Illinois Appellate Court 1st District

                                             THIRD DIVISION
                                             September 30, 1998



No. 1-97-2937






Appeal from the
Circuit Court of
Cook County

No. 96 D 11525

Anthony L. Young,
Judge Presiding.

     PRESIDING JUSTICE CAHILL delivered the opinion of the court:
     We are asked to deviate from the holding in Watson v. Watson,
335 Ill. App. 637, 82 N.E.2d 671 (1948), that an attorney may not
file a petition for attorney fees in a divorce action after the
case has been voluntarily dismissed, even though the petition is
filed within 30 days of the dismissal.  The trial court followed
Watson and refused to entertain the petition.  We affirm.
     Wayne Lucht filed a petition for dissolution of marriage on
August 9, 1996.  Six days before the scheduled trial date, June 2,
1997, he moved for voluntary dismissal.  The trial court granted
the petition.  Respondent Errolyn Joyce Lucht then moved for leave
to file a petition for attorney fees.  The motion was denied.  On
June 23, 1997, respondent moved to vacate the order denying her
petition for attorney fees.  The trial court denied the motion, and
it is from that order the respondent filed this timely appeal under
Supreme Court Rule 303 (155 Ill. 2d R. 303(a)(1)). 
     Respondent argues on appeal that she should have been allowed
to file a petition for attorney fees even though the dissolution
proceedings were voluntarily dismissed.  She relies on Nottage v.
Jeka, 274 Ill. App. 3d 235, 653 N.E.2d 803 (1995), rev'd, 172 Ill.
2d 386, 667 N.E.2d 91 (1996) (Nottage I).  In Nottage I, the
plaintiff successfully sued the defendant for breach of contract to
recover attorney fees from a former client in a domestic relations
case.  The defendant appealed, arguing that section 508(a) of the
Illinois Marriage and Dissolution of Marriage Act (750 ILCS
5/508(a) (West 1996)) (the Act) was the exclusive remedy available
to recover attorney fees under the Act.  The appellate court
agreed.  After holding that section 508(a) was the attorney's
exclusive avenue for seeking attorney fees, the court elaborated on
the availability of section 508(a) petitions even after the
dismissal of dissolution proceedings.  The court departed from
Watson v. Watson, 335 Ill. App. 637, 82 N.E.2d 671 (1948), and In
re Marriage of Erby, 84 Ill. App. 3d 672, 406 N.E.2d 79 (1980),
where we held that a trial court may not consider a petition for
attorney fees after a divorce case has been voluntarily dismissed. 
See also In re Marriage of Birt, 159 Ill. App. 3d 281, 284, 512
N.E.2d 390 (1987); In re Marriage of Reczek, 95 Ill. App. 3d 220,
420 N.E.2d 161 (1981) (where Watson was followed).  In Watson, we
explained that "[p]ublic policy forbids that parties to a divorce
suit should be kept in a state of hostile litigation" after the
divorce has been dismissed.  Watson, 335 Ill. App. at 641.  
     In rejecting Watson and Erby, the Nottage I court reasoned:  
               "It is unassailable that where a trial court has
     subject matter jurisdiction of a case and personal
     jurisdiction over the parties and their attorneys, it
     retains that jurisdiction until 30 days have expired from
     the time of a dismissal.  [Citations].  As an irrefutable
     corollary, so long as a section 508 petition is filed
     while an underlying action is pending or within 30 days
     from a dismissal of the underlying action, the trial
     court has jurisdiction to hear, decide and rule on the
     section 508 petition.  Cf. In re Marriage of Dague
     (1985), 136 Ill. App. 3d 297, 300, 483 N.E.2d 322; In re
     Marriage of Conway, (1986), 139 Ill. App. 3d 1062, 1065-
     66, 487 N.E.2d 1240."  Nottage, 274 Ill. App. 3d at 242.
