In re Parentage of Rocca ( 2011 )

No. 2—10—0234
Opinion filed March 14, 2011
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
In re PARENTAGE OF ALAN JAMES ) Appeal from the Circuit Court
ROCCA and JENNA MARIE ROCCA, ) of Du Page County.
Minors )
) No. 08—F—150
)
(Janet M. Lamar, Petitioner, v. Alan Peter ) Honorable
Rocca, Respondent-Appellee (Landau and ) Timothy J. McJoynt,
Associates, P.C., Petitioner-Appellant)). ) Judge, Presiding.
______________________________________________________________________________
PRESIDING JUSTICE JORGENSEN delivered the judgment of the court, with opinion.
Justices McLaren and Burke concurred in the judgment and opinion.
OPINION
In this paternity action filed under the Illinois Parentage Act of 1984 (Parentage Act) (750
ILCS 45/1 et seq. (West 2008)), Eliot A. Landau of Landau & Associates, P.C., petitioned for final
attorney fees from his former client, petitioner Janet M. Lamar. On February 10, 2010, the trial
court granted Landau’s petition for fees from Lamar, but the court dismissed Landau’s request for
contribution toward those fees from respondent, Alan Peter Rocca. The court denied contribution
on the basis that a settlement agreement entered into between Lamar and Rocca after Landau had
withdrawn as counsel included a provision waiving all claims for contribution. Landau appeals the
court’s dismissal of his request for contribution from Rocca. For the following reasons, we reverse
and remand.
I. BACKGROUND
No. 2—10—0234
On March 17, 2008, Lamar filed a parentage action seeking to establish Rocca as the father
of her two children. Landau represented Lamar in the case and, on April 14, 2008, Landau filed a
petition for interim attorney fees. In the petition, Landau asserted on Lamar’s behalf that Lamar had
not been employed since becoming disabled in or about April 2005 and that Rocca owns a jewelry
shop and earns over $150,000 per year. The petition alleged that Lamar had insufficient income to
pay the legal fees necessary to prosecute the paternity action. In response, Rocca asserted that he
earned approximately $125,000 annually. Landau and Rocca’s counsel subsequently exchanged
correspondence on the interim fees; Rocca’s counsel at one point represented that Rocca would
contribute toward attorney fees an amount to be agreed upon. Landau sent Rocca’s counsel a letter
noting that, although Rocca had paid a portion of Landau’s requested fees, Landau had not received
further payments despite oral assurances that additional payments would be forthcoming.
The petition for interim fees was continued several times. Ultimately, the petition was not
heard because, on February 13, 2009, Landau moved to withdraw as counsel. In his motion to
withdraw, Landau requested that the court hold hearings to determine his final attorney fees and to
assess Rocca’s contribution thereto. Further, in his notice of motion, Landau asserted that, on
February 26, 2009, there would be “an immediate hearing on the issue of interim attorney’s fees based
on the petition filed April 14, 2008.” On February 26, 2009, the court granted Landau’s motion to
withdraw. The court did not hold a hearing that day on Landau’s interim-fees petition but, rather,
granted Landau leave to file a “petition for final fees and contribution within 30 days.” Lamar hired
replacement counsel.
-2-
No. 2—10—0234
Less than three months later, on May 4, 2009, the court entered a settlement agreement that
had been executed by the parties with the assistance of their counsel (not Landau). The agreement
noted Rocca’s gross annual income of $125,000. Further, it provided:
“Attorney’s Fees: Each party shall be solely and exclusively responsible for payment
of any and all attorney’s fees that have been, or will be, incurred by that party. Each party
waives any right to a hearing on contribution to fees that he or she may possess against the
other.”
Landau asserts that, at the time, he had no notice of the parties’ execution of the agreement or the
court date during which the agreement was entered. The record does not indicate to the contrary.
One month after the settlement agreement was entered, on June 4, 2009, Landau petitioned
for final attorney fees. The petition noted that, upon information and belief, Lamar received social
security disability benefits and, for the entire 2008 calendar year, had been unemployed. Accordingly,
Landau requested an “award in full or a substantial contribution” from Rocca toward Lamar’s
attorney fees.
