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In re Parentage of M.M.W.

June 05, 1998

IN RE PARENTAGE OF M.M.W., A MINOR (MARCI MARIE WEBBER, PETITIONER-APPELLANT,
v.
ROBERT LESLIE THOMPSON, RESPONDENT-APPELLEE).



The opinion of the court was delivered by: Justice Thomas

Appeal from the Circuit Court of McHenry County.

No. 93--FA--217

Honorable Haskell M. Pitluck, Judge, Presiding.

The petitioner, Marci Marie Webber, appeals from various orders of the circuit court of McHenry County that (1) denied her petition to terminate the parental rights of the respondent, Robert Leslie Thompson, to the parties' minor daughter, M.M.W., and allow the adoption of the child by the petitioner's husband, Linus Liubinskas; (2) transferred temporary custody of the child to the respondent; and (3) transferred permanent custody of the child to the respondent. We affirm in part and reverse in part.

The record shows that on June 9, 1993, the petitioner filed a petition to declare the respondent the father of her child, M.M.W., who was born on August 21, 1992. The parties were never married. The petition also sought to terminate the respondent's parental rights alleging, inter alia, that the respondent was an "unfit person" as shown by his failure to make a good faith effort to pay a reasonable amount of the expenses related to the birth of the child pursuant to sections 1(D)(n) and 8(a)(1) of the Adoption Act (750 ILCS 50/1(D)(n), 8(a)(1) (West 1996)).

On March 17, 1994, the trial court entered an order granting the respondent temporary visitation. On April 28, 1994, the court established a support obligation on the part of the respondent and enjoined the petitioner from removing the child from the state of Illinois without an order from the court. On January 11, 1995, the trial court entered an order establishing the respondent's paternity. On March 20, 1995, the petitioner filed an amended petition to allow her husband to adopt M.M.W. On April 12, 1995, the trial court dismissed the petitioner's petition to adopt. The cause remained before the court on a petition to increase child support brought by the petitioner, an attorney fees petition requesting sanctions pursuant to Supreme Court Rule 137 (155 Ill. 2d R. 137) brought by the respondent, and various rules to show cause brought by the respondent in relation to the petitioner's lack of compliance with the court's visitation order. On May 30, 1995, the trial court held the petitioner in contempt of court for violations of visitation occurring in October and November 1994.

Sometime after the trial court dismissed the petitioner's petition to adopt, she moved to the state of Ohio. On July 24, 1995, she filed an action in Ohio under the Uniform Child Custody Jurisdiction Act (750 ILCS 35/1 et seq. (West 1996)), alleging that M.M.W. had indicated that the respondent had sexually abused her. On July 25, 1995, the Ohio court entered an order suspending the respondent's visitation. As part of the Ohio action, the petitioner falsely filed an affidavit indicating that she had been a resident of the state of Ohio for the six months preceding the filing of the action. On that same day, the respondent filed a petition in the circuit court of McHenry County to transfer custody, alleging that custody should be modified because the petitioner had interfered with his visitation rights and removed herself and the minor child from the jurisdiction without proper leave of court.

On July 26, 1995, the trial court found that the petitioner had willfully and contemptuously taken the child to the state of Ohio. Without conducting an evidentiary hearing, the court transferred temporary custody of the child to the respondent. On July 27, 1995, the Ohio court vacated its prior order and recognized that the McHenry County court had jurisdiction over the matter.

On September 3, 1996, the McHenry County trial court entered an order transferring permanent custody to the respondent. The court continued the case for a hearing on the issues of visitation and support. In reaching its decision to permanently transfer custody to the respondent, the court found that section 602 of the Illinois Marriage and Dissolution of Marriage Act (the Marriage Act) (750 ILCS 5/602 (West 1996)) was the appropriate standard to apply in considering the petition to transfer custody rather than the standard enunciated in section 610 of the Marriage Act (750 ILCS 5/610 (West 1996)), which applies to petitions to modify custody orders within two years of a prior custody order. The court found that the petitioner was unwilling to facilitate a continuing relationship between the minor and the father as shown by the numerous rules to show cause filed in the case for violations of prior visitation orders and her temporary move to the state of Ohio.

On November 25, 1996, the trial court entered an order setting a visitation schedule. On April 15, 1996, the court set the petitioner's support obligation and continued the case to May 12, 1997, for a ruling on the respondent's motion for sanctions.

The petitioner had filed three petitions for rules to show cause against the respondent for his violation of the court's visitation order. On May 12, 1997, the court found the respondent in contempt of court on the first petition for rule to show cause and then dismissed the other two petitions. The court further discharged the contempt order that had been entered against the petitioner and dismissed the petitions for rule to show cause that had been filed against her. On that same day, the trial court also entered an order granting the respondent's petition for sanctions pursuant to Supreme Court Rule 137, and it ordered the petitioner to pay $8,371 in attorney fees. The order provided that it was a final order in the case but did not contain Supreme Court Rule 304(a)'s language "that there is no just reason for delaying enforcement or appeal" (155 Ill. 2d R. 304(a)).

As a preliminary matter, we must address the respondent's contention that this court lacks jurisdiction to entertain the petitioner's appeal because the order from which she appeals, that of May 12, 1997, was not final.

An appellate court's jurisdiction is confined to reviewing appeals from final orders or judgments (155 Ill. 2d Rs. 301, 303, 304), unless the particular order or judgment falls into an enumerated category permitting interlocutory appeals. See 155 Ill. 2d Rs. 307, 308. A final order disposes of the rights of the parties, either upon the entire controversy or upon some definite and separate part thereof. See Village of Niles v. Szczesny, 13 Ill. 2d 45, 48 (1958). In a paternity action, once parentage is established and custody, visitation, and support are determined, ancillary or incidental issues reserved for future consideration such as the enforcement of a support order or an increase in the amount of support do not render a final judgment non-final. See Franson v. Micelli, 172 Ill. 2d 352, 356 (1996).

Here, when the trial court entered its May 12, 1997, order, the rights of the parties with respect to the matters raised in the petitioner's petition to establish parentage and adopt and the respondent's petition to transfer custody had been disposed of by previous orders of the court. The trial court established parentage, transferred custody to the respondent, set a support obligation and a visitation schedule, and then finally ruled on the respondent's motion for Rule 137 sanctions. The court's May 12, 1997, order ruling on the respondent's motion for sanctions was the final order in the case. See Gaynor v. Walsh, 219 Ill. App. 3d 996, 999-1002 (1991). Although the petitioner had motions pending to modify and clarify visitation and to obtain a restraining order against the respondent's spouse, these matters were ancillary and incidental to the orders transferring custody and establishing a support obligation ...


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