In re Marriage of Molloy

SIXTH DIVISION
February 10, 2011
No. 1-10-1224
In re MARRIAGE OF ) Appeal from the
) Circuit Court of
DAVID P. MOLLOY, ) Cook County.
)
Petitioner-Appellant, )
) No. 07 D 8119
and )
)
ROJEAN M. MOLLOY, ) The Honorable
) Gerald C. Bender,
Respondent-Appellee. ) Judge Presiding.
PRESIDING JUSTICE GARCIA delivered the judgment of the
court, with opinion.
Justices Cahill and McBride concurred in the judgment and
opinion.
OPINION
The petitioner David P. Molloy presents what he contends is
an interlocutory appeal under Supreme Court Rule 307(a)(1) (Ill.
S. Ct. R. 307(a)(1)(eff. Mar. 20, 2009)) based on the circuit
court308 Ill. App. 3d
198, 719 N.E.2d 375 (1999). In Divelbiss, the court noted the
difference between a discovery evaluation under Supreme Court
Rule 215 (Ill. S. Ct. R. 215(eff. July 1, 2002)) and a custody
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No. 1-10-1224
evaluation. In Divelbiss, the respondent's argued "that she had
a right to seek a custody evaluation." Divelbiss, 308 Ill. App.
3d at 211. The circuit court replied that she had requested "a
215 examination," which it granted. Divelbiss, 308 Ill. App. 3d
at 211-12. The respondent did not request a custody evaluation
under section 604.5 of the Act. Divelbiss, 308 Ill. App. 3d at
212. The circuit court here noted the same distinction between a
discovery evaluation and a custody evaluation. The purpose of a
section 604.5 evaluation is to determine the best interests of
the children, in contrast to one seeking to determine the extent
of a party274 Ill. App.
3d 696, 698, 654 N.E.2d 535 (1995) (written order was not a final
order though drafted by the newspaper "with language to support a
characterization of finality"). As an order regulating the
conditions under which one of the parties will be interviewed by
a licensed social worker in relation to the children127 Ill. 2d 247,
260, 537 N.E.2d 292 (1989) (the substance of the action, not its
form, determines whether an order is an appealable injunctive
order under Rule 307(a)(1)); Reynolds, 274 Ill. App. 3d at 698
(order denying newspaper immediate access to transcripts of
sidebars was "a ministerial and administrative implementation of
the court's previous oral ruling").
To further support its position, the public guardian notes
that section 604.5 expressly provides that "conditions" for the
evaluation be determined by the circuit court. "An order for an
evaluation shall fix the time, place, conditions, and scope of
the evaluation and shall designate the evaluator." (Emphasis
added.) 750 ILCS 5/604.5(b) (West 2008). According to the
public guardian, the circuit court below set a "condition" for
the petitioner's evaluation that it be done without the presence
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No. 1-10-1224
of his attorney.
Our supreme court has informed lower courts of review to
first determine whether jurisdiction exists to address the merits
of an appeal. Almgren v. Rush-Presbyterian-St. Luke's Medical
Center, 162 Ill. 2d 205, 210, 642 N.E.2d 1264 (1994) ("the
appellate court has an independent duty to consider its
jurisdiction before proceeding to the merits of the case"). The
Public Guardian properly raises the question of our jurisdiction
in this appeal. Accordingly, we must first determine whether the
order appealed from falls within the provisions of Supreme Court
Rule 307(a)(1) to vest us with jurisdiction. That this would be
the first application of Rule 307(a)(1) to the circumstances in
this case is not a bar to its application. See Mitchell v. Palos
Community Hospital, 317 Ill. App. 3d 754, 762, 740 N.E.2d 476(2000) (novelty of argument alone is not a bar to its acceptance)
(citing M. Graham, Cleary & Graham's Handbook of Illinois
Evidence §702.4, at 563 (6th ed. 1994)).
Rule 307(a)(1)
Illinois Supreme Court Rule 307(a)(1) governs interlocutory
appeals from an order "granting, modifying, refusing, dissolving,
or refusing to dissolve or modify an injunction." Ill. S. Ct. R.
307(a)(1)(eff. Mar. 20, 2009). The petitioner claims the circuit
court127 Ill. 2d at 260. "Not every nonfinal order of a court
is appealable, even if it compels a party to do or not do a
particular thing." In re A Minor, 127 Ill. 2d 247, 261-62, 537
N.E.2d 292 (1989). Court orders that are ministerial or
administrative cannot be the subject of an interlocutory appeal.
In re A Minor, 127 Ill. 2d at 262. An order is deemed
ministerial or administrative if it regulates only procedural
details of the litigation before the court. In re A Minor, 127
Ill. 2d at 262. Such an order "do[es] not affect the
relationship of the parties in their everyday activity apart from
the litgation, and are therefore distinguishable from traditional
forms of injunctive relief." In re A Minor, 127 Ill. 2d at 262.
"To determine what constitutes an appealable injunctive order
under Rule 307(a)(1) we look to the substance of the action, not
its form." In re A Minor, 127 Ill. 2d at 260.
Here, despite the language in the order, we find the aim of
the circuit court's order to be ministerial; the order places a
"condition" of the custody evaluation of the petitioner as
provided under section 604.5 of the Act. 750 ILCS 5/604.5(b)
(West 2008). We agree with the public guardian that the purpose
of the circuit court397 Ill. App. 3d 137, 143, 922
N.E.2d 36 (2009) (citing Postma v. Jack Brown Buick, Inc., 157
Ill. 2d 391, 397, 626 N.E.2d 199 (1993)).
With no reply brief from petitioner, we are persuaded by the
public guardian's claim that the respondent383 Ill. App. 3d 954, 973, 890 N.E.2d 1154 (2008) (expert's
evaluation "compromised" when "she allowed defense counsel to be
present during clinical interview of defendant," which cast doubt
on evaluation being independent and objective). On its face, the
order addressed a procedural matter related to the pending
litigation under section 604.5 of the Act. We are unpersuaded
that the order contravened the petitioner's statutory right under
section 2-1003(d) of the Code.
Accordingly, because this court