Introduction Appellate courts have a duty to consider, sua sponte, whether they have jurisdiction over an appeal and to dismiss the appeal if jurisdiction is lacking.1 As one justice aptly noted, jurisdiction "is not a right possessed by the parties, but a prerogative of the court…"2 It has been over 20 years since the Supreme Court in In re Marriage of Leopando addressed the issue of appellate jurisdiction in dissolution of marriage proceedings, and yet preserving appellate jurisdiction in those proceedings continues to perplex even seasoned practitioners.3 Given the fact that a court lacking jurisdiction cannot confer any relief, the confusion surrounding appellate jurisdiction has made this area a potential malpractice landmine field for any attorney practicing in the area of family law.4 This article examines the law concerning the preservation of appellate jurisdiction in dissolution of marriage proceedings under the Illinois Marriage and Dissolution of Marriages Act (IMDMA) as it is commonly faced by family law practitioners.
II. Jurisdiction in Dissolution of Marriage Proceedings
In dissolution of marriage proceedings, the basic issues confronting a court are all part of a single unified claim.5 The issues in a dissolution case, including custody and support, "do not represent separate, unrelated claims; rather, they are separate issues relating to the same claim."6 As a result, orders resolving individual issues in dissolution proceedings are not appealable — even with a finding under Supreme Court Rule 304(a) — until the trial court resolves the entire dissolution claim.7 Thus, an appeal from a judgment for dissolution of marriage is not ripe when other related issues remain unresolved or have been reserved. Simply put, all issues must be resolved before a judgment becomes final and appealable.8
Ripeness of the claim
Determining when an appeal is ripe is the lawyer’s primary concern in securing appellate jurisdiction over dissolution of marriage proceedings. The difficulty lies in determining which issues are related and which are incidental or unrelated to the single unified claim presented by a petition for dissolution of marriage proceeding. For example, courts have held that a judgment for dissolution of marriage is not final and appealable if it reserves jurisdiction for the purposes of: 1) entering a joint parenting agreement9; 2) resolving property distribution, classification of nonmarital/marital property, maintenance, child support, and attorneys’ fees10; or 3) resolving visitation, post-high-school education expenses, and maintenance.11 In instances of joint custody, it is important to recognize that the entry of a joint parenting agreement is not merely incidental to the final judgment, but rather is a requirement for a final judgment. 12 Most problems in this area result from the reservation of jurisdiction over parts of a judgment for dissolution of marriage.
While the law of appellate jurisdiction at first blush appears to be clear, its application in practice is much more muddled. As a result, an analysis of specific issues, recently addressed by Illinois courts is instructive and provides a helpful guide for avoiding potential landmines.
III. Specific Issues of Appellate Jurisdiction in Dissolution of Marriage Proceedings
Based on reported appellate court decisions, the following appellate jurisdiction issues have been addressed in the dissolution of marriage context in recent years: post-decree proceedings, interlocutory custody orders, interim attorneys fees, final attorneys fees, attorneys fees and time for filing appeal, contempt findings, denial of contempt petitions, declaratory judgments for premarital agreements, and injunctions. Following is an overview of the disposition of those specific individual jurisdictional issues.
