In re Guardianship of H.D. , 2021 IL App (4th) 200434-U ( 2021 )

NOTICE 2021 IL App (4th) 200434-UThis Order was filed under Supreme
FILED
Court Rule 23 and is not precedent April 19, 2021
NO. 4-20-0434
except in the limited circumstances Carla Bender
allowed under Rule 23(e)(1). 4th District Appellate
IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
In re GUARDIANSHIP OF H.D. and I.B., Minors ) Appeal from the
) Circuit Court of
(Nichelle Drew and Brad Drew, ) Douglas County
Petitioners-Appellants, ) No. 18P45
v. )
Nicholas D., Steven B., and Paige B., ) Honorable
Respondents-Appellees). ) Richard Lee Broch Jr.,
) Judge Presiding.
JUSTICE TURNER delivered the judgment of the court.
Justices Harris and Holder White concurred in the judgment.
ORDER
¶1 Held: The circuit court did not err in imposing sanctions under Illinois Supreme Court
Rule 137 (eff. Jan. 1, 2018).
¶2 In November 2018, petitioners, Nichelle and Brad Drew, filed a petition for
guardianship of H.D. (born in May 2006) and I.B. (born in November 2011). H.D.’s parents are
respondents, Nicholas D. and Paige B.; and I.B.’s parents are respondents, Steven B. and Paige
B. Petitioners are the aunt and uncle of the minor children. In March 2019, petitioners filed a
motion for voluntary dismissal of their guardianship petition. At a March 11, 2019, hearing, the
Douglas County circuit court allowed petitioners’ motion for voluntary dismissal, subject to the
issue of reimbursement of attorney fees. Both Nicholas D. and Steven B. sought attorney fees
under Illinois Supreme Court Rule 137 (eff. Jan. 1, 2018). After an April 30, 2019, hearing, the
court found Nicholas D. and Steven B. had satisfied the requirements of Rule 137 and entered
judgment in favor of Nicholas D. and against petitioners in the amount of $1398.50 and in favor
of Steven B. and against petitioners in the amount of $2707.16. Petitioners filed a motion to
reconsider the court’s April 30, 2019, order. Nicholas D. filed a response to the motion to
reconsider. On September 5, 2019, the court denied petitioners’ motion to reconsider. Four days
later, Nicholas D. filed a motion to set additional attorney fees pursuant to Rule 137 and attached
an affidavit of fees related to petitioners’ motion to reconsider. After an August 2020 hearing,
the court entered an additional judgment in favor of Nicholas D. and against petitioners in the
amount of $390.
¶3 Petitioners appeal, asserting the circuit court erred by (1) not holding an
evidentiary hearing on Steven B.’s and Nicholas D.’s requests for attorney fees under Rule 137,
(2) awarding Steven B. and Nicholas D. attorney fees under Rule 137, (3) awarding attorney fees
for legal work done on another case, and (4) granting Nicholas D.’s motion for additional fees.
Additionally, both Steven B. and Nicholas D. ask this court to impose additional sanctions on
petitioners under Illinois Supreme Court Rule 375 (eff. Feb. 1, 1994). We affirm and decline to
impose Rule 375 sanctions.
¶4 I. BACKGROUND
¶5 Count I of the November 2018 guardianship petition alleged Paige B. was
awarded custody of H.D. in Champaign County case No. 08-D-40 and both of H.D.’s parents had
voluntarily relinquished custody of H.D. to petitioners. (In March 2019, Champaign County
case No. 08-D-40 was transferred to Douglas County and became Douglas County case No.
19-D-24.) The petition contended it was in H.D.’s best interest to have a guardian of the person
appointed and petitioners agreed to act as guardian if appointed. Count II of the guardianship
petition asserted Douglas County case No. 17-D-49 was currently pending and an agreed order
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regarding temporary parenting time was entered on October 1, 2018, as to I.B. It further alleged
I.B.’s parents had voluntarily relinquished physical custody of I.B. to petitioners and it was in
I.B.’s best interest to have a guardian of the person appointed. Petitioners agreed to act as I.B.’s
guardian if appointed.
