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In Re Marriage of Leopando

OPINION FILED APRIL 22, 1983.

IN RE MARRIAGE OF FRANCINE LEOPANDO, APPELLEE, AND OLIVO LEOPANDO, 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. Allen F. Rosin, Judge, presiding.

JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:

On December 9, 1981, the circuit court of Cook County entered an order dissolving the marriage of plaintiff, Francine Leopando, to defendant, Olivo Leopando. On December 15, 1981, the court awarded permanent custody of the parties' minor child, Philippe, to defendant. The custody order stated "that there is no just reason to delay enforcement or appeal of this Order" and reserved for future consideration the issues of maintenance, property division, and attorney fees. The appellate court reversed and remanded the cause, concluding that the order awarding custody to defendant was contrary to the manifest weight of the evidence. (106 Ill. App.3d 444.) We granted defendant leave to appeal.

Two issues are raised for review: (1) whether the custody order was final and appealable under Supreme Court Rule 304(a), and (2) whether the trial court's decision awarding custody to defendant was contrary to the manifest weight of the evidence.

Supreme Court Rule 304(a) provides, 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 that there is no just reason for delaying enforcement or appeal. * * * In the absence of such a finding, any judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties."

73 Ill.2d R. 304(a).

Defendant questions the appealability of the custody order under the above-quoted rule. Plaintiff answers by stating that this issue was not raised in the appellate court, and our review of the briefs filed in that court substantiates plaintiff's claim. Consequently, under the authority of this court's recent decision in In re Marriage of Cohn (1982), 93 Ill.2d 190, the issue could be considered waived.

In Cohn it was held that, under the former language of section 401(3) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 401(3)), trial courts> could not enter an order dissolving the marriage while reserving questions of support, maintenance, custody and property disposition for future consideration. Although determining that the provisions of section 401(3) were mandatory, this court implicitly found that they did not present a jurisdictional requirement. Therefore, in the absence of an objection to the order, and where the issue was not raised on review, it was deemed to have been waived.

Similarly, Rule 304(a) does not present a jurisdictional requirement in the sense that it cannot be waived. The question arising under our rule concerns the right to appeal a judgment and not whether the judgment entered in the trial court is proper. We would therefore be justified in declining to consider the issue of whether the custody order was final and appealable. However, a review of recent case law involving the effect of Rule 304(a) on the appealability of dissolution orders convinces us that the issue should be addressed.

It seems clear that the law at the time of the instant appeal implied that custody orders, containing the requisite Rule 304(a) language by the trial court, were immediately appealable. (See, e.g., Atkinson v. Atkinson (1981), 87 Ill.2d 174; In re Marriage of Cohn (1981), 94 Ill. App.3d 732; In re Marriage of Nilsson (1980), 81 Ill. App.3d 580.) For example, in Atkinson, the trial court awarded custody of the parties' children to the mother, and reserved the questions of support, property division, and assessment of fees and costs. The order did not contain the Rule 304(a) language that there is no just reason to delay enforcement or appeal. In holding that the custody order was not appealable, this court stated:

"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." 87 Ill.2d 174, 177.

A fair reading of Atkinson indicates that a custody order is a final judgment as to less than all of the claims in a dissolution proceeding. Implicitly, the only reason the order was deemed non-appealable was the trial court's failure to recite the requisite Rule 304(a) language. For a number of reasons, we do not believe that a custody order constitutes a final judgment as to a separate claim in a dissolution proceeding.

Subsequent to the appeal taken herein, this court amended Supreme Court Rule 306, which amendment became effective on July 1, 1982. ...


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