In re Marriage of Wendy S. ( 2020 )

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Appellate Court Date: 2020.06.18
10:16:14 -05'00'
In re Marriage of Wendy S., 2020 IL App (1st) 191661Appellate Court In re MARRIAGE OF WENDY S., Petitioner-Appellee, and
Caption GEORGE D., Respondent-Appellant.
District & No. First District, Sixth Division
No. 1-19-1661
Filed March 20, 2020
Rehearing denied May 21, 2020
Decision Under Appeal from the Circuit Court of Cook County, No. 08-D-10469; the
Review Hon. Elizabeth Loredo Rivera, Judge, presiding.
Judgment Affirmed.
Counsel on George D., of Winnetka, appellant pro se.
Appeal
Matthew C. Arnoux, of Birnbaum, Haddon, Gelfman & Arnoux, LLC,
of Chicago, for appellee.
Panel JUSTICE CUNNINGHAM delivered the judgment of the court, with
opinion.
Presiding Justice Mikva and Justice Harris concurred in the judgment
and opinion.
OPINION
¶1 The circuit court of Cook County entered an order striking a minor section from a previous
custody 1 judgment between the pro se respondent-appellant, George D., and the petitioner-
appellee, Wendy S. George now appeals. For the following reasons, we affirm the judgment
of the circuit court of Cook County.
¶2 BACKGROUND
¶3 The parties were married in 2001 and had three children during the marriage. In 2008,
Wendy filed for dissolution of the marriage. On September 28, 2010, the trial court entered an
order awarding Wendy sole custody of the children (the 2010 custody judgment). On October
19, 2010, the trial court entered a judgment for dissolution of marriage which incorporated the
2010 custody judgment.
¶4 In October 2012, George filed a petition to modify custody pursuant to section 610 of the
Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/610 (West 2012)),
claiming that changed circumstances warranted a modification of the 2010 custody judgment.
He sought sole custody of the children. Following a hearing on George’s petition, the trial court
entered an order on December 15, 2015, granting the petition (the 2015 custody judgment).
The 2015 custody judgment awarded George sole custody of the children subject to Wendy’s
designated visitation. 2 Section X of the 2015 custody judgment designated a psychologist, Dr.
Jay Lebow, to serve as a “behavioral parenting coach” for the parties. Section X(C) specified
that, “[p]rior to either parent filing a motion or petition in court regarding custody or visitation,
the party shall submit a written report from Dr. Lebow at their expense confirming that court
intervention is required to protect the health[,] safety or welfare of the child.”
¶5 Wendy appealed the 2015 custody judgment. She argued before this court that the trial
court erred in not requiring George to plead or prove “serious endangerment” in order to seek
modification of custody, pursuant to section 610(a) of the Act. Id. § 610(a). She also argued
that the court erred in finding, pursuant to section 610(b) of the Act, that George proved by
clear and convincing evidence that a custody change was in the children’s best interests. Id.
§ 610(b). On appeal, she made no specific challenges to section X(C) of the 2015 custody
judgment. We affirmed the 2015 custody judgment. In re Marriage of Wendy L.D., 2017 IL
App (1st) 160098.
¶6 In 2016, while Wendy’s appeal from the 2015 custody judgment was pending, Wendy filed
two motions in the trial court: (1) a “motion to allow [her] to file motions concerning the best
interests of the children,” which sought an order vacating section X(C) of the 2015 custody
judgment; and (2) a “motion to modify the [visitation] schedule,” which sought certain
revisions to the 2015 custody judgment relating to the allocation of visitation. Wendy did not
1
The term “custody” has been updated to “parental responsibility” under the amended Illinois
Marriage and Dissolution of Marriage Act. See Pub. Act 99-90, § 5-15 (eff. Jan. 1, 2016) (amending
750 ILCS 5/801). However, the custody judgment in this case was decided by the trial court prior to
that update. For the sake of simplicity and clarity, we will use the term “custody” throughout this order.
