No. 2--08--0279 Filed: 12-18-08

______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

______________________________________________________________________________

In re MARRIAGE OF ) Appeal from the Circuit Court

NERINGA LIEPSNA VALKIUNAS, ) of McHenry County.

)

Petitioner-Appellant, )

)

and ) No. 03--DV--111

)

JEFFREY D. OLSEN, ) Honorable

) Gerald M. Zopp, Jr.,

Respondent-Appellee, ) Judge, Presiding.

________________________________________________________________________________

PRESIDING JUSTICE ZENOFF delivered the opinion of the court:

Petitioner, Neringa Liepsna Valkiunas, appeals the trial court's February 8, 2008, custody

modification order designating respondent, Jeffrey D. Olsen, as the residential custodian of the

parties' minor child, V.O., and the March 3, 2008, order denying petitioner's motion to reconsider.

Pursuant to our holding in In re Marriage of Knoerr, 377 Ill. App. 3d 1042, 1049 (2007) (the

appellate court lacks jurisdiction where the notice of appeal was filed while a petition for rule to

show cause was still pending), this court dismissed petitioner's appeal for lack of jurisdiction on July

14, 2008, because, when petitioner filed her notice of appeal, two civil contempt petitions were

pending and there was no Supreme Court Rule 304(a) (210 Ill. 2d R. 304(a)) finding that there was

no just reason for delaying enforcement or appeal.

Following the procedure outlined in Knoerr, petitioner filed a petition for rehearing in this

court, which we granted on July 28, 2008. Petitioner then supplemented the record with an order
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entered by the trial court on June 24, 2008, which disposed of the contempt petitions. However, on

May 14, 2008, respondent had filed a motion to disqualify petitioner's attorney, which motion was

still pending as of the entry of the June 24, 2008, order. The May 14, 2008, motion to disqualify was

not part of the original record. We allowed the record to be supplemented with the motion and

ordered the parties to brief the following question:

"Under Supreme Court Rule 303(a)(2), did petitioner's notice of appeal take effect upon

resolution of the contempt petitions, which were pending at the time of the notice of appeal,

or will it take effect only when all pending claims, even those filed after the notice of appeal,

such as respondent's motion to disqualify counsel, have been resolved?" 

The parties have filed their briefs, which we have considered, and we determine that we do not have

jurisdiction over this appeal. 

Supreme Court Rule 303 (210 Ill. 2d R. 303) governs the timing of an appeal from a final

judgment of the circuit court. Subsection (a)(1) of that rule provides that a notice of appeal must be

filed within 30 days after the entry of the final judgment appealed from or, if a timely postjudgment

motion directed against the judgment is filed, within 30 days after the entry of the order disposing

of the last pending postjudgment motion. 210 Ill. 2d R. 303(a)(1). Before the 2007 amendment to

Rule 303, subsection (a)(2) provided that a notice of appeal filed before the entry of an order

disposing of the last pending postjudgment motion had no effect and must be withdrawn by the party

who filed it. Marsh v. Evangelical Covenant Church of Hinsdale, 138 Ill. 2d 458, 460 (1990). This

was so whether the postjudgment motion was filed before or after the notice of appeal. Marsh, 138

Ill. 2d at 460. A new notice of appeal then had to be filed within 30 days after the entry of the order

disposing of the last pending postjudgment motion. Marsh,138 Ill. 2d at 460.
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The amendment to subsection (a)(2) of Rule 303 provides:

"When a timely postjudgment motion has been filed by any party, whether in a jury

case or a nonjury case, a notice of appeal filed before the entry of the order disposing of the

last pending postjudgment motion, or before the final disposition of any separate claim,

becomes effective when the order disposing of said motion or claim is entered. A party

intending to challenge an order disposing of any postjudgment motion or separate claim, or

a judgment amended upon such motion, must file a notice of appeal, or an amended notice

of appeal within 30 days of the entry of said order or amended judgment, but where a

postjudgment motion is denied, an appeal from the judgment is deemed to include an appeal

from the denial of the postjudgment motion. No request for reconsideration of a ruling on

a postjudgment motion will toll the running of the time within which a notice of appeal must

be filed under this rule." (Emphasis added.) Official Reports Advance Sheet No. 8 (April

11, 2007), R. 303(a)(2), eff. May 1, 2007.

