=
[U] Felzak v. Hruby, No. 2-05-0848 (Ill.App. Dist.2 07/28/2006)
| [1] &nbs=
p; | IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT
|
| [2] &nbs=
p; | No. 2-05-0848
|
| [3] &nbs=
p; | 2006.IL.0000497< http://www.versuslaw.com>
| =
| [4] &nbs=
p; | July 28, 2006
|
| [5] &nbs=
p; | GERALDINE FELZAK, PLAINTIFF-APPELLEE,
v.
RALPH HRUBY=
AND SONDRA HRUBY, DEFENDANTS-APPELLANTS.
|
| [6] &nbs=
p; | Appeal from the Circuit Court of Du Page County. No. 94-D-860=
Honorable C. Stanley Austin, Judge, Presiding.
|
| [7] &nbs=
p; | The opinion of the court was delivered by: Justice Kapala
=
|
| [8] &nbs=
p; | Unpublished opinion
|
| [9] &nbs=
p; | Defendants, Ralph and Sondra Hruby, appeal from an August 22=
, 2005, order holding them in indirect civil contempt of court for faili=
ng to obey a June 15, 1995, order providing for grandparent visitation, =
and from a June 8, 2005, order denying their motion to dismiss plaintiff=
's, Geraldine Felzak's, petition to enforce the June 15, 1995, order. We=
affirm in part and vacate in part.
|
| [10] | I. BACKGROUND
|
| [11] | Ralph Hruby and Deborah Hruby were married in 1977 and had three =
children together: Greg, born November 25, 1983; Jeffery, born August 4,=
1985; and Katie, born July 22, 1989. Shortly after Katie was born, Debo=
rah died of a cerebral hemorrhage. On July 16, 1992, Ralph was married t=
o Sondra Hruby. Soon after her marriage to Ralph, Sondra adopted the Hru=
by children on November 1, 1993. On April 6, 1994, plaintiff, Deborah's =
mother, filed a petition for grandparent visitation with the Hruby child=
ren pursuant to section 607(b) of the Illinois Marriage and Dissolution =
of Marriage Act (the Act) (750 ILCS 5/607(b) (West 1992)).
| <=
/TR>
| [12] | In her petition for grandparent visitation, plaintiff alleged tha=
t despite her continued involvement in the Hruby children's lives after =
the death of her daughter, defendants would no longer permit her to have=
visitation with the Hruby children. Plaintiff alleged that after the de=
ath of her daughter, she provided regular care for the children, bought =
them clothes and shoes, and arranged birthday and holiday celebrations f=
or them. However, plaintiff alleged that soon after defendants married, =
defendants refused to allow plaintiff visitation with the children. In t=
heir answer, defendants claimed that during her visitation with the chil=
dren, plaintiff continually made disparaging remarks to the children abo=
ut Sondra, and that the visitation was harming the Hruby children and de=
tracting from defendants' attempts to nurture and build their family. Th=
e parties agree that plaintiff's visitation with the two boys ended on D=
ecember 25, 1993. In their answer, defendants contended that the boys di=
d not want to visit with plaintiff and that defendants would not force t=
he boys to continue to visit with plaintiff. Defendants also claimed tha=
t plaintiff continued overnight visitation with Katie on alternating wee=
kends until April 1994. Defendants' answer to plaintiff's petition for g=
randparent visitation included an affirmative defense that the provision=
s of section 607 of the Act pertaining to grandparent visitation were un=
constitutional.
|
| [13] | On April 29, 1994, the court entered an agreed conciliation order=
referring the parties to Dr. Daniel Hynan for conciliation counseling o=
n the issue of visitation. Dr. Hynan interviewed plaintiff, defendants, =
and the Hruby children and administered psychological tests. On October =
28, 1994, Dr. Hynan recommended that it was in the best interest of the =
children to continue visitation with plaintiff. As a result of Dr. Hynan=
's recommendations, defendants decided to agree to visitation. Before th=
e court ruled on defendants' affirmative defense, the parties entered in=
to an agreed order on December 16, 1994, allowing plaintiff visitation w=
ith the three Hruby children one day per month for six hours and allowin=
g telephonic visitation with the children for up to 30 minutes once per =
month. In exchange, plaintiff withdrew her claims for grandparent visita=
tion. As part of their agreement, the parties also provided that if disp=
utes arose over the agreed order, they would return to counseling to med=
iate the dispute before submitting the dispute to a court. The order als=
o provided that the court retained jurisdiction to enforce the order.
