Appellate Law

Pending Contempt Proceeding Renders Post Dissolution Judgment Nonfinal. Second District Illinois Appellate Court Still Split.

By Steven R. Merican

IRMO Schweiger continues the disagreement in the Second District Illinois Appellate Court over the appealability of a postdissolution judgment in a divorce matter when a contempt proceeding still is pending.

Eugene and Jean Marie were divorced in 1990. The dissolution order required Eugene to split the proceeds with Jean Marie of the sale of real property. Eugene sold the property in 2005, but he did not share the profit. So Jean Marie filed an action for indirect civil contempt. The trial court ordered Eugene to pay $76,903 to Marie. When Eugene didn?t pay, Jean Marie filed another contempt petition. Eugene then appealed the judgment, but Jean Marie?s second contempt petition still was pending.

Eugene appealed under Illinois Supreme Court Rule 304(b)(5) (contempt orders are immediately appealable if they impose a monetary or other penalty). But the appellate court stated that Rule 304(b)(5) did not apply. ?Initially, this appeal cannot be one under Rule 304(b)(5) . That rule explicitly states that it applies to an order that imposes a penalty for contempt. The trial court plainly did not impose any penalty here. Yes, it entered a judgment against Eugene, but that judgment was merely the amount it calculated that Eugene owed under the dissolution judgment ? To calculate and order payment of what is already due cannot reasonably be understood as a punishment. Thus, the order that Eugene pay $76,903 did not impose a penalty and so was not appealable under Rule 304(b)(5).?

Eugene also argued that the judgment was appealable as a final judgment under Illinois Supreme Court Rule 301. The appellate court also rejected that position. ?An order is not final where jurisdiction is retained for matters of substantial controversy ? Here, the September 22, 2006, order did not finally resolve the litigation between the parties on the issue of whether Eugene had wilfully and contumaciously refused to comply with the trial court's orders to pay Jean 50% of the proceeds from the sale of the property. Although the trial court entered a $76,903 money judgment, it expressly retained jurisdiction over and continued the proceedings on Jean's second contempt petition. Thus, at the time Eugene filed his notice of appeal, this second contempt petition remained pending and had not been resolved. The pendency of this second contempt petition rendered the September 22, 2006, order nonfinal and rendered the notice of appeal from that order premature.?

This case brought out the disagreement in the Illinois Second District about the appealability of a post dissolution judgment while a contempt petition still is pending. Justice Grometer?s concurring opinion defended IRMO Gutman, 376 Ill. App. 3d 758 (2007), which ruled that a pending contempt petition in a postdissolution matter did not rob the judgment of finality, and thus appealability. Less than two months later, in IRMO Knoerr, 377 Ill. App. 3d 1042 (2007), another panel of the Second District overruled Gutman.

The concurring opinion is good reading, and also discusses the value of stare decisis. Justice Grometer clearly believes IRMO Gutman is correctly decided, and IRMO Knoerr is wrong. But in the end, Justice Grometer deferred to IRMO Knoerr.

So, what to do now? I can dissent here from the majority's reliance on Knoerr, and I can bide my time until I am on a panel with at least one justice who will join me in overruling it. Of course, it would be only a matter of time until that new case was overruled, and then the overruling case was overruled, and so on in perpetuity. Meanwhile, the public would simply throw up its hands, marveling at this court's stubborn refusal to perform its core function, to clearly communicate reliable principles of law.

This is too high a price for my adherence to Gutman. I will do what Knoerr should have done, and I will defer to this court's most recent statement of the law. Thus, in this case, I join the majority in following Knoerr, and, in the interest of our constituents, I would urge my colleagues to do the same.

The Illinois Supreme Court has agreed to review IRMO Gutman, so maybe we?ll get a final word on this soon. You can get the whole case, IRMO Schweiger, No. 2-06-1005 (1/23/08), by clicking here. See my previous reporting on Knoerr and Gutman by clicking here and here.

Full post as published by Illinois Appellate Lawyer Blog on May 07, 2008 (boomark / email).