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In Re Marriage of Lord

OPINION FILED JUNE 20, 1984.

IN RE MARRIAGE OF ROBERT LORD, PETITIONER AND COUNTERRESPONDENT-APPELLANT, AND ARLENE LORD, RESPONDENT AND COUNTERPETITIONER-APPELLEE


Appeal from the Circuit Court of Du Page County; the Hon. James W. Jerz, Judge, presiding.

PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:

Robert Lord appeals from a supplemental judgment entered in a dissolution-of-marriage proceeding. He contends that the trial judge abused his discretion in reserving maintenance until March 1985, erred in distribution of the marital property, and erred in ruling on attorney fees.

I

A preliminary question, which has not been raised by the parties, is whether the judgment reserving maintenance is appealable. Our analysis of the recent supreme court case of In re Marriage of Leopando (1983), 96 Ill.2d 114, is central to this.

Leopando decides that only a single claim is presented in a proceeding for dissolution of marriage; and that other issues such as custody, property disposition, maintenance, support, and attorney fees, are not separate claims, but rather interrelated issues which are merely ancillary to the cause of action. 96 Ill.2d 114, 119.

The supplemental decree entered here on April 28, 1983, found, based on medical testimony, that Arlene Lord has consistently shown symptoms of Raynaud's disease, and that she "might develop a disabling collagen disease within ten (10) years of the initial symptom and that this disease, if it is to occur, should be apparent by 1985." The court found that if she did develop the disease the amount of marital property assigned to her would not be adequate to support her without assistance from Robert Lord. Based on these findings the court ordered:

"That maintenance for ARLENE LORD is reserved and may be set in the future if she shall be found within the time from entry of Judgment until March, 1985, to be suffering from a known collagen disease or other potentially disabling condition resulting from or associated with Raynaud's disease or Raynaud's phenomena."

• 1, 2 The reservation of maintenance has statutory authority based on the agreement of the parties or motion of either party and a finding by the court that appropriate circumstances exist. (Ill. Rev. Stat. 1983, ch. 40, par. 401(3); see also In re Marriage of McNeely (1983), 117 Ill. App.3d 320, 329.) While the authority to reserve issues does not directly speak to finality and appealability, we consider that it does so indirectly. Where jurisdiction is appropriately reserved, the public policy against fragmented litigation referred to in Leopando (In re Marriage of Leopando (1983), 96 Ill.2d 114, 119-20) will not be significantly undercut by granting finality to the judgment. (Cf. In re Marriage of Parks (1984), 122 Ill. App.3d 905, 908.) In Parks, the trial court resolved all issues over which it had in personam jurisdiction. The fact that it reserved substantial issues, including distribution of property, maintenance and child support, which it lacked personal jurisdiction to adjudicate, was held to distinguish Leopando, and the judgment was found to be final and appealable.

• 3 We perceive a parallel policy here. The reservation of jurisdiction here was neither arbitrary nor designed solely for convenience, but was motivated by a legitimate concern for Arlene's circumstances which may not have been able to be dealt with in any other manner. As in Parks, the circumstances of this case are also unique. There is a finding that a party has organic symptoms of a disease which may or may not manifest itself in a disabling disease, but that question is determinable, based on expert medical testimony, within a certain period of time. Implicitly, the trial court is finding that no maintenance is justified under the present circumstances but that if the condition develops the distribution of property would be inadequate to protect the wife. If properly based, the trial court's decision would appear to be the wise one. On the other hand it would be extremely unfair to the husband, should the order be shielded from appellate review for a considerable period of time if, in fact, the court's discretion has not been properly exercised.

In Leopando, the appeal of questions of custody was protected by Supreme Court Rule 306(a)(1) (87 Ill.2d R. 306(a)(1)), providing for application for leave to appeal from interlocutory custody orders. (In re Marriage of Leopando (1983), 96 Ill.2d 114, 118.) Here, absent our resolution in favor of the appealability of the order reserving maintenance, there is no apparent avenue for interlocutory appeal, as judgments for dissolution which reserve some issues do not fall within the scope of the provision for review of interlocutory orders under Leopando, since no multiple claims are involved. See 87 Ill.2d Rules 306-08.

It should also be noted that in Leopando only one issue, custody, was resolved. Here, only one issue was reserved and the policy against piecemeal appeals is not so severely impacted. In effect, there was a final conclusion on the present lack of need of maintenance and retention of jurisdiction to modify the decree and to award maintenance if the known symptoms developed into a debilitating disease. The substance of the judgment was to decide fully that which could fairly then be decided.

For these reasons we conclude that Leopando is distinguishable, and that the judgment is final and appealable.

II

On the merits, we conclude that the trial court's ruling is an appropriate exercise of ...


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