Eisterhold v. Gizewski

2022 IL App (1st) 210490Nos. 1-21-0490 & 1-21-0788 (cons.)
Opinion filed December 27, 2022.
First Division
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
JAMES EISTERHOLD, ) Appeal from the
) Circuit Court of
Petitioner-Appellee, ) Cook County
)
v. ) No. 18 D 79352
)
CANDICE GIZEWSKI, ) The Honorable
) Elizabeth Loredo Rivera,
Respondent-Appellant. ) Judge Presiding.
PRESIDING JUSTICE LAVIN delivered the judgment of the court, with opinion.
Justices Pucinski and Coghlan concurred in the judgment and opinion.
OPINION
¶1 In this parentage proceeding, respondent, Candice Gizewski, and petitioner, James
Eisterhold, signed an agreed allocation judgment governing their parenting rights and obligations.
Shortly thereafter, Candice filed a motion seeking to have James’s monthly child support payments
withheld from his paycheck. Candice, however, subsequently moved to voluntarily dismiss her
motion. The circuit court continued her motion to voluntarily dismiss several times, and James
filed a petition for Illinois Supreme Court Rule 137 (eff. Jan. 1, 2018) sanctions and for attorney
fees and costs under section 508(b) of the Illinois Marriage and Dissolution of Marriage Act (Act)
Nos. 1-21-0490 & 1-21-0788 (cons.)
(750 ILCS 5/508(b) (West 2018)). After several continuances, the circuit court granted Candice’s
motion to voluntarily dismiss and later sanctioned Candice and her attorneys at The Stogsdill Law
Firm, P.C. (Stogsdill law firm) under Rule 137 and awarded James attorney fees and costs under
section 508(b) of the Act.
¶2 In these consolidated appeals, Candice argues the circuit court erred in its handling of her
motion to voluntarily dismiss. She also challenges the circuit court’s Rule 137 sanctions judgment
and its decision to award James attorney fees and costs under section 508(b) of the Act. We affirm
the circuit court’s judgment in appeal No. 1-21-0490 and dismiss appeal No. 1-21-0788 as moot.
¶3 I. BACKGROUND
¶4 On March 18, 2018, James filed a petition seeking a declaration that he was the biological
father of a child born to Candice in February 2018 and to set a parenting schedule and child
support. Candice did not dispute that James was the child’s biological father. On June 14, 2019,
the circuit court entered an agreed allocation judgment that, in relevant part, provides James will
pay $295 per month in child support. Article IX(B) of the agreed allocation judgment provides
“All child support payments are to be made directly to Candice from James.”
¶5 On June 24, 2019, Candice, through her attorneys at the Stogsdill law firm, filed a “Motion
for Entry of Withholding Order” pursuant to section 20 of the Income Withholding for Support
Act (Withholding Act) (750 ILCS 28/20(a)(1) (West 2018)). She asserted that James’s counsel
had “agreed that after the [allocation judgment] was entered, a Uniform Order of Support would
subsequently be entered,” but that James’s counsel refused “to agree to enter a Uniform Order for
Support that withholds [James’s] child support payments through his employer.” The motion
further asserted that while “the language of the [a]llocation [j]udgment reflects that [James] shall
make payments directly to [Candice], a Uniform Order of Support was contemplated by the
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parties” prior to the entry of the allocation judgment. The motion was signed and verified by Eric
T. Telander of the Stogsdill law firm.
¶6 Candice presented her motion on July 16, 2019. There is no transcript or report of
proceedings from the July 16, 2019, court hearing. In an order dated July 16, the circuit court gave
James time to respond to Candice’s motion and set a hearing date. The order also reflects that
James’s counsel represented that “he paid child support ($295) for June 2019 in June 2019 and for
July 2019 in July 2019. Respondent represents that [James] did not pay child support in June or
July 2019.” James’s counsel was ordered to bring proof of his child support payments to the next
court date.
¶7 James’s written response to Candice’s motion made the following arguments. The
allocation judgment accurately reflected the parties’ agreement regarding the method of paying
child support. Pursuant to section 20(a)(1) of the Withholding Act (id.), the support order did not
need to require that an income withholding notice be served on James’s employer because the
parties had entered into a written agreement that James would pay Candice directly. James was
not delinquent in his child support payments, and Candice’s motion did not allege that the
allocation judgment no longer ensured payment. James’s response provided evidence that James
had paid child support in June and July 2019 and asserted that Candice—prior to the July 16
presentment of her motion—acknowledged James’s July 2019 payment in an Our Family Wizard
message dated July 6, 2019. James asserted the statements made by Candice’s counsel on July
16—that James had not paid child support—were false and an attempt to cure the deficiencies in
her motion.
