{
  "id": 2824549,
  "name": "Andrew J. Horwitz, Plaintiff-Appellant, v. Donna Horwitz, Defendant-Appellee",
  "name_abbreviation": "Horwitz v. Horwitz",
  "decision_date": "1970-10-21",
  "docket_number": "Gen. Nos. 53,703, 53,465. (Consolidated.)",
  "first_page": "424",
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    {
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      "reporter": "N.E.2d",
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        5156902
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      "category": "reporters:state",
      "reporter": "Ill. App.",
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      "opinion_index": 0,
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    {
      "cite": "123 Ill App 553",
      "category": "reporters:state",
      "reporter": "Ill. App.",
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        875683
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      "year": 1905,
      "opinion_index": 0,
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    {
      "cite": "223 NE2d 191",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "year": 1967,
      "opinion_index": 0
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    {
      "cite": "78 Ill App2d 455",
      "category": "reporters:state",
      "reporter": "Ill. App. 2d",
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        2568932
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      "year": 1967,
      "opinion_index": 0,
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    {
      "cite": "76 NE2d 353",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "year": 1947,
      "opinion_index": 0
    },
    {
      "cite": "332 Ill App 661",
      "category": "reporters:state",
      "reporter": "Ill. App.",
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        5045322,
        5043214
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  "last_updated": "2023-07-14T21:36:32.959960+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Andrew J. Horwitz, Plaintiff-Appellant, v. Donna Horwitz, Defendant-Appellee."
    ],
    "opinions": [
      {
        "text": "MR. PRESIDING JUSTICE STAMOS\ndelivered the opinion of the court.\nThis is a consolidation of appeals by plaintiff. The first appeal is taken from an order directing plaintiff to pay $600 to defendant\u2019s attorney to defend a post-divorce decree petition by plaintiff for modification of visitation rights prior to a hearing on that petition. The second appeal is taken from an order directing plaintiff to pay $1,000 to defendant\u2019s attorney to defend the initial appeal.\nAfter a contested hearing, the plaintiff was granted a divorce on the grounds of adultery on July 1, 1965. The decree awarded plaintiff custody of the parties\u2019 four minor children with defendant afforded visitation rights. The visitation rights were subsequently limited and modified on July 26,1967.\nOn September 11, 1967, plaintiff filed a petition to deny defendant all visitation rights alleging specific instances where defendant jeopardized the life and well being of the children while they were in her custody pursuant to her rights of visitation. Defendant responded to this petition on October 17, 1967, denying the material allegations as set forth in the petition. On January 22, 1968, defendant moved for a change of venue from Judge Suria, who granted the motion, and sent the matter to Judge Hunter, Presiding Judge of the Divorce Division, for reassignment. Defendant\u2019s motion listed Judges Hunter, Iseberg and Drymalski as acceptable to defendant.\nOn February 15, 1968, defendant filed a petition seeking attorney\u2019s fees and costs in defense of plaintiff\u2019s pending petition of September 11, 1967, and attorney\u2019s fees and costs for the taking of evidence depositions. On March 8, 1968, Judge Hunter entered an order directing plaintiff to pay $1,500 to defendant\u2019s attorney for defense of plaintiff\u2019s petition. This order was subsequently vacated on April 24, 1968, by Judge Hunter and leave was granted defendant to file an amended petition for fees and costs. Defendant\u2019s amended petition recited a schedule of actual and anticipated hours and effort by her counsel amounting to $3,480. Plaintiff responded to this amended petition on May 3, 1968, denying defendant\u2019s right to fees and costs.\nPursuant to defendant\u2019s motion for change of venue of January 22, 1968, the case was assigned to Judge Plusdrak. However, on May 14, 1968, defendant moved for a change of venue from Judge Plusdrak. Defendant\u2019s motion listed Judges Plusdrak, Iseberg, Wells and Wham as unacceptable to defendant. Judge Plusdrak granted the motion and sent the matter to Judge Hunter for reassignment. Judge Hunter then assigned the case to Judge Friedlund.\nOn July 25, 1968, Judge Friedlund, without hearing any evidence, entered an order directing plaintiff to pay defendant\u2019s attorney $600 for defense of plaintiff\u2019s petition of September 11, 1967. Plaintiff filed a notice of appeal from this order on August 20,1968.