In re Marriage of Nettleton and Terrell

• Decision Date: 04 June 2004
• Docket Number: No. 2-03-0362.,2-03-0362.
• Citation: 285 Ill.Dec. 19,348 Ill.App.3d 961,811 N.E.2d 260
• Parties: In re MARRIAGE OF Margaret NETTLETON, Petitioner-Appellee, and Mark TERRELL, Respondent-Appellant.
• Court: United States Appellate Court of Illinois

811 N.E.2d 260

348 Ill.App.3d 961

285 Ill.Dec. 19

In re MARRIAGE OF Margaret NETTLETON, Petitioner-Appellee, and

Mark TERRELL, Respondent-Appellant.

No. 2-03-0362.

Appellate Court of Illinois, Second District.

June 4, 2004.

Timothy M. Daw, Sarane C. Siewerth, Schiller, DuCanto & Fleck, Chicago, for Mark Terrell.

Andrew Y. Acker, Kubiesa, Spiroff, Gosselar, Acker & Kern, P.C., Elmhurst, for Margaret Nettleton.

Justice HUTCHINSON delivered the opinion of the court:

Pursuant to Supreme Court Rule 304(b)(5) (155 Ill.2d R. 304(b)(5)), respondent, Mark Terrell, appeals from the trial court's order finding him in indirect civil contempt for refusing to comply with a prior order directing him to pay temporary maintenance to petitioner, Margaret Nettleton. In challenging the trial court's contempt order, respondent also requests this court to review the trial court's adverse rulings on his motions for substitution of judge and for dismissal of petitioner's petition for dissolution of marriage. Because the trial court's rulings on those motions do not bear directly on the question of whether the trial court's finding of contempt was proper, we currently lack jurisdiction to consider the rulings on those motions. With respect to the trial court's order finding respondent in indirect civil contempt, we vacate.

The record reflects the following facts. Petitioner and respondent were married in August 1988. The parties had no children during the marriage. Petitioner's first petition for dissolution (the first petition), filed in July 2001, alleged irreconcilable differences, extreme and repeated mental cruelty, and adultery. The first petition was docketed as No. 01-D-1727 and was assigned to Judge Brian McKillip. Respondent filed a counterpetition for dissolution. The case remained on the trial court's docket for more than a year, during which time the trial court made several rulings on substantive issues, including a ruling on temporary maintenance.

On December 6, 2002, the case came up for trial. Petitioner moved for a voluntary nonsuit, which the trial court denied because of respondent's objection to the lack of notice. The trial court subsequently dismissed petitioner's petition upon her failure to prove grounds for a dissolution. Thereafter, the trial court dismissed respondent's counterpetition for want of prosecution when respondent declined to proceed on his counterpetition.

On December 13, 2002, petitioner filed a second petition for dissolution of marriage (the second petition), alleging grounds of irreconcilable differences and adultery. Petitioner also filed a petition for temporary relief, requesting the award of temporary monthly maintenance. This case was docketed as No. 02-D-3037 and was assigned to Judge Dorothy French. On January 13, 2003, respondent filed a two-count motion to dismiss. Count I alleged that the trial court lacked personal jurisdiction over respondent, and count II argued that the dismissal of the first petition was res judicata. Upon being notified of the existence of the first petition, Judge French transferred the case back to Judge McKillip under local court rule, noting in her order, "Case previously assigned to Judge McKillip." On January 16, 2003, respondent filed a motion for substitution of judge as a matter of right pursuant to section 2-1001(a)(2) of the Code of Civil Procedure (735 ILCS 5/2-1001(a)(2) (West 2002)). Petitioner responded that respondent's request should be denied because Judge McKillip had already made substantive rulings in regard to the first petition. Petitioner concluded that, as for her second petition, respondent had waived his right to seek substitution as a matter of right.

The parties fully briefed the issue, and on February 4, 2003, the trial court conducted a hearing on respondent's motion for substitution of judge. Following arguments of the parties, the trial court denied respondent's motion for substitution. The trial court also denied respondent's requests for a finding pursuant to Supreme Court Rule 304(a) (155 Ill.2d R. 304(a)) or for certification pursuant to Supreme Court Rule 308 (155 Ill.2d R. 308). Respondent's counsel then advised the trial court that, to test the appropriateness of its ruling, respondent would have to be held in contempt. The trial court indicated that it would not hold respondent in contempt.

On February 7, 2003, the trial court conducted a hearing on respondent's motion to dismiss. Following arguments of the parties, the trial court denied both counts. The trial court also refused respondent's requests for a Rule 304(a) finding or for certification of the question under Rule 308.

