Find Legal Information

THIRD DIVISION
June 20, 2001

JUSTICE BURKE delivered the opinion of the court:

Petitioner Margaret Carr ("Peggy") appeals from three ordersof the circuit court granting respondent Wayne Carr's (Wayne)petition to set child support and ordering the payment amountsretroactive. On appeal, Peggy contends that the trial court abusedits discretion in deviating from the statutory guideline amount ofchild support set forth in section 505 of the Illinois Marriage andDissolution of Marriage Act (Act) (750 ILCS 5/505 (West 1998)), andin reducing child support from $6,000 per month to $4,000 permonth. For the reasons set forth below, we dismiss this appeal.

Peggy and Wayne were married in 1979, and two children wereborn during the marriage: Erin, born September 26, 1980, andColleen, born July 6, 1984. On February 14, 1989, Peggy filed apetition for dissolution of marriage and, on the same day, thetrial court entered a judgment of dissolution of the marriage. Amarital settlement agreement was incorporated into the dissolutionjudgment. The agreement awarded Peggy custody of the parties' twochildren; required Wayne to pay unallocated maintenance and childsupport in the amount of $6,250 for 12 months and, thereafter,$8,333.33 for 36 months; required Wayne to make direct payments toPeggy for the children's camp, extra curricular activities, andlessons up to $7,000 per year; and required Wayne to pay foreducational expenses, including college. Both parties subsequentlyremarried and a daughter, Molly, was born to Wayne and his secondwife.

On September 16, 1998, Wayne filed a "Petition to Set ChildSupport," seeking a modification of the parties' previous maritalsettlement agreement based upon Erin's emancipation. Wayne allegedthat circumstances had changed because Erin had graduated from highschool, was attending college, and had turned 18 years of age. According to Wayne, it would not be equitable for him to pay all ofErin's college expenses and still pay $6,000 per month for childsupport of one child, Colleen. On April 28, 1999, the trial court,after hearing the evidence presented by the parties, concluded thata modification of child support was warranted as a substantialchange had occurred, i.e., Erin had graduated from high school, shehad turned 18, and she was attending college. The court noted thatthere was no agreement between the parties with respect to Waynemaking child support payments past either child reaching the age of18, nor did the dissolution judgment extend support payments forErin past her 18th birthday. The court further noted that Waynepaid 100% of Erin's college expenses at a cost, at that time, of$11,700, Wayne's net income for 1998 was $557,196, and thestatutory 20% would be $111,439 per year or $9,287 per month. After the trial court evaluated each of the statutory factors setforth in section 505 of the Act, it was the court's opinion thatthe statutory amount of $9,287 "far exceed[ed] the reasonable needsof Colleen," and that the statutory amount was "inappropriate." Upon further considering the best interests of Colleen, in light ofthe evidence, the court concluded that a deviation from thestatutory amount of section 505 of the Act was warranted. Accordingly, the court ordered Wayne to pay $4,000 per month childsupport for Colleen, retroactive to March 1, 1999.

Thereafter, both Peggy and Wayne filed motions to reconsider.Prior to the trial court's decision on the motions, Peggy filed apetition for contribution for attorney fees on August 16, 1999. OnAugust 27, 1999, the trial court granted Wayne's motion toreconsider, ordering that the child support amount would beretroactive to September 16, 1998, the date Wayne filed hispetition to set child support, and denied Peggy's motion toreconsider.

On October 4, 1999, Peggy filed a "petition for rule to showcause for Wayne's failure to pay Erin's college expenses." OnMarch 9, 2000, an agreed order was entered, requiring Wayne to payErin's college expenses and $5,000 of Peggy's attorney fees. Thisappeal followed.

This court has a duty to sua sponte consider the issue ofjurisdiction even if the parties fail to raise the issue. In reAdoption of Ginnell, 316 Ill. App. 3d 789, 790, 737 N.E.2d 1094(2000). A party seeking to appeal a trial court's judgment mustfile a notice of appeal within 30 days after entry of a finaljudgment or within 30 days after entry of an order disposing of thelast pending posttrial motion, if any. 155 Ill. 2d R. 303(a)(1). "A final judgment is one that fixes absolutely and finally therights of the parties in the lawsuit; it is final if it determinesthe litigation on the merits so that, if affirmed, the only thingremaining is to proceed with the execution of the judgment. [Citation.] To be final, a judgment must dispose of or terminatethe litigation or some definite part of it." Ginnell, 316 Ill.App. 3d at 793.

