In re Marriage of King

Case Date: 12/18/2002
Court: 1st District Appellate
Docket No: 1-02-0525 Rel

THIRD DIVISION
December 18, 2002


No. 1-02-0525


In re MARRIAGE OF
ALICE KING,
                                   Petitioner,
         and

SAMUEL KING,
                                   Respondent,

(Muller Law Firm,
                                   Plaintiff,
          v.

Samuel King,
                                   Defendant-Appellee,

(Kenneth Swiatek, James Finnegan and
Francisco Javier Iniguez,

          Levy Sale Purchasers-Appellants)).

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Appeal from the
Circuit Court
Cook County.











Honorable
James G. Donegan,
Judge Presiding



PRESIDING JUSTICE SOUTH delivered the opinion of the court:

In the underlying action, Alice King, who is not a party to this appeal, filed a petition fordissolution of marriage from her husband of 56 years, Samuel King (appellee). The Muller LawFirm filed an appearance on behalf of appellee in the dissolution proceedings. The Muller LawFirm subsequently filed a motion to withdraw from representing appellee, which was granted onJuly 31, 1998, and appellee proceeded pro se. The court also granted the Muller Law Firm leaveto file a petition for setting final fees.

On January 5, 1999, the trial court entered an order pertaining to the petition for attorneyfees which reads in pertinent part:

"Judgement is entered in favor of the Muller Firm, Ltd. and againstSamuel King in the amount of $4,380.00 including costs forreasonable and necessary attorney's fees in connection with thislitigation, with no just cause existing to delay appeal orenforcement hereof. Said sum shall be paid directly to the MullerFirm Ltd. from one of Mr. King's bank accounts currentlyrestrained***."

One month later, on February 5, 1999, a judgment for dissolution of marriage wasentered. The order allocated all of the marital property, with the marital residence going toappellee. With regard to attorney fees, the judgment read in pertinent part with the followingstricken words:

"8.2 The Court entered Judgment against Samuel King and in favor ofThe Muller Firm on January 5, 1999 in the amount of $4700.00$4,380.00. Said sum shall be paid out of the accounts listed inSection 2.2(a) out of, Samuel King's assets."

On February 9, 1999, the Muller Law Firm filed a citation to discover assets with severalof appellees banking institutions and recorded the trial court's order of January 5, 1999, with theCook County recorder of deeds so as to create a lien against appellee's home. On April 14, 2000,the Muller Law Firm presented to the Cook County sheriff a direction to levy appellee's propertyto be sold to satisfy the $4,350 judgment. A levy was issued on appellee's property bearing adate stamp of April 13, 1999. At the time the levy was issued, appellee's home had an appraisalvalue of $80,000.

On September 7, 2000, the sale of appellee's property was conducted. The Muller LawFirm placed a bid of $25,000. The second highest bid was made by Kenneth Swiatek for$23,300. Swiatek, James Finnegan and Francisco Javier Iniguez are the appellants in this case. Appellants' bid was ultimately accepted, a certificate of purchase was issued on September 15,2000, and an assignment of certificate of sale was issued to appellants on December 7, 2000. OnMarch 9, 2001, a deed was issued to appellants following the expiration of the redemptionperiod.

Appellee subsequently sought legal representation and Kimberly Anderson filed a petitionto vacate the sheriff's sale on behalf of appellee, which was denied on August 29, 2001. OnSeptember 19, 2001, the probate division appointed the Cook County public guardian astemporary guardian of appellee's estate and assets. On September 27, 2001, the public guardianappeared on appellee's behalf and filed a motion to reconsider the trial court's denial of appellee'spetition to vacate the sheriff's sale. In addition to arguing that appellee was mentally andphysically impaired, the public guardian also argued that the January 5 order required that the$4,380 judgment be satisfied from appellee's bank accounts instead of by means of placing a levyon his home; that the notice of levy was not posted in three public places pursuant to section 12-115 of the Code of Civil Procedure (Code) (735 ILCS 5/12-115 (West 2000)); that the report ofcommissioners was not signed under oath pursuant to sections 12-910 and 12-911 of the Code(735 ILCS 5/12-910, 12-911 (West 2000)); that the certificate of sale was not sold to the highestbidder; that the sale was never approved by the court pursuant to sections 12-144.5 and 12-145 ofthe Code (735 ILCS 5/12-144.5, 12-145 (West 2000)); that the levy reflects inconsistent dates;and finally, that there are two inconsistent receipts of sale, which are unsigned and undated anddo not include a bid amount or the resulting surplus to which appellee is entitled.

