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IN RE MARRIAGE OF OLEKSY

Appellate Court of Illinois, First District. Second Division
Mar 18, 2003
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Appellate Summary — In re Marriage of Margaret Oleksy and Henryk Oleksy

Factual and Procedural Background

Margaret Oleksy filed a petition for dissolution of marriage; on November 13, 2000, judgment for dissolution was entered granting Margaret sole custody of the children and ordering respondent Henryk Oleksy to pay $1,315.84 per month in child support. Henryk filed a notice of appeal in February 2001 that was resolved separately. Later in February 2001, the parties' son Peter moved to live with Henryk. Henryk filed a petition to modify child support, to change custody, for reimbursement of costs, and to modify, suspend, or terminate an order for withholding. In May 2001 Margaret filed a petition for interim attorney fees. On August 1, 2001, the trial court reduced child support to $700 per month retroactive to April 27, 2001.

At the August 1 hearing Henryk's counsel asked the court to account for a credit for alleged overpayment of child support since April 27, 2001. Margaret's counsel stated, "We understand that he is entitled to a credit." Henryk's counsel prepared a Uniform Order for Support and a separate order to modify withholding; the modification order provided that the credit would be satisfied by suspending Henryk's child support payments for three months. The parties had not in fact agreed to that method. The trial court signed the orders.

On August 7, 2001 Margaret's counsel informed the court that he had not agreed to the withholding modification as drafted; the court granted a motion to vacate the order. Margaret then moved for sanctions under Illinois Supreme Court Rule 137. The trial court granted sanctions, ordering Henryk and his counsel to pay $1,006 and ordering Henryk to pay $4,000 in interim attorney fees. Henryk appealed both the sanction and the interim fees orders to the Appellate Court.

Legal Issues Presented

  1. Whether a court order drafted by an attorney and presented to a judge for signature falls within the scope of "pleading, motion and other paper of a party" under Supreme Court Rule 137, such that a Rule 137 sanction may be imposed on the drafting attorney.
  2. Whether the trial court made a sufficient factual finding to support a Rule 137 sanction (assuming Rule 137 applied).
  3. Whether the appellate court has jurisdiction to review the trial court's award of $4,000 in interim attorney fees (i.e., whether the award is appealable or interlocutory under the Illinois Marriage and Dissolution of Marriage Act and relevant authority).

Arguments of the Parties

Appellant (Henryk Oleksy)

  • Argued that the draft order submitted by his attorney and signed by the judge is not a "pleading, motion or other paper" of a party within the meaning of Rule 137 because, like a subpoena (cited case), a draft order issued by the court is the court's instrument, not a party's filing.
  • Maintained that Rule 137 sanctions have been confined to pleadings, motions, or other papers filed by a party, and thus the sanction was improper.
  • Contended that, even if Rule 137 could apply, the trial court did not sufficiently set out the factual basis required by the cases for imposing sanctions under the rule.
  • Contended that interim attorney-fee orders of this type are interlocutory and not subject to appellate review under the statutory scheme cited; he also argued comparative case law analogies (e.g., Lawrence) but the court distinguished that authority.

Appellee (Margaret Oleksy)

  • Defended the imposition of Rule 137 sanctions, urging that the focus should be on the conduct of Henryk's attorney in presenting the drafted order for entry rather than on the form of the document itself; she argued for deference to the trial court's discretion.
  • Contended the appellate court lacks jurisdiction to review the interim attorney-fees award, relying on statutory provisions of the Illinois Marriage and Dissolution of Marriage Act and relevant appellate precedent (cited Tetzlaff).

