Docket No. 105648.



### IN THE SUPREME COURT OF THE STA TE OF IL LINOIS

In re MARRIAGE OF DANI EL GUTMAN, Appellee , and MARY GUTMAN, Appellan

t.

Opinion filed November 20, 2008.

JUS TICE BURKE delivered the judgment of the cour t, w it h opinion. Chief Justice Fitzger

ald and Just

ices Fr eeman, T homas, Kilbride, Garman, and Karmeier concur red in the judgment and opinion.

OPINION

This case concerns whether the trial c ourt’s order terminating maintenance to Mary

Gutman wa s f

inal and a

ppealab le 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 pendi ng. The appellate court held that, although a civil contempt petition is part of the underly

ing act ion, it doe s not, for

purposes of Rule 304(a), raise a “claim for relief” in that action. Thus, according to the appella te court, the circuit court of Lake County’s order ter

minating maintenance was final and appealable without a Rule 304(a ) find ing. The appellate court

dismissed Mary’s appea

l for lack of jurisdiction,-2- finding it untimely since it was filed more than 30 da ys after the

final order determining maintenance. 376 I ll. App. 3d 758.

BACKGROUND The parties’ marriage was dissolved on September 12, 1996. At th e time of dissolution, the trial court reserved the issue of maintenance. In July 1999, the c ourt e ntered an order requiring Da niel to pay maintenanc e in the amount of $2,900 p er month for a period of three ye ars. OnJune 21, 2002, Mary filed a motion seeking to continu e a nd

mo dify the mainte

nance a ward. On July 3 , 2002, the

trial c our t entered an agreed order g

ranting Danieluntil Aug

ust 7, 2002 , to file

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

ments until further order of the court. On Aug ust 20, 2003, Daniel f

iled a moti on seekin

g to modify the judgment f or dissolution and to terminate maintenance. OnSeptembe

r 18, 2003 , Mary

filed a p etit ion fo r indirec t civil contempt , alleging that Daniel had stopped maki n g maintenance pay ments as o f September

1, 2003, in violation of the July 3, 2002, order. On September 25, 2003, the court entered a rule to sh ow cause against Daniel. The court set a date for

hearing on the rule, together with the pa

rties’ pe nding ma intenanc e petition s. Mary did not appear at the scheduled hearing . The court granted Daniel’s petition to terminate maintenance and dismissed Mary ’s contempt pe ti ti on . M ar y su cc es sf ul ly moved to vacat

e both judgmen ts, buton the next hearingdate, Mary again failed to appear. The court once again gr anted Daniel’s motion to terminat e maintenance and dismiss ed with pr ejudice Mary’ s motion to continue and modify maintenance . The court’s written order, entered

on June 23, 2005, did not address the con tempt 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 trialcourt denied. Thirty- five days later, Ma ry filed a motion to reconsider. The court denied the motion and Mary appealed. The appellate court di smiss ed Mary’ s appeal for lack of jurisdiction. 376 Ill. App. 3d 758 . The court held that, despite the-3- pendency of the contempt petition, the trial court’s judgment granting Daniel’s petition to

terminate maintenance was a final ju dgment a s to all “claims for relief” in thedissolution action, s ubject to Rule 303(a). The court held that the contempt petition did not raise a “claim for relief” in the disso lution ac tion, whic h would ha

ve requi red a Rule 304(a) finding, but that it was an original special proc ee ding independent

of the und

erly ing cas e. 376 Ill. App. 3d at 764. Bec ause Mary failed t o file her appeal within 30 days of the order granting Daniel’s petition or

within 30 da

ys of the d enial of

her motion

to vacate, her appeal was untimely . 376 Ill. App. 3d at 759. We allowed Mary ’s petition for leave to appeal (2 1 0 Ill. 2d R. 315(a)).

