2013 IL App (1st) 130032
Ill. App. Ct.2013Background
- Russell Pruitt, maternal grandfather of B.B., filed a petition for grandparent visitation under 750 ILCS 5/607(a-3) on Sept. 5, 2012.
- Respondents Stephanie Pruitt and Patrick Barrett, the child's unmarried parents, moved to strike and dismiss under 735 ILCS 5/2-619(a)(9).
- Russell alleged that from 2010 to 2012 Stephanie and B.B. resided in his home and he provided care and support.
- Initial sheriff service attempts at the Euclid Avenue address failed; Heimann stated the defendant did not live there.
- A special process server later served Stephanie and Patrick at the Euclid address; Stephanie personally, Patrick by abode service.
- Trial court granted dismissal on standing grounds, and Russell appealed the dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether dismissal was proper without an evidentiary hearing on standing | Pruitt contends a factual dispute exists about living together | Pruitt & Barrett presented sworn affidavits showing they live together | Yes; dismissal affirmed; no material fact issue requiring an evidentiary hearing |
Key Cases Cited
- Van Meter v. Darien Park District, 207 Ill. 2d 359 (2003) (2-619 dismissal standard; affirms de novo review of dismissal)
- Epstein v. Chicago Board of Education, 178 Ill. 2d 370 (1997) (burden shifting on 2-619(a)(9) motions; affidavits vs. complaint)
- Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112 (1993) (burden-shifting framework for 2-619(a)(9))
- Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90 (1992) (competent evidence standard for Rule 191 affidavits)
- State ex rel. Beeler, Schad & Diamond, P.C. v. Target Corp., 367 Ill. App. 3d 860 (2006) (hearsay limits and admissibility of evidence)