     Our supreme court reversed Nottage I, not because of the
analysis of subject matter jurisdiction, but because it held that
section 508(a) was not an exclusive remedy and did not preclude an
attorney from bringing a separate breach of contract suit to
recover fees.  Nottage v. Jeka, 172 Ill. 2d 386, 392-98, 667 N.E.2d
91, 93-96 (1996) (Nottage II).  Respondent now argues that the part
of Nottage I holding that an attorney may file a section 508(a)
petition within 30 days of a voluntary dismissal remains good law,
in spite of the supreme court's reversal and finding that section
508(a) was not an exclusive remedy.  We disagree.
     Nottage I's discussion of Watson and Erby was compelled by the
court's threshold assumption that section 508(a) was the exclusive
remedy for the recovery of fees in a divorce action.  Once that
position was taken, the court was compelled to deviate from Watson
or leave a lawyer with an uncollected fee without a remedy.  Once
the supreme court found that section 508(a) was not an exclusive
remedy, the need to deviate from the holding in Watson and Erby was
unnecessary.  We agree with the reasoning of the trial court that
if Nottage I had allowed the breach of contract suit, there would
have been no need to address Watson and Erby.  
     We disagree, however, with the language in Erby suggesting
that a postdismissal petition for attorney fees in divorce cases is
barred, not only for the policy reasons set out in Watson, but
because the court lacks subject matter jurisdiction.  See Erby, 84
Ill. App. 3d at 676.  In that respect, Nottage I was correct. 
Subject matter jurisdiction addresses the scope of the circuit
court's power to decide cases granted under the Illinois
Constitution and Illinois statutes.  See Ill. Const. 1970, art. VI,
9; In re Chiara C., 279 Ill. App. 3d 761, 765, 665 N.E.2d 404
(1996).  But sometimes public policy requires that a trial court
decline to exercise jurisdiction.  See Watson, 335 Ill. App. 637;
Barrows v. Northwestern Memorial Hospital, 123 Ill. 2d 49, 57, 525
N.E.2d 50 (1988).
     Respondent quarrels with the policy announced in Watson.  She
argues that prohibiting an attorney from filing a petition for
attorney fees within 30 days of a voluntary dismissal "[draws]
unnecessary and unwarranted distinctions between dissolution
actions and all other[s]."  She also argues that an "unwarranted"
distinction is drawn between dissolution proceedings that are
voluntarily dismissed and those that are involuntarily dismissed. 
Cf. In re Marriage of Dague, 136 Ill. App. 3d 297, 300, 483 N.E.2d
322 (1985) (petition for attorney fees allowed after dismissal
because petitioner died).
     The distinctions are not unwarranted.  Illinois has long
recognized a policy of preserving the marital relationship.  At
times the policy has been invoked at a cost to other legal
interests.  See, e.g., In re Marriage of Malec, 205 Ill. App. 3d
273, 289, 562 N.E.2d 1010 (1990) (attorney may not recover on a
contingency fee agreement because the interest of preserving a
marriage outweighs possible unjust enrichment concerns).  The
policy set out in Watson encourages the nonlegal resolution of
marital disagreements and helps couples to disentangle from
litigation once they have decided not to divorce.
     Respondent contends that the parties here have not
"reconciled," rendering the policy objective of Watson futile. 
Nothing in the record, other than the attorney's remark in
appellate argument, reveals whether the parties have reconciled. 
What is clear from the record is that the parties are no longer
seeking a divorce.  That is sufficient to invoke Watson.
     Respondent also argues that the Watson rule is futile since a
party to a dissolution suit may be sued in a separate action for
attorney fees under section 508(e) of the Act, and the parties may
remain "embroiled in litigation" if that party, in turn, sues her
spouse for contribution.  The argument is speculative.  Although an
attorney may sue his client for attorney fees, it does not follow
that the married couple will litigate the issue, and it does not
keep the parties in divorce court, where they have decided they no
longer want to be.
     Respondent argues that the Watson rule should be overruled
because it encourages the "unrestrained use of voluntary dismissals
by plaintiffs."  Respondent argues that petitioner voluntarily
dismissed the suit six days before trial to avoid an adverse
outcome at trial.  Again, the argument is speculative and
irrelevant.  There is no evidence in the record pointing to a
reason for the voluntary dismissal, nor is the movant required to
give one.  Nor does the record contain evidence that there exists
a widespread practice of improperly motivated voluntary dismissals
creating a policy concern sufficient to outweigh the clear policy
concerns discussed in Watson and Erby.
