In re: Marriage of Best

SUPREME COURT CASES

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State: Illinois

Court: 2nd District Appellate

Docket No: 2-05-0947 & 2-05-1001 cons. Rel

Case Date: 11/20/2006

Preview:Nos. 2--05--0947 & 2--05--1001 cons. filed: 11/20/06 ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT ______________________________________________________________________________ In re MARRIAGE OF STEVEN RICHARD DEVORE BEST, ) Appeal from the Circuit Court ) of Lake County. ) Petitioner and Counterrespondent) Appellant, ) ) and ) No. 04--D--237 ) ANGELA K. FARLOW BEST, ) Honorable ) Sarah P. Lessman and Respondent and Counterpetitioner) Jorge L. Ortiz, Appellee. ) Judges, Presiding. ______________________________________________________________________________ JUSTICE O'MALLEY delivered the opinion of the court: In consolidated appeals, petitioner, Steven Richard Devore Best, seeks review of two orders entered in this action for the dissolution of his marriage to respondent, Angela K. Farlow Best. The court entered the first order in response to petitioner's "Motion for Declaratory Judgment" (and later, an "Amended Motion for Declaratory Judgment"). In the motion, petitioner asked the court to declare the validity of the parties' antenuptial agreement and to rule that it barred any support payment and any payment of attorney fees by one party for the other. The court ruled that the agreement was valid, but held that it barred support only after a decree of dissolution or legal separation. The court further held that the agreement did not bar payment of attorney fees for proceedings other than those strictly directed to the marriage relationship. In particular, the agreement did not bar fees incurred in litigation of child custody. Petitioner challenges this

Nos. 2--05--0947 & 2--05--1001 cons. construction. We hold sua sponte that the court's entry of the declaratory judgment was error because it did not satisfy the requirement of the declaratory judgment statute (735 ILCS 5/2--701 (West 2004)) that the judgment terminate a controversy. Petitioner also challenges as contrary to the agreement an order refusing to vacate an order requiring him to reinstate respondent on his health insurance policy. Petitioner characterizes the order to reinstate insurance, correctly we deem, as an injunction. However, we hold that the trial court was correct in ruling that the agreement did not apply to interim support, and we therefore affirm the order refusing to vacate the order to reinstate insurance. Petitioner filed a petition for dissolution of marriage on February 4, 2004, when the parties had been married about 13 months. They had a single infant child. On March 26, 2004, respondent filed a "Motion for Declaratory Judgment." As amended, it asserted that the parties had entered into an antenuptial agreement and asked the court to declare that the agreement was valid and, among other things, barred payment of support and of dissolution-related attorney fees by one spouse on behalf of the other. We will describe the language of the agreement in more detail as it becomes relevant. Respondent disputed the validity and effect of the antenuptial agreement. The court heard testimony of both parties about the circumstances surrounding their making of the agreement. This too we will describe in greater detail later. On April 28, 2004, the court found that the agreement was enforceable and ordered petitioner to pay respondent $2,000 a month in unallocated support, as well as expenses for the marital residence, in which respondent and the child were living. The court also ruled that the bar on attorney fees applied only to fees incurred in the portion of the action that related strictly to dissolution and property division, and so did not bar fees for the custody portion of the action or for an order of protection action. It made a finding under

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Nos. 2--05--0947 & 2--05--1001 cons. Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)) that no reason existed to delay enforcement or appeal of the order. Petitioner moved for reconsideration. While petitioner's motion for reconsideration was pending, the court, on respondent's motion, entered an order requiring petitioner to reinstate respondent as a beneficiary of his health insurance policy. Two months later, petitioner moved to vacate that order, "pursuant to Section 2--1401 of the Illinois Code of Civil Procedure" (735 ILCS 5/2--1401 (West 2004)), asserting that the order was contrary to the antenuptial agreement. Respondent countered that the relevant part of the agreement was applicable only when the marriage was dissolved or when the parties had legally separated. The court, on August 8, 2005, denied petitioner's motion regarding the insurance order and his motion to reconsider the declaratory judgment. In a single order disposing of both matters, it agreed with respondent that dissolution or legal separation was necessary before the relevant sections of the agreement took effect, thus extending its declaratory judgment ruling. Petitioner timely appealed the declaratory judgment order. On October 6, 2005, respondent moved in this court for permission to file a late notice of appeal of the order of August 8, 2005 (that is, the order refusing to vacate the order that petitioner reinstate respondent's health insurance). This court granted that motion. In supplemental briefing, which we ordered because the case raises significant jurisdictional issues, petitioner asserts that the order of April 28, 2004, was final because it resolved respondent's action for a declaratory judgment. He further asserts that the August 8, 2005, order is appealable as an order refusing to dissolve an injunction. Initially, we consider the extent of our jurisdiction. We consider first the April 28 order. We hold that the court's declaratory judgment was appealable under Rule 304(a). However, by the terms of the declaratory judgment statute, a court errs in entering a declaratory judgment when the issue

