In re MARRIAGE OF MARGARET CARR, Petitioner-Appellant, and WAYNE CARR, Respondent-Appellee.
No. 1-00-0997
First District (3rd Division)
June 20, 2001
323 Ill. App. 3d 481
Vacated in part, reversed and remanded.
COUSINS and McBRIDE, JJ., concur.
Opinion filed June 20, 2001.
CERDA, J., specially concurring.
Kalcheim, Schatz & Berger (Michael W. Kalcheim, Michael S. Sabath, and Rhonda L. Kerns, of counsel), for appellee.
JUSTICE BURKE delivered the opinion of the court:
Petitioner Margaret Carr (Peggy) appeals from three orders of the circuit court granting respondent Wayne Carrs (Wayne) petition to set child support and ordering the payment amounts retroactive. On appeal, Peggy contends that the trial court abused its discretion in deviating from the statutory guideline amount of child support set forth in section 505 of the Illinois Marriage and Dissolution of Marriage Act (Act) (
STATEMENT OF FACTS
Peggy and Wayne were married in 1979, and two children were born during the marriage: Erin, born September 26, 1980, and Colleen, born July 6, 1984. On February 14, 1989, Peggy filed a petition for dissolution of marriage and, on the same day, the trial court entered a judgment of dissolution of the marriage. A marital settlement agreement was incorporated into the dissolution judgment. The agreement awarded Peggy custody of the parties’ two children; required Wayne to pay unallocated maintenance and child support in the amount of $6,250 for 12 months and, thereafter, $8,333.33 for 36 months; required Wayne to make direct payments to Peggy for the children‘s camp, extracurricular activities, and lessons up to $7,000 per year; and required Wayne to pay for educational expenses, including college. Both parties subsequently remarried and a daughter, Molly, was born to Wayne and his second wife.
On September 16, 1998, Wayne filed a “Petition to Set Child Support,” seeking a modification of the parties’ previous marital settlement agreement based upon Erin‘s emancipation. Wayne alleged that circumstances had changed because Erin had graduated from high school, was attending college, and had turned 18 years of age. According to Wayne, it would not be equitable for him to pay all of Erin‘s college expenses and still pay $6,000 per month for child support of one child, Colleen. On April 28, 1999, the trial court, after hearing the evidence presented by the parties, concluded that a modification of child
Thereafter, both Peggy and Wayne filed motions to reconsider. Prior to the trial court‘s decision on the motions, Peggy filed a petition for contribution for attorney fees on August 16, 1999. On August 27, 1999, the trial court granted Wayne‘s motion to reconsider, ordering that the child support amount would be retroactive to September 16, 1998, the date Wayne filed his petition to set child support, and denied Peggy‘s motion to reconsider.
On October 4, 1999, Peggy filed a “petition for rule to show cause for Wayne‘s failure to pay Erin‘s college expenses.” On March 9, 2000, an agreed order was entered, requiring Wayne to pay Erin‘s college expenses and $5,000 of Peggy‘s attorney fees. This appeal followed.
ANALYSIS
•1 This court has a duty to sua sponte consider the issue of jurisdiction even if the parties fail to raise the issue. In re Adoption of Ginnell, 316 Ill. App. 3d 789, 790, 737 N.E.2d 1094 (2000). A party seeking to appeal a trial court‘s judgment must file a notice of appeal within 30 days after entry of a final judgment or within 30 days after entry of an order disposing of the last pending posttrial motion, if any.
The cases Peggy relies upon in support of her contention, In re Marriage of Tomei, 253 Ill. App. 3d 663, 624 N.E.2d 884 (1993), and Tyler v. Tyler, 230 Ill. App. 3d 1009, 596 N.E.2d 119 (1992), are distinguishable. In each case, the petitioner filed a notice of appeal while a fee petition was still pending in the trial court following entry of the judgment of dissolution. In both cases, the appellate courts concluded that the notice of appeal was premature because the attorney fee issue had not been resolved. Tomei, 253 Ill. App. 3d at 666; Tyler, 230 Ill. App. 3d at 1013.
More specifically, in Tyler, the court concluded that the appeal from a dissolution judgment while the question of attorney fees remained pending
“would run afoul of the policy to ‘encourage[] the [trial] 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.“’ [Citations].” (Emphasis in original.) Tyler, 230 Ill. App. 3d at 1012.
In Tomei, the court noted that attorney fees are “directly related to the central dispute in a dissolution of marriage case,” and because attorney fees are “dependent upon and integrally related to decisions regarding the financial resources of each of the parties, a disposition of their allocation should be made before the reviewing court can properly assess the trial court‘s decisions regarding maintenance, child support, or division of property.” Tomei, 253 Ill. App. 3d at 666.
