In re Marriage of Molloy

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State: Illinois

Court: 1st District Appellate

Docket No: 1-10-1224 Rel

Case Date: 02/10/2011

Preview:SIXTH DIVISION February 10, 2011

No. 1-10-1224 In re MARRIAGE OF DAVID P. MOLLOY, Petitioner-Appellant, and ROJEAN M. MOLLOY, Respondent-Appellee. ) ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County. No. 07 D 8119 The Honorable Gerald C. Bender, 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 court<s order granting the respondent Rojean Molloy<s request that petitioner<s counsel be barred from accompanying the petitioner to his child custody evaluation under section 604.5 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/604.5 (West 2008)). On June 3, 2010, at the request of counsel

for the children, we entered an order designating this matter as an expedited appeal pursuant to Illinois Supreme Court Rule 311.

No. 1-10-1224 Ill. S. Ct. R. 311(eff. Feb. 26, 2010). Thereafter, the children

filed a motion seeking the dismissal of this appeal contending it does not fall within the provisions of Rule 307(a)(1). The

petitioner filed a response conceding this case involves an novel application of Rule 307. He asserts this appeal seeks a good-

faith extension of what qualifies as an injunctive order under Rule 307. We took the motion with the case. The children The

challenge our jurisdiction in their response brief.

petitioner sought an extension of time to file his reply brief, which we granted. No reply brief was filed by the petitioner by We now grant the children's motion to

the court's deadline.

dismiss this appeal for lack of jurisdiction. BACKGROUND The petitioner and the respondent were married on June 28, 2001; two children were born of the marriage, Cody, born June 30, 2001, and Alaina, born March 2, 2005. In 2007, the petitioner filed for the dissolution of marriage. In March 2008, pursuant to a motion filed by the

respondent, the Cook County public guardian was appointed to represent the interests of the children. In April 2009, the circuit court assigned the matter to the Forensic Clinical Services Department (FCSD) for a custody evaluation pursuant to section 604(b) of the Act. 5/604(b) (West 2008). 750 ILCS

In September 2009, the circuit court set a In

status date on the custody evaluation for December 15, 2009. 2

No. 1-10-1224 November 2009, the petitioner filed for temporary and permanent custody, alleging the marital home had been sold and that he had obtained a new residence that was suitable for himself and the children. He further alleged that on November 10, 2009, the FCSD

examiner, a licensed clinical social worker, had issued a section 604(b) report recommending that he be awarded sole custody of the children. According to the petitioner<s attorneys, at a hearing on November 19, 2009, the respondent requested a custody evaluation pursuant to section 604.5 of the Act, which the court granted. 750 ILCS 5/604.5 (West 2008). On December 16, 2009, the circuit

court ordered the respondent<s section 604.5 evaluation report be filed by March 12, 2010, and noted the respondent would have 21 days after that date to respond to the petitioner<s request for custody. On January 12, 2010, the respondent filed a motion, requesting that the petitioner<s attorney be barred from accompanying the petitioner at his section 604.5 custody evaluation with the respondent<s chosen evaluator, Jo Anne Smith, a licensed clinical social worker. The respondent explained her

request: "As not to result in an unbalanced report if petitioner's counsel is present, as respondent presents as pro se." A hearing on the motion was held on January 27, 2010.

Following argument by the petitioner<s attorneys, the circuit court ordered the parties to file written memoranda addressing 3

No. 1-10-1224 the matter by February 5, 2010. On February 5, 2010, the petitioner, through his attorneys, filed a "Response to and Memorandum of Law in Opposition of Rojean Molloy's Motion," arguing that the respondent did not properly title her motion as one for injunctive relief. The

petitioner further argued that the respondent<s motion was an attempt to prevent him from exercising his statutory right pursuant to 2-1003(d) of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2-1003(d) (West 2008) ("Discovery and depositions")). On April 26, 2010, the circuit court held a hearing on the respondent<s motion to set conditions on the section 604.5 evaluation and other matters. The circuit court granted the

respondent<s motion barring the petitioner<s attorney<s presence at the section 604.5 evaluation. In its ruling, the court focused "Let me tell you, this is There are two different types

on the type of examination at issue: considered--this is an evaluation.

