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In re Marriage of Tiballi

Court of Appeals of Illinois, Second District

June 7, 2013

In re MARRIAGE OF ROBERT N. TIBALLI, Petitioner-Appellant, and SHEILA J. ILAGAN TIBALLI, Respondent-Appellee.

Appeal from the Circuit Court of Kane County. No. 02-D-1506 Honorable Robert P. Pilmer, Judge, Presiding.

JUSTICE McLAREN delivered the judgment of the court, with opinion. Justice Hutchinson concurred in the judgment and opinion. Justice Zenoff dissented, with opinion.



¶ 1 In September 2005, the circuit court of Kane County entered a judgment dissolving the marriage of Robert N. Tiballi and Sheila J. Ilagan Tiballi. This appeal stems from a child custody dispute that arose years later. Robert filed a petition to modify custody, but the petition was voluntarily dismissed without prejudice. The trial court ordered Robert to pay the fees of a psychologist appointed by the trial court pursuant to section 604(b) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/604(b) (West Supp. 2011)). Robert argues on appeal that the fees were not taxable as costs upon the voluntary dismissal of his petition. We disagree and therefore affirm.

¶ 2 The judgment of dissolution awarded the parties joint legal custody of their daughter, Francesca, but designated Sheila as the residential custodian. In January 2010, Robert filed his petition to modify the judgment by designating him as Francesca's residential custodian. Pursuant to section 604(b) of the Act, the trial court appointed psychologist Robert B. Shapiro to advise the court in connection with the custody dispute. The order appointing Shapiro evenly divided the costs of Shapiro's services between the parties. Shapiro submitted a written report recommending that Francesca continue to reside with Sheila. Sheila moved to dismiss Robert's petition, alleging that, through his attorney, he had indicated that he no longer planned to proceed with the petition. The trial court granted the motion. The trial court subsequently modified the order to provide that the dismissal was without prejudice. In doing so, the trial court also granted Sheila leave to file a petition for costs. In her petition, Sheila alleged, inter alia, that pursuant to the order appointing Shapiro she had paid Shapiro $4, 975, which represented her share of his fees. She sought reimbursement of the sum from Robert. The trial court entered judgment against Robert for $4, 975, and this appeal followed.[1]

¶ 3 Section 604(b) provides:

"The court may seek the advice of professional personnel, whether or not employed by the court on a regular basis. The advice given shall be in writing and made available by the court to counsel. Counsel may examine, as a witness, any professional personnel consulted by the court, designated as a court's witness. Professional personnel consulted by the court are subject to subpoena for the purposes of discovery, trial, or both. The court shall allocate the costs and fees of those professional personnel between the parties based upon the financial ability of each party and any other criteria the court considers appropriate. Upon the request of any party or upon the court's own motion, the court may conduct a hearing as to the reasonableness of those fees and costs." 750 ILCS 5/604(b) (West Supp. 2011).

Beyond the statutory authority to allocate fees, courts have the inherent power to order the parties to pay the fees of a witness retained under this provision. In re Marriage of Petersen, 319 Ill.App.3d 325, 333-34 (2001). As noted, the issue raised on appeal is whether fees charged by a professional appointed pursuant to section 604(b) of the Act constitute "costs" that may be taxed to a party who voluntarily dismisses, without prejudice, a petition to modify child custody. For the reasons that follow, we hold that such fees are taxable as costs in such an instance.

