In Re Marriage of Lange
717 N.E.2d 507
Ill. App. Ct.
1999
Check Treatment

In re MARRIAGE OF SUSANNA M. LANGE, n/k/a Susanna M. Wassill, Petitioner-Appellant, and Gayle A. Lange, Respondent-Appellee.

Fourth District No. 4-98-0860

Fourth District

Opinion filed September 3, 1999.

307 Ill. App. 3d 303

. In this case, the evidence showed the applicable industry standard, ASTM Standard F381-84, applied to round trampolines commonly used in backyards and, further, that Jumpking‘s warnings complied with this standard.

Because we find the dangers of using a trampoline to be open and obvious, thus obviating any duty to warn a teenage user of the trampoline, we make no determination whether the Nairns are protected from liability under the Recreational Use Act. 745 ILCS 65/1 et seq. (West 1992). For similar reasons, we make no determination whether plaintiffs established a causal link between Christa‘s injuries and the alleged inadequacy of the warning given because the Nairns had no duty to warn Christa, and the warnings given were adequate. Finally, we need not reach the issue posited in No. 4-98-0717, so we dismiss that appeal as moot.

The orders of summary judgment entered in favor of defendants, Jerry and Betty Nairn and Jumpking, are affirmed.

No. 4-98-0675, Affirmed.

No. 4-98-0717, Appeal dismissed.

McCULLOUGH and GARMAN, JJ., concur.

Richard M. Kash, Jr., of Fruin, Garst & Kash, of Paris, for appellant.

Joseph R. Schroeder, of Bennett, Schroeder & Wieck, of Marshall, for appellee.

JUSTICE McCULLOUGH delivered the opinion of the court:

Petitioner Susanna M. Lange, n/k/a Susanna M. Wassill (Susanna), appeals an order of the circuit court of Edgar County denying her petition to move the parties’ minor children, Anna Louise Lange, born October 16, 1990, and James Albert-Galen Lange, born October 15, 1992, from Indiana to Texas. Susanna had custody of the children pursuant to a judgment of dissolution of her marriage to respondent Gayle A. Lange (Gayle), entered January 21, 1994. The only issue raised on appeal by Susanna is whether the trial court‘s findings were against the manifest weight of the evidence or, in the alternative, the trial court improperly considered the “necessity” of Susanna‘s move to Texas. We affirm.

The parties and this court are familiar with the facts, and only those facts necessary to an understanding of this court‘s disposition will be discussed.

Although no court from another state has asserted jurisdiction and the parties have never challenged the trial court‘s jurisdiction or that court‘s authority to enter an order regarding removal of the children from Indiana to Texas, the dissent addresses the issue, necessitating that this question be addressed. See (an order or judgment is void if the trial court lacked (1) jurisdiction of the subject matter or over the parties or (2) the inherent power to make or enter the order); . The judgment of dissolution awarded custody to Susanna, subject to visitation agreed to in the marital settlement agreement. The judgment recited that Susanna resided in Terre Haute, Indiana, and Gayle resided in Metcalf, Illinois. The judgment further stated, “This court retains jurisdiction of this cause for the purpose of enforcing the terms of this Judgment of Dissolution of Marriage.” The marital settlement agreement did not specify the visitation rights of Gayle except to say that he was entitled to “reasonable visitation *** with the restriction that no overnight visitations will be allowed without first acquiring approval of” Susanna. The testimony of the parties established that, by agreement, Gayle‘s visitation immediately following the dissolution of marriage was exercised weekly at Susanna‘s house. Sometime in 1996, after Susanna felt the children could handle overnight visitation, Gayle exercised visitation on Saturday and Sunday every other week, although he had requested the children from 5 p.m. Friday to 6 p.m. Sunday. The only periods of “extended” visitation exercised by Gayle were two 4-day periods in the summer of 1997; 10 days during the Christmas season in 1997 when Susanna visited her friend in Houston, Texas; and 11 days in July 1998 when Gayle and his fiancée, Barbara Windmiller, took the children to Orlando, Florida.

On July 11, 1998, Susanna filed a pleading entitled “MOTION FOR LEAVE TO REMOVE MINOR CHILDREN.” The prayer for relief asked that (1) she be allowed to move the children to Texas, (2) visitation be modified “as the Court deems appropriate,” and (3) the court grant other relief it deems appropriate. The petition alleged that “visitation can be adjusted to allow for extensive visitation for summertime and over extended holiday periods.”

