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THIRD DIVISION

September 30, 1998

No. 1-97-2937

PRESIDING JUSTICE CAHILL delivered the opinion of the court:

We are asked to deviate from the holding in Watson v. Watson,335 Ill. App. 637, 82 N.E.2d 671 (1948), that an attorney may notfile a petition for attorney fees in a divorce action after thecase has been voluntarily dismissed, even though the petition isfiled within 30 days of the dismissal. The trial court followedWatson and refused to entertain the petition. We affirm.

Wayne Lucht filed a petition for dissolution of marriage onAugust 9, 1996. Six days before the scheduled trial date, June 2,1997, he moved for voluntary dismissal. The trial court grantedthe petition. Respondent Errolyn Joyce Lucht then moved for leaveto file a petition for attorney fees. The motion was denied. OnJune 23, 1997, respondent moved to vacate the order denying herpetition for attorney fees. The trial court denied the motion, andit is from that order the respondent filed this timely appeal underSupreme Court Rule 303 (155 Ill. 2d R. 303(a)(1)).

Respondent argues on appeal that she should have been allowedto file a petition for attorney fees even though the dissolutionproceedings were voluntarily dismissed. She relies on Nottage v.Jeka, 274 Ill. App. 3d 235, 653 N.E.2d 803 (1995), rev'd, 172 Ill.2d 386, 667 N.E.2d 91 (1996) (Nottage I). In Nottage I, theplaintiff successfully sued the defendant for breach of contract torecover attorney fees from a former client in a domestic relationscase. The defendant appealed, arguing that section 508(a) of theIllinois Marriage and Dissolution of Marriage Act (750 ILCS5/508(a) (West 1996)) (the Act) was the exclusive remedy availableto recover attorney fees under the Act. The appellate courtagreed. After holding that section 508(a) was the attorney'sexclusive avenue for seeking attorney fees, the court elaborated onthe availability of section 508(a) petitions even after thedismissal of dissolution proceedings. The court departed fromWatson v. Watson, 335 Ill. App. 637, 82 N.E.2d 671 (1948), and Inre Marriage of Erby, 84 Ill. App. 3d 672, 406 N.E.2d 79 (1980),where we held that a trial court may not consider a petition forattorney fees after a divorce case has been voluntarily dismissed. See also In re Marriage of Birt, 159 Ill. App. 3d 281, 284, 512N.E.2d 390 (1987); In re Marriage of Reczek, 95 Ill. App. 3d 220,420 N.E.2d 161 (1981) (where Watson was followed). In Watson, weexplained that "[p]ublic policy forbids that parties to a divorcesuit should be kept in a state of hostile litigation" after thedivorce has been dismissed. Watson, 335 Ill. App. at 641.

In rejecting Watson and Erby, the Nottage I court reasoned:

"It is unassailable that where a trial court hassubject matter jurisdiction of a case and personaljurisdiction over the parties and their attorneys, itretains that jurisdiction until 30 days have expired fromthe time of a dismissal. [Citations]. As an irrefutablecorollary, so long as a section 508 petition is filedwhile an underlying action is pending or within 30 daysfrom a dismissal of the underlying action, the trialcourt has jurisdiction to hear, decide and rule on thesection 508 petition. Cf. In re Marriage of Dague(1985), 136 Ill. App. 3d 297, 300, 483 N.E.2d 322; In reMarriage of Conway, (1986), 139 Ill. App. 3d 1062, 1065-66, 487 N.E.2d 1240." Nottage, 274 Ill. App. 3d at 242.

Our supreme court reversed Nottage I, not because of theanalysis of subject matter jurisdiction, but because it held thatsection 508(a) was not an exclusive remedy and did not preclude anattorney from bringing a separate breach of contract suit torecover fees. Nottage v. Jeka, 172 Ill. 2d 386, 392-98, 667 N.E.2d91, 93-96 (1996) (Nottage II). Respondent now argues that the partof Nottage I holding that an attorney may file a section 508(a)petition within 30 days of a voluntary dismissal remains good law,in spite of the supreme court's reversal and finding that section508(a) was not an exclusive remedy. We disagree.

Nottage I's discussion of Watson and Erby was compelled by thecourt's threshold assumption that section 508(a) was the exclusiveremedy for the recovery of fees in a divorce action. Once thatposition was taken, the court was compelled to deviate from Watsonor leave a lawyer with an uncollected fee without a remedy. Oncethe supreme court found that section 508(a) was not an exclusiveremedy, the need to deviate from the holding in Watson and Erby wasunnecessary. We agree with the reasoning of the trial court thatif Nottage I had allowed the breach of contract suit, there wouldhave been no need to address Watson and Erby.

We disagree, however, with the language in Erby suggestingthat a postdismissal petition for attorney fees in divorce cases isbarred, not only for the policy reasons set out in Watson, butbecause the court lacks subject matter jurisdiction. See Erby, 84Ill. App. 3d at 676. In that respect, Nottage I was correct. Subject matter jurisdiction addresses the scope of the circuitcourt's power to decide cases granted under the IllinoisConstitution and Illinois statutes. See Ill. Const. 1970, art. VI,