Crecos v. Crecos
| Decision Date | 28 July 2015 |
| Docket Number | Docket No. 1-13-2756,Docket No. 1-13-3780,Docket No. 1-14-0112 cons. |
| Parties | In re MARRIAGE OF DIANA CRECOS, Petitioner-Appellant, and GREGORY CRECOS, Respondent-Appellee. |
| Court | United States Appellate Court of Illinois |
Illinois Official Reports
Appellate Court
Decision Under Review
Appeal from the Circuit Court of Cook County, No. 07-D-10902; the Hon. Raul Vega, Judge, presiding.
JudgmentReversed and remanded.
Counsel on Appeal
Litchfield Cavo LLP, of Chicago (James R. Branit, of counsel), for appellant.
Grund & Leavitt, P.C., of Chicago (Marvin J. Leavitt, David C. Adams, Jody Meyer Yazici, and Jamie R. Fisher, of counsel), for appellee.
Panel
¶ 1 Diana Barr-Crecos (Diana) filed a petition to dissolve her marriage to Gregory Crecos (Gregory) on October 30, 2007. Judge Jeanne Reynolds entered a judgment of dissolution on December 24, 2009 dissolving the marriage. Gregory appealed and this court affirmed the 2009 judgment of dissolution. In re Marriage of Crecos, 2012 IL App (1st) 102158-U. During Gregory's appeal, the parties filed postdecree petitions, which were heard by Judge Raul Vega, a judge who was assigned to the case on July 15, 2010. Diana presented a motion for substitution of judge as of right, and Judge Vega denied the motion on July 27, 2010. At the conclusion of the parties' postdecree proceedings, Diana filed a notice of appeal on August 22, 2013 seeking review of all of the orders entered by Judge Vega. Supplementary proceedings (735 ILCS 5/2-1402 (West 2012)) were held and Judge Diann Marsalek entered a wage garnishment order on December 17, 2013. Diana timely filed another notice of appeal on December 23, 2013, seeking review of all of the orders entered by Judge Vega and Judge Marsalek.
¶ 2 We find that Diana's motion for substitution of judge as of right was filed before commencement of a trial or hearing on the merits and before Judge Vega made a substantial ruling so the circuit court erred when it denied the substitution motion. Therefore, we hold that the postdecree orders entered by Judge Vega after denying the substitution motion were void, and that the wage garnishment order entered by Judge Marsalek in the supplementary proceedings was also void because it was based on a void order entered by Judge Vega. POM 1250 N. Milwaukee, LLC v. F.C.S.C., Inc., 2014 IL App (1st) 132098, ¶ 26. Accordingly, the orders entered by the circuit court in the postdecree proceedings and in the supplementary proceedings are reversed.
¶ 5 Diana filed a petition pursuant to the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/101 et seq. (West 2006)) (Act) to dissolve her marriage to Gregory on October 30, 2007. On September 10, 2009, the parties reached an oral agreement as to all of their personal property. On December 24, 2009, Judge Reynolds entered a final judgment dissolving the marriage. In the 2009 judgment of dissolution, Judge Reynolds classified and valued every item of real and personal property that Gregory and Diana had disclosed to the court. Judge Reynolds then allocated the property to the parties. Gregory appealed Judge Reynolds' decision on July 23, 2010, but this court affirmed the order granting the 2009 judgment of dissolution on July 23, 2012. In re Marriage of Crecos, 2012 IL App (1st) 102158-U.
¶ 7 While Gregory's appeal was pending, Gregory and Diana filed postdecree petitions in the circuit court. The case was assigned to Judge Vega on July 15, 2010. That same day, Gregory filed a pro se "Emergency Verified Petition for Preliminary Injunction to Enforce Joint Parenting Agreement and to Preserve Status Quo." In his petition, Gregory sought to have the court enter an order mandating that his two daughters remain in the School of St. Mary's. In addition, he sought a preliminary injunction directing Diana to abide by the Joint Parenting Agreement and "(a) not make derogatory statements, ridicule, defame, and belittle Greg in the presence of the minor children or in any other way seek to undermine the *** children's love and respect for Greg; (b) not interrogate the children about their activities with their father; [and] (c) not prevent Greg from spending time with his children."
¶ 8 The next day, July 16, 2010, a hearing was held on Gregory's motion. At the hearing, Judge Vega entered an order which stated that Gregory's petition was "not an emergency" and which gave Diana "14 days to respond or otherwise plead" to Gregory's petition. The order also set Gregory's petition for hearing on August 11, 2010.
