In re Marriage of Duggan

SUPREME COURT CASES

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State: Illinois

Court: 2nd District Appellate

Docket No: 2-06-0061 Rel

Case Date: 10/16/2007

Preview:No. 2--06--0061 Filed: 10-16-07 ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT ______________________________________________________________________________ In re MARRIAGE OF DARRELL E. DUGGAN, ) Appeal from the Circuit Court ) of Carroll County. ) Petitioner-Appellant, ) ) and ) No. 01--D--67 ) TAMARA DUGGAN, ) Honorable ) Val Gunnarsson, Respondent-Appellee. ) Judge, Presiding. _____________________________________________________________________________ JUSTICE GILLERAN JOHNSON delivered the opinion of the court: The trial court entered a final judgment on respondent Tamara Duggan's postdissolution petition to increase child support, without making a finding under Supreme Court Rule 304(a) (210 Ill. 2d R. 304(a)). The petitioner, Darrell Duggan, appealed. However, when he appealed, his own postdissolution petition regarding visitation was pending. We are thus required to examine whether we have jurisdiction over this appeal. Although we conclude that we do, our conclusion as to the basis for our jurisdiction requires some explanation before we proceed to the merits of the appeal. Background On January 17, 2002, the trial court dissolved the parties' marriage. The dissolution judgment included an agreement that Darrell would pay child support of $120 per week. In August 2005, Tamara petitioned to increase child support to reflect both a change in the statutory support guidelines for two children (compare 750 ILCS 5/505(a)(1) (West 2004) with 750 ILCS 5/505(a)(1)

No. 2--06--0061 (West 2002)) and an increase in Darrell's income. On that petition, the parties agreed to the entry of an order under which Darrell would pay "28% of net income every two weeks." Twenty-six days after the court entered that judgment, Darrell moved to vacate it on the grounds that a support order should state a specific dollar amount instead of a percentage and that the wrong termination date had been entered. At the same time, he filed a petition to establish specific visitation times. On December 21, 2005, the trial court granted the motion to vacate in part and denied it in part, correcting the termination date but refusing to set a dollar amount for support. The court did not make a finding of appealability pursuant to Supreme Court Rule 304(a). Darrell filed his notice of appeal on January 18, 2006. The trial court did not resolve his petition to set specific times for visitation until May 23, 2006. Jurisdiction and Retroactivity of Supreme Court Rule Amendments Although neither of the parties to this appeal initially raised the issue of our jurisdiction, a reviewing court has a duty to consider sua sponte whether it has jurisdiction and to dismiss an appeal if it lacks jurisdiction. In re Marriage of Link, 362 Ill. App. 3d 191, 192 (2005). We therefore ordered the parties to submit supplemental briefing on this issue. Rule 304(a) requires a special finding by the trial court in order to appeal the final judgment on one claim when others remain pending before the trial court. Thus, if the two petitions were considered claims within the same action, we would lack jurisdiction because the December 21, 2005, order from which Darrell appeals disposed of fewer than all pending claims in this action, and there was no Rule 304(a) finding. In the supplemental briefs, Darrell argued that separate postdissolution petitions are best seen as new actions, so he could immediately appeal the final order resolving Tamara's child support petition under Rule 301 despite the pendency of his visitation petition. The alternate approach is to view

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postdissolution petitions as stating new claims within the dissolution action, in which case there must be a Rule 304(a) finding in order to appeal a final order on one petition when another is still pending. For the reasons discussed below, we conclude that the latter view of postdissolution petitions as new claims rather than new actions is the appropriate one. During our deliberations, however, the supreme court issued amendments to Rule 303(a), which governs the time for filing an appeal (see Official Reports Advance Sheet No. 8 (April 11, 2007), R. 303(a)(2), eff. May 1, 2007). As amended, the rule acts to save appeals that would otherwise be premature by providing that, when a timely postjudgment motion has been filed, a notice of appeal filed before "the final disposition of any separate claim" does not become effective until the order disposing of the separate claim is entered. Official Reports Advance Sheet No. 8 (April 11, 2007), R. 303(a)(2), eff. May 1, 2007. Thus, in order to decide whether we have jurisdiction over Darrell's appeal, we must first determine whether the amendments to Rule 303(a) should apply to all cases pending before the appellate court on the effective date, including this one (retroactive application), or only to those appeals filed after the effective date (prospective application). In Commonwealth Edison Co. v. Will County Collector, 196 Ill. 2d 27, 39 (2001), Illinois adopted the retroactivity analysis contained in Landgraf v. USI Film Products, 511 U.S. 244, 128 L. Ed. 2d 229, 114 S. Ct. 1483 (1994). Landgraf set forth a two-part test. In the first step, a court must determine whether the legislature stated an explicit intent regarding retroactivity. If there is such an express intent it must be followed unless doing so would violate the constitution. Allegis Realty Investors v. Novak, 223 Ill. 2d 318, 330 (2006). If the legislative intent is not clear, the court must proceed to the second step, determining whether the amendments would have retroactive effect, that