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Nos. 2--05--0947 & 2--05--1001 cons. of the availability of nondeclaratory relief has fully ripened and the declaratory judgment thus does not terminate the controversy. Further, if a court enters a declaratory judgment and a Rule 304(a) finding and goes on to rule on the same issues when deciding the availability of nondeclaratory relief, it allows the parties to evade the limits on interlocutory appeals. Therefore, we review sua sponte whether the declaratory judgment satisfies the termination-of-controversy requirement of the declaratory judgment statute. We find that the declaratory judgment did not, and we therefore reverse it. Next, we consider the proper classification of the order requiring petitioner to reinstate respondent's health insurance. We conclude that, although the function of that order was to provide interim support to respondent, it required petitioner to take specific action other than the payment of money, and thus we must treat it as an injunction. We therefore have jurisdiction to review the August 8 order (denying the motion to vacate the insurance order) as an order refusing to dissolve an injunction. The August 8 order raises the issue of the correctness of the trial court's ruling that the agreement did not bar support while the parties were neither divorced nor legally separated. We hold that one must construe the agreement to apply only after the parties are divorced or legally separated. We therefore affirm the trial court's decision to leave in place the order that required petitioner to reinstate respondent's health insurance. We start with a review of our jurisdiction over the appeal of the declaratory judgment. Our inquiry has three parts. First, we consider whether the raising of certain rights in a declaratory judgment action creates a claim whose resolution is subject to separate appeal under Rule 304(a). Although we view this issue as problematic, we conclude that a separate declaratory judgment claim exists. Second, we consider whether petitioner's filing, entitled a "motion," was sufficient to raise the claim. We hold that, although petitioner should have raised the claim by amending his petition

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Nos. 2--05--0947 & 2--05--1001 cons. for dissolution, respondent waived that issue, and the claim was properly before the court. Third, we examine the mandate of the declaratory judgment statute that a court not enter such a judgment unless it terminates a part of the controversy. We hold that this requirement is critical to maintaining the jurisdictional distinction between interlocutory and final orders, and we therefore examine sua sponte whether the judgment met this requirement. We further hold that the judgment did not. If an order resolves fewer than all of the claims pending in a proceeding, the order is not appealable unless the trial court makes a written finding that no just reason exists to delay appeal or enforcement of the order. 155 Ill. 2d R. 304(a). However, if an order does not resolve an entire claim, it is not a final order, and a finding under Rule 304(a) cannot confer appealability on it. See, e.g., Revolution Portfolio, LLC v. Beale, 332 Ill. App. 3d 595, 598-99 (2002). We therefore consider what claims were before the trial court. If one does not consider a declaratory judgment action to raise a separate claim, then the only claim that was before the court was the dissolution claim. Typically, a dissolution action raises only one claim for purposes of Rule 304(a); all the issues decided in the action, such as support and child custody, are inseparable subparts of that claim. In re Marriage of Leopando, 96 Ill. 2d 114, 118-20 (1983). Thus, matters of respondent's entitlement to interim support, at least absent a declaratory judgment action, were a part of this unified dissolution claim. A judgment resolving the dissolution claim is appealable only when the court issues the dissolution judgment. Petitioner's appeal came earlier. Therefore, the appeal was proper under Rule 304(a) only if a declaratory judgment action raises a claim separate from claims for nondeclaratory relief pertaining to the same substantive right. We hold, with some trepidation, that a declaratory judgment

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Nos. 2--05--0947 & 2--05--1001 cons. action does raise such a separate claim. However, for reasons we discuss later, the seeming right to a separate appeal arising from the resolution of such a claim is largely illusory. A "claim" for purposes of Rule 304(a) "is any right, liability or matter raised in an action." Marsh v. Evangelical Covenant Church of Hinsdale, 138 Ill. 2d 458, 465 (1990). In deciding whether a purported separate claim is a separate claim, courts have looked to whether the claims have different elements and whether the bases for relief arise from separate statutes or common-law doctrines. E.g., Rice v. Burnley, 230 Ill. App. 3d 987, 991 (1992). By this standard, a declaratory judgment action does create a claim, albeit an unusually abstract one. The basis for declaratory relief is section 2--701 of the Code of Civil Procedure (Code) (735 ILCS 5/2--701 (West 2004)). It provides that "[n]o action or proceeding is open to objection on the ground that a merely declaratory judgment or order is sought thereby." 735 ILCS 5/2--701 (West 2004). In other words, it provides a basis for relief when actions on most statutory or common-law grounds would be unripe. Therefore, the basis for declaratory relief arises from a source different from that for traditional, nondeclaratory relief. Further, whereas other causes of action have elements that go specifically to the availability of relief, e.g., a negligence claim requires an allegation of damages, the declaratory judgment statute requires only that the judgment terminate a part of the controversy. It is true that the declaratory judgment statute "does not create substantive rights or duties, but merely affords a new, additional, and cumulative procedural method for the judicial determination of the parties' rights." Beahringer v. Page, 204 Ill. 2d 363, 373 (2003). Therefore, a declaratory judgment claim may arise wholly out of the same preexisting right or duty as a claim for nondeclaratory relief. However, a single underlying right or duty can give rise to more than one claim.

