In re Marriage of Cozzi-DiGiovanni

Illinois Official Reports

Appellate Court

In re Marriage of Cozzi-DiGiovanni, 2014 IL App (1st) 130109

Appellate Court In re MARRIAGE OF SANDRA COZZI-DiGIOVANNI, Petitioner
Caption and Counterrespondent-Appellee, and COSIMO DiGIOVANNI,
Respondent-Counterpetitioner (Michael D. Canulli, Appellant).

First District, Fifth Division
District & No.
Docket No. 1-13-0109

June 27, 2014
Filed

In proceedings initially seeking the dissolution of the parties’ marriage
Held
and ending with the entry of a legal separation, the trial court erred in
(Note: This syllabus
entering summary judgment against respondent’s first counsel on his
constitutes no part of the
opinion of the court but petition seeking contribution toward his remaining attorney fees from
has been prepared by the petitioner and denying his motion to reconsider, since respondent’s
Reporter of Decisions attorney had the right to seek contribution from petitioner pursuant to
for the convenience of section 503(j) of the Illinois Marriage and Dissolution of Marriage
the reader.) Act; therefore, the cause was remanded for further proceedings.

Appeal from the Circuit Court of Cook County, No. 07-D-09096; the
Decision Under
Hon. Raul Vega, Judge, presiding.
Review

Judgment Reversed and remanded.
 Counsel on Michael D. Canulli, of Chicago, for appellant.
Appeal
No brief filed for appellee.

Panel JUSTICE PALMER delivered the judgment of the court, with
opinion.
Presiding Justice Gordon and Justice McBride concurred in the
judgment and opinion.

OPINION

¶1 This appeal arises in the context of the dissolution of marriage action between petitioner
and counterrespondent Sandra Cozzi-DiGiovanni (Sandra) and respondent and
counterpetitioner Cosimo DiGiovanni (Cosimo). During the pendency of the dissolution
proceeding, Cosimo’s former counsel, Michael D. Canulli (Canulli), filed a petition against
Sandra seeking contribution for attorney fees and costs owed by Cosimo to Canulli. The court
granted summary judgment to Sandra on the petition, finding that, pursuant to section 503(j) of
the Illinois Marriage and Dissolution of Marriage Act (the Act) (750 ILCS 5/503(j) (West
2010)), it did not have subject matter jurisdiction to consider the petition. It denied Canulli’s
motion to reconsider.
¶2 Canulli appeals the court’s orders, asserting (1) nine arguments challenging the court’s
interpretation of sections 503(j) and 508(a) of the Act (750 ILCS 5/503(j), 508(a) (West
2010)); (2) that Sandra waived her objection to the petition; and (3) that the court was revested
with jurisdiction. He also requests that, upon remand for a hearing on his petition, the case be
reassigned to a different trial judge. Although Sandra has not filed a brief in response, we will
consider the appeal pursuant to the principles set forth in First Capitol Mortgage Corp. v.
Talandis Construction Corp., 63 Ill. 2d 128, 131-33 (1976). We reverse and remand for further
proceedings.

¶3 BACKGROUND
¶4 Sandra filed a petition for dissolution of marriage in September 2007. Three months later,
Cosimo filed a counterpetition for dissolution of the marriage. Canulli represented Cosimo and
continued to do so until July 21, 2009, on which date the court entered an order allowing
Canulli to withdraw his appearance as Cosimo’s attorney. Another attorney then filed an
appearance for Cosimo.
¶5 In October 2009, Canulli filed a “petition for final fee hearing against former client,”
seeking attorney fees and costs from Cosimo. He asserted that he had received $12,397.40 in
payments from Cosimo but was owed an additional $28,364.65. A mediation hearing on the
petition was scheduled for January 5, 2010.
¶6 However, on January 4, 2010, Cosimo filed a petition for relief in the United States
Bankruptcy Court, seeking discharge of assorted obligations under chapter 7 of the United

