In re Marriage of Crecos , 2021 IL 126192 ( 2021 )

2021 IL 126192IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 126192)
In re MARRIAGE OF DIANA LYNN BARR CRECOS, Appellee, and GREGORY CRECOS,
Appellant.
Opinion filed May 20, 2021.
JUSTICE MICHAEL J. BURKE delivered the judgment of the court, with
opinion.
Chief Justice Anne M. Burke and Justices Garman, Theis, Overstreet, and
Carter concurred in the judgment and opinion.
Justice Neville took no part in the decision.
OPINION
¶1 Respondent Gregory Crecos appealed an award of attorney fees in favor of
petitioner Diana Lynn Barr Crecos. The appellate court dismissed the appeal based
upon lack of jurisdiction. 2020 IL App (1st) 182211. The appellate court
characterized the fee award as an interim fee award, subject to correction in the
final judgment. Id. ¶ 18. The appellate court also noted that other issues in the case
remained unresolved. Id. For that reason, the appellate court held that the fee award
was not a final judgment ripe for review under Illinois Supreme Court Rule 304(a)
(eff. Mar. 8, 2016). 2020 IL App (1st) 182211, ¶ 21. This court subsequently
allowed Gregory’s petition for leave to appeal. Ill. S. Ct. R. 315(a) (eff. Oct. 1,
2019).
¶2 BACKGROUND
¶3 Diana Lynn Barr Crecos initiated divorce proceedings from Gregory Crecos in
2007. A final judgment dissolving the marriage and allocating marital property was
entered in Cook County circuit court on December 24, 2009. Gregory appealed,
and the judgment was affirmed. In re Marriage of Crecos, 2012 IL App (1st)
102158-U (Crecos I). Both parties filed postdecree petitions. Diana filed a timely
motion for substitution of judge, which was denied. The judge then entered a series
of orders against Diana. Diana appealed, arguing as a threshold issue that the trial
court erred in denying her motion for substitution of judge as of right. The appellate
court agreed that the trial court erred in denying Diana’s motion for substitution of
judge. In re Marriage of Crecos, 2015 IL App (1st) 132756 (Crecos II). Given that
error, all orders entered after the erroneous denial of the motion for substitution of
judge were “void.” Id. ¶ 28. The Crecos II court therefore reversed the orders
entered by the circuit court and remanded the case to the trial court. Id.
¶4 On March 18, 2016, Diana filed a petition pursuant to section 508(a)(3.1) of the
Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/508(a)(3.1)
(West 2016)) for attorney fees and costs incurred in the appeal of Crecos II. On
March 31, 2016, Diana filed a petition pursuant to section 508(a)(3) of the Act (id.
§ 508(a)(3)) for attorney fees and costs incurred in the defense of Crecos I.
¶5 On September 17, 2018, the trial court ordered Gregory to pay Diana’s attorney
fees in the amount of $32,952.50 for the Crecos I appeal and $89,465.50 for the
Crecos II appeal. The trial court’s order included a Rule 304(a) finding that “there
is no just reason to delay enforcement or appeal of this order.” Gregory then
appealed the trial court’s order, arguing that the trial court should not have awarded
Diana all the fees she sought.
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¶6 As a threshold matter, the appellate court asked the parties to submit briefs
concerning the court’s jurisdiction. 2020 IL App (1st) 182211, ¶ 10. Both parties
argued that the appellate court had jurisdiction because the trial court did not enter
an interim award of fees under section 501(c-1) of the Act (750 ILCS 5/501(c-1)
(West 2016)) but instead entered a final award of attorney fees under section 503(j)
of the Act (id. § 503(j)). 2020 IL App (1st) 182211, ¶ 10. The parties also argued
that section 501(c-1) did not apply because the appeals involved postdecree
petitions. Id. ¶ 13.