After a hearing on appellee's motion to reconsider was held, the trial court entered anorder granting appellee's motion on November 19, 2001. Appellants filed a motion to reconsiderthe trial court's order, which was denied on January 23, 2002. In their notice of appeal,appellants request the reversal of the trial court's November 19 order granting the publicguardian's motion to reconsider, and the court's order of January 23, 2002, denying appellants'motion to reconsider the trial court's order of November 19.

Appellants raise two issues on appeal: (1) whether the portion of the trial court's January5, 1999, judgment order granting attorney fees to the Muller Law Firm, which purports to limitenforcement of the judgment for attorney fees to certain bank accounts of appellee, is valid ormerely surplusage; and (2) whether a hearing pursuant to section 12-144.5 of the Code (735ILCS 5/12-144.5 (West 2000)), requiring a judicial confirmation of a sale, where no hearing wasrequired under the prior provisions, applies to a sale held prior to the effective date of the statutewhere the redemption period ended after the statute became effective. A notice of appeal confersjurisdiction on an appellate court to consider only the judgments or parts thereof specified in thenotice of appeal. Mimica v. Area Interstate Trucking, Inc., 250 Ill. App. 3d 423, 425, 620 N.E.2d1328 (1993). A notice of appeal is to be liberally construed and an appeal from a subsequentfinal judgment will draw into question all prior nonfinal rulings and final but nonappealableorders that produced the judgment. First National Bank of Elgin v. St. Charles National Bank,152 Ill. App. 3d 923, 930, 504 N.E.2d 1257 (1987). "A notice of appeal need not designate aparticular order to confer jurisdiction, as long as the order which is specified directly relates backto the judgment or order from which review is sought." Taylor v. Peoples Gas Light & Coke Co.,275 Ill. App. 3d 655, 659, 656 N.E.2d 134 (1995). "An unspecified judgment is reviewable if itis a 'step in the procedural progression leading to the judgment specified in the notice of appeal.'" Taylor, 275 Ill. App. 3d at 659, quoting Burtell v. First Charter Service Corp., 76 Ill. 2d 427,435, 394 N.E.2d 380 (1979).

In its notice of appeal, appellants appeal the order of November 19, 2001, grantingappellee's motion to reconsider. Therefore, we will address appellants' issues on appeal in thecontext of the trial court's grant of appellee's motion to reconsider.

Furthermore, we reject appellee's contention that this case is moot as there is a definitecontroversy between the various parties. See First National Bank of Waukegan v. Kusper, 98 Ill.2d 226, 233-34, 456 N.E.2d 7 (1983) (holding that, under Illinois law, a matter is consideredmoot when no controversy remains or the issues involved cease to exist, thereby rendering itimpossible for the court to grant effective relief to the complaining party).

A motion to reconsider may be brought pursuant to section 2-1203 or 2-1401 of the Code. 735 ILCS 5/2-1203 (West 1998); 735 ILCS 5/2-1401 (West 2000). The purpose of amotion to vacate under section 2-1203 is to alert the trial court to errors it has made and to affordan opportunity for their correction. In re Marriage of Sanborn, 78 Ill. App. 3d 146, 396 N.E.2d1192 (1979). Whether to grant or deny a motion to reconsider is within the sound discretion ofthe trial court. In re Marriage of Potter, 88 Ill. App. 3d 606, 609-10, 410 N.E.2d 999 (1980). Whether a trial court has abused its discretion turns on whether the court's refusal to vacate" 'violates the moving party's right to fundamental justice and manifests an improper applicationof discretion.' " Harris v. Harris, 45 Ill. App. 3d 820, 821, 360 N.E.2d 113 (1977), quotingAnderson v. Anderson, 28 Ill. App. 3d 1029, 1034 (1975).