|
| [14] | On April 10, 1995, plaintiff filed a petition for further concili=
ation and other relief, alleging that defendants had failed to provide a=
ny visitation with Greg and Jeff pursuant to the December 16, 1994, agre=
ed visitation order, asking that the court order the parties to return t=
o counseling, and requesting overnight visitation with Katie. Following =
a pretrial conference on April 10, 1995, the court entered an interim or=
der allowing plaintiff to write to Greg and Jeff, and requiring defendan=
ts to encourage them to respond. The interim order also provided that th=
e parties should attempt to resolve overnight visitation between plainti=
ff and Katie. On May 24, 1995, the court entered an order setting plaint=
iff's petition for hearing on August 1, 1995.
|
| [15] | On June 15, 1995, however, plaintiff and defendants entered into =
an agreed order that, in lieu of the previously ordered six hours per mo=
nth of visitation with the three Hruby children, allowed plaintiff to vi=
sit with Katie twice per month, between 3:30 p.m. and 8:30 p.m. on days =
to be agreed upon by the parties. The order further provided that plaint=
iff would withdraw her pending petition for conciliation and other relie=
f.
|
| [16] | On February 24, 2005, plaintiff filed a petition to enforce the a=
greed order of June 15, 1995. In that petition, plaintiff alleges that f=
or nine years following the June 15, 1995, agreed order, she visited wit=
h Katie and Katie never missed a visit. Both parties later testified tha=
t during this time, they agreed outside of court that plaintiff would ha=
ve one 10-hour visitation with Katie per month instead of two 5-hour per=
iods, because this was more convenient for both parties. In her February=
2005 petition, plaintiff alleges that in May 2004, two months before Ka=
tie's fifteenth birthday, defendants stopped plaintiff's visitation with=
Katie completely. Sondra Hruby testified that this was because Katie re=
turned home crying after her April 2004 visit with plaintiff, and that K=
atie did not want to go on any more visits with plaintiff. Plaintiff all=
eges that defendants did not ask the court to modify the visitation orde=
r prior to stopping visitation and that she requested defendants to abid=
e by the June 15, 1995, agreed order on several occasions in the months =
after her visitation with Katie ceased. Ralph wrote plaintiff on Februar=
y 3, 2005, stating that because the Illinois grandparent visitation stat=
ute (750 ILCS 5/607(b) (West 1992)) had been found unconstitutional, he =
believed that the June 15, 1995, agreed order granting plaintiff visitat=
ion with Katie was void and unenforceable.
|
| [17] | In response to plaintiff's February 24, 2005, petition to enforce=
the June 15, 1995, agreed order, defendants filed a motion to dismiss p=
ursuant to section 2--619 of the Code of Civil Procedure (the Code) (735=
ILCS 5/2--619 (West 2004)), which was later superseded by a May 2, 2005=
, amended motion to dismiss, also pursuant to section 2--619 of the Code=
. The amended motion to dismiss alleged that because section 607(b) of t=
he Act, the grandparent visitation statute upon which plaintiff brought =
her petition, was held unconstitutional, the court had no subject matter=
jurisdiction and no authority to enter the June 15, 1995, agreed order =
for visitation.
