Post Decree Contribution Actions for Attorneys Fees

The Illinois Supreme Court appears to have finally clarified the issue of the timeliness of a Contribution Action for Attorneys Fees in Post Decree proceedings in a Dissolution case. The case of Blum v. Koster, 2009 WL 321542 has resolved the conflict in the Appellate Districts on this issue.
The conflict was started shortly after the amendment to Section 508 of the Illinois Marriage and Dissolution of Marriage Act. Prior to June 1, 1997, Section 5 of the Act exclusively governed Petitions for Attorneys Fees. However, effective June 1, 1997, Section 508 of the Act was substantially amended and Section 503(j) of the Act was added.
As amended, Section 508(a) provides, in pertinent part, as follows:
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 partys costs and attorneys fees.. At the conclusion of the case, contribution to attorneys fees and costs may be awarded from the opposing party in accordance with subsection (j) of Section 503.
Section 503(j) provides in relevant part the following:
After proofs have closed in the final hearing on all other issues between the parties and before judgment is entered, a partys petition for contribution to fees and costs incurred in the proceeding shall be heard and decided, in accordance with the following provisions:
(1) A petition for contribution, if not filed before the final hearing on other issues between the parties, shall be filed in no later than 30 days after the closing of proofs in the final hearing or within such other period as the court orders..
It was this language that the Second District Appellate Court utilized in deciding the case of In re the Marriage of Konchar, 312 Ill.App 3d 441, 727 N.E. 2d 671 (Second District 2000).
The Konchar case involved a Post Decree Dissolution proceeding where the Petitioner had filed a Petition for Attorneys Fees. The Trial Court denied the petition because it found that the petition was not timely filed.
The timeline of the case is always important and will be repeated here for clarification. On June 30, 1993 the Trial Court dissolved the marriage and custody of the parties minor son was awarded to the Respondent. Four (4) years later the Respondent filed a Motion to Suspend or Supervise the Petitioners Visitation with the parties minor son. The Petitioner, George Konchar, filed a Motion to Dismiss the Respondents Petition which included a one (1) sentence prayer for attorneys fees. On April 15, 1998 the Trial Court granted the Respondents Motion in part, denied the Motion in part and established a new Visitation Schedule. The Court did not address the Petitioners prayer for attorneys fees in the one (1) sentence prayer for relief.
On May 13, 1998 the Petitioner filed a Petition for Attorneys Fees with the appropriate attachments. The Trial Court denied the Petition for Attorneys Fees because the petition was not heard and decided before the April 15, 1998 judgment on the Post Decree matter was entered.
The Second District Appellate Court zeroed in on the language of Section 503(j) of the Illinois Marriage and Dissolution of Marriage Act and stated that:
We conclude that, under section 503(j) of the Act, a petition for attorney fees must be heard and decided before the final judgment is entered. We determine that the phrase before judgment is entered that is presented in section 503(j) limits subsection (1) of section 503(j) of the Act so that the 30-day extension only applies to situations where a final judgment has not been entered. We reach this conclusion based on the fact that nowhere in Section 503(j) does the legislature provide that the 30-day extension applies after final judgment has been entered. Rather, the 30-day period applies to extend the time to file a petition for attorney fees after the closing of proofs and, presumably, before final judgment is entered. If we were to conclude that the 30-day extension applies to cases where a final judgment has been entered, we would violate a cardinal rule of statutory construction that prohibits reading into the statute limitations, exceptions, and conditions that the legislature did not express.
The Third District Appellate Court in the case of Macaluso v. Macaluso, 334 Ill.App 3d 1043, 779 N.E. 2d 250 (Third District 2002) specifically and expressly rejected the interpretation of Section 503(j) used by the Konchar Court and held that that Section does not require Post Decree Petitions for Contributions to Attorneys Fees to be filed before final hearing on the issues between the parties.
In Macaluso, a Petition for Contribution for Attorneys Fees was filed after the Trial Court issued a ruling on Post Decree proceedings. The Trial Court dismissed the Petition for Attorneys Fees as untimely citing the holding in the Konchar Case. The Third District Appellate Court reversed holding that the language that says final hearing on all other issues between the parties in Section 503(j) referred to Pre-Decree Bifurcated Hearings and that the time requirement of Section 503(j) was therefore limited to Pre-Decree proceedings. (See Macaluso, 334 Ill.App. 3d 1047). The First District had previously rejected the interpretation of Section 503(j) in the case In re the Marriage of Carr, 323 Ill.App. 3d 481, 752 N.E. 2d 1181 (First District 2001). (However, the rejection of Konchar was actually in dicta as the actual opinion in Carr was that the appeal was dismissed because the appeal was filed thirty (30) days after the Trial Court had already addressed the Motions to Reconsider the retroactive Order of the former husbands child support obligations).
In the case of Blum v. Koster, the Lake County, Trial Court followed Konchar and dismissed as untimely the ex-wifes Petition for Contribution to Attorneys Fees on the Post Decree petition to determine that a maintenance award was non-modifiable and non-reviewable.
The Second District Appellate Court, (the same Appellate Court that had decided the Konchar case) rejected Konchar and adopted the reasoning in the Macaluso case as a basis for reversing the Trial Courts decision on this issue.
In the still yet unpublished opinion the Illinois Supreme Court affirms that part of the Appellate Court Order rejecting Konchar and stated Finally, we hold that Section 503(j) does not apply to Post Decree Petitions for Contributions of Attorneys Fees and the Trial Court therefore erroneously dismissed Judys Petition for Contribution of Attorneys Fees as untimely. This is now the law in all of the Appellate Districts.
Once the case of Blum v. Koster is published we will discuss the other aspects of the case, including but not limited to provisions in a Marital Settlement Agreement for maintenance. As for now, let us just be satisfied that the Illinois Supreme Court has settled the conflict between the Appellate Court Districts with relation to the inapplicability of Section 503(j) applying to Post Decree Petitions for Contributions to Attorneys Fees.
ABOUT THE AUTHOR: Michael A. Meschino
Since 1982, the Law Offices of Michael Meschino has represented people in the northwest suburbs of Chicago and its surrounding areas, including Schaumburg, Streamwood, Inverness, Hanover Park, Lake Zurich, and Deerfield. We have the necessary experience to help guide you through your complicated legal matter.