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

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ In re MARRIAGE OF ) Appeal from the Circuit Court NERI NGA L IEPSN

A VAL KIU NAS, ) of

Mc He nr y Co un ty. ) Petitioner -Appella nt, )

) and ) No. 03--DV--111 ) JEFFREY D. OLSEN , ) Honorab le ) Gerald M. Zopp, Jr., Respondent-Appellee, ) Judge , Pres idin g.

_ __________________________________________________________ ____________________

_ PRESID ING

JUSTICE

ZENOF F delive

red the o pinion of t

he court : Petitioner, Neringa L iepsna Valkiunas, appeals the trial court's F ebruary 8, 2008 , custo dy modificationorder designating respondent, Jeff rey D. Olse n, as the residential custodian of the parties' minor child, V.O., and the March 3, 2008, order d enying pet itio ner's motion to reconsider. Pursuant to our holding in In re Marriage of Knoerr , 37 7 Ill. App . 3d 1042, 1049 (2007) (the appella te court lacks jurisdiction where the notice of appeal wa s filed whi le a petition f or rule to show cause

was still pending ), this co urt dismiss ed petitioner's a ppeal for lack of

jurisdict ion on July 14, 2008, because, when petitioner filed her notice of a ppeal, two civil co nte mpt petitions were pending and there was no Supreme Court Rule 304(a) (210 Ill. 2d R. 304(a)) finding that there was no just re ason for

delay ing enf orceme nt or appe al. Following the procedure

outlined in Knoerr , petitione r filed a petition f or rehe aring i

n this court, which we granted on July 28, 2008. Petitioner then supplem ented the record with an orderNo. 2--08--0279

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entered by the trial court on June 24, 2008, which disposed of the c ontempt petitions. However, on May 14, 2008, respondent had filed a motion to disqualify petitioner's a ttorney, which motion was still pending as of the entry of the June 24, 2008, order. The May 14, 2008, motion to disqualify was notpart of the original recor d. We all owed the record to be supplemented with the motion and ordered the parties to brief the following que stion: "Under Supreme C ourt Rule 3 03(a)( 2), did pe titi oner' s n otice of appeal take effect upon resolutionof

the conte mpt petitions, which

were pe nding a t the time of the not ice of a ppeal,
or will it take effect only

when all pending claims, even those filed after the notice of appeal, such as respo ndent's mot ion to dis qualify counsel, h ave been resolv ed?" 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 (21 0 Ill. 2d R. 303) governs the timing of an appeal fr om a final judgment of the ci rcuit co urt. Subsection (a)(1 ) of that r ule 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 afte

r the entry of

the order disposing of the last pe

nding po stjudgme

nt motion. 2 10 Ill . 2d R. 303( a)(1). Befor e the 2007amendme

nt to Rule 303, subsection (a)(2) provided that a notice of appe al filed before the entry of an order disposing of the last pending postjudgment motion had no effect and must be wit

hdrawn by the party who filed it. Marsh

v. Evang elical Covenant Ch urch of H insdale , 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 f

iled within

30 days afte

r the entry of

the order disposing of the last pending postjudgment motion. Marsh ,138 Ill. 2d at 460.No. 2--08--0279

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The amen dment to su

bsection (a)(2)of Rule 30 3 provide s: "When a timely postjudg ment motion

has been filed by any party, whethe

r in a jury
caseor a nonjury case , a notice of appeal filed before the e ntry of the order disposing of the last pending postjudgment motion, or befor e the final disposit

ion of any

separa te claim , becomes effective when the order disposing of said motion or claim

is entere d. A part

y intending to challenge an order disposing of a ny postjudgment motion or separa te claim , or a judgment

amended upon such motion, must file a notice of appeal, or an amende d notice of appeal within 30 days of the entry of sa

id order or amended jud gment, b ut 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 whic

h a notice of appea l must be filed under thi s rule." (Emphasi s added. ) Offic ial Repor ts Advanc e Sheet N o. 8 (Apr il 11, 2007), R. 303(a)(2), eff. May 1, 2007. According

to the Commit

tee Comme

nts, the a mendment

to subsection (a)(2) prote cts the rig hts of
anappellant who has filed a premature notice of appeal, by

making the notice of appeal effe ctive when the order denying a postjudgment motion or resolving a still-pending separa te claim is entered. As amended, the rule acts to "save" appea ls 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 de termine the date upon which petit ioner 's notice of

appeal t akes ef fect. I n other w ords, was the notice of appeal effective when the contempt petitions were resolved on June 24, 2008, or will it be ef fe ct ive as of a f utu reda te ? CourtsNo. 2--08--0279

