NO. 4-01-0232

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH DISTRICT

JENNY REBECCA SCROGGINS,				)	Appeal from

		Petitioner-Appellee,		)	Circuit Court of

		v.						)	Piatt County

LARRY JOE SCROGGINS,				)	No. 01OP3

		Respondent-Appellant.		)	

								)	Honorable

								)	John P. Shonkwiler,

								)	Judge Presiding.

_________________________________________________________________

		JUSTICE COOK delivered the opinion of the court:  

		Respondent Larry Joe Scroggins appeals from a plenary

order of protection issued by the Piatt County circuit court. 

Respondent argues that the trial court abused its discretion when

it denied his motion for substitution of judge as of right. 

Respondent also argues the trial court did not have authority to

appoint a domestic violence attorney to petitioner Jenny Rebecca

Scroggins.  We affirm in part, reverse in part, and remand with

instructions.

I. BACKGROUND

		Petitioner commenced proceedings under the Illinois Domestic Violence Act of 1986 (750 ILCS 60/101 through 305401 (West

2000)) by filing a verified petition for order of protection (750 ILCS 60/202(a)(1) (West 2000)).  On January 18, 2001, petitioner

appeared pro se and the trial court granted an ex parte emergency order of protection.  Hearing was set for an extension of the

emergency order of protection or a plenary order of protection

for January 29, 2001.  On January 29, 2001, respondent appeared with counsel and petitioner appeared pro se.  The court appointed petitioner a "domestic violence attorney," extended the emergency

order of protection, and set the hearing on the motion for

plenary order of protection for February 16, 2001.

		On January 30, 2001, petitioner's appointed attorney

filed a "Notice unto Parties."  This notice was served on both

petitioner and respondent.  The notice informed the parties that

the domestic violence attorney fees would be paid by the county

and that the court customarily ordered either the petitioner or

respondent to reimburse the county for the cost of appointed

counsel.  The notice stated that, as a rule, if the plenary order

of protection were granted, then respondent may be ordered to

reimburse the county.  Conversely, if the plenary order of

protection were not granted, petitioner may be ordered to reim

burse the county.

		On February 15, 2001, the day before the scheduled

hearing on the plenary order of protection, respondent filed a

motion for substitution of judge as of right pursuant to section

2-1001(a)(2) of the Code of Civil Procedure (Code) (735 ILCS 5/2-

1001(a)(2) (West 2000)).  On February 16, 2001, petitioner's

appointed counsel filed a response to the motion for substitution

of judge, alleging that he did not get notice of the motion until

4 p.m. on February 15 and did not get a copy of the motion until

10 a.m. on February 16.  Petitioner's appointed counsel further

alleged that settlement negotiations had broken down and the

motion was filed for the purpose of delaying the hearing on the motion for plenary order of protection.  Respondent's attorney

denied that the motion was filed for purposes of delay. 

		The trial court ruled on respondent's motion for

substitution of judge as of right on February 16, 2001, at the

scheduled hearing on the motion for plenary order of protection. 

The trial court denied petitioner's motion for substitution of

judge as of right, finding that the motion was not timely filed. 

The trial court then issued a plenary order of protection on

respondent's stipulation that petitioner's evidence, if believed

by the court, supported granting a plenary order of protection.

		On February 23, 2001, the trial court ordered the

county treasurer to pay the appointed domestic violence attorney

$712.50 for his services.  On March 14, 2001, the trial court

ordered respondent to pay the county $712.50 as reimbursement for

the appointed domestic violence attorney fees.  

		On appeal, respondent argues that the trial court

abused its discretion when it denied his motion for substitution

of judge as of right.  Respondent also argues that the trial

court did not have authority to appoint the "domestic violence"

attorney under the Illinois Domestic Violence Act (750 ILCS 60

(West 2000)).     

II. ANALYSIS	

		Petitioner did not file a brief for this appeal.  We

decide the case on the merits and reverse because "appellant's

brief demonstrates prima facie reversible error and the conten tions of the brief find support in the record."  First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133, 345 N.E.2d 493, 495 (1976). 

	A. Motion for Substitution of Judge as of Right Without Cause 

		Motions for substitutions of judges as of right without

cause are governed by section 2-1001 of the Code (735 ILCS 5/2-

1001 (West 2000)), which states in pertinent part:

			"(a) A substitution of judge in any 

		civil action may be had in the following 

		situations:

					* * *

				(2) Substitution as of right.  

			When a party timely exercises his or 

			her right to a substitution without 

			cause as provided in this paragraph (2).

