Appeal from the Circuit Court of Carroll County. No. 01-D-67 Honorable Val Gunnarsson, Judge, Presiding.
The opinion of the court was delivered by: Justice Gilleran Johnson
The trial court entered a final judgment on respondent Tamara Duggan's post-dissolution petition to increase child support, without making a finding under Supreme Court Rule 304(a) (210 Ill. 2d R. 304(a)). The petitioner, Darrell Duggan, appealed. However, when he appealed, his own post-dissolution petition regarding visitation was pending. We are thus required to examine whether we have jurisdiction over this appeal. Although we conclude that we do, our conclusion as to the basis for our jurisdiction requires some explanation before we proceed to the merits of the appeal.
On January 17, 2002, the trial court dissolved the parties' marriage. The dissolution judgment included an agreement that Darrell would pay child support of $120 per week. In August 2005, Tamara petitioned to increase child support to reflect both a change in the statutory support guidelines for two children (compare 750 ILCS 5/505(a)(1) (West 2004) with 750 ILCS 5/505(a)(1) (West 2002)) and an increase in Darrell's income. On that petition, the parties agreed to the entry of an order under which Darrell would pay "28% of net income every two weeks."
Twenty-six days after the court entered that judgment, Darrell moved to vacate it on the grounds that a support order should state a specific dollar amount instead of a percentage and that the wrong termination date had been entered. At the same time, he filed a petition to establish specific visitation times. On December 21, 2005, the trial court granted the motion to vacate in part and denied it in part, correcting the termination date but refusing to set a dollar amount for support. The court did not make a finding of appealability pursuant to Supreme Court Rule 304(a). Darrell filed his notice of appeal on January 18, 2006. The trial court did not resolve his petition to set specific times for visitation until May 23, 2006.
Jurisdiction and Retroactivity of Supreme Court Rule Amendments Although neither of the parties to this appeal initially raised the issue of our jurisdiction, a reviewing court has a duty to consider sua sponte whether it has jurisdiction and to dismiss an appeal if it lacks jurisdiction. In re Marriage of Link, 362 Ill. App. 3d 191, 192 (2005). We therefore ordered the parties to submit supplemental briefing on this issue. Rule 304(a) requires a special finding by the trial court in order to appeal the final judgment on one claim when others remain pending before the trial court. Thus, if the two petitions were considered claims within the same action, we would lack jurisdiction because the December 21, 2005, order from which Darrell appeals disposed of fewer than all pending claims in this action, and there was no Rule 304(a) finding. In the supplemental briefs, Darrell argued that separate post-dissolution petitions are best seen as new actions, so he could immediately appeal the final order resolving Tamara's child support petition under Rule 301 despite the pendency of his visitation petition. The alternate approach is to view post-dissolution petitions as stating new claims within the dissolution action, in which case there must be a Rule 304(a) finding in order to appeal a final order on one petition when another is still pending. For the reasons discussed below, we conclude that the latter view of post-dissolution petitions as new claims rather than new actions is the appropriate one.
During our deliberations, however, the supreme court issued amendments to Rule 303(a), which governs the time for filing an appeal (see Official Reports Advance Sheet No. 8 (April 11, 2007), R. 303(a)(2), eff. May 1, 2007). As amended, the rule acts to save appeals that would otherwise be premature by providing that, when a timely postjudgment motion has been filed, a notice of appeal filed before "the final disposition of any separate claim" does not become effective until the order disposing of the separate claim is entered. Official Reports Advance Sheet No. 8 (April 11, 2007), R. 303(a)(2), eff. May 1, 2007. Thus, in order to decide whether we have jurisdiction over Darrell's appeal, we must first determine whether the amendments to Rule 303(a) should apply to all cases pending before the appellate court on the effective date, including this one (retroactive application), or only to those appeals filed after the effective date (prospective application).
