This article is meant to be a non-exhaustive review of the statutory and case law surrounding a plaintiff’s right to voluntarily dismiss their cause of action in domestic relations cases. For the sake of simplicity, I will present two potential situations the domestic relations attorney may commonly encounter. Both of these situations focus on the plaintiff’s right to dismiss his or her cause of action. I will discuss the law based upon the following hypothetical facts, with the understanding that alternate conclusions may be drawn in different factual situations.
First, imagine you have a divorce client, who, after a recent hearing, was ordered to pay a large sum of temporary support to his spouse during the divorce proceedings. He was also ordered to comply with opposing counsel’s discovery requests after a hearing on a Motion to Compel. He is now having second thoughts about going through with the divorce since he realizes how much he may have to pay his spouse of 22 years in maintenance and child support. He also does not want to disclose certain accounts he holds, in spite of your advising him he has no choice but to disclose said accounts. He wants to know if he can stop the divorce case.
Alternatively, you represent the mother in an on-going parentage proceeding, which was filed 18 months ago. The parties have not reached agreement on any issues, although a temporary order was entered providing for supervised visitation and temporary child support. The father voluntarily signed an affidavit acknowledging paternity before the court, and a one-page order entitled "Paternity Judgment" was entered by agreement of the parties that same day. Now it is two weeks before trial in your paternity case, and the mother wants to dismiss the case. In both of these cases, the opposing party failed to file a counter-petition. Can both of these clients voluntarily non-suit at this point in their cases?
Section 5/2-1009 from our Code of Civil Procedure provides the requirements for a voluntary dismissal. The statute provides as follows:
(a) The plaintiff may, at any time before trial or hearing begins, upon notice to each party who has appeared or each such party’s attorney, and upon payment of costs, dismiss his or her action or any part thereof as to any defendant, without prejudice, by order filed in the cause.
(b) The court may hear and decide a motion that has been filed prior to a motion filed under subsection (a) of this Section when the prior filed motion, if favorably ruled on by the court, could result in a final disposition of the cause.
(c) After trial or hearing begins, the plaintiff may dismiss, only on terms fixed by the court (1) upon filing a stipulation to that effect signed by the Defendant, or (2) on motion specifying the ground for dismissal, which shall be supported by affidavit or other proof.
(d) A dismissal under subsection (a) of this Section does not dismiss a pending counterclaim or third party complaint.1
The Illinois Supreme Court in Morrison v. Wagner2 has further clarified that "[S]ection 2-1009(a) of the Code of Civil Procedure, by its terms, confers on plaintiffs an ‘unfettered right’ to voluntarily dismiss a claim without prejudice, upon proper notice and payment of costs, ‘at any time before trial or hearing begins.’3 This provision, the Court goes on to note, is subject to two qualifications: (1) If a previously filed defense motion could result in a final disposition of the cause of action, the court has the discretion to hear and decide that motion before ruling on the motion for voluntary dismissal. (2) If circumstances of the case are such that dismissal would directly conflict with a specific rule of the Supreme Court, the terms of the rule take precedence over the plaintiff’s right to voluntarily non-suit the case.4 The trial court in Morrison, basing its decision on Supreme Court Rule 219(e), denied the plaintiff’s motion to voluntarily dismiss the case because the court believed the plaintiff sought to avoid compliance with discovery deadlines.5
Supreme Court Rule 219(e) provides as follows:
A party shall not be permitted to avoid compliance with discovery deadlines, orders or applicable rules by voluntarily dismissing a lawsuit. In establishing deadlines and ruling on permissible discovery and testimony, the court shall consider discovery undertaken (or the absence of same), any misconduct, and orders entered in prior litigation involving a party. The court may, in addition to the assessment of costs, require the party voluntarily dismissing a claim to pay an opposing party or parties reasonable expenses incurred in defending the action including but not limited to discovery expenses, expert witness fees, reproduction costs, travel expenses, postage and phone charges.6
The Illinois Appellate Court reversed the trial court’s decision in Morrison, and the Illinois Supreme Court affirmed.7 The Court explained that Rule 219(e) does not limit the right to voluntarily dismiss one’s case, instead it "prevents voluntary dismissals from being used as an artifice for evading discovery requirements through two entirely different mechanisms."8 The first method the rule provides places a heavier financial burden upon such dismissals by allowing the trial court to require the party dismissing the case to pay more than just the opponent’s "costs" as stated in 2-1009. The second method 219(e) provides discourages the abuse of voluntary dismissal by requiring the trial court to consider prior litigation in determining what discovery will be permitted when the plaintiff refiles his case.9
