SECOND DIV ISION November 10, 2008

No. 1-08-1563
IN RE MARRIAGE OF: (FRANCESC

A SURIANO, Petitioner-

Appellee,

v.
THEODORE LAFEB ER, III,

Respondent-Appellan t). ) ) ) ) ) ) ) ) ) )) )) Appeal from the Circuit C ourt of Cook County

No. 97 D 13507
Honorable Jeanne Cleveland Bernstein, Judge Pre siding.

PRESIDING J USTICE KARNEZ IS deliver ed the opinion of the court: Respondent The odore Lafebe r III, appeals from an orde r of the circuit court in favor of petition er Francesca Suriano that terminated the par ties' joint parenting agreement and placed cust ody of the parties' children with petitioner. On app eal, respondent contends

that: (1) thecourt lacked jurisdic tion to sua sponteterminate the parties' joint custody agreement without a pleadin g requesting such relief; (2) the court's order violated respondent's due proce ss rights; (3) the court's order failed to comply1-08-1563

2

with the requirements of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/610(b) (West 2000)) (Ac t); and (4) the matter should be assigned to a new judg e for any further pr

oceedings. For the foregoi ng reasons, we vacate the court's order and remand the cause for further proceedi ngs. Two children were born during the parties' marriage; one in 1993 an d another in 1995. The parties entered into a j oint parenting agreement on Apr il 17, 1998, and a n agreed order

on September 8, 2006. Pursuant to the joint parenti ng agreement, the parties agr

eed to joint cus tody of the chil dren with the children 's primary residence to be with peti tioner. Para graph I(J) of the agreed or

der provi ded in part that "neither party shall ma ke any uni lateral decision regarding t he hea lth, edu cation , religious training, activiti es or wel fare of either of the minor children." On March 1, 20 07, respondent file d his fifth petiti on for rule to s how cause to hold petitioner

in contempt for v iolating p aragraph I( J) of the agre ed order. The peti tion contained numerous allegations that petitioner

made health care and other decis ions regarding the children without consulting r espondent. The alleg ations concer ned petitioner tak ing one of the chi ldren to a der matologist, taking the c hildren to thei r dental appointments, gi ving thechildren v itamin supplements , obtaining contact lensesfor one of the children and enrolling the children in an art cl ass. Respondent 's prayer for relief contained 10 separ

ate paragraphs , which, in essence, r equested that th e joint parenting ag reement be amended to pr ovide that pet itioner cannot make any unil ateral deci sion s rega rdin g the c hild ren' s care and a ctivit ies a nd th at re spon den t rece ive1-08-1563

3

sufficient notice of any upcoming decisions regarding the children's care and activities. The court held a hea ring on the petition, w here the only witness es that testified were peti tioner and res pondent. The court i ssued its deci sion on May 20, 2008, finding that there was no basis for g ranting the rule to show cause. However, the court further stated that it w

ould not amend the jo int parenting agreement becaus e it was "going to terminate it sua sponte, " and then it awarded custody of the children to petitioner. The court noted that the parties w ere unable to coo perate and that "ther e should never

ever have been joint parenting." W hen counsel for respon dent objected, the cou rt explained: "I have the right to do it in the best interest of these children. In this entire hearing almost every word out of these people's mo uths indicated that there should have never

been joint par

enting. And I have the ri ght to do it in the best interest of the children ." The court f urther st ated th at if res ponde nt wanted to have a cu stody hea ring, it would schedule a heari ng for a future date. Respondent now appeals f rom the court's order. The issue in this case is whether the circuit court lacked jurisdiction to enter the orde r terminating the parties' joint parenti ng agreement and awardin g custody of the children to petitioner. W ith limited exceptions, circuit courts have "'original jurisdiction of all justiciable matters.'" Ligon v. Willi ams , 264 Ill. App. 3d 701, 707 (1994) , quoting Ill. Const. 1970, art. VI, §9. The court's autho rity to exercise its jurisdiction and resolve a justiciable question is

invoked thr

ough the filing of a complaint or petition, pleadi ngs that functio n to frame the issuesfor the trial court and ci rcumscribe the relief the co urt is empowered1-08-1563

