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                                    Appellate Court                            Date: 2017.04.20
                                                                               11:21:09 -05'00'




                  In re Marriage of Dougherty, 2017 IL App (1st) 161893



Appellate Court        In re MARRIAGE OF DANIEL DOUGHERTY, Petitioner-
Caption                Appellant, and MEGAN DOUGHERTY, Respondent-Appellee.



District & No.         First District, Fourth Division
                       Docket No. 1-16-1893



Filed                  February 23, 2017



Decision Under         Appeal from the Circuit Court of Cook County, No. 16-D-530078; the
Review                 Hon. Patrick T. Murphy, Judge, presiding.



Judgment               Appeal dismissed.



Counsel on             Arthur J. Data III, of Law Office of Arthur J. Data III, P.C., of Palos
Appeal                 Hills, for appellant.

                       Michael G. DiDomenico, of Take Toback, of Chicago, for appellee.



Panel                  JUSTICE McBRIDE delivered the judgment of the court, with
                       opinion.
                       Presiding Justice Ellis and Justice Howse concurred in the judgment
                       and opinion.
                                               OPINION

¶1        Petitioner Daniel Dougherty filed a petition for leave to appeal pursuant to Illinois
     Supreme Court Rule 306(a)(5) (eff. Mar. 8, 2016), asking this court for the interlocutory
     review of the trial court’s temporary orders setting child support and maintenance. This court
     granted petitioner’s leave to appeal on August 23, 2016. On August 31, 2016, respondent
     Megan Dougherty filed a motion to reconsider our order granting the petition for leave to
     appeal and/or to dismiss for lack of jurisdiction. We took respondent’s motion with the case.
¶2        Petitioner and respondent were married in December 2004. Five minor children were born
     during the marriage. Petitioner moved out of the marital residence in December 2015. By
     agreement of the parties, respondent has possession of the marital residence, and the minor
     children live with respondent at the marital residence.
¶3        Petitioner did not file a brief on appeal within the deadline set in the case, but rather stood
     on his petition for leave to appeal as his brief. In his petition, petitioner asserted two grounds
     for appeal: (1) the trial court abused its discretion in deviating from the child support
     guidelines by awarding respondent 57.2% of petitioner’s net income for child support without
     a compelling reason to support the deviation and (2) the trial court abused its discretion by
     awarding maintenance to respondent in the amount of $250. Petitioner has not raised any
     issues relating to the custody of the minor children.
¶4        Respondent maintains that this court lacks jurisdiction to review petitioner’s claims
     involving temporary child support and maintenance orders under Rule 306(a)(5). While we
     initially granted petitioner’s petition for leave to appeal, we have a duty to consider our
     jurisdiction. See Trutin v. Adam, 2016 IL App (1st) 142853, ¶ 21. “This court has an obligation
     to consider its jurisdiction at any time and should dismiss an appeal if jurisdiction is lacking.”
     In re Marriage of Tetzlaff, 304 Ill. App. 3d 1030, 1035 (1999). “It is well established that
     except as specifically provided in the supreme court rules, this court is without jurisdiction to
     review judgments, orders and decrees that are not final.” In re Marriage of Kostusik, 361 Ill.
     App. 3d 103, 108 (2005).
¶5        The determinative question before us is whether the phrase “orders affecting the care and
     custody” refers only to orders relating to the custody of minor children. Petitioner contends
     that “care” can be interpreted to include support orders. We disagree with petitioner, and for
     the reasons that follow, hold that “care and custody” relates only to orders involving the
     custodial placement of minor children. Since the orders at issue involve temporary orders for
     child support and maintenance, this court lacks jurisdiction to review the nonfinal orders
     unless the orders fall under Rule 306(a)(5).
¶6        Rule 306(a)(5) provides, in relevant part:
                  “(a) Orders Appealable by Petition. A party may petition for leave to appeal to the
              Appellate Court from the following orders of the trial court:
                                                   ***
                      (5) from interlocutory orders affecting the care and custody of or the allocation
                  of parental responsibilities for unemancipated minors, if the appeal of such orders
                  is not otherwise specifically provided for elsewhere in these rules ***.” Ill. S. Ct. R.
                  306(a)(5) (eff. Mar. 8, 2016).



