Most people who have been either the petitioner or the respondent in a contested dissolution of marriage action know that they have a right to appeal from the final judgment. Even if they disagree with the trial court's decision on only one of the contested issues, such as property classification or division, child custody, child support, maintenance, or attorney fees, they have a right to ask the appellate court to review any portion of the judge's decision. In fact, most appeals are taken in just such circumstances. Waiting to appeal until the end of the case, however, may not be the only option available to the appealing party (the appellant). In certain circumstances, which do not necessarily occur in every case, a party who disagrees with a decision made during the progress of the case may immediately appeal that decision. Such appeals are called "interlocutory appeals."
In two situations, a party has the right to appeal an adverse decision immediately. The first, called a civil contempt proceeding, arises when one of the parties violates an order the judge previously entered and the other party asks the court to enforce its order. In such cases, if the party who violated the order had no acceptable reason for not complying, the court may impose a daily fine or order the party to jail until he or she obeys the order. In these cases, the party on whom the court imposed the punishment may immediately appeal the judge's ruling.
The second circumstance that permits an immediate appeal occurs when the court either imposes or refuses to impose an injunction on a party. An injunction is a court order that bars a party from taking some action that the party in ordinary circumstances would have an absolute right to take. During dissolution of marriage proceedings, however, a party may not have the right to take such action. Typical examples of such requests are petitions to bar unjustifiable spending, access to certain monies, or the sale of property, petitions to restrict visitation, to enter the other party's separate residence, or to continue with a separate divorce action filed in another county or state.
In addition to the interlocutory appeals a litigant has the absolute right to take, two other types of appeals require the permission of the appellate court. The first includes court orders dealing with the care and custody of a minor or a ruling after a contested hearing that the court has or doesn't have jurisdiction over a respondent. The party who objects to the order may file a petition with the appellate court asking that court to accept the appeal.
A second type of interlocutory appeal by permission involves what is known as a "certified question." In these cases, the trial judge "certifies" a specific question of law critical to the case that arises during the trial court proceeding, resolution of which will significantly aid the court in advancing the case toward its final resolution. Examples include the issue of when the 10-year statute of limitations for contract actions begins to run in a proceeding to reform a premarital agreement, whether past-due child support from a previous marriage becomes marital property if collected during a subsequent marriage, whether a guardian of a disabled adult has authority to file a petition for dissolution of marriage on behalf of the ward, and whether a petition to move the child out of state is automatically a request to modify a joint custody order. Appeals of certified questions do not occur often but, if appropriate, can resolve critical issues at an early stage of the proceedings and thereby prevent the court from an erroneous ruling.
Finally, if the trial court agrees, a party may appeal from a declaratory judgment entered during an ongoing dissolution case. Declaratory judgments conclusively resolve such issues as the validity and enforceability of a premarital agreement, the constitutionality of a statutory provision in the Illinois Marriage and Dissolution of Marriage Act, and whether a specific conveyance of property was or was not a gift.
In all circumstances involving an adverse ruling against a party on a major issue in a case, that party should consult with his or her lawyer whether that order may be appealed before the end of the case and whether such an appeal is critical enough to justify the expense. If the decision is affirmative, an interlocutory appeal, whether by right or by permission, may be a major step in the successful prosecution or defense of a dissolution of marriage case.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
