In re Teymour

• Decision Date: 06 September 2017
• Docket Number: No. 1-16-1091,1-16-1091
• Citation: 86 N.E.3d 1113,2017 IL App (1st) 161091
• Parties: IN RE MARRIAGE OF Fouad TEYMOUR, Petitioner–Appellant, and Hala MOSTAFA, Respondent–Appellee.
• Court: United States Appellate Court of Illinois

2017 IL App (1st) 161091
86 N.E.3d 1113

IN RE MARRIAGE OF Fouad TEYMOUR, Petitioner–Appellant,
and
Hala MOSTAFA, Respondent–Appellee.

No. 1-16-1091

Appellate Court of Illinois, First District, THIRD DIVISION.

September 6, 2017

Matthew C. Arnoux, of Birnbaum, Haddon, Gelfman & Arnoux, LLC, of Chicago, for appellant.

Linda S. Kagan, of Chicago, for appellee.

OPINION

JUSTICE LAVIN delivered the judgment of the court, with opinion.

¶ 1 Petitioner Fouad Teymour appeals from the trial court's orders resolving several postdissolution matters raised by petitioner and his ex-wife, respondent Hala

86 N.E.3d 1115

Mostafa. Other postdissolution matters remain pending below. Presently, appellate court case law is divided as to whether our jurisdiction over this appeal is governed by Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994) or Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016). We find that supreme court jurisprudence requires us to depart from the weight of First District authority and apply Rule 304(a). Because claims remain pending below and the trial court did not enter the finding required to confer jurisdiction under this rule, we dismiss this appeal for lack of jurisdiction.

¶ 2 I. Background

¶ 3 Petitioner and respondent were married on June 10, 1982, and had two children. The judgment for dissolution of marriage, entered in 2006, incorporated the parties' marital settlement agreement (MSA), which required petitioner to pay respondent $5000 in monthly maintenance for at least seven consecutive years. The MSA also provided that before seven years expired, respondent could file a petition to extend maintenance payments. Respondent also had an affirmative obligation to pursue training to increase her annual income through full-time employment, so long as petitioner complied with the MSA. Respondent's income would not be a factor in connection with modifying petitioner's maintenance obligation unless respondent's gross annual income from employment exceeded $50,000. The MSA further required that petitioner maintain life insurance and disability insurance policies naming respondent as the beneficiary.

¶ 4 Before seven years expired, respondent filed a petition to extend and increase maintenance. The petition also sought child support for their adult son Hisham, who respondent alleged was disabled, and a rule to show cause why petitioner should not be held in contempt for his failure to deposit with respondent copies of the requisite insurance policies. Additionally, respondent requested attorney fees and costs. For his part, petitioner sought the reduction of maintenance because his circumstances had changed and respondent had not attempted to become self-supporting. Both parties sought discovery sanctions. On September 23, 2014, the court ordered that these motions would be "addressed as part of the case in chief" and "ruled upon at the close of evidence as to whether sanctions should be ordered."

¶ 5 On June 12, 2015, following an evidentiary hearing, the court entered an order continuing maintenance at $5000 per month and found petitioner to be in indirect civil contempt with respect to his insurance obligation. The court did not, however, impose a penalty in conjunction with the contempt finding. Cf. Ill. S. Ct. R. 304(b)(5) (eff. Feb. 26, 2010) (stating that a contempt order imposing a penalty is immediately appealable). The court also granted respondent leave to file a petition for attorney fees under section 508(b) of Illinois Marriage and Dissolution of Marriage Act (Act) ( 750 ILCS 5/508(b) (West 2014)). In addition, the court denied petitioner's motion for discovery sanctions but granted respondent's motion for such sanctions. To that end, the court granted respondent leave to file an attorney fee petition. See Ill. S. Ct. R. 219(c) (eff. July 1, 2002) (authorizing the court to award attorney fees as a sanction). The order did not address respondent's request for support of Hisham.

¶ 6 On July 8, 2015, respondent filed a petition for attorney fees under section 508(b) and Rule 219. She also filed a separate petition seeking fees under section 508(a) of the Act, arguing that while petitioner had the financial resources to pay her fees, she did not. Meanwhile, petitioner filed a motion to reconsider the court's ruling, arguing, among other things, that

86 N.E.3d 1116

the court should formally deny respondent's request for support of Hisham. At a hearing on that motion, respondent's attorney stated that the court was not required to address her request for support of Hisham because neither party had asked the court to do so at the evidentiary hearing.

