                                                                      SECOND DIVISION
                                                                      November 10, 2008




No. 1-08-1563


IN RE MARRIAGE OF:                                        )    Appeal from the
                                                          )    Circuit Court of
(FRANCESCA SURIANO,                                       )    Cook County
                                                          )
                     Petitioner-Appellee,                 )
                                                          )
                                                          )
v.                                                        )    No. 97 D 13507
                                                          )
                                                          ))
THEODORE LAFEBER, III,                                    ))   Honorable Jeanne
                                                               Cleveland Bernstein,
                     Respondent-Appellant).                    Judge Presiding.




       PRESIDING JUSTICE KARNEZIS delivered the opinion of the court:

       Respondent Theodore Lafeber III, appeals from an order of the circuit court in

favor of petitioner Francesca Suriano that terminated the parties' joint parenting

agreement and placed custody of the parties' children with petitioner. On appeal,

respondent contends that: (1) the court lacked jurisdiction to sua sponte terminate the

parties' joint custody agreement without a pleading requesting such relief; (2) the court's

order violated respondent's due process rights; (3) the court's order failed to comply
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with the requirements of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS

5/610(b) (West 2000)) (Act); and (4) the matter should be assigned to a new judge for

any further proceedings. For the foregoing reasons, we vacate the court's order and

remand the cause for further proceedings.

       Two children were born during the parties' marriage; one in 1993 and another in

1995. The parties entered into a joint parenting agreement on April 17, 1998, and an

agreed order on September 8, 2006. Pursuant to the joint parenting agreement, the

parties agreed to joint custody of the children with the children's primary residence to be

with petitioner. Paragraph I(J) of the agreed order provided in part that "neither party

shall make any unilateral decision regarding the health, education, religious training,

activities or welfare of either of the minor children."

       On March 1, 2007, respondent filed his fifth petition for rule to show cause to

hold petitioner in contempt for violating paragraph I(J) of the agreed order. The petition

contained numerous allegations that petitioner made health care and other decisions

regarding the children without consulting respondent. The allegations concerned

petitioner taking one of the children to a dermatologist, taking the children to their dental

appointments, giving the children vitamin supplements, obtaining contact lenses for one

of the children and enrolling the children in an art class. Respondent's prayer for relief

contained 10 separate paragraphs, which, in essence, requested that the joint

parenting agreement be amended to provide that petitioner cannot make any unilateral

decisions regarding the children's care and activities and that respondent receive


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1-08-1563


sufficient notice of any upcoming decisions regarding the children's care and activities.

       The court held a hearing on the petition, where the only witnesses that testified

were petitioner and respondent. The court issued its decision on May 20, 2008, finding

that there was no basis for granting the rule to show cause. However, the court further

stated that it would not amend the joint parenting agreement because it was "going to

terminate it sua sponte," and then it awarded custody of the children to petitioner. The

court noted that the parties were unable to cooperate and that "there should never ever

have been joint parenting." When counsel for respondent objected, the court

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 mouths indicated that there should

have never been joint parenting. And I have the right to do it in the best interest of the

children." The court further stated that if respondent wanted to have a custody hearing,

it would schedule a hearing for a future date.

       Respondent now appeals from the court's order. The issue in this case is

whether the circuit court lacked jurisdiction to enter the order terminating the parties'

joint parenting agreement and awarding custody of the children to petitioner.

       With limited exceptions, circuit courts have "'original jurisdiction of all justiciable

matters.'" Ligon v. Williams, 264 Ill. App. 3d 701, 707 (1994), quoting Ill. Const. 1970,

art. VI, §9. The court's authority to exercise its jurisdiction and resolve a justiciable

question is invoked through the filing of a complaint or petition, pleadings that function

to frame the issues for the trial court and circumscribe the relief the court is empowered


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to order. Ligon, 264 Ill. App. 3d at 707. A party cannot be granted relief in the absence

of corresponding pleadings; if a justiciable issue is not presented to the court through

proper pleadings, the court cannot sua sponte adjudicate an issue. Ligon, 264 Ill. App.

3d at 707. Orders that are entered in the absence of a justiciable question properly

presented to the court by the parties are void since they result from court action

exceeding its jurisdiction. Ligon, 264 Ill. App. 3d at 707.

       We find In re Marriage of Fox, 191 Ill. App. 3d 514 (1989), instructive. In Fox,

the respondent filed a petition for rule to show cause why the petitioner should be held

in contempt for interfering with his visitation rights. After a hearing on the petition, the

trial court found that the petitioner had repeatedly interfered with the respondent's

visitation with his children and a modification of the custody order was necessary for the

best interests of the children. This court determined on appeal that the trial court's

order was void because the trial court's jurisdiction to determine custody was not

properly invoked. Fox, 191 Ill. App. 3d at 521-22. This court stated that the justiciable

matter before the trial court was an alleged violation of the visitation provisions of the

judgment of dissolution, not child custody. Fox, 191 Ill. App. 3d at 521. This court also

found that the trial court's order violated section 601(b) of the Act because no petition

initiating a child custody proceeding was filed as required by section 601(b) and the

petitioner was not notified as required by section 601(c) of the Act that the hearing on

the contempt petition would involve custody issues. Fox, 191 Ill. App. 3d at 521.