How is Appellate Jurisdiction Treated for Post-Decree Proceedings Under the IMDMA? The short answer depends on which district has the appeal. There is a disagreement among the districts on the issue of when jurisdiction is proper in post-decree cases. The Second and Fourth District Appellate Courts have held that if an order finally resolves a separate claim (or postdissolution motion) but leaves pending other claims, the trial court must make a Rule 304(a) finding before the order is immediately appealable.13 Without the 304(a) finding, the appeal is not proper until all claims have been finally resolved.14 This rule applies regardless of whether the issues are raised in a single petition or separate petitions.15 However, in the First District, each claim (or postdissolution motion) is independently appealable upon final disposition of the individual claim without the necessity of a Rule 304(a) finding.16 The Fifth and Third District appellate courts have yet to directly address this issue in a published decision. How are Interlocutory Custody Orders Appealed? Illinois Supreme Court Rules 306 and 306A apply to the appeals of custody orders.17 Rule 306 is the vehicle used to seek review of interlocutory custody orders and it outlines the procedure to be followed in petitioning the court for leave to appeal.18 While ordinarily interlocutory orders are not appealable, leave to appeal may be allowed under this rule. Rule 306A addresses the procedures to be followed by the trial and appellate courts to ensure the expedient review of child custody cases.19 In order to comply with Rules 306 and 306A, a party must file a petition for leave to appeal in the appellate court, as well as a notice of interlocutory appeal in the trial court within five business days after the entry of the order.20
While ordinarily the mere filing of a notice of appeal without filing a petition for leave to appeal will not properly invoke appellate jurisdiction, 21 the Illinois Supreme Court has held that even if an appellate court finds its jurisdiction has not been properly invoked, it should consider the propriety of a custody order under Rule 306 in order to resolve the custody question as quickly and economically as possible.22 As a result, certain appeals have been recharacterized as petitions for leave to appeal pursuant to Rule 306 where the parties seeking review have relied on erroneous law in failing to properly invoke Rule 306.23
Despite the foregoing, a custody order does not constitute a final judgment as to a separate claim in a dissolution proceeding.24 Rule 306A does not bestow jurisdiction on the appellate court absent a final order.25 Additionally, Rule 306A(a)(1) which provides for the appealability of "initial final custody orders" does not overrule or change prior case law which held a custody order does not constitute a final judgment as to a separate claim in a dissolution proceeding.26 A strict adherence to both Rules 306 and 306A should avoid a dismissal on appellate jurisdictional grounds. Are Interim, Dis-gorgement, Contribution, and/or Final Setting Attorney’s Fees Orders Final and Appealable? Neither an interim attorney’s fee award nor a disgorgement order requiring the disgorgement of interim attorney’s fees is a final and appealable order.27 However, both an order for contribution to attorney’s fees pursuant to 750 ILCS 5/503(j) and a final order of attorney’s fees pursuant to 750 ILCS 5/508(c) are considered final judgments on attorney’s fees for the purposes of appeal.28 "The reason orders awarding contribution or a final setting of fees are appealable, while interim orders are not, is clear: the trial court can effectively undo any interim attorney’s fee award and related disgorgement by restoring fees to the attorney who previously relinquished his fees to opposing counsel."29 With regard to disgorgement orders, the only consequence in the case of a 750 ILCS 5/508(c) petition is that the former client, not the opposing party, pays to replace any disgorged fees.30 Does filing an Attorney’s Fee Petition Extend the Time for Appealability of a Judgment? A post-decree petition for attorneys fees sought from an adverse party ordinarily extends the time to appeal dispositions of post-decree claims (from which the request for attorney’s fees is derived) unless a Supreme Court Rule 304(a) finding is made. 31 However, a petition for attorney’s fees filed by one’s own attorney pursuant to 750 ILCS 5/508(c) does not extend the time to appeal a post-decree claim as it is considered a separate, distinct cause of action.32
Is a Finding of Contempt Immediately Appealable? A contempt proceeding is an original special proceeding, collateral to and independent of the case in which the contempt arises.33 Illinois Supreme Court Rule 304(b)(5) allows the appeal of orders finding a person or entity in contempt of court which imposes a monetary or other penalty.34 While it may seem obvious, the case law has shown it is important to note the imposition of a monetary fine or some form of penalty/punishment is prerequisite for a finding of contempt to be immediately appealable.35 Under Rule 304(b)(5) a party held in contempt may appeal the ruling even in the absence of language of making an express finding of no just reason to delay enforcement or appeal.36 However, in an appeal taken pursuant to Rule 304(b)(5) the only order that is subject to appellate review is the order finding a party in contempt.37 An appeal of a contempt finding cannot be used to challenge all other orders in the underlying case from which the contempt arises.38 That being said, the review of a contempt finding necessarily requires review of the order upon which it is based.39
Is the Denial of a Contempt Petition Immediately Appealable? While the finding of contempt is immediately appealable, a party cannot appeal the denial of a contempt petition prior to entry of a final judgment on all claims without a Rule 304(a) finding.40 The denial of a petition for an order to show cause which is filed during post-dissolution proceedings is not a final and appealable order when other post-dissolution proceedings are still pending, thus, such an order is not immediately appealable unless a Rule 304(a) finding is made.41 The fact that a contempt proceeding is an original, special proceeding that is collateral to and independent of the case from which the contempt arises merely establishes that the denial of the petition amounts to a final judgment as to a claim within the meaning of Rule 304(a).42
Is an Order Denying/Granting a Petition for a Declaratory Judgment Regarding the Validity and Construction of a Premarital Agreement Appealable Prior to Entry of a Judgment for Dissolution of Marriage? A declaratory judgment request raises a separate and distinct claim from a dissolution of marriage claim, which by its nature seeks non-declaratory relief. 43 As a result, a declaratory judgment order related to the validity and construction of a pre-marital agreement is appealable prior to entry of a judgment for dissolution of marriage with an Illinois Supreme Court Rule 304(a) finding. 44 This rule is premised on the principle that the request for a dissolution of marriage and the request for a declaratory judgment on the validity and interpretation of a premarital agreement are not so closely related that they must be deemed part of a single unified claim for relief (a petition for dissolution of marriage). 45
Is the Disposition of a Petition for an Injunction in a Dissolution Action Immediately Appealable? Interlocutory orders "granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction" are appealable pursuant to Illinois Supreme Court Rule 307(a)(1). 46 For the purposes of appellate jurisdiction under Rule 307(a)(1) a petition for an injunction is considered disallowed or refused if the petition is denied or dismissed.47
Although it has been in excess of 20 years since Leopando was decided, the law of appellate jurisdiction in IMDMA cases constantly evolves. Based on Supreme Court rule changes and case law, there are some practical points that a family law practitioner should consider to avoid the potential landmine of failing to preserve appellate jurisdiction:
1) Strictly comply with the terms of the Illinois Supreme Court Rules. While this may seem obvious, it is apparent by the case law that in practice this fundamental point is often overlooked.
