The Journal of The DuPage County Bar Association

Back Issues > Vol. 18 (2005-06)

Interlocutory Family Law Appeals
By Allyson B. Harris

Anyone who practices family law knows that it can takes months, sometimes years, to obtain a final and appealable order. However, there are many other orders entered before the actual dissolution of marriage order is entered. For the most part, these orders are not final judgments and therefore are not appealable.

In In re Marriage of Leopando,1 our Supreme Court held that every issue must be resolved regarding a petition for dissolution of marriage to be considered final and appealable. In Leopando our Supreme Court stated:

"A petition for dissolution advances a single claim; that is, a request for an order dissolving the parties’ marriage. The numerous other issues involved, such as custody, property disposition, and support are merely questions which are ancillary to the cause of action. [Citation.] They do not represent separate, unrelated claims; rather, they are separate issues relating to the same claim. * * * Practically speaking, then, until all of the ancillary issues are resolved, the petition for dissolution is not fully adjudicated. [Citation.]" 2

It should be noted that it is not enough that an order states that the marriage "should" be dissolved. Myers v. Myers.3 Rather, the court order must actually dispose of all issues and enter an order dissolving the marriage.

It is a basic tenet that the Appellate Court is without jurisdiction to review cases that are not final except as specifically provided in the Supreme Court rules. In re Marriage of Kostusik.4 However, in the vast minefield that can sometimes be created by family law cases, there may be many orders that a client may want to appeal that are not final; for example, temporary orders involving children or child support. That is when the interlocutory appeal becomes so "appealing" and necessary. This article focuses on interlocutory appeals in the family law context and how practitioners can use them to their advantage.

There are three Supreme Court Rules addressing interlocutory appeals that apply to family law cases. Supreme Court Rules 306(a)(5), 307(a)(1) and 308.

Supreme Court Rule 306(a)(5) provides:

"A party may petition to appeal to the Appellate Court from the following orders of the trial court: *** (5) from interlocutory orders affecting the care and custody of unemancipated minors, if the appeal of such orders is not otherwise specifically provided for elsewhere in these rules[.]"

This Rule is a venue into the Appellate Court most often used by those seeking to appeal orders of temporary custody.5 In the absence of Rule 306(a)(5), temporary custody orders are not appealable because they are not final orders. See In re Marriage of Kostusik;6 In re Marriage of Gordon.7 However, Supreme Court Rule 306(a)(5) allows entry into the Appellate Court. Yet, the practitioner needs to take care to avoid confusion between Supreme Court Rule 306(a)(5) and Supreme Court Rule 306A. Supreme Court Rule 306A provides for expedited appeals in child custody cases (Kostusik8) but does not confer jurisdiction upon the Appellate Court (In re Marriage of Sproat).9 It is important to note that petitioners must file their petitions and notices of interlocutory appeal within five business days after entry of the order from which review is being sought. Supreme Court 306(b); Kostusik.10

Supreme Court Rule 307(a)(1) provides for Appeals as of Right from an interlocutory order:

(1) granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction[.]"

The courts often define "injunction" as a "judicial process operating in personam and requiring a person to whom it is directed to do or refrain from doing a particular thing. "11 The courts will look to the order’s substance rather than its form. See Johnson v. Johnson12, where the Appellate Court held that an order, ordering the Fireman’s Board to comply with any qualified domestic relations court order was not "injunctive," pursuant to Rule 307(a)(1). The court reasoned that the trial court was merely instructing the Fireman’s Board to do what it was already obligated to do.13

Furthermore, a temporary child support order was not an injunction for purposes of 307(a)(1).14 An attachment order was held not to be injunctive pursuant to Rule 307(a)(1), nor a final and appealable order.15 The court explained that "[a]ttachment is a pretrial remedy by which a defendant’s property is secured until the rights of the parties are determined in the principal action," therefore it does not terminate the litigation.16 In In re Marriage of Tetzlaff17 the Appellate Court held that an order directing a wife to place money in an escrow account upon counsel’s withdrawal from the case was not injunctive.18 The order was in effect, for interim attorney fees and, therefore, it was not appealable pursuant to Rule 307(a)(1).19