ANA LYSIS At the outset, we consider a threshold issue–whether

this appeal should be dismissed

because the appellate court judgme nt before us is no longer legally

in effect. Nine weeks after one panel of the Appell ate Court, Second District, filed its opinion in the case now before us, a separate panel of the court expressly “overr u led” that decision in In re Mar

riage of Kno err , 377 I ll. App. 3d 1042 (2007). Approximat

ely one month l ater, a

third panel of the

Appellat e Court, Second District, entere d a ruling consiste nt with its ho lding in Knoe rr

. See In re Marriage of Schwieger , 379 Ill. App. 3d 687 (2008). In Schwieger , the author of the deci s ion before us, Justice Grometer, special ly c oncurre d, stating that he sti ll be lieved the judgment was correc

t, but that he would abide by the Knoerr decision “in the interest of providing clear guida nce for our constituen

t s.” Schwieger , 379 Ill. App. 3d at 690 (Grometer, J. , specia lly concurring). Knoerr was decided on December 21, 2007. The pe tition for leave to appeal i

n this cas e was g

ranted on January

30, 2008. I

f, in fact, Knoerr overruled the decision before us, then we would have granted leave to appeal in a case that is no longer leg ally in effe ct and dismissal would be warranted. We find, however, that the decision before us has not been overruled. A panel, division, or district o f the app ellate

court has no authority to overrule another

panel, division, or district. See Gillen v.-4- State Farm Mutu al Autom obile Insurance Co. , 215 Ill. 2d 381, 392 n.2 (2005) (“A

decision of our ap pellate court may only

be reversed

or overruled by

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

co nt ra ry, Knoerr

did not overrule this case. The Knoerr panel created

a conflic t of authority

by d isagre eing wi

th a deci sio n from another panel of a c ourt o f equal sta ture . We conclud e, therefore, that the appella te court decision we are reviewi ng rema ins in eff ect. Turning to the subs tance of this appeal, Mary c ontends that the appella te court incorre ctly

held that the trial court’s order terminating maintenance wa s a fi na l a nd ap pe al ab le or de r. Ac co rd in g t o M ar y, a postdissolution order that does not dispose of a pending petition

for rule to show cause does not constitute a final and appealable or der in the ab sence o f a Rul e 304( a) fin ding. Ac co rd in gl y, she contends that without a final and app e alable order, th e appellate court was without jurisdiction to rule and the judgment must be vacated. In lig

ht of Mary ’s ar gument, we first address whether the order te

rminating maintena nce was a final order.

I. Jurisdiction The ques tion before us, whether an order is final a nd appea lable absent a Rule 304(a) findi ng where a contempt petition remains pendi ng, is one of law, which we review de novo

. Robidoux v. Oliphant , 201 Ill. 2d 324, 332 (2002). Rule 304( a) provi des, in pe rtinent pa rt: “If mu l tiple parties or multiple claims for relief are involved in an action, an appeal may be tak en from a final judgment as to one or more but

fewer than all of the parties or claims only if the trial court has ma de an e xpress wr itten finding that there is no j ust reason for delay ing either enf orcement or appeal or both. *** In the a bsence of such a findi ng, any judg

ment that adjudicates few er tha n all the claims or the rights and liabilities of fewer than all the parties is not enfor

ceable or appea lable an d is subject to rev ision at any time bef ore the entry of a

judgment adjudicating all the claims, rights, and liabilities of all the parties. ” 210 I ll. 2d R. 304(a).-5- “An order is final an d appea lable if i t termina te s the li tigation be tween the parties on the merits or disposes of the rights of the parties, either on the entire controversy or a sep arate part thereof.” R.W. Dunteman Co. v. C/G Enterprises, Inc. , 181 I ll. 2d 153, 159 (1998). Absent a Rule 304(a) finding, a final order disposing of fewer thanall of the claims is n

ot an appe alable order an

d does not b ecome appe alabl e until all of the claims have been resolved. Marsh v. Evangelical

Covenant

Church of Hi nsdale , 138 Ill. 2d 458, 464 (1990). Th is c ourt has defined a “claim” as “any right, liability or matt er raised in an action.” Marsh , 138 Ill. 2d at 465. The rule wa s meant “to discourage piecemeal a ppe als in the abs ence of a just

reason and to remove the uncertainty which existed when a final judgment was ente

red on fe

wer than all of the

matters i

n controversy.” Marsh , 138 Ill. 2d at 465. The appellate court

below held that a contempt petition, altho ugh

a “part” of the underlying

action, does not raise a

“claim f or relie f” in that action wi thin the me aning o f Rule 304 (a). 376 Ill. App. 3d at 763. Therefore, accord

ing to the court, the order terminating maintenance

was a final order as

to all “cl aims” in the dissolu ti on action and required no Rule 304(a) finding to be final and appealabl e. We disagree. The appellate court held that the pending contempt petition in