¶8 On August 9, 2019, Candice filed a “Motion for Voluntary Non-Suit of Motion for Entry
of Withholding Order” and noticed the motion for the August 20, 2019, court date. On August 20,
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2019, the circuit court gave James time “to respond or otherwise plead” to the motion to voluntarily
dismiss and continued that motion, along with the motion for any entry of a withholding order, for
hearing. The circuit court also ordered Candice to appear at the hearing date “because the
information presented by respondent on 7/16/19 was false.”
¶9 On August 22, 2019, Candice filed a motion to reconsider or vacate the circuit court’s
August 20, 2019, order. In the motion to reconsider, Candice asserted that on July 16, 2019, her
counsel “mistakenly represented to the [c]ourt that no child support payments had been made to
[Candice] by [James] for June 2019, and July 2019, when in fact, although payments were made,
they were untimely.” Candice argued the circuit court should have granted her motion to
voluntarily dismiss on August 20, 2019, because section 2-1009(a) of the Code of Civil Procedure
(Code) (735 ILCS 5/2-1009(a) (West 2018)) permitted her to dismiss her action upon proper notice
before trial or hearing. Candice also requested the circuit court vacate its August 20, 2019, order
because there had not been any hearings to determine whether Candice made false statements at
the July 16, 2019, court date.
¶ 10 On September 9, 2019, James filed a petition for Rule 137 sanctions and attorney fees
pursuant to Rule 137 and section 508(b) of the Act. James alleged that after the parties signed the
agreed allocation judgment, Candice’s counsel drafted a uniform order of support requiring
James’s child support obligation be withheld from his paycheck and demanded that James’s
counsel agree to it, despite the plain language of the agreed allocation judgment. At the
presentment of her motion for the entry of a withholding order, Candice’s counsel falsely
represented that James had not paid child support of June and July 2019. During the court
proceedings, Candice’s counsel represented that Candice had informed him that James had not
paid child support. Candice’s allegations, both in her motion and through her counsel’s
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representations to the court, were baseless and false because James had paid child support for June
and July 2019, and her actions needlessly increased the cost of the litigation. Candice’s motion to
reconsider asserted that while James had paid child support, the payments were late, directly
contradicting the assertions made in her motion for withholding and by her counsel in open court.
Count I of James’s petition sought sanctions under Rule 137, and count II sought attorney fees and
costs under section 508(b) of the Act, which provides, in relevant part,
“If at any time a court finds that a hearing under this Act was precipitated or
conducted for any improper purpose, the court shall allocate fees and costs of all
parties for the hearing to the party or counsel found to have acted improperly.
Improper purposes include, but are not limited to, harassment, unnecessary delay,
or other acts needlessly increasing the cost of litigation.” 750 ILCS 5/508(b) (West
2018).
James argued a hearing was “precipitated” when the parties appeared in court on Candice’s motion
for a withholding order, the purpose of the motion was to harass James and drive up the cost of the
litigation, and James incurred attorney fees and costs of $4822 in responding to the motion and
preparing his sanctions petition. The parties briefed James’s petition, James filed a response to
Candice’s motion to reconsider and a motion to strike Candice’s motion to reconsider, and the
court continued all the pending motions several times for hearing.
¶ 11 On February 26, 2020, the circuit court granted Candice’s motion to voluntarily dismiss
her motion for a withholding order.
¶ 12 The circuit court heard argument on James’s petition for sanctions and attorney fees and
took the matter under advisement. On November 13, 2020, the circuit court entered a written order
granting James’s petition for sanctions and fees and made the following findings. Candice’s
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motion for withholding contained the false assertion that James had not paid child support for June
and July 2019, and Candice, through her counsel, repeated that assertion at the presentment of her
motion, even after the circuit court paused the proceedings and had counsel for both parties contact
their clients. Candice’s August 22, 2019, motion to reconsider and vacate falsely stated that James
had refused to sign a uniform order of support; instead, he was prepared to sign a support order
consistent with the agreed allocation judgment. Candice’s motion to reconsider also asserted that,
at the July 16, 2019, court date, Candice’s counsel informed the circuit court that Candice
represented to her counsel that James had not timely paid child support and had refused to pay
insurance premiums. The circuit court, however, observed that the only representation made to the
court by Candice’s counsel was that James had not paid child support for June and July 2019.
