Illinois Appellate Lawyer Blog
Ralph L’s baby, Haley, was born with a cocaine addiction. When Haley was released from the hospital, the State of Illinois took her into protective custody and placed her with foster parents. The State also filed a lawsuit asking that Haley be made a ward of the court. The State did not at that time ask the trial court to terminate Ralph’s parental rights.
The trial court soon made Haley a ward of the court. A goal was set to return Haley to Ralph in 12 months, if Ralph were able to meet certain conditions. Ralph did not meet two of the conditions: submission to random drug testing and completion of domestic violence and mental health assessments.
So the trial court allowed the State to file a petition to terminate Ralph’s parental rights. Four months later the State did so. But Ralph had not been given personal service of the State’s petition. The trial court proceeded with the termination hearing anyway, even though Ralph was not there and service had been accomplished only by publication. The State asked for, and received, an order of default against Ralph.
Ralph and a new lawyer appeared at the next hearing. Ralph was given leave to file a request to set aside the default. He did so under Illinois Civil Procedure Code section 2-1301. Later, Ralph filed another request to vacate the default, that one under code section 2-1401. The trial court ultimately denied Ralph’s request to vacate the default because he had insufficient evidence of a meritorious defense and of due diligence in pursing a defense. Ralph’s parental rights vis-à-vis Haley were terminated.
Ralph appealed, and the case worked its way to the Illinois Supreme Court. The supreme court ruled that 2-1301was the proper rule to use to vacate the default against Ralph, and that 2-1301 did not require a showing of a meritorious defense or of due diligence. So it was reversible error to require Ralph to show those conditions.
The Illinois Supreme Court explained the difference between an attempt to vacate an order of default under 2-1301 and a default judgment under 2-1401. Here is how the supreme court explained it:
The substantive standards applicable to these two statutes are different. Where a litigant seeks to set aside a default under section 2–1301(e), which governs before final judgment has been entered or within 30 days thereafter, the litigant need not necessarily show the existence of a meritorious defense and a reasonable excuse for not having timely asserted such defense … Rather, the overriding consideration is simply whether or not substantial justice is being done between the litigants and whether it is reasonable, under the circumstances, to compel the other party to go to trial on the merits …
By contrast, where a litigant seeks relief from a final order or judgment more than 30 days after its entry pursuant to section 2–1401(a), the burden he or she faces is substantially greater. A party seeking to set aside a final order or judgment under section 2–1401(a) is required to show by a preponderance of the evidence not only the existence of a meritorious claim or defense in the original action, but also due diligence in pursuing the claim or defense in the circuit court as well as due diligence in presenting the petition for relief under section 2–1401(a) … The only time a meritorious claim or defense or due diligence need not be established in a proceeding under section 2–1401(a) is when the order or judgment at issue is attacked as void …
When Ralph sought to set aside the finding of default in this case, he initially framed his request as a motion brought pursuant to section 2–1301(e) … He subsequently recast the request in the form of a petition under section 2–1401(a) … in response to the State’s contention that Ralph’s original motion was untimely and that the circuit court no longer had jurisdiction to consider. The assumption that section 2–1301(e) was no longer available and that section 2–1401(a) was the only procedural mechanism left to Ralph for challenging the entry of default against him subsequently took hold. It was accepted uncritically by both the circuit and appellate courts in this case and served as the predicate for the rulings which followed.
In fact, the State and the lower courts had things reversed. As a matter of law, the only statutory provision which could have been properly invoked by Ralph under the circumstances present here was the one he did invoke in his initial motion, section 2–1301(e). Relief under section 2–1401(a) was premature.
The reason for this is clear, though it went unrecognized in the proceedings below: the circuit court’s April 14, 2009, ruling that Ralph had defaulted on the petition to terminate was not a final judgment or order. To be final, an order or judgment must terminate the litigation between the parties on the merits or dispose of the rights of the parties, either on the entire controversy or a separate part thereof … The April 14 order did not meet this test [because “orders terminating parental righs are nonfinal and interlocutory.”]
The lesson for appellate practitioner is: 2-1301s are interlocutory and cannot be appealed immediately; 2-1401 judgments are final and appealable. In this case, the supreme court concluded that Ralph’s 2-1301 request to vacate the order of default should have been allowed. Read the whole case, In re Haley D., 2011 IL 110886, by clicking here.