Opinion
1-20-1404
09-30-2022
IN RE THE MARRIAGE OF: SPARKLE DALPHINIS, Petitioner-Appellee, v. HEINSON LORENZO DALPHINIS, Respondent-Appellant.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County No. 2019 D 4305 Honorable Lori Rosen, Judge Presiding.
JUSTICE ELLIS delivered the judgment of the court. Presiding Justice Fitzgerald Smith and Justice Cobbs concurred in the judgment.
ORDER
ELLIS JUSTICE
¶ 1 Held: Appeal dismissed. Dissolution order was not final and appealable judgment, as issue of attorney fee award remained outstanding.
¶ 2 Heinson Lorenzo Dalphinis, who goes by Lorenzo, and Sparkle Dalphinis were married on May 15, 2018. A year later, Sparkle filed a petition to dissolve the marriage. This triggered a few years of protracted litigation, mostly spent trying to figure out how much money Lorenzo made as a self-employed contractor. At one point, Sparkle moved to sanction Lorenzo for filing a series of frivolous motions, and the court agreed and sanctioned him. Lorenzo asked the court to reconsider, and the court took that motion under advisement while the case proceeded to trial.
¶ 3 The court held a trial and, on December 1, 2020, entered an order dissolving the marriage, ordering maintenance and dividing the couples' property, among other things. In that dissolution order, it noted that it would rule on Lorenzo's motion to reconsider the sanctions in a separate order. Then, on December 11, 2020, it granted his motion to reconsider the ruling and decided not to impose sanctions. However, it did find that Lorenzo's pretrial motions needlessly increased the cost of litigation and granted Sparkle leave to file a petition for attorney fees. The court gave Sparkle until January 11, 2021, to file her petition.
¶ 4 Lorenzo decided he did not want to wait to appeal the court's dissolution order, however, and filed a notice of appeal on December 30, 2020. But because the attorney-fee issue here is part of the underlying dissolution judgment, and it remained outstanding as of the date of the notice of appeal, the December 1 and 11 orders from which Lorenzo appeals were not final judgments. We thus lack jurisdiction to review them and dismiss this appeal.
¶ 5 BACKGROUND
¶ 6 Because we resolve this matter on jurisdictional grounds, we limit our discussion of the facts accordingly. Lorenzo and Sparkle married on May 15, 2018. Exactly one year later, Sparkle filed a petition to dissolve the marriage. What followed was a litany of pretrial litigation, wherein the court sorted out an order of protection against Lorenzo, interim maintenance, child support, and custody issues, among other things.
¶ 7 On November 4, 2019, Sparkle filed a petition for an emergency order of protection; the court granted the emergency order and ultimately granted Sparkle's request for a plenary order of protection. Lorenzo was granted supervised parenting time, however, and the parties agreed on a supervisor. But Lorenzo filed a motion to reconsider the plenary order of protection on December 10, however, only a few weeks after the full hearing on it.
¶ 8 Three days later, on December 13, the court held a separate hearing on interim child support and custody and ordered Lorenzo to pay Sparkle $2,000 per month in temporary child support, cover half of the children's out of pocket expenses, and reimburse Sparkle for child-related expenses she had incurred up to that point in the divorce proceedings. Lorenzo then filed another motion to reconsider, this time asking the court to change the supervisor who was overseeing his time with the children. Finally, on January 6, 2020, Lorenzo filed a motion asking the court to reconsider the December 13 support order.
¶ 9 On January 9, 2020, fed up with what she considered frivolous relitigating of settled issues, Sparkle filed a motion for Rule 137 sanctions. See Ill. S.Ct. R. 137 (eff. Jan 1, 2018). On February 24, 2020, the court granted Sparkle's motion for Rule 137 sanctions, agreeing with Sparkle that Lorenzo needlessly prolonged the litigation with frivolous filings. It ordered Lorenzo to pay for "all of Petitioner's attorneys' fees associated with Respondent's Motion to Change Supervisors and his Motion to Modify [Temporary] Support."
¶ 10 A month later, Lorenzo asked the court to reconsider that decision. Among other reasons, Lorenzo pointed out that the court did not set forth "with specificity a reason and basis for the sanctions" and asked it to set them aside. The court took the motion to reconsider under advisement while the case continued to move toward a trial.
¶ 11 A multi-day trial was held, and on December 1, 2020, the court entered a judgment dissolving the marriage. (This is one of the two judgments under review.) In that judgment, the court divided the couples' property, determined the parties' income, and established a maintenance and child support schedule, among other things. The order addressed the question of sanctions and attorney fees as follows:
"Except as set forth in a separate order regarding the award of sanctions, both parties shall be responsible for their own attorneys' fees and costs in this case. Neither party filed a petition for contribution pursuant to 750 ILCS 5/503(j), and both parties are barred from seeking a hearing on the contribution to his or her attorney's fees and costs by the other party."
¶ 12 On December 11, 2020, however, the court issued another order (the second of the two judgments under review). The court granted Lorenzo's motion to reconsider the Rule 137 sanctions it previously imposed, agreeing with Lorenzo that the court erred by not entering a written explanation setting forth, with specificity, the reasons and basis of the sanctions, as Rule 137 requires. But the court stuck to its belief that Lorenzo had needlessly prolonged the litigation and thus granted Sparkle leave to file a petition for attorney fees pursuant to Section 508 of the Marriage and Dissolution of Marriage Act. The court entered a schedule for Sparkle to file her petition (January 11, 2021), for Lorenzo to respond (February 1, 2021), and ultimately for a hearing on the motion to take place on February 9, 2021.
