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Appellate Court Date: 2020.12.30
12:59:46 -06'00'
In re Marriage of Gabriel, 2020 IL App (1st) 191840
Appellate Court In re MARRIAGE OF MICHELLE GABRIEL, Petitioner-Appellee,
Caption and HASSAMO SHAMOUN, Respondent-Appellant.
District & No. First District, Fourth Division
No. 1-19-1840
Filed August 20, 2020
Decision Under Appeal from the Circuit Court of Cook County, No. 17-D2-30433; the
Review Hon. Jeanne M. Reynolds, Judge, presiding.
Judgment Appeal dismissed.
Counsel on Alexander Michael, of Michael D. Ettinger & Associates, of Palos
Appeal Heights, for appellant.
David C. Adams and Laura M. Presto, of Grund & Leavitt, P.C., of
Highland Park, for appellee.
Panel JUSTICE LAMPKIN delivered the judgment of the court, with
opinion.
Presiding Justice Gordon and Justice Reyes concurred in the judgment
and opinion.
OPINION
¶1 Respondent Hassamo Shamoun (Sam) appeals from an order of the circuit court awarding
petitioner Michelle Gabriel interim attorney fees in connection with Sam’s earlier appeal of
the circuit court’s judgment dissolving the parties’ marriage. For the following reasons, we
dismiss the appeal for lack of jurisdiction. 1
¶2 I. BACKGROUND
¶3 In November 2018, the circuit court entered a final judgment dissolving Michelle and
Sam’s marriage. Among other things, the judgment awarded Michelle maintenance of
$1402.42 per month for 24.3 months, ordered Sam to pay child support of $1500 per month
(an upward deviation from the statutory guidelines), and ordered Sam to contribute $15,000 to
Michelle’s attorney fees. Sam appealed.
¶4 On March 31, 2020, we issued an opinion affirming the judgment in part and reversing in
part. In re Marriage of Gabriel, 2020 IL App (1st) 182710. As relevant here, we held that the
circuit court erred in calculating Sam’s presumptive child support obligation under the
guidelines by failing to adjust the parties’ respective net incomes to account for the amount of
maintenance that Sam was ordered to pay Michelle. Id. ¶¶ 57-58. While we concluded that the
circuit court did not abuse its discretion in determining that an upward deviation from the
guidelines was warranted (id. ¶¶ 60-65), we nevertheless reversed the child support award
because it was unclear whether the court’s decision to deviate from the guidelines (and the
extent of the deviation) was influenced by the court’s miscalculation of the parties’ respective
net incomes (id. ¶ 66). We instructed the circuit court on remand to recalculate Sam’s guideline
child support obligation and reconsider whether a deviation from the guideline amount is
warranted.
¶5 In June 2019, while the prior appeal was pending, Michelle filed a petition in the circuit
court for interim attorney fees related to the appeal. In the petition, Michelle asserted that
defending the appeal would require her attorneys, David C. Adams and Laura M. Presto, to
spend “substantial time” reviewing Sam’s opening brief and the record on appeal, researching
and drafting her response brief, reviewing Sam’s reply brief, and preparing for and presenting
oral argument, if necessary. Michelle asserted that, based on their experience, Presto was
entitled to charge $400 per hour for office time and $450 per hour for court time, and Adams
was entitled to charge $500 per hour for office time and $550 per hour for court time. Without
providing an estimate of the number of hours of office time or court time that either attorney
expected to expend on the appeal, Michelle requested an award of $25,000 in prospective
attorney fees for the appeal. She asserted that Sam had the financial resources to pay such fees
while she did not. In support of that argument, Michelle alleged (among other things) that Sam
had failed to make his required maintenance and child support payments.
¶6 In response, Sam alleged that he was complying with his maintenance and child support
obligations and argued that those payments significantly reduced any disparity in the parties’
respective resources. In addition, repeating an argument raised in his then-pending appeal, Sam
claimed that the circuit court had overstated his income and that, based on his actual income,
In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this
1
appeal has been resolved without oral argument upon the entry of a separate written order.
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he lacked the ability to pay Michelle’s attorney fees. 2 Finally, Sam argued that Michelle’s
request for $25,000 in attorney fees was unreasonable in light of the “relatively
straightforward” nature of the appeal, the limited appellate record, and the fact that Michelle’s
appellate attorneys had represented her at trial and were thus familiar with the case.
