In re Marriage of Bush

2019 IL App (1st) 191467-U

• Court: Appellate Court of Illinois
• Decided: December 13, 2019
• Docket: 1-19-1467
• Status: Unpublished

Opinion

2019 IL App (1st) 191467-U

FIFTH DIVISION December 13, 2019

No. 1-19-1467

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT

In re MARRIAGE OF ) Appeal from the Circuit Court of ERIKA BUSH, ) Cook County ) Petitioner-Appellee, ) ) No. 2017 D 230075 and ) ) EDWIN F. BUSH, ) ) Honorable John T. Carr, Respondent-Appellant. ) Judge, presiding.

JUSTICE DELORT delivered the judgment of the court. Presiding Justice Hoffman and Justice Rochford concurred in the judgment.

ORDER

¶1 Held: The circuit court erred in bifurcating the judgment of dissolution of marriage. We dismiss the appeal in part, affirm the judgment in part, vacate in part, and remand with instructions.

¶2 I. BACKGROUND

¶3 Edwin and Erika Bush were married in 2008 and are the parents of two children. Their son,

J.B., was born in 2011, and their daughter, A.B., was born in 2015. In February, 2017, Erika filed

a petition for dissolution of the marriage, requesting “sole parental responsibilities.” Edwin is a 1-19-1467

licensed attorney and, although he was represented by counsel at various times during this case, at

most relevant times he proceeded pro se. Indeed, even while he had an attorney of record, he often

filed motions on his own behalf.

¶4 Shortly after this case began, Erika filed an affidavit alleging that Edwin had uncontrolled

anger issues. Edwin filed a petition for contempt, claiming that Erika had made false allegations

against him to both the court and the police. These two themes persisted throughout the ensuing

litigation.1 On March 7, 2017, the court entered a temporary parenting schedule. From time to

time, each party filed motions with the court accusing the other of failing to comply with the

parenting schedule, and the court periodically modified the parenting schedule over the course of

2017, including ordering that child transfers occur at the local police station.

¶5 The court appointed a children’s representative and an expert to provide a report on

parenting and custody. The expert, Dr. Sol Rappaport, completed his evaluation on November 12,

2017.

¶6 In January, 2018, the court set a trial date for April 3 of that year. On March 26, just over

a week before the scheduled trial date, Edwin petitioned for substitution of judge for cause,

alleging that several of the court’s orders relating to parenting time were improper and showed

“deep-seated antagonism *** that would make fair judgment impossible.” However, that petition

became moot because the judge voluntarily recused herself. Shortly thereafter, another judge

granted the children’s representative’s motion to be discharged on the grounds that Edwin’s

“rhetoric, pleadings and communication [had] been disturbing and escalating in nature.” Before

1 Throughout their briefs, both parties refer to various filings, including motions, as “pleadings.” Before the circuit court, both parties routinely responded to motions as if they were pleadings, by admitting, denying, or claiming a lack of knowledge as to each paragraph, rather than addressing the movant’s factual and legal arguments. This practice is unfortunately common in domestic relations cases and “leads to improper pleadings and motions, excessive pleading and motion practice, increased costs, congested courts, and poor records on appeal; all of which stand in the way of prompt and effective administration of justice.” Sanjay T. Tailor, Better Civil Practice in Dissolution of Marriage Litigation, 40 Loy. U. Chi. L.J. 911, 921 (2009).

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making any other substantive rulings, the second judge recused herself. The case was then assigned

to Judge John T. Carr.

¶7 The newly assigned judge was immediately faced with petitions from each party to modify

the parenting schedule, repeating the familiar allegations of Edwin’s anger issues and Erika’s

disingenuousness to the court and law enforcement. On June 7, 2018, the court entered a “summer

parenting schedule” that granted Edwin more parenting time, and appointed a guardian ad litem

(GAL) for the children. The parties’ disputes continued throughout the summer.

¶8 On October 9, 2018, Erika filed an emergency petition for an order of protection on behalf

of the children, and an emergency motion for supervised parenting time. The petition and the

motion were supported by nearly identical affidavits in which Erika alleged that her son’s behavior

at school had deteriorated since Edwin had received additional parenting time. Allegedly, J.B. used

inappropriate language toward his teacher and stabbed a classmate with a pencil. The motion for

supervised parenting time included the additional allegation that J.B. told a school employee, “I

want to kill myself. I want to die so that I can have a new life.”

¶9 The affidavits also alleged that J.B. had revealed to Dr. Reginald Pacheco, a therapist, that

his father had “choked him,” and that this meeting with the therapist led directly to an investigation

by the Illinois Department of Child and Family Services (DCFS). Erika further alleged that Edwin

“exhibited aggressive behavior with the [DCFS] investigator and yelled swear words at her.”

Edwin filed responses to both the petition for an order of protection and the motion for supervised

parenting time. In his response to the motion for supervised parenting time, Edwin argued that the

choking allegation and subsequent DCFS investigation were manufactured by Erika. Edwin

admitted to grabbing J.B. by the back of the neck, but denied that action was “choking” or

inappropriate. He also claimed that the GAL had known about the incident in question for nearly

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two months, and had apparently concluded that it was not worth pursuing. Further, he contended

that the alleged choking could not be considered an emergency because Erika had let several court

appearances pass without raising the issue with the court. Edwin’s response to the petition for an

order of protection did not address the specific allegations, but accused Erika of engaging in a

dishonest campaign to reduce his parenting time.

¶ 10 The next day, the court conducted a hearing on the emergency petition. After hearing

testimony from the GAL, Erika, and Edwin, the court entered a 21-day emergency order of

protection and set a hearing date for a plenary order of protection. The order reserved the issue of

visitation. From the bench, the court made a finding that abuse had occurred. The court also noted

that Edwin’s “lack of control of [his] anger” was an even more important consideration then the

abuse claim.

¶ 11 Edwin filed a notice of appeal the same day and the clerk of this court assigned his appeal

number 1-18-2157. However, Edwin did not file his petition for leave to appeal the emergency

order of protection until October 15, after the two-day filing period established by Rule 307(d).

Ill. S. Ct. R. 307(d)(1) (eff. Nov. 1, 2017). This court dismissed appeal 1-18-2157 for lack of

jurisdiction.

