In re Marriage of Mardjetko ( 2007 )

No. 2--06--0401 filed: 1/5/07
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
In re MARRIAGE OF DAWN S. ) Appeal from the Circuit Court
MARDJETKO, ) of Kane County.
)
Petitioner-Appellee, )
)
and ) No. 04--D--1157
)
FRANK J. MARDJETKO, ) Honorable
) Robert B. Spence,
Respondent-Appellant. ) Judge, Presiding.
_____________________________________________________________________________
JUSTICE CALLUM delivered the opinion of the court:
Frank J. Mardjetko, respondent in an action for dissolution of marriage, appeals from the trial
court's denial of his motion to vacate a default judgment against him and from the underlying
judgment. Because when the court entered the default judgment it reserved fundamental issues,
including support and visitation, the judgment was not final. We therefore lack jurisdiction to
consider this appeal and so dismiss it.
Dawn S. Mardjetko, petitioner, filed her petition for dissolution of marriage on August 17,
2004. Respondent answered on September 13, 2004, denying the existence of irreconcilable
differences between the parties. On October 12, 2005, the court granted respondent's attorney leave
to withdraw and gave respondent 21 days to appear pro se or retain new counsel. On November 3,
2005, petitioner filed a motion for default judgment, setting a hearing date of November 16, 2005.
The basis was that respondent had not filed a substitute appearance within the allowed time. The
No. 2--06--0401
court granted the motion and set a prove-up date of December 13, 2005. That day, it entered a
judgment of dissolution, divided the marital property, granted sole custody of the children to
petitioner, set child support of $1,306.95 a month, and barred respondent from receiving
maintenance. However, it "reserved" the issues of visitation, the children's post-high-school
educational expenses, and petitioner's maintenance. It did not make any findings about why this
reservation was appropriate.
On January 12, 2006, respondent moved to vacate the judgment. The court denied the motion
on March 14, 2006. Respondent filed a notice of appeal on April 13, 2006.
The reservation of issues here deprives us of jurisdiction over this appeal. Although neither
of the parties to this appeal has raised the issue of our jurisdiction, we have a duty to consider sua
sponte whether we have jurisdiction and to dismiss the appeal if we lack jurisdiction. In re Marriage
of Link, 362 Ill. App. 3d 191, 192 (2005). This appeal purports to be taken under Supreme Court
Rule 301 (155 Ill. 2d R. 301), concerning appeals from final judgments. In In re Marriage of
Leopando, 96 Ill. 2d 114, 118-20 (1983), the supreme court held that the basic issues that a court
must resolve in a dissolution proceeding are all a part of a single, unified claim. Orders resolving
individual issues are not appealable (even with a finding purporting to confer appealability under
Supreme Court Rule 304(a) (210 Ill. 2d R. 304(a)) until the court resolves the entire dissolution
claim. Leopando, 96 Ill. 2d at 119. The trial court here did not resolve issues including maintenance
and visitation and so did not resolve the entire dissolution claim. Therefore, the order here was not
final, and we lack jurisdiction over the appeal.
That the court entered a judgment of dissolution, bifurcating the judgment, does not alter this
result. In In re Marriage of Bogan, 116 Ill. 2d 72, 75-76 (1986), the supreme court, reversing an
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appellate court holding based on Leopando, held that an order bifurcating a judgment is appealable
with a Rule 304(a) finding, but that only the propriety of the bifurcation is reviewable. The most
natural reading of Bogan is that it holds that the propriety of a bifurcation is the only issue reviewable
before the trial court decides all issues. In In re Marriage of Kenik, 181 Ill. App. 3d 266, 270 (1989),
a First District panel interpreted Bogan precisely this way. Thus, even had respondent attempted to
appeal the bifurcation, we would have to dismiss the appeal because he did not obtain a Rule 304(a)
finding.
The above is sufficient to explain why the order here is not appealable. However, we think
further comment on issues being "reserved" may be useful, given problems that regularly arise with
that term. "Illinois law encourages resolution of all issues ancillary to dissolution, as well as
dissolution itself, in a single proceeding, for reasons of certainty, financial security [citations], and
judicial economy." Kenik, 181 Ill. App. 3d at 275. A court may reserve issues for later resolution
in limited circumstances only; section 401(b) of the Illinois Marriage and Dissolution of Marriage Act
(Act) provides:
"Judgment shall not be entered unless, to the extent it has jurisdiction to do so, the
court has considered, approved, reserved or made provision for child custody, the support
of any child of the marriage entitled to support, the maintenance of either spouse and the
disposition of property. The court may enter a judgment for dissolution that reserves any of
these issues either upon (i) agreement of the parties, or (ii) motion of either party and a
finding by the court that appropriate circumstances exist." 750 ILCS 5/401(b) (West 2004).
If the court does reserve issues, the result is a bifurcated judgment (see, e.g., Kenik, 181 Ill. App. 3d
at 270) with the consequences for appealability we have described.
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We recognize that trial courts sometimes describe issues as being "reserved" when, in fact,
the court has decided the issue (usually based on circumstances it expects to be temporary), but
intends to revisit the issue soon. Such a use of the word "reserved" nearly guarantees confusion. The
Act uses the word "reserves" specifically for instances where the court is bifurcating judgment.
Where it is unmistakable that a trial court is using the word in a sense that does not defeat the finality
of the judgment, we will not frustrate that intent by adhering to the meaning of "reserves" in the Act.
Here, however, neither the order for dissolution nor the transcript of the prove-up hearing shows that
the court had in fact made a decision about "reserved" issues. We therefore take the word to have
the meaning given it by the Act.
For the reasons we have stated, we lack jurisdiction over this appeal and so dismiss it.
Appeal dismissed.
O'MALLEY and BYRNE, JJ., concur.
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