				(i) Each party shall be entitled 

			to one substitution of judge without 

			cause as a matter of right.

				(ii) An application for substitution 

			of judge as of right shall be made by 

			motion and shall be granted if it is 

			presented before trial or hearing begins 

			and before the judge to whom it is pre-

			sented has ruled on any substantial issue 

			in the case, or if it is presented by 

			consent of the parties.

				(iii) If any party has not entered 

			an appearance in the case and has not 

			been found in default, rulings in the 

			case by the judge on any substantial 

			issue before the party's appearance shall 

			not be grounds for denying an otherwise 

			timely application for substitution of 

			judge as of right by the party."

		"The substitution of judge as a matter of right is

absolute where the motion requesting the substitution is filed

before the judge presiding in the case has made a substantial

ruling."  Alcantar v. Peoples Gas Light and& Coke Co., 288 Ill. App. 3d 644, 648, 681 N.E.2d 993, 995 (1997).  Only rulings made after

all parties who are not defaulted make an appearance are to be

considered in granting or denying the motion.  735 ILCS 5/2-

1001(a)(2)(iii) (West 2000).  In this case, the only ruling made

after respondent made his appearance was a continuance on the

court's own motion, which is not a ruling on a substantial issue. 

		Under prior statutes allowing the automatic substitu

tion of a judge, an inquiry could be made whether the motion was

filed simply for delay or whether the movant had an opportunity

to test the waters and form an opinion as to the court's reaction

to his claim.  In re Marriage of Roach, 245 Ill. App. 3d 742, 746-47, 615 N.E.2d 30, 33 (1993).  The present version of section 2-1001(2), however,

has adopted a new test.  Under the present version, it is not

necessary to allege that the judge is prejudiced against the

defendant.  Cf. Ill. Rev. Stat. 1987, ch. 38, par. 114-5(a).  Under the present version of section 2-1001(2), the right to a

substitution without cause must be "timely exercise[d]."  735

ILCS 5/2-1001(a)(2) (West 2000).  A party timely exercises his

right if his motion "is presented before trial or hearing begins

and before the judge to whom it is presented has ruled on any

substantial issue in the case."  735 ILCS 5/2-1001(a)(2)(ii)

(West 2000); Roach, 245 Ill. App. 3d at 747, 615 N.E.2d at 33.  Respondent's motion was timely filed because it was made by

motion, before the hearing and before the judge had ruled on any

substantial issue in the case.  

		Therefore, respondent had an absolute right to a

substitution of judge.  It was an abuse of discretion for the

trial court to deny the motion, and we reverse the order denying

the motion.  The trial court's error in denying the motion for

substitution of judge tainted the subsequent rulings granting the

plenary order of protection and ordering respondent to reimburse

the county for petitioner's appointed counsel's fees, and we are

also required to reverse those orders.  Sarah Bush Lincoln Health Center v. Berlin, 268 Ill. App. 3d 184, 190, 643 N.E.2d 276, 281 (1994).  

B. Appointment of the Domestic Violence Attorney

		Respondent next argues that the trial court did not

have authority to appoint counsel for petitioner in this proceed

ing under the Illinois Domestic Violence Act.  750 ILCS 60/101

through 401 (West 2000).  We disagree.  Trial courts are in fact encouraged to appoint counsel to the indigent in "domestic relations matters."  See 705 ILCS 130/1 through 30 (West 2000)

(Domestic Relations Legal Funding Act).  Lawsuits involving

orders of protection are a "domestic relations matter" under the

Domestic Relations Legal Funding Act.  705 ILCS 130/10 (West

2000).  The legislature has found that "providing legal represen

tation to the indigent party in domestic relations cases has a

great potential for efficiently reducing the volume of matters

which burden the court system in this sState."  705 ILCS 130/5

(West 2000).  Therefore, we find that the trial court had author

ity to appoint counsel to petitioner in this domestic relations

matter.

III. CONCLUSION

		We reverse the order of the trial court denying respon

dent's motion for substitution of judge.  We reverse the orders

granting the plenary order of protection and requiring respondent

to reimburse the county for petitioner's appointed domestic

violence attorney fees.  We affirm the order appointing the

domestic violence attorney to petitioner.  We remand the case and

extend the emergency order of protection for the appointment of a

new judge and a new hearing on the motion for plenary order of

protection.          

		Affirmed in part and reversed in part; cause remanded

with directions.

		MYERSCOUGH and STEIGMANN, JJ., concur.