¶6 In December 2018, Nicholas D. filed a motion to dismiss the guardianship
petition asserting petitioners lacked standing to seek guardianship and requesting attorney fees.
Petitioners did not file a response to Nicholas D.’s motion to dismiss. Steven B. entered his
appearance. Also, in December 2018, petitioners filed a petition to determine the existence of a
parent-child relationship between Steven B. and I.B. since Steven B. and Paige B. were not
married at the time of I.B.’s birth and Steven B. was not named on I.B.’s birth certificate. The
petition also asserted Paige B. had repeatedly asserted Steven B. was not I.B.’s father.
¶7 On March 1, 2019, petitioners filed a motion for voluntary dismissal, seeking
dismissal without prejudice of their guardianship petition. On March 11, 2019, the circuit court
held a hearing on the motion for voluntary dismissal. The other parties did not object to the
motion. The court allowed the motion subject to the issue of reimbursement of attorney fees;
gave Nicholas D.’s and Steven B.’s attorneys until April 1, 2019, to file a statement of attorney
fees; and gave petitioners’ counsel until April 15, 2019, to file any responsive pleading.
¶8 In his motion for attorney fees, Nicholas D. asserted petitioners were aware he
had not given up his interest in H.D. when they filed their guardianship action. He also noted the
petition asserted Paige B. had given up her interest in caring for H.D. but later petitioners’
counsel became Paige B.’s attorney in the divorce proceedings. Nicholas D. argued it was
unethical for petitioners’ counsel to assert Paige B. was an unfit parent in the guardianship
petition and then represent Paige B. in the divorce proceedings and seek to intervene in the
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divorce on behalf of the petitioners. He also noted petitioners did not appear in court on January
31, 2018, which caused unnecessary delay and costs to Nicholas D. He also suffered additional
costs and fees when petitioners dismissed their claims 10 days before the next court date of
March 11, 2019, and by filing the petition in Douglas County rather than Champaign County
where the divorce was originally filed. Nicholas D. requested $1398.50 in attorney fees.
¶9 In his petition for reimbursement of attorney fees and costs, Steven B. asserted
petitioners alleged in the guardianship petition they had physical custody of I.B. However, Paige
B. later made representations to the court contradicting petitioners’ allegation with no rebuttal
from petitioners. He also alleged petitioners’ allegation I.B.’s parents voluntarily relinquished
physical custody of I.B. was absolutely false as to him. Steven B. asserted petitioners knew or
should have known that allegation was false because the record in Douglas County case No.
17-D-49 was a publicly accessible file and showed Steven B. requested expanded visitation and
physical custody of I.B. in a motion filed on November 15, 2018. Steven B. further alleged,
when comparing the guardian ad litem report in case No. 17-D-49 with the pleadings in this case
and also with other pleadings in the divorce case, it appeared the guardian ad litem was
deliberately misinformed about who was caring for I.B. at the time the report was prepared. He
also asserted petitioners lacked standing to bring their guardianship petition as alleged in the
motion to dismiss the guardianship petition. Additionally, Steven B. argued petitioners’ petition
to determine the existence of a parent-child relationship was false in that petitioners knew or
should have known about prior genetic testing showing Steven B. was I.B.’s father. He asserted
the guardianship petition and the petition to determine the existence of a parent-child relationship
were not well-grounded in law and were interposed to harass and/or cause unnecessary delay in
the divorce proceedings. Steven B. requested $2707.16 in attorney fees.
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¶ 10 Petitioners were given 14 days to file a responsive pleading to the requests for
attorney fees but did not file one.
¶ 11 On April 30, 2019, the circuit court held a hearing on the requests for attorney
fees. In his argument, petitioners’ counsel first asserted an evidentiary hearing was required. He
then referred to facts in the divorce case No. 17-D-49. After hearing the parties’ arguments, the
court found both Nicholas D. and Steven B. were entitled to the requested attorney fees. The
court noted petitioners had to show the parents of the minor children were unfit or for some other
reason unable to provide for the daily care and control of the minor children. It found a cursory
review of the docket entries alone in each of the divorce cases would show each of the fathers
was paying child support and had a visitation schedule. In fact, both fathers were trying to get
their visitation expanded. The court also found petitioners knew or should have known Steven
B. was the father of I.B. because Paige B. would have known and is related to one of the
petitioners. The court concluded the fathers had satisfied the requirements of Rule 137.
