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FOURTH DIVISION

August 8, 2002

JUSTICE THEIS delivered the opinion of the court:

Petitioner Kelly Shermach appeals from several orders entered by the circuit court ofCook County on respondent Joseph Brunory's petition for modification of custody of their minorson, Riley Brunory. Although Kelly raises a number of issues on appeal, we conclude that theorders from which she appealed were not final and appealable. For that reason, we grant theOffice of the Cook County Public Guardian's (Public Guardian) and Joseph's motion to dismissthe appeal for lack of appellate jurisdiction.

Kelly and Joseph were never married. On March 24, 1995, Kelly filed a complaintagainst Joseph to determine the existence of a father and child relationship between him andRiley, born on March 20, 1994, pursuant to the Illinois Parentage Act of 1984 (750 ILCS 45/1 etseq. (West 1994)). On August 31, 1995, the court entered an agreed order establishing parentagebased on Joseph's admission, granting custody of Riley to Kelly, setting Joseph's child support at$130 biweekly, creating a schedule for retroactive child support payments of $1,430, andawarding Joseph reasonable visitation rights. On July 24, 1997, Joseph filed a petition asking thecourt to set a visitation schedule. On August 7, 1997, Kelly petitioned for and obtained anemergency order of protection against Joseph based on allegations of stalking and harassment. On August 14, 1997, Kelly petitioned the court to restrict Joseph's visitation with Riley, allegingthat Joseph physically abused Riley and used illegal drugs and that she feared he would sexuallyabuse Riley. On August 15, 1997, the court entered an agreed order dissolving the order ofprotection and allowing Joseph temporary supervised visits. The court later awarded Josephunsupervised visitation based on the opinions of several experts. The litigation between theparties remained intense over the next several years concerning child support, visitation, attorneyfees, past-due support payments, and therapy sessions.

On July 6, 2000, Joseph filed a petition for modification of child custody, asking the courtto award temporary and permanent care, custody and control of Riley to Joseph, order Kelly topay temporary and permanent child support to Joseph in reasonable amounts, and set a visitationschedule. In his attached affidavit, Joseph averred that Kelly interfered with and obstructed hisattempts to visit Riley, restricted his telephone calls to his son, refused to participate in court-appointed mediation, and had been uncooperative with continuing Riley's court-ordered therapyappointments. Further, Joseph stated that Kelly expressed her intention to relocate with Riley toPhiladelphia, Pennsylvania, in an attempt to limit and restrict Joseph's right to have a relationshipwith Riley.

On July 31, 2000, the Public Guardian, Riley's guardian ad litem and attorney, filed anemergency petition to modify custody and asked the court to give custody to Joseph, alleging thatKelly did not make Riley available for several scheduled visits with Joseph, Riley did not appearfor his scheduled court-ordered therapy appointment, and Kelly and Riley's whereabouts wereunknown. On August 1, 2000, Joseph filed a corrected emergency petition for a rule to showcause and for a change in temporary custody based on his information and belief that Kelly leftthe jurisdiction with Riley. On that date, the court ordered that Kelly appear in court with Rileyon August 3, 2000. When neither Kelly nor Riley appeared on August 3, the court issued a bodyattachment order for Kelly, which was never executed. On August 15, 2000, after hearingarguments on the emergency petitions, the court found that it was undisputed that thewhereabouts of Kelly and Riley were unknown, that Kelly failed to make Riley available forscheduled visitation, failed to ensure that Riley attend a scheduled therapy appointment andfailed to produce Riley in court as ordered. On these bases, the court granted temporary custodyof Riley to Joseph.

On September 8, 2000, Kelly, whose whereabouts remained unknown, filed a response tothe emergency petition to modify custody. On September 13, 2000, Kelly filed an emergencymotion to stay enforcement of the August 15, 2000 order and quash the writ of attachment,alleging that she was ready to appear in open court. The court denied Kelly's motion to stayenforcement, but quashed the body attachment and ordered that Kelly have supervised visits withRiley. Kelly then filed a petition for leave to appeal to this court pursuant to Illinois SupremeCourt Rule 306 (166 Ill. 2d R. 306), which this court denied.

On October 3, 2000, Kelly filed a petition to remove the Public Guardian, SusanBuckman Schulson, as Riley's attorney. After receiving responses from Schulson and Joseph, thetrial court denied Kelly's motion on October 20, 2000. Thereafter, Kelly filed a petition for leaveto appeal to this court pursuant to Rule 306, which was denied. On December 18, 2000, Kellyfiled a motion to vacate the court's August 15, 2000 order transferring temporary custody toJoseph. After hearing arguments, the trial court denied Kelly's motion on February 28, 2001. Kelly filed a petition for leave to appeal to this court pursuant to Rule 306, which was denied"without prejudice to any appeal filed under Supreme Court Rule 306 after any subsequentevidentiary hearing."

