Opinion
No. 1-16-2319
05-05-2017
In re MARRIAGE OF MARCUS SANKEY, Petitioner-Appellant, and LAKESHA JONES, Respondent-Appellee.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Cook County Nos. 12 D 10672 and 13 D 2283 (cons.) Honorable Veronica B. Mathein, Judge, Presiding. PRESIDING JUSTICE HOFFMAN delivered the judgment of the court.
Justices Rochford and Delort concurred in the judgment.
ORDER
¶ 1 Held: We affirm the trial court's judgment where the petitoner failed to present a sufficient record on appeal. ¶ 2 The petitioner, Marcus Sankey, appeals from the trial court's judgment dissolving his marriage with the respondent, Lakesha Jones. On appeal, the petitioner argues that the trial court erred in denying his motion for substitution of judge for cause and abused its discretion in resolving the allocation of parental responsibilities, maintenance, child support, and property distribution. For the reasons which follow, we affirm. ¶ 3 The parties married in July 2008 and the petitioner filed a petition for dissolution of marriage in March 2013. In March 2016, the petitioner filed a motion, re-characterized by the trial court as a petition for substitution of judge for cause. His petition did not mention any grounds for relief but, rather, stated that the grounds were set forth in an "attached [a]ffidavit" that is not included in the record. On March 28, 2016, the trial court entered a written order denying the petition for substitution of judge. The record lacks a transcript of proceedings on the petition, and the trial court's written order denying the petition does not state its reasoning. ¶ 4 On June 9, 2016, following a trial at which the petitioner appeared pro se, the trial court entered judgment dissolving the parties' marriage. The record does not contain a trial transcript, bystander's report, or agreed statement of facts, but the written judgment states that the trial court found the respondent "credible" and the petitioner "not credible." In relevant part, the judgment allocated to the respondent all parental responsibilities for the parties' three minor children, allowed her to claim them as dependents for tax purposes, awarded her maintenance, and required the petitioner to pay child support. Additionally, the judgment granted the respondent possession of the marital residence and required her to make all mortgage payments until the children reach 18 years of age and graduate from high school, at which point the residence would be sold and the proceeds divided evenly between the parties. The petitioner filed a motion to reconsider judgment. Following a hearing on the petitioner's motion, a transcript of which is included in the record, the trial court denied relief. This appeal followed. ¶ 5 The respondent, as appellee, did not file an appellate brief. Nonetheless, this court may decide an appeal on the merits "if the record is simple and the claimed errors are such that the court can easily decide them without the aid of an appellee's brief ***." First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976). The Illinois supreme court has established, however, that, in reviewing alleged errors of the trial court, it is the appellant's responsibility to present "a sufficiently complete record of the proceedings at trial ***." Foutch v. O'Bryant, 99 Ill. 2d 389, 391 (1984). "From the very nature of an appeal it is evident that the court of review must have before it the record to review in order to determine whether there was the error claimed by the appellant." Id. When the record on appeal is insufficient, "it will be presumed that the order entered by the trial court was in conformity with law and had a sufficient factual basis." Id. at 392. Any doubts arising from the incompleteness of the record must be resolved against the appellant. Id. In this case, as we discuss below, we are unable to reach the merits of any of the respondent's assertions of error because he did not provide us with a sufficient record on appeal. ¶ 6 Regarding his petition for substitution of judge for cause, the petitioner contends that the trial court erred in denying the petition without transferring it to be heard by a different judge pursuant to section 2-1001(a)(3)(iii) of the Code of Civil Procedure (Code) (735 ILCS 5/2-1001(a)(3)(iii) (West 2014)). More specifically, he claims that the trial judge's willingness to grant continuances and failure to compel the guardian ad litem for the parties' children to appear in court resulted in a violation of the timing requirements for allocating parental responsibilities under Illinois Supreme Court Rule 922 (eff. Mar. 8, 2016) and caused "undue delay and an unfair outcome ***." ¶ 7 Under section 2-1001(a)(3)(ii) of the Code, a party may bring a petition for substitution of judge for cause, which must "set[ ] forth the specific cause for substitution" and be "verified by the affidavit of the applicant." 