|
| [18] | On June 8, 2005, the court denied defendants' amended motion to d=
ismiss and held that the agreed order of June 15, 1995, was still in ful=
l force and effect. In denying defendants' amended motion to dismiss, th=
e court held that this case was controlled by In re M.M.D., 213 Ill. 2d =
105, 114-15 (2004), because in that case our supreme court held that agr=
eed orders for grandparent visitation were not void as unconstitutional =
and should be enforced. At the time the court denied defendants' amended=
motion to dismiss, counsel for defendants informed the court that defen=
dants would not abide by the order to enforce the visitation order of Ju=
ne 15, 1995, and requested that the court enter an order holding defenda=
nts in indirect civil contempt to enable them to appeal the question of =
jurisdiction. The court refused this suggestion and instructed counsel f=
or plaintiff to prepare a petition for rule to show cause.
| <=
/TR>
| [19] | On June 10, 2005, plaintiff requested visitation with Katie, and =
on June 17, 2005, defendants informed plaintiff that they would not perm=
it visitation. Then, on June 30, 2005, plaintiff filed a petition for a =
rule to show cause and other relief. In response, defendants asked the c=
ourt to deny plaintiff's petition and to reconsider its June 8, 2005, de=
nial of defendants' motion to dismiss. Defendants cited a recent Fifth D=
istrict opinion, In re Marriage of Dobbs, 358 Ill. App. 3d 308, 310 (200=
5), which held that a court did not have subject matter jurisdiction to =
enter an agreed order allowing a parent visitation with his adult child.=
On July 6, 2005, the trial court granted plaintiff's petition for a rul=
e to show cause and ordered defendants to appear on August 16, 2005, to =
show cause as to why they should not be held in civil contempt for faili=
ng to obey the court's June 15, 1995, visitation order.
|
| [20] | A contempt hearing was held on August 16, 2005. After hearing tes=
timony from plaintiff and defendants, the court found defendants in will=
ful contempt of court for failure to obey the court's order of June 15, =
1995, and reasserted that M.M.D. controlled the case despite the holding=
s of Dobbs. The court ordered that each defendant be incarcerated on alt=
ernating weekends until defendants abide by the June 15, 1995, visitatio=
n order. The court held that defendants could purge themselves of the or=
der of contempt by providing visitation with Katie to plaintiff for 10 h=
ours a month to be held on one weekend day per month. The court further =
ordered sua sponte that neither party have any communication with Katie =
as to "the outcome of the Court case or any impact of that at this time.=
" A written order holding defendants in indirect civil contempt of court=
was entered on August 22, 2005.
|
| [21] | The trial court refused to stay defendants' incarceration pending=
this appeal, but entered a temporary stay for 30 days. On September 8, =
2005, this court granted defendants' motion to stay the contempt judgmen=
t pending this appeal.
|
| [22] | Defendants filed their notice of appeal on August 25, 2005, appea=
ling both the trial court's August 22, 2005, order holding them in indir=
ect civil contempt of court and forbidding communication with Katie abou=
t the case, and its June 8, 2005, order denying their motion to dismiss =
plaintiff's petition to enforce the June 15, 1995, order.
|
| [23] | II. DISCUSSION
|
| [24] | On appeal, defendants contend that the trial court erred both whe=
n it denied their amended motion to dismiss plaintiff's petition to enfo=
rce its June 15, 1995, visitation order and when it entered its August 2=
2, 2005, order holding defendants in indirect civil contempt of court fo=
r failing to obey its June 15, 1995, visitation order. Defendants argue =
that the trial court cannot enforce the June 15, 1995, order allowing pl=
aintiff grandparent visitation, because it is void for lack of subject m=
atter jurisdiction. Defendants also argue that even if subject matter ju=
risdiction exists, the June 15, 1995, agreed order they entered into is =
void for lack of consideration. Furthermore, defendants contend that the=
trial court's sua sponte order at the August 16, 2005, contempt hearing=
, forbidding the parties from having communication with Katie about this=
case, violates their fourteenth amendment rights to the care, custody, =
and control of their child.
