In re Parentage of G.E.

2016 IL App (2d) 150643, 54 N.E.3d 212

• Court: Appellate Court of Illinois
• Decided: May 2, 2016
• Docket: 2-15-0643
• Status: Unpublished

Opinion

2016 IL App (2d) 150643 No. 2-15-0643 Opinion filed May 2, 2016 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

In re PARENTAGE OF G.E., a/k/a/ G.O., ) Appeal from the Circuit Court a Minor ) of Kane County. ) ) No. 11-F-718 ) (Michael N., Petitioner-Appellee, ) Honorable v. Nicole O., a/k/a Nicole E., ) Kathryn D. Karayannis, Respondent-Appellant). ) Judge, Presiding. ______________________________________________________________________________

JUSTICE BIRKETT delivered the judgment of the court, with opinion. Justices McLaren and Jorgensen concurred in the judgment and opinion.

OPINION

¶1 Respondent, Nicole O., appeals the judgments of the trial court declining to stay

contempt proceedings brought against her by petitioner, Michael N., and holding her in civil

contempt of court. We hold that the record is inadequate for our review, as the bystander’s

report submitted by respondent is not in compliance with the procedures set forth in Illinois

Supreme Court Rule 323(c) (eff. Dec. 13, 2005) for the preparation and certification of a

bystander’s report. Therefore, we affirm.

¶2 I. BACKGROUND

¶3 In September 2011, petitioner filed this parentage action, seeking joint custody of the

parties’ child, G.E. In her answer, respondent asked for sole custody of G.E. Later, respondent

sought removal of G.E. to the State of Texas. In May 2013, following an evidentiary hearing, 2016 IL App (2d) 150643

the trial court granted respondent sole custody of G.E. and allowed her to remove the child to

Texas. The parentage judgment provided for periodic visitation in Illinois, where petitioner

continued to reside, and required respondent to facilitate the visitation at her expense.

¶4 Petitioner appealed the grant of sole custody and removal. This court affirmed. See In re

Parentage of G.E., 2014 IL App (2d) 140376-U.

¶5 On December 24, 2014, while petitioner’s appeal was pending, he filed in the trial court a

petition for a rule to show cause why respondent should not be held in contempt of court for

failing to bring G.E. to Illinois for Thanksgiving vacation in 2014. Petitioner’s counsel withdrew

in December 2014 and petitioner remained pro se for the balance of the proceedings below prior

to this second appeal.

¶6 Respondent replied to the show-cause petition by moving to stay proceedings pursuant to

section 207(a) of the Uniform Child-Custody Jurisdiction and Enforcement Act (Act) (750 ILCS

36/207(a) (West 2014)), which permits a court to stay a child custody proceeding before it if the

court determines that “it is an inconvenient forum under the circumstances and that a court of

another state is a more appropriate forum.” On April 14, 2015, the trial court heard both the

show-cause petition and the motion to stay. The proceeding was not transcribed. The court

issued an order that day holding respondent in indirect civil contempt. As a sanction for the

contempt, the court sentenced respondent to immediate incarceration in the Kane County jail and

set a purge amount of $10,000. Later, in May 2015, the court issued an order nunc pro tunc to

April 14 denying respondent’s motion to stay.

¶7 On April 27, respondent filed a motion to reconsider, which the court denied following a

hearing on May 26. Respondent filed her notice of appeal on June 23. Proceedings continued in

the trial court on visitation, attorney fees, and other matters. Some of these issues were

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addressed at a hearing on June 17, which was the next transcribed hearing to occur after May 26.

The most recent order in the common-law record is from June 17, and the most recent document

in the record is the June 23 notice of appeal.

¶8 The next and final transcribed hearing after May 26 occurred on August 13. The

transcript of this hearing is entitled “Certified Bystander’s Report.” The hearing began as

follows:

“THE COURT: All right. So we’ll go on the record on 11 F 718. Counsel, if

you’d like to make your appearances.

MS. SCHWEMLER [respondent’s attorney]: Jenette Schwemler on behalf of

Nicole [O.] [respondent].

THE COURT: All right. For the record, Mr. [N.] [petitioner] is not present, and I

don’t know if he got notice of today’s date but he certainly had notice of the court date a

couple of days ago.

And a couple of days ago when we were here the Court was asked to certify a

bystander’s report, I declined to do that, in the interest of getting some type of

information to the appellate court prior to, I believe, the deadline, which is later this

month. I suggested having a court reporter here and I would try to make an oral record

that would then be transcribed.

Do you agree with that, Ms. Schwemler?

MS. SCHWEMLER: Yes, Your Honor.

THE COURT: All right. And so what the Court has been asked to do is to

address what occurred in court on April 14th of 2015 ***.”

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¶9 In the remainder of the hearing, the trial court and respondent’s counsel agreed upon an

account of what occurred at the April 14 hearing. According to this account, the court received

testimony from petitioner and respondent relating to both the contempt and stay issues.

¶ 10 II. ANALYSIS

¶ 11 Petitioner has not filed a brief in this case. We nonetheless proceed to the merits of the

appeal, pursuant to the principles set forth in First Capitol Mortgage Corp. v. Talandis

Construction Corp., 63 Ill. 2d 128, 133 (1976) (if the appellee has not filed a brief, the reviewing

court should nonetheless reach the merits where the record is simple and the claimed errors are

such that the court may easily decide the issues raised by the appellant).