¶7 On August 19, 2019, after a hearing, the circuit court granted Michelle’s petition for
$25,000 in interim attorney fees related to the then-pending appeal. The court found that the
amount of fees requested by Michelle was reasonable. In addition, after reviewing the parties’
financial affidavits and supporting documents, including Sam’s bank statements, the court
found that Sam had the ability to pay Michelle’s attorney fees and that Michelle did not. In
particular, the court found Sam’s assertion that he lacked the ability to pay the fees “totally
disingenuous.” The court also rejected Sam’s contention that his maintenance and child support
obligations equalized the parties’ respective resources, finding that Sam “[had] not been paying
the maintenance and child support despite having the funds available” to do so. On September
11, 2019, Sam filed a notice of appeal.
¶8 II. ANALYSIS
¶9 On appeal, Sam contends that the circuit court abused its discretion in awarding Michelle
$25,000 in interim attorney fees to defend against his prior appeal of the circuit court’s
dissolution judgment. Before we may consider the merits of Sam’s appeal, however, we must
assess whether we have appellate jurisdiction. Michelle argues that we lack jurisdiction
because the circuit court’s order awarding interim attorney fees is not a final and appealable
order. We agree.
¶ 10 Under the Illinois Marriage and Dissolution of Marriage Act (Act), “[t]he 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.” 750 ILCS 5/508(a) (West 2018). This provision allows the court to award
interim attorney fees during the pendency of the proceedings and make a final award of
attorney fees once the proceedings have concluded. See id. As relevant here, such fees may be
awarded in connection with “[t]he defense of an appeal of any order or judgment under this
Act.” Id. § 508(a)(3).
¶ 11 Interim attorney fees are those that are “assessed from time to time while a case is pending,
in favor of the petitioning party’s current counsel, for reasonable fees *** either already
incurred or to be incurred.” Id. § 501(c-1). The purpose of awarding interim attorney fees is
“to level the playing field by equalizing the parties[’] litigation resources where it is shown
that one party can pay and the other party cannot.” In re Marriage of Beyer, 324 Ill. App. 3d
305, 315 (2001). An award of interim attorney fees is made “without prejudice to any final
allocation [of attorney fees] and without prejudice as to any claim or right of either party or
any counsel of record at the time of the award.” 750 ILCS 5/501(c-1)(2) (West 2018). “Any
such claim or right may be presented by the appropriate party or counsel at a hearing on
contribution under [section 503(j)] or a hearing on counsel’s fees under [section 508(c)].” Id.
2
In resolving Sam’s prior appeal, we rejected his contention that the circuit court abused its
discretion in using the average of his 2016 and 2017 income when calculating his income for
maintenance and child support purposes. In re Marriage of Gabriel, 2020 IL App (1st) 182710, ¶¶ 39-
44.
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“Any portion of any interim award constituting an overpayment shall be remitted back to the
appropriate party or parties, or, alternatively, to successor counsel, as the court determines and
directs ***.” Id.
¶ 12 As these provisions make clear, an award of interim attorney fees “is strictly temporary in
nature” and “subject to adjustment (including, if necessary, the disgorgement of overpayments
to an attorney) at the close of the dissolution proceeding.” In re Marriage of Arjmand, 2017 IL
App (2d) 160631, ¶ 20. For that reason, the appellate court has consistently recognized that
orders awarding interim attorney fees are not final and appealable. See id. ¶ 21 (“the
interlocutory appeal of interim-attorney-fee awards is not permitted by any supreme court
rule”); In re Marriage of Radzik, 2011 IL App (2d) 100374, ¶ 45 (“a court order awarding
interim attorney fees under section 501(c-1) of the Act is not an appealable interlocutory
order”); In re Marriage of Johnson, 351 Ill. App. 3d 88, 96 (2004) (“interim awards are treated
as interlocutory orders and are not subject to appeal”); In re Marriage of Tetzlaff, 304 Ill. App.
3d 1030, 1031 (1999) (“court orders awarding interim attorney fees pursuant to section 501(c-
1) of the Act are not subject to interlocutory appeal”).
