Illinois Official Reports

Appellate Court

In re Parentage of Rogan M., 2014 IL App (1st) 132765

Appellate Court 

Caption

In re PARENTAGE OF ROGAN M. (Keisha M., PetitionerAppellant, v. John M., Respondent-Appellee).

District & No. First District, Sixth Division

Docket No. 1-13-2765

Filed March 7, 2014

Held

(Note: This syllabus 

constitutes no part of the 

opinion of the court but 

has been prepared by the 

Reporter of Decisions 

for the convenience of 

the reader.)

Petitioner’s appeal from the denial of her petition to remove her minor 

son from Illinois to California was dismissed for lack of jurisdiction, 

since the record showed that after the removal petition was filed, the 

parties filed several other petitions, including petitioner’s requests for 

a modification of respondent’s support obligations, attorney fees and 

costs, and respondent’s petitions for custody and a parenting schedule, 

and the trial court declined to rule on those petitions until the removal 

petition was decided; furthermore, since those matters were pending 

when petitioner filed her notice of appeal, the denial of the removal 

petition was not a final judgment appealable as of right, and the order 

was not a “custody judgment” or a “modification of custody” that 

could be immediately appealed under Supreme Court Rule 304(b)(6).

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 08-D-79237; the 

Hon. Ellen L. Flannigan, Judge, presiding.

Judgment Dismissed.
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Counsel on

Appeal

Maricarol Lacy and Nicole M. Onorato, both of Rinella & Rinella, 

Ltd., of Chicago, for appellant.

James M. Quigley and Matthew D. Elster, both of Beermann Pritikin 

Mirabelli Swerdlove LLP, of Chicago, for appellee.

Lester L. Barclay, of Barclay Law Group, P.C., of Chicago, child 

representative.

Panel JUSTICE REYES delivered the judgment of the court, with opinion.

Justices Hall and Lampkin concurred in the judgment and opinion.

OPINION

¶ 1 Petitioner Keisha M. appeals the judgment of the trial court denying her petition to remove 

her minor child from Illinois to California. On appeal, Keisha argues: (1) the trial court applied 

the improper evidentiary standard; and (2) the trial court’s finding that removal was not in the 

child’s best interests was against the manifest weight of the evidence. For the following 

reasons, we dismiss the appeal for lack of jurisdiction.

¶ 2 BACKGROUND

¶ 3 Rogan M. was born out of wedlock in 2006 to parents Keisha M. and John M. Following 

Rogan’s birth, Keisha and John lived together with their son until their relationship ended in 

2008. At that time, John moved out of their home while Rogan remained living with Keisha. 

Shortly after the couple’s separation, Keisha filed a parentage action, which the parties 

resolved by agreement on March 26, 2009. Although Keisha and John never reached a formal 

decision on the issue of custody, 1 they agreed John would make monthly child support 

payments and provide Keisha with his tax returns and income information on a yearly basis.

¶ 4 The record reveals that in the years subsequent to the parties’ separation, Keisha and John 

both maintained an active relationship with their son. The two parents alternated weekends 

with Rogan and, during the week, John would accompany Rogan to t-ball practice, karate 

lessons, or dinner. A change in Keisha’s employment, however, would alter the parties’ 

situation.

 1

Under the facts of this case, Keisha is presumed to be the custodial parent by statute. See 750 ILCS 

45/14(a)(2) (West 2012) (“If a judgment of parentage contains no explicit award of custody, the 

establishment of a support obligation or of visitation rights in one parent shall be considered a judgment 

granting custody to the other parent.”).
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¶ 5 In 1998, Keisha began working with Harpo Studios as a producer for the Oprah Winfrey 

Show, eventually earning a position as an executive in the creative department with the studio. 

