Illinois Official Reports
Appellate Court
In re Marriage of Harris, 2015 IL App (2d) 140616
Appellate Court In re MARRIAGE OF ALAN HARRIS, Petitioner and
Caption Counterrespondent-Appellee, and HEATHER HARRIS, n/k/a
Heather McNabb, Respondent and Counterpetitioner-Appellant.
District & No. Second District
Docket No. 2-14-0616
Filed June 29, 2015
Decision Under Appeal from the Circuit Court of Kane County, No. 12-D-1164; the
Review Hon. Kathryn D. Karayannis, Judge, presiding.
Judgment Reversed and remanded.
Counsel on Randy K. Johnson, of Law Office of Randy K. Johnson, of West
Appeal Dundee, for appellant.
No brief filed for appellee.
Panel JUSTICE ZENOFF delivered the judgment of the court, with opinion.
Justices McLaren and Hudson concurred in the judgment and opinion.
OPINION
¶1 Heather Harris, n/k/a Heather McNabb, the respondent and counterpetitioner in this
dissolution-of-marriage case, appeals after the court denied as untimely her motion to
reconsider an order awarding custody of the couple’s child to Alan Harris, the petitioner and
counterrespondent. Heather filed her motion within 30 days of the order’s entry and before the
court entered the final dissolution judgment. Because the relevant final and appealable order
under Illinois Supreme Court Rule 304(b)(6) (eff. Feb. 26, 2010) was the predissolution order
that finally determined child custody, of which Heather timely sought reconsideration, we
reverse the ruling that the motion was untimely and remand the matter for its proper
consideration.
¶2 I. BACKGROUND
¶3 On August 10, 2012, Alan filed a petition seeking the dissolution of his marriage to
Heather. The parties had one child, born May 7, 2011. Alan sought permanent and temporary
custody of the child. Heather filed a response and a counterpetition. She sought custody of the
child in both.
¶4 The contested matters were tried over the course of several days from July to November
2013. On November 20, 2013, the court gave an oral ruling as to most matters and asked
counsel for Alan to “prepare an order, a judgment, to conform with [its] ruling.” It ruled on
most of the financial issues, but postponed ruling on the division of guardian ad litem fees. It
discussed the factors relevant to its custody determination at length, ultimately granting full
custody to Alan. It asked the parties to work out certain details of changing residences and
visitation, but ordered that the transition of custody start immediately.
¶5 On November 25, 2013, the court entered a written order conforming to the November 20
oral ruling; the order provided that “[u]ntil the Judgment of Dissolution of Marriage is entered,
the parties will be bound by the terms in this order.” It further provided for a transition for the
child starting on November 20, 2013. Finally, it provided that Alan’s attorney would draft a
dissolution judgment conforming to the written and oral orders, with any disputed terms to be
resolved on December 9, 2013.
¶6 On December 9, 2013, Heather filed a written motion for reconsideration of the “oral
judgment entered on November 20, 2013.” She argued that the court had not given proper
weight to factors including, for instance, the closeness of her relationship with the child. She
asked that the court grant custody to her.
¶7 On December 18, 2013, the court entered a judgment for dissolution of marriage. Alan
received permanent sole custody of the child.
¶8 Also on December 18, 2013, the court set a date of January 29, 2014, for a hearing on
“Defendant’s Motion to Reconsider.” Alan filed a response to the motion on January 8, 2014.
Heather filed an “Addendum/Supplement to [the] Motion to Reconsider.”
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¶9 On April 16, 2014, the court ordered the parties to brief the issue of whether Heather had
filed a timely postjudgment motion. On May 23, 2014, the court entered an order in which it
concluded that there was no proper postjudgment motion. It described the order of November
25, 2013, as a “temporary” one and ruled that Heather’s motion to reconsider had not been
constructively refiled after the court entered the dissolution judgment. On June 20, 2014,
Heather filed a notice of appeal.
¶ 10 II. ANALYSIS
¶ 11 On appeal, Heather argues that the trial court improperly ruled that her motion to
reconsider was premature and asks us to vacate the ruling and remand the matter for
consideration of her motion on its merits. Citing In re Estate of Pellico, 394 Ill. App. 3d 1052,
1065-67 (2009), she asserts that her appeal is timely because this court always has “jurisdiction
to review a circuit court’s dismissal for lack of jurisdiction.” Alan has not filed an appellate
brief. However, as the merits of the appeal are simple, we may reach them. First Capitol
Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976).
¶ 12 We first address the issue of our own jurisdiction. We conclude that we have jurisdiction,
but not for the reason that Heather sets out. We further conclude that the question of whether
we have jurisdiction is inseparable from the question of the timeliness of Heather’s motion to
reconsider, so that by resolving the issue of jurisdiction we resolve the whole of the appeal. We
note our duty to address whether we have jurisdiction even when no party raises the issue. E.g.,
Department of Healthcare & Family Services v. Cortez, 2012 IL App (2d) 120502, ¶ 7.
¶ 13 The authority that Heather cites that recognizes our authority to review a
lack-of-jurisdiction-based dismissal of an initial pleading does not address our authority to
review a lack-of-jurisdiction-based dismissal of a motion to reconsider. With exceptions not
relevant here, this court has jurisdiction to consider appeals only from final orders. See Ill. S.
Ct. R. 301 (eff. Feb. 1, 1994) (“Every final judgment of a circuit court in a civil case is
appealable as of right.”). Further, “[a]n order denying a post-judgment motion is not itself a
judgment, *** and is not an appealable order.” Sears v. Sears, 85 Ill. 2d 253, 258 (1981).
