Petalino v. Williams

• Decision Date: 26 August 2016
• Docket Number: No. 1–15–1861.,1–15–1861.
• Citation: 406 Ill.Dec. 746,61 N.E.3d 1014
• Parties: Gilda PETALINO, Petitioner–Appellee, v. Le Dominic WILLIAMS, Respondent–Appellant.
• Court: United States Appellate Court of Illinois

61 N.E.3d 1014

406 Ill.Dec. 746

Gilda PETALINO, Petitioner–Appellee,

v.Le Dominic WILLIAMS, Respondent–Appellant.

No. 1–15–1861.

Appellate Court of Illinois, First District, Fifth Division.

Aug. 26, 2016.

Martin Spencer, of Chicago, for appellant.

Charles A. Bird, of Dentons US LLP, and Jennifer Payne, of Legal Assistance Foundation, both of Chicago, for appellee.

OPINION

Presiding Justice REYES

delivered the judgment of the court, with opinion.

¶ 1 Respondent Le Dominic Williams (Williams) appeals from a plenary order of protection issued by the circuit court of Cook County pursuant to the Illinois Domestic Violence Act of 1986 (Domestic Violence Act) (750 ILCS 60/101 et seq.

(West 2014)) in favor of Gilda Petalino (Petalino). Williams argues that the circuit court abused its discretion when it denied his motion for substitution for judge. Williams also argues the circuit court erred in denying his motion for a continuance of the hearing to provide him the opportunity to subpoena his witnesses. For the reasons that follow, we affirm.

¶ 2 BACKGROUND

¶ 3 On January 26, 2012, Williams filed a complaint in the circuit court of Cook County to determine the existence of a parent-child relationship pursuant to the Illinois Parentage Act of 1984 (Parentage Act) (750 ILCS 45/1 et seq.

(West 2012)). Williams alleged he fathered a child (B.W.) with Petalino and requested the court enter the following orders: (1) declare him to be B.W.'s father, (2) require Petalino to pay child support, and (3) establish reasonable visitation. In her answer to the complaint, Petalino admitted Williams is B.W.'s biological father, requested Williams be ordered to pay child support, and admitted the court should establish reasonable visitation.

¶ 4 On June 25, 2013, after a hearing on all of the issues pertaining to the parentage of B.W., the circuit court entered an order finding Williams was B.W.'s father and granting Petalino sole custody of the child and provided “liberal and reasonable visitation” for Williams with specific provisions.

¶ 5 Petalino, on October 23, 2014, filed a petition for an order of protection based on Williams' alleged use of a belt on the child's buttocks as a form of punishment. Accompanying the petition was a form “Domestic Violence Cover Sheet,” which indicated that the parties had previously filed a parentage action between them that was assigned case No. 12 D 279004. Upon presentment of the petition, the circuit court, although finding that there was insufficient evidence of an emergency, did schedule the matter for a hearing. At Petalino's request, on December 19, 2014, the circuit court voluntarily dismissed the petition without prejudice.

¶ 6 Petalino, on December 19, 2014, filed a petition for an emergency order of protection alleging (1) on two occasions Williams beat B.W. with a belt on his buttocks and (2) the Department of Children and Family Services indicated a finding of child abuse or neglect against Williams regarding his treatment of B.W. The emergency petition was also accompanied by a “Domestic Violence Cover Sheet” that was identical to the one previously filed and, accordingly, the matter was set for a hearing. That same day, the circuit court granted an emergency order of protection for both Petalino and B.W. Williams was ultimately served with the petition by publication.

¶ 7 On March 6, 2015, Williams was present in court and was represented by counsel who had not yet filed an appearance. The circuit court granted Williams or his counsel 21 days to file an appearance and continued the matter for status to April 21, 2015.

¶ 8 Williams, on March 27, 2015, filed his pro se appearance and requested an additional 14 days to respond to the motion for the order of protection and retain counsel.

¶ 9 On April 20, 2015, Williams filed a pro se motion for substitution of judge. In his motion, Williams asserted that he “believes it would be in his best interest to have the matter transferred to be heard before a different Judge as [the same trial judge] handled and decided the custody issues, visitation, child support and mediation matters pertaining to [Williams'] minor child.” Williams further asserted he “believes that the Order of Protection would much better be handled by another Judge as there would be no past matter familiarities on any issues other than the issues at hand for the present litigation.” The motion did not indicate whether Williams was seeking a substitution of judge as of right or for cause. The following day, the circuit court denied the motion for substitution of judge, granted Williams an additional 10 days to answer the order of protection, and set the matter for hearing on May 12, 2015.

