Divorces seem to go on forever. Even when a case is over, virtually every issue that was decided upon is modifiable. Because an Illinois divorce court’s orders are almost always modifiable, it is crucial that all the previous orders (and the motions that led up to those orders getting entered) be included in the official court file.
Furthermore, it is impossible to properly appeal an Illinois divorce without presenting the appeals court with a proper and complete copy of the entire court file.
If you notice that something is missing in your Illinois divorce’s court file, you have the right to ask that the court file be supplemented with the pleadings, motions, affidavits, exhibits and orders that properly reflect the record of the case.
What Is Supposed To Be In An Illinois Divorce’s Court File?
It is the circuit clerk of court’s duty to keep the records of the court for their respective county.
“The clerks shall enter of record all judgments and orders of their respective courts, as soon after the rendition or making thereof as practicable.” 705 ILCS 105/14
Pretty much everything associated with the divorce case is supposed to be included in the court file.
“The clerks shall attend the sessions of their respective courts, preserve all the files and papers thereof, make, keep and preserve complete records of all the proceedings and determinations thereof, except in cases otherwise provided by law, and do and perform all other duties pertaining to their offices, as may be required by law or the rules and orders of their courts respectively” 705 ILCS 105/13
These filed documents constitute the “record” of the case.
A record is “the official report of the proceedings in a case, including the filed papers, a verbatim transcript of the trial or hearing (if any) and tangible exhibits.” Black’s Law Dictionary (11th ed. 2019)
The one thing (and probably the biggest thing) that cannot be filed in an Illinois divorce case is discovery.
“No discovery may be filed with the clerk of the circuit court except by order of court. Local rules shall not require the filing of discovery. Any party serving discovery shall file a certificate of service of discovery document.” Ill. Sup. Ct. R. 201(m)
The circuit clerk of court only knows about the documents which are submitted to the clerk for filing. So, if some document is missing from the court file, it is the duty of the parties to try to enter that document the way it was supposed to be entered.
What If Some Documents Is Missing From An Illinois Court File
If, after perusing an Illinois court file, you find references to orders, motions or pleadings but no corresponding copy of those orders, motions or pleadings, you can request that the court supplement the court file with those missing documents.
“[Illinois Supreme Court] Rule 329 provides that a party may supplement the record on appeal to include omissions, correct errors, and settle controversies as to whether the record accurately reflects what occurred in the trial court.” In re Estate of Albergo, 656 NE 2d 97 – Ill: Appellate Court, 2nd Dist. 1995
“Material omissions or inaccuracies or improper authentication may be corrected by stipulation of the parties or by the trial court, either before or after the record is transmitted to the reviewing court, or by the reviewing court or a judge thereof. Any controversy as to whether the record accurately discloses what occurred in the trial court shall be submitted to and settled by that court and the record made to conform to the truth.” Ill. Sup. Ct. R. 329
Illinois supreme court rules are divided into sections. Any supreme court rule that is in the 300s is related to appeals. You do not need an appeal on file to invoke rule 329 as the request for correction can happen “either before or after the record is transmitted to the reviewing court.” Ill. Sup. Ct. R. 329
The record (the court file) must be transmitted to the appeals court within 63 days after filing the notice of appeal.
“[T]he record on appeal shall be filed in the reviewing court within 63 days after the filing of the notice of appeal” Rule 326 – Time for Filing Record on Appeal, Ill. Sup. Ct. R. 326
If the record is not complete, you must make sure the record is supplemented as soon as possible.
“It [is a party’s] duty and obligation as appellant to take all necessary steps to ensure that a proper record was prepared.” Lorts v. Illinois Terminal RR, 400 NE 2d 715 – Ill: Appellate Court, 5th Dist. 1980
Bringing any deficiencies in a court file to the trial court’s attention is not “jumping the gun” but merely adequate preparation for any possible appeal.
In fact, motions to supplement can only be late NOT early.
