{
  "id": 2609347,
  "name": "In re MARRIAGE OF HERBERT J. DREWS, JR., by his Guardian, Lorraine Drews, Petitioner-Appellee, and SUE ANNE CARROTHERS DREWS, Respondent-Appellant",
  "name_abbreviation": "In re Marriage of Drews",
  "decision_date": "1989-01-19",
  "docket_number": "No. 87\u20142363",
  "first_page": "110",
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    "id": 8837,
    "name": "Illinois Appellate Court"
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  "last_updated": "2023-07-14T20:22:52.001106+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [],
    "parties": [
      "In re MARRIAGE OF HERBERT J. DREWS, JR., by his Guardian, Lorraine Drews, Petitioner-Appellee, and SUE ANNE CARROTHERS DREWS, Respondent-Appellant."
    ],
    "opinions": [
      {
        "text": "JUSTICE McMORROW\ndelivered the opinion of the court:\nRespondent (Sue Anne) appeals from the trial court\u2019s dismissal of her petition for the reasonable attorney fees she incurred in defending appeals from the trial court\u2019s dismissal of a suit brought by the mother and guardian of petitioner (Herbert) to dissolve Herbert\u2019s marriage to Sue Anne. (See In re Marriage of Drews (1986), 115 Ill. 2d 201, 503 N.E.2d 339, affirming (1985), 139 Ill. App. 3d 763, 487 N.E.2d 1005.) The trial court dismissed the fee petition on the ground that section 508 of the Illinois Marriage and Dissolution of Marriage Act (the IMDMA) (Ill. Rev. Stat. 1987, ch. 40, par. 508) does not authorize the award of attorney fees to Sue Anne, because Sue Anne did not set forth a claim upon which fees could be awarded trader section 508 of the IMDMA. The trial court held that section 508 does not permit an award of fees from a spouse for whom a guardian has been appointed and on whose behalf a dissolution of marriage petition has been filed by the guardian. We reverse and remand.\nBackground\nHerbert and Sue Anne were married in June 1979. In 1980, Herbert sustained severe injuries that caused him permanent and total mental and physical disability. Thereafter his mother was appointed plenary guardian over his estate and person. In her capacity as plenary guardian, Herbert\u2019s mother filed a petition for dissolution of Herbert\u2019s marriage to Sue Anne. The trial court dismissed the petition with prejudice. The Illinois Appellate and Supreme courts affirmed, holding that \u201cabsent [specific] statutory authorization, a guardian cannot institute an action, on behalf of a ward, for the dissolution of the ward\u2019s marriage.\u201d In re Marriage of Drews (1986), 115 Ill. 2d 201, 205.\nWhile the matter was pending before the Illinois Supreme Court, Sue Anne filed a petition for attorney fees incurred in defending the appeals before the appellate and supreme courts, citing, inter alia, section 508 of the IMDMA. Herbert, through his guardian, moved to dismiss the petition for attorney fees. Following briefing and argument, the trial court dismissed the fee petition of Sue Anne with prejudice. She appeals.\nOpinion\nHerbert\u2019s guardian argues that the trial court properly dismissed Sue Anne\u2019s request for attorney fees under section 508 of the IM-DMA because there is no party in this litigation against whom fees can be assessed. Herbert\u2019s guardian argues that the language of section 508 does not permit an award from a guardian or anyone other than a spouse and that Herbert was not a party to the dissolution proceeding brought by his guardian. We disagree.\nUnder section 508 of the IMDMA, the trial court has the authority \u201cafter due notice and hearing, and after considering the financial resources of the parties, [to] order either spouse to pay a reasonable amount *** for the costs and attorneys\u2019 fees necessarily incurred *** by the other spouse *** in connection with *** (3) [t]he defense of an appeal of any order or judgment under this Act.\u201d (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 40, par. 508(a)(3).) Section 508 permits an award of fees from a \u201cspouse.\u201d However, we are not persuaded, as argued by Herbert\u2019s guardian, that Herbert was not a party to the dissolution proceedings within the meaning of section 508. Herbert\u2019s original action, although brought by his guardian against Sue Anne, was for dissolution of his marriage to her and both Sue Anne and Herbert are admittedly each other\u2019s spouse. (Cf. e.g., In re Mac Harq (1983), 120 Ill. App. 3d 753, 458 N.E.2d 1154.) The circumstance that the attempted dissolution of marriage petition was unsuccessful because it was filed by Herbert\u2019s guardian does not, in our view, render the IMDMA inapplicable to Herbert. We hold that section 508 of the IMDMA permits Sue Anne to seek from Herbert, through his guardian, the reasonable attorney fees Sue Anne incurred to defend the appeals from the trial court\u2019s dismissal of the petition of Herbert\u2019s guardian to dissolve Herbert\u2019s marriage to Sue Anne.\nWe also conclude that Sue Anne\u2019s fee petition was timely filed. In a dissolution of marriage proceeding, the trial court retains ancillary jurisdiction under section 508 of the IMDMA to adjudicate attorney fee petitions during the pendency of an appeal. (See, e.g., In re Marriage of Giammerino (1981), 94 Ill. App. 3d 1058, 419 N.E.2d 598.) Therefore, the trial court did not lose jurisdiction 30 days after its dismissal of the petition, but retained jurisdiction to entertain Sue Anne\u2019s attorney fee petition while the appeal involving the dissolution action was pending before the Illinois Supreme Court.\nFor the reasons stated, the order of the circuit court is reversed and the cause remanded for further proceedings consistent with the views expressed herein.\nReversed and remanded.\nJIGANTI, P.J., and JOHNSON, J., concur.",
        "type": "majority",
        "author": "JUSTICE McMORROW"
      }
    ],
    "attorneys": [
      "Schiller, Du Canto & Fleck, Ltd., of Chicago (David B. Yavitz and Sarane C. Siewerth, of counsel), for appellant.",
      "Sandra G. Nye & Associates, of Chicago, for appellee."
    ],
    "corrections": "",
    "head_matter": "In re MARRIAGE OF HERBERT J. DREWS, JR., by his Guardian, Lorraine Drews, Petitioner-Appellee, and SUE ANNE CARROTHERS DREWS, Respondent-Appellant.\nFirst District (4th Division)\nNo. 87\u20142363\nOpinion filed January 19, 1989.\nSchiller, Du Canto & Fleck, Ltd., of Chicago (David B. Yavitz and Sarane C. Siewerth, of counsel), for appellant.\nSandra G. Nye & Associates, of Chicago, for appellee."
  },
  "file_name": "0110-01",
  "first_page_order": 132,
  "last_page_order": 134
}