Candice’s motion to reconsider falsely asserted that the circuit court found Candice’s July 16,
2019, representations to be false without allowing argument from counsel. The circuit court found
Candice’s withholding motion was baseless under section 30 of the Withholding Act because there
had been no showing that the parties’ agreed allocation judgment “no longer ensures payment of
support due and the reason or reasons why it does not” (750 ILCS 28/30 (West 2018)), and the
motion was filed for an improper purpose: Candice “just wanted what she wanted” without regard
for the parties’ agreement. There was no good faith basis for Candice’s motion for a withholding
order, as the parties’ agreed allocation judgment was clear, and it was clear from communications
between Candice’s and James’s counsels that James would not agree to having his child support
payments withheld from his paycheck absent a court order. Sanctions were appropriate under Rule
137. Further, Candice precipitated a hearing on her motion for a withholding order by filing and
presenting the motion and having the motion briefed, so James was entitled to attorney fees under
section 508(b) of the Act. The circuit court continued the matter for hearing on the issue of fees.
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¶ 13 James’s counsel filed a petition asserting James incurred $23,593.60 in attorney fees
resulting from Candice’s motion. The parties briefed James’s petition, and the circuit court held
an evidentiary hearing and heard argument. On March 31, 2021, the circuit court entered a written
order finding James’s requested attorney fees and costs to be reasonable. The circuit court ordered
(1) Candice to pay James $2500 as a sanction under Rule 137, (2) the Stogsdill firm to pay James
$2500 as a sanction under Rule 137, (3) Candice to pay $9296.80 for reasonable attorney fees and
costs under section 508(b) of the Act, and (4) the Stogsdill firm to pay $9286.80 for reasonable
attorney fees and costs under section 508(b) of the Act.
¶ 14 On April 29, 2021, Candice filed a notice of appeal—docketed in this court as appeal No.
1-21-0490—identifying the circuit court’s February 26, 2020, November 13, 2020, and March 31,
2021, orders.
¶ 15 On April 30, 2021, Candice filed a motion in the circuit court requesting an Illinois
Supreme Court Rule 304(a) (eff. Mar. 8, 2016) finding relative to the circuit court’s March 31,
2021, order. Candice asserted her August 22, 2019, motion to reconsider had never been
adjudicated and was still pending and a Rule 304(a) finding would remove any doubt as to the
finality and appealability of the circuit court’s March 31, 2021, order.
¶ 16 On May 3, 2021, Candice filed a motion in the circuit court to stay enforcement of the
circuit court’s March 31, 2021, order and to set a bond.
¶ 17 On July 6, 2021, after briefing and argument, the circuit court denied Candice’s motions
for a Rule 304(a) finding and to stay enforcement of the March 31, 2021, order. The circuit court
found Candice “waived or abandoned” her August 22, 2019, motion to reconsider and vacate, so
there was nothing pending that would preclude an appeal from the March 31, 2021, order. Further,
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Candice’s motion to stay enforcement was untimely, as it was not filed within 30 days of the March
31, 2021, order.
¶ 18 Also on July 6, 2021, Candice file a notice of appeal—docketed in this court as appeal No.
1-21-0788—identifying the circuit court’s February 26, 2020, November 13, 2020, March 31,
2021, and July 6, 2021, orders. We consolidated the appeals.
¶ 19 II. JURISDICTION
¶ 20 On March 31, 2021, the circuit court entered a final and appealable judgment awarding
James Rule 137 sanctions and section 508(b) attorney fees and costs. On April 29, 2021, Candice
filed a timely notice of appeal in appeal no. 1-21-0490. We have jurisdiction pursuant to Illinois
Supreme Court Rules 301 (eff. Feb. 1, 1994) and 303(a) (eff. July 1, 2017) governing appeals from
final judgments in civil cases.
