                           NO. 4-09-0306         Filed 1/27/10

                       IN THE APPELLATE COURT

                             OF ILLINOIS

                           FOURTH DISTRICT

In re: the Marriage of                 )    Appeal from
JOHN MITCHELL PAL,                     )    Circuit Court of
          Petitioner-Appellee,         )    Champaign County
          and                          )    No. 05D627
ANGELA DAWN PAL,                       )
          Respondent,                  )
          v.                           )    Honorable
MICHAEL D. GUDGEL,                     )    Arnold F. Blockman,
          Intervenor-Appellant.        )    Judge Presiding.
_________________________________________________________________

            JUSTICE POPE delivered the opinion of the court:

            In March 2009, the trial court issued its judgment for

dissolution of marriage, incorporating its denial of intervenor

Michael Gudgel's request for attorney fees and costs.    Gudgel

appeals, arguing the court erred in denying his request for

attorney fees and costs under section 508 of the Illinois

Marriage and Dissolution of Marriage Act (Dissolution Act) (750

ILCS 5/508 (West 2008)).    We affirm.

                            I. BACKGROUND

            In the fall of 2005, Gudgel began dating respondent,

Angela Dawn Pal.    They discussed long-term plans, including

marriage.    Gudgel spent considerable time with Angela's two boys,

Camrin M. Pal, age 6, and Erik M. Pal, age 5.    The boys were very

comfortable with Gudgel.    As Gudgel and Angela's relationship

progressed, Gudgel and Angela discussed Gudgel's intention to
become more involved in the boys' lives.

            In November 2005, John Mitchell Pal (Mitch), who was

married to Angela and was the father of Camrin and Erik, filed a

petition for dissolution of marriage.    In November 2005, Angela

filed a response to Mitch's petition.    In January 2006, Mitch

filed a petition for temporary custody, asking for temporary

custody of the children because Angela was exposing the children

to Gudgel, stating Gudgel had been convicted of murder and home

invasion.    The petition alleged Gudgel was a danger to the

children.    Soon thereafter, Mitch filed an amended petition for

temporary custody containing the same allegations.    Gudgel had

not been convicted of murder or home invasion.    However, he had

been convicted of manslaughter, stemming from the death of his

ex-wife following his striking her on the back of her neck with a

baseball bat.

            In January 2006, Angela filed a response to Mitch's

petition for temporary custody, denying Mitch's allegations

Gudgel was a danger to the children and that he had been

convicted of murder or home invasion.    Angela also filed her own

petition for temporary custody.

            In March 2006, the trial court entered a temporary

order, awarding temporary custody of the boys to Angela but

ordering Angela not to allow the boys to have any contact with

Gudgel.   In making this restriction, the court noted the


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following: (1) many seemingly reputable people thought highly of

Gudgel, (2) the guardian ad litem found that the children were

very comfortable with Gudgel, and (3) the commission of one

horrendous act should not mean that person should be a "pariah"

for the rest of his life.   However, the court noted it needed to

err on the side of caution.    According to the court:

               "And it's not so much just the 1980

          murder, I think it's a combination of some of

          the other charges.    There was a misdemeanor

          conviction.   The testimony about depression

          and post-traumatic stress syndrome.    I just

          want a professional person to take a look at

          this and give me an opinion.

               *** I don't blame [Mitch] for being

          concerned about the situation with [Gudgel].

          Certainly, it's legitimate to raise those

          concerns with the [c]ourt."

The court stated it would consider eliminating this condition

after a professional evaluation of Gudgel could be performed to

determine whether Gudgel posed any danger to the boys and was an

appropriate person to be in the same household with the children.

The court ordered Angela to pay for the cost of the evaluation.

Because the parties could not agree on who the evaluator should

be, the court, after hearing arguments, determined Dr. Mel French


                                - 3 -
would be the evaluator.

            In May 2006, Gudgel filed a petition to intervene

pursuant to section 2-408 of the Code of Civil Procedure (Code)

(735 ILCS 5/2-408 (West 2006)).    Gudgel alleged he had a real

interest in the outcome of the litigation because the court's

judgment could impair his ability to interact with Angela's

children.    According to Gudgel, because he was not a party to the

litigation, he was unable to defend himself against the

allegations made by Mitch.    Further, the court's temporary order

effectively prohibited him from having contact with the boys

unless he submitted himself and his medical records for a

professional evaluation.    On the same day he filed his petition

to intervene, Gudgel also filed a motion for sanctions and a

motion to strike.    These motions involved the allegations in

Mitch's pleadings regarding Gudgel's criminal history.

