holding that a posttrial motion was filed as of the date of mailing
How later courts described this case
- holding that a posttrial motion was filed as of the date of mailing
- relying on Schulman, affidavit by attorney that he mailed post-trial motion within the 30-day period was sufficient to establish mailing date
- “[I]f respondent’s salary is found to be reasonable compensation for his efforts, the non-marital business need not reimburse the marital estate because respondent’s salary during the marriage is marital property and, thus, the marital estate has already been compensated.”
- posttrial motion pursuant to section 2 — 1203 of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2 — 1203)
Written by the judges who cited it.
Distinguished
Distinguished by In re Marriage of Hawking, 240 Ill. App. 3d 419 (1992)
Holesinger v. Dubuque Feeder Pig Co. (1982), 104 Ill. App. 3d 39, 432 N.E.2d 645, and In re Marriage of Morse (1986), 143 Ill. App. 3d 849, 493 N.E.2d 1088, also relied upon by petitioner, are factually distinguishable as these cases endorse a mailbox rule for the filing of notices of appeals and post-trial motions.
The opinion
SUPPLEMENTAL OPINION ON REHEARING
JUSTICE EARNS delivered the opinion of the court:
In her petition for rehearing, petitioner requests the following alternative relief: (1) reconsideration of our determination that respondent’s post-trial motion was timely filed; (2) reconsideration of our reversal of the award of attorney fees; (3) clarification and modification with respect to the necessity of revaluing respondent’s insurance agency upon remand; and (4) affirmance of the property distribution and the awards of maintenance and child support subject to remittitur by petitioner of the reimbursement money judgment awarded her for her contribution toward the appreciation in value of the insurance agency.
We adhere to our conclusions that respondent’s post-trial motion was timely filed and that the award of attorney fees constitutes an abuse of discretion absent evidence of the usual and customary fees charged in the county in which the proceedings occurred. (In re Marriage of Angiuli (1985), 134 Ill. App. 3d 417, 423-24 , 480 N.E.2d 513, 519 .) Petitioner asserts that the award should be affirmed because respondent failed to produce evidence of the usual and customary fees charged in Bond County. However, petitioner, as the one seeking the award, must establish that those fees are reasonable. Petitioner directs our attention to In re Marriage of Preston (1980), 81 Ill. App. 3d 672 , 402 N.E.2d 332 and In re Marriage of Goforth (1984), 121 Ill. App. 3d 673 , 459 N.E.2d 1374 . In Preston, we held that petitioner had waived his right to a separate hearing on the propriety of awarding attorney fees and concluded that the award was proper in light of the fact that the trial court had sufficient evidence before it to make a determination on the relative financial ability of each party to pay his own fees. (In re Marriage of Preston (1980), 81 Ill. App. 3d 672, 681 , 402 N.E.2d 332, 340 .) In the instant case, we do not dispute the trial court’s finding that petitioner is unable to pay her attorney fees and that respondent is able to do so. (In re Marriage of Goforth (1984), 121 Ill. App. 3d 673, 683 , 459 N.E.2d 1374, 1382 .) We do, however, question the reasonableness of the fees in light of petitioner’s own attorney’s testimony that the fees charged were in excess of those customarily charged in Macon County and the lack of evidence as to the fees customarily charged in Bond County. In this regard, the instant case is also distinguishable from Goforth where the record contained sufficient evidence of the reasonableness of the fees charged. 121 Ill. App. 3d 673, 683 , 459 N.E.2d 1374, 1382 .
Petitioner requests clarification and modification of our decision with respect to the necessity of revaluing respondent’s nonmarital insurance agency upon remand in light of our decision that petitioner is not entitled to reimbursement for her insignificant contributions toward the agency. We agree with petitioner’s assertion that our directions upon remand require clarification. The trial court did not abuse its discretion in valuing the insurance agency, and upon remand, the distribution of property is to be reexamined in light of our determination that petitioner is not entitled to reimbursement. The procedure for determining whether the marital estate is entitled to reimbursement (Ill. Rev. Stat. 1983, ch. 40, par. 503(c)(2)) has been outlined in our original disposition. Our reversal of the property distribution necessarily requires the trial court to reconsider the awards of maintenance, child support and attorney fees. In re Marriage of Harmon (1985), 133 Ill. App. 3d 673, 676-77 , 479 N.E.2d 422, 425 .
Petitioner offers, in the nature of a remittitur, to accept the property distribution and the awards of maintenance and child support and to remit the sum of $20,000 awarded her as reimbursement for her contribution toward the appreciation in value of the insurance agency. Upon due consideration and in answer to petitioner’s request for affirmance of the property distribution and awards of maintenance and child support, subject to remittitur, we conclude that these matters are more properly left to the sound discretion of the trial court upon remand.- We deny the relief prayed for by petitioner and adhere to our original disposition as clarified above.
HARRISON and WELCH, JJ., concur.