SIXTH DIVISION April 13, 2007
No. 1-06-2274
In re MARRIAGE OF ANNA CARRILLO ) Appeal from the ) Circuit Court of (Anna Carrillo, ) Cook County ) Petitioner-Appellee, ) ) and ) ) Carlos Carrillo, ) Honorable ) Grace G. Dickler, Respondent-Appellant). ) Judge Presiding.
JUSTICE MCNULTY delivered the opinion of the court:
Before the trial in this divorce action, the trial court
ruled on temporary custody of the minor children of Carlos and
Anna Carrillo and set a schedule for visitation. After the trial
but before entry of the final judgment, Carlos moved to hold Anna
in contempt for violating the visitation order. The court left
that motion unresolved at the time of the judgment that finally
disposed of all issues concerning custody and property
distribution. Six months later the court dismissed the motion
for the contempt finding without hearing any evidence. Following
that dismissal Carlos filed an appeal from the judgment and the
order dismissing his motion for a contempt finding. We find that
we have jurisdiction to review the final judgment as well as the
denial of the motion for contempt. We affirm the judgment and
reverse and remand for further proceedings on the contempt claim.
BACKGROUND 1-06-2274
Carlos married Anna in 1988. They had four children: Carlos
Jr., Enrique, Lilliana and Gabriel. Anna and Carlos separated in
2002. Carlos, who acted pro se throughout the divorce
proceedings, agreed to entry of an order of protection against
him in October 2002. Anna petitioned for divorce. Carlos
opposed the petition, as he argued that divorce would not serve
the best interests of the children.
He also petitioned for an order to protect him and the
children from Anna. He alleged:
"Mrs. Carrillo frequently stayed out in bars while her
husband took care of the children.
***
*** On September 29, 2002, Mr. Carrillo discovered
an email that confirmed his suspicions of an affair.
Several months earlier, he had found condoms, sex
jelly, and sex candy in [Anna's] car."
The court appointed Dr. Peter Nierman to evaluate the
family. Also, the court granted Carlos weekend visits with his
minor children. But the court entered a new plenary order of
protection, in effect for six months, directing Carlos to stay
away from the family home.
As grounds for a motion for interim fees, Carlos alleged
that, "despite the fact that Anna Carrillo is guilty of
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infidelity, intimidation and many other crimes against [Carlos]
and his children, she has enjoyed unparalleled protection under
the law." Carlos separately petitioned for an injunction to
"prohibit[] Anna Carrillo from carrying out her illicit affair
*** in the presence of the children." The court denied Carlos's
motions but reduced his temporary support payments.
On one of the support checks Carlos wrote, "proof that
cheating and lying does pay"; on another he wrote, "adultery and
false charges are rewarding to a woman."
Anna moved out of the family home in 2004, alleging that
Carlos continued to harass her despite the order of protection.
Judge Grace Dickler entered a third plenary order of protection
on December 17, 2004, ordering Carlos to stay away from Anna's
new home and her workplace. The order on its face provided that
it would expire on December 17, 2006.
Carlos petitioned for a change of venue. The trial court
treated the motion as a request for substitution of judge and
assigned the motion to a different judge for disposition. That
judge denied the motion. In February 2005 Carlos moved to
reconsider the denial of the motion, relying on the "history of
prejudicial rulings" against him. He also filed an affidavit in
which he swore that his children told him "[Anna] and her lover
were frequently fighting in front of [the children] ***. ***
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[The lover] often got drunk when they argued." Carlos said that
because of Judge Dickler's rulings, "the affair continued along
with the mental abuse of [the] children." He added, "It is so
frustrating to see the discriminatory legal system applaud
[Anna's] infidelity and abuse of our family."
Also in February 2005, Carlos moved to vacate the order of
protection. He alleged:
"Anna Carrillo's obsession with her lover has caused
her to follow a reckless pattern of devastating acts of
physical, mental and emotional abuse against [Carlos]
and his children.
