Petalino v. Williams
2016 IL App (1st) 151861
| Ill. App. Ct. | 2016Background
- Williams and Petalino were parties to a parentage action in Cook County; the court adjudicated Williams the father and awarded sole custody to Petalino with visitation to Williams.
- Petalino later filed a petition for an order of protection alleging Williams disciplined their child with a belt; she filed the petition under the same case number as the parentage action and obtained an emergency order of protection.
- Williams, after filing a pro se appearance, moved for substitution of judge; his initial motion did not state whether it was as of right or for cause, and a later filing clarified he sought substitution as of right.
- The trial court denied the substitution request as untimely because the same judge had previously made substantial rulings in the parentage case; the court also denied (or did not rule on) Williams’s emergency continuance to subpoena witnesses, and ultimately entered a two-year plenary order of protection.
- Williams appealed, arguing the judge should have been substituted as of right (because the order of protection was a new proceeding), that substitution for cause should have been granted, and that the court abused its discretion by denying his continuance motion.
Issues
| Issue | Petalino's Argument | Williams's Argument | Held |
|---|---|---|---|
| Whether substitution of judge as of right was required | The petition for protection was properly filed in conjunction with the parentage case; same-judge handling is allowed under the Domestic Violence Act and local rules | The protection petition was a distinct/new proceeding requiring a fresh judge; his substitution motion was timely | Denied: statute allows filing an order of protection in conjunction with another civil proceeding (no "pending" requirement) and local Rule 903 + local rules favor single-judge handling of child-custody-related matters, so motion was untimely |
| Whether substitution for cause was warranted | (Implicit) prior rulings justified same judge continuing | Williams claimed familiarity with the parties required substitution for cause | Denied: Williams’s petition failed to allege specific extrajudicial bias and was not verified by affidavit, so it did not meet statutory threshold |
| Whether the trial court abused discretion by denying continuance to allow subpoenas | Record is insufficient to show error; appellant failed to include necessary filings/transcripts | Williams contended he needed continuance to subpoena witnesses and had made an emergency request | Affirmed: appellate record lacks the motion/order/transcript; under Foutch, absence of record requires presumption the trial court acted properly; no reversible abuse shown |
Key Cases Cited
- Bowman v. Ottney, 2015 IL 119000 (Illinois Supreme Court) (substitution of judge as of right is absolute when properly invoked)
- In re Marriage of Paclik, 371 Ill. App. 3d 890 (App. Ct. 2007) (local rules and Rule 903 can require custody-related matters be heard by single judge)
- In re Marriage of O’Brien, 2011 IL 109039 (Illinois Supreme Court) (distinguishes procedural form: motion for substitution as of right vs petition for substitution for cause)
- Foutch v. O’Bryant, 99 Ill. 2d 389 (Ill. 1983) (appellant must furnish adequate record on appeal; absent record, trial court proceedings presumed correct)
- Curtis v. Lofy, 394 Ill. App. 3d 170 (App. Ct. 2009) (appellate review of substituted-judge denials should favor granting substitutions and is reviewed de novo)