                             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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¶ 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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