¶ 12 Petitioners filed a timely motion to reconsider, asserting the circuit court erred by
(1) not holding an evidentiary hearing, (2) finding petitioners’ petition to determine the existence
of a parent-child relationship was interposed for an improper purpose, and (3) awarding Steven
B. $575 in attorney fees unrelated to the guardianship case. Nicholas D. filed a response to the
motion to reconsider, requesting the court deny the motion to reconsider and grant additional
attorney fees. Steven B. did not file a response to the motion to reconsider. After a September 5,
2019, hearing, the court denied petitioners’ motion to reconsider.
¶ 13 On September 9, 2019, Nicholas D. filed a motion to set additional attorney fees
under Rule 137, requesting an additional $390 in attorney fees. On October 4, 2019, petitioners
filed a notice of appeal. On June 26, 2020, this court dismissed petitioners’ appeal as premature
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because Nicholas D.’s motion for additional fees was still pending in the circuit court. In re
Guardianship of H.D., No. 4-19-0719 (June 26, 2020) (unpublished summary order under
Illinois Supreme Court Rule 23(c)).
¶ 14 On August 4, 2020, the circuit court held a hearing on Nicholas D.’s motion for
additional fees. After hearing the parties’ arguments, the court granted Nicholas D.’s motion for
additional fees.
¶ 15 On September 4, 2020, petitioners filed a notice of appeal in sufficient
compliance with Illinois Supreme Court Rule 303 (eff. July 1, 2017). Thus, this court has
jurisdiction of the appeal pursuant to Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994).
¶ 16 II. ANALYSIS
¶ 17 On appeal, petitioners challenge the circuit court’s award of attorney fees
pursuant to Rule 137 to the fathers of the minor children in this guardianship case.
¶ 18 A. Threshold Issue
¶ 19 The threshold issue in this case is what was properly before the circuit court when
it ruled on Steven B.’s and Nicholas D.’s requests for attorney fees under Rule 137. In their
brief, petitioners contend the circuit court’s analysis is limited to the two pleadings they filed in
the guardianship case before they moved to dismiss their guardianship petition. We disagree.
¶ 20 Throughout the life of this case, all of the parties and the judge made references to
the divorce proceedings involving Paige B. and Steven B. (Douglas County case No. 17-D-49)
and Paige B. and Nicholas D. (Champaign County case No. 08-D-40 and later Douglas County
case No. 19-D-24). In fact, petitioners themselves note both divorce proceedings in their
guardianship petition. Nicholas D.’s memorandum of law in support of his motion to dismiss
indicates petitioners filed a motion to intervene in his divorce case. Additionally, the circuit
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court judge in the guardianship case was also the judge in Paige B. and Steven B.’s divorce
proceedings and became the judge in Paige B. and Nicholas D.’s divorce proceedings right after
granting the request for attorney fees. In Steven B.’s and Nicholas D.’s requests for attorney fees
and at the hearing on their requests, they made numerous references to their respective divorce
cases. Petitioners did not file a written response to the requests for fees and referred to the
divorce cases in their argument at the April 30, 2019, hearing. The circuit court mentioned the
petitioners’ motions to intervene in both divorce proceedings and the docket sheets from the
divorce cases. Thus, since petitioners acquiesced to the consideration of the proceedings in the
divorce cases, petitioners cannot now claim the circuit court’s actions constituted error under the
invited-error doctrine. Direct Auto Insurance Co. v. Bahena, 2019 IL App (1st) 172918, ¶ 36,
131 N.E.3d 1094. As such, this court will consider the materials in the divorce cases referenced
by the circuit court and the parties.