            In June 2006, the trial court held a hearing on

Gudgel's petition to intervene.    After hearing arguments, the

court allowed Gudgel to intervene over Mitch's objection.     The

court's order stated Gudgel was "granted leave to intervene

through final determination of the issues of custody, visitation,

[and] any contribution by [Gudgel]."    Later that month, the court

denied Gudgel's motion to strike and motion for sanctions,

finding sufficient evidence had been presented that Gudgel had

been convicted of a serious crime (i.e., voluntary manslaughter)


                                - 4 -
and that sanctions were unnecessary.   After the motions were

denied, Mitch moved to amend instanter his amended petition for

temporary custody to remove references to convictions for murder

and home invasion.

          In August 2006, Gudgel filed a motion seeking an order

eliminating the no-contact restrictions imposed by the trial

court's temporary order filed on March 30, 2006.   The motion

stated Dr. French had completed his evaluation and had prepared

and submitted to the court and to counsel for the parties a

written report of Gudgel's psychological evaluation.

          Later that same month, the trial court lifted the no-

contact restrictions placed on Angela with regard to the children

and Gudgel.   According to the court, Dr. French's report

recommended the no-contact restrictions be lifted immediately.

Dr. French's report concluded Gudgel posed no serious danger to

the children.

          In February 2008, Gudgel filed a motion for attorney

fees and costs, seeking reimbursement from Mitch for the $2,525

in fees and costs for Dr. French's evaluation, as well as his

reasonable attorney fees and costs as a matter of equity.   His

motion failed to cite any section of the Dissolution Act.

          However, at an April 2008 hearing, Gudgel asserted he

was proceeding under the Dissolution Act.   At the hearing, the

trial court and respective counsel for Gudgel, Mitch, and Angela


                               - 5 -
engaged in an extensive discussion regarding Gudgel's alleged

right to attorney fees under the Dissolution Act.    At the

beginning of the hearing, the court indicated doubt about whether

an intervenor could avail himself of the attorney-fee provisions

of the Dissolution Act.   The court noted the final contribution

provisions appear to be directed at the factors used to determine

maintenance or the division of property.    The court also stated

it believed the attorney-fee provisions were part of the whole

concept of leveling the playing field for the respective spouses

during the pendency of the dissolution proceeding.

          According to the trial court, an intervenor could try

to collect attorney fees pursuant to Supreme Court Rule 137 (155

Ill. 2d R. 137).   However, the court noted an intervenor would

not have a right to attorney fees regardless of how he fared

absent some other statutory right.     This led the parties back to

a discussion about the applicability of the attorney-fee

provisions in the Dissolution Act to an intervenor.

          Gudgel argued that as an intervenor he had the same

rights as the original parties to the action.    According to

Gudgel's argument, the trial court could award him attorney fees

under the Dissolution Act because the Dissolution Act allows

trial courts to reallocate attorney fees among the parties and it

does not expressly forbid a court from awarding attorney fees to

an intervening party who is not a spouse.


                               - 6 -
          The trial court recognized this was an issue of first

impression.   The court asked Gudgel's counsel what factors it

should consider in determining the reallocation of attorney fees,

since the Dissolution Act directed courts to base their decision

on "the criteria for division of marital property under this

[s]ection 503 and, if maintenance has been awarded, on the

criteria for an award of maintenance under [s]ection 504."    750

ILCS 5/5-503(j)(2) (West 2006).   Gudgel argued the court should

consider equity.   The court noted it thought it could consider

equity under section 508(b) of the Dissolution Act (750 ILCS 5/5-

508(b) (West 2006)).   According to the court, this was the only

basis it could possibly see for an attorney-fee award to Gudgel.

While the court stated it was still having problems with Gudgel's

argument because it did not believe Gudgel had the same rights to

attorney fees as Mitch and Angela under the Dissolution Act, it

later stated it thought section 508(b) might be applicable.    In

making its ruling, the court stated in part as follows:

                 "I don't find any independent proceeding

          for an Intervenor to obtain attorney fees on

          an equitable basis under the statute.   The

          only possible way that I see that there could

          be an attorney fee request is under 508(b)

          ***.   That language is not limited to using

          factors for division of property or


                                - 7 -
          maintenance or anything of that situation.

