Nos. 2--05--0194 & 2--05--0209 cons.

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE KAPALA delivered the opinion of the court:

The parties to this dissolution of marriage action, Helen R. Link and David E. Link, appealfrom an order of the circuit court of Winnebago County that declared third-party respondent, CheriWayman, to be the sole owner of certain property known as 3835 16th Avenue, Rockford, Illinois(the property). For the reasons that follow, we dismiss this consolidated appeal for lack of appellatejurisdiction.

FACTS

Helen filed her petition for dissolution of marriage on December 20, 2002. During themarriage David had an amorous affair with Cheri Wayman. During his relationship with Cheri,David deeded the property, which was in his name alone, to Cheri. This transfer occurred on May30, 2002. According to David, he planned to cohabit with Cheri at the property. However, Cherichanged the locks after she moved there.

On March 3, 2003, David filed a third-party complaint against Cheri in the pendingdissolution proceeding. He alleged that Cheri held the property in a resulting trust for the benefit ofthe marital estate. After a hearing, the trial court found that David made a gift of the property toCheri. This ruling effectively denied the third-party complaint. Both Helen and David filed timelynotices of appeal. The trial court did not make a finding pursuant to Supreme Court Rule 304(a)(155 Ill. 2d R. 304(a)). This court consolidated the appeals for review.

ANALYSIS

At the time David and Helen filed their notices of appeal, none of the issues related to thedissolution had been resolved. While none of the parties to this appeal has raised the issue of ourjurisdiction, a reviewing court has a duty to consider sua sponte its jurisdiction and to dismiss anappeal if jurisdiction is wanting. Revolution Portfolio, LLC v. Beale, 341 Ill. App. 3d 1021, 1024-25(2003). Both appellants assert we have jurisdiction pursuant to Supreme Court Rule 301 (155 Ill.2d R. 301) and Supreme Court Rule 303 (Official Reports Advance Sheet No. 7 (March 30, 2005),R. 303(a), eff. March 18, 2005). Rule 301 provides for appeal as a matter of right from finaljudgments. In re M. M., 337 Ill. App. 3d 764, 771 (2003). " 'A final judgment is one that fixesabsolutely and finally the rights of the parties in the lawsuit; it is final if it determines the litigationon the merits so that, if affirmed, the only thing remaining is to proceed with the execution of thejudgment.' " M. M., 337 Ill. App. 3d at 771, quoting In re Adoption of Ginnell, 316 Ill. App. 3d 789,793 (2000). An order is not final if jurisdiction is retained for matters of substantial controversy. M. M., 337 Ill. App. 3d at 771. In our case, the order disposing of the third-party complaint is nota final order for purposes of Rule 301 because all of the issues related to the dissolution action werestill unresolved. Therefore, this court does not have jurisdiction to hear this appeal.

It occurs to us that upon dismissal of this appeal the appellants might rely upon Rule 304(a)and, after obtaining the necessary written finding from the trial court, return to this court. For thisreason, we additionally address whether under In re Marriage of Leopando, 96 Ill. 2d 114 (1983),a Rule 304(a) finding would allow them to bring an immediate appeal before the trial court disposesof all of the issues in the dissolution proceeding. Rule 304(a) provides, inter alia, that if multipleclaims for relief are involved in an action, an appeal may be taken from a final judgment as to fewerthan all of the claims only if the trial court has made an express written finding that there is no justreason for delaying either enforcement or appeal or both. 155 Ill. 2d R. 304(a).

In Leopando, our supreme court held that an order dissolving the parties' marriage in whichpermanent custody was awarded to the respondent was not appealable because it reserved for futureconsideration the issues of maintenance, property division, and attorney fees. Leopando, 96 Ill. 2dat 119. Leopando held that a petition for dissolution advances a single claim, that is, a request foran order dissolving the parties' marriage. Leopando, 96 Ill. 2d at 119. Because a dissolution petitionpresents but a single claim, and in order to avoid piecemeal appeals, our supreme court held thatRule 304(a) cannot be used to appeal an interlocutory custody order where the remaining issueslinger unresolved. Leopando, 96 Ill. 2d at 120. Leopando uses the word "ancillary" to describe thenumerous issues involved in a dissolution case, such as custody, property disposition, and support. Leopando, 96 Ill. 2d at 119. Here, we must decide whether David's claim that Cheri held theproperty in trust for the benefit of the marital estate is a claim that is ancillary to the dissolution case.

