Docket No. 105648.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

In re MARRIAGE OF DANIEL GUTMAN, Appellee, and MARY

GUTMAN, Appellant.

Opinion filed November 20, 2008.

JUSTICE BURKE delivered the judgment of the court, with

opinion.

Chief Justice Fitzgerald and Justices Freeman, Thomas, Kilbride,

Garman, and Karmeier concurred in the judgment and opinion.

OPINION

This case concerns whether the trial court’s order terminating

maintenance to Mary Gutman was final and appealable without a

finding under Supreme Court Rule 304(a) (210 Ill. 2d R. 304(a))

when Mary’s civil contempt petition against Daniel Gutman was still

pending.

The appellate court held that, although a civil contempt petition

is part of the underlying action, it does not, for purposes of Rule

304(a), raise a “claim for relief” in that action. Thus, according to the

appellate court, the circuit court of Lake County’s order terminating

maintenance was final and appealable without a Rule 304(a) finding.

The appellate court dismissed Mary’s appeal for lack of jurisdiction,
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finding it untimely since it was filed more than 30 days after the final

order determining maintenance. 376 Ill. App. 3d 758.

BACKGROUND

The parties’ marriage was dissolved on September 12, 1996. At

the time of dissolution, the trial court reserved the issue of

maintenance. In July 1999, the court entered an order requiring Daniel

to pay maintenance in the amount of $2,900 per month for a period

of three years.

On June 21, 2002, Mary filed a motion seeking to continue and

modify the maintenance award. On July 3, 2002, the trial court

entered an agreed order granting Daniel until August 7, 2002, to file

a response to Mary’s petition, and ordered Daniel to continue making

maintenance payments until further order of the court. On August 20,

2003, Daniel filed a motion seeking to modify the judgment for

dissolution and to terminate maintenance.

On September 18, 2003, Mary filed a petition for indirect civil

contempt, alleging that Daniel had stopped making maintenance

payments as of September 1, 2003, in violation of the July 3, 2002,

order. On September 25, 2003, the court entered a rule to show cause

against Daniel. The court set a date for hearing on the rule, together

with the parties’ pending maintenance petitions.

Mary did not appear at the scheduled hearing. The court granted

Daniel’s petition to terminate maintenance and dismissed Mary’s

contempt petition. Mary successfully moved to vacate both

judgments, but on the next hearing date, Mary again failed to appear.

The court once again granted Daniel’s motion to terminate

maintenance and dismissed with prejudice Mary’s motion to continue

and modify maintenance. The court’s written order, entered on June

23, 2005, did not address the contempt petition, nor did it contain a

finding pursuant to Rule 304(a).

On July 22, 2005, Mary brought a motion to vacate the June 23,

2005, order, which the trial court denied. Thirty-five days later, Mary

filed a motion to reconsider. The court denied the motion and Mary

appealed.

The appellate court dismissed Mary’s appeal for lack of

jurisdiction. 376 Ill. App. 3d 758. The court held that, despite the
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pendency of the contempt petition, the trial court’s judgment granting

Daniel’s petition to terminate maintenance was a final judgment as to

all “claims for relief” in the dissolution action, subject to Rule 303(a).

The court held that the contempt petition did not raise a “claim for

relief” in the dissolution action, which would have required a Rule

304(a) finding, but that it was an original special proceeding

independent of the underlying case. 376 Ill. App. 3d at 764. Because

Mary failed to file her appeal within 30 days of the order granting

Daniel’s petition or within 30 days of the denial of her motion to

vacate, her appeal was untimely. 376 Ill. App. 3d at 759.

We allowed Mary’s petition for leave to appeal (210 Ill. 2d R.

315(a)).

ANALYSIS

At the outset, we consider a threshold issue–whether this appeal

should be dismissed because the appellate court judgment before us

is no longer legally in effect. Nine weeks after one panel of the

Appellate Court, Second District, filed its opinion in the case now

before us, a separate panel of the court expressly “overruled” that

decision in In re Marriage of Knoerr, 377 Ill. App. 3d 1042 (2007).

