Illinois Official Reports
Appellate Court
In re Marriage of Heinrich, 2014 IL App (2d) 121333
Appellate Court In re MARRIAGE OF MARY LEE HEINRICH, Petitioner and
Caption Counterrespondent-Appellee, and PAUL HEINRICH, Respondent
and Counterpetitioner-Appellant.
District & No. Second District
Docket No. 2-12-1333
Filed March 19, 2014
Held Parties’ premarital agreement’s attorney-fee-shifting ban as to
(Note: This syllabus child-related issues violates Illinois public policy and is unenforceable
constitutes no part of the as to those issues, but the remainder of the agreement, pursuant to its
opinion of the court but severability clause, remains enforceable.
has been prepared by the
Reporter of Decisions
for the convenience of
the reader.)
Decision Under Appeal from the Circuit Court of Kane County, No. 10-D-622; the
Review Hon. John A. Noverini, Judge, presiding.
Judgment Affirmed in part and reversed in part; cause remanded.
Counsel on Michael J. Scalzo and Todd D. Scalzo, both of Scalzo Law Offices, of
Appeal Wheaton, for appellant.
Keith E. Roberts, Jr., and Joseph P. O’Brien, both of Roberts P.C., of
Wheaton, for appellee.
Panel JUSTICE JORGENSEN delivered the judgment of the court, with
opinion.
Presiding Justice Burke concurred in the judgment and opinion.
Justice Hutchinson dissented, with opinion.
OPINION
¶1 Petitioner, Mary Lee Heinrich, filed a petition for dissolution of her marriage to
respondent, Paul Heinrich. Subsequently, respondent filed a motion for declaratory judgment,
seeking a general determination of the parties’ rights under their premarital agreement. The
trial court declared the parties’ premarital agreement valid and enforceable. It subsequently
denied respondent’s motion to reconsider, which was brought 17 months later, and found that
there was no just reason to delay enforcement or appeal or both pursuant to Illinois Supreme
Court Rule 304(a) (eff. Feb. 26, 2010). Respondent appeals, arguing that the trial court erred
in: (1) declaring that the premarital agreement’s attorney-fee-shifting ban was valid as to
child-related issues; (2) denying respondent’s motion to reconsider for untimeliness and lack
of new facts; and (3) declaring the premarital agreement valid and enforceable. We affirm in
part, reverse in part, and remand the cause for further proceedings.
¶2 I. BACKGROUND
¶3 The parties were married on May 26, 2001. Petitioner was 36 years old and employed at
her father’s company. Respondent was 44 years old and self-employed as an attorney. He also
had an ownership interest in an airplane rental and charter business. Prior to their marriage, on
May 25, 2001, they signed a premarital agreement. The agreement states that each party’s
estate has approximately the same value and that petitioner’s estate “is expected to increase
through gifts to her or inheritances received from members of her family.” Financial disclosure
exhibits attached to the agreement list the parties’ assets, liabilities, and net worth. Petitioner’s
exhibit lists net assets of over $1.9 million (including her interests in various family-owned
businesses, listing McKelvey Homes of Missouri, LLC (valued at $405,900), but not including
McKelvey Rental, LLC, which is at issue in this appeal) and no liabilities. In 1999, her
adjusted gross income was $383,445, and, in 2000, it was $279,358. An item described as
“Anticipated Inheritance” lists the value as “Amount undetermined.”
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¶4 Respondent’s exhibit reflects a net worth of $620,000. His income in 1998 was $380,000;
in 1999, it was $180,000; and his estimated 2000 income is listed as $130,000.
¶5 As to attorney fees, section 6.9 of the premarital agreement states:
“If either party contests the validity of this Agreement, and the Agreement is held valid,
the contesting party shall be liable for and pay the other party’s legal fees and expenses,
however, either party can seek judicial interpretation of the meaning of this Agreement
if it appears ambiguous as long as they overtly and explicitly accept the validity of the
Agreement, in which case each pays his or her own legal fees and expenses.”
¶6 The agreement also provides, in section 4.2(d) (which is at issue here), that, if the parties’
marriage is dissolved or in the event of a legal separation:
“Neither party shall make any claim upon the other for costs or attorneys’ fees whether
pendente lite or final, incurred in seeking or obtaining any such order or decree,
notwithstanding any right to costs or attorneys’ fees a party otherwise may have
pursuant to any statute of any jurisdiction ***.”
¶7 The premarital agreement further states that, in the event of divorce, each party would keep
sole ownership of his or her own separate property and the parties would equally divide the
shared property, regardless of their respective contributions to the shared property during the
marriage. Shared property is defined as: (1) all property acquired by the parties during the
marriage and jointly titled or titled as tenants by the entireties; (2) tangible personal property
that has no formal ownership designation and is acquired during the marriage for joint use and
enjoyment; (3) wages and earned income received by the parties during the marriage,
including nonpassive income from any partnership or business; (4) all investments, savings, or
other property, whether tangible or intangible, acquired by the parties with wages or other
earned income; and (5) retirement accounts, to the extent they are funded with income earned
by either party during the marriage. Separate property is defined as property that: (1) belongs
to either party at the commencement of the marriage as reflected in the exhibits; (2) is acquired
by either party during the marriage by gift, devise, bequest, descent, inheritance, or like
acquisition; (3) is acquired by either party during the marriage and placed or maintained in his
or her separate name or account, but excluding any property derived from either party’s earned
income during the marriage; or (4) is acquired by either or both parties during the marriage and
is not shared property. However, the agreement provided that, since respondent would pay the
mortgage for his Wisconsin residence from his earned income (i.e., shared property), petitioner
could claim an offset by transferring equal amounts of her earned income into her own separate
property. Also, if petitioner stopped working in order to raise children, she would instead
receive an equity interest in respondent’s Wisconsin residence equal to one-half of his
mortgage payments. (The agreement, however, did not contain a reciprocal provision allowing
respondent to claim an offset for any expenses petitioner might pay with her earned income for
her ownership of a Missouri residence and her one-third interest in a Missouri farm.)
¶8 The agreement also states that the parties would be barred from seeking maintenance
against each other, unless petitioner stopped working in order to raise children, in which case
she could seek rehabilitative maintenance for up to two years. The agreement further states that
each party was represented and advised by separate counsel and that each party acknowledged
that he or she was fully advised of the other party’s financial means and resources and
examined the other’s exhibit with the benefit of separate counsel. It also contains a severability
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clause and an arbitration clause, and it provides that Missouri law controls its construction and
effect.
¶9 Again, the parties were married one day after they executed the agreement. During the
marriage, they had two children: Grace (born in December 2002) and Elliott (born in
September 2004).
¶ 10 On April 28, 2010, petitioner petitioned for dissolution of the parties’ marriage. She sought
joint custody of the children and child support. She attached a copy of the premarital
agreement and stated that both parties should be barred from receiving maintenance. On July 9,
2010, petitioner petitioned for temporary child support. On August 30, 2010, she served
respondent with her verified comprehensive financial statement, listing her 2010 net income as
$6,646 per month and her household expenses as $12,122 per month (resulting in a $5,476
monthly shortfall). Petitioner also listed total assets of about $4.12 million with no liabilities.
