Dept. of Public Aid v. Lekberg

No. 2--97--0074
_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
_________________________________________________________________

THE DEPARTMENT OF PUBLIC AID, ) Appeal from the Circuit Court
on behalf of K. W., a Minor, ) of Du Page County.
)
Plaintiff-Appellant, ) No. 93--F--1093
)
v. )
)
ROGER LEKBERG, ) Honorable
) Mark W. Dwyer,
Defendant-Appellee. ) Judge, Presiding.
_________________________________________________________________

JUSTICE DOYLE delivered the opinion of the court:
Plaintiff, the Department of Public Aid, on behalf of K.W., a
minor, appeals an order of the circuit court of Du Page County
requiring defendant, Roger Lekberg, a noncustodial father, to pay
retroactive child support for K.W. pursuant to a previous
declaration of parentage. We conclude that the order appealed from
was not final and appealable; therefore, we dismiss the appeal for
lack of appellate jurisdiction.
On July 30, 1993, plaintiff filed a petition to adjudicate
parentage of K.W. against defendant. An agreed order declaring
defendant to be the biological father was entered on October 20,
1994, two weeks after K.W. attained the age of 18 years. The
agreed order did nothing more than to declare paternity. All other
issues incident to the determination of paternity were expressly
reserved.
On August 20, 1996, the trial court conducted an evidentiary
hearing regarding only the issue of defendant s responsibility for
retroactive child support. On August 30, 1996, the court entered
a judgment against defendant for retroactive child support in the
amount of $29,700. Neither the hearing nor the order addressed any
of the other reserved issues raised by plaintiff s petition to
adjudicate parentage, including current support, reimbursement for
expenses of pregnancy and delivery, health insurance, and payment
for blood tests. Both the August 30 order and a December 18, 1996,
order denying the custodial mother s motion to reconsider contained
Rule 304(a) (155 Ill. 2d R.304(a)) findings by the trial court.
Plaintiff now appeals, seeking to challenge the amount of the award
of retroactive child support.
Although the parties agree that this court is vested with
appellate jurisdiction, we have an independent duty to ensure our
jurisdiction is proper. Where an appellate court has reviewed the
merits of a case when it had no jurisdiction to do so, its decision
must be vacated. Franson v. Micelli, 172 Ill. 2d 352, 355 (1996).
We are presented with the issue of whether the August 30,
1996, order determining retroactive child support but leaving
unresolved the other issues raised in plaintiff s petition was
appealable or could be rendered appealable by virtue of the trial
court s certification that [t]here is no just reason to delay the
enforcement and/or appeal of this order - it being a final and
appealable order.
Appellate jurisdiction is limited to reviewing a final
judgment that determines the litigation and disposes of the
parties rights on either the entire controversy or some definite
and separate part of it. In re Marriage of Verdung, 126 Ill. 2d 542, 553 (1989). An order declaring parentage does not qualify as
a final judgment if it does not at least rule on the amount of
child support the defendant will be required to pay. Franson, 172 Ill. 2d at 355.
In Department of Public Aid ex rel. Corrigan v. Hawkins, 187
Ill. App. 3d 139 (1989), this court considered whether an order
finding paternity and providing for current child support, but
reserving ruling on other issues, including retroactive support and
apportionment of childbirth and related medical expenses, could be
considered final. Following People ex rel. Driver v. Taylor, 152
Ill. App. 3d 413 (1987), we held that the order was not final and,
therefore, not appealable. In doing so, we rejected the argument
that the reserved matters were merely incidental issues not bearing
on finality. Noting that our supreme court, in Deckard v. Joiner,
44 Ill. 2d 412 (1970), enumerated those issues which it considered
incidental, i.e., enforcement of the support order and any
increases in support deemed necessary at a later date, we held that
retroactive support and childbirth expenses could not be regarded
as incidental or collateral. We noted that the supreme court
stated that the paternity order in question in Deckard was not
final and appealable, 'because it provided that jurisdiction
would be retained for the determination of a matter of substantial
controversy between the parties, viz., the amount of support and
expenses for which defendant was liable.' (Emphasis added.)
[Deckard,] 44 Ill. 2d at 417. Corrigan, 187 Ill. App. 3d at 141.
In the present case, a substantial element of defendant s
potential liability was resolved by the August 30, 1996, order that
determined the amount of retroactive support. However, the order
