Supreme Court Summaries

Opinions filed October 3, 2013




In re Marriage of Earlywine, 2013 IL 114779

Appellate citation: 2012 IL App (2d) 110730.


      JUSTICE BURKE delivered the judgment of the court, with opinion.

      Chief Justice Kilbride and Justices Freeman, Thomas, Garman, Karmeier, and Theis concurred in the judgment and opinion.


      This dispute over interim attorney fees in a marriage dissolution proceeding comes from Stephenson County. Divorce proceedings were initiated by the husband in 2010 through his attorney, Thomas James, and were complicated by the fact that the couple had a three-year-old son. Both parties had debts and neither had the present ability to pay attorney fees, but the husband’s family contributed over $8,000 on his behalf, which was paid to attorney James.

      Pursuant to the “leveling of the playing field” provisions of the Illinois Marriage and Dissolution of Marriage Act, the circuit court entered a “disgorgement” order for the husband’s attorney to turn over to the wife’s attorney half of the fees previously paid to him, or $4,000. The appellate court affirmed, and the supreme court, in this decision, agreed.

      When attorney James received the money paid to him, an agreement was signed with the husband, designating that the sums were an “advance retainer” so as to become the attorney’s property at that point, rather than being placed in a client trust account. Attorney James argued that this was pursuant to the Illinois Supreme Court’s opinion in Dowling v. Chicago Options Associates, Inc., 226 Ill. 2d 277 (2007), and attorney disciplinary rules which were enacted pursuant to it. The applicable provision of the marriage statute dates from 1997.

      The supreme court said the marriage statute reflects a policy of giving circuit courts discretion to do equity by making interim fee awards where parties in dissolution proceedings lack resources. The court said that the Dowling case and the rules enacted pursuant to it come from a different context and are not pertinent to a marriage dissolution proceeding. For example, the advance payment retainer argued for attorney James might be appropriate in special circumstances, such as bankruptcy or a forfeiture proceeding. Arguments raised by James based on separation of powers and statutory conflict with the rules were rejected.

      The results reached in the courts below in this regard were affirmed.