¶ 9 Before the August 11, 2010 hearing, but after Judge Vega entered the July 16, 2010 order, Diana filed a motion for substitution of judge as of right pursuant to section 2-1001 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-1001(a)(2) (West 2010)). Judge Vega entered an order on Diana's motion on July 27, 2010, which stated that the "motion for substitution as of right is denied." The order did not delineate the court's reasons for the denial of Diana's motion.
¶ 10 On August 11, 2010, Gregory's new counsel filed a motion entitled "Emergency Motion for Entry of Order Pursuant to September 10, 2009 Ruling and for Turnover of Property." In this motion, Gregory alleged that Diana stole several items that were to be equally divided between the two parties and as a result, the original oral agreement of September 10, 2009 must be enforced. Gregory also requested that the circuit court award him several additional items of personal property that were not mentioned in the 2009 judgment of dissolution: a Steve Hudson painting, Andy Warhol prints, and several Salvador Dali prints.
¶ 11 Judge Vega entered an order on September 24, 2012, that inter alia, ordered Diana to return all items belonging to Gregory within 14 days, otherwise a $400,000 monetary judgment would be entered against her. On October 24, 2012, Gregory filed a motion to reconsider Judge Vega's September 24, 2012 order. On May 24, 2013, Judge Vega granted Gregory's motion to reconsider and entered a $746,000 money judgment against Diana. On June 4, 2013, Diana filed a motion to reconsider both the September 24, 2012 and May 24, 2013 orders. On July 26, 2013, Judge Vega denied Diana's motion to reconsider. On August 22, 2013, Diana filed a notice of appeal from Judge Vega's orders in the postdecree proceedings (appeal No. 13-2756). The notice was timely filed and sought review of the "September 24, 2013, May 24, 2013, and July 27, 2013" orders entered by Judge Vega.
¶ 13 On December 17, 2013, during the supplementary proceedings, Judge Marsalek entered a final judgment entitled "Wage Deduction/Turnover Order," which included Rule 304(a) language. Diana timely filed her notice of appeal on December 23, 2013, seeking review ofall of the orders addressing the postdecree proceedings before Judge Vega and the supplementary proceedings before Judge Marsalek (appeal No. 14-0122).
¶ 16 Before reaching the merits of this appeal, we must review the orders referenced in Diana's notice of appeal based on our independent duty to determine whether jurisdiction is proper. Department of Central Management Services v. American Federation of State, County & Municipal Employees, 182 Ill. 2d 234, 238 (1998). We note that on August 22, 2013, Diana filed her first notice of appeal seeking review of the "September 24, 2013, May 24, 2013, and July 27, 2013" orders entered by Judge Vega. Because Diana filed her notice of appeal on August 22, 2013, we find that she could not appeal from the order entered on September 24, 2013. In addition, we find that the record reveals the circuit court did not enter an order on July 27, 2013, but the record does reveal that the circuit court entered an order on July 26, 2013.
¶ 17 Here, we find that Diana made two scrivener's errors when she typed the incorrect dates of July 27, 2013 and September 24, 2013, when she should have referenced the September 24, 2012 and the July 26, 2013 orders in her notice of appeal. Schaffner v. 514 West Grant Place Condominium Ass'n, 324 Ill. App. 3d 1033, 1042 (2001); State Security Insurance Co. v. Linton, 67 Ill. App. 3d 480, 486 (1978) (). In Schaffner, this court defined a "scrivener" as a writer and a "scrivener's error" as a clerical error resulting from a minor mistake or inadvertence when writing or when copying something on the record, including typing an incorrect number. Schaffner, 324 Ill. App. 3d at 1042. Therefore, we find that the incorrect dates on Diana's August 22, 2013 notice of appeal were scrivener's errors that do not create a fatal defect. Linton, 67 Ill. App. 3d at 486.
¶ 18 We find that neither party is prejudiced by Diana's scrivener's errors. Illinois Bell Telephone Co. v. Purex Corp., 90 Ill. App. 3d 690, 693 (1980); Linton, 67 Ill. App. 3d at 486. The scrivener's errors do not inhibit this court's ability to ascertain from the record that Diana is appealing from the September 24, 2012 and the July 26, 2013 orders. Linton, 67 Ill. App. 3d at 486. Accordingly, because the July 26, 2013 order was a final order (Pottorf v. Clark, 134 Ill. App. 3d 349, 351 (1985)), and because Diana's notice of appeal was filed within 30 days of the July 26, 2013 order, we have jurisdiction over appeal number 13-2756.
¶ 20 Next, we address Gregory's argument that this court is unable to "properly consider" Diana's argument that her motion for substitution of judge as of right was timely because Diana has failed to meet her burden of presenting the court with a complete record. Specifically, Gregory argues that because the file...
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