2
The term “visitation” has been updated to “parenting time” under the amended Illinois Marriage
and Dissolution of Marriage Act. See Pub. Act 99-90, § 5-15 (eff. Jan. 1, 2016) (amending 750 ILCS
5/801). For the sake of simplicity and clarity, this opinion will use the term “visitation.”
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submit a report from Dr. Lebow in support of her visitation motion. The trial court denied
Wendy’s motion that related to visitation time because she had not consulted with Dr. Lebow
before filing the motion as required by section X(C) of the 2015 custody judgment; the court
also denied her motion that sought to vacate section X(C) (the 2016 motions judgment).
¶7 Wendy then appealed the 2016 motions judgment. On appeal, we held that the trial court
lacked jurisdiction to decide Wendy’s two motions while her appeal from the 2015 custody
judgment was pending. We accordingly vacated the 2016 motions judgment. In re Marriage
of Wendy L.D., 2017 IL App (1st) 170063-U.
¶8 On August 28, 2018, Wendy filed an “Amended Motion to Allow [Wendy] to File Motions
Concerning the Best Interests of the Children” (the amended motion). 3 In her amended motion,
Wendy sought to have section X(C) of the 2015 custody judgment vacated on the ground that
it was void. She argued that section X(C) was void for three reasons: (1) the trial court lacked
subject matter jurisdiction to enter section X(C) because it delegated the court’s statutory
power to decide custody matters to a third party, specifically Dr. Lebow; (2) section X(C) is
unconstitutional as it violates the parties’ due process and equal protection rights; and
(3) section X(C) is contrary to Illinois public policy.
¶9 George filed an objection to Wendy’s amended motion on the basis of improper service,
claiming that she served notice only via electronic mail. The trial court denied George’s notice
objection but allowed him 35 days to respond to Wendy’s amended motion.
¶ 10 George then responded to Wendy’s amended motion by arguing that Wendy was
procedurally barred from filing it. He argued that Wendy had previously failed to challenge
section X(C) in her appeal from the 2015 custody judgment and so the law-of-the-case
doctrine 4 now barred her from challenging section X(C) before the trial court. George also
claimed that Wendy did not seek leave from the trial court to file her amended motion and so
the trial court did not have jurisdiction to consider it.
¶ 11 Following a hearing on July 19, 2019, the trial court granted Wendy’s amended motion.
The court’s order stated: “The question of whether [section] X(C) of the 2015 Custody
Judgment must be vacated hinges on whether the provision is deemed void.” The court then
found that section X(C) is void because “[t]he court exceeded its authority by delegating to a
third party the power to intervene in custody matters.” The order further found section X(C) to
be void because it violated the parties’ substantive and procedural due process rights.
¶ 12 The trial court then struck section X(C) from the 2015 custody judgment. 5 However, the
court left the remainder of the 2015 custody judgment intact. This appeal followed.
3
When Wendy filed her amended motion, it was filed before a different trial court judge than the
original judge who had entered the 2015 custody judgment.
4
The law-of-the-case doctrine precludes relitigation of a previously decided issue in the same case.
Rommel v. Illinois State Toll Highway Authority, 2013 IL App (2d) 120273, ¶ 15.
5
The trial court judge who struck section X(C) was not the same judge who had originally entered
section X(C) in the 2015 custody judgment.
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¶ 13 ANALYSIS
¶ 14 The record reflects that there were multiple claims involved in this case; the trial court’s
July 19, 2019, judgment, which struck section X(C) from the 2015 custody judgment,
nevertheless, continued the case to a later date for resolution of other pending matters. 6
Nonetheless, pursuant to Illinois Supreme Court Rule 304(b)(6) (eff. Mar. 8, 2016), appeals
can be taken from final judgments modifying a custody judgment even where the judgment
does not dispose of the entire proceeding. As George filed a timely notice of appeal following
the trial court’s July 19, 2019, judgment, which modified the 2015 custody judgment, we have
jurisdiction to consider this appeal. See Ill. S. Ct. R. 303 (eff. July 1, 2017).