¶7 Citing In re Marriage of Oleksy, 337 Ill. App. 3d 946 (2003), the appellate court
held that section 501(c-1) applies to both predissolution and postdissolution decree
proceedings. 2020 IL App (1st) 182211, ¶ 13. In addition, because section 503(j)
applies only when the court has resolved “ ‘all *** issues between the parties’ ”
other than the award of attorney fees, that section did not apply because some issues
remained pending in the case. Id. (quoting 750 ILCS 5/503(j) (West 2018)). The
appellate court found that the September 18, 2018, order awarded interim attorney
fees under section 501(c-1), which are temporary in nature and subject to
adjustment. Id. ¶ 14.
¶8 The appellate court concluded that this case was similar to In re Marriage of
Derning, 117 Ill. App. 3d 620 (1983). 2020 IL App (1st) 182211, ¶ 16. In Derning,
the trial court divided the marital property but reserved its ruling on the issue of
attorney fees. 117 Ill. App. 3d at 621-22. The wife appealed. The Derning court
held that it had jurisdiction of the case only if the divorce decree was a final
judgment or if the fees were a separate claim pursuant to Rule 304(a). Id. at 626.
Based upon this court’s decision in In re Marriage of Leopando, 96 Ill. 2d 114(1983), Derning held that an attorney fee judgment in a dissolution of marriage case
was not a separate claim but rather was integral to the order dissolving the parties’
marriage. Derning, 117 Ill. App. 3d at 627.
¶9 The appellate court held that the September 17, 2018, order for attorney fees,
like that in Derning, was inextricably intertwined with the property issues that
remained partially unresolved. 2020 IL App (1st) 182211, ¶ 18. 1 The claim for
attorney fees was not a separable claim for purposes of appeal, and the order
1
Remaining issues in the case included Gregory’s claim that Diana took his personal property,
as well as Gregory’s pending child support modification claim.
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awarding attorney fees did not finally resolve any separate claim. Id. The court thus
held that, “when the trial court awards fees for an appeal in a divorce case and the
trial court has issues other than fees still pending, the award grants interim fees not
subject to immediate appeal.” Id. In addition, the inclusion of Rule 304(a) findings
did not make the trial court’s interlocutory order final and appealable. Id. ¶ 19. The
appellate court therefore dismissed the appeal for lack of jurisdiction.
¶ 10 ANALYSIS
¶ 11 On appeal, Gregory argues that the appellate court had jurisdiction to determine
the merits of the circuit court’s fee award because the circuit court’s order was final
and the circuit court made the requisite Rule 304(a) findings to make the order
appealable. Rule 304(a) provides, in pertinent part,
“If multiple parties or multiple claims for relief are involved in an action, an
appeal may be taken from a final judgment as to one or more but fewer than all
of the parties or claims only if the trial court has made an express written finding
that there is no just reason for delaying either enforcement or appeal or both.”
Ill. S. C. R. 304(a) (eff. Mar. 8, 2016).
Diana agrees with Gregory, joining his argument that the appellate court had
jurisdiction to review the circuit court’s September 18, 2018, order in its entirety.
Because the issue of whether a court has jurisdiction presents an issue of law, our
review is de novo. In re A.H., 207 Ill. 2d 590, 593 (2003).
¶ 12 The issue of attorney fees is addressed in section 508 of the Act. 750 ILCS
5/508 (West 2018). Section 508(a) provides:
“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 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
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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.” Id.§ 508(a).
¶ 13 Section 508(a) thus contemplates three distinct types of fee proceedings:
(1) interim attorney fees and costs in accordance with section 501(c-1) or section
508(a)(5) (id. §§ 501(c-1), 508(a)(5)), (2) contribution to attorney fees and costs in
accordance with section 503(j) or 508(a) (id. §§ 503(j), 508(a)), and (3) fees and
costs to counsel from a former client in accordance with section 508(c) (id.
§ 508(c)).
¶ 14 The appellate court held that it did not have jurisdiction because the September
17, 2018, fee award was an interim fee award pursuant to section 501(c-1). Citing
Oleksy, the appellate court held that section 501(c-1) applies to both predissolution
and postdissolution decree proceedings. 2020 IL App (1st) 182211, ¶ 13 (citing
Oleksy, 337 Ill. App. 3d at 950). This is incorrect.
