Kane v. Kane

2018 IL App (2d) 180195

127 N.E.3d 673

431 Ill.Dec. 140

IN RE MARRIAGE OF Gregory Phillip KANE, Petitioner-Appellee,

and

Heather Ann Kane, Respondent

(Michael D. Canulli, Appellant).

No. 2-18-0195

Appellate Court of Illinois, Second District.

Opinion filed October 31, 2018

Michael D. Canulli, of Naperville, appellant pro se.

Natalie M. Stec, of Wolfe & Stec, Ltd., of Woodridge, for appellee.

Michael G. DiDomenico, of Lake Toback DiDomenico, and Paul L. Feinstein, of Paul L. Feinstein Ltd., both of Chicago, for amicus curiae Illinois Chapter of the American Academy of Matrimonial Lawyers.

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

¶ 1 I. BACKGROUND

¶ 2 This is the second time this case has come before this court. Attorney Michael D. Canulli formerly represented Gregory Phillip Kane in his dissolution-of-marriage case. During the pendency of the dissolution proceedings, Canulli was granted leave to withdraw as Kane's attorney, and Kane eventually retained new counsel. Within the then-pending dissolution action, Canulli filed against Kane a petition for setting final fees and costs pursuant to section 508(c) of the Illinois Marriage and Dissolution of Marriage Act (Act or Dissolution Act) ( 750 ILCS 5/508(c) (West 2016) ), wherein he sought $48,000 in unpaid attorney fees allegedly incurred. Following a hearing held subsequent to the dissolution of Kane's marriage, the circuit court of Du Page County awarded Canulli $12,500. Canulli appealed, and this court affirmed the award in In re Marriage of Kane , 2016 IL App (2d) 150774, ¶ 1, 412 Ill.Dec. 580, 76 N.E.3d 20 ( Kane I ). Kane was represented by counsel throughout the appeal.

¶ 3 On March 7, 2017, Kane filed against Canulli a petition for attorney fees pursuant to section 508(a)(3) of the Act, which provides that the court may order any party to pay a reasonable amount for the other party's attorney fees and costs in connection with the defense of an appeal of any order or judgment under the Act, including a postjudgment order. 750 ILCS 5/508(a)(3) (West 2016). The petition alleged that Kane incurred $11,640 in attorney fees defending against Canulli's appeal in Kane I and that Canulli had the ability to pay these fees. Canulli moved to dismiss on April 13, 2017, contending that he was not a "party" for purposes of section 508(a) and therefore could not be liable for fees thereunder. Kane responded that section 508(a) does not limit the word "party" to the original named litigants in the dissolution action and that "Canulli became a party to this matter and subjected himself to the jurisdiction of [the circuit court] by filing a petition for final fees and costs." He also stressed that, under section 508(c)(2), Canulli's petition for final fees and costs was a "distinct cause of action."

¶ 4 On July 11, 2017, the circuit court denied Canulli's motion to dismiss and found that "Canulli is a party for purposes of the petition for fees for defending an appeal filed by [Kane]." The court stated that, "[t]hrough [Canulli's] conduct of filing the petition [for final fees and costs], engaging in a day-long hearing, filing a notice of appeal, arguing the appeal and having [the circuit court] affirmed, [he] made [himself] a party to the collection of the funds." Canulli filed a motion to reconsider, which the circuit court denied on November 7, 2017.

¶ 5 In order to establish Canulli's financial ability to pay the fees as alleged in Kane's fee petition, Kane then initiated discovery against Canulli, seeking information regarding his income, living expenses, assets, and liabilities. Canulli reiterated his argument that he was not a "party" for purposes of section 508(a) and declined to comply with Kane's discovery requests. Kane filed a motion to compel, which the circuit court granted on January 16, 2018. The court then entered a discovery order directing Canulli to tender to Kane's attorney certain documents relating to Canulli's 2017 income.

¶ 6 Canulli filed a motion requesting that the circuit court hold him in "friendly contempt" for the explicit purpose of appealing the court's interlocutory discovery order. On February 13, 2018, the court granted Canulli's request, held him in friendly civil contempt based on his willful failure to comply with the discovery order, and sanctioned him $1. Canulli timely appealed pursuant to Illinois Supreme Court Rule 304(b)(5) (eff. Mar. 8, 2016), which provides that "[a]n order finding a person or entity in contempt of court which imposes a monetary or other penalty" is immediately appealable. The Illinois Chapter of the American Academy of Matrimonial Lawyers filed an amicus brief in support of Canulli's legal position only, stating that it did not condone his conduct as outlined in Kane I , 2016 IL App (2d) 150774, ¶¶ 36-43, 412 Ill.Dec. 580, 76 N.E.3d 20. For the following reasons, we reverse the discovery order and vacate the contempt order and sanction.

