specially concurring:
I agree with the majority’s holding on the merits of this appeal.
I write separately because I disagree with the majority’s discussion of the nature of postdissolution petitions as well as its conclusion that the recent amendment to Rule 303(a) applies retroactively to this appeal. I begin with the former point.
The majority decision adequately lays out the facts of the relevant cases, and I need not recapitulate those facts here. It suffices to say that Carr treats successive postdissolution petitions (the husband’s petition to change child support and the wife’s petition for contribution to attorney fees) as separate actions, each appealable after a final order without Rule 304(a) language, while Alyassir criticizes this rule on the ground that the two petitions in Carr constituted claims in a single action and thus could not be appealed separately without Rule 304(a) language (see Alyassir, 335 Ill. App. 3d at 1000). Thus, “[tjhere is an apparent conflict *** as to whether Rule 304(a) certification is required to separately appeal an order disposing of postdecree matters, where at the time of such order’s entry other postdecree matters remain pending.” In re Marriage of Ehgartner-Shachter, 366 Ill. App. 3d 278, 284 (2006). (In light of the amendment to Rule 303, the conflict is now more aptly characterized as whether Rule 304(a) certification is required to immediately separately appeal such an order.)
If Alyassir had not criticized Carr as described above, I might have reconciled the two cases on the basis that, in Alyassir, the wife filed a two-count postdissolution petition and appealed after only one count had been decided (and without Rule 304(a) language), while, in Carr, the husband filed a petition to change child support almost a year before the wife filed a petition for contribution to attorney fees and the wife appealed after the trial court had ruled on the first but not the second petition. Accordingly, Alyassir presented two claims in one postdissolution action (which require Rule 304(a) language for their judgments to be separately appealable), while Carr presented two actions (which do not require Rule 304(a) language for their judgments to be separately appealable). I would also reconcile Colangelo, in which the wife concurrently filed two petitions, on the ground that it implicitly treated the two petitions as the functional equivalent of a two-count petition and therefore as two claims in a single action. However, Alyassir’s criticism of Carr forecloses this possibility. Further, my view does nothing to reconcile Carr with Piccione (see 376 Ill. App. 3d at 741) or with subsequent cases that follow Alyassir’s criticism to hold that judgments on separately filed petitions cannot be appealed without Rule 304(a) language (see In re Marriage of Gaudio, 368 Ill. App. 3d 153, 156-58 (2006)).
There is a split in the appellate court as to how to treat postdissolution petitions. Some cases (e.g., Alyassir) consider separately filed postdissolution petitions to be claims within a single postdissolution action, while others (e.g., Carr) consider each postdissolution petition to initiate a separate postdissolution action. There are policy considerations, hinging primarily on whether the trial court or the litigants should control the appealability of judgments on postdissolution petitions, to support either view.4 I would resolve this conflict by following the Carr view and overruling Gaudio as well as Alyassir’s criticism of Carr.
My primary reason for this approach is that the Alyassir rule must view the first-filed pending postdissolution petition as starting a new action and any petitions filed before the first is resolved as claims within the new postdissolution action. The only legal basis I can discern for this view is that the Alyassir rule logically assumes that a trial court implicitly combines into one action any postdissolution petitions filed before the trial court issues a final order on all pending petitions. (Subsequent postdissolution petitions would initiate yet another action.) In my view the Carr rule relies less on implication than on the trial court’s actual intent in entering an order, and it sufficiently controls piecemeal appeals. While I would follow Carr, though, I recognize that the Alyassir approach has considerable merit and, as a practical matter, may be more workable. In short, both views are reasonable, but I would follow Carr because, even if it is weaker as a matter of policy, it seems to rest on stronger legal ground.
The majority follows neither tack. Instead, based on its reading of Kozloff, it invents a third option, under which each postdissolution petition raises a claim in the original dissolution action. I disagree with the majority’s approach because it misapplies precedent and is unworkable.