¶ 12 Respondent challenges the factual and legal underpinnings of the trial court’s judgments

denying her motion to stay the contempt proceeding and holding her in contempt of court. Her

challenge depends on an adequate record of the April 14 hearing at which the court received

evidence on the issues and rendered its judgments. Her challenge fails because the record of that

hearing is insufficient.

“[T]o support a claim of error, the appellant has the burden to present a sufficiently

complete record. [Citations.] From the very nature of an appeal it is evident that the

court of review must have before it the record to review in order to determine whether

there was the error claimed by the appellant. [Citation.] An issue relating to a circuit

court’s factual findings and basis for its legal conclusions obviously cannot be reviewed

absent a report or record of the proceeding. [Citations.] Without an adequate record

preserving the claimed error, the court of review must presume the circuit court’s order

had a sufficient factual basis and that it conforms with the law.” (Internal quotation

marks omitted.) In re Marriage of Gulla, 234 Ill. 2d 414, 422 (2009).

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Illinois Supreme Court Rule 321 (eff. Feb. 1, 1994) and Rule 323 (eff. Dec. 13, 2005) require a

report of proceedings or an acceptable substitute, such as a bystander’s report or agreed

statement of facts. Here, respondent has included in the record on appeal a bystander’s report of

the crucial April 14 hearing. Rule 323(c) states the requirement for preparation of a bystander’s

report:

“(c) Procedure If No Verbatim Transcript Is Available (Bystander’s Report). If

no verbatim transcript of the evidence of proceedings is obtainable the appellant may

prepare a proposed report of proceedings from the best available sources, including

recollection. *** The proposed report shall be served on all parties within 28 days after

the notice of appeal is filed. Within 14 days after service of the proposed report of

proceedings, any other party may serve proposed amendments or an alternative proposed

report of proceedings. Within 7 days thereafter, the appellant shall, upon notice, present

the proposed report or reports and any proposed amendments to the trial court for

settlement and approval. The court, holding hearings if necessary, shall promptly settle,

certify, and order filed an accurate report of proceedings. Absent stipulation, only the

report of proceedings so certified shall be included in the record on appeal.” Ill. S. Ct. R.

323(c) (eff. Dec. 13, 2005).

The bystander’s report “must be prepared in accordance with the requirements of Supreme Court

Rule 323(c).” City of Pekin v. Mann, 44 Ill. App. 3d 1, 2 (1976). The rule contemplates a

collaborative process for the generation of a bystander’s report, as shown by the requirement that

the appellant serve the appellee with a copy of the appellant’s proposed report. The appellee

“must be given the opportunity to offer amendments and corrections” to the report. Department

of Transportation v. Drobnick, 54 Ill. App. 3d 987, 991 (1977). In Drobnick, the appellants

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“attempted to bypass this procedure” by filing their bystander’s reports “directly with the clerk of

the court,” without affording the appellee an opportunity for input. Id. at 991-92. Accordingly,

the appellate court held that the reports could not stand as a substitute for a report of proceedings

and affirmed the trial court’s refusal to certify them. Id. at 992.

¶ 13 Here there is no indication in the record that respondent provided petitioner with her

proposed bystander’s report (which, we note, is not itself in the record). There is no proof of

service for the report or indication that petitioner nonetheless received the report. Petitioner was

not in court on August 13 when the report was discussed. On that date, the court remarked that it

did not know if petitioner had notice of the August 13 date, but was sure he “had notice of the

court date a couple of days ago” when “we were here” (emphasis added). At that prior hearing,

the court recalled, it “was asked to certify a bystander’s report,” but declined. The court instead

continued the matter for a court reporter to be present so that the court could “try to make an oral

record that would then be transcribed.”

¶ 14 These remarks do not establish that petitioner was in court on that prior hearing, when he

might have received a copy of the proposed report. The “we” referenced by the trial court might

be read in isolation to include petitioner, but in context we must read it more narrowly.

Specifically, the court commented not that petitioner was present in court on that earlier date but

that he had notice of that date. Therefore, since we cannot conclude that petitioner was in court

on that earlier date, we must eliminate it as a possible occasion for petitioner to have received the

proposed report. The record reveals no other occasion on which petitioner might have received

the proposed report. Moreover, there is no indirect evidence in the record that petitioner

received the report, such as proposed corrections to it.

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¶ 15 We add that petitioner’s failure to file an appellate brief or object in this court to the

bystander’s report does not retroactively validate respondent’s failure to comply with Rule

323(c)’s procedure for generation of a bystander’s report.

¶ 16 As the record does not show that respondent complied with Rule 323(c) by providing

petitioner with the proposed bystander’s report, which would have given him the opportunity for

input in the process, we conclude that the trial court erred in certifying a bystander’s report on

August 13. Since the August 13 report is invalid, and respondent has submitted no other

substitute for a report of proceedings of the April 14 hearing, the record before us is inadequate

for review of respondent’s contentions, and we must affirm the judgments of the trial court.

¶ 17 III. CONCLUSION

¶ 18 For the foregoing reasons, we affirm the judgments of the circuit court of Kane County.

¶ 19 Affirmed.

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