You are not always going to get the result you want from an Illinois divorce judge. If the Illinois divorce judge does not rule in your favor, you are entitled to appeal that decision within 30 days of the final order (in most cases).
An appeal is a “complaint to a superior court of an injustice done or error committed by an inferior one, whose judgment or decision the court above is called upon to correct or reverse. The removal of a cause from a court of inferior to one of superior jurisdiction, for the purpose of obtaining a review and retrial.” Black’s Law Dictionary (10th ed. 2014)
You cannot immediately appeal any ruling by a divorce judge, however. There are specific timing requirements that make an Illinois divorce case appealable. Understanding those timing requirements is essential if you truly wish to appeal your Illinois divorce case.
Final Orders Are Appealable In Illinois
Illinois divorce cases happen in the Circuit Courts. Circuit Court decisions can be reviewed by the Circuit Court District’s Appellate Courts.
“Appeals from final judgments of a Circuit Court are a matter of right to the Appellate Court in the Judicial District in which the Circuit Court is located” Ill. Const. Art. VI. Sec. 6
“Every final judgment of a circuit court in a civil case is appealable as of right.” Ill. Sup. Ct. R. 301
Final judgments are appealable. Before any appeal gets started, the court must first determine if the judgment was final in order to proceed with the appeal.
“The threshold question [before beginning an appeal] is whether the trial court’s order is final and[, thus,] appealable.” Trizzino v. Kline Brothers Co., 435 NE 2d 958 – Ill: Appellate Court, 3rd Dist. 1982
What is a final order in an Illinois divorce? There is no absolute rule. A final order is an order that seems final.
“A reviewing court will look to the substance of an order, rather than its form, to determine if it is final and appealable.” Schuster Equip. Co. v. DESIGN ELEC. SERV., 554 NE 2d 1097 – Ill: Appellate Court, 2nd Dist. 1990
If there anything left to do in the case besides enforce the order…the order is probably not final.
“To be ‘final,’ a judgment or order must terminate the litigation and fix absolutely the parties’ rights, leaving only enforcement of the judgment.” Richter v. Prairie Farms Dairy, Inc., 2016 IL 119518 – Ill: Supreme Court 2016
Even finality is not always final. The requirement of a final order without further work to do is a flexible rule.
“A final decree is not necessarily the last order in a case, for orders sometimes follow the purpose of carrying out the decree.” Bennett v. Wever, 323 Ill. 283, 154 N.E. 105 (1926)
Any appealable judgment or order has to be written, signed and filed in order to be properly appealable.
“[T]he judgment becomes final only when the signed judgment is filed.” Ill. Sup. Ct. R. 272
These rules for final orders are all well and good when a final judgment of divorce is issued with all matters resolved in the decree…but divorces do not work that way. Divorces resolve a multitude of issues between a married couple, reserve some issues and leave most issues modifiable by the circuit court.
Final Orders And Appealability In An Illinois Divorce
A divorce is started with a Petition For Dissolution Of Marriage. For the most part, a divorce is not appealable until that Petition For Dissolution is finally granted and adjudicated by a Judgment For Dissolution Of Marriage.
Until all the issues in a divorce are resolved the divorce case is not appealable.
“A petition for dissolution advances a single claim; that is, a request for an order dissolving the parties’ marriage. The numerous other issues involved, such as custody, property disposition, and support are merely questions which are ancillary to the cause of action. They do not represent separate, unrelated claims; rather, they are separate issues relating to the same claim…where a dissolution of marriage is granted, a determination as to which party receives custody will necessarily affect how much, if any, support and maintenance are paid. Practically speaking, then, until all of the ancillary issues are resolved, the petition for dissolution is not fully adjudicated.” In re Marriage of Leopando, 449 NE 2d 137 – Ill: Supreme Court 1983
If something in a divorce is not ruled upon, nothing about that divorce can be appealed.
“[A]ny judgment that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties.” Ill. Sup. Ct. R. 304(a)
A divorce will always seem to be not completely adjudicated. Something will always seem outstanding and therefore render the entire divorce judgment unappealable. In such a case, a party can request a special finding of finality or the court can make such a finding in order to allow the issue to be appealed.
“[O]nly if the trial court has made an express written finding that there is no just reason for delaying either enforcement or appeal or both. Such a finding may be made at the time of the entry of the judgment or thereafter on the court’s own motion or on motion of any party. Ill. Sup. Ct. R. 304(a)
Realistically, what trial court is going to happily give an express written finding that allows you to appeal them? When you want to appeal, you will not want to ask permission from the judge who you disagree with.
When Can You Appeal A Custody Or Parenting Time Order In Illinois?
The necessity of finality in order to appeal an Illinois divorce becomes a Sisyphean struggle when children are involved. Nothing is ever final with children. Children keep aging. Children’s best interests change with the times. The responsibility for children doesn’t end until the court no longer has jurisdiction over the children.
Custody orders are an exception to the Illinois requirement for a final order or a special finding in order to be appealed.
