petition for rule to show cause which remains pending and undetermined before the trial court constitutes a claim for relief within the purview of supreme court rule three zero four a if this court determine that another result petition for rule is a claim for relief in this court should overturn the holding of the second district in this case in fact the analysis which we urge today has already taken place within the second district itself and the majority of the second district now agrees that the holding and gutman was in error is demonstrated by a spate of recent decisions in the past twelve months the circumstances of this case are not uncommon in post creed dissolution actions in this case there were three host degree petitions one of which was a petition for rule to show cause an order was entered by the trial court resolving two of the petitions but not the petition for rule mary filed her notice of appeal prior to the resolution of the rule the court a public court in the second district dismissed mary's appeal finding that the petition for rule was a special proceeding and not a claim for relief within the meaning and intent of section three zero four a accordingly the public court determined that a three or four a finding was not a necessity some nine and a half weeks later the second district was again presented with identical circumstances in a case called in re the marriage nor and then again three months later and a case called nor hasn't gotten the trial court entered an order resolving all of the pending post decree matters except for a petition for rule which remain pending an undetermined nor court's gaged analysis identical to that of the government courts and found that the goodman analysis to be flawed that analysis depends on whether or not a petition for rule is a claim in your court rigorous of whether or not there's a second panel that overrules or the second district will now follow the latest case or whether there's just two panels that disagree let's just say that we agree with them more recent so if there wasn't any rule for if i mean how would you address the fact that mary's appeal would appear to be premature without a thrill of worry and that is the crux of the matter for us if this court were to follow the reasoning gutman then our case is over if the courts follows the holding of the second district in nor then we are premature and we have the opportunity to pursue our matters upon rm on the basis that there was no thrill for a fine and since there was no thrill for a fine he in that case your appeal was premature so you're saying you should be able to go back to the circuit court then and then a certain appeal now on that they know there's an abandonment issue here too but separate in aside from the abandonment of the case what justification would there be for this court to grant you that really setting aside the issue of the waiver the justification would be found in the courts amendment of three o three a which is that where a notice of appeal is final prematurely the jurisdiction is invested and if this court finds that the gutman court of the prior decided matters and that's what we're seeking is not a matter of remanding this to the appellate court or the second district for the resolution of the underlying appeal there is no dispute i'm aware of based on my reading of mr resolution of the petition for rule daniel gutman arguing that mary has abandoned her content proceeding that already ended that argument was raised for the first time in mr storms in mr got means brief to this court court treated to be treated as dismissed i don't think that there is based on the fact that the standard review in this case is the no vote we don't believe it would be appropriate for the court to make this court to make a determination that the appeal that that was either abandoned dismissed or otherwise there is no support in the record for the contention that the petition for rule was abandoned it remains pending well that it's still pending that is correct right i suppose anything is it is possible is it is likely i would say to you as a trial lawyer that mr government's prospects of defending the petition for rule are good but the underlying matter is that the rule so you're taking away from the trial courts this discretion that this court has granted under three or four eight to determine which issues are several and which are are appealable immediately or which have to wait and so to put a burden either on this court to look behind any of the pending matters sets a precedent for other courts to then look behind the matters that are pending as to the whether or not the appellate court agrees with the trial court's three or four a is something going through for a there seems to be an argument that could be made that the ruling in daniel's maintenance petition in the finding of cohabitation could get be changed in the circuit court right which would be your role and then you could appeal it all together actually if there wasn't a final order i suspect the trial court could changed its determination and that petition that's another possibility that that is conceivable but as to the issue of the waiver the cases that are saying there is no support no as i said earlier there's no support in the record as to the abandonment of this initial he from a litigation standpoint there is no question that the priority in this contemplative to litigate substantive issues in the post this illusion contents justify treating them as a real claim really we believe that you have to treat them all as claims because if the court doesn't treat them all these claims then again it puts the onus on the appellate court to make the determination as to whether it is a claim or not as opposed to the trial court and i think it's well settled that the trial court is in the best position to make a determination as to the facts and circumstances