First District Appellate Court Finds that Supreme Court Rule 306(a)(5) Does Not Grant Review of Orders Involving Temporary Child Support and Maintenance

April 10, 2017 3:30 PM | Anonymous member (Administrator)

By Kevin R. Malloy
Partner, Forde Law Offices LLP

Can the appellate court allow a Rule 306 interlocutory appeal of a temporary order setting child support and maintenance payments? After first doing so, the First District took a closer look and decided that it could not, and thus dismissed an appeal for lack of jurisdiction in the case of In reMarriage of Dougherty, 2017 IL App (1st) 161893.

Rule 306(a)(5) allows parties to petition for leave to appeal from “interlocutory orders affecting the care and custody of or the allocation for parental responsibility for unemancipated minors.” Ill. Sup. Ct. R. 306(a)(5) (emphasis added). At issue in In re Marriage of Dougherty was whether temporary orders entered by the trial court awarding child support and spousal maintenance could be appealed under that Rule. No issues were raised regarding custody.

After the appellate court had granted the petitioner’s petition for leave to appeal, the respondent moved for reconsideration and/or to dismiss for lack of jurisdiction. The court took the motion with the case. In its opinion, after first noting its obligation to consider its jurisdiction at any time, the appellate court framed the jurisdictional issue as whether the phrase “orders affecting the care and custody” of minor children in Rule 306(a)(5) referred only to orders relating to the custody of minor children. The court held that it does, and dismissed the appeal.

The petitioner had argued that the temporary child support order concerned the “care” of the child, as did maintenance, since it affected the financial circumstances of the custodial parent. But the petitioner did not cite any relevant authority to support his position. In contrast, the First District pointed to a number of sources to support its construction of Rule 306(a)(5).

The court first noted that the Illinois Supreme Court in Gill v. Gill, 56 Ill. 2d 139, 143-44 (1973), stated that the “obligation of the father to support his minor child is not affected by the decree…granting the care and custody of his child.” Thus, that use of language was relevant in clarifying that “care and custody” is separate from support. In re Marriage of Dougherty, 2017 IL App (1st) 161893, ¶ 9.

Next, the First District pointed to Rules Committee comments to the March 2016 amendment to Rule 306, which reflected changes of the term “custody” to “allocation of parental responsibilities” in the Illinois Marriage and Dissolution of Marriage Act. Those comments specifically focused on the term “custody”, and thus did not suggest that Rule 306(a)(5) extended into temporary orders on “child support and maintenance.” In re Marriage of Dougherty, 2017 IL App (1st) 161893, ¶¶ 10-11.

Further, the First District noted, Rule 306(a)(5) provides that once the petition for leave to appeal has been granted, Rule 311(a)’s expedited procedures apply. Rule 311(a), in turn, states that the expedited procedures in that rule shall apply to “interlocutory appeals in child custody or allocation of parental responsibilities cases from which leave to appeal has been granted pursuant to Rule 306(a)(5).” Ill. Sup. Ct. R. 311(a). That rule further provides, in contrast, that a reviewing court may use the expedited procedures in an appeal from an order “affecting other matters, such as support.” In re Marriage of Dougherty, 2017 IL App (1st) 161893, ¶ 12 (quoting Rule 311(a) (emphasis by court)).

Finally, the Rules Committee’s comments for Rule 311(a) offered additional guidance, noting that its 2010 amendment was “intended to clarify that the rule addresses only the procedures to be followed in order to expedite disposition of child custody appeals.” In re Marriage of Dougherty, 2017 IL App (1st) 161893, ¶ 14.

Interpreting Supreme Court Rules the same as statutes, the appellate court applied the doctrine of in pari materia to read Rule 306(a)(5) and Rule 311(a) together, so as to give them “harmonious effect.” The First District concluded that both rules “relate to expedited interlocutory appeals involving custody or the allocation of parental responsibilities,” and that “neither rule, nor any comment suggests that a temporary support of maintenance order may be brought independently.” In re Marriage of Dougherty, 2017 IL App (1st) 161893, ¶ 15. Thus, the court would not read additional language into the rules in order to confer jurisdiction. Id. Considering the language of the rules together, the court held that “Rule 306(a)(5) does not provide for petitions for leave to appeal from temporary support and maintenance orders.” Id. ¶ 16. Thus, it did not have jurisdiction and dismissed the appeal.

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