2) When in doubt file a notice of appeal. It is better to be cautious, even if that means two notices of appeal are filed for the same action, claim, or issue. If the notice is filed while other proceedings are pending in the trial court that relate to the same facts, consider filing a motion in the appellate court to stay the appeal pending procurement of a final and appealable order. In this practitioner’s experience these motions have been granted and will toll the briefing schedule and other deadlines set out by the Illinois Supreme Court Rules and the appellate court. However, beware that there is a question whether or not the appellate court has jurisdiction to enter a stay order if the notice of appeal is not timely or effective.
3) Remember: dissolution of marriage proceedings are all part of a unified claim and a custody order does not constitute a final judgment as to a separate claim in a dissolution proceeding. If every issue has not been resolved in the underlying dissolution of marriage proceeding, the appeal will not be ripe. However, that being said refer to point 2 above. Better safe than sorry!
4) Beware of reserved issues in the judgment for dissolution of marriage and its affect on appealability. The reservation of issues in a judgment for dissolution of marriage is common and may significantly affect appellate jurisdiction.
5) Finally, be conscious of which district a case would be appealed to in post-decree proceedings. The district you are in will dictate when you should file your notice of appeal and whether a Rule 304(a) finding is a prerequisite.
1 In re Marriage of Mardjetko, 369 Ill.App.3d 934, 935, 861 N.E.2d 354, 355 (2d Dist. 2007) citing In re Marriage of Link, 362 Ill.App.3d 191, 192 (2d Dist. 2005).
2 In re Marriage of Duggan, 376 Ill.App.3d 725, 732, 877 N.E. 2d 1140, 1146 (2d Dist. 2007).
3 In re Marriage of Leopando, 96 Ill.2d 114, 449 N.E.2d 137 (1983).
4 See In re Marriage of Ehgartner-Shachter and Shachter, 366 Ill.App.3d 278, 289, 851 N.E.2d 237, 247 (1st Dist. 2006).
5 Mardjetko, 369 Ill.App.3d at 935-36 citing Leopando, 96 Ill.2d at 118-20.
6 In re Marriage of Capitani, 368 Ill.App.3d 486, 488, 858 N.E.2d 547, 549 (2d Dist. 2006), appeal denied 223 Ill.2d 631 (2007), citing Leopando, 96 Ill.2d at 119.
7 Mardjetko, 369 Ill.App.3d at 936 citing Leopando, 96 Ill.2d at 119. See Link, 362 Ill.App.3d at 192.
8 Capitani, 368 Ill.App.3d at 488 citing In re Marriage of Watling, 183 Ill.App.3d 18, 21-22 (2d Dist. 1989).
9 Id at 487.
10 In re Marriage of Sproat, 357 Ill.App.3d 880, 881, 830 N.E.2d 843, 843-44 (2d Dist. 2005), appeal denied 216 Ill.2d 735 (2005).
11 Mardjetko, 369 Ill.App.3d at 935-36.
12 Capitani, 368 Ill.App.3d at 487.
13 In re Marriage of Gaudio, 368 Ill.App.3d 153, 157-58, 857 N.E.2d 332, 335-36 (4th Dist. 2006) and In re Marriage of Alyassir, 335 Ill.App.3d 998, 1000-01, 782 N.E.2d 978, 979-80 (2d Dist. 2003); See also In re Marriage of Duggan, 376 Ill.App.3d 725, 877 N.E. 2d 1140 (2d Dist. 2007).