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¶7          Supreme court rules are not “ ‘mere suggestions.’ ” In re Denzel W., 237 Ill. 2d 285, 294
       (2010) (quoting People v. Houston, 226 Ill. 2d 135, 152 (2007)). The rules “have the force of
       law and are to be construed in the same manner as statutes.” Id. “The cardinal rule of statutory
       construction is to ascertain and give effect to the intent of the legislature. The best evidence of
       legislative intent is the language used in the statute itself, which must be given its plain and
       ordinary meaning.” In re Marriage of Turk, 2014 IL 116730, ¶ 15.
¶8          It is undisputed that Rule 306(a)(5) “is the vehicle by which to seek review of interlocutory
       child custody orders.” Kostusik, 361 Ill. App. 3d at 109. The question here is whether
       temporary support and maintenance orders also fall under Rule 306(a)(5), whether such orders
       are within the meaning of “interlocutory orders affecting the care and custody of or the
       allocation of parental responsibilities.” Respondent contends that the language of Rule
       306(a)(5) does not include temporary child support and maintenance orders, as the supreme
       court would have included the relevant language indicating as such. Petitioner maintains that
       issues of support, custody, and maintenance are “irrevocably intertwined” because the
       temporary child support orders here concern the care of the child, as does maintenance because
       it affects the financial circumstances of the custodial parent.
¶9          We note the Illinois Supreme Court has long held that “ ‘The obligation of the father to
       support his children begins when the child is born and continues during the minority of the
       child. This obligation of the father to support his minor child is not affected by the decree
       granting a divorce, nor by a decree granting the care and custody of his child to his wife or
       some other suitable person.’ ” Gill v. Gill, 56 Ill. 2d 139, 143-44 (1973) (quoting Kelley v.
       Kelley, 317 Ill. 104, 110 (1925)). In Gill, the supreme court reviewed an order granting support
       to the custodial mother retroactive for the years the child was a minor. In affirming the trial
       court, the supreme court recognized that “when a divorce decree provides for the custody of a
       child but is silent as to the question of child support, a mother may maintain an action against
       her former husband for moneys expended by her after the decree to support the child.” Id. at
       144. While the issue before the court in Gill does not relate to the question before us, the use of
       language, specifically the phrase “care and custody,” as separate from support is relevant to
       our analysis.
¶ 10        Additionally, we point out that the committee comment to the March 2016 amendment
       provided:
                     “The Illinois Marriage and Dissolution of Marriage Act, Pub. Act 99-90 (eff. Jan. 1,
                 2016) (amending 750 ILCS 5/101 et seq.), has changed the terms ‘Custody,’
                 ‘Visitation’ (as to parents) and ‘Removal’ to ‘Allocation of Parental Responsibilities,’
                 ‘Parenting Time’ and ‘Relocation.’ These rules are being amended to reflect those
                 changes. The rules utilize both ‘custody’ and ‘allocation of parental responsibilities’ in
                 recognition that some legislative enactments covered by the rules utilize the term
                 ‘custody’ while the Illinois Marriage and Dissolution of Marriage Act and the Illinois
                 Parentage Act of 2015 utilize the term ‘allocation of parental responsibilities.’ The
                 Special Committee has attempted to adhere to the usage found in the applicable
                 legislative enactments.” Ill. S. Ct. R. 306, Committee Comment (Mar. 8, 2016).
¶ 11        This comment explained that the coordination of the language used to be more uniform
       across the supreme court rules and corresponding statutory text, but specifically focused on the
       term “custody.” The comment did not suggest that Rule 306(a)(5) extended beyond the
       custody of minors, namely into temporary orders on child support and maintenance.