The first issue we consider is whether the language in the January 5, 1999, judgmentorder granting attorney fees to the Muller Law Firm, which limits enforcement of the judgmentfor attorney fees to certain bank accounts of appellee, is valid. Appellants argue that the portionof the trial court's order limiting the award of attorney fees to appellee bank accounts issurplusage and of no effect. They argue that although the trial court has the authority anddiscretion to award attorney fees, once those fees are awarded, the trial court lacks the authorityto limit how an attorney is entitled to enforce the judgment to obtain those fees.

The trial court's order of January 5 states in pertinent part:

"Judgement is entered in favor of the Muller Firm, Ltd. and againstSamuel King in the amount of $4,380.00 including costs forreasonable and necessary attorney's fees in connection with thislitigation, with no just cause existing to delay appeal orenforcement hereof. Said sum shall be paid directly to the MullerFirm Ltd. from one of Mr. King's bank accounts currentlyrestrained***." (Emphasis added.)

In response, appellee asserts that the trial court's January 5 order was no longer inexistence but was superseded by the trial court's subsequent judgment for dissolution of marriageentered by the trial court on February 5, and the question of whether the limiting language in theorder of January 5 is surplusage is irrelevant.

In its reply brief on appeal, appellants argue that the trial court's order of January 5 was not superseded by the February 5 order because the January 5 order was a final judgment that wasindependent of the February 5 order.

We agree with appellee's position that the final judgment for dissolution of marriageentered on February 5 was the final appealable order.

Cases involving dissolution of marriage proceedings are inherently more problematicupon appellate review due to the large number of separate issues that are determined in a singleproceeding because all of these issues are not decided at the same time. Therefore, a trial court'sinclusion of Rule 304(a) (134 Ill. 2d R. 304(a)) language in an order entered prior to the entry ofthe judgment for dissolution does not automatically render that order final andappealable.

The request for attorney fees in a dissolution action that has not yet been resolved is notan independent action and must be considered to be part of the overall divorce proceeding. SeeIn re Marriage of Zannis, 114 Ill. App. 3d 1034, 449 N.E.2d 892 (1983).

In In re Marriage of Leopando, 96 Ill. 2d 114, 449 N.E.2d 137 (1983), the IllinoisSupreme Court considered the applicability of Rule 304(a) in dissolution proceedings. There, inruling that a custody order was not a separate claim within the meaning of the rule, the IllinoisSupreme Court specifically stated that "[a] petition for dissolution advances a single claim; thatis, a request for an order dissolving the parties' marriage. The numerous other issues involved*** are merely questions which are ancillary to the cause of action." (Emphasis added andomitted.) Leopando, 96 Ill. 2d at 119. Therefore, the supreme court concluded that until all ofthe ancillary issues are resolved, the petition for dissolution is not fully adjudicated.

In In re Marriage of Derning, 117 Ill. App. 3d 620, 453 N.E.2d 90 (1983), the appellatecourt, relying on Leopando, held that an order of dissolution reserving the allocation of attorneyfees was not a final and appealable order. The court stated that, like a custody order, an attorneyfees judgment in a dissolution of marriage case is not a separate claim but is integral to the orderdissolving the parties' marriage. Derning, 117 Ill. App. 3d at 627. The court noted that theparties' liability for attorney fees is similar to their liability for debts incurred during themarriage, in that both must be allocated to the parties before a reviewing court can determinewhether the trial court's decision concerning property and maintenance comports with thestatutory requirements. Derning, 117 Ill. App. 3d at 627-28.

In Zannis, the appellate court took an appeal from two orders of the trial court denying apetition for attorney fees which was entered before the judgment for dissolution of marriage. Zannis, 114 Ill. App. 3d 1034, 449 N.E.2d 892. The court noted that pursuant to Leopando,which was decided after the case was filed, "[d]issolution of marriage cases present manyquestions and issues" to which "[a]ttorney fees are purely collateral." Zannis, 114 Ill. App. 3d at1037.

