THIRD DIVISION

									Juene 20, 2001

n 20

No. 1--00--0997

In re MARRIAGE OF MARGARET CARR, 

		Petitioner-Appellant,

	and 

WAYNE CARR, 

		Respondent-Appellee.	

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Appeal from the 

Circuit Court of

Cook County.

Honorable

LaQuietta L. Hardy, 

Judge Presiding.

	JUSTICE BURKE delivered the opinion of the court:

	Petitioner Margaret Carr ("Peggy") appeals from three orders

of the circuit court granting respondent Wayne Carr's (Wayne)

petition to set child support and ordering the payment amounts

retroactive.  On appeal, Peggy contends that the trial court abused

its discretion in deviating from the statutory guideline amount of

child support set forth in section 505 of the Illinois Marriage and

Dissolution of Marriage Act (Act) (750 ILCS 5/505 (West 1998)), and

in reducing child support from $6,000 per month to $4,000 per

month.  For the reasons set forth below, we dismiss this appeal.

	STATEMENT OF FACTS

	Peggy and Wayne were married in 1979, and two children were born during the marriage: Erin, born September 26, 1980, and

Colleen, born July 6, 1984.  On February 14, 1989, Peggy filed a

petition for dissolution of marriage and, on the same day, the

trial court entered a judgment of dissolution of the marriage.  A marital settlement agreement was incorporated into the dissolution

judgment.  The agreement awarded Peggy custody of the parties' two

children; required Wayne to pay unallocated maintenance and child

support in the amount of $6,250 for 12 months and, thereafter,

$8,333.33 for 36 months; required Wayne to make direct payments to

Peggy for the children's camp, extra curricular activities, and

lessons up to $7,000 per year; and required Wayne to pay for

educational expenses, including college.  Both parties subsequently

remarried and a daughter, Molly, was born to Wayne and his second

wife.

	On September 16, 1998, Wayne filed a "Petition to Set Child

Support," seeking a modification of the parties' previous marital

settlement agreement based upon Erin's emancipation.  Wayne alleged

that circumstances had changed because Erin had graduated from high

school, was attending college, and had turned 18 years of age. 

According to Wayne, it would not be equitable for him to pay all of

Erin's college expenses and still pay $6,000 per month for child

support of one child, Colleen.  On April 28, 1999, the trial court,

after hearing the evidence presented by the parties, concluded that

a modification of child support was warranted as a substantial

change had occurred, i.e., Erin had graduated from high school, she had turned 18, and she was attending college.  The court noted that

there was no agreement between the parties with respect to Wayne

making child support payments past either child reaching the age of

18, nor did the dissolution judgment extend support payments for Erin past her 18th birthday.  The court further noted that Wayne

paid 100% of Erin's college expenses at a cost, at that time, of

$11,700, Wayne's net income for 1998 was $557,196, and the

statutory 20% would be $111,439 per year or $9,287 per month. 

After the trial court evaluated each of the statutory factors set

forth in section 505 of the Act, it was the court's opinion that

the statutory amount of $9,287 "far exceed[ed] the reasonable needs

of Colleen," and that the statutory amount was "inappropriate." 

Upon further considering the best interests of Colleen, in light of

the evidence, the court concluded that a deviation from the

statutory amount of section 505 of the Act was warranted. 

Accordingly, the court ordered Wayne to pay $4,000 per month child

support for Colleen, retroactive to March 1, 1999.

	Thereafter, both Peggy and Wayne filed motions to reconsider.

Prior to the trial court's decision on the motions, Peggy filed a

petition for contribution for attorney fees on August 16, 1999.  On August 27, 1999, the trial court granted Wayne's motion to

reconsider, ordering that the child support amount would be

retroactive to September 16, 1998, the date Wayne filed his

petition to set child support, and denied Peggy's motion to

reconsider. 

	On October 4, 1999, Peggy filed a "petition for rule to show

cause for Wayne's failure to pay Erin's college expenses."  On

March 9, 2000, an agreed order was entered, requiring Wayne to pay

Erin's college expenses and $5,000 of Peggy's attorney fees.  This appeal followed.

