When is a Post-Dissolution Order Appealable?
Published in Chicago Lawyer Magazine, November 2017
by Daniel R. Stefani
Following a Judgment of Dissolution of Marriage, often years later, cases end up back in court on post-dissolution motions and/or petitions. Typically there are requests to modify child support, maintenance, parental decision making and/or parenting time. Many times the trial court adjudicates some but not all of the pending motions or petitions. In such circumstances there is always a question as to whether the resulting order is final and appealable and whether the appellate court has jurisdiction over certain appeals and pursuant to what Supreme Court Rule. For many years there has been a split between the Appellate Court Districts as to when a post-dissolution order is final and appealable. In 2009 the Illinois Supreme Court in Gutman was presented with the issue and following the decision, the Appellate Districts continued to struggle with different interpretations.
In a recent First District case, In re the former marriage of Teymour vs. Mostafa, 2017 IL App (1st) 161091 issued September 6, 2017, the Court set forth a comprehensive summary and analysis of the historic split between the Districts and ultimately abrogated from the prior First District Precedence and joined the Second and Fourth Districts as well as Gutman.
In Teymour, the trial court heard several post-dissolution petitions and following an evidentiary hearing, the Court entered an order resolving some but not all of the pending petitions. The trial court’s order did not find under Supreme Court Rule 304(a) that there was no just cause for delaying appeal. The Teymour Court identified that case law was divided as to whether the appellate court’s jurisdiction over said appeal was governed by Supreme Court Rule 301 or Supreme Court Rule 304(a). The appellate court dismissed the appeal for lack of jurisdiction because claims remained pending (and therefore Rule 301 did not confer jurisdiction) and the trial court did not enter the finding required to confer jurisdiction under Rule 304(a).
Pursuant to Rule 301, “every final Judgment of a circuit court in a civil case is appealable as of right”. Under that rule generally parties only appeal from final orders disposing of every claim in a case.
Under Rule 304(a) however, “if multiple parties or multiple claims per 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”. In the absence of such a finding, any Judgment that adjudicates fewer than all claims is not enforceable or appealable and is subject to revision at any time before the entry of a Judgment adjudicating all claims of all the parties.
Under these competing Supreme Court Rules, post-dissolution litigants historically found themselves in the dilemma as to when to appeal certain post-dissolution orders and many litigants chose the path that ultimately resulted in the Appellate Court dismissing jurisdiction. This lack of direction from the higher courts often resulted in litigants losing their right to appeal. Specifically, if each pending post-dissolution unrelated matter constituted a separate claim in the same action, a Rule 304(a) finding is required to appeal from an order that disposes of some but not all pending motions or petitions.
Conversely, if each unrelated post-dissolution matter constituted a separate action, an order disposing of less than all of those actions became a final appealable Judgment under Rule 301. In such a situation, a litigant would be required to file a Notice of Appeal within 30 days of that order or entirely forego their right to appeal that order. See In re the marriage of Carr 323 Ill.App.3d 481 (1st Dist. 2001).
At the time of Teymour, the First and Third District held that no Rule 304(a) finding was required to appeal from an order disposing one of several post-dissolution matters so long as the matters still pending were unrelated to the matter on appeal. The Second and Fourth District, along with certain interpretations of Gutman held that “absent a Rule 304(a) finding in a trial Court order, a final order resolving less than all claims is not appealable until all claims are resolved”. The rationale behind that position supports the notion that appellate piecemeal litigation should be discouraged in the absence of “just cause”.
Once the Teymour Court reversed prior First District Precedence, it held that because the appealed order did not dispose of every pending claim, it did not have jurisdiction under Rule 301 and because there was no finding under Rule 304(a), the order was not appealable under that Rule either. Therefore the Court dismissed the appeal for lack of jurisdiction.
There are several reasons why Teymour makes most common sense. First, allowing or requiring parties to appeal after each post-dissolution claim would put great strain on the appellate courts and would impose an unnecessary burden on those who would prefer not to appeal until the trial court rules on all pending claims. However, on occasion, a trial court may feel that their final order disposing of some but not all claims, should be immediately appealable. Rule 304(a) still allows for those circumstances by allowing the trial court to enter the appropriate finding within its order.