4

to order. Ligon , 264 Ill. App. 3d at 707. A party cannot be granted relief in the absence of corre spondi ng plead ings; if a justiciab le issue is not pres ented to the co urt thro ugh proper pleadin gs, the cour t cannot sua sponteadjudicate an i ssue. Ligon , 264 Ill. App. 3d at 707. Orders that are ente red in the absence of a justiciable question properly presented to the court by the parties are void since they resu lt from court ac tion exceeding its juri sdiction. Ligon , 264 Ill. App. 3d at 707. We f ind In re Marr iage of Fox , 191 Ill. App. 3d 514 (1989), i nstructive. In Fox , the respondent f iled a petition for rule to show cause why the petitioner shou ld be held in contempt for interfering w ith his v isitation r ights. After a hearing on the petition, t he trial court found that the petitioner had repeated ly interfered with the respondent's visitati on with hi s children and a modification of the custody or der was necessary for the best interests of the children . This court determined on a ppeal that the trial court's order was

void becaus e the trial court's jur isdiction to determine custody wasnot properly invoked. Fox , 191 Ill. App. 3d at 521-22. This court stated that the justiciab le matter before the tr ial court w as an allege d violati on of the visi tation prov isions of the judgment of disso lution, not chi ld custody

. Fox , 191 Ill. App. 3d at 521. Th is court also found that the trial court's or der viol ated section 601( b) of the Act becaus e no petition initiating a child cus tody proceedi ng was fil ed as requi red by sec tion 601(b) and the petitioner w

as not notified as required b y section 601(c) of the Act that the hearing on the contempt petiti on would i nvolve custody is sues. Fox , 191 Ill. App. 3d at 521. Additio nally, thi s court st ated th at there was neithe r evidence present ed nor f indings1-08-1563

5

stated by the trial cour

t regardi ng the best i nterests of the chi ldren as req uired by section 610(b)

of the Act. Fox , 191 Ill. App. 3d at 521. Here, the only

pleading before the court was respondent'sfifth rule to show cause to hold peti tioner in con tempt for viol ating parag raph I(J) of the agreed order . As in Fox , the justic iable matter beforethe court was an allege d violati on of the provi sions of the agreed orde r and not a chi ld custody determination. The circuit court had no jurisdict ion to sua sponteterminate the j oint parenting agreement. The court's May 20, 2008, order is

void. Moreover, the court's order violated sections 601(b) and (c) ofthe Act, which require a child custody

proceeding to be commenced by filing a peti tion for custody and giving notice to the c hild's paren ts. See 750 ILCS 5/601(b), (c ) (West 2006). The order also viol ated section 610 o f the Act whi ch provid es that a court can terminate j oint custody and make any modif ication that is in the child's best interest ifit makes specific findings of fact in support of its determination. See 750 ILCS 5/610 (West 2006). The court here made no such findings. Instead, the cou rt merely stated that it was terminating the joint paren ting agr eement because it w

as "in the best i nterest of the children." Additionally , this court 's findings in In re Custody of Ayala , 344 Ill. App. 3d 574 (2003), are also instructive. In that case, this court f ound on appeal tha t the trial court exceeded its

jurisdic tion when i t modified custody when no plead ing had been fil ed requesting such relie f. Ayala , 344 Ill. App. 3d at 585. This court further found that the1-08-1563