     GORDON, J., concurs.
     JUSTICE LEAVITT, dissenting:
     Both the trial court and the majority affirming here place 
reliance on Watson v. Watson, 335 Ill. App. 637, 82 N.E.2d 671
(1948).  In Watson this court determined that jurisdiction was
lacking to hear the fee issue and also that public policy precluded
the court from addressing the matter following a voluntary
dismissal of the dissolution action.  Watson, 335 Ill. App. at 640-
41.  In Watson it was deemed public policy in favor of marriage
forbade continuing hostile litigation when both parties sought to
have a divorce suit dismissed.  Watson, 335 Ill. App. at 641; see
also Anderson v. Steger, 173 Ill. 112, 119-20, 50 N.E. 665 (1898);
McCulloch v. Murphy, 45 Ill. 256 (1867).  The majority recognizes
that with the adoption of the Illinois Constitution of 1970 and the
enactment of section 508 of Illinois Marriage and Dissolution of
Marriage Act (Dissolution Act) (750 ILCS 5/508 (West 1996)) a
jurisdictional bar to fee petitions in cases such as this is no
longer an issue.  Simply stated then the issue before us is whether
the trial court should, based on the public policy argument
advanced in Watson, decline to exercise its jurisdiction to hear a
fee petition after voluntary dismissal of the dissolution action. 
While the majority of this court now answers the question in the
affirmative, I would hold otherwise.
     Not only have the jurisdictional barriers that once existed
vanished, but legislative changes reflected in the Dissolution Act,
as well as subsequent decisions of our supreme court, have also, in
my opinion, largely undermined the public policy concern voiced in
older cases such as Watson.  Notably, the Dissolution Act, unlike
the statutory scheme that preceded it, expressly permits attorneys
representing parties in dissolution proceedings to seek fees from
their clients while the dissolution proceedings are still ongoing. 
See 750 ILCS 5/508(a) (West 1996); Nottage v. Jeka, 172 Ill. 2d
386, 394, 667 N.E.2d 91 (1996).
     Moreover, in seeking fees from a client, an attorney is not
limited to the remedies provided under the Dissolution Act, as our
supreme court has recently made clear.  In Nottage, the supreme
court found this court erred in its conclusion that section 508 of
the Dissolution Act was the sole means by which an attorney could
recover a fee.  Nottage, 172 Ill. 2d at 392.  It was determined
that the present legislative scheme was not designed to exclude
bringing a common law contract action for damages.  The statutory
remedy was in addition to, not exclusive of, any common law right. 
Nottage, 172 Ill. 2d at 398.  
     Since the jurisdictional bar to a fee petition in cases such
as this is long gone and an attorney may now sue his client for
fees either during or subsequent to dissolution proceedings, it
would seem to me the state's public policy has shifted away from
avoiding--or not recognizing--fee disputes between spouses toward
one that guarantees not only a fair process but also a complete and
final disposition of the matter, including the payment of fees. 
This countervailing policy is well recognized and equally as long
standing as the one reiterated in Watson.  See generally
Annotation, Right of Attorney to Continue Divorce or Separation
Suit against Wishes of His Client, 92 A.L.R.2d 1009, 1017-20
(1963).  In Morrison v. Morrison, 122 N.J. Eq. 233, 193 A. 908
(N.J. Ch. 1937), it was well stated, albeit in somewhat outdated
          "In matrimonial cases we regard the wife as the favored
     suitor, and call upon the husband to pay her suit moneys;
     otherwise, in many cases the wife would be powerless to
     assert her legal rights against him.  We encourage
     reputable counsel to represent wives in meritorious
     cases, upon the implied assurance that they will be
     compensated for the reasonable value of their services
     through orders against the husbands.  We also applaud and
     encourage their efforts, as officers of the court, to
     effect reconciliations where possible.  Unless all this
     is mere platitude, how can we penalize them for doing
     what we preach to them is their duty?  If we do so, how
     can we expect counsel to be willing to undertake a
     destitute wife's case against her husband, no matter how
     meritorious?  Public policy requires that  lack of means
     shall not deprive the wife of the services of a competent
     solicitor, and it follows that it is contrary to public
     policy to deny reasonable compensation to such solicitor
     in proper cases to be paid by the husband."  Morrison,
     122 N.J. Eq. at 236, 193 A. at 909-10.
See, e.g., Frederick v. Frederick, 25 P.2d 733, 734-35 (Colo.
