2021 IL App (2d) 200648-U 

No. 2-20-0648 

Order filed December 17, 2021

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as 

precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). 

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

______________________________________________________________________________ 

In re MARRIAGE OF ) Appeal from the Circuit Court

JOANN O’HARA, ) of Kane County. 

) 

Petitioner-Appellant, ) 

) 

and ) No. 16-D-667 

) 

DAVID O’HARA, ) Honorable 

) René Cruz, 

Respondent-Appellee. ) Judge, Presiding.

______________________________________________________________________________ 

JUSTICE BRIDGES delivered the judgment of the court.

Justices Jorgensen and Brennan concurred in the judgment.

ORDER

¶ 1 Held: The trial court did not err in granting summary judgment for respondent. Therefore, 

we affirm. 

¶ 2 Petitioner, Joann O’Hara, and respondent, David O’Hara, were married on August 27, 

1977, and their marriage was dissolved on December 19, 2017. Petitioner currently appeals from 

the trial court’s grant of summary judgment for respondent on the issue of whether he should be 

responsible for paying her attorney fees for her prior appeal. We affirm. 

I. BACKGROUND
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¶ 3 In September 2018, petitioner filed a petition for rule to show cause why respondent should 

not be held in contempt for failing to have a $300,000 death benefit coverage for maintenance, as 

required by their modified dissolution judgment. Following a hearing on November 1, 2018, the 

trial court found that respondent was not in contempt. It ruled that he was to maintain death benefits 

in the amount of $200,000, with that total declining monthly based on maintenance payments. 

¶ 4 Petitioner appealed, arguing that the trial court erred in: modifying the level of death benefit 

coverage without a showing of a substantial change in circumstances; not conducting a meaningful 

formal hearing on her petition for contempt; treating her petition for contempt as a motion to 

modify; and denying her motion to reconsider. We held that the trial court erred in modifying the 

amount of death benefit coverage for maintenance, because respondent never filed a motion to 

modify. We further held that any error in not receiving a formal hearing on the petition for 

contempt was invited error because petitioner acquiesced in the manner the trial court conducted 

the hearing on the petition. We therefore affirmed in part, reversed in part, and remanded.

¶ 5 On March 2, 2020, petitioner filed a petition for attorney fees and costs, in which she sought 

fees and costs for the appeal. She filed an amended petition on August 13, 2020. Petitioner alleged 

that she had requested that her attorney, Benedict Schwarz, continue to represent her in the appeal 

of the November 1, 2018, order; she substantially prevailed in the appeal; and section 508(a)(3.1) 

of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/508(a)(3.1)

(West 2020)) allowed for an award of attorney fees and costs. That section states:

“The court from time to time, after due notice and hearing, and after considering 

the financial resources of the parties, may order any party to pay a reasonable amount for 

his own or the other party's costs and attorney’s fees. Interim attorney’s fees and costs may 

be awarded from the opposing party, in a pre-judgment dissolution proceeding in 
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accordance with subsection (c-1) of Section 501 and in any other proceeding under this 

subsection. At the conclusion of any pre-judgment dissolution proceeding under this 

subsection, contribution to attorney’s fees and costs may be awarded from the opposing 

party in accordance with subsection (j) of Section 503 and in any other proceeding under 

this subsection. Fees and costs may be awarded in any proceeding to counsel from a former 

client in accordance with subsection (c) of this Section. Awards may be made in connection 

with the following:

* * *

(3) The defense of an appeal of any order or judgment under this Act, 

including the defense of appeals of post-judgment orders.” Id.

Petitioner requested attorney fees and costs of $74,509.15 and attached time sheets detailing the 

work done. 

¶ 6 Respondent filed a motion for summary judgment on June 29, 2020. Citing this court’s 

decision in In re Marriage of Magnuson, 156 Ill. App. 3d 691, 701-02 (1987), he argued that a 

precondition to entitlement for attorney fees under section 508(a) was that the party have an actual 

underlying obligation to pay the fees in the first instance. Respondent asserted that petitioner made 

admissions in her deposition showing that she lacked such an obligation. 

