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Family LawThe newsletter of ISBA’s Section on Family Law

May 2010, vol. 53, no. 7

Recent amendment to Supreme Court Rule 304(b) and its impact on family law cases

Part One: A trial judge’s perspective

By Circuit Judge Edward R. Jordan

On February 10, 2006, the Illinois Supreme Court adopted the “900” series of rules which included Rule 922 concerning time limitations for custody cases under the Illinois Marriage and Dissolution of Marriage Act. Rule 922 which became effective on July 1, 2006, provides:

Rule 922. Time Limitations. All child custody proceedings under this rule in the trial court shall be resolved within 18 months from the date of service of the petition or complaint to final order. In the event this time limit is not met, the trial court shall make written findings as to the reason(s) for the delay. The 18-month time limit shall not apply if the parties, including the attorney presenting the child, the guardian ad litem or the child representative, agree in writing and the trial court makes a written finding that the extension of time is for good cause shown. In the event the parties do not agree, the court may consider whether an extension of time should be allowed for good cause shown. (Emphasis provided).

Efforts by the trial courts to enforce Rule 922 have been quite difficult. In at least one case, after the 18-month term had passed, the issue of custody was severed in accord with section 2-1006 of the Code of Civil Procedure [735 ILCS 5/2-1006] and sent off for trial while discovery on the financial issues in the case continued. The judge who heard the custody portion made a determination and entered a “Custody Judgment.” The disappointed parent filed a Notice of Appeal within 30 days, but the appeal was dismissed following In re Marriage of Leopando, 96 Ill. 2d 114 (1983), and the “Custody Judgment” became nothing more than a temporary order. When the financial issues finally went to trial, the trial judge refused to rehear the issue of custody and adopted the earlier custody judgment as part of a final Judgment for Dissolution of Marriage. The entire judgment then became final and appealable. This case illustrates the problem of how to meaningfully enforce Rule 922 without creating just another temporary custody order which can be modified under 750 ILCS 5/501 with only a minimal showing.

In order to address this problem and provide a means to enforce Rule 922, and get the children out of the litigation, application was made to the Illinois Supreme Court Rules Committee suggesting that making a Custody Judgment arising from the severed issue of custody final in nature and immediately appealable would put teeth into Rule 922 and give trial judges all over the State the ability to strenuously comply with the 18-month limitation. The Supreme Court acted on that application on February 26, 2010, and now the children have won.

On February 26th, the Supreme Court added subsection (6) to Rule 304(b). The relevant portion of Rule 304 now reads as follows:

Rule 304. Appeals from Final Judgments That Do Not Dispose of an Entire Proceeding (a) Judgments As To Fewer Than All Parties or Claims -- Necessity for Special Finding. 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 either enforcement or appeal or both. Such a finding may be made at the time of the entry of the judgment or thereafter on the court’s own motion or on motion of any party. The time for filing a notice of appeal shall be as provided in Rule 303. In computing the time provided in Rule 303 for filing the notice of appeal, the entry of the required finding shall be treated as the date of the entry of final judgment. 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. (b) Judgments and Orders Appealable Without Special Finding. The following judgments and orders are appealable without the finding required for appeals under paragraph (a) of this rule:

* * *(6) 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).The time in which a notice of appeal may be filed from a judgment or order appealable under this Rule 304(b) shall be as provided in Rule 303.

(Emphasis provided).

The committee comments to this amendment clarify certain points.

COMMITTEE COMMENTS

February 26, 2010

Paragraph (b) The term “custody judgment” comes from section 610 of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/610), where it is used to refer to the trial court’s permanent determination of custody entered incident to the dissolution of marriage, as distinguished from any temporary or interim orders of custody entered pursuant to section 603 of the Act (750 ILCS 5/603) and any orders modifying child custody subsequent to the dissolution of a marriage pursuant to section 610 of the Act (750 ILCS 5/610). The Illinois Parentage Act of 1984 also uses the term “judgment” to refer to the order which resolves custody of the subject child. See 750 ILCS 45/14.

