Appellate Law

No Jurisdiction To Consider Appeal Of Order Excluding Lawyer From Custody Evaluation

By Steven R. Merican

David and Rojean Molloy were battling for custody of their two children.
The trial court appointed the Cook County, Illinois public guardian to represent the children. A custody evaluation by a social worker was scheduled under the Marriage Dissolution Act. Rojean, who did not have a lawyer, asked the trial court to prohibit David?s lawyer from attending the social worker?s evaluation session with David. The trial court agreed and barred David?s lawyer from attending.

David thought he should not be deprived of an attorney at the evaluation, so he filed a notice of interlocutory appeal under Illinois Supreme Court Rule 307. David argued that the order prohibiting his lawyer from attending the evaluation amounted to a preliminary injunction, so the appellate court had jurisdiction to consider the appeal.

But the public guardian asked the appellate court to dismiss David?s appeal. The guardian argued there was no Rule 307 injunction because the order ?merely set conditions for the petitioner?s [David] ? evaluation.?

The First District Illinois Appellate Court agreed with the guardian and dismissed David?s appeal for lack of appellate jurisdiction. The court ruled that the order preventing David?s lawyer from attending the evaluation was ministerial, and therefore not an injunction that can be appealed before the end of the case. Here is the appellate court?s thinking:

?Not every nonfinal order of a court is appealable, even if it compels a party to do or not do a particular thing.? ? Court orders that are ministerial or administrative cannot be the subject of an interlocutory appeal ? An order is deemed ministerial or administrative if it regulates only procedural details of the litigation before the court ? Such an order ?do[es] not affect the relationship of the parties in their everyday activity apart from the litigation, and are therefore distinguishable from traditional forms of injunctive relief."

Here ? we find the aim of the circuit [trial] court?s order to be ministerial; the order places a ?condition? of the custody evaluation of the petitioner [David] as provided under section 604(b) of the [Marriage Dissolution] Act ? [T]he order is not the equivalent of a preliminary injunction whose function is ?to preserve the status quo resolution of the merits of the case."

Read the whole opinion, In re Marriage of Molloy, 1-10-1224 (2/10/11), by clicking here.

Full post as published by Illinois Appellate Lawyer Blog on February 24, 2011 (boomark / email).