dissenting:
I respectfully dissent and draw specific attention to that part of the majority opinion which vacates the circuit court’s order of July 3, 1990, relating to enforcement of its June 12, 1990, order granting the petition for reimbursement filed by respondent, Larry Manns.
The majority opinion characterizes the circuit court’s order of July 3, 1990, as imposing an improper condition upon the right of petitioner, Ann Manns, to dismiss her action prior to the commencement of a hearing on the merits. I disagree with the concept that the circuit court’s order of July 3, 1990, constituted imposition of a condition upon this nearly absolute right to dismiss; in fact, this order reserved to the court its right to enforce a judgment it had already made on respondent’s petition for reimbursement which the trial court properly treated as a counterclaim.
The petition for reimbursement requested relief independent of an ultimate distribution of marital assets and also independent of the necessary finding prior to a distribution that the assets to be distributed were, in fact, marital. The basis of this petition for reimbursement was the ongoing business relationship between the parties and definite ascertainable financial transactions between the two of them as well as a joint obligation for taxes. While not labeled as a counterclaim, this petition was, in fact, a counterclaim. In re Marriage of Black (1985), 133 Ill. App. 3d 59, 477 N.E.2d 1359.
In Black, the court characterized a counterclaim as distinguishable from an answer or affirmative defense in that it seeks affirmative relief of some kind. The Black court held that the intervening grandparents’ petition seeking an award of custody constituted a counterclaim which could not be defeated by voluntary dismissal of the initial petition for dissolution pursuant to section 2 — 1009 of the Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1989, ch. 110, par. 2 — 1009), and, in fact, barred that voluntary dismissal. The petition for reimbursement granted by the trial court in this action is comparable to the petition for custody in Black.
The majority reaches its conclusion by treating the petition for reimbursement as a temporary request for distribution of property prior to any determination of its character as marital or nonmarital. By assuming that the petition asks for a distribution of possibly marital property, the majority can then conclude that the petition for reimbursement is an integral part of the dissolution action which appellant sought to dismiss as opposed to an independent claim that would be in the nature of a counterclaim. The majority can thereby consider this petition for reimbursement subject to dismissal as part of the underlying claim pursuant to section 2 — 1009 of the Code. The majority opinion frames the issue in terms of whether “a trial court may order a distribution of one party’s separate property to the other party without a full hearing on the marital or nonmarital nature of the property.” (Emphasis added.) 222 Ill. App. 3d at 341.
Given this characterization of the petition as a request for distribution of property as opposed to a petition in the nature of a counterclaim, the majority then proceeds to characterize the trial court’s order granting the petition for reimbursement on June 12, 1990, as a temporary order. Once the order of June 12, 1990, is characterized as a temporary order, it, of necessity, becomes subject to dismissal under section 2 — 1009 and the majority’s conclusion on the second issue logically follows from the characterizations contained in the first issue; a temporary order must of necessity abate upon dismissal of the underlying petition for dissolution. Both authorities cited for support of the majority’s ruling (In re Marriage of Saleh (1990), 202 Ill. App. 3d 131, 559 N.E.2d 812, and In re Marriage of Mostow (1981), 95 Ill. App. 3d 915, 420 N.E.2d 731) dealt with truly temporary orders and are thus distinguishable from the case at bar.
The majority’s disposition of cause No. 5 — 90—0530 is also dependent upon the court’s characterization of the trial court’s June 12, 1990, order as a temporary order.
In sum, since I think the situation in Black more accurately characterizes the case at bar than either Saleh or Mostow, I respectfully dissent from my colleagues’ disposition of this appeal.