Rocca moved to strike and dismiss Landau’s postjudgment petition, arguing that it was
untimely and that all claims for contribution were waived in the parties’ settlement agreement.
On February 10, 2010, the court granted Rocca’s motion. First, however, the court rejected
the argument that, because Landau’s petition was filed more than 30 days after the court’s February
26, 2009, order, it was untimely. The court instead found sufficient that it was a final fees petition
filed 30 days after entry of the parties’ settlement agreement.
The court then found that, in the settlement agreement, the parties waived from one another
any contribution toward each other’s fees:
-3-
No. 2—10—0234
“THE COURT: I find that Mr. Landau’s fee petition is a contribution fee petition
against, not his client, [but] against Mr. Rocca. And I find that that was waived by both Ms.
Lamar and Ms. [sic] Rocca, and they both had counsel at the time, and that is binding on the
parties.
Unfortunately, Mr. Landau wasn’t a party to that agreement, but that was Mr.
Rocca’s and Ms. Lamar’s ability to do. They can agree as to how they wish. That to me bars
any fee petition for contribution against dad. So I’m going to grant the motion.
***
MR. LANDAU: Exception, your honor, under Lee v. Lee, [302 Ill. App. 3d 607(1998)], that’s improper?
THE COURT: I’m saying that the parties bargained away the right to file [a] fee
petition [for] contribution. I find here the petition against [Rocca] is a contribution [petition],
and it’s barred by that agreement. That’s what I find.”
After a proveup, the court found that Landau’s request for $18,670.96 in attorney fees was
reasonable and entered judgment against Lamar in that amount. Landau appeals.
II. ANALYSIS
A. Motions to Strike
We address first the parties’ cross-motions to strike. In his response brief on appeal, Rocca
asserts that Landau’s brief violates Illinois Supreme Court Rule 341 (eff. Mar. 16, 2007), in that his
statement of facts contains various, unspecified statements that contain argument and are unsupported
by the record. Rocca requests that we dismiss Landau’s appeal or strike those portions of his brief
that violate Rule 341. Similarly, Landau, in his reply brief, argues that Rocca’s response brief violates
-4-
No. 2—10—0234
Rule 341 with unsupported and/or misleading allegations, and he requests that we strike Rocca’s brief
and allow him to file a petition for sanctions.
We deny both parties’ motions to strike the opposing party’s brief. We will disregard those
portions of the briefs that we deem to violate Rule 341.
B. Contribution
The sole issue on appeal is whether the trial court properly concluded that the parties’
settlement agreement, in which they waived claims for contribution against one another, could
preclude Landau, as Lamar’s former counsel, from seeking contribution against Rocca for Lamar’s
attorney fees. Landau argues that he has a statutory right under section 17 of the Parentage Act (750
ILCS 45/17 (West 2008)) and sections 501, 503, and 508 of the Illinois Marriage and Dissolution of
Marriage Act (Marriage Act) (750 ILCS 5/501, 503, 508 (West 2008)) to seek his fees against any
party in the litigation and that his right cannot be contracted away by the parties. Rocca disagrees with
Landau’s statutory interpretation and further argues that the cases upon which Landau relies do not
apply to the Marriage Act as amended in 1997 (see Pub. Act 89—712 (eff. June 1, 1997)). Applying
a de novo standard of review to this issue of law (In re Estate of Dierkes, 191 Ill. 2d 326, 330 (2000)
(issue of statutory interpretation subject to de novo review)), we conclude that the court’s order was
improper.
We begin with section 17 of the Parentage Act, which provides that, in a parentage action, the
court may order reasonable attorney fees and costs to be paid “by the parties in accordance with the
relevant factors specified in section 508” of the Marriage Act. (Emphasis added.) 750 ILCS 45/17
(West 2008). However, section 508 of the Marriage Act, which addresses “attorney’s fees; client’s
rights and responsibilities respecting fees and costs,” cross-references other sections of the Marriage
-5-
No. 2—10—0234
Act and, accordingly, consideration of the “relevant” portions thereof as applied to the Parentage Act
becomes more complicated. Indeed, one court has referred to the process of turning to the Marriage
Act to assess attorney fees and costs under the Parentage Act as a “tortuous path.” In re the Minor
Child Stella, 353 Ill. App. 3d 415, 418 (2004). For the reader’s sake, we temporarily forestall a
discussion of the Marriage Act’s specific provisions. Instead, having noted that the two statutes are
interrelated for purposes of our analysis, we address first three cases that Landau argues support his
position that the parties could not unilaterally waive his ability to petition for contribution.
