specially concurring:

I concur in the portion of the majority’s opinion which discusses the merits of the custody order. It was proper to award custody of the minor child to his mother instead of to his father and I find no fault with the conclusion which appears in the next to the last paragraph of the majority opinion. However, I believe that the circuitous route the majority follows in deciding whether the circuit court’s custody order was appealable leads to an undesirable precedent.

The majority concludes that Francine Leopando, the mother, could not appeal, under Supreme Court Rule 304(a) (73 Ill. 2d R. 304(a)), the permanent custody order entered in this case and granting custody to the father. However, instead of dismissing the appeal, the court proceeds to consider the merits of the controversy over custody because previous cases have held custody orders were appealable under Rule 304(a) and also because the defendant did not question in the appellate court whether the custody order was appealable. I would hold that the permanent custody order was appealable under Rule 304(a) whether or not the defendant raised the question of its appealability. Because I agree with the court’s ultimate disposition of the case I specially concur in the judgment.

Supreme Court Rule 304(a) provides in part:

“If multiple parties or multiple claims for relief are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer than all of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal.” 73 Ill. 2d R. 304(a).

The permanent custody order in this case was a “final judgment.” A final order under Rule 304(a) is one that terminates the merits of a particular claim such that the trial court has only to proceed with execution of its order. (In re Marriage of Nilsson (1980), 81 Ill. App. 3d 580, 584; Pettit v. Pettit (1978), 60 Ill. App. 3d 375, 378.) The permanent award of custody to the father gave the father the exclusive right to custody and control of the child and in fact reversed the prior award of temporary custody to the mother. After the trial court entered the permanent award, all that remained of that claim was to enforce it. Although other issues remained extant in the dissolution proceedings, the custody order became an appealable order when the trial court, pursuant to the provisions of Rule 304(a), expressly found that there was no just reason to delay appeal or enforcement of the order.

The majority, however, contends that the request for a custody determination is not a separate “claim” in the dissolution proceeding and thus cannot give rise to a separate appeal under Rule 304(a). The provisions of the Illinois Marriage and Dissolution of Marriage Act relating to custody matters refute this contention, for they treat the custody issue as independent and separate from any other issues in the dissolution proceeding. Section 602(a) of the Act provides that “[t]he court shall determine custody in accordance with the best interest of the child.” (Ill. Rev. Stat. 1981, ch. 40, par. 602(a).) That provision creates a reviewable standard for resolving custody matters that is completely independent from other issues in the dissolution proceeding. In fact, section 603(b) of the Act specifically states that the custody proceeding may continue and a custody award may be entered even if the dissolution proceeding is dismissed, provided that “the circumstances of the parents and the best interest of the child requires that a custody judgment be issued.” (Ill. Rev. Stat. 1981, ch. 40, par. 603(b).) Thus, these two sections of the Act recognize that a custody contest is an independent claim in the dissolution proceeding, and I would recognize it as such by holding that it may give rise to a final and appealable order when the trial judge makes the finding required by Rule 304(a).

In re Marriage of Cohn (1982), 93 Ill. 2d 190, is not inconsistent with my interpretation of Rule 304(a). Cohn held that section 401(3) of the Act prior to its August 14, 1981, amendment (Ill. Rev. Stat. 1977, ch. 40, par. 401(3)) denied the circuit court jurisdiction to enter a final judgment of dissolution before resolving collateral issues in the dissolution proceeding such as child custody and property settlement. The present case involves the reverse situation: whether the trial court can enter a final and appealable judgment on permanent child custody before entering a final judgment of dissolution. Nothing in Cohn compels that we find both practices impermissible.

The majority fails to observe that the language of section 401(3) of the Act prior to its August 14, 1981, amendment expressly prohibited the practice involved in Cohn, but it does not expressly prohibit the entry of orders pertaining to permanent custody of minor children before entry of the dissolution order. Although, as the majority notes, the policy of section 401(3) is to promote the comprehensive resolution of all matters relating to a dissolution proceeding in a single judgment, I believe that our Rule 304(a) is consistent with this policy, while at the same time it recognizes that other important policies may in some cases militate in favor of the immediate appeal of one of the claims involved in a larger dispute.

