filed:  January 24, 2002

JUSTICE COOK delivered the opinion of the court: 

Respondent Larry Joe Scroggins appeals from a plenaryorder of protection issued by the Piatt County circuit court. Respondent argues that the trial court abused its discretion whenit denied his motion for substitution of judge as of right. Respondent also argues the trial court did not have authority toappoint a domestic violence attorney to petitioner Jenny RebeccaScroggins. We affirm in part, reverse in part, and remand withinstructions.

I. BACKGROUND

Petitioner commenced proceedings under the IllinoisDomestic Violence Act of 1986 (750 ILCS 60/101 through 401 (West2000)) by filing a verified petition for order of protection (750ILCS 60/202(a)(1) (West 2000)). On January 18, 2001, petitionerappeared pro se and the trial court granted an ex parte emergencyorder of protection. Hearing was set for an extension of theemergency order of protection or a plenary order of protectionfor January 29, 2001. On January 29, 2001, respondent appearedwith counsel and petitioner appeared pro se. The court appointedpetitioner a domestic violence attorney, extended the emergencyorder of protection, and set the hearing on the motion forplenary order of protection for February 16, 2001.

On January 30, 2001, petitioner's appointed attorneyfiled a "Notice unto Parties." This notice was served on bothpetitioner and respondent. The notice informed the parties thatthe domestic violence attorney fees would be paid by the countyand that the court customarily ordered either the petitioner orrespondent to reimburse the county for the cost of appointedcounsel. The notice stated that, as a rule, if the plenary orderof protection were granted, then respondent may be ordered toreimburse the county. Conversely, if the plenary order ofprotection were not granted, petitioner may be ordered to reimburse the county.

On February 15, 2001, the day before the scheduledhearing on the plenary order of protection, respondent filed amotion for substitution of judge as of right pursuant to section2-1001(a)(2) of the Code of Civil Procedure (Code) (735 ILCS 5/2-1001(a)(2) (West 2000)). On February 16, 2001, petitioner'sappointed counsel filed a response to the motion for substitutionof judge, alleging that he did not get notice of the motion until4 p.m. on February 15 and did not get a copy of the motion until10 a.m. on February 16. Petitioner's appointed counsel furtheralleged that settlement negotiations had broken down and themotion was filed for the purpose of delaying the hearing on themotion for plenary order of protection. Respondent's attorneydenied that the motion was filed for purposes of delay.

The trial court ruled on respondent's motion forsubstitution of judge as of right on February 16, 2001, at thescheduled hearing on the motion for plenary order of protection. The trial court denied petitioner's motion for substitution ofjudge as of right, finding that the motion was not timely filed. The trial court then issued a plenary order of protection onrespondent's stipulation that petitioner's evidence, if believedby the court, supported granting a plenary order of protection.

On February 23, 2001, the trial court ordered thecounty treasurer to pay the appointed domestic violence attorney$712.50 for his services. On March 14, 2001, the trial courtordered respondent to pay the county $712.50 as reimbursement forthe appointed domestic violence attorney fees.

On appeal, respondent argues that the trial courtabused its discretion when it denied his motion for substitutionof judge as of right. Respondent also argues that the trialcourt did not have authority to appoint the domestic violenceattorney under the Illinois Domestic Violence Act (750 ILCS 60(West 2000)).

II. ANALYSIS

Petitioner did not file a brief for this appeal. Wedecide the case on the merits and reverse because "appellant'sbrief demonstrates prima facie reversible error and the contentions of the brief find support in the record." First CapitolMortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128,133, 345 N.E.2d 493, 495 (1976).

Motions for substitutions of judges as of right withoutcause are governed by section 2-1001 of the Code (735 ILCS 5/2-1001 (West 2000)), which states in pertinent part:

"(a) A substitution of judge in any civil action may be had in the following situations:

***

(2) Substitution as of right.

When a party timely exercises his or her right to a substitution without cause as provided in this paragraph (2).

(i) Each party shall be entitled to one substitution of judge without cause as a matter of right. 

