Appeal from the Circuit Court of Cook County. No. 09 D 54755 The Honorable Fe Fernandez, Judge Presiding.
The opinion of the court was delivered by: Justice Palmer
JUSTICE PALMER delivered the judgment of the court, with opinion.
Justices Garcia and Lampkin concurred in the judgment and opinion.
¶ 1 Petitioner Tosca Daniels appeals from an order of the circuit court of Cook County striking her "Verified Petition for Modification in Child Support" (verified petition for modification) pursuant to section 2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2010)), and from a permanent order for child support entered on July 9, 2010. On appeal, petitioner essentially contends that the circuit court entered a permanent award for child support which improperly deviated from the guidelines set by section 505 of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/505(a)(1) (West 2010)), and then erred in striking her verified petition for modification of that order. Respondent Randell Beamon has not filed a brief in response; however, we may consider the issues raised under the principles set forth in First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976).
¶ 2 The common law record filed in this case shows that petitioner initiated paternity actions against respondent, alleging that he was the father of her minor children R.B. and A.B., and that respondent later answered that he fathered A.B. The paternity actions were consolidated, and on April 27, 2010, the circuit court entered an order of parentage adjudicating respondent the natural and biological father of A.B. The record does not contain an order of parentage with respect to R.B. On the same date, the court also entered a temporary order for child support awarding monthly support payments of $300 for R.B. and A.B. In that order, the court noted that respondent's net income was "undetermined" and ordered him to bring his 2010 pay stubs and 2009 tax return on the next court date. The court then continued the case for "permanent support/medical."
¶ 3 On July 9, 2010, the court entered a permanent order for child support which, by agreement, awarded bimonthly support payments of $375 for R.B. and A.B. The record is silent regarding how the parties agreed on this amount of support. In the support order, the court noted again that respondent's net income was "undetermined," that it was reserving the issue of retroactive child support, and that the case was "off call."
¶ 4 On August 31, 2010, petitioner filed a verified petition for modification seeking an increase in respondent's child support obligation. Petitioner alleged that respondent was earning approximately $72,000 per year and that the amount awarded by the court in the permanent order for child support was less than 20% of respondent's monthly income. Petitioner requested that the award be "substantially increased" to require monthly payments of $2,000.
¶ 5 On December 3, 2010, respondent filed a section 2-615 "Motion to Strike" the verified petition for modification on the basis that it was "substantially insufficient in law." Respondent asserted that petitioner failed to allege or present any evidence of a substantial change in circumstances warranting a modification of the child support order under section 510(a)(1) of the Marriage Act (750 ILCS 5/510(a)(1) (West 2010)), and that a modification was not permissible under section 510(a)(2)(A) of the Marriage Act (750 ILCS 5/510(a)(2)(A) (West 2010)) because 36 months had not elapsed since the order was entered.
¶ 6 In her reply to respondent's motion to strike, petitioner attached respondent's 2009 W-2 statement and provided a more detailed analysis of the claimed deviation between the child support payments that had been awarded and respondent's obligation under the guidelines set forth in section 505 of the Marriage Act. Contrary to the initial verified petition for modification, petitioner claimed in her reply to the motion to strike that the appropriate amount of support should be 28% of respondent's monthly income.*fn1 On February 9, 2011, the court granted respondent's motion to strike the verified petition for modification, noting "[t]he previous permanent, by agreement child support order entered on July 9, 2010 shall stand." On February 16, 2011, petitioner filed her notice of appeal from the initial order of July 9, 2010, and the subsequent order of February 9, 2011, striking her petition for modification of child support.
¶ 7 Petitioner first contends that the permanent child support order entered by the court on July 9, 2010, was erroneous because the court failed to adhere to the guidelines set forth in section 505 of the Marriage Act and did not explain why the court deviated from the guideline amount. Before addressing the merits of this claim, we must consider, sua sponte, our jurisdiction to do so. Village of Sugar Grove v. Rich, 347 Ill. App. 3d 689, 693 (2004).
¶ 8 The power of an appellate court to consider the merits of a case attaches only upon compliance with the rules governing appeals. People v. Flowers, 208 Ill. 2d 291, 308 (2003). Here, petitioner claimed that she was filing her notice of appeal pursuant to Illinois Supreme Court Rules 301 and 303 (Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. May 30, 2008)). These rules pertain to appeals from final judgments and require that petitioner file notice of appeal within 30 days after entry of the final judgment which is the subject of this appeal. Ill. S. Ct. R. 303(a)(1) (eff. May 30, 2008).
¶ 9 In Deckard v. Joiner, 44 Ill. 2d 412, 417 (1970), the supreme court determined that a judgment in a paternity action becomes final after the circuit court enters an order of paternity and an order fixing the amount of support the defendant is to pay. The supreme court so found even though the circuit court had retained jurisdiction of the cause to enter new orders for support, maintenance, etc., finding that such issues of support were merely incidental to the other matters. Deckard, 44 Ill. 2d at 416-17. In accordance with that decision, this court similarly found that entry of an order of paternity and an order fixing the amount of child support constitutes a final order in a paternity action even where the court reserves collateral matters such as a request for retroactive child support expenses during pregnancy. Watkins v. Martin, 115 Ill. App. 3d 417, 419 (1983).
¶ 10 In this case, the circuit court entered an order of parentage on April 27, 2010, and permanently fixed the amount of child support respondent was to pay on July 9, 2010, thereby rendering a final judgment despite reserving the issue of respondent's liability for retroactive support payments. Watkins, 115 Ill. App. 3d at 419. Petitioner, however, did not file a notice of appeal seeking review of that permanent child support order until ...