In Re Marriage of Paclik

864 N.E.2d 274, 371 Ill. App. 3d 890, 309 Ill. Dec. 408, 2007 Ill. App. LEXIS 139
CourtAppellate Court of Illinois
DecidedFebruary 21, 2007
Docket5-06-0416
StatusPublished
Cited by7 cases

This text of 864 N.E.2d 274 (In Re Marriage of Paclik) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Marriage of Paclik, 864 N.E.2d 274, 371 Ill. App. 3d 890, 309 Ill. Dec. 408, 2007 Ill. App. LEXIS 139 (Ill. Ct. App. 2007).

Opinion

JUSTICE STEWART

delivered the opinion of the court:

This case comes to us for review from the trial court’s entries of emergency and plenary orders of protection. The parties’ dissolution of marriage remains pending. On appeal, the respondent, Jenny C. Paclik, argues that the trial court erred in denying her motion to substitute judge pursuant to local court rule 8.05 (20th Judicial Cir. Ct. R. 8.05 (eff. December 12, 1991)); Illinois Supreme Court Rule 903 (210 Ill. 2d R. 903); and, as a matter of right, pursuant to section 2 — 1001(a)(2) of the Code of Civil Procedure (the Code) (735 ILCS 5/2 — 1001(a)(2) (West Supp. 2005)). We reverse and remand.

BACKGROUND

On September 15, 2005, the petitioner, Charles Paclik, filed his petition seeking a judgment of the dissolution of his marriage to Jenny. The parties have two sons, both of whom were preschoolers at the time of these events. On the same day Charles filed his petition for a judgment of dissolution, the Honorable Alexis Otis-Lewis was assigned to the case.

Two days before Charles filed the dissolution action, Jenny and the children had moved out of the marital residence and into a domestic violence shelter, where they stayed until December 27, 2005.

Judge Otis-Lewis conducted three separate hearings in the dissolution proceeding prior to the hearings before the Honorable Walter C. Brandon, Jr., on Charles’s petition for an order of protection. The first hearing before Judge Otis-Lewis concerned temporary custody, at which time the parties agreed that they would share joint custody of the children, with Jenny having primary physical custody subject to Charles’s right of visitation. At the first hearing, Charles was represented by counsel but Jenny was not.

At the next hearing, on December 12, 2005, both parties were represented by counsel. On that date, Judge Otis-Lewis signed an agreed order allowing Jenny to move to the State of California with the children, again subject to Charles’s right of visitation. The agreed order set out a schedule of visitation for Charles and the children, the amount of child support Charles was to pay, how the income tax refund for that year was to be split, and a partial distribution of personal property. Additionally, Jenny agreed to waive temporary maintenance, all of her interest in the marital residence, and any claim to Charles’s pension in exchange for Charles’s agreement allowing her to move to California with the children.

Less than two months after the December 2005 agreed order, Charles filed a petition seeking to modify that order, alleging that Jenny had interfered with his visitation and failed to allow him telephone contact with the children. In that petition, Charles requested the trial court to order Jenny to return the children to IIlinois. Jenny filed a response denying the essential allegations of Charles’s petition.

On April 13, 2006, Judge Otis-Lewis conducted a hearing on Charles’s petition to modify. Once again, the parties announced their agreement to the court. Both parties, represented by counsel, acknowledged that they had reviewed all of the terms of the agreed order for more than three hours prior to announcing the agreement to the court. Both parties agreed that allowing Jenny to stay in California with the children on a permanent basis was in the children’s best interest. Charles admitted, however, that without a court order, he would not return the children to Jenny in California after his visit with them. Charles acknowledged under oath that he was aware of the adverse consequences he risked if he failed to return the children to Jenny at the end of each scheduled visit.

Under the April 2006 agreed order, Charles’s first visit with the children was scheduled for June 4 through July 2, 2006. Both parties acknowledged that the visitation schedule was not intended to be effective after December 2006, and they agreed to revise the visitation schedule as needed after that.

Before entering the agreed order, Judge Otis-Lewis went over its terms with the parties. Finally, the parties agreed that they would finish discovery before a final hearing was conducted.

On June 30, 2006, while the boys were with Charles in Illinois, Charles filed a pro se petition for an order of protection against Jenny, alleging that Jenny had physically abused the children and that a man by the name of Jose had sexually abused them. On the same date and without notice to Jenny or either attorney, Charles obtained an emergency order of protection (EOF) from Judge Walter C. Brandon, Jr. By entering the EOF} Judge Brandon transferred temporary custody of the children from Jenny to Charles and prohibited Jenny from having any visitation with the children. The EOF was set to expire July 18, 2006, on which date a hearing was scheduled to determine whether an interim or plenary order of protection should be entered.

On July 13, 2006, Jenny, through her attorney, filed a motion to rehear the EOF and a motion for a substitution of judge pursuant to local court rule 8.05 (20th Judicial Cir. Ct. R. 8.05 (eff. December 12, 1991)); Supreme Court Rule 903 (210 Ill. 2d R. 903); and, as a matter of right, pursuant to section 2 — 1001(a)(2) of the Code (735 ILCS 5/2 — 1001(a)(2) (West Supp. 2005)). In the motion for substitution, Jenny reminded the court that Charles’s petition for an order of protection involved issues of child custody and visitation, which issues were the subject of the parties’ pending dissolution proceeding, to which Judge Otis-Lewis had been previously assigned.

On July 18, 2006, the case came before Judge Brandon for a hearing on the motion for a substitution of judge prior to the hearing on whether the order of protection should be extended. After hearing the parties’ arguments, Judge Brandon denied the motion for substitution without stating his reasons, and the parties proceeded to present evidence on the question of the extension of the order of protection.

After the parties presented their evidence, Judge Brandon granted Charles’s request for a plenary order of protection. The plenary order of protection is effective until July 18, 2008, “or until investigation of *** Jenny Paclik is completed by the Dept, [of] Children [and] Family Services in California and said investigation is ‘unfounded’; or until this order is superceded in the Illinois Family Court division; whichever occurs first.” The plenary order grants the custody of the children to Charles subject to Jenny’s specified visitation in Illinois, which occurred in July 2006. The order does not provide any other visitation for Jenny and the children except daily telephone contact. Until the plenary order expires, Jenny is not allowed any other contact with her sons.

Jenny filed a timely notice of appeal.

ANALYSIS

A. Substitution of Judge as a Matter of Right

The primary issue presented is whether the trial court erred by denying Jenny’s motion for a substitution of judge. Jenny cites several reasons why her motion should have been granted.

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Cite This Page — Counsel Stack

Bluebook (online)
864 N.E.2d 274, 371 Ill. App. 3d 890, 309 Ill. Dec. 408, 2007 Ill. App. LEXIS 139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-paclik-illappct-2007.