Blair v. MacKoff

672 N.E.2d 895, 284 Ill. App. 3d 836, 220 Ill. Dec. 78, 1996 Ill. App. LEXIS 839
Appellate Court of Illinois·Decided October 30, 1996·No. 1-95-1434·Published·Cited by 9 cases

Opinion

PRESIDING JUSTICE TULLY

delivered the opinion of the court:

Plaintiff, W. Robert Blair, appeals from an order of the circuit court of Cook County granting the motion to dismiss of defendants, Benjamin S. Mackoff, presiding judge of the domestic relations division of the circuit court of Cook County, Illinois, and Richard Borland, judge of the domestic relations division of the circuit court of Cook County, Illinois, pursuant to section 2 — 619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2 — 619(a)(9) (West 1994)). Jurisdiction is vested in this court pursuant to section 6 of article VI of the Illinois Constitution (Ill. Const. 1970, art. VI, § 6) and Supreme Court Rule 301 (155 Ill. 2d R. 301).

For the reasons that follow, we affirm.

FACTUAL BACKGROUND

In 1990, Patricia Blair (hereinafter Patricia) filed a petition for dissolution of marriage against plaintiff in the circuit court of Cook County. The case was assigned to Judge Robert Berland. In the fall of 1991, Patricia was granted a voluntary dismissal.

In 1993, Patricia again filed a dissolution of marriage action against Robert. The case was randomly assigned to calendar B, Judge Aubrey Kaplan, pursuant to Circuit Court of Cook County General Order 15.3, which provides that each case filed in the circuit court’s domestic relations division shall be assigned by the clerk of the circuit court to a calendar by random electronic process. Each judge in the domestic relations division is assigned to a team and to a calendar within each team. Each judge who works with preliminary matters is assigned to a lettered calendar, and each trial judge is assigned to a numbered calendar.

After the initial assignment of the Blair matter, the case was reassigned to Judge Berland, pursuant to domestic relations division General Order 90-D-2, which provides that "cases between the same parties refiled in the Domestic Relations Division shall be transferred to the same preliminary [lettered] and/or trial [numbered] calendar on which the prior case was last pending regardless of the identity of allegations contained in the petition or the relief sought.” General Order 90-D-2 took effect on June 12, 1990.

Abe’s Log Cabin, Ltd., of which plaintiff owned a 51% controlling interest, had become involved in the litigation and filed a motion to substitute Judge Berland, which was heard on January 13, 1995. On that day Judge Berland granted the motion and assigned the case to the clerk of the circuit court for random electronic assignment to a preliminary calendar other than calendar E. Prior to the time that Judge Berland assigned the case to the clerk, he ruled on a number of motions in the case, including plaintiff’s motion to dismiss for lack of subject matter jurisdiction, which he denied.

The case was then randomly assigned to team A, Judge Sheldon Gardner. Thereafter plaintiff filed a motion to substitute Judge Gardner as a matter of right. Judge Gardner granted the motion and transferred the case to the presiding judge for reassignment. The case was then randomly assigned to team C, Judge Philip Bronstein. Judge Bronstein heard plaintiff’s motion to reconsider Judge Borland's earlier denial of plaintiff’s motion to dismiss the case for lack of subject matter jurisdiction. Judge Bronstein found Illinois courts did have jurisdiction.

Thereafter, plaintiff filed a motion to reconsider Judge Bronstein’s order that Illinois has subject matter jurisdiction. Plaintiff argued that he had become a resident of the Dominican Republic and that Patricia was a resident of Indiana. Plaintiff also argued that there was nothing for the court to adjudicate as he had previously obtained a divorce from Patricia in the Dominican Republic. All of the judges dealing with this issue found that the Dominican decree lacked integrity and refused to afford it comity.

Judge Bronstein conducted hearings during the months of February and March of 1995 on Patricia’s motions for a temporary restraining order and a preliminary injunction to prevent plaintiff from withdrawing all assets from the jurisdiction. In March 1995, after a hearing, Judge Bronstein granted Patricia’s motion for a preliminary injunction. At the hearing on Patricia’s motion, plaintiff filed a motion to stay further proceedings, based on the instant litigation. Judge Bronstein denied plaintiff’s motion for stay.

On December 9, 1994, plaintiff filed his complaint in the circuit court in this action against defendants. In his complaint, plaintiff asserted that General Order 90-D-2 was void because it contradicted other circuit court rules and because Judge Mackoff lacked the authority to issue it. Plaintiff sought a declaration that the general order was void and an injunction requiring Judge Mackoff to return the divorce case to Judge Kaplan and enjoining Judge Berland from taking any further action therein.

Judge Foreman denied plaintiff’s request for a temporary restraining order. Judges Mackoff and Berland filed a motion to dismiss the complaint under section 2 — 619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2 — 619(a)(9) (West 1994)), which the trial court granted. The instant appeal followed.

ISSUES PRESENTED FOR REVIEW

On appeal, the issues are: (1) whether domestic relations division General Order 90-D-2 was properly promulgated; and (2) whether domestic relations division General Order 90-D-2 violates our state’s constitutionally mandated separation of powers of the three branches of Illinois government.

OPINION

As a preliminary matter, we address a motion to dismiss this action as moot filed in this court by defendants. Specifically, defendants urge that this action is moot because this court can no longer grant plaintiff any effectual relief. Defendants cite the fact that the relief which plaintiff sought in his complaint in this action, the enjoining of Judge Berland from taking any further action in the divorce case and the requiring of Judge Mackoff to return the case to Judge Kaplan, can no longer be granted as the dissolution of marriage action has been settled between the Blairs and a judgment entered therein.

In HealthChicago, Inc. v. Touche, Ross & Co., 252 Ill. App. 3d 608, 610 (1993), the mootness doctrine was stated as follows:

"It is a well-recognized principle of law that a reviewing court will decide only actual controversies in which the interests or rights of the parties to the litigation can be granted effectual relief. [Citation.] An appeal becomes moot when a court can no longer effect the relief originally sought by an appellant or when the substantial question involved in the trial court no longer exists. [Citation.] When a case is rendered moot, a court’s decision on the merits cannot afford either party relief and any decision thus reached is merely an advisory opinion.” HealthChicago, 252 Ill. App. 3d at 610.

See also Dixon v. Chicago & North Western Transportation Co., 151 Ill. 2d 108 (1992).

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Blair v. MacKoff, 672 N.E.2d 895, 284 Ill. App. 3d 836, 220 Ill. Dec. 78, 1996 Ill. App. LEXIS 839 (Ill. Ct. App. 1996).

672 N.E.2d 895 (Blair v. MacKoff) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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