Marriage of Leopando, In re

• Decision Date: 22 April 1983
• Docket Number: No. 56868,56868
• Citation: 96 Ill.2d 114,70 Ill.Dec. 263,449 N.E.2d 137
• Parties: , 70 Ill.Dec. 263 In re MARRIAGE of Francine LEOPANDO, Appellee, and Olivo Leopando, Appellant.
• Court: Illinois Supreme Court

Page 137

449 N.E.2d 137

96 Ill.2d 114, 70 Ill.Dec. 263

In re MARRIAGE of Francine LEOPANDO, Appellee and Olivo Leopando, Appellant.

No. 56868.

Supreme Court of Illinois.

April 22, 1983.

Gregory P. Turza, Chicago, for appellee.

Feiwell, Galper, Lasky, Ltd., Chicago, for appellant.

THOMAS J. MORAN, Justice:

On December 9, 1981, the circuit court of Cook County entered an order dissolving the marriage of plaintiff, Francine Leopando, to defendant, Olivo Leopando. On December 15, 1981, the court awarded permanent custody of the parties' minor child, Philippe, to defendant. The custody order stated "that there is no just reason to delay enforcement or appeal of this Order" and reserved for future consideration the issues of maintenance, property division, and attorney fees. The appellate court reversed and remanded the cause, concluding that the order awarding custody to defendant was contrary to the manifest weight of the evidence. (106 Ill.App.3d 444, 62 Ill.Dec. 340, 435 N.E.2d 1312.) We granted defendant leave to appeal.

Two issues are raised for review: (1) whether the custody order was final and appealable under Supreme Court Rule 304(a), and (2) whether the trial court's decision awarding custody to defendant was contrary to the manifest weight of the evidence.

Supreme Court Rule 304(a) provides, in part:

"If 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 enforcement or appeal. * * * In 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 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." 73 Ill.2d R. 304(a).

Defendant questions the appealability of the custody order under the above-quoted rule. Plaintiff answers by stating that this issue was not raised in the appellate court, and our review of the briefs filed in that court substantiates plaintiff's claim. Consequently, under the authority of this court's recent decision in In re Marriage of Cohn (1982), 93 Ill.2d 190, 66 Ill.Dec. 615, 443 N.E.2d 541, the issue could be considered waived.

In Cohn it was held that, under the former language of section 401(3) of the Illinois Marriage and Dissolution of Marriage Act (Ill.Rev.Stat.1977, ch. 40, par. 401(3)), trial courts could not enter an order dissolving the marriage while reserving questions of support, maintenance, custody and property disposition for future consideration. Although determining that the provisions of section 401(3) were mandatory, this court implicitly found that they did not present a jurisdictional requirement. Therefore, in the absence of an objection to the order, and where the issue was not raised on review, it was deemed to have been waived.

Similarly, Rule 304(a) does not present a jurisdictional requirement in the sense that it cannot be waived. The question arising under our rule concerns the right to appeal a judgment and not whether the judgment entered in the trial court is proper. We would therefore be justified in declining to consider the issue of whether the custody order was final and appealable. However, a review of recent case law involving the effect of Rule 304(a) on the appealability of dissolution orders convinces us that the issue should be addressed.

It seems clear that the law at the time of the instant appeal implied that custody orders, containing the requisite Rule 304(a) language by the trial court, were immediately appealable. (See, e.g., Atkinson v. Atkinson (1981), 87 Ill.2d 174, 57 Ill.Dec. 567, 429 N.E.2d 465; In re Marriage of Cohn (1981), 94 Ill.App.3d 732, 50 Ill.Dec. 621, 419 N.E.2d 729; In re Marriage of Nilsson (1980), 81 Ill.App.3d 580, 37 Ill.Dec. 394, 402 N.E.2d 284.) For example, in Atkinson, the trial court awarded custody of the parties' children to the mother, and reserved the questions of support, property division, and assessment of fees and costs. The order did not contain the Rule 304(a) language that there is no just reason to delay enforcement or appeal. In holding that the custody order was not appealable, this court stated:

"Under Supreme Court Rule 304(a) (73 Ill.2d R. 304(a)), where multiple claims for relief are involved in an action, an appeal from a final judgment as to less than all of the claims may only be taken if the trial court has made an express written finding that there is 'no just reason for delaying enforcement or appeal.' No such finding was made here. Thus, the custody order was not a judgment from which an immediate appeal could be taken." 87 Ill.2d 174, 177, 57 Ill.Dec. 567, 429 N.E.2d 465.