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is, whether application of the new law would "impair rights a party possessed when acting, increase[] a party's liability for past conduct, or impose new duties with respect to transactions already completed." Allegis, 223 Ill. 2d at 331. If the new law would have such an effect, the amendments cannot be applied retroactively. Allegis, 223 Ill. 2d at 331. In Illinois, the legislature has enacted a default directive in section 4 of the Statute on Statutes (5 ILCS 70/4 (West 2006)), which applies whenever there is no express intent regarding retroactive application contained in the amendments themselves. Section 4 provides that the amended version of a law may not be applied to any substantive matters, but may be applied to "the proceedings thereafter" (after the effective date of the amendments). 5 ILCS 70/4 (West 2006). Thus, the retroactivity analysis will never reach the second step of the Landgraf test: either the legislature will have spoken explicitly regarding whether the amendments should be retroactive, or the analysis will proceed under the default "intent" expressed in the Statute on Statutes, which translates as providing that amendments "that are procedural may be applied retroactively, while those that are substantive may not." Allegis, 223 Ill. 2d at 331. Here, it is the supreme court and not the legislature that has amended Rule 303(a), and the supreme court has not stated specifically whether it intends those amendments to be applied to pending appeals. Supreme Court Rule 3(g) (210 Ill. 2d R. 3(g)) provides generally that the effective date of rule changes "shall be as ordered by the Supreme Court," and Rule 1 (134 Ill. 2d R. 1) provides that "[t]he rules on appeals shall govern all appeals," but these two rules still leave open the question of whether changes to rules should be applied to all appeals pending as of the effective date of the changes, or only appeals commenced after that date. Rule 2 (134 Ill. 2d R. 2) mandates that the rules "are to be construed in accordance with the appropriate provisions of 'An Act to revise

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the law in relation to the construction of the statutes' [the Statute on Statutes (5 ILCS 70/1 et seq. (West 2006))]." Thus, section 4 of the Statute on Statutes guides our analysis and we turn to the task of determining whether the amendments to Rule 303(a) are substantive or procedural, and whether they apply to this appeal. Under Illinois law, the amendments must be considered procedural, as they relate solely to the manner in which an appeal of the final judgment on one claim in a multi-claim case may be heard. "In general, procedural law is ' "[t]hat which prescribes the method of enforcing rights or obtaining redress for their invasion; machinery for carrying on a suit." ' [Citations.] *** More specifically, procedure embraces 'pleading, evidence[,] and practice. Practice means those legal rules which direct the course of proceedings to bring parties into court and the course of the court after they are brought in.' " Rivard v. Chicago Fire Fighters Union, Local No. 2, 122 Ill. 2d 303, 310-11 (1988). Since the amendments to Rule 303(a) are procedural, they ordinarily would apply to pending appeals. "If an amendatory act merely affects the remedy or law of procedure, all rights of action will be enforceable under the new procedure even if they accrued prior to the change of law and the action was instituted prior to the amendment ***." Levy v. McKiel, 185 Ill. App. 3d 240, 242 (1989), citing Maiter v. Chicago Board of Education, 82 Ill. 2d 373, 390 (1980). The caveat is that even procedural amendments will not be applied retroactively when doing so would impair a "vested right," that is, a right that is sufficiently well established to be protected under the due process clause of the constitution. White v. Sunrise Healthcare Corp., 295 Ill. App. 3d 296, 298-99 (1998), citing First of America Trust Co. v. Armstead, 171 Ill. 2d 282, 289 (1996); Levy, 185 Ill. App. 3d at 24243, citing Maiter, 82 Ill. 2d at 390-91. The facts of this case demonstrate that there are no vested rights at stake in this appeal.

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"[A] right has not vested until it is so perfected, complete, and unconditional that it may be equated with a property interest." White, 295 Ill. App. 3d at 299, citing Armstead, 171 Ill. 2d at 29091. A litigant may have a vested right in a "final judgment," as such a judgment is a form of property that is protected by due process from destruction or impairment by subsequent retroactive legislation. Arnold & Murdock Co. v. Industrial Comm'n, 314 Ill. 251, 255 (1924). However, the trial court judgment here is not a "final judgment" in that sense. A judgment that is in the process of being appealed is not a "final judgment." "Under Illinois law, a judgment becomes a vested right of property once it is no longer subject to review or modification." (Emphasis added.) Evans v. City of Chicago, 689 F.2d 1286, 1296 (7th Cir. 1982), overruled on other grounds, 873 F.2d 1007 (7th Cir. 1989); see also Allegis, 223 Ill. 2d at 337 (the legislature infringed no protected rights by instructing that new legislation was to be applied to validate old tax levies because, "[w]hen the new law went into effect, the legal proceedings *** [regarding the levies] were not final" as the case was still pending on appeal). Thus, new procedural rules may be applied to pending appeals without interfering with a vested right. White, 295 Ill. App. 3d at 301 ("the judgment was not final while the review was pending, [and thus] the applicable law was that in effect at the time of the appeal"), citing Jacobson v. General Finance Corp., 227 Ill. App. 3d 1089, 1100-01 (1992). In sum, a litigant has " 'no vested right in the mere continuance of a law.' " Dardeen v. Heartland Manor, Inc., 186 Ill. 2d 291, 300 (1999), quoting Armstead, 171 Ill. 2d at 291. Although we believe that a judgment that is pending on appeal is not a final judgment of the sort that gives rise to a constitutionally protected property interest, we are mindful of the supreme court's guidance in Commonwealth Edison Co. v. Will County Collector, 196 Ill. 2d 27, 47 (2001), that "the question is not simply whether the ' "rights" allegedly impaired are [labeled] "vested" or

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"non-vested." ' [Citation.]" Instead, courts must make " 'subtle judgments concerning the fairness or unfairness of applying the new statutory rule' " to the particular cases pending before them. Commonwealth Edison, 196 Ill. 2d at 47, quoting Moore v. Jackson Park Hospital, 95 Ill. 2d 223, 242 (1983) (Ryan, C.J., specially concurring, joined by Underwood and Moran, JJ.). Thus, we look beyond "catchpenny phrases or the ambivalent concept of 'vested' " (2 N. Singer, Sutherland Statutory Construction

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