¶ 12 On November 6, 2018, the court scheduled a hearing for the plenary order of protection to

be held November 30, 2018. The court orally indicated, and the scheduling order reflected, that

the court would hear the petition for a plenary order of protection and all other outstanding

motions. Although the scheduling order did not explicitly list the motion for supervised parenting

time, that motion was still pending.

¶ 13 On November 13, Edwin filed an emergency motion to appoint a new evaluator, Dr. David

Finn. The motion argued that Dr. Rappaport was not properly appointed and requested that the

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court extend the discovery deadline. The court granted the motion to appoint Dr. Finn at Edwin’s

expense, but specifically indicated in the order that the scheduled January 24, 2019 trial date would

“not be continued due to this evaluation.” Dr. Finn evidently never performed an evaluation.

¶ 14 At the November 30 hearing, Tiffany Woodard testified that she was an investigator for

DCFS, and that she investigated a report that Edwin had choked J.B. Woodard testified that during

her investigation, she interviewed J.B., Erika, and Edwin. She testified that in her interview with

Edwin, he used profane language in front of the children, and was “rude”, “insulting”, and “very

erratic”. She testified that she felt so threatened by Edwin that she called her supervisor, who

recommended that she call for a police escort and that Edwin “voluntarily” forego visitation for a

“cooling down period.” Edwin was not amenable to that suggestion, and told her and the police to

“get the f*** out”.

¶ 15 Woodard had also contacted Edwin’s girlfriend, the GAL, J.B.’s therapist, the children’s

pediatrician, and another DCFS worker who had been involved in an earlier investigation of the

Bush family. Edwin’s girlfriend, who was present at the time of the alleged choking incident, told

Woodard that Edwin had grabbed J.B. by the back of the neck rather than “a front-face choke.”

Woodard testified that, in light of the girlfriend’s statements and the lack of any physical injury to

J.B., she ultimately determined that the investigation was “unfounded”. On cross-examination,

Edwin introduced police body camera footage from Woodard’s interview at Edwin’s apartment.

¶ 16 The video itself does not appear in the record. A document in the record purports to be

transcription of the video. As Erika points out, it appears to have been prepared and edited by

Edwin personally rather than by a certified court reporter. In his reply brief, Edwin contests that

“there is no way to submit video into the *** record.” However, our supreme court has provided

standards for the submission of non-documentary exhibits. See Ill. S. Ct. Standards and

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Requirements for Electronic Filing the Record on Appeal, § 3(d)(v) (eff. June, 2017) (addressing

the submission of “video or audio recordings, computer media, discs, flash drives, etc.”). In fact,

videos are routinely included in the records for both criminal and civil appeals before this court.

See, e.g., Williams v. Department of Employment Security, 2016 IL App (1st) 142376, ¶ 11

(explicitly noting that a video exhibit was part of the appellate record). Having concluded that the

document submitted by Edwin is not a properly certified transcription, we do not consider it in our

analysis. See Foutch v. O’Bryant, 99 Ill. 2d 389, 391 (1984) (holding that it is the appellant’s

burden to provide a complete record for review in the appellate court).

¶ 17 Next, Erika testified that she was with J.B. when he told the therapist that his father had

choked him. She also testified that although the DCFS investigation resulted in an “unfounded”

determination, she was still seeking an order of protection and supervised parenting time for

Edwin. She testified that J.B.’s behavior had improved since the entry of the temporary order of

protection.

¶ 18 After Erika rested, Edwin called Dr. Reginald Pacheco. Dr. Pacheco testified that during

his first meeting with J.B., Erika was present for the entire session. He testified that Erika first

brought up the choking allegation. Although Dr. Pacheco could not recall the specific language

used, he testified that J.B. confirmed “that there has been a history of physical abuse.” Dr. Pacheco

did not ask Erika to leave the room after the allegation surfaced. Dr. Pacheco testified that he was

required by law to report the choking allegation to DCFS and that Erika consented to him making

a report, although consent was not actually necessary.

¶ 19 Edwin then called the GAL. The GAL clarified that Edwin had never told him that he

grabbed his son by the throat, only by the back of the neck. Edwin introduced several emails

between the GAL and Erika, in which Erika discussed the alleged choking incident. In the emails,

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Erika did not use the word “choke”, but alleged that Edwin had “grabbed [J.B.] by the neck, which

[Edwin] has done in the past.” He also testified that he had seen video of the interview between

Woodard and Edwin, during which J.B. said to Woodard and the police, “Don’t arrest my father.

He didn’t choke me.” 2

¶ 20 Before Edwin could call his girlfriend or present his own testimony, the court interrupted

and asked, “Do you want me to cut to the chase on this?” To which Edwin answered, “Yes, sir.”

The court then announced that it would deny the entry of a plenary order of protection. The court

stated that grabbing J.B. by the back of the neck was “wrong”, but not enough to warrant an order

of protection. Nevertheless, the court concluded “that parenting time would seriously endanger the

child’s mental, moral or physical health and significantly impair the child’s emotional

development.” This decision was based on both Edwin grabbing J.B. by the neck and Edwin’s

temperament and language toward Woodard and the police. The court stated that the ultimate goal

is for Edwin to have a relationship with his children, but that he must first undergo anger

management. To that end, the court entered an order denying the plenary order of protection, but

requiring that Edwin attend anger management counseling and suspending his parenting time

“[u]ntil such time as [Edwin] has completed the anger management and counseling sessions

directed by the court and the court is satisfied.” A contemporaneous order vacated the temporary

order of protection.

¶ 21 On December 24, Edwin filed an emergency motion to (1) reinstate his parenting time, (2)

appoint a therapist for the children, and (3) reschedule the trial. In part, the motion to reinstate

parenting time relied on statements allegedly made by J.B. during a joint session with Dr. John

2 Presumably this is the same video Edwin showed Woodard on cross-examination. Again, no video appears in the record.

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Palen, Edwin’s therapist. Apparently, Edwin surreptitiously recorded the therapy session, to obtain

evidence that he had not abused J.B. 3

¶ 22 At the hearing on that motion, the GAL recommended that the court reinstate some

parenting time for Edwin. Erika’s counsel indicated that “Saturday[s] or Sunday[s] would be fine.”

The court agreed to reinstate six to eight hours of parenting time per week and ordered the parties

to leave the courtroom and to negotiate the details. However, Edwin refused to negotiate any

reinstated parenting time, insisting instead to continue his challenge to the November 30 order.

