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2 November 2000

JUSTICE McLAREN delivered the opinion of the court:

The respondent, L.W., appeals the trial court's orders findingthe respondent in default, terminating his parental rights to D.,and denying his motion to vacate these orders and the judgment ofadoption. We vacate the trial court's order denying therespondent's motion to vacate and remand the case for furtherproceedings.

On April 1, 1999, D.Y., the natural mother of D., and E.Y.,D.Y.'s husband, filed a petition to adopt D., a boy, born December21, 1995. The petition stated that the respondent was presumed tobe the boy's father, explaining that "[P]arentage was establishedadministratively at the hospital where the child was born, but [therespondent] denies any parentage." The petition also alleged thatthe respondent would consent to the adoption if he could be locatedand that, if he could not be located, the respondent's parental rights should be terminated for wilful desertion and/or abandonmentof D. On May 13, 1999, the petitioners mailed the notice of thepetition to adopt to the respondent's home.

On May 18, 1999, the petitioners filed a motion for the entryof an interim order seeking the appointment of a guardian ad litemfor D. At the May 20, 1999, hearing on the petition to appoint aguardian, the respondent appeared pro se. The trial court grantedthe petitioners' motion to appoint a guardian and ordered thematter taken off the call, stating that the respondent representedto the court that blood testing to determine paternity had beenperformed but that the respondent had not been able to pay for theservice. The order stated that the respondent intended to locatethe service provider and pay for the services.

On May 27, 1999, a summons was issued directing the respondentto file an answer or to appear. The summons and a copy of thepetition to adopt were served by abode on June 1, 1999, and leftwith the respondent's mother.

On June 24, 1999, the guardian ad litem filed her report,recommending that the petition for adoption be granted "in theevent that all other statutory requirements are satisfied."

On July 15, 1999, the petitioners filed a petition toterminate the parental rights of the respondent to D. The petitionwas set for hearing that same day. The petition alleged that therespondent's parentage had been established administratively at thehospital but that the respondent later denied being D.'s father ina court case and failed to pay for blood tests despite three courtorders. The petition further alleged that visitation and childsupport had already been suspended on May 26, 1996. Further, therespondent had little or no contact with D, had deserted the child,and did not send gifts or cards. The record shows that one weekearlier, on July 8, 1999, the respondent was served with thepetition to terminate and notice of the hearing on the petition.

On July 15, 1999, the respondent failed to appear at thehearing or file an answer or any other pleading. The trial courtfound the respondent in default. After hearing testimony from D.'smother, petitioner D.Y., the trial court found that the respondentfailed to maintain a reasonable degree of interest, concern, care,and responsibility for D. and "failed to provide any financialsupport from the birth of the child through the present." Thetrial court granted the petitioners' motion to amend the petitionto conform with the proofs. The trial court then found that it wasin D.'s best interest to terminate the respondent's parentalrights. The trial court then terminated the respondent's parentalrights and entered an interim order placing the child in thetemporary custody of the petitioners. The trial court explained inits order that agency appointment was not necessary because it wasa related adoption.

A bystander's report indicates that on August 19, 1999, therespondent appeared pro se and presented the court with a "Motionto Suspend All Motions of Adoption By the Petitioners and ReinstateVisitation and Child Support." The respondent told the court thathe had not received notice of the July 15, 1999, hearing until fourdays after the hearing, on July 19. The trial court denied themotion, explaining that it was filed more than 30 days after theentry of the default and termination order. According to thebystander's report, the trial court explained that it was divestedof jurisdiction to vacate the order. The trial court then enteredthe judgment of adoption.

On September 1, 1999, the respondent filed a motion, pro se,to "vacate all judgments enter [sic] on July 15 and August 19,1999." During the hearing on the motion, the respondent explainedthat he had not received notice of the July 15, 1999, hearing, hehad made some child support payments, the child's mother preventedthe respondent from having contact with D. and did not provide anyphotographs of D., and the respondent's gifts to D. had beenreturned. The petitioners' counsel argued that the respondent'smotion was improper and that, under section 2--1401 of the Code ofCivil Procedure (Code) (735 ILCS 5/2--1401 (West 1998)), therespondent had failed to exercise due diligence. The trial courtruled that the respondent "failed to take any action after beingserved and received notice for more than two and a half months andfailed to exercise due diligence." The trial court denied therespondent's motion.

After the trial court granted the respondent's motions to havethe court file unsealed on November 4, 1999, this court granted therespondent's motion for leave to file a late notice of appeal. OnNovember 24, 1999, the respondent filed his late notice of appeal,specifying the orders of July 15, August 19, and September 16,1999.

