In re Marriage of Murphy

• Decision Date: 24 January 2003
• Docket Number: No. 93436.,93436.
• Citation: 271 Ill.Dec. 874,203 Ill.2d 212,786 N.E.2d 132
• Parties: In re MARRIAGE OF Catherine MURPHY, n/k/a Catherine Madonia, Appellant, and Michael R. Murphy, Appellee.
• Court: Illinois Supreme Court

786 N.E.2d 132

203 Ill.2d 212

271 Ill.Dec. 874

In re MARRIAGE OF Catherine MURPHY, n/k/a Catherine Madonia, Appellant, and

Michael R. Murphy, Appellee.

No. 93436.

Supreme Court of Illinois.

January 24, 2003.

Dawn D. Behnke, Springfield, for appellant, and Catherine Madonia, appellant pro se.

Michael R. Murphy, appellee pro se.

Justice FREEMAN delivered the opinion of the court:

This appeal concerns a circuit court's award of attorney fees for a prior appeal in this dissolution of marriage action. After remand from an earlier appeal, Catherine Murphy—now known as Catherine Madonia (Catherine)—petitioned the circuit court to award her the attorney fees she had incurred in prosecuting that appeal. The trial court awarded her a portion of the fees she requested. Michael Murphy appealed that award, contending that Catherine had not "substantially prevailed" in the earlier appeal and, alternatively, that the trial court had no evidence to support the award. The appellate court reversed, with one justice dissenting. 327 Ill.App.3d 845, 261 Ill.Dec. 684, 763 N.E.2d 933. Catherine has brought the instant appeal from that judgment. We reverse in part and remand.

BACKGROUND

Catherine filed a petition for dissolution of marriage in July 1990. The circuit court granted Catherine custody of the parties' child, subject to Michael's reasonable visitation, and ordered Michael to pay $600 per month in child support, as well as to maintain medical insurance for the child and pay his tuition and fees for a parochial school education. The court also divided the marital assets, the largest of which was a personal injury settlement resulting from an incident in which Michael was shot and permanently paralyzed from the chest down. The settlement consisted of a one-time lump sum payment and guaranteed annual future payments. The court awarded Catherine the marital residence and a lump sum of $220,000, but awarded all future payments under the settlement to Michael as marital property. Catherine appealed, and the appellate court affirmed the circuit court's order of dissolution. In re Marriage of Murphy, 259 Ill.App.3d 336, 197 Ill.Dec. 671, 631 N.E.2d 893 (1994).

In January 1994 Catherine filed a motion to modify child support, alleging Michael's salary had increased. In November 1998 the court entered an order increasing Michael's child support obligation to $850 per month, retroactive to January 1998. Catherine appealed this order, arguing that the trial court had erred (1) by failing to award her attorney fees, and (2) in its modification of the child support obligation. The latter contention actually was comprised of three specific alleged errors in the circuit court's treatment of the case: (a) the conclusion that the law of the case doctrine precluded the court from considering the annuity payments as part of Michael's net income for purposes of setting child support; (b) the court's downward departure from the statutory child support guidelines; and (c) the court's decision to make the modification retroactive only to January 1998. The appellate court held that the circuit court erred in departing downward from the statutory guidelines and reversed and remanded on this issue, but affirmed the circuit court in all other respects. In re Marriage of Murphy, No. 4-99-0215, 311 Ill.App.3d 1083, 262 Ill. Dec. 775, 766 N.E.2d 695 (2000) (unpublished order under Supreme Court Rule 23).

In September 2000, Catherine filed a motion requesting that Michael reimburse her for attorney fees she incurred in prosecuting her appeal of the November 1998 order. In the motion, she contended that: she engaged counsel for purposes of the appeal; she successfully argued that the downward deviation was erroneous; her income was significantly below Michael's; Michael was unrepresented on appeal; and the amount her counsel charged was reasonable and customary for the preparation and argument of an appeal. The motion also stated that a multipage exhibit attached to the motion showed the "time expended by counsel and his rate and expenses for the preparation and argument on the appeal." That attachment consists of an apparently computer-generated timesheet, with an anonymous handwritten notation on the first page which states: "Fees & Expenses Incurred $7199.35."

Michael argued before the circuit court that Catherine had prevailed "only in minor part" in her appeal, and further argued that Catherine was "well able" to pay her own fees, in light of her net worth of approximately $500,000. He also noted that in the appeal of the November 1998 order the appellate court had rejected Catherine's argument that the circuit court had erred in failing to award her attorney fees for the prior circuit court litigation. He contended that Catherine had alleged no change in circumstances since the entry of the appellate court's order which might impact on the parties' abilities to pay their own attorney fees.

