In re Marriage of Knoerr

No. 2--06--1060 Filed: 12-21-07
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
In re MARRIAGE OF NANCY KNOERR, ) Appeal from the Circuit Court
) of Lake County.
Petitioner-Appellee, )
)
and ) No. 90--D--2058
)
DAVID KNOERR, ) Honorable
) Joseph R. Waldeck,
Respondent-Appellant. ) Judge, Presiding.
______________________________________________________________________________
JUSTICE BOWMAN delivered the opinion of the court:
In this postdissolution proceeding, respondent, David Knoerr, appeals a judgment granting
the petitions of petitioner, Nancy Knoerr, for (1) contribution to the college expenses of the parties'
son, Michael Knoerr (see 750 ILCS 5/513 (West 2006)) and (2) increased child support (see 750
ILCS 5/510(a) (West 2006)). Respondent contends that the judgment is based on an incorrect factual
finding and that the trial court erroneously assumed that proceeds from a home equity loan were part
of respondent's net income (see 750 ILCS 5/505(a)(3) (West 2006)). However, we do not reach the
merits of respondent's case because, in evaluating the record before us, we determine that we lack
jurisdiction to do so.
I. BACKGROUND
The parties were married in December 1977 and have four children: Adam and Eric, who
were emancipated at all pertinent times; Michael, born December 15, 1984; and Christine, born
No. 2--06--1060
August 26, 1989. On September 21, 1990, a judgment dissolved the parties' marriage and awarded
petitioner custody of the children. Late in 2005, petitioner petitioned to require respondent to
contribute to Michael's college expenses. (The petition is not in the record, but respondent filed a
response on November 30, 2005.) On April 7, 2006, petitioner petitioned to increase child support,
relying on a trial court order of October 7, 2003. On July 11, 2006, the trial court held a trial on both
petitions and entered a judgment requiring respondent (1) to contribute 65% of Michael's annual
college expenses; and (2) to pay child support of $1,750 per month, retroactive to April 7, 2006; pay
$213 for health and dental insurance for July 2006, with the monthly amount to increase once a year
until August 2009, after which he would pay $390 monthly; and pay $75 monthly toward uninsured
medical expenses.
On August 7, 2006, respondent moved to reconsider, arguing in part that the home equity
loan was not income. On September 8, 2006, petitioner petitioned for an award of attorney fees for
a previous contempt proceeding. On September 11, 2006, she petitioned for a rule to show cause,
alleging that respondent was refusing to comply with the July 11, 2006, order. On September 26,
2006, the trial court denied respondent's motion to reconsider, granted petitioner's fee petition, and
continued petitioner's petition for a rule to show cause. On October 24, 2006, respondent filed his
notice of appeal, appealing the July 11, 2006, order and the September 26, 2006, order, denying his
motion for reconsideration. Neither trial court order contained language pursuant to Supreme Court
Rule 304(a) (210 Ill. 2d R. 304(a)).
II. ANALYSIS
While the parties have not addressed this court's jurisdiction, we have an independent duty
to verify our jurisdiction and dismiss the appeal if we lack it. In re Marriage of Gaudio, 368 Ill. App.
-2-
No. 2--06--1060
3d 153, 156 (2006). We note that petitioner's petition for a rule to show cause was pending at the
time that respondent filed his notice of appeal, and the question before us is whether respondent could
appeal without a Rule 304(a) finding while the petition for a rule to show cause was still pending.
Rule 304(a) provides:
"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. *** In the absence of such a finding, any
judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than
all the parties is not enforceable or appealable and is subject to revision at any time before the
entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties." 210
Ill. 2d R. 304(a).
Under a recent Second District opinion, In re Marriage of Gutman, 376 Ill. App. 3d 758, 763 (2007),
we would have jurisdiction in this case, as the Gutman court held that civil contempt petitions initiate
separate proceedings and not "claims" within the action, thereby excepting them from Rule 304(a).
However, we believe that Gutman's conclusion, that pending or denied civil contempt petitions are
not subject to Rule 304(a), is based on flawed analysis, and we overrule it.
In Gutman, while the respondent's civil contempt petition was pending, she appealed a trial
court order denying her motion to vacate an order that terminated her maintenance award. Gutman,
376 Ill. App. 3d at 759. The order terminating her maintenance award did not contain language
pursuant to Rule 304(a). Gutman, 376 Ill. App. 3d at 760. In its analysis, Gutman concluded that
although the respondent's contempt petition and the petition to terminate maintenance were "parts
-3-
No. 2--06--1060
of the same dissolution action, the contempt petition did not raise a 'claim for relief' in that action, for
the purposes of Rule 304(a)." Gutman, 376 Ill. App. 3d at 761. To reach this conclusion, Gutman
relied on Kazubowski v. Kazubowski, 45 Ill. 2d 405, 415 (1970). Gutman, 376 Ill. App. 3d at 761-
62. However, Gutman's conclusion was incorrect for two reasons. First, it misapplied the holding
of Kazubowski, forgoing years of legal precedent that holds that only contempt orders imposing fines
or imprisonment may be appealed without a Rule 304(a) finding. See In re Marriage of Alyassir, 335
Ill. App. 3d 998 (2nd Dist. 2003); In re Marriage of Colangelo, 355 Ill. App. 3d 383, 388 (2nd Dist.