(ii) An application for substitution of judge as of right shall be made by motion and shall be granted if it is presented before trial or hearing begins and before the judge to whom it ispresented has ruled on any substantial issue in the case, or if it ispresented by consent of the parties.

(iii) If any party has not entered an appearance in the case and has not been found in default, rulings in the case by the judge on any substantial issue before the party's appearance shall not be grounds for denying an otherwise timely application for substitution of judge as of right by the party."

"The substitution of judge as a matter of right isabsolute where the motion requesting the substitution is filedbefore the judge presiding in the case has made a substantialruling." Alcantar v. Peoples Gas Light & Coke Co., 288 Ill. App.3d 644, 648, 681 N.E.2d 993, 995 (1997). Only rulings made afterall parties who are not defaulted make an appearance are to beconsidered in granting or denying the motion. 735 ILCS 5/2-1001(a)(2)(iii) (West 2000). In this case, the only ruling madeafter respondent made his appearance was a continuance on thecourt's own motion, which is not a ruling on a substantial issue. Under prior statutes allowing the automatic substitution of a judge, an inquiry could be made whether the motion wasfiled simply for delay or whether the movant had an opportunityto test the waters and form an opinion as to the court's reactionto his claim. In re Marriage of Roach, 245 Ill. App. 3d 742,746-47, 615 N.E.2d 30, 33 (1993). The present version, however,has adopted a new test. Under the present version, it is notnecessary to allege that the judge is prejudiced against thedefendant. Cf. Ill. Rev. Stat. 1987, ch. 38, par. 114-5(a). Under the present version of section 2-1001(2), the right to asubstitution without cause must be "timely exercise[d]." 735ILCS 5/2-1001(a)(2) (West 2000). A party timely exercises hisright if his motion "is presented before trial or hearing beginsand before the judge to whom it is presented has ruled on anysubstantial issue in the case." 735 ILCS 5/2-1001(a)(2)(ii)(West 2000); Roach, 245 Ill. App. 3d at 747, 615 N.E.2d at 33. Respondent's motion was timely filed because it was made bymotion, before the hearing and before the judge had ruled on anysubstantial issue in the case.

Therefore, respondent had an absolute right to asubstitution of judge. It was an abuse of discretion for thetrial court to deny the motion, and we reverse the order denyingthe motion. The trial court's error in denying the motion forsubstitution of judge tainted the subsequent rulings granting theplenary order of protection and ordering respondent to reimbursethe county for petitioner's appointed counsel's fees, and we arealso required to reverse those orders. Sarah Bush Lincoln HealthCenter v. Berlin, 268 Ill. App. 3d 184, 190, 643 N.E.2d 276, 281(1994).

B. Appointment of the Domestic Violence Attorney

Respondent next argues that the trial court did nothave authority to appoint counsel for petitioner in this proceeding under the Illinois Domestic Violence Act. 750 ILCS 60/101through 401 (West 2000). We disagree. Trial courts are in factencouraged to appoint counsel to the indigent in "domesticrelations matters." See 705 ILCS 130/1 through 30 (West 2000)(Domestic Relations Legal Funding Act). Lawsuits involvingorders of protection are a "domestic relations matter" under theDomestic Relations Legal Funding Act. 705 ILCS 130/10 (West2000). The legislature has found that "providing legal representation to the indigent party in domestic relations cases has agreat potential for efficiently reducing the volume of matterswhich burden the court system in this State." 705 ILCS 130/5(West 2000). Therefore, we find that the trial court had authority to appoint counsel to petitioner in this domestic relationsmatter.

III. CONCLUSION

We reverse the order of the trial court denying respondent's motion for substitution of judge. We reverse the ordersgranting the plenary order of protection and requiring respondentto reimburse the county for petitioner's appointed domesticviolence attorney fees. We affirm the order appointing thedomestic violence attorney to petitioner. We remand the case andextend the emergency order of protection for the appointment of anew judge and a new hearing on the motion for plenary order ofprotection.

Affirmed in part and reversed in part; cause remandedwith directions.

MYERSCOUGH and STEIGMANN, JJ., concur.