of evaluations that we have: A mental or physical exam and a child custody evaluation. that." There are two distinct assessments for

The court then read aloud section 2-1003(d) of the Code The court also discussed

and part of section 604.5 of the Act.

the decision in In re Marriage of Divelbiss, 308 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 4

No. 1-10-1224 evaluation. In Divelbiss, the respondent's argued "that she had Divelbiss, 308 Ill. App.

a right to seek a custody evaluation." 3d at 211.

The circuit court replied that she had requested "a Divelbiss, 308 Ill. App. 3d

215 examination," which it granted. at 211-12.

The respondent did not request a custody evaluation Divelbiss, 308 Ill. App. 3d at

under section 604.5 of the Act. 212.

The circuit court here noted the same distinction between a The purpose of a

discovery evaluation and a custody evaluation.

section 604.5 evaluation is to determine the best interests of the children, in contrast to one seeking to determine the extent of a party<s injuries or the capacity of a party to exercise his or her rights under section 2-1003(d) of the Code. The circuit

court ruled it follows from the different interests involved that a party does not have a right to have an attorney present at a child custody evaluation as a party does under a discovery evaluation. Following the court<s decision, the petitioner<s attorney asked the court for Rule 304(a)(Ill. S. Ct. R. 304(eff. Feb. 26, 2010)) language to allow for an immediate appeal; the court denied the request. The petitioner<s attorneys drafted the order

granting the respondent<s request to bar the petitioner's attorney from the evaluation interview, which asserted that the "injunctive relief" requested by the respondent was granted. On May 3, 2010, the petitioner, through his attorneys, filed an interlocutory notice of appeal, citing Illinois Supreme Court 5

No. 1-10-1224 Rule 307(a)(1)(eff. Mar. 20, 2009) as the basis for our jurisdiction. On July 14, 2010, the public guardian filed its

motion to dismiss appeal for lack of jurisdiction under Rule 361(h). Ill. S. Ct. R. 361(h)(eff. Dec. 29, 2009). The

petitioner responded.

On August 11, 2010, we ordered that the

public guardian<s motion to dismiss be taken with this appeal. ANALYSIS The petitioner argues this appeal falls under Supreme Court Rule 307(a)(1) because respondent<s motion to set conditions on the section 604.5 evaluation qualifies as an injunction in that it seeks to enjoin the petitioner from having his attorneys present during his evaluation. Consistent with the injunctive

nature of the motion, the petitioner points out the respondent<s motion gave notice to the petitioner and then "asked the court to prohibit [the petitioner] from exercising a statutory right granted to him pursuant to Section 2-1003(d) of [the Code]." review is governed by the context of this case: the petitioner claims his statutory right under section 2-1003(d) of the Code extends to an evaluation under section 604.5 of the Act such that barring the presence of petitioner's counsel qualifies as an injunction. In its brief on behalf of the children, the office of the Cook County public guardian argues the order does not qualify as one granting an injunction under Rule 307(a)(1). The public Our

guardian<s office contends the circuit court<s order of April 26, 6

No. 1-10-1224 2010, merely set conditions for the petitioner's section 604.5 evaluation, "despite the inappropriate language used by [the petitioner<s] attorneys." See People v. Reynolds, 274 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 children<s custody, the order does not seek to maintain the status quo. Rather, it

is an administrative or ministerial order regulating the litigation before the court. See In re A Minor, 127 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." added.) 750 ILCS 5/604.5(b) (West 2008). (Emphasis

According to the

public guardian, the circuit court below set a "condition" for the petitioner's evaluation that it be done without the presence 7

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

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