The majority reads Kozloff as decreeing broadly that postdissolution petitions raise new claims in the original dissolution action, even for jurisdictional purposes. I would read Kozloff much more narrowly. As the majority notes, Kozloff did not address any jurisdictional issues, but, rather, it arose in the context of a trial court’s denial of a motion for change of venue. The husband argued that he should have been allowed a change of venue as of right on his postdissolution petition, since the judge, who had presided over previous petitions, had yet to make a substantive ruling on the pending petition. Kozloff, 101 Ill. 2d at 529-30. “[T]he appellate court ruled that each post-decree petition constituted a new proceeding for venue purposes” (emphasis added) and thus that the husband should have been allowed a change of venue as of right. Kozloff, 101 Ill. 2d at 529-30. The supreme court held that it “[could not] accept the appellate court position, because *** it would lead to a serious abuse of the venue act.” Kozloff, 101 Ill. 2d at 530. The supreme court went on to describe the possible abuses of the venue act that the appellate court rule would allow and then stated that, “Accordingly, *** post-decree petitions do not constitute new actions, but merely continuations of the dissolution proceeding, and a substantive ruling on one petition will preclude a change of venue as of right on another.” Kozloff, 101 Ill. 2d at 531.
In the context of the entire discussion in Kozloff, I read the statement that “post-decree petitions do not constitute new actions, but merely continuations of the dissolution proceedings” to apply only in the change of venue context, and I do not read it as broadly extending to jurisdictional issues.
The majority notes that, while Kozloff arose in the posture of an appeal of a ruling on a motion to substitute judge, there is nothing in the decision to limit it only to substitutions of judges. In the absence of such limitation, the majority claims that it will not read any limitation into the decision. 376 Ill. App. 3d at 738. Curiously, the majority ignores this self-imposed stricture in considering the supreme court’s later decision in Purdy, 112 Ill. 2d 1.
To the extent the supreme court’s holding in Kozloff did in fact indicate that a postdissolution petition raises a claim in the original proceeding, I believe its later decision in Purdy effectively overruled that holding. The court in Purdy reasoned:
“The issue of custody arises [in Purdy] not as a matter ancillary to the issue of dissolution or any other issue, but rather as a result of the father’s post-dissolution petition for a change of custody. ***
Unlike the situation in Leopando in which the cause of action was a petition for dissolution of marriage and only the issue of custody had been decided[5], here the cause of action is a petition for a change of custody and all related claims have been decided except for the extent of the mother’s summer visitation, a matter that is always subject to revision. Thus, the kind of piecemeal litigation that the decision in Leopando was intended to prevent cannot occur in this context.” (Emphasis in original.) Purdy, 112 Ill. 2d at 5.
The majority relies on the statement from Kozloff that “post-decree petitions do not constitute new actions, but merely continuations of the dissolution proceeding.” However, Purdy’s statement that, in Purdy, “the cause of action [was] a petition for a change in custody,” directly contradicts the statement from Kozloff. The majority dismisses this contradiction by parsing Purdy’s use of the phrase “cause of action” to mean “claim.” 376 Ill. App. 3d at 740. However, in the Black’s Law Dictionary entry the majority references, I find several definitions for the phrase “cause of action,” including “[ljoosely, a lawsuit.” Black’s Law Dictionary 214 (7th ed. 1999). I further note that the word “cause” can be meant to refer to “[a]n action or suit.” Ballentine’s Law Dictionary 182 (3d ed. 1969). The majority’s interpretation of Purdy is hardly ironclad. The majority also delves deep into the context in which Purdy made its reference to “cause of action” (see 376 Ill. App. 3d at 740-41), but, unfortunately, it fails to take the same cautious approach when it interprets Kozloff.
Purdy stated that “[t]he issue of custody [arose] [in Purdy] not as a matter ancillary to the issue of dissolution or any other issue, but rather as a result of the father’s post-dissolution petition for a change of custody.” Purdy, 112 Ill. 2d at 5. To me, this language means that a postdissolution petition does not raise a claim ancillary to a dissolution claim or action, but rather a separate action. Thus, I disagree with the majority when it says that Purdy is consistent with Kozloff. Reading the relevant statements from Kozloff and Purdy in their full contexts, I infer that the supreme court did not intend the statement in Kozloff to apply to jurisdictional issues but did intend the statement in Purdy to apply to such issues.
