                         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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