Dismissal in the Divorce Case:
Can your divorce client voluntarily dismiss his case? At first glance, the trial has not commenced. Although there has been a "hearing" on the issue of temporary support and maintenance, this is not a hearing where the court took evidence for the determination on the issues in the underlying action that your client seeks to dismiss—that is, the dissolution petition—and therefore, the temporary hearing has no bearing on his right to dismiss.10 There is no counter-petition on file, and therefore there is no pending pleading or motion that would be dispositive of the case. Under the limited facts presented, it does not appear any Supreme Court rules would directly conflict with your client’s right to non-suit his wife. You will, however, want to advise your client as to what the consequences may be if he chooses to non-suit at this point. Obviously, he will no longer be working towards procuring a divorce, which is what he presumably wanted when he initially filed his petition. He will be forfeiting his filing fee, along with the attorney’s fees or other costs he has incurred to this point. Further, section 2-1009 requires the non-suiting party to pay the other party’s "costs,"11 so he will have to tender payment to his wife for her Appearance fee. The statute does not specifically define costs, but case law has limited recoverable costs. The Illinois Supreme Court has stated deposition expenses are not automatically recoverable and that litigants in Illinois must each bear their own litigation and trial-preparation expenses.12 Further, the Appellate courts have refused to require a party to reimburse a spouse for previously paid interim attorneys’ fees, accountant fees, or the attorneys’ fees paid by the other party.13 "Allowance and recovery of costs is entirely dependent on statutory authorization, and only those items designated by statute to be allowable may be taxed as costs."14 One appellate court went so far as to state, "we do not believe that a plain reading of section 2-1009…gives the circuit court the power to award attorneys fees…."15
If the trial court determines that your client is non-suiting in order to avoid discovery requirements, the court has the discretion to require your client to pay additional expenses under 219(e). Be aware that there must be a finding that your client engaged in discovery misconduct prior to the court imposing any 219(e) expenses, so request a hearing prior to accepting the court’s order of payment for 219(e) expenses.16 The Appellate Court of the 1st District in Scattered Corp. v. Midwest Clearing Corp.17 held that the trial court must make a finding of misconduct analogous to "unreasonable noncompliance" before imposing such expenses against the party who dismisses their suit. The Appellate Court reversed the trial court for the imposition of 219(e) expenses because the trial court had not found that the dismissal was for the purposes of avoiding unreasonable noncompliance with any discovery deadline, order or rule. Finally, the payment of the defendant’s attorneys’ fees is not mentioned as a consequence or condition of the Rule, so do not accept an order requiring your client to pay his wife’s attorney’s fees without it being over your objection.
Dismissing the Paternity Action:
The mother in your paternity case no longer wishes to proceed to trial. There is enough time to provide proper notice to the opposing party of your Motion for Voluntary Dismissal. There have been no discovery issues in the case, and your client is prepared to tender the cost of the Father’s Appearance fee at the hearing on her motion. At hearing on the motion, the Judge denies the dismissal. On what basis? A Judge can refuse to dismiss a case on a Motion for Voluntary Dismissal if it directly conflicts with any Supreme Court rule.18 The only obvious rule that may be an issue is Supreme Court Rule 922 which asserts that "all child custody proceedings…shall be resolved within 18 months from the date of service of the petition or complaint to final order."19 Your parentage case was filed 18 months ago, so it behooves you to look at the affidavit of service to determine whether the 18 months have passed. If so, the court could decide that the case must be heard to resolve the custody matter in light of the rule. On the other hand, an argument could be made to the court that if the case is dismissed, child custody is resolved because there will no longer be a proceeding pending before the court.
What about the paternity order that was entered earlier in the case? A finding of paternity, and an order stating the finding, often occurs while a parentage case is in process. For example, a DNA test is often conducted at the beginning in a case to determine whether the named defendant is the natural father of the minor child. Sometimes, a voluntary acknowledgment of paternity has been signed by the father. In this case, the father signed an affidavit of paternity before the court, and an order was entered, entitled "Judgment of Paternity" which provided the natural father’s name, and a statement that he was found to be the father of the minor child. Could such an order prevent the mother from dismissing her underlying petition?
