In re Marriage of Gutman

• Court: Appellate Court of Illinois
• Writing for the Court: Grometer
• Citation: In re Marriage of Gutman, 376 Ill. App. 3d 758, 877 N.E.2d 1135, 315 Ill.Dec. 806, 2007 WL 3051994 (Ill. App. 2007)
• Decision Date: 16 October 2007
• Docket Number: No. 2-06-0213.,2-06-0213.
• Parties: In re MARRIAGE OF Daniel GUTMAN, Petitioner-Appellee, and Mary Gutman, Respondent-Appellant.

877 N.E.2d 1135

376 Ill. App.3d 758

In re MARRIAGE OF Daniel GUTMAN, Petitioner-Appellee, and Mary Gutman, Respondent-Appellant.

No. 2-06-0213.

Appellate Court of Illinois, Second District.

October 16, 2007.

Brian J. Hurst, Stein & Stein, Ltd., Chicago, for Mary Gutman.

Timothy J. Storm, Timothy J. Storm, P.C., Wauconda, for Daniel Gutman.

Presiding Justice GROMETER delivered the opinion of the court:

The trial court granted petitioner Daniel Gutman's postdissolution petition to terminate maintenance. Twenty-nine days later, respondent Mary Gutman moved to vacate that judgment. The court denied that motion, and, 35 days later, Mary moved to reconsider. The court denied that motion, and Mary appealed, while her own civil contempt petition was pending. We hold that, despite the pendency of the contempt petition, the court's judgment granting Daniel's petition to terminate maintenance was the final judgment as to all "claims for relief" in the dissolution action, for the purposes of Supreme Court Rule 304(a) (210 Ill.2d R. 304(a)). Thus, Mary was required to appeal within 30 days of that judgment or within 30 days of the denial of her motion to vacate. Because she did not, her appeal is late, and we dismiss it.

On September 12, 1996, the trial court dissolved the parties' marriage. On June 21, 2002, Mary filed a petition to continue and modify maintenance. Daniel filed an amended petition to terminate maintenance on August 20, 2003. (The original petition is not in the record on appeal; the earliest document in it is Mary's maintenance petition.) On September 18, 2003, Mary filed a "Petition for Adjudication of Indirect Civil Contempt of Court," and on September 25, 2003, the court issued a rule to show cause. On June 15, 2004, the court held a hearing on the two petitions addressing maintenance and on the rule to show cause. Mary did not appear; thus, the court granted Daniel's petition to terminate maintenance and dismissed the contempt petition. Mary then successfully moved to vacate both judgments. The court set all three matters for hearing on June 21, 2005. On that date, Mary again did not appear, and the court granted Daniel's petition to terminate maintenance and dismissed Mary's petition to continue maintenance. The court did not mention the contempt petition. The court asked Daniel to prepare a written order corresponding to the oral pronouncement. That order was filed on June 23, 2005.

Twenty-nine days later, on July 22, 2005, Mary filed a motion to vacate the order. The court denied that motion on September 28, 2005. Thirty-five days after the denial, on November 2, 2005, Mary filed a motion for reconsideration. On November 21, 2005, after Daniel objected to the motion as untimely, Mary moved, under Supreme Court Rule 183 (134 Ill.2d R. 183), for leave to file her motion late. The court allowed the late filing, but, on January 18, 2006, denied the motion for reconsideration. Mary filed her notice of appeal on February 17, 2006. The court never made a finding of appealability under Rule 304(a).

Although neither party has questioned this court's jurisdiction to hear the appeal we have an independent duty to verify our jurisdiction and dismiss the appeal if we lack it. State Farm Mutual Automobile Insurance Co. v. Hayek, 349 Ill.App.3d 890, 892, 286 Ill.Dec. 20, 812 N.E.2d 1035 (2004). Under any analysis, we lack jurisdiction. However, our view of Mary's contempt petition will determine whether her appeal is late or premature. If her contempt petition did not raise, per Rule 304(a), a "claim for relief" in the same action as Daniel's petition to terminate maintenance, then the grant of Daniel's petition was final as to all claims in the action of which it was a part, and Mary's appeal—filed within 30 days of neither the grant of the petition nor the denial of her motion to vacate that judgment—is late. See 210 Ill.2d R. 303(a)(1) (notice of appeal must be filed within 30 days after judgment or within 30 days after disposal of timely motion directed against the judgment); 210 Ill.2d R. 303(a)(2) ("No request for reconsideration of a ruling on a post-judgment motion will toll the running of the time within which a notice of appeal must be filed"). On the other hand, if Mary's contempt petition and Daniel's petition to terminate maintenance raised claims for relief in the same action, then the grant of Daniel's petition was final as to fewer than all claims in the action, and Mary's appeal—filed before the resolution of her contempt petition and without a Rule 304(a) finding—is premature. See 210 Ill.2d R. 304(a).¹ We hold that, although Mary's contempt petition and Daniel's petition to terminate maintenance were parts 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). Accordingly, that rule did not apply, and Mary's appeal is late.

