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In re Parentage of Rocca

Court of Appeal of Illinois, Second District

December 11, 2013

In re Parentage of Alan James ROCCA and Jenna Marie Rocca, Minors Janet M. Lamar, Petitioner,
Alan Peter Rocca, Respondent-Appellee Landau and Associates, P.C., Petitioner for Fees-Appellant.

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[Copyrighted Material Omitted]

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Eliot A. Landau, Landau & Associates, P.C., Woodridge, for appellant.

Barry A. Schatz, Berger Schatz, Chicago, for appellee.



[377 Ill.Dec. 396] ¶ 1 This case returns to us after our remand in

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[377 Ill.Dec. 397] In re Parentage of Rocca, 408 Ill.App.3d 956, 349 Ill.Dec. 507, 946 N.E.2d 1003 (2011). In this appeal, attorney Eliot Landau, on behalf of Landau & Associates, P.C., appeals the trial court's decisions on remand to: (1) both hold a contribution hearing and deny contribution; (2) deny Landau's petitions for supplemental and appellate attorney fees; and (3) deny Landau's motion for sanctions. For the following reasons, we affirm.


¶ 3 The facts underlying this dispute were set forth in our prior decision. Rocca, 408 Ill.App.3d at 956-58, 349 Ill.Dec. 507, 946 N.E.2d 1003. In sum, the prior appeal concerned Landau's petition for contribution toward attorney fees he charged while representing petitioner, Janet Lamar, in a parentage action. Specifically, on February 13, 2009, after having notified the parties and the court of his intent to seek attorney fees and contribution thereto, Landau withdrew as counsel for Lamar. After a proveup hearing at which Lamar did not appear, the trial court awarded Landau $18,670.96 in attorney fees. Prior thereto, however, the court dismissed Landau's petition for contribution toward those fees from respondent, Alan Peter Rocca, on the basis that, after Landau withdrew, Lamar and Rocca had entered into a settlement agreement that included a provision wherein each party agreed to be responsible for his or her attorney fees and waived " any right to a hearing on contribution to fees" against the other.

¶ 4 Landau, on behalf of Landau & Associates, P.C., appealed (the law firm was the sole appellant). We reversed the court's dismissal of the contribution petition. Id. at 970, 349 Ill.Dec. 507, 946 N.E.2d 1003. We noted that the settlement agreement was entered into after Landau had withdrawn as counsel and without his knowledge or consent, despite the fact that Landau's intent to seek fees and contribution was known before the parties settled. Id. at 969, 349 Ill.Dec. 507, 946 N.E.2d 1003. We noted case law reflecting that attorney fees, while often awarded to the party, actually belong to the attorney and that parties may not conspire to deprive attorneys of a fair fee by entering into a settlement agreement waiving contribution. Id. at 960-63, 349 Ill.Dec. 507, 946 N.E.2d 1003 (citing Heiden v. Ottinger, 245 Ill.App.3d 612, 186 Ill.Dec. 563, 616 N.E.2d 1005 (1993), Lee v. Lee, 302 Ill.App.3d 607, 236 Ill.Dec. 222, 707 N.E.2d 67 (1998), In re Marriage of Baltzer, 150 Ill.App.3d 890, 104 Ill.Dec. 196, 502 N.E.2d 459 (1986), and In re Minor Child Stella, 353 Ill.App.3d 415, 288 Ill.Dec. 889, 818 N.E.2d 824 (2004)). Further, we rejected Rocca's arguments that the 1997 amendments to the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/508 (West 1998)) invalidated those decisions, and we noted that: (1) contrary to Rocca's argument, section 503(j) of the Marriage Act (750 ILCS 5/503(j) (West 2008)), if applicable to a parentage action, did not bar Landau's contribution petition; (2) the parties could not waive something that belonged to someone else; and (3) " [w]aiving a contribution hearing does not necessarily equate to waiving contribution. We presume that parties might waive a contribution hearing when one party agrees to contribute a set amount or, conversely, when there is no question that, because of a party's financial situation, contribution to his or her fees is inappropriate." (Emphasis in original.) Rocca, 408 Ill.App.3d at 964-69, 349 Ill.Dec. 507, 946 N.E.2d 1003. We concluded that the court erred in dismissing Landau's contribution petition under the settlement agreement, and we reversed and remanded " for the trial court to consider Landau's petition for contribution

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[377 Ill.Dec. 398] toward the $18,690.96 in fees that the court found reasonable." Id. at 970, 349 Ill.Dec. 507, 946 N.E.2d 1003.

¶ 5 In light of our decision, on remand, Rocca moved for a contribution hearing. Rocca interpreted our decision as requiring the court to " consider" contribution, and he argued that he was entitled to examine the reasonableness of the requested fees for which he might now be ordered to contribute. Landau, however, objected. Landau noted that this court specifically distinguished between waiving contribution and waiving a contribution hearing. He argued that, because this court did not expressly remand for a " contribution hearing," we had, essentially, already determined that the attorney fees were reasonable and that contribution should, in fact, be awarded-possibly for the entire fee judgment. Further, Landau argued that Rocca, by virtue of his waiver in the parties' settlement agreement, was not entitled to a contribution hearing. The trial court disagreed that we had concluded that contribution must be awarded for the full amount of the fee judgment, which would, in essence, require no " consideration." Instead, it determined that we remanded for " consideration" of the erroneously dismissed contribution petition and that our decision did not preclude a hearing on that issue.

¶ 6 On June 13, 2012, the trial court held a section 503(j) final contribution hearing. Despite notice, various efforts to secure Lamar's presence failed, and she did not appear. The court asked Landau if he wished to proceed in Lamar's absence, and Landau stated that he did. Landau testified to the reasonableness of the fees that formed the basis of the $18,670.96 judgment, he requested that the court take judicial notice of the file (which it did), and he rested. Rocca moved for a directed finding, arguing primarily that Landau did not establish either the reasonableness of his fees or Lamar's inability to pay them. The court granted the motion. It noted that Rocca had stipulated that he could afford to contribute to the fee award. Nevertheless, it found that " [t]he evidence with regards to Ms. Lamar's current economic status is non existent. * * * I can't presume she's still how she was two years ago when a pleading was filed and said then she was on disability. The court has to hear current information as to her economic circumstances." ...

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