In re Marriage of Morgan
In re Marriage of Morgan
Opinion
*502 *720 ¶ 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
,
¶ 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 *503 *721 have happened between these parties since then that you should take notice of.
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
,
¶ 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
,
¶ 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) 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 *504 *722 or both ." (Emphases added.) Ill. S. Ct. R. 304(a) (eff. Mar. 8, 2016).
¶ 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 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
,
¶ 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 Health Care & Family Services v. Cortez
,
*505 *723 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
,
¶ 15 CONCLUSION
¶ 16 For the foregoing reasons, we dismiss the appeal for lack of jurisdiction.
¶ 17 Appeal dismissed.
Justices Carter and McDade concurred in the judgment and opinion.
Reference
- Full Case Name
- In RE MARRIAGE OF Geri T. MORGAN, N/K/A Geri T. Fox, Petitioner-Appellee, and Michael S. Morgan, Respondent-Appellant.
- Cited By
- 2 cases
- Status
- Unpublished