FIFTH DIVISION

November 25, 2009

No. 1-08-3541

In re MARRIAGE OF: ) Appeal from the 

DANIEL W. LUNDAHL, ) Circuit Court of

) Cook County

Petitioner-Appellant, )

)

and ) No. 06 D3 30268

)

SUSAN LUNDAHL, ) The Honorable 

n/k/a Susan Hopper, ) Samuel Betar, III,

) Judge Presiding.

Respondent-Appellee. )

JUSTICE FITZGERALD SMITH delivered the opinion of the court:

This action was for dissolution of marriage. The trial court granted the parties, Daniel W.

Lundahl (Lundahl) and Susan Hopper (Hopper), a dissolution of their marriage and awarded

Hopper 100% of her nonmarital assets and 100% of the marital assets, while awarding Lundahl

100% of his nonmarital assets. Thereafter, both parties filed motions to reconsider, and the trial

court subsequently reclassified the retained earnings of Lundahl’s company from nonmarital

property to marital property. Lundahl filed a motion to reconsider, which was denied. Lundahl

now appeals arguing that (1) the trial court’s original classification of his retained earning as

nonmarital property was correct, (2) the amount of retained earnings found was incorrect, and (3)

the trial court erred in awarding attorney fees to Hopper. For the following reasons, we affirm in

part and remand for further proceedings in accordance with this Opinion. 

I. BACKGROUND

Lundahl and Hopper met in early 2004 and were married on July 3, 2004. At the time of
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their marriage, Lundahl owned two businesses: APS Corporation USA and American Internet

Services Network Corporation (AIS). Lundahl was the sole shareholder of each corporation, and

each corporation was taxed as a subchapter S corporation for federal income tax purposes. The

parties were married for approximately two years. 

During the marriage, APS Corporation USA reported no income for the calendar years of

2004 and 2005, and it conducted no business in those years. AIS, on the other hand, produced

income, which was reported on Lundahl and Hopper’s joint income tax return for the calendar

year of 2004 in the amount of $139,688. On Lundahl’s individual income tax return for the

calendar year of 2005, AIS produced $260,754. 

Lundahl was paid a salary by AIS in the amount of $52,047 in 2004, $50,962 in 2005,

and approximately $50,000 in 2006. In addition, Lundahl took disbursements from AIS’s

earnings and assets in the amount of $147,000 in 2004, $218,500 in 2005, and $411,500 in 2006. 

All of Lundahl’s salary and disbursements were deposited into the parties’ joint checking

account, or were used to pay the parties’ taxes. 

During the parties’ marriage, Hopper began working outside the marital home in August

of 2005. For three months of the marriage, she deposited $1,000 each month from her

employment income into the parties’ joint checking account. Other than that, she maintained her

own bank account, into which she deposited her own wages. Lundahl did not have access to

such account. 

Lundahl filed his petition for dissolution of marriage in March of 2006. Hopper filed a

counterpetition for dissolution of marriage on July 18, 2006. Prior to trial, Lundahl was granted
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exclusive possession of the marital residence, which was his nonmarital property. Hopper was

provided $4,000 per month for temporary maintenance from August 2006 through the date of the

trial court’s memorandum opinion and judgment for dissolution of marriage on April 24, 2007. 

In its memorandum opinion and judgment for dissolution of marriage, the trial court

found that the testimony of Hopper was neither credible nor reasonable, but that testimony of

Lundahl was both credible and reasonable. The trial court classified the parties’ assets and

awarded Hopper 100% of the marital assets, and 100% of her nonmarital assets. The trial court

awarded Lundahl 100% of his nonmarital assets, which included his retained earnings from AIS. 

In its reasoning, the trial court noted that the statue which governs marital property (750

ILCS 5/503(a) (West 2006)), states in pertinent part, “‘marital property’ means all property

acquired by either spouse.” The trial court found that this definition focused on which spouse, if

any received the retained earnings. The trial court noted that in the instant case, neither party

acquired the retained earnings because the earnings were the property of AIS and were located in

AIS’s corporate account. Because the parties agreed that AIS was Lundahl’s nonmarital asset,

the trial court found that the retained earnings constituted nonmarital property. 

