Illinois Supreme Court Rules

November 1, 2007

Special Concurrence In IRMO Duggan Argues (1) No Retroactive Application For Amended Supreme Court Rule And (2) Postdissolution Petitions Are New Actions

Recapping the previous two blog entries, a majority of the Illinois Second District Appellate Court held: (1) An amendment to Illinois Supreme Court Rule 303(a) applied retroactively so that a premature Notice of Appeal preserved appellate jurisdiction. (See entry 10/29/07, two below.) (2) Separate postdissolution petitions in a divorce case present new claims, but not new actions, so a Rule 304(a) order must be issued to appeal a ruling on fewer than all of the issues. (See entry 10/30/07, directly below.)

The opinion was not without criticism. A special concurrence drew exactly opposite conclusions.

On the question of the retroactive application of the amendment to Rule 303(a), the Concurrence stated that Tamara had a vested right in the trial court’s judgment. That mitigated against a retroactive application of the amendment. To the contrary, the majority applied the amendment retroactively to this case, which allowed Darrell to appeal.

October 30, 2007

Postdissolution Petitions Present New Claims, But Not New Actions

by Steven R. Merican

We continue with IRMO Duggan. (For Part One, with an explanation of the case facts, see blog entry of 10/29/07, directly below.) The next question the court took on was whether Tamara’s support petition and Darrell’s petition to set a visitation schedule presented (1) new claims in the same action, or (2) new and separate actions. Recall that Darrell appealed the child support order while his petition to set a visitation schedule still was pending. And the trial court did not issue a Rule 304(a) order (no just reason to delay enforcement or appeal of the judgment).

If the petitions presented new actions, as Darrell argued, then he could appeal the support order even if there was no ruling on the visitation petition. Indeed, he would have to. But Tamara argued that the petitions were different claims in the same action. If Tamara were right, then a Rule 304(a) order would be necessary to provide the basis for jurisdiction for Darrell to appeal the child support judgment while the visitation petition still was pending. (Rule 304(a) language is necessary to appeal a final order of fewer than all pending claims.)

The appellate court ruled that the petitions were “appropriately treated as new claims within the dissolution action. This approach enables the trial court to better serve the needs of families caught up in the often-painful aftermath of divorce by considering all of the relevant pre- and postdissolution proceedings together, rather than in isolation, and is consistent with the previous decisions of Illinois courts.”

October 29, 2007

Second District Illinois Appellate Court Rules On Retroactivity of Amended Supreme Court Rule 303

by Steven R. Merican

In re Marriage of Duggan offers good analysis by the Second District Illinois Appellate Court of two issues that have been confounding the appellate and family law bars. We’ll look at the case, and an interesting concurring opinion that disagrees with the majority on the appellate issues, in this and the next few entries.

The facts are not complicated. The Duggans’ marriage was dissolved in January 2002. In August 2005, Tamara petitioned for an increase in child support. Pursuant to an agreement, an order was entered stating that Darrell would pay a percentage of his net income.

Darrell then made a timely motion to vacate the order because it did not specify a particular dollar amount for the payment, as is required by the Illinois Marriage and Dissolution of Marriage Act. At the same time, Darrell also filed a petition to establish specific visitation times.

March 16, 2007

Illinois Supreme Court Amends Appellate Rules

by Steven R. Merican

The Illinois Supreme Court ordered rule amendments today that affect the sticky question of the timely filing of a notice of appeal. That’s important because a notice of appeal must be filed timely to gain appellate jurisdiction. The court amended Illinois Supreme Court Rule 303, which sets out the general scheme for filing a Notice of Appeal after a final judgment. The amendments, effective May 1, 2007, add protection for a party who appeals prematurely in certain circumstances. Here are the major points:

• “A notice of appeal filed after the court announces a decision, but before the entry of the judgment or order, is treated as filed on the date of and after the entry of the judgment or order.” Before this rule change, that same notice of appeal filed before entry of the judgment would be premature and would not invoke appellate jurisdiction.

• If an appeal is filed before a ruling on a timely filed postjudgment motion, “or before the final disposition of any separate claim, [the notice of appeal] becomes effective when the order disposing of said motion or claim is entered . . .” Before this change, that same notice of appeal would be premature and would not invoke appellate jurisdiction. The rule required that the premature appeal be withdrawn. A party could invoke appellate jurisdiction only with a new, timely notice of appeal.