               So the question is, does the Court find

          that this proceeding, whereby Mr. Pal sought

          to have Mr. Gudgel restricted from being

          around the children in this case *** was for

          an improper purpose?    Was it designed to

          harass, create unnecessary delay or other

          acts needlessly increasing the cost of

          litigation?"

The court then quoted its previous ruling on Mitch's motion for

temporary custody:

          "'[I]t's the job of the Court, if there's an

          error here, to err on the side of caution.

          Because I've got these children and we've had

          concerns raised about the children being

          around Mr. Gudgel.   It's not so much just the

          1980 murder.   I think it's a combination of

          all the other charges.    However, I don't

          blame Mr. Pal for being concerned about the

          situation with Mr. Gudgel.     Certainly, its

          legitimate to raise these concerns with the

          Court.'"

          The trial court noted it granted Mitch's motion to

restrict Gudgel's access to the children until an evaluation


                                 - 8 -
could be performed.   As a result, the court stated it would not

find Gudgel was entitled to attorney fees pursuant to section

508(b), assuming section 508(b) allowed a trial court to award

attorney fees to an intervenor.

           In January 2009, Gudgel renewed his request for his

attorney fees and costs originally set forth in his February 2008

motion.   The trial court denied the motion for the same reasons

it used to deny his first request for attorney fees and costs.

           On March 31, 2009, the trial court entered a final

judgment for dissolution of marriage.      The written final judgment

expressly noted the denial of Gudgel's second request for

attorney fees.

           This appeal followed.

                            II. ANALYSIS

           Gudgel argues the trial court erred in interpreting the

Dissolution Act to foreclose an independent proceeding in which a

non-spouse intervenor could bring a petition for attorney fees

and costs pursuant to section 508 of the Dissolution Act (750

ILCS 5/508 (West 2006)).   The issue in this case is one of

statutory construction, which we review de novo.      In re Marriage

of Rogers, 213 Ill. 2d 129, 135-36, 820 N.E.2d 386, 389-90

(2004).

                           A. Jurisdiction

           Although Mitch does not challenge this court's


                                - 9 -
jurisdiction, an appellate court has an independent duty to

determine whether it has jurisdiction over an appeal.   Jackson v.

Alverez, 358 Ill. App. 3d 555, 558, 831 N.E.2d 1159, 1162 (2005).

The issue as we see it is whether Gudgel should have appealed the

denial of his motion for attorney fees and costs after it was

denied the first time in a written order in May 2008.   At the

hearing on Gudgel's motion in April 2008, after orally denying

the motion, the trial court discussed whether a finding under

Supreme Court Rule 304(a) (210 Ill. 2d R. 304(a)) was

appropriate.   The court determined it was not appropriate to make

a Rule 304(a) finding because Gudgel was still seeking other

relief.   Part of the relief Gudgel sought was the inclusion of

language in the marital settlement agreement concerning his

ability to have contact with the children.   As a result, we find

Gudgel has filed a timely notice of appeal on April 27, 2009,

after the trial court entered its judgment of dissolution of

marriage on March 31, 2009.   See 210 Ill. 2d R. 303(a)(1).



                      B. Trial Court's Ruling

           The trial court's May 2008 written order offers no

explanation as to why it denied Gudgel's motion for attorney fees

and costs.   However, it appears clear from the trial court's oral

ruling in April 2008 it found it could not award attorney fees

and costs to Gudgel pursuant to section 508(a) of the Dissolution


                              - 10 -
Act (750 ILCS 5/508(a) (West 2006)) because Gudgel was only an

intervenor.   With regard to section 508(b), the trial court never

definitively stated whether it concluded a court could award an

intervenor attorney fees and costs pursuant to section 508(b) of

the Dissolution Act.   However, the trial court clearly stated

assuming an intervenor could receive attorney fees pursuant to

section 508(b), Gudgel was not entitled to them because Mitch did

not seek the restrictions on Gudgel's contact with the children

for any improper purpose.

          Based on our reading of the entire transcript of the

April 2008 hearing on Gudgel's motion for attorney fees and

costs, we conclude the trial court found it could not award

attorney fees and costs to a non-spouse intervenor pursuant to

section 508(a), but that it could award attorney fees to an

intervenor pursuant to section 508(b) in certain situations.

