Monday, February 23, 2015

Illinois Supreme Court Finds the Public Interest Exception Does Not Confer Jurisdiction Over a Moot Interlocutory Appeal Arising From a “Form” Order Entered During a Custody Dispute

Partner, Donohue Brown Mathewson & Smyth LLC

In re Marriage of Eckersall, 2015 IL 117922, a Cook County dissolution of marriage proceeding, was finalized in 2014. While the case was pending, the husband sought joint custody of the couple’s three children. When the parties did not meet the circuit court’s deadline for reaching a visitation agreement, the court entered a form order that restricted the parents’ conduct and communications with the children during the proceedings. Among other restrictions, the order prohibited the parents from using corporal punishment in disciplining the children, from discussing the pending litigation with them, and from removing the children from the state without the other parent’s consent or a court order. The wife objected to the order and pursued an interlocutory appeal under Supreme Court Rule 307(a) (eff. Feb. 26, 2010), which allows interlocutory appeals from injunctions. With one justice dissenting, the appellate court found that the order did not constitute an injunction and dismissed the appeal for lack of jurisdiction.

After accepting the wife’s petition for leave to appeal, the Illinois Supreme Court dismissed the appeal, but for a different reason than the appellate court had stated. By the time the supreme court addressed the substance of the appeal, the circuit court had entered its final dissolution order, which superseded the “form” order to which the wife had objected.  Undisputedly, the form order that was the subject of the appeal was moot. The question for the supreme court, however, was whether the public interest exception to the mootness doctrine called for the court to address the substance of the superseded order.

The supreme court found that the form order, which was “generally only used” in Cook County dissolution proceedings when the parties could not agree on visitation terms, did not meet the first requirement for the public interest exception: the appeal presents an issue that has widespread effect on the public. The absence of conflicting authorities led the court to conclude that the second requirement, a need for authoritative determination, also was not present. Finally, the third factor, a likelihood of future recurrence, had not been met given the lack of past litigation involving this issue. Distinguishing this case from other cases presenting important issues involving minors, such as a minor’s physical safety or the protection of neglected or abused children, the supreme court found that the narrowly construed public interest exception to the mootness doctrine did not apply. The supreme court concluded “this type of  ‘form’ order has a limited application and does not have a significant effect on the public as a whole.” Therefore, the petition for leave to appeal had been improvidently granted, and the high court dismissed the appeal as moot. 

Recommended Citation: Karen Kies DeGrand, Illinois Supreme Court Finds the Public Interest Exception Does Not Confer Jurisdiction Over a Moot Interlocutory Appeal Arising From a “Form” Order Entered During a Custody DisputeThe Brief(February 23, 2015),

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