•2 In the instant case, Peggy‘s petition for fees was filed in August 1999 and was not part of the dissolution proceeding. In fact, the judgment of dissolution was entered over 10 years before—in February 1989. Thus, the same concerns as were present in Tomei and Tyler are not present in the instant case because the equitable distribution of property and the overall issues of child support, maintenance, and
The sole issue raised by Wayne‘s petition was to set the amount of child support that he was obligated to pay upon Erin‘s emancipation. The trial court completely resolved this issue on April 28, 1999. Thereafter, both parties filed “posttrial” motions for reconsideration. The trial court rendered its decision on the motions for reconsideration on August 27, 1999. At this time, the trial court‘s order fully and finally disposed of Wayne‘s petition to set child support and it determined the litigation on the merits. There was nothing left to do except proceed with execution or enforcement of that order. The trial court‘s order of March 9, 2000, ordering Wayne to pay Erin‘s college expenses and Peggy‘s attorney fees, had no effect on either the April or August 1999 orders setting child support. The March 9, 2000, order addressed separate and unrelated claims from those issues raised in Wayne‘s petition to set child support. Accordingly, Peggy was required to file her notice of appeal within 30 days of August 27, 1999, when the trial court entered its order making the child support payments retroactive to the date Wayne filed his petition and denying Peggy‘s motion for reconsideration, which she failed to do. We therefore find that we lack jurisdiction to hear this appeal.
Although we have determined that we lack jurisdiction over this appeal, we briefly note that Wayne‘s reliance on In re Marriage of Konchar, 312 Ill. App. 3d 441, 727 N.E.2d 671 (2000), as a basis for his argument that we lack jurisdiction, is misplaced. While the Konchar court held that section 503 of the Act (
For the reasons stated, we dismiss this appeal for lack of jurisdiction.
Appeal dismissed.
WOLFSON, J., concurs.
JUSTICE CERDA, specially concurring:
I disagree with a portion of the reasoning of the majority but concur in the result.
Section 508(a) provides that contribution to attorney fees may be awarded from the opposing party in accordance with subsection (j) of section 503.
“After proofs have closed in the final hearing on all other issues between the parties (or in conjunction with the final hearing, if all parties so stipulate) and before judgment is entered, a party‘s petition for contribution to fees and costs incurred in the proceeding shall be heard and decided, in accordance with the following provisions:
(1) A petition for contribution, if not filed before the final hearing on other issues between the parties, shall be filed no later than 30 days after the closing of proofs in the final hearing or within such other period as the court orders.”
750 ILCS 5/503(j) (West 1998).
In re Marriage of Konchar, 312 Ill. App. 3d 441, held that a petition for contribution to attorney fees (incurred in connection with a postjudgment motion concerning visitation) that was filed within 30 days of the closing of proofs but after judgment was entered was untimely.
The Konchar court read section 503(j) to mean that before a judgment is entered, a party‘s petition for contribution to fees must be heard and decided. This interpretation was supported by section 508(a), which provides in part:
“The court from time to time, after due notice and hearing, and after considering the financial resources of the parties, may order any party to pay a reasonable amount for his own or the other party‘s costs and attorney‘s fees. *** At the conclusion of the case, contribution to attorneys‘s fees and costs may be awarded from the
opposing party in accordance with subsection (j) of Section 503.” (Emphasis added.)
750 ILCS 5/508(a) (West 1998).
After considering both section 508(a) and section 503(j), the Konchar court held that a petition for attorney fees must be heard and decided before the final judgment is entered. I agree with this finding. The April 28, 1999, court order decided the issue of child support of Colleen and was, in effect, the final judgment order.
The April 28, 1999, court order which decided the issue of child support for Colleen was the final judgment in this case.
The Konchar interpretation that section 503(j) requires that a petition for attorney fees must be decided before final judgment dictates that the August 16, 1999, petition for attorney fees was untimely and the March 9, 2000, order in our case was ineffective. Although the Konchar interpretation of section 503(j) was not made in the context of an issue of appellate jurisdiction, nevertheless it requires dismissal of our case.
If the proper procedure had been followed, the attorney fee petition would have been decided before the April 28, 1999, order was entered disposing of the petition to modify child support. Since it was not, appellant should have appealed within 30 days of the August 27, 1999, order, which ruled on the motions to reconsider the April 28, 1999, order. I therefore agree with the majority that we lack jurisdiction.