* * *
*** Anna *** [has] maliciously misused the
domestic violence laws *** in order to freely pursue
her adulteress lifestyle... an affair that started well
before the part[ie]s separated."
Carlos admitted that he had approached Anna at work, but he
characterized his behavior as "numerous acts of kindness." The
court amended the order of protection to permit Carlos to contact
Anna in case of a documentable medical emergency.
In an effort to divorce amicably, Anna offered to let Carlos
have custody of their youngest son, Gabriel. Carlos Jr. had
attained majority and Anna had already agreed to let Carlos have
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custody of Enrique for the remainder of his minority, while he
finished high school. Thus, Anna would retain custody of only
Lilliana, an autistic and disabled child who needed nearly
constant care. Anna asked only half the value of the marital
home as part of the proposed settlement. Carlos accused Anna of
trading Gabriel for money.
At a hearing in May 2005, Judge Dickler explained to Carlos
her perspective on the case:
"[Y]our case *** is one of the most challenging I have
ever had. You refuse to see what is really going on.
You continue throwing darts at everyone. You refuse to
get an attorney no matter how many times I pleaded with
you to please hire an attorney in your best interests.
You continue filing the same motions. You
miscomprehend what is going on. You continually act in
your child's opposite of best interests by involving
them in these proceedings, telling them to write
letters, *** and you continue this time after time
after time."
In September 2005 Carlos petitioned for a rule to show cause
why the court should not hold Anna in contempt for violation of
visitation orders.
We have no transcript and no bystander's report for the
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trial on the issues of custody and distribution of marital
assets. However, the record includes Dr. Nierman's report
concerning the Carrillo family. Dr. Nierman found:
"[N]either parent has conducted themselves in an
exemplary fashion ***. The constant strategy of making
allegations, the inability to compromise, the legal
protections, the lack of communication, and the failure
to insulate children from the fracas are all poor
prognostic signs for the future. ***
*** Gabriel is essentially a positive child who
loves scouting and sports, has a good outlook on
school, [and] loves both his parents ***.
*** Through his anticipations and expectations, it
was clear his father was the more dominant parental
figure as his father was truly functioning more as his
guide through scouting, school, sports, video games,
and friendships. It was also clear that Gabriel
preferred the arrangement of Lilly living with his
mother while he was at his father's because this seemed
the best situation for his belongings and his need for
individualized attention. ***
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*** Lilly seems well cared for and much loved by
both parents. There seemed to be consensus that Lilly
was most frequently cared for by Anna but loved by all.
*** Lilly has special needs in all domains including
activities of daily living, transportation, [and]
behavioral control ***. She has seizures that can be
frightening. ***
Carlos must realize that he cannot be of value to
his children if he continues to engage Anna in
inappropriate ways. *** The battle must end. ***
*** Carlos and Anna both have indications for
counseling. *** [Anna] would benefit from counsel on
how best to parent during the teen years. ***
Carlos also requires significant supports and
continued therapy. He reported that he was seeing *** a
psychologist[] for anger management. This is a good
idea. *** Carlos has continued to vent his rage
inappropriately -- evidenced by his leaving verbally
abusive recordings on Anna's phone. Carlos must
retreat from the engagement of Anna as his disloyal
wife and come to a new relationship with her -- his co-
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parent and the mother of his children. *** [A]ny and
all behaviors that betray feelings of rage will only
have a negative impact on his children.
In conclusion, the resolution that this evaluation
calls for is to maintain a joint custody arrangement.
*** I am recommending Joint Custody for both
Gabriel and Lilly. ***
Gabriel should reside with his father. ***
Lilly should reside primarily with her mother. ***
*** If Carlos leaves any threatening or rambling
verbally abusive phone messages to Anna he would
jeopardize the recommendations of this report and
immediate forfeiture of custody should be considered.
Similarly, these recommendations would be altered for
any outbursts of anger or excessive physical punishment
of the children by Anna. In both instances, the
described behavior would indicate an inability to act
in [the] children's best interest."