¶ 21 We also find Candice’s notice of appeal in appeal No. 1-21-0788 is redundant of appeal
No. 1-21-0490 and should be dismissed as moot. The record demonstrates Candice believed her
August 22, 2019, motion to reconsider and vacate was still pending on April 29, 2021. On July 6,
2021, the circuit court found Candice “waived or abandoned” her August 22, 2019, motion to
reconsider and vacate. We note that all the relief Candice sought in her August 22, 2019, motion
to reconsider and vacate had been mooted or implicitly denied by orders entered by the circuit
court prior to the March 31, 2021, final judgment. For instance, Candice’s motion to reconsider
and vacate sought reconsideration of the circuit court’s August 20, 2019, order to the extent that it
did not grant her motion to voluntarily dismiss her motion for a withholding order. But the circuit
court granted Candice’s motion to voluntarily dismiss on February 26, 2020. Further, Candice’s
motion sought to vacate the portion of the circuit court’s August 20, 2019, order finding that “the
information presented by respondent on 7/16/19 was false.” The subsequent proceedings on
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James’s sanctions petition were focused in part on the information Candice presented on July 16,
2019, and the circuit court ultimately found—in connection with the sanctions petition—that the
information Candice presented was false. In short, the circuit court granted or implicitly resolved
all the relief requested in Candice’s August 22, 2019, prior to the circuit court’s March 31, 2021,
final judgment. The circuit court’s July 6, 2021, order denying Candice’s request for a Rule 304(a)
finding and a stay of enforcement was not an appealable judgment, and thus no appeal could be
taken from that order. The March 31, 2021, judgment that Candice sought to appeal was already
properly before this court in appeal No. 1-21-0490, and appeal No. 1-21-0788 does not seek any
relief not requested in appeal No. 1-21-0490. We find appeal No. 1-21-0788 is moot, so we dismiss
it as moot.
¶ 22 III. ANALYSIS
¶ 23 Candice identifies three issues for our review. First, she argues the circuit court erred when
it “ignored” her motion to voluntarily dismiss her motion for a withholding order on August 20,
2019. She contends she had the unfettered right to voluntarily dismiss her motion for a withholding
order and the circuit court should have granted the motion on August 20, 2019, when it was
presented after proper notice to James. Second, she argues the circuit court abused its discretion
by granting James’s Rule 137 sanctions petition because, while Candice’s allegations in the motion
for a withholding order were “incorrect” due to “bad communication,” Candice and her counsel
sought to dismiss that motion. Alternatively, she contends that James should have been limited to
recovering attorney fees incurred prior to Candice’s motion to voluntarily dismiss her motion for
a withholding order. Finally, Candice argues the circuit court “lacked statutory authority” to award
James attorney fees under section 508(b). We address these arguments in turn.
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¶ 24 Before discussing the merits of Candice’s claims, we address James’s arguments that
Candice’s appellate brief does not comply with Illinois Supreme Court Rule 341 (eff. Oct. 1, 2020)
in various ways. First, James argues that Candice’s “Nature of the Case” section—which spans
seven paragraphs over two pages—violates Illinois Supreme Court Rule 341(h)(2) (eff. Oct. 1,
2020) because it is overly long and argumentative. Rule 341(h)(2) requires “[a]n introductory
paragraph stating (i) the nature of the action and of the judgment appealed from and whether the
judgment is based upon the verdict of a jury, and (ii) whether any question is raised on the
pleadings and, if so, the nature of the question.” Id. Here, Candice’s “Nature of the Action”
statement is longer and more detailed than is necessary and does not expressly state whether any
question is raised on the pleadings. But it does explain the nature of the judgment, and we find that
it is not argumentative. That said, we urge Candice’s counsel to adhere more closely to the
illustrative example set forth in Rule 341(h)(2) in any future appellate briefs.
¶ 25 Second, James argues that portions of Candice’s statement of facts do not comply with
Illinois Supreme Court Rule 341(h)(6) (eff. Oct. 1, 2020) because they are either argumentative or
are not supported by citations to the record. Rule 341(h)(6) requires an appellant to provide a
statement of facts “which shall contain the facts necessary to an understanding of the case, stated
accurately and fairly without argument or comment, and with appropriate reference to the pages
of the record on appeal.” Id. We agree that a portion of Candice’s statements of facts strays from
an accurate recitation of the facts. Notably, in discussing July 16, 2019, proceedings at which
Candice presented her motion for a withholding order, Candice’s appellate brief asserts “the
[circuit] Court inquired if any there [sic] were any delinquent or missed child support payments.”
But as we observed above, there is no transcript or report of proceedings for the July 16, 2019,
court date (supra ¶ 6), and Candice does not cite to the record to support her assertion. She further
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asserts the circuit court’s July 16, 2019, order “does not reflect Candice’s corrected representation
that the June and July 2019 child support payments were not paid on time, but rather, it reflects
that no child support was paid at all.” Here, Candice cites to her own motion to reconsider, but
again, there is no report of proceedings that reflects what was said during the July 16, 2019,
proceedings. These are minor infractions of Rule 341(h)(6) that do not hinder our ability to review
the issues on appeal, so we will not take any action other than to urge Candice’s counsel to comply
with Rule 341(h)(6) more strictly in future appellate briefs.