In the first case, Heiden v. Ottinger, 245 Ill. App. 3d 612 (1993), this court considered an
attorney’s request to declare void a settlement agreement provision requiring the parties to be
responsible for their own attorney fees. There, the mother had filed a paternity action and, during the
litigation, her attorney petitioned for interim fees. The father was ordered to pay the mother a portion
of her existing fees. Later, her attorney filed another petition for fees. However, the mother and the
father agreed to a settlement drawn up by his counsel, which included a provision that each party
would pay his or her own fees. The next day, the mother discharged her attorney and, two days later,
the settlement agreement was entered by the trial court without the mother’s former attorney’s
knowledge.
After his efforts to vacate the settlement were rejected, the mother’s former attorney appealed.
On appeal, we rejected the father’s argument that, because the mother’s former attorney was not a
party to the lawsuit, the former attorney should not be permitted to prolong the litigation by pursuing
fees from the father after the parties had settled and the attorney had been discharged. Id. at 614. In
considering “a discharged attorney’s right to pursue his former client’s adversary for fees after the suit
had settled,” we questioned whether the attorney had such an interest in the payment of his fees that
-6-
No. 2—10—0234
the mother could not unilaterally decide which party would pay. Id. at 617. We noted that section
17 of the Parentage Act does not limit which portions of section 508 of the Marriage Act are to be
considered in assessing fees and that section 508 permits attorneys to obtain judgments in their own
names. Id. at 616. Further, we noted that the reason that an attorney generally has standing to
maintain a claim for fees is that he or she is a party in interest with respect to the fees. Id. at 618.
While recognizing that a client has an “absolute right” to settle his or her case without his or her
attorney’s consent, we found that, under the facts of the case, there appeared to be a concerted effort
to deprive the mother’s former attorney of his fees; specifically, the record reflected that the mother
would not be able to pay her attorney and that the mother settled her case and agreed to a settlement
drawn up by the father’s attorney before discharging her attorney and without his knowledge. Id. at
616-20. We ultimately decided that, given the “egregious” facts of the case, we did not need to decide
whether, in a “usual case” where parties “pursue only their own best interests,” parties may settle the
issue of attorney fees when they settle their dispute. Id. at 618-19. We declared void the settlement
agreement’s provision requiring each party to pay his or her own fees. Id. at 620
Next, in Lee v. Lee, 302 Ill. App. 3d 607 (1998), the court considered a former attorney’s
ability to seek contribution from an opposing party after the parties had settled their claims.
Specifically, the wife in a dissolution action discharged her attorney and hired replacement counsel.
Later, former counsel petitioned for final fees. Apparently, before that petition was heard, the wife
and her new counsel executed with the husband a marital settlement agreement that included a
provision that each party would be responsible for his or her own fees. At a proveup on the settlement
agreement, former counsel objected to the fees provision and the wife testified that, while she did not
dispute his fees, she could not afford to pay them. The trial court entered the settlement agreement
-7-
No. 2—10—0234
and later rejected former counsel’s argument that, under Heiden, the wife’s agreement to pay her own
fees could not limit counsel’s right to seek such fees from the husband. Instead, the court found that
the settlement was clear and unequivocal and was freely entered into by the parties with assistance of
counsel.
