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In Re Marriage of Cannon

OPINION FILED APRIL 24, 1985.

IN RE MARRIAGE OF SAM P. CANNON, PETITIONER AND COUNTERRESPONDENT-APPELLEE AND CROSS-APPELLANT, AND MARLENE CANNON, RESPONDENT AND COUNTERPETITIONER-APPELLANT AND CROSS-APPELLEE.


Appeal from the Circuit Court of Champaign County; the Hon. Harold L. Jensen, Judge, presiding.

JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

In December 1983 the trial court entered an order dissolving the marriage of the parties and in July 1984 entered an order making a property division and awarding maintenance. Respondent, Marlene Cannon, appeals urging that her property award was insufficient. Petitioner, Sam Cannon, cross-appeals contending that the award of maintenance was too great. In light of the disposition which we find to be required, it is unnecessary to review the extent of marital property, evidence of its value, and its capacity to produce income for the respective parties.

The order of the trial court for maintenance includes:

"Sam [petitioner] is hereby ordered to pay to Marlene [respondent] as maintenance the sum of $2,500.00 monthly, commencing forthwith. In addition, Sam is ordered to provide for Marlene, and pay for, the health insurance policy which he testified would cost $120.00 per month. The Court orders this for a period of two years from the date of this order. The Court intends that this be reviewable no later than the expiration of two years and sooner if the circumstances of the parties change significantly." (Emphasis added.)

The court indicated that if petitioner's business prospered the maintenance provision could be raised. On the contrary, if the business deteriorated and the respondent obtained employment or circumstances changed, these changes would be taken into consideration.

Section 504(b) of the Illinois Marriage and Dissolution of Marriage Act provides that an award of maintenance shall be "for such periods of time as the court deems just." (Ill. Rev. Stat. 1983, ch. 40, par. 504(b).) We note that certain appellate courts have recognized orders of the trial court which make an award of maintenance for a stated period but reserve jurisdiction to modify or change the award at the end of the period. (In re Marriage of McNeeley (1983), 117 Ill. App.3d 320, 453 N.E.2d 748; In re Marriage of Asch (1981), 100 Ill. App.3d 293, 426 N.E.2d 1066.) The rationale appears to be that such form of order permits the trial court to modify the terms of maintenance without the necessity of showing a substantial change in circumstances as is required by section 510(a) of the Act. Ill. Rev. Stat. 1983, ch. 40, par. 510(a).

• 1 Implicit in the order is the conclusion that the language of the trial court was not deemed to be final but that the trial court retain jurisdiction "to review" the order within no more than two years. If the award is interpreted as temporary maintenance for a stated term of two years, it is, nevertheless, reserved for review by the trial court in not less than two years. If interpreted as an award of permanent maintenance, it is still reserved for review by the trial court within the same term. A third interpretation is that it will be determined, upon review in the trial court in not less than two years, whether the maintenance is to be temporary or permanent. While such form of order may be a highly useful procedural tool, it avoids the mandate of section 510(a) of the Act that provisions for maintenance be modified "only upon a showing of a substantial change in circumstances." Upon either interpretation there is no actual attempt at present finality, but only an incomplete property settlement. As so reserved in the trial court's order, that court may act within the equitable standards of a property settlement rather than the statutory standard of "substantial change."

• 2 We must conclude that the issue of the appealability of the order of the trial court is controlled by the rationale of In re Marriage of Leopando (1983), 96 Ill.2d 114, 449 N.E.2d 137, and the opinion of this court, in In re Marriage of Rosenow (1984), 123 Ill. App.3d 546, 462 N.E.2d 1287, and is not an appealable order.

In Leopando the trial court entered an order awarding permanent custody of a minor child but reserved the issues of property division, maintenance, and attorney fees. The order included a finding as provided in Supreme Court Rule 304(a) (87 Ill.2d R. 304(a)).

In examining the issues of whether or not such order was final and appealable, the court said:

"A petition for dissolution advances a single claim; that is, a request for an order dissolving the parties' marriage. The numerous other issues involved, such as custody, property disposition, and support are merely questions which are ancillary to the cause of action. [Citation.] They do not represent separate, unrelated claims; rather, they are separate issues relating to the same claim." In re Marriage of Leopando (1983), 96 Ill.2d 114, 119, 449 N.E.2d 137, 140.

In Rosenow the trial court entered an order for dissolution and property settlement, reserving, however, the apportionment of the rights of the parties in the pension which would become payable to a spouse in the future. In reliance upon Leopando, this court held that the reservation of such issue prevented the order from becoming final even as to a claim in the case.

In Rosenow this court interpreted the quoted language of Leopando to mean:

"In the absence of a complete resolution of all issues present in a dissolution of marriage proceeding, an order entered in such a proceeding deciding such an issue is not a final order even as to a claim and thus is not appealable except in accordance with the Supreme Court Rules specifically applicable to interlocutory appeals." ...


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