In the instant case, Peggy contends that the trial court'sMarch 9, 2000, order (requiring Wayne to pay Erin's collegeexpenses and ordering him to pay $5,000 of Peggy's attorney fees)rendered the trial court's August 27, 1999, order (granting Wayne'smotion to reconsider and denying Peggy's motion to reconsider) andits April 28, 1999, order (setting child support) final. Accordingto Peggy, because a petition for attorney fees was pending, shecould not appeal the order setting child support until the feeissue was resolved.

The cases Peggy relies upon in support of her contention, Inre Marriage of Tomei, 253 Ill. App. 3d 663, 624 N.E.2d 884 (1993),and In re Marriage of Tyler, 230 Ill. App. 3d 1009, 596 N.E.2d 119(1992), are distinguishable. In each case, the petitioner filed anotice of appeal while a fee petition was still pending in thetrial court following entry of the judgment of dissolution. Inboth cases, the appellate courts concluded that the notice ofappeal was premature because the attorney fee issue had not beenresolved. Tomei, 253 Ill. App. 3d at 666; Tyler, 230 Ill. App. 3dat 1013.

More specifically, in Tyler, the court concluded that theappeal from a dissolution judgment while the question of attorneyfees remained pending

"would run afoul of the policy to 'encourage[]the [trial] court to decide all mattersincident to the dissolution in a singlejudgment, to the fullest extent of itsauthority, in order to achieve finality,promote judicial economy, and avoid multiplelitigations and complications which can resultfrom the entry of partial judgments,particularly judgments which dissolve themarriage but "reserve" remaining issues forlater determination.' [Citations]." (Emphasisin original). Tyler, 230 Ill. App. 3d at1012.

In Tomei, the court noted that attorney fees are "directly relatedto the central dispute in a dissolution of marriage case," andbecause attorney fees are "dependant [sic] upon and integrallyrelated to decisions regarding the financial resources of each ofthe parties, a disposition of their allocation should be madebefore the reviewing court can properly assess the trial court'sdecisions regarding maintenance, child support, or division ofproperty." Tomei, 253 Ill. App. 3d at 665.

In the instant case, Peggy's petition for fees was filed inAugust 1999 and was not part of the dissolution proceeding. Infact, the judgment of dissolution was entered over 10 years before--in February 1989. Thus, the same concerns as were present inTomei and Tyler are not present in the instant case because theequitable distribution of property and the overall issues of childsupport, maintenance, and property distribution are not at issue. Tomei and Tyler involved dissolution proceedings. The instant caseinvolves a postdecree proceeding. Litigation in dissolution casescan continue subsequent to entry of a judgment of dissolution as isclearly evidenced by the instant case. Wayne and Peggy have beenin court every single year, without exception, since the judgmentof dissolution was entered in 1989. Attorney fees in postdecreecases are simply not directly related to the central issues in theequitable distribution of property as they are in cases at the timeof a judgment of dissolution. Accordingly, Tomei and Tyler areinapplicable.

The sole issue raised by Wayne's petition was to set theamount of child support that he was obligated to pay upon Erin'semancipation. The trial court completely resolved this issue onApril 28, 1999. Thereafter, both parties filed "posttrial" motionsfor reconsideration. The trial court rendered its decision on themotions for reconsideration on August 27, 1999. At this time, thetrial court's order fully and finally disposed of Wayne's petitionto set child support and it determined the litigation on themerits. There was nothing left to do except proceed with executionor enforcement of that order. The trial court's order of March 9,2000, ordering Wayne to pay Erin's college expenses and Peggy'sattorney fees, had no effect on either the April or August 1999orders setting child support. The March 9, 2000, order addressedseparate and unrelated claims from those issues raised in Wayne'spetition to set child support. Accordingly, Peggy was required tofile her notice of appeal within 30 days of August 27, 1999, whenthe trial court entered its order making the child support paymentsretroactive to the date Wayne filed his petition and denyingPeggy's motion for reconsideration, which she failed to do. Wetherefore find that we lack jurisdiction to hear this appeal.

