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                                   Appellate Court                        Date: 2019.08.12
                                                                          13:43:45 -05'00'



                  In re Marriage of Morgan, 2019 IL App (3d) 180560



Appellate Court        In re MARRIAGE OF GERI T. MORGAN, n/k/a Geri T. Fox,
Caption                Petitioner-Appellee, and MICHAEL S. MORGAN, Respondent-
                       Appellant.



District & No.         Third District
                       Docket No. 3-18-0560



Filed                  May 29, 2019



Decision Under         Appeal from the Circuit Court of Will County, No. 14-D-2051; the
Review                 Hon. Elizabeth D. Hoskins Dow, Judge, presiding.



Judgment               Appeal dismissed.


Counsel on             Joseph R. Mazzone, of Joliet, for appellant.
Appeal
                       No brief filed for appellee.



Panel                  PRESIDING JUSTICE SCHMIDT delivered the judgment of the
                       court, with opinion.
                       Justices Carter and McDade concurred in the judgment and opinion.
                                             OPINION

¶1       Respondent-Appellant, Michael Morgan, filed a motion for substitution of Judge David
     Garcia for cause pursuant to section 2-1001(a)(3) of the Code of Civil Procedure (735 ILCS
     5/2-1001(a)(3) (West 2016)). Judge Elizabeth D. Hoskins Dow heard arguments on Michael’s
     motion. She denied Michael’s motion in a written order, stating the “ruling is appealable
     pursuant to Supreme Court Rule 304 and other applicable rules.” Michael appeals, claiming
     appellate jurisdiction under Illinois Supreme Court Rule 304 (eff. Mar. 8, 2016). We dismiss
     the appeal for a lack of jurisdiction.

¶2                                         BACKGROUND
¶3       This is the second appeal in this matter. See In re Marriage of Morgan, 2018 IL App (3d)
     170021-U. As such, we only provide a limited background in this case as the only issue on
     appeal pertains to removal of a judge for cause. See 735 ILCS 5/2-1001(a)(3) (West 2016).
¶4       The parties married in February 1995. On December 9, 2014, appellee, Geri T. Morgan,
     now known as Geri T. Fox, filed a petition for dissolution of marriage. The parties had three
     children and entered into an agreed allocation judgment in May 2015. On November 20, 2015,
     the court entered a judgment for dissolution of marriage.
¶5       On June 20, 2018, a hearing was held before Judge Garcia regarding numerous pending
     motions; specifically, a motion for an in camera interview of the parties’ 17-year-old daughter
     and a motion for modification of allocation judgment. The court ordered the parties to
     mediation during the hearing. The exchange complained of on appeal followed.
                 “THE COURT: And I was looking at the judgment, and the—the judgment this
            morning, and this was by agreement, right, the allocation judgment?
                 MS. BURKHEAD [(APPELLEE’S COUNSEL)]: Yes.
                 THE COURT: Yeah. So[,] I don’t see any reason why we would change it if it was
            by agreement. I mean, you’re pursuing justice—they weren’t pursuing justice when
            you put in this judgment?
                 MR. MAZZONE [(APPELLANT’S COUNSEL)]: Judge, when the judgment was
            put in, the parties hadn’t [sic] much experience exchanging visitation and it’s been
            difficult now. You know, part of that judgment gives her the right to have the final say.
                 THE COURT: Okay. Which most judgments do.
                 ***
                 THE COURT: Well, have mediation and we’ll go on from there.
                 MR. MAZZONE: All right, Judge. I think you want to listen to this stuff.
                 THE COURT: Oh, I will listen to it.
                 MR. MAZZONE: But if you are telling me you are not going to change it, then I
            am not sure—do I have to talk louder?
                 THE COURT: Well, I tend not to change agreements by couples because it’s
            inconvenient to one of the couples the way they agreed to.
                 MR. MAZZONE: Okay. But the agreement was May of 2015, Judge. It’s 2018
            now. There is a lot of things that have happened between these parties since then that
            you should take notice of.