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 States Bankruptcy Code (11 U.S.C. § 101 et seq. (2006)). Cosimo listed Canulli as one of his
creditors. As a result of the bankruptcy filing, the circuit court entered an order staying
prosecution of Canulli’s petition against Cosimo and continued the petition for a status hearing
on the bankruptcy.
¶7 On January 5, 2010, Canulli filed a “petition for attorney’s fees, costs and expenses
hearing” against Sandra, citing section 508(c) “et seq.” of the Act. He asserted that Cosimo
owed him $28,364.65 in attorney fees and costs and, given that Cosimo was seeking
bankruptcy relief, it appeared that Cosimo would not pay the attorney fees and costs he had
incurred in the dissolution action. Canulli claimed that Sandra had a demonstrated ability to
pay Cosimo’s attorney fees and costs because Cosimo had told him that Sandra had purchased
a winning lottery ticket worth in excess of $2 million. Canulli requested an evidentiary hearing
on the petition and a judgment against Sandra in his favor for $28,364.65 plus additional sums
as necessary.
¶8 Sandra moved to dismiss, arguing that, even if Canulli’s petition against her was
interpreted as a petition for contribution, section 508(c) of the Act provides that Canulli can
only file a final fee petition during the pendency of a dissolution proceeding against his own
client, not against the opposing party.
¶9 On February 18, 2010, the court granted her motion, finding that “former counsel may only
obtain fees pursuant to [section] 508(c) which is limited to seeking fees against his client” and
“Canulli is the former counsel of Cosimo DiGiovanni and he does and has not represented
Sandra.” It “denied, as a matter of law,” Canulli’s petition for a fees and costs hearing against
Sandra. The court ordered that “notice of future proceedings including prove up or entry of
judgment shall be given to Mr. Canulli.”
¶ 10 On March 22, 2010, Canulli filed a motion to reconsider the court’s February 18, 2010,
order dismissing his contribution petition against Sandra.
¶ 11 On March 24, 2010, the court granted Sandra leave to file for a legal separation rather than
dissolution of marriage. On the same date, it entered a judgment for legal separation. In the
judgment, the court approved and incorporated the parties’ marital separation agreement and
an addendum thereto. In the addendum, the parties agreed that, given Canulli’s filing of his
petition against Sandra and his stated intent to appeal the court’s denial of the petition, the
following provision was incorporated into the separation agreement:
“Respondent [Cosimo] shall be responsible for and pay his own attorney fees
incurred in this cause. Respondent waives whether by statute or otherwise any right to
contribution for attorney fees from Petitioner [Sandra].
Petitioner shall be responsible for and pay her own attorney fees incurred in this
cause. But her right to contribution for attorney fees from Respondent or her right to
seek a contribution from any attorney fees she is ordered to pay Michael Canulli
pursuant to Canulli’s Petition or any similar petition filed by him is reserved. Petitioner
may only file a Petition for Contribution for attorney fees against Respondent if the
trial court’s order of February 19, 2010 is reversed or overturned in whole or in part by
either the trial court or the appellate court or it is remanded by the appellate court to the
trial court for further proceedings.” (Emphasis in original.)
The court’s order stated that it retained jurisdiction over the subject matter of the case and the
parties for the purposes of enforcing all terms of the judgment and the agreement.

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¶ 12 On April 15, 2010, the bankruptcy court entered an order granting Cosimo’s petition for
chapter 7 discharge.
¶ 13 On June 22, 2010, the court denied Canulli’s motion to reconsider the dismissal of his
petition for contribution against Sandra.
¶ 14 On July 12, 2010, Canulli filed a “motion to complete common law record and other
relief,” asserting that, in an unrelated domestic relations case before a different trial judge, the
judge had entered an order contrary to that entered on Canulli’s petition, allowing the attorney
to pursue a petition for contribution against the opposing party. Canulli requested (1) leave to
supplement the record with the orders entered in the other case and (2) reconsideration of the
court’s order granting Sandra’s motion to dismiss his petition given the contradictory ruling on
the identical issue.
¶ 15 On July 19, 2010, the court (1) denied the motion to complete the common law record and
(2) vacated its February 18, 2010, order granting Sandra’s motion to dismiss Canulli’s
contribution petition against her. It ordered Sandra to answer the petition.
¶ 16 Sandra filed her answer and two affirmative defenses in August 2010. She argued Canulli’s
action for contribution was barred because (1) any debt owed to Canulli for attorney fees had
been discharged by Cosimo’s bankruptcy and there was, therefore, no longer any debt owed to
Canulli to which Sandra could be required to contribute and (2) pursuant to section 508 of the
Act, a former counsel may petition for fees only against the attorney’s own client. Sandra filed
a petition for contribution against Cosimo pursuant to the addendum to the parties’ marital
separation agreement. She also filed a petition for interim attorney fees against Canulli,
asserting that she would be unable to properly defend against his petition for contribution
without an award of interim fees.
¶ 17 Cosimo answered and filed an affirmative defense to Sandra’s petition for contribution. He
argued that, because Canulli’s attorney fees had been discharged in the chapter 7 bankruptcy,
Cosimo had no legal obligation or duty to pay Canulli’s fees and Sandra was prohibited from
seeking contribution from Cosimo for those fees as the fees had been properly discharged.
¶ 18 In January 2011, the court awarded Sandra $10,000 in interim attorney fees from Canulli,
noting that Canulli failed to appear or file a responsive pleading. However, in March 2011, the
court granted Canulli’s motion to vacate the interim fee award.
¶ 19 The case continued through assorted answers, responses and motions, including Canulli’s
motion to add Sandra’s daughter Catherine as a necessary party. Canulli asserted that Sandra
had given the proceeds of the $2 million lottery ticket to Catherine prior to the parties’ legal
separation in order to keep the winnings out of the marital estate and he sought an opportunity
to demonstrate such. He stated Sandra’s ownership interest in the lottery winnings was
relevant to his petition for contribution given that her financial circumstances and ability to pay
were in issue.
¶ 20 In March 2012, Sandra filed a motion for summary judgment, asserting the court was
without subject matter jurisdiction to consider Canulli’s contribution petition. Sandra argued
that there was no statutory or jurisdictional basis on which to hear Canulli’s petition because
section 503(j) of the Act requires that a petition for contribution to attorney fees from the
opposing party must be heard and decided before entry of judgment and Canulli sought to have
his petition heard two years after entry of final judgment, the March 24, 2010, judgment of