¶ 7 On August 6, 2020, petitioner filed a response to the summary judgment motion arguing 

that she and her attorney had a properly executed retainer agreement dated May 25, 2016, that 

remained in full force and effect. On August 13, 2020, Schwarz submitted an affidavit stating that 

he had continually represented petitioner from May 25, 2016, to the present date, and he attached 

a copy of the retainer agreement. 

¶ 8 Respondent filed a response on August 27, 2020, asserting that the retainer agreement 
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specifically stated that it did not apply to appeals. 

¶ 9 A hearing on the motion for summary judgment took place on September 29, 2020. The 

trial court issued its ruling on October 5, 2020, stating as follows. The fee agreement covering the 

pendency of petitioner’s prior litigation stated: “Services required in any subsequent enforcement 

or modification proceedings, appellate proceedings or proceedings attacking the trial court’s 

judgment shall be subject to a new and separate agreement.” The last time the matter was in court 

was in February 2018, so it appeared that the paragraph would apply to anything that would have 

occurred subsequent to that time, and require a new agreement. Petitioner relied on the last 

paragraph of the agreement, which stated: “Notwithstanding, [sic] the above, representation will 

continue until judgment is entered or until I no longer represent you, at which time the remaining 

balance is due in full unless other arrangements are made.” The trial court stated that because 

judgment had already been entered and there was nothing pending in the trial court, it seemed that 

under the agreement’s terms, the representation had ended. 

¶ 10 The trial court further stated that respondent pointed to language in the agreement stating 

that petitioner would be billed monthly, with payment expected within 10 days. Respondent also 

pointed to the following language in petitioner’s deposition regarding the fees for the appeal:

“Q: So I noticed in your credit charges that starting in January you’ve made—from 

January 1st [2020] till now you’ve made three payments to Mr. Schwarz’s office; is that 

correct?

A: I believe it has been three. I don’t have the dates on it. But, yes, there have been 

three, yes.

Q: And those were in payment of invoices that you’ve received from Mr. Schwarz’s 

office?
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A: Yes.

Q: And are those itemized statements?

A: Yes, they are. 

Q: And are you current with his office presently?

A: No.

* * *

Q: All of 2019 you didn’t make any payments, correct?

A: Not that I can remember, no.

* * *

Q: Did you ever receive any invoices from Mr. Schwarz’s office while matters were 

pending on appeal?

A: I don’t understand the question.

Q: Well, you obviously have made payments in *** January, March, and May

[2020], and I think those payments totaled up over $5,000, and you say you— 

A: Yes.

Q: —think you owe over $6,000. That’s based on invoices you received from his 

office; is that correct?

A: Yes. I had—they were all sent to me via email with Angela from his office, yes.

Q: All right. So in the—you get those once a month?

A: I don’t know when I got them. They were—they came out—probably not.

Q: It lists what work’s been done, telephone conference with client— 

A: Yes.

Q: —letter to Attorney Doyen, court appearance, correct?
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A: Yes.

Q: So it basically itemized all the work done, correct?

A: Yes.

Q: And when did you begin receiving those invoices?

A: First off, I didn’t get any mail, so the ones that were mailed I didn’t see until I 

came home here two weeks ago. The ones that were done online, whatever dates those 

were sent out to me were the dates I saw them, but I don’t have my email open to tell you 

when the dates were.

Q: Well, you weren’t—when did you go to Florida?

A: January 20th. 

Q: All right. Did you receive any invoices before you went to Florida?

A: I don’t remember.

Q: Okay. You say you did not make any payment to Mr. Schwarz during 2019; is 

that correct?

A: Not that I can remember.

Q: Do you recall getting any invoices during 2019?

A: I do not.

Q: So do you know why it is you were not getting invoices during 2019?

A: The only thing I can remember about 2019 was the appeal to the appellate court 

for the contempt of court getting a life insurance policy, that would have been 2019.

