Supreme Court Summaries

Opinions filed March 20, 2014

 

   

 

In re Marriage of Tiballi, 2014 IL 116319

 

 

Appellate citation: 2013 IL App (2d) 120523.

 

 

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

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

 

This Kane County custody dispute arose after the parties’ divorce in 2005. In 2010, the husband, as plaintiff, filed a petition seeking custody modification and, pursuant to statute, a psychologist was appointed by the circuit court to perform an evaluation. The evaluator’s report was submitted when the girl was 14, the father’s petition was dismissed, and the father was ordered to pay the evaluator’s fees as a court cost. The appellate court affirmed. In this decision, the Illinois Supreme Court held that the evaluator’s fees should be allocated between the parties pursuant to the same provision of the Illinois Marriage and Dissolution of Marriage Act which allowed for the evaluator’s appointment and which states criteria for that allocation. The supreme court agreed with the father’s claim that categorization of the professional fees as a court cost was improper.

The supreme court explained that, at common law, the fact that a party has prevailed in a litigation does not create a right to cost recovery, and that costs may be recovered only as provided for by statute. However, the Illinois cost statutes do not provide a definition of costs. The supreme court said that, to fill this gap, “costs” has become a term of art that has acquired a fixed and technical meaning in this law. The court followed its 2003 decision which defined costs as charges or fees taxed by the court, such as filing fees, courthouse fees, and reporter fees, as well as subpoena fees and statutory witness fees. Court costs are generally paid directly to the clerk, the manner of their calculation is set by statute, and they are not paid directly to a professional. Meanwhile, the Illinois Marriage and Dissolution of Marriage Act provides for the allocation of the costs and fees of appointed professional personnel “between the parties based upon the financial ability of each party and any other criteria the court considers appropriate” and that the “court may conduct a hearing as to the reasonableness of those fees and costs.”

The appellate and circuit courts were reversed and the cause was remanded to the circuit court for the allocation hearing called for by statute.