In Commonwealth Edison Co. v. Will County Collector, 196 Ill. 2d 27, 39 (2001), Illinois adopted the retroactivity analysis contained in Landgraf v. USI Film Products, 511 U.S. 244, 128 L.Ed. 2d 229, 114 S.Ct. 1483 (1994). Landgraf set forth a two-part test. In the first step, a court must determine whether the legislature stated an explicit intent regarding retroactivity. If there is such an express intent it must be followed unless doing so would violate the constitution. Allegis Realty Investors v. Novak, 223 Ill. 2d 318, 330 (2006). If the legislative intent is not clear, the court must proceed to the second step, determining whether the amendments would have retroactive effect, that is, whether application of the new law would "impair rights a party possessed when acting, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed." Allegis, 223 Ill. 2d at 331. If the new law would have such an effect, the amendments cannot be applied retroactively. Allegis, 223 Ill. 2d at 331.
In Illinois, the legislature has enacted a default directive in section 4 of the Statute on Statutes (5 ILCS 70/4 (West 2006)), which applies whenever there is no express intent regarding retroactive application contained in the amendments themselves. Section 4 provides that the amended version of a law may not be applied to any substantive matters, but may be applied to "the proceedings thereafter" (after the effective date of the amendments). 5 ILCS 70/4 (West 2006). Thus, the retroactivity analysis will never reach the second step of the Landgraf test: either the legislature will have spoken explicitly regarding whether the amendments should be retroactive, or the analysis will proceed under the default "intent" expressed in the Statute on Statutes, which translates as providing that amendments "that are procedural may be applied retroactively, while those that are substantive may not." Allegis, 223 Ill. 2d at 331.
Here, it is the supreme court and not the legislature that has amended Rule 303(a), and the supreme court has not stated specifically whether it intends those amendments to be applied to pending appeals. Supreme Court Rule 3(g) (210 Ill. 2d R. 3(g)) provides generally that the effective date of rule changes "shall be as ordered by the Supreme Court," and Rule 1 (134 Ill. 2d R. 1) provides that "[t]he rules on appeals shall govern all appeals," but these two rules still leave open the question of whether changes to rules should be applied to all appeals pending as of the effective date of the changes, or only appeals commenced after that date. Rule 2 (134 Ill. 2d R. 2) mandates that the rules "are to be construed in accordance with the appropriate provisions of 'An Act to revise the law in relation to the construction of the statutes' [the Statute on Statutes (5 ILCS 70/1 et seq. (West 2006))]." Thus, section 4 of the Statute on Statutes guides our analysis and we turn to the task of determining whether the amendments to Rule 303(a) are substantive or procedural, and whether they apply to this appeal.
Under Illinois law, the amendments must be considered procedural, as they relate solely to the manner in which an appeal of the final judgment on one claim in a multi-claim case may be heard. "In general, procedural law is ' "[t]hat which prescribes the method of enforcing rights or obtaining redress for their invasion; machinery for carrying on a suit." ' [Citations.] *** More specifically, procedure embraces 'pleading, evidence[,] and practice. Practice means those legal rules which direct the course of proceedings to bring parties into court and the course of the court after they are brought in.' " Rivard v. Chicago Fire Fighters Union, Local No. 2, 122 Ill. 2d 303, 310-11 (1988). Since the amendments to Rule 303(a) are procedural, they ordinarily would apply to pending appeals. "If an amendatory act merely affects the remedy or law of procedure, all rights of action will be enforceable under the new procedure even if they accrued prior to the change of law and the action was instituted prior to the amendment ***." Levy v. McKiel, 185 Ill. App. 3d 240, 242 (1989), citing Maiter v. Chicago Board of Education, 82 Ill. 2d 373, 390 (1980). The caveat is that even procedural amendments will not be applied retroactively when doing so would impair a "vested right," that is, a right that is sufficiently well established to be protected under the due process clause of the constitution. White v. Sunrise Healthcare Corp., 295 Ill. App. 3d 296, 298-99 (1998), citing First of America Trust Co. v. Armstead, 171 Ill. 2d 282, 289 (1996); Levy, 185 Ill. App. 3d at 242-43, citing Maiter, 82 Ill. 2d at 390-91. The facts of this case demonstrate that there are no vested rights at stake in this appeal.
