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In re Marriage of Dougherty

Court of Appeals of Illinois, First District, Fourth Division

February 23, 2017

In re MARRIAGE OF DANIEL DOUGHERTY, Petitioner-Appellant, and MEGAN DOUGHERTY, Respondent-Appellee.

         Appeal from the Circuit Court of Cook County, No. 16-D-530078; the Hon. Patrick T. Murphy, Judge, presiding.

          Arthur J. Data III, of Law Office of Arthur J. Data III, P.C., of Palos Hills, for appellant.

          Michael G. DiDomenico, of Take Toback, of Chicago, for appellee.

          McBRIDE JUSTICE delivered the judgment of the court, with opinion, Presiding Justice Ellis and Justice Howse concurred in the judgment and opinion.

          OPINION

          McBRIDE JUSTICE

         ¶ 1 Petitioner Daniel Dougherty filed a petition for leave to appeal pursuant to Illinois Supreme Court Rule 306(a)(5) (eff. Mar. 8, 2016), asking this court for the interlocutory review of the trial court's temporary orders setting child support and maintenance. This court granted petitioner's leave to appeal on August 23, 2016. On August 31, 2016, respondent Megan Dougherty filed a motion to reconsider our order granting the petition for leave to appeal and/or to dismiss for lack of jurisdiction. We took respondent's motion with the case.

         ¶ 2 Petitioner and respondent were married in December 2004. Five minor children were born during the marriage. Petitioner moved out of the marital residence in December 2015. By agreement of the parties, respondent has possession of the marital residence, and the minor children live with respondent at the marital residence.

         ¶ 3 Petitioner did not file a brief on appeal within the deadline set in the case, but rather stood on his petition for leave to appeal as his brief. In his petition, petitioner asserted two grounds for appeal: (1) the trial court abused its discretion in deviating from the child support guidelines by awarding respondent 57.2% of petitioner's net income for child support without a compelling reason to support the deviation and (2) the trial court abused its discretion by awarding maintenance to respondent in the amount of $250. Petitioner has not raised any issues relating to the custody of the minor children.

         ¶ 4 Respondent maintains that this court lacks jurisdiction to review petitioner's claims involving temporary child support and maintenance orders under Rule 306(a)(5). While we initially granted petitioner's petition for leave to appeal, we have a duty to consider our jurisdiction. See Trutin v. Adam, 2016 IL App (1st) 142853, ¶ 21. "This court has an obligation to consider its jurisdiction at any time and should dismiss an appeal if jurisdiction is lacking." In re Marriage of Tetzlaff, 304 Ill.App.3d 1030, 1035 (1999). "It is well established that except as specifically provided in the supreme court rules, this court is without jurisdiction to review judgments, orders and decrees that are not final." In re Marriage of Kostusik, 361 Ill.App.3d 103, 108 (2005).

         ¶ 5 The determinative question before us is whether the phrase "orders affecting the care and custody" refers only to orders relating to the custody of minor children. Petitioner contends that "care" can be interpreted to include support orders. We disagree with petitioner, and for the reasons that follow, hold that "care and custody" relates only to orders involving the custodial placement of minor children. Since the orders at issue involve temporary orders for child support and maintenance, this court lacks jurisdiction to review the nonfinal orders unless the orders fall under Rule 306(a)(5).

         ¶ 6 Rule 306(a)(5) provides, in relevant part:

"(a) Orders Appealable by Petition. A party may petition for leave to appeal to the Appellate Court from the following orders of the trial court:
* * *
(5) from interlocutory orders affecting the care and custody of or the allocation of parental responsibilities for unemancipated minors, if the appeal of such orders is not otherwise specifically provided for elsewhere in these rules ...

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