APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
NANCY ALUSH, Respondent-Appellee
527 N.E.2d 66, 172 Ill. App. 3d 646, 122 Ill. Dec. 694 1988.IL.1138
Appeal from the Circuit Court of Lake County; the Hon. Jane D. Waller, Judge, presiding.
JUSTICE UNVERZAGT delivered the opinion of the court. LINDBERG, P.J., and WOODWARD, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE UNVERZAGT
Petitioner, Yossef Alush, appeals from the denial of his petition for a rule to show cause why respondent, Nancy Alush, should not be held in contempt for her alleged violation of certain terms of an Israeli divorce decree relating to custody and visitation of their two minor children. The circuit court of Lake County extended recognition to the decree, which petitioner had filed with the court pursuant to section 16 of the Uniform Child Custody Jurisdiction Act (Act) (Ill. Rev. Stat. 1987, ch. 40, par. 2116). The primary issue on appeal is whether the circuit court properly determined that it did not have the authority to hold Nancy in contempt for conduct which violated the terms of the Israeli decree, but which occurred prior to the filing of that decree with the circuit court. Additionally, Yossef contends that the trial court erred by allowing a restraining order prohibiting either party from removing the children from the jurisdiction to continue in effect after the court extended recognition to the Israeli decree. Nancy has filed a motion to dismiss the appeal, asserting that the order denying the rule to show cause is not final and appealable, and we have ordered this motion to be taken with the case. For the reasons stated herein, we deny the motion to dismiss the appeal and affirm the order of the circuit court denying the rule to show cause.
Yossef and Nancy were married in Israel in 1975. They moved to Chicago about two years after their wedding along with their daughter, Sivan, who was born in Israel in 1977. About one year later, Yossef, Nancy, and Sivan moved to a condominium in Des Plaines. Yael, the couple's second daughter, was born in Highland Park in 1982. In 1983, the family returned to Israel.
Yossef and Nancy were granted a divorce by an Israeli court in May 1987. They had previously entered into an agreement concerning custody and visitation which provided that Nancy would receive custody of the children but was not to remove them from Israel without written consent from Yossef. Yossef was entitled to exercise visitation rights for 4 1/2 hours each Tuesday, for three Sabbaths every month, and on half the school holidays and Israeli festivals. The Israeli court approved this agreement in 1986 and gave it the force of judgment.
In July 1987, Nancy removed the children from Israel, taking them to Highland Park, where her parents live. Nancy telephoned Yossef when she reached the United States and informed him that she could not live in Israel anymore. Nancy told Yossef that she and the children wanted to live in the United States and that the United States was the best place for them to live. Nancy had not received written permission from Yossef to remove the children from Israel.
On August 7, 1987, Yossef filed a petition to enroll the Israeli decree with the circuit court of Lake County and a petition for rule to show cause and other relief against Nancy. That same day, the circuit court entered an order directing Nancy to appear in court on August 14 with the children. On August 14, the court continued the pending matters for further hearing and issued an order enjoining the parties from removing the children from the jurisdiction. Another trial court order dated August 20 states that the restraining order of August 14 remains in effect. On August 28, the court granted Yossef's petition to enroll the Israeli judgment, continued the hearing on the petition for rule to show cause until September 14, and granted Nancy leave to file a petition to modify the Israeli decree, which she filed on September 14.
At the September 14 hearing, Nancy admitted that she had removed the children from Israel in July without written consent from Yossef. The trial court ruled that Nancy could not be held in contempt by an Illinois court for conduct that took place outside the State prior to the enrollment of the Israeli judgment. The trial court ruled further that Nancy could not be punished for failing to return the children to Israel after the enrollment of the Israeli decree because the order of August 14 requiring her to keep the children in Illinois was still in effect. Yossef now appeals from the denial of the petition for rule to show cause.
We must first consider Nancy's motion to dismiss the appeal on the basis that the order in question is not final and appealable. The instant appeal was brought as an interlocutory appeal pursuant to Supreme Court Rule 304(a) (107 Ill. 2d R. 304(a)), the trial court having made the requisite finding that there was no just reason to delay enforcement or appeal. Nancy's argument that the appeal should be dismissed is premised upon the fact that her petition for modification of the Israeli decree was still pending at the time the appeal was taken. Rule 304(a) states that when the trial court makes the requisite finding in a case involving multiple parties or claims, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims. (107 Ill. 2d R. 304(a).) Our supreme court has held that a petition for dissolution of marriage advances but a single claim and that ancillary issues such as custody, property Disposition and support are separate issues relating to that single claim. (In re Marriage of Leopando (1983), 96 Ill. 2d 114, 119.) The Leopando holding does not apply to post-dissolution proceedings, however. (In re Custody of Purdy (1986), 112 Ill. 2d 1, 5.) Leopando is therefore inapplicable to the case at bar. Even though the order denying the petition for rule to show cause did not resolve all pending claims, it is appealable if it was a final judgment order with regard to a separate claim.
In Gentile v. Gentile (1980), 87 Ill. App. 3d 311, the court held that an order denying a petition for rule to show cause why respondent should not be held in contempt for failing to pay child support was not final and appealable because petitioner could still seek an arrearage judgment and the order did not completely dispose of the rights of the parties. (Gentile, 87 Ill. App. 3d at 313.) The Gentile holding would indicate that the order denying Yossef's petition for rule to show cause is not final and appealable, since it did not preclude Yossef from taking other steps to enforce the Israeli judgment, such as seeking ...