                                  Illinois Official Reports

                                          Appellate Court



                      In re Parentage of Rogan M., 2014 IL App (1st) 132765



Appellate Court              In re PARENTAGE OF ROGAN M. (Keisha M., Petitioner-
Caption                      Appellant, v. John M., Respondent-Appellee).



District & No.               First District, Sixth Division
                             Docket No. 1-13-2765



Filed                        March 7, 2014


Held                         Petitioner’s appeal from the denial of her petition to remove her minor
(Note: This syllabus         son from Illinois to California was dismissed for lack of jurisdiction,
constitutes no part of the   since the record showed that after the removal petition was filed, the
opinion of the court but     parties filed several other petitions, including petitioner’s requests for
has been prepared by the     a modification of respondent’s support obligations, attorney fees and
Reporter of Decisions        costs, and respondent’s petitions for custody and a parenting schedule,
for the convenience of       and the trial court declined to rule on those petitions until the removal
the reader.)                 petition was decided; furthermore, since those matters were pending
                             when petitioner filed her notice of appeal, the denial of the removal
                             petition was not a final judgment appealable as of right, and the order
                             was not a “custody judgment” or a “modification of custody” that
                             could be immediately appealed under Supreme Court Rule 304(b)(6).




Decision Under               Appeal from the Circuit Court of Cook County, No. 08-D-79237; the
Review                       Hon. Ellen L. Flannigan, Judge, presiding.



Judgment                     Dismissed.
     Counsel on                 Maricarol Lacy and Nicole M. Onorato, both of Rinella & Rinella,
     Appeal                     Ltd., of Chicago, for appellant.

                                James M. Quigley and Matthew D. Elster, both of Beermann Pritikin
                                Mirabelli Swerdlove LLP, of Chicago, for appellee.

                                Lester L. Barclay, of Barclay Law Group, P.C., of Chicago, child
                                representative.




     Panel                      JUSTICE REYES delivered the judgment of the court, with opinion.
                                Justices Hall and Lampkin concurred in the judgment and opinion.




                                                   OPINION

¶1         Petitioner Keisha M. appeals the judgment of the trial court denying her petition to remove
       her minor child from Illinois to California. On appeal, Keisha argues: (1) the trial court applied
       the improper evidentiary standard; and (2) the trial court’s finding that removal was not in the
       child’s best interests was against the manifest weight of the evidence. For the following
       reasons, we dismiss the appeal for lack of jurisdiction.

¶2                                          BACKGROUND
¶3         Rogan M. was born out of wedlock in 2006 to parents Keisha M. and John M. Following
       Rogan’s birth, Keisha and John lived together with their son until their relationship ended in
       2008. At that time, John moved out of their home while Rogan remained living with Keisha.
       Shortly after the couple’s separation, Keisha filed a parentage action, which the parties
       resolved by agreement on March 26, 2009. Although Keisha and John never reached a formal
       decision on the issue of custody, 1 they agreed John would make monthly child support
       payments and provide Keisha with his tax returns and income information on a yearly basis.
¶4         The record reveals that in the years subsequent to the parties’ separation, Keisha and John
       both maintained an active relationship with their son. The two parents alternated weekends
       with Rogan and, during the week, John would accompany Rogan to t-ball practice, karate
       lessons, or dinner. A change in Keisha’s employment, however, would alter the parties’
       situation.

             1
            Under the facts of this case, Keisha is presumed to be the custodial parent by statute. See 750 ILCS
       45/14(a)(2) (West 2012) (“If a judgment of parentage contains no explicit award of custody, the
       establishment of a support obligation or of visitation rights in one parent shall be considered a judgment
       granting custody to the other parent.”).