|
| [25] | A. Subject Matter Jurisdiction
|
| [26] | Defendants contend that the trial court lacked subject matter jur=
isdiction over plaintiff's claim for grandparent visitation, because pla=
intiff brought her petition for grandparent visitation pursuant to secti=
on 607(b) of the Act, which our supreme court declared unconstitutional =
in Wickham v. Byrne, 199 Ill. 2d 309, 320-21 (2002), on April 18, 2002. =
Defendants assert that this nullified any power the trial court had to e=
nter an order in this case.*fn1 As=
a result, defendants urge that because the June 15, 1995, order is void=
, the trial court can neither enforce the order against them nor hold th=
em in contempt for not obeying the order.
|
| [27] | The parties disagree as to the standard of review in this case. D=
efendants argue that because subject matter jurisdiction is a question o=
f law, our review is de novo. Plaintiff argues that we should reverse th=
e trial court's order of contempt only if it is against the manifest wei=
ght of the evidence, because the final order entered by the trial court =
was an order of contempt. Plaintiff contends that whether noncompliance =
with a court order is willful or the alleged contemnor had a valid excus=
e is a question of fact, to which the manifest-weight-of- the-evidence s=
tandard applies. In support of her argument, plaintiff cites In re Marri=
age of Kneitz, 341 Ill. App. 3d 299 (2003), where this court applied a m=
anifest-weight-of-the-evidence standard to analyze whether a Louisiana c=
ourt order suspending visitation provided a valid excuse for the respond=
ent's violation of an Illinois visitation order. Plaintiff argues that l=
ike the Louisiana court order, the trial court's alleged lack of subject=
matter jurisdiction must be examined as a valid excuse not to obey a co=
urt order.
|
| [28] | Although we would generally review the court's June 8, 2005, orde=
r denying defendants' motion to dismiss under a de novo standard (Brenna=
n v. Kadner, 351 Ill. App. 3d 963, 967 (2004)), and its August 22, 2005,=
order of contempt to see if it was against the manifest weight of the e=
vidence (Kneitz, 341 Ill. App. 3d at 303), the primary issue is whether =
the trial court had subject matter jurisdiction over this entire action.=
Defendants do not argue that their willful violation of a court order w=
as allowed because an affirmative matter excused the violation, but rath=
er they argue that they never violated the June 15, 1995, court order be=
cause the order was void for lack of subject matter jurisdiction. Conseq=
uently, the issue on appeal is not whether the trial court erroneously f=
ound defendants' behavior contemptuous but, rather, whether the court ha=
d the authority to enter an order at all, regardless of the facts. Subje=
ct matter jurisdiction is a question of law that we review de novo. In r=
e Marriage of Chrobak, 349 Ill. App. 3d 894, 897 (2004). As a result, we=
review de novo the issue of whether the trial court had proper subject =
matter jurisdiction to enter its June 15, 1995, order. Chrobak, 349 Ill.=
App. 3d at 897.
|
| [29] | As a preliminary matter, we must address plaintiff's contention t=
hat the trial court's subject matter jurisdiction over this action is of=
no relevance. Because the parties agreed to visitation, plaintiff argue=
s that the court must enforce the order of visitation even if the court =
never had subject matter jurisdiction over the original action. We disag=
ree.
|
| [30] | A consent decree is based upon the agreement of the parties. Peop=
le ex rel. Fahner v. Colorado City Lot Owners & Taxpayers Ass'n, 106 Ill=
. 2d 1, 8 (1985). Ordinarily, a consent decree cannot be challenged, bec=
ause it is a recording of an agreement between the parties and not a jud=
icial determination of rights. Fahner, 106 Ill. 2d at 8. However, a cour=
t will vacate a consent decree in limited circumstances. See City of Hig=
hwood v. Obenberger, 238 Ill. App. 3d 1066, 1072 (1992). It is well sett=
led that subject matter jurisdiction cannot be conferred by consent, sti=
pulation, or waiver. Chrobak, 349 Ill. App. 3d at 897. Although a consen=
t decree is not a judicial determination of rights (Fahner, 106 Ill. 2d =
at 8), it is a recordation of the parties' private agreement in a judici=
al order (M.M.D., 213 Ill. 2d at 114). Any order or judgment of a court =
is void in the absence of subject matter jurisdiction and may be attacke=
d at any time. Sarkissian v. Chicago Board of Education, 201 Ill. 2d 95,=
103 (2002). As a result, we conclude that, like any court order, an agr=
eed order is void if the court lacks subject matter jurisdiction to ente=
r it. City of Marseilles v. Radke, 287 Ill. App. 3d 757, 760 (1997).
