Keisha M. v. John M. (In re Parentage Rogan M.)

• Decision Date: 07 March 2014
• Docket Number: No. 1–13–2765.,1–13–2765.
• Citation: 379 Ill.Dec. 817,2014 IL App (1st) 132765,7 N.E.3d 243
• Parties: In re Parentage of ROGAN M. (Keisha M., Petitioner–Appellant, v. John M., Respondent–Appellee).
• Court: United States Appellate Court of Illinois

2014 IL App (1st) 132765

7 N.E.3d 243

379 Ill.Dec. 817

In re Parentage of ROGAN M. (Keisha M., Petitioner–Appellant, v. John M., Respondent–Appellee).

No. 1–13–2765.

Appellate Court of Illinois, First District, Sixth Division.

March 7, 2014.

Maricarol Lacy, Nicole M. Onorato, Rinella & Rinella, Ltd., Chicago, for appellant.

James M. Quigley, Matthew D. Elster, Beermann Pritikin Mirabelli Swerdlove LLP, Chicago, for appellee.

Lester L. Barclay, Barclay Law Group, P.C., Chicago, child representative.

OPINION

Justice REYES delivered the judgment of the court, with opinion.

¶ 1 Petitioner Keisha M. appeals the judgment of the trial court denying her petition to remove her minor child from Illinois to California. On appeal, Keisha argues: (1) the trial court applied the improper evidentiary standard; and (2) the trial court's finding that removal was not in the child's best interests was against the manifest weight of the evidence. For the following reasons, we dismiss the appeal for lack of jurisdiction.

¶ 2 BACKGROUND

¶ 3 Rogan M. was born out of wedlock in 2006 to parents Keisha M. and John M. Following Rogan's birth, Keisha and John lived together with their son until their relationship ended in 2008. At that time, John moved out of their home while Rogan remained living with Keisha. Shortly after the couple's separation, Keisha filed a parentage action, which the parties resolved by agreement on March 26, 2009. Although Keisha and John never reached a formal decision on the issue of custody,¹ they agreed John would make monthly child support payments and provide Keisha with his tax returns and income information on a yearly basis.

¶ 4 The record reveals that in the years subsequent to the parties' separation, Keisha and John both maintained an active relationship with their son. The two parents alternated weekends with Rogan and, during the week, John would accompany Rogan to t-ball practice, karate lessons, or dinner. A change in Keisha's employment, however, would alter the parties' situation.

¶ 5 In 1998, Keisha began working with Harpo Studios as a producer for the Oprah Winfrey Show, eventually earning a position as an executive in the creative department with the studio. In November 2009, Oprah Winfrey announced she would soon be ceasing production of the show, leaving Keisha to question her future with Harpo Studios and consider searching for new employment. According to Keisha, she encountered difficulty finding suitable work in her field around Chicago and instead focused her search on California and New York, where she anticipated such opportunities would be more abundant. On June 27, 2011, 2 1/2 weeks before her position with Harpo Studios was to formally end, Keisha filed a petition to remove Rogan from Illinois to California as she believed an offer of employment in the Los Angeles area to be imminent. Ultimately, the parties participated in a five-month trial on the issue of removal and, on July 31, 2013, the trial court denied Keisha's removal petition in a memorandum opinion and order. Keisha filed her notice of appeal on August 28, 2013.

¶ 6 Between the filing of the removal petition and the notice of appeal, the parties filed a number of additional petitions. On July 8, 2011, Keisha requested a modification of John's child support obligations. On November 9, 2011, John filed a petition for custody of Rogan. On September 18, 2012, Keisha filed a petition for attorney fees and costs. On August 27, 2013, John filed a petition to set a parenting schedule. The trial court declined to hear these issues pending the disposition of Keisha's removal petition and thus the petitions remained unresolved prior to the filing of the notice of appeal. Additionally, on August 30, 2013, after Keisha filed her notice of appeal, John filed a petition to terminate or reduce his child support obligation.

¶ 7 ANALYSIS

¶ 8 John argues this court lacks jurisdiction to hear this matter on appeal. According to John, the order denying the removal petition is not a final judgment because numerous issues remain pending in the trial court. In addition, John asserts no exception applies to otherwise allow us to decide the case on its merits. The issue of jurisdiction is a purely legal question that we review de novo. In re John Doe Investigation, 2011 IL App (2d) 091355, ¶ 6, 351 Ill.Dec. 605, 951 N.E.2d 1269.