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¶5         In 1998, Keisha began working with Harpo Studios as a producer for the Oprah Winfrey
       Show, eventually earning a position as an executive in the creative department with the studio.
       In November 2009, Oprah Winfrey announced she would soon be ceasing production of the
       show, leaving Keisha to question her future with Harpo Studios and consider searching for new
       employment. According to Keisha, she encountered difficulty finding suitable work in her
       field around Chicago and instead focused her search on California and New York, where she
       anticipated such opportunities would be more abundant. On June 27, 2011, 2½ weeks before
       her position with Harpo Studios was to formally end, Keisha filed a petition to remove Rogan
       from Illinois to California as she believed an offer of employment in the Los Angeles area to be
       imminent. Ultimately, the parties participated in a five-month trial on the issue of removal and,
       on July 31, 2013, the trial court denied Keisha’s removal petition in a memorandum opinion
       and order. Keisha filed her notice of appeal on August 28, 2013.
¶6         Between the filing of the removal petition and the notice of appeal, the parties filed a
       number of additional petitions. On July 8, 2011, Keisha requested a modification of John’s
       child support obligations. On November 9, 2011, John filed a petition for custody of Rogan.
       On September 18, 2012, Keisha filed a petition for attorney fees and costs. On August 27,
       2013, John filed a petition to set a parenting schedule. The trial court declined to hear these
       issues pending the disposition of Keisha’s removal petition and thus the petitions remained
       unresolved prior to the filing of the notice of appeal. Additionally, on August 30, 2013, after
       Keisha filed her notice of appeal, John filed a petition to terminate or reduce his child support
       obligation.

¶7                                              ANALYSIS
¶8         John argues this court lacks jurisdiction to hear this matter on appeal. According to John,
       the order denying the removal petition is not a final judgment because numerous issues remain
       pending in the trial court. In addition, John asserts no exception applies to otherwise allow us
       to decide the case on its merits. The issue of jurisdiction is a purely legal question that we
       review de novo. In re John Doe Investigation, 2011 IL App (2d) 091355, ¶ 6.
¶9         Supreme Court Rule 301 provides “[e]very final judgment of a circuit court in a civil case
       is appealable as of right.” Ill. S. Ct. R. 301 (eff. Feb. 1, 1994). A final judgment fixes
       absolutely and finally the rights of the parties in the lawsuit; it determines the litigation on the
       merits so that, if affirmed, the only thing remaining is to proceed with the execution of the
       judgment. In re Adoption of Ginnell, 316 Ill. App. 3d 789, 793 (2000). To be final, a judgment
       must dispose of the litigation or some definite part of it. Id. If jurisdiction is retained for the
       future determination of matters of substantial controversy, the order is not final. Id. Absent an
       applicable exception, the appellate court does not have jurisdiction to review judgments,
       orders, or decrees which are not final. Department of Public Aid ex rel. Chiapelli v. Viviano,
       195 Ill. App. 3d 1033, 1034 (1990).
¶ 10       Rules 306 and 307 provide instances where certain interlocutory orders may be appealed,
       but neither party contends these exceptions apply. See Ill. S. Ct. R. 306 (eff. Feb. 16, 2011); R.
       307 (eff. Feb. 26, 2010). The remaining exceptions can be found in Rule 304. See Ill. S. Ct. R.
       304 (eff. Feb. 26, 2010). Under Rule 304(a), “[i]f 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

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       that there is no just reason for delaying either enforcement or appeal or both.” Ill. S. Ct. R.
       304(a) (eff. Feb. 26, 2010). The parties did not seek a Rule 304(a) finding from the trial court in
       this case and we therefore do not have jurisdiction under this rule. The only remaining
       exception relevant to this matter falls under Rule 304(b)(6), which allows for an immediate
       appeal of “[a] custody judgment entered pursuant to the Illinois Marriage and Dissolution of
       Marriage Act (750 ILCS 5/101 et seq.) or section 14 of the Illinois Parentage Act of 1984 (750
       ILCS 45/14); or a modification of custody entered pursuant to section 610 of the Illinois
       Marriage and Dissolution of Marriage Act (750 ILCS 5/610) or section 16 of the Illinois
       Parentage Act of 1984 (750 ILCS 45/16).” Ill. S. Ct. R. 304(b)(6) (eff. Feb. 26, 2010).
       Accordingly, for us to have jurisdiction, the order denying removal must have either been (1) a
       final judgment or (2) a “custody judgment” or “modification of custody,” as pertaining to Rule
       304(b)(6).

