In re Marriage of Contreras , 2022 IL App (1st) 210605-U ( 2022 )

2022 IL App (1st) 210605-UNo. 1-21-0605
Order filed January 31, 2022
First Division
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent
by any party except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
)
)
IN RE THE MARRIAGE OF MARTHA CONTRERAS, ) Appeal from the
) Circuit Court of
Petitioner-Appellant,
) Cook County.
v. )
) No. 16 D 11729
RIGOBERTO MERAZ, )
) Honorable
Defendant-Appellee. ) Timothy P. Murphy,
) Judge, presiding.
PRESIDING JUSTICE HYMAN delivered the judgment of the court.
Justices Pucinski and Walker concurred in the judgment.
ORDER
¶1 Holding: Appeal of order denying motion for substitution of judge is dismissed for lack of
jurisdiction.
¶2 Petitioner Martha Contreras filed a motion for criminal contempt against her former
husband, Rigoberto Meraz, alleging he violated various provisions of their allocation judgment.
Contreras then filed a motion for substitution of judge for cause under section 114-5(c) of the Code
No. 1-21-0605
of Criminal Procedure (725 ILCS 5/114-5(c) (West 2020)), alleging the judge who presided over
the parties’ dissolution of marriage proceedings was prejudiced against her. After hearing
arguments, another judge assigned to hear the motion denied Contreras’s motion in a written order,
stating (i) Contreras lacked standing to invoke section 5/114-5(c) of the Code of Criminal Procedure
on behalf of the State; (ii) Contreras’s motion should be reviewed under section 2-1001 of the Code of
Civil Procedure (735 ILCS 5/2-1001(West 2020)); and (iii) Contreras failed to present facts or other
evidence establishing actual prejudice toward her that would warrant granting the motion under section
2-1001 of the Code of Civil Procedure.
¶3 Contreras appeals arguing the trial court erred in finding that section 2-1001 of the Code
of Civil Procedure rather than the section 114-5(c) of the Code of Criminal Procedure applied to
her motion. She asserts this court has jurisdiction under Supreme Court Rule 604(a) (eff. July 1,
2017), which grants the State a right to appeal certain orders in criminal case. We disagree and
dismiss the appeal for a lack of jurisdiction.
¶4 Background
¶5 In March 2019, Judge Robert W. Johnson entered a judgment dissolving the marriage of
Martha Contreras and Rigoberto Meraz. Judge Johnson also entered an allocation judgment, which
addressed issues related to the parties’ visitation with their two children and division of child-
related expenses. On July 14, 2020, Contreras filed a petition for adjudication of criminal contempt
alleging Meraz failed to adhere to the pick-up and drop-off times as delineated in the allocation
judgment and failed to pay his portion of the children’s dental expenses when due. A few months
later, on November 23, Contreras filed a petition for indirect civil contempt against Meraz with
similar allegations.
-2-
No. 1-21-0605
¶6 On March 4, 2021, Contreras filed motion for substitution of judge under section 114-5(c)
of the Code of Criminal Procedure. That section permits the State to move for substitution of judge
within 10 days after a case has been assigned to a trial judge on the grounds that the judge is
prejudiced against the State. 725 ILCS 5/114-5(c) (West 2020). Contreras’s motion sought a
substitution for cause, alleging the trial judge was prejudiced against her.
¶7 The motion was transferred to Judge Timothy Murphy. After carefully reviewing the record
and hearing argument, Judge Murphy denied Contreras’s motion for substitution of judge. He
stated that “there is no separate criminal proceeding related to the alleged criminal contempt motion
filed by the Petitioner against Rigoberto, and that her Petition for same is still part and [parcel] of the
civil proceedings before Judge [trial judge].” He concluded that 725 ILCS 5/114-5(c) is not applicable
to the proceedings and he lacked authority to grant substitution.
¶8 The order further stated that Contreras’s request for substitution of judge should be reviewed
under section 2-1001 of the Code of Civil Procedure. 735 ILCS 5/2-1001 (West 2020). Judge Murphy
noted that “the law is clear in Illinois that when, as in this case, a substantial ruling has been made,
substitution under section 2-1001(a)(3) may be granted only where the party can establish actual
prejudice.” The order concluded that Contreras failed to plead or introduce facts or other evidence to
establish actual prejudice by the trial judge toward her.
¶9 Analysis
¶ 10 Contreras argues that the order finding she lacked standing to seek a substitution of judge under
section 114-5(c) of the Code of Criminal Procedure and applying section 2-1001(a)(3) of the Code
of Civil Procedure to deny her motion. (We take the case on the record and Contreras’s brief, as the
appellee did not file a brief.) Before we address the merits of Contreras’s appeal, we must determine
whether this court has jurisdiction. Dus v. Provena St. Mary’s Hospital, 2012 IL App (3d) 91064
-3-
No. 1-21-0605
¶ 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.
¶ 11 The Illinois Constitution grants the supreme court exclusive and final authority to prescribe
the scope of interlocutory appeals. People v. Holmes, 235 Ill. 2d 59, 66 (2009). As an appeal from
a non-final judgment, unless the ruling for review falls within one of the exceptions for
interlocutory appeals specified by supreme court rules, we do not have jurisdiction to hear the
appeal. Id. (citing In re Marriage of Verdung, 126 Ill. 2d 542, 553 (1989). Contreras claims we
have jurisdiction under Supreme Court Rule 604(1)(1)(eff. July 1, 2017), which provides:
“When State May Appeal. In criminal cases the State may appeal only from an order or
judgment the substantive effect of which results in dismissing a charge for any of the
grounds enumerated in section 114-1 of the Code of Criminal Procedure of 1963; arresting
judgment because of a defective indictment, information or complaint; quashing an arrest
or search warrant; or suppressing evidence.”
¶ 12 Rule 604(a)(1) applies to appeals in criminal cases filed only by the State. Here, the State
was not a party in the trial court or on this appeal. Further, even if, as Contreras contends, she has
standing to invoke section 114-5 of the Code of Criminal Procedure, as well as Rule 604(a)(1), an
order denying a motion for substitution of judge does not appear among the orders that can be
appealed under Rule 604(a)(1). So, Rule 604(a)(1) does not apply to confer jurisdiction.
¶ 13 Further, an order denying a motion for substitution of judge for cause is interlocutory and
not final for purposes of appeal. Inland Commercial Property Management, Inc. v. HOB I Holding
Corp., 2015 IL App (1st) 141051, ¶ 19 (citing In re Marriage of Nettleton, 348 Ill. App. 3d 961,
-4-
No. 1-21-0605
969 (2004)). We lack jurisdiction and must dismiss the appeal because the May 11, 2021 order
denying Contreras’s motion for substitution of judge was interlocutory and not final.
¶ 14 Appeal dismissed.
-5-