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interpret court ru les the sa me way they

interpre t statutes , by

giving the lang uage o f the rule

its plain meaning. People ex rel. Madigan v. Petco Petroleum Corp. , 363 Ill. App. 3d 613, 622 (2006). Rule 303( a)(2) s tates tha

t a notice of appea l "becomes" effective when the order disposing of the pending claim is entered. Of ficial Re ports Advance

Sheet No. 8 (April 1 1, 2007), R. 303(a)(2), eff. May

1, 2007. A premature appeal is deemed saved in the sense that the appe llant is notrequir ed t o file a new notice of appeal. There fore, there is nothing magical a bout the date the notice of appea

l was act ually filed, a nd the pla

in meanin

g of the rule is t hat the notice of appeal "becomes" effective on the date the impediment to our jurisdiction is re moved. I n th is case, one impediment was removed on June 24, 2008. See Duggan , 376 Ill. App. 3d at 734. If a t that time t

here we re no pen ding sep arate c laims or unresolved postjudg ment motion s, thenthe effective date of the notice of a ppeal would be June 24, 2008. However , i f there were unresolved

postjudg ment motion s or pendi

ng clai ms, then th e notice

of appea l would not become effective until the trial court either resolved them or made an ex press writt en Rul e 304( a) fin ding. Petitioner argues that the motion to disqualify her attorney was not a postjudgment

motion and that the notice of appeal became eff ective as of June 24, 2008. We agree that the motion to disqualify
was not a postj udgmen

t motion bec ause, to q

ualify as a postjudgment

motion, a motion must re quest at least one of the forms of relief specified in sec tion 2--1203 of

the Code o f CivilProcedure (735 IL CS 5/2--120 3 (West 200 6)), namely , rehea ring, r etrial, modif

ic ation, vacation, or other relief directed against the judgment. Vanderplow v. Kry ch , 332 Ill. App. 3d 51, 53 (20 02). P etit ioner 's argument ignores the possibility that the motion to dis qualify was a

separate claim under the language of Rule 303(a) (2). A "pendin

g 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 "r

ight, liability or matter ra

ised" in an action. Marsh ,No. 2--08--0279

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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 a

n order does not resolve every right, l iability

or matter raised, it must cont

ain an expr

ess findin g that there is no just reason for delaying an appeal." Marsh , 138 Ill. 2 d a t 465. The June 24, 2008, order disposing of the contempt petitions did not dispose of all the claims, and the Febr ua ry 8, 2008, order

from which petitioner appealed did not contain Rule 304(a) languag e; 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 ou r 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 a ppeal or a petition for rehearing and to supplement the record with the appropr iate trial court orders showing tha t t he impediment to jurisdiction had been removed. On July 28, 2008, before we were made a ware of the pendency

of the motion to disqualify, this court granted petitioner's petition for rehearing. B ecause Supreme Court Rule 367( e ) (210 Ill. 2d R. 367(e)) limits an appellant to one petition for rehearing, the Knoerr procedu re is of no ava

il at this point. Accordingly , we vacate that part of our order of July 28, 2008, gra

nting the peti tion for rehear ing. Thus, the petition for rehear ing is stil l pending . Petitione r now must e ither obta

in a Rule 304(a) fi nd in g o r o bt ai n a n o rd er or or de rs re so lv in g t he mo ti on to di sq ua li fy 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 pe

titioner' s demonstr

ating to this court that we have jurisdiction, we will rule on the petition for rehear ing. That part of the order of July 28, 2008, granting the petition for rehea ring is vacated. HUTCHINSON and GROMETER, JJ., concur.