July 30, 2012

Continuing Confusion About Appellate Jurisdiction In Illinois Post-Dissolution Divorce Proceedings

Elizabeth Demaret got a better job in New Jersey, so she wanted to move there from Illinois with her children. She had sole custody of her four children. James, her ex-husband, had parenting time in accord with a parenting agreement that an Illinois trial court incorporated into the divorce judgment.

Elizabeth asked the trial court for permission to move the children to New Jersey. James fought the request because he felt his time with the children would suffer and diminish. He asked the trial court to award him attorney fees he would incur fighting Elizabeth’s removal request.

The trial court denied Elizabeth’s request to move the children to New Jersey. Elizabeth appealed, but James’s fee request still was pending in the trial court. James argued that was enough to deprive the appellate court of jurisdiction to consider the appeal ― that is, (1) no appellate jurisdiction because (2) the order denying Elizabeth’s request to move the children was not final and appealable because (3) James’s fee petition still was pending in the trial court.

The appellate court acknowledged a split among the Illinois courts on whether a post-dissolution petition was:
• “a new claim within the original dissolution proceedings,” which would preclude appellate jurisdiction, or
• “a separate action from the original dissolution proceeding,” in which case appellate court jurisdiction exists upon a final resolution of that [the removal] petition under Illinois Supreme Court Rule 301 … regardless of the pendency of an unrelated petition.

The First District Illinois Appellate Court concluded “that postdissolution proceedings are generally new actions.” But that did not end the discussion. The court also ruled that James’s pending request for attorney fees was “wholly unrelated to the issues presented in [Elizabeth’s] removal petition.” So the appellate accepted jurisdiction over the case.

According to this appellate court, a split remains over whether a postdissolution petition presents a new action from the original divorce action or a new claim in an existing divorce case. In this case, Elizabeth won the battle over appellate jurisdiction. But she lost the war. The appellate court accepted jurisdiction over her appeal, then affirmed the trial court’s ruling that prevented her from moving with her children to New Jersey.

Read the whole opinion, IRMO Demaret, 2012 IL App (1st) 111916, which reviews the split of authority, by clicking here.

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July 21, 2012

Refusal To Modify Divorce Judgment Not Appealable Because Of Other Pending Issues

Arthur and Shirley Susman got divorced. The divorce judgment incorporated a marital settlement agreement, which reserved two subjects to be resolved later: (1) certain tax liabilities, and (2) allocation of certain personal property.

A few months later, Arthur asked the trial court to modify the judgment. He claimed there had been a mutual mistake of fact regarding a different tax liability. The trial court denied Arthur’s request.

Arthur appealed under Illinois Supreme Court Rule 301, which allows appeals from final judgments. But the First District Illinois Appellate Court ruled that it did not have jurisdiction to consider Arthur’s appeal. The appellate court ruled that Arthur’s appeal of the order denying his request to modify the judgment was not appealable because other questions had been reserved by the trial court. Here’s how the appellate court explained it:

Here, the trial court did not resolve the allocation of the parties' personal property and pre-2008 tax liabilities. Because the parties could not fully agree what they would divide and how they would divide it, the court reserved the issues for further consideration, and the order was not enforceable in that specific regard …The court thus entered what is known as a bifurcated judgment pursuant to section 401(b) of the Illinois Marriage and Dissolution of Marriage Act … which authorizes a court to reserve issues in a dissolution judgment for further consideration … Although the court's actions might have been statutorily authorized, they did not result in a final, appealable order for the purposes of conferring jurisdiction on this court … This lack of finality regarding the dissolution action is evident from the record inasmuch as the parties continued to litigate the division of personal property.
Because the dissolution judgment was not final and appealable, the order disposing of Arthur's motion to modify the judgment therefore cannot be considered "final." … Arthur cannot seek to appeal an issue arising from the dissolution proceedings when others remain pending, and we must dismiss this appeal for lack of jurisdiction. The policy against avoiding piecemeal appeals compels the result in this case.

In passing, the appellate said Arthur could have appealed the “propriety of the [trial court’s original] bifurcated judgment.” But Arthur did not appeal that question, so the whole appeal was dismissed. Read the opinion, IRMO Susman, 2012 IL App (1st) 112068, by clicking here.

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July 15, 2012

Injured Party’s Appeal Dismissed For Violations Of Appellate Brief-Writing Rules

Peggy Lee Hall claimed she was injured when she slipped on ice in a parking lot owned by Naper Gold Hospitality LLC. She sued Naper, but the company got summary judgment because Hall did not show facts that there had been an unnatural accumulation of ice.

Hall appealed Naper’s summary judgment. But the Second District Illinois Appellate Court dismissed the appeal “because of the flagrant and, frankly, appalling violations of supreme court rules committed by plaintiff’s [Hall] attorney … and his law firm … in the handling of this appeal.”

These were Hall’s violations:
• Hall’s statement of jurisdiction had “nothing whatsoever to do with the instant appeal.”
• The original statement of facts had been pasted into Hall’s brief from an appeal in a different case. And when Hall’s lawyer amended the statement of facts, he (1) filed it without asking for permission to do so, and (2) what he did file “barely acquaint[ed] this court with the procedural history of the case or the issues involved.”
• Illinois Supreme Court “Rule 341(h)(3) requires appellant [in this case, Hall] to include a ‘concise statement of the applicable standard of review for each issue. with citation to authority.’ … Plaintiff’s brief violates this rule in that nowhere is a standard of review set forth.”
• These violations “came on top of plaintiff’s filing of a noncompliant appendix.” The appellate court twice ordered Hall’s lawyer to file the appendix, the second time under threat of dismissal of the appeal.
• Hall’s legal argument contained insufficient citation to supporting authority.

The appellate court acknowledged the harshness of its ruling, “but where the jurisdictional statement and the statement of facts do not even pertain to the case on appeal but were copied wholesale from an unrelated brief, where the brief contains no standards of review, and where, most important, plaintiff’s arguments are conclusory and not supported by any authority, we have no choice but to strike the brief and dismiss the appeal.”

Read the whole case, Hall v. Naper Gold Hospitality LLC, 2012 IL App (2d) 111151, by clicking here.

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