On March 14, 2003, the trial court conducted a hearing on petitioner's petition for temporary maintenance. Following the presentation of evidence, the trial court continued the matter for the completion of closing arguments and for a ruling. On March 17, 2003, the trial court awarded petitioner temporary maintenance in the amount of $4,070 per month. The trial court and the parties agreed to reconvene at 10:30 a.m. on March 20, 2003, to enter the maintenance order. Also on March 17, respondent filed a "stipulation" that he be held in indirect civil contempt for his failure to pay court-ordered maintenance. In the stipulation, respondent narrated the background of petitioner's first and second petitions for dissolution, set forth the trial court's rulings on his motion for substitution of judge and motion to dismiss, and expressed that he had unsuccessfully requested the trial court to allow an interlocutory appeal on the issues of the substitution of judge and the dismissal of petitioner's second petition. The stipulation also reflected that on February 4, 2003, counsel had informed the trial court that the only other way to bring these matters before the appellate court was to have the trial court hold respondent in contempt but that the trial court had refused to do so at that time.

The stipulation further recited that, in the event respondent was ordered to pay temporary maintenance to petitioner, he had informed his and petitioner's counsel that he would not pay the maintenance and would voluntarily allow himself to be held in indirect civil contempt to challenge the validity of the trial court's rulings concerning his motion for substitution of judge and his motion to dismiss. Respondent also waived the formal pleading requirement of requesting a finding of contempt and he agreed to interpose no defense to an oral request.

On March 20, 2003, the trial court entered an order awarding petitioner $4,070 per month in temporary maintenance retroactive to the effective date of service on respondent of her second petition. On the same date, the trial court entered an order finding that respondent's conduct and failure to comply with the temporary maintenance order were contumacious and holding him in indirect civil contempt. The contempt order also required respondent's incarceration but stayed the incarceration to give respondent time to satisfy the arrearage. Respondent filed his notice of appeal the same day. Respondent's counsel has since represented to this court that respondent has paid the purge amount of $12,210.

During the pendency of this appeal, petitioner filed a motion to dismiss this appeal for lack of jurisdiction, arguing that respondent's notice of appeal was not timely filed. Petitioner notes that the trial court's order finding respondent in indirect civil contempt bears a stamp reflecting a filing date of March 20, 2003, and a time of 11:27 a.m.; meanwhile, respondent's notice of appeal bears a stamp reflecting a filing date of March 20, 2003, and a time of 11:34 a.m.; and the trial court's order awarding petitioner temporary maintenance bears a stamp reflecting a filing date of March 20, 2003, and a time of 11:54 a.m. Petitioner concludes that we lack jurisdiction because the sequence of filing times reflects that respondent filed his notice of appeal before the trial court entered its final order awarding petitioner temporary maintenance.

Respondent filed an objection to petitioner's motion, denying that his notice of appeal was premature. In his objection, respondent argues that the trial court's order holding him in contempt expressly indicated that it had already entered the temporary maintenance order before it entered the contempt order. Respondent further argues that he filed his notice of appeal after the trial court entered the order finding him in contempt and that the file stamps on the documents confirm that fact. With respect to the time stamp, respondent states, first, that the time stamp on the maintenance order is irrelevant to his appeal because jurisdiction is based on the contempt order and not the maintenance order, and second, that he had no control over the actions of the court personnel. We ordered petitioner's motion to dismiss and respondent's objection taken with the case.

Our supreme court has the sole responsibility for promulgating rules governing appeals from the circuit court. See Ill. Const. 1970, art. VI, § 1; People v. Cox, 82 Ill.2d 268, 274, 45 Ill.Dec. 190, 412 N.E.2d 541 (1980), citing People ex rel. Stamos v. Jones, 40 Ill.2d 62, 66, 237 N.E.2d 495 (1968). The timely filing of a notice of appeal is mandatory and jurisdictional. See 155 Ill.2d R. 301; In re Estate of Kunsch, 342 Ill.App.3d 552, 553, 276 Ill.Dec. 809, 794 N.E.2d 1059 (2003). Supreme Court Rule 303(a)(1) requires that a notice of appeal be filed within 30 days from the entry of final judgment. 155 Ill.2d R. 303(a); In re Marriage of Devick, 335 Ill.App.3d 734, 741, 269 Ill.Dec. 687, 781 N.E.2d 484 (2002).

Supreme Court Rule 272 states:

"If at the time of announcing final judgment the judge requires the submission of a form of written judgment to be signed by the judge or if a circuit court rule requires the prevailing party to submit a draft order, the clerk shall make a notation to that effect and

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