2005). Second, it essentially rendered Rule 304(b)(5) (210 Ill. 2d R. 304(b)(5)) meaningless by
expanding that exclusion beyond its explicit language.
In Kazubowski, the trial court found the defendant to be in willful contempt, ordered him to
pay fines, and ordered him to the county jail if he did not pay the fines. Kazubowski, 45 Ill. 2d at
407. The plaintiff argued that without a Rule 304(a) finding, the defendant could not appeal the
contempt order, because other petitions remained pending in the matter. Kazubowski, 45 Ill. 2d at
414. The supreme court held that where a sanction had been imposed, the contempt order was final
and appealable without Rule 304(a) language. Kazubowski, 45 Ill. 2d at 414-15. The supreme court
explained:
"There is authority *** for the proposition that where an order is in effect
specifically enforceable by use of the contempt process it is final and appealable whether or
not there has been a finding pursuant to [Rule 304(a)]. [Citations.] This court has also
recognized that ordinarily an adjudication in a contempt proceeding is final and appealable
because it is an original special proceeding, collateral to, and independent of, the case in
-4-
No. 2--06--1060
which the contempt arises where the imposition of the sanction does not directly affect the
outcome of the principal action." (Emphasis added.) Kazubowski, 45 Ill. 2d at 414-15.
Gutman took the above from Kazubowski and essentially eliminated the emphasized language to
conclude that "although a civil contempt petition is a part of the underlying action, it does not raise
a 'claim for relief' in that action. Indeed, if a civil contempt petition were both a part of the underlying
action and a 'claim for relief' in that action, there would be nothing original and special about it at all."
Gutman, 376 Ill. App. 3d at 763. Kazubowski neither held nor suggested that a pending contempt
petition or a denial of such a petition implicated a right to appeal without a Rule 304(a) finding, as
the Gutman court posits. Gutman, 376 Ill. App. 3d at 763. Rather, it indicated that the imposition
of fines or imprisonment was what required such "original special proceeding[s]" to be treated
differently. Kazubowski, 45 Ill. 2d at 414-15.
The Kazubowski court itself cited People ex rel. General Motors Corp. v. Bua, 37 Ill. 2d 180,
183-84 (1967), which involved an order that held General Motors in contempt of court, struck
General Motors' answer to the plaintiff's amended complaint, and entered judgment against General
Motors. The Bua court determined that the order, while couched in terms of contempt, was not final
and appealable because the sanction imposed directly impacted the outcome of the principal action.
Bua, 37 Ill. 2d at 190-91. The court explained that the "imposition of a fine or imprisonment as a
sanction for contempt is final and appealable because it is an original special proceeding, collateral
to, and independent of, the case in which the contempt arises." Bua, 37 Ill. 2d at 191. While
normally such a sanction would not directly affect the outcome of the principal action and would be
appealable, the order in Bua did affect the outcome of the underlying action. Bua, 37 Ill. 2d at 191.
Kazubowski's holding is consistent with Bua, as its contempt order imposed a fine or imprisonment,
-5-
No. 2--06--1060
which, unlike in Bua, did not affect the outcome of the principal action, thus making it an original
special proceeding that was final and appealable. Kazubowski, 45 Ill. 2d at 414-15.
Other cases have similarly held that, without Rule 304(a) language, civil contempt orders are
final and appealable only where sanctions have been imposed. In In re Marriage of Alush, 172 Ill.
App. 3d 646, 647-49 (1988), the petitioner appealed from the denial of his petition for a rule to show
cause while the respondent's petition for modification of her foreign divorce decree was pending. The
order denying the petitioner's petition for a rule to show cause, however, contained a Rule 304(a)
finding, and the court allowed the appeal, stating that the contempt order was final and appealable
since it terminated the litigation between the parties on some separate part of the litigation. Alush,
172 Ill. App. 3d at 650. While Gutman dismisses the significance of the Rule 304(a) finding in Alush,
the holding of Alush did not specifically indicate that a Rule 304(a) finding was unnecessary or
insignificant, as Gutman reads. Hence, we find the presence of the Rule 304(a) finding not only
relevant but significant, as well.