were presented in a case called north america schweiger the schweiger case was decided consistently with the court's holding in nor what makes schweiger remarkable is the special concurrence of the author of the gottman case where he addresses the issues that are raised by nor pleads the defense and then says in the interest of judicial harmony i will concede my points and bend to the will of the court now that is consistent with two decisions that followed gutman are consistent with the decisions that were the rule in the second district and elsewhere prior to gottman there is the case and in read the marriage of yasser which involved the same set of circumstances you have multiple post decree claims pending those get result with the exception of a petition for rule you know yasser the second district decided that those issues were not appealable in the absence of three or four a language until that rule was resolved that approach has been adopted and fourth district and really the marriage of god to go and by the first  we look to this court's prior decisions as to what is a claim is early as nine hundred fifty eight and in fact before that this court to find a claim is when a judgment or to create determines fewer than all the rights are liabilities  an issue or fewer than all of the matters in the case if an order does not result every rights liability or matter raised it must contain an express finding that there is no just reason or cause for delaying an appeal otherwise the order is not appealable and there are unique circumstances that are presented to this courts that go to your question tests parkas to do we look at the substance of the rule and the imposed decree matters unlike other areas of law it is possible to have multiple successive matters really to custody visitation support decision making and the like and relief that would send it back to the appellate court and that's what i was used if i did then that was an error i think if this court's adopts our position and holds consistently with the second district and nor than hear the appeal on the merits once the pending petition rule is resolved in the trial court in accordance with three o three a that's correct so you are asking it to go back to the i suppose what i'm asking for is it the determination is that the appeal was premature that a finding consistent with really three eighty two and the appellate jurisdiction would vest immediately upon the resolution while in other words the effect of three or three days resurrection premature this case as to whether or not she abandoned them we don't believe so and if you look at one of the cases relied upon by daniel gottman which is the compare a case that involved a trial court ordering the award of fees  without a hearing an appeal was taken from that and you know to compare a case the court decided that the issue the hearing on fees was waived and therefore it couldn't be presented on appeal those facts are and it happens it's a what you have here here you have a rule that remains pending and it's actually said that the extremely similar to the north case where that rule remained pending and then was later resolved while the appeal was pending and the nor court took the steps to ensure that even in the event that the the petition for really been resolved in the thirty days after the resolution of that matter had taken place the appellate jurisdiction would still vest because of the and so you have this issue which has been recognized by this court even in the committee commons to rule three zero three eight which is that there is a substantial amount of difficulty among practitioners  judges as to what is a claim for the purposes of three or four a and what this case provides this court with is an opportunity much as you did with the amendment to rule three zero three eight two to provide additional clarity for practitioners to resolve some of that confusion because you have to public policies here the first public policy most importantly behind rules three and four is to avoid piecemeal person in all of illinois who is lost her right to pursue her of the the remedies on the merits of her is mary gutman in all of the cases that have been decided after the government decision turn to be premature and the person still the individuals the litigants still have the right to have their claims heard in all the cases prior to gotten the same circumstances the same holdings were true that while i was waiting my turn to come and make this presentation to you i noticed the court had a brochure and in the brochures a quotation from the roosevelt says that no man is above the law and no man is below it's in this case the only person here who is below the law is married gottman and would ask that the court overturn needs a citizen of the second district which was based on the misinterpretation of prior holdings court all agree that appellate jurisdiction is lacking the difference lies in the reasoning to reach that conclusion we believe that the appellate court's dismissal of the appeal  wrecked but that it's reasoning was faulty the appellate court concluded that a pending civil contempt petition is an original and special proceeding as such where all of the other post decree matters are concluded an appeal must be taken within thirty days of the conclusion of those other matters not withstanding the pendency of the an adjudicator and temp petition but we disagree this court's precedent clearly shows that only a contempt order that imposes a penalty constitutes an original special proceeding as that term has been used consistently in this court's precedent for many years therefore where a contempt petition remains pending and then adjudicated the other post decree matters are not necessarily immediately appealable as the appellate court found in this case and that was the basis of the appellate court's finding here however