Thereafter, both parties filed motions to reconsider the trial court’s decision. Prior to

ruling on the parties’ posttrial motions, the Third District of the Illinois Appellate Court issued a

relevant case, titled In re Marriage of Joynt, 375 Ill. App. 3d 817 (2007). The trial court

requested that the parties brief the issue of classification of retained earnings in light of Joynt. 

On December 10, 2007, the trial court issued its judgment order reclassifying the retained

earnings from AIS as marital property. The trial court determined that the retained earnings
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amounted to $730,000. Hopper was awarded $305,900, which represented 40% of the marital

estate. In its reasoning, the trial court applied Joynt and found that because Lundahl was the sole

shareholder, officer, and director of AIS, and because he had sole discretion over how much of

the retained earnings should be distributed to him, the retained earnings were marital property. 

The trial court further relied on the fact that AIS was a successful entity solely through his

efforts, his expertise, and his marketing abilities. 

Hopper’s attorney, Michael Kalcheim, filed his petition for interim fees and costs on

February 6, 2008. After hearing arguments from both parties and after reviewing billing

invoices, the trial court awarded Kalcheim $14,500 for fees and costs. Lundahl now appeals. 

II. ANALYSIS

On appeal, Lundahl argues that (1) the trial court’s original decision classifying AIS’s

retained earnings as his nonmarital property was correct, (2) the amount of retained earnings

found by the trial court was incorrect, and (3) the trial court erred when it awarded Hopper

attorney fees. 

A. Classification of a Subchapter S Corporation’s Retained Earnings

Lundahl’s first contention on appeal is that the trial court erred in finding that the retained

earnings of AIS constituted marital property. Lundahl relies on section 503 of the Illinois

Marriage and Dissolution of Marriage Act (the Act) (750 ILCS 5/503 (West 2006)) to support his

position and urges this court not to follow the recent decision of Joynt. Hopper, on the other

hand, maintains that according to Joynt, retained earnings of a subchapter S corporation

constitute income, and because such income was attributable to Lundahl’s personal efforts, such
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earnings were marital property. We begin by looking at the statute, which states in pertinent part: 

 “(a) For purposes of this Act, ‘marital property’ means all property

acquired by either spouse subsequent to the marriage, except the following, which

is known as ‘non-marital property’: 

* * *

(6) property acquired before the marriage; 

(7) the increase in value of property acquired by a method

listed in paragraphs (1) through (6) of this subsection, irrespective

of whether the increase results from a contribution of marital

property, non-marital property, the personal effort of a spouse, or

otherwise, subject to the right of reimbursement provided in

subsection (c) of this Section; and 

(8) income from property acquired by a method listed in

paragraphs (1) through (7) of this subsection if the income is not

attributable to the personal effort of a spouse. 

* * *

(c) Commingled marital and non-marital property shall be treated in the

following manner, unless otherwise agreed by the spouses: 

***

(2) *** when a spouse contributes personal effort to nonmarital property, the contributing estate shall be reimbursed from
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the estate receiving the contribution notwithstanding any

transmutation. *** Personal effort of a spouse shall be deemed a

contribution by the marital estate.” 750 ILCS 5/503 (West 2006). 

 In the trial court, Hopper argued that section 503(a)(8) applied in this case because the

retained earnings constituted income, and that because such income was attributable to Lundahl’s

personal efforts, that income must therefore be classified as marital property. The trial court

found that Hopper misconstrued section 503. It noted that if the retained earnings belonged to

AIS, they would be Lundahl’s nonmarital property via his stock ownership in AIS. On the other

hand, if the retained earnings belonged to Lundahl personally, they would be marital property

subject to division. The trial court reiterated that marital property means all property acquired by

either spouse, and then noted that here, neither spouse received the retained earnings. 

Accordingly, the trial court found that the retained earnings were the property of AIS and located

in AIS’s corporate account and were therefore Lundahl’s nonmarital property. 

Additionally, the court found that Hopper had completely ignored sections 503(a)(7) and

503(c)(2) of the Act, which provide for the possible reimbursement to the marital estate for a

spouse’s personal efforts that increase the value and retained earnings of property. The trial court

noted that Hopper’s argument would render sections 503(a)(7) and 503(c)(2) meaningless

because she defined AIS’s retained earnings as marital property simply because Lundahl’s

personal efforts increased the value of the retained earnings. The trial court stated, “[i]f this were

the correct definition of marital property, ‘reimbursement’ of the marital estate under 503(a)(7)

and 503(c)(2) would be unnecessary in every case and there would be no need for the inclusion
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of 503(a)(7) and 503(c)(2) in the 503 statute.” The trial court found that looking at the Act as a

whole, and recognizing the common rule of law that it is not appropriate to construe a statute in

such a way as to render some of its parts meaningless, AIS’s retained earnings constituted

Lundahl’s nonmarital property. 

