Posted on December 9, 2023

Certified Questions In An Illinois Divorce

Divorce law is incredibly broad in Illinois. The Illinois Marriage and Dissolution of Marriage Act covers everything from what happens if you miss a visit with a child to how to divide a railroad pension plan.

When the Illinois Marriage And Dissolution of Marriage Act do not specify a rule, the Illinois appeals courts step in to make new case law that comport with the statute and all the other decisions the courts have made in the past.

Still…new issues come up all the time. Important issues that the court, the lawyers and the litigants need to resolve before proceeding further with the underlying case.

Nothing is as disheartening to the divorce litigant as when their divorce lawyer confesses “actually, there’s no rule for that.”

When there is no rule for something and the trial court is not feeling creative (in your favor, of course), you can ask the trial court to give you permission to send the question to the appellate court to make the rule which you will, subsequently, follow.

Why Do You Need Permission To Appeal?

Courts do not want litigants appealing their case in the middle of the case.

“Temporary orders certainly may not be appealed immediately, on an interlocutory basis, before the entry of a final order.” In re Marriage of King, 336 Ill.App.3d 83, 88, 270 Ill.Dec. 540, 783 N.E.2d 115 (2002) 

Any non-final order is deemed to be an interlocutory order.

Some interlocutory orders, such as any injunction, can be automatically appealed.

“An appeal may be taken to the Appellate Court from an interlocutory order of court:(1) granting, modifying, refusing, dissolving, or refusing to dissolve or modify an injunction;” Ill. Sup. Ct. R. 307(a)(1)

Other issues such as parenting time and parental decision-making, can be appealed only after getting permission.

“A party may petition for leave to appeal to the Appellate Court from the following orders of the trial court:

from interlocutory orders affecting the care and custody of or the allocation of parental responsibilities for unemancipated minors or the relocation (formerly known as removal) of unemancipated minors, if the appeal of such orders is not otherwise specifically provided for elsewhere in these rules;” Ill. Sup. Ct. R. 306(a)(5)

Every other order in an Illinois divorce court is interlocutory with no exception. It cannot be appealed…unless you get permission from the judge.

Certifying A Question In An Illinois Divorce Case

A divorce judge may be as perplexed as you are in how to address a certain issue. Additionally, the divorce judge may not be willing to simply make up a rule (at least not in your favor).

Remove all doubt from your divorce judge and ask them for permission to allow the Appellate court to weigh in on the matter.

A certified question is “an exception to the general rule that [an] appeal may be had only from final judgments.” McMichael v. Michael Reese Health Plan Foundation, 631 NE 2d 317 – Ill: Appellate Court, 1st Dist., 5th Div. 1994

“When the trial court, in making an interlocutory order not otherwise appealable, finds that the order involves a question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, the court shall so state in writing, identifying the question of law involved. Such a statement may be made at the time of the entry of the order or thereafter on the court’s own motion or on motion of any party. The Appellate Court may thereupon in its discretion allow an appeal from the order.” Ill. Sup. Ct. R. 308(a)

The appellate court can only consider the actual question before it.

“This court’s examination in an interlocutory appeal is strictly limited to the questions certified by the trial court and, as with all questions of law, is a de novo review. We will ordinarily not expand the question under review to answer other questions that could have been included but were not.. Our task is to answer the certified questions rather than to rule on the propriety of any underlying order.  In the interests of judicial economy and reaching an equitable result, however, a reviewing court may go beyond the certified question[s] and consider the appropriateness of the order giving rise to the appeal.” Fosse v. Pensabene, 362 Ill. App. 3d 172, 177 (Ill. App. Ct. 2005) (citations omitted)

However, appeals courts can change your question as it deems necessary.

“In all appeals the reviewing court may, in its discretion, and on such terms as it deems just,… enter any judgment and make any order that ought to have been given or made, and make any other and further orders and grant any relief…that the case may require.” Ill. S. Ct. R. 366(a)(5)

Sometimes, the appeals court can make a ruling beyond the certified question, if deemed appropriate.

“[I]n the interests of judicial economy and reaching an equitable result, it is necessary that we go beyond the certified questions and consider the appropriateness of the order giving rise to the appeal.” Fosse v. Pensabene, 362 Ill. App. 3d 172, 188 (Ill. App. Ct. 2005)

Expecting the appeals court to rule beyond the question is, typically, just wishful thinking. The Illinois Supreme Court warns against broader rulings for appeals brought under rule 308.

“Although this court has sometimes reviewed the propriety of the trial court order giving rise to the appeal of a certified question, it has always done so “in the interests of judicial economy and the need to reach an equitable result. While judicial economy is undoubtedly advanced whenever a ruling is reviewed on interlocutory appeal… equity must also be considered. …[E]quity calls on this court to endow the parties and the trial court with the opportunity to develop this case in an enlightened manner on remand“ DE BOUSE v. Bayer AG, Ill: Supreme Court 2009

Illinois appeals courts have to take special care that the answers to their certified questions are not based on facts not yet determined (and can only be determined by a trial court). Certified questions are only supposed to be about unclear matters of law.

“As too often happens, a certified question is framed as a question of law, but the ultimate disposition depends on“ the resolution of a host of factual predicates. Thus, any answer we provide would be an advisory opinion. The courts of Illinois do not issue advisory opinions to guide future litigation and this case is no exception.” Luccio v. Rao (In re Estate of Luccio), 367 Ill. Dec. 777, 785 (Ill. App. Ct. 2012)

Finally, submitting a certified question will not delay the underlying divorce case.

“The application for permission to appeal or the granting thereof shall not stay proceedings in the trial court unless the trial court or the Appellate Court or a judge thereof shall so order.” Ill. Sup. Ct. R. 308(f)

Identifying an interesting and unresolved legal issue should be the highlight of a judge’s job. A break from the monotony of prove-ups, summary hearings and scheduling dates.

Positing the possibility of a certified question to a judge in a pretrial setting or a status is a big signal to the judge: “This case has problems. We’re relying on you to solve those problems. If you don’t solve this problem, we’ll take it to an appeals court. But, for now, we want to work with you on solving this problem.”

Certifying Questions In A Deposition

“Certify the question” is a phrase that is also used in depositions for a similar but different purpose.

In a deposition, there are almost no objectionable questions. The deponent has to answer every question that is not privileged. Should the deponent’s attorney and the lawyer conducting the deposition disagree as to whether a question is allowable, either party may announce for the record that they are “certifying the question.”

In the case of a deposition, the question gets reviewed by the trial court after being motioned up. You can see how this is similar to certifying the question for appellate purposes: the answer is unknown until it is brought to a referee later.

If your case has a weird legal issue that no one seems to be able to answer with any certainty…well, that sounds like my kind of case. Contact my Chicago, Illinois family law firm to schedule an appointment with an experienced Illinois divorce attorney.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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