                                                    -3-
¶ 12       Further, pursuant to Rule 306(b)(5), once a petition for leave to appeal under the rule has
       been granted “proceedings shall then be subject to the expedited procedures set forth in Rule
       311(a).” Ill. S. Ct. R. 306(b)(5) (eff. Mar. 8, 2016). Rule 311(a) details the mandatory
       accelerated docket for “Mandatory Accelerated Disposition of Child Custody or Allocation of
       Parental Responsibilities Appeals.” Ill. S. Ct. R. 311(a) (eff. Mar. 8, 2016). Rule 311(a) states:
               “The expedited procedures in this subpart shall apply to appeals from final orders in
               child custody or allocation of parental responsibilities cases and to interlocutory
               appeals in child custody or allocation of parental responsibilities cases from which
               leave to appeal has been granted pursuant to Rule 306(a)(5). If the appeal is taken from
               a judgment or order affecting other matters, such as support, property issues or
               decisions affecting the rights of persons other than the child, the reviewing court may
               handle all pending issues using the expedited procedures in this rule, unless doing so
               will delay decision on the child custody or allocation of parental responsibilities
               appeal.” (Emphases added.) Ill. S. Ct. R. 311(a) (eff. Mar. 8, 2016).
¶ 13       The language of Rule 311(a) helps to clarify the matters properly raised in an interlocutory
       appeal under Rule 306(a)(5), specifically, “child custody or allocation of parental
       responsibilities.” Under Rule 311(a), an expedited interlocutory appeal under Rule 306(a)(5)
       must involve an issue relating to child custody. The rule further provides that “other matters,”
       including support, may be considered along with custody issues by the reviewing court, so
       long as the other matters do not delay a ruling on custody. We also note that the subsections of
       Rule 311(a) consistently refer to an “appeal involving child custody or allocation of parental
       responsibilities.”
¶ 14       Additionally, a committee comment for Rule 311(a) offers additional guidance.
               “Paragraph (a) was originally enacted as Rule 306A in 2004 to expedite the resolution
               of appeals affecting the care and custody of children. In 2010, Rule 306A was moved to
               paragraph (a) of this rule. The amendment was also intended to clarify that the rule
               addresses only the procedures to be followed in order to expedite disposition of child
               custody appeals. Importantly, this rule does not confer any new appeal rights or affect
               finality for purposes of appellate jurisdiction. The appealability of any order affecting
               child custody is governed principally by Rules 301, 304, 303, and 306. The expedited
               procedures set forth in paragraph (a) apply to all child custody appeals, whether they
               have been taken from final orders appealable as of right or interlocutory orders from
               which the court has granted leave to appeal. The goal of paragraph (a) remains to
               promote stability for not only abused and neglected children, but also children whose
               custody is an issue in dissolution of marriage, adoption, and other proceedings, by
               mandating swifter disposition of these appeals.” Ill. S. Ct. R. 311, Committee
               Comments (Feb. 26, 2010).
¶ 15       “Under the doctrine of in pari materia, two legislative acts that address the same subject
       are considered with reference to one another, so that they may be given harmonious effect.”
       Citizens Opposing Pollution v. ExxonMobil Coal U.S.A., 2012 IL 111286, ¶ 24. “The doctrine
       is consistent with our acknowledgment that one of the fundamental principles of statutory
       construction is to view all of the provisions of a statute as a whole.” Id. Since we are to
       interpret supreme court rules the same as statutes, the doctrine of in pari materia is relevant
       when reviewing these rules governing expedited interlocutory appeals. The comment in Rule
       311 further clarifies the intent and operation of both Rule 306(a)(5) and Rule 311(a). These

                                                   -4-
       rules relate to expedited interlocutory appeals involving custody or the allocation of parental
       responsibilities. Significantly, neither rule, nor any comment suggests that a temporary support
       or maintenance order may be brought independently. We cannot read additional language into
       the rules in order to confer jurisdiction on this court. Petitioner has not cited any relevant
       authority to support his assertion that “care” permits independent interlocutory appeals relating
       to temporary support and maintenance orders.
¶ 16       Based on the language of Rules 306(a)(5) and 311(a), when considered together, we
       conclude that this court lacks jurisdiction over the instant appeal. Rule 306(a)(5) does not
       provide for petitions for leave to appeal from temporary support and maintenance orders.
       Accordingly, we dismiss petitioner’s appeal for lack of jurisdiction. Since we have no
       jurisdiction, we do not reach the merits of petitioner’s appeal.

¶ 17      Appeal dismissed.




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