¶ 11                                          I. Final Judgment
¶ 12       In response to John’s jurisdictional challenge, Keisha cites a line of authority to support her
       contention the trial court’s order denying the removal petition in this case constituted a final,
       appealable order. See In re Custody of Purdy, 112 Ill. 2d 1 (1986) (order modifying custody
       immediately appealable because action arose separately several years following the original
       marital dissolution proceeding); In re Marriage of Demaret, 2012 IL App (1st) 111916, ¶ 25
       (ruling on postdissolution removal petition amounted to final order because the only remaining
       pending issue, a petition for attorney fees, was “wholly unrelated” to the issues in the removal
       petition); In re Marriage of A’Hearn, 408 Ill. App. 3d 1091, 1098 (2011) (unresolved petitions
       for rule to show cause did not render dismissal of petition to modify custody nonfinal where
       the previously filed petitions for rule to show cause were “not related to the modification for
       custody petition”); In re Marriage of Carr, 323 Ill. App. 3d 481, 485 (2001) (because pending
       petition for attorney’s fees “had no effect” on–and was thus unrelated to–orders modifying
       child support, the orders modifying child support were final and appealable); In re Marriage of
       Yndestad, 232 Ill. App. 3d 1, 4 (1992) (where “[t]he trial judge’s dismissal order prevented [the
       wife] from further prosecuting [her removal petition] and did not grant her leave to amend [the
       petition],” this court concluded “the dismissal order [was] final and appealable”). In particular,
       Keisha cites Marriage of Demaret for the proposition that “a removal petition is a distinct
       cause of action, and the order *** is thus final and appealable.”
¶ 13       In Marriage of Demaret, the mother filed a removal petition to move the couple’s children
       from Illinois to New Jersey four years after the dissolution of the couple’s marriage. Marriage
       of Demaret, 2012 IL App (1st) 111916, ¶¶ 3-4. One day following the filing of the removal
       petition, the father filed a separate petition for attorney fees. Id. ¶ 4. Ultimately, the trial court
       denied the request for removal without ruling on the issue of attorney fees. Id. The mother
       subsequently appealed the denial of removal with the petition for attorney fees still pending
       before the trial court. Id. Despite the unresolved petition, this court found it had jurisdiction
       because the issue of attorney fees involved “a matter wholly unrelated to the issue of removal.”
       Id. ¶ 25.
¶ 14       While the court in Marriage of Demaret ultimately found the order to be final and
       appealable, the case does not, as Keisha suggests, stand for the notion that removal petitions
       are final and appealable in every instance. To the extent the court characterized a removal

