                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                   In re Marriage of Maurice B.H., 2012 IL App (1st) 121105




Appellate Court            In re MARRIAGE OF MAURICE B.H., Petitioner-Appellee, and
Caption                    GATANYA A.A., Respondent-Appellant.



District & No.             First District, Third Division
                           Docket No. 1-12-1105


Filed                      October 3, 2012


Held                       The award of partial summary judgment for petitioner on his petition
(Note: This syllabus       seeking a modification of the judgment dissolving the parties’ marriage
constitutes no part of     by awarding him sole custody was reversed and the cause was remanded
the opinion of the court   for further proceedings, since the order was based on facts deemed
but has been prepared      admitted by respondent pursuant to Supreme Court Rule 216, the trial
by the Reporter of         judge clearly did not consider the totality of the circumstances, she
Decisions for the          believed triable issues of fact existed, and she ordered a trial to determine
convenience of the         whether petitioner should be awarded custody.
reader.)


Decision Under             Appeal from the Circuit Court of Cook County, No. 09-D-5030; the Hon.
Review                     Veronica B. Mathein, Judge, presiding.



Judgment                   Reversed and remanded.
Counsel on                 Holt Law Group, LLC, of Studio City, California (Geraldine W. Holt, of
Appeal                     counsel), for appellant.

                           Holman Counsel, P.C., of Wheaton (Maurice B. Holman, of counsel), for
                           appellee.

                           Law Offices of Vickie L. Pasley, Ltd., of Chicago (Vickie L. Pasley, of
                           counsel), child representative.


Panel                      JUSTICE STEELE delivered the judgment of the court, with opinion.
                           Presiding Justice Salone and Justice Neville concurred in the judgment
                           and opinion.



                                             OPINION

¶1          Respondent, Gatanya A.A., appeals from an order of the circuit court of Cook County
        granting partial summary judgment and awarding sole custody of their child to petitioner,
        Maurice B.H. On appeal, Gatanya contends the trial court erred by: (1) relying on subjective
        facts admitted by her failure to respond to Maurice’s request to admit facts; (2) failing to
        consider the current circumstances of the child; and (3) failing to wait for the child
        representative to complete her investigation before ruling on the motion. For the following
        reasons, we reverse and remand the case for further proceedings.

¶2                                          BACKGROUND
¶3           The record on appeal discloses the following facts. On March 29, 2006, the circuit court
        of Champaign County entered a judgment for dissolution of marriage incorporating the
        parties’ settlement agreement. The judgment granted Gatanya sole custody of the parties’
        only child, M.H., who was born on January 9, 2004.
¶4           On May 29, 2009, Maurice filed petitions to enroll a foreign judgment, modify custody,
        and for specific visitation in the circuit court of Cook County. On October 26, 2009, Maurice
        filed an amended petition to modify custody. Maurice seeks sole custody of the parties’ child.
        Gatanya ultimately filed an answer to the custody petition on June 24, 2010.
¶5           On September 24, 2009, Maurice served Gatanya with custody interrogatories and a
        notice to produce documents, pursuant to Illinois Supreme Court Rule 214 (eff. Jan. 1, 1996).
        On November 25, 2009, Maurice served Gatanya with a request to admit facts pursuant to
        Illinois Supreme Court Rule 216 (eff. May 30, 2008). Maurice’s request to admit facts
        encompassed 350 items. Some of these items were specific, e.g., Gatanya “has allowed the
        smoking of illegal drugs in the child’s bedroom” and has told M.H. that she “cannot play

