Opinion
Appeal No. 3-17-0391
03-30-2018
In re ESTATE OF E. JAMES ADCOCK, a disabled person (Jamie Adcock-Schreck, Petitioner-Appellant v. Mark Adcock and E. James Adcock, Respondents (E. James Adcock, Respondent-Appellee)).
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois.
Circuit No. 14-P-884
The Honorable James Jeffrey Allen, Judge, Presiding.
JUSTICE LYTTON delivered the judgment of the court.
Justice McDade concurred in the judgment.
Justice Schmidt specially concurred.
ORDER
¶ 1 Held: Trial court erred in apportioning fees of guardian ad litem to petitioner and her counsel where there was no showing that respondent was unable to pay fees and no statute authorizing assessment of fees against counsel.
¶ 2 Petitioner Jamie Adcock-Schreck (Schreck) filed a petition seeking appointment of a guardian for respondent E. James Adcock. The trial court appointed a guardian ad litem. Over a year after filing her petition, Schreck voluntarily dismissed her petition, and the guardian ad
litem filed a motion seeking fees and expenses. The trial court entered an order allocating the responsibility to pay the guardian ad litem fees among Schreck, her counsel and Adcock. Schreck filed a motion to reconsider, which the trial court denied. She appeals the apportionment of the guardian ad litem fees. We reverse and remand.
¶ 3 FACTS
¶ 4 In December 2014, Schreck filed a petition asking the court to appoint a guardian for the estate and person of E. James Adcock, alleging that he is a disabled person. According to the petition, Schreck is Adcock's adopted daughter and granddaughter.
¶ 5 In January 2015, the trial court appointed a guardian ad litem. The guardian ad litem was ordered to submit a report to the court, which she did in June 2015. The court scheduled a hearing on Schreck's petition for March 2016. One month before the scheduled hearing, Schreck filed a motion to voluntarily dismiss her petition, which the trial court granted.
¶ 6 Thereafter, the guardian ad litem filed a petition for approval of her fees and expenses in the amount of $13,156.11. Mark Adcock, respondent's son, filed a petition for sanctions against Schreck and her counsel pursuant to Illinois Supreme Court Rule 137 (Ill. S. Ct. R. 137 (eff. July 1, 2013)). E. James Adcock filed a motion for fees and expenses he incurred in defending the petition. In November 2016, the trial court held a hearing and granted the guardian ad litem's petition for fees and expenses, subject to allocation between the parties.
¶ 7 In December 2016, the trial court entered an order denying E. James Adcock's motion for fees and expenses and Mark Adcock's petition for sanctions and granting the guardian ad litem's petition for fees and expenses. The court apportioned those fees as follows: $8,000 to be paid by E. James Adcock, and $5,531.11 to be paid by Schreck and her counsel, Matthew Schreck. Schreck filed a motion and an amended motion asking the court to reconsider or modify its
order. The trial court denied those motions and ordered Schreck and her attorney to pay the guardian ad litem $5,531.11 within 30 days.
¶ 8 ANALYSIS
¶ 9 The allowance and recovery of costs, including guardian ad litem fees, being unknown at common law, rests entirely upon statutory provisions which must be strictly construed. In re Estate of Stoica, 2013 Ill. App. 3d 225, 229 (1990). A trial court has no inherent power to apportion fees between the parties or tax fees as costs to the losing party where the relevant fees and costs are governed by statute. Id.
¶ 10 Section 11a-10 of the Probate Act of 1975 (Act) (755 ILCS 5/11a-10 (West 2016)) governs the award of fees to a guardian ad litem in guardianship proceedings. That section provides that when a guardianship petition is filed, the court shall appoint a guardian ad litem unless such an appointment is unnecessary for the protection of the alleged disabled person or a reasonably informed decision on the petition and further provides that "[t]he court may allow the guardian ad litem reasonable compensation." 755 ILCS 5/11a-10(a)(1) (West 2016).
¶ 11 Section 11a-10(c) of the Act specifies the parties who can be ordered to pay guardian ad litem fees. 755 ILCS 5/11-10(c) (West 2016). It provides in pertinent part: "If the respondent is unable to pay the fee of the guardian ad litem or appointed counsel, or both, the court may enter an order for the petitioner to pay all such fees or such amounts as the respondent or the respondent's estate may be unable to pay." Id. Under this section, the only parties against whom a court may assess guardian ad litem fees are the respondent or his or her estate and the petitioner. In re Estate of Bishop, 333 Ill. App. 3d 1113, 1115 (2002). However, a court may assess guardian ad litem fees against the petitioner only "[i]f the respondent is unable to pay the
fee of the guardian ad litem." 755 ILCS 5/11-10(c) (West 2016); see Bishop, 333 Ill. App. 3d at 1115; In re Serafin, 272 Ill. App. 3d 239, 246 (1995).
¶ 12 "Where, as here, the governing principle of law is grounded on a statute which is unambiguous, the trial court must hold the statute to mean what it plainly expresses." Stoica, 203 Ill. App. 3d at 229. A trial court may not depart from the letter of the Act by directing someone to pay the fees of the court-appointed guardian ad litem absent clear and express statutory authorization. Id. at 231.
¶ 13 Here, the trial court assessed guardian ad litem fees against Schreck and her attorney without determining that respondent was unable to pay the guardian ad litem fees. This was error. The court could only assess fees against petitioner if the court found that respondent was "unable to pay the fee." See 755 ILCS 5/11-10(c) (West 2016); Bishop, 333 Ill. App. 3d at 1115; Serafin, 272 Ill. App. 3d at 246. Because the trial court made no such finding in this case, the trial court's allocation of fees to Schreck was improper. Moreover, the court had no authority to assess fees against Schreck's attorney because he is not someone against whom fees may be assessed under section 11a-10(c) of the Act. See 755 ILCS 5/11a-10 (West 2016); Bishop, 333 Ill. App. 3d at 1115; Stoica, 203 Ill. App. 3d at 231.
¶ 14 We reverse the trial court's allocation of guardian ad litem fees and remand for the circuit court to order respondent E. James Adcock to pay all of the guardian ad litem fees unless he shows he is unable to pay them. Only if respondent is unable to pay the fees may the court assess guardian ad litem fees against petitioner; however, in no event may the court assess fees against petitioner's attorney.
¶ 15 CONCLUSION
¶ 16 The judgment of the circuit court of Will County is reversed and the cause is remanded.
¶ 17 Reversed and remanded.
¶ 18 JUSTICE SCHMIDT, specially concurring:
¶ 19 The trial court's order, especially the part where it assessed fees against petitioner's attorney, looks a lot like sanctions under Illinois Supreme Court Rule 137 (eff. July 1, 2013). However, the court specifically denied the Rule 137 motion. That leaves us no alternative other than that offered by the majority