dissenting:
I respectfully dissent. While the majority opinion correctly states the general rule that a trial court lacks jurisdiction beyond 30 days after entry of a final order in an action, it fails to adequately address Didzerekis’ arguments that sections 508(a)(1) and (5) grant him the standing to pursue his action for fees as a party in interest in the present suit.
The appellate court has held that once a dissolution of marriage proceeding has been dismissed, an attorney’s only proper remedy for fees is in a separate action at law, not in an adjunct hearing to the matrimonial action. (In re Marriage of Erby (1980), 84 Ill. App. 3d 672, 676, 406 N.E.2d 79; see also In re Marriage of Reczek (1981), 95 Ill. App. 3d 220, 221, 420 N.E.2d 161.) It would appear that this holding applies even where the petition for fees is filed before the dismissal of the action or within 30 days of the dismissal. More recent cases, however, have held that the circuit court retains jurisdiction to hear the issue of attorney fees and to enter an award of attorney fees under section 508 after the death of a party to a dissolution of marriage proceeding while the proceedings are pending (In re Marriage of Dague (1985), 136 Ill. App. 3d 297, 300, 483 N.E.2d 322) or after the dismissal of the post-dissolution of marriage proceedings upon the remarriage of the parties (In re Marriage of Conway (1986), 139 Ill. App. 3d 1062, 1065-66, 487 N.E.2d 1240). In these later appellate court decisions, the rationale for the court’s retaining jurisdiction is that the attorneys in a dissolution of marriage proceeding are parties in interest in an action for fees and have standing to pursue the action themselves. (In re Marriage of Dague (1985), 136 Ill. App. 3d 297, 300, 483 N.E.2d 322.) Of course, the petition for fees under these circumstances must be filed while the proceedings are pending or within 30 days after entry of a final judgment. See In re Marriage of Baltzer (1986), 150 Ill. App. 3d 890, 895, 502 N.E.2d 459.
I agree with the husband’s statement that section 508 does not contain a specific statutory grant of authority to award the attorney fees sought herein for legal services rendered in a previously dismissed suit. Nevertheless, the comprehensive provisions in section 508 for an award of attorney fees in connection with “any proceeding” under the Act indicate a legislative intent to authorize the circuit court to award attorney fees under the unique facts here. This is particularly so as it would promote judicial economy by eliminating the necessity of filing a separate suit for fees or a timely action in the previously dismissed suit. It is also reasonable to proceed on this petition for attorney fees in the present proceeding where the court will be considering the financial resources of the parties in distributing the property and in allocating additional attorney fees awards between the same parties, if appropriate, for their attorneys in the present action. The present action is between the same parties and encompasses the same issues as the prior suit. The present cause was filed the day after the dismissal of the prior action. The fees sought were alleged to be for legal services related to the same issues present in both proceedings. (Cf. Sidwell v. Sidwell (1975), 28 Ill. App. 3d 580, 585, 328 N.E.2d 595.) Under these peculiar circumstances, I conclude that the petition for fees was in connection with the maintenance or defense of “any proceeding” under the Act (Ill. Rev. Stat. 1985, ch. 40, par. 508(a)(l)) and was improperly dismissed by the trial court.
In addition, under section 508(a)(5) attorney fees may be awarded in connection with the legal services of an attorney rendered “in preparation of the commencement of the proceeding brought under this Act.” (Ill. Rev. Stat. 1985, ch. 40, par. 508(a)(5).) The fees sought here were alleged to be for legal services related to the same issues present in both proceedings. Thus, Didzerekis has made a showing in his petition that he has standing to maintain his action for attorney fees under section 508(a)(5) as well.
Of course, on remand Didzerekis will have the burden to show that the legal services for which he requests an award of attorney fees were rendered in connection with the proceeding under the Act and were reasonable. I would also add that from my observation of appellate decisions in domestic relations cases, it is not unusual for one of the parties to substitute attorneys during the trial court proceedings. If a new petition for dissolution of marriage were filed with any frequency under these circumstances, the orderly disposition of the attorney fees issue would be disrupted if, in situations like the present one, a separate proceeding was required in order to award attorney fees to the prior attorney in a previous action.