Subparagraph (b)(6) is adopted pursuant to the authority given to the Illinois Supreme Court by article VI, sections 6 and 16, of the Illinois Constitution of 1970. The intent behind the addition of subparagraph (b)(6) was to supercede the supreme court’s decision in In re Marriage of Leopando, 96 Ill. 2d 114, 119 (1983). In Leopando, the court held that the dissolution of marriage comprises a single, indivisible claim and that, therefore, a child custody determination cannot be severed from the rest of the dissolution of the marriage and appealed on its own under Rule 304(a). Now, a child custody judgment, even when it is entered prior to the resolution of other matters involved in the dissolution proceeding such as property distribution and support, shall be treated as a distinct claim and shall be appealable without a special finding. A custody judgment entered pursuant to section 14 of the Illinois Parentage Act of 1984 shall also be appealable without a special finding. The goal of this amendment is to promote stability for affected families by providing a means to obtain swifter resolution of child custody matters.

This new subsection makes a “custody judgment” entered before the entire case is resolved appealable without a special finding -- just like a finding of contempt. What the amendment does is put teeth into Rule 922. Now judges all over the state can sever the issue of custody at the 18 month mark and try custody as a separate issue. After such a trial, the court may enter a “custody judgment” which becomes final and immediately appealable. The financial aspects of the case may then go forward with their own trial or settlement. According to the committee comments, this rule change supercedes Leopando.

Now, some concerns.

The first problem is educating judges and lawyers all over the state about the impact of this rule change. We can help by including it in CLE programs as soon as possible. We can also reach out to IICLE, NBI, and other CLE providers to include the subject in their upcoming family law programs.

Second, is the question of “bifurcation” versus “severance.” In the committee’s discussion of the Supreme Court’s superceding of Leopando, they remark that, before the amendment, the issue of custody could not be “severed” as a separate issue. Under the amendment, however, the committee says that a child custody judgment, “...even when it is entered prior to the resolution of other matters involved in the dissolution proceeding such as property distribution and support, shall be treated as a distinct claim....”

According to 750 ILCS 5/403(e), bifurcation is the separation of grounds from all other issues in a case. Section 2-1006 of the Code of Civil Procedure, on the other hand, provides that, “(a)n action may be severed,...as an aid to convenience, whenever it can be done without prejudice to a substantial right.” It would appear that a reading of the appropriate statutes and the committee’s comments suggests that bifurcation would be inappropriate because of the entanglement of grounds, while severing the “distinct claim” regarding custody would isolate the issue and preserve it for appeal.

Third, there is nomenclature. When the issue of custody is severed and tried separately, the resulting written decision MUST be identified as a “CUSTODY JUDGMENT.” Not only is that required in order to make the determination appealable under the new rule, but it more accurately describes the type of final custody judgment which is not only immediately appealable, but which can only be modified under section 610 of the IMDMA. (750 ILCS 5/610) If careful procedure is followed, then regardless of when in the chronology of the case it occurs, the Custody Judgment will become a final order.

It would seem that diligent parents could invoke the finality created by the amendment without severing the issue of custody or actually going to trial. Almost all family law trial and motion judges try desperately to resolve custody issues as early as possible, and more often than not with the litigants themselves making parenting decisions for their children. We encourage parents to bring us voluntary parenting agreement as early as possible in the litigation. We motivate them with parenting classes (Supreme Court Rule 924) and mediation programs (Supreme Court Rule 905). Sometimes we add a Guardian ad litem or a Children’s Representative to further encourage resolution of custody issues without trial. These efforts are frequently met with success in the form of Joint Parenting Agreements, agreements granting sole custody to one parent or the other, visitation schedules, and case-oriented solutions. Most of the time, and even though the reality is that these agreements are only temporary, the parties evidence their intent in the agreements by providing that their intention is to have the agreements incorporated in their eventual settlement agreements and judgments for dissolution. These voluntary agreements can be made permanent, however, if such is the parties’ intent.

In those cases where the parties have genuinely resolved issues of custody and visitation, it would seem that all they need do is designate their final agreement as a “Custody Judgment,” and express their intent to be so bound in the language of the agreement itself.

