Nick v. Kelly-Rose

Overview

The Second District dismissed a mother's appeal of a trial court order reallocating guardian ad litem (GAL) fees entirely to her, finding it lacked jurisdiction because at least two postjudgment motions remained pending (or unresolved in the record) when the notice of appeal was filed. The court left open the possibility of reviving the appeal via a petition for rehearing if the pending motions have since been resolved.

Key Facts

• Father (Nick) filed a parentage action; he was awarded primary custody and majority parenting time in an August 2019 allocation judgment (AJ).
• Mother (Kelly-Rose) filed four largely duplicative petitions to modify the AJ between 2022 and 2024, alleging father failed to provide proper medical/dental care; a GAL investigation found the allegations untrue.
• Father filed a petition for sanctions/attorney fees and a motion to reallocate GAL fees, citing the repetitive, baseless filings.
• On September 8, 2025, the trial court granted reallocation of all GAL fees (past, present, and future) to mother, retroactive to August 30, 2024.
• On October 7, 2025, mother simultaneously filed a notice of appeal and two motions in the trial court—one to split GAL fees 50/50 pending appeal and one for make-up parenting time—followed by another parenting-time motion on October 9, 2025.
• The common law record provided to the appellate court ended October 28, 2025, with no resolution of those motions shown.

Procedural History

Appeal from the Circuit Court of Kendall County (No. 18-F-72), Judge Carlo Colossimo presiding. Mother appealed the September 8, 2025, order reallocating GAL fees. The Second District Appellate Court (Justice Hutchinson, with Justices Jorgensen and Schostok concurring) dismissed the appeal for lack of jurisdiction.

Holdings

1. Jurisdictional dismissal: The court lacked jurisdiction because the record showed unresolved postjudgment motions at the time the notice of appeal was filed, meaning there was no final, appealable order. Standard: jurisdictional/de novo review of appellate jurisdiction.
2. The court clarified that an appeal solely concerning allocation of GAL fees—not a final custody or parental-responsibility order—does not qualify for the accelerated docket under Illinois Supreme Court Rule 311(a)(5).

Legal Principles

• Ill. Const. art. VI, § 6; Ill. S. Ct. R. 301, 303(a) — Appeals lie only from final judgments; pending postjudgment motions prevent finality.
• Ill. S. Ct. R. 303(a)(2) — A prematurely filed notice of appeal may "take effect" once the last pending claim is resolved, preserving the appeal if the new deadline has expired. See In re Marriage of Kane, 2016 IL App (2d) 150774, ¶ 17; In re Marriage of Knoerr, 377 Ill. App. 3d 1042 (2007).
• In re Marriage of Petraitis, 263 Ill. App. 3d 1022 — A final order must dispose of all rights as to the controversy.
• Ill. S. Ct. R. 311(a)(5) — Accelerated docket applies to child-custody/parental-responsibility orders, not standalone GAL-fee disputes.

Practical Implications

• Do not file a notice of appeal while postjudgment motions remain pending. Ensure all motions directed at the judgment are resolved before appealing, or risk jurisdictional dismissal.
• Salvage mechanism: If a premature notice of appeal is filed, practitioners can file a petition for rehearing and supplement the record under Rule 303(a)(2) to establish jurisdiction once pending matters are resolved.
• Record completeness matters: Appellants bear the burden of providing a sufficient record; gaps can be fatal to jurisdiction.
• GAL-fee reallocation as a sanction tool: Courts may reallocate 100% of GAL fees to a party who files repetitive, unsubstantiated modification petitions—a powerful deterrent against vexatious litigation.
• Accelerated docket: Do not assume a family-law appeal automatically qualifies for Rule 311 acceleration; only orders directly addressing custody or allocation of parental responsibilities qualify.

Limitations/Caveats

This is a Rule 23(b) order with no precedential value except in the limited circumstances of Rule 23(e)(1). The court reached no merits determination on the propriety of the GAL-fee reallocation. The discussion of Rule 303(a)(2) revival and the accelerated-docket clarification constitute dicta, as the sole binding action was the jurisdictional dismissal.