CourtListener opinion 9892101

Evidence quotes

Clean opinion text

2023 IL App (1st) 230505-U
 No. 1-23-0505
 Order filed October 20, 2023
 Fifth Division

 NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
 limited circumstances allowed under Rule 23(e)(1).
 ______________________________________________________________________________
 IN THE
 APPELLATE COURT OF ILLINOIS
 FIRST DISTRICT
 ______________________________________________________________________________
 In re MARRIAGE OF ) Appeal from the
 ) Circuit Court of
 KEITH FRISZ, ) Cook County
 )
 Petitioner-Appellant, )
 ) No. 19 D 3182
 and )
 )
 MARILYN FRISZ, ) Honorable
 ) Robert W. Johnson,
 Respondent-Appellee. ) Judge presiding.

 JUSTICE NAVARRO delivered the judgment of the court.
 Presiding Justice Mitchell and Justice Lyle concurred in the judgment.

 ORDER

¶1 Held: Because we lack jurisdiction over this appeal, we dismiss it.

¶2 In this dissolution of marriage case, petitioner Keith Frisz filed various motions attempting

to have the circuit court correct an alleged overpayment to respondent Marilyn Frisz from the plan

administrator of Keith's thrift savings plan. After the court denied Keith relief, he appealed.

However, the record on appeal showed that there was a pending motion for sanctions under Illinois
 Supreme Court Rule 137 (eff. Jan. 1, 2018) filed by Marilyn. The court never made an express

written finding that there was no just reason for delaying appeal pursuant to Rule 304(a) (eff. Mar.

8, 2016). We, therefore, dismissed that appeal for a lack of jurisdiction because of Rule 303(a)(2)

(eff. July 1, 2017). In re Marriage of Frisz, 2023 IL App (1st) 220530-U (Frisz I). Once our order

issued, Keith once again appealed and included a circuit court order in the appellate record that

had not been included in Frisz I, showing that following the briefing in Frisz I and before we

entered our disposition, Marilyn had withdrawn her Rule 137 motion for sanctions. Despite the

availability of this order, Keith never attempted to supplement the record in Frisz I.

¶3 In this current appeal, as he did in Frisz I, Keith contends that, when the circuit court

determined that his thrift savings plan administrator did not overpay Marilyn, it erroneously

interpreted the parties' marital settlement agreement and its own qualified domestic relations order

contrary to the plain language of both and the Illinois Marriage and Dissolution of Marriage Act

(Act) (750 ILCS 5/101 et seq. (West 2020)). However, we again lack jurisdiction to entertain the

merits of this appeal and for the reasons that follow, we dismiss it.

¶4 I. BACKGROUND

¶5 We will repeat from our prior order in Frisz I the facts necessary for an understanding of

this appeal. In re Marriage of Frisz, 2023 IL App (1st) 220530-U.

¶6 In April 2020, the circuit court entered a judgment for a dissolution of marriage that

incorporated the parties' marital settlement agreement, which set forth how to divide Keith's thrift

savings plan account, a retirement plan for federal employees. Thereafter, in July 2020, the circuit

court entered an agreed qualified domestic relations order to implement the parties' agreement on

the thrift savings plan account. On January 26, 2021, according to a correspondence from Keith's

plan administrator, $192,873.65 was transferred from Keith's thrift savings plan to Marilyn.

 -2-
 ¶7 In May 2021, Keith filed with the circuit court a combined petition for an adjudication of

indirect civil contempt and a motion to enforce prior court orders. Keith asserted that the plan

administrator inadvertently overpaid Marilyn by about $42,000. He requested, among other things,

that Marilyn be ordered to return the overpayment to the plan administrator. Marilyn moved to

dismiss Keith's combined filing, arguing that the plan administrator had determined that it paid

her the correct amount under the qualified domestic relations order.

¶8 On August 30, 2021, the circuit court entered an order continuing the matters. Thereafter,

in September 2021, Keith filed a "Motion for Postjudgment Relief" pursuant to section 510 and

511 of the Act (750 ILCS 5/510; 5/511 (West 2020)). He contended that his plan administrator had

improperly included his own post-marital contributions and the gains from those contributions in

the amount that it had transferred to Marilyn. Keith argued that, as a result, Marilyn received an

overpayment of $42,641.14, and he sought an order requiring Marilyn to return that amount to the

plan administrator. Marilyn moved to dismiss Keith's motion for postjudgment relief. Later in

September 2021, Keith filed a motion to amend and combine his petition for an adjudication of

indirect civil contempt and motion to enforce court orders with his motion for postjudgment relief.

