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Atkinson v. Atkinson

OPINION FILED NOVEMBER 13, 1981.

JANET R. ATKINSON, APPELLEE,

v.

JOHN F. ATKINSON APPELLANT.



Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Albert Porter and Hon. Charles Fleck, Judges, presiding.

MR. JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:

Rehearing denied November 25, 1981.

The marriage of John F. Atkinson (Jeff) and Janet R. Atkinson (Janet) was dissolved by the circuit court of Cook County on October 5, 1978. On January 25, 1979, the trial court awarded custody of the two daughters, ages 8 and 6, to Janet with liberal visitation to Jeff and reserved the question of specific visitation, child support, property division, and assessment of fees and costs. Jeff filed an appeal from this order on February 13, 1979, specifying the issue of custody. On March 26, 1979, the court awarded the marital home to Janet and made certain dispositions of property. On June 13, 1979, the court issued a supplemental judgment order which, inter alia, provided for certain dispositions of property, child support and visitation, rehabilitative maintenance, and fees and costs. On July 12, 1979, Jeff filed a second notice of appeal complaining of two provisions of the supplemental judgment.

On March 20, 1980, the Appellate Court for the First District affirmed the award of custody and stated the circuit court decision was not decided on the basis of sex and the record did not demonstrate an improper presumption in favor of the mother. The appellate court also affirmed the award of the marital home to Janet, inter alia, but reversed that part of the circuit court's judgment requiring the establishment of a trust fund for the benefit of the children. (82 Ill. App.3d 617.) We granted Jeff Atkinson's petition for leave to appeal.

We initially consider Janet Atkinson's contention that this court lacks jurisdiction to entertain Jeff's appeal from the circuit court's order awarding custody on January 25, 1979. She argues that the custody order was not final and appealable, and Jeff is therefore precluded from raising the custody issue on appeal.

Under Supreme Court Rule 304(a) (73 Ill.2d R. 304(a)), where multiple claims for relief are involved in an action, an appeal from a final judgment as to less than all of the claims may only be taken if the trial court has made an express written finding that there is "no just reason for delaying enforcement or appeal." No such finding was made here. Thus, the custody order was not a judgment from which an immediate appeal could be taken.

"The provisions of our rule were aimed at discouraging piecemeal appeals in the absence of some compelling reason and at removing the uncertainty as to the appealability of a judgment which was entered on less than all of the matters in controversy." In re Marriage of Lentz (1980), 79 Ill.2d 400, 407.

See Davis v. Childers (1965), 33 Ill.2d 297, 300.

The order entered January 25, 1979, awarding custody to Janet was not a final order subject to the right of appeal. It did not contain the required Rule 304(a) findings. White Way Sign & Maintenance Co. v. Seltzer Pontiac, Inc. (1974), 56 Ill.2d 342, 345.

Rule 303(c)(2) (73 Ill.2d R. 303(c)(2)) requires the appellant to "specify the judgment or part thereof appealed from." In the notice of appeal dated July 12, 1979, Jeff asked for a review of two provisions in the supplemental judgment order of June 13, 1979, concerning the interest in the marital home and the establishment of a trust fund for the children. The notice of appeal is expressly limited to these matters. Jeff failed to specify that he was appealing the award of custody in his July 12, 1979, notice of appeal. Therefore we conclude that the appellate court lacked jurisdiction to review the custody award. (See People v. Lowe (1975), 30 Ill. App.3d 49, 51; Wells v. Kern (1975), 25 Ill. App.3d 93, 99; People v. Harvey (1972), 5 Ill. App.3d 499, 502, cert. denied (1973), 410 U.S. 983, 36 L.Ed.2d 179, 93 S.Ct. 1504; Scheffler v. Ringhofer (1966), 67 Ill. App.2d 222, 224-25.) The judgment of the appellate court concerning custody is thus vacated and the appeal from the order awarding child custody is dismissed.

We now consider the award of the marital property. The trial court awarded Janet Atkinson all of the marital property (with the exception of Jeff Atkinson's individual retirement account), rehabilitative maintenance of $350 per month for four months, as well as the entire interest in the marital home. Jeff Atkinson was ordered to pay $261 per week in child support, and establish a $100,000 trust fund to secure the children's education and support.

We agree with the appellate court that the trial court exceeded the scope of its discretion in ordering the establishment of a trust ...


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