{ "id": 5536700, "name": "In re MARRIAGE OF JOSIE L. WRIGHT, Petitioner-Appellee, and LESTER L. WRIGHT, Respondent-Appellant", "name_abbreviation": "In re Marriage of Wright", "decision_date": "1980-12-30", "docket_number": "Nos. 79-409, 79-1600 cons.", "first_page": "708", "last_page": "714", "citations": [ { "type": "official", "cite": "92 Ill. App. 3d 708" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "65 Ill. App. 3d 1018", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3326586 ], "pin_cites": [ { "page": "1021" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/65/1018-01" ] }, { "cite": "388 N.E.2d 123", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "70 Ill. App. 3d 378", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5576913 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/70/0378-01" ] }, { "cite": "382 N.E.2d 1279", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "65 Ill. App. 3d 945", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3328247 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ill-app-3d/65/0945-01" ] }, { "cite": "414 N.E.2d 1188", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "91 Ill. App. 3d 607", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3147121 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/ill-app-3d/91/0607-01" ] }, { "cite": "77 Ill. App. 448", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5224069 ], "pin_cites": [ { "page": "452" } ], "opinion_index": 0, "case_paths": [ "/ill-app/77/0448-01" ] }, { "cite": "1976 Ill. Laws 788", "category": "laws:leg_session", "reporter": "Ill. Laws", "opinion_index": 0 }, { "cite": "66 Ill. B.J. 568", "category": "journals:journal", "reporter": "Ill. B.J.", "year": 1978, "pin_cites": [ { "page": "572-74" } ], "opinion_index": 0 }, { "cite": "371 N.E.2d 1254", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "56 Ill. App. 3d 446", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3411822 ], "year": 1978, "pin_cites": [ { "page": "449" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/56/0446-01" ] }, { "cite": "360 N.E.2d 386", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "45 Ill. App. 3d 849", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2892162 ], "pin_cites": [ { "page": "859" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/45/0849-01" ] }, { "cite": "393 N.E.2d 67", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "74 Ill. App. 3d 451", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3271678 ], "pin_cites": [ { "page": "455" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/74/0451-01" ] }, { "cite": "406 N.E.2d 79", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "84 Ill. App. 3d 672", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3204734 ], "pin_cites": [ { "page": "676" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/84/0672-01" ] }, { "cite": "299 N.E.2d 413", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "12 Ill. App. 3d 467", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2854370 ], "pin_cites": [ { "page": "473" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/12/0467-01" ] }, { "cite": "279 Ill. App. 462", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3355665 ], "pin_cites": [ { "page": "466" } ], "opinion_index": 0, "case_paths": [ "/ill-app/279/0462-01" ] }, { "cite": "62 N.E.2d 545", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "391 Ill. 101", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2512187 ], "pin_cites": [ { "page": "110" } ], "opinion_index": 0, "case_paths": [ "/ill/391/0101-01" ] }, { "cite": "331 N.E.2d 190", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "29 Ill. App. 3d 746", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2496434 ], "pin_cites": [ { "page": "749" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/29/0746-01" ] }, { "cite": "410 N.E.2d 79", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "86 Ill. App. 3d 964", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3188395 ], "year": 1975, "pin_cites": [ { "page": "972" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/86/0964-01" ] } ], "analysis": { "cardinality": 752, "char_count": 15942, "ocr_confidence": 0.901, "pagerank": { "raw": 5.191358215025866e-07, "percentile": 0.9401739251979555 }, "sha256": "77e6bb3e7626fceb7a6efd82363c257b5d2da33a0be5773326ce164515246673", "simhash": "1:aabda6b67241c571", "word_count": 2579 }, "last_updated": "2023-07-14T15:16:53.928123+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re MARRIAGE OF JOSIE L. WRIGHT, Petitioner-Appellee, and LESTER L. WRIGHT, Respondent-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE STAMOS\ndelivered the opinion of the court:\nThis case consolidates two appeals presently before the court. In No. 79-409, respondent Lester Wright appeals from the trial court\u2019s order dismissing petitioner Josie Wright\u2019s petition for dissolution of marriage. Josie Wright obtained the voluntary dismissal pursuant to section 52(1) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 52(1)). Respondent contends that the trial court abused its discretion in granting the dismissal. In No. 79-1600, respondent appeals from an order of the trial court requiring him to pay petitioner\u2019s attorney $10,000 as attorney\u2019s fees for defending appeal No. 79-409.\nOn November 21,1977, Josie Wright filed a petition for dissolution of marriage. Petitioner filed an amended petition on August 22,1978, which respondent answered on August 23, 1978. A trial date was set for August 24, 1978; petitioner requested and received a continuance to October 5, 1978. On September 5, petitioner filed a motion for voluntary dismissal under section 52(1) of the Civil Practice Act. Two days later, on September 7, respondent filed a counterclaim for dissolution of marriage. On November 9,1978, the trial judge, finding that he had no discretion to deny petitioner\u2019s motion for dismissal, granted the motion, and also dismissed respondent\u2019s counterclaim. On December 7, 1978, petitioner filed a new action in the circuit court, requesting a legal separation. On September 16,1980, petitioner amended her petition for legal separation, asking for dissolution of marriage on grounds of desertion. Respondent did not contest this action, and the trial court entered an order of dissolution on the same day. Respondent has appealed only the dismissals of petitioner\u2019s first action and his counterclaim in that action.\nOn February 1, 1979, Josie Wright filed a petition in the trial court, seeking an award of attorney\u2019s fees to defend the appeal. The trial court took some evidence on petitioner\u2019s financial situation, and entered an order granting the petition, setting attorney\u2019s fees at $10,000. Respondent has appealed this award.\nI\nRespondent\u2019s first contention is that the trial court abused its discretion in granting the voluntary dismissal. Respondent argues that petitioner\u2019s right to voluntarily dismiss her action must be tempered by regard for the efforts and expenses borne by respondent in answering the suit, and that considerations of judicial economy may outweigh a plaintiff\u2019s right to dismiss. If we find, however, that petitioner had an absolute right to dismiss her action at that stage of the proceedings, then respondent\u2019s claims of prejudice must be unavailing.\nAlthough section 52(1) does not speak in terms of an \u201cabsolute right\u201d to dismiss, the issue may not be seriously disputed. Section 52(1) provides:\n\u201cThe plaintiff may, at any time before trial or hearing begins, upon notice to each party who has appeared or his attorney, and upon payment of costs, dismiss his action or any part thereof as to any defendant, without prejudice, by order filed in the cause. Thereafter he may dismiss, only on terms fixed by the court (a) upon filing a stipulation to that effect signed by the defendant, or (b) on motion specifying the ground for dismissal, which shall be supported by affidavit or other proof. After a counterclaim has been pleaded by a defendant no dismissal may be had as to him except by his consent.\u201d (Ill. Rev. Stat. 1979, ch. 110, par. 52(1).)