Rule 304(a) prevents the appeal of a final judgment that does not dispose of all the claims in an action unless and until the circuit court judge finds that there is no just reason to delay appeal. This requirement is “aimed at discouraging piecemeal appeals in the absence of some compelling reason.” (Emphasis added.) (In re Marriage of Lentz (1980), 79 Ill. 2d 400, 407.) What the majority overlooks is that in many cases there are compelling reasons for the prompt appeal of final judgments deciding who will have permanent custody of a child. Here, for example, the circuit court’s order of permanent custody reversed the prior award of temporary custody to the mother. Under such circumstances how do we accomplish justice by relying on overly technical interpretations of our rules with the result that a prompt and final appellate resolution of permanent custody orders by the appellate courts may be thwarted even though a circuit court judge has expressly found that there is no just reason to delay enforcement and appeal? As the majority admits, prior cases supported the immediate appealability of such orders under Rule 304(a) (e.g., Atkinson v. Atkinson (1981), 87 Ill. 2d 174; In re Marriage of Cohn (1981), 94 Ill. App. 3d 732; In re Marriage of Nilsson (1980), 81 Ill. App. 3d 580). Those cases make good sense, and I would follow them here and retain the viability of the procedure they allow.

The majority views Rule 306(a)(1)(v) as a substitute for Rule 304(a) in custody matters. I view it as a supplement to Rule 304(a) when that rule is not applicable because the order involves temporary custody rather than permanent custody or the order involves permanent custody but the trial judge fails to make the written finding contemplated by Rule 304(a). Under Rule 306(a)(1)(v), the parties may appeal from “interlocutory orders affecting the care and custody of unemancipated minors.” (87 Ill. 2d R. 306(a)(1)(v) (amended eff. July 1, 1982).) This rule recognizes that in many cases it is extremely important that a final resolution of custody issues occur promptly in our appellate courts. Rule 306(a)(1)(v) permits the parties to appeal, with leave of the appellate court, temporary custody orders and permanent custody orders where the circuit court has refused or neglected to make the express finding that there is no reason to delay enforcement or appeal. Such permanent custody orders are “interlocutory” in the sense that, in the absence of such a finding, the order “is not enforceable or appealable and is subject to revision at any time before the entry of a judgment adjudicating all the claims, rights, and liabilities of all the parties.” 87 Ill. 2d R. 304(a).

It was not my understanding when we adopted Rule 306(a)(1)(v), effective on July 1, 1982, that it was rendering Atkinson obsolete and eliminating Rule 304(a) as a vehicle for resolving permanent custody disputes. My recollection is that we designed Rule 306()(1)(v) to handle the situation where the trial judge refused to make the finding which would make a custody order appealable under Rule 304(a). In many such instances the aggrieved party would file an original mandamus action in our court seeking an order directing the trial judge to enter such a finding. It was to relieve this court of such mandamus proceedings and to have the appellate court instead make the decision in such instances that Rule 306(a)(1)(v) was adopted. It was not intended to replace or cut off other avenues of appeal under our rules. In fact, Rule 306(a)(1)(v) provides it is only applicable “if the appeal of such orders is not otherwise specifically provided for elsewhere in these rules.”

The problem with relying solely on Rule 306(a)(1)(v) as an avenue of appeal of custody orders is that the appellate court can refuse to take the appeal, leaving the final determination of permanent custody in limbo. It seems to me that resolution of permanent custody is of extreme importance to the welfare of the minor. Only in that way can we assure that the minor will not be bounced around between the mother and father, a possibility not foreclosed by the procedure favored by the majority. If the trial judge certifies that the question of permanent custody should receive the immediate attention of our reviewing courts by making the finding required by Rule 304(a), what is accomplished by the majority’s view of proper procedure which could leave the question of custody indefinitely unresolved while the parties haggle over properly settlements and other issues in the dissolution proceeding? I do not consider this to be in the best interest of minor children, and that is why I disagree with the majority’s approach.

For all these reasons I would hold that the permanent custody order entered in this case was appealable under Rule 304(a) because the circuit court judge expressly found that there was no just reason to delay enforcement or appeal. Inasmuch as the majority reaches the merits of the custody order, even though it decided that the order was not appealable, and because I agree with the majority’s treatment of the merits, I concur in the court’s judgment affirming the judgment of the appellate court. I disagree with the majority’s reasoning because in many cases it could prevent the parties from settling questions of custody expeditiously, with resulting detriment to minor children.