Q: All right. Well, did you get invoices detailing the work that was being done on 

the appeal?

A: You know, Mike, if I did they’re in a pile somewhere here.
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Q: Well, did you pay any of them?

A: No.

Q: Why is that?

A: Because we didn’t resolve the problem yet?

Q: What do you mean ‘didn’t resolve the problem’? 

A: Well, from what I understand, he appealed the amount of time and money he put 

in because [respondent] was in contempt of court getting his life insurance policy, and he 

took it to the appellate court and it took forever and ever for that to get to the appellate 

court, and that was just, I think, in the end of January.

Q: So what does that have to do with paying your fees?

A: Because I wasn’t paying any fees until we figured out where we were at with all 

that.

Q: What do you mean figured that out?

A: Well— 

Q: Was there an agreement with Mr. Schwarz for payment of fees on the appeal?

A: No, there wasn’t an agreement. We just—I signed—at the time I signed the 

information and he was taking it to the appellate court and we were going to discuss it 

afterwards.

Q: So is there a signed agreement with regard to the fees incurred on the appeal?

A: I don’t know.

Q: Well, you just said you signed something.

A: Prior to him—when he was doing the motions—I don’t understand all the legal 

things. I signed paperwork that he was going to try to appeal the fact that Judge Cruz had 
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denied him having to get an insurance policy. Then I signed him to go into the appellate 

court. That’s all I can recall.

Q: Have you paid any money to Mr. Schwarz for the fees or costs for the appeal?

A: For the appeals with regard to the life insurance policy?

Q: Correct.

A: No.

* * *

Q: So your testimony under oath is that Mr. Schwarz on your behalf undertook the 

professional responsibility for filing an appeal, prosecuting an appeal through to final 

resolution by the appellate court without any agreement between you and he as to how or 

when any attorney’s fees would be paid?

A: That is correct.”1

The trial court stated that based on the contract and deposition testimony, it believed that there was 

not a specific obligation or agreement, whether written or not, that existed between petitioner and 

her attorney for fees, so she could not shift the obligation of paying any portion of the fees to 

1 We have quoted the deposition testimony as set forth in the parties’ pleadings, and not 

the trial court’s recitation of the deposition testimony, which paraphrased some sections. 

Although not quoted by the trial court at the hearing, petitioner further stated in her 

deposition that she did not receive regular invoices to know that the appellate fees were 

approaching $74,000. Further, when asked, “And when you made the decision to authorize him to 

pursue the appeal, what was your understanding of what your obligation was to pay him the fees?”, 

petitioner replied, “I didn’t have one.”
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respondent for the expenses incurred on appeal. This was not a situation that might present an 

exception to this rule, such as a pro bono case or one in which the fees were discharged. 

Accordingly, the trial court granted summary judgment for respondent. 

¶ 11 On November 2, 2020, the trial court entered a finding pursuant to Illinois Supreme Court 

Rule 304(a) that there was no just reason for delaying the enforcement or appeal of the order. 

Petitioner timely appealed. 

¶ 12 II. ANALYSIS 

¶ 13 On appeal, petitioner contests the grant of summary judgment for respondent. Summary 

judgment is appropriate only where the pleadings, depositions, admissions, and affidavits on file, 

when viewed in the light most favorable to the nonmoving party, show that there is no genuine 

issue of material fact and that the moving party is entitled to judgment as a matter of law. 735 

ILCS 5/2-1005(c) (West 2020). We review de novo a trial court’s ruling on a motion for summary

judgment. Nichols v. Fahrenkamp, 2019 IL 123990, ¶ 13.