\nNumerous cases have referred to the plaintiff\u2019s \u201cabsolute right\u201d to dismiss his action. (E.g., In re Marriage of Brown (1980), 86 Ill. App. 3d 964, 972, 410 N.E.2d 79; City of Palos Heights v. Village of Worth (1975), 29 Ill. App. 3d 746, 749, 331 N.E.2d 190.) The qualifications to plaintiff\u2019s right of voluntary dismissal are set forth unambiguously in the statute: the motion must be made before trial or hearing begins, and before a counterclaim is filed, and plaintiff must pay costs. The reference in section 52(1) to dismissal \u201cwithout prejudice\u201d does not refer to prejudice to the rights of the defendant. The phrase \u201cwithout prejudice\u201d is an ancient one, and signifies only that the dismissal has been taken with no decision on the merits of the case, and therefore without prejudice to refiling. See People ex rel. Waite v. Bristow (1945), 391 Ill. 101,110, 62 N.E.2d 545.\nRespondent herein claims that the \u201ctrial or hearing\u201d began when petitioner took an evidence deposition of her ailing mother\u2019s testimony. While courts in this State have varied in the interpretations of when a trial or hearing begins (see Comment, The Vanishing Right of a Plaintiff to Voluntarily Dismiss His Action, 9 J. Mar. Prac. & Proc. 853, 866 (1976)), there is no authority whatever for the proposition that \u201ctrial or hearing\u201d begins with the taking of an evidence deposition. Respondent does not principally rely on the claim that petitioner waived her absolute right to dismiss by taking the deposition; he argues in the main that \u201cfairness\u201d to respondent must be factored in, since section 52 v/as enacted to remedy an unfair advantage given plaintiffs by section 52\u2019s predecessor statute. Respondent is correct in stating that section 52 was enacted to correct abuses possible under the former statute (see Chicago Title & Trust Co. v. County of Cook (1935), 279 Ill. App. 462, 466), but respondent misunderstands the extent of the correction made. Section 70 of the former Civil Practice Act gave the plaintiff an absolute right of dismissal (called nonsuit) any time before the jury retired, or, in a bench trial, before the case was submitted for decision. (Ill. Rev. Stat. 1931, ch. 110, par. 70.) This allowed a plaintiff who feared an unfavorable result to end the proceedings and begin anew (subject to the statute of limitations). Section 52, as originally drafted, permitted plaintiff to dismiss his action as of right no later than the time of defendant\u2019s answer or motion attacking the complaint. (See Comment, The Vanishing Right of a Plaintiff to Voluntarily Dismiss His Action, at 855 n.8.) This version was approved by the Illinois Senate, but the House amended the section to require that the motion be made \u201cbefore trial or hearing begins.\u201d (Ill. H. Jour., 58th Gen. Assembly, 1933 Session, at 1010; see generally, Comment, The Vanishing Right of a Plaintiff to Voluntarily Dismiss His Action, at 854-56.) The present wording of the statute, then, is an apparent compromise between two extremes: the view that a plaintiff has an unfettered ability to dismiss his case, and the view that the inconvenience and expense suffered by a defendant can thwart a plaintiffs right of dismissal.\nRespondent also argues that petitioner should be estopped from asserting her right to dismiss the action, as respondent relied on petitioner\u2019s attorney\u2019s representation that the matter would go to trial, and consequently refrained from filing a counterclaim. In order to support a claim of equitable estoppel, respondent must show that he in good faith relied on the conduct of petitioner, and was led thereby to change his position for the worse. (Slavis v. Slavis (1973), 12 Ill. App. 3d 467, 473, 299 N.E.2d 413.) Respondent\u2019s claim of detrimental reliance cannot be sustained, since he could have filed his own petition for dissolution of marriage. The only detriment suffered by respondent was the inconvenience of defending an allegedly vexatious lawsuit. Since the Civil Practice Act apparently favors the petitioner\u2019s rights over those of the respondent in this instance, it is inappropriate to invoke equitable estoppel to achieve a contrary result, especially where respondent\u2019s \u201cdetriment\u201d is so unconvincing.