In re Marriage of Leopando

449 N.E.2d 137, 96 Ill. 2d 114, 70 Ill. Dec. 263, 1983 Ill. LEXIS 361
CourtIllinois Supreme Court
DecidedApril 22, 1983
DocketNo. 56868
StatusPublished
Cited by190 cases

This text of 449 N.E.2d 137 (In re Marriage of Leopando) is published on Counsel Stack Legal Research, covering Illinois Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Marriage of Leopando, 449 N.E.2d 137, 96 Ill. 2d 114, 70 Ill. Dec. 263, 1983 Ill. LEXIS 361 (Ill. 1983).

Opinions

JUSTICE MORAN

delivered the opinion of the court: On December 9, 1981, the circuit court of Cook County entered an order dissolving the marriage of plaintiff, Francine Leopando, to defendant, Olivo Leopando. On December 15, 1981, the court awarded permanent custody of the parties’ minor child, Philippe, to defendant. The custody order stated “that there is no just reason to delay enforcement or appeal of this Order” and reserved for future consideration the issues of maintenance, property division, and attorney fees. The appellate court reversed and remanded the cause, concluding that the order awarding custody to defendant was contrary to the manifest weight of the evidence. (106 Ill. App. 3d 444.) We granted defendant leave to appeal.

Two issues are raised for review: (1) whether the custody order was final and appealable under Supreme Court Rule 304(a), and (2) whether the trial court’s decision awarding custody to défendant was contrary to the manifest weight of the evidence.

Supreme Court Rule 304(a) provides, in 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 enforcement or appeal.*** 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.”

73 Ill. 2d R. 304(a).

Defendant questions the appealability of the custody order under the above-quoted rule. Plaintiff answers by stating that this issue was not raised in the appellate court, and our review of the briefs filed in that court substantiates plaintiff’s claim. Consequently, under the authority of this court’s recent decision in In re Marriage of Cohn (1982), 93 Ill. 2d 190, the issue could be considered waived.

In Cohn it was held that, under the former language of section 401(3) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 401(3)), trial courts could not enter an order dissolving the marriage while reserving questions of support, maintenance, custody and property disposition for future consideration. Although determining that the provisions of section 401(3) were mandatory, this court implicitly found that they did not present a jurisdictional requirement. Therefore, in the absence of an objection to the order, and where the issue was not raised on review, it was deemed to have been waived.

Similarly, Rule 304(a) does not present a jurisdictional requirement in the sense that it cannot be waived. The question arising under our rule concerns the right to appeal a judgment and not whether the judgment entered in the trial court is proper. We would therefore be justified in declining to consider the issue of whether the custody order was final and appealable. However, a review of recent case law involving the effect of Rule 304(a) on the appealability of dissolution orders convinces us that the issue should be addressed.

It seems clear that the law at the time of the instant appeal implied that custody orders, containing the requisite Rule 304(a) language by the trial court, were immediately appealable. (See, e.g., Atkinson v. Atkinson (1981), 87 Ill. 2d 174; In re Marriage of Cohn (1981), 94 Ill. App. 3d 732; In re Marriage of Nilsson (1980), 81 Ill. App. 3d 580.) For example, in Atkinson, the trial court awarded custody of the parties’ children to the mother, and reserved the questions of support, property division, and assessment of fees and costs. The order did not contain the Rule 304(a) language that there is no just reason to delay enforcement or appeal. In holding that the custody order was not appealable, this court stated:

“Under Supreme Court Rule 304(a) (73 Ill. 2d R. 304(a)), where multiple claims for relief are involved in an action, an appeal from a final judgment as to less than all of the claims may only be taken if the trial court has made an express written finding that there is ‘no just reason for delaying enforcement or appeal.’ No such finding was made here. Thus, the custody order was not a judgment from which an immediate appeal could be taken.” 87 Ill. 2d 174, 177.

A fair reading of Atkinson indicates that a custody order is a final judgment as to less than all of the claims in a dissolution proceeding. Implicitly, the only reason the order was deemed nonappealable was the trial court’s failure to recite the requisite Rule 304(a) language. For a number of reasons, we do not believe that a custody order constitutes a final judgment as to a separate claim in a dissolution proceeding.

Subsequent to the appeal taken herein, this court amended Supreme Court Rule 306, which amendment became effective on July 1, 1982. Rule 306(aXl) provides, in part:

“An appeal may be taken in the following cases only on the allowance by the Appellate Court of a petition for leave to appeal:
(v) 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.” (Emphasis added.) (87 Ill. 2d R. 306(a)(l)(v).)

The language of this provision specifically indicates that a custody order is an interlocutory order. Indeed, if such orders were final, for purposes f Rule 304(a), there would be no need for Rule 306(a)(1)(v).

A further reason counseling against the appealability of a custody order pursuant to Rule 304(a) is that it does not constitute a separate “claim” in a dissolution proceeding. 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. (See In re Marriage of Lentz (1980), 79 Ill. 2d 400, 409 (Ward, J., concurring).) They do not represent separate, unrelated claims; rather, they are separate issues relating to the same claim. In fact, it is difficult to conceive of a situation in which the issues are more interrelated than those involved in a dissolution proceeding. Should the trial court decline to grant the petition for dissolution, no final relief may be obtained relevant to the other issues involved. On the other hand, where a dissolution of marriage is granted, a determination as to which party receives custody will necessarily affect how much, if any, support and maintenance are paid. Practically speaking, then, until all of the ancillary issues are resolved, the petition for dissolution is not fully adjudicated. See Davis v. Childers (1965), 33 Ill. 2d 297 (Rule 304(a) does not authorize an appeal from an action involving a single claim in which fewer than all the issues have been resolved).

This result is further compelled by the policy consideration upon which Rule 304(a) is based. As this court noted in In re Marriage of Lentz (1980), 79 Ill. 2d 400, 407:

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Bluebook (online)
449 N.E.2d 137, 96 Ill. 2d 114, 70 Ill. Dec. 263, 1983 Ill. LEXIS 361, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-leopando-ill-1983.