In re Marriage of Molloy

Opinion

SIXTH DIVISION February 10, 2011

No. 1-10-1224

In re MARRIAGE OF ) Appeal from the ) Circuit Court of DAVID P. MOLLOY, ) Cook County. ) Petitioner-Appellant, ) ) No. 07 D 8119 and ) ) ROJEAN M. MOLLOY, ) The Honorable ) Gerald C. Bender, Respondent-Appellee. ) Judge Presiding.

PRESIDING JUSTICE GARCIA delivered the judgment of the

court, with opinion.

Justices Cahill and McBride concurred in the judgment and

opinion.

OPINION

The petitioner David P. Molloy presents what he contends is

an interlocutory appeal under Supreme Court Rule 307(a)(1) (Ill.

S. Ct. R. 307(a)(1)(eff. Mar. 20, 2009)) based on the circuit

court

petitioner

to his child custody evaluation under section 604.5 of the

Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS

5/604.5 (West 2008)). On June 3, 2010, at the request of counsel

for the children, we entered an order designating this matter as

an expedited appeal pursuant to Illinois Supreme Court Rule 311. No. 1-10-1224

Ill. S. Ct. R. 311(eff. Feb. 26, 2010). Thereafter, the children

filed a motion seeking the dismissal of this appeal contending it

does not fall within the provisions of Rule 307(a)(1). The

petitioner filed a response conceding this case involves an novel

application of Rule 307. He asserts this appeal seeks a good-

faith extension of what qualifies as an injunctive order under

Rule 307. We took the motion with the case. The children

challenge our jurisdiction in their response brief. The

petitioner sought an extension of time to file his reply brief,

which we granted. No reply brief was filed by the petitioner by

the court's deadline. We now grant the children's motion to

dismiss this appeal for lack of jurisdiction.

BACKGROUND

The petitioner and the respondent were married on June 28,

2001; two children were born of the marriage, Cody, born June 30,

2001, and Alaina, born March 2, 2005.

In 2007, the petitioner filed for the dissolution of

marriage. In March 2008, pursuant to a motion filed by the

respondent, the Cook County public guardian was appointed to

represent the interests of the children.

In April 2009, the circuit court assigned the matter to the

Forensic Clinical Services Department (FCSD) for a custody

evaluation pursuant to section 604(b) of the Act. 750 ILCS

5/604(b) (West 2008). In September 2009, the circuit court set a

status date on the custody evaluation for December 15, 2009. In

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November 2009, the petitioner filed for temporary and permanent

custody, alleging the marital home had been sold and that he had

obtained a new residence that was suitable for himself and the

children. He further alleged that on November 10, 2009, the FCSD

examiner, a licensed clinical social worker, had issued a section

604(b) report recommending that he be awarded sole custody of the

children.

According to the petitioner

November 19, 2009, the respondent requested a custody evaluation

pursuant to section 604.5 of the Act, which the court granted.

750 ILCS 5/604.5 (West 2008). On December 16, 2009, the circuit

court ordered the respondent

filed by March 12, 2010, and noted the respondent would have 21

days after that date to respond to the petitioner

custody.

On January 12, 2010, the respondent filed a motion,

requesting that the petitioner

accompanying the petitioner at his section 604.5 custody

evaluation with the respondent

a licensed clinical social worker. The respondent explained her

request: "As not to result in an unbalanced report if

petitioner’s counsel is present, as respondent presents as pro

se." A hearing on the motion was held on January 27, 2010.

Following argument by the petitioner

court ordered the parties to file written memoranda addressing

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the matter by February 5, 2010.

On February 5, 2010, the petitioner, through his attorneys,

filed a "Response to and Memorandum of Law in Opposition of

Rojean Molloy’s Motion," arguing that the respondent did not

properly title her motion as one for injunctive relief. The

petitioner further argued that the respondent

attempt to prevent him from exercising his statutory right

pursuant to 2-1003(d) of the Illinois Code of Civil Procedure

(Code) (735 ILCS 5/2-1003(d) (West 2008) ("Discovery and

depositions")).

