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Docket No. 95878-Agenda 33-September 2003.

In re MARRIAGE OF ALICE KING and SAMUEL KING, Appellee 
(Kenneth Swiatek et al., Appellants).

Opinion filed December 18, 2003.

JUSTICE GARMAN delivered the opinion of the court:

In September 2000, the home of Samuel King was sold by the sheriffof Cook County in an execution sale and a deed was issued to thepurchasers in 2001. The circuit court subsequently vacated the sale andthe purchasers appealed. The appellate court affirmed, finding that theorder on which the lien on the real estate was based was not a final order.We granted the purchasers' petition for leave to appeal. 177 Ill. 2d R.315(a).

I. BACKGROUND

In 1997, Alice King petitioned for the dissolution of her marriage toSamuel King. The Muller Law Firm represented Samuel. In March 1998,Muller sought to withdraw as counsel. That motion was granted in July1998 and Samuel acted pro se thereafter. Muller filed a petition for feesagainst Samuel. On January 5, 1999, the dissolution action came beforethe circuit court for final hearing. Although the record does not contain anytranscript of that hearing, the court entered two orders. One orderdisposed of all remaining issues in the Kings' dissolution proceeding anddenied Alice's petition for contribution to her attorney fees. No findingwas made as to contribution on behalf of Samuel. In a separate orderentered following a hearing on Muller's petition for fees, the courtawarded Muller a judgment against Samuel in the amount of $4,380. Thecourt made a finding pursuant to Supreme Court Rule 304(a) (155 Ill. 2dR. 304(a)) and specified that the amount of the judgment "shall be paiddirectly to the Muller firm, Ltd. from one of Mr. King's bank accountscurrently restrained." The final judgment of dissolution of marriage wasentered on February 5, 1999. That judgment awarded the marital homein Chicago to Samuel. The judgment also denied the requests of Samueland Alice for contribution from the other for attorney fees. The judgmentfurther contained the following provision: "The Court entered a Judgmentagainst Samuel King and in favor of The Muller Firm on January 5, 1999in the amount of $4700.00 $4380.00. Said sum shall be paid out of theaccounts listed in Section 2.2(a), out of Samuel King's assets." Section2.2(a) of the February 5, 1999, judgment listed the assets awarded toSamuel, which included two bank accounts. The record shows thatcounsel for Alice informed the court on that date that Samuel had advisedcounsel of his withdrawal of funds from the accounts. As a result, the courtordered the balances on all of Samuel's accounts to be paid over to Alice.

Muller began proceedings to collect on its judgment. On February 9,1999, Muller filed citations to discover assets directed to three differentbanks. The citations were based upon the January 5, 1999, judgment forattorney fees. It appears that Muller received partial satisfaction of itsjudgment through these efforts. In March 1999, Muller filed a citation todiscover assets against Samuel, indicating that $1,620.32 plus costs of$195 remained unsatisfied. Muller filed a memorandum of judgment withthe county recorder's office based upon the January 5, 1999, judgmentfor attorney fees. On April 13, 2000, the county sheriff issued a levy onSamuel's residential real estate. The property had been previouslyappraised at $80,000. A sale of the property was conducted onSeptember 7, 2000. Muller placed the highest bid at $25,000. AppellantKenneth Swiatek placed the next highest bid at $23,300. The sheriffaccepted Swiatek's bid and a certificate of sale was issued on September15, 2000, to Swiatek and Jim Finnegan. The certificate was assigned onDecember 7, 2000, to Swiatek, Finnegan, and Francisco Javier Iniguez,who are the appellants in this case (referred to hereafter, collectively, asSwiatek). On March 9, 2001, a sheriff's deed was issued to thepurchasers following expiration of the statutory redemption period.

