By Kevin R. Malloy
Partner, Forde Law
Can the appellate
court allow a Rule 306 interlocutory appeal of a temporary order setting child
support and maintenance payments? After first doing so, the First District took
a closer look and decided that it could not, and thus dismissed an appeal for
lack of jurisdiction in the case of In reMarriage of Dougherty, 2017 IL App (1st) 161893.
Rule 306(a)(5) allows
parties to petition for leave to appeal from “interlocutory orders affecting
the care and custody of or the
allocation for parental responsibility for unemancipated minors.” Ill. Sup. Ct.
R. 306(a)(5) (emphasis added). At issue in In
re Marriage of Dougherty was whether temporary orders entered by the trial
court awarding child support and spousal maintenance could be appealed under
that Rule. No issues were raised regarding custody.
After the appellate
court had granted the petitioner’s petition for leave to appeal, the respondent
moved for reconsideration and/or to dismiss for lack of jurisdiction. The court
took the motion with the case. In its opinion, after first noting its
obligation to consider its jurisdiction at any time, the appellate court framed
the jurisdictional issue as whether the phrase “orders affecting the care and custody” of minor children in
Rule 306(a)(5) referred only to orders relating to the custody of minor children. The court held that it does, and
dismissed the appeal.
The petitioner had argued
that the temporary child support order concerned the “care” of the child, as
did maintenance, since it affected the financial circumstances of the custodial
parent. But the petitioner did not cite any relevant authority to support his
position. In contrast, the First District pointed to a number of sources to support
its construction of Rule 306(a)(5).
The court first noted
that the Illinois Supreme Court in Gill
v. Gill, 56 Ill. 2d 139, 143-44 (1973), stated that the “obligation of the
father to support his minor child is not affected by the decree…granting the
care and custody of his child.” Thus, that use of language was relevant in
clarifying that “care and custody” is separate from support. In re Marriage of Dougherty, 2017 IL App
(1st) 161893, ¶ 9.
Next, the First
District pointed to Rules Committee comments to the March 2016 amendment to
Rule 306, which reflected changes of the term “custody” to “allocation of
parental responsibilities” in the Illinois Marriage and Dissolution of Marriage
Act. Those comments specifically focused on the term “custody”, and thus did
not suggest that Rule 306(a)(5) extended into temporary orders on “child
support and maintenance.” In re Marriage
of Dougherty, 2017 IL App (1st) 161893, ¶¶ 10-11.
Further, the First
District noted, Rule 306(a)(5) provides that once the petition for leave to
appeal has been granted, Rule 311(a)’s expedited procedures apply. Rule 311(a),
in turn, states that the expedited procedures in that rule shall apply to “interlocutory appeals in child custody or
allocation of parental responsibilities cases from which leave to appeal has
been granted pursuant to Rule 306(a)(5).” Ill. Sup. Ct. R. 311(a). That rule
further provides, in contrast, that a reviewing court may use the expedited procedures in an appeal from an order
“affecting other matters, such as support.”
In re Marriage of Dougherty, 2017 IL
App (1st) 161893, ¶ 12 (quoting Rule 311(a) (emphasis by court)).
Finally, the Rules
Committee’s comments for Rule 311(a) offered additional guidance, noting that
its 2010 amendment was “intended to clarify that the rule addresses only the
procedures to be followed in order to expedite disposition of child custody
appeals.” In re Marriage of Dougherty,
2017 IL App (1st) 161893, ¶ 14.
Court Rules the same as statutes, the appellate court applied the doctrine of in pari materia to read Rule 306(a)(5)
and Rule 311(a) together, so as to give them “harmonious effect.” The First
District concluded that both rules “relate to expedited interlocutory appeals
involving custody or the allocation of parental responsibilities,” and that “neither
rule, nor any comment suggests that a temporary support of maintenance order
may be brought independently.” In re
Marriage of Dougherty, 2017 IL App (1st) 161893, ¶ 15. Thus, the court would
not read additional language into the rules in order to confer jurisdiction. Id. Considering the language of the
rules together, the court held that “Rule 306(a)(5) does
not provide for petitions for leave to appeal from temporary support and
maintenance orders.” Id. ¶ 16. Thus,
it did not have jurisdiction and dismissed the appeal.
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