"[A] right has not vested until it is so perfected, complete, and unconditional that it may be equated with a property interest." White, 295 Ill. App. 3d at 299, citing Armstead, 171 Ill. 2d at 290-91. A litigant may have a vested right in a "final judgment," as such a judgment is a form of property that is protected by due process from destruction or impairment by subsequent retroactive legislation. Arnold & Murdock Co. v. Industrial Comm'n, 314 Ill. 251, 255 (1924). However, the trial court judgment here is not a "final judgment" in that sense.
A judgment that is in the process of being appealed is not a "final judgment." "Under Illinois law, a judgment becomes a vested right of property once it is no longer subject to review or modification." (Emphasis added.) Evans v. City of Chicago, 689 F.2d 1286, 1296 (7th Cir. 1982), overruled on other grounds, 873 F.2d 1007 (7th Cir. 1989); see also Allegis, 223 Ill. 2d at 337 (the legislature infringed no protected rights by instructing that new legislation was to be applied to validate old tax levies because, "[w]hen the new law went into effect, the legal proceedings *** [regarding the levies] were not final" as the case was still pending on appeal). Thus, new procedural rules may be applied to pending appeals without interfering with a vested right. White, 295 Ill. App. 3d at 301 ("the judgment was not final while the review was pending, [and thus] the applicable law was that in effect at the time of the appeal"), citing Jacobson v. General Finance Corp., 227 Ill. App. 3d 1089, 1100-01 (1992). In sum, a litigant has " 'no vested right in the mere continuance of a law.' " Dardeen v. Heartland Manor, Inc., 186 Ill. 2d 291, 300 (1999), quoting Armstead, 171 Ill. 2d at 291.
Although we believe that a judgment that is pending on appeal is not a final judgment of the sort that gives rise to a constitutionally protected property interest, we are mindful of the supreme court's guidance in Commonwealth Edison Co. v. Will County Collector, 196 Ill. 2d 27, 47 (2001), that "the question is not simply whether the ' "rights" allegedly impaired are [labeled] "vested" or "non-vested." ' [Citation.]" Instead, courts must make " 'subtle judgments concerning the fairness or unfairness of applying the new statutory rule' " to the particular cases pending before them. Commonwealth Edison, 196 Ill. 2d at 47, quoting Moore v. Jackson Park Hospital, 95 Ill. 2d 223, 242 (1983) (Ryan, C.J., specially concurring, joined by Underwood and Moran, JJ.). Thus, we look beyond "catchpenny phrases or the ambivalent concept of 'vested' " (2 N. Singer, Sutherland Statutory Construction §41.5, at 416 (6th ed. 2001)) to determine the fairness of applying the amendments to Rule 303(a) retroactively. We conclude that applying the amendments to Rule 303(a) to this appeal does not offend considerations of fairness and equity.
There is strong support for an approach that allows us to exercise jurisdiction in order to reach the merits of the case. As courts frequently state in ruling upon requests to vacate default judgments, our " 'determinations must be made within the framework of the legal philosophy that litigation should be determined on its merits if possible and according to the substantive rights of the parties.' " In re County Treasurer, 347 Ill. App. 3d 769, 774 (2004), quoting Zee Jay, Inc. v. Illinois Insurance Guaranty Fund, 194 Ill. App. 3d 1098, 1102 (1990); see also In re Marriage of Chesrow, 255 Ill. App. 3d 613, 621 (1994). This court has in the past lamented the unfairness of dismissing an appeal as premature far after the time in which the litigants could bring a new, timely appeal. See, e.g., In re Marriage of Capitani, 368 Ill. App. 3d 486, 491 (2006) (Gilleran Johnson, J., dissenting). Indeed, preventing this hardship is the very reason that the supreme court amended Rule 303(a):
"Subparagraph (a)(2) [the amendments at issue here] protects the rights of an appellant who has filed a 'premature' notice of appeal by making the notice of appeal effective when the order denying a postjudgment motion or resolving a still-pending separate claim is entered.
