No. 2--03--0362

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE HUTCHINSON delivered the opinion of the court:

Pursuant to Supreme Court Rule 304(b)(5) (155 Ill. 2d R. 304(b)(5)), respondent, MarkTerrell, appeals from the trial court's order finding him in indirect civil contempt for refusing tocomply with a prior order directing him to pay temporary maintenance to petitioner, MargaretNettleton. In challenging the trial court's contempt order, respondent also requests this court toreview the trial court's adverse rulings on his motions for substitution of judge and for dismissal ofpetitioner's petition for dissolution of marriage. Because the trial court's rulings on those motions donot bear directly on the question of whether the trial court's finding of contempt was proper, wecurrently lack jurisdiction to consider the rulings on those motions. With respect to the trial court'sorder finding respondent in indirect civil contempt, we vacate.

The record reflects the following facts. Petitioner and respondent were married in August1988. The parties had no children during the marriage. Petitioner's first petition for dissolution (thefirst petition), filed in July 2001, alleged irreconcilable differences, extreme and repeated mentalcruelty, and adultery. The first petition was docketed as No. 01--D--1727 and was assigned to JudgeBrian McKillip. Respondent filed a counterpetition for dissolution. The case remained on the trialcourt's docket for more than a year, during which time the trial court made several rulings onsubstantive issues, including a ruling on temporary maintenance.

On December 6, 2002, the case came up for trial. Petitioner moved for a voluntary nonsuit,which the trial court denied because of respondent's objection to the lack of notice. The trial courtsubsequently dismissed petitioner's petition upon her failure to prove grounds for a dissolution. Thereafter, the trial court dismissed respondent's counterpetition for want of prosecution whenrespondent declined to proceed on his counterpetition.

On December 13, 2002, petitioner filed a second petition for dissolution of marriage (thesecond petition), alleging grounds of irreconcilable differences and adultery. Petitioner also filed apetition for temporary relief, requesting the award of temporary monthly maintenance. This case wasdocketed as No. 02--D--3037 and was assigned to Judge Dorothy French. On January 13, 2003,respondent filed a two-count motion to dismiss. Count I alleged that the trial court lacked personaljurisdiction over respondent, and count II argued that the dismissal of the first petition was resjudicata. Upon being notified of the existence of the first petition, Judge French transferred the caseback to Judge McKillip under local court rule, noting in her order, "Case previously assigned to JudgeMcKillip." On January 16, 2003, respondent filed a motion for substitution of judge as a matter ofright pursuant to section 2--1001(a)(2) of the Code of Civil Procedure (735 ILCS 5/2--1001(a)(2)(West 2002)). Petitioner responded that respondent's request should be denied because JudgeMcKillip had already made substantive rulings in regard to the first petition. Petitioner concludedthat, as for her second petition, respondent had waived his right to seek substitution as a matter ofright.

The parties fully briefed the issue, and on February 4, 2003, the trial court conducted ahearing on respondent's motion for substitution of judge. Following arguments of the parties, the trialcourt denied respondent's motion for substitution. The trial court also denied respondent's requestsfor a finding pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)) or for certificationpursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308). Respondent's counsel then advised the trialcourt that, to test the appropriateness of its ruling, respondent would have to be held in contempt. The trial court indicated that it would not hold respondent in contempt.

On February 7, 2003, the trial court conducted a hearing on respondent's motion to dismiss. Following arguments of the parties, the trial court denied both counts. The trial court also refusedrespondent's requests for a Rule 304(a) finding or for certification of the question under Rule 308.

On March 14, 2003, the trial court conducted a hearing on petitioner's petition for temporarymaintenance. Following the presentation of evidence, the trial court continued the matter for thecompletion of closing arguments and for a ruling. On March 17, 2003, the trial court awardedpetitioner temporary maintenance in the amount of $4,070 per month. The trial court and the partiesagreed to reconvene at 10:30 a.m. on March 20, 2003, to enter the maintenance order. Also onMarch 17, respondent filed a "stipulation" that he be held in indirect civil contempt for his failure topay court-ordered maintenance. In the stipulation, respondent narrated the background of petitioner'sfirst and second petitions for dissolution, set forth the trial court's rulings on his motion forsubstitution of judge and motion to dismiss, and expressed that he had unsuccessfully requested thetrial court to allow an interlocutory appeal on the issues of the substitution of judge and the dismissalof petitioner's second petition. The stipulation also reflected that on February 4, 2003, counsel hadinformed the trial court that the only other way to bring these matters before the appellate court wasto have the trial court hold respondent in contempt but that the trial court had refused to do so at thattime.

The stipulation further recited that, in the event respondent was ordered to pay temporarymaintenance to petitioner, he had informed his and petitioner's counsel that he would not pay themaintenance and would voluntarily allow himself to be held in indirect civil contempt to challenge thevalidity of the trial court's rulings concerning his motion for substitution of judge and his motion todismiss. Respondent also waived the formal pleading requirement of requesting a finding of contemptand he agreed to interpose no defense to an oral request.

On March 20, 2003, the trial court entered an order awarding petitioner $4,070 per monthin temporary maintenance retroactive to the effective date of service on respondent of her secondpetition. On the same date, the trial court entered an order finding that respondent's conduct andfailure to comply with the temporary maintenance order were contumacious and holding him inindirect civil contempt. The contempt order also required respondent's incarceration but stayed theincarceration to give respondent time to satisfy the arrearage. Respondent filed his notice of appealthe same day. Respondent's counsel has since represented to this court that respondent has paid thepurge amount of $12,210.

During the pendency of this appeal, petitioner filed a motion to dismiss this appeal for lackof jurisdiction, arguing that respondent's notice of appeal was not timely filed. Petitioner notes thatthe trial court's order finding respondent in indirect civil contempt bears a stamp reflecting a filingdate of March 20, 2003, and a time of 11:27 a.m.; meanwhile, respondent's notice of appeal bears astamp reflecting a filing date of March 20, 2003, and a time of 11:34 a.m.; and the trial court's orderawarding petitioner temporary maintenance bears a stamp reflecting a filing date of March 20, 2003,and a time of 11:54 a.m. Petitioner concludes that we lack jurisdiction because the sequence of filingtimes reflects that respondent filed his notice of appeal before the trial court entered its final orderawarding petitioner temporary maintenance.

Respondent filed an objection to petitioner's motion, denying that his notice of appeal waspremature. In his objection, respondent argues that the trial court's order holding him in contemptexpressly indicated that it had already entered the temporary maintenance order before it entered thecontempt order. Respondent further argues that he filed his notice of appeal after the trial courtentered the order finding him in contempt and that the file stamps on the documents confirm that fact. With respect to the time stamp, respondent states, first, that the time stamp on the maintenance orderis irrelevant to his appeal because jurisdiction is based on the contempt order and not the maintenanceorder, and second, that he had no control over the actions of the court personnel. We orderedpetitioner's motion to dismiss and respondent's objection taken with the case.

Our supreme court has the sole responsibility for promulgating rules governing appeals fromthe circuit court. See Ill. Const. 1970, art. VI,