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In re Marriage of Murphy

January 24, 2003

IN RE MARRIAGE OF CATHERINE MURPHY, N/K/A CATHERINE MADONIA, APPELLANT, AND MICHAEL R. MURPHY, APPELLEE.


The opinion of the court was delivered by: Justice Freeman

Docket No. 93436-Agenda 14-November 2002.

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. 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 (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 (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.

"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 ...


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