During the hearing, the trial court stated it thought section

508(b) might be applicable to intervenors.   The court noted it

made sense to award attorney fees to an intervenor when a party

or counsel was found to have acted improperly in an effort to

harass, cause delay, or needlessly increase the cost of

litigation.   In addition, the court noted the language in section

508(b) is not limited to using the factors for the division of

marital property or for determining maintenance.   However, on the

merits, the trial court refused to award fees because it found


                              - 11 -
Mitch's temporary-custody petition was not filed for an improper

purpose.

       C. Applicability of Section 508 of the Dissolution
                  Act to Non-Spouse Intervenors

                         1. Section 508(a)

           We next address Gudgel's argument the trial court erred

in finding an intervenor is not eligible to collect attorney fees

pursuant to section 508(a) of the Dissolution Act (750 ILCS

5/508(a) (West 2006)).   Gudgel argues section 2-408 of the Code

(735 ILCS 5/2-408 (West 2006)) provides an intervenor has all the

rights of an original party in the underlying action.    According

to Gudgel, one of the rights available to an original party in a

dissolution proceeding is the right to petition a trial court for

an award of attorney fees.   Gudgel argues he is eligible for

attorney fees under section 508(a) even though he is not a spouse

because section 508(a) refers to parties, not spouses.    According

to Gudgel, the Dissolution Act distinguishes between spouses and

parties.   The term "spouse" refers to a party based on his or her

connection to the marriage at issue in the dissolution

proceeding.   On the other hand, according to Gudgel, "party"

describes a broader category of litigants.   In a divorce case,

the spouses are necessarily parties.   However, not all "parties"

are "spouses."   While an intervenor is never a spouse in a

dissolution proceeding, an intervenor is a party to the

dissolution proceeding by virtue of the plain language of section

                              - 12 -
2-408 of the Code (735 ILCS 5/2-408 (West 2006)).

          Whether Gudgel is eligible to receive attorney fees

pursuant to section 508(a) is a question of statutory

construction and also a question of first impression.       We must

determine whether the General Assembly intended for an intervenor

to be eligible for attorney fees under section 508(a) of the

Dissolution Act (750 ILCS 5/508(a) (West 2006)).     Section 508(a)

states:

                  "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

          accordance with subsection (c-1) of [s]ection

          501.    At the conclusion of the case,

          contribution to attorney's fees and costs may

          be awarded from the opposing party in

          accordance with subsection (j) of [s]ection

          503.    Fees and costs may be awarded to

          counsel from a former client in accordance

          with subsection (c) of this [s]ection."    750

          ILCS 5/508(a) (West 2006).


                                - 13 -
          The plain and ordinary meaning of the Dissolution Act's

language is the best indicator of the legislature's intent.   In

re Marriage of Murphy, 203 Ill. 2d 212, 219, 786 N.E.2d 132, 136

(2003).   The statute should be read as a whole with all relevant

parts considered.   In re Marriage of Kates, 198 Ill. 2d 156, 163,

761 N.E.2d 153, 157 (2001).

          The General Assembly included a section in the

Dissolution Act explaining the purpose and construction of the

Dissolution Act, which neither party cites.   See 750 ILCS 5/102

(West 2006).   Section 102 states in relevant part:

                "This Act shall be liberally construed

          and applied to promote its underlying

          purposes, which are to:

                                 * * *

                (5) make reasonable provision for

          spouses and minor children during and after

          litigation, including provision for timely

          awards of interim fees to achieve substantial

          parity in parties' access to funds for

          litigation costs[.]"    750 ILCS 5/102(5) (West

          2006).

          Illinois normally follows the "American Rule," which

stands for the proposition that a party is responsible for his or

her own attorney fees.   See Brundidge v. Glendale Federal Bank,


                              - 14 -
F.S.B., 168 Ill. 2d 235, 238, 659 N.E.2d 909, 911 (1995).     In

enacting section 508 of the Dissolution Act, the General Assembly

wanted courts to be able to ignore the "American Rule" so that a

spouse with greater financial resources would not have an unfair

advantage in dissolution proceedings.     James T. Haddon, Ltd. v.

Weiss, 342 Ill. App. 3d 144, 147, 796 N.E.2d 109, 112 (2003).