¶ 14 Petitioner asserts that respondent took the position that she had no obligation to pay her 

attorney fees and therefore could not transfer the obligation to respondent. According to petitioner, 

respondent argued that she did not receive monthly billing statements, there was no fee agreement 

regarding the appeal, and there was no ongoing litigation in the case from February to September 

2018. Petitioner argues that, to the contrary, there were genuine issues of material fact such that 

the trial court erred in granting summary judgment for respondent. Specifically, she points to her 

deposition testimony that she received invoices via e-mail and that the bills were itemized; 

answered “I don’t remember” in response to whether she received invoices in 2019 during the 

appeal; and testified that the invoices could be in a pile somewhere. Petitioner also highlights her 

testimony that she “wasn’t paying any fees until we figured out where we were at with all that,” 
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and she asserts that she never stated that she did not have an obligation to pay attorney fees. 

Petitioner maintains that her response of “I didn’t have one” when asked about her understanding 

of her obligation to pay fees was not an assertion that she did not have an obligation to pay fees, 

given the retainer agreement and her previous testimony. She argues that her responses show that 

she was confused and did not understand many of the questions, and that she contradicted herself 

many times. Petitioner maintains that her deposition testimony was at best unclear and ambiguous. 

¶ 15 On the subject of the retainer agreement, petitioner emphasizes that although it states that 

services required in appellate proceedings shall be subject to a new and separate agreement, it 

subsequently states that “[n]otwithstanding, the above, representation will continue until judgment 

is entered or until I no longer represent you, at which time the remaining balance is due in full 

unless other arrangements are made.” (Emphasis added.) Petitioner argues that Schwarz’s 

representation of her per the agreement was therefore ongoing. She additionally argues that 

nothing prohibited her and her attorney from waiting to see if the trial court would award attorney 

fees for the appeal before requiring her to pay the remaining balance. She contends that the proper 

time to contest the validity of the retainer agreement would have been at a hearing on her petition 

for fees, as opposed to on a motion for summary judgment. 

¶ 16 Regarding whether there was ongoing litigation between February and September 2018, 

she argues that no exhibits were provided to the court to support respondent’s contention that there 

was no such litigation. Petitioner asserts that, to the contrary, Schwarz’s representation of her never 

ceased. She highlights that the record shows that the trial court entered an order on February 9, 

2018, regarding life insurance and other issues. She argues that there was also activity outside of 

court, as shown by a letter dated August 6, 2018, from Schwarz to respondent’s attorney, which 

was attached as an exhibit to her September 6, 2018, petition for indirect civil contempt. Petitioner 
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maintains that in 2019, Schwarz continued to represent her with regard to her first appeal, and then 

in response to respondent’s November 2019 petition to modify or terminate maintenance. She 

argues that it is important to note that the aforementioned petition was served on Schwarz, as 

respondent’s attorney knew that Schwarz was still representing her. Petitioner contends that the 

record itself raises genuine issues of material fact regarding if and when her attorney-client 

relationship with Schwarz ever ended. 

¶ 17 Petitioner argues that the trial court erroneously failed to construe the pleadings, 

depositions, admissions, and affidavits liberally in her favor, and further tried issues of fact instead 

of determining that issues of fact existed. 

¶ 18 Respondent argues that the “material fact determined by the trial court was that Petitioner 

had no underlying obligation to pay the attorney’s fees and costs” and that the “matter of law 

decided by the Trial Court is that because [p]etitioner had no obligation to pay the fees and costs[,] 

there is no legal basis for shifting these fees and costs to [r]espondent.” He further contends that 

petitioner never submitted any counter-affidavits or other documents to contradict her deposition 

testimony or otherwise establish that she had an obligation to pay attorney fees and costs, nor did 

her attorneys ask clarifying questions during the deposition. Respondent points out that without 

supporting evidence, the suggestion that an issue of material fact exists is insufficient to create 

one. See Sacramento Crushing Corp. v. Correct/All Sewer, Inc., 318 Ill. App. 3d 571, 575 (2000). 