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Yassin v. Certified Grocers of Illinois, Inc., 133 Ill.2d 458, 551 N.E.2d 1319 (1990) Standard of review for sanctions (appellate court will not overturn a trial court's award of sanctions absent an abuse of discretion). The court stated this standard before evaluating the trial court's imposition of Rule 137 sanctions.
Peterson v. Randhava, 313 Ill. App.3d 1, 729 N.E.2d 75 (2000) Requirement that a trial court's decision set forth the factual basis for the result. Cited to note that the trial court must clearly set forth the factual basis for any sanction award (used in evaluating the sufficiency of the trial court's sanction findings).
In re C.K., 214 Ill. App.3d 297, 573 N.E.2d 378 (1991) Rule 137 does not apply to a subpoena because, although drafted by an attorney, a subpoena is issued by the clerk of the court. Used analogically to support the conclusion that a court order signed by a judge, although drafted by counsel, is not a "paper of a party" under Rule 137.
Hernandez v. Williams, 258 Ill. App.3d 318, 632 N.E.2d 49 (1994) Limitation of Rule 137 sanctions to pleadings, motions, or other papers filed by a party. Referenced to show prior confinement of Rule 137 sanctions to party-filed documents.
Shea, Rogal Associates, Ltd. v. Leslie Volkswagen, Inc., 250 Ill. App.3d 149, 621 N.E.2d 77 (1993) Illustration of a narrow construction and limited intent/use of Rule 137. Cited as part of a body of cases showing the appellate court's narrow approach to Rule 137.
Singer v. Brookman, 217 Ill. App.3d 870, 578 N.E.2d 1 (1991) Illustration of narrow construction of Rule 137. Cited among precedent demonstrating limits on Rule 137's application.
Lewy v. Koeckritz International, Inc., 211 Ill. App.3d 330, 570 N.E.2d 361 (1991) Illustration of narrow construction of Rule 137. Included as part of precedent supporting the court's restrained reading of Rule 137.
Tabor Co. v. Gorenz, 43 Ill. App.3d 124, 356 N.E.2d 1150 (1976) Rule 137 does not provide a sanction against all asserted violations of court rules or all acts of professional misconduct. Quoted to emphasize that Rule 137 is not a catchall sanctioning device for every alleged professional misconduct.
In re Marriage of Betts, 200 Ill. App.3d 26, 558 N.E.2d 404 (1990) Proper remedy for certain misrepresentations to the court is adjudication for criminal contempt; procedural protections apply to indirect criminal contempt trials. Used to explain that criminal contempt is the appropriate vehicle to address an attorney's alleged misrepresentation of facts to the court.
In re Estate of Kelly, 365 Ill. 174, 6 N.E.2d 113 (1936) Definition of contempt (acts calculated to embarrass or obstruct the court) and sanctioning attorneys who present spurious documents by contempt. Referenced for the proposition that presenting false papers to the court can constitute criminal contempt and warrants condemnation.
Hicks v. Feiock, 485 U.S. 624, 99 L.Ed.2d 721, 108 S.Ct. 1423 (1988) Discussion of indirect criminal contempt as retrospective and procedural considerations for contempt proceedings. Cited to support the statement that indirect criminal contempt is retrospective and to support procedural protections for a contempt trial.
In re Marriage of Tetzlaff, 304 Ill. App.3d 1030, 711 N.E.2d 346 (1999) Interpretation of statutory limits on appealability of interim orders under the Marriage Act. Relied upon in resolving the jurisdictional issue concerning appealability of the interim attorney-fee award; used by the court in granting the motion to dismiss that portion of the appeal.
In re Marriage of Beyer, 324 Ill. App.3d 305, 753 N.E.2d 1032 (2001) Interpretation that section 501(c-1) of the Marriage Act applies to both predissolution and postdissolution proceedings. Used to reject Henryk's distinction between pre- and post-dissolution proceedings for purposes of appealability under the statute.
In re Marriage of Lawrence, 146 Ill. App.3d 307, 496 N.E.2d 538 (1986) Analogy that certain "temporary" awards may be final and reviewable if set for review only after a lengthy period (three years in that case). Cited by Henryk as an analogy; the court distinguished Lawrence because the interim fee order here was not set for future review and was not designated as a final one-time payment.

Court's Reasoning and Analysis

The court began by stating the applicable standard of review for sanctions—an appellate court will not overturn a trial court's award of sanctions absent an abuse of discretion (Yassin)—and the requirement that a trial court clearly set forth the factual basis for a sanction (Peterson).

The court examined the language of Supreme Court Rule 137, which applies to "Every pleading, motion and other paper of a party represented by an attorney" and the certification requirements that accompany an attorney's signature. The central analytic question was whether an order drafted by an attorney and submitted to the judge for signature is a "pleading, motion and other paper of a party" within the meaning of Rule 137.

