*1 nar- abuse of The fact that trial court entertained a discretion. injunction entering at issue not war- rower before the order here does modification, did rant as we have determined that trial court its abuse discretion.
Finally, we characterization of the trial disagree with defendant’s injunction for an permitting court’s order as continue period expressly indeterminate of time. order states The 3, 2003, for no than injunction longer through July will be force termination, year one which is after defendant’s accord covenant. judgment County of the circuit court of Kane is affirmed.
Affirmed. JOHNSON, JJ.,
BOWMAN and GILLERAN concur. Heinrich, DAVIS, K. K. Petitioner- In re MARRIAGE OF DAWN n/k/a DAVIS, Appellant, Respondent-Appellee. CRAIG District Third No. 3—02—0555 Opinion filed June *2 HOLDRIDGE, J., dissenting. Kuleck, Jr., Ottawa,
Edward J. appellant. for Leynaud Zywica, Rebecca Leynaud Leynaud, Law Offices of Peru, & appellee. for JUSTICE LYTTON opinion delivered the of the court: The petitioner, Heinrich, and the respondent, Davis, Craig were divorced in Custody 1999. daughter of their by Kirsten was set joint parenting agreement. Dawn later filed a petition modify to Kirsten’s visitation schedule and to resolve where Kirsten should at- tend school. The trial court determined that Kirsten should attend Ottawa, Illinois. The trial judge refused to hear evidence on the motion for modification of the visitation schedule based on his opinion that no material change in circumstances unknown to the par- ties at the joint time of the parenting agreement had occurred. Dawn appeals, arguing that the trial judge abused his discretion not ad- dressing consideration, visitation issue. After careful affirm in we part, in part, reverse and remand for further proceedings.
When Dawn and Craig divorced, Kirsten was almost three years old. At the dissolution, time of the Ottawa, Illinois, Dawn resided and Craig in Granville, resided joint Illinois. The parenting agreement parties
provided split that would be between as follows: until 4 p.m. Monday p.m. Kirsten was to reside with Dawn from Wednesday. Wednesday Friday, to p.m. p.m. From until she was Friday p.m. Monday, with From 4 Craig. p.m. reside until Kirsten week, following days to reside Dawn. The the visitation was reversed, with Craig having custody Monday through Wednesday on Friday through having custody and Dawn from Wednes- Monday, and day through Friday. effect of the schedule was that
The every agreement parent days each 14. The Kirsten resided with custodial provided parent parent further each during his or her time with her. agreement provided in the
Additionally, provision par- agree by May could where Kirsten was to to school go ties school, either could year begin party petition she then go Nothing provision to determine she would school. this where once court made a discussed determination on the school issue. petition joint custody agreement
Dawn filed a on January petition requested grant primary that the court 2002. began at- custody of Kirsten to Dawn so that when Kirsten physical Craig fall tending primary school in the would have residence. she dismiss, arguing filed a motion to was no at the time was not circumstance that *3 petition trial and dismissed the without agreed the divorce. The hearing. a May 20, 2002, petition filed a to the trial court
On Dawn have modify and to which school Kirsten should attend visita- determine that a mother stay-at-home In this Dawn stated she was petition tion. community ties to the and to and that had numerous both Kirsten grade school in Ot- attending children that would be the same other that that if the court determined tawa. Dawn also asserted Ottawa, the visitation modify in the court should would attend school week in Ottawa than the spent during that Kirsten more time the so dismiss, filed a to response, Craig motion present schedule allowed. custody. to asserting attempt modify another simply that this was judge repeatedly stated hearing petition, At the on the the trial in best inter- custody arrangement not Kirsten’s that the current a in circumstances. attending He that school was est. found about However, provision regarding court intervention on the based that the attend, judge to the found which school the decision of they entered the at the time circumstance was that result, judge the determined agreement. As joint parenting the (Act) (750 Marriage of Act Marriage and Dissolution the Illinois under (West hearing 2000)), authority et had no to hold a seq. ILCS he 5/101 Therefore, granted Craig’s he motion as custody on the modification. modification, hearing the proceeded visitation and matter the on the school determination. had a
At the Dawn evidence that Kirsten hearing, presented in Dawn sibling attending and friends who would be school Ottawa. mom, would take Kirsten stay-at-home testified that she was and she from every day to school and be home when Kirsten arrived school. schedule, he he Craig employment testified that had a flexible and would be able to home when Kirsten arrived from school if she at- be Currently, any tended school in Granville. Kirsten did not have friends had attending who would be the Granville school. He stated that he looked on at the created the report various websites “school cards” state, and that Granville better than Ottawa schools scored schools report several areas. The as school cards not entered evidence. The trial judge determined attend that Kirsten should school days further that judge residing Ottawa. ordered on the she was Craig, bring up he was to her to was to pick her after school and her Craig’s custody. During hearing return again judge expressed his belief the custody that was not in Kirsten’s best interest.
