NO. 4-09-0306 Filed 1/27/10
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In re: the Marriage of ) Appeal from
JOHN MITCHELL PAL, ) Circuit Court of
Petitioner-Appellee, ) Champaign County
and ) No. 05D627
ANGELA DAWN PAL, )
Respondent, )
v. ) Honorable
MICHAEL D. GUDGEL, ) Arnold F. Blockman,
Intervenor-Appellant. ) Judge Presiding.
_________________________________________________________________
JUSTICE POPE delivered the opinion of the court:
In March 2009, the trial court issued its judgment for
dissolution of marriage, incorporating its denial of intervenor
Michael Gudgel's request for attorney fees and costs. Gudgel
appeals, arguing the court erred in denying his request for
attorney fees and costs under section 508 of the Illinois
Marriage and Dissolution of Marriage Act (Dissolution Act) (750
ILCS 5/508 (West 2008)). We affirm.
I. BACKGROUND
In the fall of 2005, Gudgel began dating respondent,
Angela Dawn Pal. They discussed long-term plans, including
marriage. Gudgel spent considerable time with Angela's two boys,
Camrin M. Pal, age 6, and Erik M. Pal, age 5. The boys were very
comfortable with Gudgel. As Gudgel and Angela's relationship
progressed, Gudgel and Angela discussed Gudgel's intention to
become more involved in the boys' lives.
In November 2005, John Mitchell Pal (Mitch), who was
married to Angela and was the father of Camrin and Erik, filed a
petition for dissolution of marriage. In November 2005, Angela
filed a response to Mitch's petition. In January 2006, Mitch
filed a petition for temporary custody, asking for temporary
custody of the children because Angela was exposing the children
to Gudgel, stating Gudgel had been convicted of murder and home
invasion. The petition alleged Gudgel was a danger to the
children. Soon thereafter, Mitch filed an amended petition for
temporary custody containing the same allegations. Gudgel had
not been convicted of murder or home invasion. However, he had
been convicted of manslaughter, stemming from the death of his
ex-wife following his striking her on the back of her neck with a
baseball bat.
In January 2006, Angela filed a response to Mitch's
petition for temporary custody, denying Mitch's allegations
Gudgel was a danger to the children and that he had been
convicted of murder or home invasion. Angela also filed her own
petition for temporary custody.
In March 2006, the trial court entered a temporary
order, awarding temporary custody of the boys to Angela but
ordering Angela not to allow the boys to have any contact with
Gudgel. In making this restriction, the court noted the
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following: (1) many seemingly reputable people thought highly of
Gudgel, (2) the guardian ad litem found that the children were
very comfortable with Gudgel, and (3) the commission of one
horrendous act should not mean that person should be a "pariah"
for the rest of his life. However, the court noted it needed to
err on the side of caution. According to the court:
"And it's not so much just the 1980
murder, I think it's a combination of some of
the other charges. There was a misdemeanor
conviction. The testimony about depression
and post-traumatic stress syndrome. I just
want a professional person to take a look at
this and give me an opinion.
*** I don't blame [Mitch] for being
concerned about the situation with [Gudgel].
Certainly, it's legitimate to raise those
concerns with the [c]ourt."
The court stated it would consider eliminating this condition
after a professional evaluation of Gudgel could be performed to
determine whether Gudgel posed any danger to the boys and was an
appropriate person to be in the same household with the children.
The court ordered Angela to pay for the cost of the evaluation.
Because the parties could not agree on who the evaluator should
be, the court, after hearing arguments, determined Dr. Mel French
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would be the evaluator.
In May 2006, Gudgel filed a petition to intervene
pursuant to section 2-408 of the Code of Civil Procedure (Code)
(735 ILCS 5/2-408 (West 2006)). Gudgel alleged he had a real
interest in the outcome of the litigation because the court's
judgment could impair his ability to interact with Angela's
children. According to Gudgel, because he was not a party to the
litigation, he was unable to defend himself against the
allegations made by Mitch. Further, the court's temporary order
effectively prohibited him from having contact with the boys
unless he submitted himself and his medical records for a
professional evaluation. On the same day he filed his petition
to intervene, Gudgel also filed a motion for sanctions and a
motion to strike. These motions involved the allegations in
Mitch's pleadings regarding Gudgel's criminal history.
