In re Marriage of Murphy

• Decision Date: 06 February 2002
• Docket Number: No. 4-01-0292.,4-01-0292.
• Citation: 261 Ill.Dec. 684,763 N.E.2d 933,327 Ill. App.3d 845
• Parties: In re the MARRIAGE OF Catherine MURPHY, n/k/a Catherine M. Madonia, Petitioner-Appellee, and Michael R. Murphy, Respondent-Appellant.
• Court: United States Appellate Court of Illinois

763 N.E.2d 933

327 Ill. App.3d 845

261 Ill.Dec. 684

In re the MARRIAGE OF Catherine MURPHY, n/k/a Catherine M. Madonia, Petitioner-Appellee, and

Michael R. Murphy, Respondent-Appellant.

No. 4-01-0292.

Appellate Court of Illinois, Fourth District.

February 6, 2002.

Michael R. Murphy, Springfield, Pro Se.

Catherine Madonia, Springfield, Pro Se.

Justice STEIGMANN delivered the opinion of the court:

Section 508(a)(3.1) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/508(a)(3.1) (West 2000)) provides that a trial court may award attorney fees for "[t]he prosecution of any claim on appeal (if the prosecuting party has substantially prevailed)." This case presents the issue of what the phrase "substantially prevailed" means as used in that section.

I. BACKGROUND

In November 1992, the trial court dissolved the marriage of petitioner, Catherine Murphy (now Madonia), and respondent, Michael R. Murphy, and awarded physical custody of their child, Robert, to Catherine, subject to Michael's visitation. The court also divided the marital estate, which included a large personal injury settlement, and awarded Catherine $600 in monthly child support. Catherine appealed the court's decision, and this court affirmed (In re Marriage of Murphy, 259 Ill.App.3d 336, 197 Ill.Dec. 671, 631 N.E.2d 893 (1994)).

In January 1994, while her appeal was pending, Catherine filed a petition to modify child support, alleging that an increase in Michael's salary constituted a substantial change in circumstances. In November 1998, the trial court entered an order increasing Michael's monthly child support obligation to $850. Catherine appealed that order, arguing that the trial court erred (1) in modifying Michael's support obligation by (a) applying the law-of-thecase doctrine and refusing to consider as part of Michael's net income the $90,000 annuity payments he received pursuant to the personal injury settlement, (b) deviating downward from the statutory support guidelines, and (c) making the increased support obligation retroactive only to January 1998; and (2) by refusing to award her attorney fees. This court agreed that the trial court had erred by awarding child support in an amount lower than the statutory minimum (750 ILCS 5/505(a)(1) (West 1998)) and remanded the case for further proceedings. As to Catherine's remaining issues, this court affirmed the trial court's judgment. In re Marriage of Murphy, No. 4-99-0215 (January 10, 2000) (unpublished order under Supreme Court Rule 23).

In September 2000, Catherine filed a motion for attorney fees incurred in prosecuting her appeal. Catherine attached her attorney's billing records to the motion, showing a total cost of over $7,000.

In October 2000, the trial court conducted a hearing to address (1) Catherine's motion for attorney fees incurred in prosecuting her appeal, (2) this court's order on remand, and (3) Michael's petition for rule to show cause demanding that Catherine pay her share of some of Robert's medical expenses. The only testimony directly related to Catherine's motion for attorney fees was as follows:

"Q. [CATHERINE'S ATTORNEY]: And now, [Catherine], when you prosecuted the appeal, did you incur attorney's fees?

A. [CATHERINE]: Yes, I did.

Q. And have you paid those attorney's fees?

A. No. I paid some of them, part of them. Not all of them.

Q. And you entered into an agreement with me for an hourly rate as set forth in our motion?

A. Yes, I did."

No evidence was presented regarding the parties' financial circumstances. However, Catherine's attorney argued as follows: "The [c]ourt has the parties' affidavits and incomes available to them from the time which this motion was arranged. I trust that the [c]ourt can review the motion and its prior evidence and the record and make an appropriate determination."

Following the hearing, the trial court ordered, in pertinent part, as follows:

"Upon consideration of all statutory factors, the [c]ourt awards to [Catherine's attorney] the sum of $1,750.00 for attorney fees on appeal. * * * The court having taken into account the continuous litigation between the parties and the need to resolve outstanding matters for the appropriate administration of justice directs that taking into further account the fact that [Michael] owes $848 in unpaid child support plus $1[,]750 in attorneys fees for a sum of $2,598 and that [Catherine] owes to [Michael] the sum of $1,974.82 in unpaid medical expenses, directs that [Michael] pay to [Catherine] the sum of $623.82 within 30 days."

In January 2001, Michael filed a posttrial motion and supporting memorandum arguing, in pertinent part, that the trial court erred by ordering him to pay a portion of Catherine's attorney fees on appeal. In March 2001, the trial court denied Michael's motion. Michael appeals, arguing only that the trial court erred by ordering him to pay a portion of the attorney fees Catherine incurred in prosecuting her appeal. We reverse.