On appeal, the court disagreed, focusing on two subsections of section 508 of the Marriage
Act “as it existed when the fee petitions were pending before the circuit court.” Id. at 612. Noting
that the principal purpose of section 508 is to shift liability for attorney fees from one party to the
other, the court recognized that the Marriage Act thereby diminishes any advantage that one spouse
might have over the other due to a disparity in financial resources and, accordingly, equalizes the
parties’ positions before the court. Id. The court noted that section 508 also allows the award of fees
directly to the attorney, who may enforce the order and judgment in his or her own name, and that,
although fees are generally awarded to the client, “they ‘belong’ to the attorney, who has standing to
pursue an action for fees as the party in interest, without the participation of the client or former
client.” Id.1 The court continued:
1
See also In re Marriage of Baltzer, 150 Ill. App. 3d 890, 893 (1986), explaining that “[t]he
attorneys for the litigants in a dissolution proceeding are considered as parties in interest in an action
for attorney fees to the extent that while such fees are generally awarded to the client, they properly
‘belong’ to the attorney.” Moreover, the court in Baltzer noted that, as a party in interest, the
attorney therefore has standing to pursue an action for fees and that section 508 of the Marriage Act
authorizes an attorney in a pending dissolution proceeding to recover his earned fees from either his
own client or the other party. Id. at 893-94.
-8-
No. 2—10—0234
“The fee-shifting provisions of section 508, coupled with the court’s ability to award
fees directly to the attorney, provide an incentive for attorneys who might otherwise decline
to represent spouses with few financial resources of their own. Thus, the attorney’s right to
proceed against the other spouse for an award of fees is oftentimes essential to a spouse’s
ability to procure legal representation.
We conclude, therefore, that a marital settlement agreement that purports to allocate
attorney fees will not, as a general rule, extinguish the statutory right of a spouse’s prior
attorney to pursue an award of fees from the other spouse. Were we to hold otherwise, access
to representation by many spouses would be seriously compromised and with it, the integrity
of dissolution of marriage proceedings. We are cognizant that each party has the primary
obligation to pay his or her own attorney fees. [Citations.] However, the reality is that many
spouses would be unable to secure representation if the possibility that the attorney could seek
fees from the other spouse could be so easily foreclosed by the parties.” Id. at 612-13.
The court concluded that the settlement agreement did not deprive the wife’s former counsel
of the right to pursue a fee award against the husband and it likened former counsel to a third-party
creditor. Id. at 613-14. In closing, the court noted that it expressed no opinion as to whether its
holding would extend to fee disputes arising under the “Leveling of the Playing Field in Divorce
Litigation Amendments,” effective June 1, 1997, through Public Act 89—712 (1997 amendments).
Id. at 614.
Finally, in Stella, 353 Ill. App. 3d at 420-21, the court recognized that the policy
considerations underlying the Marriage Act’s attorney fee provisions apply equally to Parentage Act
cases. The court considered whether interim fees, made available to attorneys under the 1997
-9-
No. 2—10—0234
amendments to the Marriage Act, are also available to attorneys in proceedings brought under the
Parentage Act. In concluding that they are, the court noted that a “fundamental reason” for the 1997
amendments permitting an interim-fee system was to “prevent a party from using his or her relative
wealth as a litigation tool.” (Internal quotation marks omitted.) Id. at 420. The court noted that the
Parentage Act and the Marriage Act address overlapping issues, such as custody, child support,
guardianship, and visitation. Id. Therefore, the court reasoned, it would not have escaped the
legislature’s attention that allowing interim fees in both dissolution and parentage actions would result
in similar public policy benefits, including “encouraging attorneys to undertake parentage actions.”
Id.
We agree with Landau that the foregoing cases strongly suggest that the Parentage Act and
the “relevant” provisions of section 508 of the Marriage Act provide him with a right to seek
contribution from Rocca that could not unilaterally be waived by Lamar. Rocca, however, argues that
Landau’s reliance on Heiden and Lee is misplaced. Specifically, Rocca argues that, in Heiden and Lee,
the courts considered the Marriage Act as it existed prior to the 1997 amendments. Whereas section
508(a) of the Marriage Act previously provided only generally for attorney fees, the 1997
amendments, Rocca asserts, entirely altered the processes for seeking attorney fees in dissolution
cases. Prior to 1997, section 508(a) provided:
“The court from time to time, after due notice and hearing, and after considering the financial
resources of the parties, may order any party to pay *** reasonable *** attorney’s fees
necessarily incurred or, for the purpose of enabling a party lacking sufficient financial resources
to obtain or retain legal representation, expected to be incurred by any party, which award
shall be made in connection with the following ***.” 750 ILCS 5/508(a) (West 1996).