In November 2009, Oprah Winfrey announced she would soon be ceasing production of the 

show, leaving Keisha to question her future with Harpo Studios and consider searching for new 

employment. According to Keisha, she encountered difficulty finding suitable work in her 

field around Chicago and instead focused her search on California and New York, where she 

anticipated such opportunities would be more abundant. On June 27, 2011, 21⁄2 weeks before 

her position with Harpo Studios was to formally end, Keisha filed a petition to remove Rogan 

from Illinois to California as she believed an offer of employment in the Los Angeles area to be 

imminent. Ultimately, the parties participated in a five-month trial on the issue of removal and, 

on July 31, 2013, the trial court denied Keisha’s removal petition in a memorandum opinion 

and order. Keisha filed her notice of appeal on August 28, 2013.

¶ 6 Between the filing of the removal petition and the notice of appeal, the parties filed a 

number of additional petitions. On July 8, 2011, Keisha requested a modification of John’s 

child support obligations. On November 9, 2011, John filed a petition for custody of Rogan. 

On September 18, 2012, Keisha filed a petition for attorney fees and costs. On August 27, 

2013, John filed a petition to set a parenting schedule. The trial court declined to hear these 

issues pending the disposition of Keisha’s removal petition and thus the petitions remained 

unresolved prior to the filing of the notice of appeal. Additionally, on August 30, 2013, after 

Keisha filed her notice of appeal, John filed a petition to terminate or reduce his child support 

obligation.

¶ 7 ANALYSIS

¶ 8 John argues this court lacks jurisdiction to hear this matter on appeal. According to John, 

the order denying the removal petition is not a final judgment because numerous issues remain 

pending in the trial court. In addition, John asserts no exception applies to otherwise allow us 

to decide the case on its merits. The issue of jurisdiction is a purely legal question that we 

review de novo. In re John Doe Investigation, 2011 IL App (2d) 091355, ¶ 6.

¶ 9 Supreme Court Rule 301 provides “[e]very final judgment of a circuit court in a civil case 

is appealable as of right.” Ill. S. Ct. R. 301 (eff. Feb. 1, 1994). A final judgment fixes 

absolutely and finally the rights of the parties in the lawsuit; it determines the litigation on the 

merits so that, if affirmed, the only thing remaining is to proceed with the execution of the 

judgment. In re Adoption of Ginnell, 316 Ill. App. 3d 789, 793 (2000). To be final, a judgment 

must dispose of the litigation or some definite part of it. Id. If jurisdiction is retained for the 

future determination of matters of substantial controversy, the order is not final. Id. Absent an 

applicable exception, the appellate court does not have jurisdiction to review judgments, 

orders, or decrees which are not final. Department of Public Aid ex rel. Chiapelli v. Viviano, 

195 Ill. App. 3d 1033, 1034 (1990).

¶ 10 Rules 306 and 307 provide instances where certain interlocutory orders may be appealed, 

but neither party contends these exceptions apply. See Ill. S. Ct. R. 306 (eff. Feb. 16, 2011); R. 

307 (eff. Feb. 26, 2010). The remaining exceptions can be found in Rule 304. See Ill. S. Ct. R. 

304 (eff. Feb. 26, 2010). Under Rule 304(a), “[i]f multiple parties or multiple claims for relief 

are involved in an action, an appeal may be taken from a final judgment as to one or more but 

fewer than all of the parties or claims only if the trial court has made an express written finding 
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that there is no just reason for delaying either enforcement or appeal or both.” Ill. S. Ct. R. 

304(a) (eff. Feb. 26, 2010). The parties did not seek a Rule 304(a) finding from the trial court in 

this case and we therefore do not have jurisdiction under this rule. The only remaining 

exception relevant to this matter falls under Rule 304(b)(6), which allows for an immediate 

appeal of “[a] custody judgment entered pursuant to the Illinois Marriage and Dissolution of 

Marriage Act (750 ILCS 5/101 et seq.) or section 14 of the Illinois Parentage Act of 1984 (750 

ILCS 45/14); or a modification of custody entered pursuant to section 610 of the Illinois 

Marriage and Dissolution of Marriage Act (750 ILCS 5/610) or section 16 of the Illinois 

Parentage Act of 1984 (750 ILCS 45/16).” Ill. S. Ct. R. 304(b)(6) (eff. Feb. 26, 2010). 

