In re Marriage of Crecos

2020 IL App (1st) 182211No. 1-18-2211
June 22, 2020
FIRST DIVISION
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
In re MARRIAGE OF ) Appeal from the Circuit Court
DIANA LYNN BARR CRECOS, ) Of Cook County.
)
Petitioner-Appellee, )
) No. 07 D 10902
and )
) The Honorable
GREGORY CRECOS, ) Robert W. Johnson,
) Judge Presiding.
Respondent-Appellant. )
JUSTICE WALKER delivered the judgment of the court, with opinion.
Presiding Justice Griffin and Justice Pierce concurred in the judgment and opinion.
OPINION
¶1 In the course of divorce proceedings from Gregory Crecos, Diana Barr Crecos filed a
motion for an award of attorney fees incurred in two appeals. The trial court awarded Diana
the requested fees and found no just reason to delay enforcement or appeal of the award.
Gregory appealed, claiming that Diana had not substantially prevailed in the prior appeals
because the appellate court’s order left several issues unresolved, in need of retrial. We find
that the need for further litigation of other issues pursuant to this court’s remand makes the
award of fees here an interim award under sections 508(a) and 501(c-1) of the Illinois Marriage
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and Dissolution of Marriage Act (Act) (750 ILCS 5/508(a), 501(c-1) (West 2016)). We dismiss
the appeal from the interlocutory order for lack of jurisdiction.
¶2 BACKGROUND
¶3 In 2007, Diana Barr Crecos petitioned to dissolve her marriage to Gregory Crecos. On
December 24, 2009, Judge Reynolds entered a final judgment dissolving the marriage and
allocating the marital property. Gregory appealed Judge Reynolds’s decision, and this court
affirmed the judgment. In re Marriage of Crecos, 2012 IL App (1st) 102158-U (Crecos I).
¶4 Both parties filed postdecree petitions. After denying a timely motion for substitution of
judge, Judge Raul Vega entered a series of orders against Diana. Diana appealed, and this court
vacated all of those orders, as well as all orders that followed from and depended on Judge
Vega’s orders. In re Marriage of Crecos, 2015 IL App (1st) 132756 (Crecos II). Our order
vacating all of Judge Vega’s orders left unresolved all issues addressed in Judge Vega’s many
orders.
¶5 In March 2016, Diana filed petitions under section 508(a) of the Act (750 ILCS 5/508(a)
(West 2016)) for attorney fees incurred for the appeals in Crecos I and Crecos II.
¶6 On September 17, 2018, the trial court ordered Gregory to pay Diana’s attorney $32,952.50
for the appeal in Crecos I and $89,465.50 for the appeal in Crecos II. The court added, “There
is no just reason to delay enforcement or appeal of this order.”
¶7 Gregory appealed on October 16, 2018, naming the September 17 order as the subject of
the appeal.
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¶8 ANALYSIS
¶9 On appeal, Gregory contends that the trial court should not have awarded Diana all the fees
she sought because she did not prevail on all issues. He argues, “[Diana] did not prevail at all
because the theft-of-personal-property issue is still pending in the circuit court below, awaiting
re-trial.”
¶ 10 We asked the parties to submit briefs concerning our jurisdiction. Both parties assert that
this court has jurisdiction to consider the appeal because the trial court did not enter an interim
award of fees under section 501(c-1) of the Act (750 ILCS 5/501(c-1) (West 2018)); instead
the court entered a final award of attorney fees under section 503(j) of the Act (750 ILCS
5/503(j) (West 2018)). We note that neither the motion for fees nor the court’s order cited
section 503(j) as the statute authorizing the award.
¶ 11 Section 508(a) of the Act provides:
“(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 a
pre-judgment dissolution proceeding in accordance with subsection (c-1) of
Section 501 and in any other proceeding under this subsection. At the conclusion
of any pre-judgment dissolution proceeding under this subsection, contribution to
attorney’s fees and costs may be awarded from the opposing party in accordance
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with subsection (j) of Section 503 and in any other proceeding under this
subsection. *** Awards may be made in connection with ***
***
*** [t]he prosecution of any claim on appeal (if the prosecuting party has
substantially prevailed).” 750 ILCS 5/508(a)(3.1) (West 2018).