¶ 15 Section 501(c-1) provides:
“As used in this subsection (c-1), ‘interim attorney’s fees and costs’ means
attorney’s fees and costs assessed from time to time while a case is pending, in
favor of the petitioning party’s current counsel, for reasonable fees and costs
either already incurred or to be incurred, and ‘interim award’ means an award
of interim attorney’s fees and costs. Interim awards shall be governed by the
following:
(1) Except for good cause shown, a proceeding for (or relating to)
interim attorney’s fees and costs in a prejudgment dissolution proceeding
shall be nonevidentiary and summary in nature.” (Emphasis added). 750
ILCS 5/501(c-1) (West 2018).
As the parties point out, Public Act 96-583 (eff. Jan. 1, 2010) amended section
501(c-1) to expressly state that the subsection applies only to prejudgment
dissolution proceedings. 2 See also 750 ILCS 5/508(a) (West 2018) (“Interim
2
With regard to interim fee petitions in postdissolution proceedings, Public Acts 99-90 (eff. Jan.
1, 2016) and 99-763 (eff. Jan. 1, 2017) added subsection 508(a-5), which provides that, “A petition
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attorney’s fees and costs may be awarded from the opposing party, in a pre-
judgment dissolution proceeding in accordance with subsection (c-1) of section 501
***.”). Oleksy was decided in 2003, prior to the 2010 amendment. The fee awards
in this case arose from postdissolution proceedings and were awarded in 2018, so
neither Oleksy nor section 501(c-1) applies.
¶ 16 The appellate court also found that the September 17, 2018, fee award met the
statutory definition of “interim attorney fees” because the case was still pending,
“awaiting retrial on issues Gregory raised.” 2020 IL App (1st) 182211, ¶ 14. Here
too, the appellate court is incorrect. “An interim award of attorney fees is strictly
temporary in nature, subject to adjustment (including, if necessary, the
disgorgement of overpayments to an attorney) at the close of the dissolution
proceeding ***.” In re Marriage of Arjmand, 2017 IL App (2d) 160631, ¶ 20.
¶ 17 The trial court’s award of attorney fees to Diana was neither temporary in nature
nor subject to adjustment. The underlying dissolution of marriage has long been
resolved. A final judgment dissolving the parties’ marriage and allocating marital
property was entered on December 24, 2009, and was affirmed in Crecos I in 2012.
The order on appeal of Diana’s motion for substitution of judge was entered in
Crecos II in 2015. The fees awarded were incurred in the appeals of Crecos I and
Crecos II. The appeals in those cases have been fully adjudicated, so no more fees
can or will be incurred in connection with the appeals. Gregory’s remaining
postdissolution claims would not modify or otherwise affect the amount of fees
incurred in the appeals of Crecos I and Crecos II. The appellate court therefore
erred in holding that the order in this case awarded interim fees, so that the order
was not a final judgment ripe for appellate review under Rule 304(a).
¶ 18 The appellate court’s mischaracterization of the fee awards goes to the heart of
the case. In the context of predissolution cases, this court has held that a petition
for dissolution advances a single claim: the parties’ request for an order dissolving
their marriage. Leopando, 96 Ill. 2d at 119. The other issues involved, including
custody, property distribution, and support, are ancillary to the cause of action and
do not represent separate, unrelated claims. Id. Rather, those issues are separate
for temporary attorney’s fees in a post-judgment case may be heard on a non-evidentiary summary
basis.” 750 ILCS 5/508(a) (West 2018).
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issues relating to the same claim. Id. For that reason, Leopando held that, because
issues raised in a dissolution of marriage case are not separate claims, those issues
are not appealable under Rule 304(a). Id. at 120.
¶ 19 This case, however, involves postdissolution fee awards. As recognized by the
court in In re Marriage of Duggan, 376 Ill. App. 3d 725, 735 (2007),
postdissolution proceedings present unusual circumstances in civil practice because
the trial court enters a final judgment resolving all issues at the time of dissolution,
but that judgment may be subsequently modified at the request of the parties,
sometimes repeatedly.
¶ 20 The districts of our appellate court are split concerning whether postdissolution
petitions are best described as new claims or new actions. This court has not directly
addressed the issue. Adding to the confusion is the use of the words “claim” and
“action” interchangeably in both this court and the appellate court.