She listed as part of her nonmarital assets McKelvey Rental, which she noted she acquired in
1992, with a current value of $622,479. (Again, McKelvey Homes was listed in her exhibit to
the premarital agreement.)
¶ 11 On September 30, 2010, respondent filed his financial statement, listing his 2010 net
income as $30 per month and his living expenses as $3,880 per month (resulting in a $3,850
monthly shortfall). He also listed total assets of about $295,000 and total liabilities of about
$400,000. At a hearing on September 30, 2010, the trial court ordered respondent to pay
petitioner $1,000 per month as contribution to household expenses.
¶ 12 On October 26, 2010, respondent moved for interim attorney fees, noting, in part, that he
estimated fees of $25,000 to $75,000, due to a “complex premarital agreement.” In response,
as an affirmative defense, petitioner raised the agreement’s attorney-fee-shifting provision. On
November 15, 2010, the trial court denied respondent’s motion for interim fees and appointed
a guardian ad litem (GAL).
¶ 13 On March 3, 2011, respondent moved for a declaratory judgment (735 ILCS 5/2-701 (West
2010)), seeking a general determination of the parties’ rights under the premarital agreement
and arguing that there was an actual controversy as to the validity and enforceability of the
agreement, in whole or in part. In her response to respondent’s motion, petitioner argued that
Missouri law controlled, the agreement was valid because it contained a disclosure of the
parties’ assets and liabilities, the outline of the parties’ rights and obligations in the agreement
was fair, and it contained a clear and unambiguous maintenance waiver that both parties
understood when they executed the agreement. She also argued that the parties voluntarily
entered into the agreement, it was not unconscionable, and both parties were provided with a
fair and reasonable disclosure. Petitioner also raised the agreement’s arbitration provision,
requesting that the trial court order the parties to arbitrate their dispute. However, because the
agreement did not contain any provisions relating to custody, visitation, or support of the
minor children, she asked the court to specify that those issues not be submitted to binding
arbitration (as it would further be against public policy to do so (see In re Marriage of Best
(Best II), 387 Ill. App. 3d 948, 951 (2009))). Also on that date, respondent filed a
counterpetition for dissolution of marriage, requesting, inter alia, that each party be ordered to
pay his or her own debts, attorney fees, and costs.
¶ 14 On March 31, 2011, the trial court ruled that it would determine issues of custody,
visitation, support, college contribution, and children’s health insurance and reserved the
remaining issues relating to arbitration.
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¶ 15 At an April 8, 2011, hearing, petitioner requested a finding that the premarital agreement
was valid and enforceable. Respondent’s counsel responded that “what we’re asking the Court
to rule on, is the validity and the enforceability of the prenuptial agreement *** whether or not
it’s violative of Illinois public policy or whether or not it contains appropriate safeguards for
the parties in the context of a dissolution proceeding.” The trial court noted that it had reviewed
the agreement and found it valid and enforceable. Upon this finding, respondent’s counsel
stated, “Very well.” The court also found that, in ruling upon grounds, it would apply Illinois
law; the arbitrator would rule on the division of marital assets; Missouri law would apply in an
appeal from the arbitrator’s award; and discovery issues would be determined by the arbitrator,
who would also decide what law controls resolution of those issues.
¶ 16 On May 2, 2011, in an agreed order, issues related to child support, health insurance, and
college expenses were reserved until completion of arbitration. On the same date, the court
entered a joint parenting agreement and order, awarding the parties joint custody of the
children, with petitioner designated as the residential custodian and respondent having rights
of visitation.
¶ 17 Between May 2011 and October 2012, various proceedings took place that are not relevant
to this appeal, including the court’s granting to petitioner exclusive possession of the marital
residence (and respondent’s appeal from that decision); respondent’s petition to abate
contribution to household expenses and petitioner’s contempt petition related to those
expenses; the court’s order prohibiting respondent from traveling out of state with the children
(and respondent’s appeal from that decision); the GAL’s petitions for fees; the arbitration
proceedings; and the court’s dismissal of petitioner’s petition for criminal contempt against
respondent.
¶ 18 In an affidavit dated July 24, 2012, and filed in support of petitioner’s September 26, 2012,
reply to respondent’s response to her 2011 summary judgment motion in the arbitration
proceedings, Lloyd W. Schnieders stated that he had been petitioner’s accountant for 20 years.
He averred that McKelvey Homes (which, as noted, petitioner’s exhibit to the 2001 premarital
agreement lists and values at $405,900) was formed on December 27, 1996, and that petitioner
owned 33% of it when the entity was formed. According to Schnieders, McKelvey Homes was
sold in 2002 and McKelvey Rental was formed on November 30, 2002. In 2003, the proceeds
from the sale of McKelvey Homes were deposited into McKelvey Rental. In her summary
judgment motion, petitioner argued that she mistakenly stated in her financial statement filed
in conjunction with her dissolution petition that she acquired McKelvey Rental in 1992.
¶ 19 On October 1, 2012, respondent filed a motion asking the trial court to reconsider its April
8, 2011, finding that the premarital agreement was valid and enforceable. He attached to the
motion his affidavit, in which he recounted the circumstances under which he executed the
agreement. Respondent averred that he was 44 years old at the time of the parties’ marriage.
Prior to May 2001, respondent was self-employed as an attorney and was a licensed pilot. By
May 2001, respondent was winding down his law practice and was attempting to start a new
career providing airplane tours and instruction. Petitioner was then age 36 and employed as an
office worker in her father’s company. Respondent had never before married, and petitioner
was divorced. Respondent further averred that, three weeks before the wedding ceremony,
petitioner’s father, Robert McKelvey, showed respondent a copy of the premarital agreement
and asked respondent to sign it. After a cursory review, respondent refused to do so and
returned it to McKelvey. Shortly thereafter, at McKelvey’s request, respondent provided a list
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of his assets and liabilities “because I believed it was unrelated to the [agreement] and that
[petitioner] and I were exchanging lists only for purposes of disclosure.” According to
respondent, on May 18, 2001, he signed petitioner’s exhibit in which she listed net assets of
over $2 million (but did not list McKelvey Rental, of which respondent was unaware at the
time) and he signed the attorney certification.
¶ 20 Respondent further averred that, on May 25, 2001, after completing a week-long civil jury
trial in Cook County, respondent flew his airplane to Wisconsin, arriving at about 10 p.m. The
next day, two hours before the wedding ceremony, McKelvey presented respondent with “only
the signature page” of the premarital agreement and “said [respondent] had to sign it or the
ceremony would be cancelled.” Respondent further averred that he did not see or read the
agreement at that time, is not a divorce attorney (he practiced criminal defense and personal
injury law), and is not licensed to practice law in Missouri. He did not know or understand the
agreement’s terms or its legal consequences. Respondent signed only the signature page,
“under extreme coercion and duress, without having seen the [agreement].” More than 100
guests had arrived for the ceremony; respondent did not want petitioner to be humiliated in
front of her family and friends; and respondent had paid for a 10-day honeymoon in Rome,
Italy. He averred that no notary was present and that he did not recognize the separate notary
seal by “Donna M. Bausano.” Respondent stated that he and petitioner did not discuss the
agreement until the dissolution proceedings commenced.
