FAMILY MATTERS:  FINAL ORDERS

As a family law practitioner, you may have to file an appeal of the Trial Court’s Ruling.
The question always arises in civil litigation as to when is an Order final and appealable.  Supreme Court Rule 301 states the following:
 

“Every final Judgment of a Circuit Court in a civil case is appealable  as of right.  The appeal is initiated by filing a Notice of Appeal.  No other step is jurisdictional.  An appeal is a continuation of the proceeding.”
Supreme Court Rule 303(a), entitled Appeals From Final Judgments of the Circuit Court In Civil Cases gives some clarification on when to consider an Order of the Circuit Court a final judgment.  Section 303(a) indicates the following:
 

“(1) The notice of appeal must be filed with the clerk of the circuit courtwithin 30 days after the entry of the final judgment is filed, whether in a jury or a nonjury case, within 30 days after the entry of the order disposing of the last pending postjudgment motion directed against that judgment or order, irrespective of whether the circuit court had entered a series of final orders that were modified pursuant to postjudgment motions.  A judgment or order is not final and appealable while a Rule 137 claim remains pending unless the court enters a finding pursuant to Rule 304(a).  A notice of appeal filed after the court announces a decision, but before the entry of the judgment or order, is treated as filed on the date of and after the entry of the judgment or order.

(2) When a timely postjudgment motion has been filed by any party, whether in a jury case or a nonjury case, a notice of appeal filed before the entry of the order disposing of the last pending postjudgment motion, or before the final disposition of any separate claim, becomes effective when the order disposing of said motion or claim is entered.   A party intending to challenge an order disposing of any postjudgment motion or separate claim, or a judgment amended upon such motion, must file a notice of appeal, or an amended judgment, but where a postjudgment motion is denied,, an appeal from the judgment is deemed to include an appeal from the denial of the postjudgment motion.  No request for reconsideration of a ruling on a postjudgment motion will toll the running of the time within which a notice a notice of appeal must be filed under this rule.”
 

However, Supreme Court Rule 304, entitled Appeal From Final Judgment That Do Not Dispose of an Entire Proceeding indicates the following:  “If mulitiple 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.” Rule 304 then states that the time for filing a Notice of Appeal is the same as provided in Rule 303.  However, the final part of Rule 304(a) states the following:

“In the absence of such a finding, any judgment that adjudicates fewerthan 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.”
This would seem to be clear until you get to part (b) of Supreme Court Rule 303 which is entitled Judgments and Orders Appealable Without A Special Finding.  These exceptions are as follows:  

(1) A Judgment in the administration of an estate guardianship or similar proceeding which finally determines a right or status of a party
(2) A Judgment or Order entered in the administration of a receivership, rehabilitation, liquidation or other similar proceeding which finally determines a right or status of a party;
(3) A Judgment or Order granting or denying any of the relief prayed in a Petition under Section 2-1401 of the Code of Civil Procedure;
(4) A final Judgment or Order entered in a proceeding under Section 2-1402 of the Code of Civil Procedure (supplemental proceedings);
(5) An Order finding a person in contempt of Court which imposes a monetary or other penalty;
(6) A custody judgment entered either pursuant to the Illinois Marriage and Dissolution of Marriage Act or the Illinois Parentage Age or a modification of custody entered under either of those Acts.

It seems clear?  Right!  

In the case of Lubben v. Lubben, 135 Ill.App.3d 302, (1985), the Court ruled that a final Order for the purposes of appeal must terminate the litigation between the parties so that, if affirmed, the Trial Court has only to proceed with the execution of the Judgment.  Such an Order, therefore, will finally determine, fix and dispose of the parties’ rights as to the issues made by the suit.  The Lubben Court went on to state the following:

“An Order of Court which leaves the case still pending and undecided is not  a final Order.”  (Citation Omitted.)  Such an Order is neither final nor appealable despite the Court’s special finding that the Order is final for purposes of appeal.   (Citation Omitted.)  The test of the finality lies in the substance and not the form (Citation Omitted.)”

What this case seems to be saying is that the Appellate Court does not want to be burdened with piece meal Appellate litigation if in fact the Court is making an Order final and appealable but it does not dispose of the litigation between the parties.

The First District Appellate Court in the case of In Re The Marriage of Hillinger, 146 Ill.App.3d 549 (1st Dist. 1986), the Court made a distinction on when an Order was final and appealable.  In that case, the Judgment for Dissolution of Marriage was entered on August 16, 1984 in the Circuit Court of Cook County.  The Judgment provided that certain exhibits were to be attached to the Judgment within twenty-four (24) hours of entry of Judgment.  Those exhibits evidenced the division of assets and debts of the marital estate.  When the attachments did not occur as ordered by the Trial Court, the wife filed a Petition to Compel the attachments.  On September 21, 1984, there was an Order of the Circuit Court stating that the “exhibits evidencing the disposition of the parties’ property rights and the divisions of debts were attached nunc pro tunc August 16, 1984, this Judgment being final and appealable as of that date.  

Thereafter, the husband filed his Motion for Reconsideration on October 19, 1984.  The Trial Court denied the Motion to Reconsider as untimely.  The wife argued that the Post-Trial Motion was untimely and that the Trial Court’s should be affirmed and also that the Appeal, taken by the husband, should be dismissed as untimely.   The Appellate Court found that the record in the case disclosed that although the substantive property rights of the parties were not delineated or enumerated in the August 16, 1984 Judgment, the property rights of the parties were determined at that date and the parties had vested rights in the marital estate as declared in the Exhibits subsequently attached.  Therefore, the final date for purposes of this particular action was the August 16, 1984 date when the Judgment for Dissolution of Marriage was entered.  

Needless to say, the cases described above indicate that this is an extremely grey area.  However, the careful family law practitioner will note that under Supreme Court Rule 304 any Order of Contempt is immediately appealable.  Please note that any custody determination under the Illinois Marriage and Dissolution of Marriage Act or the Parentage Act or a modification of the same under either of those Acts, is final and appealable under Supreme Court Rule 304.  There is no need for the Court to insert the magic words that “there is no just reason for delaying either enforcement or appeal or both.”