¶ 21 The distinction matters. As the court explained in In re Marriage of Teymour,
2017 IL App (1st) 161091, ¶ 14:
“If each pending, unrelated matter constitutes a separate ‘claim’ in the same
action, a Rule 304(a) finding is required to appeal from an order disposing of
only one. On the other hand, if each unrelated postdissolution matter constitutes
a separate ‘action,’ an order disposing of only one of those actions constitutes
a final appealable judgment under Rule 301, notwithstanding that other actions
remain pending. In that instance, Rule 304(a) would not apply, negating the
need for a finding as contemplated by that rule. Such a scenario would also
require a litigant to file a notice of appeal within 30 days or entirely forgo
appellate review of that order.”
¶ 22 The Appellate Court, First and Third Districts, hold that an order disposing of
one of several pending unrelated postdissolution matters is a separate action, so that
no Rule 304(a) finding is required in order to bring an appeal. See In re Marriage
of Carr, 323 Ill. App. 3d 481 (1st Dist. 2001); In re Marriage of A’Hearn, 408 Ill.
App. 3d 1091 (3d Dist. 2011). But see Teymour, 2017 IL App (1st) 161091 (joining
the decisions of the Second and Fourth Districts and declining to follow First
District precedent).
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¶ 23 In Carr, a dissolution of marriage judgment was entered in 1989. 323 Ill. App.
3d at 482. In 1998, the husband filed a petition to set child support, seeking a
modification of the parties’ previous marital settlement agreement. Id. The trial
court granted the petition, and both parties filed motions to reconsider. Id. at 483.
Before the trial court decided the motions to reconsider, the wife filed a petition for
contribution to attorney fees. Id. On August 27, 1999, the trial court granted the
husband’s motion to reconsider and denied the wife’s motion to reconsider. Id. On
March 9, 2000, the trial court ruled on the wife’s request for fees. Id. The wife then
filed an appeal from the trial court’s orders granting the husband’s petition to set
child support and ordering the payment amounts retroactive.
¶ 24 Carr dismissed the appeals, holding that the wife should have appealed within
30 days of the trial court’s August 27, 1999, ruling, which finally disposed of the
husband’s petition to modify child support. Id. at 485. Carr rejected the wife’s
claim that the trial court’s March 9, 2000, order rendered the August 27, 1999,
ruling final. Id. at 484-85. Carr held that the “March 9, 2000, order addressed
separate and unrelated claims from those issues raised in [the husband’s] petition
to set child support.” Id. at 485. Carr therefore dismissed the wife’s appeal of the
August 27, 1999, order for lack of jurisdiction. Id.
¶ 25 As the Teymour court observed, although Carr used the word “claims,” First
District decisions subsequent to Carr have interpreted Carr as holding that the
separate postdissolution claims were separate postdissolution actions, which would
eliminate the need for a Rule 304(a) finding. Teymour, 2017 IL App (1st) 161091,
¶ 26 (citing In re Marriage of Ehgartner-Shachter, 366 Ill. App. 3d 278, 284-85
(1st Dist. 2006)). The Teymour court further noted that the First District had
“repeatedly relied on this so-called jurisdictional rule to find no Rule 304(a) finding
is required to appeal, so long as the matter pending in the trial court is unrelated to
the matter on appeal. [Citations.]” Id.¶ 26 When faced with the issue the first time, the Second District declined to follow
Carr. In In re Marriage of Alyassir, 335 Ill. App. 3d 998 (2003), a judgment
dissolving the parties’ marriage was entered in 1993. In 2001, the petitioner filed a
two-count postdissolution petition. Id. at 999. Count I sought increased child
support, and count II requested a rule to show cause why respondent should not be
held in contempt for failing to pay medical bills that were his responsibility. Id. The
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trial court granted petitioner relief on count I but continued the proceedings on
count II. Id. The trial court later denied petitioner’s motion to reconsider the ruling
on count I. Id. Petitioner then filed a notice of appeal from the orders entered on
count I, while count II remained pending. Id.