The majority dismisses Purdy on the basis that Purdy’s “core holding” is irrelevant here. 376 Ill. App. 3d at 739. I cannot disagree: to me, Purdy’s only relevance to this case is that it demonstrates the majority’s error in invoking Kozloff. (Purdy may instruct us as to whether an initial postdissolution petition is a new action, but it does not instruct us on whether a second one is.) However, as I note above, the “core holding” in Kozloff is also irrelevant here.
The majority also emphasizes that “Purdy does not refer in any way to Kozloff s holding.” 376 Ill. App. 3d at 740. I do not see the fact that Purdy did not mention Kozloff as forestalling the possibility that Purdy overruled Kozloff, and I doubt the majority does either, since the majority reasons that “[t]he McPike rule was squarely rejected by the supreme court in [Kozloff]” (376 Ill. App. 3d at 737) even though Kozloff makes no mention of McPike. In any event, to me, the only significance of the fact that Purdy did not cite Kozloff is that it indicates that the supreme court agreed with me that Kozloff is irrelevant to the jurisdictional issues presented here.
Our differing readings of precedent aside, practical considerations also fuel my disagreement with the majority position. Under John G. Phillips & Associates v. Brown, 197 Ill. 2d 337 (2001), a Rule 137 petition (which, incidentally, must be filed within 30 days of the final judgment on the original claim) raises a claim in the original action and, as a result, the judgment on the original claim could not be appealed, absent a Rule 304(a) finding, until the Rule 137 petition was resolved. This was true even if a timely Rule 137 petition were filed after the notice of appeal; under Phillips, the notice of appeal in that case would be invalidated by the later Rule 137 petition.6
Since the decision in Phillips, our supreme court has amended Rule 303(a)(2) to modify the Phillips holding. See Official Reports Advance Sheet No. 8 (April 11, 2007), R. 303(a)(2), eff. May 1, 2007. Under the new rule, “a notice of appeal filed *** before the final disposition of any separate claim[ ] becomes effective when the order disposing of said motion or claim is entered.” Official Reports Advance Sheet No. 8 (April 11, 2007), R. 303(a)(2), eff. May 1, 2007. Though the new Rule 303 reheves litigants of a potential jurisdictional trap, it does not overrule the portion of Phillips that says a claim that is part of the original action must be decided before an appeal can take place, even if the claim is filed after the notice of appeal.
The majority proposes that postdissolution petitions raise claims in the original dissolution action. Under the rule from Phillips, the problems with this approach are plain. Since there is no time limit for filing a postdissolution petition, if such a petition adds a claim to the original action, then, under amended Rule 303(a)(2), any already-filed notice of appeal for the judgment on the previous dissolution claim becomes ineffective (absent Rule 304(a) language) until the new post-dissolution claim is resolved. What happens when a postdissolution petition is filed after an appeal of the judgment on the original dissolution claim has been resolved? Does the already-decided appeal become void because the notice of appeal does not become effective until the postdissolution petition is resolved? Or, for cases to which the amended version of Rule 303(a)(2) does not apply, does the post-dissolution petition, which adds a claim and therefore vitiates a previous notice of appeal, render void the already-decided appeal? Further, regardless of whether there has been an appeal as of the time a post-dissolution petition is filed, does the fact that the petition adds a claim to the original dissolution proceeding allow the parties to appeal anew all of the issues in the original dissolution judgment along with their appeal of the postdissolution judgment?
The majority attempts to distinguish Phillips, but the majority’s response actually further demonstrates my point. As the majority notes, “a motion for sanctions cannot render unappealable any judgment other than one entered in the last 30 days and cannot indefinitely prevent the parties’ ability to appeal.” 376 Ill. App. 3d at 745. The reason a motion for sanctions may vitiate only notices of appeal filed within a certain time period is that, under the Supreme Court Rules, such a motion must be filed within 30 days of the entry of the otherwise final judgment. 155 Ill. 2d R. 137. There is no such restriction on the filing of postdissolution petitions. Thus, as the majority notes, “ [dissolution cases, by contrast, may involve multiple postjudgment claims filed years after the judgment of dissolution.” 376 Ill. App. 3d at 745. While it is true, as the majority states, that the supreme court in Phillips “never suggested that” an appeal of “an earlier final judgment *** could be nullified by a claim filed more than 30 days later” (376 Ill. App. 3d at 745), the only reason the supreme court did not so hold is that Rule 137 limits the time in which a motion for sanctions may be filed. There is no such limitation on postdissolution petitions.