¶ 21 In his motion to reconsider, respondent further argued that the trial court’s April 8, 2011,
order was interlocutory and could be reviewed or modified at any time. He raised three issues.
First, he urged that the premarital agreement was unconscionable and asked that it be set aside.
Respondent argued that he did not negotiate or understand its terms, he signed it under
coercive circumstances, petitioner concealed assets (noting that petitioner testified at her
deposition that McKelvey Rental was not listed in her comprehensive financial statement), and
its terms are one-sided (because it is structured such that respondent’s resources would be
shared and used for marital expenses, but petitioner’s resources would be separate and used for
her own expenses).
¶ 22 Second, respondent argued that the agreement’s attorney-fee-shifting ban is void as to
child-related issues because it violates public policy by discouraging parents from pursuing
litigation in their children’s best interests. He also argued that, because the provision is void
under Illinois law, it was unnecessary to determine whether Missouri law applies. (As to this
argument, respondent did not claim that the entire agreement was void, only that this provision
was void.)
¶ 23 Third, respondent argued in the alternative that the premarital agreement was ambiguous
and that material factual issues precluded a finding that it was valid and enforceable.
Specifically, he asserted that a significant ambiguity existed over whether the income derived
from and increased value of petitioner’s separate property constitute shared property.
Respondent paid marital expenses with his own earned income, which allowed petitioner to
retain a proportionately greater share of income derived from her separate property and to
preserve and increase the value of those assets. Thus, respondent argued, this derived income
and increase in value fit within the definition of shared property because they were acquired
through respondent’s earned income. He also argued that there was a factual issue as to the
status of petitioner’s retirement benefits. Respondent requested that the court vacate its April 8,
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2011, order and submit the matter to arbitration for an evidentiary hearing to resolve the
ambiguities and for ultimate ruling on the agreement’s validity.
¶ 24 In response, petitioner filed an emergency motion for an immediate hearing on
respondent’s motion to reconsider and for a Rule 304(a) finding. She asserted that
respondent’s motion for declaratory judgment did not contest the validity of the premarital
agreement but rather asked the court to declare the parties’ rights under the agreement and to
determine its validity, to which she had responded that the agreement was valid and
enforceable. Petitioner noted that her summary judgment motion in the arbitration proceedings
requested that the arbitrator divide the parties’ assets in accordance with the premarital
agreement, which the court had declared valid and enforceable. She argued in her emergency
motion that respondent had purposefully delayed the arbitration proceedings by failing to
adhere to discovery deadlines and seeking continuances of the hearing on the summary
judgment motion. She noted that, on October 1, 2012, about two hours before the hearing on
her summary judgment motion was set to commence, respondent’s counsel hand-delivered to
petitioner’s attorney a copy of respondent’s motion to reconsider, which he set for hearing on
October 31, 2012. Petitioner argued that the motion was improper and should be denied
because respondent did not explain how his motion apprised the court of either newly
discovered evidence (she further argued that the evidence was available to respondent at the
time of the earlier hearing), a change in the law, or errors in the court’s earlier application of
the law, which constitute appropriate bases upon which to grant a motion to reconsider.
Petitioner further argued that respondent showed a lack of diligence, letting 17 months pass
since entry of the trial court’s April 8, 2011, order, and that he was seeking to avoid summary
judgment in the arbitration proceedings. Finally, petitioner also sought a Rule 304(a) finding
(as to the earlier finding that the premarital agreement was valid and enforceable).
¶ 25 On October 10, 2012, the trial court found that petitioner’s motion was not an emergency,
granted respondent 14 days to respond, and set the matter for hearing. The court noted that
respondent’s motion to reconsider was untimely and that it presented “nothing new.” At an
October 31, 2012, hearing, respondent argued that, as the arbitration process moved forward,
he learned that the agreement was not valid and enforceable, including petitioner’s alleged
nondisclosure of certain assets. The court denied respondent’s motion to reconsider and found,
pursuant to Rule 304(a), that there was no just reason to delay enforcement or appeal or both of
its April 8, 2011, order. Respondent appeals.
¶ 26 II. ANALYSIS
¶ 27 A. Jurisdiction
¶ 28 Preliminarily, although neither party raises the issue, we address our jurisdiction over this
appeal. See In re Marriage of Mardjetko, 369 Ill. App. 3d 934, 935 (2007) (reviewing court has
sua sponte duty to consider its jurisdiction and dismiss the appeal if jurisdiction is lacking). On
April 28, 2010, petitioner petitioned for dissolution of the parties’ marriage. About one year
later, on March 3, 2011, respondent filed a motion for declaratory judgment, seeking a
determination of the parties’ rights under their premarital agreement. On April 8, 2011, the trial
court declared the agreement valid and enforceable. Over 17 months later, on October 1, 2012,
respondent moved the court to reconsider its April 8, 2011, ruling. On October 31, 2012, the
trial court denied respondent’s motion, but found, pursuant to Rule 304(a), that there was no
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just reason to delay enforcement, appeal, or both of its April 8, 2011, order. The dissolution
petition remains pending in the trial court.
¶ 29 A declaratory judgment action requires: (1) a plaintiff with a tangible, legal interest; (2) a
defendant with an opposing interest; and (3) an actual controversy between the parties
concerning such interests. 735 ILCS 5/2-701 (West 2010). The General Assembly has
expressly provided for the entry of declaratory judgments in dissolution-of-marriage cases. In
In re Marriage of Best (Best I), 228 Ill. 2d 107, 119 (2008), the supreme court held that “a
reviewing court may consider the validity and effect of a declaratory judgment order in a
dissolution proceeding, even if it is entered before the final dissolution order, if the
prerequisites of the declaratory judgment statute are met.” See also 750 ILCS 5/105(a) (West
2010) (incorporating 735 ILCS 5/2-101 et seq. (West 2010)).
¶ 30 In Best I, the husband petitioned for dissolution of the parties’ marriage and, later, moved
for a declaratory judgment, seeking a ruling concerning the validity and construction of their
premarital agreement. 1 The supreme court held that, even though a final dissolution order had
not been entered, a reviewing court could review the trial court’s ruling if the requirements of
the declaratory judgment statute were met. Best I, 228 Ill. 2d at 116. As is critical to this appeal,
the supreme court further declared that the ruling was appealable under Rule 304(a). Id. at 113.
The court noted that the declaratory judgment only determined the validity of the parties’
premarital agreement and construed the attorney fees provision and “did not make any actual
awards in the pending dissolution case.” Id. at 114. Thus, the parties’ two requests for relief
(declaratory and nondeclaratory) had different statutory bases and were “not so closely related
that they must be deemed part of a single claim for relief.” Id. at 115. In the court’s view, the
rulings on the premarital agreement terminated a significant part of the dissolution matter and
satisfied the termination-of-controversy requirement in the declaratory judgment statute. Id. at
117-18.