[Citation.] The question whether a particular 'claim' is a separate claim for purposes of Rule 304(a) is often a difficult one. [Citations.] Subparagraph (a)(2) protects the appellant who files a notice of appeal prior to the resolution of a still-pending claim that is [later] determined to be a separate claim under Rule 304(a)." Official Reports Advance Sheet No. 8 (April 11, 2007), R. 303, Committee Comments, eff. May 1, 2007.
In light of these comments, the amendments to Rule 303(a) may be regarded as curative. Curative amendments ordinarily should be applied to pending cases. See 2 N. Singer, Sutherland Statutory Construction §41.11, at 468-69 (6th ed. 2001).
In Landgraf, the Supreme Court discussed the overarching principles of fairness at work in determining whether to apply a new law retroactively. The Court held that new law could be applied retroactively where it did not "impair rights a party possessed when he acted, increase a party's liability for past conduct, or impose new duties with respect to transactions already completed." Landgraf, 511 U.S. at 280, 128 L.Ed. 2d at 262, 114 S.Ct. 1505; see also Commonwealth Edison, 196 Ill. 2d at 38. The amendments to Rule 303(a) do not violate this test. The inapplicability of the last two factors is clear: the "saving" of a formerly defective appeal neither increases a party's liability for past conduct nor imposes additional duties relating to past transactions. The application of amended Rule 303(a) does not run afoul of the first factor, either, as it does not impair the rights that either party possessed when he or she acted. The special concurrence suggests that our ability to hear this appeal under the new Rule 303(a) impairs Tamara's "right" to a dismissal of the appeal for lack of jurisdiction. If this is a "right" at all, however, it is not a right that Tamara "possessed when she acted," as she has taken no action in reliance on our initial lack of jurisdiction. Indeed, she did not even raise the issue of our jurisdiction until we required her to do so via supplemental briefing. This fact is not simply an accident of the parties' skill in recognizing jurisdictional defects: it highlights the nature of jurisdiction--it is not a right possessed by the parties, but a prerogative of the court that we assert and determine. See Landgraf, 511 U.S. at 274, 128 L.Ed. 2d at 258, 114 S.Ct. at 1502 ("jurisdictional statutes 'speak to the power of the court rather than to the rights or obligations of the parties' [Citation]").
In Stephens v. Cherokee Nation, 174 U.S. 445, 43 L.Ed. 1041, 19 S.Ct. 722 (1899), the plaintiffs had obtained a judgment regarding tribal citizenship from a United States court in the Indian Territory. At the time, the decisions of that court regarding citizenship were unreviewable. A new statute subsequently made such judgments reviewable by the Supreme Court, and the plaintiffs appealed. The Supreme Court held that the new law could be applied to the previously unreviewable judgments without abrogating a vested right: the mere expectation that a judgment was insulated from review did not rise to the level of a vested right. Stephens, 178 U.S. at 478, 43 L.Ed. at 1053, 19 S.Ct. at 734.
Similarly, here the "right" that the special concurrence argues Tamara possesses under the old law but not the new is merely the dubious "right" to shield a potentially erroneous judgment from review. If the trial court judgment that a litigant has obtained is correct, then it will be affirmed and appellate review will not deprive that litigant of anything. If, on the other hand, the trial court judgment is incorrect, then the interests of justice require that it be corrected. In those circumstances, the interests of fairness mandate that no party should be required to bear the burden of an erroneous judgment when a reviewing court has the power to correct it. Of course, the court's power to correct erroneous judgments is not unlimited: if an erroneous judgment is not appealed, then it remains a final judgment not subject to review. But a court has the power (i.e., jurisdiction) to determine whether it has jurisdiction (People ex rel. Adamowski v. Dougherty, 19 Ill. 2d 393, 399 (1960)), and that determination is made at the time of decision, not when the appeal is initially filed. It does not serve the interests of justice to refuse to reach the merits of an appeal that is pending before a court of review on the basis that doing so would interfere with a party's interests in shielding an erroneous judgment.
