of marriage on October 31, 2008, which incorporated the terms of the parties' marriage settlement agreement.

¶ 5 Dussias filed a petition for setting final attorney fees on December 1, 2008, a period of 31 days after the trial court entered its judgment for dissolution of marriage.

¶ 6 On December 29, 2008, the trial court granted Dussias leave to withdraw as counsel for Kristina. Kristina filed a pro se appearance on the fee petition matter on February 5, 2009.

¶ 7 On July 10, 2009, the trial court awarded attorney fees to Dussias in the amount of $71,347.50. Kristina filed this timely appeal of the trial court's award of attorney's fees to Dussias.

¶ 8 ANALYSIS

¶ 9 In this appeal Kristina claims the trial court abused its discretion when it issued its order awarding attorney's fees to Dussias because: (1) the court lost subject matter jurisdiction to assess attorney's fees when Dussias failed to file his fee petition within 30 days of entry of the judgment for dissolution of marriage as required by section 508(c)(5) of the Act; (2) Dussias failed to seek leave to withdraw as Kristina's counsel prior to filing his fee petition as required by section 508(c)(1) of the Act (750 ILCS 5/508(c)(1) (West 2008)); (3) the trial court failed to conduct an evidentiary hearing on the fee petition; (4) Dussias' engagement letter is defective; and (5) Dussias' fees are excessive.

¶ 10 The allowance of attorney fees and the amount awarded are matters within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion. In re Marriage of Suriano, 324 Ill. App. 3d 839, 846 (2001). A reviewing court is not justified in substituting its discretion for that of the trial court. Id. The question for the reviewing court is not whether it agrees with the trial court's decision; rather, the reviewing court must analyze whether the trial court, in the exercise of its discretion, acted arbitrarily without conscientious judgment or, in view of all the circumstances, exceeded the bounds of reason and ignored recognized principles of law so that substantial injustice resulted. Id.

ΒΆ 11 The question before us is one of statutory interpretation. The fundamental canon of construction is to ascertain and give effect to the intention of the legislature. Nottage v. Jeka, 172 Ill. 2d 386, 392 (1996). The best indicator of legislative intent is typically the plain and ordinary meaning of the language of the statute. Macaluso v. Macaluso, 334 Ill. App. 3d 1043, 1047 (2002). Statutory ...


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