The attorney appointed to act as representative for the
children largely supported Dr. Nierman's recommendations.
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The court issued a memorandum opinion on November 30, 2005,
following completion of the trial. According to the court:
"Carlos Jr. is not particularly positive as to the
parenting abilities of either Mr. or Mrs. Carrillo.
Carlos deems that his father is overly strict and
inappropriately discusses Mrs. Carrillo's perceived
shortcomings with the children. Alternatively, he
deems that Mrs. Carrillo has an anger problem and has
used excessive corporal punishment as a means of
discipline.
*** Mr. and Mrs. Carrillo both love their
children. *** [A]s between the two parents, Mr.
Carrillo has a greater involvement in the educational
welfare of the Carrillo boys. ***
*** Mr. Carrillo, Enrique and Gabriel have been
primarily residing in the marital home and Lilliana has
been primarily residing with her mother in Skokie. ***
Gabriel spends occasional times in Skokie with Mrs.
Carrillo, primarily when Mr. Carrillo is away from home
on business trips.
*** Mr. Carrillo views himself as a victim in need
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of vindication. He has acted inappropriately and
uncivilly at all stages of this litigation. He
believes that all forces have conspired against him.
It is Mr. Carrillo's attitude that causes the
difficulty in rendering a custodial decision in this
cause. This Court is cognizant of the fact that Mr.
Carrillo plays a very important role in his children's
lives and is an involved and concerned parent. With
regard to Gabriel, Mr. Carrillo is the parent that
meets with the teachers and participates in
extracurricular and scouting activities. *** However,
there is no doubt that Gabriel requires the positive
involvement of both parents. This Court is concerned
that if Mr. Carrillo were awarded sole custody of
Gabriel, he would continue to denigrate Mrs. Carrillo
and speak negatively of her to Gabriel which, in turn,
may ultimately cause Gabriel's alienation from his
mother. ***
Conversely, this Court is likewise concerned as to
an award of sole custody to Mrs. Carrillo. *** Mrs.
Carrillo has a history of an inability to control her
anger. She has used excessive corporal punishment
against the two older boys and has employed
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inappropriate and hurtful actions when attempts at
discipline have failed.
Notwithstanding the behavior of the parties
throughout these proceedings, this Court deems that an
award of joint custody is warranted in this cause. ***
*** The Attorney for Petitioner is hereby ordered
to prepare a Modification of the existing Order of
Protection to allow the parties to freely communicate
relative to issues affecting the children."
The order for joint custody of Gabriel and Lilliana allowed both
parties liberal visitation with the children.
Within days after entry of the modification of the order of
protection, Carlos left several messages for Anna on her
answering machine, including a message left shortly after
midnight on December 9, 2005. Following a hearing held on
December 16, 2005, Judge Dickler entered a supplementary opinion
modifying the November order. The court held:
"Mr. Carrillo called Mrs. Carrillo, after midnight,
leaving a rambling message on her voice mail. Mr.
Carrillo told Mrs. Carrillo that he was not going to
let the matter end, that he was never going to stop
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pursuing the matter and that the Court awarded him
custody of Enrique just to punish him. ***
The hope of this Court that the orders contained
in the Memorandum Opinion would help to dissipate Mr.
Carrillo's anger was clearly misplaced. Mr. Carrillo's
overwhelming concern is vindication and retaliation and
not his children's best interest. *** Mr. Carrillo has
clearly demonstrated that he is not capable of
controlling his anger to allow the parties effectively
[to] participate in a joint parenting arrangement."
The court awarded Anna custody of Gabriel and Lilliana, and the
court reinstated the original order of protection, allowing
Carlos to contact Anna only by e-mail. Judge Dickler also
ordered Carlos to turn over to local police any firearms in his
possession.
On January 9, 2006, Carlos moved for reconsideration of the
ruling that followed the December 16 hearing. He separately
filed a rule to show cause, alleging that Anna refused to comply
with the order permitting him visitation with Lilliana from
December 16 to December 18 and December 23 to December 25, 2005,
and from December 30, 2005, through January 1, 2006, and January
7 to January 9, 2006. Carlos titled a third document an
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"Emergency Motion to Continue the Trial" that had ended in
November 2005.