¶ 15 As an initial matter, we address Wendy’s request that we dismiss this appeal, or in the
alternative, strike George’s statement of facts section from his brief. Wendy argues that
George’s statement of facts section “is replete with violations of Rule 341(h)(6)” because it
contains “inaccurate and argumentative facts” as well as “highly prejudicial and immaterial
information.” Illinois Supreme Court Rule 341(h) (eff. May 25, 2018) provides strict rules
which litigants must follow in submitting their appellate briefs, including a statement of facts
in which the facts are “stated accurately and fairly without argument or comment.” Pro se
litigants, such as George, are not excused from following these rules which dictate the form
and content of appellate briefs. Lewis v. Heartland Food Corp., 2014 IL App (1st) 123303,
¶ 5. Nevertheless, while George’s statement of facts is, at times, argumentative, his brief
adequately complies with Rule 341(h) so that this court is able to comprehend the relevant
facts. Where violations of supreme court rules are not so flagrant as to hinder or preclude our
review, the striking of a brief is unwarranted. Cottrill v. Russell, 253 Ill. App. 3d 934, 938
(1993). Thus, in the interest of justice, we decline to take the drastic action of dismissing this
appeal or striking the section of George’s brief that contains the statement of facts.
¶ 16 Turning to the merits, George frames his arguments on appeal as multiple issues. However,
the substance of his arguments amount to the following two issues: (1) whether Wendy was
procedurally barred from filing her amended motion and (2) whether the trial court erred when
it struck section X(C) from the 2015 custody judgment.
¶ 17 George first argues that Wendy was procedurally barred from filing her amended motion
for numerous reasons, such as that (1) the trial court lacked jurisdiction to consider Wendy’s
amended motion because it was not properly filed as a section 2-1401 petition 7, (2) Wendy did
not seek leave of the trial court to file her amended motion, (3) Wendy failed to give proper
notice of her amended motion pursuant to the rules governing section 2-1401, and (4) the law-
of-the-case doctrine barred Wendy’s amended motion.
¶ 18 We agree with George that Wendy’s amended motion was not a proper section 2-1401
petition. Instead, it was a petition to modify custody. Although Wendy erroneously titled her
amended motion, and even argues on appeal that it was a proper section 2-1401 petition, it was
clearly a petition to modify custody because she specifically sought to modify the 2015 custody
6
The record is silent as to the other matters involved in this case.
7
A section 2-1401 petition seeks to vacate or void a judgment more than 30 days after the judgment
has been entered. 735 ILCS 5/2-1401 (West 2018).
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judgment by striking section X(C). It is the substance of a filing, not the title, that controls.
Silverstein v. Brander, 317 Ill. App. 3d 1000, 1005 (2000). 8
¶ 19 Once a court makes an initial custody determination, it retains jurisdiction to modify the
custody judgment. 750 ILCS 5/601(a) (West 2012); 9 In re Estate of Mirabella S., 2018 IL App
(3d) 180414, ¶ 15. Generally, there must be a showing of changed circumstances in order to
modify custody. 750 ILCS 5/610.5(a) (West 2016). However, courts may modify custody
without a showing of changed circumstances if the modification is in the best interests of the
children and the modification constitutes a minor modification. Id. § 610.5(e)(2). Considering
that the 2015 custody judgment is 125 pages long and that section X(C) is one sentence within
those 125 pages, striking section X(C) would undoubtedly be a minor modification. Also,
section X(C) is of a procedural nature and does not relate to the allocation of custody between
the parties. See In re Marriage of O’Hare, 2017 IL App (4th) 170091, ¶ 27 (“it is commonly
known that the term ‘minor’ is synonymous with ‘small’ or ‘inconsequential’ ”). As Wendy’s
amended motion sought a minor modification to the 2015 custody judgment in the best
interests of the children, the trial court had jurisdiction to consider it.
¶ 20 Having determined that Wendy’s amended motion was a petition to modify custody and
therefore she was entitled to file the motion, none of George’s other procedural arguments are
relevant. Specifically, Wendy did not need to seek leave to file her amended motion or to serve
notice pursuant to the rules governing section 2-1401. Additionally, the law-of-the-case
doctrine does not apply to custody modifications, as the Act explicitly allows for modifications
to previous custody judgments. See 750 ILCS 5/610.5 (West 2016); In re Marriage of
Carstens, 2018 IL App (2d) 170183, ¶ 24.
