In Re Marriage of Capitani , 306 Ill. Dec. 750 ( 2006 )

JUSTICE McLAREN

delivered the opinion of the court:

This appeal comes before the court on respondent Jo Ellyn Capitani’s notice of appeal filed on April 20, 2005, in which she claims the trial court erred and abused its discretion in the entry of its March 22, 2005, judgment order. Respondent asserts that this matter was brought as an appeal from a final judgment, pursuant to Supreme Court Rules 301 and 303(a) (155 Ill. 2d Rs. 301, 303(a)) and article VI, section 6, of the Illinois Constitution (Ill. Const. 1970, art. VI, §6), which would vest this court with jurisdiction to determine the issues presented for our review.

Petitioner filed a motion to dismiss the appeal, to which respondent filed an objection. We determine that this court does not have jurisdiction and grant petitioner’s motion to dismiss the appeal.

The trial court entered an order on March 7, 2005, that addressed many of the issues in dispute in the dissolution action. In paragraph 2 of its letter of opinion, dated March 7, 2005, the trial court noted that joint custody of the parties’ two minor children should be awarded to the parties, with respondent as the primary residential custodian. The trial court outlined general parameters for a contemplated joint parenting order, but did not make specific provisions. Petitioner’s attorney was directed to prepare the judgment and respondent’s attorney to prepare “any other necessary documents.”

A judgment for dissolution of marriage was entered on March 22, 2005. The judgment incorporated the trial court’s letter of opinion by reference and recited that joint custody was awarded. However, the judgment did not contain any specifics regarding the provisions of joint custody. The judgment stated that the court “reserves jurisdiction over this cause for the purposes of entering a joint parenting order incorporating a joint parenting agreement to be prepared and submitted to this court by the parties.”

We determine that the reservation of jurisdiction for the purpose of entering a joint parenting order clearly shows that not all of the issues in dispute were fully addressed and settled by the March 22, 2005, judgment order. Thus, the March 22, 2005, order was not final and appealable. As petitioner noted in his motion to dismiss the appeal, the joint parenting order, which did in fact contain specific provisions regarding custody, was not entered in the trial court until July 1, 2005. We consider the trial court’s reservation of jurisdiction significant because we do not consider the entry of a joint parenting order to be “incidental” to the final judgment.

The statutorily required provisions for a joint custody order underscore the importance of a joint parenting order (whether based upon agreement or hearing on the merits) that is specific and clear in order that it be a final disposition, capable of being interpreted and enforced.

“Such [joint parenting] [a]greement shall specify each parent’s powers, rights and responsibilities for the personal care of the child and for major decisions such as education, health care, and religious training. The [a]greement shall further specify a procedure by which proposed changes, disputes and alleged breaches may be mediated or otherwise resolved and shall provide for a periodic review of its terms by the parents. ***

(c) The court may enter an order of joint custody if it determines that joint custody would be in the best interests of the child, taking into account the following:

(3) all other factors which may be relevant to the best interest of the child.” (Emphases added.) 750 ILCS 5/602.1(b), (c) (West 2004).

The order specifying the nature and extent of visitation for the nonresidential parent here was not realized until July 1, 2005, and therefore was not final and appealable prior to July 1, 2005. We further believe that the joint parenting order is of utmost importance because it embodies the agreement between the parties as to the most important aspect of the marriage and subsequent dissolution, the custody and care of their minor children. It is problematic to conclude that a joint parenting order that is incapable of being enforced is “incidental” to the final judgment. A “ ‘mandate of the court must be clear before disobedience can subject a person to punishment.’ ” Doe v. Lutz, 253 Ill. App. 3d 59, 65 (1993), quoting People v. Wilcox, 5 Ill. 2d 222, 228 (1955). “To support a finding of contempt, the order must be ‘so specific and clear as to be susceptible of only one interpretation.’ [Citation.] ‘It [the order] must not only be capable of reasonable interpretation, but that interpretation must be to the exclusion of other reasonable interpretations; it must be unambiguous.’ [Citation.]” In re Marriage of Steinberg, 302 Ill. App. 3d 845, 853 (1998).

Without such clarity, a joint parenting order is not only unenforceable, it is unreviewable in any meaningful sense. Were a party to appeal such a nondescript order, as in this case, the reviewing court would be hard-pressed to consider the merits of the appeal. We believe that the dissent does not understand the difficult complications such lack of clarity causes for purposes of review and enforcement of custody and visitation rights.

A petition for dissolution of marriage advances a single claim, that is, a request for an order dissolving the parties’ marriage. In re Marriage of Leopando, 96 Ill. 2d 114, 119 (1983). The other 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.” (Emphasis in original.) Leopando, 96 Ill. 2d at 119. All issues, including visitation, must be resolved before a judgment becomes a final and appealable order. In re Marriage of Watling, 183 Ill. App. 3d 18, 21-22 (1989). Stated differently, a judgment that does not reserve any issues for later determination is final and appealable. In re Marriage of Sassano, 337 Ill. App. 3d 186, 192 (2003).

Because not all issues in controversy were adjudicated by the March 22, 2005, judgment order, the order was not final and appeal-able and we lack jurisdiction to consider this appeal. Supreme Court Rule 303(a)(1) states that a notice of appeal must be filed within 30 days of the entry of the final judgment appealed from (or within 30 days after entry of an order disposing of a timely posttrial motion directed against the judgment) (155 Ill. 2d R. 303(a)(1)). Jurisdiction is conferred upon this court only through the timely filing of a notice of appeal, following a final judgment order. In re Application of County Treasurer, 214 Ill. 2d 253, 261 (2005). We must grant petitioner’s motion to dismiss the appeal.

Petitioner filed a cross-appeal. However, he stated in his brief that he has chosen not to presently argue the issues raised in the cross-appeal. Thus, we determine that he has abandoned his cross-appeal. Furthermore, because we do not have jurisdiction over the original appeal, we do not have jurisdiction over the cross-appeal. Supreme Court Rule 303(a)(3) allows a cross-appeal only if the notice of the cross-appeal is filed within 10 days of a timely filed original notice of appeal or within 30 days of the final and appealable judgment. Neither factual scenario exists here.

In conclusion, because we do not have jurisdiction over the original appeal or the cross-appeal, we grant petitioner’s motion to dismiss the original appeal, and we dismiss the cross-appeal sua sponte.

Appeal dismissed.

HUTCHINSON, J., concurs.