Quick, File; No, Wait. Are You Covered? Fourth District Illinois Appellate Weighs In On Post-Dissolution Jurisdiction

Appeal from orders on post-dissolution of marriage petitions raises precarious problems. Suppose the court rules on a post-dis petition to modify maintenance, but leaves the child support-modification petition pending. Must you file your Notice of Appeal within 30 days of the maintenance ruling, or wait for a ruling on the support matter? If a ruling on support takes more than 30 days from the time of the maintenance ruling, will you lose the right to appeal maintenance?

The answer is “perhaps.” It depends on which district you’re in. The 2nd and 4th Districts say wait. But if you’re in the 1st, you better get your Notice of Appeal on file pronto.

IRMO Gaudio out of the 4th District recently broke the tie. Gaudio ruled that “Even if the order dismissing respondent’s petition [for modification of maintenance] constituted a final order, it was not immediately appealable without the required Rule 304(a) finding.”

Click here for IRMO Gaudio, No. 4-05-0908 (4th Dist. 2006), which contains good summaries of the two prior competing cases. Click here for IRMO Carr, 323 Ill. App. 3d 481, No. 1-00-0997 (Ist Dist. 2001), and here for IRMO Alyassir, 335 Ill. App. 3d 998, No.2-01-1096 (2nd Dist. 2003).

One more thing about IRMO Gaudio. Susan Gaudio also appealed from the order on child support. She then moved to consolidate the earlier maintenance appeal with the child support appeal. The court denied the motion to consolidate, and continued to deny jurisdiction over the maintenance appeal. Apparently Susan did not include the maintenance order in the later Notice of Appeal.

So if all of this leaves you uneasy — and you’re not human, or a lawyer, anyway, if it doesn’t — then you need to figure out how to protect your client and yourself. Here’s what I suggest: Include the earlier order in the second Notice of Appeal. Then you can move alternatively to consolidate or dismiss the first appeal, and explain to the court that you’ve done it that way because the case law is inconsistent. The worst that could happen is that your motion is denied, and then your opponent moves to dismiss. But at least you’re left with an argument that one of the two Notices of Appeal confers appellate jurisdiction, and they both were filed timely.