the reason that we agree with the appellate court's conclusion while disagreeing with its reasoning is because we disagree also with its finding that mar give the opponent other genes at that point it will be just but the second and tell me were you know i may be wrong if we agree with the appellate court's ultimate ruling in th first instance the court the effect of the court's so holding would be to find the appeal was premature and that in fact jurisdiction never divested from the trial court because there was never  best in that case the case is right back where it properly had been in the trial court and yes that would permit the would permit mary to proceed with her contempt petition on the other hand adopting our argument which is if the contempt petition has in fact been abandoned by mary that would indicate then that the appeal was of late and of course a late appeal can't be resurrected at this point and that is really the only if there's any real legitimate points of tension i think that's a probably a fair statement to your honor whether we're talking here about an early appeal or a late appeal as i mentioned everybody seems to admit that we don't have the time where you feel and the reason that we have that that bone of contention over the contempt petition i think is a is a difference in reading the record in this case counsel has indicated that there is nothing in the record to suggest that mary abandoned her contempt petition and i would have to disagree with that i think everything relevant in the record indicates that mary has abandoned her contempt petition the last document of record to make reference to that contempt petition was an order that was entered on january fourth two thousand and five setting a hearing it wasn't mentioned it wasn't brought up after that by mary mar did not make any reference to the contempt petition when she filed her motion to vacate she didn't make any reference to the contempt petition in her motion to reconsider the trial court's denial of her motion to placate and in fact mary didn't even make any reference to that contempt petition in the record of this case that she asked to be prepared the contempt petition and the the matters relating to that appear only in a supplemental record dismissed and isn't this the nineteenth the circuits rule that the court has the discretion to dismiss the matter in the court and so it's fun to dismiss the matter so she might not have gone for it on it but it's still there isn't it abandon granted mary did not specifically state to the court that she didn't intend to pursue it but case law makes very clear that there comes a point in time when one doesn't have to say that one chooses not to pursue it and a the understanding from these dates that the period that's in question it was no money do your honor is absolutely correct and that's that's the very next point that i was coming to which is even if one concludes that the contempt petition was not withdrawn or dismissed as we certainly do concede even if one were to find that the contempt petition were not voluntarily abandon the fact of the matter is that the end as i think coun has candidly conceded to this court the fact of the matter is that the relief sought in the contempt petition is no longer appropriate relief because the contempt petition to put it in very simple terminology was to direct that daniel do reconsider sorry a motion to vacate followed by a motion to reconsider both of which were denied i don't believe at this point in time the judge could go back and undo the underlying conclusions that leave them to the contempt petition motion to reconsider new law or new facts down to that i'm saying that it's not like i'm just saying to to make the argument that it's moot isn't there an outside maybe outside outside chance up i think the time period is is off at this point and the law that becomes then the law of the case that is still the law of the case and moves me contempt petition and so rather than merely saying just to go back to that abandonment you had mentioned before that the last thing in the record on this is the order so that in the petition for here that would also be known as the rule to show cause order is that correct there was not a rule of me that was not a rule after so when you say order was set that was just a scheduling order i believe that's correct as based upon my reading of this record now counsel has has referred to a rule based upon my reading of the record and my recollection of the record i don't believe that a rule was issued with respect to this particular contempt petition so here not only are we not talking about an adjudicated contempt petition we're not even talking about a rule we're talking simply about a pending contempt petition well the record will reveal whether it's rule or not correct on this abandonment point if the petition in this the order setting the date is the only thing you know how to how do you objective only or some criteria of great theory and when it's determined to be abandoned how how would we reach that conclusion this is going to be a situation where every case is different and you have to look at the procedural process of the case here i suggest to the court that those criteria are satisfied by the fact that mary never again raise that issue even in a motion to vacate even a motion to reconsider and even though mary proceeded thereafter in terms of this appeal as if there were nothing more pending in the trial court other than what had been decided i think that if the court asks how does one make these distinctions in this case the answer is easy there isn't any distinction mary behaved at every relevant point in time as if the contempt petition was no longer a live issue when one followup question isn't the common practice on how to deal with stale petition were circuit court usually by local rule sets up local rule on that i