On appeal, the respondent argues that the trial court erred bydenying his motions attacking the default and termination order,filed both prior to the entry of final judgment and within 30 daysafter the entry of final judgment. The respondent asserts that thetrial court improperly applied the standard applicable to section2--1401 of the Code rather than the less stringent standardapplicable to section 2--1301(e) of the Code. 735 ILCS 5/2--1401,2--1301(e) (West 1998). The respondent claims, in part, that theJuly 15, 1999, order terminating the respondent's parental rightswas not a final order.

Two different sections in the Code address setting asidedefault judgments: section 2--1301(e) and section 2--1401(a). 735ILCS 5/2--1301(e), 2--1401(a) (West 1998). Section 2--1301(e)addresses motions to set aside default judgments either before afinal judgment or order has been entered or within 30 days afterthe entry of a final judgment of order. Section 2--1301(e) of theCode provides:

"The court may in its discretion, before final order orjudgment, set aside any default, and may on motion filedwithin 30 days after entry thereof set aside any final orderor judgment upon any terms and conditions that shall bereasonable." 735 ILCS 5/2--1301(e) (West 1998).

In comparison, section 2--1401 of the Code addresses motions to setaside default judgments after 30 days of the entry of a finaljudgment or order. Section 2--1401(a) of the Code provides, inpart:

"Relief from final orders and judgments, after 30 daysfrom the entry thereof, may be had upon petition as providedin this Section." 735 ILCS 5/2--1401(a) (West 1998).

Given the more disruptive nature of vacating a judgment or orderafter 30 days of its entry, the party seeking the vacation of adefault judgment or order has a greater burden under section 2--1401(a) than under section 2--1301(e). Cruz v.Columbus-Cuneo-Cabrini Medical Center, 264 Ill. App. 3d 633, 639(1994).

The primary concern in ruling on a motion to vacate undersection 2--1301(e) is whether substantial justice is being donebetween the litigants and whether it is reasonable under thecircumstances to proceed to trial on the merits. Merchants Bank v.Roberts, 292 Ill. App. 3d 925, 930 (1997). The trial court mustconsider numerous factors, such as "the presence of a meritoriousdefense, due diligence, the residence of the nonmovant, theseverity of the penalty as a result of the judgment, and thehardship on the nonmovant if that party is required to go totrial." Marren Builders, Inc. v. Lampert, 307 Ill. App. 3d 937,941-42 (1999).

In comparison, to qualify for relief under the more stringentstandard of section 2--1401:

"[T]he petitioner must show by a preponderance of theevidence: (1) a meritorious defense or claim in the originalaction; (2) due diligence in pursuing the defense or claim inthe circuit court; and (3) due diligence in presenting thesection 2--1401 petition." Cruz, 264 Ill. App. 3d at 639.

Further, a section 2--1401(a) petition must be supported byaffidavit or other showing of matters not contained in the record. Cruz, 264 Ill. App. 3d at 639.

A reviewing court's decision to grant or deny a motion tovacate a default judgment under either section 2--1301(e) orsection 2--1401(a) will not be disturbed, absent an abuse ofdiscretion. Merchants Bank, 292 Ill. App. 3d at 930 (discussing section 2--1301(e) motion); American Ambassador Casualty Co. v.Jackson, 295 Ill. App. 3d 485, 492 (1998) (discussing section 2--1401(a) petition). The trial court cannot be said to have abusedits discretion if reasonable persons could differ as to itsdecision. Merchants Bank, 292 Ill. App. 3d at 930.

As previously stated, section 2--1301(e) applies only tomotions filed before final judgment or within 30 days of the entryof final judgment. Thus, we must determine whether the respondentcomplied with this requirement.

The respondent argues that the July 15, 1999, order was not afinal order and that a final order was not entered until August 19,1999, when the trial court entered the judgment of adoption. Therefore, according to the respondent, his motions to suspend and vacate were timely under section 2--1301(e). The petitioners arguethat the respondent's "motion to suspend" was not a motion tovacate the default judgment and that his motion to vacate was nottimely under section 2--1301(e) because the July 15, 1999, orderwas final. Regardless of whether the motion to suspend wasproperly before the court, we determine that the respondent'smotion to vacate was filed within 30 days of entry of a final orderand, therefore, the trial court erred by failing to consider therespondent's motion to vacate under section 2--1301(e).