=
|
| [31] | Plaintiff further argues that subject matter jurisdiction is not =
an issue because whether a court may enforce a provision of a consent de=
cree providing for grandparent visitation was addressed by M.M.D., which=
holds that courts must uphold orders in which parents agree to grandpar=
ent visitation, despite the holdings of Wickham. In response, defendants=
argue that M.M.D. does not confront the jurisdictional issues in this c=
ase and that Dobbs is directly on point. We agree with defendants that M=
.M.D. does not resolve the jurisdictional issues in this case, but we do=
not apply Dobbs.
|
| [32] | In M.M.D., our supreme court considered whether a provision of a =
consent decree granting grandparent visitation was void as a result of i=
ts decision in Wickham. M.M.D., 213 Ill. 2d at 113-14. The original acti=
on in M.M.D. involved two consolidated cases brought under the Illinois =
Probate Act of 1975 (755 ILCS 5/11a--4 (West 1996)) and the Illinois Par=
entage Act of 1984 (750 ILCS 45/1 et seq. (West 1996)), respectively. M.=
M.D., 213 Ill. 2d at 107. As a result of those consolidated cases, a fat=
her entered into an agreed order with his child's maternal grandparents,=
allowing for grandparent visitation. M.M.D., 213 Ill. 2d at 108. After =
our supreme court's decision in Wickham, the father petitioned the trial=
court to modify the parties' agreement to exclude grandparent visitatio=
n because this provision was void as a result of Wickham. M.M.D., 213 Il=
l. 2d at 111. Our supreme court concluded that the trial court could enf=
orce a provision of a consent decree allowing for grandparent visitation=
because the parties agreed to the visitation, and therefore, the state =
did not interfere with the parent's fundamental rights, and the holdings=
of Wickham were not implicated. M.M.D., 213 Ill. 2d at 114. The M.M.D. =
court further held that courts are obligated to uphold voluntary visitat=
ion agreements made by fit parents as long as they do not violate public=
policy. M.M.D., 213 Ill. 2d at 116.
|
| [33] | Despite its similarities to M.M.D., the case before us concerns a=
different issue from that explored by our supreme court in M.M.D.. In M=
.M.D. our supreme court did not consider whether the trial court had sub=
ject matter jurisdiction over disputes concerning grandparent visitation=
, but whether a provision of a consent decree allowing grandparent visit=
ation was void as unconstitutional. M.M.D., 213 Ill. 2d at 112. While we=
agree with plaintiff that in M.M.D. our supreme court held that a trial=
court can constitutionally enter and enforce an agreed order in which p=
arents allow for grandparent visitation (M.M.D., 213 Ill. 2d at 116), th=
e issue presented in this case concerns the prerequisite to a court's en=
try or enforcement of any order: subject matter jurisdiction (Sarkissian=
, 201 Ill. 2d at 103; Diaz v. Provena Hospitals, 352 Ill. App. 3d 1165, =
1173 (2004)). In M.M.D., the court had subject matter jurisdiction to en=
ter the agreed order under provisions of both the Illinois Probate Act a=
nd the Illinois Parentage Act. M.M.D., 213 Ill. 2d at 107. In this case,=
the court's subject matter jurisdiction to enter an order could arise o=
nly from its power to grant the relief of grandparent visitation. If a c=
ourt has no authority to hear the subject matter of a petition, any orde=
r it enters, agreed or otherwise, is void and unenforceable. Diaz, 352 I=
ll. App. 3d at 1173; Radke, 287 Ill. App. 3d at 761. Therefore, this cas=
e is distinguishable from M.M.D. because defendants object to the court'=
s jurisdiction to hear claims seeking grandparent visitation, rather tha=
n its power to enter an agreed order including grandparent visitation as=
part of a case it has the authority to decide.