He argues that petitioner’s own pleadings support the trial court’s conclusion that there was no 

genuine issue of material fact, as in her initial pleading she alleged that she engaged her attorney 

to represent her on appeal, but later amended the pleading to recharacterize it as a continuation of 

the original representation from the retainer agreement. 
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¶ 19 Respondent additionally argues that petitioner’s deposition testimony established that 

neither she nor her attorneys were operating under the terms of the original retainer agreement. He 

highlights, as did the trial court, that the agreement states that appellate proceedings are subject to 

a new and separate agreement. He also notes that the agreement states that billing statements were 

to be sent monthly, with balances due within 10 days. Respondent maintains that petitioner’s 

deposition testimony makes clear that she did not receive monthly invoices while the matter was 

pending on appeal; did not make any payments for services rendered on appeal; and began 

receiving monthly invoices and making timely payments only once post-decree matters resumed

in the trial court. 

¶ 20 Respondent argues that although petitioner never openly states so, it is clear that she and 

her attorneys undertook the prior appeal with the understanding that she would not have an 

obligation to pay fees and costs, and that if they were successful on appeal, they would seek 

payment from respondent. Respondent argues that, under these circumstances, fee shifting cannot 

occur under Magnuson. 

¶ 21 In her response, petitioner highlights that respondent states that the trial court “determined” 

a “material fact,” which is improper because the trial court may not determine material facts at the 

summary judgment stage. See Voral v. Voral, 38 Ill. App. 2d 328, 331 (1962). She asserts that 

although the trial court itself did not say that it was determining a material fact, it did so by ruling 

on the most contested material fact, being the validity of the retainer agreement. Petitioner further 

argues that she signed pleadings that stated that she had an obligation to pay her fees, and she 

provided the court with a detailed transaction sheet showing the hourly work and fees incurred in 

the 2019 appeal. 
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¶ 22 We note that Magnuson held that the phrase “ ‘necessarily incurred by the other spouse,’ ” 

which was contained in the version of section 508 in effect at the time of Magnuson, meant that 

the statute “require[d] a spouse to be personally liable for such fees before the other spouse can be 

required to pay them.”2 Petitioner has not argued that Magnuson’s holding is incorrect or does not 

apply to the current version of the statute, so we do not address that issue. See Ill. S. Ct. R. 

341(h)(7) (eff. Oct. 1, 2020) (points not argued are forfeited); see also Khoury v. Niew, 2021 IL 

App (2d) 200388, ¶ 31 (we may affirm a grant of summary judgment on any basis in the record 

but may not reverse a grant of summary judgment on any grounds found in the record); Atlas v. 

Mayer Hoffman McCann, P.C., 2019 IL App (1st) 180939, ¶ 33 (a reviewing court is not a 

repository into which an appellant may dump the burden of argument and research, nor is it our 

obligation to act as an advocate, and the failure to clearly define issues and support them with 

authority results in forfeiture of the argument). Significantly, we should not sua sponte consider 

issues unless there is an obvious error and we would not need to speculate what the parties’ 

arguments would be (People v. Givens, 237 Ill. 2d 311, 329-30 (2010)), which is not the situation 

here. We will therefore apply Magnuson to this case.

¶ 23 Turning to the retainer agreement, we must determine whether it is ambiguous or 

unambiguous, which is a question of law that we review de novo. Bozek v. Erie Insurance Group, 

2015 IL App (2d) 150155, ¶ 20 (we review de novo contract interpretation issues, including 

whether a contract is ambiguous). We interpret a contract to give effect to the parties’ intent. 

2 We acknowledge that in In re Marriage of Putzler, 2013 IL App (2d) 120551, ¶ 42, we 

stated in dicta that Magnuson was not applicable because “section 508(a) has been amended and 

the ‘necessarily incurred’ language relied upon by the court in Magnuson was deleted.”
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Ritacca Laser Center v. Brydges, 2018 IL App (2d) 160989, ¶ 15. A contract is ambiguous if its 

language is susceptible to more than one reasonable interpretation. Id. 