Approximately one month later, a third panel of the Appellate Court,

Second District, entered a ruling consistent with its holding in

Knoerr. See In re Marriage of Schwieger, 379 Ill. App. 3d 687

(2008). In Schwieger, the author of the decision before us, Justice

Grometer, specially concurred, stating that he still believed the

judgment was correct, but that he would abide by the Knoerr decision

“in the interest of providing clear guidance for our constituents.”

Schwieger, 379 Ill. App. 3d at 690 (Grometer, J., specially

concurring).

Knoerr was decided on December 21, 2007. The petition for leave

to appeal in this case was granted on January 30, 2008. If, in fact,

Knoerr overruled the decision before us, then we would have granted

leave to appeal in a case that is no longer legally in effect and

dismissal would be warranted.

We find, however, that the decision before us has not been

overruled. A panel, division, or district of the appellate court has no

authority to overrule another panel, division, or district. See Gillen v.
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State Farm Mutual Automobile Insurance Co., 215 Ill. 2d 381, 392

n.2 (2005) (“A decision of our appellate court may only be reversed

or overruled by this court”). Thus, despite its statement to the

contrary, Knoerr did not overrule this case. The Knoerr panel created

a conflict of authority by disagreeing with a decision from another

panel of a court of equal stature. We conclude, therefore, that the

appellate court decision we are reviewing remains in effect.

Turning to the substance of this appeal, Mary contends that the

appellate court incorrectly held that the trial court’s order terminating

maintenance was a final and appealable order. According to Mary, a

postdissolution order that does not dispose of a pending petition for

rule to show cause does not constitute a final and appealable order in

the absence of a Rule 304(a) finding.

Accordingly, she contends that without a final and appealable

order, the appellate court was without jurisdiction to rule and the

judgment must be vacated. In light of Mary’s argument, we first

address whether the order terminating maintenance was a final order.

I. Jurisdiction

The question before us, whether an order is final and appealable

absent a Rule 304(a) finding where a contempt petition remains

pending, is one of law, which we review de novo. Robidoux v.

Oliphant, 201 Ill. 2d 324, 332 (2002).

Rule 304(a) provides, in pertinent part:

“If 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 that there is no just reason for delaying either

enforcement or appeal or both. *** In the absence of such a

finding, any judgment that adjudicates fewer than all the

claims or the rights and liabilities of fewer than all the parties

is not enforceable or appealable and is subject to revision at

any time before the entry of a judgment adjudicating all the

claims, rights, and liabilities of all the parties.” 210 Ill. 2d R.

304(a).
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“An order is final and appealable if it terminates the litigation

between the parties on the merits or disposes of the rights of the

parties, either on the entire controversy or a separate part thereof.”

R.W. Dunteman Co. v. C/G Enterprises, Inc., 181 Ill. 2d 153, 159

(1998). Absent a Rule 304(a) finding, a final order disposing of fewer

than all of the claims is not an appealable order and does not become

appealable until all of the claims have been resolved. Marsh v.

Evangelical Covenant Church of Hinsdale, 138 Ill. 2d 458, 464

(1990). This court has defined a “claim” as “any right, liability or

matter raised in an action.” Marsh, 138 Ill. 2d at 465. The rule was

meant “to discourage piecemeal appeals in the absence of a just

reason and to remove the uncertainty which existed when a final

judgment was entered on fewer than all of the matters in

controversy.” Marsh, 138 Ill. 2d at 465.

The appellate court below held that a contempt petition, although

a “part” of the underlying action, does not raise a “claim for relief” in

that action within the meaning of Rule 304(a). 376 Ill. App. 3d at 763.

Therefore, according to the court, the order terminating maintenance

was a final order as to all “claims” in the dissolution action and

required no Rule 304(a) finding to be final and appealable. We

disagree.

The appellate court held that the pending contempt petition in this

case is entirely separate from the dissolution proceeding. In so doing,

the court departed from two previous decisions in which the opposite

conclusion was reached. See In re Marriage of Colangelo, 355 Ill.