After the parties filed motions to reconsider, the Joynt case was issued by the Third

District of the Illinois Appellate Court. In Joynt, the husband, Michael, owned 41 shares of stock

in Mississippi Value Stihl, Inc. (MVS). Joynt, 375 Ill. App. 3d at 818. MVS was a closely held

business designated as a subchapter S corporation. Michael served as the company’s president

and owned 33% of the corporate stock. Joynt, 375 Ill. App. 3d at 818. The retained earnings of

MVS in 2004 were $3,750,929 and were held by MVS for “future operating expenses.” Joynt,

375 Ill. App. 3d at 818. MVS did not pay dividends to its stockholders from the retained

earnings account. However, if the company so chose, it could pay retained earnings dividends

through liquidations of the business or a declaration of the corporate board of directors. Joynt,

375 Ill. App. 3d at 818. Michael was unable to receive a retained earnings dividend individually

unless an equal dividend was paid to and agreed upon by a majority of the shareholders. 

Michael’s 33% ownership in the corporation entitled him to one-third of the retained earnings. 

Joynt, 375 Ill. App. 3d at 818. The trial court found that in this case, the retained earnings were

nonmarital property, but noted that “‘this is not to suggest that under no circumstances would

retained earnings of a nomarital interest in a subchapter S corporation be classified as marital.’”

Joynt, 375 Ill. App. 3d at 818. On appeal, Michael’s wife contended that the trial court erred in

failing to classify Michael’s interest in the retained earnings as marital property. 
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The Third District noted that other jurisdictions have generally held that retained earnings

are nonmarital based on the evaluation of two primary factors: “(1) the nature and extent of the

stock holdings, i.e., is a majority fo the stock held by a single shareholder spouse with the power

to distributed the retained earnings; and (2) to what extend are retained earnings considered in the

value of the corporation.” Joynt, 375 Ill. App. 3d at 819. The court, relying in part on Metz v.

Keener, 215 Wis. 2d 626, 573 N.W.2d 865 (1997), noted that “when a shareholder spouse has a

majority of stock or otherwise has a substantial influence over the decision to retain the net

earnings or to disburse them in the form of cash dividends, courts have held that retained

earnings are marital property.” Joynt, 375 Ill. App. 3d at 820. The Joynt court stated that in

Metz, the court found that retained earnings fund of a corporation inherited by the wife was

income separate from the corporation and could be included in the marital estate because the wife

had “‘full ownership and possession of all the corporate shares and that she [was] the sole

managing force behind the corporation.’” Joynt, 375 Ill. App. 3d at 820, quoting Metz, 215 Wis.

2d at 634, 573 N.W.2d at 869. The Joynt court therefore concluded that “if the shareholder

spouse controls the corporate distribution, the retained earnings are marital property.” Joynt, 375

Ill. App. 3d at 820. 

Based in part on such propositions, the Joynt court found that MVS’s retained earnings

were nonmarital because the company’s stock was held in three unequal shares by three

individuals; Michael possessed only a minority percentage of those shares and was not a

controlling shareholder; and as one of three board members, he could not have unilaterally

declared or withheld dividends. Joynt, 375 Ill. App. 3d at 820. 
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The wife in Joynt, however, went on to argue that the retained earnings should be

classified as a marital asset because they were not corporate assets but rather income available to

the shareholder. The court found that the retained earnings were part of the corporate assets and

were held by the corporation to pay expenses. The court noted that although the undistributed

earnings were taxed to Michael and his wife as their “income” on their individual income tax

returns, MVS paid the tax through year-end designated payments made to Michael. Finally, the

court concluded, “[b]ecause Michael was unable to authorize a payment of the retained earnings

as a dividend without shareholder approval and because the earnings were a corporate asset, we

hold that the retained earnings account of the corporation is a nonmarital asset.” Joynt, 375 Ill.