¶ 26 Finally, James argues that the citation method Candice’s employs in her brief does not
comply with Illinois Supreme Court Rule 6 (eff. July 1, 2011), which governs the form of citations
parties must use in this court. See Ill. S. Ct. R. 341(g) (eff. Oct. 1, 2020). Relevant here, Rule 6
provides that, when citing Illinois cases filed before July 1, 2011, and published in the Illinois
Official Reports, citations should be to the Official Reports, and for cases filed after July 1, 2011,
citations should be to the public domain citation. Ill. S. Ct. R. 6 (eff. July 1, 2011). For all cases,
Rule 6 permits, but does not require, parallel citations to the North Eastern Reporter and Illinois
Decisions. Id. Here, James asserts Candice sometimes includes citations to only the North Eastern
Reporter or Illinois Decisions, omits the year or appellate district that issued the decision, or—
most frustratingly—omits pin cites to the pages of cited authority, “mak[ing] it far more difficult
for this Court and James to address Candice’s claims.” We agree that Candice’s citations do not
always comply with Rule 6, and her reply brief does not address or explain her noncompliance
with the rule. We, however, have been able to access and assess Candice’s citations to authority, 1
1
James directs our attention to McGinley Partners, LLC v. Royalty Properties, LLC, 2021 IL App
(1st) 200390, ¶ 33 n.4, where we observed that a party’s violation of Rule 6 “made it extremely difficult
for this court to access the cases that plaintiff relies on in support of its arguments.” But there, the plaintiff
only provided Lexis citations to case law, which this court could not access. Here, Candice provides
citations to reporters that this court can access.
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so we elect not to strike Candice’s citations. We urge Candice’s counsel to adhere to our supreme
court’s mandatory rules governing appellate briefs more strictly in future appeals, with particular
focus on providing accurate citations to relevant authority.
¶ 27 Turning to the merits, we find the circuit court did not err with respect to Candice’s August
9, 2019, motion to voluntarily dismiss her motion seeking a withholding order. Candice claims she
had an unfettered right to dismiss her motion for a withholding order because the motion to
voluntarily dismiss was filed and served before any hearing or trial on her motion. She contends
the circuit court should have granted the motion on August 20, 2019, but did not grant the motion
until February 26, 2020. But there is no doubt Candice received all the relief she requested in her
motion to nonsuit. Her sole argument relates to when the circuit court should have dismissed her
motion; she agrees that even if the circuit court granted her motion to nonsuit, the circuit court
would still have had jurisdiction to consider James’s sanctions petition. We find that in this case,
the “when” makes no practical difference, and we cannot provide Candice with any meaningful
relief.
¶ 28 Section 2-1009(a) of the Code provides “The plaintiff may, at any time before trial or
hearing begins, upon notice to each party who has appeared or each such party’s attorney, and
upon payment of costs, dismiss his or her action or any part thereof as to any defendant, without
prejudice, by order filed in the cause.” 735 ILCS 5/2-1009(a) (West 2018). Section 2-1009(a) is
subject to two qualifications. First, if the motion to voluntarily dismiss is filed while there is a
pending dispositive motion, the court can choose to hear and decide the dispositive motion. Id.§ 2-1009(b). Second, “where the circumstances of the case are such that dismissal under section
2-1009 would directly conflict with a specific [supreme court rule], the terms of the rule take
precedence.” Morrison v. Wagner, 191 Ill. 2d 162, 165 (2000).
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¶ 29 Here, there were no pending dispositive motions when Candice filed her motion to
voluntarily dismiss her motion seeking a withholding order, and there is nothing to suggest that
granting the motion would have conflicted with a supreme court rule. Candice’s right to voluntarily
dismiss her motion for a withholding order was “unfettered.” See Valdovinos v. Luna-Manalac
Medical Center, Ltd., 328 Ill. App. 3d 255, 265 (2002).
¶ 30 But here, the circuit court honored Candice’s unfettered right to dismiss her motion. The
circuit court did not deny the motion to voluntarily dismiss or require Candice to proceed to a trial
or hearing on her motion for a withholding. There is no dispute the circuit court granted Candice’s
motion to voluntarily dismiss, thereby granting all the relief Candice sought in her motion, and at
no point was Candice facing an adverse judgment on her motion. Candice complains the circuit
court’s delay in granting her motion to voluntarily dismiss “caused both parties to the case to incur
attorney fees and costs which should have been avoided, and could have been avoided.” But the
attorney fees and costs she incurred after August 20, 2019, are inextricably intertwined with the
proceedings on James’s petition for sanctions and attorney fees, and nothing in the record suggests
the parties continued to litigate Candice’s withholding motion. Simply put, Candice does not
identify any prejudice that resulted from the circuit court continuing the motion to voluntarily
dismiss. She may have incurred some additional attorney fees by bringing her August 22, 2019,
motion to reconsider and vacate, but even if we found that the circuit court should have granted
Candice’s motion to voluntarily dismiss on August 20, 2019, the effect of that finding would not
change anything since Candice has not identified any relief to which she is entitled that she has
not already received. We find there is no basis for disturbing the circuit court’s judgment on this
issue.