Instead, the denial of a proper postjudgment motion is reviewable as part of the review of the
final order against which the motion is directed. See Sears, 85 Ill. 2d at 258. Thus, a case such
as Pellico, which recognizes our jurisdiction to review a final order–the dismissal of a
complaint for lack of jurisdiction–in no way recognizes an independent ability to review the
denial of a postjudgment motion.
¶ 14 That the denial of Heather’s postjudgment motion is not independently reviewable leaves
open that the denial is reviewable as described above: as an order denying a properly filed
postjudgment motion reviewable in connection with an appeal of the final order. Both Heather
and the trial court appear to have assumed that the only relevant final order was the judgment
for dissolution of marriage. That, as we explain, is not correct. This is so because the
child-custody order of November 25, 2013, was an independently appealable final order under
Rule 304(b)(6).
¶ 15 For the better part of three decades, the rule in Illinois was that a dissolution action raised
only a single claim. See In re Marriage of Leopando, 96 Ill. 2d 114, 119 (1983) (establishing
the single-claim rule). In particular, under Leopando, an order deciding permanent custody of a
child did not decide a separate claim in a dissolution action; the order was thus interlocutory
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and could be immediately appealed only as a matter of the court’s discretion under Illinois
Supreme Court Rule 306(a)(1)(v) (eff. July 1, 1982). Leopando, 96 Ill. 2d at 117-20.
¶ 16 The rule in Leopando has now been changed. As of February 26, 2010, the supreme court
caused the rule to be superseded. Rule 304(b)(6), added on that date, now provides that among
those judgments immediately appealable without a special finding by the court are “custody
judgment[s] entered pursuant to the Illinois Marriage and Dissolution of Marriage Act (750
ILCS 5/101 et seq.).” Ill. S. Ct. R. 304(b)(6) (eff. Feb. 26, 2010). The committee comments
explain that, under Rule 304(b)(6), “a child custody judgment, even when it is entered prior to
the resolution of other matters involved in the dissolution proceeding such as property
distribution and support, shall be treated as a distinct claim and shall be appealable without a
special finding.” Ill. S. Ct. R. 304, Committee Comments (adopted Feb. 26, 2010). In other
words, a permanent custody order is a final order, appealable without regard to the pendency of
remaining issues in the dissolution proceeding. The comments further suggest that the
applicability of Rule 304(b)(6) is limited to permanent custody determinations “as
distinguished from any temporary or interim orders of custody entered pursuant to section 603
of the Act (750 ILCS 5/603) and any orders modifying child custody subsequent to the
dissolution of a marriage.” Ill. S. Ct. R. 304, Committee Comments (adopted Feb. 26, 2010).
¶ 17 The order of November 25 was a final custody order under Rule 304(b)(6). To be sure, the
trial court referred to the November 25 order as “temporary.” That characterization was,
however, inaccurate as to the substance of the custody determination, and we deem the order
final despite the court’s characterization. See In re Marriage of Lawrence, 146 Ill. App. 3d
307, 309-10 (1986) (looking to the substance of a maintenance order, not to the trial court’s
characterization of it as “temporary,” in determining the order’s reviewability). In the
November 25 order, the court specifically provided that the same custody determination was to
appear in the dissolution judgment, so that the court intended that there be no difference in
substance between the November 25 custody determination and that in the dissolution
judgment. If anything in the November 25 order had a temporary aspect, it was in the
provisions for the child’s transition to living with Alan. The existence of those provisions only
emphasizes that the order contemplated an immediate change that the court did not
contemplate reversing.
¶ 18 We note that Heather’s December 9 motion sought reconsideration of the “oral judgment
entered on November 20, 2013,” and not the written order of November 25. That did not
change its effectiveness as a postjudgment motion. This is so despite the provision of Illinois
Supreme Court Rule 272 (eff. Nov. 1, 1990) that “[i]f at the time of announcing final judgment
the judge requires the submission of a form of written judgment *** the judgment becomes
final only when the signed judgment is filed.” The substance of a proper postjudgment motion
is simply a request for relief from the judgment: “to qualify as a postjudgment motion, a
motion must request at least one of the forms of relief specified in section 2-1203 of the Code
of Civil Procedure (735 ILCS 5/2-1203 (West 2006)), namely, rehearing, retrial, modification,
vacation, or other relief directed against the judgment.” In re Marriage of Valkiunas, 389 Ill.
App. 3d 965, 968 (2008). Heather’s motion was filed after the final order of November 25, and,
despite referencing the oral order, it was directed against the final order, in that it sought a
change in the custody determination. That made it a postjudgment motion directed against the
final custody determination.
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¶ 19 In sum, the relevant final judgment here was the November 25 written order. Heather’s
December 9 motion to reconsider was filed within 30 days after that judgment and directed
against it, so that it was a proper postjudgment motion. Illinois Supreme Court Rule 303(a)(1)
(eff. May 30, 2008) provides that a party must file his or her notice of appeal either (1) within
30 days after the entry of a final judgment, or (2) if a timely postjudgment motion directed
against the judgment is filed, within 30 days after the order disposing of the postjudgment
motion. Heather filed her appeal within 30 days after the court’s ruling on her motion. As a
result, Heather’s appeal was timely and we have jurisdiction to hold that, because her motion
was proper, the court erred in ruling otherwise.
¶ 20 III. CONCLUSION
¶ 21 For the reasons stated, we reverse the court’s ruling that Heather’s motion was untimely
and remand the matter for consideration of the motion on its merits.
¶ 22 Reversed and remanded.
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