Because Edwin would not agree to any change in parenting time short of reversing the November

30 order, the court made no change to the parenting time and continued all issues until the trial

date.

¶ 23 On January 23, the day before trial, Edwin filed a petition to substitute Judge Carr for

cause. The petition largely consisted of Edwin’s procedural and substantive arguments against the

November 30 order, as well as complaints that the court had failed to rule on several of his motions.

A different judge heard and denied that petition. Although an order denying a petition for

substitution of judge is not immediately appealable (In re Estate of Wilson, 238 Ill. 2d 519, 580

(2010) (Freeman, J., concurring)), Edwin promptly filed a notice of appeal from the denial of his

petition. That appeal was assigned number 1-19-0165 by the clerk of this court and was later

dismissed for want of prosecution.

¶ 24 On January 24, the day scheduled for trial. Edwin renewed his motion to continue the trial

date, arguing that he had multiple motions that the court had never formally ruled on, and that his

pending appeal removed the case from the circuit court’s jurisdiction. The court overruled the

3 Like the police video, this recording is not part of the record. A document in the record purports to be transcription of the recording, but it appears to have been prepared and edited by Edwin personally rather than by a certified court reporter. We do not consider it in our analysis.

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objections and informed the parties that the trial would proceed. Edwin then walked out of the

courtroom. As he was walking away, the court asked, “are you leaving?” Edwin replied, “Yep.”

He did not return.

¶ 25 The trial proceeded in Edwin’s absence, with Erika and the GAL testifying. Erika testified

as to her finances and living situation. She also testified about raising the children, unpleasant

visitation exchanges, and altercations with Edwin. She testified that Edwin had been verbally

abusive and profane in front of the children, and that his anger issues caused concern for his ability

to parent. She again testified that after “the DCFS issue,” J.B. started swearing at his teacher and

expressing suicidal thoughts. She testified that J.B. had been much better since the drastic

reduction in contact with Edwin. She then testified about Edwin’s education and work history, and

that Edwin had not been paying support.

¶ 26 The GAL testified that he perceived Edwin as “a person who wanted to maximize the

amount of time he could have with his children, but his inability to separate his anger for this

divorce with his wife has unfortunately poured over to his interactions with the children,” as

evidenced by the altercation with Woodard and the police. He opined that Edwin and Erika could

not have joint decision-making responsibilities because of Edwin’s anger and stubbornness.

¶ 27 He testified that Edwin’s anger, and particularly his inability to perceive how his anger

affected the children, interfered with Edwin’s ability to parent. He testified that J.B.’s behavior at

school had gotten so bad that he was not allowed to return to class until he received therapy. He

highlighted certain portions of Dr. Rappaport’s evaluation, which was entered into evidence, and

recommended that Edwin receive eight sessions of therapy before he be allowed anything more

than supervised visitation. In response to the court’s question, the GAL recommended a supervisor

for visitation and that a new therapist be appointed for anger management. He also recommended

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that the court reserve the issue of Edwin’s parenting time or limit it to supervised visitation until

Edwin attended the mandated therapy.

¶ 28 From the bench, the court stated that adequate grounds existed to dissolve the marriage.

The court also ruled that Erika would have all decision-making responsibility for the children. The

court recited that it had suspended Edwin’s parenting time on November 30, and ruled that Edwin

was to only have supervised visitation with the children. Further, the court ruled that the suspension

of Edwin’s parenting time would be lifted after he attended at least one session of anger

management and one session of therapy. The court set a 120-day status hearing on that issue.

Erika’s counsel made an oral request for fees related to the defense of Edwin’s appeal of the

emergency order of protection (appeal no. 1-18-2157), which the court granted.

¶ 29 The court entered a written order on January 24, recounting that Edwin had moved for a

continuance, that the case had proceeded to trial after Edwin left the courtroom, and that the court

“considered [Erika’s] motion for judgment on the pleadings, and [her] motion in limine to bar

examination [of Edwin], lay or opinion witnesses, documents and reports[,] and for default.” The

order stated that the oral pronouncements of the court would be reduced to a written order later.

¶ 30 On February 11, the court entered an order allowing new counsel to file an appearance on

Edwin’s behalf, setting a case status hearing later that month, and stating that “[i]f no agreement

is reached by 2-28-19 the judgment will be entered.” Notwithstanding the language of that order,

the court entered an order drafted by Erika’s counsel just two days later, incorporating the oral

pronouncements from January 24.

¶ 31 Section 9 of the February 13 judgment is captioned “Allocation of Parental

Responsibilities.” Its first two subsections grant Erika “all sole decision-making authority for the

minor children” and provide that she will hold the children’s passports. Subsection 9(C) is

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captioned “Respondent’s Parenting Time” and it orders Edwin to attend eight sessions of

counseling and eight sessions of anger management. It provides that “[s]uspension of [Edwin’s]

parenting time shall be terminated upon proper notice and petition and completion of one (1) anger

management session and one (1) counseling session.” Thereafter, Edwin was to have supervised

parenting time with the children, at his own expense. The order then set a date for “[s]tatus on

[Edwin’s] therapy progress and parenting time.” The order also, pursuant to 750 ILCS 5/508(a)

(West 2016), ordered Edwin to pay $2,500 to Erika’s for fees related to the defense of appeal no.

1-18-2157.

¶ 32 On March 8, 2019, counsel for Edwin filed a motion to vacate or reconsider the February

13 judgment pursuant to section 2-1203 of the Illinois Code of Civil Procedure (Code) (735 ILCS

5/2-1203 (West 2016)). The motion argued that the court erred in entering judgment before the

February 28 date mentioned in the February 11 order. The motion also sought reconsideration of

the portion of the judgment related to Edwin’s parenting time. Specifically, the motion argued that

Edwin had already seen Dr. Palen many times, and that complete separation between Edwin and

his children was not in their best interests. The motion also requested that the court order family

therapy.

¶ 33 The motion to vacate or reconsider was continued from time to time as Erika filed

additional motions with the court and the parties negotiated a possible settlement. On May 2, the

court entered an order continuing all outstanding issues and noting that a proposed settlement order

might be forthcoming. However, Edwin’s attorney moved for leave to withdraw his appearance a

week later. Edwin filed an objection to his attorney’s motion, alleging that his attorney, Erika’s

attorney, and the GAL had committed “gross negligence” in their drafting of a proposed settlement

order that would have reserved the issue of parenting time until the parties could participate in

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therapy with Dr. Gwenn Waldmann. Edwin represented that he had contacted Dr. Waldmann

independently and determined that she was unwilling to accept the role proposed in the draft

agreement. Edwin also suggested that the GAL and his attorney “traded favors” in various cases

that they had worked on.

