Cozzi-Digiovanni v. Counter

2014 IL App (1st) 130109

In re MARRIAGE OF SANDRA COZZI-DiGIOVANNI, Petitioner and Counterrespondent-Appellee, and COSIMO DiGIOVANNI, Respondent-Counterpetitioner (Michael D. Canulli, Appellant).

Docket No. 1-13-0109

Appellate Court of Illinois First District, Fifth Division

June 27, 2014

Illinois Official Reports

Appellate Court

Held

(Note: This syllabus constitutes no part of the opinion of the court but has been prepared by the Reporter of Decisions for the convenience of the reader.)

In proceedings initially seeking the dissolution of the parties' marriage and ending with the entry of a legal separation, the trial court erred in entering summary judgment against respondent's first counsel on his petition seeking contribution toward his remaining attorney fees from petitioner and denying his motion to reconsider, since respondent's attorney had the right to seek contribution from petitioner pursuant to section 503(j) of the Illinois Marriage and Dissolution of Marriage Act; therefore, the cause was remanded for further proceedings.

Decision Under Review

Appeal from the Circuit Court of Cook County, No. 07-D-09096; the Hon. Raul Vega, Judge, presiding.

Judgment

Reversed and remanded.

Counsel on Appeal

Michael D. Canulli, of Chicago, for appellant.

No brief filed for appellee.

Panel

JUSTICE PALMER delivered the judgment of the court, with opinion.

Presiding Justice Gordon and Justice McBride concurred in the judgment and opinion.

OPINION

¶ 1 This appeal arises in the context of the dissolution of marriage action between petitioner and counterrespondent Sandra Cozzi-DiGiovanni (Sandra) and respondent and counterpetitioner Cosimo DiGiovanni (Cosimo). During the pendency of the dissolution proceeding, Cosimo's former counsel, Michael D. Canulli (Canulli), filed a petition against Sandra seeking contribution for attorney fees and costs owed by Cosimo to Canulli. The court granted summary judgment to Sandra on the petition, finding that, pursuant to section 503(j) of the Illinois Marriage and Dissolution of Marriage Act (the Act) (750 ILCS 5/503(j) (West 2010)), it did not have subject matter jurisdiction to consider the petition. It denied Canulli's motion to reconsider.

¶ 2 Canulli appeals the court's orders, asserting (1) nine arguments challenging the court's interpretation of sections 503(j) and 508(a) of the Act (750 ILCS 5/503(j), 508(a) (West 2010)); (2) that Sandra waived her objection to the petition; and (3) that the court was revested with jurisdiction. He also requests that, upon remand for a hearing on his petition, the case be reassigned to a different trial judge. Although Sandra has not filed a brief in response, we will consider the appeal pursuant to the principles set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 131-33 (1976). We reverse and remand for further proceedings.

¶ 3 BACKGROUND

¶ 4 Sandra filed a petition for dissolution of marriage in September 2007. Three months later, Cosimo filed a counterpetition for dissolution of the marriage. Canulli represented Cosimo and continued to do so until July 21, 2009, on which date the court entered an order allowing Canulli to withdraw his appearance as Cosimo's attorney. Another attorney then filed an appearance for Cosimo.

¶ 5 In October 2009, Canulli filed a "petition for final fee hearing against former client," seeking attorney fees and costs from Cosimo. He asserted that he had received $12,397.40 in payments from Cosimo but was owed an additional $28,364.65. A mediation hearing on the petition was scheduled for January 5, 2010.

¶ 6 However, on January 4, 2010, Cosimo filed a petition for relief in the United States Bankruptcy Court, seeking discharge of assorted obligations under chapter 7 of the UnitedStates Bankruptcy Code (11 U.S.C. § 101 et seq. (2006)). Cosimo listed Canulli as one of his creditors. As a result of the bankruptcy filing, the circuit court entered an order staying prosecution of Canulli's petition against Cosimo and continued the petition for a status hearing on the bankruptcy.

¶ 7 On January 5, 2010, Canulli filed a "petition for attorney's fees, costs and expenses hearing" against Sandra, citing section 508(c) "et seq." of the Act. He asserted that Cosimo owed him $28,364.65 in attorney fees and costs and, given that Cosimo was seeking bankruptcy relief, it appeared that Cosimo would not pay the attorney fees and costs he had incurred in the dissolution action. Canulli claimed that Sandra had a demonstrated ability to pay Cosimo's attorney fees and costs because Cosimo had told him that Sandra had purchased a winning lottery ticket worth in excess of $2 million. Canulli requested an evidentiary hearing on the petition and a judgment against Sandra in his favor for $28,364.65 plus additional sums as necessary.