Some additional facts are necessary. Assume the initial pleading requests the following relief from the court: a finding of paternity, a determination of custody and visitation, child support retroactive to the birth of the child (less than two years ago), permanent child support, payment of medical expenses for the pregnancy and birth, health insurance for the minor child, and attorney’s fees and costs. Would an order declaring the paternity prohibit the mother from dismissing her underlying pleading? Is the court’s order of paternity a final order which cannot be dismissed along with her pleading?
Whether an order is final, and thus, appealable, has been the issue in several appellate cases. "Appellate court jurisdiction is limited to reviewing final judgment, which terminates the litigation and disposes of the parties’ rights on either the entire controversy or some definite and separate part of it."20 In Baldassone v. Gorzelanczyk, the circuit court ruled that the putative father was the biological father and set temporary child support.21 The Defendant then filed an appeal. The Appellate court determined that the entry of a paternity order was not a final order without the determination of issues concerning child support, retroactive child support, and health insurance which all had been raised in the Plaintiff’s complaint.22 The Second District Appellate Court held that even the finding of paternity and an order providing for current child support was not final and appealable when other issues, such as retroactive support, were reserved.23 The ————Lekberg court noted that "as in dissolution of marriage cases, we can see no compelling reason for allowing piecemeal appeals when matter of child support or expenses…have been only partially determined by the trial court."24 Other cases have also held that when the issues of retroactive support, health insurance, birth expenses and other issues not considered incidental to the case, have not been ruled upon by the trial court, that any findings of paternity or current support are not final orders subject to the appellate court’s jurisdiction.25
On the other hand, the Third District in ————-Block v. Darm26 came to the opposite conclusion about jurisdiction over an appeal regarding a paternity and support order. The court determined that it had jurisdiction to hear the appeal based upon Supreme Court Rule 304(a). "When an order does not dispose of an entire proceeding, appeals are governed by…304(a)…[which] provides that when 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 claims only if the trial court has made an express finding that there is no just reason for delaying…appeal…."27 The Franson court noted the disagreement between the appellate court districts regarding whether an issue is appealable pursuant to Rule 304(a) when the issues of retroactive child support and reimbursement of the mother’s expenses remain unsolved.28 However, "there does not seem to be a disagreement among the appellate districts regarding the appealability of a parentage order when there is no determination of child support."29
Returning to the parentage case, the question remains—can the mother dismiss the entire case? The answer is maybe. The "Judgment of Paternity" has been entered, along with a temporary support order. The trial court may decide that this paternity order is not final, and therefore, cannot stand on its own. Provided all other terms of the statute are met, the court will likely grant the voluntary dismissal. Conversely, the court may allow the mother to dismiss any part of her action that does not have to do with the finding of paternity, but upholding its paternity order. Therefore, the mother can dismiss her petition for child support, health insurance, custody determination and visitation, pregnancy and birth expenses, and attorney’s fees, but the finding that the father is the natural father of the minor child, will remain. While this conclusion seems counter-intuitive, no appellate court has had to rule on whether a parentage action may or may not be voluntarily dismissed after the entry of a "Judgment of Paternity."
There is statutory and case law which provides that a signed Voluntary Acknowledgment of Paternity (VAP), once executed, is to be treated as though it has the "full force and effect of a Judgment entered under [the Parentage] Act."30 In Parentage of G.E.M., the mother wanted to dismiss the case against the voluntary father, two years after the signing of the VAP and entry of a Judgment against him. The trial court allowed the dismissal, but once taken up on appeal by the natural father, the appellate court held that the VAP stands and the presumption of paternity based upon the execution, could not be dismissed by the court, or the mother. This case is distinguishable on several levels, first that the mother tried to dismiss the case post-Judgment, and second, this was a case with an executed VAP. However, if we liken the affidavit signed before the court, along with the "Judgment of Paternity" entered by the court to the entry of a Judgment, can your client actually dismiss her entire case?
The issue may all turn on the title of the order entered declaring the father in this case—"Judgment of Paternity." The Illinois Supreme Court has previously held that "‘judgment’ has a well-settled definition as a legal term: ‘it is a court’s official decision with respect to the rights and obligations of the parties to a lawsuit.’"31 Once a judgment has been entered declaring a father, both the rights and the obligations that come with that title are not easily eliminated.
