In re Marriage of Paclik

• Decision Date: 21 February 2007
• Docket Number: No. 5-06-0416.,5-06-0416.
• Citation: 864 N.E.2d 274
• Parties: In re MARRIAGE OF Charles PACLIK, Petitioner-Appellee, and Jenny C. Paclik, Respondent-Appellant.
• Court: United States Appellate Court of Illinois

864 N.E.2d 274

In re MARRIAGE OF Charles PACLIK, Petitioner-Appellee, and

Jenny C. Paclik, Respondent-Appellant.

No. 5-06-0416.

Appellate Court of Illinois, Fifth District.

February 21, 2007.

E. Nicole Carrion, Thomas, Mottaz, and Eastman, Alton, for Appellant.

Daniel J. Grueninger, Law Office of Daniel J. Grueninger, Belleville, for Appellee.

Justice STEWART delivered the opinion of the court:

This case comes to us for review from the trial court's entries of emergency and plenary orders of protection. The parties' dissolution of marriage remains pending. On appeal, the respondent, Jenny C. Paclik, argues that the trial court erred in denying her motion to substitute judge pursuant to local court rule 8.05 (20th Judicial Cir. Ct. R. 8.05 (eff. December 12, 1991)); Illinois Supreme Court Rule 903 (Official Reports Advance Sheet No. 6 (March 15, 2006), R. 903, eff. July 1, 2006); and, as a matter of right, pursuant to section 2-1001(a)(2) of the Code of Civil Procedure (the Code) (735 ILCS 5/2-1001(a)(2) (West Supp.2005)). We reverse and remand.

BACKGROUND

On September 15, 2005, the petitioner, Charles Paclik, filed his petition seeking a judgment of the dissolution of his marriage to Jenny. The parties have two sons, both of whom were preschoolers at the time of these events. On the same day Charles filed his petition for a judgment of dissolution, the Honorable Alexis Otis-Lewis was assigned to the case.

Two days before Charles filed the dissolution action, Jenny and the children had moved out of the marital residence and into a domestic violence shelter, where they stayed until December 27, 2005.

Judge Otis-Lewis conducted three separate hearings in the dissolution proceeding prior to the hearings before the Honorable Walter C. Brandon, Jr., on Charles's petition for an order of protection. The first hearing before Judge Otis-Lewis concerned temporary custody, at which time the parties agreed that they would share joint custody of the children, with Jenny having primary physical custody subject to Charles's right of visitation. At the first hearing, Charles was represented by counsel but Jenny was not.

At the next hearing, on December 12, 2005, both parties were represented by counsel. On that date, Judge Otis-Lewis signed an agreed order allowing Jenny to move to the State of California with the children, again subject to Charles's right of visitation. The agreed order set out a schedule of visitation for Charles and the children, the amount of child support Charles was to pay, how the income tax refund for that year was to be split, and a partial distribution of personal property. Additionally, Jenny agreed to waive temporary maintenance, all of her interest in the marital residence, and any claim to Charles's pension in exchange for Charles's agreement allowing her to move to California with the children.

Less than two months after the December 2005 agreed order, Charles filed a petition seeking to modify that order, alleging that Jenny had interfered with his visitation and failed to allow him telephone contact with the children. In that petition, Charles requested the trial court to order Jenny to return the children to Illinois. Jenny filed a response denying the essential allegations of Charles's petition.

On April 13, 2006, Judge Otis-Lewis conducted a hearing on Charles's petition to modify. Once again, the parties announced their agreement to the court. Both parties, represented by counsel, acknowledged that they had reviewed all of the terms of the agreed order for more than three hours prior to announcing the agreement to the court. Both parties agreed that allowing Jenny to stay in California with the children on a permanent basis was in the children's best interest. Charles admitted, however, that without a court order, he would not return the children to Jenny in California after his visit with them. Charles acknowledged under oath that he was aware of the adverse consequences he risked if he failed to return the children to Jenny at the end of each scheduled visit.

Under the April 2006 agreed order, Charles's first visit with the children was scheduled for June 4 through July 2, 2006. Both parties acknowledged that the visitation schedule was not intended to be effective after December 2006, and they agreed to revise the visitation schedule as needed after that.

Before entering the agreed order, Judge Otis-Lewis went over its terms with the parties. Finally, the parties agreed that they would finish discovery before a final hearing was conducted.