¶ 8 Sandra moved to dismiss, arguing that, even if Canulli's petition against her was interpreted as a petition for contribution, section 508(c) of the Act provides that Canulli can only file a final fee petition during the pendency of a dissolution proceeding against his own client, not against the opposing party.

¶ 9 On February 18, 2010, the court granted her motion, finding that "former counsel may only obtain fees pursuant to [section] 508(c) which is limited to seeking fees against his client" and "Canulli is the former counsel of Cosimo DiGiovanni and he does and has not represented Sandra." It "denied, as a matter of law," Canulli's petition for a fees and costs hearing against Sandra. The court ordered that "notice of future proceedings including prove up or entry of judgment shall be given to Mr. Canulli."

¶ 10 On March 22, 2010, Canulli filed a motion to reconsider the court's February 18, 2010, order dismissing his contribution petition against Sandra.

¶ 11 On March 24, 2010, the court granted Sandra leave to file for a legal separation rather than dissolution of marriage. On the same date, it entered a judgment for legal separation. In the judgment, the court approved and incorporated the parties' marital separation agreement and an addendum thereto. In the addendum, the parties agreed that, given Canulli's filing of his petition against Sandra and his stated intent to appeal the court's denial of the petition, the following provision was incorporated into the separation agreement:

"Respondent [Cosimo] shall be responsible for and pay his own attorney fees incurred in this cause. Respondent waives whether by statute or otherwise any right to contribution for attorney fees from Petitioner [Sandra].

Petitioner shall be responsible for and pay her own attorney fees incurred in this cause. But her right to contribution for attorney fees from Respondent or her right to seek a contribution from any attorney fees she is ordered to pay Michael Canulli pursuant to Canulli's Petition or any similar petition filed by him is reserved. Petitioner may only file a Petition for Contribution for attorney fees against Respondent if the trial court's order of February 19, 2010 is reversed or overturned in whole or in part by either the trial court or the appellate court or it is remanded by the appellate court to the trial court for further proceedings." (Emphasis in original.)

The court's order stated that it retained jurisdiction over the subject matter of the case and the parties for the purposes of enforcing all terms of the judgment and the agreement.

¶ 12 On April 15, 2010, the bankruptcy court entered an order granting Cosimo's petition for chapter 7 discharge.

¶ 13 On June 22, 2010, the court denied Canulli's motion to reconsider the dismissal of his petition for contribution against Sandra.

¶ 14 On July 12, 2010, Canulli filed a "motion to complete common law record and other relief," asserting that, in an unrelated domestic relations case before a different trial judge, the judge had entered an order contrary to that entered on Canulli's petition, allowing the attorney to pursue a petition for contribution against the opposing party. Canulli requested (1) leave to supplement the record with the orders entered in the other case and (2) reconsideration of the court's order granting Sandra's motion to dismiss his petition given the contradictory ruling on the identical issue.

¶ 15 On July 19, 2010, the court (1) denied the motion to complete the common law record and (2) vacated its February 18, 2010, order granting Sandra's motion to dismiss Canulli's contribution petition against her. It ordered Sandra to answer the petition.

¶ 16 Sandra filed her answer and two affirmative defenses in August 2010. She argued Canulli's action for contribution was barred because (1) any debt owed to Canulli for attorney fees had been discharged by Cosimo's bankruptcy and there was, therefore, no longer any debt owed to Canulli to which Sandra could be required to contribute and (2) pursuant to section 508 of the Act, a former counsel may petition for fees only against the attorney's own client. Sandra filed a petition for contribution against Cosimo pursuant to the addendum to the parties' marital separation agreement. She also filed a petition for interim attorney fees against Canulli, asserting that she would be unable to properly defend against his petition for contribution without an award of interim fees.

¶ 17 Cosimo answered and filed an affirmative defense to Sandra's petition for contribution. He argued that, because Canulli's attorney fees had been discharged in the chapter 7 bankruptcy, Cosimo had no legal obligation or duty to pay Canulli's fees and Sandra was prohibited from seeking contribution from Cosimo for those fees as the fees had been properly discharged.

¶ 18 In January 2011, the court awarded Sandra $10,000 in interim attorney fees from Canulli, noting that Canulli failed to appear or file a responsive pleading. However, in March 2011, the court granted Canulli's motion to vacate the interim fee award.

¶ 19 The case continued through assorted answers, responses and motions, including Canulli's motion...