-10-
No. 2—10—0234
After the 1997 amendments, section 508(a) provided:
“(a) The court from time to time, after due notice and hearing, and after considering
the financial resources of the parties, may order any party to pay a reasonable amount for his
own or the other party’s costs and attorney’s fees. Interim attorney’s fees and costs may be
awarded from the opposing party, in accordance with subsection (c—1) of Section 501. At
the conclusion of the case, contribution to attorney’s fees and costs may be awarded from the
opposing party in accordance with subsection (j) of Section 503. Fees and costs may be
awarded to counsel from a former client in accordance with subsection (c) of this Section.
Awards may be made in connection with the following ***.” 750 ILCS 5/508(a) (West
1998).2
2
We note that section 508 of Marriage Act was amended again in 2010 (2010 amendments).
See Pub. Act 96—583 (eff. Jan. 1, 2010). Rocca asserts that the Marriage Act, as altered by the
2010 amendments, technically applies to the court’s February 2010 order. Upon review, the 2010
amendments, as compared to the 1997 amendments’ addition of a detailed statutory scheme, made
relatively minor changes to the attorney fee provisions that are relevant here. The “modest” changes
sought to clarify provisions included in “1997’s complete over-haul of the fee provisions, commonly
known as the ‘Leveling of the Playing Field Law.’ ” Attorney Fees in Domestic Relations Cases: The
2009 Amendments to “Leveling of the Playing Field,” 98 Ill. B.J. 136 (March 2010). Those
amendments do not alter our analysis, which ultimately concerns whether Heiden and Lee remain
applicable despite the Marriage Act’s subsequent provision of a comprehensive scheme for attorney
fee recovery. As such, we will hereafter cite the most recent version of the statute, which was in
effect when the court rendered its order.
-11-
No. 2—10—0234
Rocca notes that the 1997 amendments included additional provisions, such as additions to
section 508(c) and other sections of the Marriage Act, to govern recovery of interim fees, procedures
for obtaining contribution, and the timing for seeking and recovering fees—in effect, an entirely new
scheme for availability and recovery of attorney fees. Therefore, Rocca argues, the cases preceding
the amendments are not only factually distinguishable but are inapplicable given the new scheme.
Based on the current statutory structure, Rocca contends, the trial court here properly disregarded
Heiden and Lee because various provisions of the Marriage Act plainly provide only a party, not an
attorney, with a right to petition for contribution. Thus, he argues, the court did not err in concluding
that Landau did not possess the right to seek contribution from Rocca after he was discharged from
the case and the parties had settled their claims.
Essentially, by arguing that the Marriage Act provides only clients with the ability to seek
contribution, Rocca suggests that, at any time and regardless of the amount of work performed in
litigating a client’s claims, an attorney who is discharged by a financially disadvantaged client lacks
recourse to obtain contribution toward the fees incurred during the representation. Instead, such
recourse lies entirely within the client’s control, to either pursue or waive. In our view, Heiden and
Lee clearly stand against this proposition. Accordingly, Rocca’s argument cannot succeed merely on
the basis that the aforementioned cases arrived at their conclusions based upon an earlier version of
the statute. Rather, to succeed, Rocca must show that Heiden and Lee are inapplicable because the
amendments altered the statute such that an attorney’s ability to pursue contribution is now restricted
in a manner that did not exist when the statute was considered by those courts. He fails to do so.
Upon addressing Rocca’s arguments regarding the plain language of the statute and considering the
-12-
No. 2—10—0234
purpose of the 1997 amendments, we conclude that Rocca’s position that the Marriage Act presently
precludes Landau’s claim for contribution is incorrect and that Heiden and Lee remain good law.
Rocca specifically focuses on three statutory provisions for his arguments: section 508(a),
section 508(c), and section 503(j) of the Marriage Act. We address each in turn. First, we disagree
that the Marriage Act on its face prohibits Landau from seeking contribution against Rocca after the
parties waived contribution. We read a statute to effectuate the legislature’s intent and, to do so, look
first to the plain language of the statute. Michigan Avenue National Bank v. County of Cook, 191 Ill.
