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In re Parentage of J.W.

Court of Appeals of Illinois, Second District

April 28, 2017

In re PARENTAGE OF J.W., a Minor
v.
Larry W., Respondent-Appellee. Carol M., Petitioner-Appellant,

         Appeal from the Circuit Court of Du Page County, No. 01-F-424; the Hon. Timothy J. McJoynt, Judge, presiding.

          Jerry W. Kinnan, of Jerry Kinnan Ltd., of Addison, for appellant.

          Elizabeth M. Westover and Kerry M. Born, of Westover Born, P.C., of Chicago, for appellee.

          Panel JUSTICE McLAREN delivered the judgment of the court, with opinion. Justices Zenoff and Burke concurred in the judgment and opinion.

          OPINION

          McLAREN JUSTICE.

         ¶ 1 During the proceedings in this parentage action, originally filed under the Illinois Parentage Act of 1984 (Parentage Act of 1984) (750 ILCS 45/1 et seq. (West 2008)), attorney Jerry Kinnan filed three motions for "Interim Attorney Fees" on behalf of his client, petitioner Carol M., seeking fees from respondent Larry W. The trial court dismissed Carol's third motion for interim attorney fees on the grounds that she was actually seeking contribution for final attorney fees and that Carol and Kinnan did not have a written engagement agreement. Carol appeals the trial court's dismissal of her third motion for interim attorney fees. Carol argues that the trial court erred by (1) failing to expeditiously schedule a hearing on her first two motions for interim attorney fees, and (2) determining that a written engagement agreement was required. We reverse and remand for further proceedings consistent with this opinion.

         ¶ 2 I. BACKGROUND

         ¶ 3 In this parentage case, the parties are the parents of J.W., born in 2001. Larry signed a voluntary acknowledgment of paternity two days after J.W.'s birth. After Carol petitioned for child support in 2002, the trial court ordered Larry to pay child support. This case has been litigated continuously with the assistance of many attorneys throughout the years. We will concern ourselves with the most recent events.

         ¶ 4 From the time of J.W.'s birth, J.W. has lived with Carol. However, in August 2015, J.W. began living with his godparents after Carol allegedly threatened to kill J.W. and herself and was taken to a nearby hospital, where she remained for several days.

         ¶ 5 In September 2015, Larry filed a "Petition to Modify Custody, to Remove Child to Maryland, and for other Relief, " alleging that since the entry of an agreed parenting order, there had been a substantial change in circumstances, arising from the events of August 2015. On September 21, 2015, Kinnan filed his appearance on behalf of Carol. On September 28, 2015, the trial court appointed a guardian ad litem (GAL). On October 19, 2015, Carol filed a response to Larry's petition. On October 22, 2015, Carol filed a motion to modify child support.

         ¶ 6 On November 2, 2015, Carol, by and through Kinnan, filed her first motion for interim attorney fees, pursuant to sections 501(c-1) and 508 of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/501(c-1), 508 (West 2014)) and section 17 of the Parentage Act of 1984 (750 ILCS 45/17 (West 2014)).

         ¶ 7 In her motion, Carol alleged that (1) Kinnan had expended 23.5 hours on behalf of Carol since his appearance, (2) Carol owed Kinnan $7222 for attorney fees and costs, and (3) Kinnan estimated that there would be an additional $8000 in attorney fees and costs. Of note, Carol alleged that she and "[c]ounsel have been unable to come to an agreement on the amount of legal fees that [Carol] is willing to pay Counsel. Accordingly, Counsel, as the real party in interest, must therefore, seek legal fees on a quantum meruit basis." Both Kinnan and Carol attached affidavits to the motion.

         ¶ 8 On February 29, 2016, Carol, by and through Kinnan, filed her second motion for interim attorney fees. Kinnan's attached affidavit alleged that Carol owed him $14, 464 for legal services rendered, and he sought an additional $5000 for legal services he anticipated Carol would incur. Carol's notice of motion indicated that she would present her motion to the court on March 3, 2016.

         ¶ 9 On March 3, 2016, at the beginning of the call, the trial court listed all of the open motions, including Larry's motion to modify "custody, " now renamed "parental allocation, " and his motion for "removal, " now renamed "relocation"; the GAL's motion to quash Carol's subpoena of J.W.; Carol's first motion for interim attorney fees; and Carol's second motion for interim attorney fees, which the court stated had been filed that day. The court heard the GAL's motion to quash Carol's subpoena, which it granted, and then proceeded to a hearing on Larry's motion to modify the allocation of parental responsibilities. The record does not contain a transcript of the remainder of the call that day.

         ¶ 10 On March 8, 2016, Carol, by and through Kinnan, filed her third motion for interim attorney fees. Carol alleged the following. Thus far, Kinnan had expended 71.15 hours in representing Carol and, based on quantum meruit, was owed $21, 385 for attorney fees and costs. Kinnan estimated an additional $2500 in attorney fees and costs. Carol also alleged that she had previously filed two motions for interim attorney fees, which were presented to the court on December 3, 2015, and March 3, 2016, and remained pending and undetermined.

         ¶ 11 Kinnan attached his affidavit, wherein he averred, in part, the following:

"2. [Carol] ***engaged my law firm *** to represent [her] in her ongoing custody dispute with [Larry] on September 19, 2015.
3.[Kinnan] provided valuable legal services to Carol including drafting numerous pleadings, researching legal matters, consulting with [Carol, ] and representing [Carol in court on several occasions.]
4. [Carol] and Counsel have been unable to come to a meeting of the minds regarding the hourly rate that [Carol] is to be charged for legal services rendered. I informed [Carol] that my hourly billing rate is $300.00. However, [Carol] has indicated that she is unable to pay Counsel for legal services rendered nor is she able to pay for her court ordered GAL fees.
5.[Carol] has not paid me a retainer fee nor has she paid me any amount towards the accrued and unpaid legal fees.
6. Counsel is not providing [Carol] any legal services on a pro bono basis and Counsel has so informed [Carol] that he is not working pro bono and that he wants to be paid for legal services rendered.
7.Notwithstanding that [Carol] is apparently unable to pay Counsel for services rendered and there has been no meeting of the minds regarding legal fees [Carol] must pay, Counsel is nevertheless entitled to be paid for services rendered on a quantum meruit basis. [Citation.]
8. Quantum meruit literally mean 'as much as he deserves.' " (Emphasis in original.)

         ¶ 12 In addition, Carol attached her affidavit to her third motion for attorney fees, wherein she averred, in part, the following:

"2. I met with [Kinnan] *** on September 19, 2015, to discuss with him [Larry's] custody and removal petitions that were pending before the court. I asked Counsel to ...

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