In re Marriage of Kostusik
| Decision Date | 14 September 2005 |
| Docket Number | No. 1-05-1196.,1-05-1196. |
| Citation | 836 N.E.2d 147 |
| Parties | In re MARRIAGE OF Adam KOSTUSIK, Petitioner-Appellant, and Angieszka Kostusik, Respondent-Appellee. |
| Court | Illinois Supreme Court |
Roxanna M. Hipple, Kumor & Hipple, P.C., West Dundee, Randy K. Johnson, Ariano, Hardy, Nyuli, Johnson et al., Elgin, for Appellant.
Robert F. Harris, Kass A. Plain, Mary Brigid Hayes, Office of the Cook County Public Guardian, Chicago, for Appellee, the Minor Child.
Petitioner, Adam Kostusik, petitions this court for leave to appeal pursuant to Supreme Court Rule 306(a)(5) ), as an interlocutory order affecting the care and custody of an unemancipated minor. Petitioner seeks review of an interim order of child custody which awarded temporary custody of his son, Daniel, to his wife, respondent Angieszka Kostusik, during the pendency of their dissolution of marriage proceedings. The temporary custody order was entered after the Office of the Cook County Public Guardian, which was appointed as Daniel's representative (child's representative), filed an emergency motion for a change in temporary custody. In his petition, petitioner contends that the circuit court erred in awarding respondent temporary custody of Daniel because (1) the child's representative lacked standing to bring such a motion; and (2) it could not do so without an evidentiary hearing. For the following reasons, we grant petitioner's petition for leave to appeal, but affirm the order of the circuit court awarding respondent temporary custody of Daniel.
Petitioner filed a petition for dissolution of marriage against respondent on June 17, 2004. Therein, petitioner sought, inter alia, custody of Daniel, who was born on February 3, 2004. Along with the petition for dissolution of marriage, petitioner filed a petition for temporary custody of Daniel. Petitioner alleged that he had been the primary caregiver for Daniel during the marriage and that respondent was mentally ill and suicidal.
The same day, the court entered an ex parte emergency order of protection against respondent, granting temporary custody of Daniel to petitioner and prohibiting respondent from contacting petitioner or Daniel. The next day, respondent filed a pro se motion to vacate the order of protection, claiming that she was still breast-feeding Daniel and that the allegations upon which the order of protection were based were untrue.
On June 21, 2004, respondent, through counsel, filed a counter petition for dissolution of marriage. Therein, respondent sought, inter alia, custody of Daniel, alleging that she had been his primary caregiver since birth. Also on June 21, 2004, the court modified the emergency order of protection to provide respondent with supervised visits with Daniel.
The following day, respondent filed an emergency petition seeking the return of Daniel to her. Respondent maintained that she was in "regular" mental and emotional health and that she had never taken any action to harm either herself or her child. Respondent also indicated that because petitioner's mother was an illegal Polish immigrant, there was a threat that she would remove Daniel to Poland. By agreement, on June 25, 2004, the parties increased the amount of time respondent would be permitted to visit with Daniel.
On August 4, 2004, respondent filed another pro se motion seeking the return of Daniel to her. However, once respondent retained new counsel, that motion was withdrawn.
During August, Daniel was diagnosed with developmental disabilities. On September 30, 2004, respondent filed a petition to modify the June 25, 2004, custody order to grant her temporary custody of Daniel. Respondent alleged, inter alia, that petitioner was not attentive to Daniel's medical needs and that he made it difficult for her to take Daniel to medical appointments. Respondent also alleged that petitioner had limited involvement with Daniel and that it was actually petitioner's mother who was caring for him. Respondent attached the report of Cook County Supportive Services, which recommended that she be given custody of Daniel, but that petitioner be given liberal visitation. The court continued this motion until December 2, 2004, then again until January 31, 2005. In January, the court ordered discovery and a professional evaluation of Daniel pursuant to section 604(b) of the Illinois Marriage and Dissolution of Marriage Act (the Act) (750 ILCS 5/604(b) (West 2004)).