¶ 31 Relying on Best I, respondent contends that jurisdiction here is conferred pursuant to Rule
304(a). We agree. Rule 304(a) governs those circumstances where a judgment in a case
involving multiple parties or multiple claims disposes of at least one, but not all, of such parties
or claims. American Country Insurance Co. v. Chicago Carriage Cab Corp., 2012 IL App
(1st) 110761, ¶ 21. Rule 304(a) provides, in pertinent part:
“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
1
The motion was apparently filed, as here, in the dissolution action, not in, for example, a chancery
court case, separate from the dissolution case.
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adjudicating all the claims, rights, and liabilities of all the parties.” (Emphases added.)
Ill. S. Ct. R. 304(a) (eff. Feb. 26, 2010).
¶ 32 Here, the trial court’s declaratory judgment, which addressed claims relating to the
premarital agreement, was final on April 8, 2011. The declaratory judgment statute explicitly
provides for the finality of declaratory judgments: “The court may, in cases of actual
controversy, make binding declarations of rights, having the force of final judgments, whether
or not any consequential relief is or could be claimed, including the determination, at the
instance of anyone interested in the controversy, of the construction of any *** contract or
other written instrument, and a declaration of the rights of the parties interested.” (Emphasis
added.) 735 ILCS 5/2-701(a) (West 2010); see also Djikas v. Grafft, 344 Ill. App. 3d 1, 10
(2003) (“finality attaches to a declaratory judgment on the date that judgment is entered”).
However, here, the trial court’s April 8, 2011, order became appealable only on October 31,
2012, by virtue of the court’s express written finding that there was no just reason for delaying
enforcement or appeal or both. American Country Insurance, 2012 IL App (1st) 110761, ¶ 21;
see also Best I, 228 Ill. 2d at 113. As relevant here, our jurisdiction encompasses only orders
that are final and appealable. American Country Insurance, 2012 IL App (1st) 110761, ¶ 21.
Although the Rule 304(a) finding here was not made until over 17 months later (in an order
also denying respondent’s motion to reconsider), that delay is of no import because a Rule
304(a) finding may be made at any time. See John G. Phillips & Associates v. Brown, 197 Ill.
2d 337, 344 (2001) (“one may request at any time that the trial court add Rule 304(a) language
to the final order which disposed of all issues other than sanctions”); see also Ill. S. Ct. R.
304(a) (eff. Feb. 26, 2010) (“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” (emphasis added)). The
dissent does not acknowledge or assess the clear language of the rule or the foregoing case.
¶ 33 Furthermore, the fact that respondent filed his motion to reconsider over 17 months after
the declaratory judgment does not alter our conclusion. The declaratory judgment was final,
but not appealable, on the date it was entered–April 8, 2011. 735 ILCS 5/2-701(a) (West 2010).
The order did not become appealable until the court made its Rule 304(a) finding. Best I, 228
Ill. 2d at 113. The fact that respondent filed a motion to reconsider in the interim, which
prompted petitioner’s request for Rule 304(a) language, does not alter this conclusion. The
30-day period for filing a notice of appeal was triggered by the issuance of the trial court’s
Rule 304(a) language, not by any earlier filings. To hold otherwise, as the dissent suggests,
would have the effect of swallowing Rule 304(a) and ignoring Best I.
¶ 34 Pritza v. Village of Lansing, 405 Ill. App. 3d 634 (2010), upon which the dissent relies and
which does not involve a marriage dissolution and does not address Best I, does not warrant a
different result and, to the extent that it conflicts with Best I, we are bound to follow Best I. In
Pritza, an injured village police officer sought a declaratory judgment of uninsured motorist
coverage against the village and a risk management pool that provided automobile liability
coverage to the village. The trial court dismissed the action (finding that the vehicle was not
uninsured), but granted the plaintiff leave to file an amended complaint. The plaintiff
subsequently filed an amended complaint, seeking reformation of the risk management pool’s
agreement (to include a provision for underinsured motorist coverage). The trial court granted
the defendants summary judgment (finding that the risk management pool was not an
insurance carrier and that as a member the village was self-insured and not subject to an
insurance code provision), and the plaintiff appealed both the dismissal and the summary
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judgment. The appellate court held that it did not have jurisdiction to review the earlier
judgment and dismissed that portion of the plaintiff’s appeal. Id. at 638. The court determined
that the declaratory judgment dismissal was final on the date the dismissal was entered,
because it fixed absolutely the rights of the plaintiff and the defendants on the plaintiff’s claim
for a declaratory judgment of uninsured motorist coverage. Id. at 640. However, because the
notice of appeal was not filed within 30 days of that final order, the appellate court lacked
jurisdiction to consider the issue. Id.
¶ 35 It is well established that a trial court loses jurisdiction over a case and the authority to
vacate or modify its judgment 30 days after the entry of judgment, unless a timely
postjudgment motion is filed. Gegenhuber v. Hystopolis Production, Inc., 277 Ill. App. 3d 429,
431 (1995). A timely postjudgment motion not only extends the trial court’s jurisdiction, but
also extends the appellate court’s potential jurisdiction, the time within which a notice of
appeal may be filed, until 30 days after the motion is decided. Sears v. Sears, 85 Ill. 2d 253,
258 (1981); Chen Ying Yang v. Chen, 283 Ill. App. 3d 80, 85 (1996). However, “ ‘[i]f an order
does not resolve every right, liability or matter raised, it must contain an express finding that
there is no just reason for delaying an appeal.’ ” (Internal quotation marks omitted.) Brown &
Kerr, Inc. v. American Stores Properties, Inc., 306 Ill. App. 3d 1023, 1028 (1999) (quoting
F.H. Prince & Co. v. Towers Financial Corp., 266 Ill. App. 3d 977, 983 (1994)); see also
Longo v. Globe Auto Recycling, Inc., 318 Ill. App. 3d 1028, 1033 (2001) (generally speaking,
“if an order does not resolve every right, liability or matter raised, it must contain an express
finding that there is no just reason for delaying an appeal” pursuant to Rule 304(a) (internal
quotation marks omitted)). A final judgment is “a determination by the court on the issues
presented by the pleadings which ascertains and fixes absolutely and finally the rights of the
parties in the lawsuit.” Flores v. Dugan, 91 Ill. 2d 108, 112 (1982).
¶ 36 In a dissolution context, we disagree with Pritza that a declaratory judgment order is final
and appealable when entered. Although finality might attach to a declaratory judgment order
on the date it is entered, that order is not appealable in a dissolution context absent Rule 304(a)
language. Best I, 228 Ill. 2d at 113. This is so because another claim is pending–the dissolution
claim. Id. at 115-18. Pritza, again, did not involve a marriage dissolution and is distinguishable
or incorrect in other respects. In dismissing the police officer’s declaratory judgment action,
the trial court also granted him leave to file an amended complaint, which he did. Unlike the
declaratory judgment in this case, the Pritza ruling was not a final order. Our supreme court
has noted that an “order dismissing a complaint with leave to amend is not a final judgment.”
Palm v. 2800 Lake Shore Drive Condominium Ass’n, 2013 IL 110505, ¶ 21. The Pritza ruling
did not absolutely fix the parties’ rights. Further, the opinion relied on Illinois Supreme Court
Rule 301 (eff. Feb. 1, 1994), which applies to judgments that dispose of entire actions. Here, in
contrast, the trial court’s April 8, 2011, order, as Best I instructs, did not dispose of the entire
action, because the dissolution claim remained pending. Best I, 228 Ill. 2d at 115-18.