left pending other financial issues of potential importance, i.e.,
defendant s responsibility for the expenses of pregnancy and
delivery, blood testing, health insurance, and child support for
the period of time between the filing of the petition to declare
parentage and the child s attaining majority.
It is a matter of common knowledge that the expenses of
pregnancy and childbirth can be substantial. The record does not
reflect what amount of the expenses were covered by insurance. We
decline to speculate that the amount of pregnancy and childbirth
expenses not covered by insurance would necessarily have been
inconsequential, as suggested by plaintiff. Plaintiff also
contends that, because defendant s liability for current support
and health insurance would be limited to a period of 14 months in
view of the child s attaining majority only 14 months after the
filing of the petition, we should regard this liability as de
minimus. Even if defendant s liability for this item was no more
than $1,900, as suggested by plaintiff, it is nonetheless an issue
to be resolved by the trial court before its determination of
expenses can be considered final. Accordingly, we conclude that
plaintiff s appeal from the court s determination only of paternity
and retroactive support is premature because there has yet to be a
final order adjudicating defendant s liability for child support
and expenses.
Although plaintiff s brief acknowledges that the judgment
order of August 30, 1996, is not in and of itself a final and
appealable order because it fails to resolve all pending economic
issues, plaintiff contends that the trial court s Rule 304(a)
finding rendered the order final and appealable.
Rule 304(a) makes possible an appeal from an order that does
not resolve an entire proceeding if there is an express finding
that there is no just reason for delaying enforcement or appeal,
but the mere insertion of such a finding does not make a nonfinal
order final and appealable. Rather than making the judgment final,
a Rule 304(a) finding simply makes appealable a final order where
multiple parties or multiple claims are involved in the proceeding.
Baldassone v. Gorzelanczyk, 282 Ill. App. 3d 330, 333-34 (1996).
Plaintiff suggests that our decision in Corrigan is
distinguishable because we noted there that the order in question
did not contain a Rule 304(a) finding. We disagree. Fundamental
to our decision in Corrigan was a determination that the reserved
matters of childbirth expenses and retroactive support were not
incidental to the parties rights. The failure to resolve those
matters, therefore, made the order nonfinal, and the appeal
premature. We went on to say that even if we were to hold that
the remaining issues were incidental matters which would not
prevent the support order from being final, the result must be the
same [because of the absence of Rule 304(a) language]. (Emphasis
added.) Corrigan, 187 Ill. App. 3d at 143. This is not the same
as saying that the insertion into the order of 304(a) language
would have allowed an appeal from the order when nonincidental
issues remained unresolved, as occurred here.
In holding that a paternity order that decided only the issues
of parentage and temporary support while reserving other
substantial support issues was not final and appealable despite its
Rule 304(a) language, the court in Baldassone reasoned as follows:
An analogous situation occurs in dissolution of marriage
cases. The numerous issues raised in a dissolution of
marriage case are not appealable under Rule 304(a) until all
matters are finally resolved. In re Marriage of Leopando, 96 Ill. 2d 114, 119, 449 N.E.2d 137 (1983). Instead of
representing separate, unrelated claims, they are separate
issues relating to the same claim. In re Marriage of
Leopando, 96 Ill. 2d at 119. Similarly, a complaint seeking
a determination of paternity and child support advances a
single claim, not separate, unrelated claims. See Deckard, 44 Ill. 2d at 417. Baldassone, 282 Ill. App. 3d at 334.
See also Elkins v. Huckelberry, 276 Ill. App. 3d 1073, 1077-78
(1995).
Although the supreme court in Franson recognized the issue of
whether the Leopando rule is applicable to paternity cases, the
court found it unnecessary to address the question since no written
Rule 304(a) finding was made in the case under review. Franson,
172 Ill. 2d 352, 358.
We find the analogy to the Leopando rule to be useful in
resolving the present issue of appellate jurisdiction. As in
dissolution of marriage cases, we can see no compelling reason for
allowing piecemeal appeals when matters of child support or
expenses, as in the present case, have been only partially
determined by the trial court.
Accordingly, we conclude that this appeal must be dismissed
for lack of appellate jurisdiction.
Dismissed.
COLWELL and HUTCHINSON, JJ., concur.