¶ 4 In Vicencio v. Lincoln-Way Builders, Inc., 204 Ill.2d 295 (2003), a plaintiff who prevailed in a personal injury lawsuit sought to recover from the defendant the costs associated with taking the evidence deposition of the plaintiff's treating physician. Those costs included, inter alia, the physician's fee. The court noted that "only those costs specifically designated by statute may be taxed as costs, " but added that "the legislature may nevertheless grant the power to the courts to make rules under which costs may be taxed." Id. at 300. The court proceeded to consider whether the physician's fee was recoverable under either section 5-108 of the Code of Civil Procedure (Code) (735 ILCS 5/5-108 (West 2010)) or Illinois Supreme Court Rule 208(d) (eff. Oct. 1, 1975). Section 5-108 provides, "If any person sues in any court of this state in any action for damages personal to the plaintiff, and recovers in such action, then judgment shall be entered in favor of the plaintiff to recover costs against the defendant, to be taxed, and the same shall be recovered and enforced as other judgments for the payment of money, except in the cases hereinafter provided." 735 ILCS 5/5-108 (West 2010). In concluding that this provision did not apply to the physician's fee, the court reasoned as follows:

"Under its definition of 'costs, ' Black's Law Dictionary distinguishes between court costs, the 'charges or fees taxed by the court, such as filing fees, jury fees, courthouse fees, and reporter fees, ' and litigation costs, the 'expenses of litigation, prosecution, or other legal transaction, esp[ecially] those allowed in favor of one party against the other.' [Citation.] It is undisputed that section 5-108 mandates the taxing of costs commonly understood to be 'court costs, ' such as filing fees, subpoena fees, and statutory witness fees, to the losing party.
The fee of the treating physician that is at issue in the present case is a 'litigation cost, ' and as such, is not a cost the taxing of which is mandated by section 5-108. Thus, it may be taxed as a cost only if authorized by another statute or by supreme court rule." Vicencio, 204 Ill.2d at 302.

¶ 5 Here, the trial court ordered Robert to pay Shapiro's fees pursuant to section 2-1009(a) of the Code, which provides, "The plaintiff may, at any time before trial or hearing begins, upon notice to each party who has appeared or each such party's attorney, and upon payment of costs, dismiss his or her action or any part thereof as to any defendant, without prejudice, by order filed in the cause." (Emphasis added.) 735 ILCS 5/2-1009(a) (West 2010). It is undisputed that the dismissal of Robert's petition was in the nature of a voluntary dismissal under section 2-1009(a). By extension of the reasoning set forth in Vicencio, we read the word "costs, " as used in section 2-1009(a), to mean "court costs"—a term used in contradistinction to "litigation expenses." The resolution of this appeal depends on which category includes the fees of a professional appointed by the trial court pursuant to section 604(b).

¶ 6 In our view, what distinguishes court costs (such as filing fees, jury fees, subpoena fees, and statutory witness fees) from litigation expenses (such as the treating physician's fees in Vicencio) is the mandatory and nonnegotiable character of the former. The fees in the first category are those that must be paid simply to have one's case heard (before a jury if appropriate) and to obtain compulsory attendance of witnesses and production of evidence. Payment of these fees provides modest recompense for citizens summoned by the court to give testimony and helps to defray the operational expenses of the court system (including the expense of compensating those called to serve as jurors). In this way, these fees differ from privately incurred expenses, such as fees (beyond those required by statute) that a party agrees to pay a treating physician as compensation for time spent assisting in the preparation of the case and providing testimony.

¶ 7 The fees of a professional appointed pursuant to section 604(b) are analogous to the fees that have been deemed to be recoverable court costs. The section 604(b) professional is retained by the court to assist it in deciding the controversy before it. The professional neither is retained by, nor serves at the behest of, any party. Whether to engage the services of the professional is ultimately the prerogative of the court, not of the parties, and the professional's fees are not subject to private negotiation in the same way a treating physician's fees for litigation services might be. The services of section 604(b) professionals are a judicial resource, not a private litigation resource. We see no reason to treat the costs of such services differently from the costs of other judicial resources (both physical and human) that are defrayed by the collection of various fees and that are taxable under sections 5-108 and 2-1009(a) of the Code and similar provisions.

¶ 8 Relying on both Vicencio and an earlier decision from our supreme court, Galowich v. Beech Aircraft Corp., 92 Ill.2d 157 (1982), Robert argues that, because his petition did not proceed to trial, Shapiro's fees were not taxable as costs. At issue in Galowich was whether the defendants' deposition expenses were ...

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