this

caseis ent irely sep arate f

rom th e diss olut ion p roceed ing. Inso doi ng, the court departed from two previous decisions in whichthe opposi te
con clu sion was reached. See In re Mar riage of Col

angelo , 355 I ll. A pp. 3d 383, 388-89 (2005) (absent a Rule 304(a) finding , a party could not appea

l the deni al of a c ivil conte mpt petition whil e a postdissolution petition to increase child support was pending); In re Marriage of Alyassi

r , 335 Ill. App. 3d 99 8 (20 03) (abs ent a Rule 304(a) findin g, a party could not appeal a judgment on a postdissolution petit ion to increa se child s upport wh

ile a civi l contempt petition was pending). The appella

te court he ld that “[a]lthough a civilcontempt petition is a part of the underlying

action, it is nevertheless ‘an original special procee ding, collater al to, and independent of, the case in which the contempt arise s.’ ” 3 76 Ill. A pp. 3d at 762 , quot ing Kazub owski v. Kazubowski , 45 Ill. 2d 405, 415 (1970). I n relying on the Kazubowski decision, however, the ap pella te cou rt igno red lan guage immediate ly-6- preceding and following the quoted

statement. What we actually held in Kazubowski wa s: “o rd in ar il y an adjudication in a contempt proceeding

is final a nd appea lable be cause it

is a n origina l special procee ding, collateral to, and i nd ependent of, the case in which the contempt arises where the imposition of the sanction does not directly

a ffect the outcome of the principal action .” (Empha ses a dded. ) Kazubowski , 45 Ill. 2d at 414-15. The appellate court

disregarded

the language limiting the original and special status to an adjudication of conte mpt. The court unjustifia bly expanded

the la nguag e in Kazubowski to apply to the pending contempt

petition in the case at bar. No other co urt has he ld

a pe nding

contempt petition to be an independent action sep arat e fromthe underlying

case. Rather, the rule, which this cou rt has consiste ntly held, is that only

a contem

pt judgment

that impose

s a sanction is a final , appea lable or der. Se e Peo

ple ex rel. Scott v. Silverste in , 87 Ill. 2d 167, 172 (1981) (“[t]he imposition of a sanction for conte mp t is final and appealable because, althoug h occurring within the context of anoth er proceeding and thus having the appearanceof

be in g i nt er lo cu to ry, it is an original speci al pro ceedin g, collateral to and independent of, the case in which the contempt arises”); Valencia

v. Valen cia , 71 Ill. 2d 220, 228 (1 97 8) (“ Ge ne ra ll y, it is h eld that where no punishment has been imposed an orde r adjudica ting one to be in contempt is not final and is no t reviewable”); People ex

rel. General Motors Corp. v. Bua , 37 Ill. 2d 180, 191 (196 7) (“The

imposition o f a fine

or imprisonment as a sanctionfor cont

empt is final and ap

pealabl e becau se it

is an original special procee ding”) ; Lester v. Berkowitz , 125 Ill. 307, 308 (1888) (“Had the court attempted to enforce obedience to its ord er by the imposition of

a fine ***, or by

a definitive term of imprisonment, as for contempt of court, the judgment of thecourt imposing such fine

or imprisonme

nt would be

final, and from which an appeal might be taken”). Moreover, Supreme Court Rule 304(b)(5) prov ides that “ [a]n order finding a person or entity in contempt of

court which imposes

a monetary or othe

r penalty” is a

ppealable wi thout a

Rule 304(a) finding. 210 Ill. 2 d R. 304(b)(5). It is clear from the language of the rule that only contem

pt judgments that imp ose a pen alty are final, appeala ble orders. Until the entry of a co ntemp t orde r impo sing a-7- sa nction, a contempt petition provides no basis for obtaini n g immediate

appellate jurisdiction

over any pa

rt of the ca se under

Rule 304(b)(5). The rationale for authorizing im mediate appellate jurisdiction under Rule 3 04(b) (5) up on th e entry of a conte mpt o rder i mpos ing a penalty does not appl y when a c ontempt petition is merely pending before the court. Litigation proce edings may linger for y

ears before

a final judgment and the subject of a cont empt judgment may f ace incarceration

or forfeiture of pro perty . It would be un reasona ble to force a party

to wait until

final judgment on all issues before allowing

anappeal on the contempt ruling. Rule 304(b)(5) codifie s this disti nction b y allowing the contemnor to seek immediate review of the finding and sanction imposed. However, this justification for tr eatingcontempt

petitions a s separa

te proce edings f

or purpos es o f appeal is not pre sent whe n th ere has be en no ruling and sanction imposed. Ac co rd in gl y, we reject the reasoning of the appellate court and hold that Mary’s pe

nding contempt

petition was nota separ

ate cla im independent of the dissolution action.