Samuel retained an attorney, who filed a petition to vacate the sale.The trial court denied that petition. On September 19, 2001, Samuel wasadjudicated a disabled adult and appellee, Patrick T. Murphy, CookCounty public guardian (guardian), was appointed temporary guardian ofSamuel's estate and person. The guardian filed a motion forreconsideration of Samuel's petition to vacate the sale. That motionalleged that Samuel suffered from various physical and mental infirmitiesthat rendered him incapable of understanding the nature, significance, orlegal effect of the proceedings for the execution sale of his home. Themotion also identified several alleged irregularities in the sale, including that(1) the January 5, 1999, attorney fees order, pursuant to which the salewas made, limited collection of the judgment to certain of Samuel'saccounts and did not authorize a levy on real estate; (2) the notice of thesale was not posted in three public places as required by section 12-115of the Code of Civil Procedure (Code) (735 ILCS 5/12-115 (West2000)); (3) the report of commissioners was not signed under oathpursuant to sections 12-910 and 12-911 of the Code (735 ILCS5/12-910, 12-911 (West 2000)); (4) the certificate of sale was not soldto the highest bidder; (5) the sale was not approved by the court pursuantto section 12-144.5 of the Code (735 ILCS 5/12-144.5 (West 2000));(6) Samuel was not served with the levy; (7) the levy reflects inconsistentdates; and (8) there are two inconsistent receipts of sale, both of whichare unsigned and undated and do not include the bid amount or theresulting surplus to which Samuel would be entitled. Following argumentsof counsel, the trial court entered an order granting the motion forreconsideration. The court subsequently denied Swiatek's motion forreconsideration of that order. The appellate court affirmed the trial court,holding that the January 5, 1999, attorney fee order was interlocutory innature and not final or appealable until the judgment of dissolution ofmarriage was entered. The court noted that the trial court made specificreference to the January 5 order in the February 5, 1999, dissolutionjudgment and it modified the former order by deleting the restriction oncollecting the attorney fee award from Samuel's restrained bank accountsand allowing collection from any of Samuel's assets. Thus, according tothe appellate court, the February 5, 1999, judgment superceded theJanuary 5, 1999, order. The appellate court noted that the lien onSamuel's real estate had been recorded based upon the January 5, 1999,order. It concluded that a valid lien was not created. 336 Ill. App. 3d 83,90-91.

II. ANALYSIS

A. Motion to Strike Portions of the Guardian's Brief

Prior to addressing the merits of this appeal, we consider Swiatek'smotion, ordered taken with the case, seeking to strike portions of theguardian's brief for violation of Supreme Court Rule 341 (188 Ill. 2d R.341). Swiatek first argues that the guardian's brief violates Rule 341(a)(188 Ill. 2d R. 341(a)), which states that footnotes, if any, shall be usedsparingly. Swiatek contends that the guardian's brief contains 40footnotes, most of which contain argument that should be properlyincorporated into the brief. A review of the footnotes shows that many ofthem do in fact contain argument and citation of authority. This materialproperly belongs in the body of the guardian's brief. The inclusion of 40footnotes, particularly where many of them contain argument and citationof authority, is a serious violation of Rule 341(a). Accordingly, we grantthis portion of Swiatek's motion and strike the footnotes from theguardian's brief.

Swiatek next argues that the "Introduction" section of the guardian'sbrief violates Rule 341(e)(2) (188 Ill. 2d R. 341(e)(2)), which requires theinclusion of an introductory paragraph stating (1) the nature of the actionand of the judgment appealed from, (2) whether the judgment is based ona jury verdict, and (3) whether any question is raised on the pleadings.Swiatek notes that the guardian's introduction consists of a page and a halfof material, much of which is argumentative. Although we agree that thissection of the guardian's brief goes beyond the "introductory paragraph"envisioned by Rule 341(e)(2), we do not find this violation to be soserious as to warrant striking this section of the brief. We, therefore, denythis portion of Swiatek's motion to strike.

Next, Swiatek seeks to strike the portion of the guardian's brief thatsets forth the issues presented for review in this appeal as a violation ofRule 341(e)(3) (188 Ill. 2d R. 341(e)(3)). The rule contemplates thatissues will be stated concisely and without citation of authority. The rulegives examples of appropriate statements of an issue. The guardian's briefcontains two numbered issues. However, within the first issue, he identifiesseven separate issues regarding alleged irregularities in the sale ofSamuel's home. We do not find this violation to be so serious as towarrant the striking of the statement of issues and we deny this portion ofSwiatek's motion.

