Deepening the Divide Between the Districts on Post-Divorce Appellate Jurisdiction – In re marriage of A’Hearn

By Guest Blogger:  Gregory C. Maksimuk

Synopsis: On March 21, 2011, the Third District Appellate Court decided In re the Marriage of A’Hearn.    Perhaps most significantly, A’Hearn resolves the issue of how the Third District handles post-judgment appellate jurisdiction under Rule 304(a) in dissolution of marriage cases when more than one motion is pending.  This opinion has created an even divide between the four districts who have decided this particular issue.  The First and now Third districts have held that each post-dissolution motion is independently appealable upon the final disposition of the individual claim/motion without the necessity of a Rule 304(a) finding.  The rationale for this rule is that each post-dissolution motion is in effect a separate action as opposed to a separate claim.  Conversely, the Second and Fourth District Appellate Courts have held that if an order finally resolves a separate claim or post-dissolution motion but leaves pending other claims or motions, the trial court must make a Rule 304(a) finding before the order is immediately appealable.  Due to the deepening divide between the Districts this issue is ripe for resolution with the Illinois Supreme Court.

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In A’Hearn, Michael A’Hearn filed two separate petitions for rule to show cause on May 1, 2008. Those pleadings related to visitation and communication disputes.  The case was referred to mediation and on June 5, 2008 the parties resolved the issues in of visitation and communication but not the issue of custody.  At this time the issue of custody was not pending before the court.   In July 2008, after mediation was concluded, Michael filed a petition to modify custody.  The petition to modify custody did not make reference to the two petitions for rule to show cause or the facts set forth in those petitions.  The trial court appointed a custody evaluator to evaluate Michael’s petition to modify custody.  The evaluator ultimately found in favor of Michael.

The case was initially set for trial on December 14, 2009, but the matter was re-set to May 17, 2010 on November 23, 2009.  At the time of the re-setting of trial dates the court advised Michael’s attorney that he had to produce all discovery and disclose all witnesses by February 1, 2010.  Michael did not comply with the discovery order and on May 4, 2010 Rose A’Hearn filed a motion to bar his witnesses.  Michael finally disclosed his witnesses on May 12, 2010 at 4:50 p.m.  The trial court heard the motion to bar on May 13, 2010 and barred all of Michael’s witnesses.  After the barring all of his witnesses, the trial court dismissed Michael’s petition to modify custody with prejudice finding he could not prevail without witness testimony.  Shortly after the dismissal Rose filed a motion to modify maintenance and Michael filed a motion to reconsider.  The motion to reconsider was denied.  Michael then appealed the trial court’s ruling, filing his appeal more than 14 days but less than 30 days after the trial court’s ruling on the motion to bar.  At the time of the filing of appeal Michael’s petitions for rule to show cause and Rose’s motion to modify maintenance were pending.

Appellate Jurisdiction

The first issue addressed on appeal was appellate jurisdiction. Was Michael able to appeal the dismissal of his custody claim, without a special 304(a) finding, if the other pleadings had yet to be disposed of?   The court held that it had appellate jurisdiction to hear Michael’s appeal, holding that each post-dissolution motion is independently appealable when final without the necessity of a Rule 304(a) finding.  The court found such post-dissolution motions to be separate “actions” as opposed to separate “claims” as contemplated under Rule 304(a). It reasoned that the petitions for rule to show cause and the motion to modify maintenance were each separate actions.  The concurrence expressed concern that the ruling encourages, if not mandates, piecemeal appeals for every post-dissolution motion.

The ruling is consistent with the current law in the First District Appellate Court and this is the first time the Third District has dealt with this issue in a published opinion.  See In re Marriage of Carr, 323, Ill.App.3d 481 (1^st Dist. 2001).  The Second and Fourth District Appellate Courts have held that if an order finally resolves a separate claim or post-dissolution motion, but leaves pending other claims or motions, the trial court must make a Rule 304(a) finding before the order is immediately appealable.    Without the 304(a) finding, the appeal is not proper until all claims have been finally resolved.     See In re marriage of Alyassir, 335 Ill.App.3d 998 (2d Dist. 2003) and In re Marriage of Gaaudio, 368 Ill.App.3d 153 (4^th Dist. 2006).

The court did not address custody appellate jurisdiction under 304(b)(6) (permitting the appeal without the necessity of a Rule 304 finding) because it found that no custody judgment was entered; rather the issue involved a dismissal of the the request to modify custody.  However, the case could have been decided under 304(b)(6) as the dismissal of a motion to modify custody with prejudice is arguably a custody judgment as contemplated by Rule 304(b)(6) since it finally disposes of a custody proceeding.

This opinion has created an even split in the districts.  It is likely the Illinois Supreme Court will need to resolve the discrepancy.  Until the Illinois Supreme Court does rule on the issue, it is important to pay attention to the district you are in for the purposes of determining the ripeness of your appeal.

Discovery Noncompliance

The second issue on appeal was the propriety of the discovery sanction imposed.  The appellate court held that dismissal was too harsh and that insufficient enforcement efforts were employed.  The court found expressly that it is not in the best interest of the child to have a custody petition denied pursuant to a discovery sanction instead of hearing the petition on the merits.

There was one dissenting justice who found the discovery violation to be so flagrant that the sanction granted was appropriate.  The dissent also pointed out that while the best interest of a child are paramount, it could be reasonably inferred that Michael’s disregard for the discovery rules and orders reflect that he: 1) did not care about his child enough; or 2) did not have confidence he could prevail on the merits without an unfair advantage.

The court’s opinion on discovery sanctions is not necessarily revolutionary, however, the finding about the best interest of the child and deciding those issues on the merits may be.  This decision limits the available remedies for discovery non-compliance in custody cases.  The remedy of dismissal for non-compliance, at least in the Third District, does not appear to be available when the best interest of the child are involved.

While the best interests of a child are undoubtedly a paramount concern, this finding/ruling is inconsistent with the Supreme Court Rules and the case law surrounding their creation/modification.  Only the Supreme Court is in a position to add this exception and they have not done so.  The dissent’s rationale in this case made sense.  The majority, while well intentioned, has crafted a rule that is patently inconsistent with Supreme Court Rules.

About Gregory C. Maksimuk: Gregory is an attorney with the Peskind Law Firm and concentrates his practice on complex matrimonial litigation, which has been his exclusive area of practice for the past five years. At the trial court level, he conducts trials, argues motions, negotiates settlements and prepares related documents in addition to the many other aspects of family law litigation. His work also involves appellate advocacy including writing appellate briefs and arguing before the appellate court. He has been recognized as one of the top up-and-coming family law attorneys in Illinois.