In re Marriage of Morgan , 2019 IL App (3d) 180560 ( 2019 )

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Appellate Court Date: 2019.08.12
13:43:45 -05'00'
In re Marriage of Morgan, 2019 IL App (3d) 180560
Appellate Court In re MARRIAGE OF GERI T. MORGAN, n/k/a Geri T. Fox,
Caption Petitioner-Appellee, and MICHAEL S. MORGAN, Respondent-
Appellant.
District & No. Third District
Docket No. 3-18-0560
Filed May 29, 2019
Decision Under Appeal from the Circuit Court of Will County, No. 14-D-2051; the
Review Hon. Elizabeth D. Hoskins Dow, Judge, presiding.
Judgment Appeal dismissed.
Counsel on Joseph R. Mazzone, of Joliet, for appellant.
Appeal
No brief filed for appellee.
Panel PRESIDING JUSTICE SCHMIDT delivered the judgment of the
court, with opinion.
Justices Carter and McDade concurred in the judgment and opinion.
OPINION
¶1 Respondent-Appellant, Michael Morgan, filed a motion for substitution of Judge David
Garcia for cause pursuant to section 2-1001(a)(3) of the Code of Civil Procedure (735 ILCS
5/2-1001(a)(3) (West 2016)). Judge Elizabeth D. Hoskins Dow heard arguments on Michael’s
motion. She denied Michael’s motion in a written order, stating the “ruling is appealable
pursuant to Supreme Court Rule 304 and other applicable rules.” Michael appeals, claiming
appellate jurisdiction under Illinois Supreme Court Rule 304 (eff. Mar. 8, 2016). We dismiss
the appeal for a lack of jurisdiction.
¶2 BACKGROUND
¶3 This is the second appeal in this matter. See In re Marriage of Morgan, 2018 IL App (3d)
170021-U. As such, we only provide a limited background in this case as the only issue on
appeal pertains to removal of a judge for cause. See 735 ILCS 5/2-1001(a)(3) (West 2016).
¶4 The parties married in February 1995. On December 9, 2014, appellee, Geri T. Morgan,
now known as Geri T. Fox, filed a petition for dissolution of marriage. The parties had three
children and entered into an agreed allocation judgment in May 2015. On November 20, 2015,
the court entered a judgment for dissolution of marriage.
¶5 On June 20, 2018, a hearing was held before Judge Garcia regarding numerous pending
motions; specifically, a motion for an in camera interview of the parties’ 17-year-old daughter
and a motion for modification of allocation judgment. The court ordered the parties to
mediation during the hearing. The exchange complained of on appeal followed.
“THE COURT: And I was looking at the judgment, and the—the judgment this
morning, and this was by agreement, right, the allocation judgment?
MS. BURKHEAD [(APPELLEE’S COUNSEL)]: Yes.
THE COURT: Yeah. So[,] I don’t see any reason why we would change it if it was
by agreement. I mean, you’re pursuing justice—they weren’t pursuing justice when
you put in this judgment?
MR. MAZZONE [(APPELLANT’S COUNSEL)]: Judge, when the judgment was
put in, the parties hadn’t [sic] much experience exchanging visitation and it’s been
difficult now. You know, part of that judgment gives her the right to have the final say.
THE COURT: Okay. Which most judgments do.
***
THE COURT: Well, have mediation and we’ll go on from there.
MR. MAZZONE: All right, Judge. I think you want to listen to this stuff.
THE COURT: Oh, I will listen to it.
MR. MAZZONE: But if you are telling me you are not going to change it, then I
am not sure—do I have to talk louder?
THE COURT: Well, I tend not to change agreements by couples because it’s
inconvenient to one of the couples the way they agreed to.
MR. MAZZONE: Okay. But the agreement was May of 2015, Judge. It’s 2018
now. There is a lot of things that have happened between these parties since then that
you should take notice of.
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THE COURT: Neither have grown up yet. That’s what’s happened. Not the kids.
MR. MAZZONE: That could very well be.
THE COURT: The kids are growing up, but the couples aren’t. So[,] let’s go to
mediation and see where it goes.
MR. MAZZONE: All right. We’ll do that, and then we’ll come back here and figure
out all the rest of these motions. We will not be able to resolve all these strikings [sic]
and dismissals and things like that.
THE COURT: They can argue this judgment that’s already in place and spend the
rest of their money that they have left doing it. You know, people do that in here, so I
am not going to stop them. So go ahead. Set it for mediation.
MR. MAZZONE: All right, Judge. We will do that.”
¶6 Michael filed a motion to substitute Judge Garcia for cause. Judge Dow heard arguments
on the motion. Mr. Mazzone argued that the statements made by Judge Garcia constituted
actual prejudice. Judge Dow reviewed the matter in light of In re Marriage of O’Brien, 2011
IL 109039, and found no actual prejudice. She also found that Judge Garcia had not reached
the merits of Michael’s motion during the hearing. She stated in open court that Mr. Mazzone
was more than welcome to have “308(a) language” in the order showing his right to appeal.
The written order denying the motion stated, “this ruling is appealable pursuant to Supreme
Court Rule 304 and other applicable rules.” Michael appeals. Appellee did not file a brief.
¶7 ANALYSIS
¶8 On appeal, Michael argues the comment by Judge Garcia that he “tend[s]” to keep mutually
agreed upon allocation judgments in place if “it only inconveniences one party” shows actual
prejudice. Additionally, he argues that Judge Garcia’s comments were based on an
extrajudicial source and therefore were prejudicial.