¶ 24 The retainer agreement states that “[s]ervices required in any subsequent enforcement or 

modification proceedings, appellate proceedings or proceedings attacking the trial court’s 

judgment shall be subject to a new and separate agreement.” Under this provision, it is clear that 

Schwarz’s appellate work for petitioner would not be covered. Petitioner relies on a subsequent 

provision at the end of the contract stating, “Notwithstanding, the above, representation will 

continue until judgment is entered or until I no longer represent you, at which time the remaining 

balance is due in full unless other arrangements are made.” However, “ ‘[c]ourts and legal scholars 

have long recognized that, where both a general and a specific provision in a contract address the 

same subject, the more specific clause controls.’ ” Wood v. Evergreen Condominium Ass’n, 2021 

IL App (1st) 200687, ¶ 51 (quoting Grevas v. United States Fidelity & Guaranty Co., 152 Ill. 2d 

407, 411 (1992)). The first provision clearly and directly states that appellate proceedings shall be 

subject to a new and separate agreement, whereas the second provision does not specifically 

identify appellate proceedings at all. We recognize that we must construe a contract in a manner 

that none of its terms are rendered meaningless or superfluous. Salce v. Saracco, 409 Ill. App. 3d 

977, 982 (2011). Giving effect to the first provision does not render the second provision 

superfluous, as the second provision is focused on recouping attorney fees due from the client for 

work that has already been completed. 

¶ 25 Schwarz’s behavior was consistent with our interpretation of the contract, as the deposition 

shows that petitioner did not receive monthly invoices for work on the 2019 appeal, which the 

retainer agreement specifies, and correspondingly was not required to pay for the invoices within 

10 days. As respondent points out, when Schwarz began doing work for petitioner in the trial court 
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again, as opposed to the appellate work, he resumed sending out invoices, and petitioner had paid 

him over $5,000. Therefore, the retainer agreement does not create a genuine issue of material fact 

that would prevent summary judgment for respondent. 

¶ 26 Looking more generally at petitioner’s deposition testimony, we similarly conclude that it 

does not create a genuine issue of material fact that would defeat summary judgment. Petitioner 

testified that she did not remember getting any invoices or making any payments to Schwarz during 

2019, when the appeal was pending, and that she had not paid any fees for the appeal up to the 

time of the deposition. When asked, “So your testimony under oath is that Mr. Schwarz on your 

behalf undertook the professional responsibility for filing an appeal, prosecuting an appeal through 

to final resolution by the appellate court without any agreement between you and he as to how or 

when any attorney’s fees would be paid?”, petitioner replied, “That is correct.” Additionally, when 

asked, “And when you made the decision to authorize him to pursue the appeal, what was your 

understanding of what your obligation was to pay him the fees?”, petitioner replied, “I didn’t have 

one.” Based on petitioner’s testimony, she did not have an obligation to pay any specific amount 

of attorney fees as a result of the appeal, such that there is no genuine issue of material fact that 

petitioner had not “incurred” nor was “personally liable” for the fees and costs of $74,509.15 that 

she sought to charge to respondent. 

¶ 27 Petitioner argues that some of her responses showed that she was confused and that she 

gave contradictory answers, but the progression of the questioning shows that she was

understanding and addressing the issue more directly as the questioning continued; the quoted

portions above are subsequent to the sections of the deposition relied on by petitioner. “A party 

opposing a motion for summary judgment cannot rest on its pleadings if the other side has supplied 

uncontradicted facts that would warrant judgment in its favor [citation], and unsupported 
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conclusions, opinions, or speculation are insufficient to raise a genuine issue of material fact.” 

Valfer v. Evanston Northwestern Healthcare, 2016 IL 119220, ¶ 20. We agree with respondent 

that the quoted deposition testimony supported his motion for summary judgment, and that 

petitioner did not adequately contradict this testimony within the deposition testimony provided or 

through other means, such as submitting invoices that were sent to her or copies of communications 

regarding the payment of appellate court fees. Accordingly, the trial court did not err in granting 

summary judgment for respondent.

¶ 28 III. CONCLUSION

¶ 29 For the reasons stated, we affirm the judgment of the Kane County circuit court. 

¶ 30 Affirmed.