Even though the children were residing with Susanna in Terre Haute, Indiana, at the time the petition was filed, the trial court had jurisdiction. The trial court had jurisdiction of the parties. Both appeared and participated in the proceedings instituted in the trial court by Susanna. With regard to subject-matter jurisdiction, a circuit court has continuing jurisdiction in child custody matters such that the revestment doctrine need not be utilized. . The rationale in Oertel relied on section 601(a) of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (Ill. Rev. Stat. 1989, ch. 40, par. 601(a) (now 750 ILCS 5/601(a) (West 1996))). Section 601(a) of the Marriage Act in turn refers to section 4 of the Illinois Uniform Child Custody Jurisdiction Act (Illinois Act) (750 ILCS 35/4 (West 1996)). Section 4(b) of the Illinois Act provides:

“A court, once having obtained jurisdiction over a child, shall retain such jurisdiction unless it concedes jurisdiction to a foreign state or none of the parties to the action, including the child, remain in Illinois.” 750 ILCS 35/4(b) (West 1996).

Section 4(b) is not part of the Uniform Child Custody Jurisdiction Act (Uniform Act) (Uniform Child Custody Jurisdiction Act, 9 U.L.A. 115 (1988)) and is unique to Illinois. See (a Michigan court‘s declared retention of jurisdiction was not deemed effective to prevent an Illinois court from obtaining jurisdiction of a child living in Illinois).

In the case at bar, the judgment of dissolution expressly stated the circuit court of Edgar County retained jurisdiction for enforcement of the judgment. That judgment did not concede jurisdiction to any other state, and Gayle remained a resident of Illinois. On that basis alone, the trial court had subject-matter jurisdiction. See (courts once having obtained jurisdiction do not lose it unless it is conceded to a foreign state, and it was undisputed that the Illinois court never conceded jurisdiction). This court in , in referring to the Illinois Act, stated:

“Under the Uniform Act, it is possible for several states to have jurisdiction. ‘[T]he first such [s]tate to exercise jurisdiction has the exclusive right to proceed.’ . The first step in a case arising under the Illinois Act is for the circuit court to determine whether jurisdiction is possible under one of four bases (750 ILCS 35/4(a) (West 1996)); only after this has been done will the circuit court decide whether the court of another state is a more appropriate forum.”

Here, the parties never questioned jurisdiction of the Illinois court, and no simultaneous proceedings existed in courts of other states (see 750 ILCS 35/7(a) (West 1996)).

In addition, section 4(a)(2) of the Illinois Act gives the trial court jurisdiction if it is in a child‘s best interests that the Illinois courts assume jurisdiction because (1) the child and at least one contestant have a significant connection with Illinois and (2) substantial evidence is available in Illinois concerning the child‘s present or future care, protection, training, and personal relationships. 750 ILCS 35/4(a)(2) (West 1996). The significance of the connections and the substantialness of the evidence are questions to be decided in the event one of the parties challenges the jurisdiction of the trial court. Here, whether significant connections and substantial evidence exist that are sufficient to confer jurisdiction is never raised in the circuit court, and the custodial parent has conceded the question of the trial court‘s jurisdiction by filing the petition in a circuit court in Illinois.

Furthermore, the evidence that was presented in this case would support a finding of jurisdiction under section 4(a)(2) of the Illinois Act: (1) the children‘s father is a lifetime resident of Illinois; (2) the children visit him in Illinois on a regular basis; (3) numerous extended family members with whom the children have close relationships live in Illinois; (4) the parties lived in Illinois during their marriage; (5) the children lived in Illinois until the dissolution of their parents’ marriage; and (6) an Illinois court dissolved the marriage and made the original custody and visitation determinations. Five of the seven witnesses who testified in this matter were Illinois residents. Although the mother and children lived in Indiana, their home and those of the mother‘s principal witnesses were less than an hour‘s drive from the father‘s Illinois home.