In June 2006, the trial court held a hearing on
Gudgel's petition to intervene. After hearing arguments, the
court allowed Gudgel to intervene over Mitch's objection. The
court's order stated Gudgel was "granted leave to intervene
through final determination of the issues of custody, visitation,
[and] any contribution by [Gudgel]." Later that month, the court
denied Gudgel's motion to strike and motion for sanctions,
finding sufficient evidence had been presented that Gudgel had
been convicted of a serious crime (i.e., voluntary manslaughter)
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and that sanctions were unnecessary. After the motions were
denied, Mitch moved to amend instanter his amended petition for
temporary custody to remove references to convictions for murder
and home invasion.
In August 2006, Gudgel filed a motion seeking an order
eliminating the no-contact restrictions imposed by the trial
court's temporary order filed on March 30, 2006. The motion
stated Dr. French had completed his evaluation and had prepared
and submitted to the court and to counsel for the parties a
written report of Gudgel's psychological evaluation.
Later that same month, the trial court lifted the no-
contact restrictions placed on Angela with regard to the children
and Gudgel. According to the court, Dr. French's report
recommended the no-contact restrictions be lifted immediately.
Dr. French's report concluded Gudgel posed no serious danger to
the children.
In February 2008, Gudgel filed a motion for attorney
fees and costs, seeking reimbursement from Mitch for the $2,525
in fees and costs for Dr. French's evaluation, as well as his
reasonable attorney fees and costs as a matter of equity. His
motion failed to cite any section of the Dissolution Act.
However, at an April 2008 hearing, Gudgel asserted he
was proceeding under the Dissolution Act. At the hearing, the
trial court and respective counsel for Gudgel, Mitch, and Angela
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engaged in an extensive discussion regarding Gudgel's alleged
right to attorney fees under the Dissolution Act. At the
beginning of the hearing, the court indicated doubt about whether
an intervenor could avail himself of the attorney-fee provisions
of the Dissolution Act. The court noted the final contribution
provisions appear to be directed at the factors used to determine
maintenance or the division of property. The court also stated
it believed the attorney-fee provisions were part of the whole
concept of leveling the playing field for the respective spouses
during the pendency of the dissolution proceeding.
According to the trial court, an intervenor could try
to collect attorney fees pursuant to Supreme Court Rule 137 (155
Ill. 2d R. 137). However, the court noted an intervenor would
not have a right to attorney fees regardless of how he fared
absent some other statutory right. This led the parties back to
a discussion about the applicability of the attorney-fee
provisions in the Dissolution Act to an intervenor.
Gudgel argued that as an intervenor he had the same
rights as the original parties to the action. According to
Gudgel's argument, the trial court could award him attorney fees
under the Dissolution Act because the Dissolution Act allows
trial courts to reallocate attorney fees among the parties and it
does not expressly forbid a court from awarding attorney fees to
an intervening party who is not a spouse.
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The trial court recognized this was an issue of first
impression. The court asked Gudgel's counsel what factors it
should consider in determining the reallocation of attorney fees,
since the Dissolution Act directed courts to base their decision
on "the criteria for division of marital property under this
[s]ection 503 and, if maintenance has been awarded, on the
criteria for an award of maintenance under [s]ection 504." 750
ILCS 5/5-503(j)(2) (West 2006). Gudgel argued the court should
consider equity. The court noted it thought it could consider
equity under section 508(b) of the Dissolution Act (750 ILCS 5/5-
508(b) (West 2006)). According to the court, this was the only
basis it could possibly see for an attorney-fee award to Gudgel.
While the court stated it was still having problems with Gudgel's
argument because it did not believe Gudgel had the same rights to
attorney fees as Mitch and Angela under the Dissolution Act, it
later stated it thought section 508(b) might be applicable. In
making its ruling, the court stated in part as follows:
"I don't find any independent proceeding
for an Intervenor to obtain attorney fees on
an equitable basis under the statute. The
only possible way that I see that there could
be an attorney fee request is under 508(b)
***. That language is not limited to using
factors for division of property or
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maintenance or anything of that situation.