¶9 Before we address the merits of Michael’s appeal, we must first determine whether this
court has jurisdiction. Dus v. Provena St. Mary’s Hospital, 2012 IL App (3d) 091064, ¶ 9. “A
reviewing court must ascertain its jurisdiction before proceeding in a cause of action, and this
duty exists regardless of whether either party has raised the issue.” Inland Commercial
Property Management, Inc. v. HOB I Holding Corp., 2015 IL App (1st) 141051, ¶ 17. Our
jurisdiction is limited to review of appeals from final judgments unless otherwise permitted
under Illinois Supreme Court rules or by statute. Id. (citing In re Marriage of Verdung, 126 Ill.
2d 542, 553 (1989)).
¶ 10 Michael contends we have jurisdiction over this appeal pursuant to Illinois Supreme Court
Rule 304(a) (eff. Mar. 8, 2016). He also argues that “Judge Dow stated in open court her order
was appealable pursuant to Illinois Supreme Court Rule 304(a).”
¶ 11 Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016) provides, in pertinent part:
“If multiple parties or multiple claims for relief are involved in an action, an appeal
may be taken from a final judgment as to one or more but fewer than all of the parties
or claims only if the trial court has made an express written finding that there is no just
reason for delaying either enforcement or appeal or both.” (Emphases added.)
¶ 12 Judge Dow did not include the language “there is no just reason for delaying enforcement
or appeal or both” in the order, nor was it clear she intended to invoke Rule 304(a) from the
record. Case law concerned with requisite Rule 304(a) findings allow for the invocation of the
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rule if it is clear from the record it was the trial court’s intent. See In re Application of the
Du Page County Collector, 152 Ill. 2d 545, 549-50 (1992). However, Judge Dow stated on the
record that the ruling was appealable pursuant to Rule 308(a), not Rule 304(a). Further, the
written finding that the ruling was “appealable pursuant to Supreme Court Rule 304 and other
applicable rules” was not an express written finding in accordance with Rule 304(a). In
Lawyers Title Insurance Corp. v. Kneller, 172 Ill. App. 3d 210 (1988), a panel of this court
found an order conferred appellate court jurisdiction when it stated, “ ‘pursuant to Supreme
Court Rule, being section 304(a) ***, there is no just cause for delaying an appeal from the
order entered herein on June 4, 1987.’ ” Id. at 212-13. The court reasoned a finding there was
no just reason for delaying “enforcement or appeal” and specific citation to the rule itself in
the order constructively fulfilled the technical language requirement and conferred jurisdiction.
(Emphasis added.) Id. The majority relied on the premise that “rules governing civil procedure
are to be liberally construed so long as the substantive rights of all parties are protected.” Id.
at 213. Justice Tobias Barry dissented asserting, “[t]he language of Rule 304(a) is mandatory
and precise, not directory or generic—its purpose, salutary, not cavalier. The rule is not unduly
burdensome. Accordingly, the rule should be, and until today has been, applied strictly.” Id. at
217 (Barry, J., dissenting); see also Hopkins v. Illinois Masonic Medical Center, 211 Ill. App.
3d 652, 655 (1991) (agreeing with Justice Barry and dismissing an appeal for lack of
compliance with Rule 304(a)). Illinois Supreme Court Rule 304(a) was subsequently amended
to reflect that trial courts do not have to reference both appealability and enforceability; courts
need only reference one, the other, or both to invoke the rule. See Ill. S. Ct. R. 304(a),
Commentary (Dec. 17, 1993); see also In re Application of the Du Page County Collector, 152
Ill. 2d 545.
¶ 13 While the jurisdictional issue in Kneller rested on the absence of the term “enforceability”
in the order, we believe Justice Barry’s underlying logic aptly applies to the present case. Rule
304(a) is not unduly burdensome, and simply mentioning appealability while vaguely
referencing Rule 304 “and other applicable rules” does not confer appellate jurisdiction. See
Department of Healthcare & Family Services v. Cortez, 2012 IL App (2d) 120502, ¶ 8 (order
that stated certain provisions were “hereby appealable” without reference to Rule 304(a) or
language tracking the rule did not confer appellate jurisdiction); see also Palmolive Tower
Condominiums, LLC v. Simon, 409 Ill. App. 3d 539, 544 (2011) (“A circuit court’s declaration
that an order is ‘final and appealable,’ without reference to the justness of delay, or even
reference to immediate appealability, evinces no application of the discretion Rule 304(a)
contemplates.”). The order in this matter refers to appealability but unlike Kneller does not cite
the rule with specificity or reference justness of delay. The order goes on to give Michael carte
blanche to employ any other supposedly applicable rules that may bestow appellate
jurisdiction. We decline to find this constitutes a sufficient express written finding to invoke
Rule 304(a).
¶ 14 Furthermore, even assuming the written finding was sufficient, it is well-settled law that
the inclusion of Rule 304(a) language in a nonfinal order does not make the order appealable
under supreme court rules. Inland, 2015 IL App (1st) 141051, ¶ 23. The denial of a motion for
substitution of judge for cause is an interlocutory order and is not final for purposes of appeal.
Id. ¶ 19 (citing In re Marriage of Nettleton, 348 Ill. App. 3d 961, 969 (2004)). The September
10, 2018, order denying a substitution of judge would not have been a final order simply
because 304(a) language was included. See id. ¶ 24. Consequently, the denial of a motion for
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substitution of judge for cause is an interlocutory order, is not final for purposes of appeal, and
cannot be converted into a final order by the mere inclusion of Rule 304(a) language.
¶ 15 CONCLUSION
¶ 16 For the foregoing reasons, we dismiss the appeal for lack of jurisdiction.
¶ 17 Appeal dismissed.
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