, is helpful. In Kitchen, nobody lived in Illinois. The dissolution was obtained in the circuit court of Bureau County, Illinois. Subsequently, the noncustodial father moved to Texas. The custodial mother took the daughter to Nebraska and then filed a petition seeking authorization for removal from Illinois in the circuit court of Bureau County. The father tried to get a Texas court to take jurisdiction, but the Texas court deferred to the Illinois court. The Kitchen court held that the circuit court of Bureau County had jurisdiction. . In Kitchen, nobody tried to invoke the jurisdiction of a Nebraska court, and here nobody tried to invoke the jurisdiction of an Indiana or Texas court. See also (at the time of the agreed order allowing removal of the children from Illinois to Iowa, the parties agreed that jurisdiction would remain with the courts in Illinois).

Finally, if all else fails, the parties have revested the trial court with jurisdiction. In , , the court discussed the revestment of jurisdiction doctrine as follows:

“[L]itigants may revest a court which has general jurisdiction over the matter with both personal and subject[-]matter jurisdiction over the particular cause after the 30-day period following final judgment during which post-judgment motions must ordinarily be filed. (.) ‘In order for the rule to apply, the parties must actively participate without objection in proceedings which are inconsistent with the merits of the prior judgment.’ .”

A related question is the trial court‘s authority to deny a request to move the children from Indiana to Texas. The premise for the argument that the trial court did not have the authority to enter its order was based on the belief that the only statute authorizing the trial court to address removal of children was section 609 of the Marriage Act (750 ILCS 5/609 (West 1996)). Here, Susanna‘s motion in the trial court did not recite that it was made pursuant to section 609 of the Marriage Act. Although her argument in this court suggests Susanna has accepted the trial court‘s finding that this matter is controlled by section 609(a), this court need not accept the trial court‘s reasoning since it is the trial court‘s judgment, not its reasoning, that is being reviewed. .

Section 609(a) of the Marriage Act requires the custodial parent to petition to remove the child “from Illinois.” 750 ILCS 5/609(a) (West 1996). In this case, the child was already permitted to be removed from Illinois, and the trial court‘s approval was implicit in the original decision of dissolution. In this case, Susanna‘s motion purported to be a petition for removal, but it was also in the nature of a petition to modify visitation to facilitate Susanna‘s move to Texas with the children. The trial court had jurisdiction to consider the removal and visitation issues. The order denying Susanna‘s request to move the children from Indiana to Texas was within the authority of the trial court to enforce the custody and visitation provisions of the judgment of dissolution. The minor children of the parties to a dissolution of marriage proceeding are deemed wards of the court during their minority. See , quoting . It is clear from the legislature‘s placement of section 609 within “Part VI-Custody” of the Marriage Act that the legislature recognized that moving children impacts the visitation rights of the noncustodial parent and the best interests of the children. Moreover, one of the stated purposes of the Illinois Act is to deter the unilateral removal of children. 750 ILCS 35/2(a)(5) (West 1996); . In this case, the trial court‘s authority to deny Susanna‘s request to move the children to Texas was an inherent part of the trial court‘s authority to enforce the custody and visitation provisions of the judgment of dissolution.

Custody and visitation are determined on the basis of the best interests of the children. .

“When a court designates one parent as the custodial parent, that designation does not and should not deprive the noncustodial parent of all rights and privileges as a parent. As section 602(c) of the Act provides, ‘[t]he court shall presume that the maximum involvement and cooperation of both parents regarding the physical, mental, moral, and emotional well-being of their child is in the best interest of the child.’ (Ill. Rev. Stat. 1991, ch. 40, par. 602(c).) Further, the custodial parent has the duty to strengthen and nurture in every way possible the relationship between the children and their noncustodial parent.” .

, also provides guidance:

“Continuity in lifestyle and environment is important to the healthy and normal development of children. (.) Changes in the custodial parent‘s residence and employment may be relevant factors in determining the children‘s best interest.”

The Supreme Court of Illinois has recognized that (1) the removal of a child to a distant location will substantially impair the noncustodial parent‘s involvement with that child, and (2) one of the purposes of the Marriage Act is to secure the maximum involvement and cooperation from both parents regarding a child‘s physical, mental, moral, and emotional well-being, during and after the litigation. , quoting Ill. Rev. Stat. 1987, ch. 40, par. 102(7) (now 750 ILCS 5/102(7) (West 1996)). The removal of the children from the current custodial residence, when related to the issue of modification of visitation, is also to be determined on the basis of the best interests of the children. See 750 ILCS 5/609(a) (West 1996); .

