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In re Marriage of Murphy

February 06, 2002

IN RE: THE MARRIAGE OF CATHERINE MURPHY, N/K/A CATHERINE M. MADONIA, PETITIONER-APPELLEE AND MICHAEL R. MURPHY, RESPONDENT-APPELLANT


Appeal from Circuit Court of Sangamon County No. 90D611 Honorable Stuart H. Shiffman, Judge Presiding.

The opinion of the court was delivered by: Justice Steigmann

UNPUBLISHED

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, 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-the-case 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 In re Marriage of Murphy, No. 4-99-0215 (January 10, 2000) (unpublished order under Supreme Court Rule 23).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]court has the parties' affidavits and incomes available to them from the time which this motion was arranged. I trust that the [c]court can review the motion ...


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