In re MARRIAGE OF FOUAD TEYMOUR, Petitioner-Appellant, and HALA MOSTAFA, Respondent-Appellee.
Docket No. 1-16-1091
Appellate Court of Illinois, First District, Third Division
September 6, 2017
2017 IL App (1st) 161091
Appeal from the Circuit Court of Cook County, No. 03-D-11762; the Hon. Mark Lopez, Judge, presiding.
Appeal dismissed.
Matthew C. Arnoux, of Birnbaum, Haddon, Gelfman & Arnoux, LLC, of Chicago, for appellant.
Linda S. Kagan, of Chicago, for appellee.
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
¶ 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.
¶ 6 On July 8, 2015, respondent filed a petition for attorney fees under
¶ 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
¶ 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), without deference to the trial court‘s reasoning (Nationwide Advantage Mortgage Co. v. Ortiz, 2012 IL App (1st) 112755, ¶ 20). 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 (2009). Having considered the matter further, we now dismiss this appeal.
¶ 11 a. Appellate Jurisdiction
¶ 12 Pursuant to
¶ 13 Under
¶ 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 (3d Dist. 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
¶ 15 To understand this difference of opinion, we now examine the relevant supreme court jurisprudence, which the appellate court has interpreted in an inconsistent manner. In doing so, we focus on precise terms of art that, unfortunately, are also frequently used in a less precise, colloquial sense. Furthermore, the terms used can only be understood in the context in which they arise. See Richter v. Prairie Farms Dairy, Inc., 2016 IL 119518, ¶ 30 (stating that an opinion‘s language cannot be “ripped from its context to make a rule far broader than the factual circumstances which called forth the language” (internal quotation marks omitted)).
¶ 16 b. Jurisdiction Before and After Dissolution
¶ 17 In the seminal case In re Marriage of Leopando, 96 Ill. 2d 114, 116 (1983), the circuit court entered a custody order but reserved for future consideration maintenance, property division, and attorney fees. The court also entered a
¶ 18 The court added, “a custody order is an interlocutory order. Indeed, if such orders were final for purposes of
¶ 19 Because Leopando dictates that a predissolution action generally consists of only one claim,
¶ 20 In Purdy, our supreme court found the appellate court had jurisdiction over an appeal from a postdissolution order that modified custody and contained a
¶ 21 Our supreme court found that the modified custody order was not ancillary to the previous marriage dissolution “or any other issue” and that, while the order reserved ruling on the summer visitation schedule, that did not make the custody order “interlocutory.”3 Id. at 5. In short, the order on appeal did not merely dispose of one issue within a claim but instead resolved an entire claim. The court added that “‘[a]
¶ 22 Purdy did not indicate that separate, unrelated postdissolution claims constitute separate actions or lawsuits. See also In re Marriage of Kozloff, 101 Ill. 2d 526, 528, 531 (1984) (holding in the context of a motion for change of venue “that post-decree petitions do not constitute new actions, but merely continuations of the dissolution proceeding“). Nor did Purdy purport to excuse the necessity of a
¶ 23 c. Separate Claims or Separate Actions
¶ 24 In Carr, the trial court entered a postdissolution order reducing an ex-husband‘s child support obligation. Both he and his ex-wife filed motions to reconsider, and she filed an additional motion for contribution to her attorney fees. Carr, 323 Ill. App. 3d at 483. On August 27, 1999, the court modified the support order, but the motion for contribution was still pending, and the court apparently made no
¶ 25 The First District of this court dismissed the appeal for lack of jurisdiction, rejecting the ex-wife‘s contention that she could not appeal from those orders until her motion for attorney fees was resolved. Id. at 484, 486. The reviewing court found her fee request was not part of the underlying dissolution proceeding, the order entered in August 1999 fully resolved the child support issue, and, thus, the ex-wife had 30 days to file a notice of appeal from that order. Id. at 484-85. The court found that the agreed order “addressed separate and unrelated claims from those issues raised in [the] petition to set child support.” (Emphasis added.) Id. at 485.4
¶ 26 The decision in Carr did not acknowledge Purdy or
Furthermore, the Third District joined the First District and reasoned that Purdy supported their collective position.