“[T]ardiness of [a] motion to supplement, [would cause the opposing party to] be unduly prejudiced.” In re Marriage of Sharp, 860 NE 2d 539 – Ill: Appellate Court, 2nd Dist. 2006
A motion to supplement is a “one shot” attempt to correct the record.
“Permitting [a party] to supplement the record would set a dangerous precedent for allowing piecemeal creation of the record, with supplemental briefing and rebriefing, derogating the appellate process.” In re Marriage of Sharp, 860 NE 2d 539 – Ill: Appellate Court, 2nd Dist. 2006
If the documents that are missing exist in either party’s personal files, the update to the file should be easy, just stamp the document and note the effective date of entry as being when the document should have been entered in the file. This is referred to as entering an order “nunc pro tunc.”
“A nunc pro tunc order is an entry now for something previously done, made to make the record speak now for what was actually done then. A court has inherent power to make an entry nunc pro tunc at any time, even after the expiration of its term, to correct a clerical error or matter of form so that the record reflects the actual order or judgment rendered by the court when such entry is based upon a definite and certain record. This power rests partly upon the right and duty of the courts to do entire justice to every suitor, and partly upon their control over their own records and their authority to make them speak the truth.” Kooyenga v. Hertz Equipment Rentals, Inc., 399 NE 2d 216 – Ill: Appellate Court, 1st Dist. 1979
Entering an order that wasn’t properly included in a court file is correcting a “clerical error.”
If no one can find the document that was supposed to be entered in the file…that is a problem.
There is no rule or case law for making a missing document out of whole cloth. But the document’s absence should be memorialized as a finding in a separate order.
When Can You NOT Supplement An Illinois Court Record
The point of supplementing an Illinois divorce court file is create an accurate written version of what happened in the divorce case (that is the “record”).
A supplementation cannot ask to include things either party wishes were in the record but in fact were never filed or presented to the court.
“[Illinois Supreme Court] Rule 329 allows supplementation only with documents which were actually before the trial court.” In re Estate of Albergo, 656 NE 2d 97 – Ill: Appellate Court, 2nd Dist. 1995
“[Illinois Supreme Court R]ule…allows the record on appeal to be supplemented only with evidence actually before the trial court.” Jones v. Ford Motor Co., 807 NE 2d 520 – Ill: Appellate Court, 1st Dist., 4th Div. 2004
A court reporter’s transcript is necessary to make a record of what happened in court.
If “there is no transcript of the [appealed] hearing[‘s decision], there is no basis for [an appeals court] holding that the trial court abused discretion in denying the motion.” Foutch v. O’BRYANT, 459 NE 2d 958 – Ill: Supreme Court 1984
Without a transcript, a proper bystander’s report is necessary. The bystander’s report is what the court official (the judge) recalls.
“If no verbatim transcript of the evidence of proceedings is obtainable the appellant may prepare a proposed report of proceedings from the best available sources, including recollection. In any trial court, a party may request from the court official any recording of the proceedings. The court official or any person who prepared and kept, in accordance with these rules, any recording of the proceedings shall produce such recording to be provided at the party’s expense. Such recording may be transcribed for use in preparation of a bystander’s report.” Ill. Sup. Ct. R. 323(c)
An interested party cannot provide a record of their own version of events.
“It is well established that an attorney’s affidavit may not be used to supplement the record on appeal” Silny v. Lorens, 392 NE 2d 267 – Ill: Appellate Court, 1st Dist. 1979
The first thing a lawyer should do when taking on an existing divorce case is review the file. If something is missing from that file, the lawyer must correct the record for the purposes of preserving the record for future modification, appeal or simply to demonstrate the lawyer’s expertise and thoroughness vis-à-vis the court system’s competence.
If you would like a lawyer who not only achieves your goals but fixes everyone’s previous mistakes, contact my Chicago, Illinois family law firm to speak with an experienced Illinois divorce attorney.