¶ 27 Although not raised by the parties, the Second District addressed the issue of
its jurisdiction over the appeal. Id. Citing Marsh v. Evangelical Covenant Church
of Hinsdale, 138 Ill. 2d 458, 464 (1990), the court noted that “[w]hen an action
involves multiple claims for relief, an order that finally resolves only one claim is
not immediately appealable” unless the court enters a Rule 304(a) finding.
Alyassir, 335 Ill. App. 3d at 999. The Second District declined to follow the Carr
decision, finding that decision to be “unsound” because the decision omitted a
crucial step. Id. at 1000. Carr failed to consider that, even if a postdissolution case
presents separate claims, that meant
“only that an order that finally resolves fewer than all of them can be made
immediately appealable by including a written Rule 304(a) finding.
Separability of issues is a necessary condition for a Rule 304(a) appeal. It is not
a sufficient condition. A proper Rule 304(a) finding is still required.” (Emphases
in original). Id.
Alyassir also disagreed with Carr on the basis that Carr removed the exercise of
discretion given to the trial court to decide whether judicial economy was served
by a piecemeal appeal. Id. at 1001. Because the order appealed from resolved only
one of petitioner’s claims and included no Rule 304(a) finding, Alyassir held that
the notice of appeal did not confer jurisdiction and must be dismissed. Id.
¶ 28 The Fourth District agreed with the reasoning of the Second District in Alyassir.
In re Marriage of Gaudio, 368 Ill. App. 3d 153, 157 (2006). Gaudio declined the
respondent’s request to draw a distinction between claims brought in the same
petition versus those brought in separate petitions. Id. at 158. Gaudio held that, if
an order finally resolves a separate claim but leaves other claims pending,
regardless of whether the issues are raised in a single petition or separate petitions,
the trial court must make a Rule 304(a) finding before the order is appealable. Id.
¶ 29 The Second District then expanded upon Alyassir in Duggan. The court in
Duggan noted that Alyassir held that, where one postdissolution petition raises
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multiple claims, a Rule 304(a) finding is required for the appeal of a final judgment
on fewer than all the claims raised by that petition. Duggan, 376 Ill. App. 3d at 741.
The court then observed that prior cases had also implicitly treated postdissolution
petitions as raising new claims in the dissolution action, regardless of whether the
claims were raised in one petition or several. Id. The court indicated its continued
adherence to that position, citing this court’s decisions in In re Custody of Purdy,
112 Ill. 2d 1 (1986), and In re Marriage of Kozloff, 101 Ill. 2d 526 (1984), in
support.
¶ 30 At issue in Kozloff was whether each postdissolution petition constituted a new
proceeding for venue purposes, thereby allowing a party to seek a change of venue
as of right on each petition, so long as the trial judge had not made a substantive
ruling. 101 Ill. 2d at 529-30. Recognizing the potential for serious abuse of the
venue statute, Kozloff held that “post-decree petitions do not constitute new actions,
but merely continuations of the dissolution proceeding, and a substantive ruling on
one petition will preclude a change of venue as of right on another.” Id. at 531. The
Duggan court read Kozloff as enunciating this court’s “own view of postdissolution
petitions as stating new claims within the dissolution action rather than
commencing new actions.” Duggan, 376 Ill. App. 3d at 737. Further, the court held
that Kozloff’s concerns about judge shopping were based on a view of
postdissolution proceedings as an extension of the original dissolution action,
involving the same litigants and the same procedural history, so that the decision in
that case was not confined to cases involving changes of venue. Id. at 737-38.
¶ 31 With regard to this court’s decision in Purdy, Duggan described that case as
holding that postdissolution matters are to be considered separately, so if a final
order has been entered on a postdissolution petition and the trial court has entered
a Rule 304(a) finding, a party can appeal that order even though another
postdissolution matter is still pending before the trial court. Id. at 739.
¶ 32 In Purdy, the father filed a petition for change of custody four years after a
judgment of dissolution was entered. 112 Ill. 2d at 3. The father’s petition for
change of custody was granted, leaving the issue of the summer visitation schedule
for later resolution. Id. The trial court included Rule 304(a) language in its order,
and the mother appealed. Id. Based upon Leopando, the appellate court dismissed
the appeal on the ground that the summer visitation schedule was part of the same,
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single claim as the custody modification, so that there was no final order that could
be appealed pursuant to Rule 304(a). Id.