In addition, supervised visitation orders and orders modifying such orders are not "injunctions" within the meaning of Rule 307(a)(1).20 An order permitting a wife to use marital funds to purchase a family home is not injunctive in nature and not appealable pursuant to Rule 307(a)(1).21

However, an order dissolving an injunction and requiring the husband to post a bond as security in a child custody dispute was held to be appealable pursuant to Rule 307(1)(a).22 Also, an order denying a motion to dissolve an injunction enjoining a husband from transferring or disposing marital property was held to be appealable pursuant to Rule 307(a)(1).23

Discovery orders have been held appealable under 307(a)(1). In In re Lombaer,24 orders directing the deposition of a wife’s psychiatrist and production of medical records were held to be appealable pursuant to Rule 307(a)(1) because the orders effectively enjoined the wife and her physician from asserting patient-physician privilege.

Restraints on speech have been held appealable pursuant to 307(a)(1). In In re Marriage of Granger,25 the court held that an order that set aside a "gag order" was the dissolution of an injunction and was, therefore, appealable pursuant to Rule 307(a)(1).26

The First District Appellate Court held that a protective order fit within the meaning of "injunction" pursuant to Rule 307(a)(1).27 In addition, an order modifying an order enjoining parties from selling certain marital property was held to be injunctive and appealable pursuant to Supreme Court Rule 307(a)(1).28

Supreme Court Rule 308 provides for Appeals by Permission.

(a) When the trial court *** finds that the order involves a question of law as to which there is substantial ground for difference of opinion and that immediate appeal form the order may materially advance the ultimate termination of the litigation[.]"

As the Rule states, there are two requirements to be met; (1) there must be a question of law to which there is a substantial ground for a difference of opinion; and (2) immediate appeal from the order may materially advance the ultimate termination of the litigation. Without meeting these two requirements the question will not be certified pursuant to Rule 308.

In In re Marriage of Fotsch,29 the Appellate Court certified, pursuant to Rule 308, the question: whether a judge may use the transcripts of proceedings before a predecessor judge to determine a petition for change of custody.30

Regarding the certified question in Fotsch the first requirement was met because there was no case on point and the cases that addressed the issue differed in their results. The second requirement was met because the transcripts before the predecessor judge had continued for 14 days, making it likely that its inclusion in the record would materially advance the ultimate termination of the litigation.31

However, not all questions meet both requirements of Rule 308.

For example, in one case, our Supreme Court was tempted to answer an intriguing question of law and certified an appeal only later to dismiss it as moot when it realized that it would not materially advance the ultimate termination of the litigation. In In re Marriage of Peters-Farrell,32 our Supreme Court certified the following question: "Are requests for pharmaceutical records from [a] pharmacy protected under the Illinois Mental Health and Developmental Disabilities [Confidentiality] Act? [740 ILCS 110/1 et seq.]" The Supreme Court initially certified the question for appeal pursuant to Supreme Court Rule 308 but then changed its collective mind and decided that it improvidently granted leave to appeal because the question was moot due to the fact that the parties had since entered into an agreed order of dissolution.33

For other certified questions pursuant to Rule 308 see also In re Stella, 34("Can interim attorney’s fees be awarded under section 17 of the [Parentage Act]? ?Question 2: If the answer to Question 1 is "Yes," can those interim attorney’s fees be awarded using the methods, factors, and procedures, set forth in section 501(c-1)(1), (2), and (3) of the [Marriage Act] without considering disgorgement?"); In re Marriage of Bednar, 35 (a question of first impression in Illinois, whether a parent’s petition for removal constitutes a petition to modify custody governed by section 610 of the Illinois Marriage and Dissolution of Marriage Act when the judgment for dissolution of marriage awards both parents joint custody); In re Marriage of Weishaupt,36 (whether the court had the requisite in personam jurisdiction to impose monetary obligations upon the defendant).