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 legal separation. Sandra also argued that she did not waive the lack of subject matter
jurisdiction because such may be raised at any time and cannot be waived.
¶ 21 Canulli responded that, under the statute, where a timely petition for contribution such as
his is filed, the circuit court retains jurisdiction to decide the petition even after entry of a
judgment of divorce or legal separation. He also asserted that, because the judgment for legal
separation specifically reserved the issue of which party was to pay his attorney fees, the
judgment for legal separation was not a final judgment and the court continued to exercise its
jurisdiction over the issue of contribution. He requested that the court strike Sandra’s motion
for summary judgment as untimely, or deny her motion and/or find the parties revested the
court with jurisdiction to hear his petition.
¶ 22 On August 7, 2012, the court entered an order granting Sandra’s motion for summary
judgment. The order stated as follows:
“(1) Mr. Canulli filed a petition for contribution on 1/5/10,
(2) The trial court entered a judgment for legal separation on 3/24/10,
(3) The trial judge did not conduct a 503(j) hearing before judgment was entered or
at the end of proofs,
(4) Mr. Canulli did not appear on 3/24/10 for a 503(j) hearing,
(5) This court rejects Mr. Canulli’s argument that it should vacate the judgment for
legal separation in order for there to be a 503(j) hearing, and further finds that it would
be against public policy to vacate said judgment at this point in time.”
¶ 23 Canulli filed a motion to reconsider, arguing that the court’s determination that it lacked
subject matter jurisdiction to conduct a hearing on contribution because the judgment of legal
separation had been entered was erroneous as a matter of law and based on erroneous
presumptions. He asserted that, despite the court’s order requiring that he be notified of the
date of any prove-up hearing or entry of judgment, he had not received notice that the parties
intended to present to the court and request entry of the judgment for legal separation on March
24, 2010. He stated the court erroneously presumed that he had received notice of the entry of
judgment for legal separation and that Canulli was required to appear in court that day “when
no such hearing was scheduled” and asserted the judgment was void for lack of notice. Canulli
also asserted that, because the judgment of legal separation was void, it could not serve as a
basis to grant summary judgment or deprive him of his right to contribution. He further
reiterated his argument that the court did not lose subject matter jurisdiction under section
503(j) to rule on his petition for contribution upon entry of the judgment for legal separation.
¶ 24 The court denied Canulli’s motion to reconsider on December 3, 2012, finding “no error of
law of fact and [Canulli] should have appeared in court on March 24th and on today’s date.”
Canulli timely filed his notice of appeal from the court’s orders on January 2, 2013.

¶ 25 ANALYSIS
¶ 26 Canulli raises 12 issues on appeal but they concern only 4 main arguments: (1) the circuit
court erred in its interpretation of section 503(j) of the Act; (2) Sandra waived her objection to
Canulli’s contribution petition by litigating it for almost three years; (3) even if the court did
lose subject matter jurisdiction, it was revested with jurisdiction by Sandra’s participation in
the three-year litigation on the petition; and (4) upon remand for a hearing on Canulli’s
contribution petition, the case should be reassigned to a different circuit court judge as the

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 hearing judge’s “various rulings and his grant of interim attorney fees of $10,000 against
Canulli are suggestive of some degree or appearance of prejudice and justice and fairness
would be served by a reassignment of the case to a different judge.” As noted previously,
Canulli’s brief is unopposed.
¶ 27 We agree with Canulli that the court erred in its interpretation of section 503(j). For the
reasons that follow, we find the court did have subject matter jurisdiction to consider Canulli’s
petition and erred in granting summary judgment to Sandra. Therefore, we reverse and remand
for a hearing on the petition. Given this conclusion, we will not address Canulli’s arguments
regarding waiver and revestment of jurisdiction. We deny Canulli’s request that we remand to
a different trial judge.