Swiatek also argues that the guardian has violated Rule 341(e)(6)(188 Ill. 2d R. 341(e)(6)), which requires the statement of facts to containthe facts necessary to an understanding of the case, stated accurately andfairly without argument or comment. Swiatek contends that the guardianhas included in his statement of facts matters not necessary for thedisposition of this appeal, namely, the 2001 proceeding in which Samuelwas declared a disabled adult. However, we note that the partiesdisagreed in the appellate court as to the grounds upon which the trialcourt rested its decision granting the guardian's motion for reconsideration.The guardian's inclusion of the disputed matters in his statement of factscomports with his view of the proceedings in the trial court. To the extentthat the statement of facts contains any irrelevant matters, we havedisregarded them. We, therefore, deny this portion of Swiatek's motionto strike.

We now address the merits of this appeal.

B. Standard of Review

Resolution of this case turns on interpretation of section 508(c) of theMarriage and Dissolution of Marriage Act (Act) (750 ILCS 5/508(c)(West 2000)). The cardinal rule of statutory construction is that the courtmust ascertain and give effect to the intent of the legislature. Paris v.Feder, 179 Ill. 2d 173, 177 (1997). When construing a statute, the courtshould look first to the language of the statute, giving the terms their plainand ordinary meaning. Paris, 179 Ill. 2d at 177. Where the language isclear and unambiguous, we must apply the statute without resort to furtheraids of statutory construction. Davis v. Toshiba Machine Co., America,186 Ill. 2d 181, 184-85 (1999). If the statutory language is ambiguous,however, we may look to other sources to ascertain the legislature'sintent. People v. Ross, 168 Ill. 2d 347, 352 (1995). The construction ofa statute is a question of law that is reviewed de novo.

C. Finality of the January 5, 1999, Order

Swiatek argues that the appellate court erred in holding that theJanuary 5, 1999, order was not a final order and that it would not,therefore, support a lien on Samuel's real estate. Swiatek relies on section508(c) of the Act, which was substantially amended in 1997. In particular,he relies on language in section 508(c)(2) that a petition for setting finalattorney fees constitutes a "distinct cause of action." 750 ILCS5/508(c)(2) (West 2000).

The amendments to section 508(c) must be understood in the contextin which they were made. Prior to those amendments, contribution of onespouse to the other spouse's attorney fees and determination of a client'sliability to his or her own attorney for fees were decided at the samehearing. Section 508(a) provided in pertinent part:

"The court from time to time, after due notice and hearing,and after considering the financial resources of the parties, mayorder any party to pay a reasonable amount for his own costsand attorney's fees and for the costs and attorney's feesnecessarily incurred *** [by the opposing party]." 750 ILCS5/508(a) (West 1996).

Section 508(a) now provides that "[a]t the conclusion of the case,contribution to attorney's fees and costs may be awarded from theopposing party in accordance with subsection (j) of Section 503. Feesand costs may be awarded to counsel from a former client in accordancewith subsection (c) of [section 508]." 750 ILCS 5/508(a) (West 2000).

Pursuant to section 503(j) of the Act, the question of contribution toattorney fees is to be determined only after proofs have closed on all otherissues between the parties and before judgment is entered. 750 ILCS5/503(j) (West 2000). Prior to obtaining a judgment for fees under section508(c), judgment in any contribution hearing on behalf of the client musthave been entered or the right to a contribution hearing waived andcounsel must have withdrawn as counsel of record. 750 ILCS5/508(c)(2)(iii), (c)(2)(iv) (West 2000). An attorney fee proceeding undersection 508(c) is initiated by filing a "Petition for Setting Final Fees andCosts." That section further states:

"Irrespective of a Petition for Setting Final Fees and Costs beingheard in conjunction with an original proceeding under this Act,the relief requested under a Petition for Setting Final Fees andCosts constitutes a distinct cause of action. A pending butundetermined Petition for Setting Final Fees and Costs shall notaffect appealability of any judgment or other adjudication in theoriginal proceeding." 750 ILCS 5/508(c)(2) (West 2000).

In 1983, this court held that a dissolution judgment was not final andappealable unless all issues had been determined. In In re Marriage ofLeopando, 96 Ill. 2d 114 (1983), we considered whether a custodyorder was appealable where other issues in the dissolution action had beenreserved. We stated that a petition for dissolution of marriage advancesa single claim and questions regarding custody, property division, andsupport are ancillary to the cause of action. Until all of the issues areresolved, the petition for dissolution is not fully adjudicated and no appealmay be taken. Leopando, 96 Ill. 2d at 119.