2d 493, 504 (2000). In relevant part, section 508(a) of the Marriage Act provides that the court may,
after considering the parties’ financial resources, order any party to pay a reasonable amount for his
own or the other party’s costs and attorney fees. Pub. Act 96—583 (eff. Jan. 1, 2010). Moreover,
“contribution to attorney’s fees and costs may be awarded from the opposing party in accordance with
subsection (j) of Section 503 and in any other proceeding under this subsection.”3 (Emphasis added.)
3
As noted by Landau in his reply brief, we remain mindful that section 17 of the Parentage Act
requires only that, in awarding costs or fees, a court comply with the relevant provisions of section
508 of the Marriage Act. In the 2010 amendments, the legislature changed subsection (a) to provide
that interim-fee hearings may be summary only if the proceeding is a prejudgment dissolution
proceeding, i.e., interim-fee hearings in parentage actions will now be evidentiary. See Pub. Act
96—583 (eff. Jan. 1, 2010); see also Attorney Fees in Domestic Relations Cases: The 2009
Amendments to “Leveling of the Playing Field,” 98 Ill. B.J. 136 (March 2010). The 2010
amendments also amended the sentence addressing contribution to provide that, “[a]t the conclusion
of any pre-judgment dissolution proceeding ***, contribution *** may be awarded *** in accordance
with subsection (j) of section 503 and in any other proceeding under this subsection.” Pub. Act
-13-
No. 2—10—0234
Id. Further, fees and costs may be awarded in any proceeding to counsel from a former client in
accordance with section 508(c). Id. Finally, section 508(a) notes that the court may order that the
award of attorney fees and costs, including a contribution award, shall be paid directly to the attorney,
who may enforce the order in his or her name. “Except as otherwise provided in subdivision (e)(1)
of this Section, subsection (c) of this Section is exclusive as to the right of any counsel (or former
counsel) of record to petition a court for an award and judgment for final fees and costs during the
pendency of a proceeding under this Act.” Id.Therefore, section 508(a) clearly contemplates: (1) contribution of fees from one party to
another party; (2) a contribution award that is payable directly to the attorney and that the attorney
may personally enforce; and (3) that a former attorney may petition for final fees. However, those
terms, which arguably provide attorneys broader rights to seek contribution than did the Marriage Act
when considered in Heiden and Lee, are conditioned upon other sections of the statute, and it is those
sections upon which Rocca bases his arguments.
Rocca next turns to section 508(c), which concerns “[f]inal hearings for attorney’s fees and
costs against an attorney’s own client, pursuant to a Petition for Setting Final Fees and Costs of either
a counsel or a client.” (Emphasis added.) Id. As relevant here, Rocca looks to subsection (c)(2)(iii),
which provides that no final hearing on a petition for final fees against one’s own client is permitted
96—583 (eff. Jan. 1, 2010). Therefore, it is unclear whether “in any other proceeding,” i.e., a
nondissolution proceeding, contribution awards must follow section 503(j)’s parameters. If not,
Landau asserts, section 503(j) is not “relevant” for Parentage Act claims. We need not decide the
issue. Even if section 503(j) applies, we conclude below that, here, it did not bar Landau’s petition
for contribution.
-14-
No. 2—10—0234
unless “judgment in any contribution hearing on behalf of the client has been entered or the right to
a contribution hearing under subsection (j) of Section 503 has been waived.” Id. In accordance with
the foregoing, Rocca asserts that section 508(c) provides that resolution of the issue of contribution
is a condition precedent to a hearing on an attorney’s petition for final fees against a former client.
Here, he asserts that Landau’s petition properly failed because: (1) no hearing on contribution
occurred; and (2) to conclude that a former attorney could still seek fees against the opposing party
despite a “contribution waiver” would render meaningless subsection (c)(2)(iii)’s permitting a client
to waive his or her right to a contribution hearing. In other words, he argues that the right to waive
a contribution hearing is the same as waiving contribution and, as subsection (c)(2)(iii) gives that right
to the client, it is rendered meaningless if a former attorney may nevertheless demand contribution.
We reject Rocca’s interpretation for four reasons. First, it appears that Rocca mistakes the
subsection’s contemplation of a waiver of a contribution hearing for waiver of contribution itself.