¶ 28 Section 503(j) of the Act
¶ 29 Canulli represented Cosimo in the dissolution action for two years. He then withdrew as
Cosimo’s counsel and filed a petition for final attorney fees against Cosimo during the
pendency of the dissolution proceedings. Upon Cosimo’s bankruptcy filing, Canulli filed a
petition for contribution against Sandra, the opposing party, citing section 508(c) of the Act.
Two months later, the court entered a judgment of legal separation and approved the parties’
agreement of legal separation. Two years later, Sandra moved for summary judgment, arguing
inter alia that, pursuant to section 503(j) of the Act, the court lacked subject matter jurisdiction
to consider the petition because the judgment for legal separation had already been entered.
The court granted Sandra’s motion for summary judgment, noting that the petition was not
decided prior to entry of the judgment for legal separation. Canulli argues that the court erred
in granting summary judgment to Sandra because the court improperly read into section 503(j)
a mandate that, where a judgment of legal separation has been entered, the court lacks subject
matter jurisdiction to consider a pending contribution petition.
¶ 30 A drastic means of disposing of litigation, summary judgment should be granted only when
the right of the moving party is clear and free from doubt. Mashal v. City of Chicago, 2012 IL
112341, ¶ 49. The movant has the burden of production on a summary judgment motion.
Mashal, 2012 IL 112341, ¶ 49. Summary judgment is granted only when the pleadings,
depositions and admissions on file and the affidavits, if any, construed strictly against the
movant and liberally in favor of the respondent, “ ‘show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law.’ ” Axen v.
Ockerlund Construction Co., 281 Ill. App. 3d 224, 229 (1996) (quoting Purtill v. Hess, 111 Ill.
2d 229, 240 (1986)); Gauthier v. Westfall, 266 Ill. App. 3d 213, 219 (1994). We review the
circuit court’s entry of summary judgment de novo. Golden Rule Insurance Co. v. Schwartz,
203 Ill. 2d 456, 462 (2003).
¶ 31 Our standard of review for the construction and application of a statute is also de novo.
Solon v. Midwest Medical Records Ass’n, 236 Ill. 2d 433, 439 (2010). Our main objective in
interpreting a statute is to determine and give effect to the intent of the legislature. Solon, 236
Ill. 2d at 440. The most reliable indicator of the legislature’s intent is the language of the
statute, which must be given its plain and ordinary meaning. Solon, 236 Ill. 2d at 440. Clear
and unambiguous statutory language must be applied as written, without resort to extrinsic aids
of statutory construction and without reading into it exceptions, limitations, or conditions that
conflict with the expressed intent or that render any part of the statute meaningless or
superfluous. Solon, 236 Ill. 2d at 440-41. Only if a statute is ambiguous, if it is capable of being

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 understood by reasonably well-informed persons in two or more different ways, will we
consider extrinsic aids of construction in order to discern the legislative intent. Solon, 236 Ill.
2d at 440.
¶ 32 Relevant here are sections 508 and 503 of the Act. Section 508 of the Act is titled
“Attorney’s Fees; Client’s Rights and Responsibilities Respecting Fees and Costs.” 750 ILCS
5/508 (West 2010). It governs attorney fees generally, including petitions for contribution of
attorney fees and costs incurred in initial dissolution proceedings (predecree proceedings) and
in postdecree proceedings. Blum v. Koster, 235 Ill. 2d 21, 46 (2009).
¶ 33 Section 508(a) provides, in relevant part:
“The court from time to time, after due notice and hearing, and after considering the
financial resources of the parties, may order any party to pay a reasonable amount for
his own or the other party’s costs and attorney’s fees. Interim attorney’s fees and costs
may be awarded from the opposing party, in a pre-judgment dissolution proceeding in
accordance with subsection (c-1) of Section 501 and in any other proceeding under this
subsection. At the conclusion of any pre-judgment dissolution proceeding under this
subsection, contribution to attorney’s fees and costs may be awarded from the
opposing party in accordance with subsection (j) of Section 503 and in any other
proceeding under this subsection. Fees and costs may be awarded in any proceeding to
counsel from a former client in accordance with subsection (c) of this Section. Awards
may be made in connection with the following:
(1) The maintenance or defense of any proceeding under this Act.
(2) The enforcement or modification of any order or judgment under this Act.
(3) The defense of an appeal of any order or judgment under this Act, including
the defense of appeals of post-judgment orders.
(3.1) The prosecution of any claim on appeal (if the prosecuting party has
substantially prevailed).
(4) The maintenance or defense of a petition brought under Section 2-1401 of
the Code of Civil Procedure seeking relief from a final order or judgment under this
Act.
(5) The costs and legal services of an attorney rendered in preparation of the
commencement of the proceeding brought under this Act.
(6) Ancillary litigation incident to, or reasonably connected with, a proceeding
under this Act.
***
The court may order that the award of attorney’s fees and costs (including an
interim or contribution award) shall be paid directly to the attorney, who may enforce
the order in his or her name, or that it shall be paid to the appropriate party. Judgment
may be entered and enforcement had accordingly.” (Emphases added.) 750 ILCS
5/508(a) (West 2010).
¶ 34 Section 508(a) provides that attorney fees and costs may be awarded to an attorney in
connection with the attorney’s representation of his or her client in the original
dissolution/predecree proceeding (such as in “[t]he maintenance or defense of any proceeding
under this Act” (750 ILCS 5/508(a)(1) (West 2010))) and in postdecree proceedings (such as in
“[t]he enforcement or modification of any order or judgment under this Act” and in the
prosecution or defense of claims on appeal (750 ILCS 5/508(a)(2), (a)(3), (a)(3.1) (West