An order is final if it terminates the litigation between theparties on the merits or disposes of the rights of the parties onthe entire controversy. In re Marriage of Blanchard, 305 Ill. App.3d 348, 351 (1999). An order that leaves a cause still pending andundecided or leaves matters regarding the ultimate rights of theparties for future determination is not a final order. In rePetition to Incorporate the Village of Greenwood, 275 Ill. App. 3d465, 470 (1995).

In In re Estate of Griffin, 160 Ill. App. 3d 670, 675 (1987),the Appellate Court, Fifth District, held that in an adoptionproceeding an order terminating a parent's rights is a nonfinal,interlocutory order which does not become final until the judgmentof adoption is entered. Griffin, 160 Ill. App. 3d at 675. InGriffin, a father's parental rights were terminated, but, beforethe adoption judgment was entered, the child died. The trial courtthen dismissed the adoption petition. The court held that theorder terminating the father's parental rights was not a finalorder. Therefore, the dismissal of the adoption petition "had theeffect of setting aside the interlocutory [termination] order."Griffin, 160 Ill. App. 3d at 675. The trial court then determinedthat the father was the child's heir. Griffin, 160 Ill. App. 3d at676.

Contrary to the petitioners' belief, the factual differencesbetween Griffin and this case do not alter the validity of thecourt's analysis. With the Griffin decision in mind, we determinethat the July 15, 1999, order terminating the respondent's parentalrights in this case was not final until the judgment of adoptionwas entered on August 19, 1999. Therefore, the respondent's motionto vacate, filed 13 days after the judgment of adoption wasentered, was timely filed under section 2--1301(e) of the Code. 735 ILCS 5/2--1301(e) (West 1998).

The petitioners cite In re A.S.B., 293 Ill. App. 3d 836(1997), In re C.B., 221 Ill. App. 3d 686 (1991), and In re Workman,56 Ill. App. 3d 1007 (1978), to support their argument. However,these cases are distinguishable because nothing in these casesindicates that the respondent filed a timely motion to vacate adefault judgment under section 2--1301(e) of the Code after theentry of the judgment of adoption. Thus, these cases are notcontrolling here.

We also note that the respondent could have filed aninterlocutory appeal attacking the termination order under SupremeCourt Rule 307 (155 Ill. 2d R. 307). However, it is well settledthat Rule 307 is not the exclusive means for appealing an interimorder terminating parental rights. Griffin, 160 Ill. App. 3d at674. Rather, an appeal of such an order may be taken after thefinal judgment in the adoption proceeding has been entered. Griffin, 160 Ill. App. 3d at 674. Simply put, an interlocutoryorder, which may be appealable pursuant to Supreme Court Rule 307(155 Ill. 2d R. 307), does not transmute the interlocutory orderinto a final order.

Having determined that the respondent's motion to vacate wastimely filed under section 2--1301(e) of the Code, we now discusswhether the trial court applied the correct standard in consideringthe motion.

It is clear from the bystander's report of the hearing on themotion to vacate that the trial court applied the more stringentstandard applicable to section 2--1401 of the Code. The respondenttestified that he was not present at the July 15, 1999, hearingbecause he had not received notice; he also testified that he hadmade some child support payments and had attempted to have contactwith his son, obtain photos of him, and give gifts to him. Counselfor the petitioners argued that the respondent had not met therequirements of a section 2--1401(a) petition. In this context, thetrial court then denied the respondent's motion based solely on therespondent's alleged lack of due diligence. Thus, the bystander'sreport reveals that the trial court considered only the duediligence factor in its decision and did not consider the otherappropriate factors applicable to section 2--1301(e) motions tovacate.

Accordingly, we vacate the trial court's denial of therespondent's motion to vacate and remand the cause with directionsto the trial court to conduct a hearing and make its decision afterconsidering the relevant factors under section 2--1301(e) of theCode. If, after considering the appropriate factors, the trialcourt decides to grant the respondent's petition to vacate, then wedirect the trial court to vacate its judgment terminating therespondent's parental rights and its judgment of adoption andproceed on the merits of the petitions.

Finally, the respondent argues that the adoption petition wasfatally defective because it was not verified or signed by both ofthe petitioners. When married persons seek adoption, both husbandand wife are necessary parties to the adoption. 750 ILCS 50/2(West 1998). Verification and the signatures of both husband andwife on the petition are the easiest ways to meet this requirement. Upon remand the record should be clarified to reflect whether allnecessary parties are joined.

For these reasons, the judgment of the circuit court of KaneCounty is vacated, and the cause is remanded for furtherproceedings.

Vacated and remanded.

BOWMAN, P.J., and HUTCHINSON, J., concur.