Waiving 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.
Second, Rocca’s condition-precedent argument suggests that, if an attorney filed a contribution
petition and, while it remained pending, the client discharged the attorney, the attorney could seek
neither contribution nor final fees because the hearing was never held. This appears contrary to the
purpose of “leveling the playing field”; an attorney would likely be reluctant to represent a financially
disadvantaged client if, upon the client’s whim, contribution could be rendered unavailable, even after
a petition for contribution was filed. Rather, the purpose of subsection (c)(2)(iii) is to provide that,
-15-
No. 2—10—0234
if contribution will be sought, it shall be sought prior to the final fee hearing and be determined in a
separate hearing. This is to avoid a conflict of interest that might arise if an attorney, while
representing his or her client, simultaneously sought contribution from the opposing party and sought
his or her own fees from (and thereby essentially suing) the client. See David H. Hopkins, “Leveling
the Playing Field” in Divorce: Questions and Answers about the New Law, 85 Ill. B.J. 410 (1997).
Thus, waiving a contribution hearing under section 503(j) does not equal waiving contribution.
Third, we reject Rocca’s suggestion that, because there was no contribution hearing, Landau’s
petition for final fees could not be heard, because the parties, in their settlement agreement, did in fact
waive a contribution hearing. Therefore, even under Rocca’s interpretation, the condition precedent
to considering Landau’s petition for final fees was, in fact, satisfied. Fourth, and finally, we briefly
note that section 508(c) pertains to an attorney seeking fees from his or her former client. As the issue
here involves Landau seeking fees from the opposing party, section 508(c) is therefore arguably not
relevant at all (again, section 17 of the Parentage Act requires application of only relevant section 508
factors).
Rocca thirdly argues that sections 508(a) and (c) condition contribution upon the terms
provided by section 503(j). Section 503 generally provides for the disposition of property in a
dissolution action. Pub. Act 96—583 (eff. Jan. 1, 2010). In subsection (j), section 503 provides, in
relevant part, that, after proofs have closed and before judgment is entered, “a party’s petition for
contribution to fees and costs incurred in the proceeding shall be heard and decided” and:
“(3) The filing of a petition for contribution shall not be deemed to constitute a waiver
of the attorney-client privilege between the petitioning party and current or former counsel
***. ***
-16-
No. 2—10—0234
***
(5) A contribution award (payable to either the petitioning party or the party’s
counsel, or jointly, as the court determines) may be in the form of either a set dollar amount
or a percentage of fees and costs (or a portion of fees and costs) to be subsequently agreed
upon by the petitioning party and counsel or, alternatively, thereafter determined in a hearing
pursuant to subsection (c) of Section 508 or previously or thereafter determined in an
independent proceeding under subsection (e) of Section 508.” (Emphases added.) Id.Rocca asserts that Landau’s attempt to obtain contribution necessarily fails because section
503(j)’s distinction between a “petitioning party” and “counsel” reflects that only a party may serve
as a petitioner for contribution. Further, Rocca asserts that section 503(j), by permitting a contribution
award to be determined in accordance with an agreement by counsel and the client regarding total fees
due, contemplates that a former attorney proceeding on a final petition would be bound by a prior
determination with respect to contribution—here, the settlement agreement.
Again, assuming that section 503(j) is relevant here, we disagree. While section 503(j) appears
to present the petitioner as a party, as opposed to an attorney, the Marriage Act clearly anticipates that
an attorney will, at times, act as a petitioning party, as evidenced by section 508(a)’s provision that
any counsel or former counsel may petition the court for an award and judgment and may enforce the
order in his or her own name. Further, even to the extent that the statute is read to distinguish
between a petitioning party and an attorney, it fails to address the problem faced here—namely, that
the former client, who would have served as the “petitioning party” under section 503(j), purports to
unilaterally waive contribution toward fees that actually belong to her former attorney. See Lee, 302
Ill. App. 3d at 612 (although generally awarded to the client, attorney fees belong to the attorney).
-17-
No. 2—10—0234
Finally, we reject Rocca’s interpretation that a former attorney is bound by a settlement agreement
entered prior to his or her petition for final fees where the former attorney was not a party and in no
way consented to that agreement. We do not read section 503(j) to mean that a former attorney is
bound by a client’s subsequent agreement with other parties with respect to the former attorney’s fees.