¶ 37 In summary, the trial court’s April 8, 2011, declaratory judgment was not appealable until
the court entered its Rule 304(a) finding on October 31, 2012. Respondent filed his notice of
appeal within 30 days of that finding and, thus, this court has jurisdiction over this appeal.
Respondent’s filing of a motion to reconsider does not alter this conclusion.
¶ 38 B. The Trial Court’s Finding That the Agreement’s
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Attorney-Fee-Shifting Ban Was Valid as to Child-Related Issues
¶ 39 Turning to the merits, respondent argues first that the trial court erred in declaring valid the
premarital agreement’s attorney-fee-shifting ban as to child-related issues. He asserts that the
attorney-fee-shifting ban is not enforceable as to child-related issues, because it violates public
policy by discouraging both parents from pursuing litigation in their children’s best interests.
For the following reasons, we agree and reverse that portion of the court’s order.
¶ 40 A premarital agreement is a contract, and the rules of contract construction apply in
interpreting such agreements. Best II, 387 Ill. App. 3d at 949. Contract construction presents a
question of law, which we review de novo. Id. A contractual “fee-shifting” provision is an
exception to the general rule that a party is responsible for his or her own attorney fees. Bright
Horizons Children’s Centers, LLC v. Riverway Midwest II, LLC, 403 Ill. App. 3d 234, 254
(2010).
¶ 41 Preliminarily, we address petitioner’s arguments that respondent has not properly
preserved this claim for our review. Petitioner contends that respondent may not contest the
validity of the premarital agreement, because: (1) his argument is forfeited where, in his
declaratory judgment motion, he asked the trial court to determine the validity of the
agreement but he did not allege that it was invalid and unenforceable until 17 months after the
trial court determined that it was valid and enforceable; (2) it is waived where he waived
maintenance and attorney fees in his counterpetition for dissolution; (3) the doctrine of laches
applies, where respondent demonstrated unreasonable delay–17 months–in asserting his claim
that the agreement is invalid and unenforceable and as a result petitioner has suffered extreme
prejudice in that the arbitration has been delayed and stayed and petitioner is incurring
substantial attorney fees and costs; and (4) respondent cannot take a position on appeal that
contradicts the position he took in the trial court, where, according to petitioner, respondent (a)
“admitted that there was ‘no dispute’ as to the validity of the” agreement, (b) asked the court at
various times to enforce certain portions of the agreement, and (c) asked in his counterpetition
for dissolution that both parties be barred from receiving maintenance and pay his or her own
attorney fees. Petitioner also argues that, even if respondent did not waive his right to request
attorney fees, the attorney-fee-shifting ban is not ripe for this court’s review because it is
“waived” or “moot.” Further, she contends that the agreement’s provisions are severable and
that, even if the attorney-fee-shifting-ban is ripe for this court’s review, the agreement’s
remaining provisions are still valid and enforceable.
¶ 42 We reject petitioner’s argument that respondent’s claim is forfeited. She contends that he
did not question the validity or enforceability of the premarital agreement in his motion for
declaratory judgment. This is not so. In his motion, respondent alleged that there was an actual
controversy as to the validity and enforceability of the agreement.
¶ 43 As to waiver, in her dissolution petition, petitioner noted that the premarital agreement
barred the parties from seeking maintenance. However, in her prayer for relief, she did not
request such a ruling from the trial court. In respondent’s counterpetition for dissolution,
respondent requested in his prayer for relief that both parties be barred from receiving
maintenance, that they pay their own attorney fees, and for “such other and further relief as in
equity the court deemed just and proper.” However, he alleged in his counterpetition that “No
agreements have been entered into by the parties with respect to *** maintenance ***.” In
In re Marriage of Thornley, 361 Ill. App. 3d 1067, 1073-74 (2005), the court rejected the
husband’s argument that the trial court improperly awarded the wife maintenance. The
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husband argued that the wife’s petition specifically requested an order denying the parties
maintenance. The Thornley court noted that the wife had raised the issue of maintenance in her
petition, where she alleged that there was no agreement as to maintenance and where she
prayed for an order denying maintenance and for such other and further relief as the trial court
deemed just and equitable. The court held that the trial court had the authority to exceed the
relief that the wife had requested and exercised its discretion in doing so. Id. The court
explained that there was no formal maintenance waiver, but “only a suggestion to the trial
court in the pleadings that it was best to resolve the matter by a distribution of property rather
than an award of maintenance.” Id. at 1074. This suggestion “did not deprive the trial court of
its discretion to award maintenance. The parties were aware that an award of maintenance was
possible. Even if the pleadings were not technically correct, a pleading may be amended at any
time, before or after judgment, to conform the pleadings to the proofs. 735 ILCS 5/2-616(c)
(West 2004).” Id. Pursuant to Thornley, we reject petitioner’s argument that respondent’s
attorney-fee request is waived. See also Schlicher v. Board of Fire & Police Commissioners,
363 Ill. App. 3d 869, 873 (2006) (where a party was able to address all of the arguments it
sought to be deemed waived, court declined to invoke waiver).
¶ 44 Next, turning to laches, we note that a party may not raise the affirmative defense of laches,
which must be pleaded and proved, for the first time on appeal. See National Underground
Construction Co. v. E.A. Cox Co., 273 Ill. App. 3d 830, 834 (1995). Petitioner responds that
she raised the elements necessary to demonstrate laches in her emergency motion for an
immediate hearing on respondent’s motion to reconsider. The defense of laches requires a
showing that a litigant has exhibited unreasonable delay in asserting a claim and that the
opposing party was prejudiced as a result of that delay. In re Marriage of Smith, 347 Ill. App.
3d 395, 401 (2004). In her motion, petitioner did not explicitly invoke the laches defense.
Although she did argue that respondent’s actions showed a lack of diligence, she did not
address the prejudice element of the defense. Petitioner’s motion primarily addressed why
respondent’s motion did not sufficiently state an appropriate basis upon which to grant a
motion to reconsider, such as newly discovered evidence that was not available at the time of
the hearing, changes in the law, or errors in the court’s previous application of existing law.
See, e.g., Kaiser v. MEPC American Properties, Inc., 164 Ill. App. 3d 978, 987 (1987). Finally,
petitioner’s claim on appeal that she has incurred substantial attorney fees is not developed and
is unsupported by citation to supporting evidence in the record. Accordingly, we find it
forfeited. See, e.g., Velocity Investments, LLC v. Alston, 397 Ill. App. 3d 296, 297 (2010)
(court may find argument forfeited where it is undeveloped and where party provides no
citation to relevant authority); see also Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013).