Fourth is the question of the effect to be given to a “Custody Judgment” regardless of whether it came to be as the result of a trial or the voluntary actions of the parents. As the amendment to the rule and the committee comments give a Custody Judgment intended to be final all of the indicia of finality, such a judgment can only be modified under 750 ILCS 5/610. This is of monumental importance for a trial judge and for the litigants.

Section 501(d) of the IMDMA provides that:

A temporary order entered under this Section:(1) does not prejudice the rights of the parties or the child which are to be adjudicated at subsequent hearings in the proceeding;(2) may be revoked or modified before final judgment, on a showing by affidavit and upon hearing; and (3) terminates when the final judgment is entered or when the petition for dissolution of marriage or legal separation or declaration of invalidity of marriage is dismissed.

An order or agreement which does not conform to the requirements of Rule 304((b)(6) is temporary in nature and may be revoked or modified, “...on a showing by affidavit and upon hearing;...” [750 ILCS 5/501(d)(2)] However, a Custody Judgment which does conform with the amendment – or is intended by the parties to do so – becomes a final order which can only be modified under the terms and conditions of 750 ILCS 5/610, which are considerably more stringent.

Fifth, as this “Custody Judgment” is a final, appealable order, it MUST be appealed within 30 days of its entry. It cannot be set aside until the financials are disposed of and then appealed with the rest of the case. It is, for all intents and purposes, literally a final custody order, not a temporary order. This restriction is imposed by Supreme Court Rule 304(b) which states that, “The time in which a notice of appeal may be filed from a judgment or order appealable under this Rule 304(b) shall be as provided in Rule 303.” And Rule 303(a)(1) sets the time limits for filing of the notice of appeal. That is, 30 days following either the entry of the Custody Judgment itself, or 30 days following, “... the entry of the order disposing of the last pending postjudgment motion directed against that judgment.”

When Rules 922 and 304(b)(6) are read together, they afford trial judges the opportunity to truly expedite the disposition of children’s issues in family law cases. Every family law trial judge in the State has fought for years to bring clarity and quick, final resolution to the issues facing children in divorce, parentage and related cases. The Supreme Court has now given us the tools we have needed for so long. We must make good use of these tools to bring stability to all of the children in the cases before us.

Part Two: An appellate judge’s perspective

By Justice Mary Jane Theis

The Illinois Supreme Court has recently reaffirmed its commitment to promote stability for families by amending the Civil Appeals Rules. The goal of the changes is to obtain swifter resolution of child custody matters. Practitioners need to understand how the new appellate procedures will affect their clients, and most importantly, their clients’ children.

Appellate jurisdiction can raise thorny questions for lawyers who only occasionally take on appeals. Appellate jurisdiction is the power of an appellate court to review and revise a lower court’s decision. It is a definite, black-and-white concept; it either exists or it does not. See, e.g., Almgren v. Rush-Presbyterian-St.Luke’s Medical Center, 162 Ill. 2d 205, 210 (1994). It cannot be conferred upon the court by agreement of the parties or by a waiver. County Collector v. Redco, Inc., 3 Ill. App. 3d 917, 919 (1972). The Illinois Supreme Court has made clear that, “‘[a] reviewing court must be certain of its jurisdiction prior to proceeding in a cause of action,’ ” and has reaffirmed that “the ascertainment of its own jurisdiction is one of the two most important tasks of an appellate court panel when beginning a case.” People v. Smith, 228 Ill. 2d 95, 106 (2008), quoting R.W. Dunteman Co. v. C/G Enterprises, Inc., 181 Ill. 2d 153, 159 (1998).

The foundations of appellate jurisdiction are set forth in the Illinois Constitution. Article VI, section 6, provides that:

Appeals from final judgments of a Circuit Court are a matter of right to the Appellate Court in the Judicial District in which the Circuit Court is located except in cases appealable directly to the Supreme Court and except that after a trial on the merits in a criminal case, there shall be no appeal from a judgment of acquittal. The Supreme Court may provide by rule for appeals to the Appellate Court from other than final judgments of Circuit Courts.