¶ 9 Supreme Court Rule 301 provides “[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). A final judgment fixes absolutely and finally the rights of the parties in the lawsuit; it determines the litigation on the merits so that, if affirmed, the only thing remaining is to proceed with the execution of the judgment. In re Adoption of Ginnell, 316 Ill.App.3d 789, 793, 250 Ill.Dec. 117, 737 N.E.2d 1094 (2000). To be final, a judgment must dispose of the litigation or some definite part of it. Id. If jurisdiction is retained for the future determination of matters of substantial controversy, the order is not final. Id. Absent an applicable exception, the appellate court does not have jurisdiction to review judgments, orders, or decrees which are not final. Department of Public Aid ex rel. Chiapelli v. Viviano, 195 Ill.App.3d 1033, 1034, 142 Ill.Dec. 747, 553 N.E.2d 97 (1990).

¶ 10 Rules 306 and 307 provide instances where certain interlocutory orders may be appealed, but neither party contends these exceptions apply. See Ill. S.Ct. R. 306 (eff. Feb. 16, 2011); R. 307 (eff. Feb. 26, 2010). The remaining exceptions can be found in Rule 304. See Ill. S.Ct. R. 304 (eff. Feb. 26, 2010). Under Rule 304(a), “[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.” Ill. S.Ct. R. 304(a) (eff. Feb. 26, 2010). The parties did not seek a Rule 304(a) finding from the trial court in this case and we therefore do not have jurisdiction under this rule. The only remaining exception relevant to this matter falls under Rule 304(b)(6), which allows for an immediate appeal of “[a] custody judgment entered pursuant to the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/101 et seq.) or section 14 of the Illinois Parentage Act of 1984 (750 ILCS 45/14); or a modification of custody entered pursuant to section 610 of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/610) or section 16 of the Illinois Parentage Act of 1984 (750 ILCS 45/16).” Ill. S.Ct. R. 304(b)(6) (eff. Feb. 26, 2010). Accordingly, for us to have jurisdiction, the order denying removal must have either been (1) a final judgment or (2) a “custody judgment” or “modification of custody,” as pertaining to Rule 304(b)(6).

¶ 11 I. Final Judgment

¶ 12 In response to John's jurisdictional challenge, Keisha cites a line of authority to support her contention the trial court's order denying the removal petition in this case constituted a final, appealable order. See In re Custody of Purdy, 112 Ill.2d 1, 96 Ill.Dec. 73, 490 N.E.2d 1278 (1986) (order modifying custody immediately appealable because action arose separately several years following the original marital dissolution proceeding); In re Marriage of Demaret, 2012 IL App (1st) 111916, ¶ 25, 358 Ill.Dec. 87, 964 N.E.2d 756 (ruling on postdissolution removal petition amounted to final order because the only remaining pending issue, a petition for attorney fees, was “wholly unrelated” to the issues in the removal petition); In re Marriage of A'Hearn, 408 Ill.App.3d 1091, 1098, 349 Ill.Dec. 696, 947 N.E.2d 333 (2011) (unresolved petitions for rule to show cause did not render dismissal of petition to modify custody nonfinal where the previously filed petitions for rule to show cause were “not related to the modification for custody petition”); In re Marriage of Carr, 323 Ill.App.3d 481, 485, 257 Ill.Dec. 1, 752 N.E.2d 1181 (2001) (because pending petition for attorney's fees “had no effect” on—and was thus unrelated to—orders modifying child support, the orders modifying child support were final and appealable); In re Marriage of Yndestad, 232 Ill.App.3d 1, 4, 173 Ill.Dec. 507, 597 N.E.2d 215 (1992) (where “[t]he trial judge's dismissal order prevented [the wife] from further prosecuting [her removal petition] and did not grant her leave to amend [the petition],” this court concluded “the dismissal order [was] final and appealable”). In particular, Keisha cites Marriage of Demaret for the proposition that “a removal petition is a distinct cause of action, and the order * * * is thus final and appealable.”

¶ 13 In Marriage of Demaret, the mother filed a removal petition to move the couple's children from Illinois to New Jersey four years after the dissolution of the couple's marriage. Marriage of Demaret, 2012 IL App (1st) 111916, ¶¶ 3–4, 358 Ill.Dec. 87, 964 N.E.2d 756. One day following the filing of the removal petition, the father filed a separate petition for attorney fees. Id. ¶ 4. Ultimately, the trial court denied the request for removal without ruling on the issue of attorney fees. Id. The mother subsequently appealed the denial of removal with the petition for attorney fees still pending before the trial court. Id. Despite the unresolved petition, this court found it had jurisdiction because the issue of attorney fees involved “a matter wholly unrelated to the issue of removal.” Id. ¶ 25.

¶ 14 While the court in Marriage of Demaret ultimately found the order to be final and appealable, the case does not, as Keisha suggests, stand for the notion that removal petitions are final and appealable in every instance. To the extent the court characterized a removal petition as a “distinct” proceeding, it did so relative to the original marital...