¶ 10 Thereafter, Williams timely filed a motion for reconsideration, which clarified that his request for substitution of judge was being made as of right. On May 12, 2015, the circuit court denied the motion on the basis that substantive rulings had already been rendered by the same trial judge. The circuit court further ordered that the hearing be continued to June 1, 2015, for Petalino to present the remainder of her case in chief and for Williams to present his case.

¶ 11 On May 31, 2015, Williams e-mailed Petalino's counsel indicating he would be filing an emergency motion to continue the hearing the next day. The emergency motion, which is devoid of a file stamp appears in the supplemental record and indicates that the basis for Williams' request for a continuance was for an “opportunity to subpoena his witnesses” as they were unable to be present for the hearing.

¶ 12 On June 1, 2015, after concluding the hearing, the circuit court granted a two-year plenary order of protection for Petalino and B.W. The record on appeal contains no order or report of proceedings indicating the circuit court ruled on Williams' emergency motion for a continuance. This appeal followed.

¶ 13 ANALYSIS

¶ 14 Substitution of Judge as of Right

¶ 15 On appeal, Williams first argues the circuit court erred when it denied his motion for substitution of judge as of right. Williams maintains his motion was timely because (1) it was filed shortly after he filed his appearance and (2) the circuit court had not made any substantive rulings. According to Williams, he had an absolute right to have his motion granted.

¶ 16 “Illinois courts have held that, when properly made, a motion for substitution of judge as a matter of right is absolute, and the circuit court has no discretion to deny the motion.” Bowman v. Ottney, 2015 IL 119000, ¶ 17, 400 Ill.Dec. 640, 48 N.E.3d 1080

; Cincinnati Insurance Co. v. Chapman, 2012 IL App (1st) 111792, ¶ 23, 363 Ill.Dec. 401, 975 N.E.2d 203. Accordingly, we review a denial of a motion for substitution of judge as of right de novo, and such review should lean toward favoring rather than defeating a substitution of judge. Curtis v. Lofy, 394 Ill.App.3d 170, 176, 333 Ill.Dec. 41, 914 N.E.2d 248 (2009). “Orders entered after a motion for substitution of judge is wrongfully denied are void.” In re Marriage of Paclik, 371 Ill.App.3d 890, 896, 309 Ill.Dec. 408, 864 N.E.2d 274 (2007).

¶ 17 Section 2–1001(a)(2)(ii) of the Code of Civil Procedure

(Code) ( 735 ILCS 5/2–1001(a)(2)(ii) (West 2014)) provides, in relevant part, that a substitution of judge “in any civil action” may be had as follows:

“(2) Substitution as of right. When a party timely exercises his or her right to a substitution without cause as provided in this paragraph (2).

(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.”

¶ 18 According to the statute, a party must “timely” exercise the right to a substitution of judge without cause. Id. The statute's requirement that the motion be timely is to prohibit litigants from “judge shopping” by seeking a substitution after they have formed an opinion that the judge may be unfavorably disposed toward the merits of their case. See Bowman, 2015 IL 119000, ¶¶ 18, 25, 400 Ill.Dec. 640, 48 N.E.3d 1080

; In re Estate of Hoellen, 367 Ill.App.3d 240, 245–46, 305 Ill.Dec. 182, 854 N.E.2d 774 (2006). Accordingly, a motion for substitution of judge as of right must be (1) filed at the earliest practical moment before commencement of trial or hearing and (2) before the trial judge considering the motion rules upon any “substantial issue” in the case. Chapman, 2012 IL App (1st) 111792, ¶ 23, 363 Ill.Dec. 401, 975 N.E.2d 203 ; see Hoellen, 367 Ill.App.3d at 245–46, 305 Ill.Dec. 182, 854 N.E.2d 774 (citing In re Estate of Gay, 353 Ill.App.3d 341, 343, 288 Ill.Dec. 925, 818 N.E.2d 860 (2004) ); 735 ILCS 5/2–1001(a)(2) (West 2014). A ruling is substantial if it relates directly to the merits of the case. Colagrossi v. Royal Bank of Scotland, 2016 IL App (1st) 142216, ¶ 30, 404 Ill.Dec. 842, 57 N.E.3d 601.

¶ 19 Williams maintains that the circuit court abused its discretion in denying his motion for substitution of judge based on its finding that it had rendered previous substantive rulings in the parties' parentage case. Williams contends Petalino's petition for an order of protection initiated a new domestic violence proceeding against him as evidenced by her being designated the “petitioner” and having to serve him with process. In support of his position, Williams relies on the language of the Domestic Violence Act which provides that an order of protection is “a distinct cause of action and requires that a separate summons be issued and served.” 750 ILCS 60/210(a)

(West 2014). Williams asserts that because the petition for an order of protection was a new proceeding, the circuit court rendered no substantive rulings in that matter and, therefore, had no basis to deny his motion...