Appellate Law

Pending Review Of Mother?s Finances Deprives Appellate Court Of Jurisdiction In Divorce Battle

By Steven R. Merican

Rosemary Mackin was unhappy with the trial court?s division of property and the denial of maintenance in her divorce case, so she appealed. The last order by the trial court disallowed child support, but set it ?for review after the expiration of 180 days for examination of the financial circumstances of [mother] and a determination by the Court at that time as to an appropriate amount of child support to be paid from that date forward by [mother] to [father] for the support of the parties' two minor children." Rosemary filed her appeal after this order, but before the 180-day re-examination of her finances.

Rosemary and Thomas, her ex-husband, agreed that the appellate court had jurisdiction. But the Fifth District Illinois Appellate Court reviewed jurisdiction anyway and decided otherwise. Because the issue of child support was still under consideration in the trial court, a final order from which Rosemary could appeal had not been entered. The appellate court explained:

The court decided to wait 180 days to examine the financial circumstances of mother, at which time the court would then make a determination on an appropriate amount of child support to be paid by mother from that date forward for the support of the parties' children. Clearly the court did not resolve the issue of child support and therefore did not resolve the entire dissolution claim. Accordingly, the December 19, 2007, order [denying Rosemary?s post-trial motion disputing maintenance and division of property] was not final, and we lack jurisdiction over mother's appeal.

Rosemary and Thomas argued that ?child support can be modified at any time pursuant to section 505(a) of the Illinois Marriage and Dissolution of Marriage Act ? and that the effect of the court's order setting the matter of child support for review after 180 days is no different from when a parent motions for a modification of child support at some point after the initial order.? But the appellate court disagreed.

Under section 510 of the [Illinois Marriage and Dissolution of Marriage] Act ? a modification of child support is warranted only upon a showing of a substantial change in circumstances ? This is not the same situation. The court in this instance will set an amount of child support after the expiration of 180 days, whether or not mother's financial situation has changed. Again, we conclude that the court did not resolve the entire dissolution claim and that we lack jurisdiction to hear mother's appeal.

Get the whole case, IRMO Mackin, No. 5-08-0028 (5/28/09), by clicking here.

Full post as published by Illinois Appellate Lawyer Blog on August 18, 2009 (boomark / email).