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       with other children that reside in her current residential building.” Other items were more
       general, e.g., Maurice “is able to provide a more stable, loving home environment in which
       to raise the child,” Gatanya is “unable to provide a stable living environment for the child,”
       “has consistently showed a lack of interest in the child,” “is currently experiencing emotional
       difficulties,” has stalked Maurice’s fiancée, “has centered her life around impulsively serving
       her own needs above those of the child,” as well as asserting the “neighborhoods and areas
       in which [Gatanya] has chosen to reside, particularly during the past three years, are
       commonly known to be dangerous areas.”
¶6         On or about December 14, 2009, Gatanya responded by filing a motion for a protective
       order, supervised discovery and interim attorney fees. Gatanya alleged in part that Maurice’s
       request to admit facts sought admissions to facts largely outside her personal knowledge.
       Gatanya also alleged that the request to admit facts was abusive and designed to increase her
       attorney fees. On December 15, 2009, the circuit court entered an order staying discovery
       pending resolution of Gatanya’s motion. On July 23, 2010, the parties entered into an agreed
       order lifting the stay and providing each party 28 days to answer any pending discovery
       requests.
¶7         On May 24, 2010, the circuit court appointed a child representative for M.H.
¶8         On November 2, 2010, Maurice filed a motion to deem his request to admit facts
       admitted. On November 5, 2010, Maurice filed a motion to compel Gatanya to comply with
       the remaining discovery requests. On December 13, 2010, Gatanya filed her responses to
       these motions. However, following a hearing later that day, the circuit court granted the
       motion to compel and the motion to deem the request to admit facts admitted as to all 350
       items in the original request.
¶9         On March 11, 2011, Maurice filed his motion for summary judgment on the custody
       petition, relying on the facts deemed admitted by Gatanya. On April 13, 3011, the child
       representative filed a motion seeking an extension of time to respond to Maurice’s motion
       for summary judgment. The parties do not identify any written response from the child
       representative in the record. On April 14, 2011, after obtaining new counsel, Gatanya filed
       an emergency motion to vacate a portion of the December 13, 2010, order regarding the
       admission of facts or, in the alternative, for leave to file a response to Maurice’s original
       request to admit facts. Maurice responded with a motion to strike and dismiss or, in the
       alternative, respond to the emergency motion.
¶ 10       On November 7, 2011, Gatanya filed her response in opposition to the motion for
       summary judgment. On November 22, 2011, following a hearing, the circuit court entered
       an order denying Gatanya’s emergency motion. On February 12, 2012, Gatanya filed an
       amended response in opposition to the motion for summary judgment.
¶ 11       On March 16, 2012, the circuit court held a hearing on Maurice’s motion for summary
       judgment on his custody petition. Maurice argued that Gatanya’s admissions on issues
       regarding his fitness to have custody of M.H. and Gatanya’s failure to provide a stable
       environment eliminated any genuine issue of material fact for trial. Gatanya argued that
       Maurice’s motion focused exclusively on M.H.’s best interests, but failed to address the issue
       of whether there had been the substantial change in circumstances required by law to modify


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       custody. The child representative argued that the request to admit facts presented facts as of
       November 2009, and the court needed to evaluate all of the circumstances regarding M.H.’s
       best interests, rather than rely solely on the facts deemed admitted by Gatanya.
¶ 12        At the conclusion of the hearing, the trial judge stated that Maurice had shown a
       substantial change in circumstances as of November 25, 2009, based on the admitted facts,
       including ultimate facts on issues such as Gatanya’s desire and ability to care for M.H. The
       trial judge also stated that Maurice had shown it was in M.H.’s best interests to be in
       Maurice’s custody as of that date. However, the trial judge further stated that the child
       representative’s argument that much had happened since that date was well-taken. The trial
       judge added, “I just don’t feel comfortable because I don’t know what’s transpired since you
       filed or when the case would be tried.” Moreover, the trial judge observed that she did not
       think there was case law regarding this type of child custody situation. The trial judge stated,
       “I think that we need to have a trial on the issue since then.”
¶ 13        Accordingly, the trial judge entered an order on March 16, 2012, granting partial
       summary judgment to Maurice, based on the admitted facts. As stated in the order, the trial
       judge specifically found that as of November 25, 2009, a change in circumstances occurred
       and that a modification of custody to Maurice was necessary to serve M.H.’s best interest.
       The order also states that the court considered the factors listed in section 602 of the Illinois
       Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/602 (West 2010)) in
       concluding that no question of material fact existed. The order further specifies that the
       request to admit facts only applies to the facts and circumstances of the case as of November
       25, 2009.
¶ 14        Moreover, the order directs that although custody is granted to Maurice as of November
       25, 2009, Gatanya would retain possession of M.H. without prejudice until a trial, which was
       scheduled for August 6-9 and August 13-16, 2012. At this trial, the statutory burden of proof
       would shift to Gatanya to regain custody of M.H. Accordingly, Gatanya was granted leave
       to file a petition to modify custody within 14 days, with Maurice being given 14 days to
       respond thereafter.
¶ 15        On April 10, 2012, Gatanya filed a timely notice of appeal to this court.