believe there is your honor very much to the i don't know the time period but very much to the effect that your honour's mentioning and we don't concede that that was ever done i think to put not to put too fine a point o everybody allowed the contempt petition to fall by the wayside including the petitioner including the court that leaves us now with the question of whether there has been a if a factual abandonment or more to the chief justice this point whether it is moot it and the fact of the matter is it is motivated by virtue of the underlying findings of the track i want to get back to the motive for just a minute there's a the last sentence revision at any time before the entry of judgment adjudicated in all the claims rights and liabilities of all the perks no it would seem that that sentence would stand for the proposition that the petition could be that there could be a new petition or a different petition or an amended petition but regardless of what the procedural approach to what is let's say that in fact uses revision you know any revi subject to revision at any time before the entry of judgment as to all the claims and i'm just reading the last sentence it would seem that there is some prospect or possibility that and if that's the case that would defeat the moo mary's contempt petition is still a live issue either by virtue of the fact that it was not a van and or that it would be revised as justice thomas suggests that still raises the question of how to handle multiple pending post to reclaim for relief for purposes of appeal the second district in the due can case which came after our case spoke at some length about this question and i believe very accurately identified some of the policy questions that are raised by that issue that is very simply should the litigants for the trial court primarily control appeal  ability the choices that allow the litigants to control appeal ability include making the inclusion of claims brought in a single petition for example as the finality of that the disposition of those claims but because of the unique posture of post decree proceedings taking that approach would raise a very real lightly would of piecemeal appeals which this court obviously has spoken against review and a pending appeal or even multiple pending appeals could cause the fact of lee a stay in the trial court on post decree on the resolution of post decree matters if the trial court is going to prohibited from modifying an order in response to a subsequent petition or related petition litigants could even use that sort of appeal strategically but the better approach and the one that we have advocated i court should have the dominant voice in determining appeal ability when only a part of a post decree proceeding has been determined the method of doing so is already very firmly in established that is rule three zero four eight applying that analysis to this case if mary's contempt petition were in fact pending or it were revival  revisable then the three zero four eight appeal ability language was not entered in this case and so mary's appeal would be premature under that analysis it was correctly dismissed on that basis although we also are urging of course that the contempt petition was not pending because it was abandoned or mooted and under those circumstances the holding of the second district was correct but in that sense it was correct because the appeal was dismissed due to the fact that it was a to late appeal in either event we a i think mr storm's argument regarding the expanding the issue is kind of issue that argument the proves too much and really speaks to the point that i was trying to make to this court in terms of who is in the best position to make a mentioning the petition for a rule in our motion to vacate what it was in essence a default judgment on the issue of maintenance which makes little sense because we had no purpose in bringing up the petition for for the purposes of the motion to vacate purposes the motion of vacate was an attempt to reinstate the case as it related to the underlying maintenance issue he then says i didn't bring it up in the motion to reconsider the motion to time that the order was entered terminating mary's may that's mary did not appear in court mary was not represented by counsel at that time daniel had unfettered access to the courts and could have sought or entered any order he did it he didn't do so and so for them to now say that this is abandoned where we've taken the great lengths to pursue our claims to this court to this day i think is an indication that there is no intention to abandon the issues in this case further the type of analysis that mr storm urges you to an act for a determination as to whether an issue has been abandoned or is mo ot again a cumbersome process and why what policy purpose would be served or advanced by asking appellate courts to make a determination as to that when there are mechanisms as you all pointed out for the trial court motions that are not called for hearing within ninety days again discretionary no action in this case was ever taken and in all candor our efforts have been directed at this appeal rather than pursuing the the rule at that juncture with respect to i would agree with mr storm with respect to the fact that three or four a does provide the tools that the trial court needs to govern the appeal ability of issues and it's the trial court that is in the best position to determine when you have multiple posts to preclude spending which of those issues are several and which are not and that is entirely consistent with the what has been the practice and what should remain the practice the issue that we urge this court to take up is that in the absence of that three or four a finding where there's a petition for that's pending that petition for all must be case number one zero five six four eight would be taken under