In re Main
| Citation | 175 N.E.3d 222,447 Ill.Dec. 854,2020 IL App (2d) 200131 |
| Decision Date | 02 November 2020 |
| Docket Number | No. 2-20-0131,2-20-0131 |
| Parties | IN RE MARRIAGE OF Michael S. MAIN, Petitioner-Appellant, and Jeanette L. Main, n/k/a Jeanette L. Triantafillo, Respondent-Appellee. |
| Court | United States Appellate Court of Illinois |
Michael S. Main, of Waukegan, appellant pro se.
No brief filed for appellee.
¶ 1 The petitioner, Michael S. Main (who has been representing himself in this case), was found by the trial court to be indigent and to qualify for a waiver of court fees, costs, and charges, pursuant to section 5-105 of the Code of Civil Procedure (Code) ( 735 ILCS 5/5-105 (West 2018) ). In preparation for his appeal from the judgment dissolving his marriage to the respondent, Jeanette L. Main (now known as Jeanette L. Triantafillo), the petitioner asked the trial court to find that he was entitled to a waiver of the cost of the transcripts he needed for the appeal, including those of the six-day trial. The trial court initially denied this request. Upon the petitioner's motion for reconsideration, however, the trial court entered an order certifying the following question:
"When a self-represented litigant has been granted a waiver of fees under 735 ILCS 5/5-105(a)(1), is such litigant entitled to a waiver of court transcript fees under 735 ILCS 5/5-105.5 and Supreme Court Rule 298 ?"
The petitioner filed a petition for leave to appeal pursuant to Illinois Supreme Court Rule 308 (eff. Oct. 1, 2019). We granted leave and now answer the question in the affirmative.
¶ 3 Because the question before us concerns only whether an indigent, self-represented litigant may obtain transcripts without charge, we omit here most of the facts relating to the dissolution trial and judgment. In October 2019, the petitioner filed a notice of appeal challenging the judgment of dissolution and several other orders.1 On November 8, 2019, the petitioner requested that transcripts of the proceedings on eight dates be included in the record on appeal. The request included a statement that the appeal involved a matter subject to expedited disposition under Illinois Supreme Court Rule 311(a) (eff. July 1, 2018), such as the allocation of parental responsibility and parenting time. A few days later, the petitioner served each of the court reporters who attended the relevant court dates a similar request, along with a copy of the trial court order granting a waiver of court fees, costs, and charges.
¶ 4 On November 14, apparently after having been told that the transcripts would cost about $3000 and that the waiver order did not extend to transcript costs, the petitioner moved to be provided with the transcripts, which he contended were necessary to his appeal, without charge. The petitioner cited sections 5-105 and 5-105.5 of the Code ( 735 ILCS 5/5-105, 5-105.5 (West 2018)) and Illinois Supreme Court Rule 298 (eff. July 1, 2019). He pointed out that the trial court had found him to be indigent, and he averred that he remained so and was unable to pay the cost of the transcripts. He stated that the trial court had unsuccessfully attempted to locate pro bono counsel for him and noted that such counsel could have obtained transcripts without cost under section 5-105.5 of the Code.
¶ 5 The trial court denied the motion. It noted that the parties made conflicting representations about whether, following the entry of the waiver order, the petitioner had accumulated sufficient funds to pay for the transcripts. However, the trial court's denial did not rest on the evidence regarding the petitioner's current financial status. Rather, the trial court denied the petitioner's request because the court administration would have to pay the costs of the transcripts if he did not, and the court believed that no statute or court rule required that result.
¶ 6 The petitioner moved for reconsideration, arguing that the denial of a fee waiver for the transcripts necessary for his appeal violated his constitutional as well as his statutory rights. He noted that some of the orders he wished to appeal essentially suspended his parenting time with his children, implicating his fundamental liberty interest in maintaining a relationship with his children. He argued that the denial of a fee waiver for the transcripts effectively denied him an appeal, as the transcripts were necessary to allow him to raise proper arguments and to support those arguments. The petitioner asked that, if the trial court did not grant him a waiver of the transcript costs outright, in the alternative the trial court certify a question about whether a fee waiver under section 5-105 encompassed the waiver of transcript costs.
¶ 7 In a written ruling, the trial court reconsidered its previous order. Although it did not grant the petitioner's request for a fee waiver, it found that there were substantial grounds for a difference of opinion on whether sections 5-105 and 5-105.5 permitted the petitioner to obtain transcripts for appeal without payment, despite the fact that he was not represented by a civil legal services provider or pro bono attorney. It therefore certified the question set out above. The petitioner then sought leave to appeal pursuant to Rule 308 in order to resolve the certified question, and we granted such leave.
