                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                      In re Marriage of Baniak, 2011 IL App (1st) 092017




Appellate Court            In re MARRIAGE OF KRISTINA A. BANIAK, Petitioner-Appellant,
Caption                    and RICHARD BANIAK, Respondent (Dean Dussias, Appellee).



District & No.             First District, Fifth Division
                           Docket No. 1-09-2017


Filed                      August 5, 2011


Held                       The trial court did not abuse its discretion in entering an order awarding
(Note: This syllabus       attorney fees to petitioner’s attorney in dissolution proceedings despite
constitutes no part of     petitioner’s arguments that the petition was not filed within 30 days of the
the opinion of the court   judgment, her counsel did not seek leave to withdraw before filing the
but has been prepared      petition, no evidentiary hearing was conducted, his engagement letter was
by the Reporter of         defective, and his fees were excessive.
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 06-D-7352; the Hon.
Review                     Raul Vega, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Cantwell & Cantwell, of Chicago (Peter A. Cantwell, Telly Stefaneas,
Appeal                     and Bonnie M. Broeren, of counsel), for appellant.

                           Paul L. Feinstein, of Paul L. Feinstein, Ltd., of Chicago, for appellee.


Panel                      JUSTICE HOWSE delivered the judgment of the court, with opinion.
                           Presiding Justice Fitzgerald Smith and Justice Epstein concurred in the
                           judgment and opinion.



                                              OPINION

¶1           Petitioner Kristina Baniak appeals from a judgment granting attorney fees to her former
        attorney, Dean Dussias, entered by the circuit court of Cook County resulting from Dussias’
        representation of Baniak in a dissolution of marriage matter. On appeal Kristina argues the
        trial court abused its discretion when it issued its order awarding attorney fees to Dussias
        because: (1) Dussias failed to file his fee petition within 30 days of entry of the judgment for
        dissolution of marriage as required by section 508(c)(5) of the Illinois Marriage and
        Dissolution of Marriage Act (Act) (750 ILCS 5/508(c)(5) (West 2008)); (2) Dussias failed
        to seek leave to withdraw as Kristina’s counsel before filing his fee petition as required by
        section 508(c)(1) of the Act (750 ILCS 5/508(c)(1) (West 2008)); (3) the trial court failed to
        conduct an evidentiary hearing on the fee petition; (4) Dussias’ engagement letter is
        defective; (5) and Dussias’ fees are excessive. For the reasons set forth below, we affirm.

¶2                                         BACKGROUND
¶3          Petitioner Kristina Baniak entered into a written “Engagement Agreement” with attorney
        Dean Dussias for his representation in a dissolution of marriage proceeding on April 8, 2008.
        The cause was resolved by a marriage settlement agreement, where Kristina agreed to be
        solely responsible to pay her attorney fees in the matter. The trial court entered a judgment
        for dissolution of marriage on October 31, 2008, which incorporated the terms of the parties’
        marriage settlement agreement.
¶4          Dussias filed a petition for setting final attorney fees on December 1, 2008, a period of
        31 days after the trial court entered its judgment for dissolution of marriage.
¶5          On December 29, 2008, the trial court granted Dussias leave to withdraw as counsel for
        Kristina. Kristina filed a pro se appearance on the fee petition matter on February 5, 2009.
¶6          On July 10, 2009, the trial court awarded attorney fees to Dussias in the amount of
        $71,347.50. Kristina filed this timely appeal of the trial court’s award of attorney fees to
        Dussias.