15 Id.16 In re Marriage of Carr, 323 Ill.App.3d 481, 485, 752 N.E.2d 1181, 1184-85 (1st Dist. 2001).
17 ILCS S. Ct. Rule 306 (2003) and ILCS S. Ct. Rule 306A (2005).
18 In re Marriage of Kostusik, 361 Ill.App.3d 103, 109, 836 N.E.2d 147, 153 (1st Dist. 2005).
19 Id citing Sproat, 357 Ill.App.3d at 883.
20 Id at 111.
21 Id at 112.
22 Id citing In re Custody of Purdy, 112 Ill.2d 1, 490 N.E.2d 1278 (1986).
24 Sproat, 357 Ill.App.3d at 882 citing Leopando, 96 Ill.2d at 118.
25 Id at 881.
26 Id at 883 relying on Leopando, 96 Ill.2d at 118.
27 In re Marriage of Johnson, 351 Ill.App.3d 88, 96, 98, 812 N.E.2d 661, 667, 669 (1st Dist. 2004) citing in part In re Marriage of Oleksy, 337 Ill.App.3d 946, 950 (1st Dist. 2003).
28 Id at 97 referencing In re Marriage of Suriano & LaFeber, 324 Ill.App.3d 839 (1st Dist. 2001); In re Marriage of Devick, 335 Ill.App.3d 734 (2d Dist. 2002); and In re Marriage of King, 208 Ill.2d 332 (2003).
29 Id at 97-98.
30 Id at 98.
31 Ehgartner-Shachter, 366 Ill.App.3d at 285-86 relying on F.H. Prince & Co. v. Towers Financial Corp., 266 Ill.App.3d 977, 983 (1st Dist. 1994).
32 Id at 286.
33 Id at 969 citing Scott v. Silverstein, 87 Ill.2d 167, 429 N.E.2d 483 (1981).
34 ILCS S. Ct. Rule 304(b)(5).
35 See In re Marriage of Knoerr, 377 Ill.App.3d 1042, 879 N.E.2d 1053 (2d Dist. 2007); In re Marriage of Schwieger, 379 Ill.App.3d 687, 883 N.E.2d 556 (2d Dist. 2008); and In re Marriage of Gutman, 2008 WL 4943927 (Ill., November 20, 2008).
36 In re Marriage of Carrillo, 372 Ill.App.3d 803, 813, 867 N.E.2d 70, 78 (1st Dist. 2007) citing Illinois Supreme Court Rule 304(b)(5) and referencing Nettleton, 348 Ill.App.3d at 968.
37 Nettleton, 348 Ill.App.3d at 968 citing Illinois Supreme Court Rule 304(b)(5).
38 In re Marriage of Nettleton and Terrell, 348 Ill.App.3d 961, 968-71, 811 N.E.2d 260,267-69 (2d Dist. 2004) referencing in part Bearden v. Hamby, 240 Ill.App.3d 779 (1st Dist. 1992).
39 Id citing Norskog v. Pfiel, 197 Ill.2d 60, 69, 755 N.E.2d 1 (2001).
40 Carrillo, 372 Ill.App.3d at 813.
41 In re Marriage of Colangelo and Sebela, 355 Ill.App.3d 383, 388, 822 N.E.2d 571, 575 (2d Dist. 2005). See also Carrillo, 372 Ill.App.3d at 812-13.
42 Id at 388-89.
43 In re Marriage of Best, 228 Ill.2d 107, 113-15, 886 N.E.2d 939, 942-43 (2008).
45 Id at 115.
46 ILCS S. Ct. Rule 307 (2003).
47 In re Marriage of Hartney, 355 Ill.App.3d 1088, 1088, 825 N.E.2d 759, 761 (2005) referencing In re Marriage of Centioli, 335 Ill.App.3d 650, 653, 781 N.E.2d 611 (1st Dist. 2002).
Mr. Maksimuk is an attorney with the Peskind Law Firm in St. Charles, Illinois and concentrates his practice in complex matrimonial litigation. He received his Bachelors from Bradley University and his Juris Doctor from John Marshall Law School. He recently received the 2008 Outstanding New Lawyer Award from the Kane County Bar Association and currently serves as the co-chair of the KCBA’s New Lawyers Division Committee.