“Regarding the motives of the custodial parent in seeking the move, we note that the mere desire to move to another state, without more, is insufficient to show that the move is in the child‘s best interest. ; . Courts must remain vigilant to ensure that custodial parents do not ‘employ removal as a weapon, especially in light of the severe statutory limitations placed upon restriction or termination of visitation.’ .” .

In the case at bar, to determine that the trial court did not have the authority to rule upon the request to move the children from Indiana to Texas would deprive the trial court of the authority to enforce the visitation provisions of the judgment of dissolution in spite of the clear legislative intention to the contrary expressed in the Illinois Act and the Marriage Act. Here, the circuit court in Illinois entered the judgment of dissolution and retained jurisdiction to enforce that judgment. It has the authority, incident to its power to enforce and modify the custody and visitation provisions of the judgment of dissolution, to grant or deny a motion by a custodial parent residing with the children outside of Illinois to remove the children from the current custodial residence to a more remote residence in some third state.

The remaining issue is whether the trial court‘s order denying removal from Indiana to Texas was erroneous. Although section 609(a) of the Marriage Act is not directly implicated, the standards applicable to a petition to remove children from Illinois are equally applicable here.

Section 609(a) of the Marriage Act provides:

“The court may grant leave, before or after judgment, to any party having custody of any minor child or children to remove such child or children from Illinois whenever such approval is in the best interests of such child or children. The burden of proving that such removal is in the best interests of such child or children is on the party seeking the removal.” 750 ILCS 5/609(a) (West 1996).

In removal actions, a trial court‘s determination of what is in the best interests of the child should not be reversed unless it is clearly against the manifest weight of the evidence and it appears that a manifest injustice has occurred. .

The factors courts should consider in determining the best interests of the children in removal cases include the following: (1) the likelihood that the proposed move will enhance the general quality of life for both the custodial parent and the children; (2) the motives of the custodial parent in seeking the move to ascertain whether seeking to move is a ruse to defeat or frustrate visitation; and (3) the motives of the noncustodial parent in contesting the move. ; see also . Because it is in the best interests of the children to have a healthy and close relationship with both parents, as well as other family members, the visitation rights of the noncustodial parent should be carefully considered, and it should be determined whether a realistic and reasonable visitation schedule can be reached if the move is allowed. A reasonable visitation schedule is one that will preserve and foster the children‘s relationship with the noncustodial parent. .

In the proceedings below, the trial court found no basis for questioning Susanna‘s motive in seeking the move or in Gayle‘s motive in resisting the move. We find no reason to disturb the trial court‘s determinations with regard to these factors. Susanna sincerely wants to move to Houston, and this desire is not founded on improper motives. However, “the mere desire of the custodial parent to move to another [s]tate, without more, is insufficient to show that the move would be in the children‘s best interest.” . Susanna had the burden to show that the move was in the best interests of the children. She testified the children were safe, happy, loved, and receiving a good education in Terre Haute. At the time of the hearing, Anna was seven and James was five. The children have close relationships with members of their mother‘s and father‘s extended families living in the Terre Haute area, while they would have no extended family in the Houston area.

Susanna testified part of the reason she wanted to move to Houston was to improve her financial position. However, the evidence simply did not reveal any significant financial advantage flowing from the move to Houston. Susanna testified she had been a tenured mathematics teacher with a master‘s degree working in the Vigo County, Indiana, public school system on an 80% contract. Not working full-time allowed her to spend extra time with the children. She earned $25,683 per year on the 80% contract and originally intended to seek full-time employment in the Vigo County school system for the 1998-99 school year because James would be in school at that time. As a full-time teacher, she would earn approximately $32,500 per year, and she expected a 3.4% raise on top of that. After starting up a friendship with a teacher from Houston, Texas, Susanna visited that area, found it culturally and recreationally appealing, accepted a job offer from the Houston public school system, resigned her position in Indiana, purchased a home in a Houston suburb, and moved there. The children remained in Indiana with Susanna‘s mother and brother pending the outcome of this proceeding. With the Houston public schools, Susanna received a one-year probationary contract at $31,968 per year. She expected a 5% raise after the first year. The cost of health insurance was less, benefits were better, and she eventually could earn an extra $500 as a teacher-mentor. She believed she could eventually earn more in Houston with a doctorate in mathematics. However, she had not looked into employment opportunities in the areas of Indiana and Illinois near her home. Her house payment and real estate taxes in Houston were between $650 and $700 per month. Before selling her home in Indiana, her house payment was $300 per month, but she would need a larger home if she remained in Indiana. Thus, the record provides support for finding that the move to Houston would not enhance the general quality of life of Susanna and the children.