¶ 45 We also reject petitioner’s argument that respondent is precluded from taking a position on
appeal that is inconsistent with the one he took in the trial court. Petitioner contends that
respondent admitted in his trial court filings that there was no dispute concerning the validity
of the premarital agreement. We reject this argument because it misrepresents and is
unsupported by the filings. In paragraph four of his declaratory judgment motion, respondent
asserted that there was a controversy concerning the validity and enforceability of the
agreement, either in whole or in part. In her response, petitioner admitted this allegation,
affirmatively alleged that the burden of proof on this issue, under Missouri law, rests with the
party seeking to invalidate the agreement, and argued that the relevant factors weigh in favor of
finding the contract valid under both Missouri and Illinois law. In his reply, respondent stated
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that, because petitioner admitted the allegation, no dispute existed as to it. We decline to
interpret respondent’s reply as an admission that there was no dispute as to the agreement’s
validity and enforceability (and, further, we reject that respondent now takes a contradictory
position). It is clear from the parties’ filings that they agreed that there is a controversy
concerning the agreement’s validity and enforceability.
¶ 46 We also reject petitioner’s argument that respondent is precluded from contesting the
agreement’s enforceability because he asked below that certain of its provisions be enforced.
In light of her assertion elsewhere in her brief to this court that the agreement’s severability
clause is enforceable, we find no merit to this argument. Finally, we find forfeited petitioner’s
argument that the fee-shifting claim is not ripe for this court to review. See Lebron v. Gottlieb
Memorial Hospital, 237 Ill. 2d 217, 253 (2010) (ripeness defense is subject to forfeiture if not
raised in the trial court).
¶ 47 Turning to the merits of respondent’s argument, the premarital agreement provides, in
section 4.2(d), that, if the parties’ marriage is dissolved or in the event of a legal separation:
“Neither party shall make any claim upon the other for costs or attorneys’ fees whether
pendente lite or final, incurred in seeking or obtaining any such order or decree,
notwithstanding any right to costs or attorneys’ fees a party otherwise may have
pursuant to any statute of any jurisdiction ***.”
¶ 48 Respondent contends that the broad wording of section 4.2(d) covers all fees incurred in a
dissolution proceeding, including those related to child support, custody, and visitation, and
that, in enforcing this provision (when it denied respondent’s motion for interim attorney fees),
the trial court erred. Respondent notes that a void order may be attacked at any time (such that
the court’s finding that respondent’s motion to reconsider was untimely was an improper basis
upon which to reject his argument). He further asserts that, since the attorney-fee-shifting ban
is against Illinois public policy, it is unnecessary to determine whether Missouri law controls,
and, alternatively, even if it does, no Missouri cases appear to hold to the contrary. Finally,
respondent contends that the agreement’s severability clause allows the court to strike the
attorney-fee-shifting ban as to child-related issues, while upholding the remainder of the
agreement as long as it fairly reflects the parties’ original understanding.
¶ 49 The Illinois Uniform Premarital Agreement Act (Act) (750 ILCS 10/1 et seq. (West
2012)), which applies to any prenuptial agreement executed on or after January 1, 1990,
provides that an antenuptial agreement is unenforceable only if the party against whom
enforcement is sought proves that: (1) he or she did not execute the agreement voluntarily; or
(2) the agreement was unconscionable when it was executed and, before execution of the
agreement, the party was not provided a fair and reasonable disclosure of the other’s property,
did not waive the right to such disclosure in writing, and did not have (and could not
reasonably have had) an adequate knowledge of the other’s property. 750 ILCS 10/7(a) (West
2012). “The Act omits the previous common law requirements that an enforceable agreement
must also be ‘fair and reasonable’ and must not result in an ‘unforeseen condition of penury’
for the party challenging the agreement. Thus, the Act expresses a public policy of enforcing
contracts as written absent evidence of fraud, duress, or lack of knowledge.” In re Estate of
Chaney, 2013 IL App (3d) 120565, ¶ 19 n.2. The statute does not allow a court to invalidate a
premarital agreement merely because it results in a disproportionate allocation of assets to one
of the parties.
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¶ 50 Here, Best II controls. In Best II, we considered, on remand from the supreme court,
whether the trial court correctly interpreted the attorney-fee clause of the parties’ premarital
agreement. That clause barred attorney-fee shifting in any court proceeding “ ‘of and
concerning [their] marital relationship or dissolution thereof.’ ” Best II, 387 Ill. App. 3d at 949.
We held that child support fell within the foregoing category. Id. We determined that litigation
concerning the dissolution of the parties’ marriage encompassed child support and that, thus,
the parties’ agreement was intended to include litigation of child support issues. Id. at 950-51.
We further held that the fee-shifting ban in the agreement was not enforceable as to
child-related issues because it “violate[d] public policy by discouraging both parents from
pursuing litigation in their child’s best interests.” Id. at 951. We noted that the Act expresses a
public policy that “ ‘[t]he right of a child to support may not be adversely affected by a
premarital agreement.’ 750 ILCS 10/4(b) (West 2006).” Id. at 954. Relying on this language
and case law, we concluded that the fee-shifting ban was unenforceable because it violated this
public policy. Thus, “[s]o long as [the wife] is able to demonstrate an inability to pay attorney
fees (and [the husband’s] ability to pay them), the agreement will not prevent her from
recovering them.” Id. We affirmed the trial court’s declaration “that the premarital agreement
does not apply to attorney fees relating to litigation of child-related issues.” Id.
¶ 51 Pursuant to Best II, we hold that the agreement’s attorney-fee-shifting ban as to
child-related issues violates Illinois public policy and is unenforceable as to those issues.
Because it violates Illinois public policy, we need not determine whether Missouri law
controls. See Hussein v. L.A. Fitness International, L.L.C., 2013 IL App (1st) 121426, ¶ 11 (in
Illinois, a choice-of-law provision is given effect where there is some reasonable relationship
between the chosen forum and the parties or transaction and it is not dangerous, inconvenient,
immoral, or contrary to Illinois public policy); Freeman v. Williamson, 383 Ill. App. 3d 933,
938 (2008) (“So long as a choice of law provision does not contravene Illinois public policy
and there is some relationship between the chosen forum and the parties to the transaction, an
express choice of law provision will be given full effect.”); see also Thomas v. Guardsmark,
Inc., 381 F.3d 701, 706 (7th Cir. 2004) (“Illinois courts respect a contractual choice-of-law
clause if the contract is valid, and the law chosen is not contrary to Illinois’s fundamental
public policy.”).
¶ 52 Finally, we note again that neither party challenges the agreement’s severability clause. A
contractual severability clause “strengthens the case for the severance of unenforceable
provisions because it indicates that the parties intended for the lawful portions of the contract
to be enforced in the absence of the unlawful portions.” Abbott-Interfast Corp. v. Harkabus,
250 Ill. App. 3d 13, 21 (1993). The parties argue that, if we conclude that the attorney-
fee-shifting ban as to child-related issues violates public policy and is unenforceable, the
remainder of the agreement, pursuant to the severability clause, is unaffected by this holding.
We agree.
In summary, we reverse the trial court’s finding that the attorney-fee-shifting ban was valid
and enforceable as to child-related issues.
¶ 53 C. Denial of Motion to Reconsider for Untimeliness and Lack of New Facts
¶ 54 Next, respondent argues that the trial court erred in denying his motion to reconsider for
untimeliness and lack of new facts. He contends that the trial court applied the wrong standard
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to assess his motion, focusing only on the motion’s timeliness and alleged lack of new facts.
For the following reasons, we reject this argument.