Dawn contends that the court
in failing
hearing
erred
to hold a
on
the motion to
modify
custody agreement.
peti-
The dismissal of a
modify custody
tion to
is reviewed for an
re
abuse
discretion. In
(1992).
Marriage
339,
Fuesting,
Ill.
3d
App.
N.E.2d 960
The Act provides
custody may
only
be
modified
the court
that a
finds
circumstances has occurred due to
facts
not be
could
ascertained at the
the parenting agreement
time
entered and
custody
that modification of
will serve
best interests
5/610(b) (West 2000).
child.
750 ILCS
Additionally, there exists
strong
presumption in
maintaining
quo
favor of
status
Nolte,
arrangements.
Marriage
320,
In re
3d
App.
Ill.
609 N.E.2d
(1993).
stability
The rationale behind this
is
presumption
is
important
Nolte,
in the
App.
320,
lives
children.
241 Ill.
3d
However,
overarching
N.E.2d 381.
Act
purpose
promote
is to
children; therefore,
the best interest of the
once
is before
court, it
has broad discretion to
child’s
Oros,
interests. In Marriage
App.
re
256 Ill.
3d
627 N.E.2d
(1994).
*4
When
determining
circumstances,
been a
in
change
has
Nolte,
the
totality
trial court must look at the
of the circumstances.
320,
App.
Ill.
3d
in
change
N.E.2d 381. The
circumstances
directly
Diddens,
must
child. In Marriage
affect the needs of the
re
(1993).
850,
cases,
differ-
Ill.
N.E.2d 1033
In some
the
App.
3d
needs of
same
ences between the needs of a small child
the
in
change
be
a
child as an adolescent can
sufficient
constitute
679,
Marriage Andersen,
236 Ill.
3d
App.
circumstances. See
re
(1992).
the
cases,
instability
In other
the inherent
Affirmed in and reversed cause J., BARRY, concurs. HOLDRIDGE, dissenting:
JUSTICE 610(b) Mar- Marriage and Dissolution of the Illinois Subsection riage Act states: unless it custody judgment modify prior
“The court shall not evidence, basis of facts that convincing upon the by clear and finds *5 prior judgment have since the or that unknown to the arisen *** entry judgment, time of that a prior at the either has occurred the circumstances of child or or both parties having custody, necessary that the modification is and 5/610(b)(West2000). serve the best interest of child.” 750 ILCS provision requirements This outlines two that must be satisfied before First, must custody arrangement. a court can be clear changed way convincing and evidence that circumstances have Second, foreseen made. modification not when must be child’s interest. necessary serve the case, requirement clearly the instant the first is not satisfied. Although parents did know where Kirsten precisely not would at- they custody arrangement, they obviously tend school when made the it happen knowledge would knew either Ottawa or Granville. This the majority’s analysis disingenuous. renders The court’s order direct- ing Kirsten to simply attend school in Ottawa did create an un- (by any standard, forseen of circumstances alone by let clear evidence). convincing otherwise, In finding majority seems be influenced that a a conviction modification would serve Kirsten’s type analysis best interest. This two commingles require- keeps ments the statute distinct. I respectfully thus dissent. ILLINOIS, THE PEOPLE THE OF Plaintiff-Appellee, OF STATE v. CANULLI, D. Defendant-Appellant. MICHAEL Fourth District No. 4—01—0094
Opinion filed June 2003.