¶ 21 B. Evidentiary Hearing
¶ 22 Petitioners contend the circuit court erred by not conducting an evidentiary
hearing on both the merits of Nicholas D.’s and Steven B.’s motion for attorney fees under Rule
137 and the amount of attorney fees sought by them. Both Nicholas D. and Steven B. assert
petitioners forfeited their argument regarding the amount of the attorney fees by failing to file a
responsive pleading. They also assert an evidentiary hearing on the motion for attorney fees was
not necessary in this case. Petitioners disagree.
¶ 23 Generally, an evidentiary hearing is necessary for the circuit court to determine
(1) if any untrue statement within a pleading was made without reasonable cause and (2) the
reasonableness of the attorney fees to be awarded. However, if the court can make that
determination on the basis of the pleadings, trial evidence, or other matters appearing in the
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record, then an evidentiary hearing is not warranted. Hess v. Loyd, 2012 IL App (5th) 090059,
¶ 26, 964 N.E.2d 699; Olsen v. Staniak, 260 Ill. App. 3d 856, 862, 632 N.E.2d 168, 174 (1994).
Moreover, when a sanction award is due to the unreasonable nature of the pleading based on an
objective standard, an evidentiary hearing is unnecessary. Hess, 2012 IL App (5th) 090059,
¶ 26. As to the reasonableness of the attorney fees, the circuit court has the discretion to accept
unrebutted affidavits of counsel as to fees without an evidentiary hearing. Hess, 2012 IL App
(5th) 090059, ¶ 26. “An evidentiary hearing is not always necessary in order to determine
reasonable attorney fees if the trier of fact can determine a reasonable amount from the evidence
presented, ‘including a detailed breakdown to fees and expenses,’ and the party opposing the
award is not denied an opportunity to present evidence.” (Emphasis in original.) Williams
Montgomery & John Ltd. v. Broaddus, 2017 IL App (1st) 161063, ¶ 49, 91 N.E.3d 915 (quoting
Kroot v. Chan, 2017 IL App (1st) 162315, ¶ 37, 89 N.E.3d 778).
¶ 24 1. Reasonable Nature of the Pleadings
¶ 25 In his petition for attorney fees pursuant to Rule 137, Nicholas D. contended
petitioners’ guardianship petition was frivolous and not supported by law or fact. In his petition,
Steven B. asserted (1) the guardianship petition contained false statements and petitioners lacked
standing to file it, (2) the guardian ad litem in the divorce case was deliberately misinformed of
who was caring for I.B., and (3) petitioners’ petition to determine the existence of a parent-child
relationship was false. Petitioners argue an evidentiary hearing was needed on the allegations
because lack of standing is not evident from just reviewing the petition and is a fact dependent
determination. We note petitioners did not assert an evidentiary hearing was needed in this case
until their counsel’s responsive arguments at the April 30, 2019, hearing. The better practice
would have been to raise it when the hearing was set or in a responsive pleading to the requests
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for attorney fees. At a minimum, petitioners should have objected when the circuit court
indicated it would only hear the parties’ arguments at the beginning of the hearing. Moreover,
contrary to their arguments in their brief, petitioners’ counsel never specifically requested to
present evidence at the April 30, 2019, hearing. He just noted in his argument the matter
required an evidentiary hearing.
¶ 26 Regardless, in addition to the pleadings in the guardianship case, the court files in
the two divorce cases were also before the circuit court. Petitioners were aware of the divorces
when they filed their guardianship petition, and thus the files showed what petitioners had
knowledge of when they filed the guardianship petition. Moreover, as explained later in our
analysis, the circuit court’s attorney fees award may be affirmed on the basis the pleadings were
not well-grounded in fact. Thus, we need not apply the general rule the court should always hold
an evidentiary hearing when a sanction award is based upon a pleading filed for an improper
purpose. See Hess, 2012 IL App (5th) 090059, ¶ 26. Accordingly, we agree with Nicholas D.
and Steven B. the circuit court had sufficient evidence to rule on their requests for attorney fees
under Rule 137 without holding an evidentiary hearing.