Relying on In re C.K. (which held Rule 137 did not apply to a subpoena because a subpoena is issued by the court clerk), and a line of cases emphasizing a narrow construction of Rule 137 (including Hernandez, Shea, Singer, and Lewy), the court concluded that a court order, even if drafted by counsel, remains the ruling of the judge and is not a "paper" of a party subject to Rule 137. The court explained that Rule 137 targets abuse of the judicial process through vexatious or unsupported pleadings and is directed at attorneys' work product and filings; it is not designed to sanction all forms of professional misconduct or every asserted rule violation (citing Tabor).

Because the draft order at issue became a signed court order, the court found Rule 137 inapplicable and therefore concluded that the trial court erred in imposing Rule 137 sanctions on Henryk and his counsel for drafting and presenting the order.

On the appropriate remedial path, the court stated that where an attorney is alleged to have misrepresented facts to the court or misrepresented the judge's indicated rulings when drafting an order, the proper remedy is to pursue adjudication for criminal contempt (citing Betts and Kelly). The court emphasized that indirect criminal contempt is retrospective and serves to punish past misconduct and that such proceedings require the procedural protections associated with criminal trials (citing Hicks and Betts).

Because the court concluded Rule 137 did not apply to the signed order, it did not reach the sufficiency of the trial court's factual findings supporting sanctions.

Turning to the interim attorney-fee award, the court considered statutory and precedent limits on appealability of interim orders under sections of the Illinois Marriage and Dissolution of Marriage Act and found the statutory scheme and precedent (Tetzlaff; Beyer) supported treating the interim fee order as interlocutory and not subject to appellate review. The court distinguished Lawrence (where a long-duration "temporary" award was treated as effectively final) because the fee award here was not set for future review nor designated as a single final payment. The court granted the appellee's motion to dismiss that portion of the appeal for lack of jurisdiction.

Holding and Implications

Holding (core rulings):

  • The appellate court reversed the trial court's imposition of sanctions under Supreme Court Rule 137.
  • The appellate court dismissed for lack of jurisdiction the portion of the appeal challenging the trial court's award of $4,000 in interim attorney fees.

Implications:

  • Direct effect on the parties: the Rule 137 sanction of $1,006 (against Henryk and his counsel) was vacated/reversed; the appeal as to the $4,000 interim attorney-fee award was dismissed for want of appellate jurisdiction, leaving that interlocutory award intact on the trial-court record pending further appropriate proceedings.
  • The court explained that where an attorney is alleged to have misrepresented facts to the court in drafting an order, adjudication for criminal contempt is the appropriate remedial mechanism rather than a Rule 137 sanction. The opinion therefore directs parties and trial courts toward contempt proceedings (with their attendant procedural protections) when addressing attorney conduct that amounts to an alleged fraud upon the court.
  • The opinion applied existing precedent and did not purport to create an expansive new rule broadening Rule 137; instead it reinforced a narrow construction of Rule 137's scope.

Disposition: Reversed in part (Rule 137 sanction) and dismissed in part (appeal of interim attorney fees for lack of jurisdiction).

Show all summary ...

JUSTICE CAHILL delivered the opinion of the court:

The main issue in this appeal is whether a court order drafted by an attorney and presented to a judge for signature is within the scope of the "pleading, motion and other paper of a party" language of Supreme Court Rule 137 (155 Ill.2d R. 137). The order contained dispositive language on an issue that was represented as agreed to by the parties. In fact, there was no agreement. The trial judge signed the order. When he later learned that there had not been an agreement, he imposed a sanction on the drafting attorney under Rule 137. For the reasons that follow, we vacate the sanction.

Petitioner Margaret Oleksy filed a petition for dissolution of marriage. Judgment for dissolution was entered on November 13, 2000. Margaret was granted sole custody of the parties' children, Peter and Pauline. Respondent Henryk Oleksy was ordered to pay $1,315.84 a month in child support. Henryk filed his first notice of appeal on February 22, 2001. That appeal was resolved separately in In re Marriage of Oleksy, No. 1-01-0734 (2002) (unpublished order under Supreme Court Rule 23). In February 2001, Peter left his mother's house and moved in with his father. Henryk then filed a petition for modification of child support, change of custody, reimbursement of costs and other relief He also filed a petition to modify, suspend or terminate the order for withholding. In May 2001, Margaret filed a petition for award of interim attorney fees. On August 1, 2001, the trial court reduced the child support award to $700 a month, retroactive to April 27, 2001.