Ill. Const. 1970, art. VI, §6.

The Supreme Court rules function in conjunction with this constitutional right. See, e.g., 134 Ill. 2d R. 301. Thus, subject to only the exceptions specified in the Supreme Court Rules, an appeal can be taken in a case only after the circuit court has entered final judgments on all claims against all parties. See Pekin Insurance v. Phelan, 343 Ill. App. 3d 1216, 1219 (2003), citing Marsh v. Evangelical Covenant Church, 138 Ill. 2d 458, 465 (1990).

The first question to ask, then, is whether the order in question is final. “Finality,” in the sense of appellate jurisdiction, is a term of art with a very precise meaning. See, e.g., F.H. Prince & Co. v. Towers Financial Corp., 266 Ill. App. 3d 977, 982 (1994). An order is said to be final if it “disposes of the rights of the parties, either upon the entire controversy or upon some definite and separate part thereof,,” such as a claim in a civil case. In re Estate of French, 166 Ill. 2d 95, 101 (1995), quoting Treece v. Shawnee Community Unit School District No. 84, 39 Ill. 2d 136, 139 (1968), quoting Village of Niles v. Szczesny, 13 Ill. 2d 45, 48 (1958). The mere fact that an order resolves important issues does not render it final. In re Curtis B., 203 Ill. 2d 53, 59 (2002). An order is final for purposes of appeal if it terminates the litigation between the parties so that, if affirmed, the trial court only has to proceed with the execution of the judgment. In re Guardianship of J.D., 376 Ill. App. 3d 673, 676 (2007). Perhaps most importantly, a final order is not modifiable by the circuit court after the expiration of 30 days, regardless of whether an appeal has been taken. See, e.g., Busey Bank v. Salyards, 304 Ill. App. 3d 214, 218 (1999). If an appeal is not taken from a final order within 30 days, the order becomes res judicata. Busey Bank, 304 Ill. App. 3d at 218.

However, because of the “all claims, all parties” rule, even if an order is final, it is generally not immediately appealable if other claims or parties remain in the proceeding. Supreme Court Rule 304 provides for appeals from final judgments as to fewer than all parties or claims, but only in very specific circumstances. State Farm Fire & Cas. Co. v. John J. Rickhoff Sheet Metal Co., 394 Ill. App. 3d 548, 556 (2009). 304(a) allows the court to make a written finding that there is no just reason for delaying either enforcement or appeal or both. Rickhoff, 394 Ill. App. 3d at 556. The matter must then be appealed within 30 days, or the right to appeal is lost. Official Reports Advance Sheet No. 15 (July 16, 2008), R. 303, eff. May 30, 2008, corrected eff. June 4, 2008; Official Reports Advance Sheet No. 20 (September 27, 2006), R. 304(a), eff. September 20, 2006; see also Williams v. Manchester, 372 Ill. App. 3d 211, 220 (2007), vacated in part on other grounds, 228 Ill. 2d 404 (2008).

Rule 304(b) lists a series of orders that are appealable automatically upon entry without a special finding of appealability by the trial court. Official Reports Advance Sheet No. 20 (September 27, 2006), R. 304(b), eff. September 20, 2006. The law is clear that orders within the scope of 304(b) must be appealed within 30 days of their entry; otherwise, the right to appeal such an order is lost. D’Agostino v. Lynch, 382 Ill. App. 3d 639, 642 (2008) (post-judgment collection proceeding under 2-1402); Longo v. Globe Auto Recycling, 318 Ill. App. 3d 1028, 1036 (2001) (contempt proceeding); Village of Glenview v. Buschelman, 296 Ill. App. 3d 35, 39 (1998) (section 2-1401 petition for relief from judgment); In re Liquidation of MedCare HMO, Inc., 294 Ill. App. 3d 42, 46 (1997) (liquidation proceeding); In re Estate of Thorp, 282 Ill. App. 3d 612, 616 (1996) (estate administration). That is because the 30-day time frame is mandatory, not optional. Longo, 318 Ill. App. 3d at 1036.