App. 3d at 821. 

Based upon the above law set out in Joynt, the trial court in the case at bar reclassified

AIS’s retained earnings as marital property. The court noted that while the Joynt decision was

“not directly applicable to this case, as the facts herein differ from the facts presented in Joynt,”

because Lundahl was a sole shareholder, sole officer, and sole director of AIS; had sole

discretion over how much of the retained earnings should be distributed to him; and that the

corporation was a successful entity “solely through his efforts, and his expertise, and his

marketing abilities,” the retained earnings of AIS constituted marital property. 

Lundahl now appeals arguing that the Joynt court’s reliance on other jurisdictions was

misplaced, and that the trial court’s original ruling, whereupon it relied on the Act rather than

Joynt, was correct. 

We first note that a trial court’s classification of property will not be disturbed on appeal
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unless it is contrary to the manifest weight of the evidence. In re Marriage of Jelineck, 244 Ill.

App. 3d 496, 503 (1993). The disposition of property is governed by section 503 of the Act. 

Jelineck, 244 Ill. App. 3d at 503. 

Lundahl argues that the Act, combined with Illinois case law precedent, reveals that AIS’s

retained earnings should have been classified as nonmarital property. Lundahl first points to a

string of cases which holds that a business property interest owned by one spouse prior to the

parties’ marriage is nonmarital property and retains its nonmarital classification despite a

significant increase in its value attributable to personal efforts of a spouse; and that if the

husband makes a reasonable salary during the marriage, the marital estate is not entitled to

reimbursement. See In re Marriage of Kennedy, 94 Ill. App. 3d 537 (1981) (music stores owned

by husband prior to marriage were his nonmarital property and increase in value of those

nonmarital businesses was also his nonmarital property); In re Marriage of Kamp, 199 Ill. App.

3d 1080 (1990) (finding that the Act leaves no doubt but that a business property interest owned

by one spouse prior to the parties’ marriage is nonmarital property and retains its nonmarital

classification despite a significant increase in its value during marriage); In re Marriage of

Landfield, 209 Ill. App. 3d 678 (1991) (a business property interest owned by one spouse prior to

the parties’ marriage is nonmarital and retains its nonmarital classification despite a significant

increase in its value during marriage, and if a contributing spouse’s salary is found to be

reasonable for the efforts contributed, the nomarital business need not reimburse the marital

estate because the contributing spouse’s salary during marriage is marital property and thus the

marital estate has already been compensated); In re Marriage of Perlmutter, 225 Ill. App. 3d 362
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(1992) (if husband’s salary is found to be a reasonable compensation for his efforts, the

nonmarital business need not reimburse the marital estate because husband’s salary during

marriage is marital property); In re Marriage of Steinberg, 299 Ill. App. 3d 603 (1998) (marital

estate not entitled to reimbursement from the accounts receivable of a nonmarital corporation

because the annual income received by the husband during the course of the marriage adequately

compensated the marital estate). 

Lundahl argues, based on the above-cited cases and section 503(a)(7) of the Act (750

ILCS 5/503(a)(7) (West 2006)), that because AIS was acquired before his marriage to Hopper,

despite its increase in value due to his personal efforts, the retained earnings of the corporation

remained nonmarital as part of AIS’s property. Hopper argues, however, relying on Joynt, that

the retained earnings constituted Lundahl’s income. She further notes, relying on section 503(a)

(8) of the Act rather than section 503(a)(7), that income from previously acquired property

becomes marital if it is a result of a spouse’s personal efforts. 750 ILCS 5/503(a)(8) (West 2006). 

Thus, Hopper maintains that because AIS’s retained earnings were attributable to Lundahl’s

personal efforts, the retained earnings were marital. We agree with Hopper. 

As the Third District noted in Joynt, other states have generally held that retained

earnings are nonmarital by evaluating two primary factors: “(1) the nature and extent of the stock

holdings, i.e., is a majority of the stock held by a single shareholder spouse with the power to

distribute the retained earnings; and (2) to what extent are retained earnings considered in the

value of the corporation.” Joynt, 375 Ill. App. 3d at 819. Contrary to the parties’ interpretation

of the case, we do not believe that the Joynt court has set forth a “two-part” test. Rather, the
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Third District acknowledged that these were two primary factors that other jurisdictions relied

upon. Some jurisdictions, as Lundahl noted, relied on only one of those two factors. 