In In re Marriage of Bogan, 116 Ill. 2d 72 (1986), our supreme court held that an orderentered in the original dissolution proceedings, bifurcating the judgment, was appealable with a Rule304(a) finding because the bifurcation of the judgment was not one of the ancillary issues involvedin a dissolution case. Bogan, 116 Ill. 2d at 75-76. "Allowing a litigant to appeal the bifurcation ofa judgment *** does not encourage piecemeal appeals involving the dissolution itself or the ancillaryissues." Bogan, 116 Ill. 2d at 76. Furthermore, the court held, if the appeal had to wait until all ofthe ancillary issues had been resolved, the issue of bifurcation would be moot, and the appellantwould have no recourse. Bogan, 116 Ill. 2d at 76. In In re Marriage of Gordon, 233 Ill. App. 3d 617(1992), the court determined that a petition for a protective order under the Domestic Violence Actfiled in a marital dissolution case is a separate claim and is not an ancillary part of the claim fordissolution. Gordon, 233 Ill. App. 3d at 627. Thus, if resolution of David's third-party action againstCheri is distinct from the issues between Helen and David in the dissolution case, this case isappealable with a proper Rule 304(a) finding. To make this determination, we examine the issuesnecessary to an equitable property distribution between the parties to the dissolution and the issuesnecessary to resolve who has an interest in the property.

Section 503(d) of the Illinois Marriage and Dissolution of Marriage Act (the Act) (750 ILCS5/503(d) (West 2002)) requires the trial court to assign each spouse's nonmarital property to thatspouse and to divide the marital property in just proportions considering the following factors:

"(1) the contribution of each party ***;

(2) the dissipation by each party of the marital or non-marital property;

(3) the value of the property assigned to each spouse;

(4) the duration of the marriage;

(5) the relevant economic circumstances of each spouse when the division of propertyis to become effective ***;

(6) any obligations and rights arising from a prior marriage of either party;

(7) any antenuptial agreement of the parties;

(8) the age, health, station, occupation, amount and sources of income, vocationalskills, employability, estate, liabilities, and needs of each of the parties;

(9) the custodial provisions for any children;

(10) whether the apportionment is in lieu of or in addition to maintenance;

(11) the reasonable opportunity of each spouse for future acquisition of capital assetsand income; and

(12) the tax consequences of the property division upon the respective economiccircumstances of the parties." 750 ILCS 5/503(d) (West 2002).

The trial court found that the evidence supported Cheri's contention that David deeded theproperty to her as a gift. " 'A gift is a voluntary gratuitous transfer of property from donor to doneewhere the donor manifests an intent to make such a gift and absolutely and irrevocably delivers theproperty to the donee.' [Citations.]" In re Marriage of Didier, 318 Ill. App. 3d 253, 259 (2000). Thethree elements needed to prove a gift are donative intent, acceptance, and delivery. In re Erickson,302 B.R. 266, 270 (Bankr. C.D. Ill. 2003). David alleged in his third-party complaint that Cheri heldthe property in a resulting trust. A resulting trust arises where one person purchases property withhis own funds and title is taken in the name of another. Avenaim v. Lubecke, 347 Ill. App. 3d 855,863 (2004). "A resulting trust can arise only at the time of the conveyance, and 'the payor's intentionat that time determines whether a resulting trust may be found.' " Avenaim, 347 Ill. App. 3d at 863,quoting In re Estate of Koch, 297 Ill. App. 3d 786, 788 (1998). Central to the inquiry into whethera resulting trust exists are the issues of who paid for the property and who was intended tobeneficially enjoy the property. Avenaim, 347 Ill. App. 3d at 863, citing 90 C.J.S. Trusts