Accordingly, for us to have jurisdiction, the order denying removal must have either been (1) a 

final judgment or (2) a “custody judgment” or “modification of custody,” as pertaining to Rule 

304(b)(6).

¶ 11 I. Final Judgment

¶ 12 In response to John’s jurisdictional challenge, Keisha cites a line of authority to support her 

contention the trial court’s order denying the removal petition in this case constituted a final, 

appealable order. See In re Custody of Purdy, 112 Ill. 2d 1 (1986) (order modifying custody 

immediately appealable because action arose separately several years following the original 

marital dissolution proceeding); In re Marriage of Demaret, 2012 IL App (1st) 111916, ¶ 25 

(ruling on postdissolution removal petition amounted to final order because the only remaining 

pending issue, a petition for attorney fees, was “wholly unrelated” to the issues in the removal 

petition); In re Marriage of A’Hearn, 408 Ill. App. 3d 1091, 1098 (2011) (unresolved petitions 

for rule to show cause did not render dismissal of petition to modify custody nonfinal where 

the previously filed petitions for rule to show cause were “not related to the modification for 

custody petition”); In re Marriage of Carr, 323 Ill. App. 3d 481, 485 (2001) (because pending 

petition for attorney’s fees “had no effect” on–and was thus unrelated to–orders modifying 

child support, the orders modifying child support were final and appealable); In re Marriage of 

Yndestad, 232 Ill. App. 3d 1, 4 (1992) (where “[t]he trial judge’s dismissal order prevented [the 

wife] from further prosecuting [her removal petition] and did not grant her leave to amend [the 

petition],” this court concluded “the dismissal order [was] final and appealable”). In particular, 

Keisha cites Marriage of Demaret for the proposition that “a removal petition is a distinct 

cause of action, and the order *** is thus final and appealable.”

¶ 13 In Marriage of Demaret, the mother filed a removal petition to move the couple’s children 

from Illinois to New Jersey four years after the dissolution of the couple’s marriage. Marriage 

of Demaret, 2012 IL App (1st) 111916, ¶¶ 3-4. One day following the filing of the removal 

petition, the father filed a separate petition for attorney fees. Id. ¶ 4. Ultimately, the trial court 

denied the request for removal without ruling on the issue of attorney fees. Id. The mother 

subsequently appealed the denial of removal with the petition for attorney fees still pending 

before the trial court. Id. Despite the unresolved petition, this court found it had jurisdiction 

because the issue of attorney fees involved “a matter wholly unrelated to the issue of removal.” 

Id. ¶ 25.

¶ 14 While the court in Marriage of Demaret ultimately found the order to be final and 

appealable, the case does not, as Keisha suggests, stand for the notion that removal petitions 

are final and appealable in every instance. To the extent the court characterized a removal 
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petition as a “distinct” proceeding, it did so relative to the original marital dissolution 

proceeding that occurred four years earlier. See id. ¶ 35. Simply because the court found the 

removal petition to be a separate action from the prior dissolution proceeding does not mean 

the court refrained from also discussing whether the removal petition was unrelated to the 

pending proceedings. See id. ¶ 38. The court examined whether the issues involved in the 

attorney fees petition had any “bearing on the circuit court’s clear intent to issue a dispositive 

order regarding the best interests of the children” in the removal petition. Id. Because it 

concluded those issues did not, the court proceeded to find it had jurisdiction to hear the case. 

Id. Thus, Marriage of Demaret, along with the other decisions cited by Keisha, collectively 

demonstrate the need for the reviewing court to examine the relationship of any pending 

matters to those being appealed. See id. ¶¶ 30-36 (comparing the difference in effect on 

appellate jurisdiction between that of a “sufficiently related” pending petition to that of an 

“unresolved but unrelated petition”).

