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In re Marriage of Carr

June 20, 2001

IN RE MARRIAGE OF MARGARET CARR, PETITIONER-APPELLANT, AND WAYNE CARR, RESPONDENT-APPELLEE.


The opinion of the court was delivered by: Justice Burke

Not Released For Publication

IN RE MARRIAGE OF MARGARET CARR, PETITIONER-APPELLANT, AND WAYNE CARR, RESPONDENT-APPELLEE.

The opinion of the court was delivered by: Justice Burke

Appeal from the Circuit Court of Cook County. Honorable LaQuietta L. Hardy, Judge Presiding.

Petitioner Margaret Carr ("Peggy") appeals from three orders of the circuit court granting respondent Wayne Carr's (Wayne) petition to set child support and ordering the payment amounts retroactive. On appeal, Peggy contends that the trial court abused its discretion in deviating from the statutory guideline amount of child support set forth in section 505 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/505 (West 1998)), and in reducing child support from $6,000 per month to $4,000 per month. For the reasons set forth below, we dismiss this appeal.

 STATEMENT OF FACTS

Peggy and Wayne were married in 1979, and two children were born during the marriage: Erin, born September 26, 1980, and Colleen, born July 6, 1984. On February 14, 1989, Peggy filed a petition for dissolution of marriage and, on the same day, the trial court entered a judgment of dissolution of the marriage. A marital settlement agreement was incorporated into the dissolution judgment. The agreement awarded Peggy custody of the parties' two children; required Wayne to pay unallocated maintenance and child support in the amount of $6,250 for 12 months and, thereafter, $8,333.33 for 36 months; required Wayne to make direct payments to Peggy for the children's camp, extra curricular activities, and lessons up to $7,000 per year; and required Wayne to pay for educational expenses, including college. Both parties subsequently remarried and a daughter, Molly, was born to Wayne and his second wife.

On September 16, 1998, Wayne filed a "Petition to Set Child Support," seeking a modification of the parties' previous marital settlement agreement based upon Erin's emancipation. Wayne alleged that circumstances had changed because Erin had graduated from high school, was attending college, and had turned 18 years of age. According to Wayne, it would not be equitable for him to pay all of Erin's college expenses and still pay $6,000 per month for child support of one child, Colleen. On April 28, 1999, the trial court, after hearing the evidence presented by the parties, concluded that a modification of child support was warranted as a substantial change had occurred, i.e., Erin had graduated from high school, she had turned 18, and she was attending college. The court noted that there was no agreement between the parties with respect to Wayne making child support payments past either child reaching the age of 18, nor did the dissolution judgment extend support payments for Erin past her 18th birthday. The court further noted that Wayne paid 100% of Erin's college expenses at a cost, at that time, of $11,700, Wayne's net income for 1998 was $557,196, and the statutory 20% would be $111,439 per year or $9,287 per month. After the trial court evaluated each of the statutory factors set forth in section 505 of the Act, it was the court's opinion that the statutory amount of $9,287 "far exceed[ed] the reasonable needs of Colleen," and that the statutory amount was "inappropriate." Upon further considering the best interests of Colleen, in light of the evidence, the court concluded that a deviation from the statutory amount of section 505 of the Act was warranted. Accordingly, the court ordered Wayne to pay $4,000 per month child support for Colleen, retroactive to March 1, 1999.

Thereafter, both Peggy and Wayne filed motions to reconsider. Prior to the trial court's decision on the motions, Peggy filed a petition for contribution for attorney fees on August 16, 1999. On August 27, 1999, the trial court granted Wayne's motion to reconsider, ordering that the child support amount would be retroactive to September 16, 1998, the date Wayne filed his petition to set child support, and denied Peggy's motion to reconsider.

On October 4, 1999, Peggy filed a "petition for rule to show cause for Wayne's failure to pay Erin's college expenses." On March 9, 2000, an agreed order was entered, requiring Wayne to pay Erin's college expenses and $5,000 of Peggy's attorney fees. This appeal followed.

ANALYSIS

This court has a duty to sua sponte consider the issue of jurisdiction even if the parties fail to raise the issue. In re Adoption of Ginnell, 316 Ill. App. 3d 789, 790, 737 N.E.2d 1094 (2000). A party seeking to appeal a trial court's judgment must file a notice of appeal within 30 days after entry of a final judgment or within 30 days after entry of an order disposing of the last pending posttrial motion, if any. 155 Ill. 2d R. 303(a)(1). "A final judgment is one that fixes absolutely and finally the rights of the parties in the lawsuit; it is final if it determines the litigation on the merits so that, if affirmed, the only thing remaining is to proceed with the execution of the judgment. [Citation.] To be final, a judgment must dispose of or terminate the litigation or some definite part of it." Ginnell, 316 Ill. App. 3d at 793.

In the instant case, Peggy contends that the trial court's March 9, 2000, order (requiring Wayne to pay Erin's college expenses and ordering him to pay $5,000 of Peggy's attorney fees) rendered the trial court's August 27, 1999, order (granting Wayne's motion to reconsider and denying Peggy's motion to reconsider) and its April 28, 1999, order (setting child support) final. According to Peggy, because a petition for attorney fees was pending, she could not appeal the order setting child support until the fee issue was resolved.

The cases Peggy relies upon in support of her contention, In re Marriage of Tomei, 253 Ill. App. 3d 663, 624 N.E.2d 884 (1993), and In re Marriage of Tyler, 230 Ill. App. 3d 1009, 596 N.E.2d 119 (1992), are distinguishable. In each case, the petitioner filed a notice of appeal while a fee petition was still pending in the trial court following entry of the judgment of dissolution. In both cases, the appellate courts concluded that the notice of appeal was premature ...


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