|
| [34] | However, although we agree with defendants that M.M.D. does not r=
esolve the jurisdictional issues in this case, we do not agree that Dobb=
s is directly on point. In Dobbs, the consent decree at issue was the re=
sult of an action for marital dissolution under the Illinois Marriage an=
d Dissolution of Marriage Act (750 ILCS 5/101 et seq. (West 2002)). Dobb=
s, 358 Ill. App. 3d at 313. Even though the court had subject matter jur=
isdiction to enter an agreed order in the divorce case, the Dobbs court =
held it could not enforce provisions of their marital settlement agreeme=
nt in which the parents agreed to visitation with their adult child. Dob=
bs, 358 Ill. App. 3d at 313. The Dobbs court held that the agreement for=
visitation violated public policy because it was clearly contrary to wh=
at the statute had declared to be the public policy and that the court d=
id not have subject matter jurisdiction to grant visitation with an adul=
t child. Dobbs, 358 Ill. App. 3d at 312-13. Defendants construe Dobbs to=
mean that consent decrees cannot be entered without subject matter juri=
sdiction. Although we agree with that proposition for the reasons discus=
sed above, Dobbs, like M.M.D., does not address a trial court's subject =
matter jurisdiction to enter an agreed order but rather whether the cour=
t had subject matter jurisdiction to enter a specific provision of the c=
onsent decree, that is, visitation with an adult child (Dobbs, 358 Ill. =
App. 3d at 310). M.M.D. has already held that a court may enforce an agr=
eement providing for grandparent visitation within a consent decree when=
it has subject matter jurisdiction to hear the case. M.M.D., 213 Ill. 2=
d at 114. For our purposes, the Dobbs analysis is no different from that=
of M.M.D. Both confront the court's authority to enforce the substance =
of the consent decree, rather than the court's subject matter jurisdicti=
on to enter any order in the case, agreed or otherwise. Therefore, neith=
er Dobbs nor M.M.D. answers the question whether a trial court has subje=
ct matter jurisdiction over an action for grandparent visitation. Conseq=
uently, we proceed to address whether the trial court had subject matter=
jurisdiction to enter an agreed order.
|
| [35] | A court may use its contempt powers to enforce its orders. Diaz, =
352 Ill. App. 3d at 1173. However, if the judgment upon which a contempt=
order is based is void, then a contempt judgment cannot be sustained on=
review. Diaz, 352 Ill. App. 3d at 1173. An order or judgment is void if=
the court lacks subject matter jurisdiction over the matter before it. =
Diaz, 352 Ill. App. 3d at 1173. Subject matter jurisdiction refers to th=
e power of the court to hear and determine cases. Belleville Toyota, Inc=
. v. Toyota Motor Sales, U.S.A., Inc., 199 Ill. 2d 325, 340 (2002). With=
the exception of the circuit court's power to review administrative act=
ion, which is conferred by statute, a circuit court's subject matter jur=
isdiction is conferred entirely by our state constitution. Belleville To=
yota, Inc., 199 Ill. 2d at 334. The subject matter jurisdiction of a cas=
e does not simply mean the jurisdiction over the particular case, but th=
e court's jurisdiction over the class of cases to which the case belongs=
. Health Cost Controls v. Sevilla, 307 Ill. App. 3d 582, 587 (1999). The=
refore, even if plaintiff defectively stated her claim, the circuit cour=
t was not necessarily deprived of subject matter jurisdiction. Bellevill=
e Toyota, Inc., 199 Ill. 2d at 340. As noted, a judgment by a court that=
lacked subject matter jurisdiction may be attacked at any time in the p=
roceeding, and jurisdiction cannot be conferred by stipulation, consent,=
or waiver. Chrobak, 349 Ill. App. 3d at 897.