The majority cites its own practical considerations — “the realities of postdissolution proceedings” — in support of its rule. 376 Ill. App. 3d at 738. The majority observes that “disposition of the most recent postdissolution petition may rest on a court order entered years before” and that ‘ ‘ [p] ostdissolution petitions are filed under the case number of the original dissolution, in a comprehensive case file that permits the court to see the entire record of what has gone before.” 376 Ill. App. 3d at 738. I do not see what affect these “realities” should have on the rules of appellate jurisdiction, but I note that they do not seem to cause much problem in the area of postconviction petitions (see 725 ILCS 5/122 — 1 et seq. (West 2006)), even though such petitions share all the above-mentioned “realities” with postdissolution petitions.
Another interesting aspect of the majority’s holding is its sub silentio repudiation of Purdy. If, as the majority asserts, a postdecree petition is actually a continuation of the original dissolution proceeding, then there never is a postdecree petition (or if there is, upon its filing, it is magically transmuted into a claim in the original dissolution proceeding). Leopando would always control in such a situation and Purdy, which limited Leopando to the original dissolution proceeding, would become wholly superfluous.
In my view, the majority’s holding is based on an unwarranted extension of Kozloff into an inapposite area of the law. It will result in intermittent appealability for dissolution proceedings interspersed with periods in which all that has gone before must necessarily be voided. The only way trial courts and litigants may avoid this result is by entering Rule 304(a) language with every order intended to dispose of a case, but even that remedy will give no recourse to litigants in all the divorce proceedings that have taken place before the majority opinion today.
Though I agree with the ultimate resolution of this appeal, I cannot concur in the portion of the majority opinion that holds that a postdissolution petition raises a new claim in the original dissolution action. I believe we must follow either Carr or Alyassir.
Notwithstanding the above discussion, if I were to agree with the majority’s conclusions regarding Kozloff, I would disagree with the majority’s holding that the recent amendment to Rule 303 should apply to this appeal.7 However, though I disagree with the majority on this issue, my position is not based on the reasoning in Barter, 235 Ill. App. 3d 18; I agree with the majority’s criticism of Barter’s reliance on an erroneous analogy to statutes of limitation. I also agree with the majority’s discussion of the framework for analyzing whether an amendment is retroactive. See 376 Ill. App. 3d at 728-29, citing Allegis, 223 Ill. 2d 318, Commonwealth Edison Co., 196 Ill. 2d 27, 5 ILCS 70/4 (West 2006), and 134 Ill. 2d R. 2. In short, as the majority notes, procedural amendments will apply retroactively and substantive ones will not, except that no amendment may apply retroactively where doing so would violate a constitutional protection. I further agree with the majority that the amendment to Rule 303 is procedural. However, unlike the majority, I believe applying the Rule 303 amendment retroactively in this case would violate a constitutional protection: respondent’s “vested right,” or “ ‘settled expectation honestly arrived at with respect to substantial interests’ ” (Commonwealth Edison, 196 Ill. 2d at 48, quoting Moore v. Jackson Park Hospital, 95 Ill. 2d 223, 242 (1983) (Ryan, C.J., specially concurring, joined by Underwood and Moran, JJ.))8 with regard to the trial court’s final judgment.
In my view (again, assuming arguendo that the majority’s holding regarding the appealability of judgments on postdissolution petitions is correct), the parties had a vested right in the trial court’s final judgment when the time lapsed for appealing that judgment. Because the parties had a vested right in the final judgment, the amendment to Rule 303 cannot operate retroactively to bestow us with jurisdiction to interfere with that right.
