In re Marriage of O'Hara, 2021 IL App (2d) 200648-U

1. Case citation and parties
- In re Marriage of O’Hara, 2021 IL App (2d) 200648‑U (2d Dist. Dec. 17, 2021) (Sup. Ct. R. 23 order; non‑precedential except as allowed).
- Petitioner/Appellant: Joann O’Hara. Respondent/Appellee: David O’Hara.

2. Key legal issues
- Whether a former spouse may be ordered under 750 ILCS 5/508(a)(3.1) to pay the other party’s attorney fees incurred defending an appeal when the client/attorney lack an underlying, enforceable obligation (retainer/agreement) to pay those appellate fees.
- Whether summary judgment was appropriate where the client admitted she had no agreement obligating her to pay appellate fees and the written retainer expressly excluded appellate work.

3. Holding/outcome
- The appellate court affirmed the trial court’s grant of summary judgment for respondent. Petitioner could not shift appellate attorney fees to respondent because she lacked an actual obligation to pay her own counsel for the appeal.

4. Significant legal reasoning
- The court relied on the principle (citing In re Marriage of Magnuson) that fee‑shifting under §508 requires the claimant to have an underlying obligation to pay counsel before that obligation can be shifted to the opposing party.
- The written retainer contained an explicit clause excluding “appellate proceedings” and stating such services would require a new agreement. That language, together with petitioner’s deposition testimony admitting there was no signed fee agreement for the appeal and that she believed she had no payment obligation, established there was no enforceable obligation to pay the appellate fees.
- The court found no applicable exception (e.g., pro bono representation or fee discharge) that would permit fee‑shifting absent an underlying obligation. Deposition admissions were treated as dispositive evidence defeating petitioner’s claim.

5. Practice implications (concise)
- Fee‑shifting under the Marriage Act will generally fail if the client has no documented or admitted obligation to pay counsel for the subject work.
- Draft engagement/retainer agreements to expressly cover (or exclude) post‑judgment/enforcement and appellate work; obtain separate, signed appellate engagement letters when counsel will pursue appeals.
- Preserve proof of client assent and billing practices (signed agreements, itemized invoices, payment arrangements). Deposition admissions can be dispositive — avoid ambiguity in client communications.
- When seeking shifting of appellate fees, plead and prove an enforceable obligation to pay (contract, course of dealing, or other legal basis), or show an exception that justifies shifting absent such an obligation.