So the question is, does the Court find
that this proceeding, whereby Mr. Pal sought
to have Mr. Gudgel restricted from being
around the children in this case *** was for
an improper purpose? Was it designed to
harass, create unnecessary delay or other
acts needlessly increasing the cost of
litigation?"
The court then quoted its previous ruling on Mitch's motion for
temporary custody:
"'[I]t's the job of the Court, if there's an
error here, to err on the side of caution.
Because I've got these children and we've had
concerns raised about the children being
around Mr. Gudgel. It's not so much just the
1980 murder. I think it's a combination of
all the other charges. However, I don't
blame Mr. Pal for being concerned about the
situation with Mr. Gudgel. Certainly, its
legitimate to raise these concerns with the
Court.'"
The trial court noted it granted Mitch's motion to
restrict Gudgel's access to the children until an evaluation
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could be performed. As a result, the court stated it would not
find Gudgel was entitled to attorney fees pursuant to section
508(b), assuming section 508(b) allowed a trial court to award
attorney fees to an intervenor.
In January 2009, Gudgel renewed his request for his
attorney fees and costs originally set forth in his February 2008
motion. The trial court denied the motion for the same reasons
it used to deny his first request for attorney fees and costs.
On March 31, 2009, the trial court entered a final
judgment for dissolution of marriage. The written final judgment
expressly noted the denial of Gudgel's second request for
attorney fees.
This appeal followed.
II. ANALYSIS
Gudgel argues the trial court erred in interpreting the
Dissolution Act to foreclose an independent proceeding in which a
non-spouse intervenor could bring a petition for attorney fees
and costs pursuant to section 508 of the Dissolution Act (750
ILCS 5/508 (West 2006)). The issue in this case is one of
statutory construction, which we review de novo. In re Marriage
of Rogers, 213 Ill. 2d 129, 135-36, 820 N.E.2d 386, 389-90
(2004).
A. Jurisdiction
Although Mitch does not challenge this court's
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jurisdiction, an appellate court has an independent duty to
determine whether it has jurisdiction over an appeal. Jackson v.
Alverez, 358 Ill. App. 3d 555, 558, 831 N.E.2d 1159, 1162 (2005).
The issue as we see it is whether Gudgel should have appealed the
denial of his motion for attorney fees and costs after it was
denied the first time in a written order in May 2008. At the
hearing on Gudgel's motion in April 2008, after orally denying
the motion, the trial court discussed whether a finding under
Supreme Court Rule 304(a) (210 Ill. 2d R. 304(a)) was
appropriate. The court determined it was not appropriate to make
a Rule 304(a) finding because Gudgel was still seeking other
relief. Part of the relief Gudgel sought was the inclusion of
language in the marital settlement agreement concerning his
ability to have contact with the children. As a result, we find
Gudgel has filed a timely notice of appeal on April 27, 2009,
after the trial court entered its judgment of dissolution of
marriage on March 31, 2009. See 210 Ill. 2d R. 303(a)(1).
B. Trial Court's Ruling
The trial court's May 2008 written order offers no
explanation as to why it denied Gudgel's motion for attorney fees
and costs. However, it appears clear from the trial court's oral
ruling in April 2008 it found it could not award attorney fees
and costs to Gudgel pursuant to section 508(a) of the Dissolution
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Act (750 ILCS 5/508(a) (West 2006)) because Gudgel was only an
intervenor. With regard to section 508(b), the trial court never
definitively stated whether it concluded a court could award an
intervenor attorney fees and costs pursuant to section 508(b) of
the Dissolution Act. However, the trial court clearly stated
assuming an intervenor could receive attorney fees pursuant to
section 508(b), Gudgel was not entitled to them because Mitch did
not seek the restrictions on Gudgel's contact with the children
for any improper purpose.
Based on our reading of the entire transcript of the
April 2008 hearing on Gudgel's motion for attorney fees and
costs, we conclude the trial court found it could not award
attorney fees and costs to a non-spouse intervenor pursuant to
section 508(a), but that it could award attorney fees to an
intervenor pursuant to section 508(b) in certain situations.
