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In re Marriage of Harris

Court of Appeals of Illinois, Second District

June 29, 2015

In re MARRIAGE OF ALAN HARRIS, Petitioner and Counterrespondent-Appellee, and HEATHER HARRIS, n/k/a Heather McNabb, Respondent and Counterpetitioner-Appellant

Appeal from the Circuit Court of Kane County. No. 12-D-1164. Honorable Kathryn D. Karayannis, Judge, Presiding.

JUSTICE ZENOFF delivered the judgment of the court, with opinion. Justices McLaren and Hudson concurred in the judgment and opinion.

OPINION

ZENOFF, JUSTICE.

[¶1] Heather Harris, n/k/a Heather McNabb, the respondent and counterpetitioner in this dissolution-of-marriage case, appeals after the court denied as untimely her motion to reconsider an order awarding custody of the couple's child to Alan Harris, the petitioner and counterrespondent. Heather filed her motion within 30 days of the order's entry and before the court entered the final dissolution judgment. Because the relevant final and appealable order under Illinois Supreme Court Rule 304(b)(6) (eff. Feb 26, 2010) was the predissolution order that finally determined child custody, of which Heather timely sought reconsideration, we reverse the ruling that the motion was untimely and remand the matter for its proper consideration.

[¶2] I. BACKGROUND

[¶3] On August 10, 2012, Alan filed a petition seeking the dissolution of his marriage to Heather. The parties had one child, born May 7, 2011. Alan sought permanent and temporary custody of the child. Heather filed a response and a counterpetition. She sought custody of the child in both.

[¶4] The contested matters were tried over the course of several days from July to November 2013. On November 20, 2013, the court gave an oral ruling as to most matters and asked counsel for Alan to " prepare an order, a judgment, to conform with [its] ruling." It ruled on most of the financial issues, but postponed ruling on the division of guardian ad litem fees. It discussed the factors relevant to its custody determination at length, ultimately granting full custody to Alan. It asked the parties to work out certain details of changing residences and visitation, but ordered that the transition of custody start immediately.

[¶5] On November 25, 2013, the court entered a written order conforming to the November 20 oral ruling; the order provided that " [u]ntil the Judgment of Dissolution of Marriage is entered, the parties will be bound by the terms in this order." It further provided for a transition for the child starting on November 20, 2013. Finally, it provided that Alan's attorney would draft a dissolution judgment conforming to the written and oral orders, with any disputed terms to be resolved on December 9, 2013.

[¶6] On December 9, 2013, Heather filed a written motion for reconsideration of the " oral judgment entered on November 20, 2013." She argued that the court had not given proper weight to factors including, for instance, the closeness of her relationship with the child. She asked that the court grant custody to her.

[¶7] On December 18, 2013, the court entered a judgment for dissolution of marriage. Alan received permanent sole custody of the child.

[¶8] Also on December 18, 2013, the court set a date of January 29, 2014, for a hearing on " Defendant's Motion to Reconsider." Alan filed a response to the motion on January 8, 2014. Heather filed an " Addendum/Supplement to [the] Motion to Reconsider."

[¶9] On April 16, 2014, the court ordered the parties to brief the issue of whether Heather had filed a timely postjudgment motion. On May 23, 2014, the court entered an order in which it concluded that there was no proper postjudgment motion. It described the order of November 25, 2013, as a " temporary" one and ruled that Heather's motion to reconsider had not been constructively refiled after the court entered the dissolution judgment. On June 20, 2014, Heather filed a notice of appeal.

[¶10] II. ANALYSIS

[¶11] On appeal, Heather argues that the trial court improperly ruled that her motion to reconsider was premature and asks us to vacate the ruling and remand the matter for consideration of her motion on its merits. Citing In re Estate of Pellico, 394 Ill.App.3d 1052, 1065-67, 916 N.E.2d 45, 334 Ill.Dec. 12 (2009), she asserts that her appeal is timely because this court always has " jurisdiction to review a circuit court's dismissal for lack of jurisdiction." Alan has not filed an appellate brief. However, as the merits of the appeal are simple, we ...


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