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¶ 31 Next, Candice argues the circuit court abused its discretion by granting James’s Rule 137
sanctions petition. She argues the circuit court “never provided any findings on what [Candice’s]
counsel could have done, or should have done, in order to appropriately test the accuracy or
veracity of his client’s allegations” regarding James’s child support payments. She claims that
there was nothing her counsel could have done to determine whether the information Candice
provided on July 16, 2019, was correct: there were no publicly available documents contradicting
her allegation that James had not paid child support, nor were there any documents available to
Candice’s counsel that he could have consulted prior to verifying the motion for a withholding
order. She asserts the conduct at issue here “pales in comparison to the conduct of other counsels
against whom Rule 137 fees were levied” and briefly discusses other cases involving sanctionable
conduct. She contends she promptly sought to dismiss her claim and concedes “that the allegations
were not correct.” She argues that any fees awarded to James should have been limited to attorney
fees incurred prior to her moving to voluntarily dismiss her motion for a withholding order.
¶ 32 James argues we have no jurisdiction to address the circuit court’s Rule 137 sanctions
award. He argues Candice’s notice of appeal requested, in part, this court “reverse or vacate the
award of attorney’s fees entered on March 31, 2021.” The circuit court’s March 31, 2021, order,
however, awarded James attorney fees under section 508(b) of the Act and entered Rule 137
sanctions against Candice and the Stogsdill law firm. In James’s view, Candice’s notice of appeal
only identifies the attorney fees award under section 508(b), so she did not appeal the Rule 137
sanctions. We do not agree.
¶ 33 Illinois Supreme Court Rule 303(b)(2) (eff. July 1, 2017) provides that a notice of appeal
“shall specify the judgment or part thereof or other orders appealed from and the relief sought from
the reviewing court.” “A notice of appeal confers jurisdiction on a court of review to consider only
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the judgments or parts of judgments specified in the notice of appeal. General Motors Corp. v.
Pappas, 242 Ill. 2d 163, 176 (2011) (citing People v. Lewis, 234 Ill. 2d 32, 37 (2009)). A notice of
appeal’s purpose is to inform the other party that the appellant seeks review of the circuit court’s
judgment. Id. We consider the notice of appeal as a whole and will find it sufficient to confer
jurisdiction where it “ ‘ “adequately sets out the judgment complained of and the relief sought,
thus advising the successful litigant of the nature of the appeal.” ’ ” Id. (quoting People v. Smith,
228 Ill. 2d 95, 105 (2008), quoting Lang v. Consumers Insurance Service, Inc., 222 Ill. App. 3d
226, 229 (1991)). If a deficiency in a notice of appeal is a matter of form and not substance, and if
there is no prejudice to the appellee, any failure to strictly comply with the form of the notice of
appeal is not fatal. Id.¶ 34 Here, Candice’s notice of appeal identified the circuit court’s March 31, 2021, order and
asked that we reverse or vacate the award of attorney fees. The circuit court’s March 31, 2021,
order entered sanctions under Rule 137 and attorney fees and costs under section 508(b) of the
Act. Candice’s notice of appeal did not specifically state that she sought review of the Rule 137
sanctions award. On the other hand, her notice of appeal did not specifically state that she sought
review of attorney fees awarded under section 508(b); instead, she used the generic term
“attorney’s fees.” Viewed as a whole, we find Candice’s notice of appeal sought review of the
entire March 31, 2021, order. A common sanction under Rule 137 is an award for reasonable
attorney fees, a term that appears in the rule itself. Ill. S. Ct. R. 137(a) (eff. Jan. 1, 2018). We find
Candice’s notice of appeal can be construed as seeking review of the entirety of the circuit court’s
March 31, 2021, order. Further, we can discern no prejudice or surprise to James. We find have
jurisdiction to consider the portion of the circuit court’s March 31, 2021, order sanctioning Candice
and her attorneys under Rule 137.