¶ 21 Since we have concluded that Wendy’s amended motion was not a section 2-1401 petition,
we need not consider whether section X(C) is void, even though the parties have erroneously
presented that as the issue. Instead, because Wendy’s amended motion was a petition to modify
custody, we will determine whether it was appropriate for the trial court to modify the 2015
custody judgment by striking section X(C). 10
¶ 22 As already discussed, a trial court may make minor modifications to a custody judgment if
such modification is in the best interests of the children. 750 ILCS 65/610.5(e)(2) (West 2016).
When deciding issues pertaining to custody, the trial court has broad discretion, and its
judgment is afforded great deference. In re Marriage of Debra N., 2013 IL App (1st) 122145,
¶ 45. “Accordingly, a reviewing court will not disturb a trial court’s decision to modify the
terms of a custody agreement unless its decision is against the manifest weight of the evidence
and constitutes an abuse of discretion.” Id.8
For the sake of simplicity and clarity, we will continue to refer to Wendy’s petition to modify
custody as her amended motion.
9
Amendments to the Act effective in 2016 repealed section 601 but granted substantially identical
jurisdiction in new section 601.2. See Pub. Act 99-90, § 5-15 (eff. Jan. 1, 2016) (adding 750 ILCS
5/601.2).
10
Although the trial court struck section X(C) on the ground that it is void and not as a custody
modification, it is well established that “we review the trial court’s judgment, not its reasoning, and we
may affirm on any grounds in the record, regardless of whether the trial court relied on those grounds.”
(Internal quotation marks omitted.) Hancock v. Village of Itasca, 2016 IL App (2d) 150677, ¶ 11.
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¶ 23 In this case, when the trial court entered section X(C) in the 2015 custody judgment, it
prevented the parties from filing any motions or petitions related to custody matters unless they
first submitted a written report from Dr. Lebow. This goes against the legislative intent of the
Act, which is for parties who are part of a custody judgment to be able to seek modifications
of their own accord. 11 See 750 ILCS 65/610.5 (West 2016); see also In re Marriage of
Valliere, 275 Ill. App. 3d 1095, 1103 (1995) (an “unauthorized procedure” for any future
custody modifications violated the legislative intent of the Act and was therefore improper).
¶ 24 We recognize that the trial court in the 2015 custody case likely entered section X(C) in
the interest of judicial economy and efficiency. However, in practice, section X(C) would
elongate custody proceedings. Custody matters can often be time-sensitive and arise under
urgent circumstances. Enforcing section X(C) would require the parties to make an
appointment with Dr. Lebow, meet with him, and then submit a written report from him before
they could petition the court regarding custody matters. Conceivably, this could take months
to complete and make it more difficult for both parties to resolve pressing matters related to
custody of the children. This additional barrier would limit the parties’ ability to petition the
court for relief concerning the best interests of their children, which, in turn, is not in the best
interests of the children.
¶ 25 Importantly, in making minor modifications to custody judgments, trial courts have an
obligation to ensure that the custody judgment’s original intent remains intact, as the Act favors
finality and continuity of custody judgments. In re Marriage of Burns, 2019 IL App (2d)
180715, ¶ 29. Section X(C) was such a minor procedural part of the 2015 custody judgment,
when viewed in context and entirety, that striking it does not diminish or impact the original
spirit of the 2015 custody judgment overall.
¶ 26 In sum, striking section X(C) was a minor modification to the 2015 custody judgment made
in the best interests of the children. Consequently, the trial court’s order modifying the 2015
custody judgment by striking section X(C) did not go against the manifest weight of the
evidence or constitute an abuse of discretion. We accordingly affirm the trial court’s judgment.
¶ 27 CONCLUSION
¶ 28 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 29 Affirmed.
11
We acknowledge that the Act only allows parties to seek modifications at any time if they are
minor; otherwise the Act permits parties to seek major modifications whenever there are changed
circumstances. 750 ILCS 65/610.5 (West 2016).
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