Additionally, this court stated that there was neither evidence presented nor findings


                                              4
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stated by the trial court regarding the best interests of the children as required by

section 610(b) of the Act. Fox, 191 Ill. App. 3d at 521.

       Here, the only pleading before the court was respondent's fifth rule to show

cause to hold petitioner in contempt for violating paragraph I(J) of the agreed order. As

in Fox, the justiciable matter before the court was an alleged violation of the provisions

of the agreed order and not a child custody determination. The circuit court had no

jurisdiction to sua sponte terminate the joint parenting agreement. The court's May 20,

2008, order is void.

       Moreover, the court's order violated sections 601(b) and (c) of the Act, which

require a child custody proceeding to be commenced by filing a petition for custody and

giving notice to the child's parents. See 750 ILCS 5/601(b), (c) (West 2006). The order

also violated section 610 of the Act which provides that a court can terminate joint

custody and make any modification that is in the child's best interest if it 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 court merely stated that it was

terminating the joint parenting agreement because it was "in the best interest 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 found on appeal that the trial court

exceeded its jurisdiction when it modified custody when no pleading had been filed

requesting such relief. Ayala, 344 Ill. App. 3d at 585. This court further found that the


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1-08-1563


order violated the mother's due process rights because she had no notice that custody

would be considered or decided at the hearing. Ayala, 344 Ill. App. 3d at 587. The only

matters before the court on the date of the hearing related to visitation issues and the

mother's failure to respond to pleadings.

       We also find that the court's order violated respondent's due process rights. Due

process of law requires that a party be accorded notice and an opportunity to be heard.

Ayala, 344 Ill. App. 3d at 586. Parties who have properly appeared in an action are

entitled to notice of any impending motions or hearings. Ayala, 344 Ill. App. 3d at 586.

Respondent did not receive notice that the circuit court might consider or determine

child custody at the conclusion of the hearing on his petition for rule to show cause. As

in Ayala, the only matters before the court related to respondent's allegations that

petitioner was making unilateral decisions regarding the children's care and activities.

In the prayer for relief, respondent requested that the joint parenting agreement be

amended such that petitioner could not make any unilateral decisions regarding the

children's care and activities and that respondent receive sufficient notice of any

upcoming decisions regarding the children's care and activities. We cannot construe

this request to amend the joint parenting agreement as a request to modify custody or

terminate the joint parenting agreement. Therefore, the court's order also violated

respondent's due process rights.

       Respondent additionally maintains that if this cause is remanded to the circuit

court for further proceedings, it should be reassigned to a different judge. Respondent


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contends that the judge's comments indicated that the judge had already "prejudged"

the issue of joint custody, which was unfair to respondent.

       Pursuant to Supreme Court Rule 366(a)(5) (155 Ill. 2d R. 366(a)(5)), this court

has the authority to reassign a matter to a new judge on remand. However, a trial judge

is presumed to be impartial, and the burden of overcoming this presumption rests on

the party making the charge of prejudice. Eychaner v. Gross, 202 Ill. 2d 228, 280

(2002). The party making the charge of prejudice must present evidence of prejudicial

trial conduct and evidence of the judge's personal bias. Eychaner, 202 Ill. 2d at 280.

Allegedly erroneous findings and rulings by the trial court are insufficient reasons to

establish that the court has a personal bias for or against a litigant. Eychaner, 202 Ill.

2d at 280.

       Here, we decline respondent's request for a different trial judge. Respondent's

allegations do not overcome the presumption of impartiality. The judge's determination

to terminate joint custody, albeit erroneous, did not evidence any bias toward

respondent. The judge informed respondent that if respondent wanted to have a

custody hearing, the court would set the matter for a hearing on a future date. The

judge did not state that she was predisposed toward a certain outcome. The judge's

comments perhaps evidenced her frustration with the parties' inability to cooperate;

however, they did not evidence any bias toward respondent.

       Accordingly, we vacate the circuit court's May 20, 2008, order terminating the

joint parenting agreement and awarding custody of the children to petitioner. We


                                             7
1-08-1563


remand the cause for further proceedings consistent with this opinion.

      Order vacated; cause remanded.

      QUINN and CUNNINGHAM, JJ., concur.




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1-08-1563


            REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT




IN RE MARRIAGE OF:                                       )     Appeal from the
                                                         )     Circuit Court of
(FRANCESCA SURIANO,                                      )     Cook County
                                                         )
                    Petitioner-Appellee,                 )
                                                         )
                                                         )
v.                                                       )     No. 97 D 13507
                                                         )
                                                         ))
THEODORE LAFEBER, III,                                   ))    Honorable Jeanne
                                                               Cleveland Bernstein,
                    Respondent-Appellant).                     Judge Presiding.



                                    No. 1-08-1563

                               Appellate Court of Illinois
                             First District, Second Division

                                 November 10, 2008


        PRESIDING JUSTICE KARNEZIS delivered the opinion of the court.

                      QUINN and CUNNINGHAM, JJ., concur.


                    Appeal from the Circuit Court of Cook County.

            The Honorable Jeanne R. Cleveland Bernstein, Judge Presiding.


For RESPONDENT-APPELLANT, Paul J. Bargiel, P.C.


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1-08-1563


For PETITIONER-APPELLEE, Richard A. Wilson, P.C.




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