Marilyn filed a response objecting to Keith's request to amend.

¶9 On November 22, 2021, following a hearing, the circuit court entered a written order

disposing of all of the parties' open filings. In this order, the court denied Marilyn's motion to

dismiss Keith's combined petition for an adjudication of indirect civil contempt and motion to

enforce prior court orders as well as her motion to dismiss Keith's motion for postjudgment relief.

The court also denied Keith's combined petition for an adjudication of indirect civil contempt and

motion to enforce prior court orders, his motion for postjudgment relief, and his motion to amend

 -3-
 and combine. The court also denied Marilyn's requests for attorney fees. The order did not contain

the court's reasoning for its rulings, and there is no transcript of the hearing in the record on appeal.

¶ 10 Following the hearing, Keith's attorney filed with the clerk of the circuit court,

"Petitioner's Exhibits of Record," which included various documents such as the agreed qualified

domestic relations order on Keith's thrift savings plan account and other documents relating to that

account. Thereafter, Marilyn filed a motion to strike the exhibits from the record, arguing that the

exhibits were improperly filed and could not be made part of the common law record. Marilyn also

filed a motion for attorney fees pursuant to, inter alia, Illinois Supreme Court Rule 137 (eff. Jan.

1, 2018) as a sanction for the costs she incurred in filing the motion to strike the exhibits. In

response to Marilyn's motion to strike the exhibits, Keith argued that the motion to strike was moot

because he had filed a motion to reconsider that incorporated the exhibits at issue. He also asserted,

among other things, that during the November 2021 hearing, he sought to testify with the use of

the exhibits and made an offer of proof as to that evidence and that the court denied him the

opportunity to testify and present evidence. Keith also moved to dismiss Marilyn's motion for

attorney fees.

¶ 11 In December 2021, Keith filed a motion to reconsider the circuit court's judgment on his

combined petition for an adjudication of indirect civil contempt and motion to enforce prior court

orders, his motion for postjudgment relief, and his motion to combine and amend. In addition to

responding to Keith's motion to reconsider, Marilyn also filed an "Objection to Exhibits," in which

she raised additional objections to Keith's filing of the exhibits.

¶ 12 On March 18, 2022, the circuit court denied Keith's motion to reconsider. In the court's

written order, the court also scheduled a hearing for argument on Marilyn's pending motion for

 -4-
 attorney fees under Rule 137, Keith's motion to dismiss that motion for attorney fees, Marilyn's

motion to strike the exhibits from the record, and Marilyn's additional objection to those exhibits.

¶ 13 On April 15, 2022, before the date of the scheduled hearing on the remaining issues in the

case, Keith filed a notice of appeal seeking review of the circuit court's November 22, 2021, order

on his combined petition for an adjudication of indirect civil contempt and motion to enforce prior

court orders as well as his motion for postjudgment relief and the court's March 18, 2022, order

that denied his motion to reconsider that order.

¶ 14 On the date of the scheduled hearing on the remaining issues, the circuit court entered an

order that stated it lacked jurisdiction to conduct the hearing on the pending filings because Keith

had filed the notice of appeal. In that order, the court entered and continued the pending filings,

and scheduled a status hearing on the appeal.

¶ 15 On December 5, 2022, after the parties fully briefed their appeal in Frisz I, the circuit court

held a status hearing on the parties' various open motions, where Marilyn withdrew her various

open motions, including her Rule 137 motion for sanctions, which made Keith's motion directed

at Marilyn's motions moot. The court entered an order reflecting those actions in which it stated

that nothing remained pending before it and directing the matter off call. Keith, as the appellant,

did not attempt to file a supplemental record in this court with that order. On March 10, 2023, we

filed our decision in Frisz I without knowledge that the Rule 137 motion for sanctions was no

longer pending. As a result, we determined that, because the motion remained pending in the circuit

court when Keith filed his notice of appeal and the circuit court never made an express written

finding that there was no just reason for delaying appeal pursuant to Illinois Supreme Court Rule

304(a) (eff. Mar. 8, 2016), we lacked jurisdiction to entertain the merits of this appeal and had to

dismiss it. In re Marriage of Frisz, 2023 IL App (1st) 220530-U, ¶ 1.

 -5-
 ¶ 16 Seven days after we filed our decision in Frisz I, Keith filed a new notice of appeal under

Illinois Supreme Court Rule 301 (eff. Feb. 1, 1994), seeking review of the same orders as he did

in Frisz I.