On April 26, 2010, the circuit court held a hearing on the

respondent

evaluation and other matters. The circuit court granted the

respondent

the section 604.5 evaluation. In its ruling, the court focused

on the type of examination at issue: "Let me tell you, this is

considered--this is an evaluation. There are two different types

of evaluations that we have: A mental or physical exam and a

child custody evaluation. There are two distinct assessments for

that." The court then read aloud section 2-1003(d) of the Code

and part of section 604.5 of the Act. The court also discussed

the decision in In re Marriage of Divelbiss, 308 Ill. App. 3d

198, 719 N.E.2d 375 (1999). In Divelbiss, the court noted the

difference between a discovery evaluation under Supreme Court

Rule 215 (Ill. S. Ct. R. 215(eff. July 1, 2002)) and a custody

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evaluation. In Divelbiss, the respondent's argued "that she had

a right to seek a custody evaluation." Divelbiss, 308 Ill. App.

3d at 211. The circuit court replied that she had requested "a

215 examination," which it granted. Divelbiss, 308 Ill. App. 3d

at 211-12. The respondent did not request a custody evaluation

under section 604.5 of the Act. Divelbiss, 308 Ill. App. 3d at

212. The circuit court here noted the same distinction between a

discovery evaluation and a custody evaluation. The purpose of a

section 604.5 evaluation is to determine the best interests of

the children, in contrast to one seeking to determine the extent

of a party

or her rights under section 2-1003(d) of the Code. The circuit

court ruled it follows from the different interests involved that

a party does not have a right to have an attorney present at a

child custody evaluation as a party does under a discovery

evaluation.

Following the court

asked the court for Rule 304(a)(Ill. S. Ct. R. 304(eff. Feb. 26,

2010)) language to allow for an immediate appeal; the court

denied the request. The petitioner

granting the respondent

attorney from the evaluation interview, which asserted that the

"injunctive relief" requested by the respondent was granted.

On May 3, 2010, the petitioner, through his attorneys, filed

an interlocutory notice of appeal, citing Illinois Supreme Court

5 No. 1-10-1224

Rule 307(a)(1)(eff. Mar. 20, 2009) as the basis for our

jurisdiction. On July 14, 2010, the public guardian filed its

motion to dismiss appeal for lack of jurisdiction under Rule

361(h). Ill. S. Ct. R. 361(h)(eff. Dec. 29, 2009). The

petitioner responded. On August 11, 2010, we ordered that the

public guardian

ANALYSIS

The petitioner argues this appeal falls under Supreme Court

Rule 307(a)(1) because respondent

the section 604.5 evaluation qualifies as an injunction in that

it seeks to enjoin the petitioner from having his attorneys

present during his evaluation. Consistent with the injunctive

nature of the motion, the petitioner points out the respondent

motion gave notice to the petitioner and then "asked the court to

prohibit [the petitioner] from exercising a statutory right

granted to him pursuant to Section 2-1003(d) of [the Code]." Our

review is governed by the context of this case: the petitioner

claims his statutory right under section 2-1003(d) of the Code

extends to an evaluation under section 604.5 of the Act such that

barring the presence of petitioner's counsel qualifies as an

injunction.

In its brief on behalf of the children, the office of the

Cook County public guardian argues the order does not qualify as

one granting an injunction under Rule 307(a)(1). The public

guardian

6 No. 1-10-1224

2010, merely set conditions for the petitioner's section 604.5

evaluation, "despite the inappropriate language used by [the

petitioner

3d 696, 698, 654 N.E.2d 535 (1995) (written order was not a final

order though drafted by the newspaper "with language to support a

characterization of finality"). As an order regulating the

conditions under which one of the parties will be interviewed by

a licensed social worker in relation to the children

the order does not seek to maintain the status quo. Rather, it

is an administrative or ministerial order regulating the

litigation before the court. See In re A Minor, 127 Ill. 2d 247,

260, 537 N.E.2d 292 (1989) (the substance of the action, not its

form, determines whether an order is an appealable injunctive

order under Rule 307(a)(1)); Reynolds, 274 Ill. App. 3d at 698

(order denying newspaper immediate access to transcripts of

sidebars was "a ministerial and administrative implementation of

the court's previous oral ruling").

To further support its position, the public guardian notes

that section 604.5 expressly provides that "conditions" for the

evaluation be determined by the circuit court. "An order for an

evaluation shall fix the time, place, conditions, and scope of

the evaluation and shall designate the evaluator." (Emphasis

added.) 750 ILCS 5/604.5(b) (West 2008). According to the

public guardian, the circuit court below set a "condition" for

the petitioner's evaluation that it be done without the presence

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of his attorney.