In Alyassir, the petitioner filed a two-count postdissolution petition seeking (1) increased child
support and (2) a rule to show cause as to why the respondent should not be held in contempt for
failing to pay medical bills covered by the dissolution judgment. The trial court granted relief on the
petition for increased child support but continued the petition for a rule to show cause. Alyassir, 335
Ill. App. 3d at 999. While the petition for a rule to show cause was still pending, the petitioner
appealed the order to increase child support, arguing that it was an insufficient increase. Alyassir, 335
Ill. App. 3d at 999. This court dismissed the petitioner's appeal, holding that without a Rule 304(a)
finding, the order was not appealable until the resolution of the pending petition for a rule to show
cause. Alyassir, 335 Ill. App. 3d at 999-1000. This court noted that Rule 304(a) preserves the trial
-6-
No. 2--06--1060
court's ability to exercise discretion in managing piecemeal appeals, which best serves the goal of
judicial economy. Alyassir, 335 Ill. App. 3d at 1001.
Likewise, in Colangelo, the respondent appealed an order denying her petition for a rule to
show cause, which was entered on November 10, 2003, and an order granting summary judgment
to the petitioner on the respondent's petition for increased child support, which was entered on
December 16, 2003. The respondent filed her notice of appeal of these orders on January 15, 2004.
Colangelo, 355 Ill. App. 3d at 387. The petitioner argued that the appellate court lacked jurisdiction
of the order denying the respondent's petition for a rule to show cause, because her notice of appeal
was filed beyond 30 days of the entry of that order. Colangelo, 355 Ill. App. 3d at 387. The
appellate court disagreed because the order denying the respondent's petition for a rule to show cause
did not contain a Rule 304(a) finding and, therefore, she could not appeal until her petition for
increased child support was resolved. Colangelo, 355 Ill. App. 3d at 387. We stated that 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)." Colangelo, 355 Ill. App. 3d at 389-
90. Thus, a civil contempt petition raises a claim within the meaning of Rule 304(a) if it is pending
or denied. A contempt order is treated separately only when there is an imposition of fines or
imprisonment.
Gutman disposed of Alyassir and Colangelo by relying on its misinterpretation of Kazubowski
and stating that "binding precedent" provided that the "original and special status of the contempt
proceeding establishes that a contempt petition does not raise a claim within the meaning of Rule
304(a)." (Emphasis omitted.) Gutman, 376 Ill. App. 3d at 762-63. A closer reading of Kazubowski
-7-
No. 2--06--1060
allows no basis to overrule Alyassir and Colangelo. A review of earlier cases further supports the
analysis in Alyassir and Colangelo that only contempt orders where sanctions have been imposed are
final and reviewable. See Valencia v. Valencia, 71 Ill. 2d 220, 228 (1978) (not only distinguishing
pending and denied contempt petitions but also contempt orders where no punishment has been
imposed: "Generally, it is held that where no punishment has been imposed an order adjudicating one
to be in contempt is not final and is not reviewable"); Blake v. Blake, 80 Ill. 523, 524-25 (1875)
(where the trial court imposed fines and imprisonment on the defendant, supreme court stated that
such an order was a final and appealable decree); Flaningam v. Flaningam, 331 Ill. App. 418, 420
(1947) (where the trial court merely stated in an order that the defendant was in contempt for failing
to comply with his divorce decree but did not impose any sanction, appellate court held that the order
was not reviewable and quoted Lester v. Berkowitz, 125 Ill. 307, 308 (1888): " 'Had the court
attempted to enforce obedience to its order by the imposition of a fine in a sum of money, with an
order for an execution, or by a definite term of imprisonment, as for contempt of court, the judgment
of the court imposing such fine or imprisonment would be final, and from which an appeal might be
taken, or to which a writ of error would lie' "); cf. Hill v. Thomas B. Jeffery Co., 292 Ill. 490, 493
(1920) (stating that a "judgment either that he was guilty of contempt or that he was not is a final
judgment," but in context of facts that involved the imposition of imprisonment).
Gutman was incorrect not only because of its misinterpretation of Kazubowski and its
progeny, but also because its holding renders Rule 304(b)(5) superfluous. Rule 304(b) was amended
post-Kazubowski to allow an exception to Rule 304(a) for an order "finding a person or entity in
contempt of court which imposes a monetary or other penalty." 210 Ill. 2d R. 304(b)(5). Gutman
dismissed the significance of the enactment of Rule 304(b)(5) by stating that it was added only to
-8-
No. 2--06--1060
reflect current practice and was not intended to " 'eliminate or restrict appeals from judgments or
orders heretofore appealable.' " Gutman, 376 Ill. App. 3d at 764, quoting 155 Ill. 2d R. 304,
Committee Comments, at lxxxiv. Gutman continued by stating that although both Kazubowski and
Rule 304(b)(5) state that the imposition of a civil contempt sanction is not subject to Rule 304(a), "[a]
necessary corollary of that status [of the proceedings as original and special] is that the denial of a
civil contempt petition likewise is not subject to Rule 304(a)." (Emphasis in original.) Gutman, 376
Ill. App. 3d at 764.