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       petition as a “distinct” proceeding, it did so relative to the original marital dissolution
       proceeding that occurred four years earlier. See id. ¶ 35. Simply because the court found the
       removal petition to be a separate action from the prior dissolution proceeding does not mean
       the court refrained from also discussing whether the removal petition was unrelated to the
       pending proceedings. See id. ¶ 38. The court examined whether the issues involved in the
       attorney fees petition had any “bearing on the circuit court’s clear intent to issue a dispositive
       order regarding the best interests of the children” in the removal petition. Id. Because it
       concluded those issues did not, the court proceeded to find it had jurisdiction to hear the case.
       Id. Thus, Marriage of Demaret, along with the other decisions cited by Keisha, collectively
       demonstrate the need for the reviewing court to examine the relationship of any pending
       matters to those being appealed. See id. ¶¶ 30-36 (comparing the difference in effect on
       appellate jurisdiction between that of a “sufficiently related” pending petition to that of an
       “unresolved but unrelated petition”).
¶ 15        With this in mind, we turn to the facts of this case. At the time of the filing of this appeal,
       several petitions remained unresolved in the trial court: (1) John’s petition for custody; (2)
       John’s petition to set a parenting schedule; (3) John’s petition to terminate or reduce his child
       support obligation; (4) Keisha’s petition to modify child support; and (5) Keisha’s petition for
       attorney fees. Keisha contends jurisdiction is still proper because John effectively
       “abandoned” his petition for custody and the other four petitions are not sufficiently related to
       this appeal as to render the order denying removal not final. We need only address Keisha’s
       abandonment argument because it is dispositive of this issue.
¶ 16        Keisha does not argue John’s petition for custody involves a separate, unrelated matter that
       would have no effect on the issue of removal. Indeed, assuming John were successful in
       winning custody of the child, that fact alone would necessarily defeat any argument Keisha
       could make in support of her petition; Illinois law only permits the trial court to grant removal
       to the custodial parent. See 750 ILCS 5/609(a) (West 2012). Keisha must therefore contend
       John’s failure to seek a ruling on his custody petition equates to an abandonment of the claim
       as a matter of law. Keisha cites no case law to support her argument, although we note the
       Illinois Supreme Court has previously addressed this issue. See In re Marriage of Gutman, 232
       Ill. 2d 145 (2008).
¶ 17        In Marriage of Gutman, the parties dissolved their marriage in 1996 and the court
       subsequently entered a judgment ordering the husband to pay maintenance to the wife for three
       years. Id. at 147. After the wife filed a petition to extend maintenance, the court ordered the
       husband to continue the payments until further notice by the court. Id. at 147-48. In response,
       the husband petitioned the court to modify the judgment and terminate maintenance. Id. at 148.
       After the husband allegedly stopped making payments in violation of the court’s order, the
       wife filed a petition for civil contempt against the husband. Id. Eventually, the court dismissed
       the wife’s petition to extend maintenance with prejudice, but did not address the contempt
       petition or make a Rule 304(a) finding. Id. The wife appealed. Id.
¶ 18        While the wife failed to file the notice of appeal within 30 days of the dismissal order, the
       court found the pending contempt proceeding to be sufficiently part of the original action. Id. at
       148, 152-54. Consequently, the trial court’s dismissal did not constitute a final, appealable
       order. Id. at 153-54. In response, the husband argued the wife’s failure to pursue a ruling over
       the course of two years amounted to an abandonment of the petition, thus rendering the trial

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       court’s dismissal final and the wife’s appeal untimely. Id. at 154. Our supreme court rejected
       this argument. Id. at 154-56. 2 It noted “[t]he passage of time in itself does not mean that the
       contempt proceeding was dismissed.” Id. at 155. Rather, the court examined the record, which
       provided no evidence of the wife’s intent to abandon her claim or any indication the trial court
       dismissed it. Id. Therefore, the court found the claim remained pending and unresolved at the
       time of the appeal. Id. at 156.
¶ 19       We find Marriage of Gutman controls here. While Keisha insists John filed his custody
       petition solely as a means to frustrate her petition for removal, she can point to no part of the
       record to indicate either an intent on John’s behalf to abandon the claim or some action taken
       by the trial court to dismiss the claim. Her argument thus mirrors the unsuccessful argument
       advanced in Marriage of Gutman: John’s delay in pursuing the custody petition coupled with
       the passage of time equates to an abandonment as a matter of law. Because the supreme court
       has already rejected this reasoning, we find the custody petition remained pending.
       Accordingly, the trial court’s order was not a final and appealable order within the meaning of
       Rule 301.