II . Abandonment Daniel concedes tha t the appe llate cou rt was inc orrect

when it held that the c ontempt petit ion was a separa te, indep endent c laim. Nevertheless, he con tend s that the appellate court’s finding that Mary’s appeal is untimely is corre ct. Ac cordi ng to Daniel, Mary abandoned

her contempt pe ti ti on by failing to obtain a ruling in the trial court before she file d her appeal. He contends that the trial court’s order terminating maintenance was a final order

that disposed of all claims. Thus, Mary’s a ppeal of that order was untimely , having been filed more than 30 day s after the court’s denial of her motion to

vac ate. Se e 210 Ill. 2d R. 303(a)(1) (notice of appeal must be filed within 30 days after t

he entry of the or

der dispo sing of t

he last pending postjudg

ment motion

directe d agains

t the judgment or o rder). Daniel contend s t hat because Mary took no action on the contempt petition f or two y ears, 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-8- appeal without fi

r st s eeking a determination on the rule to show

cause. Moreover, Daniel contends that Mary ’s abandonment of her contempt petiti on is equivalent to a dismissal of the petition by the circuit court. Therefor

e, he concludes t

hat t he abandoned contempt petition is no long er a cla im in the ac

tion and Ma

ry ’s appea

l in this case is untimely. Insupport of his position, Daniel relies on Mortgage Electron ic Systems v. Gipson , 379 Ill. App. 3d 62 2 (2008), and Rodriguez v. Illinois Prisoner R eview Bo ard, 376 Ill. App. 3d 429 (2007). However, we find Daniel’s reliance on these ca ses to be misapplied. In Rodrigue

z th e c ou rt he ld th at “i t i s t he re sp on si bi li ty o f the party fil ing a motion to request the trial judge to rule on it, and whe n n o ruling has been

made on a

motion, the

motion is p resumed t o have been abandoned absent circumstances ind icat ing otherwi

se .” (Emphasi s added.) Rodriguez , 376 I ll. A pp. 3d at 433. In Mortgage Electron ic Systems , 379 Ill. App. 3d at 628, the court

cited Rodriguez for the same proposition. The Rodriguez court further held that “[a] subseque ntly filed notice of

appeal following the failure by a litigant t o 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

Electron ic Syste

ms are fa

ctually distingu ishable from the case at bar. In these cases, the pa rties raised issues on appeal ba sed on t he 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 c ontempt petition. Mary filed her cont empt petit ion in the trial court, and a

rule to show cause
was entered on September 25, 2003. Theappellate court recognized that Mary’s c ivil contemptpetition was still pending at the time of her appeal. 376 Ill. App. 3d at 759. There is no evidenc e in the record to indicate that Mary intended

to abandon the contempt petition. Nor is there evidence that Danielsuccess fully moved to di smiss the petition or that the trial court dismissed the petition sua sponte . The p assage
o f time i n 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 defe ndants made no motion to dismiss the

lawsuit, and th e tri al 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 a bandoned her contempt petition, and-9- we find that

the contempt

petition was pending and undetermined at the time of Mary’ s appeal in this case. Ac co rd in gl y, we hold that the trial court’s order disposing of the parties’ ma inten ance petitions was not a final appealable order

. Becau se Mary’s

contempt petition and

the two maintenance petitions raised claims for relief in the sam e action, the order terminating maintenance was final as to fewer than all cl aims in the action. Mary’s appeal, filed before the resolution of her contempt petition and with out a R ule 30 4(a) fi ndin g, was premature. See 210 I ll. 2d R. 304(a). A premature notice of appeal does not confe r jurisdiction on the appellate court. Marsh , 138 Ill. 2d at 469. Therefo re, while we reject the reasoning of the appellate cour t, we affirm the appe llate court’s dismissal of the appeal for lack of jurisdiction.

CONCLUSIO

N For the foregoing reasons, we affirm the judgment

of the appe llate court.

Appellate court judgment affirmed.