¶ 27 2. Reasonableness of the Fees
¶ 28 Nicholas D.’s and Steven B.’s attorneys both provided lists with the date, a brief
description of the attorney’s work, the amount of time spent on the work, and the total cost for
the work. Petitioners did not file a written response to the request for attorney fees. They also
did not raise any specific objections at the April 30, 2019, hearing to the listed fees or ask to
present evidence on the requested attorney fees. Moreover, contrary to petitioners’ argument on
appeal, petitioners did not assert at the hearing on the request for fees an evidentiary hearing was
needed on the reasonableness of the fees. They also did not specifically assert an evidentiary
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hearing should have been conducted on the reasonableness of the fees in their motion to
reconsider. Accordingly, petitioners have forfeited this issue by failing to raise it in the circuit
court. Regardless of forfeiture, we find Nicholas D. and Steven B. provided the circuit court
with sufficient evidence to substantiate the attorney fees awarded by the court. See Singer v.
Brookman, 217 Ill. App. 3d 870, 880, 578 N.E.2d 1, 7 (1991) (finding the amount of attorney
fees awarded by the trial court without an evidentiary hearing to the defendant as Rule 137
sanctions was not unreasonable and was properly determined after receiving “a detailed
breakdown of fees and expenses” by the defendant’s counsel). Also, petitioners did not request
to present evidence on the reasonableness of the proposed attorney fees. As such, an evidentiary
hearing was not warranted on the reasonableness of the fees in this case.
¶ 29 C. Rule 137 Sanctions
¶ 30 Illinois Supreme Court Rule 137(a) (eff. Jan. 1, 2018) provides, in pertinent part,
the following:
“Every pleading, motion and other document of a party represented by an
attorney shall be signed by at least one attorney of record in his individual name,
whose address shall be stated. *** The signature of an attorney or party
constitutes a certificate by him that he has read the pleading, motion or other
document; that to the best of his knowledge, information, and belief formed after
reasonable inquiry it is well grounded in fact and is warranted by existing law or a
good-faith argument for the extension, modification, or reversal of existing law,
and that it is not interposed for any improper purpose, such as to harass or to
cause unnecessary delay or needless increase in the cost of litigation. *** If a
pleading, motion, or other document is signed in violation of this rule, the court,
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upon motion or upon its own initiative, may impose upon the person who signed
it, a represented party, or both, an appropriate sanction, which may include an
order to pay to the other party or parties the amount of reasonable expenses
incurred because of the filing of the pleading, motion or other document,
including a reasonable attorney fee.”
Thus, the plain language of Rule 137 authorizes a court to impose sanctions against a party or
counsel for filing a motion or pleading which is (1) not well-grounded in fact; (2) not supported
by existing law or lacks a good-faith basis for the modification, reversal, or extension of the law;
or (3) interposed for any improper purpose. McCarthy v. Taylor, 2019 IL 123622, ¶ 18, 155
N.E.3d 359.
¶ 31 “The purpose of Rule 137 is to prevent abuse of the judicial process by penalizing
claimants who bring vexatious and harassing actions ***.” Sundance Homes, Inc. v. County of
Du Page, 195 Ill. 2d 257, 285-86, 746 N.E.2d 254, 271 (2001); see also In re Estate of Wernick,
127 Ill. 2d 61, 77, 535 N.E.2d 876, 883 (1989) (noting the purpose of section 2-611 of the Code
of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, ¶ 2-611), the predecessor to Rule 137, was to
“penalize the litigant who pleads frivolous or false matters, or who brings a suit without any
basis in the law”). In other words, Rule 137 is to prevent the filing of false and frivolous
lawsuits. McCarthy, 2019 IL 123622, ¶ 19. When considering whether to impose sanctions
under Rule 137, the “attorney’s conduct must be judged by an objective standard.” Enbridge
Pipeline (Illinois), LLC v. Hoke, 2019 IL App (4th) 150544-B, ¶ 48, 123 N.E.3d 1271. The party
requesting the imposition of Rule 137 sanctions bears the burden of proof. Technology
Innovation Center, Inc. v. Advanced Multiuser Technologies Corp., 315 Ill. App. 3d 238, 243,
732 N.E.2d 1129, 1134 (2000). Since Rule 137 is penal in nature, we must strictly construe it.
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Enbridge Pipeline, 2019 IL App (4th) 150544-B, ¶ 48.