The application of this principle to the case before us illustrates the point. As we shall discuss, the trial court's ruling here was directly contrary to the mandates of the child support statute (750 ILCS 5/505 (West 2004)). The trial court's erroneous judgment did not give rise to a constitutionally protected right, and its reversal does not deny Tamara due process. With no vested right at issue here, we must follow the mandate of the Statute on Statutes and apply the procedural law in place at the time of decision.
As Justice Scalia has noted, changes in the law can affect the outcome of cases even where the new law is purely procedural. Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 827, 853, 108 L.Ed. 2d 842, 864, 110 S.Ct. 1570, 1585 (1990) (Scalia, J., concurring). Nevertheless, courts regularly apply new procedural law to pending cases, even where doing so results in a different outcome. See, e.g., Thorpe v. Housing Authority of the City of Durham, 393 U.S. 268, 21 L.Ed. 2d 474, 89 S.Ct. 518 (1969) (tenant was evicted under former regulations and eviction was upheld on appeal; while case was pending before the Supreme Court a new procedural rule was enacted; Supreme Court reversed eviction on the ground that landlord had not complied with the new rule); Allegis, 223 Ill. 2d at 335-36 (applying new law that was passed while case was pending before supreme court, validating past road taxes of previously questionable validity); Kenfield-Leach Co. v. Industrial Publications, Inc., 320 Ill. 449, 450 (1926) (applying new procedural law, enacted after the conclusion of the appeal, permitting the supreme court to take the case and reverse the prior judgment); People ex rel. Madigan v. Petco Petroleum Corp., 363 Ill. App. 3d 613, 619-21 (2006) (retroactively applying amendments to Rule 274 that permitted that court to exercise jurisdiction over an appeal instead of dismissing it as untimely filed); Schweickert v. AG Services of America, Inc., 355 Ill. App. 3d 439, 444 (2005) (retroactively applying new procedural law regarding the perfection of liens and reversing trial court judgment); People ex rel. Bernardi v. City of Highland Park, 225 Ill. App. 3d 477, 480 (1992) (deletion of requirement that section 2--611 motions be filed within 30 days of the judgment was retroactive, permitting trial court to consider motion over which it otherwise would not have had jurisdiction); Board of Managers of Dominion Plaza One Condominium Ass'n No. 1-A v. Chase Manhattan Bank, N.A., 116 Ill. App. 3d 690, 693-94 (1983) (applying a procedural statute that took effect after the trial court's judgment but before the appeal was filed).
By contrast, the only cases in which a new amendment that was arguably procedural in nature was not applied to a pending case are cases relating to statutes of limitation, such as Henrich v. Libertyville High School, 186 Ill. 2d 381 (1998), and Arnold Engineering, Inc. v. Industrial Comm'n, 72 Ill. 2d 161 (1978). Statutes of limitation are not the same as jurisdictional rules, however, in that Illinois courts have held that statutes of limitation give rise to vested rights. See Sepmeyer v. Holman, 162 Ill. 2d 249, 255 (1994) (the ability to raise a particular affirmative defense such as the expiration of the statute of limitation is a right that "vests" at the time the cause of action arises). Unlike statutes of limitation, the rules of appellate jurisdiction do not give a party a defense or right that is protected under the Illinois Constitution. Thus, we disagree with the holding reached in Barter v. Slayback, 235 Ill. App. 3d 18 (1992), in which the Fifth District held that an amendment to a supreme court rule, which would allow the hearing of an appeal that would have been untimely under the old rule, was comparable to an amendment to a statute of limitation and therefore could not be applied retroactively to save pending appeals.
The application of the amendments to Rule 303(a) to this appeal is in accord with substantial precedent, interferes with no protected right, and best serves the interests of justice. We conclude, therefore, that the amendments should be applied retroactively.