¶ 17 II. ANALYSIS

¶ 18 On appeal, Keith contends that the circuit court erroneously interpreted the parties' marital

settlement agreement and its own qualified domestic relations order contrary to the plain language

of both and the Act (750 ILCS 5/101 et seq. (West 2020)) when it determined that the plan

administrator did not overpay Marilyn. Keith requests that we vacate the court's rulings on his

combined petition for an adjudication of indirect civil contempt and motion to enforce prior court

orders as well as his motion for postjudgment relief. As we stated in Frisz I, we must first review

our jurisdiction in the appeal. "A reviewing court must ascertain its jurisdiction before proceeding

in a cause of action." Secura Insurance Co. v. Illinois Farmers Insurance Co., 232 Ill. 2d 209, 213

(2009). As such, before we consider the merits of Keith's appeal, we must determine the threshold

question of whether we have jurisdiction over the appeal. See id.

¶ 19 In Keith's instant notice of appeal filed on March 17, 2023, he asserted that he is appealing

from orders or judgments entered on November 22, 2021, when the circuit court denied his various

motions, and March 18, 2022, when the court denied his motion to reconsider, both under Illinois

Supreme Court Rule 301 (eff. Feb. 1, 1994). Under Rule 301, "[e]very final judgment of a circuit

court in a civil case is appealable as of right." Id. However, there are time limits in which to initiate

an appeal. Under Rule 303(a)(1), a party must file his notice of appeal "within 30 days after the

entry of the final judgment appealed from, or, if a timely posttrial motion directed against the

judgment is filed, whether in a jury or a nonjury case, within 30 days after the entry of the order

disposing of the last pending postjudgment motion directed against that judgment or order,

 -6-
 irrespective of whether the circuit court had entered a series of final orders that were modified

pursuant to postjudgment motions." Ill. S. Ct. R. 303(a)(1) (eff. July 1, 2017).

¶ 20 Rule 303(a)(2), however, provides a savings provision for premature notices of appeal.

"When a timely postjudgment motion has been filed by any party, whether in a jury case or a

nonjury case, a notice of appeal filed before the entry of the order disposing of the last pending

postjudgment motion, or before the final disposition of any separate claim, becomes effective when

the order disposing of said motion or claim is entered." Ill. S. Ct. R. 303(a)(2) (eff. July 1, 2017).

Rule 303(a)(2) acts to save a premature notice of appeal by deeming the notice of appeal effective

when the order resolving a separate claim is entered. See In re Marriage of Valkiunas & Olsen,

389 Ill. App. 3d 965, 967 (2008) ("[S]ubsection (a)(2) protects the rights of an appellant who has

filed a premature notice of appeal, by making the notice of appeal effective when the order denying

a postjudgment motion or resolving a still-pending separate claim is entered."). "A premature

appeal is deemed saved in the sense that the appellant is not required to file a new notice of appeal."

Id. at 967-68.

¶ 21 Keith's instant notice of appeal must be viewed in juxtaposition with his notice of appeal

filed in Frisz I, which he filed on April 15, 2022. At the time Keith filed the notice of appeal in

Frisz I, Marilyn's Rule 137 motion for sanctions remained pending and the circuit court had not

made a finding pursuant to Rule 304(a), so that notice of appeal was premature. John G. Phillips

& Associates v. Brown, 197 Ill. 2d 337, 340-41 (2001). The circuit court ultimately resolved

Marilyn's Rule 137 motion for sanctions on December 5, 2022, when in an order, it stated that

Marilyn had withdrawn her motion. Thus, under the savings provision of Rule 303(a)(2), Keith's

notice of appeal in Frisz I became effective December 5, 2022. Despite this, Keith never attempted

to supplement the appellate record with this order, even though based on Rule 303(a)(1), the order

 -7-
 cured the jurisdictional impediment to Frisz I. See Ill. S. Ct. R. 329 (eff. July 1, 2017) (providing

a procedure for supplementing the record on appeal). As a result, because we had no knowledge

that Marilyn's Rule 137 motion had been resolved, we dismissed Frisz I for a lack of jurisdiction.

See Foutch v. O'Bryant, 99 Ill. 2d 389, 391-92 (1984) (asserting that the "appellant has the burden

to present a sufficiently complete record of the proceedings" for appellate review).

¶ 22 Even though we dismissed Frisz I for a lack of jurisdiction, Keith was not without recourse

in that appeal. Our order in Frisz I alerted Keith to the deficiency of the appellate court record in

that it did not contain the order that had resolved Marilyn's pending motion for sanctions and

would have cured the jurisdictional impediment, which he had a burden to sufficiently provide.