\nOn September 26, 1968, defendant petitioned for fees and costs to defend plaintiff\u2019s appeal. Plaintiff moved to strike this petition on September 30, 1968, denying defendant\u2019s right to fees and costs. However, on October 25, 1968, the court ordered plaintiff to pay defendant\u2019s attorney $1,000 to defend plaintiff\u2019s initial appeal, again without hearing any evidence. Plaintiff appeals this order also.\nPlaintiff initially contends that the trial court exceeded its \u201cjurisdiction\u201d in ordering him to pay $600. to defendant\u2019s attorney for defense of plaintiff\u2019s post-decretal petition. Plaintiff does not question the right of the trial court to award attorney\u2019s fees in post-divorce decree proceedings in the trial court, only the court\u2019s power to award them before an adjudication on the merits.\nIt has been held that attorney\u2019s fees may be awarded in post-decree proceedings in the trial court to modify the provisions of the decree. Martin v. Martin, 332 Ill App 661, 76 NE2d 353 (1947). The allowance of said fees depends upon the peculiar circumstances of the individual case. Mabbatt v. Mabbatt, 78 Ill App2d 455, 223 NE2d 191 (1967). Where the proceedings are brought to modify the custodial provisions of the decree, the husband is liable for legal services rendered necessary to properly present the needs of the children to the court. Pike v. Pike, 123 Ill App 553 (1905). However, where the custodial modification is sought primarily for the convenience of the parties and not the welfare of the children, the attorney\u2019s allowance will be disallowed. Gerson v. Mathes, 252 Ill App 607 (1929). It has also been held that an additional factor to be considered is the identity of the party precipitating the circumstances which necessitated the incurrence of attorney\u2019s fees. Moore v. Black, 10 Ill App2d 339, 134 NE2d 347 (1956). Therefore, in Mabbatt, supra, where the welfare of the children was involved and the husband\u2019s conduct necessitated the legal proceedings, it was held that the court properly awarded attorney\u2019s fees to the wife.\nHowever, the attorney\u2019s fees in the above cases and others cited by the parties were not awarded in advance, but only after a full adjudication on the merits of the post-decretal petition. We believe this is as it should be, and therefore, find that an allowance of attorney\u2019s fees before such a determination of the circumstances, as in the present case, is premature and an abuse of discretion.\nPlaintiff next contends that the trial court erred in ordering plaintiff to pay $1,000 to defendant\u2019s attorney for defense of plaintiff\u2019s initial appeal.\nThe only authorization for attorney\u2019s fees to defend an appeal in divorce matters is section 15 of the Divorce Act (Ill Rev Stats 1965, c 40, \u00a7 16) which in its pertinent part provides:\n\u201cThe court may, in its discretion reserve the question of the allowance of attorney\u2019s fees and suit money until the final hearing of the case and may then make such order with reference thereto as may seem just and equitable, regardless of the disposition of the case. In case of appeal by the husband or wife, the court in which the decree or order is rendered may grant and enforce the payment of such money for her or his defense and such equitable alimony during the pendency of the appeal as to such court shall seem reasonable and proper.\u201d\nHowever, this provision by its express terms applies only to matters culminating in the original divorce decree and does not authorize an allowance of attorney\u2019s fees to defend an appeal from a post-decretal order. Therefore, the trial court erred in ordering plaintiff to pay defendant\u2019s attorney an allowance for defense of plaintiff\u2019s initial appeal.\nWe note that plaintiff also complains that the trial court erred in granting defendant\u2019s changes of venue, particularly because of the absence of any apparent authority whatsoever for a second change of venue. However, since we have determined to reverse the trial court\u2019s orders granting the attorney\u2019s fees, we need not discuss the contention.\nThe orders directing plaintiff to pay defendant\u2019s attorney the sums of $600 for defense of the petition filed on September 11, 1968, and $1,000 for defense of the initial appeal are reversed and the cause is remanded.\nReversed and remanded.\nDRUCKER and ENGLISH, JJ., concur.\nOn September 21, 1967, Judge Suria entered an order denying defendant attorney\u2019s fees and expense money for defense of plaintiff\u2019s petition resulting in the July 26, 1967, order.",
        "type": "majority",
        "author": "MR. PRESIDING JUSTICE STAMOS"
      }
    ],
    "attorneys": [
      "Jerome Berkson, of Chicago, for appellant.",
      "Stanley F. Kaplan, of Chicago, for appellee."
    ],
    "corrections": "",
    "head_matter": "Andrew J. Horwitz, Plaintiff-Appellant, v. Donna Horwitz, Defendant-Appellee.\nGen. Nos. 53,703, 53,465. (Consolidated.)\nFirst District, Fourth Division.\nOctober 21, 1970.\nJerome Berkson, of Chicago, for appellant.\nStanley F. Kaplan, of Chicago, for appellee."
  },
  "file_name": "0424-01",
  "first_page_order": 430,
  "last_page_order": 434
}