¶ 7 II. ANALYSIS

¶ 8 A. Jurisdiction

¶ 9 As a preliminary matter, we first address the various procedural barriers that Canulli asserts precluded the circuit court from acting on Kane's petition. According to Canulli, the court lacked jurisdiction to entertain Kane's fee petition, because, in the prior appeal, we affirmed the court's judgment but "did not remand with instructions which would allow Kane to file a fee petition against Canulli." Canulli contends that, because there was no remand, "the only proceedings which could follow from the appeal [would be] related to the enforcement of Canulli's judgment." He also points to two First District cases for the general proposition that a circuit court has the authority to award prospective attorney fees for the defense of an appeal in a dissolution matter. See In re Marriage of Pahlke , 154 Ill. App. 3d 256, 107 Ill.Dec. 407, 507 N.E.2d 71 (1987) ; In re Marriage of Giammerino , 94 Ill. App. 3d 1058, 50 Ill.Dec. 490, 419 N.E.2d 598 (1981). Canulli also suggests that Kane's fee petition was barred by the doctrine of res judicata .

¶ 10 We reject each argument in turn. Illinois Supreme Court Rule 369 (eff. July 1, 1982) governs the filing of a mandate in a circuit court and guides the proceedings therein following the issuance of the mandate. As our supreme court has explained, "[t]he mandate of a court of review is the transmittal of the judgment of that court to the circuit court, and revests the circuit court with jurisdiction." PSL Realty Co. v. Granite Investment Co. , 86 Ill. 2d 291, 304, 56 Ill.Dec. 368, 427 N.E.2d 563 (1981). Relevant here, Rule 369(b) provides that "[w]hen the reviewing court dismisses the appeal or affirms the judgment and the mandate is filed in the circuit court, enforcement of the judgment may be had and other proceedings may be conducted as if no appeal had been taken ." (Emphasis added.) Ill. S. Ct. R. 369(b) (eff. July 1, 1982). After the mandate is issued, "the trial court is revested with jurisdiction where the appellate court affirms a judgment or dismisses the appeal." Glens of Hanover Condominium Ass'n v. Carbide , 2014 IL App (2d) 130432, ¶ 4, 379 Ill.Dec. 528, 6 N.E.3d 856. Here, because we affirmed the circuit court's judgment in Kane I , the circuit court was revested with jurisdiction to consider other proceedings upon the issuance of the mandate, including Kane's fee petition.¹ No explicit remand was necessary. See Stein v. Spainhour , 196 Ill. App. 3d 65, 68-69, 142 Ill.Dec. 723, 553 N.E.2d 73 (1990) (holding that a request for attorney fees incurred on appeal constituted "other proceedings" under Rule 369(b) following an appellate court mandate affirming the trial court); In re Marriage of Davis , 292 Ill. App. 3d 802, 813-14, 226 Ill.Dec. 765, 686 N.E.2d 395 (1997) (noting that remand was unnecessary to allow spouse to seek payment of attorney fees incurred in defense of an appeal under section 508(a)(3) of the Dissolution Act). As such, Canulli's argument regarding the necessity of a remand to revest the circuit court with jurisdiction to consider Kane's fee petition is without merit.

¶ 11 We are not persuaded by Canulli's citation to Pahlke , 154 Ill. App. 3d 256, 107 Ill.Dec. 407, 507 N.E.2d 71, and Giammerino , 94 Ill. App. 3d 1058, 50 Ill.Dec. 490, 419 N.E.2d 598, as neither case supports his argument. Though these cases stand for the proposition that in some instances a circuit court may award prospective fees under section 508(a) for the defense of a pending appeal, they do not suggest that such fees must be sought while the appeal is still pending or before the mandate is issued. See also In re Marriage of Talty , 166 Ill. 2d 232, 240, 209 Ill.Dec. 790, 652 N.E.2d 330 (1995) (holding that circuit court had authority under section 508(a) to award prospective attorney fees for defense of appeal).

¶ 12 Finally, we determine that Canulli has forfeited the issue of whether Kane's fee petition was barred by the doctrine of res judicata , as he failed to provide any argument on this point in his opening brief. Illinois Supreme Court Rule 341(h)(7) (eff. Nov. 1, 2017) requires that an appellant's brief include "[a]rgument, which shall contain the contentions of the appellant and the reasons therefor, with citation of the authorities and the pages of the record relied on." This rule is not a mere suggestion, but has the force of law. Rodriguez v. Sheriff's Merit Comm'n of Kane County , 218 Ill. 2d 342, 353, 300 Ill.Dec. 121, 843 N.E.2d 379 (2006). Canulli's failure to advance any argument on this point results in its forfeiture.

¶ 13 B. Whether an Attorney Is a "Party" under Section 508 (a)

¶ 14 Having determined that the circuit court had jurisdiction to consider Kane's fee petition, we now turn to the merits of this appeal. In general, Illinois courts follow the "American Rule," which provides that, absent statutory authority or a contractual agreement, each party is responsible for his or her own attorney fees. Morris B. Chapman & Associates, Ltd. v. Kitzman , 193 Ill....