¶ 34 Before his attorney’s motion to withdraw was presented, Edwin, once again acting pro se,

filed a second petition to substitute Judge Carr for cause. Edwin argued that Judge Carr showed

actual bias in a number of ways, most notably in his ruling in the November 30, 2018, his denial

of Edwin’s motion to continue the trial date, and his entry of judgment on February 13,

notwithstanding the language of the February 11 order giving the parties time to settle the case. 4

¶ 35 The second petition for substitution was assigned to Judge Timothy Murphy. Erika argued

that any allegations regarding Judge Carr’s conduct before January 23 were barred by the doctrine

of res judicata because the first petition to substitute Judge Carr was denied on that date. She also

argued that Edwin’s petition was improper because his attorney’s motion to withdraw was still

pending, and therefore Edwin was not entitled to file any motions or petitions on his own. On May

22, 2019, Judge Murphy heard oral argument on the petition for substitution and Edwin’s

attorney’s motion to withdraw. 5 The court granted Edwin’s attorney’s motion to withdraw,

“struck” those portions of the petition for substitution “as to matters asserted prior to January 23,

2019,” and took the petition under advisement.

¶ 36 On June 5, Judge Murphy entered an eleven-page order denying the petition for substitution

of judge. The order includes a lengthy recitation of Edwin’s arguments, including his contention

4 In various filings in the months since, Edwin has represented that the court acknowledged that the “early” entry of judgment was a “mistake.” However, it is clear that Edwin was not actually present when the court made that alleged acknowledgment, and nothing else in the record indicates that the court entered judgment mistakenly. 5 No transcript of this hearing appears in the record, but the court’s May 22 orders recite that the court heard argument.

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“that there was no notice that the proceedings of November 30, 2019 may relate to a potential

suspension of parenting time. Rather, only the hearing on the Order of Protection was set to be

heard, and indeed that was what was heard.” Judge Murphy ruled that even if the court had erred

in all the ways alleged by Edwin, those errors were insufficient “to establish a showing of actual

prejudice by Judge Carr.”

¶ 37 The motion to vacate or reconsider filed by Edwin’s attorney on March 8 remained

pending, with no hearing date set. On June 6, over four months after the trial, Edwin filed a motion

to reopen proofs. His arguments were substantially similar to those advanced in his other motions

and petitions.

¶ 38 On June 10, the court entered an order setting a hearing date for the motion to vacate or

reconsider and, if necessary, the motion to reopen proofs. The next day, Edwin filed an

“emergency” motion attacking the November 30, 2018 order.

¶ 39 On June 27, the court heard argument on Edwin’s motion to declare the November 30 order

void. The GAL and Erika’s attorney both opined that Edwin’s motion was procedurally flawed

because the November 30 order was an interim order that was no longer in effect after the entry of

the February 13 judgment. Edwin argued that the November 30 order was void because there was

not a pending motion for supervised parenting time, nor did he have notice that supervised

parenting time as an issue set for hearing. Further, he argued that the November 30 order was still

in effect because his still-pending motion to vacate or reconsider the February 13 judgment acted

to stay enforcement of the final judgment. Edwin also withdrew the reconsideration portion of his

motion to vacate or reconsider the February 13 judgment. The court denied the motion to declare

the November 30 order void.

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¶ 40 Edwin then filed his third petition to substitute Judge Carr for cause. The petition was

substantially the same as the second, with the added allegations that Judge Carr had improperly

denied Edwin’s subsequent motions attacking the November 30 order. On July 2, 2019, another

judge denied the third petition as “legally and factually deficient to establish a basis to substitute

judge.” On July 3, Edwin again moved to vacate the November 30, 2018 order. 6 On July 17, 2019,

the court denied the motion to vacate. This appeal followed.

¶ 41 In his July 17 notice of appeal, Edwin specifically seeks review of the February 13, 2019

judgment and the circuit court’s June 27, 2019 order denying his June 11 motion to vacate the

November 30, 2018 order. He also asks that this court remove Judge Carr for entering the allegedly

improper November 30 order.

¶ 42 On July 22, 2019, Edwin filed a section 2-1401 (735 ILCS 5/2-1401 (West 2016)) petition

attacking the February 13 judgment. That same day, the circuit court denied both the section 2-

1401 petition and Edwin’s July 3 motion attacking the November 30 order. The July 22, 2019

order, which denied the July 3 motion and the section 2-1401 petition, is not before us in this case.

¶ 43 II. ANALYSIS

¶ 44 A. Jurisdiction

¶ 45 On August 26, 2019, Erika filed a motion to dismiss this appeal for lack of jurisdiction.

She argued that the July 17 notice of appeal was premature because it predated the July 22 order

denying Edwin’s 2-1401 petition and his July 3 motion. Her contention was that those filings

constituted “postjudgement motions” for the purposes of Illinois Supreme Court Rule 303 (eff.

July 1, 2017), so Edwin’s notice of appeal should have been filed after the court disposed of

6 Edwin’s efforts to attack the November 30 order were unrelenting. The record of this appeal contains a copy of a completely separate lawsuit which he filed in the Chancery Division of the Circuit Court of Cook County, naming Chief Judge Evans as a defendant, requesting an order directing Chief Judge Evans to vacate Judge Carr’s orders.

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them. Edwin responded that his appeal was timely under Rule 303 because “the last pending

postjudgment motion directed against” the February 13 judgment was his March 8 motion to

vacate or reconsider. See Ill. S. Ct. R. 303(a)(1) (eff. July 1, 2017). We denied the motion

without prejudice to raising the issue of jurisdiction in her brief, which Erica has done.