In In re Marriage of Derning, 117 Ill. App. 3d 620 (1983), the trialcourt had entered a dissolution judgment that resolved all issues exceptapportionment of liability between the parties for attorney fees, which thecourt indicated would be determined at a later time. Respondent appealedthat judgment and petitioner moved to dismiss the appeal for lack ofjurisdiction. Citing Leopando, the appellate court held that the question ofliability for attorney fees was integral to the judgment dissolving theparties' marriage and that the judgment was not final until that liability wasfinally determined. Derning, 117 Ill. App. 3d at 627. In In re Marriageof Kerman, 253 Ill. App. 3d 492 (1993), however, the trial court hadapportioned liability for attorney fees prior to entry of the judgment ofdissolution of marriage. Subsequent thereto, the trial court permittedrespondent's counsel to withdraw and to file a petition for fees againstrespondent. The appellate court held that the pendency of counsel'spetition did not render respondent's appeal of the judgment of dissolutionpremature. As liability for fees had previously been apportioned betweenthe parties, the determination of the reasonableness of the fees charged torespondent by his own counsel did not affect the issues resolved by thejudgment of dissolution. Kerman, 253 Ill. App. 3d at 495-96. The 1997amendments to section 508(c) codified this holding. See Kaufman,Litwin & Feinstein v. Edgar, 301 Ill. App. 3d 826, 833 (1998).

Swiatek argues that the 1997 amendments conferred finality onjudgments for attorney fees entered pursuant to section 508(c), so thatsuch judgments are themselves final orders that are then enforceableagainst the client, independent of and prior to entry of a final judgment ofdissolution of marriage. He relies on the fact that section 508(c) states thata petition for setting final fees constitutes a "distinct cause of action."However, in ascertaining the meaning of a statute, a court should not readlanguage in isolation, but must consider it in the context of the entirestatute. People v. Trainor, 196 Ill. 2d 318, 332 (2001). Accordingly, thephrase "distinct cause of action" must be read together with the sentenceimmediately following, which states that a pending, but undetermined,petition for fees shall not affect the appealability of any judgment or otheradjudication in the dissolution proceeding. By use of this language, section508(c) contemplates that a petition for setting final fees may still bepending at the time a final judgment of dissolution of marriage is entered.In fact, the section recognizes that in some cases, a petition for fees willnot even be filed until after a judgment of dissolution has been entered.Section 508(c)(5) provides that a petition, or a praecipe for fee hearingwithout the petition, must be filed no later than the expiration of the periodin which it is permissible to file a postjudgment motion under section2-1203 of the Code (735 ILCS 5/2-1203 (West 2000)). 750 ILCS5/508(c)(5) (West 2000). Accordingly, given the separation of final feepetitions from other issues in the dissolution proceeding under the newprocedures, there is no reason to defer finality and appealability ofdissolution judgments until fee petitions are resolved. In such cases, theconcerns we expressed in Leopando about the appealability of orders oninterrelated issues in a dissolution case do not apply. It is in this contextthat the phrase "distinct cause of action" in section 508(c)(2) must beunderstood. The use of that phrase is simply a recognition that the issue offees owed by a client to his or her attorney is not interrelated with otherissues, such as child support, property division, and maintenance. As such,once these other interrelated issues are finally determined, the judgment ofdissolution is final and appealable, despite the continued pendency of theissue of attorney fees under section 508(c). Conversely, the amendmentsdo not address the finality of attorney fee awards made prior to the entryof the judgment of dissolution of marriage. In this connection, we note thatthe trial court here made a Rule 304(a) finding that there was no justreason to delay enforcement or appeal of the January 5, 1999, order.However, a prerequisite for such a finding is that the judgment must be a"final judgment." 155 Ill. 2d R. 304(a). Inclusion of Rule 304(a) languagedoes not convert a nonfinal order into a final order for purposes ofenforcement or appeal. See People ex rel. Block v. Darm, 267 Ill. App.3d 354, 356 (1994); Coryell v. Village of La Grange, 245 Ill. App. 3d1, 5 (1993).