With regard to this factor, similarity exists between the facts of this case and the facts in Eckert. There, the supreme court affirmed the trial court‘s denial of a petition to remove filed by the mother. The mother testified she was moving to improve her financial condition, but the new position she intended to take would have paid little, if any, more than the position she held in Illinois. Moreover, she had not sought alternative employment near her Illinois home. .

Concerning visitation, the supreme court stated in Eckert that when a parent has assiduously exercised his or her visitation rights, a court should be loathe to interfere with visitation by permitting removal of the children for frivolous or unpersuasive or inadequate reasons. Moreover, a trial court‘s examination of a removal petition should be guided by the policy of securing maximum involvement and cooperation of both parents regarding the physical, mental, moral, and emotional well-being of the children. . In the instant case, Gayle has “assiduously” exercised his visitation rights, and denial of the petition would promote maximum involvement of both parents in the lives of their children. The evidence also established that the children‘s relationship with extended family members from both sides of the family would be disrupted by the move to Texas.

Susanna argued that the relationship between the children and Gayle would improve with a few extended visits, as opposed to a larger number of brief visits, and the total number of days of visitation would actually increase slightly under her proposed visitation schedule. When faced with a similar argument in , this court stated:

“[I]t seems clear that respondent‘s visitation with his daughter, which now takes place on alternate weekends, would be severely curtailed. Even if a plan was submitted that preserved the actual number of visitation days, we cannot ignore the fact that the interval between these visits would be drastically changed.”

Having heard all of the evidence on this matter, the trial court could reasonably find that the visitation schedule proposed by Susanna would not preserve and foster the relationship between Gayle and his children.

Finally, Susanna argues the trial court improperly created a “necessity” requirement for removal petitions. This assertion is based on the trial court‘s observation that this is not a case of a remarriage with the new spouse being transferred through job necessity to the Houston area. The trial court‘s order gives no indication that it considered remarriage and transfer of a new spouse as a prerequisite for granting removal petitions. This comment is merely one of several observations made by the trial court concerning the facts of this case, including the necessity and economic impact of the move to Houston.

A determination of the best interests of the children must be made on a case-by-case basis, depending, to a great extent, upon the circumstances of each case. . In this case, the trial court held a hearing over the course of two days, receiving testimony from seven different witnesses. The trial court‘s decision is not against the manifest weight of the evidence or manifestly unjust.

The judgment of the circuit court of Edgar County is affirmed.

Affirmed.

KNECHT, P.J., concurs.

JUSTICE MYERSCOUGH, dissenting:

I respectfully dissent. When these parties divorced in 1994, petitioner was given permission to remove the children from Illinois to Indiana. Petitioner now seeks permission to remove the children from Indiana to Texas. It is my opinion that the trial court lacked both the subject-matter jurisdiction to hear this matter and the statutory authority to enter an order approving or denying the request. In the alternative, if the majority is correct in its contention that the trial court could consider this matter under the guise of a motion to modify visitation, the case should be remanded for consideration under the standards applicable to modification of visitation rather than the standards applicable to removal.

The majority first asserts that the trial court had jurisdiction over this matter pursuant to the Illinois Act. However, the Illinois Act, by title and definition, is applicable only to matters involving child custody disputes. 750 ILCS 35/1, 2 (West 1996). The Illinois Act‘s only application to removal matters is to “deter abductions and other unilateral removals of children undertaken to obtain custody awards.” 750 ILCS 35/2(a)(5) (West 1996); see also . The instant case does not involve a dispute concerning the custody of the parties’ children. Therefore, the trial court cannot find authority for its actions under the Illinois Act.