During the hearing, the trial court stated it thought section
508(b) might be applicable to intervenors. The court noted it
made sense to award attorney fees to an intervenor when a party
or counsel was found to have acted improperly in an effort to
harass, cause delay, or needlessly increase the cost of
litigation. In addition, the court noted the language in section
508(b) is not limited to using the factors for the division of
marital property or for determining maintenance. However, on the
merits, the trial court refused to award fees because it found
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Mitch's temporary-custody petition was not filed for an improper
purpose.
C. Applicability of Section 508 of the Dissolution
Act to Non-Spouse Intervenors
1. Section 508(a)
We next address Gudgel's argument the trial court erred
in finding an intervenor is not eligible to collect attorney fees
pursuant to section 508(a) of the Dissolution Act (750 ILCS
5/508(a) (West 2006)). Gudgel argues section 2-408 of the Code
(735 ILCS 5/2-408 (West 2006)) provides an intervenor has all the
rights of an original party in the underlying action. According
to Gudgel, one of the rights available to an original party in a
dissolution proceeding is the right to petition a trial court for
an award of attorney fees. Gudgel argues he is eligible for
attorney fees under section 508(a) even though he is not a spouse
because section 508(a) refers to parties, not spouses. According
to Gudgel, the Dissolution Act distinguishes between spouses and
parties. The term "spouse" refers to a party based on his or her
connection to the marriage at issue in the dissolution
proceeding. On the other hand, according to Gudgel, "party"
describes a broader category of litigants. In a divorce case,
the spouses are necessarily parties. However, not all "parties"
are "spouses." While an intervenor is never a spouse in a
dissolution proceeding, an intervenor is a party to the
dissolution proceeding by virtue of the plain language of section
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2-408 of the Code (735 ILCS 5/2-408 (West 2006)).
Whether Gudgel is eligible to receive attorney fees
pursuant to section 508(a) is a question of statutory
construction and also a question of first impression. We must
determine whether the General Assembly intended for an intervenor
to be eligible for attorney fees under section 508(a) of the
Dissolution Act (750 ILCS 5/508(a) (West 2006)). Section 508(a)
states:
"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
accordance with subsection (c-1) of [s]ection
501. At the conclusion of the case,
contribution to attorney's fees and costs may
be awarded from the opposing party in
accordance with subsection (j) of [s]ection
503. Fees and costs may be awarded to
counsel from a former client in accordance
with subsection (c) of this [s]ection." 750
ILCS 5/508(a) (West 2006).
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The plain and ordinary meaning of the Dissolution Act's
language is the best indicator of the legislature's intent. In
re Marriage of Murphy, 203 Ill. 2d 212, 219, 786 N.E.2d 132, 136
(2003). The statute should be read as a whole with all relevant
parts considered. In re Marriage of Kates, 198 Ill. 2d 156, 163,
761 N.E.2d 153, 157 (2001).
The General Assembly included a section in the
Dissolution Act explaining the purpose and construction of the
Dissolution Act, which neither party cites. See 750 ILCS 5/102
(West 2006). Section 102 states in relevant part:
"This Act shall be liberally construed
and applied to promote its underlying
purposes, which are to:
* * *
(5) make reasonable provision for
spouses and minor children during and after
litigation, including provision for timely
awards of interim fees to achieve substantial
parity in parties' access to funds for
litigation costs[.]" 750 ILCS 5/102(5) (West
2006).
Illinois normally follows the "American Rule," which
stands for the proposition that a party is responsible for his or
her own attorney fees. See Brundidge v. Glendale Federal Bank,
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F.S.B., 168 Ill. 2d 235, 238, 659 N.E.2d 909, 911 (1995). In
enacting section 508 of the Dissolution Act, the General Assembly
wanted courts to be able to ignore the "American Rule" so that a
spouse with greater financial resources would not have an unfair
advantage in dissolution proceedings. James T. Haddon, Ltd. v.
Weiss, 342 Ill. App. 3d 144, 147, 796 N.E.2d 109, 112 (2003).