At a hearing on January 18, 2006, the court first addressed
the motion to continue the trial, construing it as a motion to
reopen the proofs. Carlos said he wanted to question the
children's representative and her assistant, "so we can clear up
as to why she chose to follow the avenue she did in representing
my children." After the parties argued Judge Dickler said:
"[Y]ou totally and completely ignore the fact that the
Child's Representative recommended that you have joint
custody of the children ***. And it was only through
your own doing that unfortunately that could not take
place. *** [Y]ou do not ever see when there's been an
opinion or a recommendation in your favor."
The court denied the motion. Judge Dickler added:
"I do not have any additional time at this time.
And I'm going to give you another date. However, if
that is the only motion with regard to reopening
proofs, I would like to have the judgment, please."
The judge rejected the motion to reconsider rulings at the
December 16 hearing as premature because she had not entered the
final judgment. Carlos tried to argue for his motion to show
cause concerning the denial of visitation. Anna said, "Your
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Honor, my daughter is 13 years old. *** She requires care as far
as bathing and stuff. I don't think it's appropriate for her dad
to be doing that type of stuff anymore." The judge warned Anna
that she must comply with the visitation order, but the judge
took no testimony and entered no disposition of the motion for
rule to show cause. Instead the judge permitted Carlos to
schedule a later hearing on his motions.
Judge Dickler signed an order dated January 18, 2006,
formally dissolving the marriage and granting Anna custody of
Gabriel and Lilliana with a specified schedule for visitation
with Carlos. The order also finally apportioned the parties'
assets and set the amount for Carlos to pay as child support
during the minority of the children.
On January 30, 2006, the court entered an order setting
schedules for responses and hearings on Carlos's outstanding
motions for rule to show cause and to vacate the order of
protection. In February 2006 Anna filed a response to the motion
for a rule to show cause. She admitted that she denied Carlos
visitation some days, but she did not recall the exact dates.
Anna contended that the court effectively denied the motion to
vacate the order of protection when it revised that order in the
orders dated December 2005 and January 2006.
On February 10, 2006, the court granted Carlos an extension
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of time, to March 7, 2006, for filing a postjudgment motion
directed against the final judgment of dissolution entered on
January 18, 2006. Carlos failed to file any such motion by March
7, 2006, and he filed no motion for a further extension of time.
Instead, he filed his motion to reconsider the judgment after the
expiration of the extended time for filing. The court dismissed
the motion to reconsider, finding that it lost jurisdiction to
reconsider the judgment on March 7, 2006. The court set the
motion for a rule to show cause for a hearing on July 11, 2006.
On May 19, 2006, Carlos filed a motion seeking a ruling on
all the motions the court left pending when it entered judgment
on January 18, 2006. He claimed that the court had ruled on
neither the motion for a rule to show cause nor the motion to
reconsider the denial of the motion to vacate the order of
protection.
At the hearing held on July 11, 2006, the court said that
Carlos lost his right to raise his rule to show cause when he
failed to present appropriate evidence at the trial that ended in
November 2005. By order dated July 11, 2006, the court formally
denied all motions outstanding in January 2006, finding that the
motions merged into the judgment entered January 18, 2006.
Carlos filed his notice of appeal on August 9, 2006.
Supreme Court Rule 306A (210 Ill. 2d R. 306A) directs us to
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expedite appeals in child custody cases. Except for good cause,
we must decide the appeal within 150 days after the filing of the
notice of appeal. Our supreme court designed the rule to serve
the needs of children for finality and stability in custody
arrangements. See In re Marriage of Kostusik, 361 Ill. App. 3d
103, 108 (2005). In this case the parties had not filed a
record, let alone briefs, within 150 days of the filing of the
notice of appeal.
