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In Re Marriage of Lentz

OPINION FILED JUNE 21, 1979.

IN RE MARRIAGE OF LINDA S. LENTZ, PETITIONER AND COUNTERRESPONDENT-APPELLEE, AND LARRY DEAN LENTZ, RESPONDENT AND COUNTERPETITIONER-APPELLANT.


APPEAL from the Circuit Court of Champaign County; the Hon. HAROLD L. JENSEN, Judge, presiding.

MR. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:

We consider sua sponte the appealability of the instant judgment entered by the circuit court of Champaign County on August 2, 1978, pursuant to sections 401 and 402 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, pars. 401 and 402), in favor of petitioner counterrespondent Linda S. Lentz and against respondent counterpetitioner Larry Dean Lentz, dissolving the marriage of the parties and denying the counterpetition for legal separation but reserving questions of maintenance and property division.

We conclude that we have no jurisdiction and, therefore, dismiss the appeal.

At issue is the meaning and effect of section 413(a) of the Act (Ill. Rev. Stat. 1977, ch. 40, par. 413(a)) which states:

"(a) A judgment of dissolution of marriage or of legal separation or of declaration of invalidity of marriage is final when entered, subject to the right of appeal. An appeal from the judgment of dissolution of marriage that does not challenge the finding as to grounds does not delay the finality of that provision of the judgment which dissolves the marriage, beyond the time for appealing from that provision, and either of the parties may remarry pending appeal. An order directing payment of money for support or maintenance of the spouse or the minor child or children shall not be suspended or the execution thereof stayed pending the appeal."

A noted author on Illinois procedure has stated his opinion that section 413(a) is an invalid attempt by the legislature to determine the appealability of judgments and an infringement upon the supreme court's constitutional rule making powers. (Fins, Impropriety of Illinois Legislature's Infringement Upon the Constitutional Rule-Making Authority of the Supreme Court, 66 Ill. B.J. 384 (1978).) We deem it our responsibility to construe any ambiguities in the legislation in such a way as to give it a constitutional construction (Stubblefield v. City of Chicago (1971), 48 Ill.2d 267, 269 N.E.2d 504). We find we are able to give it such a construction.

• 1 Our construction is quite simply that the phrase "subject to the right of appeal" does not mean that the judgment is appealable as a matter of right but means that the judgment is subject to whatever right of appeal is available for an order of that nature.

• 2 Section 401 (3) of the Act (Ill. Rev. Stat. 1977, ch. 40, par. 401(3)) states that a judgment of dissolution shall not be entered unless, to the extent that the court has jurisdiction to do so, it has "considered, approved, reserved or made provision for child custody, the support of any child * * *, the maintenance of either spouse and the disposition of property." As we will later explain, we conclude that a judgment of dissolution that disposes of all of the foregoing matters for which claim is made, is appealable as a matter of constitutional right but that those judgments which reserve pending claims for custody, maintenance or property are appealable only if a supreme court rule makes those judgments appealable.

Under article VI, section 11, of the Illinois Constitution of 1870, the legislature was empowered to determine the jurisdiction of the appellate court to hear appeals from the circuit court. Article VI of that constitution was replaced by the Judicial Article of 1962, section 7 of which stated in part:

"In all cases, other than those appealable directly to the Supreme Court, appeals from final judgments of a Circuit Court lie as a matter of right to the Appellate Court * * *." (Emphasis added.) (Ill. Const. 1870, art. VI (1964), § 7.)

However, no appeal was permitted from an acquittal after a trial on the merits in a criminal case. Section 7 also stated that the supreme court "shall provide by rule for expeditious and inexpensive appeals" and "may provide by rule for appeals to the Appellate Court from other than final judgments of the Circuit Court." The provision for expeditious and inexpensive appeals is incorporated in article VI, section 16, of the Illinois Constitution of 1970, and the other quoted provisions are contained in section 6 of that article.

• 3 The foregoing constitutional provisions and the decisions of the supreme court in People ex rel. Stamos v. Jones (1968), 40 Ill.2d 62, 237 N.E.2d 495, and People v. Taylor (1971), 50 Ill.2d 136, 277 N.E.2d 878, make clear that the legislature no longer has power to determine the jurisdiction of the appellate court. In People ex rel. Stamos v. Jones, the court held invalid section 121-6(b) of the then existing Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1967, ch. 38, par. 121-6(b)), purporting to prohibit the stay of a sentence for the conviction of a forcible felony. The rationale of the decision was that the Judicial Article of 1962 "placed responsibility for rules governing appeal in the Supreme Court, and not in the General Assembly." (40 Ill.2d 62, 66, 237 N.E.2d 495, 498.) In Taylor, the court reiterated that the legislature had no right to participate in determining the jurisdiction of the appellate court to entertain appeals from the circuit court. Taylor held invalid the then existing section 109-3(e) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1967, ch. 38, par. 109-3(e)) purporting to make unappealable an order suppressing evidence made at preliminary hearing.

Thus, under article VI, section 6, the question of whether judgments, including those of dissolution or legal separation, are appealable depends upon whether they are either (1) "final" within the meaning of that section or (2) made appealable by supreme court rule. Supreme Court Rule 304(a) (58 Ill.2d R. 304(a)) is crucial to our analysis of both questions. The rule restates the essence of former section 50(2) of the Civil Practice Act (Ill. Rev. Stat. 1955, ch. 110, par. 50(2)) which was enacted by virtue of the power vested in the legislature by article VI, section 11, of the Constitution of 1870. The rule states in part:

"If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding ...


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