## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Departm ent of Healthcare & Fam ily Service s v. Cortez , 2012 IL App (2d) 120502

Appellate Court Caption THE DEPARTMENT OF HEAL THCARE AND FAMILY SERVI CES and MARGARI TA M., Petitioners-Appellee s, v. J OSE D. C OR TEZ
, Respondent-Appe llant.

District & N o. Second District Docke t No. 2-12-0502

Filed Dec ember 7, 2012

Held (Note : T

his syl lab us

con st it ute s n o par t of the opi nio n of the cour t but has bee n pre

par ed by the Rep o rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) In an interlocutory appea l from an order that denied responde nt’s reque st for the return of his child from California, “denie d” his claim for custody

o f the child, and enter ed a temporar y support order continuing the ca s e for motions reg arding s up p o rt , the appea l was dismiss ed for lack of jurisdiction as to all issues other than the denial of the claim for the return of the child, which was aff irmed in the absenc e of any basis in the rec ord for a reve rsal of that decision.

Dec ision Under Review Appea l f rom the Circuit Court of Kane County
, No. 11-F -136; the Hon. Robert J . Morrow, Judge , presiding

.

J udg ment Appea l dismi ssed in part a nd aff irmed in part.Counsel on

Appea l M y rn a S m ith, of L aw Offic e of My rna Smit h, of Cry stal L ake, for appellant.

No brief filed for appellee s.

Panel J USTI CE McLAREN delivere d the judgme nt of the court, with opinion.
J ustices Z enoff

and B irkett conc urre d in the judgme nt and opinion.

OP INION ¶ 1 Respondent, J ose D. Cortez, appea ls from the trial court’s order dismiss ing his pe tition for cu s t o dy o f his minor child, Chantal, and for an order to return Chantal to I llinois

. We dismiss in part and a ffirm in par t.

¶ 2 I . BA CKGROUND ¶ 3 Chantal was born to Martha M. in September 2000. In Fe bruar y 2011, Martha’ s mother, petitioner Marg arita M., who lives in Wint on, California, filed a uniform support petition in the circ uit court of Kane County
, seeking to establish pater nity and obtain an order for child support, alleg ing that J ose was Chantal’s fathe r. Marg arita also alleg ed that Chantal h a d lived with her in California since 2002; M ar gar i t a “brought Chantal to live in CA for medical

rea sons due to weather differ ence betwee n I L & CA.” M ar t h a l i ved in Rolli ng Meadow s, I llinois

. On pag e two of the “Child Support Enforc ement Transmittal #1,” Marg arita chec ked the box for “Ha s L eg al Custody /Guardia nship of Child(ren);” howeve r, on pag e three of her
g ener al testimony , Marg arita did not che ck the box for “Ha s leg al custody /gua rdianship of Child” and wrote “NA” ne x t to it. ¶ 4 J ose filed a

petition for deox y

ribonucleic acid (DNA) testing pursuant to section 11(a ) of the I llinois Parenta g e Act of 1984 (750 I L CS 45/11(a) (West 2010)), alleg ing that he did

n o t kn ow if he was Chantal’s fathe r. Such testing resulted in a 99.99% probability o f
pare ntag e. The Kane County State’s Attorney then soug ht a hearing on Marg arita’ s petition
to establi sh the exis tence of the fathe r/child relationship and to set support, including any

arr ear ag es. J ose then filed a three -count petition, se eking (count I ) an order to immediately
return Chantal to I llinois ; (count I I ) custody of Chantal; and (count I I I ) the abate ment of child support during the pendenc y of the proce eding s. The Depa rtment of Hea lthcare and Family Service s (HF S) was grante d leave to f ile a response to Jose’s petition, and it filed a motion
to strike J ose’s petition. On J anuar y 25, 2012, during the briefing period on the petition, the trial court found by a DNA stipulation that J ose was Chantal’s fathe r but it also declined to enter a temporar

y support order

. On that same date, Marg arita ente r e d a “ Special” appea ranc e for the purpose of deter

mining jurisdiction and subsequently reque sted the court to strike or

-2-deny J ose’s petition. On Marc h 30, 2012, afte r hearing leg al argument, the trial court enter ed 1

a written order deny

ing without explanation J ose’s claim f o r Ch a ntal’ s im mediate return. The trial court also “denie d” J ose’s claim for custody
, finding that the cou rt did “not have jurisdiction over Marg arita [M.] for purposes of custody deter mination at this time.” The trial
court provided that the “provisions of this order reg arding custody is [ sic ] here by appea llable [ sic ].” The trial court also enter ed a temporar y support order and continued the case for filing of motions reg arding

support. This interlocutory appea l followed.

