In re Marriage of Wolff

• Decision Date: 21 January 2005
• Docket Number: No. 2-04-0384.,2-04-0384.
• Citation: 355 Ill. App.3d 403,822 N.E.2d 596,290 Ill.Dec. 1011
• Parties: In re MARRIAGE OF Kimberly A. WOLFF, Petitioner-Appellant, and Richard A. Wolff, Respondent-Appellee.
• Court: United States Appellate Court of Illinois

822 N.E.2d 596

355 Ill. App.3d 403

290 Ill.Dec. 1011

In re MARRIAGE OF Kimberly A. WOLFF, Petitioner-Appellant, and

Richard A. Wolff, Respondent-Appellee.

No. 2-04-0384.

Appellate Court of Illinois, Second District.

January 21, 2005.

William J. Stogsdill, Jr., Anthony Sammarco, Law Offices of William J. Stogsdill, Jr., Wheaton, for Kimberly A. Wolff.

John P. Houlihan, Patricia A. Fox, Beck, Houlihan & Scott, P.C., Wheaton, for Richard A. Wolff.

Justice KAPALA delivered the opinion of the court:

Petitioner, Kimberly A. Wolff, appeals from an order of the circuit court of Du Page County granting respondent's, Dr. Richard A. Wolff's, amended motion to reconsider the final judgment of dissolution of marriage and its subsequent award of sole custody of the parties' two minor children to respondent following a new trial upon reopened proofs. For the reasons that follow, we affirm.

FACTS

The parties were divorced on October 25, 2002. On that date, the trial court entered a judgment of dissolution of marriage that, inter alia, awarded petitioner sole custody of the minor children, Alexander and Aaron. On November 13, 2002, respondent, acting pro se, filed a timely motion to reconsider pursuant to section 2-1203 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1203 (West 2002)) in which he raised issues related to the distribution of marital assets, rehabilitative maintenance, and the award of legal fees to petitioner. Respondent did not raise any issue with respect to custody in this motion to reconsider.

The motion to reconsider came before the trial court for hearing on December 9, 2002. Before taking up the motion to reconsider, the trial court addressed respondent's newly filed motion to enjoin petitioner from moving with the children to Quincy, Illinois, some 300 miles distant from Du Page County. The trial court allowed petitioner's oral motion to dismiss the motion to enjoin, ruling that it lacked authority to restrain petitioner from moving anywhere within the State of Illinois. The trial court then engaged in a colloquy with respondent, who was still pro se, in which it expressed reservations about having granted sole custody to petitioner in the first instance. The trial court said it was "very disappointed" that petitioner now was planning to move away with the children. The trial court pointed out to respondent that his motion to reconsider did not allege that the trial court erred in awarding custody to petitioner as grounds for relief and, therefore, the trial court was powerless to hear that issue. Respondent requested leave to amend the motion to reconsider, and the trial court gave him until December 16, 2002, to file the amended motion. The amendment was not filed within the extension of time granted by the trial court.

Respondent hired counsel who, on December 31, 2002, filed a motion to extend the time for filing the amended motion to reconsider, and, although the record does not indicate whether there was any ruling on the motion to extend, on January 6, 2003, the trial court gave respondent leave to file the amended motion instanter. In pertinent part, the amended motion to reconsider alleged that "[s]ince the trial took place newly discovered evidence has surfaced that compels the court to change its decision in granting sole custody to [petitioner]." The newly discovered evidence alleged by respondent was a statement made by petitioner to respondent on November 29, 2002, that she was moving with the boys to Quincy. Respondent requested that the trial court reconsider its judgment or, in the alternative, grant a new trial.

Petitioner brought a written motion pursuant to section 2-619 of the Code (735 ILCS 5/2-619 (West 2002)) to dismiss the amended motion. Petitioner alleged that the trial court lacked jurisdiction to hear the amended motion inasmuch as the original motion did not raise the subject of custody and the amended motion was not filed within the extension given to respondent at the hearing on December 9. Petitioner's theory in her motion to dismiss was that section 2-616(b) of the Code (735 ILCS 5/2-616(b) (West 2002)), allowing amendments of pleadings after the running of the statute of limitations period, applied to respondent's section 2-1203 amended motion to reconsider. In her motion to dismiss, petitioner also attacked the sufficiency of the allegations of newly discovered evidence. Among other things, she challenged the sufficiency of respondent's assertion that he exercised due diligence in discovering the newly discovered evidence. The trial court denied the motion to dismiss. After the denial of the motion to dismiss, petitioner filed an answer to the amended motion to reconsider, in which she raised the same matters she advanced in her motion to dismiss as affirmative defenses to the amended motion to reconsider. On April 14, 2003, the trial court held an evidentiary hearing on respondent's amended motion to reconsider. At this hearing, petitioner admitted that she signed a lease for a farmhouse in Quincy in July 2002 although she denied that a move to Quincy was anything more than one consideration among many at that time. The trial court granted the motion to reconsider and granted a new trial "on the limited issue of custody, visitation, and child support as it relates to the newly discovered evidence of Mrs. Wolff potentially moving to Quincy with the children." After taking additional evidence on those issues, and incorporating the prior evidence from the original trial and the evidence taken at the hearing on the amended motion to reconsider, the trial court entered an order awarding sole custody to respondent on December 31, 2003. Petitioner filed a timely appeal.