Nonetheless, we will evaluate both factors in light of the facts of the case at bar.

In Joynt, the court found that MVS’s retained earnings were nonmarital because the

company’s stock was held in unequal shares by three individuals; Michael possessed only a

minority percentage of those shares and was not a controlling shareholder, and as only one of

three board members, he could not have unilaterally declared or withheld dividends. Joynt, 375

Ill. App. 3d at 820. Contrarily in this case, Lundahl wholly owned AIS, was the sole shareholder

of AIS, and could have unilaterally declared or withheld dividends. In fact, Lundahl unilaterally

took disbursements from AIS’s retained earnings in the amount of $147,000 in 2004, $218,000 in

2005, and $411,500 in 2006 without requiring approval from anyone else. Accordingly, we find

that the retained earnings were not in fact an asset of the corporation but, rather, constituted

Lundahl’s income. 

The Joynt court found that the retained earnings of MVS, the subchapter S corporation in

question, were a corporate asset, and thus nonmarital. The court based this decision on the fact

that the retained earnings were held by the corporation to pay expenses and the fact that although

the retained earnings were taxed to the husband and wife as “income” on their individual income

tax return, MVS paid the tax through year-end designed payments made to Michael. Joynt, 375

Ill. App. 3d at 821. Contrarily in the case at bar, the retained earnings of AIS were not held by

the corporation to pay expenses. They were not used to pay dividends, nor were they used in

connection with the corporation. Additionally, they were taxed to Lundahl who paid the income
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tax on the earnings. Accordingly, we find that the retained earnings constituted Lundahl’s

income, rather than an asset of AIS. See Ramon v. Ramon, 963 A.2d 128, 133 (Del. 2008),

quoting J.D.P. v. F.J.H., 399 A.2d 207, 216 n.1 (Del. 1979) (retained earnings are “‘corporate net

income which would be available for distribution as dividends, for payment of wages, salaries

and bonus, and other proper corporate purposes’”; they are active earnings generated and retained

during the marriage that add to the value of a premarital asset, in contrast to the passive increase

in value of premarital earnings which is protected by the statute).

We therefore find that section 503(a)(8) of the Act applies. Section 503(a)(8) states that

income from property acquired prior to marriage is nonmarital property if it is not attributable to

the personal effort of a spouse. See 750 ILCS 5/503(a)(8) (West 2006). Lundahl was the sole

owner and shareholder of AIS, and thus the income of AIS during the marriage was attributable

to Lundahl, making such income marital property. Accordingly, pursuant to both Joynt and the

statute, the retained earnings of AIS were properly classified as marital property by the trial court.

B. Amount of Retained Earnings

Lundahl’s next contention on appeal is that the trial court’s valuation of the retained

earnings in the amount of $730,000 was against the manifest weight of the evidence and the trial

court’s award to Hopper of 40 % of that amount was an abuse of discretion. 

Section 503(d) of the Act states that the court shall divide marital property in “just

proportions.” 750 ILCS 5/503(d) (West 2006). The first step, therefore, is to establish the value

of such assets. In re Marriage of Grunsten, 304 Ill. App. 3d 12, 17 (1999). Once a trial court has

classified property as either marital or nonmarital, that decision will not be disturbed on appeal
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unless it is contrary to the manifest weight of the evidence. In re Marriage of Jelinek, 244 Ill.

App. 3d 496, 503 (1993). The manifest weight of the evidence standard is used when assigning

value to an asset after classification because valuation of marital assets is generally a factual

determination. In re Marriage of Hubbs, 363 Ill. App. 3d 696, 700 (2006). Both parties cite In re

Marriage of Cutler, 334 Ill. App. 3d 731 (2002), in support of their positions. 

In Cutler, the husband David was the only shareholder and principal of a closely held

corporation. Cutler, 334 Ill. App. 3d at 736. The agency was a “captive agency” - which means

it could not sell insurance other than that of its principal, Geico. Cutler, 334 Ill. App. 3d at 736. 

The experts who testified at trial applied two different methods of valuation and arrived at

divergent values for the agency. The wife’s expert used the market approach method and found

the agency value to be $270,000. David’s expert used the asset approach method and found the

agency value to be $32,000. The trial court, however, rejected both opinions and found the value

to be $243,000 based on a capitalized returns method - a form of the income approach method. 