\nRespondent\u2019s final contention in appeal No. 79-409 is that the trial court abused its discretion in striking respondent\u2019s belated counterclaim. Respondent filed a praecipe for dissolution of marriage on September 12, 1978, so the dismissal of respondent\u2019s counterclaim of September 7 did not impair respondent\u2019s exercise of his legal rights. The counterclaim was filed two days after petitioner\u2019s motion for voluntary dismissal. If this court were to allow a belated counterclaim to frustrate petitioner\u2019s right to dismiss her action, defendant would have a \u201cde facto\u201d veto power over plaintiff\u2019s statutory right of voluntary dismissal. The trial court perceived this potential incongruity, and properly dismissed respondent\u2019s counterclaim.\nII\nIn appealing the award of attorney\u2019s fees, respondent maintains that the trial court had no jurisdiction to make the award, as the jurisdiction of the appellate court had already attached. Normally, after the trial court has dismissed an action, it has no jurisdiction to award attorney\u2019s fees relative to the action. (In re Marriage of Erby (1980), 84 Ill. App. 3d 672, 676, 406 N.E.2d 79.) If there is any exception to this general jurisdictional rule, it must be specifically provided for by statute. Section 508(a) of the Marriage and Dissolution Act provides:\n\u201cThe court from time to time, after due notice and hearing, and after considering the financial resources of the parties, may order either spouse to pay a reasonable amount for his own costs and attorney\u2019s fees and for the costs and attorney\u2019s fees necessarily incurred by the other spouse, which award shall be made in connection with the following: * * * (3) The defense of an appeal of any order or judgment under this Act, including the defense of appeals of post-judgment orders.\u201d (Ill. Rev. Stat. 1979, ch. 40, par. 508(a).)\nWhile the statute does allow for an award of attorney\u2019s fees made in connection with the defense of an appeal, the statute has no specific provision to negate the general rule that the filing of a notice of appeal deprives the trial court of further jurisdiction. (Cf. Sherman v. Sherman (1979), 74 Ill. App. 3d 451, 455, 393 N.E.2d 67 (absent explicit statutory grant of authority, trial court has no jurisdiction to grant maintenance pending appeal after appeal has been filed).) The applicable principles are aptly summarized in the Historical and Practice Notes to section 508.\n\u201cThis subsection does not authorize awards of attorney\u2019s fees and costs in the trial court while an appeal is pending. Such awards could be made under the prior Divorce Act which expressly authorized such a procedure \u00b0 \u00b0. In the absence of such explicit statutory authority, the trial court lacks jurisdiction to award fees to defend an appeal after the jurisdiction of the appellate court has attached.\u201d Ill. Ann. Stat., ch. 40, par. 508, Historical and Practice Notes, at 639 (Smith-Hurd 1980).\nIt is important in this connection to distinguish between the trial court\u2019s general power to award attorney\u2019s fees, and the court\u2019s specific authority to make such an award after appellate jurisdiction has attached. The power to award attorney\u2019s fees may derive from a statutory provision (e.g., section 508(a) of the Marriage and Dissolution Act) or from the plenary equitable powers of the trial court. (See Zalduendo v. Zalduendo (1977) , 45 Ill. App. 3d 849, 859, 360 N.E.2d 386.) Whatever the source, the power must ordinarily be exercised while the trial court retains general jurisdiction over the cause. (See Zalduendo, at 859; see also Fox v. Fox (1978) , 56 Ill. App. 3d 446, 449, 371 N.E.2d 1254; see generally Dienstag, Attorney Fees for Services Rendered in the Prosecution or Defense of Appeals from Post-Decree Divorce Proceedings, 66 Ill. B.J. 568, 572-74 (1978).) The prior divorce act contained a specific provision authorizing the trial court to award attorney\u2019s fees \u201cduring the pendency of the appeal.\u201d (Ill. Rev. Stat. 1975, ch. 40, par. 15.) This provision was repealed in 1976 (1976 Ill. Laws 788), and we find no language of corresponding specificity in section 508(a) of the new act. Section 508(a) states that the court has authority \u201cfrom time to time\u201d to make fee awards, but we attribute no jurisdictional significance to this phrase. Since section 508(a) comprehends fees for prefiling and post-decree activities, the phrase only refers to the recurring need for such orders. Cf. County Board v. Short (1898), 77 Ill. App. 448, 452 (\u201cfrom time to time\u201d does not mean \u201cat any time\u201d or \u201cat all times,\u201d and must be read in context).