¶ 15 With this in mind, we turn to the facts of this case. At the time of the filing of this appeal, 

several petitions remained unresolved in the trial court: (1) John’s petition for custody; (2) 

John’s petition to set a parenting schedule; (3) John’s petition to terminate or reduce his child 

support obligation; (4) Keisha’s petition to modify child support; and (5) Keisha’s petition for 

attorney fees. Keisha contends jurisdiction is still proper because John effectively 

“abandoned” his petition for custody and the other four petitions are not sufficiently related to 

this appeal as to render the order denying removal not final. We need only address Keisha’s 

abandonment argument because it is dispositive of this issue.

¶ 16 Keisha does not argue John’s petition for custody involves a separate, unrelated matter that 

would have no effect on the issue of removal. Indeed, assuming John were successful in

winning custody of the child, that fact alone would necessarily defeat any argument Keisha 

could make in support of her petition; Illinois law only permits the trial court to grant removal 

to the custodial parent. See 750 ILCS 5/609(a) (West 2012). Keisha must therefore contend 

John’s failure to seek a ruling on his custody petition equates to an abandonment of the claim 

as a matter of law. Keisha cites no case law to support her argument, although we note the 

Illinois Supreme Court has previously addressed this issue. See In re Marriage of Gutman, 232 

Ill. 2d 145 (2008).

¶ 17 In Marriage of Gutman, the parties dissolved their marriage in 1996 and the court 

subsequently entered a judgment ordering the husband to pay maintenance to the wife for three 

years. Id. at 147. After the wife filed a petition to extend maintenance, the court ordered the 

husband to continue the payments until further notice by the court. Id. at 147-48. In response, 

the husband petitioned the court to modify the judgment and terminate maintenance. Id. at 148. 

After the husband allegedly stopped making payments in violation of the court’s order, the 

wife filed a petition for civil contempt against the husband. Id. Eventually, the court dismissed 

the wife’s petition to extend maintenance with prejudice, but did not address the contempt 

petition or make a Rule 304(a) finding. Id. The wife appealed. Id.

¶ 18 While the wife failed to file the notice of appeal within 30 days of the dismissal order, the 

court found the pending contempt proceeding to be sufficiently part of the original action. Id. at 

148, 152-54. Consequently, the trial court’s dismissal did not constitute a final, appealable 

order. Id. at 153-54. In response, the husband argued the wife’s failure to pursue a ruling over 

the course of two years amounted to an abandonment of the petition, thus rendering the trial 
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court’s dismissal final and the wife’s appeal untimely. Id. at 154. Our supreme court rejected 

this argument. Id. at 154-56.2 It noted “[t]he passage of time in itself does not mean that the 

contempt proceeding was dismissed.” Id. at 155. Rather, the court examined the record, which 

provided no evidence of the wife’s intent to abandon her claim or any indication the trial court 

dismissed it. Id. Therefore, the court found the claim remained pending and unresolved at the 

time of the appeal. Id. at 156.

¶ 19 We find Marriage of Gutman controls here. While Keisha insists John filed his custody 

petition solely as a means to frustrate her petition for removal, she can point to no part of the 

record to indicate either an intent on John’s behalf to abandon the claim or some action taken 

by the trial court to dismiss the claim. Her argument thus mirrors the unsuccessful argument 

advanced in Marriage of Gutman: John’s delay in pursuing the custody petition coupled with 

the passage of time equates to an abandonment as a matter of law. Because the supreme court 

has already rejected this reasoning, we find the custody petition remained pending. 

Accordingly, the trial court’s order was not a final and appealable order within the meaning of 

Rule 301.