¶ 46 As we explained in our order denying Erika’s motion to dismiss, this appeal was timely

filed. Under Rule 303(a)(1), notices of appeal must be filed within 30 days after the entry of final

judgment or, if a postjudgment motion is filed, within 30 days “of the order disposing of the last

pending postjudgment motion directed against that judgment”. Ill. S. Ct. R. 303(a)(1) (eff. July 1,

2017). Section 2-1203(a) of the Code provides that in non-jury cases, “any party may, within 30

days after the entry of the judgment or within any further time the court may allow within the 30

days or any extensions thereof, file a motion for a rehearing, or a retrial, or modification of the

judgment or to vacate the judgment or for other relief.” 735 ILCS 5/2-1203(a) (West 2016). Once

a trial court rules on the merits of a postjudgment motion, the 30-day period for filing the notice

of appeal commences to run. VC & M, Ltd. v. Andrews, 2013 IL 114445, ¶ 18.

¶ 47 On February 13, 2019, the court entered the judgment of dissolution of marriage. On March

8, Edwin timely filed a motion to vacate or reconsider the February 13 judgment. The March 8

motion was “the last pending postjudgment motion directed against” the February 13 judgment.

Edwin’s section 2-1401 petition was not a postjudgment motion, because section 2-1401 “applies,

by its terms, only in those instances when the 30-day postjudgment period has expired.” In re

Haley D., 2011 IL 110886, ¶ 66. Moreover, a section 2-1401 proceeding is considered

“independent and separate” from the original action. Warren County Soil and Water Conservation

District v. Walters, 2015 IL 117783, ¶ 31. Edwin’s July 3, 2019 motion is also not a postjudgment

motion directed against the February 13 judgment, because it was directed against the November

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30, 2018 order. Therefore, the circuit court’s July 17 order—denying the March 8 motion—

disposed of the last pending postjudgment motion directed against the February 13 judgment.

Edwin’s appeal, filed that same day, is timely.

¶ 48 There are, however, jurisdictional questions that Erika did not raise. This court has an

independent duty to consider its jurisdiction. Archer Daniels Midland Co. v. Barth, 103 Ill. 2d 536,

539 (1984).

¶ 49 First, as we will discuss at length, we find that the judgment improperly reserved the issue

of Edwin’s parenting time. There is some confusion about whether improper reservation of an

issue is reviewable on appeal because of the singular nature of an action for divorce. Compare In

re Marriage of Britton, 141 Ill. App. 3d 588, 592 (1986) (holding that reservation of division of

marital property is appealable) with In re Marriage of Rosenow, 123 Ill. App. 3d 546, 548 (1984)

(holding that reservation of division of marital property precludes appellate jurisdiction). We hold

that although the February 13 judgment is not final as to all issues, that does not destroy our

jurisdiction under Rule 303. A judgment that conclusively resolves all issues except the allocation

of parental responsibilities, is “final” for the purpose of establishing appealability. In re Marriage

of Cesaretti, 203 Ill. App. 3d 347, 352 (1990). Bifurcation of a judgment of dissolution of marriage

must be subject to immediate appeal or the issue will become moot when the reserved issue is

finally resolved. In re Marriage of Bogan, 116 Ill. 2d 72, 76 (1986).

¶ 50 Second, Illinois Supreme Court Rule 303(b)(2) (eff. Jan. 1, 2015) states that the notice of

appeal “shall specify the judgment or part thereof or other orders appealed from and the relief

sought from the reviewing court.” “A notice of appeal confers jurisdiction on a court of review to

consider only the judgments specified in the notice of appeal.” Diocese of Quincy v. Episcopal

Church, 2014 IL App (4th) 130901, ¶ 35. An unspecified order is reviewable only where it is a

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step in the “procedural progression” leading to the judgment specified in the notice of appeal.

Burtell v. First Charter Service Corp., 76 Ill. 2d 427, 435 (1979).

¶ 51 Edwin’s notice of appeal specifically seeks review of the February 13, 2019 judgment

and the circuit court’s June 27, 2019 order denying his motion to vacate the November 30, 2018

order. However, Edwin’s brief lists ten separate issues for review, several of which relate to

orders that are not indicated in his notice of appeal. We will resolve these jurisdictional questions

issue-by-issue.

¶ 52 B. The November 30, 2018 Order

¶ 53 The bulk of Edwin’s brief is dedicated to attacking the circuit court’s order of November

30, 2018. However, that order is not specified in his notice of appeal. Rather, the notice of appeal

seeks review of the circuit court’s June 27, 2019 order, denying a motion to declare the November

30 order void. The June 27 order is not independently appealable because it is neither a final

judgment nor a step in the procedural progression leading to the entry of the February 13 judgment.

However, we can review the November 30 order because it was a step in the procedural

progression leading to the entry of the February 13 judgment.

¶ 54 Edwin makes six arguments directed toward the November 30 order. We need not reach

any of these arguments, however, because the November 30 order was superseded by the February

13, 2019 judgment. A temporary custody order is necessarily provisional “and continues only

during the pendency of the action.” In re Marriage of Fields, 283 Ill. App. 3d 894, 901 (1996).

After a full hearing on the merits, “the temporary order has fulfilled its purpose and is superseded

by the final—or permanent—order.” Id. “Once the trial court enters the final order, an assumption

arises that the court has thereby adjusted for any inequity in its temporary orders.” Id.

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¶ 55 All the temporary custody orders entered by the circuit court, including the November 30

order, were superseded by the February 13 judgment. Although, as discussed below, we find that

the February 13 judgment improperly reserved the issue of Edwin’s parenting time, it was still

“final” in the sense that it superseded the November 30 order and is appealable. Therefore,

reversing the November 30 order would serve no purpose. See In re Alfred H.H., 233 Ill. 2d 345,

350 (2009) (appeal from a temporary order that is no longer in effect is moot). We dismiss the

appeal as to the November 30 order.

¶ 56 B. Edwin’s Motion to Continue the Trial

¶ 57 Edwin next argues that the circuit court erred by denying his motion to continue the trial

date. Although Edwin did not list the court’s January 24 order, the denial of a motion to continue

the trial date is a step in the procedural progression leading to the judgment. Therefore, we have

jurisdiction to address the court’s ruling on Edwin’s motion to continue the trial.

¶ 58 Litigants do not have an absolute right to a continuance. K & K Iron Works, Inc. v. Marc

Realty, LLC, 2014 IL App (1st) 133688, ¶ 22. Thus, the decision whether to grant or deny a

motion to continue is within the sound discretion of the trial court and will not be disturbed

unless palpable injustice results or denial constitutes a manifest abuse of discretion. Id.; 735

ILCS 5/2-1007 (West). “A circuit court’s ruling is considered an abuse of discretion when it is

arbitrary, fanciful, or unreasonable, or when no reasonable person would take the same view.”