In July 2001, the trial court conducted an eight-day evidentiary hearing on Joseph'spetition for modification of child custody filed on July 6, 2000. On July 31, 2001, the courtawarded Joseph sole custody of Riley, gave Kelly liberal visitation and phone contact pursuant toa schedule to be submitted by the parties similar to the schedule previously set for Joseph. Thecourt ordered Kelly and Joseph to attend conciliation to develop a communication plan to beincorporated into the parenting schedule. Joseph was ordered to insure that Riley attended histherapy sessions and both parents were ordered to enroll in individual therapy. In determiningchild support payments, the court ordered Kelly to pay 20% of her net income from all sourcesand ordered the parties to submit a uniform support order within 14 days which included afinding of Kelly's net income from all sources calculated from recent paychecks or other reliableevidence of her earnings. The court waived claims for past-due child support owed by Joseph orKelly. Additionally, Joseph was ordered to maintain medical insurance and dental insurance, ifavailable, for Riley and Kelly would reimburse him for Riley's share of the cost of the insurance.

On August 27, 2001, Kelly filed a notice of appeal, appealing from the July 31, 2001order permanently transferring custody of Riley to Joseph, the August 15, 2000 order grantingtemporary custody to Joseph, the July 10, 2001 order determining that there was sufficientevidence for the temporary transfer of Riley without an evidentiary hearing, and the orders ofOctober 20, 2000 and June 14, 2001, denying Kelly's request to remove the Public Guardian. Shortly thereafter, the Public Guardian filed a motion in this court to dismiss Kelly's appeal forlack of jurisdiction. Joseph sought, and was granted, permission to join the Public Guardian'smotion to dismiss the appeal. After receiving Kelly's response, we took the motion with the case. We now grant the Public Guardian's and Joseph's motion and dismiss the appeal for lack ofappellate jurisdiction.

The Public Guardian and Joseph argue that the trial court's July 31, 2001 order was not afinal and appealable order because while the court set Kelly's support obligation at 20% of hernet income, it ordered the parties to submit a uniform support order within 14 days and did notdetermine a specific dollar amount of child support. Thus, the Public Guardian and Josephcontend, this court lacks jurisdiction to hear this appeal under Supreme Court Rule 301. 155 Ill.2d R. 301. Kelly responds that the July 31, 2001 order was final and appealable because themain issue, custody, was resolved and the order determined the issue of child support by orderingKelly to pay 20% of her net income.

Supreme Court Rule 301 allows appeals from final judgments as a matter of right. 155 Ill.2d R. 301. Appellate jurisdiction is limited to reviewing a final judgment that disposes of therights of the parties, either on the entire case or on some definite and separate part of thecontroversy. Department of Public Aid ex rel. K.W. v. Lekberg, 295 Ill. App. 3d 1067, 1069,693 N.E.2d 894, 895 (1998). A judgment is final if it determines the litigation on the merits sothat, if affirmed, the only thing remaining is to proceed with the execution of the judgment. In reT.M., 302 Ill. App. 3d 33, 37, 706 N.E.2d 931, 934 (1998). Further, an order is final whenmatters left for future determination are merely incidental to the ultimate rights that have beenadjudicated by the order. In re T.M., 302 Ill. App. 3d at 37, 706 N.E.2d at 934. Where an orderresolves less than all the claims brought by a party, the order is not final and appealable. In reMarriage of Merrick, 183 Ill. App. 3d 843, 845, 539 N.E.2d 868, 869 (1989).

We find that we are without jurisdiction to address the merits of this appeal because theorder appealed from, the July 31, 2001 order, did not adjudicate all of the claims brought byJoseph. In his petition for modification of custody, Joseph asked the court to (1) awardtemporary and permanent care, custody and control of Riley to Joseph; (2) order Kelly to paytemporary and permanent child support to Joseph in reasonable amounts; and (3) set a visitationschedule. The July 31, 2001 order resolved the first and third issues by awarding permanent andsole custody of Riley to Joseph and creating a visitation schedule for Kelly. However, the courtdid not fully resolve the issue of permanent child support payments because it did not make afinal decision or a specific ruling as to the amount of child support to be paid. The order merelystated that Kelly "shall pay through income withholding 20% of her net income from all sourcesfor the current support of Riley. Counsel shall submit within 14 days a uniform support orderwhich includes a finding of [Kelly's] net income from all sources calculated from recentpaychecks or other reliable evidence of her earnings." The parties were ordered to return to courtwith evidence of Kelly's net income in order to determine the specific dollar amount of childsupport due Joseph. Thus, the July 31, 2001 order is not final.