¶ 27 In A‘Hearn, an ex-husband filed a notice of appeal from the trial court‘s dismissal of his postdissolution custody petition, notwithstanding that his petition for rule to show cause and his ex-wife‘s petition for an extension of maintenance remained pending in the trial court. 408 Ill. App. 3d at 1093-94. According to the Third District, Purdy held both “that a father‘s postdissolution motion for custody constituted a separate cause of action” (emphasis added), and that the trial court‘s ruling on the motion was a final and appealable order, despite that the visitation matter was still pending below. Id. at 1094. The Third District acknowledged that the trial court in Purdy had made a
¶ 28 Two observations are apparent. First, A‘Hearn‘s reading of Purdy conflated a “cause of action” with an “action,” meaning a lawsuit. See, e.g., In re Parentage of Scarlett Z.-D., 2015 IL 117904, ¶ 63 (referring to multiple “causes of action” filed in one lawsuit); see also Black‘s Law Dictionary (10th ed. 2014) (stating that “action” and “suit” are almost synonymous). Purdy‘s finding that the postdissolution motion was a separate “cause of action” did not mean that it presented a separate lawsuit. Second, A‘Hearn overlooked that
¶ 29 Meanwhile, the Second District disagreed with Carr. In In re Marriage of Alyassir, 335 Ill. App. 3d 998, 999 (2d Dist. 2003), an ex-wife filed a two-count postdissolution petition to increase child support and to issue a rule to show cause. After the court increased the ex-husband‘s child support obligation, albeit too little for his ex-wife‘s liking, she appealed. Id. Her request for a rule to show cause was still pending, however. Id. The Second District found it lacked jurisdiction without a
¶ 30 First, Carr failed to address supreme court case law requiring a
¶ 31 After this split began in the appellate court, our supreme court was presented with a dissolution case in In re Marriage of Gutman, 232 Ill. 2d 145 (2009). Rather than directly addressing the developing conflict, Gutman only added fuel to the jurisdictional fire.
¶ 32 d. Gutman: Postdissolution Proceedings Present Multiple Claims
¶ 33 In Gutman, the trial court granted an ex-husband‘s motion to terminate maintenance and dismissed his ex-wife‘s motion to increase maintenance but did not dispose of her indirect civil contempt petition or make a
¶ 34 Our supreme court reiterated that absent a
¶ 35 Despite this, the First District generally continues to hold that no
¶ 36 The supreme court clearly understood from the facts before it that the petitions at issue were filed after the marriage was dissolved. Gutman, 232 Ill. 2d at 147-48. In addition, the court recognized that the ex-wife characterized the order appealed from as a “postdissolution order.” Id. at 150. Moreover, neither the supreme court nor the appellate court found the case presented predissolution proceedings. See In re Marriage of Gutman, 376 Ill. App. 3d 758, 759, 761 (2007) (referring to the ex-husband‘s “postdissolution petition” and citing postdissolution case law).
¶ 37 To the extent that the appellate and supreme courts discussed the pending petition for rule to show cause as part of the “underlying proceeding,” we observe that contempt petitions are regularly discussed as part of another underlying proceeding, even outside the context of dissolution. See, e.g., Anderson Dundee 53, L.L.C. v. Terzakis, 363 Ill. App. 3d 145, 148, 156 (2005) (referring to the underlying proceedings for mismanaging property as opposed to the collateral contempt proceedings). It does not follow that Gutman was referring to the predissolution proceeding underlying the postdissolution proceeding, as opposed to the postdissolution proceeding underlying the contempt petition. Moreover, Gutman‘s holding that the contempt petition was not “independent of the dissolution action” (emphasis added) was arguably imprecise. Gutman, 232 Ill. 2d at 153-54.
¶ 38 Even assuming that Gutman should be viewed as a predissolution case, Gutman favors the Second and Fourth Districts’ position that separate, unrelated postdissolution matters present separate claims, not separate actions, and that a
¶ 39 Where a party files one postdissolution petition, several more are likely to follow. Allowing or requiring parties to appeal after each postdissolution claim is resolved would put great strain on the appellate court‘s docket and impose an unnecessary burden on those who would prefer not to appeal until the trial court resolves all pending claims. To be sure, justice may on occasion require that a
¶ 40 e. The State of Supreme Court Jurisprudence
¶ 41 Supreme court case law establishes the following: (1) predissolution issues are generally related and part of a single claim, requiring the entire matter to be resolved in order for the appellate court to be vested with jurisdiction, (2) simultaneously pending postdissolution matters may be unrelated and, therefore, constitute separate claims, and (3) an order disposing of only one such claim is not subject to appeal absent a
¶ 42 f. Pending Matters
¶ 43 Here, petitioner filed a notice of appeal from the trial court‘s orders finding him to be in indirect civil contempt and granting respondent‘s motion for sanctions. Even assuming that respondent‘s request for child support was no longer pending when petitioner filed his notice of appeal, respondent‘s petitions for attorney fees under
¶ 44 III. Conclusion
¶ 45 Supreme court decisions dictate that a final order disposing of one of several claims may not be appealed without an express finding that there is no just cause for delay. Here, claims remain pending in the trial court, but that court has not entered a
Accordingly, we dismiss this appeal.
¶ 46 Appeal dismissed.