In re Marriage of Keaton

2019 IL App (2d) 180285
No. 2-18-0285
Opinion filed March 11, 2019
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
In re MARRIAGE OF ) Appeal from the Circuit Court
AMY E. KEATON, ) of Lake County.
)
Petitioner, )
)
and ) No. 15-D-1410
)
MICHAEL J. KEATON, )
)
Respondent-Appellant )
) Honorable
(K&R Family Legal Services, LLP, and ) Raymond Collins,
L. Steven Rakowski, Appellees). ) Judge, Presiding.
______________________________________________________________________________
JUSTICE McLAREN delivered the judgment of the court, with opinion.
Justices Jorgensen and Spence concurred in the judgment and opinion.
OPINION
¶1 Respondent, Michael J. Keaton, appeals from the denial of his motion to vacate an order
of the circuit court of Lake County awarding attorney fees to K&R Family Legal Services, LLP
(K&R), and L. Steven Rakowski for work performed in Keaton’s divorce proceeding. Keaton
contends that the hearing on K&R’s fee petition should not have been held, because the petition
did not comply with the controlling statute’s filing requirements. He also challenges the circuit
court’s findings and fee award. For the reasons that follow, we affirm.
¶2 I. BACKGROUND
2019 IL App (2d) 180285
¶3 Keaton, an attorney, represented himself in the divorce proceeding, which was initiated
by petitioner, Amy E. Keaton. Keaton engaged attorney L. Steven Rakowski of K&R to assist
him. Keaton and Rakowski executed a written engagement agreement providing for a $2500
retainer, which could be exceeded only by executing a further writing.
¶4 Following the judgment of dissolution of marriage, K&R filed a petition to set final
attorney fees and costs against Keaton, pursuant to sections 508(a) and 508(c)(2) of the Illinois
Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/508(a), 508(c)(2) (West 2016)).
The petition sought an award of $33,422.86. Keaton filed a response to the petition, objecting on
the ground that, because the petition did not include a copy of the engagement agreement and
therefore did not comply with the requirements of section 508(c)(2), the circuit court should not
hold a hearing on the petition. Keaton relied on the following provisions of section 508(c)(2):
“(2) No final hearing under this subsection (c) is permitted unless: (i) the counsel
and the client had entered into a written engagement agreement at the time the client
retained the counsel (or reasonably soon thereafter) and the agreement meets the
requirements of subsection (f); (ii) the written engagement agreement is attached to an
affidavit of counsel that is filed with the petition or with the counsel’s response to a
client’s petition ***.” Id. § 508(c)(2).
Keaton also argued that awarding K&R $33,422.86 of the $291,586.90 total costs incurred for
legal services would be excessive because Keaton performed “over 88% of the work” and K&R
had already received interim fee awards.
¶5 K&R filed a reply acknowledging that the engagement agreement, although discussed in
the petition and referenced as “Exhibit A,” was not attached to the petition, due to
“administrative oversight.” A copy of the agreement and a “Statement of Client’s Rights and
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Responsibilities,” as required under section 508(f) of the Act (id. § 508(f)), were attached as
“Exhibit A” to the reply. K&R also noted that it had attached to the petition an “Affidavit of
Counsel Supporting Petition for Final Attorney’s Fees and Costs.”
¶6 A hearing on the fee petition was set for December 13, 2017, at 9 a.m. Keaton did not
attend. The court found that K&R had satisfied the requirements of section 508 of the Act and
had established by “credible evidence the reasonableness of [Rakowski’s] rate and the necessity
of all services performed.” The court entered a judgment against Keaton in the amount of
$33,422.86. The record on appeal contains no report of the hearing.
¶7 Keaton filed a motion “to vacate or for rehearing on the judgment order,” in which he
stated that he was absent from the hearing because he had incorrectly docketed the time. Keaton
again argued that the hearing should not have been held, due to K&R’s failure to file a copy of
the engagement agreement with the petition for fees. Therefore, Keaton asserted, the judgment
should be vacated “in its entirety.” At the hearing on the motion, Keaton acknowledged that the
engagement agreement was on file when the hearing was held, but he argued that, under the
statute, it had to have been filed with the fee petition. The court disagreed, stating “I think it has
to be attached before the judgment is entered,” and denied the motion. The court’s written order
included a finding under Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010).
¶8 II. ANALYSIS
¶9 “[A] trial court’s decision to award or deny fees will be reversed only if the trial court
abused its discretion.” In re Marriage of Schneider, 214 Ill. 2d 152, 174 (2005). “A trial court
abuses its discretion only where no reasonable person would take the view adopted by the trial
court.” Id. at 173. Moreover,“[a]ll reasonable presumptions are in favor of the action of the trial
court, and, absent an affirmative showing to the contrary, the reviewing court will assume that
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the trial court understood and applied the law correctly.” In re Marriage of Kane, 2016 IL App
(2d) 150774, ¶ 24. To the extent that a resolution of the issues involves statutory interpretation,
our review is de novo. In re Davontay A., 2013 IL App (2d) 120347, ¶ 24.
