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In re Marriage of Alyassir
State: Illinois
Court: 2nd District Appellate
Docket No: 2-01-1096 Rel
Case Date: 01/09/2003

No. 2--01--1096

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT


In re MARRIAGE OF ) Appeal from the Circuit Court
) of Lake County.
ROXANNE ALYASSIR, )
n/k/a Roxanne Radike, )
)
          Petitioner-Appellant, ) No. 92--D--1999
)
and  )
)
IBRAHIM ALYASSIR, ) Honorable
) Gary G. Neddenriep,
         Respondent-Appellee. ) Judge, Presiding.

JUSTICE McLAREN delivered the opinion of the court:

Petitioner, Roxanne Alyassir, now known as Roxanne Radike,appeals a judgment increasing the child support obligation ofrespondent, Ibrahim Alyassir. Petitioner asserts that the increaseis inadequate and based on a mistake of law. For the reasons thatfollow, we dismiss the appeal.

A 1993 judgment dissolved the parties' marriage and obligatedrespondent to support the parties' daughter. On May 23, 2001,petitioner filed a two-count postdissolution petition. Count Isought increased child support. Count II requested a rule to showcause why respondent should not be held in contempt for failing topay medical bills that were his responsibility under thedissolution judgment. On July 30, 2001, the trial court grantedplaintiff relief on count I but continued the proceedings on countII. On August 17, 2001, petitioner moved to reconsider the rulingon count I. On September 5, 2001, the trial court denied themotion. On September 25, 2001, while count II was pending,petitioner filed a notice of appeal from the orders increasingchild support and denying her motion to reconsider.

Although neither party questions our jurisdiction over thisappeal, we must do so independently and dismiss the appeal ifjurisdiction is wanting. Ferguson v. Riverside Medical Center, 111Ill. 2d 436, 440 (1985). For the reasons that follow, we concludethat we must dismiss this appeal.

When an action involves multiple claims for relief, an orderthat finally resolves only one claim is not immediately appealableunless the trial court has found in writing that there is no justreason to delay either enforcement or appeal or both. 155 Ill. 2dR. 304(a); Marsh v. Evangelical Covenant Church, 138 Ill. 2d 458,464 (1990); Lozman v. Putnam, 328 Ill. App. 3d 761, 767 (2002). Here, the order from which petitioner seeks to appeal resolved onlyone of the two claims in her petition. The trial court never madea Rule 304(a) finding, and the notice of appeal was filed beforethe court had resolved the second claim. "Without the Rule 304(a)finding, a final order disposing of fewer than all of the claims isnot an appealable order and does not become appealable until all ofthe claims have been resolved." Marsh, 138 Ill. 2d at 464; seealso In re Marriage of Tomei, 253 Ill. App. 3d 663, 666-67 (1993). Therefore, we lack jurisdiction to hear petitioner's appeal.

To invoke our jurisdiction, petitioner relies on the FirstDistrict's opinion in In re Marriage of Carr, 323 Ill. App. 3d 481(2001). Carr does appear to support petitioner. However, webelieve that Carr is unsound and we decline to follow it.

In Carr, the husband petitioned in 1998 to modify a childsupport obligation set by a 1989 dissolution judgment. After thetrial court granted the petition, both parties moved to reconsiderand the wife filed a petition for attorney fees. On August 27,1999, the trial court granted the husband's motion to reconsiderand denied the wife's motion to reconsider. Apparently, thecourt's order had no Rule 304(a) finding. On March 9, 2000, thetrial court ruled on the wife's request for attorney fees. Thewife then filed a notice of appeal, challenging the trial court'smodification of child support. Carr, 323 Ill. App. 3d at 482-83.

The appellate court dismissed the appeal as tardy. The courtreasoned that the wife could have appealed within 30 days of theruling of August 27, 1999, which finally disposed of the husband'spetition to modify child support. Carr, 323 Ill. App. 3d at 485. Carr does not discuss or distinguish Marsh, and it does notexplain directly why the August 27, 1999, order was immediatelyappealable without any Rule 304(a) finding even though the wife'sfee petition was still unresolved. Instead, Carr relies on thedifferences between a dissolution proceeding and a postdissolutionproceeding. Without citing In re Marriage of Leopando, 96 Ill. 2d114 (1983), Carr notes Leopando's holding that the issues in adissolution-of-marriage case are so intertwined that the trialcourt must decide all of them before either party may appeal. Carr, 323 Ill. App. 3d at 484; see Leopando, 96 Ill. 2d at 120. Thus, the various issues are not separate "claims," and an orderthat does not resolve all of them is not immediately appealable--even if it does contain Rule 304(a) language. Leopando, 96 Ill. 2dat 120; see Carr, 323 Ill. App. 3d at 484. However, because theissues in a postdissolution case may be distinct enough to beseparate claims, Carr concludes that the order of August 27, 1999,which did not dispose of all the claims, was still immediatelyappealable. Carr, 323 Ill. App. 3d at 484-85.

Carr is unsound because it omits a crucial step. The opinionfails to consider that, even if a case presents separate "claims,"that means only that an order that finally resolves fewer than allof them can be made immediately appealable by including a writtenRule 304(a) finding. Separability of issues is a necessarycondition for a Rule 304(a) appeal. It is not a sufficientcondition. A proper Rule 304(a) finding is still required. Carrundercuts Marsh by allowing an immediate appeal even when a claimis pending and the trial court has made no Rule 304(a) finding.

Additionally, we believe that Carr is unsound because itremoves the exercise of discretion given to the trial court todecide if a piecemeal appeal best serves judicial economy and thesundry parties' interests for which Rule 304(a) provides. The orderfrom which petitioner attempts to appeal resolves only one of herclaims and includes no Rule 304(a) finding. Petitioner's secondclaim was pending when she filed her appeal. Because the notice ofappeal did not confer jurisdiction on us, we must dismiss theappeal.

The appeal from the judgment of the circuit court of LakeCounty is dismissed.

Appeal dismissed.

GROMETER and CALLUM, JJ., concur.

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