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Scroggins v. Scroggins

January 24, 2002

JENNY REBECCA SCROGGINS, PETITIONER-APPELLEE,
v.
LARRY JOE SCROGGINS, RESPONDENT-APPELLANT.



Appeal from Circuit Court of Piatt County No. 01OP3 Honorable John P. Shonkwiler, Judge Presiding.

The opinion of the court was delivered by: Justice Cook

UNPUBLISHED

Respondent Larry Joe Scroggins appeals from a plenary order of protection issued by the Piatt County circuit court. Respondent argues that the trial court abused its discretion when it denied his motion for substitution of judge as of right. Respondent also argues the trial court did not have authority to appoint a domestic violence attorney to petitioner Jenny Rebecca Scroggins. We affirm in part, reverse in part, and remand with instructions.

I. BACKGROUND

Petitioner commenced proceedings under the Illinois Domestic Violence Act of 1986 (750 ILCS 60/101 through 401 (West 2000)) by filing a verified petition for order of protection (750 ILCS 60/202(a)(1) (West 2000)). On January 18, 2001, petitioner appeared pro se and the trial court granted an ex parte emergency order of protection. Hearing was set for an extension of the emergency order of protection or a plenary order of protection for January 29, 2001. On January 29, 2001, respondent appeared with counsel and petitioner appeared pro se. The court appointed petitioner a domestic violence attorney, extended the emergency order of protection, and set the hearing on the motion for plenary order of protection for February 16, 2001.

On January 30, 2001, petitioner's appointed attorney filed a "Notice unto Parties." This notice was served on both petitioner and respondent. The notice informed the parties that the domestic violence attorney fees would be paid by the county and that the court customarily ordered either the petitioner or respondent to reimburse the county for the cost of appointed counsel. The notice stated that, as a rule, if the plenary order of protection were granted, then respondent may be ordered to reimburse the county. Conversely, if the plenary order of protection were not granted, petitioner may be ordered to reimburse the county.

On February 15, 2001, the day before the scheduled hearing on the plenary order of protection, respondent filed a motion for substitution of judge as of right pursuant to section 2-1001(a)(2) of the Code of Civil Procedure (Code) (735 ILCS 5/2-1001(a)(2) (West 2000)). On February 16, 2001, petitioner's appointed counsel filed a response to the motion for substitution of judge, alleging that he did not get notice of the motion until 4 p.m. on February 15 and did not get a copy of the motion until 10 a.m. on February 16. Petitioner's appointed counsel further alleged that settlement negotiations had broken down and the motion was filed for the purpose of delaying the hearing on the motion for plenary order of protection. Respondent's attorney denied that the motion was filed for purposes of delay.

The trial court ruled on respondent's motion for substitution of judge as of right on February 16, 2001, at the scheduled hearing on the motion for plenary order of protection. The trial court denied petitioner's motion for substitution of judge as of right, finding that the motion was not timely filed. The trial court then issued a plenary order of protection on respondent's stipulation that petitioner's evidence, if believed by the court, supported granting a plenary order of protection.

On February 23, 2001, the trial court ordered the county treasurer to pay the appointed domestic violence attorney $712.50 for his services. On March 14, 2001, the trial court ordered respondent to pay the county $712.50 as reimbursement for the appointed domestic violence attorney fees.

On appeal, respondent argues that the trial court abused its discretion when it denied his motion for substitution of judge as of right. Respondent also argues that the trial court did not have authority to appoint the domestic violence attorney under the Illinois Domestic Violence Act (750 ILCS 60 (West 2000)).

II. ANALYSIS

Petitioner did not file a brief for this appeal. We decide the case on the merits and reverse because "appellant's brief demonstrates prima facie reversible error and the contentions of the brief find support in the record." First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133, 345 N.E.2d 493, 495 (1976).

A. Motion for Substitution of Judge as of Right Without Cause

Motions for substitutions of judges as of right without cause are governed by section 2-1001 of the Code (735 ILCS 5/2-1001 (West ...


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