Background
John Matthew Kenney, Jr., a Chicago attorney, and Janet Amber Strang, a Colorado commercial real estate agent, divorced after litigation over their twins’ custody, parenting time, and Strang’s request to relocate with the children to Colorado. The trial court granted Strang sole decision-making authority over medical and educational matters and allowed the relocation. The appellate court affirmed that judgment in 2023.
After defending Kenney’s unsuccessful appeal, Strang sought $24,183.51 in appellate attorney fees and costs under section 508(a)(3) of the Illinois Marriage and Dissolution of Marriage Act. Following a two-day hearing on the parties’ finances, the Cook County circuit court awarded her the full amount. Kenney appealed, arguing that Strang could pay her own fees and that the court effectively punished him for exercising his right to appeal.
The Court’s Holding
The appellate court affirmed the fee award, holding that the circuit court did not abuse its discretion. Section 508(a)(3) permits a reasonable contribution for defending an appeal after considering the parties’ financial resources. A spouse seeking fees need not be destitute or exhaust capital assets; the question is whether paying all fees would undermine that spouse’s financial stability.
The record supported the circuit court’s finding that Strang lacked the ability to bear the full fees while Kenney could contribute. Although Strang had home equity, retirement funds, and recently resumed employment, she had been unemployed for years while serving as the children’s primary caregiver, had substantial debts and expenses, received no child support, and had already used retirement money. Kenney had substantially greater recent earnings, other income sources, proceeds from a property sale, equity and an interest in unencumbered real estate, and lower reported expenses.
Key Takeaways
- An award of attorney fees under the Marriage Act is reviewed for abuse of discretion.
- Inability to pay does not require a zero bank balance or liquidation of retirement and other capital assets.
- A court may consider which party precipitated the appeal and the resulting appellate costs, alongside the parties’ financial circumstances.
Why It Matters
The decision confirms that an unsuccessful appellant may be required to contribute to the other spouse’s reasonable costs of defending the appeal when the statutory financial-resources analysis supports that result. The court also distinguished a permissible fee contribution from an improper sanction: Kenney’s right to appeal remained intact, but the circuit court could account for the costs his appeal imposed on Strang.