¶ 13 But before any such filings could occur, on December 30, 2020, Lorenzo filed a notice of appeal in the circuit court. In the section titled "Date of every order/judgment appealed:" he wrote "December 1; and December 11," referring to the initial judgment of dissolution (December 1) and the judgment order reconsidering the Rule 137 sanctions but allowing Sparkle to petition for attorney fees (December 11). In the statement of relief, Lorenzo requested various alterations to the judgment of dissolution and that the December 11 judgment order be reversed "insofar as it grants leave to [Sparkle] to seek a contribution to her attorney fees and costs from [Lorenzo]."
¶ 14 On January 5, 2021, consistent with the trial court's December 11 order and briefing schedule, Sparkle filed a petition seeking $13,239.50 in attorney fees from Lorenzo. Twenty days later, Lorenzo filed a motion to strike and dismiss the petition. In that motion, Lorenzo argued that once the court entered the dissolution order, it was a final judgment in the case and barred any subsequent order for attorney fees. Additionally, Lorenzo argued that the circuit court no longer had jurisdiction over the cause, given his notice of appeal filed on December 30.
¶ 15 It is not clear from the record what, if anything, has transpired in the circuit court regarding the fee petition.
¶ 16 ANALYSIS
¶ 17 Sparkle argues that we lack jurisdiction to consider this appeal, and we have an independent duty to consider our jurisdiction, in any event. Archer Daniels Midland Co. v. Barth, 103 Ill.2d 536, 539 (1984). Sparkle claims that the December 1 and December 11 orders were not final and appealable judgments, because a pending pre-dissolution fee petition remained outstanding.
¶ 18 Supreme Court Rules 301 and 303 allow appeals from final judgments as a matter of right, so long as a notice of appeal is filed within 30 days after entry of the final judgment. Ill. S.Ct. Rs. 301 (eff. Feb. 1, 1994), 303 (eff. July 1, 2017); Ill. Const. 1970, art. VI, § 6. A judgment is "final" if it determines the litigation on the merits or some definite part thereof so that, if affirmed, the only thing remaining is to proceed with the execution of the judgment. In re Marriage of Verdung, 126 Ill.2d 542, 533 (1989). So the questions here are whether the December 1 and December 11 judgments were "final" judgments.
¶ 19 The Marriage and Dissolution of Marriage Act encourages the court to decide all matters incident to the dissolution in a single judgment, to the fullest extent of its authority, in order to achieve finality, promote judicial economy, and avoid multiple litigations that can result from the entry of partial judgments. In re Marriage of Cohn, 93 Ill.2d 190, 197 (1982). A petition for dissolution advances a single claim: the parties' request for an order dissolving their marriage. In re Leopando, 96 Ill.2d 114, 119 (1983). There are many other potential issues involved, such as child custody, visitation, property distribution, and support, but these are not separate claims-instead, they are merely issues related to the single claim. Id. So until all those issues are decided, the judgment of dissolution is not final. Id. at 119-20.
¶ 20 We have long held that the question of attorney fees arising out of pre-dissolution proceedings is another example of an issue consumed within the single claim of dissolution. See In re Marriage of Derning, 117 Ill.App.3d 620, 626 (1983) ("Since the allocation of attorney fees judgment is dependent upon and integrally related to decisions regarding property, maintenance and child support, their allocation cannot fairly be characterized as collateral or incidental to the divorce decree."); In re Marriage of King, 336 Ill.App.3d 83, 88 (2002) (request for attorney fees "is not an independent action and must be considered to be part of the overall divorce proceeding."); In re Marriage of Tomei, 253 Ill.App.3d 663, 666 (1993) ("This court has determined that attorney fees are directly related to the central dispute in a dissolution of marriage case and thus are not incidental.").
¶ 21 We recently reiterated this conclusion in a non-binding but persuasive order. See In re Marriage of Montana and Vildzuiniene, 2022 IL App (1st) 190605-U, ¶¶ 21, 25 (unpublished order under Supreme Court Rule 23) (dismissing appeal from judgment of dissolution, as question of attorney fees remained pending before trial court at time of notice of appeal).
¶ 22 Though the court, in its December 1 dissolution judgment order, ruled out awarding fees to either party, the court reconsidered and amended that judgment order in its December 11 order, which the trial court had the authority to do. See Brewer v. National Railroad Passenger Corp., 165 Ill.2d 100, 105 (1995) ("A trial court retains jurisdiction over a cause for 30 days after entry of a final order or judgment."); Herlehy v. Marie V. Bistersky Trust Dated May 5, 1989, 407 Ill.App.3d 878, 898 (2010) (same); In re Marriage of Ehgartner-Shachter & Shachter, 366 Ill.App.3d 278, 286 (2006) (same).
¶ 23 Once the court reopened the issue of awarding attorney fees in its December 11 order, that question remained pending until further resolution, and the judgment of dissolution was no longer a final and appealable judgment. See Derning, 117 Ill.App.3d at 626; Tomei, 253 Ill.App.3d at 666; Vildzuiniene, 2022 IL App (1st) 190605-U, ¶¶ 21, 25. Thus, when Lorenzo filed his notice of appeal on December 30, he was appealing two non-final judgments. We thus lack jurisdiction to review these judgments. We have no choice but to dismiss this appeal.
¶ 24 As we noted above, it is not clear from the record if the trial court proceeded to consider and resolve the fee petition filed by Sparkle, as opposed to holding the matter in abeyance until we resolved this appeal. If the latter is true, and the issue remains pending below, then it would be possible for Lorenzo to appeal the dissolution judgment (with a new notice of appeal) once the issue of attorney-fee award is resolved, and the dissolution judgment becomes final and appealable. At this stage, however, our only recourse is to dismiss the appeal.
¶ 25 CONCLUSION
¶ 26 For these reasons, we dismiss this appeal.
¶ 27 Appeal dismissed.