Allowing the review of the issue of attorney fees the court stated:

"Case law at the time this appeal was taken allowed for areview of an award for temporary attorney fees before the entiredissolution was decided when, as here, the trial court expresslystated that there was 'no just reason for delaying enforcement orappeal.' " 114 Ill. App. 3d at 1037.

Based upon the established precedent, we hold that the trial court's order of January 5 wasnot an independent order, distinct from the final judgment for dissolution entered on February 5.

We do realize that as recently as 1997, the legislature amended sections of the IllinoisMarriage and Dissolution of Marriage Act (Act) (750 ILCS 5/508 (West 1998)) pertaining tocontributions for attorney fees and petitions for approval of final fees requiring that they beconsidered in separate and distinct proceedings. However, in In re Marriage of McGuire, 305Ill. App. 3d 474, 477, 712 N.E.2d 411 (1999), we noted that one purpose of this legislation wasto reduce the potential for conflicts of interest between attorneys and their clients and forinfringement upon the attorney-client privilege in cases where attorney fees became an issue. McGuire, 305 Ill. App. 3d at 477. The court reasoned that any amendments to section 508(a) ofthe Act did not constitute substantive changes but altered the procedures by which issuesregarding attorney fees are presented and heard in dissolution cases. McGuire, 305 Ill. App. 3dat 478.

Relying on McGuire, the court in Marriage of Suriano, 324 Ill. App. 3d 839, 847, 756N.E.2d 382 (2001), stated that section 508(c) becomes pertinent in a final determination onlyafter a judgment for dissolution of marriage awards contribution for attorney fees to thepetitioning party.

Appellants' argument that the trial court's ability to subsequently revoke or change a feeaward in dissolution proceedings is an impairment of property rights is contrary to the legislativeintent behind the act allowing the trial court broad discretion under the act prior to the entry of afinal judgment for dissolution of marriage.

Our holding in In re Marriage of Tetzlaff, 304 Ill. App. 3d 1030, 711 N.E.2d 346 (1999),is instructive. In Tetzlaff, the court entered an order awarding the wife's counsel interim attorneyfees prior to the final judgment for dissolution was entered. Tetzlaff, 304 Ill. App. 3d at 1031. The court subsequently entered an order requiring the withdrawing attorneys to place $35,000 ofthe $65,000 award into an escrow account for successor attorneys. The withdrawing attorneysfiled an interlocutory appeal. Tetzlaff, 304 Ill. App. 3d at 1031.

Relying on Leopando, the Tetzlaff court held that the trial court's order was not subject toan interlocutory appeal because "the Act discourages piecemeal appeals in the absence of somecompelling reason." Tetzlaff, 304 Ill. App. 3d at 1039.

In this case, the order entered by the trial court on January 5 was interlocutory in natureand was not final nor appealable until the judgment for dissolution of marriage between theparties was entered. To conclude that the January 5 order was independent of the entiredissolution proceeding is contrary to legislative intent and well-established case law.

Interestingly enough, although the court instructed the Muller Firm to facilitate paymentof the attorney fees within 14 days from that order, the firm did not take any action to collectthose fees until February 9, four days after the judgment for dissolution was entered. The portionof the judgment for dissolution of marriage relating to attorney fees states in pertinent part:

"8.2 The Court entered Judgment against Samuel King and infavor of The Muller Firm on January 5, 1999 in the amountof $4700.00 $4,380.00. Said sum shall be paid out of theaccounts listed in Section 2.2(a) out of, Samuel King'sassets."

The trial court made specific reference to the January 5 order and incorporated that order into thisfinal order. Based upon the foregoing, we find that the February 5 order was the final andappealable order and supersedes any other orders entered by the trial court.

We must note that appellee makes a contradictory argument that upon review we shouldrely on the portion of the court's order that requires payment of the attorney fees only fromcertain delineated bank accounts. We hold that to the extent that the language in the judgmentfor dissolution of marriage order controls the award of attorney fees itself, that order specificallyauthorizes payment of fees from any of "Samuel King's assets." (Emphasis added.) In fact, thelanguage in the February order that would have restricted payments to certain accounts - "Saidsum shall be paid out of the accounts listed in Section 2.2(a)" - was stricken. We can onlyconclude that the court intended to enter a final order allowing the payment of the attorney feesfrom any asset appellee possessed, including the marital home.