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¶ 35 Rule 137 provides, in relevant part,
“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, 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.” Id.¶ 36 Rule 137 is penal in nature and is strictly construed. Dowd & Dowd, Ltd. v. Gleason, 181
Ill. 2d 460, 487 (1998). The decision to impose sanctions under Rule 137 is discretionary, and we
will not reverse a circuit court’s ruling on a request for sanctions unless the circuit court abused its
discretion. Id.¶ 37 Candice fails to develop and advance a coherent legal argument as to how the circuit court
abused its discretion in sanctioning her and her attorneys, resulting in forfeiture. Ill. S. Ct. R.
341(h)(7) (eff. Oct. 1, 2020) (“Points not argued are forfeited ***.”). She does not challenge any
of the circuit court’s findings in the November 13, 2020, order, nor does she direct our attention
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to facts or evidence in the record demonstrating that her conduct was appropriate. The circuit court
found that Candice’s motion for a withholding order was not well grounded in law or fact because
the parties had a written agreement governing how James would pay child support, Candice’s
motion failed to allege that the written agreement was inadequate to ensure payment, and there
was no good faith basis for Candice to seek a withholding order. The parties’ agreed allocation
judgment was in place and known to her and her attorneys, yet she demanded that James agree to
a withholding order, despite meeting none of the criteria for such an order. Furthermore, the circuit
court found Candice’s August 22, 2019, motion to reconsider and vacate contained false
statements. Specifically, her motion asserted James’s counsel refused to agree to a uniform order
of support, when in fact, James’s counsel refused to agree to a uniform order of support that was
inconsistent with the parties’ agreed allocation judgment. Candice’s motion to reconsider further
attempted to paper over Candice’s assertion—reflected in the circuit court’s July 16, 2019, order—
that James had not paid child support for June and July 2019, by claiming her attorneys informed
the circuit court that James had not paid child support on time and had refused to pay insurance
premiums, allegations that were not contained in her motion or consistent with the circuit court’s
July 16, 2019, order. Finally, the circuit court found the motion to reconsider falsely claimed that
the circuit court found Candice’s July 16 assertion to be false without hearing argument from
counsel.
¶ 38 The circuit court’s unchallenged findings in its November 13, 2020, order support a
sanctions award. The circuit court identified two motions, signed by Candice’s counsel, that did
not comply with Rule 137 and warranted sanctions. Candice has not offered any argument that the
circuit court’s judgment was arbitrary, fanciful, or unreasonable. We find the circuit court acted
within in its discretion by sanctioning Candice and her attorneys under Rule 137.
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¶ 39 Candice also argues that the Rule 137 sanctions award should have been limited to the
attorney fees James incurred between the date she filed her motion for a withholding order and the
date she sought to voluntarily dismiss her motion. She repeats this argument throughout her brief
but fails to support her argument with citations to any relevant authority, in violation of Rule
341(h)(7). She also ignores the fact that the circuit court did not award James attorney fees as a
Rule 137 sanction but instead imposed Rule 137 sanctions as a penalty for Candice’s and her
attorney’s violation of Rule 137. The rule permits the circuit court to impose 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.” (Emphases added.) Ill. S. Ct. R. 137(a) (eff. Jan. 1, 2018). The plain
language of Rule 137 demonstrates that attorney fees are just one type of monetary sanction a
circuit court, in its discretion, can impose. Here, the circuit court elected to impose sanctions in
the form of a penalty, not reasonable attorney fees. Candice does not contest the circuit court’s
ability to impose such a penalty, nor does she argue the penalty was excessive or disproportionate.
She also ignores that the circuit court found that Candice’s August 22, 2019, motion to reconsider
contained false statements, in violation of Rule 137, so limiting James’s recovery to attorney fees
incurred prior to Candice’s motion to voluntarily dismiss her motion for a withholding order would
not have provided James any remedy for all of Candice’s Rule 137 violations.
¶ 40 In sum, the circuit court found Candice and her counsel violated Rule 137 and, after an
evidentiary hearing, sanctioned Candice and the Stogsdill law firm $2500 each. Candice does not
contest any of the circuit court’s findings following the evidentiary hearing and has not presented
any legal argument regarding how the circuit court abused its discretion in determining an
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Nos. 1-21-0490 & 1-21-0788 (cons.)
appropriate sanction. We find no abuse of the circuit court’s discretion and affirm the circuit
court’s Rule 137 sanctions judgment in all respects.
¶ 41 Finally, Candice argues the circuit court “lacked statutory authority” to impose attorney
fees under section 508(b) of the Act. She asserts that section 508(b) does not apply to proceedings
under the Illinois Parentage Act of 2015 (Parentage Act) (750 ILCS 46/101 et seq. (West 2018)).