In order for Rule 304(b) to be effective, practitioners must be aware of its applicability to the child custody context; otherwise, the opportunity to file an appeal will be lost. For example, in D’Agostino v. Lynch, 382 Ill. App. 3d 639, 642 (2008), a post-judgment collection proceeding, the court entered a final order compelling the turnover of funds. Unaware that this final order was immediately appealable without a special finding under Rule 304(b)(4), the party seeking to appeal the turnover filed a request that the court enter a Rule 304(a) finding of appealability. By the time the court entertained and ruled on that request, the 30-day time frame in which the turnover could have been appealed pursuant to Rule 304(b)(4) had expired. Consequently, that party lost its right to appeal the turnover order. D’Agostino, 382 Ill. App. 3d at 642.

On February 26, 2010, Rule 304(b) was amended to include subparagraph (6), which provides for an immediate appeal without a special finding for “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).”

Because this addition of child custody judgments in marital dissolution proceedings is so new, it is imperative that domestic relations practitioners be aware of the 30-day mandatory time frame for filing a notice of appeal. Otherwise, the right to appeal will be lost in a number of cases.

This amendment has two important consequences. First, the supreme court has recognized that the trial court may enter a final custody order before the dissolution judgment is entered. The custody judgment is immediately enforceable and, as defined in the Committee Comment to the Rule, the judgment can only be modified pursuant to the strict standards of Section 610 of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/101 et seq. (West 2006)). Second, the Supreme Court has superceded its decision in In re Marriage of Leopando, 96 Ill. 2d 114, 119 (1983), which held that child custody was merely an issue in a dissolution proceeding, rather than a separate claim. The enactment of Rule 304(b)(6) elevates custody to the level of a fully separate claim.

As with appeals pursuant to Rule 304(a) and the other subparagraphs of 304(b), the time in which a notice of appeal must be filed from a custody judgment is also 30 days, as provided in Rule 303. See Official Reports Advance Sheet No. 20 (September 27, 2006), R. 304(a), eff. September 20, 2006. Also as with the other types of orders appealable under Rule 304(b), if a notice of appeal is not filed within 30 days of entry of the custody judgment, the right to appeal is lost and the custody judgment becomes res judicata. See, e.g., D’Agostino, 382 Ill. App. 3d at 642.

Family law practitioners should also be aware that Rule 306(a)(5) still remains in effect. That Rule enables the non-prevailing party to request leave to appeal from an interlocutory, or non-final, order affecting child custody. See, e.g., Curtis B., 203 Ill. 2d 53, 63-64 (2002) (suggesting that party should have sought to appeal permanency planning order, which was interlocutory, pursuant to Rule 306(a)(5)). The procedures for requesting leave to appeal pursuant to Rule 306(a)(5) are set forth in Rule 306(b). Those procedures are also expedited.

Finally, regardless of whether an appeal has been taken from a final or interlocutory order, practitioners must be aware that expedited procedures apply to the disposition of the appeal as set forth in Rule 311(a). Rule 311(a) specifically applies to appeals from any final order affecting child custody as well as an appeal from any interlocutory order affecting child custody from which leave to appeal has been granted pursuant to Rule 306(a)(5). Practitioners should note that Rule 311(a) contains the expedited procedures that were formerly set forth in Rule 306A; however, the supreme court relocated those procedures because of not only confusing nomenclature—Rule 306A and Rule 306(a)(5)—but also to eliminate confusion over whether the expedited procedures affected appealability. It should also be noted that the expedited procedures contained in Rule 311(a) in the first instance place the responsibility of designating an appeal as an expedited child custody appeal on the parties by requiring them to include a special caption on all documents filed in the appellate court. The purpose of this special caption is to ensure that the parties, the appellate court clerk’s office personnel, and the court are aware of the expedited nature of the case.

In conclusion, the recent amendments to the child custody rules help to clarify the procedures involved, facilitating their use for practitioners. This, in turn, promotes the goal of expeditiously achieving stability for children affected by custody disputes. ■

 

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