The second issue on appeal is whether section 144.5 of the Code, effective January 1,2001, which requires a hearing to confirm the sale, applies to the sale of appellee's property.

We find it unnecessary to address this issue. Upon review of the record, appellee'smotion to reconsider was based upon eight irregularities involving the sale of this property. Asappellee maintains, it is true that while appellants appealed from the trial court's order grantingappellee's motion to reconsider based upon all of these irregularities, appellants only address twoof these irregularities in their appellate brief. However, we decline to apply the doctrine ofwaiver in this case.

Normally, issues raised in the notice of appeal but not raised or argued before theappellate court are deemed waived. Kincaid v. Ames Department Stores, Inc., 283 Ill. App. 3d555, 570, 670 N.E.2d 1103 (1996). However, this court has interpreted the rule of waiver as anadmonition to the parties and not a limitation on the jurisdiction of reviewing courts. In reC.R.H., 163 Ill. 2d 263, 274, 644 N.E.2d 1153 (1994); Hux v. Raben, 38 Ill. 2d 223, 224-25, 230N.E.2d 831 (1967); see Dineen v. City of Chicago, 125 Ill. 2d 248, 265-66, 531 N.E.2d 347(1988). In this regard, the supreme court has stated that a reviewing court may, in furtherance ofits responsibility to provide a just result, override considerations of waiver. Welch v. Johnson,147 Ill. 2d 40, 48, 588 N.E.2d 1119 (1992); In re Marriage of Sutton, 136 Ill. 2d 441, 446, 557N.E.2d 869 (1990); Hux, 38 Ill. 2d at 225, 230 N.E.2d 831. This interpretation is supported bySupreme Court Rule 366(a)(5), which deals with the powers of a reviewing court and the scopeof review. 134 Ill. 2d R. 366(a)(5). Rule 366(a)(5) provides that a reviewing court has theauthority to "enter any judgment and make any order that ought to have been given or made, andmake any other and further orders and grant any relief *** that the case may require." 134 Ill. 2dR. 366(a)(5).

The Illinois Supreme Court has also stated that "judgment may be sustained upon anyground warranted, regardless of whether it was relied on by the trial court and regardless ofwhether the reason given by the trial court was correct." Material Service Corp. v. Department ofRevenue, 98 Ill. 2d 382, 387, 457 N.E.2d 9 (1983); see also Estate of Johnson v. CondellMemorial Hospital, 119 Ill. 2d 496, 502, 520 N.E.2d 37 (1988). We find it necessary to do so inthis case.

Although the trial court granted appellee's motion to reconsider based upon all of theirregularities involved in the sheriff's sale, it primarily based its ruling upon the fact that "anofficer of the court prepared a memorandum of judgment that said he had a certain judgmentagainst a party that he didn't have."

The record in this case indicates that the lien against appellee's property was recordedbased upon the trial court's January 5 order. Section 12-101 requires that the lien be recordedwith the final judgment. As previously discussed, the January 5 order was not final andappealable but was merely interlocutory in nature. The final judgment was the order of judgmentfor dissolution entered on February 5. If the order upon which appellants sought to create a lienwas not a final judgment and essentially merged into the final judgment, a valid lien was nevercreated. See Armstrong v. Obucino, 300 Ill. 140, 133 N.E. 58 (1921) (where a court, afteracquiring jurisdiction, has assumed to enter a decree for a sale which goes beyond the limits ofthe jurisdiction and transgresses the law, the decree is void, and the sale based thereon is likewisean absolute nullity); City of Chicago v. Central National Bank, 134 Ill. App. 3d 22, 479 N.E.2d1040 (1985) (where the judgment is void, a judicial sale held pursuant to that judgment is alsovoid).

Based upon the foregoing analysis, the judgment of the circuit court is affirmed.

Affirmed.

HOFFMAN and WOLFSON, JJ., concur.