On September 22, 2006, Carlos moved for an extension of time
to file the record on appeal. We granted an extension to October
31, 2006. Carlos then moved for an extension of time to file a
bystander's report. We extended the time to December 15, 2006.
The trial court refused to certify Carlos's proposed report
because of its inaccuracy. Anna did not submit a proposed
bystander's report, and the trial court lacked time to create its
own accurate report. We denied Carlos's subsequent motion for
additional time to obtain a bystander's report. We set a
deadline of January 22, 2007, for briefing. Carlos asked for
leave to file a supplemental record and for an extension of time
for briefing. We allowed the parties to move to supplement the
record with any useful materials. We set deadlines of February
20, 2007, for Carlos's brief and March 2, 2007, for Anna's brief.
We finally received Carlos's brief on February 20, 2007. Anna
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replied with only a motion to dismiss the appeal. On February 1,
2007, Judge Dickler, without explanation, recused herself from
the case.
ANALYSIS
We first address the question of our jurisdiction. The
judgment of January 18, 2006, resolved all questions of custody
and distribution of marital assets. Although Carlos received an
extension of time for filing a postjudgment motion, he did not
file a motion within the allotted time. Carlos claims that we
have jurisdiction to review the judgment because some of his
motions remained unresolved when the court entered the judgment
on most issues, and the court added no language making the
partial disposition appealable under Supreme Court Rule 304(a).
155 Ill. 2d R. 304(a).
On January 9, 2006, Carlos moved for a rule to show cause
why the court should not hold Anna in contempt for violating the
order permitting Carlos visitation with Lilliana on several
specified dates after December 16, 2005. When Carlos raised the
issue during the hearing on January 18, 2006, prior to the entry
of the judgment order, Judge Dickler said she had no time to hear
the motion that day. Instead she set a schedule for proceedings
on the motion.
Anna filed a response in which she admitted that she had
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sometimes denied Carlos visitation with Lilliana. The court held
no evidentiary hearing concerning the allegations of violations
of court orders. In the order dated July 11, 2006, Judge Dickler
held that she had resolved the motion in the judgment dated
January 18, 2006. The scheduling of proceedings on the motion,
together with Judge Dickler's express comments on the record of
the hearing held January 18, show that she did not decide the
motion for rule to show cause in the order of January 18. The
record shows no resolution of the motion prior to July 11, 2006.
Carlos filed his notice of appeal on August 9, 2006, less than 30
days after the final resolution of the last motion unresolved at
the time of the entry of the judgment on January 18, 2006.
The motion for rule to show cause began contempt proceedings
against Anna. See In re Marriage of Colangelo, 355 Ill. App. 3d
383, 388 (2005). Those proceedings did not conclude until July
11, 2006, with the court's dismissal of the motion. A party held
in contempt may appeal the ruling even in the absence of language
of an express finding of no just reason to delay enforcement or
appeal. 155 Ill. 2d R. 304(b)(5); see In re Marriage of
Nettleton, 348 Ill. App. 3d 961, 968 (2004). However, Rule
304(b)(5) does not encompass the denial of a petition for rule to
show cause. A party aggrieved by denial of a petition for a rule
to show cause in a contempt proceeding may immediately appeal the
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denial only if the court expressly finds no just reason to delay
appeal from the order. Colangelo, 355 Ill. App. 3d at 388; In re
D.J.E., 319 Ill. App. 3d 489, 494 (2001). As parties cannot
appeal the denial of a contempt petition prior to entry of a
final judgment on all claims without Rule 304(a) language, the
parties similarly have no right to appeal from a judgment final
as to all other claims when a petition for a contempt finding
remains unresolved, in the absence of Rule 304(a) language.
The trial court included no Rule 304(a) language in the
order of January 18, 2006, which finally resolved all claims
apart from the motion for a rule to show cause why the court
should not hold Anna in contempt for violation of the visitation
orders. Because the order of January 18 lacked language making
it immediately appealable, it did not become appealable until the
court entered its July 11 order denying the motion for a rule to
show cause. Accordingly, we deny Anna's motion to dismiss the
appeal. Our resolution of the jurisdictional question renders
moot Carlos's motion to quash Anna's motion to dismiss.