¶ 10 The gist of Keaton’s first argument is that the trial court improperly allowed K&R to file
its Exhibit A, containing a copy of the engagement agreement and “Statement of Client’s Rights
and Responsibilities,” with its reply to Keaton’s response to its fee petition, rather than with the
petition itself. A decision to allow an amendment to a pleading, however, rests within the sound
discretion of the trial court, and its decision will not be reversed absent a showing of an abuse of
that discretion. Century National Insurance Co. v. Tracy, 316 Ill. App. 3d 639, 646 (2000). In
determining whether to permit an amendment to a pleading, a trial court considers “(1) whether
the amendment cured a defective pleading; (2) whether the amendment prejudiced or surprised
the other parties; (3) whether the amendment was timely; and (4) whether previous opportunities
to amend were identifiable.” Id.
¶ 11 Here, the record supports K&R’s explanation that omitting Exhibit A from its initial
filing was an “administrative oversight.” The engagement agreement is referenced in the petition
as “Exhibit A,” and several of its provisions are discussed in the petition. Amending the petition
to add the missing exhibit cured the petition of an obvious defect. The amendment could not
have prejudiced or surprised Keaton, as Keaton was a party to the agreement and had executed it
two years before it was added to the petition. The amendment was timely in that it was filed and
served a week before the scheduled hearing. It was also filed at the first identifiable opportunity,
five days after Keaton pointed out its omission in his response to the petition. We cannot say
that the trial court abused its discretion in permitting K&R to amend its petition by including the
missing Exhibit A.
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2019 IL App (2d) 180285
¶ 12 In its brief, K&R posited that Keaton’s statutory argument was actually a challenge to the
circuit court’s jurisdiction to hear the fee petition. At oral argument, Keaton, who did not file a
reply brief, agreed with K&R that the circuit court properly exercised subject matter jurisdiction
over the petition. Because we have “an independent obligation to consider matters that go to the
jurisdiction of the circuit court” (Bradley v. City of Marion, 2015 IL App (5th) 140267, ¶ 13), we
confirm the parties’ position.
¶ 13 “Subject matter jurisdiction refers to a court’s power to hear and determine cases of the
general class to which the proceeding in question belongs.” (Internal quotation marks omitted.)
People v. Castleberry, 2015 IL 116916, ¶ 12. With the exception of the circuit court’s power to
review an administrative action, “the jurisdiction of the circuit court is conferred by the
constitution, not the legislature.” Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199
Ill. 2d 325, 336 (2002) (rejecting case law suggesting that the legislature may impose
nonwaivable conditions precedent to a court’s exercise of jurisdiction). Moreover, the filing of a
fee petition “is a procedural requirement of section 508 of the Act, not a jurisdictional
requirement.” In re Marriage of Baniak, 2011 IL App (1st) 092017, ¶ 16. “[P]rocedural matters
may be corrected in the trial court whereas questions of jurisdiction cannot.” In re Marriage of
Pagano, 181 Ill. App. 3d 547, 554 (1989). Accordingly, in this case, we cannot say that omitting
the engagement agreement when the fee petition was filed divested the circuit court of subject
matter jurisdiction to hear the petition.
¶ 14 Keaton also challenges the circuit court’s findings at the hearing and its award of fees to
K&R. Keaton, however, has failed to provide this court with a transcript (or substitute) of the
hearing. As the appellant, Keaton had the burden to present a sufficiently complete record of the
proceedings to support his claim of error. See Foutch v. O’Bryant, 99 Ill. 2d 389, 391-92 (1984).
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In the absence of such a record on appeal, it will be presumed that the order entered by the trial
court was in conformity with the law and had a sufficient factual basis. Id. at 392. Any doubts
that arise from the incompleteness of the record will be resolved against the appellant. Id.
Accordingly, “under Foutch, we must presume that the trial court’s order here is in conformity
with the law and had a sufficient factual basis.” In re Marriage of Baniak, 2011 IL App (1st)
092017, ¶ 30.
¶ 15 Finally, Keaton argues that the circuit court’s award to K&R in excess of the $2500
retainer amount stated in the engagement agreement was an abuse of discretion, because the
engagement agreement contemplated a further writing in order to exceed the retainer amount and
the record contains no such writing. We disagree.
¶ 16 During the 14 months that preceded the final fee award, K&R received interim fee
awards totaling $30,000. Keaton did not object to these fee awards; in fact, he, as well as Amy’s
attorney, received interim fee awards in the same amounts as K&R. At oral argument, Keaton
volunteered that the orders entering the interim fee awards were “agreed orders.” We further
note that, with the entry of the judgment of dissolution of marriage, the interim fee awards
became final. Smolinski v. Vojta, 363 Ill. App. 3d 752, 755 (2006). In our opinion, Keaton’s
voluntary accession to interim fees that exceeded the amount stated in the engagement
agreement, as memorialized in the agreed orders granting the interim fee awards, together with
the finality of the dissolution order, suffice to satisfy the engagement agreement’s writing
provision. Finally, we note that the judge who signed the interim fee orders and final dissolution
order also presided at the hearing on K&R’s final fee petition and entered the final award.
Without a record of the hearing, we presume that he was aware of Keaton’s and K&R’s intent to
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exceed the retainer amount and of any additional efforts of K&R on behalf of Keaton.
Accordingly, we find no abuse of discretion in the circuit court’s $33,422.86 fee award to K&R.
¶ 17 III. CONCLUSION
¶ 18 For the reasons stated, we affirm the judgment of the circuit court of Lake County.
¶ 19 Affirmed.
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