On June 30, 2006, while the boys were with Charles in Illinois, Charles filed a pro se petition for an order of protection against Jenny, alleging that Jenny had physically abused the children and that a man by the name of Jose had sexually abused them. On the same date and without notice to Jenny or either attorney, Charles obtained an emergency order of protection (EOP) from Judge Walter C. Brandon, Jr. By entering the EOP, Judge Brandon transferred temporary custody of the children from Jenny to Charles and prohibited Jenny from having any visitation with the children. The EOP was set to expire July 18, 2006, on which date a hearing was scheduled to determine whether an interim or plenary order of protection should be entered.

On July 13, 2006, Jenny, through her attorney, filed a motion to rehear the EOP and a motion for a substitution of judge pursuant to local court rule 8.05 (20th Judicial Cir. Ct. R. 8.05 (eff. December 12, 1991)); Supreme Court Rule 903 (Official Reports Advance Sheet No. 6 (March 15, 2006), R. 903, eff. July 1, 2006); and, as a matter of right, pursuant to section 2-1001(a)(2) of the Code (735 ILCS 5/2-1001(a)(2) (West Supp.2005)). In the motion for substitution, Jenny reminded the court that Charles's petition for an order of protection involved issues of child custody and visitation, which issues were the subject of the parties' pending dissolution proceeding, to which Judge Otis-Lewis had been previously assigned.

On July 18, 2006, the case came before Judge Brandon for a hearing on the motion for a substitution of judge prior to the hearing on whether the order of protection should be extended. After hearing the parties' arguments, Judge Brandon denied the motion for substitution without stating his reasons, and the parties proceeded to present evidence on the question of the extension of the order of protection.

After the parties presented their evidence, Judge Brandon granted Charles's request for a plenary order of protection. The plenary order of protection is effective until July 18, 2008, "or until investigation of * * * Jenny Paclik is completed by the Dept. [of] Children [and] Family Services in California and said investigation is `unfounded'; or until this order is superceded in the Illinois Family Court division; whichever occurs first." The plenary order grants the custody of the children to Charles subject to Jenny's specified visitation in Illinois, which occurred in July 2006. The order does not provide any other visitation for Jenny and the children except daily telephone contact. Until the plenary order expires, Jenny is not allowed any other contact with her sons.

Jenny filed a timely notice of appeal.

ANALYSIS

A. Substitution of Judge as a Matter of Right

The primary issue presented is whether the trial court erred by denying Jenny's motion for a substitution of judge. Jenny cites several reasons why her motion should have been granted. We first consider whether the trial court should have granted the motion, as a matter of right, pursuant to section 2-1001(a)(2) of the Code. That statute provides:

"When a party timely exercises his or her right to a substitution without cause * * *

(i) Each party shall be entitled to one substitution of judge without cause as a matter of right.

(ii) An application for substitution of judge as of right shall be made by motion and shall be granted if it is presented before trial or hearing begins and before the judge to whom it is presented has ruled on any substantial issue in the case, or if it is presented by consent of the parties.

(iii) If any party has not entered an appearance in the case and has not been found in default, rulings in the case by the judge on any substantial issue before the party's appearance shall not be grounds for denying an otherwise timely application for substitution of judge as of right by the party." 735 ILCS 5/2-1001(a)(2) (West Supp.2005).

When determining whether a party is entitled to a substitution of judge as a matter of right, the issue of whether there has been a ruling on a substantial issue in the case is a question of law to which the court of review applies a de novo standard of review. Niemberg v. Bonelli, 344 Ill. App.3d 459, 464, 279 Ill.Dec. 244, 800 N.E.2d 86, 89 (2003).

Jenny argues that she was entitled to a substitution of judge, as a matter of right, in order to remove Judge Brandon from the case because Charles filed the petition for an order of protection and obtained the EOP without notice to her and before she could enter an appearance in the order-of-protection case. Jenny argues that although Judge Brandon's entry of the EOP was clearly a ruling on a substantial issue, under subsection (a)(2)(iii) of the statute (735 ILCS 5/2-1001(a)(2)(iii) (West Supp. 2005)), she is entitled to the substitution, as a matter of right, because she had not entered an appearance in the order-of-protection case nor had she been found in default. We agree.

Under the clear terms of the substitution-as-a-matter-of-right statute, the only rulings to be considered in granting or denying the motion are those made after all parties who are not defaulted have entered an appearance. Scroggins v. Scroggins, 327 Ill.App.3d 333, 336, 261 Ill. Dec. 268, 762 N.E.2d 1195, 1198 (2002). In other words, a party who has not yet had an opportunity to participate in a case does not automatically lose his or her option...