The interlocutory appeal, while difficult to obtain, can be a useful and cost effective means of resolving issues in the family law setting. Waiting until there is a final order of dissolution is often too late to receive meaningful relief. Knowing the Supreme Court rules and their applications can help the practitioner achieve the best results for their clients and their families.

1 96 Ill.2d 114, 119 (1983),

2 However, the reservation of maintenance was held to be appealable in In re Marriage of Lord, 125 Ill. App. 3d 1, (2nd 1984) because the wife had symptoms of an organic disease which might have taken years to manifest itself. The court distinguished the case from Leopando by stating that the litigants in Lord had no avenue for an interlocutory appeal. Lord, 125 Ill. App. 3d at 4.

3 51 Ill.App. 3d 830, 837 (1977).

4 361 Ill. App. 3d 103, 107 (1st Dist. 2005).

5 750 ILCS 5/603(a) (West 2004).

6 361 Ill. App. 3d 103 (2005).

7 233 Ill. App. 3d 617 (1st Dist. 1992).

8 361 Ill App. 3d at 108.

9 357 Ill. App. 3d 880, 883 (2nd Dist. 2005).

10 361 Ill. App. 3d at 111.

11 In re T.H., 354 Ill. App. 3d 301, 308 (1st Dist. 2004).

12 206 Ill. App. 3d 262 (1st Dist. 1990).

13 Johnson, 206 Ill.App. 3d at 264.

14 See In re Marriage of Kitchen 126 Ill. App. 3d 192, 194 (3d Dist. 1984).

15 In re Marriage of Cozart, 258 Ill. App. 3d 848 (2d Dist. 1994).

16 Cozart, 258 Ill. App. 3d at 891.

17 304 Ill. App. 3d 1030 (1st Dist. 1999).

18 Tetzlaff, 304 Ill. App. 3d at 1038.

19 Tetzlaff, 304 Ill. App. 3d at 1038.

20 See In re T.M., 302 Ill. App. 3d 33 (1st Dist. 1998).

21 In re Marriage of Meyer, 197 Ill. App. 3d 975 (1st Dist. 1990).

22 See Bullard v. Bullard, 66 Ill. App. 3d 132, 135 (5th Dist 1978).

23 See In re Marriage of Ignatius, 338 Ill. App. 652 (2d Dist. 2003).

24 200 Ill. App. 3d 712 (1st Dist. 1990).

25 197 Ill. App. 3d 363, (5th Dist. 1990).

26 Granger, 197 Ill. App. 3d at 372.

27 See In re Marriage of Blitstein, 212 Ill. App. 3d 124, 130 (1991). See also In re Marriage of Fischer, 228 Ill. App. 3d 482 (4th Dist. 1992).

28 In re Marriage of De Rosa, 155 Ill. App. 3d 774, 778 (2d Dist. 1983).

29 139 Ill. App. 83 (1st Dist. 1985).

30 Fotsch, 139 Ill. App. 3d at 86.

31 Fotsch, 139 Ill. App. 3d at 85.

32 216 Ill. 2d 287 (1st Dist. 2005).

33 Peters-Farrell, 216 Ill. 2d at 291.

34 353 Ill. App. 3d 415, 416 (1st Dist. 2004)

35 146, Ill. App. 3d 704, 708 (1st Dist. 1986)

36 160 Ill. App. 3d 563, 564 (4th Dist. 1987)

Allyson B. Harris is an associate at Steven B. Levy, Ltd, in Naperville, Illinois She is a graduate of Chicago-Kent College of Law and served as Senior Law Clerk to The Honorable Justice Robert D. McLaren, Second District Appellate Court and Judge Robin D. Pierce, Northern District of Indiana. She now concentrates her practice in appellate law, medical malpractice and personal injury law.

DCBA Brief