¶ 7 In an order entered on March 21, 2016, the court corrected certain factual errors contained in its prior order and indicated that the court had considered Hisham's disability in reviewing respondent's maintenance request but otherwise denied petitioner's motion to reconsider.¹ Petitioner filed a notice of appeal on April 18, 2016, challenging, among other things, (1) his continued maintenance obligation, (2) the imposition of sanctions, (3) the contempt finding, and (4) the trial court's failure to dismiss respondent's request for support of Hisham. Respondent's petitions for attorney fees, and possibly her request for child support, were still pending, however, and the trial court did not find under Rule 304(a) that there was no just cause for delaying appeal.

¶ 8 II. Analysis

¶ 9 On appeal, petitioner raises several challenges to the trial court's rulings. Yet, we are first compelled to address this court's jurisdiction. Before the parties filed briefs in this appeal, respondent filed a motion to dismiss the appeal for lack of jurisdiction, which a justice of this court denied. Additionally, petitioner argues that the record shows the trial court believed its judgment was appealable.

¶ 10 Whether a court has jurisdiction presents a legal question to be determined de novo( Stasko v. City of Chicago, 2013 IL App (1st) 120265, ¶ 27, 375 Ill.Dec. 664, 997 N.E.2d 975 ), without deference to the trial court's reasoning ( Nationwide Advantage Mortgage Co. v. Ortiz, 2012 IL App (1st) 112755, ¶ 20, 363 Ill.Dec. 376, 975 N.E.2d 178 ). Additionally, a motion panel's denial of a motion to dismiss an appeal prior to briefing is not final and must be modified by the panel hearing the appeal where jurisdiction is lacking. See In re Estate of Gagliardo, 391 Ill. App. 3d 343, 348–49, 330 Ill.Dec. 398, 908 N.E.2d 1056 (2009). Having considered the matter further, we now dismiss this appeal.

¶ 11 a. Appellate Jurisdiction

¶ 12 Pursuant to Rule 301, "[e]very final judgment of a circuit court in a civil case is appealable as of right." Ill. S. Ct. R. 301 (eff. Feb. 1, 1994). Generally, parties may only appeal from final orders disposing of every claim in a case. John G. Phillips & Associates v. Brown, 197 Ill. 2d 337, 339, 259 Ill.Dec. 12, 757 N.E.2d 875 (2001). In addition, our supreme court defines a claim as "any right, liability or matter raised in an action." Marsh v. Evangelical Covenant Church, 138 Ill. 2d 458, 465, 150 Ill.Dec. 572, 563 N.E.2d 459 (1990).

¶ 13 Under Rule 304(a), however, "[i]f 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." (Emphases added.) Ill. S. Ct. R. 304(a) (eff. Mar. 8, 2016). Conversely, "[i]n 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

86 N.E.3d 1117

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." Id. Thus, Rule 304(a) may apply where (1) the parties present multiple claims, (2) the trial court enters a judgment on at least one of those claims, and (3) that judgment is final. Id. Under those circumstances, however, the judgment will not be appealable under Rule 304(a) unless the court makes the requisite finding that there is no just cause for delay. Id.

¶ 14 The districts of this court are divided as to whether unrelated, pending postdissolution matters constitute separate "claims" or separate "actions," i.e. lawsuits. In re Marriage of A'Hearn, 408 Ill. App. 3d 1091, 1093–94, 349 Ill.Dec. 696, 947 N.E.2d 333 (2011) (acknowledging this split between districts). This distinction is crucial to appellate jurisdiction. If each pending, unrelated matter constitutes a separate "claim" in the same action, a Rule 304(a) finding is required to appeal from an order disposing of only one. On the other hand, if each unrelated postdissolution matter constitutes a separate "action," an order disposing of only one of those actions constitutes a final appealable judgment under Rule 301, notwithstanding that other actions remain pending. In that instance, Rule 304(a) would not apply, negating the need for a finding as contemplated by that rule. Such a scenario would also require a litigant to file a notice of appeal within 30 days or entirely forgo appellate review of...