Though my research uncovers little Illinois case law on this point, I find guidance from other sources. It has been stated that, “once private rights are fixed by judgment, they are a form of property over which the legislature has no greater power than it has over any other form of property” and “[t]he legislature may not, under the guise of an act affecting remedies, destroy, or impair final judgments obtained before passage of the act.” 46 Am. Jur. 2d Judgments §12, at 389 (2006). “Under Illinois law, a judgment becomes a vested right of property once it is no longer subject to review or modification.” Evans v. City of Chicago, 689 F.2d 1286, 1296 (7th Cir. 1982), overruled on other grounds, 873 F.2d 1007 (7th Cir. 1989). In County of Suffolk v. Long Island Lighting Co., 14 F. Supp. 2d 260, 265 (E.D.N.Y. 1998), it was observed:
“It is a long-established principle of American law that a final money judgment gives rise to a ‘vested right’ which entitles the judgement creditor to the same constitutional protections afforded other forms of property. See, e.g., Hodges v. Snyder, 261 U.S. 600, 603, 43 S. Ct. 435, 67 L. Ed. 819 (1923) (‘the private rights of parties which have been vested by the judgment of a court cannot be taken away by subsequent legislation, but must be thereafter enforced by the court regardless of such legislation’); McCullough v. Virginia, 172 U.S. 102,123-24,19 S. Ct. 134, 43 L. Ed. 382 (1898); Pennsylvania v. Wheeling & Belmont Bridge Co., 59 U.S. (18 How.) 421, 431, 15 L. Ed. 435 (1852) (‘[I]f the remedy in this case had been an action at law, and a judgment rendered in favor of the plaintiff for damages, the right to these would have passed beyond the reach of the power of congress.’); Benjamin v. Jacobson, 124 F.3d 162, 176 (2d Cir. 1997) (‘It is well-settled that a final money judgment creates a “vested right” and hence a constitutionally protected property interest.’); Georgia Ass’n of Retarded Citizens v. McDaniel, 855 F.2d 805, 810 (11th Cir. 1988) (‘rights fixed by judgment are, in essence, a form of property over which legislatures have no greater power than any other [property]’), cert, denied, 490 U.S. 1090, 109 S. Ct. 2431, 104 L. Ed. 2d 988 (1989); see also Plant v. Spendthrift Farm, Inc., 514 U.S. 211, 115 S. Ct. 1447, 131 L. Ed. 2d 328 (congressional act which sought to retroactively modify a final judicial order is unconstitutional on separation of powers grounds).”
Based on the above authority, I would hold that, once the trial court’s judgment was no longer subject to review or modification, the parties obtained a vested right in the judgment. Here, the trial court issued a final order as to all pending claims on May 23, 2006, when it resolved petitioner’s petition to set specific times for visitation, which was pending at the time this appeal was filed. A notice of appeal “must be filed *** within 30 days after the entry of the final judgment appealed from.” Official Reports Advance Sheets No. 8 (April 11, 2007), R. 303(a)(1), eff. May 1, 2007. After 30 days passed from the date of the May 23, 2006, judgment without any appeal, the trial court’s judgment was no longer subject to review or modification, and the parties gained a vested right in that judgment. If the amendment to Rule 303(a) had come before the end of this 30-day period, and thus before the parties obtained a vested right in the judgment, then the amendment would apply retroactively to grant us jurisdiction. The relevant amendment to Rule 303(a) was not effective until May 1, 2007, long after the parties’ right in the judgment “vested.”
The majority holds that there is no vested right to the trial court’s judgment here because there was an appeal pending at the time any right to the trial court’s judgment would have “vested.” See 376 Ill. App. 3d at 733. I disagree. The majority has held that petitioner’s notice of appeal was not timely, because it was filed before the trial court had resolved all related claims (and was filed without Rule 304(a) language). This holding, as with most any appellate court holding, did not retroactively change the law but rather articulated the law that was in effect throughout this litigation. Thus, the majority has held that the notice of appeal was ineffective as of the date it was filed. It may be true that there was an appeal pending as of the time of the trial court’s May 23 order, but, by itself, the fact that we can say there was “an appeal pending” tells me very little. Indeed, the fact that there was an appeal pending does not necessarily mean that either party was in a position to challenge the trial court’s May 23 order. Quite to the contrary, ignoring the amendment to Rule 303(a) (as I would do here), under the majority holding regarding Kozloff, the only dispute to be settled in this appeal should be whether we have appellate jurisdiction. By holding that we would not have appellate jurisdiction over petitioner’s appeal under the rules in place prior to the recent amendment to Rule 303(a), the majority implicitly holds that the parties could not challenge the trial court’s May 23 order, and thus that the order was “ ‘no longer subject to review or modification’ ” (emphasis omitted) (376 Ill. App. 3d at 730, quoting Evans, 689 F.2d at 1296). Accordingly, the parties obtained a “vested right” in the trial court’s May 23, 2006, judgment 30 days after it was entered. The subsequent change to Rule 303(a) cannot operate retroactively to deprive them of that right.