           The purpose of the Dissolution Act is to make

reasonable provision for spouses and minor children during and

after litigation to achieve substantial parity in the parties'

access to funds for litigation costs.     See 750 ILCS 5/102(5)

(West 2006).   Thus, the General Assembly clearly intended section

508(a) of the Dissolution Act to apply to spouses and not

intervenors.   In addition to the stated purpose found in section

102(5), the language of section 508(a) is telling of the

legislature's intent.   While the General Assembly used the term

"party" in section 508(a), the section only refers to two

parties.   According to section 508(a):

                "The court *** may order any party to

           pay a reasonable amount for his own or the

           other party's *** attorney's fees.    Interim

           attorney's fees *** may be awarded from the

           opposing party ***.    At the conclusion of the

           case, contribution to attorney's fees *** may

           be awarded from the opposing party in


                                 - 15 -
           accordance with subsection (j) of [s]ection

           503."   (Emphases added.)     750 ILCS 5/508(a)

           (West 2006).

An intervenor is not an "opposing" party in a dissolution action.

The spouses are the "opposing" parties.       An intervenor is someone

who is merely allowed to join an action in order to assert or

protect an interest that may be affected by a court's order.

           In addition, in awarding fees under section 508(a), the

court is to do so in accordance with section 503(j) (750 ILCS

5/503(j) (West 2006)).    The language of section 503(j)(2) (750

ILCS 5/503(j)(2) (West 2006)) refers to an award of contribution

"to one party from the other party."       (Emphasis added.)    Thus,

the language of section 503(j)(2) also makes clear only two

parties, the spouses, are involved when making an award of

attorney fees.     Moreover, section 503(j) instructs trial courts

to award attorney fees based on the criteria for division of

marital property under section 503(d) and, if maintenance is

awarded, the criteria for an award of maintenance under section

504.   Those factors include such matters as the duration of the

marriage, the relevant economic circumstances of each spouse, the

value of property assigned to each spouse, et cetera.          See 750

ILCS 5/504(a) (West 2006).    These factors are not applicable to

someone who was not a spouse in the marital relationship.         As a

result, we find the trial court correctly concluded an intervenor


                                - 16 -
is not eligible for attorney fees pursuant to section 508(a) of

the Dissolution Act (750 ILCS 5/508(a) (West 2006)).

                       2. Section 508(b)

          We need not address whether the trial court erred in

finding a court can award an intervenor attorney fees pursuant to

section 508(b) of the Dissolution Act (750 ILCS 5/508(b) (West

2006)) to affirm the trial court.    This court can affirm on any

basis found in the record.

          Gudgel's only contention is the trial court did not

make a legal conclusion with regard to an intervenor's ability to

receive attorney fees pursuant to section 508(b).    However, as we

stated earlier, the trial court did conclude an intervenor can

collect attorney fees pursuant to section 508(b).    To reverse the

trial court we would have to find the trial court erred in its

ruling on the merits denying Gudgel attorney fees.

          Gudgel makes no argument regarding the trial court's

decision on the merits of his claim for attorney fees under

section 508(b).   In fact, Gudgel specifically states this court

does not need to consider whether the trial court's ruling on the

merits was correct if this court concludes the trial court found

section 508(b) allows an intervening party to recover an award of

attorney fees from a party spouse.

          Because Gudgel does not challenge the trial court's

ultimate ruling on the merits in this case denying Gudgel's


                              - 17 -
attorney-fee request pursuant to section 508(b), we can affirm

the trial court's decision on that ground without addressing the

trial court's legal conclusion that a trial court can award an

intervenor attorney fees pursuant to section 508(b) of the

Dissolution Act (750 ILCS 5/508(b) (West 2006)).    A ruling on the

correctness of the trial court's legal conclusion is unnecessary

and would be only advisory.



                           III. CONCLUSION

            For the reasons stated, we affirm the trial court's

judgment.

            Affirmed.

            STEIGMANN, J., concurs.

            APPLETON, J., specially concurs.




                               - 18 -
           JUSTICE APPLETON, specially concurring:

           While I agree with the result reached by the majority,

I write separately to address the trial court's possible

confusion here as to whether an intervenor has standing to

request attorney fees.   As the majority finds, a finding with

which I agree, fees for an intervenor are not recoverable under

section 508(a) of the Dissolution Act (750 ILCS 5/508(a) (West

2006)).   They may be, however, recoverable under section 508(b)

of the Dissolution Act (750 ILCS 5/508(b) (West 2006)) if they

are incurred to defend a pleading filed for an improper purpose.

See In re Marriage of Pillot, 145 Ill. App. 3d 293, 495 N.E.2d

1247 (1986).   No such improper purpose was found here.




                              - 19 -