\nWe acknowledge that some decisions in this State, and even some opinions of this court, have affirmed orders for payment of attorney\u2019s fees entered after the filing of an appeal. (See, e.g., In re Marriage of De Frates (1980), 91 Ill. App. 3d 607, 414 N.E.2d 1188; In re Sharp (1978), 65 Ill. App. 3d 945, 382 N.E.2d 1279; Gauger v. Gauger (1979), 70 Ill. App. 3d 378, 388 N.E.2d 123.) In some of these cases, the jurisdictional problem was neither raised by the parties nor considered by the court. (E.g., De Frates.) In other cases, the decision of the appellate court was based primarily on other grounds. (E.g., Gauger, at 384 (appellant held to have waived appeal as to attorney\u2019s fees).) In any event, the position we adopt herein is clear: section 508(a) authorizes awards of attorney\u2019s fees for appeals, but does not empower the trial court to make such awards after appellate jurisdiction has attached.\nThis is not to say that petitioner herein must be foreclosed from any application for attorney\u2019s fees for the defense of appeal No. 79-409. The trial court should have an opportunity to reconsider both the granting and the amount of the award.\n\u201c[Prospective awards of attorney\u2019s fees made during the pendency of an appeal [are], in practice, necessarily speculative and therefore difficult to determine or to review on appeal. * * * Instead, an appropriate remedy is to petition the trial court for an allowance of attorney\u2019s fees and costs at the conclusion of the appeal, when the determination of those expenses can accurately be made.\u201d (Ill. Ann. Stat., ch. 40, par. 508, Historical and Practice Notes, at 640 (Smith-Hurd 1980).)\nThe logic of this procedure seems unassailable, especially in light of the fact that the amount requested by petitioner\u2019s attorney (first $20,000, then reduced to $10,000) has never been justified by any reference to the extent of services performed or their reasonable value. Petitioner\u2019s attorney has stated that he does not bill an hourly rate for appeals, and that $10,000 is a \u201creasonable\u201d fee, but the trial court is not bound by an attorney\u2019s opinion as to what constitutes a reasonable fee, and should inquire into a number of factors in setting attorney\u2019s fees, including the time and labor required. See Tippet v. Tippet (1978), 65 Ill. App. 3d 1018, 1021, 383 M.E.2d 13.\nIn consideration of the foregoing, the trial court\u2019s decision in No. 79-409 is affirmed, and the trial court\u2019s order in No. 79-1600 is vacated and the cause remanded for a new hearing on the question of attorney\u2019s fees.\nAffirmed in part, vacated in part, and remanded with directions.\nPERLIN and HARTMAN, JJ\u201e concur.\nPetitioner has sought a dismissal of appeal No. 79-409, contending that the order of dissolution of marriage entered on September 16, 1980, has rendered the appeal moot. Respondent argues that other matters between the parties remain unresolved. While respondent has failed to indicate precisely what matters remain in controversy, we have elected to consider the merits of the appeal.\nPetitioner\u2019s attorney first requested $20,000 as his fee for defending the appeal. After the court\u2019s authority to make a prospective fee award was questioned by respondent, petitioner\u2019s attorney modified his request, seeking only a temporary fee of $10,000.", "type": "majority", "author": "Mr. JUSTICE STAMOS" } ], "attorneys": [ "Bentley, DuCanto & Doss, Ltd., of Chicago, for appellant.", "Burke, Weber & Egan, of Chicago (Edward J. Egan, of counsel), for appellee." ], "corrections": "", "head_matter": "In re MARRIAGE OF JOSIE L. WRIGHT, Petitioner-Appellee, and LESTER L. WRIGHT, Respondent-Appellant.\nFirst District (2nd Division)\nNos. 79-409, 79-1600 cons.\nOpinion filed December 30, 1980.\n\u2014 Modifiedon denial of rehearing February 10, 1981.\nBentley, DuCanto & Doss, Ltd., of Chicago, for appellant.\nBurke, Weber & Egan, of Chicago (Edward J. Egan, of counsel), for appellee." }, "file_name": "0708-01", "first_page_order": 730, "last_page_order": 736 }