¶ 33 This court reversed the appellate court, holding that Leopando did not apply to
postdissolution proceedings. Id. at 5. Purdy held that the order for change of
custody was a final order, because the issue of custody arose “not as a matter
ancillary to the issue of dissolution or any other issue, but rather as a result of the
father’s post-dissolution petition for change of custody.” Id. Further, the order in
that case was final because all related claims had been decided except for the extent
of the mother’s summer visitation, a matter that is always subject to revision. Id.
Purdy did not address whether postdissolution petitions are best viewed as new
actions or new claims. In distinguishing Leopando, however, Purdy stated:
“Unlike the situation in Leopando in which the cause of action was a
petition for dissolution of marriage and only the issue of custody had been
decided, here the cause of action is a petition for a change of custody and all
related claims have been decided except for the extent of the mother’s summer
visitation, a matter that is always subject to revision. Thus, the kind of
piecemeal litigation that the decision in Leopando was intended to prevent
cannot occur in this context.” (Emphases added and omitted.) Id.
¶ 34 The Duggan court acknowledged Purdy’s use of the term “cause of action” but
concluded that the “cause of action” word choice did not reflect the Purdy court’s
view of postdissolution petitions as new actions. Duggan, 376 Ill. App. 3d at 739.
The court noted that Purdy’s first reference to “cause of action” was in a quote from
Leopando, where the Leopando court used “cause of action” as a rough equivalent
to “claim.” Id. (“ ‘ “A petition for dissolution advances a single claim; that is, a
request for an order dissolving the parties’ marriage. The numerous other issues
involved *** are merely questions which are ancillary to the cause of action.” ’ ”
(Emphasis omitted.) (quoting Purdy, 112 Ill. 2d at 4-5, quoting Leopando, 96 Ill.
2d at 119)). The Duggan court determined that the
“core holding of Purdy is that postdissolution matters are to be considered
separately, so that if a final order has been entered on a postdissolution petition,
where the trial court has entered a Rule 304(a) finding a party may appeal that
order even while a postdissolution matter is still pending before the trial court.”
Id.
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¶ 35 The Duggan court thus concluded that the Leopando, Kozloff, and Purdy
decisions harmonized with one another, explaining:
“Leopando, issued in 1983, was the first of the three. It enunciated the supreme
court’s view that, prior to the entry of a judgment of dissolution, the issues
involved in a divorce action are so interrelated that they constitute one claim
and thus the resolution of fewer than all issues cannot be a final order.
[Citation.] Kozloff was issued one year later and held that postdissolution
proceedings are sufficiently related to the original dissolution action that they
should be viewed as a continuation of that action, not as new actions. [Citation.]
Finally, in 1987 Purdy clarified that Leopando’s ‘all-one-claim’ approach does
not govern postdissolution petitions, so that an order resolving the matters
raised in such a petition is a final order and may be appealed pursuant to Rule
304(a). [Citation.] When read together, these cases support the conclusion that
a postdissolution petition does not commence a new action but instead raises a
new claim in the dissolution action, and that a Rule 304(a) finding is therefore
necessary to appeal a ruling on one such claim when another remains pending.”
Id. at 740-41.
¶ 36 Justice O’Malley filed a special concurrence in Duggan, agreeing with the
majority on the merits of the appeal but disagreeing with the majority’s discussion
of the nature of postdissolution petitions. Id. at 746-57 (O’Malley, J., specially
concurring). Justice O’Malley would have followed the Carr analysis. Id. at 747.
Justice O’Malley would have read Kozloff narrowly to apply only in the change of
venue context and not as extending to jurisdictional issues. Id. at 748. To the extent
that Kozloff did indicate that a postdissolution petition raises a claim in the original
proceeding, Purdy effectively overruled that holding. Id. at 749. Justice O’Malley
asserted that Purdy directly contradicted Kozloff when Purdy stated that the
“ ‘cause of action [was] a petition for change in custody.’ ” Id. (quoting Purdy, 112
Ill. 2d at 5). Justice O’Malley also disagreed with the majority’s minimization of
the “cause of action” language. Justice O’Malley thus did not concur in the
majority’s holding that a postdissolution petition raises a new claim in the original
dissolution action. Id. at 753.
