Court of Appeals of Illinois, Second District, Second Division
In re MARRIAGE OF GREGORY PHILLIP KANE, Petitioner-Appellee, and HEATHER ANN KANE, Respondent-Appellee Michael D. Canulli, Appellant.
denied March 28, 2017
from the Circuit Court of Du Page County, No. 14-D-1199; the
Hon. Linda E. Davenport, Judge, presiding.
Michael D. Canulli, of Naperville, appellant pro se.
Natalie M. Stec, of Wolfe & Stec, Ltd., of Woodridge, for
appellee Gregory Kane.
Jonaitis and James M. Quigley, of Beerman Pritikin Mirabelli
Swerdlove LLP, of Chicago, for other appellee.
JUSTICE SPENCE delivered the judgment of the court, with
opinion. Justices McLaren and Schostok concurred in the
judgment and opinion.
1 This dispute concerns fees sought by attorney Michael D.
Canulli, who represented petitioner, Gregory Phillip Kane,
during a portion of his dissolution-of-marriage proceeding.
Upon withdrawing as counsel, Canulli filed against Gregory a
petition for setting final fees and costs pursuant to section
508(c) of the Illinois Marriage and Dissolution of Marriage
Act (Act) (750 ILCS 5/508(c) (West 2014)), and against
respondent, Heather Ann Kane, a petition for contribution
pursuant to section 503(j) of the Act (750 ILCS 5/503(j)
(West 2014)). In both petitions, Canulli sought an award of
approximately $48, 000, which was in addition to the $37, 500
that he had already been paid. Following a full evidentiary
hearing, the trial court denied Canulli's request for
contribution from Heather, but awarded Canulli $12, 500 on
his petition against Gregory. Because the trial court's
rulings on the petitions were not an abuse of discretion, we
2 I. BACKGROUND
3 Gregory and Heather were married in 1995 and have two minor
children. In June 2014, Gregory filed a pro se
petition for dissolution of marriage. He thereafter retained
Canulli on July 1, 2014. Canulli and Gregory's written
engagement agreement provided that, if Gregory had an
objection regarding any of Canulli's billing statements,
he would notify Canulli in writing within seven days of
receiving the statement; otherwise, the objection would be
considered waived. Canulli filed his appearance on behalf of
Gregory on July 23, 2014. On September 23, 2014, the trial
court entered an order awarding Canulli $37, 500 in interim
attorney fees, by way of a qualified domestic relations order
that partially liquidated Heather's retirement account.
Canulli's billing records indicated that from July 1,
2014, through September 23, 2014, he billed Gregory
approximately $35, 000 in attorney fees. On January 15, 2015,
Canulli filed a second petition for interim fees, seeking an
additional $72, 000. According to the petition, said sum
would satisfy his then-unpaid fees of $37, 000 and provide an
additional retainer of $35, 000.
4 On February 4, 2015, Canulli sent Gregory an email, stating
that his balance due was nearly $43, 000, that he would be
willing to stay on the case if Gregory and Heather entered an
agreed order to each receive $200, 000 from Heather's
retirement account, and that Gregory would have to further
agree to use $90, 000 to pay Canulli's fees, with the
surplus funds constituting an additional retainer.
5 Gregory did not agree, and on February 10, 2015, Canulli
filed an emergency motion to withdraw as counsel, alleging an
inability to communicate with Gregory and unpaid attorney
fees. On February 13, 2015, the trial court granted
Canulli's request to withdraw his appearance and also
granted him leave to file fee petitions. Gregory represented
himself for several weeks and then retained new counsel, who
entered an appearance on April 23, 2015. Said counsel
continues to represent Gregory in this appeal.
6 Within the dissolution action, on April 15, 2015, Canulli
filed against Gregory a petition for setting final fees and
costs pursuant to section 508(c) of the Act. Canulli also
filed against Heather a petition for contribution pursuant to
section 503(j) of the Act. The engagement agreement and 28
pages of itemized billing statements were among the exhibits
attached to the fee petitions. In both petitions, Canulli
acknowledged that he had already been paid $37, 500 in fees,
but he alleged that he was owed an additional $48, 000.
7 On May 1, 2015, the trial court entered a judgment for
dissolution of marriage, which incorporated a marital
settlement agreement and a joint parenting agreement. Said
judgment awarded Gregory and Heather joint legal custody of
the children, awarded Heather primary residential custody of
the children, established a visitation schedule, and awarded
Gregory $27, 000 in maintenance in gross.
8 The trial court held a day-long evidentiary hearing on
Canulli's fee petitions on July 2, 2015. The court took
judicial notice of the court file and admitted into evidence
Canulli's 28 pages of itemized billing statements, which
reflected that he had billed Gregory for 268.7 hours from
July 2014 until he withdrew in February 2015. At the hearing,
Canulli testified, in relevant part, as follows. He had
practiced family law for 38 years. Gregory filed a number of
pleadings pro se, which Canulli agreed was not
normal or customary. The total fees incurred in Canulli's
representation of Gregory were $85, 529.86, of which he had
been paid $37, 500. Canulli thus sought the remaining balance
of more than $48, 000. Gregory and Heather had no ability to
communicate or resolve any matters in the case, and "the
case was litigious on both ends." Gregory was
"unusually extraordinarily emotional" about the
divorce. Gregory and Canulli exchanged emails almost every
day, and sometimes more than once a day. Canulli also
testified as to his billing practices that he recorded
services contemporaneously when rendered and that he reviewed
each bill for accuracy before mailing it to Gregory.
9 On cross-examination, Canulli was questioned regarding
billing entries that opposing counsel asserted were
unreasonable and unnecessary. Much of the hearing was spent
going line-by-line through these entries. Canulli was
questioned regarding time that he billed to review pleadings
that, according to his billing statements, were filed by
Heather when in fact no such pleadings had been filed.
Canulli also billed for drafting motions that were not
noticed or presented to the court and in some cases never
filed. Canulli acknowledged that he did not prepare for
trial, nor did he prepare a trial notebook, parenting
agreement, or marital settlement agreement. On several days
he billed more than 10 hours on Gregory's case.
10 Gregory testified as follows. He was employed by the
Illinois River Winery, a corporation of which he was the sole
shareholder and director and from which he drew an annual
salary of $18, 000. Gregory was awarded the business by way
of the parties' marital settlement agreement. The
corporation had recently emerged from chapter 11 bankruptcy,
and Gregory operated it judgment-free. The gross receipts for
the winery in 2014 were approximately $500, 000, and its
checking account contained approximately $3000. The winery
owned the real property it was situated on, but the property
was encumbered by several loans, totaling approximately $200,
000. By way of the marital settlement agreement, Gregory was