Cutler, 334 Ill. App. 3d at 736. The only reference in the record to such amount was a passing

statement made by the wife’s expert when he indicated that after determining the value was

$270,000 based on the market approach, he applied the capitalized returns analysis under which

he found the value to be $243,000. Cutler, 334 Ill. App. 3d at 736. On appeal, the Cutler court

found that the trial court’s reliance on a single cursory reference to the value of the agency,

absent any evidentiary basis for the determination, was against the manifest weight of the

evidence. Cutler, 334 Ill. App. 3d at 737. 

In the case at bar, no expert testimony was offered as to the value of the retained earnings. 
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In its first memorandum opinion, issued April 24, 2007, the trial court found that AIS had

approximately $900,000 in retained earnings. After the parties both filed motions to reconsider

the trial court’s judgment on other grounds, the Joynt case was issued. 

On September 24, 2007, Hopper filed a supplemental brief in reference to the

applicability of In re Joynt. In the last paragraph of such brief Hopper stated that the “amount of

retained earnings in dispute is approximately $730,000.” She did not indicate from where she

got such number. In his reply brief, Lundahl denied that the retained earnings were $730,000. 

Rather, he noted that the only evidence in the record relating to retained earnings was the

corporate federal income tax returns for the years 2004 and 2005, which reflected that the

retained earnings as of December 31, 2005, were $493,130. 

Thereafter, on October 16, 2007, Lundahl filed a motion to reopen proofs. In his motion,

Lundahl claimed that at the time of trial, the 2006 corporate tax returns were not available, but

that they were currently available. Lundahl stated that if the trial court was going to reverse itself

and find the retained earnings to be marital, it needed to have evidence of the amount of retained

earnings. The trial court denied Lundahl’s motion. 

On November 19, 2007, Lundahl filed a motion to clarify the record, in which he stated

that the trial court needed to accurately value the retained earnings and offered two different

ways for the court to do so. The first option was for the trial court to use the Fidelity account

records that were admitted at trial. Lundahl claims that such records reveal that the net profits of

AIS, for the duration of the marriage, amounted to $913,620.25. Lundahl further claims that

$685,000 was distributed to the marital estate during that time, leaving $228,620.25 to be
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classified as retained earnings. The second option Lundahl proposed in his motion to clarify the

record was for the trial court to use the 2006 corporate tax returns, which he requested to be

admitted into evidence. Lundahl claimed that such tax return would show that the amount of the

retained earnings was $338,046 as of December 31, 2006. 

On December 10, 2007, the trial court entered its final judgment order. In finding that the

retained earnings were income, the curt noted that it must redistribute the marital estate. It noted

that “[a]t the time of trial, based on the evidence presented by both sides, the Court found that

there were in excess of $900,000 in retained income and earnings. The Court will use the figure

argued in [Hopper’s] brief that the corrected amount of income and retained earnings was

$730,000.” 

Lundahl now argues that such figure was against the manifest weight of the evidence

because no evidence was presented to support the figure of $730,000. We agree. As in Cutler,

we find that the trial court’s reliance on a single cursory reference to the value of the agency,

absent any evidentiary basis for the determination, was against the manifest weight of the

evidence. See Cutler, 334 Ill. App. 3d at 737. Moreover, Hopper points to no evidence in her

brief to support the figure of $730,000. Accordingly, we remand this cause to the trial court for a

specific finding of the amount of retained earnings. 

Lundahl also argues that Hopper’s award of 40% of the marital estate was an abuse of the

trial court’s discretion. In its original judgment, the trial court awarded Hopper 100% of the

marital estate, which consisted of various monies from bank accounts, a tax refund, and furniture. 

Upon the trial court’s second and final judgment, the trial court reclassified the retained earnings
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as marital property and then converted Hopper’s award from 100% of the marital property to

40%, stating, “[a]fter careful review of the factors set forth in Section 750 ILCS 5/503(d) of the

[Act], the Court awards [Hopper] forty percent (40%) of the marital estate and awards [Lundahl]

sixty percent (60%) of the marital estate.” Because we remand for a specific valuation of the

retained earnings, which made up the majority of the marital estate, we remand for

reconsideration of the distribution of the marital estate as well.

