Petalino v. Williams
61 N.E.3d 1014
Ill. App. Ct.2016Background
- Williams filed a 2012 parentage action; the court found him the child’s father and awarded Petalino sole custody with visitation to Williams.
- In October and December 2014 Petalino filed petitions for orders of protection alleging Williams beat the child with a belt; an emergency order was granted in December 2014.
- Williams was served by publication; he later filed a pro se appearance and, after counsel delay, moved for substitution of judge and for continuation of the protection hearing.
- Williams initially moved for substitution of judge (not specifying right vs. cause); he later clarified it was a substitution as of right, which the trial court denied as untimely because the judge had made prior substantive rulings in the parentage case.
- Williams also filed (or purported to file) an emergency motion to continue the hearing to subpoena witnesses; the record contains no file-stamped motion, transcript, or ruling on that motion.
- The circuit court entered a two-year plenary order of protection; Williams appealed arguing denial of substitution as of right, denial of substitution for cause, and denial of a continuance.
Issues
| Issue | Plaintiff's Argument (Williams) | Defendant's Argument (Petalino) | Held |
|---|---|---|---|
| Whether motion for substitution of judge as of right was timely | The protection petition was a new, distinct proceeding; no substantive rulings had been made in the protection matter, so substitution as of right was timely | The protection petition was filed in conjunction with the pending parentage/custody matter before the same judge who had entered prior substantive orders | Denied — substitution as of right untimely because judge had made prior substantial rulings in the parentage proceeding and local/court rules favor one judge for child custody matters |
| Whether substitution for cause should have been granted | Williams asserted judge familiarity with prior case required disqualification for cause | Petalino argued Williams did not plead or verify specific extrajudicial bias; prior rulings alone are insufficient | Denied — petition failed to allege required specific cause and was not verified by affidavit; prior rulings did not show extrajudicial bias |
| Whether the trial court abused discretion by denying continuance to subpoena witnesses | Williams claimed need for emergency continuance to subpoena witnesses who would not be present | Petalino argued Williams waived review by failing to include records/transcript and the motion was not properly in the record | Denied/affirmed — appellate review barred by incomplete record; no file-stamped motion, transcript, or ruling, so court presumed proper exercise of discretion |
| Whether the Domestic Violence Act requires a protection petition filed "in conjunction with" another civil proceeding to be filed only when that other proceeding is pending | Williams argued statute required the other civil proceeding to be pending, meaning the protection petition would be a new proceeding | Petalino argued the Act allows filing an order of protection in conjunction with another civil proceeding whether pending or not, with distinct service rules when pending | Held — statute does not include the word "pending"; legislative scheme differentiates "pending civil case" (special service rules) from filing "in conjunction with another civil proceeding"; court adopts Petalino’s construction |
Key Cases Cited
- Bowman v. Ottney, 2015 IL 119000 (Illinois 2015) (motion for substitution as of right is absolute if timely)
- In re Marriage of Paclik, 371 Ill. App. 3d 890 (Ill. App. Ct. 2007) (local rules and Rule 903 require coordinating custody-related matters before single judge)
- In re Marriage of O’Brien, 2011 IL 109039 (Ill. 2011) (distinguishes use of "motion" for substitution as of right and "petition" for substitution for cause)
- Foutch v. O’Bryant, 99 Ill. 2d 389 (Ill. 1984) (appellant must provide adequate record on appeal; otherwise appellate court will presume trial court acted properly)
- In re Estate of Hoellen, 367 Ill. App. 3d 240 (Ill. App. Ct. 2006) (timeliness requirement for substitution prevents judge shopping)