¶ 55 The purpose of a motion to reconsider “is to bring to the trial court’s attention newly
discovered evidence not available at the time of the first hearing, changes in the law, or errors
in the previous application of existing law to the facts at hand.” River Village I, LLC v. Central
Insurance Cos., 396 Ill. App. 3d 480, 492 (2009). Generally, a trial court’s decision to grant or
deny a motion to reconsider will not be reversed absent an abuse of discretion. General Motors
Acceptance Corp. v. Stoval, 374 Ill. App. 3d 1064, 1078 (2007). However, where the motion
was based only on the trial court’s application or purported misapplication of existing law,
rather than on new facts or legal theories not presented at trial, a reviewing court reviews de
novo the trial court’s decision to grant or deny the motion, Bank of America, N.A. v. Ebro
Foods, Inc., 409 Ill. App. 3d 704, 709 (2011). Here, we conclude that, with the exception of the
attorney-fee-shifting ban discussed above, the trial court, under either standard of review, did
not err in denying respondent’s motion.
¶ 56 Respondent’s timeliness argument essentially addresses the jurisdictional issue we
addressed above; thus, we need not revisit it. As to his argument concerning the lack of new
facts, respondent contends that in denying his motion the trial court relied on its
misunderstanding that a motion to reconsider must add new facts. In addition, he contends that
his motion raised issues concerning: (1) the trial court’s erroneous application of existing law,
namely, its upholding of the attorney-fee-shifting ban and the premarital agreement as a whole
in light of Illinois and Missouri law concerning the conscionability of such agreements; and (2)
newly discovered evidence, namely, petitioner’s July 10, 2012, deposition statements
concerning her alleged nondisclosure of McKelvey Rental.
¶ 57 Again, we discussed the fee-shifting ban above. We otherwise reject his argument that the
motion to reconsider should have been granted on the basis of his unconscionability allegations
(which he couches as a misapplication-of-existing-law argument) and the alleged newly
discovered evidence as to petitioner’s concealment of assets. Respondent’s attempt to
characterize his unconscionability allegations as raising a claim that the trial court misapplied
existing law fails because the allegations merely constitute alleged newly discovered (factual)
evidence. Viewing it in the proper light, we reject respondent’s argument that he presented
newly discovered evidence warranting the reversal of the trial court’s declaration that the
agreement is valid and enforceable. His allegations concerning the execution of the
agreement–namely, that he signed the agreement under duress and coercion and that petitioner
did not fully disclose her assets–consist of evidence that was available to him when he filed his
declaratory judgment motion and in no respect constitute newly discovered evidence. “When a
movant seeks reconsideration based on newly discovered evidence, a ‘party must show that the
newly discovered evidence existed before the initial hearing but had not yet been discovered or
was otherwise unobtainable.’ ” Simmons v. Reichardt, 406 Ill. App. 3d 317, 324 (2010)
(quoting Stringer v. Packaging Corp. of America, 351 Ill. App. 3d 1135, 1141 (2004)).
¶ 58 Finally, as to his specific claim that petitioner concealed assets, respondent’s argument
again fails on the basis that he did not present newly discovered evidence. The crux of his
argument is that petitioner’s comprehensive financial statement, filed in support of her 2010
dissolution petition, disclosed that she had an interest in McKelvey Rental that she had
acquired in 1992 (i.e., before the parties’ agreement and marriage). She subsequently stated
that she was mistaken about the acquisition date and supported this claim with a sworn
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affidavit from Schnieders, who averred that the entity was formed in 2002 (i.e., after the
agreement and marriage). Respondent contends that the newly discovered evidence consists of
petitioner’s failure to explain (at her July 10, 2012, deposition) the agreement’s nondisclosure
of McKelvey Rental. However, the proper focus is on the comprehensive financial statement,
wherein the alleged concealment is brought to the fore. That statement was filed in 2010, well
before respondent’s March 2011 declaratory judgment motion (and the trial court’s ruling
thereon the following month). Thus, respondent could have brought this alleged concealment
to light in his request for a declaratory judgment, but he did not. Accordingly, we reject his
argument that in denying his motion to reconsider the trial court erred on the basis of newly
discovered evidence of concealment.
¶ 59 In summary, with the exception of the attorney-fee-shifting ban discussed above, the trial
court did not err in denying respondent’s motion to reconsider.
¶ 60 D. Premarital Agreement’s Validity and Enforceability
¶ 61 Respondent’s final argument is that the trial court erred in declaring the premarital
agreement valid and enforceable. Specifically, he asserts that: (1) under Missouri law, the
agreement is unconscionable and unfair and should be set aside because it was drafted by
petitioner’s attorney, respondent did not understand its terms and was not represented by
counsel, it was signed under exceedingly coercive circumstances (i.e., two hours before the
wedding and as a condition thereof), it failed to disclose petitioner’s interest in McKelvey
Rental (which she acquired in 1992), and its terms are one-sided in petitioner’s favor; and (2)
under Illinois law, the agreement is unconscionable and should be set aside because respondent
signed it under duress and coercion, where he was forced to sign it two hours before the
wedding under threat that the wedding would be cancelled, he did not read the document or
understand its terms or obtain legal advice, and he was not provided with fair and reasonable
disclosure of petitioner’s property.
¶ 62 We conclude that, with the exception of the attorney-fee-shifting ban as to child-related
issues discussed above, the trial court did not err in finding that the premarital agreement was
valid and enforceable. Respondent initially raised the unconscionability/coercion argument in
his motion to reconsider. Because he did not raise it in his declaratory judgment motion,
respondent has forfeited the argument and we decline to address it in assessing whether the
trial court’s initial ruling was erroneous. Accordingly, we uphold the trial court’s April 8,
2011, order.
¶ 63 E. Sanctions
¶ 64 Finally, we address petitioner’s request that we assess sanctions against respondent
pursuant to Illinois Supreme Court Rule 375(b) (eff. Feb. 1, 1994) (appeals not taken in good
faith and frivolous appeals). She contends that respondent’s arguments are not reasonably
well-grounded in fact and not warranted by existing law. Given that we have not rejected all of
his claims, we decline petitioner’s request to impose sanctions against respondent.
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¶ 65 III. CONCLUSION
¶ 66 For the foregoing reasons, the judgment of the circuit court of Kane County is affirmed in
part and reversed in part and the cause is remanded for further proceedings consistent with this
opinion.
¶ 67 Affirmed in part and reversed in part; cause remanded.
¶ 68 JUSTICE HUTCHINSON, dissenting.
¶ 69 The purpose of a declaratory judgment is to “afford security and relief against uncertainty
so as to avoid potential litigation.” First American Bank, Rockford, N.A. v. Netsch, 166 Ill. 2d
165, 174 (1995). The majority’s holding today promotes uncertainty over certainty. Parties
will now be able to revisit a declaratory judgment 17 months, or 17 years, after that order was
entered. In other words, after a trial court enters a declaratory judgment, parties will be left to
speculate as to whether a trial court will later add language pursuant to Rule 304(a). If such
language is added, the parties will then be placed in the exact same position they were in,
whether it was 17 months or 17 years, before the trial court entered the judgment and thus will
again be uncertain as to their respective rights and obligations. As a result, the holding in this
case directly undermines the spirit and the intent of the declaratory judgment statute.