¶ 20 II. Rule 304(b)(6)

¶ 21 Keisha additionally argues we have jurisdiction because an order regarding a removal 

petition constitutes a “custody judgment” or “modification of custody” as contemplated by 

Rule 304(b)(6). As noted above, Rule 304(b)(6) allows for an immediate appeal of “[a] 

custody judgment entered pursuant to the Illinois Marriage and Dissolution of Marriage Act 

(750 ILCS 5/101 et seq.) or section 14 of the Illinois Parentage Act of 1984 (750 ILCS 45/14); 

or a modification of custody entered pursuant to section 610 of the Illinois Marriage and 

Dissolution of Marriage Act (750 ILCS 5/610) or section 16 of the Illinois Parentage Act of 

1984 (750 ILCS 45/16).” Ill. S. Ct. R. 304(b)(6) (eff. Feb. 26, 2010). When interpreting a 

supreme court rule, we apply the same principles of construction that apply to a statute. In re 

Estate of Rennick, 181 Ill. 2d 395, 404 (1998). Our goal is to ascertain and give effect to the 

intention of the drafters of the rule. Id. The most reliable indicator of intent is the language 

used, which should be given its plain and ordinary meaning. Id. at 405. Where the language is 

clear and unambiguous, we must apply the language used without further aids of construction. 

Id.

¶ 22 The plain language of Rule 304(b)(6) does not directly classify removal judgments as 

immediately appealable. Notwithstanding this fact, Keisha argues that because “sections 14 

and 16 of the Illinois Parentage Act specifically reference removal,” it follows that removal 

 2

In rejecting the abandonment claim, the court in Marriage of Gutman distinguished two cases 

cited by the husband: Mortgage Electronic Systems v. Gipson, 379 Ill. App. 3d 622 (2008), and 

Rodriguez v. Illinois Prisoner Review Board, 376 Ill. App. 3d 429 (2007). See Marriage of Gutman, 

232 Ill. 2d at 154-55. We briefly note that, as in Marriage of Gutman, neither of these cases apply here. 

In both Mortgage Electronic Systems and Rodriguez, the parties sought on appeal to resolve issues 

contained in motions that had never been ruled on by the trial court. See Mortgage Electronic Systems, 

379 Ill. App. 3d at 628; Rodriguez, 376 Ill. App. 3d at 432-33. Thus, the parties “abandoned” those 

issues because they had appealed motions without first exercising their responsibility to seek a ruling 

on them in the trial court. See Mortgage Electronic Systems, 379 Ill. App. 3d at 628; Rodriguez, 376 Ill. 

App. 3d at 432-33.
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amounts to a “custody judgment” or “modification of custody” under the rule. We are not 

convinced, however, that the mere mention of removal in the text of the referenced statutes 

compels the interpretation of Rule 304(b)(6) that Keisha advances. Section 16, for example, 

clearly contemplates modifications of custody and modifications of removal as distinct 

actions, stating, “[t]he court has continuing jurisdiction to modify an order for support, 

custody, visitation, or removal included in a judgment entered under this Act.” (Emphasis 

added.) 750 ILCS 45/16 (West 2012). Thus, where Rule 304(b)(6) refers to a “modification of 

custody entered pursuant to section 16,” we do not find the term “custody” encompasses 

“removal” because the statute clearly treats them as separate claims.

¶ 23 Keisha nevertheless counters that removal is “inherently tied to custody since the decision 

whether or not to grant removal impacts the physical custody of the child.” We do not dispute 

Keisha’s characterization of removal as a “custody-related issue.” Yet simply because removal 

is related to custody does not mean we should consider a removal order to be a custody 

judgment or modification of custody for the purposes of jurisdiction. See, e.g., In re Marriage 

of Bednar, 146 Ill. App. 3d 704, 710-11 (1986) (“In our view, the possibility that removal of a 

child from the jurisdiction of this State to another may adversely affect the noncustodial 

parent’s interaction with the child does not compel the conclusion that a removal petition is, as 

a matter of law, a petition for modification of custody.”). Rather, we conclude that had the 

drafters–who we presume were aware of the relationship between custody and 

removal–intended to include removal judgments as part of Rule 304(b)(6), they would have 

included such language. See In re Michelle J., 209 Ill. 2d 428, 437 (2004). Accordingly, we do 

not find jurisdiction is proper under Rule 304(b)(6).

¶ 24 CONCLUSION

¶ 25 For the foregoing reasons, the appeal is dismissed for lack of jurisdiction. All pending 

motions on appeal are likewise dismissed.

¶ 26 Dismissed.