I recognize that, in Commonwealth Edison, our supreme court adopted the United States Supreme Court’s holding in Landgraf, which stated that the Supreme Court had “regularly applied intervening statutes conferring or ousting jurisdiction, whether or not jurisdiction lay when the underlying conduct occurred or when the suit was filed.” Landgraf, 511 U.S. at 274, 128 L. Ed. 2d at 258, 114 S. Ct. at 1502. However, the rationale for this statement was that “ [application of a new jurisdictional rule usually ‘takes away no substantive right but simply changes the tribunal that is to hear the case.’ [Citation.]” Landgraf, 511 U.S. at 274, 128 L. Ed. 2d at 258, 114 S. Ct. at 1502. The question here is not whether an amendment may change the tribunal that may hear a pending suit, but rather whether an amended rule may extend jurisdiction to review a judgment that had previously become unreviewable due to the lapse of appellate jurisdiction under prior law.9
The majority responds to the points I raise by characterizing my position as suggesting that a litigant obtains a vested “ ‘right’ to a dismissal of the appeal for lack of jurisdiction.” 376 Ill. App. 3d at 731-32. This is not my position. As noted above, I believe that the parties obtained a vested right in the trial court’s final judgment. A consequence of this right is that this appeal must be dismissed for lack of jurisdiction.
The majority next argues that, even if there is a vested right at issue here, it is not a right the parties “ ‘possessed when [they] acted.’ ” 376 Ill. App. 3d at 731, quoting Landgraf, 511 U.S. at 280, 128 L. Ed. 2d at 262, 114 S. Ct. at 1505. I am not sure what “action” requirement for vested rights the majority seeks to invoke with this language, but it is not a requirement with which I am familiar.
Finally, the majority responds to the points I make above by arguing that any vested right to a final judgment here is “merely the dubious ‘right’ to shield a potentially erroneous judgment from review.” 376 Ill. App. 3d at 732. The majority goes on to opine that a litigant’s interest in an “erroneous” judgment is less than the interest in a “correct” judgment. Apparently, then, to the majority, the “correctness” of the trial court’s judgment helps dictate whether we have jurisdiction to review it. The bootstrapping problem here is obvious. As difficult as it is to advocate something that is “merely dubious,” I must observe that the majority correctly notes, “if an erroneous judgment is not appealed, then it remains a final judgment not subject to review.” 376 Ill. App. 3d at 732. The majority has held that the judgment here was not timely appealed. Thus, erroneous or not, it “remains a final judgment not subject to review.” 376 Ill. App. 3d at 732.
The majority suggests that our determination as to whether we have jurisdiction to decide an appeal “is made at the time of decision, not when the appeal is initially filed.” 376 Ill. App. 3d at 732. That may very well be true, but, as I note above, in most cases an appellate decision does not change the law but instead only articulates it.10 Though the parties must await our decision for a binding determination as to whether there is appellate jurisdiction, the jurisdictional rules in place at the relevant time here (according to the majority holding under Kozloff) dictated that the time for appeal lapsed and thus granted the parties a vested right in the unassailable final judgment of the trial court. When jurisdiction lapsed, we retained only the power to determine our own jurisdiction to decide the merits of this appeal, not the power to decide the merits of this appeal.