Therefore, I would dismiss this appeal due to a lack of jurisdiction.
¶ 70 Section 2-701(a) of the Code of Civil Procedure provides:
“No action or proceeding is open to objection on the ground that a merely declaratory
judgment or order is sought thereby. The court may, in cases of actual controversy,
make binding declarations of rights, having the force of final judgments, whether or not
any consequential relief is or could be claimed, including the determination *** of any
*** contract or other written instrument, and a declaration of the rights of the parties
interested.” 735 ILCS 5/2-701(a) (West 2010).
The declaratory judgment statute enables a court to take hold of a controversy one step sooner
than normal. Beahringer v. Page, 204 Ill. 2d 363, 373 (2003). “ ‘[T]hat is, after the dispute has
arisen, but before steps are taken which give rise to claims for damages or other relief. The
parties to the dispute can then learn the consequences of their actions before acting.’ ” Kaske v.
City of Rockford, 96 Ill. 2d 298, 306 (1983) (quoting Buege v. Lee, 56 Ill. App. 3d 793, 798
(1978)). The declaratory judgment procedure was designed to settle and fix litigants’ rights
before there has been an irrevocable change in their respective positions that would jeopardize
their claims of right. Beahringer, 204 Ill. 2d at 373. Thus, as noted, the remedy is intended to
“afford security and relief against uncertainty so as to avoid potential litigation.” Netsch, 166
Ill. 2d at 174.
¶ 71 Because the declaratory judgment statute was designed to promote certainty and relief
against uncertainty, I cannot agree with the majority that respondent could appeal from the trial
court’s declaratory judgment 17 months after the trial court entered that order. Respondent
filed a motion for a declaratory judgment pursuant to section 2-701 on March 3, 2011.
Respondent’s motion did not cite any other statutory provision. The only relief respondent
requested was for the trial court to “declare the rights of the parties pursuant to the [premarital
agreement] *** and determinate its applicability *** to the dissolution proceeding.” On April
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8, 2011, the trial court ruled on respondent’s motion and issued a judgment. Respondent took
no action regarding the trial court’s judgment until October 1, 2012, when he filed a motion to
reconsider. Respondent’s motion to reconsider raised various arguments and asked the trial
court to vacate its judgment. In other words, respondent’s motion to reconsider asked the trial
court to bring the parties back 17 months to step one and place them in the exact same position
that they were in when respondent filed his motion for a declaratory judgment in March 2011,
and they were once again uncertain as to their respective rights and obligations under the
premarital agreement.
¶ 72 The majority relies on our supreme court’s ruling in Best I to conclude that we have
jurisdiction. Supra ¶¶ 31-32. In Best I, our supreme court held that a reviewing court could
consider the validity and effect of a declaratory judgment order, even if the trial court entered
that order before entering a final dissolution order, so long as the prerequisites of the
declaratory judgment statute were met. Best I, 228 Ill. 2d at 119. The court in Best I reasoned
that a dissolution proceeding and a request for declaratory relief under the declaratory
judgment statute have “distinctly different statutory bases” and “were not so closely related
that they must be deemed part of a single claim for relief.” Id. at 115.
¶ 73 As I read Best I, our supreme court indicated that the trial court entered language pursuant
to Rule 304(a) when it initially ruled on the husband’s motion for a declaratory judgment. Best
I, 228 Ill. 2d at 110. I note that the opinion is silent as to whether the husband appealed from the
trial court’s declaratory judgment order within 30 days of that order’s entry. The court in Best I
did not speak to whether a party could request adding Rule 304(a) language to a declaratory
judgment order 17 months after the trial court entered that order. Thus, I do not read Best I as
broadly as the majority does and do not believe that it is controlling under the specific
circumstances of this case.
¶ 74 Rather, I maintain that the rationale and holding in Pritza are analogous to this case. In
Pritza, the plaintiff filed an action for a declaratory judgment, seeking uninsured motorist
coverage from the Illinois Municipal League Risk Management Association (IMLRMA) and
damages resulting from the IMLRMA’s withholding of benefits. Pritza, 405 Ill. App. 3d at
637. On October 2, 2008, the trial court dismissed the plaintiff’s complaint, ruling that the
vehicle driven was not uninsured. The trial court granted the plaintiff leave to file an amended
complaint, rendering the dismissal nonfinal. See id. Thereafter, the plaintiff filed an amended
complaint, seeking reformation of the IMLRMA agreement to include underinsured motorist
coverage. Id. On December 8, 2009, the trial court granted summary judgment in the
defendants’ favor. Id. at 638.
¶ 75 The plaintiff attempted to appeal both the trial court’s declaratory judgment order and its
summary judgment. The reviewing court concluded that it did not have jurisdiction over the
declaratory judgment order. Id. at 639. In reaching its determination, the reviewing court
expressly rejected the plaintiff’s argument that the declaratory judgment order was not
immediately appealable because the order did not contain language pursuant to Rule 304(a).
Id. The court noted that “it is well established that a declaratory judgment has the force of a
final judgment with respect to the rights of the parties subject to that judgment.” (Emphases
added.) Id. Quoting section 2-701(a) of the Code, the court noted that the finality of a
declaratory judgment was expressly reflected in the plain language of the statute, which
provided that a court may make a binding declaration “ ‘having the force of final judgments.’ ”
(Emphasis in original.) Id. (quoting 735 ILCS 5/2-701(a) (West 2008)). The court noted that
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finality attached to a declaratory judgment on the date the judgment was entered and that the
trial court’s declaratory judgment order “fixed absolutely the rights of plaintiff and defendants
on plaintiff’s claim for declaratory judgment for uninsured motorist coverage.” Id. at 640.
Thus, the plaintiff was required to appeal that order within 30 days. Id.
¶ 76 The reasoning in Pritza is directly applicable to this case. Here, respondent is substantively
making the exact argument that the court in Pritza rejected; that is, that the trial court’s ruling
on his declaratory judgment action was not immediately appealable because it did not contain
Rule 304(a) language. I recognize, as the majority emphasizes, that Pritza involved a
declaratory judgment with respect to uninsured motorist coverage, whereas this case involves a
declaratory judgment and a dissolution proceeding. However, the legal principle is sound with
respect to the finality of a declaratory judgment order.
¶ 77 The essence of the holding in Pritza is to treat a declaratory judgment order as being
immediately appealable. Treating such orders as final and immediately appealable is consistent
with the spirit and purpose of the declaratory judgment statute. It is my position that, not only
did the trial court err when it considered respondent’s request to revisit the declaratory
judgment 17 months later, this court should not be entertaining an appeal based on this
procedure. Thus, I submit that a declaratory judgment is final under Illinois Supreme Court
Rule 303 (see Pritza, 405 Ill. App. 3d at 640 (quoting Ill. S. Ct. R. 303 (eff. May 30, 2008)))
and that, when part of a larger lawsuit, be treated as immediately appealable under Illinois
Supreme Court Rule 304(b) (eff. Feb. 26, 2010). Therefore, I respectfully dissent.
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