App. 3d 383, 388-89 (2005) (absent a Rule 304(a) finding, a party

could not appeal the denial of a civil contempt petition while a

postdissolution petition to increase child support was pending); In re

Marriage of Alyassir, 335 Ill. App. 3d 998 (2003) (absent a Rule

304(a) finding, a party could not appeal a judgment on a

postdissolution petition to increase child support while a civil

contempt petition was pending).

The appellate court held that “[a]lthough a civil contempt petition

is a part of the underlying action, it is nevertheless ‘an original special

proceeding, collateral to, and independent of, the case in which the

contempt arises.’ ” 376 Ill. App. 3d at 762, quoting Kazubowski v.

Kazubowski, 45 Ill. 2d 405, 415 (1970). In relying on the Kazubowski

decision, however, the appellate court ignored language immediately
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preceding and following the quoted statement. What we actually held

in Kazubowski was: “ordinarily an adjudication in a contempt

proceeding is final and appealable because it is an original special

proceeding, collateral to, and independent of, the case in which the

contempt arises where the imposition of the sanction does not directly

affect the outcome of the principal action.” (Emphases added.)

Kazubowski, 45 Ill. 2d at 414-15.

The appellate court disregarded the language limiting the original

and special status to an adjudication of contempt. The court

unjustifiably expanded the language in Kazubowski to apply to the

pending contempt petition in the case at bar. No other court has held

a pending contempt petition to be an independent action separate

from the underlying case. Rather, the rule, which this court has

consistently held, is that only a contempt judgment that imposes a

sanction is a final, appealable order. See People ex rel. Scott v.

Silverstein, 87 Ill. 2d 167, 172 (1981) (“[t]he imposition of a sanction

for contempt is final and appealable because, although occurring

within the context of another proceeding and thus having the

appearance of being interlocutory, it is an original special proceeding,

collateral to and independent of, the case in which the contempt

arises”); Valencia v. Valencia, 71 Ill. 2d 220, 228 (1978) (“Generally,

it is held that where no punishment has been imposed an order

adjudicating one to be in contempt is not final and is not

reviewable”); People ex rel. General Motors Corp. v. Bua, 37 Ill. 2d

180, 191 (1967) (“The imposition of a fine or imprisonment as a

sanction for contempt is final and appealable because it is an original

special proceeding”); Lester v. Berkowitz, 125 Ill. 307, 308 (1888)

(“Had the court attempted to enforce obedience to its order by the

imposition of a fine ***, or by a definitive term of imprisonment, as

for contempt of court, the judgment of the court imposing such fine

or imprisonment would be final, and from which an appeal might be

taken”).

Moreover, Supreme Court Rule 304(b)(5) provides that “[a]n

order finding a person or entity in contempt of court which imposes

a monetary or other penalty” is appealable without a Rule 304(a)

finding. 210 Ill. 2d R. 304(b)(5). It is clear from the language of the

rule that only contempt judgments that impose a penalty are final,

appealable orders. Until the entry of a contempt order imposing a
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sanction, a contempt petition provides no basis for obtaining

immediate appellate jurisdiction over any part of the case under Rule

304(b)(5).

The rationale for authorizing immediate appellate jurisdiction

under Rule 304(b)(5) upon the entry of a contempt order imposing a

penalty does not apply when a contempt petition is merely pending

before the court. Litigation proceedings may linger for years before

a final judgment and the subject of a contempt judgment may face

incarceration or forfeiture of property. It would be unreasonable to

force a party to wait until final judgment on all issues before allowing

an appeal on the contempt ruling. Rule 304(b)(5) codifies this

distinction by allowing the contemnor to seek immediate review of

the finding and sanction imposed. However, this justification for

treating contempt petitions as separate proceedings for purposes of

appeal is not present when there has been no ruling and sanction

imposed.

Accordingly, we reject the reasoning of the appellate court and

hold that Mary’s pending contempt petition was not a separate claim

independent of the dissolution action.

II. Abandonment

Daniel concedes that the appellate court was incorrect when it

held that the contempt petition was a separate, independent claim.