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 2010))). The attorney can obtain a judgment for attorney fees from the attorney’s own client or,
pursuant to a petition for contribution, from an opposing spouse. 750 ILCS 5/508(a) (West
2010).
¶ 35 “The attorneys for the litigants in a dissolution proceeding are considered as parties in
interest in an action for attorney fees to the extent that while such fees are generally awarded to
the client, they properly ‘belong’ to the attorney.” In re Marriage of Baltzer, 150 Ill. App. 3d
890, 893 (1986). As a party in interest, the attorney has standing in such cases to pursue an
action for fees himself. Lee v. Lee, 302 Ill. App. 3d 607, 612 (1998) (citing Baltzer, 150 Ill.
App. 3d at 893).1 Section 508(a), therefore, allows an attorney to pursue a contribution action
in his own name. Rocca, 408 Ill. App. 3d at 968; 750 ILCS 5/508(a) (West 2010) (“The court
may order that the award of attorney’s fees and costs (including an interim or contribution
award) shall be paid directly to the attorney, who may enforce the order in his or her name
***.”).
¶ 36 Here, Canulli is seeking contribution from Sandra for attorney fees and costs incurred
during his representation of Cosimo during the original, predecree dissolution proceeding.2 He
cited to section 508(c) in his contribution petition. However, section 508(c) concerns “[f]inal
hearings for attorney’s fees and costs against an attorney’s own client, pursuant to a Petition
for Setting Final Fees and Costs of either a counsel or a client.” (Emphasis added.) 750 ILCS
5/508(c) (West 2010). Sandra was never Canulli’s client; she was the opposing party in the
dissolution action. Therefore, section 508(c) does not apply to Canulli’s petition for
contribution against Sandra. Rocca, 408 Ill. App. 3d at 967.
¶ 37 Instead, section 503(j) of the Act applies to Canulli’s petition for contribution against
Sandra. Section 508(a) specifically references section 503(j), stating that, “[a]t the conclusion
of any pre-judgment dissolution proceeding under this subsection, contribution to attorney’s
fees and costs may be awarded from the opposing party in accordance with subsection (j) of
Section 503 and in any other proceeding under this subsection.” 750 ILCS 5/508(a) (West
2010). Section 503 is titled “Disposition of property” and generally addresses the distribution
of property in the original judgment for dissolution of marriage. 750 ILCS 5/503 (West 2010);
Blum, 235 Ill. 2d at 46. Subsection (j) of section 503 addresses contribution from an opposing

1
We cite herein to Lee v. Lee, 302 Ill. App. 3d 607 (1998), In re Marriage of Baltzer, 150 Ill. App.
3d 890 (1986), and Heiden v. Ottinger, 245 Ill. App. 3d 612 (1993), for the proposition that, under the
Act, as a party in interest, the attorney has standing in contribution cases to pursue an action for attorney
fees himself. All three cases considered attorney fees under section 508 of the Act as it existed prior to
amendments to the Act in 1997. However, although section 508 has been twice amended since 1997,
the cases remain good law. In re Parentage of Rocca, 408 Ill. App. 3d 956, 964 (2011). The 1997
amendments did not alter the statute such that an attorney’s ability to pursue contribution is now
restricted in a manner that did not exist when the statute was considered in Lee, Baltzer and Heiden.
Rocca, 408 Ill. App. 3d at 964. Instead, “by including, for example, specific provisions permitting
interim fees and contribution, the effect of the amendments was to expand the avenues for attorneys to
obtain fees and to encourage attorneys to represent even those clients who are financially
disadvantaged.” (Emphasis in original.) Rocca, 408 Ill. App. 3d at 968.