When interpreting a statute, we presume that the legislature did not intend absurdity. In re Estate of
Wilson, 238 Ill. 2d 519, 560 (2010). Instead, the suggestion under section 503(j) that a former
attorney would be bound by a prior agreement regarding total fees presumably applies to situations
where, unlike here, the former attorney was a party to an agreement with the client or opposing party
regarding the fees that he or she incurred on the client’s behalf.
In sum, we reject Rocca’s statutory analysis. The foregoing provisions of the Marriage Act
do not plainly preclude Landau’s claim so as to render inapplicable Heiden and Lee. In fact, it is
apparent from the enhanced statutory scheme provided by the 1997 amendments that, by including,
for example, specific provisions permitting interim fees and contribution, the effect of the amendments
was to expand the avenues for attorneys to obtain fees and to encourage attorneys to represent even
those clients who are financially disadvantaged. Contribution toward the financially disadvantaged
party’s attorney fees from the party with superior finances permits an attorney to represent a client
through lengthy litigation proceedings with the knowledge that his or her client will not be solely
responsible for paying the attorney’s fees. Indeed, in Stella, a post-1997-amendments case, the court
pointed to the policy behind the 1997 amendments as supporting its conclusion that, like in dissolution
cases, attorneys in Parentage Act cases must be encouraged to undertake such actions. Stella, 353
Ill. App. 3d at 420-21.
-18-
No. 2—10—0234
Rocca, however, finally argues that another purpose of the amendments was to avoid conflicts
of interest between attorneys and their clients by providing that contribution petitions and petitions
for final fees should be considered in separate proceedings. He contends:
“Undoubtedly, it is a conflict of interest between the client and his former attorney if,
after the client agreed with the opposing party to be responsible [for] his or her own fees, the
former counsel nevertheless seeks fees against the opposing party. Such a blatant disregard
of the client’s litigation decisions benefits only the attorney: if a contribution waiver can be
defeated by an attorney’s claim for fees, such a waiver is meaningless and would have no effect
or influence in the litigation.”
We submit that this might be true if the attorney pursuing contribution was involved in or at
least had knowledge of, and thereby consented to, the waiver. But that is not the case here. As in
Heiden and Lee, Landau was a former attorney who, the parties knew, had pursued his client’s
interests, incurred fees in doing so, petitioned for contribution, and corresponded with Rocca and his
counsel regarding contribution; however, he was not informed of the settlement agreement and its
waiver provision prior to its entry. We reject, under the facts of this case, Rocca’s argument that
Landau’s failure to seek final fees within 30 days of his withdrawal rendered the court and the parties
unaware that he was seeking contribution to his fees. The record reflects that Landau petitioned for
interim fees on April 14, 2008, that Landau requested a hearing on final fees and contribution when
he withdrew, and that, on February 26, 2009, he filed a final petition that requested an immediate
hearing on contribution. Further, we note that Lamar presumably knew whether she owed Landau
fees, whether she had paid them, and whether she was able to pay them. In fact, the record suggests
that Lamar had been unemployed and receiving disability payments. As such, when the parties
-19-
No. 2—10—0234
purported to waive any rights to contribution, they and their counsel were aware that Lamar had
former counsel who possessed claims to fees and had requested contribution thereto.
In sum, and as previously mentioned, attorney fees, while awarded to the client, actually belong
to the attorney. Lee, 302 Ill. App. 3d at 612. While a party may settle his or her claims, a party
cannot waive something that belongs to someone else. There is nothing about the 1997 amendments
to the Marriage Act that suggests that the holdings in Heiden and Lee were altered. Accordingly, we
reverse the trial court’s order dismissing Landau’s petition for contribution on the basis that the parties
waived contribution in their settlement agreement. The cause is remanded for the trial court to
consider Landau’s petition for contribution toward the $18,670.96 in fees that the court found
reasonable.
III. CONCLUSION
For the foregoing reasons, the judgment of the circuit court of Du Page County is reversed and
the cause remanded.
Reversed and remanded.
-20-