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In Re Marriage of Janetzke

OPINION FILED JUNE 5, 1981.

IN RE MARRIAGE OF ESTLENE JUNE JANETZKE, PLAINTIFF-APPELLEE, AND JAMES JOSEPH JANETZKE, DEFENDANT-APPELLANT.


APPEAL from the Circuit Court of Cook County; the Hon. MILTON H. SOLOMON, Judge, presiding.

MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

This is an appeal by defendant from an order denying his cross-petition for child support and from a subsequent order requiring him to pay plaintiff's attorney's fees of $4,500. He contends that the court abused its discretion in the entry of both orders and, in her brief here, plaintiff questions our jurisdiction to review the order denying child support.

In 1972, a consent decree for divorce was entered under which plaintiff was awarded custody of the parties' three minor children (Lisa, Mark, and Theresa), and defendant was ordered to pay child support of $100 per week. In 1976, an agreed order was entered granting custody of Lisa to defendant, and on May 6, 1977, an order was entered which modified the decree with respect to child support and directed the parties to pay their own attorney's fees.

On January 23, 1978, defendant filed a two-count "cross-petition" seeking in count I to obtain custody of and support for Mark and Theresa, and in count II to modify the May 6, 1977, order. On January 24, plaintiff petitioned for a rule to show cause for failure of defendant to comply with the May 6 order and for attorney's fees. Then, on February 8, 1978, defendant petitioned for a reduction of the support provided for in the May 6, 1977, order and to require plaintiff to pay child support.

Thereafter, on June 20, 1978, the court entered an agreed order temporary awarding custody of Mark and Theresa to defendant until August 14, 1978, finding defendant indebted to plaintiff in the amount of $3,135 in child-support arrearage, abating child support payments until the custody issue was resolved, and continuing all pending matters to a future date. On November 1, 1979, an agreed order was entered granting defendant custody of Mark and Theresa and continuing all remaining matters, including child support and attorney's fees.

There was a hearing in February 1980 on the issue of child support at which defendant testified that he lives with the parties' three children, his present wife, and their child; that his gross income is $30,600; that he owns his own house and automobile; that he spends $50 to $60 per month for the children's clothing; that he has monthly heating and electric bills of $99 and weekly grocery bills averaging $75 to $80; that since he is an employee of Illinois Bell, he pays no telephone bills; that he pays $200 per month on a $6,000 debt; and that he has no savings.

At this hearing, plaintiff testified that her gross income for 1978 was $15,592; that she has liquid assets of only $84; that she owes $500 for roof repairs and another $500 for dental work; that her mortgage, condominium maintenance, and electric bills are $351, $73, and $130 per month respectively; that her water, garage, and other bills total $65 per month; and that each month she pays about $470 for children's insurance, food, the dentist, car insurance, payment on the car, and automobile repairs and gasoline.

On February 20, 1980, the court denied defendant's petition for child support and continued "the respective petitions for attorney's fees" for hearing at a later date. Then, in an order entered on June 3, 1980, the court directed defendant to pay plaintiff's attorney a fee of $4,500. Notice of appeal from the February 20 and June 3, 1980 orders was filed July 1, 1980.

OPINION

We first consider the contention of plaintiff that we lack jurisdiction to review the order of February 20, 1980, because a notice of appeal filed therefrom was not timely. Supreme Court Rule 303(a) (Ill. Rev. Stat. 1979, ch. 110A, par. 303(a)) provides that a notice of appeal must be filed within 30 days after entry of the final judgment appealed from, and it is plaintiff's position that because the order in question was a final judgment as to the question of child support, the notice of appeal should have been filed within 30 days.

A judgment is final if it disposes of the rights of the parties on the entire controversy or a separate branch thereof. (Deckard v. Joiner (1970), 44 Ill.2d 412, 255 N.E.2d 900, cert. denied (1970), 400 U.S. 941, 27 L.Ed. 2244, 91 S.Ct. 232; In re Estate of Semeniw (1979), 78 Ill. App.3d 570, 397 N.E.2d 64.) In the instant case, it is clear and the parties agree that the denial of child support in the February 20, 1980, order was a final judgment in that it disposed of the rights of the parties as to that controversy; however, under Supreme Court Rule 304(a) (Ill. Rev. Stat. 1979, ch. 110A, par. 304(a)), where multiple claims are involved there may be no appeal from a final judgment disposing of fewer than all the claims involved in the action unless the trial court has made an express written finding that there was no just reason for delaying enforcement or appeal.

Here, the order in question, in addition to denying child support, also set for hearing at a future date "the respective petitions for attorney's fees" and defendant maintains that the order thus did not dispose of all of the claims involved in the action and, because it did not contain a finding there was no just reason for delaying appeal therefrom, that it was not appealable and did not become so until June 3, 1980, when the court ruled on attorney's fees.

Plaintiff relies upon Pettit v. Pettit (1978), 60 Ill. App.3d 375, 376 N.E.2d 782, to support her position that the order was appealable regardless of the fact that attorney's fees had not been determined. In Pettit, the court stated in its decree of divorce that it was reserving jurisdiction to determine plaintiff's reasonable attorney's fees. When defendant appealed the provisions of the decree, it appears that plaintiff contended that there was no appealable final judgment because all of the claims involved had not been determined and the language required by Rule 304(a) was not included. The Pettit court found that the decree was final in all respects, except with regard to attorney's fees, and then went on to make the following statement:

"If the trial court reserves jurisdiction to later rule on the question of attorney's fees, that ruling may be made in a `supplemental decree' subsequent to entry of a final, appealable decree. Bremer v. Bremer (1954), 4 Ill.2d 190, 191-92, ...


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