¶ 10 At the outset, we note that the respondent has not filed a brief on appeal.
"In such a situation, our supreme court's decision in First Capitol Mortgage Corp. v. Talandis Construction Corp. , 63 Ill. 2d 128, 345 N.E.2d 493 (1976), normally dictates that a court consider the merits of an appeal if the issues and the record are susceptible to easy decision, but that a court otherwise decide the case in favor of the appellant if the appellant establishes a prima facie case for reversal." Mahoney v. Gummerson , 2012 IL App (2d) 120391, ¶ 10, 366 Ill.Dec. 861, 980 N.E.2d 1220 (citing Grundy v. Lincoln Park Zoo , 2011 IL App (1st) 102686, ¶ 3, 354 Ill.Dec. 125, 957 N.E.2d 441 ).
However, Talandis does not apply in an appeal such as this that considers a certified question, because then our task is to correctly answer the question presented, and thus we may not simply rule in favor of an appellant who establishes a prima facie case. Id. ¶ 11. Id. We therefore address the certified question on its merits, regardless of whether the issue is simple. Id. ; Grundy , 2011 IL App (1st) 102686, ¶ 3, 354 Ill.Dec. 125, 957 N.E.2d 441. Our review is de novo because we are presented solely with a question of law. Mahoney , 2012 IL App (2d) 120391, ¶ 11, 366 Ill.Dec. 861, 980 N.E.2d 1220.
¶ 11 A second preliminary issue that arose during our consideration of this appeal is whether leave to appeal pursuant to Rule 308 was properly granted. Rule 308 permits a trial court to certify a question of law to the appellate court:
"When the trial court, in making an interlocutory order not otherwise appealable, finds that the order [(1)] involves a question of law as to which [(2)] there is substantial ground for difference of opinion and [(3)] that an immediate appeal from the order may materially advance the ultimate termination of the litigation, the court shall so state in writing, identifying the question of law involved." Ill. S. Ct. R. 308(a) (eff. Oct. 1, 2019).
The first two requirements are not in question. The question before us is purely legal in nature, simply requiring statutory interpretation. And a "substantial ground for difference of opinion" exists where, inter alia , the question of law has not been directly addressed by the appellate or supreme court. Rozsavolgyi v. City of Aurora , 2017 IL 121048, ¶ 32, 421 Ill.Dec. 881, 102 N.E.3d 162. There is almost no existing law on the issue posed by the certified question. Thus, the first requirements are met. The final requirement—that the appellate court's resolution of the issue will materially advance the ultimate termination of the litigation—is also met here, although that might seem less clear.
¶ 12 It is true that our resolution of the certified question will not advance the entry of the dissolution judgment, as that has already occurred. Nevertheless, "the litigation" continues to pend in the trial court because the appeal from that judgment requires the preparation of a record. That the litigation continues in the trial court is especially clear here, where the underlying appeal was brought under Illinois Supreme Court Rule 311 (eff. July 1, 2018). Under paragraph (a)(3) of that rule, the trial court has "continuing jurisdiction for the purpose of enforcing the rules for preparation of the record and transcript." Ill. S. Ct. R. 311(a)(3) (eff. July 1, 2018).2 The petitioner specifically identified and requested the preparation of eight transcripts that he believed were necessary for his appeal, but they were not provided because the trial court did not know the answer to the legal question before us now. Thus, our resolution of the certified question is necessary to advance the litigation.
¶ 13 Further, the petitioner cannot move forward with an effective appeal without transcripts. If he attempted to do so, we would almost certainly summarily affirm the judgment because, without an adequate record of the proceedings, we must assume that the trial court's decision accorded with the law and had a sufficient factual basis. Koppel v. Michael , 374 Ill. App. 3d 998, 1008, 313 Ill.Dec. 161, 871 N.E.2d 888 (2007) (citing Foutch v. O'Bryant , 99 Ill. 2d 389, 391-92, 76 Ill.Dec. 823, 459 N.E.2d 958 (1984) ).
¶ 14 Finally, judicial economy and other considerations may support proceeding to answer...
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... ... 903 735 ILCS 5/5-105 (West 2020) ) and Illinois Supreme Court Rule 298 (eff. July 1, 2019). In re Marriage of Main , 2020 IL App (2d) 200131, 21, 447 Ill.Dec. 854, 175 N.E.3d 222. To qualify for a waiver of court costs, fees, and charges, a litigant must submit an application that is "sufficient to allow a court to determine whether an applicant qualifies for full or partial waiver of assessments pursuant to ... ...