See id. Once Keith realized this deficiency and that we did not have this order, he should have

"file[d] a petition for rehearing and to supplement the record, thereby establishing our jurisdiction

to address the merits." In re Marriage of Knoerr, 377 Ill. App. 3d 1042, 1050 (2007); see also In

re Marriage of Kane, 2016 IL App (2d) 150774, ¶ 14 (same); In re Marriage of Schwieger, 379

Ill. App. 3d 687, 689-90 (2008) (same). This procedure would have allowed Keith "to establish

the effectiveness of the [dismissed] notice of appeal" under Rule 303(a)(2). In re Marriage of

Knoerr, 377 Ill. App. 3d at 1050. Using a petition for rehearing in this manner is permissible

despite the language of Illinois Supreme Court Rule 367(b) (eff. Nov. 1, 2017), which provides

the right to file a petition for rehearing in a reviewing court and requires the petitioner to state an

error in the appellate court's decision. See In re Marriage of Kane, 2016 IL App (2d) 150774, ¶

14; In re Marriage of Schwieger, 379 Ill. App. 3d at 690; In re Marriage of Knoerr, 377 Ill. App.

3d at 1050. Had Keith followed the procedure outlined above, we would have found that the

jurisdictional impediment in Frisz I had been remedied, vacated our order in Frisz I and addressed

the merits of his appeal. But Keith did not do this. Keith also did not file a notice of appeal within

 -8-
 30 days of the December 5, 2022, order that resolved the pending postjudgment motion. See Ill. S.

Ct. R. 303(a)(1) (eff. July 1, 2017).

¶ 23 Instead, Keith filed his instant notice of appeal on March 17, 2023, seven days after we

issued Frisz I, in an effort to apparently resurrect his claims of error that were the basis for Frisz

I. The problem with that action is that Keith is appealing orders and judgments that are essentially

a year older or more. Nothing in our appellate rules allow such a procedure. See Ill. S. Ct. R. 303

(eff. July 1, 2017). Thus, we do not have jurisdiction to consider the merits of Keith's appeal.

¶ 24 Lastly, during the briefing in this case, Marilyn filed a combined motion to dismiss and

motion for sanctions under Illinois Supreme Court Rule 375 (eff. Feb. 1, 1994), which we took

under advisement to be decided with the appeal. Given our disposition, Marilyn's motion to

dismiss is moot. However, we note that Keith, in response to Marilyn's motion to dismiss, asserts

that this court anticipated that he would file the present appeal. He cites our prior order where we

stated: "We acknowledge the burden this conclusion puts on the parties who now have to go back

to the circuit court and may end up appealing again on the merits from below. However, if this

does occur, the parties ‘may filed a motion asking to adopt the briefs already on file in this case as

their briefs in the subsequent appeal.' " (Citation omitted.) In re Marriage of Frisz, 2023 IL App

(1st) 220530-U, ¶ 36. We issued Frisz I on March 10, 2023, with the understanding that Marilyn's

motion for sanctions with the circuit court was still pending and without knowledge that the circuit

court had entered the December 5, 2022, order that cured the jurisdictional impediment.

¶ 25 As for Marilyn's motion for sanctions brought with this court under Rule 375, she contends

that the appeal is frivolous, asserting, among other things, that there is no basis for an appeal filed

more than 30 days after a final order was entered.

 -9-
 ¶ 26 Under Rule 375(a), this court may impose appropriate sanctions if an attorney or party has

been found to have willfully failed to comply with the appellate rules. Ill. S. Ct. R. 375 (eff. Feb.

1, 1994); Garlick v. Bloomingdale Township, 2018 IL App (2d) 171013, ¶ 59. Under Rule 375(b),

this court may "impose an appropriate sanction upon any party or the party's attorney if we

determine that the appeal is frivolous or not taken in good faith." Garlick, 2018 IL App (2d)

171013, ¶ 59 (citing Ill. S. Ct. R. 375(b) (eff. Feb. 1, 1994)). "[T]he imposition of sanctions is a

matter left strictly to the appellate court's discretion." Kheirkhahvash v. Baniassadi, 407 Ill. App.

3d 171, 182 (2011). We do not find that the imposition of sanctions is warranted. Thus, Marilyn's

motion for sanctions is denied.

¶ 27 III. CONCLUSION

¶ 28 For the foregoing reasons, we dismiss this appeal for a lack of jurisdiction.

¶ 29 Appeal dismissed.

 - 10 -