{
  "id": 3514484,
  "name": "BARBARA D. CLARKE, Petitioner-Appellant, v. GERALD L. CLARKE, Respondent-Appellee",
  "name_abbreviation": "Clarke v. Clarke",
  "decision_date": "1988-03-04",
  "docket_number": "No. 86\u20142511",
  "first_page": "988",
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    "id": 8837,
    "name": "Illinois Appellate Court"
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  "last_updated": "2023-07-14T22:48:34.473456+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "BARBARA D. CLARKE, Petitioner-Appellant, v. GERALD L. CLARKE, Respondent-Appellee."
    ],
    "opinions": [
      {
        "text": "PRESIDING JUSTICE LORENZ\ndelivered the opinion of the court:\nPetitioner Barbara D. Clarke appeals from an order of the circuit court of Cook County requiring her to pay the attorney fees of respondent Gerald L. Clarke and those of a court-appointed guardian ad litem. Those fees were incurred as the result of a dispute between the parties concerning Barbara\u2019s refusal to comply with the terms of visitation ordered by the circuit court. Barbara also appeals from those portions of the order denying as untimely her motion for amendment of the judgment of dissolution of marriage or for a new trial.\nWe find that the order appealed from was not final and therefore dismiss this appeal.\nThe parties were married on June 17, 1961. They have two children: Heather, born January 29, 1969, and Jerold, born March 15, 1974. Heather is severely retarded and apparently cannot speak. Barbara filed her petition for dissolution of marriage on October 26, 1982. On May 3, 1985, the circuit court entered an order granting custody of the children to Barbara and providing for visitation by Gerald.\nOn January 27, 1986, Gerald filed a petition for rule to show cause seeking to have Barbara held in contempt of court for having denied him his right of visitation as to Heather on December 29, 1985, and January 12, 1986. On January 29, 1986, Barbara filed an answer and counterpetition in which she admitted to having unilaterally denied Gerald these visitation periods. She alleged that these denials were based on her belief that Gerald has sexually abused Heather during visitation periods. The sole evidence cited was a doctor\u2019s gynecological exam of Heather on November 1, 1985, which purportedly revealed an \u201cabnormally large opening of the hymen\u201d which the doctor doubted was self-induced. Barbara sought discharge of the rule to show cause and denial of visitation rights to Gerald, or alternatively, supervised visitation.\nAs a result of these allegations the court appointed a guardian ad litem for Heather. On April 18, and April 21, 1986, hearings were held on Barbara\u2019s counterpetition. Gerald\u2019s attorney reminded the court that he had a pending motion (apparently a reference to the petition for rule to show cause) which he still wanted the court to entertain, but stated that he had no objection to the court first hearing the testimony of Heather\u2019s doctor, as an accommodation to the doctor. No further reference was made to Gerald\u2019s petition during these proceedings. At the conclusion of Barbara\u2019s presentation of her evidence, the circuit court granted Gerald\u2019s motion for a directed finding, stating, \u201cI haven\u2019t seen any clear and convincing evidence indicating Mr. Clarke has sexually abused or molested Heather.\u201d In a written order entered that day, which recited that the matter heard was Barbara\u2019s petition, the court found that there had been \u201cno evidence\u201d of sexual molestation of Heather by Gerald. The order further stated that Barbara\u2019s petition was dismissed with prejudice and that the prior order of visitation remained in effect.\nSubsequently the guardian ad litem and Gerald\u2019s attorney filed fee petitions. Gerald\u2019s attorney sought payment of his fees by Barbara, alleging that Gerald should not be required to pay them \u201cbecause of the nature of the allegations [in Barbara\u2019s petition] and the proof presented.\u201d In response to the guardian ad litem\u2019s petition for fees Gerald also requested that Barbara be required to pay the entirety of those fees. Neither Gerald\u2019s attorney fee petition nor Gerald\u2019s answer to the guardian ad litem\u2019s petition specified the authority relied upon for requiring payment by Barbara.\nA hearing on these fee petitions was held July 24, 1986. The amount of fees requested was not disputed. Again counsel for Gerald did not specify the authority he was relying on for assessing fees against Barbara.