Although we have determined that we lack jurisdiction overthis appeal, we briefly note that Wayne's reliance on In reMarriage of Konchar, 312 Ill. App. 3d 441, 727 N.E.2d 671 (2000),as a basis for his argument that we lack jurisdiction, ismisplaced. While the Konchar court held that section 503 of theAct (750 ILCS 5/503 (West 1998)), which requires that petitions forcontribution shall be filed before final hearings on other issuesbetween the parties, or no later than 30 days after the closing ofproofs, was applicable to postjudgment proceedings, we do notnecessarily agree with this conclusion. In any event, Konchar isdistinguishable from the instant case because the Konchar court didnot address the issue of jurisdiction.

For the reasons stated, we dismiss this appeal for lack ofjurisdiction.

Appeal dismissed.

WOLFSON, J., concurs.

CERDA, J., specially concurring.

JUSTICE CERDA, specially concurring:

I disagree with a portion of the reasoning of the majority butconcur in the result.

Section 508(a) provides that contribution to attorney fees maybe awarded from the opposing party in accordance with section (j)of section 503. 750 ILCS 5/508(a) (1998). Awards may be made inconnection with the maintenance or defense of any proceeding underthe Act. 750 ILCS 5/508(a)(1) (West 1998). The relevant portionof section 503(j) provides that a petition for contribution toattorney fees must be decided before judgment is entered in theproceeding:

"After proofs have closed in the final hearing on allother issues between the parties (or in conjunction with thefinal hearing, if all parties so stipulate) and beforejudgment is entered, a party's petition for contribution tofees and costs incurred in the proceeding shall be heard anddecided, in accordance with the following provisions:

(1) A petition for contribution, if not filed beforethe final hearing on other issues between the parties,shall be filed no later than 30 days after the closing ofproofs in the final hearing or within such other periodas the court orders." 750 ILCS 5/503(j) (West 1998).

In re Marriage of Konchar, 312 Ill. App. 3d 441, held that apetition for contribution to attorney fees (incurred in connectionwith a post-judgment motion concerning visitation) that was filedwithin 30 days of the closing of proofs but after judgment wasentered was untimely.

The Konchar court read section 503(j) to mean that before ajudgment is entered, a party's petition for contribution to feesmust be heard and decided. This interpretation was supported bysection 508(a) which provides in part:

"The court from time to time, after due noticeand hearing, and after considering thefinancial resources of the parties, may orderany party to pay a reasonable amount for hisown or the other party's costs and attorney'sfees. *** At the conclusion of the case,contribution to attorneys's fees and costs maybe awarded from the opposing party inaccordance with subsection (j) of section 503.(Emphasis added.)" 750 ILCS 5/508(a) (West1998).

After considering both section 508(a) and section 503(j), theKonchar court held that a petition for attorney fees must be heardand decided before the final judgment is entered. I agree withthis finding. The April 28, 1999 court order decided the issue ofchild support of Colleen and was in effect, the final judgmentorder.

The April 28, 1999 court order which decided the issue ofchild support for Colleen was the final judgment in this case.

The Konchar interpretation that section 503(j) requires thata petition for attorney fees must be decided before final judgmentdictates that the August 16, 1999 petition for attorney's fees wasuntimely and the March 9, 2000, order in our case was ineffective. Although the Konchar interpretation of section 503(j) was not madein the context of an issue of appellate jurisdiction neverthelessit requires dismissal of our case.

If the proper procedure had been followed, the attorney feepetition would have been decided before the April 28, 1999, orderwas entered disposing of the petition to modify child support. Since it was not, appellant should have appealed within 30 days ofthe August 27, 1999, order, which ruled on the motions toreconsider the April 28, 1999, order. I therefore agree with themajority that we lack jurisdiction.