¶ 20                                         II. Rule 304(b)(6)
¶ 21       Keisha additionally argues we have jurisdiction because an order regarding a removal
       petition constitutes a “custody judgment” or “modification of custody” as contemplated by
       Rule 304(b)(6). As noted above, Rule 304(b)(6) allows for an immediate appeal of “[a]
       custody judgment entered pursuant to the Illinois Marriage and Dissolution of Marriage Act
       (750 ILCS 5/101 et seq.) or section 14 of the Illinois Parentage Act of 1984 (750 ILCS 45/14);
       or a modification of custody entered pursuant to section 610 of the Illinois Marriage and
       Dissolution of Marriage Act (750 ILCS 5/610) or section 16 of the Illinois Parentage Act of
       1984 (750 ILCS 45/16).” Ill. S. Ct. R. 304(b)(6) (eff. Feb. 26, 2010). When interpreting a
       supreme court rule, we apply the same principles of construction that apply to a statute. In re
       Estate of Rennick, 181 Ill. 2d 395, 404 (1998). Our goal is to ascertain and give effect to the
       intention of the drafters of the rule. Id. The most reliable indicator of intent is the language
       used, which should be given its plain and ordinary meaning. Id. at 405. Where the language is
       clear and unambiguous, we must apply the language used without further aids of construction.
       Id.
¶ 22       The plain language of Rule 304(b)(6) does not directly classify removal judgments as
       immediately appealable. Notwithstanding this fact, Keisha argues that because “sections 14
       and 16 of the Illinois Parentage Act specifically reference removal,” it follows that removal
           2
            In rejecting the abandonment claim, the court in Marriage of Gutman distinguished two cases
       cited by the husband: Mortgage Electronic Systems v. Gipson, 379 Ill. App. 3d 622 (2008), and
       Rodriguez v. Illinois Prisoner Review Board, 376 Ill. App. 3d 429 (2007). See Marriage of Gutman,
       232 Ill. 2d at 154-55. We briefly note that, as in Marriage of Gutman, neither of these cases apply here.
       In both Mortgage Electronic Systems and Rodriguez, the parties sought on appeal to resolve issues
       contained in motions that had never been ruled on by the trial court. See Mortgage Electronic Systems,
       379 Ill. App. 3d at 628; Rodriguez, 376 Ill. App. 3d at 432-33. Thus, the parties “abandoned” those
       issues because they had appealed motions without first exercising their responsibility to seek a ruling
       on them in the trial court. See Mortgage Electronic Systems, 379 Ill. App. 3d at 628; Rodriguez, 376 Ill.
       App. 3d at 432-33.

                                                       -6-
       amounts to a “custody judgment” or “modification of custody” under the rule. We are not
       convinced, however, that the mere mention of removal in the text of the referenced statutes
       compels the interpretation of Rule 304(b)(6) that Keisha advances. Section 16, for example,
       clearly contemplates modifications of custody and modifications of removal as distinct
       actions, stating, “[t]he court has continuing jurisdiction to modify an order for support,
       custody, visitation, or removal included in a judgment entered under this Act.” (Emphasis
       added.) 750 ILCS 45/16 (West 2012). Thus, where Rule 304(b)(6) refers to a “modification of
       custody entered pursuant to section 16,” we do not find the term “custody” encompasses
       “removal” because the statute clearly treats them as separate claims.
¶ 23       Keisha nevertheless counters that removal is “inherently tied to custody since the decision
       whether or not to grant removal impacts the physical custody of the child.” We do not dispute
       Keisha’s characterization of removal as a “custody-related issue.” Yet simply because removal
       is related to custody does not mean we should consider a removal order to be a custody
       judgment or modification of custody for the purposes of jurisdiction. See, e.g., In re Marriage
       of Bednar, 146 Ill. App. 3d 704, 710-11 (1986) (“In our view, the possibility that removal of a
       child from the jurisdiction of this State to another may adversely affect the noncustodial
       parent’s interaction with the child does not compel the conclusion that a removal petition is, as
       a matter of law, a petition for modification of custody.”). Rather, we conclude that had the
       drafters–who we presume were aware of the relationship between custody and
       removal–intended to include removal judgments as part of Rule 304(b)(6), they would have
       included such language. See In re Michelle J., 209 Ill. 2d 428, 437 (2004). Accordingly, we do
       not find jurisdiction is proper under Rule 304(b)(6).

¶ 24                                       CONCLUSION
¶ 25      For the foregoing reasons, the appeal is dismissed for lack of jurisdiction. All pending
       motions on appeal are likewise dismissed.

¶ 26      Dismissed.




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