Rule 304(a) states that "[i]f * * * 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 * * * 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." 210 Ill.2d R. 304(a).

In In re Marriage of Duggan, 376 Ill. App.3d 725, 315 Ill.Dec. 811, 877 N.E.2d 1140 (2007), we observed that, per the supreme court's decision in In re Marriage of Kozloff, 101 Ill.2d 526, 79 Ill.Dec. 165, 463 N.E.2d 719 (1984), a postdissolution petition does not initiate a new action, but instead merely continues the dissolution action. We went on to hold that the multiple postdissolution petitions in that case— one to modify support and another to modify visitation—raised multiple claims for relief in the dissolution action and that, therefore, without a Rule 304(a) finding, a party could not appeal a final judgment as to one petition while the other remained pending.

Two of our earlier decisions, In re Marriage of Alyassir, 335 Ill.App.3d 998, 270 Ill.Dec. 419, 782 N.E.2d 978 (2003), and In re Marriage of Colangelo, 355 Ill.App.3d 383, 290 Ill.Dec. 986, 822 N.E.2d 571 (2005), were based on the same principle. In Alyassir, we determined that, without a Rule 304(a) finding, a party could not appeal the judgment on a postdissolution petition to increase child support while a civil contempt petition was pending. Alyassir, 335 Ill.App.3d at 999-1001, 270 Ill.Dec. 419, 782 N.E.2d 978. In Colangelo, we conversely held that, without a Rule 304(a) finding, a party could not appeal the denial of a civil contempt petition while a postdissolution petition to increase child support was pending. Colangelo, 355 Ill.App.3d at 388-89, 290 Ill.Dec. 986, 822 N.E.2d 571.

As noted, Rule 304(a) applies when "multiple claims for relief are involved in an action." 210 Ill.2d R. 304(a). Thus, in Alyassir and Colangelo, our holding necessarily depended on two propositions: (1) the child support petition and the civil contempt petition were parts of the same action; and (2) the child support petition and the civil contempt petition each raised a "claim for relief" in that action.

The first proposition is indisputable. Indeed, the supreme court held long ago that "proceedings to cite a defendant for civil contempt are not to be construed `as an original complaint but as a continuation of the proceeding already begun.'" People ex rel. Kazubowski v. Ray, 48 Ill.2d 413, 417-18, 272 N.E.2d 225 (1971), citing Leman v. Krentler-Arnold Hinge Last Co., 284 U.S. 448, 52 S.Ct. 238, 76 L.Ed. 389 (1932).² More recently, the appellate court noted that, while "criminal contempt is a separate and distinct proceeding in and of itself and is not part of the original case being tried when the contemptuous act occurred," "civil contempt is a continuation of the original cause of action." People v. Budzynski, 333 Ill.App.3d 433, 438, 266 Ill.Dec. 713, 775 N.E.2d 275 (2002). This distinction is consistent with American law in general. See 17 Am.Jur.2d Contempt § 145, at 516 (2004) ("While criminal contempt proceedings are separate from the actions that spawned them, civil contempt proceedings, which enforce remedies in civil actions, are described as part of, or extensions of, the underlying actions"). Accordingly, in Alyassir and Colangelo, because the contempt petition was civil, that petition and the petition to increase child support were parts of the dissolution action.

As noted, however, each case necessarily determined that each petition also raised a "claim for relief" in the dissolution action, for the purposes of Rule 304(a). Herein lies the problem. Although a civil contempt petition is a part of the underlying action, it is nevertheless "an original special proceeding, collateral to, and independent of, the case in which the contempt arises." Kazubowski v. Kazubowski, 45 Ill.2d 405, 415, 259 N.E.2d 282 (1970).³ Acknowledging this in Colangelo, we stated that "[t]he fact that a contempt proceeding, including the petition for a rule to show cause, is an original and 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 388-89, 290 Ill.Dec. 986, 822 N.E.2d 571. But binding precedent requires the opposite result: 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).

In Kazubowski, the parties' marriage was dissolved. In postdissolution proceedings, the trial court imposed on the defendant a civil contempt sanction, and he appealed. The plaintiff asserted that, because the trial court had neither made a Rule 304(a) finding nor resolved all pending claims, the defendant could not appeal the contempt order. The supreme court disagreed:

"It is plaintiff's...