Meanwhile, on petitioner's motion, the court appointed the Office of the Cook County Public Guardian as Daniel's representative pursuant to section 506(a)(3) of the Act (750 ILCS 5/506(a)(3) (West 2004)). On March 25, 2005, the child's representative filed his own emergency motion requesting that respondent be given temporary custody. The motion cited the section 604(b) professional evaluation of Susan Schulson, which recommended that respondent be given temporary custody of Daniel and the power to make medical decisions on his behalf. Schulson further reported that petitioner refused to cooperate with the prescribed therapy for Daniel and refused to consent to his treatment. On March 22, 2005, Easter Seals informed Schulson that due to petitioner's failure to cooperate, Daniel would no longer be eligible for therapeutic services through Easter Seals. Alleging that the termination of the therapy with Easter Seals would result in irreparable harm to Daniel, the child's representative sought the change in custody. Petitioner neither objected to the motion nor requested an evidentiary hearing. On March 28, 2005, the circuit court granted the motion made by the child's representative and gave respondent temporary custody of Daniel as well as the authority to make medical decisions on his behalf.
On April 1, 2005, petitioner sought review of the temporary custody order by filing a "Notice of an Appeal pursuant to Illinois Supreme Court Rules 306 and 306(A) from an order entered by the Circuit Court of First Judicial Circuit, Cook County, Illinois, on March 28, 2005 to the Illinois Appellate Court—First Judicial District," in the circuit court. The matter was docketed as an expedited child custody appeal pursuant to Rule 306A ) in this court on April 18, 2005. Petitioner subsequently filed the record on April 27, 2005, and his opening brief on May 18, 2005.
The child's representative filed its brief in response to petitioner's on June 23, 2005. Therein, the child's representative contended, inter alia, that this court lacked jurisdiction to consider the appeal from the temporary custody order because the March 28, 2005, order was not a final order appealable under Rule 306A and petitioner failed to petition for leave to appeal on an interlocutory basis in accordance with the procedures of Rule 306(a)(5). In response, petitioner filed, on July 7, 2005, a "Motion for Petition for Leave to Appeal Pursuant to 306A(a) or Alternatively Petition for Leave to Appeal Pursuant to 306(a)(5) and Petition for Brief to Stand as Petition for Leave to Appeal, Instanter." In that motion, petitioner contended that he had complied with the procedures set forth in Rule 306A for expedited child custody appeals and, citing no authority, that "[i]n the interest of justice and judicial economy," this court should permit him to petition for leave to appeal under either Rule 306A or Rule 306(a)(5). The child's representative filed a response to that motion, contending that the temporary custody order does not fit within any of the four categories for which an automatic right to appeal exists under Rule 306A because it was not an initial final custody order, an order modifying child custody where a change in custody has been granted, a final order of adoption, or a final order terminating parental rights. The child's representative further contended that petitioner should have petitioned for leave to appeal pursuant to Rule 306(a)(5).
On July 22, this court permitted petitioner to petition for leave to appeal pursuant to Rule 306(a)(5). Petitioner requested that his opening brief be treated as his petition for leave to appeal. The child's representative filed a response, initially contending that we lacked jurisdiction to entertain petitioner's petition for leave to appeal. Because petitioner was apparently confused by the new supreme court rules expediting child custody appeals, we will address why Rule 306(a)(5) is the proper vehicle for seeking review of interlocutory child custody orders in addition to addressing our jurisdiction.
It is well-established that except as specifically provided in the supreme court rules, this court is without jurisdiction to review judgments, orders and decrees that are not final. Almgren v. Rush-Presbyterian-St.Luke's Medical Center, 162 Ill.2d 205, 210, 205 Ill.Dec. 147, 642 N.E.2d 1264, 1266 (1994). Here, the March 28, 2005, order from which petitioner seeks to appeal was a temporary custody order. A temporary custody order pursuant to section 603(a) of the Act (750 ILCS 5/603(a) (West 2004)), by its very nature, is not a final, appealable order. In re Marriage of Fields, 283 Ill.App.3d 894, 901, 219 Ill.Dec. 420, 671 N.E.2d 85, 90 (1996); see also Lewis v. Canty, 115 Ill.App.3d 306, 308, 71 Ill.Dec. 176, 450 N.E.2d 864, 865 (1983) (). In fact, when the permanent custody order is entered, the temporary custody order is superseded. Fields, 283 Ill.App.3d at 901, 219 Ill.Dec. 420, 671 N.E.2d at 90. Therefore, the March 28 temporary custody order can only be appealed on an interlocutory basis as provided for in the supreme court rules. Lewis, 115 Ill.App.3d at 308, 71 Ill.Dec. 176, 450 N.E.2d...
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