A further reason for holding that the January 5, 1999, order was nota final order relates to the trial court's ability to reconsider the judgmentof dissolution of marriage. Under section 2-1203 of the Code (735 ILCS5/2-1203 (West 2000)), any party in a nonjury case may, within 30 daysafter entry of the judgment, file a postjudgment motion. A timely filedmotion stays enforcement of the judgment under this section. Suppose, forexample, that the trial court denies contribution on behalf of a client spousein a contribution hearing. The client's previously withdrawn attorney thenfiles a petition for final fees and obtains an award of fees under section508(c). A judgment of dissolution is subsequently entered and the client'scurrent attorney files a postjudgment motion and one of the issues is thecourt's denial of contribution. If the court reconsiders that denial andenters an order allowing some contribution to the client's attorney feesfrom the other spouse, the court must then modify the order awardingattorney fees to withdrawn counsel to reflect the contribution from theclient's spouse to the client's attorney fees and the client's reduced liabilityfor fees to the attorney. It is the order on reconsideration that thenbecomes the final and appealable order. 155 Ill. 2d R. 303(a)(1). Such ascenario illustrates the potential difficulties in viewing an attorney feeaward entered pursuant to section 508(c) as a final, appealable, andenforceable order prior to entry of a final judgment of dissolution ofmarriage.

We also note that orders entered during the course of a dissolutionproceeding are expressly modifiable before final judgment and such ordersterminate when final judgment is entered. 750 ILCS 5/501(d) (West2000). Although section 501 of the Act refers to orders for temporaryrelief, the instant case illustrates the need for a trial court to maintain theability to modify any prior orders entered during the course of dissolutionproceedings. The January 5, 1999, order awarding the Muller firmattorney fees from Samuel provided that the fees were to be paid within14 days out of certain bank accounts belonging to Samuel that the courthad previously restrained. However, the record indicates that the trialcourt was advised on February 5, 1999, by counsel for Alice that Samuelhad withdrawn funds from those accounts. On that date, the trial courtentered an order for the turnover of funds in those accounts to Alice.When the court entered the final judgment of dissolution of marriage onFebruary 5, 1999, it modified the terms of the January 5, 1999, order byproviding that the amount of attorney fees awarded to Muller "shall bepaid out of Samuel King's assets." We interpret that modification as arecognition by the trial court that the funds out of which it had previouslyordered the attorney fees paid may not be available and that the judgmentshould be paid out of any of Samuel's assets. Swiatek argues in his replybrief that the provision in the January 5, 1999, order directing that theattorney fee award be paid out of certain of Samuel's bank accounts wasvoid and unenforceable as a restriction on collection of the judgment. Theappellate court did not address this argument. We find that Swiatek haswaived this argument, as he failed to raise it in his initial brief. Argumentsnot made in that brief are waived and may not be raised in the reply brief.188 Ill. 2d R. 341(e)(7).

Swiatek argues that the trial court merely recited the January 5,1999, order in its February 5, 1999, judgment of dissolution, much as itmight recite other orders previously entered in the case and that this factdid not constitute a modification or reentry of the order. This argumentoverlooks the language used by the court in ordering that the attorney feeaward "shall be paid" out of Samuel's assets. This language demonstratesthe trial court's intent to make a substantive modification of the January 5,1999, order. Thus, since the January 5, 1999, order was modified by theFebruary 5, 1999, judgment of dissolution, it is the latter judgment thatconstituted the final judgment as to the attorney fees owed by Samuel tothe Muller firm.

It is undisputed here that the judgment relied on by the sheriff in theexecution sale of Samuel's real estate was the January 5, 1999, order.Pursuant to section 12-101 of the Code, a lien on real estate is createdwhen a "transcript, certified copy or memorandum of the judgment" is filedin the office of the county recorder where the real estate is located. 735ILCS 5/12-101 (West 2000). To create a valid lien on real estate, ajudgment must be final, valid, and for a definite amount of money. SeeDunn v. Thompson, 174 Ill. App. 3d 944, 947 (1988). Here, the finaljudgment was the February 5, 1999, judgment of dissolution of marriage.Thus, the memorandum of judgment filed in this case, which was basedupon the January 5, 1999, order did not create a valid lien on Samuel'sreal estate. The trial court did not err in granting the guardian's motion toreconsider and vacating the sheriff's sale of Samuel's home.

III. CONCLUSION

Because we find that the January 5, 1999, order was not a finalorder, we hold that no valid lien on Samuel's home existed and the trialcourt did not err in vacating the sheriff's sale. In light of our disposition, weneed not address the other issues raised by the parties.

