2016 IL App (2d) 150898
No. 2-15-0898
Opinion filed March 11, 2016
_____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
In re MARRIAGE OF ) Appeal from the Circuit Court
KIMBERLI PICKERING, ) of Du Page County.
)
Petitioner-Appellee, )
)
and ) No. 12-D-209
)
ROBERT PICKERING, ) Honorable
) Robert E. Douglas,
Respondent-Appellant. ) Judge, Presiding.
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JUSTICE BIRKETT delivered the judgment of the court, with opinion.
Justices McLaren and Jorgensen concurred in the judgment and opinion.
OPINION
¶1 Petitioner, Kimberli Pickering, and respondent, Robert Pickering, filed postdissolution
contempt petitions against each other. Petitioner was pro se; respondent had counsel. After a
hearing on both petitions, the trial court found both parties in contempt. The court awarded
respondent attorney fees under section 508(b) of the Illinois Marriage and Dissolution of
Marriage Act (Act) (750 ILCS 5/508(b) (West 2014)) and awarded petitioner lost wages
representing the time that she had spent preparing and arguing her petition. Respondent appeals,
contending that (1) the court exceeded its authority under the Act by awarding petitioner lost
wages; and alternatively (2) even if the Act authorized the award, the amount was excessive. We
agree with respondent’s first contention, and we affirm in part and reverse in part.
2016 IL App (2d) 150898
¶2 The parties were married in 2002 and have a daughter. By a judgment dated December
12, 2012, the trial court dissolved their marriage. On September 23, 2014, petitioner filed a pro
se petition for a rule to show cause, alleging that, in violation of the judgment, respondent had
willfully refused to refinance the mortgage on the former marital residence or timely list the
home for sale. On October 28, 2014, respondent filed his petition, alleging that petitioner had
violated the judgment by failing to contribute to their daughter’s educational expenses and
failing to pay expenses associated with a vehicle. The trial court issued rules to show cause.
¶3 On March 2, 2015, the court held an evidentiary hearing on both petitions and found both
parties in indirect civil contempt. The court ordered respondent to place the former marital home
for sale within 30 days and ordered petitioner to pay respondent $1,940.93 within 30 days.
Respondent’s attorney then requested leave to file a fee petition. The court responded, “You can,
but I’m not going to entertain a fee petition for [petitioner], not a fee petition, but if she has lost
wages, I’ll entertain a lost wages petition ***. *** Her for lost wages. You for a fee petition.”
¶4 At a hearing on August 11, 2015, respondent’s attorney submitted a fee petition for
$3,747.70. The trial court approved $2,997.70. Petitioner submitted a petition for lost wages.
Respondent objected that the Act does not allow reimbursing the lost wages of a pro se litigant.
He also argued that petitioner’s request was excessive for the work involved and that there was
no proof that she had missed any work in order to litigate her petition. The trial court responded:
“You say there is no provision in Illinois for me to award lost wages to a pro se litigant.
So what you are saying is that [a] pro se litigant who spends all their time and loses time
from work is at a disadvantage to the person who pays the attorney because the person
who pays the attorney has to pay nothing because they can come back and say, well, the
other side should pay for my attorney’s fees, but the person who loses time because they
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2016 IL App (2d) 150898
are representing themselves doesn’t get to ask for that same benefit. I find that to be, and
maybe I will get overturned on this, but, I think, the [sic] fundamental fairness says that a
pro se litigant shouldn’t be penalized for representing themselves.”
The court awarded petitioner $1,965, representing 32.75 hours at $60 per hour. The court cited
no statute or case authority for the award. Respondent timely appealed.
¶5 On appeal, respondent contends primarily that the trial court erred as a matter of law in
reimbursing petitioner at all for lost wages in connection with her pro se petition. We agree.
The court simply lacked any authority to make the award. However desirable it might have been
as a matter of policy or fairness, there was no legal basis to require respondent to pay petitioner
for time that she spent representing herself.
¶6 We review de novo the construction of the Act. Murray v. Chicago Youth Center, 224 Ill.
2d 213, 228 (2007). To follow our obligation to effectuate the legislature’s intent, we must give
the statute its plain meaning, without reading in exceptions, limitations, or conditions that
conflict with the express legislative intent. Town & Country Utilities, Inc. v. Illinois Pollution
Control Board, 225 Ill. 2d 103, 117 (2007).
¶7 Section 508(b) of the Act states, “In every proceeding for the enforcement of an order or
judgment when the court finds that the failure to comply with the order or judgment was without
compelling cause or justification, the court shall order the party against whom the proceeding is
brought to pay promptly the costs and reasonable attorney’s fees of the prevailing party.” 750
ILCS 5/508(b) (West 2014). This language does not authorize an award of lost wages or similar
compensation to a pro se litigant for the time that she has spent in litigation under the Act. Such
an award obviously is not one of “attorney’s fees.” See Rosenbaum v. Rosenbaum, 38 Ill. App.
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2016 IL App (2d) 150898
3d 1, 20 (1976) (pro se appellant would not be entitled to appellate attorney fees under Divorce
Act (Ill. Rev. Stat. 1971, ch. 40, ¶ 16)).
¶8 Although petitioner argues that her lost wages can be considered “costs,” that contention
is contrary to the plain and established meaning of the term. Court costs are “allowances in the
nature of incidental damages awarded by law to reimburse the prevailing party, to some extent at
least, for the expenses necessarily incurred in the assertion of his rights in court.” Galowich v.
Beech Aircraft Corp., 92 Ill. 2d 157, 165-66 (1982). We are aware of no authority that extends
the definition of the term beyond actual out-of-pocket expenses for matters such as (for example)
filing fees, subpoena fees, and statutory witness fees (see Burmac Metal Finishing Co. v. West
Bend Mutual Insurance Co., 356 Ill. App. 3d 471, 486 (2005)).
¶9 Although a pro se litigant might suffer economically by spending time on her case, there
is no basis in law to compensate her for the opportunity cost of proceeding pro se. Changing this
situation is for the legislature. The trial court’s award of lost wages must be reversed. In other
respects, the judgment holding respondent in contempt is affirmed.
¶ 10 For the foregoing reasons, we affirm in part and reverse in part the judgment of the
circuit court of Du Page County.
¶ 11 Affirmed in part and reversed in part.
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