Id.

¶ 59 Edwin advances several arguments for why his motion for a continuance should have been

granted. First, he argues that the court never actually considered his motion for continuance. This

argument is without merit. The record is clear that the court did not categorically refuse to entertain

the motion. Edwin first moved to reschedule the trial on December 24. However, when that motion

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came to be heard before the court, the continuance portion of the motion was not reached. At that

time, the parties were asked, but were unable, to negotiate additional parenting time for Edwin.

After the breakdown of the negotiations, the court continued all pending issues until the day of

trial. On the day of trial, Edwin renewed his motion and the court heard his argument in favor of

his motion. The court, after hearing Edwin’s oral argument, denied the motion to continue the trial.

¶ 60 Next Edwin argues that Erika’s unconscionable behavior gave her an unfair advantage,

necessitating a continuance. Specifically, he argues that Erika manufactured a false claim that he

had choked J.B. The ultimate result of that lie, Edwin contends, is that he was denied any parenting

time between October 10, 2018 and the day of trial. Without any parenting time, Edwin contends

that he was unable to have the children meet with Dr. Finn, leaving Edwin unable to proffer any

opinion testimony.

¶ 61 Edwin relies on In re Marriage of Liszka, 2016 IL App (3d) 150238 in support of this

argument. In that case, the court denied a motion to continue a trial, and barred the testimony of a

retained expert. Id. ¶ 8-9. We held that the trial court had abused its discretion in making those

rulings, because the proponent of the expert testimony had acted diligently in discovery while the

other party did not. Id. ¶ 37. However, this case is distinguishable from Liszka. Here, the court

granted Edwin’s motion to appoint Dr. Finn on November 14, 2018. From that date until the date

of trial, Edwin filed a myriad of motions, briefs, and other documents, but apparently did not

prepare witness disclosures, an affidavit of completeness, or an exhibit list. Nor did he file any

motion to take the children to see Dr. Finn or to compel Erika to take the children to see Dr. Finn.

This is noteworthy since Edwin sought and received an order allowing him to take J.B. to see Dr.

Palen. This is a far less compelling situation than in Liszka. In that case, the proponent of the expert

testimony had requested the requisite documents well in advance of the discovery deadline and

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filed two motions to compel discovery. Since the record shows no attempts by Edwin to comply

with the discovery deadline or compel Erika to take the children to see Dr. Finn, we cannot say

that the circuit court abused its discretion by denying the motion for continuance on this ground.

¶ 62 Edwin’s final argument on this issue is that the court’s own action caused the need for a

continuance. In support of that contention, he incorporates his earlier arguments directed toward

the November 30 order, and complains that he could not get a fair trial while his parenting time

was suspended. Even if the November 30 order was somehow flawed, Edwin presents no case law

or reasoned argument as to how his lack of parenting time necessitated a delay of the trial.

“Arguments that are not supported by citations to authority do not meet the requirements of Rule

341(h)(7) [Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018)] and are procedurally defaulted.” Wing v.

Chicago Transit Authority, 2016 IL App (1st) 153517, ¶ 11. To the extent that the lack of parenting

time interfered with his ability to obtain expert testimony, this argument fails for the reasons stated

above.

¶ 63 C. The February 13 Judgment

¶ 64 Edwin’s first argument directed toward the February 13, 2019 judgment is that the court

did not secure the appointment of an evaluator under 750 ILCS 5/604.10 (West 2016). He

contends that Dr. Rappaport’s evaluation was “stale” and that the court set an “arbitrary time

limit” in the order appointing Dr. Finn. Finally, Edwin contains that the court did not actually

read Dr. Rappaport’s evaluation.

¶ 65 Dr. Rappaport was appointed in 2017 and submitted his full report to the court on

November 12, 2017. One year and one day later, the court granted Edwin’s motion to appoint Dr.

Finn as an additional evaluator. The contention that the circuit court did not secure the

appointment of an evaluator is simply not accurate; the court appointed two of them.

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¶ 66 Edwin cites no case law for the proposition that a custody evaluation somewhat more than

a year old is “stale” and therefore inappropriate evidence for the court to consider. It is true that a

great deal had transpired between the completion of the evaluation and the trial, but Erika and the

GAL both testified how things had changed in that time, and Edwin would have been able to argue

the persuasiveness of the evaluation had he not absented himself from the trial.

¶ 67 The age of Dr. Rappaport’s evaluation is directly tied to the time limit placed on Dr. Finn’s

evaluation. This case was originally set for trial in April 2018. Each party blames the other for the

unreasonable amount of motion practice in this case, but regardless of who bears that blame, the

court was well within its authority to set a firm trial date and try to get this case to a conclusion.

See J.S.A. v. M.H., 224 Ill. 2d 182, 196 (2007) (“the trial court possesses the inherent authority to

control its own docket and the course of litigation, including the authority to prevent undue delays

in the disposition of cases”).

¶ 68 Edwin’s contention that the court did not actually read Dr. Rappaport’s evaluation is

mere speculation. We presume that if a judge has material that is relevant to his decision, he will

read it. See People v. Wolski, 83 Ill. App. 3d 17, 23 (1980) (before a judge issues a search

warrant, he is presumed to have read it and the complaint); In re Upmann, 200 Ill. App. 3d 827,

833 (1990) (“We will not presume that the judge did not read the [order drafted by counsel] or

realize what was contained therein.”). In this case, the judge had Dr. Rappaport’s evaluation

(perhaps as soon as the case was assigned to him, since the evaluation was addressed to the court

in November 2017) and heard testimony related to the evaluation. The presumption that he

actually read the evaluation is firmly supported.

¶ 69 Edwin’s next argument directed at the February 13, 2019 judgment is that he was

prejudiced by the court’s “early” entry of judgment. He contends that by entering judgment on

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February 13 rather than on February 28, the court deprived him of the opportunity to move to

vacate the court’s January 24 default order pursuant to section 2-1301(e) of the Code, which only

applies “before final order or judgment”. 735 ILCS 5/2-1301(e) (West 2016).