                                                  -2-
¶7                                            ANALYSIS
¶8          In this appeal Kristina claims the trial court abused its discretion when it issued its order
       awarding attorney fees to Dussias because: (1) the court lost subject matter jurisdiction to
       assess attorney fees when Dussias failed to file his fee petition within 30 days of entry of the
       judgment for dissolution of marriage as required by section 508(c)(5) of the Act; (2) Dussias
       failed to seek leave to withdraw as Kristina’s counsel prior to filing his fee petition as
       required by section 508(c)(1) of the Act (750 ILCS 5/508(c)(1) (West 2008)); (3) the trial
       court failed to conduct an evidentiary hearing on the fee petition; (4) Dussias’ engagement
       letter is defective; and (5) Dussias’ fees are excessive.
¶9          The allowance of attorney fees and the amount awarded are matters within the sound
       discretion of the trial court and will not be reversed on appeal absent an abuse of discretion.
       In re Marriage of Suriano, 324 Ill. App. 3d 839, 846 (2001). A reviewing court is not
       justified in substituting its discretion for that of the trial court. Id. The question for the
       reviewing court is not whether it agrees with the trial court’s decision; rather, the reviewing
       court must analyze whether the trial court, in the exercise of its discretion, acted arbitrarily
       without conscientious judgment or, in view of all the circumstances, exceeded the bounds
       of reason and ignored recognized principles of law so that substantial injustice resulted. Id.
¶ 10        The question before us is one of statutory interpretation. The fundamental canon of
       construction is to ascertain and give effect to the intention of the legislature. Nottage v. Jeka,
       172 Ill. 2d 386, 392 (1996). The best indicator of legislative intent is typically the plain and
       ordinary meaning of the language of the statute. Macaluso v. Macaluso, 334 Ill. App. 3d
       1043, 1047 (2002). Statutory construction is a question of law and, therefore, the standard
       of review is de novo. Suriano, 324 Ill. App. 3d at 846.
¶ 11        Section 508 of the Act provides circumstances under which the trial court may award
       necessary attorney fees to a party to a marital dissolution. In re Marriage of Ahmad, 198 Ill.
       App. 3d 15, 18 (1990). Section 508(c) provides that the court may order that the award of
       attorney fees be paid directly to the attorney, who may enforce such order in his name. In re
       Marriage of Birt, 159 Ill. App. 3d 281, 283 (1987). The attorney has standing pursuant to
       section 508(c) to pursue an action for fees himself as a party in interest and section 508(c)
       promotes judicial economy by eliminating the need for an attorney to bring a separate suit
       to collect fees from his client. Id. at 283-84.
¶ 12        Under section 508(c)(5) of the Act:
                     “A [fee] petition *** shall be filed no later than the end of the period in which it
                is permissible to file a motion pursuant to Section 2-1203 of the Code of Civil
                Procedure.” 750 ILCS 5/508(c)(5) (West 2008).
¶ 13        Under section 2-1203(a) of the Code of Civil Procedure:
                “In all cases tried without a jury, any party may, within 30 days after the entry of the
                judgment ***, file a motion *** for other relief.” 735 ILCS 5/2-1203(a) (West 2008).
¶ 14        Kristina claims the trial court did not have subject matter jurisdiction under section
       508(c)(5) of the Act to entertain Dussias’ request for attorney fees because the petition was
       filed more than 30 days after the court’s judgment for dissolution of marriage.


                                                  -3-
¶ 15        However, our supreme court rejected the argument that the legislature can limit the
       actions of the court in Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d
       325, 334-35 (2002). Our supreme court held that a court’s power to act comes from Article
       VI of the state constitution, not the legislature. Id. at 335. The court is empowered by the
       constitution to hear all justiciable matters. Id. The court’s authority to exercise jurisdiction
       and resolve a justiciable question is invoked through the filing of a complaint or petition. Id.
       Generally, a “justiciable matter” is “a controversy appropriate for review by the court, in that
       it is definite and concrete, as opposed to hypothetical or moot, touching upon the legal
       relations of parties having adverse legal interests.” Id.
¶ 16        Section 508 of the Act provides for the awarding of attorney fees. Thus, it is evident that
       the awarding of attorney fees within a dissolution proceeding is a justiciable matter. In re
       Marriage of Pagano, 181 Ill. App. 3d 547, 554 (1989). Moreover, the filing of a fee petition
       is a procedural requirement of section 508 of the Act, not a jurisdictional requirement. Id.
¶ 17        In Belleville Toyota, our supreme court offers an in-depth analysis of subject matter
       jurisdiction in Illinois. As the court stated in Belleville Toyota, the legislature may create new
       justiciable matters by enacting legislation that creates rights and duties that have no
       counterpart at common law or in equity. Belleville Toyota, 199 Ill. 2d at 335. Divorce did not
       exist at common law. People ex rel. Christiansen v. Connell, 2 Ill. 2d 332 (1954). Through
       the legislature’s adoption of the Illinois Marriage and Dissolution of Marriage Act in 1977
       (In re Marriage of Van Zuidam, 162 Ill. App. 3d 942, 944 (1987)), the legislature created a
       new justiciable matter. Belleville Toyota, 199 Ill. 2d at 335. The legislature’s creation of a
       new justiciable matter, however, does not mean that the legislature thereby confers
       jurisdiction on the circuit court. Id. Article VI is clear that, except in the area of
       administrative review, the jurisdiction of the circuit court flows from the constitution. Id.
       (citing Ill. Const. 1970, art. VI, § 9). The General Assembly has no power to enact legislation
       that would contravene article VI. Id. (citing Tully v. Edgar, 171 Ill. 2d 297 (1996)).
¶ 18        Our supreme court in Belleville Toyota notes that some case law suggests that the
       legislature in defining a justiciable matter may impose “conditions precedent” to the court’s
       exercise of jurisdiction that cannot be waived. Id. at 335. In her appellate brief, Kristina cites
       such cases, including In re Marriage of Ransom, 102 Ill. App. 3d 38, 40 (1981), Glasco
       Electric Co. v. Department of Revenue, 86 Ill. 2d 346, 352 (1981), and City of Chicago v.
       Shayne, 27 Ill. 2d 414, 418 (1963). Our supreme court rejected this view in Belleville Toyota,
       finding it contrary to article VI. The court stated:
                “Characterizing the requirements of a statutory cause of action as nonwaivable
                conditions precedent to a court’s exercise of jurisdiction is merely another way of
                saying that the circuit court may only exercise that jurisdiction which the legislature
                allows. We reiterate, however, that the jurisdiction of the circuit court is conferred
                by the constitution, not the legislature.” Belleville Toyota, 199 Ill. 2d at 336.
¶ 19        The cases cited by Kristina have been deemed outdated by our supreme court. Belleville
       Toyota, 199 Ill. 2d at 335-36. As our supreme court explains in Belleville Toyota, jurisdiction
       was a purely legislative concept in the 1818 state constitution. Id. at 336 (citing In re Estate
       of Mears, 110 Ill. App. 3d 1133, 1134-38 (1982)). Under our former constitution, adopted


