Section 508(a)(3.1) of the Illinois Marriage andDissolution of Marriage Act (Act) (750 ILCS 5/508(a)(3.1) (West2000)) provides that a trial court may award attorney fees for"[t]he prosecution of any claim on appeal (if the prosecutingparty has substantially prevailed)." This case presents theissue of what the phrase "substantially prevailed" means as usedin that section.

In November 1992, the trial court dissolved the marriage of petitioner, Catherine Murphy (now Madonia), and respondent, Michael R. Murphy, and awarded physical custody of theirchild, Robert, to Catherine, subject to Michael's visitation. The court also divided the marital estate, which included a largepersonal injury settlement, and awarded Catherine $600 in monthlychild support. Catherine appealed the court's decision, and thiscourt affirmed (In re Marriage of Murphy, 259 Ill. App. 3d 336,631 N.E.2d 893 (1994)).

In January 1994, while her appeal was pending,Catherine filed a petition to modify child support, alleging thatan increase in Michael's salary constituted a substantial changein circumstances. In November 1998, the trial court entered anorder increasing Michael's monthly child support obligation to$850. Catherine appealed that order, arguing that the trialcourt erred (1) in modifying Michael's support obligation by (a)applying the law-of-the-case doctrine and refusing to consider aspart of Michael's net income the $90,000 annuity payments hereceived pursuant to the personal injury settlement, (b) deviating downward from the statutory support guidelines, and (c)making the increased support obligation retroactive only toJanuary 1998; and (2) by refusing to award her attorney fees. This court agreed that the trial court had erred by awardingchild support in an amount lower than the statutory minimum (750ILCS 5/505(a)(1) (West 1998)) and remanded the case for furtherproceedings. As to Catherine's remaining issues, this courtaffirmed the trial court's judgment. In re Marriage of Murphy,No. 4-99-0215 (January 10, 2000) (unpublished order under SupremeCourt Rule 23).

In September 2000, Catherine filed a motion for attorney fees incurred in prosecuting her appeal. Catherine attachedher attorney's billing records to the motion, showing a totalcost of over $7,000.

In October 2000, the trial court conducted a hearing toaddress (1) Catherine's motion for attorney fees incurred inprosecuting her appeal, (2) this court's order on remand, and (3)Michael's petition for rule to show cause demanding thatCatherine pay her share of some of Robert's medical expenses. The only testimony directly related to Catherine's motion forattorney fees was as follows:

"Q. [CATHERINE'S ATTORNEY]: And now,[Catherine], when you prosecuted the appeal,did you incur attorney's fees?

A. [CATHERINE]: Yes, I did.

Q. And have you paid those attorney's fees?

A. No. I paid some of them, part ofthem. Not all of them.

Q. And you entered into an agreementwith me for an hourly rate as set forth inour motion?

A. Yes, I did."

No evidence was presented regarding the parties' financialcircumstances. However, Catherine's attorney argued as follows: "The [c]ourt has the parties' affidavits and incomes available tothem from the time which this motion was arranged. I trust thatthe [c]ourt can review the motion and its prior evidence and therecord and make an appropriate determination."

Following the hearing, the trial court ordered, inpertinent part, as follows:

"Upon consideration of all statutory factors,the [c]ourt awards to [Catherine's attorney]the sum of $1,750.00 for attorney fees onappeal. *** The court having taken intoaccount the continuous litigation between theparties and the need to resolve outstandingmatters for the appropriate administration ofjustice directs that taking into furtheraccount the fact that [Michael] owes $848 inunpaid child support plus $1[,]750 in attorneys fees for a sum of $2,598 and that[Catherine] owes to [Michael] the sum of$1,974.82 in unpaid medical expenses, directsthat [Michael] pay to [Catherine] the sum of$623.82 within 30 days."

In January 2001, Michael filed a posttrial motion andsupporting memorandum arguing, in pertinent part, that the trialcourt erred by ordering him to pay a portion of Catherine'sattorney fees on appeal. In March 2001, the trial court deniedMichael's motion. Michael appeals, arguing only that the trialcourt erred by ordering him to pay a portion of the attorney feesCatherine incurred in prosecuting her appeal. We reverse.

