Appellate Law

Pending Motion To Disqualify Attorney Deprives Appellate Court Of Jurisdiction To Consider Custody Order

By Steven R. Merican

Neringa Valkiunas and Jeffrey Olsen were in a protracted custody battle. Neringa first appealed from a custody modification order that made Jeffrey residential custodian. That first appeal was dismissed by the Second District Illinois Appellate Court because, when the appeal was filed, two civil contempt petitions were pending in the trial court. The pending contempt petitions rendered the notice of appeal premature.

Before the dismissal of the appeal, Jeffrey filed a motion in the trial court to disqualify Neringa?s lawyer. After the trial court ruled on the contempt petitions, Neringa moved for rehearing of the dismissal in the appellate court. The request for a rehearing was granted. But unknown to the appellate court at that time, the motion to disqualify still was pending in the trial court.

So the question was: Did Neringa?s notice of appeal give the appellate court jurisdiction, or did the pending motion to disqualify Neringa?s lawyer deprive the appellate court of jurisdiction?

The appellate court ruled that the motion to disqualify was a ?pending claim,? so Neringa?s notice of appeal was premature and there was no appellate jurisdiction. Here?s how the court explained it:

"If an order does not resolve every right, liability or matter raised, it must contain an express finding that there is no just reason for delaying an appeal." The June 24, 2008, order disposing of the contempt petitions did not dispose of all the claims, and the February 8, 2008 [making Jeffrey residential custodian], order from which petitioner appealed did not contain Rule 304(a) language; thus, the notice of appeal is still premature and is ineffective to confer jurisdiction on this court.

The dispute was complicated further because Illinois Supreme Court Rule 367 limited a party to one petition for rehearing. As the matter stood, Neringa had used that option and was not entitled to do so again. In apparent deference to the convoluted state of the law in this area, the appellate court vacated ?that part of our order of July 28, 2008, granting the petition for rehearing. Thus, the petition for rehearing is still pending. 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. Upon petitioner's demonstrating to this court that we have jurisdiction, we will rule on the petition for rehearing.?

Read the whole opinion, IRMO Valkiunas, No. 2-08-0279(12/18/08), by clicking here.

Full post as published by Illinois Appellate Lawyer Blog on August 16, 2009 (boomark / email).