¶ 37 Subsequent to the preceding decisions, this court was presented with the
question of whether a postdissolution order terminating maintenance was a final
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and appealable order, without a Rule 304(a) finding, when a civil contempt petition
remained pending in the trial court. In re Marriage of Gutman, 232 Ill. 2d 145(2008). Citing Marsh, 138 Ill. 2d at 464-65, Gutman stated that:
“Absent a Rule 304(a) finding, a final order disposing of fewer than all of the
claims is not an appealable order and does not become appealable until all of
the claims have been resolved. [Citation.] This court has defined a ‘claim’ as
‘any right, liability or matter raised in an action.’ [Citation.] The rule was meant
‘to discourage piecemeal appeals in the absence of a just reason and to remove
the uncertainty which existed when a final judgment was entered on fewer than
all of the matters in controversy.’ [Citation.]” Gutman, 232 Ill. 2d at 151.
¶ 38 Gutman then rejected the appellate court’s holding that the pending contempt
petition was entirely separate from the dissolution proceeding, so that the order
terminating maintenance was a final order as to all claims in the dissolution action
and did not require a Rule 304(a) finding to be appealable. Id. Gutman explained
that, under Illinois Supreme Court Rule 304(b)(5) (eff. Jan. 1, 2006), only contempt
judgments that impose a penalty are final, appealable orders. Gutman, 232 Ill. 2d
at 153. A pending contempt petition thus was not an independent action separate
from the underlying case. Id. at 152. Gutman therefore held that the wife’s contempt
petition and the two maintenance petitions raised claims for relief in the same
action, so that the order terminating maintenance was final as to fewer than all
claims in the action. Id. at 156. The wife’s appeal of the maintenance petition, then,
filed before the resolution of the contempt petition and without a Rule 304(a)
finding, was premature and did not confer jurisdiction on the appellate court. Id.¶ 39 Following Gutman, the Appellate Court, Third District, considered whether a
husband’s appeal of the trial court’s discovery sanction was final and appealable
under Rule 301, when the husband’s petition for rule to show cause and the wife’s
petition to extend maintenance remained pending in the trial court. A’Hearn, 408
Ill. App. 3d 1091. A’Hearn did not believe that Gutman resolved the conflict within
the appellate court but instead “simply held that the wife’s contempt petition was
not a separate claim.” Id. at 1097. A’Hearn agreed with Carr that postdissolution
proceedings are generally new actions. A’Hearn also agreed with Justice
O’Malley’s special concurrence in Duggan, which would find that Kozloff’s
holding was narrow and was limited to venue. Id. at 1096. In addition, A’Hearn
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agreed with Justice O’Malley that, if a postdecree petition was actually a
continuation of the original dissolution proceedings, there would never actually be
a postdecree petition, and Purdy would be rendered superfluous. Id. The A’Hearn
court did not think the Duggan court’s “approach appropriately acknowledge[d] the
significance of Purdy or [was] flexible enough to accommodate the reality of
postdissolution litigation.” Id. at 1097. Seizing upon Purdy’s “cause of action”
language, A’Hearn described Purdy as holding that a “father’s postdissolution
motion for custody constituted a separate cause of action.” Id. at 1094. A’Hearn
recognized the desire to avoid piecemeal appeals but believed the “Carr approach,
while perhaps allowing more appeals, upholds the trial court’s intent in entering a
dispositive order.” Id. at 1097.
¶ 40 The First District revisited the jurisdictional issue following the Gutman and
A’Hearn decisions, particularly considering whether Gutman overruled Carr. In re
Marriage of Demaret, 2012 IL App (1st) 111916. The Demaret court agreed with
A’Hearn that Gutman “did not resolve the fundamental conflict of whether
postdissolution petitions should be treated as new claims of the original dissolution
action, mandating a Rule 304(a) finding when fewer than all pending petitions are
resolved, or as separate actions under Rule 301, if the pending actions are not
related.” Id. ¶ 35. Demaret agreed with A’Hearn that postdissolution proceedings
are generally new actions and that no conflict existed between Gutman and Carr.