2
Canulli withdrew from representing Cosimo during the pendency of the dissolution action, prior to
entry of the judgment of legal separation. Necessarily, therefore, he did not expend any time and effort
on Cosimo’s behalf thereafter and postdecree attorney fees are not at issue here.

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 party toward attorney fees and costs incurred in the proceeding before the final dissolution of
marriage judgment. Blum, 235 Ill. 2d at 46. It “governs the procedural requirements applicable
to petitions for contribution of attorney fees and costs incurred prior to the entry of final orders
for dissolution of marriage,” i.e., for fees and costs incurred during predecree proceedings.
Blum, 235 Ill. 2d at 47. Canulli is seeking contribution from Sandra, the opposing party, for
attorney fees incurred as Cosimo’s counsel during the predecree dissolution proceeding.
Therefore, section 503(j) rather than section 508(c) applies to his petition.
¶ 38 Section 503(j) provides, in relevant part:
“After proofs have closed in the final hearing on all other issues between the parties (or
in conjunction with the final hearing, if all parties so stipulate) and before judgment is
entered, a party’s petition for contribution to fees and costs incurred in the proceeding
shall be heard and decided, in accordance with the following provisions:
(1) A petition for contribution, if not filed before the final hearing on other
issues between the parties, shall be filed no later than 30 days after the closing of
proofs in the final hearing or within such other period as the court orders.
(2) Any award of contribution to one party from the other party shall be based
on the criteria for division of marital property under this Section 503 and, if
maintenance has been awarded, on the criteria for an award of maintenance under
Section 504.
***
(5) A contribution award (payable to either the petitioning party or the party’s
counsel, or jointly, as the court determines) may be in the form of either a set dollar
amount or a percentage of fees and costs (or a portion of fees and costs) to be
subsequently agreed upon by the petitioning party and counsel or, alternatively,
thereafter determined in a hearing pursuant to subsection (c) of Section 508 or
previously or thereafter determined in an independent proceeding under subsection
(e) of Section 508.”3 750 ILCS 5/503(j) (West 2010).
¶ 39 From the court’s order, it appears that the court interpreted section 503(j) to mean that, if a
contribution petition filed in a dissolution or legal separation proceeding is not heard and
decided before entry of the judgment for dissolution or legal separation, the court loses
jurisdiction to consider the petition once that judgment is entered.
¶ 40 We agree with the circuit court that, pursuant to section 503(j), a petition for contribution to
attorney fees must be heard and decided before the final judgment is entered. In re Marriage of
Lindsey-Robinson, 331 Ill. App. 3d 261, 268 (2002). Under the Act, a judgment for dissolution
of marriage or of legal separation becomes final “when entered.” 750 ILCS 5/413(a) (West
2000); Marriage of Lindsey-Robinson, 331 Ill. App. 3d at 268. However, nothing in the clear
and unambiguous language of the Act, and specifically that in sections 503(j) and 508(a),
provides that, once a judgment is entered in a dissolution or legal separation action, the court
loses jurisdiction to consider a pending contribution petition. The timing provisions in section
503(j) are not jurisdictional prerequisites. Marriage of Lindsey-Robinson, 331 Ill. App. 3d at

3
“While section 503(j) appears to present the petitioner as a party, as opposed to an attorney, the
Marriage Act clearly anticipates that an attorney will, at times, act as a petitioning party, as evidenced
by section 508(a)’s provision that any counsel or former counsel may petition the court for an award
and judgment and may enforce the order in his or her own name.” Rocca, 408 Ill. App. 3d at 968.