We, therefore, affirm the judgment of the appellate court.

Affirmed.

The majority concludes that a judgment awarding attorney fees towithdrawing counsel that is entered prior to a judgment of dissolutioncannot be a final order because the court retains the power to modify ituntil the dissolution is finalized. This conclusion is based on a faultyconstruction of the plain language of section 508(c) of the statute.Therefore, I must respectfully dissent.

The majority concludes that use of the phrase "a distinct cause ofaction" appearing in section 508(c) does not confer finality on judgmentsfor attorney fees pursuant to petitions filed under that section. Instead, themajority reasons that the phrase merely contemplates that a fee petitionmay still be pending at the time a final judgment of dissolution is enteredand that the appealability of that order is not affected by an unresolvedand unrelated fee dispute between attorney and client. Slip op. at 7-8.However, section 508 relates to three distinct types of fee issues: (1)interim attorney fees and costs under section 501(c-1) (750 ILCS5/501(c-1) (West 2000)); (2) contribution of parties to attorney fees andcosts under section 503(j) (750 ILCS 5/503(j) (West 2000)); and (3) theresolution of fee issues between a client and withdrawing counsel undersection 508(c) (750 ILCS 5/508(c) (West 2000)). 750 ILCS 5/508(a)(West 2000). The majority's analysis is entirely appropriate as to ordersentered in the first two categories, but not the third.

The judgment in question in this case was entered as the result of afinal hearing for the assessment of a withdrawing attorney's fees and costsheld pursuant to section 508(c). That hearing is allowed only after theattorney has been granted leave to withdraw as counsel of record (750ILCS 5/508(c)(1) (West 2000)) and then only after five conditionsprecedent are met. These are: (1) a written engagement agreement; (2) thefiling of an affidavit of counsel with a copy of the agreement attached; (3)entry of judgment in a contribution hearing on behalf of the client or waiverof the right to contribution; (4) counsel's withdrawal of record; and (5) arequest in the petition to resolve all remaining claims for fees and servicesbetween the counsel and client. 750 ILCS 5/508(c)(2) (West 2000).

Once these conditions precedent are satisfied, no issues remainbetween the client and withdrawing counsel affecting the ultimateresolution of the dissolution proceeding. The court is then able to deal withthe limited issue of the amount of fees and costs to be awarded to theattorney.

The majority notes that the trial court did not adjudicate any claim ofSamuel King for contribution. Slip op. at 1. Thus, it must be assumed thatno such claim was made. It would further appear that all of the conditionsprecedent under section 508(c)(2) were met and that there was noimpediment to a final hearing. The fact that the legislature hascharacterized these proceedings as "final hearings" means that it intendeda final resolution of all issues within the scope of the proceedings, includingthe entry of a final judgment awarding fees and costs.

The record discloses that the Muller law firm's petition for leave towithdraw as counsel was granted on July 31, 1998. At that time, Mullerwas granted leave to file a petition for fees. The hearing on the fee petitionwas not held until more than five months later, on January 5, 1999. Thesedates are significant because section 508(e)(1) expressly provides that aformer counsel may pursue an award and judgment against a former clientfor legal fees and costs in an independent proceeding at any timesubsequent to 90 days after the entry of an order granting counsel leaveto withdraw, even during the pendency of the dissolution action. 750ILCS 5/508(e)(1) (West 2000).

Simply stated, it defies logic that the legislature would allow anindependent lawsuit for fees against a former client when the dissolutionaction is pending, while maintaining that judgments entered in final hearingsauthorized by the Act to be held within the dissolution action cannot befinal. Once the statutory conditions precedent are met and the attorneyand former client are at arm's length, there should be no impediment to afinal judgment on the only issue in controversy between them-the awardof fees and costs.

Here, the majority disposes of this case based on its incorrectconclusion that the Muller fee judgment was not final. In reaching thatconclusion, the majority does not address the other issues raised by theparties, including the effect of the language in the January 5, 1999,judgment restricting enforcement to certain described bank accountsbelonging to Samuel King and the propriety of the procedures used inconducting the judicial sale. Resolving those other issues may well producethe same result, but without the logical inconsistency created by themajority's final order analysis. Accordingly, I respectfully dissent.