Id. ¶ 36.
¶ 41 Despite the First District’s continued adherence to the “cause of action”
analysis, however, the Third Division of the Appellate Court, First District, again
reviewed the case law concerning an appellate court’s jurisdiction over
postdissolution matters and elected to join the decisions of the Second and Fourth
Districts, rather than the First District precedent. Teymour, 2017 IL App (1st)
161091, ¶ 41. Beginning its review with the decision in Carr, the court in Teymour
observed that Carr did not acknowledge Purdy or Rule 304(a) and did not cite any
legal authority in support of its finding that an order disposing of one of several
pending postdissolution claims may be appealed by virtue of the claims being
“separate and unrelated.” Id. ¶ 26. The court also disagreed with A’Hearn’s reading
of Purdy, believing that A’Hearn conflated Purdy’s reference to a “cause of action”
with an “action,” i.e., a lawsuit. Id. ¶ 28.
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¶ 42 The Teymour court believed that Gutman implicitly held that unrelated
postdissolution matters constitute separate claims subject to Rule 304(a). Id. ¶ 34.
Further, Gutman reiterated that piecemeal litigation should be discouraged in the
absence of just cause. Id. ¶ 38.
¶ 43 The court in Teymour concluded that this court’s case law established that
“(1) predissolution issues are generally related and part of a single claim,
requiring the entire matter to be resolved in order for the appellate court to be
vested with jurisdiction, (2) simultaneously pending postdissolution matters
may be unrelated and, therefore, constitute separate claims, and (3) an order
disposing of only one such claim is not subject to appeal absent a Rule 304(a)
finding.” Id. ¶ 41.
The court declined to “follow what, in our view, is a misinterpretation of Purdy, a
misinterpretation of Gutman, and a generous revision of Carr.” Id. For that reason,
Teymour held that a final order disposing of one of several claims may not be
appealed without an express finding that there is no just cause for delay.
¶ 44 We agree with the holding of the Second and Fourth Districts, as well as the
court in Teymour. Those decision correctly construe this court’s case law
concerning appellate jurisdiction in dissolution of marriage cases. We find the
following reasoning of the court in Teymour to be well taken:
“Where a party files one postdissolution petition, several more are likely to
follow. Allowing or requiring parties to appeal after each postdissolution claim
is resolved would put great strain on the appellate court’s docket and impose an
unnecessary burden on those who would prefer not to appeal until the trial court
resolves all pending claims. To be sure, justice may on occasion require that a
final order disposing of a claim be immediately appealed, rather than held at
bay until another pending postdissolution claim is resolved. Yet, Rule 304(a)
accommodates those circumstances: the trial court need only enter a Rule
304(a) finding.” Id. ¶ 39.
¶ 45 Although this court and the lower courts have used the terms “claims” and
“actions” interchangeably, we now clarify that, for purposes of appellate
jurisdiction, unrelated postdissolution matters constitute separate claims, so that a
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final order disposing of one of several claims may not be appealed without a Rule
304(a) finding.
¶ 46 In this case, the September 17, 2018, fee award was a final order on a
postdissolution petition. In entering the order, the trial court included Rule 304(a)
language. Consequently, the appellate court did have jurisdiction over Gregory’s
appeal of that order. The appellate court thus erred in analyzing the September 17,
2018, order as a predissolution interim fee award and in dismissing the appeal based
upon lack of jurisdiction.
¶ 47 CONCLUSION
¶ 48 For all the foregoing reasons, we reverse the appellate court’s decision,
dismissing Gregory’s appeal based upon lack of jurisdiction, and remand the case
to the appellate court for further proceedings consistent with this opinion.
¶ 49 Appellate court judgment reversed.
¶ 50 Cause remanded.
¶ 51 JUSTICE NEVILLE took no part in the consideration or decision of this case.
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