¶ 5 I I . ANALYSI S ¶ 6 We first note that neither HFS nor Marg arita has filed an appellee ’s brief. Howeve r, the issue here can be decide d without an appellee ’s brief, and we will decide the merits of J ose’s
appea l pursuant to First Capitol Mortgage Corp. v. Talandis Construction Corp.
, 63 I ll. 2d 128, 133 (1976). ¶ 7 We must addre ss the issue of this court’s jurisdict i o n

. We have a duty to consider sua sponte whether we have jurisdiction a nd to dismiss the appe al if we lack jurisdiction. In re Marriage of

Mardjetko
, 369 I ll. App. 3d 934, 935 (2007). In his jurisdictional statement, J ose purports to take this appea l pursuant to I llinois Supreme Court Rules 301 (ef f. Fe b. 1, 1994) and 304(a) and (b)( 6) (ef

f. Fe b. 26, 2010). Howeve r, none of these rules provides a basis for this court’s jurisdiction. Rule 301 applies to the “fina l judgme nt of a circ uit court.” Clearly
, this case does not involve a final judgme nt; count I I I of J ose’s petition (see king to abate child support) and Marg arita’ s support petition, which was the initial pleading in this case , rema in befor e the tria l court. ¶ 8 Rule 304(a)
, while applying to a “fina l judgme nt as to one or more but few er than all of the *** claims,” require s “an express written finding ” that there is no just rea son for delay ing
appea l. I ll. S. Ct. R. 304(a) (ef f. Fe b. 26, 2010). I f an order that adjudicate s few er than all the claims does not state that there i s n o j u st rea son for delay ing appea l, this court has no jurisdiction over an appea l from that judgme nt, a nd it is proper for this court to dismiss the
appea l on our own motion. Matson v. Department of Huma n Rights
, 322 I ll. App. 3d 932, 940 (2001). Her e, the trial court mere ly stated t h at the “provisions of this order reg arding custody is [ sic ] here by appea llable [ sic ].” No ref ere nce to Rule 304(a) was made in the order
, nor was there even languag e track i n g Rule 304(a)
, such as “no just rea son for delay ing”
appea l. See id. at 939; Coryell v. Village of La Grange
, 245 I ll. App. 3d 1, 5 (1993). Fur ther,
not only was there no express finding pursuant to Rule 304(a ), b u t the order specific ally ref err ed only to the appea lability of the custody provisions and not to the appea lability of the claim for immediate return of the child to I llinois

. Thus, Rule 304(a) does not even apply to the issue of Chantal’ s immediate retur n. ¶ 9 In addition, while the trial court’s order stated t h at th e co u rt “d en i ed” the claim for custody
, such a char acte rizati o n o f t h e d ispositi on is incorre ct. As it found that it had no jurisdiction, the trial court could not deny the claim, i t could only dismiss it for lack of jurisdiction. A judgme nt is the final decision o f th e court resolving the dispute and

T he r eco rd doe s no t c ont ai n a re por t o f p roc eed ings f or thi s he ar ing. 1

-3-deter mining the rights and obligations of the p ar t ies. McD onald v. Health Care Servic e Corp.
, 2012 I L App (2d) 110779, ¶ 21. A d i s m i s s al is define d as the “[t] ermination of an action or claim without further hearing, esp. befor e the trial of the issues involved.” Bla ck’s L aw Dic tionary

502 (8th ed. 2004). An involuntary dismiss al for la ck of jurisdiction is not an adjudication on the merits. See I ll. S. C t. R. 273 (eff. Jan. 1, 1967). ¶ 10 A finding of lack of jurisdiction that eff

ectively ends the litigation is final and appe alable. People v. W

alker
, 395 I ll. App. 3d 860, 865 (2009). Howeve r, unless a dismiss al for lack of jurisdiction is otherwise qua lified, it is withoutprejudice ( Sherrod v. Ramaswamy
, 314 I ll. App. 3d 357, 362 (2000))
, and an order of dismiss al grante d without prejudice is not deeme d final for purposes of appea l. Paul H. Schwende ner, Inc. v. Jupiter Electric Co.
, 358 I ll. App. 3d 65, 73 (2005). There is nothing in the rec ord to support an argument that the trial court’s “denia l” of the custody claim was a final order for purposes of Rule 304(a)

. The trial court’s written order specific ally stated that the court did “not have jurisdiction over Marg arita [M.] for purposes of custody deter mination at this time .” (Emphasis added.) “[A]t this time” does
not imply
, let alone decla re, that further attempts at obtaining jurisdiction are fore closed. Fur ther, the rec ord contains n o r ep ort of proce eding s or by stander’ s repor t containing the trial court’s finding s of fac t or explanation of its ruling
, if the trial court so provided. Any doubts that may arise from the incompleteness of the rec ord will be resolved ag ainst the appellant. Foutch v. O’Bry ant , 99 I ll. 2d 389, 392 (1984). Be cause there is no indication tha t the trial court dismissed the custody count with prejudice , ag ain, Rule 304(a) is inapplicable. ¶ 11 Fina l l y , Rule 304(b)( 6) allows appea l “without the finding require d for appea ls under
para g raph (a) ” of Rule 304 from, among other things, a “custody judgme nt enter ed pursuant to the I llinois Marriag e and Dissolution of Marr iag e Act (750 I L CS 5/101 et seq. ) [(Marriag e Act)] or section 14 of the I llinois Parenta g e Act of 1984 [citation] [(Parentag e Act)].” I ll. S. Ct. R. 304 (b)( 6) (ef