735 ILCS 5/2-1001(a)(3)(ii) (West 2014). Upon the filing of the petition, "a hearing to determine whether the cause exists shall be conducted as soon as possible by a judge other than the judge named in the petition." 735 ILCS 5/2-1001(a)(3)(iii) (West 2014). The trial court, however, may deny the petition without referring it to another judge if the petition "(1) was not timely filed, (2) failed to include an affidavit, or (3) alleged bias not stemming from an extrajudicial source." Petalino v. Williams, 2016 IL App (1st) 151861, ¶ 35 (citing In re Estate of Wilson, 238 Ill. 2d 519, 553 (2010)). Our review of the trial court's decision to deny a petition for substitution of judge for cause without referring it to another judge is de novo. Danhauer v. Danhauer, 2013 IL App (1st) 123537, ¶¶ 21-22. ¶ 8 In this case, we are unable to conduct any review of the petitioner's asserted error because the record does not indicate what arguments and evidence were before the trial court when it denied his petition. The petition did not mention any grounds for relief, and the affidavit which the petitioner purportedly attached to the petition is not included in the record. The record lacks a transcript of proceedings on the petition, and the trial court's order denying the petition does not state its reasoning. While the petitioner asserts that the arguments raised in his brief on appeal were also raised in the trial court, "mere assertions in a brief cannot serve as a substitute for a proper record." People ex rel. Village of Long Grove v. Village of Buffalo Grove, 162 Ill. App. 3d 340, 347 (1987). Consequently, we cannot review the petitioner's assertion of error on the merits. See Schultz v. Republic Insurance Co., 124 Ill. App. 3d 342, 345 (1984) (affirming judgment where the reviewing court "cannot determine whether the arguments raised on appeal were ever presented to the trial court for its consideration."). ¶ 9 The respondent next contends that the trial court erred in allocating parental responsibilities without receiving a report or testimony from the guardian ad litem; awarding the respondent maintenance; calculating the petitioner's child support obligation; allowing the respondent to claim the parties' children as dependants for tax purposes; and dividing the marital estate. This court will not disturb the trial court's custody determination unless it is against the manifest weight of the evidence (In re Marriage of D.T.W. and S.L.W., 2011 IL App (1st) 111225, ¶ 81), and reviews each of the remaining issues raised by the defendant for an abuse of discretion. See In re Marriage of Stuhr, 2016 IL App (1st) 152370, ¶ 75; In re Marriage of Evanoff and Tomasek, 2016 IL App (1st) 150017, ¶ 45; In re Marriage of Pasquesi, 2015 IL App (1st) 133926, ¶¶ 29, 32. ¶ 10 Based on the record before us, it is not possible for us to review the foregoing assertions of error under any standard of review due to the omission from the record of a trial transcript, bystander's report, or agreed statement of facts. See Ill. S. Ct. R. 323(c), (d) (eff. Dec. 13, 2005). Thus, although the petitioner alleges that the evidence of record does not support the trial court's findings, his failure to present a record documenting the evidence and arguments raised in the trial court prevents us from considering this claim. See Corral v. Mervis Industries, Inc., 217 Ill. 2d 144, 156 (2005) ("An issue relating to a circuit court's factual findings and basis for its legal conclusions obviously cannot be reviewed absent a report or record of the proceeding."). Additionally, the transcript of the hearing on the petitioner's motion to reconsider judgment, which the petitioner cites throughout his appellate brief, does not allow this court to review the asserted trial errors because a transcript of a hearing on a post-trial motion is not a substitute for a trial transcript. Casas v. Liberty Savings & Loan Ass'n of Chicago, 128 Ill. App. 3d 68, 69 (1984). Consequently, we find that the petitioner has failed to present a record sufficient to allow this court to review either the trial court's order denying his petition for substitution of judge for cause, or its judgment for dissolution of marriage. Therefore, we must presume that its rulings conformed to the law and had a sufficient factual basis. Foutch, 99 Ill. 2d at 392. ¶ 11 For the foregoing reasons, we affirm the judgment of the trial court. ¶ 12 Affirmed.
The petitioner's action for dissolution of marriage (case number 13 D 2283) was later consolidated with the respondent's separate action for support (case number 12 D 10672). --------