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                   THE COURT: Neither have grown up yet. That’s what’s happened. Not the kids.
                   MR. MAZZONE: That could very well be.
                   THE COURT: The kids are growing up, but the couples aren’t. So[,] let’s go to
               mediation and see where it goes.
                   MR. MAZZONE: All right. We’ll do that, and then we’ll come back here and figure
               out all the rest of these motions. We will not be able to resolve all these strikings [sic]
               and dismissals and things like that.
                   THE COURT: They can argue this judgment that’s already in place and spend the
               rest of their money that they have left doing it. You know, people do that in here, so I
               am not going to stop them. So go ahead. Set it for mediation.
                   MR. MAZZONE: All right, Judge. We will do that.”
¶6         Michael filed a motion to substitute Judge Garcia for cause. Judge Dow heard arguments
       on the motion. Mr. Mazzone argued that the statements made by Judge Garcia constituted
       actual prejudice. Judge Dow reviewed the matter in light of In re Marriage of O’Brien, 2011
       IL 109039, and found no actual prejudice. She also found that Judge Garcia had not reached
       the merits of Michael’s motion during the hearing. She stated in open court that Mr. Mazzone
       was more than welcome to have “308(a) language” in the order showing his right to appeal.
       The written order denying the motion stated, “this ruling is appealable pursuant to Supreme
       Court Rule 304 and other applicable rules.” Michael appeals. Appellee did not file a brief.

¶7                                                ANALYSIS
¶8         On appeal, Michael argues the comment by Judge Garcia that he “tend[s]” to keep mutually
       agreed upon allocation judgments in place if “it only inconveniences one party” shows actual
       prejudice. Additionally, he argues that Judge Garcia’s comments were based on an
       extrajudicial source and therefore were prejudicial.
¶9         Before we address the merits of Michael’s appeal, we must first determine whether this
       court has jurisdiction. Dus v. Provena St. Mary’s Hospital, 2012 IL App (3d) 091064, ¶ 9. “A
       reviewing court must ascertain its jurisdiction before proceeding in a cause of action, and this
       duty exists regardless of whether either party has raised the issue.” Inland Commercial
       Property Management, Inc. v. HOB I Holding Corp., 2015 IL App (1st) 141051, ¶ 17. Our
       jurisdiction is limited to review of appeals from final judgments unless otherwise permitted
       under Illinois Supreme Court rules or by statute. Id. (citing In re Marriage of Verdung, 126 Ill.
       2d 542, 553 (1989)).
¶ 10       Michael contends we have jurisdiction over this appeal pursuant to Illinois Supreme Court
       Rule 304(a) (eff. Mar. 8, 2016). He also argues that “Judge Dow stated in open court her order
       was appealable pursuant to Illinois Supreme Court Rule 304(a).”
¶ 11       Illinois Supreme Court Rule 304(a) (eff. Mar. 8, 2016) provides, in pertinent part:
                “If multiple parties or multiple claims for relief are involved in an action, an appeal
                may be taken from a final judgment as to one or more but fewer than all of the parties
                or claims only if the trial court has made an express written finding that there is no just
                reason for delaying either enforcement or appeal or both.” (Emphases added.)
¶ 12       Judge Dow did not include the language “there is no just reason for delaying enforcement
       or appeal or both” in the order, nor was it clear she intended to invoke Rule 304(a) from the
       record. Case law concerned with requisite Rule 304(a) findings allow for the invocation of the

