Appellate Law

Pending Disqualification Motion Renders Custody Appeal Premature

By Steven R. Merican

Neringa and Jeffrey were disputing a court order that modified custody of their child. Neringa appealed the order. But a motion to disqualify her attorney still was pending when she filed her notice of appeal. And the custody order from which she appealed did not expressly permit an interlocutory appeal. Jeffrey argued that the appellate court did not have jurisdiction because the motion to disqualify had not been decided by the trial court.

The Second District Illinois Appellate Court agreed with Jeffrey and ruled that Neringa?s appeal was premature. Because the motion to disqualify presented a separate claim, it had to be resolved before the appellate court could take jurisdiction of Neringa?s appeal of the custody order.

The appellate court described the procedure Neringa should follow in order to perfect her appeal: ?Petitioner [Neringa] now must either obtain a Rule 304(a) finding [allowing an interlocutory appeal] or obtain an order or orders resolving the motion to disqualify and any other pending claims in this matter ? and then supplement the record with the appropriate order or orders.?

Read the whole case, IRMO Valkiunas, 2-08-0279 (12/18/08), by clicking here.

Full post as published by Illinois Appellate Lawyer Blog on January 02, 2009 (boomark / email).