This case is similar to Deckard v. Joiner, 44 Ill. 2d 412, 255 N.E.2d 900 (1970), a caseupon which our supreme court recently relied in Franson v. Micelli, 172 Ill. 2d 352, 666 N.E.2d1188 (1996). In Deckard, the mother filed a complaint to establish paternity and asked for childsupport and pregnancy-related expenses. On March 27, 1962, the trial court established paternityand found the father liable for support and expenses, but due to the father's unemployment,reserved the determination of the amount of support and expenses. Deckard, 44 Ill. 2d at 413-14,255 N.E.2d at 901. On February 25, 1963, the court found that the father obtained employmentand ordered him to pay doctor and hospital bills and pay child support of $15 per week. Oursupreme court found that the March 27, 1962 order was not final and appealable because itprovided that jurisdiction would be retained for the determination of a matter of substantialcontroversy between the parties, the amount of support and expenses for which the father wasliable. However, the court found that the February 25, 1963 order ended the controversy becauseit resolved the remaining issue and fixed the amount of support the father was to pay. "This wasthe final determination of the ultimate rights of the parties put in issue by the complaint, and theonly matters left for the court, such as the enforcement of its support order or the increase ofsupport if the need arose, were only incidental to the matters adjudicated in the 1962 and 1963orders." Deckard, 44 Ill. 2d at 417, 255 N.E.2d at 903.

Similarly, the July 31, 2001 order was not final and appealable where it failed todetermine an issue raised in Joseph's petition for modification of custody and a matter ofpotentially substantial controversy between the parties, the exact amount of Kelly's child supportpayments. This order would not be final and could not be appealed under Rule 301 unless anduntil the trial court fixed the precise dollar amount of Kelly's payments. Further, Joseph couldnot attempt to enforce the July 31, 2001 order or collect child support from Kelly without thecourt's later determination of the exact amount of Kelly's support obligation. Thus, the notice ofappeal filed before the uniform support order was entered was premature and we lack jurisdictionto address the July 31, 2001 order and all orders entered prior to that date.

We find additional support in Department of Public Aid ex rel. Chiapelli v. Viviano, 195Ill. App. 3d 1033, 553 N.E.2d 97 (1990). In Chiapelli, the court found that an order setting thefather's retroactive child support obligation at 20% of his net income for the previous four yearsand ordering the father to produce evidence of his income within 14 days was not final andappealable. Chiapelli, 195 Ill. App. 3d at 1034-35, 553 N.E.2d at 98. In that case, while the trialcourt set the father's retroactive child support obligation at 20% of his net income, it did notdetermine the exact amount of payments. "This is not a mere ministerial act upon which acalculation can easily be measured, as there are potential disputes about the materials submitted,the inferences drawn from any material, and the amounts to properly be considered in arriving ata net upon which 20% can be assessed." Chiapelli, 195 Ill. App. 3d at 1035, 553 N.E.2d at 98. Although the present case involves current child support obligations and not retroactive support,we find the distinction immaterial and similarly hold that the potential disputes that could ariseover the 20% figure makes this an order which lacks the essentials of a final judgment. See also750 ILCS 45/14(a)(1) (West 2000); 750 ILCS 5/505(a)(5) (West 2000) (stating that "[t]he finalorder in all cases shall state the [child] support level in dollar amounts"); Lekberg, 295 Ill. App.3d at 1069, 693 N.E.2d at 895; Baldassone v. Gorzelanczyk, 282 Ill. App. 3d 330, 333, 667N.E.2d 639, 642 (1996) (holding that an order declaring parentage is not a final order if it doesnot at least rule on the amount of child support for which the defendant is liable).

We find In re Custody of Purdy, 112 Ill. 2d 1, 490 N.E.2d 1278 (1986), distinguishable. In Purdy, the cause of action was the father's post-dissolution petition for a change of custody,which the trial court granted. Our supreme court found that the order for a change of custody inthat context was final because all related claims had been decided, even though the trial courtreserved ruling on the extent of the mother's summer visitation, a matter which is always subjectto revision. Purdy, 112 Ill. 2d at 5, 490 N.E.2d at 1279-80. In the present case, however,Joseph's petition for modification of custody sought a change in custody, child support andvisitation. The court's July 31, 2001 order did not decide all claims related to this petitionbecause the court never fully resolved the issue of child support.