At the August 1, 2001, hearing, Henryk's counsel asked the court to rule on his petition to modify, suspend or terminate the order for withholding to account for the credit for overpayment of child support since April 27, 2001. Margaret's counsel stated, "We understand that he is entitled to a credit." The record shows that Henryk's counsel drafted a "Uniform Order for Support" and a separate order to modify withholding, both of which purported to be agreed orders. The modification order directed that the credit for an overpayment of child support should be satisfied by suspending Henryk's child support payments for three months. The parties had not, in fact, agreed to this method of awarding the credit. The trial court entered the orders.

At a hearing on August 7, 2001, Margaret's counsel stated that he had not agreed to the order to modify withholding in the manner set out. The trial court granted the motion to vacate the order. Margaret's counsel then filed a motion for sanctions under Supreme Court Rule 137 (155 Ill.2d R. 137), which the trial court also granted, ordering Henryk and his counsel to pay $1,006 as a sanction. The court also ordered Henryk to pay $4,000 in interim attorney fees. Henryk appeals from both orders.

Henryk first argues that the trial court erred in imposing sanctions under Rule 137. Henryk contends that his attorney submitted the draft order for the judge to sign, but that it was not a pleading, motion or paper within the meaning of Rule 137. He also argues that, assuming a Rule 137 sanction was appropriate, the court did not set out the factual basis for its award of sanctions as required by the rule.

We will not overturn a trial court's award of sanctions absent an abuse of discretion. Yassin v. Certified Grocers of Illinois, Inc., 133 Ill.2d 458, 551 N.E.2d 1319 (1990). A trial court's decision must clearly set forth the factual basis for the result. Peterson v. Randhava, 313 Ill. App.3d 1, 729 N.E.2d 75 (2000).

Supreme Court Rule 137 provides in part:

"Every pleading, motion and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated. * * * The signature of an attorney * * * constitutes a certificate by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good-faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. * * * If a pleading, motion or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, may impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorney fee." 155 Ill.2d R. 137.

Henryk cites In re C.K., 214 Ill. App.3d 297, 299-300, 573 N.E.2d 378 (1991), in which Rule 137 was held not to apply to a subpoena because, although drafted by an attorney, a subpoena is issued by the clerk of the court. He reasons that a draft order, like a subpoena, although drafted by an attorney, is issued by the court. Henryk points out that Rule 137 sanctions have been confined to pleadings, motions or other papers filed by a party, as in Hernandez v. Williams, 258 Ill. App.3d 318, 632 N.E.2d 49 (1994).

In her brief, Margaret defends the Rule 137 sanction. She suggests that there is no case precisely on point, but argues that our focus should not be on the order "but rather the conduct of Henryk's attorney in presenting the order to the trial court for entry." The argument is not without appeal, but requires an expansive reading of a judge's discretion under Rule 137. It conflicts with the narrow construction this court has consistently placed on the intent and use of the rule. See generally Shea, Rogal Associates, Ltd. v. Leslie Volkswagen, Inc., 250 Ill. App.3d 149, 152, 621 N.E.2d 77 (1993); Singer v. Brookman, 217 Ill. App.3d 870, 879, 578 N.E.2d 1 (1991); Lewy v. Koeckritz International, Inc., 211 Ill. App.3d 330, 334, 570 N.E.2d 361 (1991).

Rule 137, as we read the cases, is aimed at the abuse of the judicial process by penalizing claimants who bring vexatious or harassing actions based upon unsupported allegations of law or fact. Singer, 217 Ill. App.3d at 879. The rule is aimed at the pleadings and papers — the work product, if you will — of attorneys. Rule 137 "does not provide a sanction against all asserted violations of court rules and for all acts of professional misconduct of an attorney." C.K., 214 Ill. App.3d at 300, citing Tabor Co. v. Gorenz, 43 Ill. App.3d 124, 132, 356 N.E.2d 1150 (1976). We do not believe an order signed by a trial judge, though drafted by an attorney, meets the definition of "pleading, motion and other paper of a party." (Emphasis added.) 155 Ill.2d R. 137; C.K., 214 Ill. App.3d at 299-300. A court order, whoever drafted it, remains the ruling of a judge. it is not a "paper" of a party.