¶ 70 The court’s February 11 order stated that it would enter judgment on February 28 if the

parties could not reach a settlement. Had the court waited until February 28 to enter final

judgment, Edwin would have had until that date to file a section 2-1301(e) motion attacking the

January 24 order. But he did not file any motion until March 8. Edwin admittedly did not learn

that the February 13 judgment had been entered until February 28. So even if the court’s “early”

entry of judgment technically deprived Edwin of two weeks during which he could have filed a

section 2-1301(e) motion, he cannot now claim any actual prejudice resulted from the court

entering judgment before February 28.

¶ 71 Edwin next contends that the court did not rely on the appropriate statutory factors in

determining how to allocate parental responsibilities. In allocating decision-making

responsibilities and parenting time, trial courts must consider “all relevant factors”, including

several enumerated factors. 750 ILCS 5/602.5 (West 2016) (decision-making); 750 ILCS 5/602.7

(West 2016) (parenting time). We presume that the court knows and follows the law, so

“[a]lthough a trial court must consider all relevant factors when determining the best interests of a

child, it is not required to make an explicit finding or reference to each factor.” In re Custody of

G.L., 2017 IL App (1st) 163171, ¶ 43. The record need only reflect that evidence of the factors

was considered by the court before making its decisions. In re Marriage of Diehl, 221 Ill. App. 3d

410, 424 (1991).

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¶ 72 Edwin argues that the record affirmatively shows that the court did not consider the

statutory factors. He claims that the court’s brief pronouncement from the bench on January 24

clearly does not include any consideration of the factors. We disagree.

¶ 73 The February 13 judgment explicitly states that the court “has considered all relevant

statutory criteria, factors and provisions of the Illinois Marriage and Dissolution of Marriage Act”.

Erika points to portions of her own testimony, the testimony of the GAL, and the evaluation of Dr.

Rappaport as evidence relevant to each of the statutory factors. She also points out that the court

explicitly stated on January 24, and repeated in the February 13 judgment, that it had considered

all the evidence. Moreover, she argues, the court was actively engaged in the trial, interjecting its

own questions of Erika and the GAL, showing that the court clearly “considered” the evidence that

was being offered.

¶ 74 The record contains ample evidence related to the statutory factors, and Edwin has failed

to overcome the presumption that the court considered the evidence. See In re Custody of G.L.,

2017 IL App (1st) 163171, ¶ 44 (“the lack of any explicit mention of the factors by the court” is

“insufficient to overcome the presumption that the trial court knew and followed the law.”).

¶ 75 Next, Edwin contests that the February 13 judgment improperly reserves the issue of

parental responsibilities. In a judgment of dissolution of marriage, the issue of parental

responsibilities may not be reserved except by agreement of the parties or upon motion by one

party, and a finding that appropriate circumstances exist to justify a reservation. 750 ILCS 5/401(b)

(West 2016). “Clearly the policy underlying section 401(b) is to encourage the court to decide all

matters in the dissolution action in a single judgment, to the extent it is feasible to do so. ***

[C]ourts should seek a high degree of finality so that parties can plan their future with certainty

and are not encouraged to return repeatedly to the courts.” Britton, 141 Ill. App. 3d at 591-92. It is

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uncontested that the parties did not agree to a reservation of issues, nor did either party move for

such a reservation, so if the judgment reserved the issue of parental responsibilities, the judgment

was entered improperly. See Id. at 591 (reversing, in part, an order of dissolution of marriage

because the trial court improperly reserved the division of pension benefits); Cesaretti, 203 Ill.

App. 3d at 354 (trial court erred by including a temporary custody order in an otherwise final

judgment of dissolution of marriage).

¶ 76 Edwin contends that the circuit court partially reserved the issue of his parental

responsibilities, namely parenting time. He argues that “parental responsibilities” is a two-part

concept, including both “parenting time” and “significant decision-making”. See 750 ILCS

5/600(e) (West 2016). And, although the February 13 judgment clearly allocates all decision-

making authority to Erika, Edwin contends that the judgment reserves the issue of his parenting

time. He points to the circuit court’s January 24 statement that Edwin’s visitation would remain

“suspended”, until he began both anger management and therapy. The court then said that the

parties could “work with [Edwin]” to set the dates and times for his visitation. The court also set a

future court date for “[s]tatus on [Edwin’s] therapy progress and parenting time.” Edwin contends

that this language demonstrates that there was no final resolution of the issue of parenting time.

¶ 77 Erika’s response is off the mark. First, she contends that by granting her “all sole decision-

making authority”, the court granted her all parental responsibilities. Parenting time, she argues,

is a separate issue. However, section 600(e) of the Act explicitly states that “ ‘Parental

responsibilities’ ” means both parenting time and significant decision-making responsibilities with

respect to a child.” (Emphasis added.) 750 ILCS 5/600(e) (West 2016); In re Marriage of Fatkin,

2019 IL 123602, ¶ 29. Erika improperly conflates the award of “sole decision-making authority”

with the allocation of all parental responsibilities.

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¶ 78 Edwin contends that there was no final judgment because his parenting time is merely

“suspended” for an indefinite period, with a future court date set for “status.” As discussed above,

such a conclusion would not affect our jurisdiction to review the February 13 judgment, which is

final in all other respects and therefore “final and appealable” despite an improper bifurcation. See

Cesaretti, 203 Ill. App. 3d at 352.

¶ 79 In both Britton and In re Marriage of Burkhart, 267 Ill. App. 3d 761 (1994), the trial courts

explicitly reserved the division of certain marital assets. In Cesaretti, the trial court included a

temporary custody order within a judgment of dissolution of marriage. In this case, however,

Edwin asks us to determine that the circuit court reserved the issue of parenting time without using

such explicit language.

¶ 80 We find that the circuit court reserved the issue of Edwin’s parenting time. The February

13 judgment does not resolve the question of Edwin’s parenting time. It simply “suspends” his

parenting time for future determination. The parties agree that this case lacks the requisite

conditions for reservation of issues, so the reservation was improper.

¶ 81 Edwin contends that the improper reservation renders the entire judgment void. This is

incorrect because the circuit court “had both subject matter and personal jurisdiction over the

parties.” See Steinbrecher v. Steinbrecher, 197 Ill. 2d 514, 531 (2001). The appropriate remedy is

to remand the case solely for entry of final judgment on the improperly reserved issue. See

Cesaretti, 203 Ill. App. 3d at 357 (remanding for allocation of parental responsibilities but

affirming the judgment of dissolution of marriage as to all other issues); Britton, 141 Ill. App. 3d

at 593 (affirming, in part, but remanding for adjudication of improperly reserved issue).