We note the anomaly that, if the court had held Anna in
contempt, our jurisdiction would apparently restrict us to review
of the contempt finding. See Nettleton, 348 Ill. App. 3d at 968.
Because the court denied the petition for a contempt finding, our
jurisdiction extends to all issues resolved by the final
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judgment. A revision of Rule 304(b)(5) to permit immediate
appeal from denials of petitions for contempt might alleviate the
oddity.
Carlos argues that the trial court erred by denying his
motion for substitution of judge. We will reverse the trial
court's findings on the motion only if the manifest weight of the
evidence requires a different result. In re Marriage of Schweihs,
272 Ill. App. 3d 653, 659 (1995). In the motion Carlos pointed
only to Judge Dickler's rulings as grounds for removing her from
the case. A judge's rulings almost never constitute a valid
basis for a claim of judicial bias. Eychaner v. Gross, 202 Ill.
2d 228, 280 (2002). The record shows us a judge trying hard to
reach a just result despite a party's refusal to hire an attorney
to help him present his arguments in legal form. As Judge
Dickler noted, Carlos often refused to acknowledge the favorable
rulings he received from the bench. We cannot infer bias from
the order for Carlos to turn over firearms to the police. The
refusal to sanction the children's representative for making
legal arguments contrary to Carlos's arguments does not show
bias. The fact that Judge Dickler in 2007 recused herself from
the case does not show any error in the ruling on Carlos's motion
for substitution of judge in 2005. Judge Dickler's comments and
rulings here show a forthright confrontation with the issues in
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this particularly difficult case. The manifest weight of the
evidence did not require the court to grant Carlos's motion for
substitution of judge. See In re Marriage of Petersen, 319 Ill.
App. 3d 325, 340 (2001).
Next, Carlos contends that the trial court erred by refusing
to reopen the proofs so that he could elicit testimony from the
child's representative and her assistant. To determine whether
to permit a party to reopen a case, we consider:
"(1) whether the failure to introduce the evidence
occurred because of inadvertence or calculated risk;
(2) whether the adverse party will be surprised or
unfairly prejudiced by the new evidence; (3) whether
the new evidence is of the utmost importance to the
movant's case; and (4) whether any cogent reason exists
to justify denying the request." Polk v. Cao, 279 Ill.
App. 3d 101, 104 (1996).
Carlos cites In re Marriage of Bates, 212 Ill. 2d 489
(2004), in support. In that custody dispute the trial court
appointed a representative for the parties' minor child.
Although the representative filed a written report concerning the
child's interests, the court did not allow the parties to
question the representative. The court relied on the report in
its decision on custody. Our supreme court held that the trial
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court denied the parties due process when it disallowed
questioning of the representative because the representative had
acted as a witness observing the relationship between the child
and the parties. Bates, 212 Ill. 2d at 514.
In this case the representative made no report and did not
act as a witness. Her assistant interviewed some of the
psychologists who testified at trial, but the content of the
interviews is hearsay and not admissible in evidence. Bong Jin
Kim v. Nazarian, 216 Ill. App. 3d 818, 827-28 (1991). The court
correctly barred inquiry into the issue of the representative's
legal strategy. See People v. Spiezer, 316 Ill. App. 3d 75, 88
(2000) (evidence of attorney's strategy not discoverable). We
find no abuse of discretion in the denial of the motion to reopen
the proofs for this inadmissible evidence.
Carlos also objects to the January 18, 2006, judgment as
procedurally improper and contrary to the manifest weight of the
evidence. Because we have no record of the trial and we have no
bystander's report, we cannot review the weight of the evidence.
See Palanti v. Dillon Enterprises, Ltd., 303 Ill. App. 3d 58
(1999). However, we note that Judge Dickler followed Dr.
