In re Wendy S.
| Decision Date | 20 March 2020 |
| Docket Number | No. 1-19-1661,1-19-1661 |
| Citation | 2020 IL App (1st) 191661,148 N.E.3d 272,439 Ill.Dec. 532 |
| Parties | IN RE MARRIAGE OF: WENDY S., Petitioner-Appellee, and GEORGE D., Respondent-Appellant. |
| Court | United States Appellate Court of Illinois |
George D., of Winnetka, appellant pro se.
Matthew C. Arnoux, of Birnbaum, Haddon, Gelfman & Arnoux, LLC, of Chicago, for appellee.
¶ 1 The circuit court of Cook County entered an order striking a minor section from a previous custody1 judgment between the pro se respondent-appellant, George D., and the petitioner-appellee, Wendy S. George now appeals. For the following reasons, we affirm the judgment of the circuit court of Cook County.
¶ 3 The parties were married in 2001 and had three children during the marriage. In 2008, Wendy filed for dissolution of the marriage. On September 28, 2010, the trial court entered an order awarding Wendy sole custody of the children (the 2010 custody judgment). On October 19, 2010, the trial court entered a judgment for dissolution of marriage which incorporated the 2010 custody judgment.
¶ 4 In October 2012, George filed a petition to modify custody pursuant to section 610 of the Illinois Marriage and Dissolution of Marriage Act (Act) ( 750 ILCS 5/610 (West 2012) ), claiming that changed circumstances warranted a modification of the 2010 custody judgment. He sought sole custody of the children. Following a hearing on George's petition, the trial court entered an order on December 15, 2015, granting the petition (the 2015 custody judgment). The 2015 custody judgment awarded George sole custody of the children subject to Wendy's designated visitation.2 Section X of the 2015 custody judgment designated a psychologist, Dr. Jay Lebow, to serve as a "behavioral parenting coach" for the parties. Section X(C) specified that, "[p]rior to either parent filing a motion or petition in court regarding custody or visitation, the party shall submit a written report from Dr. Lebow at their expense confirming that court intervention is required to protect the health[,] safety or welfare of the child."
¶ 5 Wendy appealed the 2015 custody judgment. She argued before this court that the trial court erred in not requiring George to plead or prove "serious endangerment" in order to seek modification of custody, pursuant to section 610(a) of the Act. Id. § 610(a). She also argued that the court erred in finding, pursuant to section 610(b) of the Act, that George proved by clear and convincing evidence that a custody change was in the children's best interests. Id. § 610(b). On appeal, she made no specific challenges to section X(C) of the 2015 custody judgment. We affirmed the 2015 custody judgment. In re Marriage of Wendy L.D. , 2017 IL App (1st) 160098, 411 Ill.Dec. 121, 72 N.E.3d 809.
¶ 6 In 2016, while Wendy's appeal from the 2015 custody judgment was pending, Wendy filed two motions in the trial court: (1) a "motion to allow [her] to file motions concerning the best interests of the children," which sought an order vacating section X(C) of the 2015 custody judgment; and (2) a "motion to modify the [visitation] schedule," which sought certain revisions to the 2015 custody judgment relating to the allocation of visitation. Wendy did not submit a report from Dr. Lebow in support of her visitation motion. The trial court denied Wendy's motion that related to visitation time because she had not consulted with Dr. Lebow before filing the motion as required by section X(C) of the 2015 custody judgment; the court also denied her motion that sought to vacate section X(C) (the 2016 motions judgment).
¶ 7 Wendy then appealed the 2016 motions judgment. On appeal, we held that the trial court lacked jurisdiction to decide Wendy's two motions while her appeal from the 2015 custody judgment was pending. We accordingly vacated the 2016 motions judgment. In re Marriage of Wendy L.D. , 2017 IL App (1st) 170063-U, 2017 WL 3724574.
¶ 8 On August 28, 2018, Wendy filed an "Amended Motion to Allow [Wendy] to File Motions Concerning the Best Interests of the Children" (the amended motion).3 In her amended motion, Wendy sought to have section X(C) of the 2015 custody judgment vacated on the ground that it was void. She argued that section X(C) was void for three reasons: (1) the trial court lacked subject matter jurisdiction to enter section X(C) because it delegated the court's statutory power to decide custody matters to a third party, specifically Dr. Lebow; (2) section X(C) is unconstitutional as it violates the parties' due process and equal protection rights; and (3) section X(C) is contrary to Illinois public policy.