6

order vi olated the mother' s due process rights because she had no noti ce that custody would be con sidered or dec ided at the heari ng. Ayala , 344 Ill. App. 3d at 587. Th e only matters before the court on the date of the hearing re lated to vi sitation is sues and the mother's failur

e to respond to pl eadings. We also find that the court's or der viol ated respondent'sdue process r ights. D ue process of law

requires that a party

be accorded noti ce and an opportuni ty to be hear d. Ayala , 344 Ill. App. 3d at 586. Parties who have properly appea red in an action are entitled to noti ce of any impendi ng motions or hearings. Ayala , 344 Ill. App. 3d at 586. Respondent did not

receive notice that the c ircuit cour t might consi der or determi ne child custody

at the conclus ion of the hearing on his petiti on for rule to s how cause. As in Ayala , the only mat

ters before the co urt related to respondent's a llegations that petitioner w

as making uni lateral deci sions reg arding the c hildren's care and activ ities. In the prayer

for relief, res pondent requested that the joint parenting ag reement be amended such that peti tioner could not make any uni lateral deci sions reg arding the children'scare and acti vities a nd that respondent receive s ufficient notice of any upcoming deci sions reg arding the c hildren's care and activ ities. We cannot construe this reques t to amend the join t parenting agreement as a r equest to modify

custody or terminate the jo int parenting agreement. Ther efore, the court' s order als o violated respondent's due process ri ghts. Respondent addition ally maintains that if this cause is reman ded to the circuit court for further proceedings , it should be reassigned to a different judg e. Respondent1-08-1563

7

contends that the j udge's comments indicated that t he judge had al ready "prej udged" the issue of joi nt custody, which w as unfair to res pondent. Pursuant to Supreme Cou rt Rule 366(a)(5) (155 Ill. 2d R. 366(a)(5)), this court has the author ity to reass ign a mat ter to a n ew judge on remand . However, a tri al judge is presumed to b e impartial, and the burden of ov ercoming thi s presumption r ests on the party mak ing the char ge of prejudice. Eychaner v. Gross , 202 Ill. 2d 22 8, 280 (2002). The part

y making the charge of pr ejudice must pr

esent evidence of prejudicial trial conduc

t and evidence of the judge's personal bias

. Eychaner , 202 Ill. 2d at 280. Allegedly

erroneous findi ngs and rul ings by the trial court are ins ufficient reasons to establish that

the court has a personal bias for or agains t a litig ant. Eychaner , 202 Ill. 2d at 280. Here, we decline respondent's request for a dif ferent trial judge. Responden t's allegations

do not overcome the presumption o f impartiality . The judge'sdetermination to terminate joint custody, albeit errone ous, did not evidence any bias toward respondent. The jud ge informed res pondent that if respo ndent wanted to have a custody hear ing, the cour t would se t the matter for a he aring on a futur e date. The judge did not state that she was predispose d toward a certain outcome. The judge's comments perhaps ev idenced her frust ration wi th the parties'inability to cooperate; however , they did n ot evidence any bias tow ard respondent. Accordingl y, we vacate the c ircuit cour t's May 20, 2008, order terminating t he j o i n tp a r e n t i n g a g r e e m e n ta n d a w a r d i n g c u s t o d y o f t h e c h i l d r e n t o p e t i t i o n e r
. We1-08-1563

8

remand the cause for further proceedi ngs consis tent with this opinion. Order vacated; cause remanded. QUINN and C UNNINGHA M, JJ., conc ur.1-08-1563

9 REPORTER OF DECISIONS - ILLINOIS APPELL ATE COURT

IN RE MARRIAGE OF: (FRANCESC

A SURIANO, Petitioner-

Appellee,

v.
THEODORE LAFEB ER, III,

Respondent-Appellan t). ) ) ) ) ) ) ) ) ) )) )) Appeal from the Circuit C ourt of Cook County

No. 97 D 13507
Honorable Jeanne Cleveland Bernstein, Judge Pre siding.

No. 1-08-1563 Appellate Court of Illinois First Di strict, Second Divi sion November 10, 2008
PRESIDING J USTICE KARNEZ IS deliver ed the opinion of the court. QUINN and C UNNINGHA M, JJ., conc ur. Appe al fr om th e Circ uit Co urt o f Coo k Cou nty. The Hon orable J eanne R. Clevelan d Bernst ein, Jud ge Presidi ng. For RESPONDENT-APPELLANT, Pa ul J. Bargiel, P.C.1-08-1563

10

For PETITIONER-

APPELLEE, Richar

d A. Wilson, P.C.