“The following judgments and orders are appealable without the finding required for appeals…
A custody or allocation of parental responsibilities judgment or modification of such judgment entered pursuant to the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/101 et seq.) or Illinois Parentage Act of 2015 (750 ILCS 46/101 et seq.).” Ill. Sup. Ct. R. 304(b)(6)
Appealing An Illinois Divorce Before A Final Judgment Is Made
Orders before a final entry of a Judgment of Dissolution of Marriage are not appealable.
“Preliminary orders in a pending case are not appealable because they are reviewable on appeal from the final order.” People ex rel. Scott v. Silverstein, 429 NE 2d 483 – Ill: Supreme Court 1981
The preference is always to wait to appeal the final order because a temporary order “terminates when the final judgment is entered or when the petition for dissolution of marriage or legal separation or declaration of invalidity of marriage is dismissed. 750 ILCS 5/501(d)(3)
“Temporary orders certainly may not be appealed immediately, on an interlocutory basis, before the entry of a final order. Once the final order is entered it must be assumed that the trial court has thereby adjusted for any inequity in its temporary orders. On appeal we should consider whether the trial court’s final order, its overall resolution of the issues, is erroneous, not whether some part thereof is erroneous” (citations omitted); In re Marriage of King, 336 Ill.App.3d 83, 88, 270 Ill.Dec. 540, 783 N.E.2d 115 (2002)
Sometimes an Illinois divorce judge makes a decision so impactful that it must be appealed even if a final judgment has not been rendered yet.
Appeals of non-final orders are called interlocutory appeals.
Interlocutory means “provisional; temporary; not final. Something intervening between the commencement and the end of a suit which decides some point or matter, but is not a final decision of the whole controversy.” Black’s Law Dictionary (10th ed. 2014)
Some interlocutory appeals are automatically allowed as in the case of appealing an injunction.
“An appeal may be taken to the Appellate Court from an interlocutory order of court:(1) granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction;” Ill. Sup. Ct. R. 307(a)(1)
While other interlocutory appeals require permission to file such as parenting orders.
“A party may petition for leave to appeal to the Appellate Court from the following orders of the trial court:
from interlocutory orders affecting the care and custody of or the allocation of parental responsibilities for unemancipated minors or the relocation (formerly known as removal) of unemancipated minors, if the appeal of such orders is not otherwise specifically provided for elsewhere in these rules;” Ill. Sup. Ct. R. 306(a)(5)
When To Actually File The Appeal In An Illinois Divorce
An appeal doesn’t get filed all at once like a petition for Illinois divorce. Instead, a simple one page notice is filed with the clerk of the circuit court within 30 days.
“The notice of appeal must be filed with the clerk of the circuit court within 30 days after the entry of the final judgment appealed from” Ill. Sup. Ct. R. 303(a)
If you file the notice of appeal too early…it’s okay.
“A notice of appeal filed after the court announces a decision, but before the entry of the judgment or order, is treated as filed on the date of and after the entry of the judgment or order.” Ill. Sup. Ct. R. 303
The next step is to file a docketing statement with the Appellate Court outlining the particulars of the case.
“In the case of an appeal as of right, the appellant shall file the statement within 14 days after filing the notice of appeal” Ill. Sup. Ct. R. 312(a)(1)
The Circuit Clerk prepares the record of the case for Appellate Court.
“The clerk of the trial court or administrative agency shall prepare, and certify the record on appeal.” Ill. Sup. Ct. R. 324
The appellant must review the court record for accuracy.
“It [is a party’s] duty and obligation as appellant to take all necessary steps to ensure that a proper record was prepared.” Lorts v. Illinois Terminal RR, 400 NE 2d 715 – Ill: Appellate Court, 5th Dist. 1980
Upon verifying that the record is complete, the appellant should pay the clerk to send the court record to the Appellate Court.
“Upon payment of the prescribed fee for preparation of the record on appeal, the clerk shall file the record with the reviewing court.” Ill. Sup. Ct. R. 325
The record must be paid for and filed within 63 days of the filing of the Notice Of Appeal.
“[T]he record on appeal shall be filed in the reviewing court within 63 days after the filing of the notice of appeal” Rule 326 – Time for Filing Record on Appeal, Ill. Sup. Ct. R. 326
The real work in an appeal is the preparation of the brief.
A brief is “A written or printed document, prepared by counsel to serve as the basis for an argument upon a cause in an appellate court, and usually filed for the information of the court. It embodies the points of law which the counsel desires to establish, together with the arguments and authorities upon which he rests his contention.” Black’s Law Dictionary (10th ed. 2014)
Briefs need to be filed in an appeal within 35 days of the filing of the Notice of Appeal.
“[T]he brief of the appellant shall be filed in the reviewing court within 35 days from the filing of the record on appeal” Ill. Sup. Ct. R. 343
It will be a very busy two months after the final order is entered. A notice appeal must be filed, followed by the docketing statement, the record must be verified and the briefs must be prepared. If you would like to talk to an experienced Illinois divorce attorney about when you can appeal an Illinois divorce, contact me to schedule a free consultation.