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                                  Appellate Court                            Date: 2019.05.28
                                                                             11:14:50 -05'00'



                  In re Marriage of Keaton, 2019 IL App (2d) 180285



Appellate Court       In re MARRIAGE OF AMY E. KEATON, Petitioner, and MICHAEL
Caption               J. KEATON, Respondent-Appellant (K&R Family Legal Services,
                      LLP, and L. Steven Rakowski, Appellees).



District & No.        Second District
                      Docket No. 2-18-0285



Filed                 March 11, 2019



                      Appeal from the Circuit Court of Lake County, No. 15-D-1410; the
Decision Under
                      Hon. Raymond Collins, Judge, presiding.
Review


Judgment              Affirmed.


Counsel on            Michael J. Keaton, of Waukegan, appellant pro se.
Appeal
                      L. Steven Rakowski, of K&R Family Legal Services, LLP, of
                      Northbrook, for appellees.



Panel                 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
¶3       Keaton, an attorney, represented himself in the divorce proceeding, which was initiated by
     petitioner, Amy E. Keaton. Keaton engaged attorney 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), (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
     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.

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       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 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.
¶ 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.


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¶ 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). 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 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.




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¶ 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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