¶ 32 Additionally, this court will reverse the circuit court’s imposition of Rule 137
sanctions only if the circuit court abused its discretion. Enbridge Pipeline, 2019 IL App (4th)
150544-B, ¶ 49. The appellate court utilizes that deferential standard, in part, because the
conduct at issue occurred before the circuit court, which is then in the best position to determine
whether the conduct warranted sanctions. Enbridge Pipeline, 2019 IL App (4th) 150544-B, ¶ 49.
A circuit court “abuses its discretion when no reasonable person would agree with its decision.”
Enbridge Pipeline, 2019 IL App (4th) 150544-B, ¶ 49. Also, a reviewing court may affirm the
circuit court’s imposition of sanctions for any basis in the record. Enbridge Pipeline, 2019 IL
App (4th) 150544-B, ¶ 49.
¶ 33 The issue of whether a nonparent has standing to petition for guardianship is
governed by section 11-5(b) of the Probate Act of 1975 (Probate Act) (755 ILCS 5/11-5(b)
(West 2018)). See In re Estate of K.E.S., 347 Ill. App. 3d 452, 466, 807 N.E.2d 681, 692 (2004)
(indicating section 11-5(b) governs nonparent standing in original guardianship proceedings).
Section 11-5(b) states, in pertinent part, the following:
“The court lacks jurisdiction to proceed on a petition for the appointment of a
guardian of a minor if it finds that (i) the minor has a living parent, adoptive
parent or adjudicated parent, whose parental rights have not been terminated,
whose whereabouts are known, and who is willing and able to make and carry out
day-to-day child care decisions concerning the minor, unless: (1) the parent or
parents voluntarily relinquished physical custody of the minor; (2) after receiving
notice of the hearing under Section 11-10.1 [of the Probate Act (755 ILCS
5/11-10.1 (West 2018)], the parent or parents fail to object to the appointment at
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the hearing on the petition; or (3) the parent or parents consent to the appointment
as evidenced by a written document that has been notarized and dated, or by a
personal appearance and consent in open court; or (ii) there is a guardian for the
minor appointed by a court of competent jurisdiction. There shall be a rebuttable
presumption that a parent of a minor is willing and able to make and carry out
day-to-day child care decisions concerning the minor, but the presumption may be
rebutted by a preponderance of the evidence.” 755 ILCS 5/11-5(b) (West 2018).
Accordingly, the statute provides that, if the petitioner lacks standing, the circuit court lacks
jurisdiction to proceed on the guardianship petition. In re A.W., 2013 IL App (5th) 130104, ¶ 14,
994 N.E.2d 726.
¶ 34 In their guardianship petition, petitioners asserted the minor children’s parents
had voluntarily relinquished physical custody of the minors to the petitioners. However,
physical custody of a minor is not determined based on physical possession of that minor at the
time the guardianship petition is filed. See In re Custody of M.C.C., 383 Ill. App. 3d 913, 917,
892 N.E.2d 1092, 1096 (2008) (addressing the grandmother’s standing to file a petition for
custody and adoption of the minor child). In In re Custody of Peterson, 112 Ill. 2d 48, 51, 491
N.E.2d 1150, 1151 (1986), the minor child’s parents divorced with both parents being found fit
and custody awarded to the mother with the father receiving reasonable visitation. The mother
became terminally ill and lived with her parents who assisted in the care of the minor child while
the father regularly exercised his visitation. Peterson, 112 Ill. 2d at 51, 491 N.E.2d at 1151.
Upon the mother’s death, the maternal grandparents sought custody of the minor child under
section 601(b)(2) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1981,
ch. 40, ¶ 601(b)(2)). Peterson, 112 Ill. 2d at 50-51, 491 N.E.2d at 1151. Our supreme court held
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the father had physical custody of the minor child upon the mother’s death and found the
grandparents lacked standing.