Just as with its holding regarding appealability of judgments on postdissolution petitions, the majority’s position on retroactivity could create practical problems. Suppose two trial courts were to enter final judgments disposing of two causes of action, and, in both cases, the plaintiffs appeal 31 days after the final judgments, with each case being assigned to a different panel of judges on appeal. Suppose, in the first case, the panel, due to either judicial diligence or prompting from the parties, quickly dismisses the appeal, but, in the second case, the panel’s deliberations extend for an additional month. Further suppose that, during that month, Rule 303 is modified so that a party has 35 days to appeal a final judgment. Under the majority’s rule, the panel in the second case would acquire jurisdiction by virtue of the delay in deciding the case. Thus, the parties’ rights would be determined by the speed with which the appellate court decides their appeals. This does not seem to me to be a fair result, yet it is the result the majority decision dictates.
In fact, the parties here are in a situation very similar to the parties in my hypothetical. The majority discussion indicates that, were it not for the May 2007 amendment to Rule 303(a), it would have held that we lacked jurisdiction over this case. However, taking the amendment into account, it concludes that we have jurisdiction, and it reverses and remands the cause. This appeal was filed and briefed long before the amendment to Rule 303(a) took effect, yet, because we did not dispose of this case prior to the amendment, it has changed our result. The touchstone of the concept of “vested rights” is the “ ‘fairness or unfairness of applying the new *** rule to affect interests which accrued out of events which transpired when a different prior rule of law was in force’ ” (Commonwealth Edison, 196 Ill. 2d at 47, quoting Moore, 95 Ill. 2d at 242 (Ryan, C.J., specially concurring, joined by Underwood and Moran, JJ.)), and the result here is not fair.
For the foregoing reasons, I disagree with the majority on two points. First, I disagree with its decision to resolve the conflict between Carr and Alyassir by following neither and instead creating a new rule, based on Kozloff, that a postdissolution petition raises a claim in the original dissolution action for appellate jurisdictional purposes. I would follow Carr and hold that a postdissolution petition starts a new action and thus that petitioner’s notice of appeal was timely. Second, assuming that the majority is correct that petitioner’s notice of appeal was untimely, I disagree with the majority’s conclusion that the recent amendment to Rule 303(a) should apply retroactively to confer us jurisdiction over this appeal where it otherwise would be lacking. Left to my own devices, I would hold that we have jurisdiction over this appeal pursuant to petitioner’s timely notice of appeal, and I would not reach the issue of whether Rule 303(a) applies retroactively.
The Alyassir rule would require a party to seek Rule 304(a) language in most situations if the party wishes to immediately appeal the judgment on a particular postdissolution claim while other claims are still pending, but it would prevent piecemeal appeals in a situation where parties bring a flurry of postdissolution petitions. The Carr rule would largely allow the litigants to determine appealability, as the judgment on eveiy petition they file would be separately appealable. However, I note that, under the Carr rule, a trial court may explicitly combine two petitions in order to avoid piecemeal appeals (or, as is often the case, the trial court may resolve related petitions in a single order).
I note that Purdy’s description of Leopando is inaccurate. In addition to the custody issue, Leopando also considered and granted dissolution of the marriage. This inaccuracy, however, is not material to the analysis.
The majority argues that our supreme court “has never suggested that [Phillips] applies to postdissolution cases.” 376 Ill. App. 3d at 745. Nor has our supreme court suggested the opposite. Phillips obviously applies the proposition that “appeals may ordinarily only be taken from final orders which dispose of every ‘claim’ ” to a situation in which a claim is raised after an otherwise final judgment. Phillips, 197 Ill. 2d at 339. This proposition is global.
I refer below to the idea that the parties obtained a vested right in the trial court’s judgment, but I do so based only on the rhetorical assumption that my view of Kozloff is incorrect. In reality, I believe that the parties did not obtain a vested right in this judgment, because petitioner’s notice of appeal was effective, and the retroactivity of the amendment to Rule 303 is not before us in this appeal. I reach this retroactivity issue only in response to the majority discussion.
Given our supreme court’s criticism of the term “vested right,” I use the phrase with regret. See Commonwealth Edison, 196 Ill. 2d at 47-48.
With one possible exception, in all of the cases cited in Landgraf for the above quote, the jurisdictional change came before a final judgment had been entered. The majority cites the possible exception, Stevens v. Cherokee Nation.
I express no opinion on whether a different rule should apply where an appellate decision overrules laws, rules, or previous cases regarding appellate jurisdiction.