                                                  -4-
       in 1870, the circuit court enjoyed “original jurisdiction of all causes in law and equity.”
       (Internal quotation marks omitted.) Id. (quoting Ill. Const. 1870, art. VI, § 12). The court’s
       jurisdiction over special statutory proceedings, i.e., matters which had no roots at common
       law or in equity, derived from the legislature. Id. at 336. Thus, in cases involving purely
       statutory causes of action, unless the statutory requirements were satisfied, a court lacked
       jurisdiction to grant the relief requested. Id. at 336-37.
¶ 20       However, 1964 amendments to the judicial article of the 1870 constitution radically
       changed the legislature’s role in determining the jurisdiction of the circuit court. Id. at 337.
       Under the new judicial article, the circuit court enjoyed “ ‘original jurisdiction of all
       justiciable matters, and such powers of review of administrative action as may be provided
       by law.’ ” Id. (quoting Ill. Const. 1870, art. VI, § 9 (amended 1964)). Thus, the legislature’s
       power to define the circuit court’s jurisdiction was expressly limited to the area of
       administrative review. Id. The current constitution, adopted in 1970, retains this limitation.
       Id. The supreme court in Belleville Toyota stated:
                   “In light of these changes, the precedential value of case law which examines a
               court’s jurisdiction under the pre-1964 judicial system is necessarily limited to the
               constitutional context in which those cases arose.” Id.
¶ 21       The cases relied on by Kristina rely on a rule of law that has its roots in the pre-1964
       judicial system. Id. at 338. Such rules that go to the subject matter jurisdiction of the court
       are no longer appropriate, unless the area is administrative review. Id.
¶ 22       Thus, based on Belleville Toyota, we cannot say the trial court here was without
       jurisdiction when it issued its order to award attorney fees to Dussias.
¶ 23       Furthermore, Kristina has waived the issue of the failure of Dussias to comply with the
       time restrictions imposed by the legislature in section 508 by failing to object to Dussias’ fee
       petition and participating in court-ordered dispute mediation and a subsequent hearing on the
       petition without an objection. In re Marriage of Lindsey-Robinson, 331 Ill. App. 3d 261, 265
       (2002).
¶ 24       Kristina next argues that Dussias failed to seek leave to withdraw as her counsel before
       he filed his petition for attorney fees as required by section 508(c)(1) of the Act, which
       provides:
                   “Final hearings for attorney’s fees and costs against an attorney’s own client,
               pursuant to a Petition for Setting Final Fees and Costs of either a counsel or a client,
               shall be governed by the following:
                        (1) No petition of a counsel of record may be filed against a client unless the
                   filing counsel previously has been granted leave to withdraw as counsel of record
                   or has filed a motion for leave to withdraw as counsel.” 750 ILCS 5/508(c)(1)
                   (West 2008).
¶ 25       The record shows that Dussias filed his fee petition on December 1, 2008. There is no
       indication Dussias ever filed a motion to withdraw; however, an order granting Dussias leave
       to withdraw as attorney for appellant was entered on December 29, 2008. It is undisputed
       that Dussias’ fee petition was filed while he was still the attorney of record for the appellant
       and before he had filed a motion to withdraw in violation of section 508(c).

