In re: Gaudio

NO. 4-05-0908 Filed: 10/23/06
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
In re: the Marriage of ) Appeal from
DENNIS T. GAUDIO, ) Circuit Court of
Petitioner-Appellee, ) Vermilion County
v. ) No. 99D225
SUSAN L. GAUDIO, )
Respondent-Appellant. ) Honorable
) Gordon R. Stipp,
) Judge Presiding.
JUSTICE MYERSCOUGH delivered the opinion of the court:
In October 2005, the trial court denied respondent
Susan L. Gaudio's postdissolution petition to modify and/or set
maintenance. Opposing postdissolution motions regarding child
support remained pending. Respondent appealed the dismissal of
her petition regarding maintenance, arguing (1) the trial court
had jurisdiction to hear the maintenance issue through the
doctrine of revestment and (2) the maintenance award was modifi-
able. We dismiss the appeal for lack of jurisdiction.
I. BACKGROUND
Respondent and petitioner, Dennis Gaudio, married in
September 1991. Two children were born to the parties, Kasey
(born January 17, 1986) and Nicklas (born January 22, 1992). In
June 1999, petitioner filed a petition for dissolution of mar-
riage.
In December 1999, the trial court found grounds for
dissolution proved but reserved "judgment and all other issues"
for further consideration. In June 2000, the court entered a
judgment of dissolution of marriage. The parties had entered
into a settlement agreement on all ancillary matters. The court
approved the settlement agreement and incorporated it into the
judgment. The court awarded custody of the children to respon-
dent. As is relevant to this appeal, the judgment also contained
the following provision:
"That beginning on June 15, 2000, the
[p]etitioner shall pay to the [r]espondent
the sum of [e]ight [t]housand [d]ollars
($8,000.00) per month as and for unallocated
maintenance and support, said unallocated
maintenance shall be non[]modifiable and
which shall terminate upon the death of the
[r]espondent or on June 15, 2005, whichever
event shall first occur, with it being the
intention of the parties that this be deduct-
ible to the [p]etitioner and taxable to the
[r]espondent, and that effective on June 15,
2005, the issue remaining would then be child
support thereafter, unless the parties would
otherwise mutually agree to continue said
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payments; other than aforestated in this
paragraph, both parties are barred forever
from receiving maintenance from the other[.]"
On May 27, 2005, petitioner filed a petition to modify
the judgment of dissolution stating the parties had made no
agreement to continue payments beyond June 15, 2005. Petitioner
alleged that Kasey attained the age of 18 and graduated high
school, and respondent only had one minor child in her custody.
Petitioner asked the court to determine child support as to
Nicklas effective June 15, 2005.
On June 15, 2005, respondent filed a petition for child
support and education expenses. Respondent sought a determina-
tion of child support for Nicklas. She also sought an order
requiring petitioner to pay all college and internship expenses
for Kasey.
On September 20, 2005, the trial court entered an order
arising from a hearing held on July 29, 2005. The order provided
that with the exception of the petition for leave to intervene
(filed by office holders and shareholders of Earl Gaudio & Son,
Inc., petitioner's business), which the court denied, all pending
matters would be continued. The order also provided as follows:
"That until this case is determined by the [c]ourt, the prior
order concerning unallocated support and maintenance shall
continue without prejudice to either party."
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On October 4, 2005, respondent filed a petition to
modify and/or set maintenance. Respondent requested the trial
court award her permanent maintenance.
On October 5, 2005, the trial court held a hearing on
all pending matters, including petitioner's May 2005 petition to
modify child support and respondent's June 2005 petition for
child support and educational expenses. Prior to addressing
those petitions, however, the court noted respondent filed the
petition to modify and/or set maintenance the previous day. The
court heard arguments and construed petitioner's counsel's
remarks as constituting a motion to strike and dismiss the
petition. After affording respondent's counsel an opportunity to
respond, the court struck and dismissed the petition pursuant to
section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615
(West 2004)). Specifically, the court found that respondent
freely and voluntarily waived any right to maintenance when she
accepted the terms of the settlement agreement. The court asked
respondent's counsel whether she wanted a written order, but she
declined.
The trial court proceeded to hear evidence on peti-
tioner's petition to modify child support and respondent's
petition for child support and educational expenses. The hearing
did not conclude that day and was continued. According to the
docket sheet, another hearing was set for January 9, 2006.
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However, on November 1, 2005, respondent filed a notice
of appeal. Respondent's notice of appeal sought reversal of the
trial court's October 5, 2005, order pertaining to maintenance.
On April 28, 2006, respondent filed a motion to consol-
idate this case with case No. 4-06-0331. The notice of appeal in
that case, filed April 19, 2006, seeks reversal of the trial
court's March 20, 2006, order as it pertains to the award of
maintenance to respondent. The motion to consolidate was denied
on May 15, 2006.
II. ANALYSIS
While neither party initially addressed whether this
court had jurisdiction over the appeal, we have an independent
duty to examine our appellate jurisdiction. See Tumminaro v.
Tumminaro, 198 Ill. App. 3d 686, 690, 556 N.E.2d 293, 296 (1990).
Upon request, the parties filed supplemental briefs addressing
the jurisdictional issue.
"A judgment or order is 'final' if it disposes of the
rights of the parties, either on the entire case or on some
definite and separate part of the controversy." Dubina v.
Mesirow Realty Development, Inc., 178 Ill. 2d 496, 502, 687
N.E.2d 871, 874 (1997). If multiple claims 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 claims only if the trial court
makes an express written finding of no just reason to delay
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either enforcement, appeal, or both. 155 Ill. 2d R. 304(a).
Without a Rule 304(a) finding, a final order disposing of fewer
than all the claims is not an appealable order and does not
become appealable until all of the claims are resolved. Marsh v.
