In re Marriage of Kenney

Overview

In In re Marriage of Kenney , 2026 IL App (1st) 252578-U, the First District affirmed a Cook County order requiring the ex-husband to pay $24,183.51 in appellate attorney fees and costs incurred by the ex-wife in defending his unsuccessful appeal of the dissolution/relocation judgment. The court held the trial court did not abuse its discretion in evaluating the parties' respective ability and inability to pay under section 508(a)(3) of the Act, and that it properly considered the parties' litigiousness as an additional factor. The appeal was decided on the record and appellant's brief alone under First Capitol Mortgage Corp. v. Talandis Construction Corp. , 63 Ill. 2d 128 (1976).

Key Facts

John (Chicago attorney) and Amber (Colorado commercial real estate agent) divorced; the trial court awarded Amber sole medical/educational decision-making and granted her relocation petition, affirmed in In re Marriage of Kenney , 2023 IL App (1st) 221558.

Amber petitioned for contribution to $24,183.51 in appellate fees and costs under sections 503 and 508 of the Act.

John earned approximately $300,000 in the prior year as a law-firm partner, plus $50,000–$60,000 from village legal work and holding-company income; he netted $130,000–$140,000 from a property sale and held a 50% unencumbered interest in a building listed at $695,000.

Weeks before the fee hearing, John left his own firm for an associate position at half the salary ($150,000), with village income absorbed by the new firm; he offered no explanation and no bonus/commission testimony.

Amber was unemployed for years as the twins' primary caregiver, returned to work in December 2023 at $190,000, withdrew $50,000 from retirement, received no child support, and was owed roughly $32,000 in past-due child expenses.

Financial affidavits showed Amber's monthly living expenses ($16,053.17) and debt payments ($7,956.67) far exceeded John's ($10,113.24 and $1,400).

Procedural History

Circuit Court of Cook County, No. 2018 D 5945 (Judge Pamela Loza, succeeding Judge Debra Walker). After affirmance of the bifurcated dissolution judgment in the 2023 appeal, Amber filed a contribution petition. Following a two-day hearing (March and June 2024), the court entered a written order granting the fees; John's motion to reconsider was denied, and he appealed. Amber filed no appearance or brief.

Holdings

Affirmed. Reviewed for abuse of discretion ( In re Marriage of Schneider , 214 Ill. 2d 152 (2005); In re Marriage of Tronsrue , 2025 IL 130596), the trial court did not abuse its discretion in awarding appellate fees under section 508(a)(3); the record amply showed Amber's inability and John's ability to pay.

A petitioner need not show a $0 balance or deplete assets; the Heroy "inability to pay" standard asks whether paying the entire fee would undermine financial stability. Prior payment of most of the fees does not defeat the petition.

A trial court may consider the parties' litigiousness and who precipitated the litigation in addition to ability to pay; doing so is not a sua sponte sanction for exercising the right to appeal.

Legal Principles

750 ILCS 5/508(a)(3) (West 2024) (fees for defense of an appeal). In re Marriage of Heroy , 2017 IL 120205, ¶ 19 (inability to pay; no divestiture of capital assets required). Haken , 394 Ill. App. 3d 155; O'Malley , 2016 IL App (1st) 151118 (abuse-of-discretion definition). Ricketts , 329 Ill. App. 3d 173, 177 (affirm if any basis in record supports findings). Patel , 2013 IL App (1st) 112571, ¶ 117, and Benjamin , 2017 IL App (1st) 161862, ¶ 30, with Gabriel , Hamilton , Bradley , and S.D. and N.D. (litigation conduct as relevant factor).

Practical Implications

Build the fee record with testimony, exhibits, and current financial affidavits; expense and debt disparities—not just gross salary—can drive the outcome.

Rebut "she already paid the fees" arguments with Heroy : partial payment, retirement withdrawals, and outstanding balances support inability to pay.

Expect scrutiny of suspiciously timed income reductions shortly before a fee hearing; document legitimate reasons for any career change.

Appellees may argue the opponent's disregard of GAL and expert recommendations and total failure on appeal as litigiousness factors; appellants should insist the court expressly confine consideration to post-decree/appellate conduct, as the court did here.

Careful briefing matters: the court flagged conflation of abuse-of-discretion and manifest-weight standards and a miscited authority.

Limitations/Caveats

Rule 23 order—not precedential except under Rule 23(e)(1). Decided without an appellee's brief under Talandis . The binding holding is the abuse-of-discretion affirmance; the court's observations about the timing of John's job change and its characterization of his appellate conduct are case-specific reasoning rather than new rules.