Illinois Supreme Court Holds That Orders Entered on Motions for Substitution of Judge Are Appealable Only After Entry of Final Judgment
In In re Marriage of Arjmand, 2024 IL 129155, a divorce matter that had been litigated for ten years and had been on appeal multiple times, the husband asked the appellate court to review the denial of a motion for substitution of judge as part of a Supreme Court Rule 304(a) appeal concerning the dismissal of claims against third-party defendants to the underlying dissolution of marriage action. The appellate court had reversed the trial court's decision to dismiss the husband's petitions against the third-party defendants but held that no Supreme Court Rule allowed for an interlocutory appeal from the denial of a motion for substitution of judge and that therefore such a decision could be reviewed only on appeal from a final judgment. The Supreme Court granted leave to appeal the issue of whether the appellate court may review an order regarding a motion for substitution of judge prior to entry of a final judgment. It is well settled that preliminary orders in a pending case are not appealable and are reviewable only upon entry of a final order. The exception is under Rule 304(a) if the order being appealed disposes of the rights of the parties, either upon the entire controversy or upon some definite and separate party thereof. In this matter, the trial court entered Rule 304(a) language finding the order dismissing the complaints against the third-party defendants was a final, appealable order. The husband argued that the review of certain orders leading up to the dismissal order, such as the denial of the motion for substitution, could be required on appeal in order to address the merits of the appeal. However, the Supreme Court held that rulings on motions for substitution of judge do not fall into the category of "attendant" prior orders intertwined with the merits of the interlocutory order, as they are independent of the substantive merits of the order at issue in a Rule 304(a) appeal. Therefore, such a ruling is not subject to Rule 304(a) review and may not be appealed until entry of final judgment.
Trial Court Did Not Err in Appointing Guardian ad Litem for Adult Litigant in Dissolution of Marriage Action in Order To Initiate Guardianship Proceedings
In In re Marriage of Tener, 2023 IL App (1st) 220890, a mental examination was completed of the wife in the underlying dissolution of marriage action and the evaluation revealed that the wife was delusional, extremely paranoid, and severely disabled, causing the trial court to appoint a guardian ad litem (GAL) on her behalf. The court ordered the GAL to initiate guardianship proceedings in probate court. The wife filed an interlocutory appeal regarding the appointment of a GAL over herself, arguing it was a void order and the trial court had no authority to make such an appointment. Judgments entered in a civil proceeding may be collaterally attacked as void only when there is a total want of jurisdiction in the court that entered the judgment, either as to the subject matter or the parties. In contrast, a voidable judgment is one entered erroneously by a court having jurisdiction and not subject to collateral attack. On appeal, the wife argued that the appointment of the GAL lacked statutory authority. The court ruled that the trial judge had inherent authority to appoint a GAL because adult litigants who are adjudicated mentally disabled are entitled to vigilant protection. To fulfill this duty, the court's authority is not limited to express statutory terms. It was incumbent on the court to protect the wife's interests as a person demonstrating a lack of mental capacity by appointing a GAL to initiate guardianship proceedings. Therefore, the trial court's order was not void. The appellate court dismissed the underlying appeal (see below).
Appeal of Orders Appointing GAL and Interim Fee Awards Not Final and Appealable, Therefore Interlocutory Appeal Dismissed
The ex-wife in Tener, supra, filed an interlocutory appeal seeking review of the appointment of a GAL over herself, arguing the trial court had no statutory authority to make such an appointment. She also appealed an interim fee award in favor of the GAL and probate counsel in the amount of $106,666.11. The interim fee order included Rule 304(a) language. The court noted that the interlocutory appeal of interim fee awards is not permitted by any Supreme Court Rule and was not persuaded by the argument that the fees were appealable under Rule 304(a) because they were based solely on work done in the probate matter and became final with the disposition of the probate case. The court held that to allow review of fee awards during the pendency of the divorce proceedings would be contrary to Rule 304(a) and dismissed the appeal.
Trial Court's Finding of Cohabitation on Continuing, Conjugal Basis Reversed
In In re Marriage of Saunders, 2024 IL App (3d) 230151, the ex-husband filed a petition to terminate maintenance in the trial court alleging his ex-wife was cohabitating on a continuing, conjugal basis. The trial consisted of testimony from a private investigator who had observed the ex-wife's home and her boyfriend's home 21 times over a four-month period, the ex-wife, the ex-husband, and the ex-wife's best friend. At the time of the trial, the ex-wife was no longer in a relationship with the boyfriend, and he had married another woman. The evidence showed that the ex-wife had been in an exclusive relationship with her boyfriend from December 2019 to March 2020 and from October 2020 to January 2022. They celebrated some holidays together, she had met some, but not all, of his relatives, they traveled at times together, and he spent the night at her house two or three times per week. They did not have keys to each other's home, did not use each other's credit cards, and did not commingle finances. The ex-wife testified that she never wanted to marry the boyfriend and that she did not trust him. In finding that the ex-wife had engaged in a de facto marriage, the trial court relied on the six factors in In re Marriage of Herrin, 262 Ill.App.3d 573, 634 N.E.2d 1168, 199 Ill.Dec. 814 (4th Dist. 1994). The appellate court reversed. The totality of the circumstances showed that the couple did not interrelate their personal affairs. They did not enmesh their lives or share any financial commitments. There was no intended permanence in the relationship. The court also noted that the Herrin factors are not meant to be a mere checklist and that an important consideration that did not fit into one of the factors was that the boyfriend married another woman less than two months after this particular relationship ended.
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