C. Attorney Fees

Lundahl’s final argument on appeal is that the trial court’s award of Hopper’s attorney

fees was an abuse of discretion. Specifically, Lundahl contends that the trial court should have

held an evidentiary hearing on Hopper’s fee petition because he had raised numerous supported

objections against a fee award showing that Hopper’s attorney filed incorrect and irrelevant

pleadings. Hopper responds that Lundahl did not object to the attorney fees and that the trial

court did not abuse its discretion when it awarded Hopper attorney fees. We agree with Hopper. 

A court’s decision to award fees in a particular case “rests in the sound discretion of the

trial court, and exercise thereof will not be interfered with unless such discretion is clearly

abused.” Gasperini v. Gaspirini, 57 Ill. App. 3d 578, 582 (1978). The amount of fees to be

allowed in a divorce proceeding depends on the consideration of the relative financial abilities of

the parties, the nature of the controversy, the question at issue, the significance or importance of

the subject matter, the degree of responsibility involved, the standing or skill of the person

employed, and the time and labor involved. Gasperini, 57 Ill. App. 3d at 582. “The allowance

should be only in such amount as will compensate for the services rendered, and must be fair and
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just to all parties concerned; namely, the attorney to be compensated, the client, and the person

required to make the payment.” Gasperini, 57 Ill. App. 3d at 582. “Furthermore, it should

appear that the work being compensated for was reasonably required and necessary for the proper

performance of the legal services in the case. Gasperini, 57 Ill. App. 3d at 582. 

In this case, Hopper filed her petition for interim attorneys fees and costs incurred and for

prospective attorney fees and costs, pursuant to 750 ILCS 5/501(c)(1) (West 2006), which states

in pertinent part that “[e]xcept for good cause shown, a proceeding for (or relating to) interim

attorney’s fees and costs shall be nonevidentiary, summary in nature, and expeditious.” The Act

further states that in assessing an interim award, the court shall consider all relevant factors as

presented, that appear reasonable and necessary, including: the income of each party, the needs of

each party, the realist earning capacity of each party, any impairment to present earning capacity

of either party, the standard of living established during the marriage, the degree of complexity of

the issues, each party’s access to relevant information, the amount of payments made or

reasonably expected to be made to the attorney for the other party, and any other factor that the

court finds to be just and equitable. See 750 ILCS 5/501(c)(1) (West 2006). 

Lundahl then filed his response, citing several objections including that the rates charged

by Hopper’s counsel were in excess of reasonable and normal rates, and that Hopper failed to

attach any supporting documentation reflecting the amount of attorney fees and costs. 

On April 11, 2008, a hearing was held. Hopper’s attorney noted that in an interim fee

petition hearing, it was unnecessary to attach his billing invoices because the hearing is summary

in nature. However, he did bring his invoices to court and the trial court took time to review
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them. The trial court then asked Hopper’s attorney several questions concerning the invoices and

then stated, “All right. Anybody else have anything to say before I rule on the petition for

interim fees?” Lundahl’s attorney responded, “No, Judge.” The trial court then stated that it had

heard the argument of counsel and had read the various briefs and invoices. The trial court

further stated that it had considered the factors set forth in sections 501 and 508 of the Act, and

found that Hopper did not have the ability to pay and that Lundahl did have the ability to pay. 

The trial court found that the time expended and the hourly rates charged by Hopper’s attorney

were reasonable and necessary. The trial court awarded Hopper $14,500 in attorney fees. 

Based on careful review of the record, we find that the trial court did not abuse its

discretion in awarding Hopper attorney fees. The amount of fees were based on the

consideration of the factors set forth in the statute, and the work being compensated for was

reasonably required and necessary for the proper performance of legal services in this case. See

Gaspirini, 57 Ill. App. 3d at 582. Accordingly, we find that the trial court did not abuse its

discretion in awarding Hopper attorney fees in the amount of $14,500. 

III. CONCLUSION

For the foregoing reasons, we affirm in part the judgment of the circuit court of Cook

County and remand for a finding of the specific amount of retained earnings, as well as a

reconsideration of the distribution of the marital estate based on such finding. 

Affirmed in part; cause remanded for further proceedings in accordance with this

Opinion.

TOOMIN, P.J., and HOWSE, J., concur. 
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