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 269, following Belleville Toyota, Inc. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325
(2002).
¶ 41 In Belleville Toyota, Inc., our supreme court held that, “[w]ith the exception of the circuit
court’s power to review administrative action, which is conferred by statute, a circuit court’s
subject matter jurisdiction is conferred entirely by our state constitution.” Belleville Toyota,
Inc., 199 Ill. 2d at 334. Such “jurisdiction extends to all ‘justiciable matters.’ ” Id. (quoting Ill.
Const. 1970, art. VI, § 9). “[A] ‘justiciable matter’ is a controversy appropriate for review by
the court, in that it is definite and concrete, as opposed to hypothetical or moot, touching upon
the legal relations of parties having adverse legal interests.” Id. at 335.
¶ 42 As noted previously, section 508 of the Act provides for the awarding of attorney fees.
“Thus, it is evident that the awarding of attorney fees within a dissolution proceeding is a
justiciable matter.” In re Marriage of Baniak, 2011 IL App (1st) 092017, ¶ 16. “The
legislature’s creation of a new justiciable matter, however, does not mean that the legislature
thereby confers jurisdiction on the circuit court.” Belleville Toyota, Inc., 199 Ill. 2d at 335.
“[E]xcept in the area of administrative review, the jurisdiction of the circuit court flows from
the constitution.” (Emphasis omitted.) Id. (citing Ill. Const. 1970, art. VI, § 9). The legislature,
in defining a justiciable matter, may not “impose ‘conditions precedent’ to the court’s exercise
of jurisdiction that cannot be waived.” Id. at 335-36.
“Characterizing the requirements of a statutory cause of action as nonwaivable
conditions precedent to a court’s exercise of jurisdiction is merely another way of
saying that the circuit court may only exercise that jurisdiction which the legislature
allows. We reiterate, however, that the jurisdiction of the circuit court is conferred by
the constitution, not the legislature. Only in the area of administrative review is the
court’s power to adjudicate controlled by the legislature.” Id. at 336.
¶ 43 The litigation at bar does not arise under our administrative review law. Therefore, to
paraphrase our supreme court, the circuit court was not exercising special statutory jurisdiction
and, instead, had jurisdiction to hear and determine Canulli’s claim because it was among the
general class of cases–those presenting a section 508 claim for attorney fees under the Act, a
justiciable matter–to which the court’s constitutionally granted original jurisdiction extends.
Belleville Toyota, Inc., 199 Ill. 2d at 340. Even if Canulli’s petition defectively stated its claim
under the Act, the circuit court would not have been deprived of subject matter jurisdiction. Id.
¶ 44 “Following Belleville Toyota, we must find that the timing provision of section 503(j) of
the Act, although mandatory (see People v. O’Brien, 197 Ill. 2d 88, 93 (2001) (holding that the
legislature’s use of ‘shall’ demonstrates its intent to create a mandatory, rather than directive,
provision)), is not a jurisdictional prerequisite and thus may be waived.” Marriage of
Lindsey-Robinson, 331 Ill. App. 3d at 269. Since the timing requirements in section 503(j) are
not jurisdictional, the court did not lose subject matter jurisdiction when it did not meet the
requirement that, “before judgment is entered, a party’s petition for contribution to fees and
costs incurred in the proceeding shall be heard and decided.” Although this is a directive to the
court, the court does not lose jurisdiction to consider the petition if it fails to abide by the
directive. The court, therefore, should have held a hearing on Canulli’s petition.
¶ 45 Section 503(j) requires that “[a]ny award of contribution to one party from the other party
shall be based on the criteria for division of marital property under this Section 503 and, if
maintenance has been awarded, on the criteria for an award of maintenance under Section
504.” 750 ILCS 5/503(j)(2) (West 2010).

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 “In predecree proceedings, the apportionment of attorney fees is viewed as another
aspect of financial allocation that a trial court must factor into the total picture at the
time of dissolution. In re Marriage of Tomei, 253 Ill. App. 3d 663, 666 (1993) (the
allocation of attorney fees is ‘integrally related to decisions regarding the financial
resources of each of the parties, [and] a disposition of their allocation should be made
before the reviewing court can properly assess the trial court’s decisions regarding
maintenance, child support, or division of property’); [citation]. The language of
section 503(j) requires that contribution petitions be decided after proofs have closed in
the final hearing, but before judgment is entered–in other words, as soon as the final
amount of fees can be calculated, but while the trial court can still include the fees in its
decision on all of the financial matters that have arisen. Section 503(j) is clearly
directed toward ensuring that all financial allocations are determined at the same time
that attorney fees for predecree proceedings are sought.” In re Marriage of Blum, 377
Ill. App. 3d 509, 533 (2007), aff’d in relevant part sub nom. Blum v. Koster, 235 Ill. 2d
21 (2009).
¶ 46 Given that attorney fees are to be awarded in view of the total disposition of property and
assets, ideally a determination regarding a petition for contribution would be made at the same
time as or immediately following a hearing on the proofs required for the apportionment of the
parties’ property and assets in a predecree proceeding, prior to entry of the judgment for legal
separation. However, the circumstances here are unique in that the court had dismissed
Canulli’s petition for contribution prior to entry of the judgment.4 As Canulli timely filed a
motion to reconsider that dismissal prior to entry of judgment, that issue should have been
resolved prior to the entry of judgment. Unfortunately, it was not, but it is not clear from the
record whether the trial court was made aware of the pendency of the motion to reconsider.
¶ 47 Subsequent to the judgment’s entry, the motion to reconsider was denied. However, when
the court subsequently vacated its earlier dismissal and reinstated Canulli’s petition for
contribution, the petition became viable. Following Belleville and Lindsey-Robinson, the
timing requirement in section 503(j) is not jurisdictional. Accordingly, Canulli’s reinstated
petition should have been heard, even though the court had already entered the judgment.5
¶ 48 We note that, in the court’s order granting Sandra’s motion for summary judgment on
Canulli’s petition, it stated that Canulli did not appear for a section 503(j) hearing on March 24,
2010, the date on which the court entered the judgment for legal separation and approved the
parties’ agreement of legal separation and addendum thereto. Canulli argues, as he did below
in his motion to reconsider, that he did not receive notice that the parties intended to request the
court to enter the judgment of legal separation and approve the agreement on that date.