¶ 82 Edwin’s final argument directed toward the February 13 judgment is that it does not include

a finding of child endangerment. Trial courts may not restrict parenting time, including ordering

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supervised visitation, without a finding that the parent’s “exercise of parenting time would

seriously endanger the child’s physical, mental, moral, or emotional health.” In re Custody of G.L.,

2017 IL App (1st) 163171, ¶ 33 (quoting 750 ILCS 5/602.7(b) (West Supp. 2015)). If the court

orders such a restriction without a finding of endangerment, the appropriate remedy is for this

court to vacate the trial court’s order, in so far as it constitutes a restriction, and remand for a

determination of whether a finding of endangerment is appropriate. Id. ¶ 35.

¶ 83 “The endangerment standard has been described as onerous, stringent, and rigorous.” In re

Marriage of L.R., 202 Ill. App. 3d 69, 85 (1990). “The courts of this State have been reluctant to

deny visitation rights because of the principle that parents have a natural or inherent right of access

to their children, and because sound public policy encourages the maintenance of strong family

relationships,” so restrictions on parenting time should only occur under “extreme circumstances”.

¶ 84 Edwin points out that the February 13 judgment, by ordering supervised visitation, clearly

constitutes a restriction on his parenting time. The judgment does not, however, include any

language indicating that the court found by a preponderance of the evidence that parenting time

with Edwin would seriously endanger the children. Neither, Edwin argues, did the court’s

pronouncements from the bench on January 24 include a finding of endangerment. Rather, the

court simply recounted that after the November 30 hearing, it had suspended Edwin’s parenting

time. Indeed, the word “endangerment” only appears once in the entire trial transcript, when the

GAL referred to the evaluation of Dr. Rappaport.

¶ 85 Because we remand for additional adjudication of the reserved issue, we need not reach

Edwin’s arguments that the evidence does not support a finding of endangerment. See Edwards v.

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Sterling Drugs, Inc., 167 Ill. App. 3d 181, 184 (1988). The court remains free to make such a

finding on remand.

¶ 86 D. Substitution of Judge

¶ 87 Edwin also requests that we remand the case for reassignment to a different trial judge. He

filed three separate petitions for substitution of judge under 735 ILCS 5/2-1001(a)(3) (West 2016).

Each of those petitions was denied by a different judge, and none of those denial orders are the

subject of this appeal. Rather, Edwin requests that we exercise our authority to remand the case

for reassignment to another judge.

¶ 88 A trial judge is presumed to be impartial, and the burden of overcoming this presumption

rests on the party making the charge of prejudice. Eychaner v. Gross, 202 Ill. 2d 228, 280 (2002).

“To conclude that a judge is disqualified because of prejudice is not, of course, a judgment to be

lightly made.” Id. (quoting People v. Vance, 76 Ill. 2d 171, 179 (1979)). Adverse rulings are

generally insufficient to establish judicial bias or partiality, even if the judge’s findings and rulings

are allegedly erroneous. Id. Instead, the party claiming prejudice must present evidence of

prejudicial trial conduct and evidence of the judge’s personal bias, which can stem from an

extrajudicial source. Id.

¶ 89 Here, Edwin points to no extrajudicial source of Judge Carr’s alleged bias. To the contrary,

Edwin points to the entry of the November 30 order and Judge Carr’s later decisions not to vacate

that order. Even if those decisions were erroneous, “[a] judge’s rulings alone almost never

constitute a valid basis for a claim of judicial bias or partiality.” Id. We deny Edwin’s request, and

remind him that further attempts to substitute judges based on their rulings may subject him to

sanctions.

¶ 90 E. Appellate Fees

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¶ 91 Finally, Edwin contends that the circuit court erred in awarding Erika $2,500 in attorney

fees for the defense of appeal no. 1-18-2157. His argument consists almost entirely of an assertion

that he would have succeeded had the appeal not been dismissed as untimely. Of course, the appeal

was dismissed as untimely, rendering his argument toothless. His only citation to authority to

support this argument is to In re Rocca, 2013 IL App (2d) 121147, an inapposite case in which a

former attorney sought contribution from a party after he left the case. Even if the case were

applicable, we cannot say that the circuit court abused its discretion in granting attorney fees.

Edwin’s appeal was dismissed for lack of jurisdiction, and Erika undisputedly incurred fees

defending the ultimately unsuccessful appeal. Edwin has forfeited any additional arguments

regarding the attorney fees. See Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018).

¶ 92 F. Motion to Stay Enforcement

¶ 93 On November 20, 2019, Edwin moved this court to stay enforcement of the February 13

judgment. We denied that motion on November 25. On November 27, Edwin moved for

reconsideration of our November 25 order. Because we affirm the judgment with respect to all

issues except Edwin’s parenting time, we also deny Edwin’s motion to reconsider.

¶ 94 III. Conclusion

¶ 95 Throughout the litigation in the circuit court and this court, Edwin has filed intemperate

documents laden with invective. He caused the circuit court and Erika to needlessly spend time

and resources on meritless substitution of judge petitions. He also filed several appeals of orders

which were not final and appealable. His decision to intentionally absent himself from the trial

arguably justifies forfeiture of virtually all his contentions of error. We have not invoked forfeiture

because of the children’s best interests are the “lynchpin” of the central issue of this appeal. See

Moseley v. Goldstone, 89 Ill. App. 3d 360, 369 (1980). But we strongly admonish Edwin to

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comport his conduct in the future to the standards of civility required not only of litigants in

general, but especially of lawyers.

¶ 96 To preserve the status quo and in the interest of consistency with the circuit court’s intent,

we order that subsection 9(C) of the February 13 judgment remain in effect as a temporary order

of parenting time. See Ill. S. Ct. R. 366(a)(5) (eff. Feb. 1, 1994) (granting this court authority to

enter any order “that the case may require”). We dismiss the appeal as to the circuit court’s

November 30, 2018 and June 27, 2019 orders. We remand this case for further proceedings and

entry of final judgment on the issue of Edwin’s parenting time and a determination of

endangerment if appropriate. In all other respects, we affirm the judgment of the circuit court.

¶ 97 Affirmed in part, dismissed in part, vacated in part, and remanded with instructions.