II. THE ATTORNEY FEE AWARD

Michael argues that the trial court erred by orderinghim to pay a portion of Catherine's attorney fees on appeal whenshe did not (1) substantially prevail on appeal or (2) show thatshe was unable to pay her own attorney fees. Because we agreewith Michael's first argument, we need not address his second.

Attorney fees are generally the responsibility of theparty who incurred them. In re Marriage of Hasabnis, 322 Ill.App. 3d 582, 598, 749 N.E.2d 448, 461 (2001). However, section508 of the Act allows a trial court, at its discretion, to awardattorney fees under certain circumstances. 750 ILCS 5/508(a)(West 2000); In re Marriage of Minear, 181 Ill. 2d 552, 562, 693N.E.2d 379, 383 (1998), quoting In re Marriage of Bussey, 108Ill. 2d 286, 299-300, 483 N.E.2d 1229, 1235 (1985). Pursuant tosection 508(a)(3.1) of the Act, fees may be awarded in connectionwith "[t]he prosecution of any claim on appeal (if the prosecuting party has substantially prevailed)." 750 ILCS 5/508(a)(3.1)(West 2000). Statutes that provide for an award of attorney feesare in derogation of common law and must be strictly construed. Ardt v. State of Illinois, 292 Ill. App. 3d 1059, 1063, 687N.E.2d 126, 129 (1997). Thus, before awarding a party attorneyfees for the prosecution of her appeal, the trial court mustdetermine--as a threshold matter--whether the party "substantially prevailed" on appeal. What it means to "substantiallyprevail" on appeal under the Act has never been considered by acourt of review. Thus, this case presents a question of firstimpression.

The following Illinois statutes allow for attorney feeawards to "substantially prevailing" parties: (1) section 11(i)of Illinois' Freedom of Information Act (Illinois FOIA) (5 ILCS140/11(i) (West 2000)); (2) section 3(d) of the Open Meetings Act(5 ILCS 120/3(d) (West 2000)); and (3) section 13 of the MotorVehicle Franchise Act (Franchise Act) (815 ILCS 710/13 (West2000)). The phrase "substantially prevailing" has been construedonly under the Illinois FOIA; however, that construction isspecifically tailored to that statute and thus provides us withlittle guidance. See for example, Duncan Publishing, Inc. v.City of Chicago, 304 Ill. App. 3d 778, 786, 709 N.E.2d 1281, 1288(1999) (holding that a "substantially prevailing" party must showthat (1) prosecution of the action was "reasonably necessary" toobtain the information sought, and (2) a causal nexus existsbetween the action and the agency's surrender of the information).

Illinois courts have generally defined a "prevailing"party for the purposes of a fee-shifting provision as one who (1)"is successful on any significant issue in the action andachieves some benefit in bringing suit," (2) receives a judgmentin his favor, or (3) achieves an affirmative recovery. Med+PlusNeck & Back Pain Center, S.C. v. Noffsinger, 311 Ill. App. 3d853, 861, 726 N.E.2d 687, 694 (2000). Relying on federal law,Illinois courts have also held that "[t]o qualify as a prevailingparty, a plaintiff must succeed in obtaining some relief from thedefendant against whom attorney fees are sought." (Emphasisadded.) Community Consolidated School District No. 54 v. Illinois State Board of Education, 216 Ill. App. 3d 90, 94, 576N.E.2d 250, 253 (1991), citing Max M. v. Illinois State Board ofEducation, 684 F. Supp. 514, 523 (N.D. Ill. 1988); see alsoBrewington v. Illinois Department of Corrections, 161 Ill. App.3d 54, 63-64, 513 N.E.2d 1056, 1063 (1987); Becovic v. City ofChicago, 296 Ill. App. 3d 236, 240, 694 N.E.2d 1044, 1047 (1998)(citing Hensley v. Eckerhart, 461 U.S. 424, 433, 76 L. Ed. 2d 40,50, 103 S. Ct. 1933, 1939 (1983), for the proposition that a"prevailing party" need only have prevailed on any one significant issue and received some of the benefit they sought in filingsuit).

Certain federal statutes allow attorney fee awards to"prevailing" or "substantially prevailing" parties. Most notably, section 1988 of the Civil Rights Attorney Fee's Awards Act(Awards Act) (42 U.S.C.