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Docket No. 93436-Agenda 14-November 2002.

In re MARRIAGE OF CATHERINE MURPHY, n/k/a Catherine Madonia, Appellant, and MICHAEL R. MURPHY, Appellee.

Opinion filed January 24, 2003.

JUSTICE FREEMAN delivered the opinion of the court:

This appeal concerns a circuit court's award of attorney feesfor a prior appeal in this dissolution of marriage action. Afterremand from an earlier appeal, Catherine Murphy-now known asCatherine Madonia (Catherine)-petitioned the circuit court toaward her the attorney fees she had incurred in prosecuting thatappeal. The trial court awarded her a portion of the fees sherequested. Michael Murphy appealed that award, contending thatCatherine had not "substantially prevailed" in the earlier appealand, alternatively, that the trial court had no evidence to supportthe award. The appellate court reversed, with one justicedissenting. 327 Ill. App. 3d 845. Catherine has brought the instantappeal from that judgment. We reverse in part and remand.

BACKGROUND

Catherine filed a petition for dissolution of marriage in July1990. The circuit court granted Catherine custody of the parties'child, subject to Michael's reasonable visitation, and orderedMichael to pay $600 per month in child support, as well as tomaintain medical insurance for the child and pay his tuition andfees for a parochial school education. The court also divided themarital assets, the largest of which was a personal injurysettlement resulting from an incident in which Michael was shotand permanently paralyzed from the chest down. The settlementconsisted of a one-time lump sum payment and guaranteed annualfuture payments. The court awarded Catherine the maritalresidence and a lump sum of $220,000, but awarded all futurepayments under the settlement to Michael as marital property.Catherine appealed, and the appellate court affirmed the circuitcourt's order of dissolution. In re Marriage of Murphy, 259 Ill.App. 3d 336 (1994).

In January 1994 Catherine filed a motion to modify childsupport, alleging Michael's salary had increased. In November1998 the court entered an order increasing Michael's child supportobligation 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 modificationof the child support obligation. The latter contention actually wascomprised of three specific alleged errors in the circuit court'streatment of the case: (a) the conclusion that the law of the casedoctrine precluded the court from considering the annuitypayments as part of Michael's net income for purposes of settingchild support; (b) the court's downward departure from thestatutory child support guidelines; and (c) the court's decision tomake the modification retroactive only to January 1998. Theappellate court held that the circuit court erred in departingdownward from the statutory guidelines and reversed andremanded on this issue, but affirmed the circuit court in all otherrespects. 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 thatMichael reimburse her for attorney fees she incurred inprosecuting her appeal of the November 1998 order. In the motion,she contended that: she engaged counsel for purposes of theappeal; she successfully argued that the downward deviation waserroneous; her income was significantly below Michael's; Michaelwas unrepresented on appeal; and the amount her counsel chargedwas reasonable and customary for the preparation and argument ofan appeal. The motion also stated that a multipage exhibit attachedto the motion showed the "time expended by counsel and his rateand expenses for the preparation and argument on the appeal."That attachment consists of an apparently computer-generatedtimesheet, with an anonymous handwritten notation on the firstpage which states: "Fees & Expenses Incurred $7199.35."

Michael argued before the circuit court that Catherine hadprevailed "only in minor part" in her appeal, and further arguedthat Catherine was "well able" to pay her own fees, in light of hernet worth of approximately $500,000. He also noted that in theappeal of the November 1998 order the appellate court hadrejected Catherine's argument that the circuit court had erred infailing to award her attorney fees for the prior circuit courtlitigation. He contended that Catherine had alleged no change incircumstances since the entry of the appellate court's order whichmight impact on the parties' abilities to pay their own attorneyfees.

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

"Q. State your name.

A. Catherine Madonia.

Q. And now, Miss Madonia, when you prosecuted theappeal, 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 ofthem.

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

A. Yes, I did."

Michael argued again at the hearing and in a post-trial motionthat any award of attorney fees to Catherine would beinappropriate because (1) Catherine had only prevailed in minorpart in the prior appeal, and (2) she had shown no change in herfinancial 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.