According to the Committee Comments, the amendment to subsection (a)(2) protects the rights of

an appellant who has filed a premature notice of appeal, by making the notice of appeal effective

when the order denying a postjudgment motion or resolving a still-pending separate claim is entered.

As amended, the rule acts to "save" appeals that would otherwise be premature. In re Marriage of

Duggan, 376 Ill. App. 3d 725, 728 (2007). 

This appeal calls upon us to interpret subsection (a)(2) and determine the date upon which

petitioner's notice of appeal takes effect. In other words, was the notice of appeal effective when the

contempt petitions were resolved on June 24, 2008, or will it be effective as of a future date? Courts
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interpret court rules the same way they interpret statutes, by giving the language of the rule its plain

meaning. People ex rel. Madigan v. Petco Petroleum Corp., 363 Ill. App. 3d 613, 622 (2006).

Rule 303(a)(2) states that a notice of appeal "becomes" effective when the order disposing

of the pending claim is entered. Official Reports Advance Sheet No. 8 (April 11, 2007), R.

303(a)(2), eff. May 1, 2007. A premature appeal is deemed saved in the sense that the appellant is

not required to file a new notice of appeal. Therefore, there is nothing magical about the date the

notice of appeal was actually filed, and the plain meaning of the rule is that the notice of appeal

"becomes" effective on the date the impediment to our jurisdiction is removed. In this case, one

impediment was removed on June 24, 2008. See Duggan, 376 Ill. App. 3d at 734. 

If at that time there were no pending separate claims or unresolved postjudgment motions,

then the effective date of the notice of appeal would be June 24, 2008. However, if there were

unresolved postjudgment motions or pending claims, then the notice of appeal would not become

effective until the trial court either resolved them or made an express written Rule 304(a) finding.

Petitioner argues that the motion to disqualify her attorney was not a postjudgment motion and that

the notice of appeal became effective as of June 24, 2008. We agree that the motion to disqualify

was not a postjudgment motion because, to qualify as a postjudgment motion, a motion must request

at least one of the forms of relief specified in section 2--1203 of the Code of Civil Procedure (735

ILCS 5/2--1203 (West 2006)), namely, rehearing, retrial, modification, vacation, or other relief

directed against the judgment. Vanderplow v. Krych, 332 Ill. App. 3d 51, 53 (2002). Petitioner's

argument ignores the possibility that the motion to disqualify was a separate claim under the

language of Rule 303(a)(2). 

A "pending claim" under Rule 303(a)(2) is the same as a "claim" for purposes of Rule 304(a).

A "claim" for purposes of Rule 304(a) is any "right, liability or matter raised" in an action. Marsh,
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138 Ill. 2d at 465. The motion to disqualify petitioner's attorney, which was still pending as of the

entry of the June 24, 2008, order, was a "matter" raised in the action. "If an order does not resolve

every right, liability or matter raised, it must contain an express finding that there is no just reason

for delaying an appeal." Marsh, 138 Ill. 2d at 465. The June 24, 2008, order disposing of the

contempt petitions did not dispose of all the claims, and the February 8, 2008, order from which

petitioner appealed did not contain Rule 304(a) language; thus, the notice of appeal is still premature

and is ineffective to confer jurisdiction on this court. 

The question is what procedure this court has to follow now. In our summary order of July

14, 2008, dismissing this appeal we outlined for the parties the procedure set forth in Knoerr, which

was to file a timely notice of appeal or a petition for rehearing and to supplement the record with the

appropriate trial court orders showing that the impediment to jurisdiction had been removed. On

July 28, 2008, before we were made aware of the pendency of the motion to disqualify, this court

granted petitioner's petition for rehearing. Because Supreme Court Rule 367(e) (210 Ill. 2d R.

367(e)) limits an appellant to one petition for rehearing, the Knoerr procedure is of no avail at this

point. Accordingly, we vacate that part of our order of July 28, 2008, granting the petition for

rehearing. Thus, the petition for rehearing is still pending. Petitioner now must either obtain a Rule

304(a) finding or obtain an order or orders resolving the motion to disqualify and any other pending

claims in this matter (In re Marriage of Schweiger, 379 Ill. App. 3d 687, 690 (2008)) and then

supplement the record with the appropriate order or orders. Upon petitioner's demonstrating to this

court that we have jurisdiction, we will rule on the petition for rehearing. 

That part of the order of July 28, 2008, granting the petition for rehearing is vacated.

HUTCHINSON and GROMETER, JJ., concur.