The state of the law governing whether interim awards of attorney fees are authorized under the Illinois Parentage Act, and whether those awards may be effectuated through disgorgement, has been confusing at best. An Illinois Appellate Court has attempted to set the record straight and give direction to parties to actions under the Parentage Act who might seek an interim award of fees and request disgorgement to effectuate that award.

The confusion arose because the Parentage Act requires a statutory game of hopscotch in order to determine the circumstances under which an interim attorney fee award will be allowed. The Illinois Parentage Act itself, at Section 17, permits a court to order that the "reasonable fees of counsel, experts" and other litigation and appeal costs be "paid by the parties in accordance with the relevant factors specified in Section 508 of the Illinois Marriage and Dissolution of Marriage Act ["Marriage Act"], as amended." 750 ILCS 45/17. Therefore, the Parentage Act appears to permit attorney fee awards to the extent that the Marriage Act, at Section 508, permits such awards.

Turning to Section 508 of the Marriage Act, it specifically states that a court "may order any party to pay a reasonable amount for his own or the other party's costs and attorney fees" and further explicitly approves of interim fee awards. 750 ILCS 5/508 ("Interim attorney fees and costs may be awarded from the opposing party, in accordance with subsection (c-1) of Section 501.")

Section 508 of the Marriage Act also allows for disgorgement, however. Under a disgorgement order, an attorney is required to pay the party opposing her client a portion of the money the attorney has collected from her own client. Disgorgement is aimed at leveling the playing field between two parties, where the court finds that both parties lack financial ability or access to income or assets, but available funds exist by way of retainers and interim payments paid to one of the attorneys. Such relative inequality is believed to render one party unable to litigate the case with parity. Disgorgement is aimed at leveling the playing field with respect to the parties' abilities to litigate. See 750 ILCS 5/501(c-1)(3) (authorizing a court to "allocate available funds for each party's counsel, including retainers or interim payments, or both, previously paid, in a manner that achieves substantial parity between the parties.")

Under this statutory scheme, the case now known as "Stella I" came to trial. In re Stella, 339 Ill.App.3d 610, 274 Ill. Dec. 391, 791 N.E.2d 187(Ill. App. Ct., 1st Dist. 2003). Patrick Stella ("Stella") initiated this case under the Parentage Act in order to establish a legal relationship with his child. In re Stella, 353 Ill. App. 3d 415, 288 Ill. Dec. 889, 890, 818 N.E.2d 824, 825 (Ill. App. Ct., 1st Dist. Oct. 19, 2004). As the Parentage Act petition proceeded in the court system, the Respondent, Pear Garcia ("Garcia"), found it necessary to seek an interim award of attorney fees and costs. Id. The trial court granted her petition of an interim fee award, and ordered disgorgement--that is, the trial court ordered that Stella's attorney pay Garcia's attorney $20,000, which constituted a portion of the fees that Stella had already paid to his attorney. Id. Stella's attorney appealed the Court's order, claiming that the Court did not have statutory authority to order disgorgement in a Parentage Act case. Id.

On appeal, the Illinois Appellate Court, First District, held that the trial court's order of disgorgement was improper. In re Stella,
339 Ill. App. 3d at 617, 274 Ill. Dec. at 896, 791 N.E.2d at 192. That is, the appellate court held that the trial court was not empowered to order Stella's attorney to pay Garcia's attorney from money Stella had paid to his attorney for legal work.

When the trial court received the appellate court's decision, Stella I, it not only reversed the disgorgement order,  but it interpreted Stella I to deny an interim fee award altogether. See Stella, 353 Ill. App. 3d 415, 288 Ill. Dec. at 890, 818 N.E.2d at 825. Again, the matter was appealed to the Illinois Court of Appeals, First District, and this time, the appellate court was very explicit and detailed in its opinion, in order to avoid what it described as additional "unintended consequences" like the ones that arose from Stella I. See id., 353 Ill. App. 3d 415, 288 Ill. Dec. at 890, 818 N.E.2d at 825 ("Stella II"). In Stella II, the appellate court held that while disgorgement was not authorized by the Parentage Act, an interim fee award was authorized. Id., 353 Ill. App. 3d 415, 288 Ill. Dec. at 893-94, 818 N.E.2d at 828-29.

While the statutory hopscotch under the Parentage Act makes the Stella II decision appear complicated, the decision is actually a holding based on plain, unambiguous statutory language. First, the Appellate Court acknowledged that the Parentage Act explicitly allows attorney fee awards to the extent they are allowed by the Marriage Act in Section 508. Because Section 508 allows interim fee awards, the Court reasoned that so does the Parentage Act allow interim fee awards. Id., 353 Ill. App. 3d 415, 288 Ill. Dec. at 893, 818 N.E.2d at 828.

According to the Appellate Court, however, disgorgement is not allowed by the Parentage Act because there is limiting language in the Parentage Act's own authorization for such awards. The parentage Act only authorizes awards to be paid by "parties" to the extent allowed by the Marriage Act in Section 508. See 750 ILCS 45/17; Stella, 353 Ill. App. 3d 415, 288 Ill. Dec. at 892-93, 818 N.E.2d at 827-28. Specifically, the Parentage Act authorizes "reasonable fees of counsel, experts, and attorney fees and other costs of the action, pretrial proceedings, post-judgment proceedings to enforce or modify the judgment, and the appeal or the defense of an appeal of the judgment, to be paid by the parties in accordance with the relevant factors specified in Section 508 of the [Marriage Act]." See Stella, 353 Ill. App. 3d 415, 288 Ill. Dec. at 892, 818 N.E.2d at 827; 750 ILCS 45/17. In addition, the language of section 508 of the Marriage Act (the statutory Section to which the Parentage Act point for the parameters of interim fee awards) itself is limited to the payment of fees by a "party" instead of an attorney. See 750 ILCS 5/508(a). Although Section 508 refers to Section 501 (c-1), which specifically discusses disgorgement, the Appellate Court concluded the language of Section 17 of the Parentage Act indirectly undermines disgorgement.

By limiting the authorization of Parentage Act fee awards to those paid "by the parties," the Appellate Court reasoned that the legislature did not authorize fee awards under the Parentage Act to be effectuated by disgorgement, because disgorgement inherently involves a payment by an attorney instead of a party. See Stella, 353 Ill. App. 3d 415, 288 Ill. Dec. at 893, 818 N.E.2d at 828 ("The authorizing phrase in section 508, 'from the opposing party,' refers only to fees paid by a 'party,' not by an attorney. [citation omitted] We presume the legislature knew the difference between a party and an attorney when it amended the statues.").

Thus, after Stella II, there is no question about the state of the law with respect to interim attorney fee awards and disgorgement orders in relation to those interim fee awards in Parentage Act cases. A question does exist, however, whether under the Appellate court's analysis, disgorgement orders are authorized at all. Parties to a divorce action and parentage action refer to the same language in Section 508 of the Marriage Act to authorize interim fees: "Interim attorney fees and costs may be awarded from the opposing party, in accordance with subsection (c-1) of Section 501." The authorizing paragraph of the Parentage Act is no more limiting: "the court may order reasonable fees of counsel . . . to be paid by the parties . . .." Therefore, while this court clarified that interim awards are authorized and disgorgement orders are not, it may have opened the door to yet another unintended consequence.