¶ 12 Section 503(j) provides that, “[a]fter proofs have closed in the final hearing on all other
issues between the parties ***, a party’s petition for contribution to fees and costs incurred in
the proceeding shall be heard and decided.” 750 ILCS 5/503(j) (West 2018).
¶ 13 The parties argue that Section 501(c-1) does not apply because the appeals involve post-
decree petitions. However, “[s]ection 501(c-1) applies to both predissolution and
postdissolution decree proceedings.” In re Marriage of Oleksy, 337 Ill. App. 3d 946, 950
(2003). Section 503(j) on its face applies only when the court has resolved “all *** issues
between the parties” other than the award of attorney fees. 750 ILCS 5/503(j) (West 2018).
The parties admit that the court has not yet resolved some issues in the case, particularly
Gregory’s claim that Diana took his personal property. Because issues remain pending, the
trial court may reconsider its initial allocation of attorney fees, and provide for an assessment
of further attorney fees in connection with the pending issues, in its final judgment. See In re
Marriage of Arjmand, 2017 IL App (2d) 160631, ¶ 20.
¶ 14 Section 501 of the Act defines “interim attorney fees and costs” as “attorney’s fees and
costs assessed from time to time while a case is pending, in favor of the petitioning party’s
current counsel.” 750 ILCS 5/501(c-1) (West 2018). Because the case is still pending, awaiting
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retrial on issues Gregory raised, the order of September 17, 2018, awards amounts that meet
the statutory definition of “interim attorney fees.”
¶ 15 Interim awards of attorney fees are temporary in nature, and they are subject to adjustment
(including, if necessary, the disgorgement of overpayments to an attorney) at the close of the
dissolution proceeding. Arjmand, 2017 IL App (2d) 160631, ¶ 20.
“[T]he legislature intended the remedy for any error in the granting of interim attorney
fees to be addressed through a comprehensive reconsideration and reallocation at a final
hearing on attorney fees held near the entry of the final judgment of dissolution. In
accordance with this intent, the interlocutory appeal of interim-attorney-fee awards is
not permitted by any supreme court rule.” Arjmand, 2017 IL App (2d) 160631, ¶ 21.
“The statute’s plain language indicates interim attorney fee awards provide temporary relief
during divorce litigation. [Citation.] These interim awards are treated as interlocutory orders
and are not subject to appeal.” (Emphasis in original.) In re Marriage of Johnson, 351 Ill. App.
3d 88, 96 (2004).
¶ 16 We find this case similar to In re Marriage of Derning, 117 Ill. App. 3d 620 (1983). The
trial court in Derning divided the marital property but reserved its ruling on the issue of
attorney fees. The wife appealed. The appellate court held that it lacked jurisdiction to consider
the appeal because the trial court had not entered a final order. The Derning court explained:
“Section 508 of the Illinois Marriage and Dissolution of Marriage Act [citation]
empowers the trial court to require one party to pay the other party’s attorney fees
after consideration of the financial resources of the parties. Since this section
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requires a comparison of the parties’ respective financial resources, the
apportionment of the final fee award is inextricably dependent upon the ultimate
division of property. ***
*** Necessarily, attorney fees should be allocated before the reviewing court
can properly assess the trial court’s division of property and decisions regarding
maintenance and child support. *** [T]he allocation of attorney fees judgment is
dependent upon and integrally related to decisions regarding property ***.
*** Given the policy *** of deciding all the issues in a dissolution-of-marriage
case in a single judgment, we believe attorney fees cannot be resolved in a
supplemental hearing as an incidental matter to the divorce decree.