This logic defies the principle of inclusio unius est exclusio alterius, which means that the
mention of one thing implies the exclusion of another. Winn v. Mitsubishi Motor Manufacturing, 308
Ill. App. 3d 1054, 1060 (1999). Under this maxim of construction, the supreme court would not have
used such narrow language had it intended to exempt all civil contempt petitions, pending, denied,
or otherwise, from Rule 304(a). Gutman departs from the plain language of Rule 304(b)(5) by
reading into it exceptions to Rule 304(a) that the supreme court did not express but could have done
so very simply. See 210 Ill. 2d R. 304(b)(3) (clearly expressing that a judgment or order "granting
or denying" a section 2--1401 petition may be appealed without a Rule 304(a) finding). Indeed, the
Committee Comments state that Rule 304(b) was added with the intention of embodying existing law.
But again, Gutman misconstrued the Committee Comments to support its position. The Committee
Comments state that it is "not the intention of the committee to eliminate or restrict appeals from
judgments or orders heretofore appealable." (Emphasis added.) 155 Ill. 2d R. 304, Committee
Comments, at lxxxiv. "Heretofore" means "up to this time" (Webster's Third New International
Dictionary 1059 (1986)), meaning that a judgment or order that was appealable prior to the
enactment of Rule 304(b) was not intended to be affected, and no case or rule prior to the enactment
-9-
No. 2--06--1060
of Rule 304(b) held that a contempt order that did not impose sanctions of fines or imprisonment was
appealable without a Rule 304(a) finding. Actually, we have found no case or rule prior to Gutman
that has so held.
Further, the Committee Comments indicate that subsection (b)(5) was added in 1993 to reflect
"current practice," citing to People ex. rel Scott v. Silverstein, 87 Ill. 2d 167 (1981). 155 Ill. 2d R.
304, Committee Comments, at lxxxv. In Silverstein, the defendant appealed an order requiring him
to testify at a discovery deposition. Silverstein, 87 Ill. 2d at 169-70. The supreme court's holding
was consistent with Rule 304(b)(5) and the case law that we have discussed in great depth here. The
supreme court dismissed the appeal and held that the "imposition of a sanction for contempt is final
and appealable because, although occurring within the context of another proceeding and thus having
the appearance of being interlocutory, it is an original special proceeding, collateral to and
independent of, the case in which the contempt arises." Silverstein, 87 Ill. 2d at 172. More
persuasively, the supreme court stated that the court would have jurisdiction only after the defendant
refused to obey the discovery order "and a final order imposing sanctions and terminating contempt
proceedings was entered against him." Silverstein, 87 Ill. 2d at 173. However, at that point in time,
the court did not have a judgment of contempt "including a fine or imprisonment," which would have
been a final and appealable judgment. Silverstein, 87 Ill. 2d at 174.
Gutman framed its position as though it was merely interpreting the ability to appeal contempt
orders as that ability has always been interpreted. In reality, Gutman, in a few short pages, departed
from a century or more of legal precedent and opened the floodgates to piecemeal appeals, which
Rule 304 intended to avoid. Apparently, the law did not fit Gutman's interpretation of Rule 304's
applicability to orders of contempt, so it changed the law without acknowledging a departure from
-10-
No. 2--06--1060
supreme court precedent. However, the supreme court has had numerous opportunities to embody
Gutman's interpretation that all contempt orders, regardless of outcome, are excepted from Rule 304's
application. Instead, the supreme court chose to amend Rule 304(b) with the narrow language of
subsection 5, and that is a fact we find significant.
For the foregoing reasons, we overrule Gutman and revert to the sound precedent, and Rule
304(b)(5), that holds that only contempt orders resulting in the imposition of fines or imprisonment
are appealable without a Rule 304(a) finding. Accordingly, we lack jurisdiction to address the merits
of respondent's appeal because the notice of appeal was filed while petitioner's petition for a rule to
show cause was still pending. Pursuant to Rule 303(a)(2) (Official Reports Advance Sheet No. 8
(April 11, 2007), R. 303(a)(2), eff. May 1, 2007), which applies retroactively here (In re Marriage
of Duggan, 376 Ill. App. 3d 725, 734 (2007)), we dismiss respondent's appeal because on the present
record, respondent's notice of appeal is premature. We presume that respondent can timely file a
notice of appeal upon the resolution of the pending petition for a rule to show cause and any other
pending claims in this matter. However, if pending claims have been resolved and the time to file a
new notice of appeal has expired, Rule 303(a)(2) allows respondent to establish the effectiveness of
the present notice of appeal. In the latter event, respondent may file a petition for rehearing and to
supplement the record, thereby establishing our jurisdiction to address the merits.
Appeal dismissed.
McLAREN and ZENOFF, JJ., concur.
-11-