A fair reading of Atkinson indicates that a custody order is a final judgment as to less than all of the claims in a dissolution proceeding. Implicitly, the only reason the order was deemed nonappealable was the trial court's failure to recite the requisite Rule 304(a) language. For a number of reasons, we do not believe that a custody order constitutes a final judgment as to a separate claim in a dissolution proceeding.

Subsequent to the appeal taken herein, this court amended Supreme Court Rule 306, which amendment became effective on July 1, 1982. Rule 306(a)(1) provides, in part:

"An appeal may be taken in the following cases only on the allowance by the Appellate Court of a petition for leave to appeal:

* * *

* * *

(v) from interlocutory orders affecting the care and custody of unemancipated minors, if the appeal of such orders is not otherwise specifically provided for elsewhere in these rules." (Emphasis added.) (87 Ill.2d R. 306(a)(1)(v).)

The language of this provision specifically indicates that a custody order is an interlocutory order. Indeed, if such orders were final, for purposes of Rule 304(a), there would be no need for Rule 306(a)(1)(v). A further reason counseling against the appealability of a custody order pursuant to Rule 304(a) is that it does not constitute a separate "claim" in a dissolution proceeding. A petition for dissolution advances a single claim; that is, a request for an order dissolving the parties' marriage. The numerous other issues involved, such as custody, property disposition, and support are merely questions which are ancillary to the cause of action. (See In re Marriage of Lentz (1980), 79 Ill.2d 400, 409, 38 Ill.Dec. 582, 403 N.E.2d 1036 (Ward, J., concurring).) They do not represent separate, unrelated claims; rather, they are separate issues relating to the same claim. In fact, it is difficult to conceive of a situation in which the issues are more interrelated than those involved in a dissolution proceeding. Should the trial court decline to grant the petition for dissolution, no final relief may be obtained relevant to the other issues involved. On the other hand, where a dissolution of marriage is granted, a determination as to which party receives custody will necessarily affect how much, if any, support and maintenance are paid. Practically speaking, then, until all of the ancillary issues are resolved, the petition for dissolution is not fully adjudicated. See Davis v. Childers (1965), 33 Ill.2d 297, 211 N.E.2d 364 (Rule 304(a) does not authorize an appeal from an action involving a single claim in which fewer than all the issues have been resolved).

This result is further compelled by the policy consideration upon which Rule 304(a) is based. As this court noted in In re Marriage of Lentz (1980), 79 Ill.2d 400, 407, 38 Ill.Dec. 582, 403 N.E.2d 1036:

"The provisions of our rule were aimed at discouraging piecemeal appeals in the absence of some compelling reason and at removing the uncertainty as to the appealability of a judgment which was entered on less than all of the matters in controversy. See Getzelman v. Koehler (1958), 14 Ill.2d 396, 400 [152 N.E.2d 833]; Davis v. Childers (1965), 33 Ill.2d 297, 300 [211 N.E.2d 364]."

(See also Atkinson v. Atkinson (1981), 87 Ill.2d 174, 177, 57 Ill.Dec. 567, 429 N.E.2d 465.) To interpret Rule 304(a) as plaintiff suggests would allow a party, upon obtaining the trial court's special finding, to file separate appeals from adverse judgments as to each issue involved in a dissolution proceeding. Our rule was not intended to promote such unnecessary piecemeal litigation arising out of the same proceeding.

Similarly policy considerations were involved in In re Marriage of Cohn (1982), 93 Ill.2d 190, 66 Ill.Dec. 615, 443 N.E.2d 541. Quoting the historical and practice notes to section 401(3) of the Illinois Marriage and Dissolution of Marriage Act (Ill.Ann.Stat., ch. 40, par. 401(3)), Historical and Practice Notes, at 105 (Smith-Hurd (1980)), this court noted that the provision "encourages the court to decide all matters incident to the dissolution in a single judgment, to the fullest extent of its authority, in order to achieve finality, promote judicial economy, and avoid multiple litigations and complications which can result from the entry of partial judgments, particularly judgments which dissolve the marriage but 'reserve' remaining issues for later determination." (Emphasis added.) (93 Ill.2d 190, 197-98, 66 Ill.Dec. 615, 443 N.E.2d 541.) The sound policy of resolving all matters incident to dissolution in a single judgment should not be circumvented by the mere inclusion of Rule 304(a) language.

For all of the above reasons, we hold that issues raised in a dissolution-of-marriage case are not separate claims and therefore not appealable under Rule 304(a). Nevertheless, because prior case law has indicated otherwise, we do not believe it appropriate to dismiss the appeal in the instant case. In the future, Rule 306(a)(1)(v) is the proper vehicle by...