1933).  Of course, we recognize that in today's world neither party
to a dissolution action is favored and that either spouse may enjoy
the benefit of the present statutory scheme.
     This same policy pervades the new "Leveling the Playing 
Field" amendments to our Dissolution Act.  Under section 501(c-1)
(West 1996), a spouse now may receive an award of interim attorney
fees while a dissolution case is pending.  See 750 ILCS 5/501(c-1)
(West 1996).  The very purpose of such interim awards is "to
achieve substantial parity in parties' access to funds for
litigation costs."  See 750 ILCS 5/102(5) (West 1996).  Clearly,
then, encouraging attorneys to take on representation of
economically disadvantaged spouses, through the implied assurances
that they can "cross the aisle," if need be, for their fees, is
integral to achieving the primary goal of the current Dissolution
Act--leveling the playing field in dissolution actions.  Thus, an
attorney who takes a case such as the present one with an
understanding that fees may be sought from the other side should
not now find that he cannot collect fees for his work from the
party able to pay due to the voluntary dismissal by the petitioning
party.  On facts identical to those here, the Supreme Court of
Colorado refused to sanction similar conduct on the part of the
               "Frederick [the husband], angry, humiliated his wife
     with open slanderous charges [by filing for divorce].  In
     sheer necessity she sought, as she rightly might, the
     services of counsel.  The wife represented, her counsel
     understood, and the fact was that only from him who had
     precipitated the breach could compensation be had.  The
     case was of the kind *** in which the husband is
     customarily required to remunerate counsel employed by
     his spouse.  His conclusion to withdraw the charge
     against his wife, to be commended, of course, did not
     operate to discharge his full obligation.  He, not his
     wife, not her counsel, initiated that which gave rise to
     the reasonable added burden of his folly.  The court
     properly retained control of the case for the purpose
     appearing.  In no manner whatever did such continued
     control interfere with the reconciliation of the
     parties."  Frederick, 25 P.2d at 734-35.
     The public policy supposedly advanced by the majority's
decision is, moreover, entirely speculative on the record before
us.  There was no evidence before the trial court suggesting the
parties to this case were actually in the process of reconciling;
respondent flatly denies as much, and the fact that she continues
to (or acquiesces in her attorneys' efforts to) press the fee
contribution issue in an appeal to this court is suggestive of
marital deterioration, not reconciliation.  As respondent points
out, this fact alone distinguishes this case from Watson, where
reconciliation was undisputed.  See Watson, 335 Ill. App. at 641
("Public policy forbids that parties to a divorce suit should be
kept in a state of hostile litigation when both are seeking to have
it dismissed").  (Emphasis added.)
     Regardless, even if it can be assumed petitioner voluntarily
dismissed his petition in this case for the purpose of reconciling,
it does not necessarily follow that permitting respondent to go
forward with her fee petition here will hinder the reconciliation
process.  If the alleged reconciliation between these parties is
"so insincere and impermanent as to be jeopardized by so trivial a
cause [as a fee petition], it is at best unworthy of consideration,
and it may well be a mere pretense on the husband's part, adopted
as a means of evading his just obligation."  See Morrison, 122 N.J.
Eq. at 235-36, 193 A. at 909.  Further, I concur with respondent's
argument that dismissing the fee petition in the domestic relations
division does little to assure the parties are free from the
continuing hostility of litigation, if the result is that
litigation continues--in the form of a common law contract action
between respondent and her counsel--to be heard in another corridor
of the same courthouse. 
     For these reasons, I respectfully dissent.