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In re Marriage of Dianovsky

Court of Appeals of Illinois, First District, Second Division

September 10, 2013

In re MARRIAGE OF MARIO DIANOVSKY, Petitioner-Appellant, and IZABELA DIANOVSKY, Respondent-Appellee.

Appeal from the Circuit Court of Cook County No. 08 D 30056, County Department, Domestic Relations Division. The Honorable Pamela E. Loza, Judge Presiding.

JUSTICE HARRIS delivered the judgment of the court, with opinion. Justices Connors and Simon concurred in the judgment and opinion.

OPINION

HARRIS, JUSTICE.

¶ 1 Petitioner Mario Dianovsky appeals the order of the circuit court granting his motion to reconsider and reducing the amounts he owes for child support and other expenses. Petitioner also appeals the court's order granting attorney fees to Respondent, Izabela Dianovsky, pursuant to section 508(b) of the Illinois Marriage and Dissolution of Marriage Act (the Act) (750 ILCS 5/508(b) (West 2006)). On appeal, petitioner contends the trial court (1) abused its discretion in denying his initial petition to modify child support; (2) erred when it entered an order limiting his ability to conduct discovery; (3) erred in finding petitioner in contempt of court for failing to pay all ordered child support and for failing to pay the mortgage on the marital residence; and (4) erred in granting respondent's petition for attorney fees. For the following reasons, we dismiss the appeal for lack of jurisdiction.

¶ 2 JURISDICTION

¶ 3 The trial court granted petitioner's motion to reconsider on April 12, 2012, and petitioner filed his notice of appeal from that order on April 20, 2012. The trial court granted respondent's petition for attorney fees on October 12, 2012, and petitioner filed a notice of appeal on November 13, 2012. This court subsequently consolidated both appeals. This court has jurisdiction pursuant to Illinois Supreme Court Rules 301 and 303 governing appeals from final judgments entered below. Ill. S.Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. May 30, 2008). However, as explained in detail hereafter, based on the facts of this case and our supreme court's opinion in In re Marriage of Gutman, 232 Ill.2d 145 (2008), the lack of Rule 304(a) (Ill. S.Ct. R. 304(a) (eff. Feb. 26, 2010)) findings renders this court without jurisdiction over this appeal.

¶ 4 BACKGROUND

¶ 5 The parties married on January 18, 1997, and two children were born from the marriage (twins M.D. and B.D.), on October 2, 2004. In 2008, petitioner filed for dissolution of marriage and the trial court entered a judgment for dissolution of marriage on January 9, 2009. The judgment incorporated the terms of the parties' marital settlement agreement. The agreement stated that the parties had joint custody of the children and provided for child support as follows:

"Husband shall pay to Wife, as and for child support for the minor children, the sum of $2, 600.00 each month, payable on the first day of each month beginning the first day of the entry of a Judgment for Dissolution in this matter. Said amount is an upward deviation from the 28% ($1900-2000 per month = 28%) of Husband's reported net income as Husband is self-employed in the building trades and his income fluctuates greatly. Said amount is based on the needs of the minor children as well as Wife's waiver of maintenance. Both parties reserve the right to file a Petition to Modify said support provision based on a substantial change in circumstances. In addition, Husband agrees to pay one hundred (100%) of the children's pre-school tuition, books and fees through the 2009-2010 school year after which time the cost of tuition, books and fees will be shared equally by the parties. Husband and Wife further agree that each shall pay fifty (50%) of the tuition, books and fees for the children's attendance at Polish School. When the children begin primary school, Husband and Wife agree to share equally the cost of school tuition, books and fees, before and after school care and the costs incurred for the children's attendance at Polish School."

¶ 6 With regard to the marital residence, the parties agreed as follows:

"Wife shall reside in the marital residence with the minor children and is awarded exclusive possession of same until such time as the property is sold and closes. The parties agree to cooperate in the listing, showing and sale of said property. During such time as Wife resides in the marital residence with the children, Husband shall be responsible for payment of the mortgage payments until such time as the property has been sold and closes, or the parties file for relief under Chapter 7, should they need to do so. Any proceeds realized from the sale of the property will be shared equally by the parties."

¶ 7 After entry of the dissolution judgment, petitioner filed an emergency motion for enforcement of the judgment, alleging that respondent refused to sign a contract for sale of the marital residence with a closing date of March 20, 2009. On February 26, 2009, the trial court entered an order stating "[t]hat [respondent] shall abide by the terms of the Judgment for Dissolution of Marriage and pay to the mortgage lender all of the balance due on the marital home at 612 Elmdale Road, Glenview, IL including the current mortgage, taxes and any other expenses due on said mortgage balance as of March 5, 2009." Respondent's present husband paid off the balance of the mortgage and petitioner signed a quitclaim deed conveying his interest in the marital residence to respondent. In May 2010 the residence sold for $1, 335, 000.

¶ 8 On July 1, 2009, petitioner filed a petition to modify/abate support in which he alleged a substantial change in circumstances due to his reduced income and respondent's remarriage. On July 31, 2009, respondent filed a petition for rule to show cause for a finding of indirect civil contempt and other relief. Respondent's petition alleged eight counts: (1) petitioner was in arrears on child support; (2) petitioner failed to pay tuition and expenses for the children; (3) petitioner failed to pay medical and dental expenses for the children; (4) petitioner failed to pay for the children's summer camp and extracurricular activities; (5) petitioner failed to pay the mortgage on the marital residence from February 1, 2009, to March 5, 2009; (6) petitioner failed to pay respondent's legal expenses in connection with a lawsuit against his painting business, De Villa Painting Corporation (De Villa); (7) petitioner failed to pay the credit card debt of De Villa; and (8) petitioner failed to tender funds to respondent in connection with the Puerto Rico investment property. Respondent also requested attorney fees associated with the petition.

ΒΆ 9 Respondent filed an amended petition for rule to show cause on March 2, 2010. The eight counts listed in the initial petitioner remained, but the amended petition updated the amounts owed on each count. The amended petition also listed a ninth count, alleging that petitioner ...


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