In re Marriage of Crecos
38 N.E.3d 80
Ill. App. Ct.2015Background
- Diana filed for dissolution in 2007; final judgment entered December 24, 2009, disposing of property; Gregory appealed and this court affirmed the dissolution.
- While Gregory’s appeal was pending, the case was reassigned to Judge Raul Vega for postdecree matters on July 15, 2010; Gregory filed an emergency petition July 15, and Judge Vega set a briefing schedule July 16, 2010.
- Diana filed a motion for substitution of judge as of right under 735 ILCS 5/2-1001(a)(2) after the July 16 scheduling order; Judge Vega denied the substitution on July 27, 2010.
- After denial, Judge Vega entered multiple postdecree orders (including orders directing return of property and later large money judgments) and denied Diana’s motions to reconsider; Diana appealed those orders on August 22, 2013.
- During supplementary proceedings, Judge Diann Marsalek entered a wage-deduction/turnover order on December 17, 2013; Diana appealed.
- The appellate court held Diana’s substitution motion was timely because Judge Vega had not made any substantial ruling on the merits before the motion; therefore all orders entered by Judge Vega after denial were void and were reversed, and the supplementary wage order based on those void orders was also void.
Issues
| Issue | Diana's Argument | Gregory's Argument | Held |
|---|---|---|---|
| Whether Diana’s substitution motion was timely | Motion filed before any trial/hearing and before any substantial ruling; thus must be granted as of right | Judge Vega made a substantial ruling before motion; Diana delayed and didn’t raise motion at earliest time | Motion timely: Judge Vega had only set a briefing schedule (not a substantial merits ruling); substitution should have been granted; denial was error |
| Whether appellate record sufficed to review substitution denial | Order denying substitution and motion in record; no reporter needed for de novo review of pleadings | Lack of dated filing stamp and no report of proceedings prevents review | Sufficient: de novo review applies and the pleadings plus the denial order allowed review without a transcript |
| Whether subsequent orders (postdecree and supplementary) are valid | Orders entered after an erroneously denied substitution are void | Orders are valid and appealable; substitution denial proper | Subsequent orders are void when entered after an improperly denied substitution of judge; all such orders reversed |
Key Cases Cited
- In re Marriage of Kozloff, 101 Ill.2d 526 (Ill. 1984) (assignment of a different judge who has not made a substantial ruling entitles party to substitution as of right)
- In re Dominique F., 145 Ill.2d 311 (Ill. 1991) (timely, properly filed change-of-judge motion requires grant and subsequent orders are nullities)
- Chicago Transparent Products, Inc. v. American Nat’l Bank & Trust Co. of Chicago, 337 Ill. App.3d 931 (Ill. App. Ct. 2003) (scheduling or setting briefing is not a substantial ruling)
- Nasrallah v. Davilla, 326 Ill. App.3d 1036 (Ill. App. Ct. 2001) (definition of substantial ruling: one that relates directly to the merits)
- Schaffner v. 514 W. Grant Place Condominium Ass’n, 324 Ill. App.3d 1033 (Ill. App. Ct. 2001) (definition and treatment of scrivener’s errors in notices of appeal)
- Dep’t of Central Management Servs. v. American Fed’n of State, County & Mun. Employees, 182 Ill.2d 234 (Ill. 1998) (appellate court’s independent duty to determine jurisdiction)