Nierman's recommendations to the letter. In the order dated
November 2005, the court granted Carlos custody of Gabriel, as
Dr. Nierman recommended. In the order the court echoed Dr.
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Nierman's apprehensions. Dr. Nierman wrote:
"The battle must end. ***
If Carlos leaves any threatening or rambling
*** [T]he described behavior would indicate an
inability to act in [the] children's best interest."
When Carlos's subsequent motions showed that he had no intention
of allowing the battle to end, the court, following Dr. Nierman's
recommendations, reallocated custody in a way that would protect
Anna's children from the effects of the rage Carlos continued to
express. Carlos's acts had not occurred prior to the November
order, the evidence of those acts could not surprise him, and, in
light of Dr. Nierman's recommendations, the evidence had great
importance for the case. The court did not abuse its discretion
by reconsidering the November order in light of Carlos's
subsequent actions. See Polk, 279 Ill. App. 3d at 104.
Carlos contends that the court deprived him of due process
by entering pretrial orders of protection without allowing him an
opportunity to present evidence in opposition to the motions for
orders of protection. The trial court revised the order of
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protection in force at the time in the final judgment entered
after trial. Before entry of that order, Carlos had an
opportunity to present evidence pertaining to the order of
protection. We cannot now grant Carlos any effective relief from
the pretrial orders to which he now objects. Therefore, we find
the issue moot. See Steinbrecher v. Steinbrecher, 197 Ill. 2d
514, 522-23 (2001).
Finally, Carlos argues that the court should have heard
evidence concerning Anna's violations of visitation orders before
denying his motion for a rule to show cause why the court should
not hold Anna in contempt. Before deciding a motion for a rule
to show cause for indirect contempt, based on actions that
occurred outside of court, the court should usually hear relevant
evidence. Pryweller v. Pryweller, 218 Ill. App. 3d 619, 630
(1991). Carlos here adequately alleged a violation of the
court's orders. We agree with Carlos that the court abused its
discretion by dismissing the contempt proceeding without allowing
Carlos to present evidence in support of his allegations. We
reverse the dismissal of the motion for a rule to show cause.
Before entry of the judgment disposing of most issues in
these dissolution proceedings, Carlos filed his motion for a rule
to show cause why the court should not hold Anna in contempt for
violation of visitation orders for late December 2005 and early
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January 2006. Because the allegations of the motion concerned
events that occurred after trial, Carlos had no opportunity to
present evidence concerning those allegations at trial. The
court explicitly denied Carlos's request for a hearing on the
motion prior to the entry of the judgment on January 18, 2006.
The court set the motion for hearing at a later date. Therefore,
on January 18, 2006, the court had not disposed of all claims in
the case. Prior case law shows that the denial of a motion for a
contempt finding does not count as a separate proceeding for
purposes of appeal; the aggrieved party may appeal the denial
only if the trial court adds language making the decision
immediately appealable under Supreme Court Rule 304(a). Because
the trial court here did not add such language to the judgment
disposing of all claims other than the contempt claim, the
judgment of January 18 did not become appealable until the
disposition of the contempt proceeding on July 11, 2006. The
manifest weight of the evidence did not require the court to
grant Carlos's motion for substitution of judge. The court
correctly denied Carlos's motion to reopen the proofs so that he
could elicit inadmissible evidence of attorney strategy. The
court correctly considered evidence of Carlos's acts following
the November 2005 opinion, as those acts had relevance to the
custody determination. The inadequate record prevents us from
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reviewing the manifest weight of the evidence presented at trial.
However, the trial court should not have dismissed, without an
evidentiary hearing, Carlos's motion for a finding of contempt
against Anna for violation of visitation orders. Accordingly, we
affirm the judgment for custody and property distribution, but we
reverse the denial of the motion for a rule to show cause, and we
remand for further proceedings not inconsistent with this
opinion.
Affirmed in part and reversed; cause remanded in part.
FITZGERALD SMITH, P.J., and O'MALLEY, J., concur.
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