Our supreme court has informed lower courts of review to

first determine whether jurisdiction exists to address the merits

of an appeal. Almgren v. Rush-Presbyterian-St. Luke's Medical

Center, 162 Ill. 2d 205, 210, 642 N.E.2d 1264 (1994) ("the

appellate court has an independent duty to consider its

jurisdiction before proceeding to the merits of the case"). The

Public Guardian properly raises the question of our jurisdiction

in this appeal. Accordingly, we must first determine whether the

order appealed from falls within the provisions of Supreme Court

Rule 307(a)(1) to vest us with jurisdiction. That this would be

the first application of Rule 307(a)(1) to the circumstances in

this case is not a bar to its application. See Mitchell v. Palos

Community Hospital, 317 Ill. App. 3d 754, 762, 740 N.E.2d 476

(2000) (novelty of argument alone is not a bar to its acceptance)

(citing M. Graham, Cleary & Graham's Handbook of Illinois

Evidence §702.4, at 563 (6th ed. 1994)).

Rule 307(a)(1)

Illinois Supreme Court Rule 307(a)(1) governs interlocutory

appeals from an order "granting, modifying, refusing, dissolving,

or refusing to dissolve or modify an injunction." Ill. S. Ct. R.

307(a)(1)(eff. Mar. 20, 2009). The petitioner claims the circuit

court

is a mandatory injunction. To support his claim, the petitioner

directs our attention to the language of the written order, which

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states, "[Respondent

However, as our supreme court made clear, the language of an

order does not determine whether it may be appealed. In re A

Minor, 127 Ill. 2d at 260. "Not every nonfinal order of a court

is appealable, even if it compels a party to do or not do a

particular thing." In re A Minor, 127 Ill. 2d 247, 261-62, 537

N.E.2d 292 (1989). Court orders that are ministerial or

administrative cannot be the subject of an interlocutory appeal.

In re A Minor, 127 Ill. 2d at 262. An order is deemed

ministerial or administrative if it regulates only procedural

details of the litigation before the court. In re A Minor, 127

Ill. 2d at 262. Such an order "do[es] not affect the

relationship of the parties in their everyday activity apart from

the litgation, and are therefore distinguishable from traditional

forms of injunctive relief." In re A Minor, 127 Ill. 2d at 262.

"To determine what constitutes an appealable injunctive order

under Rule 307(a)(1) we look to the substance of the action, not

its form." In re A Minor, 127 Ill. 2d at 260.

Here, despite the language in the order, we find the aim of

the circuit court's order to be ministerial; the order places a

"condition" of the custody evaluation of the petitioner as

provided under section 604.5 of the Act. 750 ILCS 5/604.5(b)

(West 2008). We agree with the public guardian that the purpose

of the circuit court

aspect of their pretrial preparation; the order is not the

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equivalent of a preliminary injunction whose function is "to

preserve the status quo pending resolution of the merits of the

case." In re Marriage of Slomka, 397 Ill. App. 3d 137, 143, 922

N.E.2d 36 (2009) (citing Postma v. Jack Brown Buick, Inc., 157

Ill. 2d 391, 397, 626 N.E.2d 199 (1993)).

With no reply brief from petitioner, we are persuaded by the

public guardian's claim that the respondent

conditions put on the petitioner's section 604.5 evaluation was

not a measure to preserve the status quo. See People v. Itani,

383 Ill. App. 3d 954, 973, 890 N.E.2d 1154 (2008) (expert's

evaluation "compromised" when "she allowed defense counsel to be

present during clinical interview of defendant," which cast doubt

on evaluation being independent and objective). On its face, the

order addressed a procedural matter related to the pending

litigation under section 604.5 of the Act. We are unpersuaded

that the order contravened the petitioner's statutory right under

section 2-1003(d) of the Code.

Accordingly, because this court

on the petitioner

26, 2010, order, as one granting preliminary injunctive relief,

and we find no such relief was granted by the challenged order,

we lack jurisdiction to entertain this appeal.

CONCLUSION

No injunctive relief under Supreme Court Rule 307(a)(1) was

granted by the circuit court

10 No. 1-10-1224 attorneys from accompanying the petitioner to his interview with

the evaluator under section 604.5 of the Illinois Marriage and

Dissolution Act. The order was ministerial, setting a condition

on a custody evaluation as section 604.5(b) expressly provides.

We have no jurisdiction to address this interlocutory appeal.

Appeal dismissed.