¶ 9 George filed an objection to Wendy's amended motion on the basis of improper service, claiming that she served notice only via electronic mail. The trial court denied George's notice objection but allowed him 35 days to respond to Wendy's amended motion.
¶ 10 George then responded to Wendy's amended motion by arguing that Wendy was procedurally barred from filing it. He argued that Wendy had previously failed to challenge section X(C) in her appeal from the 2015 custody judgment and so the law-of-the-case doctrine4 now barred her from challenging section X(C) before the trial court. George also claimed that Wendy did not seek leave from the trial court to file her amended motion and so the trial court did not have jurisdiction to consider it.
¶ 11 Following a hearing on July 19, 2019, the trial court granted Wendy's amended motion. The court's order stated: "The question of whether [section] X(C) of the 2015 Custody Judgment must be vacated hinges on whether the provision is deemed void." The court then found that section X(C) is void because "[t]he court exceeded its authority by delegating to a third party the power to intervene in custody matters." The order further found section X(C) to be void because it violated the parties' substantive and procedural due process rights.
¶ 12 The trial court then struck section X(C) from the 2015 custody judgment.5 However, the court left the remainder of the 2015 custody judgment intact. This appeal followed.
¶ 14 The record reflects that there were multiple claims involved in this case; the trial court's July 19, 2019 judgment, which struck section X(C) from the 2015 custody judgment, nevertheless, continued the case to a later date for resolution of other pending matters.6 Nonetheless, pursuant to Illinois Supreme Court Rule 304(b)(6) (eff. Mar. 8, 2016), appeals can be taken from final judgments modifying a custody judgment even where the judgment does not dispose of the entire proceeding. As George filed a timely notice of appeal following the trial court's July 19, 2019 judgment, which modified the 2015 custody judgment, we have jurisdiction to consider this appeal. See Ill. S. Ct. R. 303 (eff. July 1, 2017).
¶ 15 As an initial matter, we address Wendy's request that we dismiss this appeal, or in the alternative, strike George's statement of facts section from his brief. Wendy argues that George's statement of facts section "is replete with violations of Rule 341(h)(6)" because it contains "inaccurate and argumentative facts" as well as "highly prejudicial and immaterial information." Illinois Supreme Court Rule 341(h) ( ) provides strict rules which litigants must follow in submitting their appellate briefs, including a statement of facts in which the facts are "stated accurately and fairly without argument or comment." Pro se litigants, such as George, are not excused from following these rules which dictate the form and content of appellate briefs. Lewis v. Heartland Food Corp. , 2014 IL App (1st) 123303, ¶ 5, 384 Ill.Dec. 646, 17 N.E.3d 219. Nevertheless, while George's statement of facts is, at times, argumentative, his brief adequately complies with Rule 341(h) so that this court is able to comprehend the relevant facts. Where violations of supreme court rules are not so flagrant as to hinder or preclude our review, the striking of a brief is unwarranted. Cottrill v. Russell , 253 Ill. App. 3d 934, 938, 192 Ill.Dec. 733, 625 N.E.2d 888 (1993). Thus, in the interest of justice, we decline to take the drastic action of dismissing this appeal or striking the section of George's brief that contains the statement of facts.
¶ 16 Turning to the merits, George frames his arguments on appeal as multiple issues. However, the substance of his arguments amount to the following two issues: (1) whether Wendy was procedurally barred from filing her amended motion; and (2) whether the trial court erred when it struck section X(C) from the 2015 custody judgment.
¶ 17 George first argues that Wendy was procedurally barred from filing her amended motion for numerous reasons, such as that: (1) the trial court lacked jurisdiction to consider Wendy's amended motion because it was not properly filed as a section 2-1401 petition7 ; (2) Wendy did not seek leave of the trial court to file her amended motion; (3) Wendy failed to give proper notice of her amended motion pursuant to the rules governing section 2-1401; and (4) the law-of-the-case doctrine barred Wendy's amended motion.
¶ 18 We agree with George that Wendy's amended motion was not a proper section 2-1401 petition. Instead, it was a petition to modify custody . Although Wendy erroneously titled her amended motion, and even argues on appeal that it was a proper section 2-1401 petition, it was clearly a petition to modify custody because she specifically sought to modify the 2015 custody judgment by striking section X(C). It is the substance of a filing, not the title, that controls. Silverstein v. Brander , 317 Ill. App. 3d 1000, 1005, 251 Ill.Dec. 276, 740 N.E.2d 357 (2000).8
¶ 19 Once a court makes an initial custody determination, it retains jurisdiction to modify the custody judgment. 750 ILCS 5/601(a) (West 2012)9 ; In re Estate of...
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