The Journal of The DuPage County Bar Association

Back Issues > Vol. 25 (2012-13)

Substitution of Judge as a Matter of Right and the Application in Post-Judgment Proceedings: A Domestic Relations Perspective
By Lisa M. Giese

A request for a substitution of judge as a matter of right can be a useful tool when litigating a case before a judge who could be considered unfavorable to the client’s position.   However, while substitutions are sometimes in the client’s best interest, the request has its limitations and is not necessarily as absolute as the statute appears on its face.  Even in cases where there has not been any substantive litigation, a judge may deny the request for a substitution as a matter of right if the motion is untimely, a pre-trial conference has occurred or if substantive orders have been entered, even if the orders were entered by agreement.  In post-judgment proceedings in the domestic relations field, an interesting issue is raised when a party requests a substitution of judge as a matter of right after a Judgment for Dissolution of Marriage has been entered, following an uncontested prove-up and when there had been no other substantive orders. 

The Illinois Rules of Civil Procedure provide a party with one substitution of judge without cause as a matter of right if a timely motion is presented before trial and before the judge has ruled on any substantive issue in the case, unless the motion is presented by consent of the parties.[1]  In matrimonial law, the abundance of post-decree motions gives rise to unique issues within the realm of substitutions as a matter of right, specifically, whether a post-decree petition is considered a new proceeding for purposes of a substitution of judge and whether substantive rulings are made at an uncontested prove-up hearing.

The debate over whether a post-judgment motion constitutes a new proceeding dates back to the 19th century.   The first case to address this issue was McPike v. McPike, decided in 1882, wherein the court found that a post-decree custody modification petition was a new proceeding and that, accordingly, a substitution of judge (previously known as a change of venue) was allowed.[2]  However, not only are appellate court opinions entered before 1935 not necessarily binding, but also, as the Third District Santos case pointed out, McPike was decided when there were only approximately 15,000 divorce cases filed per annum, whereas when Santos was decided there were in excess of one million.[3]  The Santos case goes on to attack McPike by stating that it “flies in the face of reality” and “to allow a litigant who loses his point in a divorce decree to turn right around and file a post-decree proceeding before a new judge is to encourage and invite both judge shopping and trial de novo in matrimonial cases.” 

However, the Second District disagreed with Santos, when it ruled in Cummins in 1982.[4]  Cummins followed the McPike case, holding that the post-judgment petition to modify support recognized the prior decree as final and res judicata on the facts then determined.  The court continued by holding that because the new petition requires proof of new facts arising after prior adjudication, the original matter was not being re-litigated and thus there is no trial de novo. 

The Illinois Supreme Court finally resolved[5] the dispute in 1984, when it decided In re the Marriage of Kozloff.[6]  In Kozloff, the husband filed a post-decree petition to modify the judgment relative to the issue of maintenance.  He simultaneously sought a change of venue (now known as a substitution of judge) from the judge who heard the original dissolution proceedings.  The circuit court denied the motion to change the venue and the appellate court reversed the circuit court’s ruling.  The appellate court relied on prior decisions which held that post-decree petitions constitute new proceedings for venue purposes and as long as the judge had made no substantive ruling relative to that petition, the change should be allowed.  The Illinois Supreme Court rejected the appellate court’s position on the basis that it would lead to an abuse of the venue act, and specifically that it would allow litigants to judge-shop until they found a judge sympathetic to the party’s case, which would be an inefficient use of judicial resources. 

While the issue of whether a post-decree petition constitutes a new proceeding has been resolved, there remains an exception for criminal contempt proceedings.  The authority which the Illinois Supreme Court relied on in Kozloff stands for the proposition that post-decree petitions are not new actions because they are merely a re-docketing of the original proceeding and carry the same title and file number, so they are therefore merely an extension of the original proceedings.[7]  However, a criminal contempt proceeding, which can result in the initiation of a new case name and number, is not an extension of the original proceeding and therefore one may be entitled to a substitution of judge relative to a petition for rule when seeking or defending against adjudication of criminal contempt.[8] 