	ANALYSIS

	This court has a duty to sua sponte consider the issue of jurisdiction even if the parties fail to raise the issue.  In re Adoption of Ginnell, 316 Ill. App. 3d 789, 790, 737 N.E.2d 1094 (2000).  A party seeking to appeal a trial court's judgment must

file a notice of appeal within 30 days after entry of a final

judgment or within 30 days after entry of an order disposing of the

last pending posttrial motion, if any.  155 Ill. 2d R. 303(a)(1). 

"A final judgment is one that fixes absolutely and finally the

rights of the parties in the lawsuit; it is final if it determines

the litigation on the merits so that, if affirmed, the only thing

remaining is to proceed with the execution of the judgment. 

[Citation.]  To be final, a judgment must dispose of or terminate

the litigation or some definite part of it."  Ginnell, 316 Ill. App. 3d at 793.

	In the instant case, Peggy contends that the trial court's

March 9, 2000, order (requiring Wayne to pay Erin's college

expenses and ordering him to pay $5,000 of Peggy's attorney fees)

rendered the trial court's August 27, 1999, order (granting Wayne's

motion to reconsider and denying Peggy's motion to reconsider) and

its April 28, 1999, order (setting child support) final.  According

to Peggy, because a petition for attorney fees was pending, she

could not appeal the order setting child support until the fee issue was resolved.

	The cases Peggy relies upon in support of her contention, In re Marriage of Tomei, 253 Ill. App. 3d 663, 624 N.E.2d 884 (1993), and In re Marriage of Tyler, 230 Ill. App. 3d 1009, 596 N.E.2d 119 (1992), are distinguishable.  In each case, the petitioner filed a

notice of appeal while a fee petition was still pending in the

trial court following entry of the judgment of dissolution.  In

both cases, the appellate courts concluded that the notice of

appeal was premature because the attorney fee issue had not been

resolved.  Tomei, 253 Ill. App. 3d at 666; Tyler, 230 Ill. App. 3d at 1013.  

	More specifically, in Tyler, the court concluded that the appeal from a dissolution judgment while the question of attorney

fees remained pending 

		"would run afoul of the policy to 'encourage[]

the [trial] 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 and complications which can result

from the entry of partial judgments,

particularly judgments which dissolve the

marriage but "reserve" remaining issues for

later determination.' [Citations]."  (Emphasis in original).  Tyler, 230 Ill. App. 3d at 1012.  

In Tomei, the court noted that attorney fees are "directly related to the central dispute in a dissolution of marriage case," and

because attorney fees are "dependant [sic] upon and integrally related to decisions regarding the financial resources of each of

the parties, a disposition of their allocation should be made

before the reviewing court can properly assess the trial court's

decisions regarding maintenance, child support, or division of

property."  Tomei, 253 Ill. App. 3d at 665.

	In the instant case, Peggy's petition for fees was filed in

August 1999 and was not part of the dissolution proceeding.  In

fact, the judgment of dissolution was entered over 10 years before-

-in February 1989.  Thus, the same concerns as were present in

Tomei and Tyler are not present in the instant case because the equitable distribution of property and the overall issues of child

support, maintenance, and property distribution are not at issue. 

Tomei and Tyler involved dissolution proceedings.  The instant case involves a postdecree proceeding.  Litigation in dissolution cases

can continue subsequent to entry of a judgment of dissolution as is

clearly evidenced by the instant case.  Wayne and Peggy have been

in court every single year, without exception, since the judgment

of dissolution was entered in 1989.  Attorney fees in postdecree

cases are simply not directly related to the central issues in the

equitable distribution of property as they are in cases at the time of a judgment of dissolution.  Accordingly, Tomei and Tyler are inapplicable.

	The sole issue raised by Wayne's petition was to set the

amount of child support that he was obligated to pay upon Erin's

emancipation.  The trial court completely resolved this issue on

April 28, 1999.  Thereafter, both parties filed "posttrial" motions

for reconsideration.  The trial court rendered its decision on the

motions for reconsideration on August 27, 1999.   At this time, the

trial court's order fully and finally disposed of Wayne's petition

to set child support and it determined the litigation on the

merits.  There was nothing left to do except proceed with execution

or enforcement of that order.  The trial court's order of March 9,

2000, ordering Wayne to pay Erin's college expenses and Peggy's

attorney fees, had no effect on either the April or August 1999

orders setting child support.  The March 9, 2000, order addressed

separate and unrelated claims from those issues raised in Wayne's

petition to set child support.  Accordingly, Peggy was required to

file her notice of appeal within 30 days of August 27, 1999, when

the trial court entered its order making the child support payments

retroactive to the date Wayne filed his petition and denying

Peggy's motion for reconsideration, which she failed to do.  We

therefore find that we lack jurisdiction to hear this appeal.