¶ 35 Later, in In re Marriage of Gustafson, 181 Ill. App. 3d 472, 477, 536 N.E.2d
1359, 1361 (1989), this court addressed physical custody and standing when the maternal
grandparents sought custody under section 601(b)(2) after their daughter, the custodial parent,
surrendered her custodial possession of her child to her parents. We recognized the validity of
the circuit court’s emphasis on the importance of the dissolution court’s sole jurisdiction to
change physical custody. Gustafson, 181 Ill. App. 3d at 479, 536 N.E.2d at 1362. This court
also noted “[t]he Peterson case recognizes the inherent paramount right of a natural parent.”
Gustafson, 181 Ill. App. 3d at 479, 536 N.E.2d at 1362. We then found “a parent determined fit,
who has maintained reasonable visitation and interest, should have the same rights whether the
parent awarded custody dies or abandons the child or children.” Gustafson, 181 Ill. App. 3d at
479, 536 N.E.2d at 1362. Ultimately, this court found the grandparents lacked standing and
noted the grandparents did not assert the father was unfit or acquiesced to them having physical
custody of the child. Gustafson, 181 Ill. App. 3d at 479, 536 N.E.2d at 1363.
¶ 36 In this case, Steven B. and Paige B.’s divorce proceedings were ongoing, and they
had a temporary parenting agreement. On November 15, 2018, Steven B. filed an emergency
petition to modify the amended agreed order regarding temporary parenting time. In Nicholas D.
and Paige B.’s divorce case, Nicholas D. had filed both a motion to modify parenting time and
decision making and a motion to enjoin moving in September 2018. Thus, as in Gustafson, the
fathers of both minor children were fit and exercising their parental rights. Moreover, in this
case, the fathers were attempting to expand their parental rights. Thus, the docket sheets in the
divorce proceedings show Steven B. and Nicholas D. had not relinquished physical custody of
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their respective minor child when petitioners stated in their guardianship petition the fathers had
relinquished physical custody of their respective minors. Petitioners were clearly aware of the
divorce proceedings when they filed their guardianship petition because the proceedings were
mentioned in the petition for guardianship and petitioners had filed a motion to intervene in
Nicholas D. and Paige B.’s divorce case. As such, petitioners knew or should have known the
fathers had not relinquished physical custody of their respective minor child. Thus, petitioners’
guardianship petition was not well-grounded in fact. Moreover, since the fathers had not
relinquished physical custody of their respective minor child, the guardianship petition was not
warranted based on existing law.
¶ 37 Additionally, Steven B. also sought sanctions based on petitioners’ petition to
determine the existence of a parent-child relationship which they filed in December 2018 in the
guardianship case. Steven B. and Paige B.’s divorce proceedings commenced in August 2017,
and they had a temporary parenting agreement regarding their minor child. Nothing in the
docket sheets contains anything questioning Steven B.’s paternity of the minor child over the 15
months before the filing of the petition to determine the existence of a parent-child relationship.
Thus, the petition for the existence of a parent-child relationship was also not well-grounded in
fact.
¶ 38 Accordingly, we find the circuit court did not abuse its discretion in ordering
petitioners to pay attorney fees under Rule 137.
¶ 39 D. Amount of Attorney Fees
¶ 40 To the extent petitioners challenge the amount of the attorney fees awarded to
Steven B., we find their challenge forfeited. As stated earlier, petitioners did not file a written
response to the requests for attorney fees and did not raise any specific objections at the April 30,
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2019, hearing to the listed fees. Even in their motion to reconsider, they only challenged $575 of
the $700 of attorney fees that they now challenge on appeal. Here, petitioners had ample
opportunity to contest the reasonableness of the attorney fees presented by Steven B. before the
circuit court’s April 30, 2019, award of attorney fees but failed to do so. As such, their argument
contesting a portion of the amount of the attorney fees awarded is forfeited. See In re
Application of Cook County Collector, 144 Ill. App. 3d 604, 611, 494 N.E.2d 536, 541 (1986)
(finding the petitioner forfeited his argument the amount of attorney fees award was excessive by
not raising it until his postjudgment motion to vacate).