II. THE ATTORNEY FEE AWARD

Michael argues that the trial court erred by ordering him to pay a portion of Catherine's attorney fees on appeal when she did not (1) substantially prevail on appeal or (2) show that she was unable to pay her own attorney fees. Because we agree with Michael's first argument, we need not address his second.

Attorney fees are generally the responsibility of the party who incurred them. In re Marriage of Hasabnis, 322 Ill.App.3d 582, 598, 255 Ill.Dec. 347, 749 N.E.2d 448, 461 (2001). However, section 508 of the Act allows a trial court, at its discretion, to award attorney fees under certain circumstances. 750 ILCS 5/508(a) (West 2000); In re Marriage of Minear, 181 Ill.2d 552, 562, 230 Ill.Dec. 250, 693 N.E.2d 379, 383 (1998), quoting In re Marriage of Bussey, 108 Ill.2d 286, 299-300, 91 Ill.Dec. 594, 483 N.E.2d 1229, 1235 (1985). Pursuant to section 508(a)(3.1) of the Act, fees may be awarded in connection with "[t]he prosecution of any claim on appeal (if the prosecuting party has substantially prevailed)." 750 ILCS 5/508(a)(3.1) (West 2000). Statutes that provide for an award of attorney fees are in derogation of common law and must be strictly construed. Ardt v. State of Illinois, 292 Ill.App.3d 1059, 1063, 227 Ill.Dec. 203, 687 N.E.2d 126, 129 (1997). Thus, before awarding a party attorney fees for the prosecution of her appeal, the trial court must determineas a threshold matter—whether the party "substantially prevailed" on appeal. What it means to "substantially prevail" on appeal under the Act has never been considered by a court of review. Thus, this case presents a question of first impression.

A. "Prevailing Parties"—Illinois Law

The following Illinois statutes allow for attorney fee awards to "substantially prevailing" parties: (1) section 11(i) of Illinois' Freedom of Information Act (Illinois FOIA) (5 ILCS 140/11(i) (West 2000)); (2) section 3(d) of the Open Meetings Act (5 ILCS 120/3(d) (West 2000)); and (3) section 13 of the Motor Vehicle Franchise Act (Franchise Act) (815 ILCS 710/13 (West 2000)). The phrase "substantially prevailing" has been construed only under the Illinois FOIA; however, that construction is specifically tailored to that statute and thus provides us with little guidance. See for example, Duncan Publishing, Inc. v. City of Chicago, 304 Ill.App.3d 778, 786, 237 Ill.Dec. 568, 709 N.E.2d 1281, 1288 (1999) (holding that a "substantially prevailing" party must show that (1) prosecution of the action was "reasonably necessary" to obtain the information sought, and (2) a causal nexus exists between the action and the agency's surrender of the information).

Illinois courts have generally defined a "prevailing" party for the purposes of a fee-shifting provision as one who (1) "is successful on any significant issue in the action and achieves some benefit in bringing suit," (2) receives a judgment in his favor, or (3) achieves an affirmative recovery. Med+Plus Neck & Back Pain Center, S.C. v. Noffsinger, 311 Ill.App.3d 853, 861, 244 Ill.Dec. 712, 726 N.E.2d 687, 694 (2000). Relying on federal law, Illinois courts have also held that "[t]o qualify as a prevailing party, a plaintiff must succeed in obtaining some relief from the defendant against whom attorney fees are sought." (Emphasis added.) Community Consolidated School District No. 54 v. Illinois State Board of Education, 216 Ill. App.3d 90, 94, 159 Ill.Dec. 581, 576 N.E.2d 250, 253 (1991), citing Max M. v. Illinois State Board of Education, 684 F.Supp. 514, 523 (N.D.Ill.1988); see also Brewington v. Illinois Department of Corrections, 161 Ill.App.3d 54, 63-64, 112 Ill.Dec. 447, 513 N.E.2d 1056, 1063 (1987); Becovic v. City of Chicago, 296 Ill.App.3d 236, 240, 230 Ill.Dec. 766, 694 N.E.2d 1044, 1047 (1998) (citing Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40, 50 (1983), for the proposition that a "prevailing party" need only have prevailed on any one significant issue and received some of the benefit they sought in filing suit).

B. "Prevailing Parties"—the Federal Experience

Certain federal statutes allow attorney fee awards to "prevailing" or "substantially prevailing" parties. Most notably, section 1988 of the Civil Rights Attorney Fee's Awards Act (Awards Act) (42 U.S.C. § 1988 (1994)) provides that courts may award attorney fees to prevailing parties in enforcement actions under Title VI of the Civil Rights Act (42 U.S.C. § 1983 (1994)) and other federal statutes. Similarly, section 552 of the Freedom of Information Act (Federal FOIA) (5 U.S.C. § 552(a)(4)(E) (1994)) provides that courts may award attorney fees to parties who "substantially prevail" against the United States in actions brought under the FOIA.

According to the United States Supreme Court, "to qualify as a prevailing party, a civil rights plaintiff must obtain at least some relief on the merits of his claim." Farrar v. Hobby, 506 U.S. 103, 111, 113 S.Ct. 566, 573, 121 L.Ed.2d 494, 503 (199...