Accordingly, we turn to the application of the amended Rule 303(a) to this appeal. Darrell filed a timely postjudgment motion, and thus, under the amended Rule 303(a) (Official Reports Advance Sheet No. 8 (April 11, 2007), R. 303(a), eff. May 1, 2007), Darrell's notice of appeal was not effective until the trial court resolved the pending visitation petition on May 23, 2006. At that point, the notice of appeal became effective, the appeal commenced, and we had jurisdiction over the appeal.
Post-dissolution Petitions as New Claims, Not New Actions We could have reached the same conclusion regarding our jurisdiction over this appeal if we had adopted Darrell's argument that each post-dissolution petition commences a new action. However, for the following reasons we believe that post-dissolution petitions such as those brought by Tamara and Darrell are appropriately treated as new claims within the dissolution action. This approach enables the trial court to better serve the needs of families caught up in the often-painful aftermath of divorce by considering all of the relevant pre- and post-dissolution proceedings together, rather than in isolation, and is consistent with the previous decisions of Illinois courts. We therefore reject Darrell's argument that post-dissolution petitions are new actions, so that a final judgment on one petition would be appealable under Rule 301 without the need to invoke Rule 303(a) or 304(a), and instead hold that we have jurisdiction over this appeal under Rule 303(a) (saving premature appeals filed during the pendency of other claims).
Under Supreme Court Rule 301, "[e]very final judgment of a circuit court in a civil case is appealable as of right." 155 Ill. 2d R. 301. However, Rule 304(a) adds a qualification to Rule 301, at least as to the timing of appeals from certain final judgments. Under Rule 304(a), "[i]f multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying either enforcement or appeal or both." 210 Ill. 2d R. 304(a). Thus, many final judgments are immediately appealable only if the trial court makes the proper finding. By the rule's own terms, a Rule 304(a) finding can confer appealability only on a judgment that is already final. 210 Ill. 2d R. 304(a); see also Revolution Portfolio, LLC v. Beale, 332 Ill. App. 3d 595, 598-99 (2002).
Post-dissolution proceedings (in which a party seeks to modify, enforce, clarify, or terminate some aspect of the judgment of dissolution) present an unusual situation in civil practice. The trial court enters a final judgment resolving all of the issues at the time of the dissolution, but that judgment may subsequently be modified--repeatedly--at the request of the parties. The question we consider here is whether such post-dissolution petitions are best seen as new claims, in which case Rules 303(a) and 304(a) govern the appealability and timing of appeals, or as new actions, in which case Rule 301 governs. We begin by examining the application of Rule 304(a) in pre- and post-dissolution proceedings.
Prior to the entry of a judgment of dissolution, the application of Rule 304(a) in a dissolution case is almost nonexistent. In In re Marriage of Leopando, 96 Ill. 2d 114, 119 (1983), the supreme court held that a petition for dissolution presents only one claim, a claim for dissolution. The issues that the court must decide during the course of a dissolution, such as child custody, property division, and maintenance, are considered ancillary issues within that one dissolution claim. "They do not represent separate, unrelated claims; rather, they are separate issues relating to the same claim." (Emphasis in original.) Leopando, 96 Ill. 2d at 119. The supreme court held that all these issues were part of one claim because of their interdependence: "[I]t is difficult to conceive of a situation in which the issues are more interrelated than those involved in a dissolution proceeding." Leopando, 96 Ill. 2d at 119.
Under Leopando, prior to the entry of the judgment of dissolution, only one claim exists in a dissolution proceeding. Therefore, because Rule 304(a) applies only when multiple claims exist, a Rule 304(a) finding cannot properly be entered. As a result, a party to a dissolution case generally may not appeal from the trial court's ruling on a particular issue until the entry of the judgment of dissolution resolving all of the predissolution issues. See Leopando, 96 Ill. 2d at 119.
Not long after Leopando, the supreme court addressed the appealability of a final order on a petition filed after the judgment of dissolution in In re Custody of Purdy, 112 Ill. 2d 1 (1986). The issues raised in Purdy were (1) whether post-dissolution petitions raise new claims or simply issues within one claim similar to predissolution proceedings under Leopando; and (2) ...