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In Re Marriage of v. Rojean M. Molloy

February 10, 2011

IN RE MARRIAGE OF
DAVID P. MOLLOY,
PETITIONER-APPELLANT,
v.
ROJEAN M. MOLLOY,
RESPONDENT-APPELLEE.



Appeal from the Circuit Court of Cook County.No. 07 D 8119

The opinion of the court was delivered by: The Honorable Gerald C. Bender,

Judge Presiding. PRESIDING JUSTICE GARCIA delivered the judgment of the court, with opinion.

Justices Cahill and McBride concurred in the judgment and opinion.

OPINION

The petitioner David P. Molloy presents what he contends is an interlocutory appeal under Supreme Court Rule 307(a)(1) (Ill.S. Ct. R. 307(a)(1)(eff. Mar. 20, 2009)) based on the circuit court's order granting the respondent Rojean Molloy's request that petitioner's counsel be barred from accompanying the petitioner to his child custody evaluation under section 604.5 of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/604.5 (West 2008)). On June 3, 2010, at the request of counsel for the children, we entered an order designating this matter as an expedited appeal pursuant to Illinois Supreme Court Rule 311.

Ill. S. Ct. R. 311(eff. Feb. 26, 2010). Thereafter, the children filed a motion seeking the dismissal of this appeal contending it does not fall within the provisions of Rule 307(a)(1). The petitioner filed a response conceding this case involves an novel application of Rule 307. He asserts this appeal seeks a good-faith extension of what qualifies as an injunctive order under Rule 307. We took the motion with the case. The children challenge our jurisdiction in their response brief. The petitioner sought an extension of time to file his reply brief, which we granted. No reply brief was filed by the petitioner by the court's deadline. We now grant the children's motion to dismiss this appeal for lack of jurisdiction.

BACKGROUND

The petitioner and the respondent were married on June 28, 2001; two children were born of the marriage, Cody, born June 30, 2001, and Alaina, born March 2, 2005.

In 2007, the petitioner filed for the dissolution of marriage. In March 2008, pursuant to a motion filed by the respondent, the Cook County public guardian was appointed to represent the interests of the children.

In April 2009, the circuit court assigned the matter to the Forensic Clinical Services Department (FCSD) for a custody evaluation pursuant to section 604(b) of the Act. 750 ILCS 5/604(b) (West 2008). In September 2009, the circuit court set a status date on the custody evaluation for December 15, 2009. In

November 2009, the petitioner filed for temporary and permanent custody, alleging the marital home had been sold and that he had obtained a new residence that was suitable for himself and the children. He further alleged that on November 10, 2009, the FCSD examiner, a licensed clinical social worker, had issued a section 604(b) report recommending that he be awarded sole custody of the children.

According to the petitioner's attorneys, at a hearing on November 19, 2009, the respondent requested a custody evaluation pursuant to section 604.5 of the Act, which the court granted. 750 ILCS 5/604.5 (West 2008). On December 16, 2009, the circuit court ordered the respondent's section 604.5 evaluation report be filed by March 12, 2010, and noted the respondent would have 21 days after that date to respond to the petitioner's request for custody.

On January 12, 2010, the respondent filed a motion, requesting that the petitioner's attorney be barred from accompanying the petitioner at his section 604.5 custody evaluation with the respondent's chosen evaluator, Jo Anne Smith, a licensed clinical social worker. The respondent explained her request: "As not to result in an unbalanced report if petitioner's counsel is present, as respondent presents as pro se." A hearing on the motion was held on January 27, 2010. Following argument by the petitioner's attorneys, the circuit court ordered the parties to file written memoranda addressing the matter by February 5, 2010.

On February 5, 2010, the petitioner, through his attorneys, filed a "Response to and Memorandum of Law in Opposition of Rojean Molloy's Motion," arguing that the respondent did not properly title her motion as one for injunctive relief. The petitioner further argued that the respondent's motion was an attempt to prevent him from exercising his statutory right pursuant to 2-1003(d) of the ...


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