Further, she asserts the circuit court’s fee award under section 508(b) of the Act is void because
the circuit court exceeded its statutory authority under the Parentage Act.
¶ 42 James responds that Candice forfeited the issue of whether section 508(b) applies to these
proceedings because she did not raise this issue in the circuit court. See Wells Fargo Bank, N.A. v.
Maka, 2017 IL App (1st) 153010, ¶ 24 (“It is well settled that a party that does not raise an issue
in the trial court forfeits that issue and may not raise it for the first time on appeal.”). In her reply
brief, Candice does not dispute that she forfeited this issue but asserts forfeiture is a limitation on
the parties, not on this court, and forfeiture principles do not apply when a party asserts that an
order is void. We agree with James that Candice forfeited this issue by not raising it in the circuit
court.
¶ 43 First, we reject Candice’s argument that forfeiture principles do not apply here because the
circuit court exceeded its statutory authority, rendering the circuit court’s attorney fee award void.
Under our constitution, circuit courts, with some exceptions not applicable here, “have original
jurisdiction of all justiciable matters.” Ill. Const. 1970, art. VI, § 9. In LVNV Funding, LLC v.
Trice, 2015 IL 116129, ¶ 37, our supreme court reaffirmed the principle that “the failure to comply
with a statutory requirement or prerequisite does not negate the circuit court’s subject matter
jurisdiction or constitute a nonwaivable condition precedent to the circuit court’s jurisdiction.” The
court further explained,
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Nos. 1-21-0490 & 1-21-0788 (cons.)
“A void judgment is one entered by a court without jurisdiction. In a civil lawsuit
that does not involve an administrative tribunal or administrative review,
jurisdiction consists solely of subject matter or personal jurisdiction. Subject matter
jurisdiction is defined solely as the power of a court to hear and determine cases of
the general class to which the proceeding in question belongs. There is no third type
of jurisdiction known as the ‘inherent power’ to render a judgment.” Id. ¶ 39.
¶ 44 Here, there is no dispute that the circuit court had subject matter jurisdiction over the
parties’ child support dispute and personal jurisdiction over the parties. Where the circuit court has
both subject matter and personal jurisdiction, its judgment is voidable, not void (People ex rel.
Alvarez v. $59,914 United States Currency, 2022 IL 126927, ¶¶ 18-20), and the principle that a
void judgment may be attacked at any time does not apply. Candice’s challenge to the circuit
court’s attorney fee award under section 508(b) of the Act is subject to the ordinary forfeiture rules
applied by and enforced by this court.
¶ 45 Second, we find no reason to excuse Candice’s forfeiture. Candice had numerous chances
to argue in the circuit court that James was not entitled to attorney fees under section 508(b) in
these proceedings. The parties briefed James’s petition for sanctions and attorney fees, and
Candice denied any wrongdoing. After hearing argument, the circuit court granted Rule 137
sanctions and section 508(b) attorney fees and continued the matter for an evidentiary hearing on
the amount of sanctions and attorney fees to be imposed. Another round of briefing followed, and
the circuit court held an evidentiary hearing and heard argument. At no point did Candice question
whether attorney fees were available under section 508(b) of the Act. By failing to raise the issue
of whether section 508(b) fees are recoverable in proceedings under the Parentage Act, Candice
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Nos. 1-21-0490 & 1-21-0788 (cons.)
forfeited her ability to raise the issue on appeal. Maka, 2017 IL App (1st) 153010, ¶ 24. We
therefore affirm the circuit court’s judgment awarding James attorney fees.
¶ 46 IV. CONCLUSION
¶ 47 For the foregoing reasons, the judgment of the circuit court is affirmed in all respects, and
we dismiss appeal No. 1-21-0788 as moot.
¶ 48 No. 1-21-0490, Affirmed.
¶ 49 No. 1-21-0788, Dismissed.
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Nos. 1-21-0490 & 1-21-0788 (cons.)
Eisterhold v. Gizewski, 2022 IL App (1st) 210490Decision Under Review: Appeal from the Circuit Court of Cook County, No. 18-D-79352;
the Hon. Elizabeth Loredo Rivera, Judge, presiding.
Attorneys Anthony Sammarco, of The Stogsdill Law Firm, P.C., of Wheaton,
for for appellant.
Appellant:
Attorneys Michele M. Jochner and Elaine H. Knowles, of Schiller DuCanto
for & Fleck LLP, of Chicago, for appellee.
Appellee:
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