On the TV show “Columbo”, the detective and show’s namesake would shuffle around after his initial inquiry, finally say “one more thing…” and then get his final point in…whereupon the case would be solved. Columbo pretended to be a fool when, in fact, Columbo had played the interviewed party for a fool!
Well, a lot of divorce lawyers do the exact same thing in court. A divorce lawyer will appear in a status call or some other kind of hearing and then chime in, “Oh yeah, one last thing judge…dad has a Faberge egg and we want to sell it.” The judge, enjoying the non-confrontational vibe and realizing the enormity of this previously forgotten request will often grant relief right then and there.
The other side’s client will then wonder, “What happened? That was NOT what was supposed to happen!”
Oral Motions In An Illinois Divorce Court
A motion “is an application to the court for a ruling or an order in a pending case.” In re Marriage of Sutherland, 622 N.E.2d 105, 107 (Ill. App. Ct. 1993).
Most attorneys are courteous enough to write up their motion so that their request for relief and its bases are crystal clear to both the court and the opposition.
Some attorneys, due to lack of time or hoping to catch the other side by surprise, just make oral motions. Oral motions are allowed in an Illinois court.
“[A]n oral motion…[that] seeks relief from the court just as surely as a signed, written motion.” Modern Mailing Systems v. McDaniels, 547 NE 2d 762 – Ill: Appellate Court, 4th Dist. 1989
The problem with oral motions is that they rarely have the proper notice that written motions almost always have.
Notice is required for due process, the basis of Anglo-American jurisprudence. “No state shall make or enforce any law…without due process of law” U.S. Const., amend. XIV
“Notice and the right to be heard…is at the bedrock of our system of jurisprudence.” Hill v. Village of Pawnee, 16 Ill. App. 3d 208, 209-10 (1973)
“At a minimum, due process requires that a deprivation of property cannot occur without providing notice and an opportunity for a hearing appropriate to the nature of the case.” In re Marriage of Beyer and Parkis, 753 NE 2d 1032 – Ill: Appellate Court, 1st Dist., 1st Div. 2001
Without notice, you cannot be properly prepared to respond. “The opportunity to respond is deeply imbedded in our concept of fair play and substantial justice.” English v. Cowell, 10 F. 3d 434 – Court of Appeals, 7th Circuit 1993
Motions have to have a notice. You are even supposed to file proof of the notice.
“Pleadings subsequent to the complaint, written motions, and other documents required to be filed shall be filed with the clerk with a certificate of counsel or other proof that the documents have been served on all parties who have appeared” Ill. Sup. Ct. R. 104(b)
No notice means the motion, oral or written, should be denied.
“[W]hen an injunction is issued without notice in a case where notice should have been given, this court will reverse the order upon that ground without regard to any other question.” (Internal quotation marks omitted.) Hill v. Village of Pawnee, 16 Ill. App. 3d 208, 209-10 (1973)
Oral motions have no notice…they are just blurted out.
Local court rules often don’t allow for oral motions. For example, “[a]ll motions, petitions and applications shall be made in writing.” Cook Co. Cir. R. 13.4(a)(i)(a)). Despite these local rules, oral motions happen all the time.
Strict adherence to the requirement for formal written notice would make all oral motions a nullity. That is definitely not the case.
Illinois courts are quick to forgive a lack of notice if there is a good reason.
“For good cause shown on ex parte application, the court or any judge thereof may excuse the delivery or service of any complaint, pleading, or written motion or part thereof on any party, but the attorney filing it shall furnish the document promptly and without charge to any party requesting it.” Ill. Sup. Ct. R. 104(c)
Almost any notice of the oral motion can be deemed sufficient notice.
“[S]ome notice, however informal, is greatly to be preferred to none at all.” (Internal quotation marks omitted.) Nagel v. Gerald Dennen & Co., 272 Ill. App. 3d 516, 521 (1995)
A previous conversation about the possible oral motion can be sufficient notice.
“Informal, telephonic notice has been recognized as sufficient notice.” Amer. Warehousing Services v. Weitzman, 169 Ill. App. 3d 708, 715 (Ill. App. Ct. 1988)
Sufficiently friendly opposing counsel can be presumed to have provided notice as “[s]uch informal notice is particularly required when the parties or their attorneys are familiar with one another, have engaged in discussions, and are able to appear in court within minutes” Quigg v. Saleem, 2022 IL App (4th) 220720
Unless there is a written motion (or portion of a motion or pleading) similar to the oral motion or if the matter has been sufficiently discussed, there is no notice.
If it is the first time you are hearing about an issue from an opposing counsel, you should object vociferously and say “I have no notice of this request for relief and, therefore, you cannot make any order based on this request, Your Honor.”
Oral motions are not merely casual motions where the facts are loose as a cocktail party anecdote. Oral motions must allege real facts and real law or the oral motion maker will be sanctioned.