The majority apparently looks to the Illinois Act for the trial court‘s authority because it recognizes that the authority cannot be found in the Illinois statute concerning the actual issue in this case—the interstate removal of children. Section 609(a) of the Marriage Act bestows upon a court the authority to determine whether a party having custody of a minor child may remove the child “from Illinois.” 750 ILCS 5/609(a) (West 1996). This is the sole grant of authority to Illinois courts with regard to removal issues. To illustrate the limitations of this language, assume a custodial mother has received leave of court to remove her children from Illinois to North Carolina. Several years later, she decides to move to South Carolina. Nothing in section 609(a), or elsewhere in the Marriage Act, would require the mother to seek an Illinois court‘s permission before making such a move. More important, nothing in the Marriage Act would give an Illinois court the authority to determine whether the mother may move her children from North Carolina to South Carolina. A move from Indiana to Texas involves different geographic locations, but the same legal principles.

The majority relies on . However, unlike the instant case, Kitchen was a custody dispute that involved the Illinois Act. Moreover, in Kitchen, a pending petition was filed by the custodial parent in an Illinois court seeking leave to remove the children from Illinois to Nebraska, when the noncustodial parent took the children from Nebraska to Texas without permission from the court. Kitchen is therefore inapposite.

The majority also cites . While factually similar to the instant case, Ballegeer does not directly address the issue under consideration here. Ballegeer involved a petition to remove children from Iowa to Colorado. However, Ballegeer does not discuss the court‘s authority to allow or deny the move. As in the instant case, it appears the parties and the court simply assumed such authority existed. Ballegeer is an example of a court doing what the trial court did in the instant case. Unfortunately, however, it does not provide us with any guidance on whether the court actually had the authority to decide the issue.

Similarly, this court‘s recent decision in Arulpragasam is not dispositive of the issue in the instant case with regard to Illinois law, as it concerned both custody and removal questions, was brought under the Illinois Act, and involved removal from Massachusetts to Illinois. . Therefore, it offers no guidance on situations in which Illinois is neither the current residence of the children nor the state to which permission for removal is sought. However, the procedural history of the parties in the Massachusetts court, as outlined in our decision in Arulpragasam, is instructive. The Massachusetts court found that it could exercise jurisdiction over the matter pursuant to the Illinois Act. However, because the facts of the case did not satisfy the requirements of the Massachusetts removal statute, the court decided it was without authority to either grant or deny the mother‘s request for permission to remove the children permanently to Illinois. . Similarly, Illinois courts lack statutory authority to rule on this particular removal issue.

I focus on statutory authority because the specific grant of statutory authority must be identified in dissolution actions. Dissolution of marriage and collateral matters are entirely statutory in origin and nature. . No common law governs dissolution. . The circuit court‘s jurisdiction in dissolution matters is conferred only by statute. The court may not rely on general equity powers. .

Statutory considerations extend not only to the authority of the court to enter the order entered below, but also to the court‘s subject-matter jurisdiction. Where the legislature has intended a particular requirement to serve as a limitation on the authority of the court, failure to comply with the statute is an action outside the subject-matter jurisdiction of the court. ; . The issue of subject-matter jurisdiction cannot be waived by the parties. .

The majority also attempts to support the trial court‘s authority by viewing the proceedings below as an action to modify the visitation granted in the original dissolution order. This characterization of the proceedings is difficult to reconcile with the record. The petition was brought as a petition to remove pursuant to section 609(a) of the Marriage Act. The evidence and arguments of counsel were tailored to the requirements of section 609(a). The order of the trial court cited section 609(a) and specifically addressed the elements to be considered in removal cases under section 609(a) as identified by the supreme court in Eckert, . In fact, the majority relies upon the Eckert elements in its review of the merits of the trial court‘s decision. The Eckert “plus” standards applied by this court create a near-insurmountable obstacle to overcome and unnecessarily impair and infringe upon the custodial parent‘s discretion to choose where he or she wants to work and live and raise the children.

Moreover, the question of visitation was merely tangential to the removal question litigated below. However, if the trial court‘s authority to decide this case was based on its authority to modify visitation, this matter should be remanded. Upon remand, the parties can litigate the visitation issue pursuant to visitation statutes and standards rather than having a visitation issue decided on the removal statute and stringent removal standards.

L. DEAN WILLIS, Petitioner, v. THE DEPARTMENT OF HUMAN RIGHTS, Chief Legal Counsel, et al., Respondents.

Fourth District No. 4-98-0967

Fourth District

Argued July 21, 1999.—Opinion filed September 21, 1999.