Evangelical Covenant Church of Hinsdale, 138 Ill. 2d 458, 464,
563 N.E.2d 459, 463 (1990).
A petition for dissolution advances a single claim--
dissolution of the parties' marriage. In re Marriage of
Leopando, 96 Ill. 2d 114, 119, 449 N.E.2d 137, 140 (1983).
Therefore, issues raised in a dissolution-of-marriage case are
ancillary to the cause of action, not separate claims and not
appealable under Rule 304(a). Leopando, 96 Ill. 2d at 119, 449
N.E.2d at 140 (holding that a court's custody order was not a
final order and not appealable with a Rule 304(a) finding because
a petition for dissolution advances a single claim).
This case does not involve a petition for dissolution.
The judgment of dissolution was entered in June 2000 and was
final for purposes of appeal. At issue here are postdissolution
proceedings. The First and Second Districts have reached differ-
ent results when examining whether a postdissolution order is
final when other postdissolution issues remain pending. See In
re Marriage of Carr, 323 Ill. App. 3d 481, 752 N.E.2d 1181 (2001)
(First District); In re Marriage of Alyassir, 335 Ill. App. 3d
998, 782 N.E.2d 978 (2003) (Second District). Respondent asks
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this court to follow Carr.
In Carr, the appellate court held that it lacked
jurisdiction over an appeal of a postdissolution child-support
order. Carr, 323 Ill. App. 3d at 485, 752 N.E.2d at 1184. The
court held that the issues pending at the time of the entry of
the child-support order--payment of college expenses and attorney
fees--had no effect on the child-support order. Carr, 323 Ill.
App. 3d at 485, 752 N.E.2d at 1184. Therefore, the petitioner's
failure to file her notice of appeal within 30 days of the entry
of the child-support order divested the appellate court of
jurisdiction over that issue. Carr, 323 Ill. App. 3d at 485, 752
N.E.2d at 1184.
In Alyassir, the petitioner filed a two-count
postdissolution petition. Count I sought increased child sup-
port, and count II sought a rule to show cause why the respondent
should not be held in contempt for failing to pay medical bills.
Alyassir, 335 Ill. App. 3d at 999, 782 N.E.2d at 978. After the
trial court entered an order on count I, the petitioner filed a
notice of appeal, despite the fact that count II remained pend-
ing. Alyassir, 335 Ill. App. 3d at 999, 782 N.E.2d at 978.
The Alyassir court refused to follow Carr and found
Carr's reasoning unsound for two reasons. Alyassir, 335 Ill.
App. 3d at 1000-01, 782 N.E.2d at 980. First, the Carr court
failed to consider that even if the claims were separate, that
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only meant that an order that finally resolved fewer than all of
them could be made immediately appealable by including a written
Rule 304(a) finding. Alyassir, 335 Ill. App. 3d at 1000, 782
N.E.2d at 980. Second, Carr removed the exercise of discretion
given to the trial court to decide if a piecemeal appeal best
served juridical economy. Alyassir, 335 Ill. App. 3d at 1001,
782 N.E.2d at 980.
We agree with the reasoning in Alyassir. When the
trial court dismissed respondent's petition to modify and/or set
maintenance, other postdissolution matters remained pending.
Even if the order dismissing respondent's petition constituted a
final order, it was not immediately appealable without the
required Rule 304(a) finding. See In re Marriage of Piccione,
158 Ill. App. 3d 955, 963-64, 511 N.E.2d 1157, 1163 (1987)
(finding that a postjudgment order from a judgment of dissolution
determining an issue on child support but reserving the issue of
attorney fees and failing to include Rule 304(a) language was not
final and appealable); cf. In re Custody of Purdy, 112 Ill. 2d 1,
5, 490 N.E.2d 1278, 120 (1986) (finding order on single
postdissolution petition final for purposes of appeal where all
of the custody issues were resolved, except the extent of the
mother's summer visitation, an issue always subject to revision).
Respondent asks this court to draw a distinction
between claims brought in the same petition versus those brought
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in separate petitions. We decline to draw such a distinction.
Regardless how the issues are raised (in a single petition versus
separate petitions), if an order finally resolves a separate
claim but leaves other claims pending, the trial court must make
a Rule 304(a) finding before the order is appealable. See Marsh,
138 Ill. 2d at 464, 563 N.E.2d at 463.
Respondent urges this court to exercise jurisdiction
over the appeal because she filed a timely notice of appeal on
April 19, 2006, following the trial court's determination on
child support. Respondent argues that because the child-support
issue was resolved in its entirety, this court has jurisdiction
to hear the appeal of the maintenance issue under either the
November 1, 2005, or April 19, 2006, notice of appeal. Respon-
dent also notes she sought to consolidate the two appeals, but
this court denied the request. Respondent claims that she
preserved the issue for appeal.
Respondent's November 1, 2005, notice of appeal was
premature because other matters remained pending, and the trial
court did not make a Rule 304(a) finding. A premature notice of
appeal does not confer jurisdiction on the appellate court. See
Marsh, 138 Ill. 2d at 469, 563 N.E.2d at 465. Moreover, efforts
to consolidate the two appeals do not confer jurisdiction in this
case. See, e.g., Charles v. Gore, 248 Ill. App. 3d 441, 445, 618
N.E.2d 554, 557 (1993) ("A consolidation does not operate to
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establish jurisdiction where there was none before"). Because
respondent did not file a timely notice of appeal in this case,
this court lacks jurisdiction over this appeal. This ruling does
not affect this court's ability to address the issue in case No.
4-06-0331.
III. CONCLUSION
For the reasons stated, we dismiss the appeal for lack
of jurisdiction.
Dismissed.
STEIGMANN and COOK, JJ., concur.
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