f. Fe b. 26, 2010). The committee comments to Rule 304 note that the
term “custody judgme nt” ref ers to “the trial court’s perma nent determ i n at ion of custody
enter ed inci d en t t o t h e dissoluti on of marria g e, as distinguished from any temporar y or interim order s of custody” under the Marr iag e Act and to “the order which resolves custody of the subject child” under the Parenta g e Act

. I l l

. S

. Ct. R. 304, Commi ttee Comments. Clearly
, the trial court’s order reg arding custody in this case was not a “custody judgme nt” under Rule 304(b)( 6). T h e o rd er , which was called a denial but in rea lity was a dismiss al without prejudice
, was not a “per manent deter

mination of custody” and it did not “re solve[ ] custody” of Chantal. Thus, Rule 304(b)( 6) is inapplicable. This appea l does not fit within any of Jos e’s c laimed base s for a ppellate jurisdiction. ¶ 12 Howeve r, I llinois Supreme Court Rule 307(a) (1) provides for interlocutory appea ls as of right from interlocutory order s of the trial court “granting
, modifying, ref using, dissolving,

or ref using to dissolve or modify an injunction.” I ll. S. Ct. R. 307(a) (1) (ef f. Fe b. 26, 2010). Although J o s e’ s claim for Chantal’s immediate return to I llinois does not use the term “injunction,” we must look to the substance of an action, not its form. See Stein v. Krisl ov , 405 I ll. App. 3d 53 8
, 5 4 1 (2010). An injunction is a judicial proce ss wher eby a party is require d to do, or refra in from doing, a particula r t hing. Id. J o s e s oug ht an order requiring Marg arita to return Chantal to I llinois ; clea rly
, the substance of this claim was injunctive, and the trial cour

t, by denying theclaim, re fused to grant the r equeste d injunctive relief

.

-4-¶ 13 Fur ther, althoug h the claim was not labeled so, we wo u l d co n s i d er i t a cl aim for a preliminary injunction, which is described as “a provisional reme dy g rante d to prese rve the
status quo until the case can be decide d on the merits.” Hensley Construction, LLC v. Pulte Home Corp.
, 399 I ll. App. 3d 184, 190 (2010). On the other ha nd, a perma

nent injunction, which is not appea lable under Rule 307(a) (1), alters the status quo, is of unlimit ed duration, and adjudicate s rights betwee n the interested parties. Skolnick v. Altheimer & Gray
, 191 I ll. 2d 214, 222 (2000). Her e, the claim to return Chantal to I llinois can be rea d only in context with the petit ion for custody ; i t seeks Chantal’s return pending a decision on the m erits of the custody petition. It cannot be a reque st for an injunction of unlimit ed duration; it would make no sense for the court to perma nently order Chantal’s prese nce in this state if J ose wer e not to be g rante d custody

. ¶ 14 In an interlocutory appea l taken pursua nt to Ru le 307(a) (1), neither controve rted fac ts nor the merit s o f t h e case are decide d. Illinois Beta Chapter of Sigma Phi Epsilon Fraternity Alumni Board v. Illinois Institute of Technology
, 409 I ll. App. 3d 228, 231 (2011). The only question befor e this court is whether there was a sufficie nt showing in the trial court to aff irm the trial court’s orde r. Id. We revie w an interlocutory appea l under an abuse- of-discr etion standard. Id. ¶ 15 T h e tri al court’s order denying J ose’s claim mere ly stated that the claim was de n i ed

. Ag ain, the rec ord contains no repor t of proce eding s or by stander’ s repor t containing finding s of fac t or an explanation of the trial court’s ruling
, if the trial court so provided. Any doubts that may arise from the incompleteness of the rec ord will be resolved ag ainst the appellant. Foutch
, 99 I ll. 2d at 392. We are unable to deter mine whether a sufficie nt showing was made in the trial court beca

use J ose did not provide us with a rec ord of the showing that was made. Resolving the doubts arising from the lack of a sufficie nt rec ord ag ainst J ose, we can find no basis to reve rse the tr ial court on this issue. ¶ 16 For these rea sons, the appea l is dismiss ed as t o al l i s s ues other than the trial court’ s denial of the claim see king a n order for the immediate return of the minor child to I llinois
, which is aff

irmed.

¶ 17 Appea l dismi ssed in part a nd aff irmed in part.

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