Nevertheless, he contends that the appellate court’s finding that

Mary’s appeal is untimely is correct. According to Daniel, Mary

abandoned her contempt petition by failing to obtain a ruling in the

trial court before she filed her appeal. He contends that the trial

court’s order terminating maintenance was a final order that disposed

of all claims. Thus, Mary’s appeal of that order was untimely, having

been filed more than 30 days after the court’s denial of her motion to

vacate. See 210 Ill. 2d R. 303(a)(1) (notice of appeal must be filed

within 30 days after the entry of the order disposing of the last

pending postjudgment motion directed against the judgment or order).

Daniel contends that because Mary took no action on the

contempt petition for two years, she abandoned the claim. He further

argues that Mary did not mention her contempt petition in her motion

to vacate or in her motion to reconsider and that she filed the instant
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appeal without first seeking a determination on the rule to show

cause. Moreover, Daniel contends that Mary’s abandonment of her

contempt petition is equivalent to a dismissal of the petition by the

circuit court. Therefore, he concludes that the abandoned contempt

petition is no longer a claim in the action and Mary’s appeal in this

case is untimely. 

In support of his position, Daniel relies on Mortgage Electronic

Systems v. Gipson, 379 Ill. App. 3d 622 (2008), and Rodriguez v.

Illinois Prisoner Review Board, 376 Ill. App. 3d 429 (2007).

However, we find Daniel’s reliance on these cases to be misapplied.

In Rodriguez the court held that “it is the responsibility of the party

filing a motion to request the trial judge to rule on it, and when no

ruling has been made on a motion, the motion is presumed to have

been abandoned absent circumstances indicating otherwise.”

(Emphasis added.) Rodriguez, 376 Ill. App. 3d at 433. In Mortgage

Electronic Systems, 379 Ill. App. 3d at 628, the court cited Rodriguez

for the same proposition. The Rodriguez court further held that “[a]

subsequently filed notice of appeal following the failure by a litigant

to obtain a ruling on a motion serves as an abandonment of the

previously filed motion.” Rodriguez, 376 Ill. App. 3d at 433.

Rodriguez and Mortgage Electronic Systems are factually

distinguishable from the case at bar. In these cases, the parties raised

issues on appeal based on the substance of the petitions that were

never ruled on by the trial court and held to be abandoned. Here,

Mary’s appeal does not seek a ruling on her contempt petition. Mary

filed her contempt petition in the trial court, and a rule to show cause

was entered on September 25, 2003. The appellate court recognized

that Mary’s civil contempt petition was still pending at the time of her

appeal. 376 Ill. App. 3d at 759. There is no evidence in the record to

indicate that Mary intended to abandon the contempt petition. Nor is

there evidence that Daniel successfully moved to dismiss the petition

or that the trial court dismissed the petition sua sponte. The passage

of time in itself does not mean that the contempt proceeding was

dismissed. See, e.g., Hogan v. Braudon, 40 Ill. App. 3d 352, 354-55

(1976) (where the defendants made no motion to dismiss the lawsuit,

and the trial court did not dismiss suit on its own motion, 12-year

delay did not constitute dismissal as a matter of law). We reject

Daniel’s contention that Mary abandoned her contempt petition, and
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we find that the contempt petition was pending and undetermined at

the time of Mary’s appeal in this case.

Accordingly, we hold that the trial court’s order disposing of the

parties’ maintenance petitions was not a final appealable order.

Because Mary’s contempt petition and the two maintenance petitions

raised claims for relief in the same action, the order terminating

maintenance was final as to fewer than all claims in the action.

Mary’s appeal, filed before the resolution of her contempt petition

and without a Rule 304(a) finding, was premature. See 210 Ill. 2d R.

304(a). A premature notice of appeal does not confer jurisdiction on

the appellate court. Marsh, 138 Ill. 2d at 469. Therefore, while we

reject the reasoning of the appellate court, we affirm the appellate

court’s dismissal of the appeal for lack of jurisdiction.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the appellate

court.

Appellate court judgment affirmed.