The purpose of the Dissolution Act is to make
reasonable provision for spouses and minor children during and
after litigation to achieve substantial parity in the parties'
access to funds for litigation costs. See 750 ILCS 5/102(5)
(West 2006). Thus, the General Assembly clearly intended section
508(a) of the Dissolution Act to apply to spouses and not
intervenors. In addition to the stated purpose found in section
102(5), the language of section 508(a) is telling of the
legislature's intent. While the General Assembly used the term
"party" in section 508(a), the section only refers to two
parties. According to section 508(a):
"The court *** may order any party to
pay a reasonable amount for his own or the
other party's *** attorney's fees. Interim
attorney's fees *** may be awarded from the
opposing party ***. At the conclusion of the
case, contribution to attorney's fees *** may
be awarded from the opposing party in
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accordance with subsection (j) of [s]ection
503." (Emphases added.) 750 ILCS 5/508(a)
(West 2006).
An intervenor is not an "opposing" party in a dissolution action.
The spouses are the "opposing" parties. An intervenor is someone
who is merely allowed to join an action in order to assert or
protect an interest that may be affected by a court's order.
In addition, in awarding fees under section 508(a), the
court is to do so in accordance with section 503(j) (750 ILCS
5/503(j) (West 2006)). The language of section 503(j)(2) (750
ILCS 5/503(j)(2) (West 2006)) refers to an award of contribution
"to one party from the other party." (Emphasis added.) Thus,
the language of section 503(j)(2) also makes clear only two
parties, the spouses, are involved when making an award of
attorney fees. Moreover, section 503(j) instructs trial courts
to award attorney fees based on the criteria for division of
marital property under section 503(d) and, if maintenance is
awarded, the criteria for an award of maintenance under section
504. Those factors include such matters as the duration of the
marriage, the relevant economic circumstances of each spouse, the
value of property assigned to each spouse, et cetera. See 750
ILCS 5/504(a) (West 2006). These factors are not applicable to
someone who was not a spouse in the marital relationship. As a
result, we find the trial court correctly concluded an intervenor
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is not eligible for attorney fees pursuant to section 508(a) of
the Dissolution Act (750 ILCS 5/508(a) (West 2006)).
2. Section 508(b)
We need not address whether the trial court erred in
finding a court can award an intervenor attorney fees pursuant to
section 508(b) of the Dissolution Act (750 ILCS 5/508(b) (West
2006)) to affirm the trial court. This court can affirm on any
basis found in the record.
Gudgel's only contention is the trial court did not
make a legal conclusion with regard to an intervenor's ability to
receive attorney fees pursuant to section 508(b). However, as we
stated earlier, the trial court did conclude an intervenor can
collect attorney fees pursuant to section 508(b). To reverse the
trial court we would have to find the trial court erred in its
ruling on the merits denying Gudgel attorney fees.
Gudgel makes no argument regarding the trial court's
decision on the merits of his claim for attorney fees under
section 508(b). In fact, Gudgel specifically states this court
does not need to consider whether the trial court's ruling on the
merits was correct if this court concludes the trial court found
section 508(b) allows an intervening party to recover an award of
attorney fees from a party spouse.
Because Gudgel does not challenge the trial court's
ultimate ruling on the merits in this case denying Gudgel's
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attorney-fee request pursuant to section 508(b), we can affirm
the trial court's decision on that ground without addressing the
trial court's legal conclusion that a trial court can award an
intervenor attorney fees pursuant to section 508(b) of the
Dissolution Act (750 ILCS 5/508(b) (West 2006)). A ruling on the
correctness of the trial court's legal conclusion is unnecessary
and would be only advisory.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment.
Affirmed.
STEIGMANN, J., concurs.
APPLETON, J., specially concurs.
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JUSTICE APPLETON, specially concurring:
While I agree with the result reached by the majority,
I write separately to address the trial court's possible
confusion here as to whether an intervenor has standing to
request attorney fees. As the majority finds, a finding with
which I agree, fees for an intervenor are not recoverable under
section 508(a) of the Dissolution Act (750 ILCS 5/508(a) (West
2006)). They may be, however, recoverable under section 508(b)
of the Dissolution Act (750 ILCS 5/508(b) (West 2006)) if they
are incurred to defend a pleading filed for an improper purpose.
See In re Marriage of Pillot, 145 Ill. App. 3d 293, 495 N.E.2d
1247 (1986). No such improper purpose was found here.
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