¶ 41 E. Nicholas D.’s Request for Additional Fees
¶ 42 Petitioners further contend the circuit court abused its discretion by awarding
Nicholas D. additional attorney fees related to their motion to reconsider.
¶ 43 As previously noted, when a pleading violates Rule 137, the court “may impose
upon the person who signed it, a represented party, or both, an appropriate sanction, which may
include an order to pay to the other party or parties the amount of reasonable expenses incurred
because of the filing of the pleading, motion or other document, including a reasonable attorney
fee.” Ill. S. Ct. R. 137 (eff. Jan. 1, 2018). In this case, the pleading that violated Rule 137 was
the guardianship petition initiating the litigation. Thus, arguably all legal work done in the
guardianship case by the fathers’ attorneys was reasonable attorney fees incurred because of the
filing of the guardianship petition that violated Rule 137. Without citation to authority and with
little argument, petitioners assert a party should not be required to pay additional attorney fees
for contesting the imposition of sanctions by filing a well-found motion pointing out the circuit
court errors. Thus, we find petitioners have failed to establish the circuit court abused its
discretion by awarding Nicholas D. additional attorney fees.
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¶ 44 F. Requests for Attorney Fees on Appeal
¶ 45 In their briefs, both Nicholas D. and Steven B. ask this court to award them
attorney fees and costs for petitioners’ appeal in this case under Illinois Supreme Court Rule
375(b) (eff. Feb. 4, 1994), which provides:
“If, after consideration of an appeal or other action pursued in a reviewing court,
it is determined that the appeal or other action itself is frivolous, or that an appeal
or other action was not taken in good faith, for an improper purpose, such as to
harass or to cause unnecessary delay or needless increase in the cost of litigation,
or the manner of prosecuting or defending the appeal or other action is for such
purpose, an appropriate sanction may be imposed upon any party or the attorney
or attorneys of the party or parties. An appeal or other action will be deemed
frivolous where it is not reasonably well grounded in fact and not warranted by
existing law or a good-faith argument for the extension, modification, or reversal
of existing law. An appeal or other action will be deemed to have been taken or
prosecuted for an improper purpose where the primary purpose of the appeal or
other action is to delay, harass, or cause needless expense.”
The imposition of sanctions under Rule 375(b) is left strictly to the reviewing court’s discretion.
Goldfarb v. Bautista Concrete, Inc., 2019 IL App (1st) 172968, ¶ 20, 126 N.E.3d 516.
¶ 46 Nicholas D. asserts the appeal was filed to delay, harass, and increase attorney
fees and costs because, even if petitioners were successful on appeal, the result would be to
remand the case for an evidentiary hearing which would presumably cost them many times more
than the attorney fees already awarded by the circuit court. Steven B. contends the recovery of
sanctions has been improperly delayed by petitioners filing their appeal and notes the absence of
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factual or legal argument in favor of petitioners’ position. Petitioners assert they had a good
faith basis for their appeal. While petitioners’ appeal is unsuccessful, we do not find it
sanctionable. Given the circuit court could have been clearer in indicating it was taking judicial
notice of the divorce proceedings and in its reasoning for imposing sanctions, we will not say
petitioners should have known their arguments could not and would not carry the day. We also
do not find the appeal was brought in bad faith or to harass, delay, or unnecessarily increase
litigation costs by initiating this appeal. Accordingly, sanctions would be improper. See
Enbridge Energy (Illinois), L.L.C. v. Kuerth, 2018 IL App (4th) 150519-B, ¶ 72, 99 N.E.3d 210(stating Rule 375(b) sanctions are penal in nature and should only be applied to cases falling
strictly within the language of the rule). Thus, we decline to impose sanctions against
petitioners.
¶ 47 III. CONCLUSION
¶ 48 For the reasons stated, we affirm the Douglas County circuit court’s judgment.
¶ 49 Affirmed.
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