The right to voluntarily dismiss one’s case usually appears to be absolute, at first glance. However, this may not always be the case. Careful review of your case facts in light of current statutory and case law is necessary. In order to ensure your client’s right to voluntarily non-suit prior to trial in a parentage proceeding, avoid entering any order which finds the defendant to be the natural father until the entry of final Judgment by the court. In a case where a Voluntary Acknowledgement of Paternity has been signed, the presumption of paternity for the "voluntary" father, is all but fixed in stone.32 However, provided the other minor requirements are met, your parentage client should be able to dismiss her underlying petition and thus, the parentage case. Finally, it is wise to advise your client as to the consequences of non-suiting his or her case, especially if the court may determine it was for the purpose of avoiding compliance with discovery, as it may be more costly than he or she previously believed.
1 735 ILCS 5/2-1009 (a-d) (West 2009).
2 Morrison v. Wagner, 191 Ill.2d162, 729 N.E.2d 496, 288 (2000) (citations omitted).
6 S. Ct. Rule 219(e) (West 2009).
7 191 Ill.2d 162, 729 N.E.2d 496 (2000).
9 Id. at 166, 489.
10 In re the Marriage of Mostow, 95 Ill.App.3d 915, 420 N.E.2d 731 (1st Dist. 1981).
11 735 ILCS 5/2-1009(a) (West 2009).
12 Galowich v. Beech Aircraft Corp., 92 Ill.2d 157, 441 N.E.2d 318 (1982).
13 See Mostow, 95 Ill.App.3d 915, at 918, 420 N.E.2d 731, at 733 (1st Dist. 1981) and Gilbert-Hodgman, Inc. v. Chicago Thoroughbred Enterprises, 17 Ill.App.3d 460, 308 N.E.2d 164 (1st Dist. 1974).
14 Galowich v. Beech Aircraft Corp., 92 Ill.2d 157, 441 N.E.2d 318 (1982).
15 Bergman v. Schlundt, 163 Ill.App.3d 1070, 517 N.E.2d 650 (1987).
16 In re Marriage of Webb, 333 Ill.App.3d 1104, 777 N.E.2d 443 (2nd Dist. 2002).
17 299 Ill.App.3d 653 (1998).
18 Morrison v. Wagner, 191 Ill.2d162, 729 N.E.2d 496, 288 (2000) (citations omitted).
19 S. Ct. Rule 922 (West 2009) (emphasis added).
20 In re Marriage of Verdung, 126 Ill.2d 542, 535 N.E.2d 818 (1989).
21 282 Ill.App.3d 220, 667 N.E.2d 639 (1st Dist. 1996).
23 Department of Public Aid v. Lekberg, 295 Ill.App.3d 1067, 693 N.E.2d 894 (2nd Dist. 1998).
25 See Franson v. Micelli, 172 Ill.2d 352, 666 N.E.2d 1188 (1996); Deckard v. Joiner, 44 Ill.2d 412, 255 N.E.2d 900 (1970).
26 267 Ill.App.3d 354, 642 N.E.2d 863 (3rd Dist. 1994).
28 Franson, 172 Ill.2d 352, 666 N.E.2d 1188 (1996).
29 Baldasonne, 282 Ill.App.3d 220, 667 N.E.2d 639 (1st Dist. 1996).
30 See 750 ILCS 45/6 (West 2009), and In re Parentage of G.E.M., 382 Ill.App.3d 1102, 890 N.E.2d 944 (3rd Dist. 2008).
31 In re Marriage of Logston, 103 Ill.2d 266, 277, 82 Ill.Dec. 633, 469 N.E.2d 167 (1984)
32 Absent a retraction of the acknowledgment within 60 days of the execution of the VAP, or a motion alleging fraud, duress, or mutual mistake.
Anique K. Drouin is an associate attorney with the law firm of Sullivan Taylor & Gumina, P.C. She received her J.D. from the University of Baltimore School of Law in 2007 where she graduated magna cum laude. Ms. Drouin received her undergraduate degree at Queen’s University in Kingston, Ontario in 2000. Ms. Drouin is a member of the DuPage County Bar Association, the Kane County Bar Association, the Illinois State Bar Association, and the American Bar Association.