Since post-judgment petitions are generally not considered new proceedings, it would seem as though one could never request a substitution of judge once a judgment has been entered.  However, if the original proceedings were uncontested and no pre-trial conferences were held, nor were there any other contested hearings, the argument could be made that a substantive ruling has not yet been made, thereby entitling the parties in a post-judgment petition the right to a substitution of judge.  The argument is very logical.   An uncontested proceeding, resulting in a prove-up and incorporation of settlement agreement(s) into the Judgment for Dissolution of Marriage, seems to follow the logic that the Court merely accepted the agreement of the parties and, by signing it, created an enforceable order.  In essence, the question is whether the court, by hearing the uncontroverted testimony and signing the agreed judgment, has made a substantive ruling.

Accordingly, in analyzing this question, the term “substantive ruling” has been liberally construed to apply not just to decisions made by the court after hearing, but also to any situation wherein the litigant had any opportunity to “test the waters” and form an opinion of the judge’s position as to the claim.[9]   Therefore, despite the statute’s reference to a ruling, a ruling is not always necessary to warrant the denial of a request for a substitution.  The court can properly find that a motion was untimely if it was brought after the litigant had tested the waters through, for example, a pre-trial conference or statements made by the court at the presentment of a motion.[10]

In addition, even if the Court rules on an issue, if the issue is not substantive, then a litigant may still be entitled to a substitution of judge.  An issue is substantive if it relates directly to the merits of the case.[11]  A discovery motion, for example, can be considered substantive if it involves evidentiary matters and reveals the court’s interpretation of a Supreme Court rule or the court’s opinion as to admissibility of evidence.[12]  However, the granting or denying of a request for a continuance or an extension of time would generally not be considered a substantive ruling.[13]

There is conflicting authority on whether or not an agreed order would be considered a substantive ruling or whether it would be considered simply a recitation of the parties’ agreement.   In fact, courts have often referred to agreed orders (also termed consent decrees) as not being an adjudication of the parties’ rights, but rather a record of their private, contractual agreement.[14] On the other hand, courts have also held that an agreement by the parties may be considered a substantive ruling in determining whether a motion to substitute a judge is timely because the court maintains discretion concerning whether or not to issue an order based on an agreement of the parties.[15]  For example, judges often refuse to enter orders, even if they are by agreement of the parties, which are against public policy or for which they lack jurisdiction to enter. 

However, there is a significant difference between an agreed order and an uncontested prove-up hearing.  An agreed order can be entered when executed only by the attorneys, without either party’s presence, and most importantly, without the judge hearing any testimony or reviewing the evidence.  At a prove-up hearing, at least one party’s testimony is required and the court must make certain findings, specifically, at minimum, that there are grounds for dissolution of the marriage, that the court has jurisdiction over the parties, and that the marital settlement agreement is not unconscionable.[16]  Because testimony is presented, evidence is submitted and findings are made by the court, a prove-up hearing is clearly distinguishable from the entry of an agreed order. 

Since a post-judgment motion can challenge the findings made by the court at the prove-up hearing, it would appears inappropriate for a court to grant a request for a substitution relative to the post-judgment pleading.  For example, if the court, after hearing testimony and reviewing the marital settlement agreement, finds the agreement to be not unconscionable, and subsequently a 2-1401 motion to vacate is filed alleging unconscionability, the judge who presided over the prove-up would appear to have given a substantive ruling, which is directly related to the post-decree motion pending before the court.  However, even if the post-judgment motion is entirely unrelated to the findings made by the court at the prove-up hearing, it does not change the fact that substantive findings were made and thus, that a substitution as a matter of right is not appropriate.  The conflict in this argument is that, perhaps, when a party to an uncontested prove-up makes agreements that are entered into the agreed judgment, does the finding of grounds and of a lack of unconscionability imply that a post-decree contempt enforcement proceeding is automatically an extension of the original proceedings?   No proceeding truly was held.   The Court did not truly hear evidence that supported the basis for each and every provision of the settlement agreements.   The Court did not hear facts surrounding the basis for each and every provision.   In short, the Court entered an agreed order.  These conflicting arguments lead to the question – should the substitution motion be granted when there is no clear answer to whether the Court made a substantive ruling in the case.

