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In re Marriage of Heindl

Court of Appeals of Illinois, Second District, Second Division

May 28, 2014

In re MARRIAGE OF KEITH J. HEINDL, Petitioner-Appellee, and VICTORIA E. HEINDL, Respondent-Appellant

Page 852

Appeal from the Circuit Court of Kane County. No. 10-D-1211. Honorable David P. Kliment, Judge, Presiding.

SYLLABUS

In an appeal from a marriage dissolution action, the appellate court rejected respondent's contentions tat the trial court violated Supreme Court Rule 13 by entering orders prejudicial to her shortly after her counsel was allowed to withdraw, that her motion for interim attorney fees prevented her from hiring counsel, and that her request for a continuance due to a recent surgery was improperly denied, since the orders entered within 21 days of the date her counsel was allowed to withdraw were not prejudicial to respondent, her petition for interim attorney fees was not verified or supported by an affidavit or other nontestimonial matter, and she did not submit any affidavits or medical evidence supporting her claim that she could not proceed with the trial, she admitted that she drove herself to court, and she was able to perform " admirably" in court.

JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices Zenoff and Birkett concurred in the judgment and opinion.

OPINION

JORGENSEN JUSTICE.

Page 853

[¶1] Petitioner, Keith J. Heindl, and respondent, Victoria E. Heindl, married in 1992. In 2010, Keith petitioned to dissolve the marriage. On January 4, 2013, after a trial, the court entered the dissolution judgment. Victoria appeals, arguing that her due process rights were violated where the court, after her counsel withdrew and in violation of Illinois Supreme Court Rule 13 (eff. July 1, 2013), entered a series of orders prejudicial to her. Further, Victoria argues that the court erred where it denied her request for interim attorney fees so that she could hire counsel. Finally, Victoria argues that the court abused its discretion where it denied her request to continue the trial on account of a recent surgery. For the following reasons, we affirm.

[¶2] I. BACKGROUND

[¶3] Preliminarily, we note that there was no court reporter at trial. Accordingly, the parties submitted competing bystander's reports to the trial court. On April 18, 2013, the court certified the report that Keith submitted as more consistent with the court's recollection and notes from trial, and it struck the report that Victoria had submitted. Nevertheless, Victoria's report appears in the record. In a motion taken with this appeal, Keith moves to strike Victoria's uncertified bystander's report. While Victoria did not cite to the uncertified report in her brief, we grant Keith's motion. The following facts are, therefore, derived from the common-law record, transcripts of posttrial proceedings, and the certified bystander's report.

[¶4] On August 26, 2010, Keith filed the dissolution petition. Two years later, on August 28, 2012, Victoria's second attorney, Pamela Brunkalla, moved on Victoria's behalf to compel certain discovery and to continue the trial, which was scheduled for October 3 and 4, 2012. Then, on September 5, 2012, Brunkalla filed notice of a motion to withdraw, informing Victoria: (1) of Brunkalla's intention to withdraw; and (2) that, pursuant to Rule 13(c)(2), she should within 21 days retain new counsel or file an appearance. The notice also stated:

" PLEASE NOTE THAT THIS MOTION TO WITHDRAW HAS BEEN COMBINED WITH A PETITION FOR INTERIM ATTORNEY'S FEES AND COSTS AND OTHER ITEMS . I AM ATTEMPTING TO GET FEES TO COMPLETE THE ACCOUNTING EXAMINATION EVEN IF I AM NO LONGER ON THIS CASE." (Emphasis in original.)

[¶5] Consistent with the above notice, the record reflects that, on September 5, 2012, Brunkalla petitioned: (1) to withdraw; (2) " if Pamela Brunkalla is not given leave to withdraw," for interim attorney fees under section 501(c-1) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/501(c-1) (West 2010)); (3) regardless of whether Brunkalla was allowed to withdraw, that Keith be ordered to pay a private entity for its investigation and report regarding the parties' assets and liabilities;

Page 854

(4) regardless of whether Brunkalla was allowed to withdraw, that the trial be postponed; (5) regardless of whether Brunkalla was allowed to withdraw, that the judge conduct an in camera interview with the parties' minor child regarding visitation; and (6) to conduct further discovery. The petition noted that Victoria was unemployed and without funds to pay any additional fees. Brunkalla noted that she wished to withdraw because of a breakdown in communication with Victoria and due to Victoria's nonpayment of Brunkalla's fees and costs. Victoria signed and verified the petition. Keith responded to the petition for fees and disagreed that Victoria was without funds or access to funds to pay fees.

[¶6] On September 12, 2012, the court, apparently without Victoria present, allowed Brunkalla to withdraw and gave her leave to file a final attorney-fee petition. The order noted that a copy of the order should be sent to Victoria and that she was granted " 21 days to file her appearance or obtain other counsel." The court struck the existing October trial dates and scheduled trial for December 20 and 21, 2012, noting that " said trial dates shall be final ." (Emphasis in original.) Further, the order noted that Victoria's requests to compel, to continue trial, to conduct further discovery, for interim attorney fees and costs, and for an in camera interview were withdrawn.

[¶7] The record reflects that, on October 29, 2012 ( i.e., more than 21 days after Brunkalla was allowed to withdraw), Victoria filed a pro se appearance and a petition for interim attorney fees and costs. That same day, the court struck the fee petition, but gave Victoria leave to refile it with proper notice. Victoria refiled the petition, arguing that the fees were necessary to allow her to adequately participate in the litigation, as she was unemployed and had no remaining funds, whereas Keith was employed and earned $15,000 (gross) monthly. Victoria requested that Keith be ordered to pay to her $25,000 as interim fees and costs. No affidavits or exhibits were attached to Victoria's petition. Keith both responded to Victoria's petition and moved to dismiss it: (1) denying that Victoria's depiction of either his or her finances was accurate; (2) asserting that he owed his current counsel almost $6,000 and that he owed his former counsel $25,000; (3) asserting that he previously paid $12,000 in interim fees to Victoria's former counsel and could not afford to contribute further to her fees; and (4) arguing that an interim fee award was inappropriate, as Victoria was acting pro se and, therefore, was not incurring fees and there was currently no attorney to whom an award could be made. Keith attached financial and other affidavits to his response.

[¶8] On November 26, 2012, the court denied Victoria's fee petition. The order noted that, " if [Victoria] retains trial counsel, said counsel may file a petition for interim fees which may be heard on an emergency basis." Further, the order reiterated that the December trial dates were " firm and final ." (Emphases in original.)

[¶9] On November 29, 2012, Victoria filed an " emergency" petition for interim fees. The petition alleged that she wished to retain her former counsel, but that she owed counsel's firm approximately $9,000 and could not afford to pay for further legal work. Victoria alleged that she had already borrowed $11,000 from her mother to finance the litigation. She ...


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