\nAt the hearing the court also heard argument on Barbara\u2019s contention that she had filed a timely motion for new trial or amendment of judgment with respect to the order of dissolution of marriage; that order was entered March 25, 1986. On April 21, 1986, the circuit court had entered an order granting either party leave to file post-trial motions within 28 days. Barbara did not subsequently file such a motion, but at the July 24 hearings she contended that she had submitted such a motion directly to the court on April 21 and therefore had filed the motion in a timely fashion. Barbara has not included a copy of that motion in the record on appeal.\nOn August 15, 1986, the circuit court entered an order denying Barbara\u2019s motion for a new trial as untimely and ordering Barbara to pay the $3,250 in fees requested by the guardian ad litem and the $8,166.70 in fees requested by Gerald\u2019s attorney. The order also recited that all matters in the case had been resolved and that it was a final order, but it made no mention of Gerald\u2019s pending petition for a rule to show cause as to Barbara. This appeal ensued.\nOpinion\nPreliminarily we would note that the state of the record before us would make consideration of the parties\u2019 contention on the merits a difficult undertaking. As we have noted, the record does not establish what authority the circuit court relied on in requiring Barbara to pay the attorney fees at issue. The order appealed from recites that the circuit court considered the financial condition of the parties, but the parties have not included in the record on appeal the transcript of proceedings of the prior dissolution hearing at which the circuit court heard the bulk of the testimony concerning the parties\u2019 financial condition. Although the circuit court found that Barbara\u2019s motion for a new trial was not timely filed, the record is devoid of any specific finding by the court concerning Barbara\u2019s claim that the court had physically received that motion in court on April 21, 1986. However, we need not determine the effect of this inadequate record on this appeal, for we find that the order appealed from was not a final one. As a reviewing court we have a duty to consider, on our motion if necessary, whether we have jurisdiction to consider a case before us. (Archer Daniels Midland Co. v. Barth (1984), 103 Ill. 2d 536, 470 N.E.2d 290.) Here, as we have noted, the order appealed from did not dispose of the petition for a rule to show cause. Although in oral argument before this court Gerald has contended that the petition was abandoned, nothing in the record establishes that fact. Indeed, as we have noted, Gerald\u2019s trial counsel expressed an intent to follow through on the petition at the commencement of the hearing on Barbara\u2019s counterpetition.\nWe find the facts before us to be analogous to those in Pruitt v. Pruitt (1984), 129 Ill. App. 3d 50, 471 N.E.2d 1051. There a post-decree petition for a rule to show cause was filed to enforce payment of child support payments. The circuit court awarded judgment to the plaintiff for past-due child support, but expressly reserved its ruling on the amount of attorney fees to be awarded to the plaintiff. The appellate court on its own motion dismissed the appeal for lack of jurisdiction, finding that because the future award of fees could result in another appeal, the order awarding child support was not final. In this cause the court has dismissed Barbara\u2019s counterpetition and has awarded fees based on that dismissal. But the court has failed to dispose of the petition for rule to show cause which initiated this litigation. That petition cannot be deemed merely incidental to the ultimate rights adjudicated (see In re Purdy (1986), 112 Ill. 2d 1, 490 N.E.2d 1278), for its determination would necessarily involve some of the same issues pertinent to the award of fees, such as the good faith of Barbara\u2019s charges of sexual abuse. Thus the order from which Barbara appeals is not a final appealable order and we have no jurisdiction to hear it. Flores v. Dugan (1982), 91 Ill. 2d 108, 435 N.E.2d 480.\nFor the reasons set forth in this opinion, we dismiss this appeal for lack of jurisdiction.\nAppeal dismissed.\nSULLIVAN and MURRAY, JJ., concur.",
        "type": "majority",
        "author": "PRESIDING JUSTICE LORENZ"
      }
    ],
    "attorneys": [
      "Andrea M. Schleifer and M. Kaye Janes, both of Kaszak & Schleifer,",
      "P.C., of Chicago, for appellant.",
      "Carr & O\u2019Rourke Associates, of Chicago (Donald A. Carr and Roland P. Ernst, of counsel), for appellee."
    ],
    "corrections": "",
    "head_matter": "BARBARA D. CLARKE, Petitioner-Appellant, v. GERALD L. CLARKE, Respondent-Appellee.\nFirst District (5th Division)\nNo. 86\u20142511\nOpinion filed March 4, 1988.\nAndrea M. Schleifer and M. Kaye Janes, both of Kaszak & Schleifer,\nP.C., of Chicago, for appellant.\nCarr & O\u2019Rourke Associates, of Chicago (Donald A. Carr and Roland P. Ernst, of counsel), for appellee."
  },
  "file_name": "0988-01",
  "first_page_order": 1010,
  "last_page_order": 1013
}