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       rule if it is clear from the record it was the trial court’s intent. See In re Application of the
       Du Page County Collector, 152 Ill. 2d 545, 549-50 (1992). However, Judge Dow stated on the
       record that the ruling was appealable pursuant to Rule 308(a), not Rule 304(a). Further, the
       written finding that the ruling was “appealable pursuant to Supreme Court Rule 304 and other
       applicable rules” was not an express written finding in accordance with Rule 304(a). In
       Lawyers Title Insurance Corp. v. Kneller, 172 Ill. App. 3d 210 (1988), a panel of this court
       found an order conferred appellate court jurisdiction when it stated, “ ‘pursuant to Supreme
       Court Rule, being section 304(a) ***, there is no just cause for delaying an appeal from the
       order entered herein on June 4, 1987.’ ” Id. at 212-13. The court reasoned a finding there was
       no just reason for delaying “enforcement or appeal” and specific citation to the rule itself in
       the order constructively fulfilled the technical language requirement and conferred jurisdiction.
       (Emphasis added.) Id. The majority relied on the premise that “rules governing civil procedure
       are to be liberally construed so long as the substantive rights of all parties are protected.” Id.
       at 213. Justice Tobias Barry dissented asserting, “[t]he language of Rule 304(a) is mandatory
       and precise, not directory or generic—its purpose, salutary, not cavalier. The rule is not unduly
       burdensome. Accordingly, the rule should be, and until today has been, applied strictly.” Id. at
       217 (Barry, J., dissenting); see also Hopkins v. Illinois Masonic Medical Center, 211 Ill. App.
       3d 652, 655 (1991) (agreeing with Justice Barry and dismissing an appeal for lack of
       compliance with Rule 304(a)). Illinois Supreme Court Rule 304(a) was subsequently amended
       to reflect that trial courts do not have to reference both appealability and enforceability; courts
       need only reference one, the other, or both to invoke the rule. See Ill. S. Ct. R. 304(a),
       Commentary (Dec. 17, 1993); see also In re Application of the Du Page County Collector, 152
       Ill. 2d 545.
¶ 13        While the jurisdictional issue in Kneller rested on the absence of the term “enforceability”
       in the order, we believe Justice Barry’s underlying logic aptly applies to the present case. Rule
       304(a) is not unduly burdensome, and simply mentioning appealability while vaguely
       referencing Rule 304 “and other applicable rules” does not confer appellate jurisdiction. See
       Department of Healthcare & Family Services v. Cortez, 2012 IL App (2d) 120502, ¶ 8 (order
       that stated certain provisions were “hereby appealable” without reference to Rule 304(a) or
       language tracking the rule did not confer appellate jurisdiction); see also Palmolive Tower
       Condominiums, LLC v. Simon, 409 Ill. App. 3d 539, 544 (2011) (“A circuit court’s declaration
       that an order is ‘final and appealable,’ without reference to the justness of delay, or even
       reference to immediate appealability, evinces no application of the discretion Rule 304(a)
       contemplates.”). The order in this matter refers to appealability but unlike Kneller does not cite
       the rule with specificity or reference justness of delay. The order goes on to give Michael carte
       blanche to employ any other supposedly applicable rules that may bestow appellate
       jurisdiction. We decline to find this constitutes a sufficient express written finding to invoke
       Rule 304(a).
¶ 14        Furthermore, even assuming the written finding was sufficient, it is well-settled law that
       the inclusion of Rule 304(a) language in a nonfinal order does not make the order appealable
       under supreme court rules. Inland, 2015 IL App (1st) 141051, ¶ 23. The denial of a motion for
       substitution of judge for cause is an interlocutory order and is not final for purposes of appeal.
       Id. ¶ 19 (citing In re Marriage of Nettleton, 348 Ill. App. 3d 961, 969 (2004)). The September
       10, 2018, order denying a substitution of judge would not have been a final order simply
       because 304(a) language was included. See id. ¶ 24. Consequently, the denial of a motion for


                                                    -4-
       substitution of judge for cause is an interlocutory order, is not final for purposes of appeal, and
       cannot be converted into a final order by the mere inclusion of Rule 304(a) language.

¶ 15                                       CONCLUSION
¶ 16      For the foregoing reasons, we dismiss the appeal for lack of jurisdiction.

¶ 17      Appeal dismissed.




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