DISCUSSION

I. Denial of the Motion to Dismiss the Amended Motion to Reconsider

Petitioner first contends that the trial court erred in denying her motion to dismiss the amended motion to reconsider. We affirm the trial court's denial of the motion to dismiss on the ground that petitioner employed a procedural nullity in filing a section 2-619 motion to dismiss respondent's amended section 2-1203 motion. Section 2-619 applies only to the dismissal of pleadings. See 735 ILCS 5/2-619 (West 2002). A section 2-1203 motion to reconsider is not a pleading. See In re Marriage of Sutherland, 251 Ill.App.3d 411, 414, 190 Ill.Dec. 695, 622 N.E.2d 105 (1993) (motion to reconsider could not be dismissed pursuant to section 2-615 because that section applies only to the dismissal of pleadings). A motion is an application to the court for a ruling or an order in a pending case. William J. Templeman Co. v. Liberty Mutual Insurance Co., 316 Ill.App.3d 379, 388, 249 Ill.Dec. 65, 735 N.E.2d 669 (2000). A pleading, in contrast, consists of a party's formal allegations of his claims or defenses. Templeman,316 Ill.App.3d at 388, 249 Ill.Dec. 65, 735 N.E.2d 669 (holding that a motion for sanctions is not a pleading). Section 2-603 of the Code (735 ILCS 5/2-603 (West 2002)) defines a pleading as a cause of action, counterclaim, defense, or reply. A motion to reconsider a judgment is none of these. As the amended motion to reconsider could not be dismissed pursuant to section 2-619, we conclude that the trial court did not err in denying the motion to dismiss.

II. Granting the Amended Motion To Reconsider

Petitioner claims, without citing authority, that the trial court lost jurisdiction over respondent's motion to reconsider when respondent did not file his amended motion within the seven-day extension of time granted at the December 9, 2002, hearing. Petitioner asserts that once jurisdiction was lost, the trial court could consider the amended motion only if it related back to the original motion within the meaning of section 2-616(b) of the Code (735 ILCS 5/2-616(b) (West 2002)), and because there was no relation back, the trial court abused its discretion in allowing a hearing on the amended motion to reconsider. The "relation-back" doctrine replaces the former requirement that original and amended pleadings state the same cause of action with the rule that the amended pleading must state facts that arise out of the same occurrence or transaction as that pleaded in the original pleading. Avakian v. Chulengarian, 328 Ill.App.3d 147, 154, 262 Ill.Dec. 663, 766 N.E.2d 283 (2002). Where the trial court's determination of jurisdiction is based solely upon documentary evidence, our standard of review is de novo. Haubner v. Abercrombie & Kent International, Inc., 351 Ill.App.3d 112, 117, 285 Ill.Dec. 884, 812 N.E.2d 704 (2004)

.

Postponing the question of loss of jurisdiction for the moment, we examine section 2-616(b)'s applicability to a section 2-1203 motion to reconsider. Section 2-616(b) addresses amendments to pleadings. "Section 2-616 governs amendments to pleadings filed after the statute of limitations period has expired. * * * The purpose of section 2-616(b) is to insure fairness to litigants rather than to unduly enhance the technical considerations of common law pleadings." Castro v. Bellucci, 338 Ill.App.3d 386, 390-91, 273 Ill.Dec. 610, 789 N.E.2d 784 (2003). Section 2-616(b) provides that a cause of action, cross-claim, or defense set up in an amended pleading is not barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if the time prescribed or limited had not expired when the original pleading was filed, and if it appears from the original and amended pleadings that the cause of action asserted, or the defense or cross-claim interposed, in the amended pleading grew out of the same transaction or occurrence set up in the original pleading. A motion to reconsider is neither a cause of action, a cross-claim, nor a defense, and, as discussed above, is not a pleading. Therefore, section 2-616(b) has no applicability to motions brought under section 2-1203. Moreover, section 2-616(b) applies to amendments to...