Since attorney fees are not an incidental matter, this court has jurisdiction of
this case only if the divorce decree is a final judgment or if the fees are a separate
claim pursuant to Rule 304(a) [citation]. Here, we believe based upon the
authority of the supreme court’s recent decision in In re Marriage of Leopando
(1983), 96 Ill. 2d 114, that the May 7, 1982, order was not a final judgment. In
Leopando, the trial court entered an order dissolving the parties’ marriage and
determining permanent custody of their minor child. In his custody order, the trial
judge recited the Rule 304(a) language and specifically reserved maintenance,
property distribution and attorney fees for future consideration. On appeal, the
supreme court held that a custody order in a dissolution-of-marriage case is not a
separate claim and therefore is not appealable pursuant to Supreme Court Rule
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304(a) [citation]. In support of its holding, the court reasoned that a petition for
dissolution advances only a single claim and that the ‘numerous other issues
involved, such as custody, property disposition, and support are merely questions
which are ancillary to the cause of action.’ (In re Marriage of Leopando (1983),
96 Ill. 2d 114, 119.) Stressing the interrelatedness of custody awards and decisions
regarding child support and maintenance, the Leopando court concluded that a
petition for dissolution is not a final judgment until the remaining issues are
resolved.
The policy considerations underlying Rule 304(a), the court continued, also
support the conclusion that a custody order is not a final judgment. Quoting from
its earlier discussion of Rule 304(a) in In re Marriage of Lentz (1980), 79 Ill. 2d
400, 407, the court said: ‘ “The provisions of our rule were aimed at discouraging
piecemeal appeals in the absence of some compelling reason and at removing the
uncertainty as to the appealability of a judgment which was entered on less than
all of the matters in controversy.” ’ In re Marriage of Leopando (1983), 96 Ill. 2d
114, 119, quoting Lentz.” (Emphasis in original.) Derning, 117 Ill. App. 3d at 625-
27.
¶ 17 The reasoning of the supreme court in In re Marriage of Leopando, 96 Ill. 2d 114 (1983),
“leads to our conclusion that the *** order was not a final judgment. Like a custody order, an
attorney fees judgment in a dissolution-of-marriage case is not a separate claim, but rather is
integral to the order dissolving a parties’ marriage.” Derning, 117 Ill. App. 3d at 627.
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¶ 18 We find the order for attorney fees here similarly inextricably intertwined with the property
issues that remain partially unresolved. The claim for attorney fees here is not a separable claim
for purposes of appeal, and the order awarding attorney fees for the appeal does not finally
resolve any separate claim. We hold that when the trial court awards fees for an appeal in a
divorce case and the trial court has issues other than fees still pending, the award grants interim
fees not subject to immediate appeal.
¶ 19 “[T]he inclusion of the special finding [under Illinois Supreme Court Rule 304(a) (eff. Mar.
8, 2016)] in the trial court’s order cannot confer appellate jurisdiction if the order is in fact not
final.” Crane Paper Stock Co. v. Chicago & Northwestern Ry. Co., 63 Ill. 2d 61, 66 (1976).
The order of September 17, 2018, which awards interim fees under section 508 of the Act,
does not finally dispose of any separate claim, and therefore the inclusion of Rule 304(a)
language in the order does not make the interlocutory order final and appealable. We must
dismiss the appeal for lack of jurisdiction.
¶ 20 CONCLUSION
¶ 21 Because the order of September 17, 2018, awards interim fees, subject to correction in the
final judgment, while other issues in the case remain unresolved, the order is not a final
judgment ripe for appellate review under Illinois Supreme Court Rule 304(a). Accordingly, we
dismiss the appeal.
¶ 22 Appeal dismissed.
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Cite as: In re Marriage of Crecos, 2020 IL App (1st) 182211Decision Under Review: Appeal from the Circuit Court of Cook County, No. 07-D-
10902; the Hon. Robert W. Johnson, Judge, presiding.
Attorneys Michael G. DiDomenico and Sean M. Hamann, of Lake
for Toback DiDomenico, of Chicago, for appellant.
Appellant:
Attorneys James R. Branit, of Litchfield Cavo LLP, of Chicago, for
for appellee.
Appellee:
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