The proper remedy for Henryk's attorney's alleged misrepresentation of facts to the court is a petition for adjudication of criminal contempt. In re Marriage of Betts, 200 Ill. App.3d 26, 58-59, 558 N.E.2d 404 (1990). Contempt of court is an act that is calculated to embarrass or obstruct a court in the administration of justice, or that is calculated to lessen its authority or dignity. In re Estate of Kelly, 365 Ill. 174, 178, 6 N.E.2d 113 (1936). Indirect criminal contempt is retrospective, imposed to punish past misconduct. Betts, 200 Ill. App.3d at 43, citing Hicks v. Feiokc, 485 U.S. 624, 631-35, 99 L.Ed.2d 721, 731-33, 108 S.Ct. 1423, 1429-31 (1988). One of the purposes of criminal contempt is to punish those who commit fraud upon the court. Betts, 200 Ill. App.3d at 44-45. "Utter disregard of attorneys as to the truth or falsity of matters contained in papers and documents presented to courts warrants condemnation as unethical and contemptuous." Kelly, 365 Ill. at 184. In Kelly, an attorney who filed a spurious will and application for its probate was held in criminal contempt. Kelly, 365 Ill. at 179. "[T]he trial of an indirect criminal contempt charge must conform to all procedural requirements and rights normally applicable to criminal trials." Betts, 200 Ill. App.3d at 58. We believe this is the path a trial judge must take in a case where an attorney charged with drafting an order for the signature of the court misrepresents the rulings the judge has indicated he wishes to make. Because we find that sanctions under Rule 137 were improper in this case, we need not address whether the trial court's order set out a sufficient factual basis to support the sanction.

Henryk also argues on appeal that the trial court erred in awarding Margaret $4,000 in interim attorney fees and costs. The court ordered Henryk to pay interim attorney fees so Margaret could "participate adequately" in the litigation. Margaret's petition for interim fees and accompanying affidavits identified four separate pending motions for relief filed by Henryk for which assistance of counsel was needed. While this appeal was pending, Margaret filed a motion to dismiss for want of jurisdiction the portion of Henryk's appeal related to interim attorney fees. The motion was taken with the case and is now granted.

Margaret contends that this court lacks jurisdiction because the plain language of sections 501(c-1)(1) and (2) of the Illinois Marriage and Dissolution of Marriage Act ( 750 ILCS 5/501 (c-1)(1), (c-1)(2) (West 2000)), precludes the appeal of interim orders under In re Marriage of Tetzlaff, 304 Ill. App.3d 1030, 1039, 711 N.E.2d 346 (1999). Henryk responds that Tetzlaff does not apply because that case involved interim attorney fees for predissolution proceedings, but this case involves fees for postdissolution proceedings. This is incorrect. Section 501 (c-1) applies to both predissolution and postdissolution decree proceedings. In re Marriage of Beyer, 324 Ill. App.3d 305, 314, 753 N.E.2d 1032 (2001).

Henryk cites In re Marriage of Lawrence, 146 Ill. App.3d 307, 496 N.E.2d 538 (1986), to analogize interim attorney fees to "temporary" maintenance, which was held to be final and reviewable. In that case, the trial court awarded "temporary" maintenance payments to a party, subject to review by the trial court in three years. The appellate court determined that three years was long enough to be considered final for the purposes of appeal. Lawrence, 146 Ill. App.3d at 310. The trial court here found that Henryk "has the financial ability to pay reasonable amounts" to "enable [Margaret] to participate adequately in the litigation." Unlike Lawrence, this order was not set for future review by the trial court. Neither was the $4,000 designated as a one-time or final interim fee payment. These facts support the conclusion that the order was interlocutory and not subject to appeal. Petitioner's motion to dismiss for want of jurisdiction the portion of the appeal related to interim attorney fees is granted.

We reverse the award of sanctions under Rule 137. Lacking jurisdiction to consider the issue of interim attorney fees, we dismiss that portion of this appeal.

Reversed in part and dismissed in part.

McBRIDE, P.J., and BURKE,J., concur.