	Although we have determined that we lack jurisdiction over

this appeal, we briefly note that Wayne's reliance on In re Marriage of Konchar, 312 Ill. App. 3d 441, 727 N.E.2d 671 (2000), as a basis for his argument that we lack jurisdiction, is

misplaced.  While the Konchar court held that section 503 of the Act (750 ILCS 5/503 (West 1998)), which requires that petitions for

contribution shall be filed before final hearings on other issues

between the parties, or no later than 30 days after the closing of

proofs, was applicable to postjudgment proceedings, we do not

necessarily agree with this conclusion.  In any event, Konchar is distinguishable from the instant case because the Konchar court did not address the issue of jurisdiction. 

	CONCLUSION

	For the reasons stated, we dismiss this appeal for lack of

jurisdiction.

	Appeal dismissed.

	WOLFSON, J., concurs.

	CERDA, J., specially concurring.

	JUSTICE CERDA, specially concurring:

	I disagree with a portion of the reasoning of the majority but

concur in the result.  

	Section 508(a) provides that contribution to attorney fees may

be awarded from the opposing party in accordance with section (j)

of section 503.  750 ILCS 5/508(a) (1998).  Awards may be made in

connection with the maintenance or defense of any proceeding under

the Act.  750 ILCS 5/508(a)(1) (West 1998).  The relevant portion

of section 503(j) provides that a petition for contribution to attorney fees must be decided before judgment is entered in the

proceeding:

		“After proofs have closed in the final hearing on all

other issues between the parties (or in conjunction with the

final hearing, if all parties so stipulate) and before

judgment is entered, a party’s petition for contribution to

fees and costs incurred in the proceeding shall be heard and

decided, in accordance with the following provisions:

			(1) A petition for contribution, if not filed before

the final hearing on other issues between the parties,

shall be filed no later than 30 days after the closing of

proofs in the final hearing or within such other period

as the court orders.”  750 ILCS 5/503(j) (West 1998).  

	In re Marriage of Konchar, 312 Ill. App. 3d 441, held that a petition for contribution to attorney fees (incurred in connection

with a post-judgment motion concerning visitation) that was filed

within 30 days of the closing of proofs but after judgment was

entered was untimely.  

	The Konchar court read section 503(j) to mean that before a judgment is entered, a party's petition for contribution to fees

must be heard and decided.  This interpretation was supported by

section 508(a) which provides in part:

"The court from time to time, after due notice

and hearing, and after considering the

financial resources of the parties, may order any party to pay a reasonable amount for his

own or the other party's costs and attorney's

fees. *** At the conclusion of the case,

contribution to attorneys's fees and costs may be awarded from the opposing party in

accordance with subsection (j) of section 503. (Emphasis added.)" 750 ILCS 5/508(a) (West

1998).

	After considering both section 508(a) and section 503(j), the Konchar court held that a petition for attorney fees must be heard and decided before the final judgment is entered.  I agree with

this finding. The April 28, 1999 court order decided the issue of

child support of Colleen and was in effect, the final judgment

order.  

	The April 28, 1999 court order which decided the issue of

child support for Colleen was the final judgment in this case.

	The Konchar interpretation that section 503(j) requires that a petition for attorney fees must be decided before final judgment

dictates that the August 16, 1999 petition for attorney's fees was

untimely and the  March 9, 2000, order in our case was ineffective. 

Although the Konchar interpretation of section 503(j) was not made in the context of an issue of appellate jurisdiction nevertheless it requires dismissal of our case.

	If the proper procedure had been followed, the attorney fee

petition would have been decided before the April 28, 1999, order was entered disposing of the petition to modify child support. 

Since it was not, appellant should have appealed within 30 days of

the August 27, 1999, order, which ruled on the motions to

reconsider the April 28, 1999, order.  I therefore agree with the

majority that we lack jurisdiction.