¶ 16                                        DISCUSSION
¶ 17       On appeal, Gatanya contends the trial judge erred in entering partial summary judgment
       on Maurice’s petition to modify custody of M.H. Summary judgment is appropriate when
       “the pleadings, depositions, and admissions on file, together with the affidavits, if any, show
       that there is no genuine issue as to any material fact and that the moving party is entitled to
       a judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West 2010). The purpose of summary
       judgment is not to try a question of fact, but to determine whether a genuine issue of triable
       fact exists. Adams v. Northern Illinois Gas Co., 211 Ill. 2d 32, 42-43 (2004). In determining
       whether a question of fact exists, “a court must construe the pleadings, depositions,
       admissions, and affidavits strictly against the movant and liberally in favor of the opponent.”
       Williams v. Manchester, 228 Ill. 2d 404, 417 (2008). Summary judgment is “a drastic means
       of disposing of litigation” and thus should only be awarded when the moving party’s right

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       to judgment as a matter of law is “clear and free from doubt.” Id. We review grants of
       summary judgment de novo. Id.
¶ 18        Gatanya contends the trial court erred by: (1) relying on subjective facts contained in the
       request to admit facts; (2) failing to consider the current circumstances of M.H.; and (3)
       failing to wait for the child representative to complete her investigation before ruling on the
       motion. We turn to address Gatanya’s second argument, which is determinative in this
       appeal.
¶ 19        Maurice petitioned for sole custody of M.H. pursuant to section 610 of the Act. 750 ILCS
       5/610 (West 2010). If, as in this case, the modification is sought more than two years after
       the entry of the original custodial award, the Act requires the petitioner to prove by clear and
       convincing evidence that (i) a change has occurred in the circumstances of either the child
       or both parties having custody, and (ii) that the modification is necessary to serve the best
       interest of the child. 750 ILCS 5/610(b) (West 2010). When deciding whether to modify
       child custody, the trial court must look at the totality of the circumstances. See In re
       Marriage of Davis, 341 Ill. App. 3d 356, 359 (2003); In re Marriage of Nolte, 241 Ill. App.
       3d 320, 328 (1993). Moreover, “ ‘[a] trial judge must make a permanent decision based on
       the evidence presented and cannot continue temporary custody from time to time either to
       avoid making a difficult decision or to avoid the requirements of section 610.’ ” In re
       Marriage of Valliere, 275 Ill. App. 3d 1095, 1101-02 (1995) (quoting In re Marriage of
       Cesaretti, 203 Ill. App. 3d 347, 354 (1990)).
¶ 20        In this case, the order appealed from and the transcript of proceedings for the hearing on
       the motion clearly show that the trial judge did not consider the totality of the circumstances.1
       Indeed, the judge admitted that she did not know what had transpired since the request to
       admit facts was filed and ordered a trial to determine whether custody of M.H. should be
       transferred to Maurice in fact. The purpose of summary judgment proceedings is to
       determine whether a genuine issue of triable fact exists. Adams, 211 Ill. 2d at 42-43. The
       record shows that the trial judge not only believed triable issues of fact existed, but she
       ordered a trial to determine whether physical custody of the child should be transferred to
       Maurice in fact. Summary judgment should only be awarded when the moving party’s right
       to judgment is “clear and free from doubt.” Williams, 228 Ill. 2d at 417. Here, the record
       indicates that trial judge obviously harbored doubt. The resulting order, which granted partial
       summary judgment, while leaving M.H. in the temporary physical custody of Gatanya and
       ordering a new trial on a petition not yet filed (with the resulting shift in the burden of proof),
       is in the nature of the orders condemned in cases like Valliere and Cesaretti. Valliere, 275
       Ill. App. 3d at 1101-02; Cesaretti, 203 Ill. App. 3d at 354. While recognizing the unusual
       procedural posture of the case, we conclude that the circuit court erred in entering a
       retroactive partial summary judgment on the custody of the child and shifting the burden of
       proof to Gatanya to regain custody in a future trial.


               1
                Maurice asserts that the trial judge was aware of the child’s current circumstances, based
       on orders entered after 2009. However, the transcript of proceedings clearly shows the trial judge
       did not consider these orders or did not consider them sufficient on the issue.

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¶ 21      Given this conclusion, we need not address Gatanya’s other contentions at this time.

¶ 22                                      CONCLUSION
¶ 23        In short, we conclude that the circuit court erred in entering partial summary judgment
       on the custody of M.H., because the record shows that the trial judge failed to consider the
       child’s current circumstances, harbored doubt regarding those circumstances and believed
       a trial regarding those circumstances was necessary. For all of the aforementioned reasons,
       the judgment of the circuit court of Cook County is reversed, and the case is remanded for
       further proceedings consistent with this opinion.

¶ 24      Reversed and remanded.




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