4
Canulli filed his petition for contribution on January 5, 2010. The court dismissed his petition on
February 18, 2010. Canulli filed his motion to reconsider the dismissal on March 22, 2010. The court
entered the judgment of legal separation on March 24, 2010. The court subsequently denied Canulli’s
motion to reconsider the dismissal of his petition on June 22, 2010.

5
In the parties’ addendum to their agreement for legal separation, they specifically provided for a
circumstance in which Canulli’s petition was reinstated, either by the circuit court or the appellate court
on remand, reserving to Sandra the right to seek contribution from Cosimo should she be ordered to pay
Canulli on his petition.

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 However, the record contains a notice to Canulli to the effect that Cosimo intended to present
to the court a pleading requesting “prove up” on March 24, 2010.6 Nevertheless, Canulli’s
failure to appear at the prove-up hearing was of no import because his motion to reconsider
was still pending at the time of the hearing and should have been resolved prior to entry of
judgment at the hearing.
¶ 49 Further, we note that, upon remand, the issue of the parties’ agreement in the addendum to
the agreement for legal separation will arise. The parties’ agreement regarding who will pay
attorney fees and costs is not binding on Canulli. Rocca, 408 Ill. App. 3d at 968 (citing Lee,
302 Ill. App. 3d 607, and Heiden v. Ottinger, 245 Ill. App. 3d 612 (1993)). The parties
provided in the addendum to their legal separation agreement that each party would pay their
own attorney fees and costs. However, as stated previously, the right to attorney fees and costs
belongs to the attorney, not to either of the parties. Lee, 302 Ill. App. 3d at 612 (citing Baltzer,
150 Ill. App. 3d at 893). Therefore, a marital settlement agreement (or, as in this case, an
agreement of legal separation) purporting to allocate attorney fees will generally not
extinguish a spouse’s former attorney’s right to pursue an award of fees from the other spouse.
Lee, 302 Ill. App. 3d at 612-13. The parties are free to settle the division and allocation of their
property, assets and liability but their agreement is not binding on third party creditors such as
prior counsel. Lee, 302 Ill. App. 3d at 614. They “cannot waive something that belongs to
someone else.” Rocca, 408 Ill. App. 3d at 969. Accordingly, neither party can waive by their
agreement Canulli’s statutory right to pursue or request a hearing on a claim for attorney fees
and costs against Sandra. Rocca, 408 Ill. App. 3d at 969-70; Lee, 302 Ill. App. 3d at 614.
Canulli was within his rights to pursue Sandra for contribution to attorney fees.
¶ 50 For the foregoing reasons, the circuit court erred in granting summary judgment to Sandra
on Canulli’s contribution petition against her. Where, as here, attorney fees are contested, the
court must conduct a hearing on the issue to allow the attorney to present evidence in support
of the petition, including evidence of the opposing spouse’s ability to pay his attorney fees.
Lee, 302 Ill. App. 3d at 613. Accordingly, we reverse and remand for a hearing on Canulli’s
petition for contribution against Sandra.
¶ 51 It would be precipitous of us to vacate the judgment of legal separation at this time. We
leave it to the circuit court to determine, pending the outcome of the hearing on the petition for
contribution, whether the parties’ agreement for legal separation must be modified. We also
leave to the trial court the interesting question, which has not been briefed before us, as to what
effect the bankruptcy discharge has on Canulli’s petition against Sandra.

¶ 52 Remaining Issues
¶ 53 Given our determination that the circuit court erred in granting summary judgment to
Sandra, we need not address Canulli’s arguments regarding Sandra’s waiver and revestment of
the court’s jurisdiction. Lastly, with regard to Canulli’s request that we assign this case to a
different trial judge on remand, we find no evidence to support Canulli’s assertion that the
original judge’s actions “are at least suggestive of some degree of prejudice” and deny his
request.

6
There is no copy of the relevant pleading in the record and we cannot, therefore, determine its
content.

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¶ 54 CONCLUSION
¶ 55 For the reasons stated above, we reverse the grant of summary judgment to Sandra on
Canulli’s petition for contribution and remand for a hearing on the petition.

¶ 56 Reversed and remanded.

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