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Nos. 2--05--0947 & 2--05--1001 cons. Having concluded that a declaratory judgment action can give rise to a claim, we must next decide if petitioner properly instituted an action for declaratory judgment. We hold that he did, although he did not follow the proper procedure. Petitioner filed a petition for dissolution and then a "Motion for Declaratory Judgment." The proper method to add a cause of action in a pending proceeding is to seek leave to amend the initial pleading. 735 ILCS 5/2--616 (West 2004). However, we deem the motion to have been effective as a pleading. A pleading is "a party's formal allegations of his claims or defenses." In re Marriage of Wolff, 355 Ill. App. 3d 403, 407 (2005). The substance of petitioner's "Motion" leaves no doubt but that he was formally alleging his entitlement to declaratory relief. See People ex rel. Ryan v. City of West Chicago, 216 Ill. App. 3d 683, 688 (1991) (holding that the substance of a filing, not its title, determines how a court ought to classify it). Further, respondent waived any issue of petitioner's use of improper procedure. Respondent did not object to petitioner's failure to move to amend, but instead filed a document that is functionally an answer. Such failure to point out an error when it might be corrected generally results in waiver. See, e.g., Feret v. Schillerstrom, 363 Ill. App. 3d 534, 538 (2006). We note the existence of precedent suggesting that a party's failure to seek the court's permission to amend a pleading is a jurisdictional flaw not subject to waiver. This court has held that "[u]nlike errors that can be waived, the error of filing a pleading without leave of the court is jurisdictional, and it is not waived if a party fails to raise it in the trial court." Goins v. Mercy Center for Health Care Services, 281 Ill. App. 3d 480, 485 (1996), citing Callaghan Paving, Inc. v. Keeneyville Construction Co., 197 Ill. App. 3d 937, 939 (1990). We note that subsequent cases in other districts have held that such an error is not jurisdictional. E.g., Ganci v. Blauvelt, 294 Ill. App. 3d 508, 515-19 (1998) (holding that the jurisdictional reasoning in Callaghan Paving, Inc. improperly

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Nos. 2--05--0947 & 2--05--1001 cons. used jurisdictional rules applicable before the 1964 amendments to the judicial article of the Illinois Constitution of 1870). However, to the extent that Goins and earlier related cases remain good law, they are distinguishable because the trial court in those cases did not grant relief based on the improperly filed pleading. In Goins, for example, the court had dismissed the contested counts. Goins, 281 Ill. App. 3d at 484. Here, we deem that the trial court plainly approved the declaratory judgment action when it granted the declaratory judgment. Although petitioner raised a declaratory judgment claim, the trial court erred in granting declaratory judgment. The trial court's consideration of the antenuptial agreement was merely an intermediate step in deciding the specific relief it would grant respondent. That circumstance should have alerted the court and the parties that something was wrong. Most causes of action require decisions on multiple intermediate issues. For example, a negligence action requires decisions on the existence of a duty, whether the defendant breached the duty, and whether the plaintiff suffered damages. See, e.g., Bajwa v. Metropolitan Life Insurance Co., 208 Ill. 2d 414, 421 (2004). A ruling on one of these issues that does not end the case, e.g., a partial summary judgment, is interlocutory and is not appealable as of right even with a Rule 304(a) finding. Morgan v. Richardson, 343 Ill. App. 3d 733, 739 (2003). An appeal is possible only under Supreme Court Rule 308 (155 Ill. 2d R. 308); if the trial court deems that early review of an intermediate issue would be valuable, and the intermediate issue is one of law, the trial court may certify the issue to the appellate court, which then has the discretion to consider the matter. 155 Ill. 2d R. 308. This structure disintegrates if a trial court can simply label any decision on an intermediate issue a declaratory judgment and make it appealable with a Rule 304(a) finding.

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Nos. 2--05--0947 & 2--05--1001 cons. Any treatment of the right to appeal declaratory judgments that allows trial courts to erase many of the distinctions between final and interlocutory judgments would raise separation of powers concerns. The familiar difference in the appealability of interlocutory and final orders arises from the Illinois Constitution. Article VI, section 6, makes appeals from final judgments a matter of right. Ill. Const. 1970, art. VI,

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