¶ 13 Sam argues that these cases are distinguishable because they involved interim attorney fee
awards made in prejudgment proceedings, whereas the fee award here was made after
judgment had been entered, in connection with an appeal of the judgment. But section 508(a)
provides that “[i]nterim attorney’s fees *** may be awarded *** in a pre-judgment dissolution
proceeding in accordance with [section 501(c-1)] and in any other proceeding under this
subsection.” (Emphasis added.) 750 ILCS 5/508(a) (West 2018). The proceedings in which
attorney fees may be awarded under that subsection include “[t]he defense of an appeal of any
order or judgment under this Act.” Id. § 508(a)(3). In light of the plain language of section
508(a) and its express reference to section 501(c-1), this court has previously held that section
501(c-1) likewise applies in both prejudgment and postjudgment proceedings under the Act.
See Beyer, 324 Ill. App. 3d at 314 (“Under a plain reading of the statute, we conclude the
legislature intended section 501(c-1) to apply in postdecree proceedings.”); In re Marriage of
Oleksy, 337 Ill. App. 3d 946, 950 (2003) (“Section 501(c-1) applies to both predissolution and
postdissolution decree proceedings.”).
¶ 14 Sam further argues that the circuit court’s order awarding attorney fees in connection with
the prior appeal was a final fee award rather than an interim fee award because briefing on the
appeal was complete at the time the circuit court entered its order. But what matters is that the
appeal was still pending. Although we ultimately decided the appeal without oral argument,
neither the circuit court nor the parties could have known that would be the case, either at the
time Michelle petitioned for attorney fees or when the circuit court entered its order. Indeed,
in her fee petition, Michelle noted that the appeal might involve a “possible oral argument”
and discussed the fees her attorneys charged for time spent in court. We thus construe the
court’s attorney fee award as covering both fees that Michelle had already incurred as well as
those that she reasonably might incur during the remaining pendency of the appeal. See 750
ILCS 5/501(c-1) (West 2018) (interim attorney fees may be awarded “for reasonable fees and
costs either already incurred or to be incurred”). Now that the appeal is complete, the circuit
court will be able to assess the actual amount of attorney fees that Michelle incurred in
connection with the appeal when making a final award of attorney fees. If the amount of fees
actually incurred is less than was anticipated by the court when it entered the interim fee award,
the court will be able to make appropriate adjustments in its final fee award. See Arjmand,
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2017 IL App (2d) 160631, ¶ 20 (award of interim attorney fees is “subject to adjustment
(including, if necessary, the disgorgement of overpayments to an attorney) at the close of the
dissolution proceeding”).
¶ 15 Finally, even if the circuit court’s fee award would have otherwise been final, our
subsequent decision partially reversing the court’s underlying dissolution judgment and
remanding for further proceedings rendered the fee award interlocutory. As we recently
explained in In re Marriage of Crecos, 2020 IL App (1st) 182211, ¶ 18, “when the trial court
awards fees for an appeal in a divorce case and the trial court has issues other than fees still
pending, the award grants interim fees not subject to immediate appeal.” In Crecos, the trial
court awarded the wife attorney fees for two prior (completed) appeals, and the husband
appealed the fee awards. Id. ¶¶ 3-7. Because one of the appeals resulted in a remand for further
proceedings, we concluded that the fee awards were necessarily interim in nature and not
subject to immediate appeal. “Because issues remain pending,” we explained, “the trial court
may reconsider its initial allocation of attorney fees, and provide for an assessment of further
attorney fees in connection with the pending issues, in its final judgment.” Id. ¶ 13. For that
reason, we held that the circuit court’s fee award for the prior appeals was “not a final judgment
ripe for appellate review.” Id. ¶ 21.
¶ 16 Although the procedural posture here is somewhat different, the same principle applies.
Because the issue of child support is currently pending in the circuit court following our
resolution of Sam’s prior appeal, the circuit court’s award of attorney fees related to that appeal
is necessarily interlocutory. As Crecos explained, after the circuit court resolves the child
support issue, it may then “reconsider its initial allocation of attorney fees [for the prior appeal],
and provide for an assessment of further attorney fees in connection with the [remand
proceedings], in its final judgment.” Id. ¶ 13.
¶ 17 Because the circuit court’s attorney fee award remains open to modification, the award was
necessarily an interim fee award that is not subject to immediate appeal. We therefore must
dismiss this appeal for lack of appellate jurisdiction. In light of this disposition, we do not
address Sam’s contentions regarding the reasonableness of the attorney fees incurred by
Michelle or his ability to pay them. These are matters that the circuit court will be able to
reassess when entering any final fee award.
¶ 18 III. CONCLUSION
¶ 19 For the foregoing reasons, we dismiss this appeal for lack of appellate jurisdiction.
¶ 20 Appeal dismissed.
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