In October 2000, the circuit court held a hearing on this motion as well as Catherine's motion to "implement the mandate" of the appellate court. The following is the only testimony adduced regarding the motion for attorney fees:

"Q. State your name.

A. Catherine Madonia.

Q. And now, Miss Madonia, when you prosecuted the appeal, did you incur attorney's fees?

A. 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."

Michael argued again at the hearing and in a post-trial motion that any award of attorney fees to Catherine would be inappropriate because (1) Catherine had only prevailed in minor part in the prior appeal, and (2) she had shown no change in her financial circumstances since the last hearing on attorney fees, when the court declined to award fees to Catherine. At the hearing, counsel for Catherine replied that "This isn't a 1983 or 1988 case [sic, presumably referring to 42 U.S.C. § 1983 and 42 U.S.C. § 1988] where you have to be the prevailing party. Either party may seek to have the other party pay based upon the income, not based upon their assets."

The circuit court took the motion under advisement, and ultimately awarded Catherine $1,750 in attorney fees. No written order appears in the record, but the court's docket entry states with respect to this issue that "Upon consideration of all relevant statutory factors, the Court awards [counsel for Catherine] the sum of $1,750.00 for fees on appeal."

Michael appealed, and the appellate court reversed, with one justice dissenting. 327 Ill.App.3d 845, 261 Ill.Dec. 684, 763 N.E.2d 933. The court reached only Michael's first argument, that Catherine had not "substantially prevailed" in her earlier appeal. The court noted that interpretation of the phrase was a matter of first impression. After looking to other Illinois statutes as well as federal law, the court demurred from issuing a definitive pronouncement as to what it would mean for a party to "substantially prevail," but stated that "whatever it means, Catherine did not substantially prevail on her appeal." The court stated that the issue on which Catherine obtained relief made only a relatively minor monetary difference, as compared to the relief potentially available if Catherine had prevailed on the other issues she had raised. The court averred that its determination was not based merely on the numerical fact that she had prevailed on only one of the four issues she raised on appeal. However, the court went on to state that to "substantially prevail" did "suggest[ ] that one has to obtain at least 50% of the relief she seeks."

The dissent noted that section 508(a)(3.1) of the Illinois Marriage and Dissolution of Marriage Act was added in 1997, as part of a "complete overhaul of the fee provisions of" the Act, intended to achieve "`substantial parity in parties' access to funds for litigation costs.'" 327 Ill.App.3d at 853-55, 261 Ill.Dec. 684, 763 N.E.2d 933 (Cook, J., dissenting), quoting 750 ILCS 5/102(5) (West 1998). The dissent criticized the "majority's requirement that there be an overwhelming victory before attorney fees can be awarded" as contrary to the spirit of the 1997 amendments, "which sought to prevent the situation where an economically disadvantaged spouse is forced to `cave in' to a truly unfair settlement." The dissent contended that the "majority's new rule, that `one has to obtain at least 50% of the relief she seeks' before attorney fees may be awarded" was without support in the statute or case law and further was objectionable in that

"If a party has a legitimate basis for appeal we should not attempt to discourage that party from raising other issues as well, even though the party thereby risks obtaining less than 50% of the relief sought. The appellate court should attempt to provide guidance on troublesome issues, not penalize parties for raising issues other than sure winners." 327 Ill.App.3d at 854-55, 261 Ill. Dec. 684, 763 N.E.2d 933 (Cook, J., dissenting).

Finally, the dissent noted that the trial court's determination regarding fees was entitled to deference and should not be overturned absent an abuse of discretion. The dissent closed with the following observation:

"The argument could be made that this court is as well-qualified as the trial court to determine whether a party has `substantially prevailed' on appeal. However, we have recently ruled that we have no jurisdiction over attorney fees on appeal. In re Marriage of Baylor, 324 Ill.App.3d 213, 216, 257 Ill.Dec. 638, 753 N.E.2d 1264] (2001)." 327 Ill. App.3d at 855, 261 Ill.Dec. 684, 763 N.E.2d 933 (Cook, J., dissenting).

We granted Catherine leave to appeal. 177 Ill.2d R. 315(a).

ANALYSIS

Before this court Catherine contends, relying on the last sentence of the appellate court dissent, that the appellate court was without jurisdiction to reverse the circuit court's...