When Can I Appeal a Court Order?

There are two different types of appeals: permissive and “as of right”. Permissive appeals are appeals that are done with permission from both the trial court and the appellate court. Appeals that are done “as of right” are those that are final and appealable.

If you have gone through a divorce trial and the Judge has entered a Judgment for Dissolution of Marriage, then you have a right to appeal “as of right” as it is the final judgment in the case. If the appeal is prior to a final judgment or a post-decree order, it can be more difficult to determine under what category your case falls under.

Final orders are those orders that forever determine an issue in controversy. However, if there are other claims or counter-claims pending, a court may determine that the matter is not yet final. The trial judge would need to make the determination that an order is final and appealable pursuant to Illinois Supreme Court Rule 304(a) and that there is no just reason for a delay in its enforcement or appeal. Said language does not automatically mean that an appellate court will find the order to be a final order, however. As such, talk to an attorney about the possibility of appealing an order that resolves only certain issues in the case.

If an order is not a final judgment or order in the case but revolves around an important legal question in which an immediate appeal would further the interest of the parties and the court, then a permissive appeal pursuant to Illinois Supreme Court Rule 308 may be possible. Illinois Supreme Court Rule 308 allows the trial court at the request of one or both of the parties to certify a question for the appellate court to answer. The question must be a legal question and even after a trial judge approves the request and certifies the question, the appellate court must also review an application as to why it should hear and decide the certified question. The application must contain a statement of facts, the question itself, and reasons why an immediate appeal would materially advance the termination of the litigation. If the appellate court grants the request, then the parties can proceed with a briefing schedule on the issue.

It is important to note that there is only a 30 days window to appeal under either scenario. As such, talk to an attorney right away regarding the possibility of

appealing an order and its proper classification. If the classification is wrong and the appeal is denied, the party will not have another chance to appeal under the proper statute.

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