“We do not strain for this result simply to punish deceit. Courts, particularly volume courts, often deal with oral motions and honor those well taken. An attorney who makes an oral motion ought be held to the same standard as if the motion had been on paper.” Modern Mailing Systems v. McDaniels, 547 NE 2d 762 – Ill: Appellate Court, 4th Dist. 1989
Sua Sponte Orders In An Illinois Divorce
The oral motion’s more mature cousin is the sua sponte order.
Sua sponte means “without prompting or suggestion; on it’s own motion” Black’s Law Dictionary (11th ed. 2019)
A judge will often issue a sua sponte order if the judge is not hearing an oral motion that the judge wants to hear.
“I’ve heard enough,” a judge will lament and then issue an order based on a motion…no one made.
Judges aren’t supposed to do this without giving the parties sufficient notice to prepare for and argue the judge-invented motion.
So “important are the basic principles of our system that a party receive notice and an opportunity to respond to a potentially dispositive motion.” Peterson v. Randhava, 729 NE 2d 75 – Ill: Appellate Court, 1st Dist., 1st Div. 2000
“By its very nature, a sua sponte ruling deprives a party of notice and an opportunity to raise objections because the court acts on its own and without any warning.” Peterson v. Randhava, 729 NE 2d 75 – Ill: Appellate Court, 1st Dist., 1st Div. 2000
Various Illinois courts “have approved the practice [of sua sponte decisions] under the rationale that a sua sponte disposition is proper under the inherent authority of a court to control its docket. Still others prohibit the practice entirely, reasoning that a petitioner must be given notice and the opportunity to respond (in the absence of any responsive pleading) before the trial court may rule.” People v. Vincent, 871 NE 2d 17 – Ill: Supreme Court 2007
A judge can be reminded that sua sponte orders without notice are not allowed under due process principles and Illinois case law. But, good luck getting a judge to change their mind.
[T]he trial court possesses the inherent authority to control its own docket and the course of litigation.” J.S.A. v. M.H., 863 N.E.2d 236, 244-45 (Ill. 2007)
Furthermore, a judge might bat away your objection for lack say “I was put on notice of the issue by the facts of the case. You got the same notice I did just now. That’s why I made the decision.”
Finally, judges do what they want with Sua Sponte orders…because most sua sponte orders are not final order and are, thus, unappealable.
“Every final judgment of a circuit court in a civil case is appealable as of right.” Ill. Sup. Ct. R. 301
“The threshold question [before beginning an appeal] is whether the trial court’s order is final and[, thus,] appealable.” Trizzino v. Kline Brothers Co., 435 NE 2d 958 – Ill: Appellate Court, 3rd Dist. 1982
Issues regarding kids are always appealable, however.
“The following judgments and orders are appealable without the finding [of a final order] required for appeals…
A custody or allocation of parental responsibilities judgment or modification of such judgment entered pursuant to the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/101 et seq.) or Illinois Parentage Act of 2015 (750 ILCS 46/101 et seq.).” Ill. Sup. Ct. R. 304(b)(6)
“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)
How To Defeat An Oral Motion Or A Sua Sponte Order
If a judge won’t hear your objections against an oral motion or a sua sponte order, fear not, there are more arrows in your quiver.
File a motion to reconsider the sua sponte order or the order derived from an oral motion.
“In all cases tried without a jury, any party may, within 30 days after the entry of the judgment or within any further time the court may allow within the 30 days or any extensions thereof, file a motion for a rehearing, or a retrial, or modification of the judgment or to vacate the judgment or for other relief.” 735 ILCS 5/2-1203(a)
“The purpose of a motion to reconsider is to bring to a court’s attention: (1) newly discovered evidence; (2) changes in the law; or (3) errors in the court’s previous application of existing law.” Liceaga v. Baez 2019 IL App (1st) 181170 (citations are omitted)
The issue was brought up by surprise. Of course, there will be newly discovered evidence or errors in the court’s previous application of existing law.
What is best is that the mere filing of the motion to reconsider makes the order moot until a ruling on the motion to reconsider.
“[A] motion [to reconsider] filed in apt time stays enforcement of the judgment except that a judgment granting injunctive or declaratory relief shall be stayed only by a court order that follows a separate application that sets forth just cause for staying the enforcement.” 735 ILCS 5/2-1203(b)
So, the order apropos of nothing becomes nothing until the motion is properly briefed and heard.
When you finally do get the motion properly heard via a motion to reconsider, make sure there is a court reporter and that you properly preserve the record. Doing so will let the judge know that you are not only ready to do things properly…you are prepared to share your work with an appeal court at some time when orders become truly final.
Do not get pushed around in the courtroom. Control your divorce case. Hire an Illinois divorce lawyer who has thought these issues out instead of just saying “well, that’s how we’ve always done it.” Contact my Chicago, Illinois family law firm to speak with an experienced Illinois family law attorney.