Further, Purdy determined that the issue reserved by the trial court, the extent of themother's summer visitation, was merely incidental to the ultimate rights adjudicated, custody ofthe child, and thus, the order was final and appealable. Merrick, 183 Ill. App. 3d at 846, 539N.E.2d at 870, citing Purdy, 112 Ill. 2d at 5, 490 N.E.2d at 1279-80. Our supreme court has heldthat the issue of present child support obligations is a matter of substantial controversy betweenthe parties and is not merely ancillary or incidental. Franson, 172 Ill. 2d at 356-57, 666 N.E.2d at1190. In the present case, the matter reserved by the trial court, the exact amount of childsupport owed by Kelly, was not incidental to the ultimate rights which had been adjudicated. Child support was included as a specific claim for relief in Joseph's petition for modification ofchild custody and was not incidental. See generally Merrick, 183 Ill. App. 3d at 845-46, 539N.E.2d at 870 (distinguishing Purdy because the matters reserved by the trial court, interest on abonus check and attorney fees, were two of petitioner's claims for relief and were not incidental);In re Marriage of Piccione, 158 Ill. App. 3d 955, 962-63, 511 N.E.2d 1157, 1162-63 (1987)(distinguishing Purdy where issue of attorney fees integrally related to parties' financial resourcesand child support).

We agree with the Public Guardian that under Rule 301, the trial court's determination ofKelly's support obligation is not separable from that portion of its order granting Joseph's petitionto modify custody. The determination of a noncustodial parent's support obligation is integrallyrelated to the determination of custody. The transfer of custody gives rise to the child supportobligation of the parent from whom custody is transferred. 750 ILCS 45/14(a)(2) (West 2000)("the establishment of a support obligation or of visitation rights in one parent shall beconsidered a judgment granting custody to the other parent"). Courts have treated custody andsupport as interrelated components of a single claim regardless of the context in which they arise. Franson, 172 Ill. 2d at 355, 666 N.E.2d at 1189 (relying on Deckard); In re Marriage ofLeopando, 96 Ill. 2d 114, 119, 449 N.E.2d 137, 140 (1983) ("where a dissolution of marriage isgranted, a determination as to which party receives custody will necessarily affect how much, ifany, support and maintenance are paid"); Deckard, 44 Ill. 2d at 417, 255 N.E.2d at 903 (apaternity order is not final and appealable without a determination of the amount of support);Baldassone, 282 Ill. App. 3d at 334, 667 N.E.2d at 643 ("a complaint seeking a determination ofpaternity and child support advances a single claim, not separate, unrelated claims"). Thus,unlike the change of custody order in Purdy, the July 31, 2001 order was not final andappealable.

Kelly argues that the Public Guardian's motion to dismiss this appeal is untimely becauseit previously filed its appearance and a responsive pleading in this court. However, a partycannot consent to or waive appellate jurisdiction. Gaynor v. Burlington Northern & Santa FeRy., 322 Ill. App. 3d 288, 289, 750 N.E.2d 307, 308 (2001). Further, this court has an obligationto sua sponte consider whether jurisdiction exists at any time, even after the parties have briefedthe merits of the case. In re Marriage of Carr, 323 Ill. App. 3d 481, 483, 752 N.E.2d 1181, 1183(2001). Additionally, Kelly contends that her appeal is proper based on this court's third orderdenying her petition for leave to appeal pursuant to Rule 306. That order stated that her petitionwas denied "without prejudice to any appeal filed under Supreme Court Rule 306 after anysubsequent evidentiary hearing." Here, Kelly filed only a notice of appeal and did not file apetition for leave to appeal pursuant to Rule 306. Further, in her reply brief, she states that therewas no need to file a petition under Rule 306 because the July 31, 2001 order was final andappealable. Thus, Kelly's appeal was based solely on jurisdiction from a final judgment underRule 301 and not on Rule 306, which applies only to interlocutory appeals. Moreover, this courthas discretion to grant or deny any appeal filed under Rule 306. Miller v. Consolidated RailCorp., 173 Ill. 2d 252, 256, 671 N.E.2d 39, 42 (1996). Thus, we reject Kelly's arguments.

We see no compelling reason for allowing piecemeal appeals when the matter of childsupport has only been partially determined by the trial court. For the foregoing reasons, thisappeal is dismissed for lack of jurisdiction.

Appeal dismissed.

THEIS, J., with HARTMAN and KARNEZIS, J.J., concurring.