Although the case law seems to favor denying a request for a substitution of judge after a judgment for dissolution of marriage has been entered, an improper denial can have detrimental consequences, and therefore, a judge may be reluctant to deny such a request.  Specifically, all orders entered after the improper denial are deemed to be void.[17]  While this is more harmful in a pre-decree case, it can be a significant waste of the parties’ and court’s resources even in a post-decree matter, especially considering the order is interlocutory and not final for purposes of an appeal.[18]  Further, the statute governing substitution of judges is to be construed to effect the substitution rather than defeat the substitution.  Therefore, for practical purposes, even if the movant should not be entitled to the substitution in a post-judgment proceeding based on the above, the court may grant the request to avoid the risk of future orders being rendered void. 

In light of these considerations and arguments, an attorney would have a good faith basis to seek a substitution as a matter of right when the post-decree proceedings follow an uncontested prove-up with an agreed judgment, despite the fact that the present authority does not necessarily and automatically support the position outright.

[1] 735 ILCS 5/2-1001.  Note that the pre-1993 version of section 2-1001 referred to a “change of venue” rather than “substitution of judge” and therefore case law prior to the amended statute refers to motions for “change of venue” and motions for “substitution of judge” interchangeably.

[2] McPike v. McPike, 10 Ill.App.332, 334 (4th Dist. 1882).

[3] Santos v. Santos, 97 Ill.App.3d 629, 631 (3rd Dist. 1981).

[4] In re: the Marriage of Cummins, 106 Ill.App.3d 44, 49 (2nd Dist. 1982).

[5] Though conceptually the “change of venue” and “substitution of judge” provisions are essentially the same, no case has addressed the issue since the legal remedy was changed to “substitution of judge.”

[6] In re: the Marriage of Kozloff, 101 Ill.2d 526, 531 (1984).

[7] This raises questions in light of certain statutory provisions of the Illinois Marriage and Dissolution of Marriage Act, such as 750 ILCS 5/508(c), or 750 ILCS 5/511.  However, these questions may merely be legal syllogisms.

[8] Levaccare v. Levaccare, 376 Ill.App.3d 503, 509 (1st Dist. 2007).

[9] In re Estate of Gay, 353 Ill.App.3d 341, 343 (3rd Dist. 2004).

[10] The courts are conflicted as to whether a pre-trial conference provides a litigant with an opportunity to test the waters, making a motion for substitution of judge as a matter of right untimely.  See In re Marriage of Abma, 308 Ill.App.3d 605, 613 (1st Dist. 1999); Backer v. R.E. Cooper Corp., 193 Ill.App.3d 459, 465 (1990); Paschen Contractors, Inc. v. Illinois State Toll Highway Authority, 225 Ill.App.3d 930, 937 (1992).

[11] Gay v. Frey, 388 Ill.App.3d 827, 833 (5th Dist. 2009). 

[12] In re Estate of Hoellen, 367 Ill.App.3d 240, 246 (1st Dist. 2006).

[13] See Nasrallah v. Davilla, 326 Ill.App.3d 1036, 1040 (1st Dist. 2001); Scroggins v. Scroggins, 327 Ill.App.3d 333, 336 (4th Dist. 2002).

[14] In re M.M.D., 213 Ill.2d 105, 114 (2004).

[15] In re D.M. and R.O.M., 395 Ill.App.3d 972, 977 (3rd Dist. 2009).

[16] 750 ILCS 5/401.

[17] Gay v. Frey, 388 Ill.App.3d 827, 834 (5th Dist. 2009).

[18] In re: the Marriage of Nettleton, 348 Ill.App.3d 961, 969 (2nd Dist. 2004).

Lisa M. Giese is an associate attorney with Anderson & Associates, P.C. She received her B.A. from Michigan State University in 2004, her J.D. and Certificate in Child and Family Law in 2008 from Loyola University Chicago School of Law. She is a member of the DuPage County Bar Association and Illinois State Bar Association and serves as Director for the DuPage Association of Women Lawyers. She is an active advocate for children in divorce and juvenile matters.

 
 
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