Court of Appeals of Illinois, First District, Fourth Division
In re MARRIAGE OF DANIEL DOUGHERTY, Petitioner-Appellant, and MEGAN DOUGHERTY, Respondent-Appellee.
from the Circuit Court of Cook County, No. 16-D-530078; the
Hon. Patrick T. Murphy, Judge, presiding.
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
McBRIDE JUSTICE delivered the judgment of the court, with
opinion, Presiding Justice Ellis and Justice Howse concurred
in the judgment and opinion.
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