                                                 -5-
¶ 26        The appellant argues that since the petition was filed in violation of section 508 it was
       a nullity. Appellant also argues that the subsequent withdrawal by Dussias did not cure the
       premature filing.
¶ 27        Dussias claims Kristina has waived this issue and in support cites In re Marriage of
       Lindsey-Robinson, 331 Ill. App. 3d 261 (2002). In that case, the former husband Jon claimed
       his former wife Debra’s petition for contribution for attorney fees, filed after judgment was
       entered, was untimely filed and should have been filed prior to judgment under section 503(j)
       of the Act (750 ILCS 5/503(j) (West 1998)). Lindsey-Robinson, 331 Ill. App. 3d at 267.
¶ 28        On appeal, we agreed that under section 503(j), it was mandatory that Debra’s petition
       for contributory fees be filed before final judgment was entered; however, the mandatory
       filing requirement set by the legislature were not jurisdictional prerequisites and those
       requirements could be waived. Id. at 269. We found that Jon waived the timeliness issue
       because he did not object and he substantively argued the merits of the petition before the
       trial court. Id. at 269.
¶ 29        In the instant case, Dussias filed his petition for fees on December 1, 2008, more than 30
       days after the final judgment, and before he had either filed a motion to withdraw as attorney
       for the appellant or had been granted leave to withdraw on December 29, 2008, contrary to
       the filing requirements of section 508(c). After December 29, 2008, the appellant proceeded
       to litigate the issue of attorney fees on the merits without objection to the timeliness issues
       of the fee petition. Appellant participated in mandatory dispute resolution and a hearing on
       the fee petition before the judgment for fees was entered on July 29, 2009. By proceeding
       without objection, the appellant waived any violation of the timing requirements of section
       508(c) regarding the filing of the fee petition. Lindsey-Robinson, 331 Ill. App. 3d 261.
¶ 30        Next, Kristina claims the trial court failed to conduct an evidentiary hearing on Dussias’
       fee petition. Kristina claims the record does not reflect that an actual evidentiary hearing was
       conducted, or that the trial court received and reviewed any testimony or exhibits. However,
       it is the appellant’s burden, not the appellee’s burden, to present a sufficiently complete
       record of the proceedings at trial to support a claim of error, and 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 law and had a sufficient factual basis. Foutch v. O’Bryant, 99 Ill. 2d 389,
       391-92 (1984). Any doubts which may arise from the incompleteness of the record will be
       resolved against the appellant. Id. at 392. Therefore, under Foutch, we must presume that the
       trial court’s order here is in conformity with the law and had a sufficient factual basis. Id.
¶ 31        Next, Kristina claims Dussias’ engagement letter is defective. Kristina has waived this
       claim because she engaged in her dissolution proceeding with Dussias as her counsel and at
       no time objected to Dussias’ engagement letter. Lindsey-Robinson, 331 Ill. App. 3d 261. In
       regard to Kristina’s claim that the “[r]ecord fails to reflect that the trial court scrutinized the
       validity of the engagement agreement,” we must resolve any doubts which may arise from
       the incompleteness of the record against the appellant and presume that the order entered by
       the trial court was in conformity with law and had a sufficient factual basis. Foutch, 99 Ill.
       2d at 391-92.
¶ 32        Lastly, Kristina claims Dussias’ fees are excessive. Kristina claims the record is devoid


                                                  -6-
       of any billing statements. However, we must resolve any doubts which may arise from the
       incompleteness of the record against the appellant and presume that the order entered by the
       trial court was in conformity with law and had a sufficient factual basis. Id. In addition,
       Kristina has waived this claim because she engaged in the fee petition proceedings without
       objection. Lindsey-Robinson, 331 Ill. App. 3d 261.

¶ 33                                   CONCLUSION
¶ 34      For the foregoing reasons, we affirm the judgment of the trial court.

¶ 35      Affirmed.




                                               -7-
