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In Re Marriage of Nilsson

OPINION FILED MARCH 12, 1980.

IN RE MARRIAGE OF JOYCE ANN NILSSON, PETITIONER-APPELLEE, AND LORING R. NILSSON, RESPONDENT-APPELLANT.


APPEAL from the Circuit Court of Rock Island County; the Hon. WILBUR S. JOHNSON, Judge, presiding.

MR. JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:

Joyce Ann Nilsson, the petitioner-appellee herein, filed her petition for dissolution of marriage on May 8, 1978, alleging as the grounds therefore that Loring R. Nilsson, the respondent-appellant, without cause or provocation by the petitioner, had been guilty of extreme and repeated mental cruelty. A trial on the merits testing the grounds for dissolution of the marriage was held and subsequently on October 18, 1978, the Circuit Court of Rock Island County entered a judgment dissolving the marriage. The parties could not agree on matters of property division, child custody, child support, and maintenance and accordingly a hearing on these matters incident to the marriage was not conducted at that time. (Ill. Rev. Stat. 1977, ch. 40, par. 403(e).) Prior to the continued hearing on the second stage of the bifurcated contested trial, the respondent-appellant, Loring R. Nilsson, filed a notice of appeal from the trial court's order dissolving the marriage. After the notice of appeal was filed appellee filed a motion to dismiss the appeal or alternatively requested that we order the trial court to proceed with the second part of the bifurcated proceeding. Although we denied the motion to dismiss the appeal, we did order continued hearings in the trial court to proceed with reasonable dispatch.

Appellant has raised only one issue for review:

"Did the Trial Court err in entering a Judgment for Dissolution of Marriage on October 18, 1978, on the grounds that without cause or provocation by the Petitioner, the Respondent has been guilty of Mental Cruelty toward the Petitioner."

However, prior to considering the merits of this appeal, we must decide a preliminary issue raised by the petitioner-appellee challenging the jurisdiction of the appellate court to hear this controversy. It has been vigorously argued that this appeal from the order dissolving the marriage after the first phase of this bifurcated contested trial is not a final order and consequently not appealable. The trial court in the order appealed from determined that sufficient grounds existed to dissolve this marriage but did not immediately proceed to determine the other important matter of the various rights incident to the marriage because of mandatory bifurcation required by the Illinois Marriage and Dissolution of Marriage Act when the parties failed to enter into a settlement agreement on these additional matters. (Ill. Rev. Stat. 1977, ch. 40, par. 403(e).) Consistent with section 401(3) of the Act (Ill. Rev. Stat. 1977, ch. 40, par. 401(3)), after the judgment dissolving the marriage was entered, the trial court reserved ruling on the questions of property apportionment, maintenance, child support, child custody, educational expenses, attorney's fees and expenses, and expressly retained jurisdiction for the purpose of disposing of those subject matters of the case. Further, the trial court in an exercise of its discretion continued the case for the determination of those incidental matters. The trial court's order particularly provided in part:

"The parties have not entered into a Separation Agreement; this Court has heard all matters pertaining to the question of dissolution; the jurisdiction of the Court of the 14th Judicial Circuit should be retained for purposes of hearing evidence on question of property apportionment, maintenance, child custody, child support, educational expenses and attorney's fees and expenses. The balance of the bifurcated hearing may be heard by a judge other than the undersigned. The Temporary Order for maintenance, child support and exclusive possession of the marital home should continue until the further Order of the Court. IT IS FURTHER FOUND, pursuant to Illinois Supreme Court Rule 304, this is a Final Order and that there is no just reason for delaying the enforcement of this Order or for delaying appeal."

In support of her argument that the dissolution order is not final the appellee relies on section 401 of the Illinois Marriage and Dissolution of Marriage Act, which provides in part:

"Such judgment shall not be entered unless, to the extent it has jurisdiction to do so, the court has considered, approved, reserved or made provision for child custody, the support of any child of the marriage entitled to support, the maintenance of either spouse and the disposition of property." Ill. Rev. Stat. 1977, ch. 40, par. 401(3).

• 1 The appellee argues that the language "to the extent it has jurisdiction to do so" and "reserved" does not pertain to the present case. She contends that such language pertains to the situation where the trial court may only have limited personal jurisdiction, such as no personal jurisdiction over one party, and is therefore unable to enter orders of support, maintenance and property disposition against said absent party. In such a situation the reservation of those issues is proper until personal jurisdiction over the absent party can be obtained with the judgment of dissolution nonetheless still being a final order on the issue determined therein. The appellee claims the present case does not fit that situation where as here there is full personal jurisdiction over all parties. She contends that reserving the remaining questions of maintenance, support, and property disposition in the present factual situation was not contemplated by the statute. We agree. In the recent case of Lentz v. Lentz (1979), 73 Ill. App.3d 93, 391 N.E.2d 582, *fn1 it was reasoned in examining section 401(3) of the Act (Ill. Rev. Stat. 1977, ch. 40, par. 401(3)) that a judgment of dissolution of marriage disposes of all the issues of the case, including grounds for dissolution as well as child custody and support, maintenance, and property disposition, is appealable as a matter of constitutional right. (Ill. Const. 1970, art. VI, §§ 6 and 16.) In the Lentz case the court further theorized that judgments in dissolution of marriage cases which reserve any pending claims for custody, maintenance, or property disposition are not final orders appealable as a matter of constitutional right but are appealable only if a supreme court rule makes them appealable. Accordingly, we conclude that the judgment appealed from in the present appeal which reserves other issues and claims between the husband and wife in this dissolution of marriage case is not appealable as a matter of constitutional right.

We next consider section 413(a) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 413(a)), which arguably provides that the judgment of legal dissolution of marriage is final:

"(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." Ill. Rev. Stat. 1977, ch. 40, par. 413(a).

The above section of the Illinois Marriage and Dissolution of Marriage Act was construed in the case of Lentz to be constitutional. The Lentz court construed section 413(a) of the Act, and specifically the phrase "subject to the right of appeal," to mean not that the judgment of dissolution is appealable as a matter of right but that said judgment is subject to whatever right of appeal is available from an order of that nature.

Supreme Court Rule 304(a) provides the authority and procedure in appealing from final judgments that do not dispose of an entire proceeding. (Ill. Rev. Stat. 1977, ch. 110A, par. 304(a).) Consistent with Supreme Court Rule 304(a), where there are multiple claims for relief in a particular case, an appeal may be taken from a final judgment as to one but fewer than all of the claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal. Such a finding was made in the case at bar. Therefore, the issue we must decide is whether the judgment dissolving the marriage was final in that it completely disposed of that separable claim of the parties to this litigation.

In the Lentz case the court also was faced with the identical issue of appellate jurisdiction before us and there held that the appellate court was without jurisdiction in an appeal from an order dissolving a marriage but reserving the related matter of child custody, support, maintenance, and property disposition, in the absence of an express finding by the trial court that there was no just reason to delay enforcement or appeal pursuant to Supreme Court Rule 304(a). Although the Lentz case turned on the absence of compliance with Supreme Court Rule 304(a), the court by implication found that the judgment of dissolution of marriage with reservation of related issues was nonetheless final as to the issue of the grounds for the dissolution. We believe the judgment appealed from in the case at bar is final for purposes of being appealable pursuant to Supreme Court Rule 304(a). "[O]nly an order which terminates the litigation on the merits so that, if affirmed, the trial court has only to proceed with execution is a final order." (Myers v. Myers (1977), 51 Ill. App.3d 830, 837, 366 N.E.2d 1114, 1121.) The judgment of dissolution of the Nilsson marriage ...


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