|
| [36] | Defendants argue that the trial court lacked subject matter juris=
diction over plaintiff's claim for grandparent visitation because plaint=
iff brought her petition for grandparent visitation pursuant to section =
607(b) of the Act. Defendants note that our supreme court declared the p=
rovisions of section 607(b) of the Act pertaining to grandparent visitat=
ion unconstitutional in Wickham because they required the state to inter=
fere with fit parents' rights to make decisions about the care, custody,=
and control of their children. Wickham, 199 Ill. 2d at 320. Defendants =
claim that Wickham nullified any power the court had to grant grandparen=
t visitation.
|
| [37] | An unconstitutional statute cannot confer subject matter jurisdic=
tion. See People v. Gersch, 135 Ill. 2d 384, 392 (1990); Hurst v. Capita=
l Cities Media, Inc., 323 Ill. App. 3d 812, 820-21 (2001). In Wickham, o=
ur supreme court declared sections 607(b)(1) and (b)(3) of the Act facia=
lly unconstitutional, holding that a court's grant of grandparent visita=
tion interfered with a parent's fundamental right, under the fourteenth =
amendment to the United States Constitution, to make decisions concernin=
g the care, custody, and control of his children, because it exposed the=
decision of a fit parent to the unfettered value judgment of a judge an=
d the micromanaging of the state. Wickham, 199 Ill. 2d at 320. An uncons=
titutional statute is void ab initio. Gersch, 135 Ill. 2d at 392. This m=
eans that a decision holding a statute unconstitutional is applied retro=
actively, nullifying any effect the law may have had, and returning the =
law to its state before the adoption of the unconstitutional statute. Ge=
rsch, 135 Ill. 2d at 392. Although the ab initio doctrine has recently b=
een applied with qualifications to procedural matters (Perlstein v. Wolk=
, 349 Ill. App. 3d 161, 168 (2004)), where a party's constitutional righ=
ts are in need of vindication, strict application of the void ab initio =
doctrine is appropriate. Yakubinis v. Yamaha Motor Corp, U.S.A., 365 Ill=
. App. 3d 128, 134 (2006). Because sections 607(b)(1) and (b)(3) affecte=
d substantive rights, and were declared unconstitutional for violating p=
arents' constitutional liberty interests (Wickham, 199 Ill. 2d at 320), =
the ab initio doctrine strictly applies (see Gersch, 135 Ill. 2d at 392;=
Yakubinis, 365 Ill. App. 3d at 134). Accordingly, sections 607(b)(1) an=
d (b)(3) are treated as inoperative from their inception. Hurst, 323 Ill=
. App. 3d at 820. Therefore, because the provisions of section 607(b) al=
lowing for grandparent visitation were inoperative, they conferred no su=
bject matter jurisdiction on the court to hear and determine plaintiff's=
petition. See Gersch, 135 Ill. 2d at 392.
|
| [38] | Plaintiff next argues that even if the court did not have jurisdi=
ction to hear her case under section 607(b) of the Act, it had subject m=
atter jurisdiction under the common law. Defendants, citing In re Marria=
ge of Casarotto, 316 Ill. App. 3d 567, 571 (2000), argue that the court'=
s subject matter jurisdiction over visitation matters is confined to pro=
visions of the Illinois Marriage and Dissolution of Marriage Act, and th=
erefore when the provisions of section 607(b) providing for grandparent =
visitation were found unconstitutional the court's jurisdiction to grant=
grandparent visitation disappeared. We disagree with defendants.
|
| [39] | When a statute is void ab initio, the parties are relegated to th=
e rights they had prior to the enactment of the statute. In re Marriage =
of Sullivan, 342 Ill. App. 3d 560, 565 (2003). The court's subject matte=
r jurisdiction over an action is limited by statute only if the statute =
alone created the court's jurisdiction. In re Estate of Gebis, 186 Ill. =
2d 188, 192 (1999). Because the circuit court enjoys original jurisdicti=
on over all justiciable matters (Belleville Toyota, Inc., 199 Ill. 2d at=
334), the legislature may not limit the circuit court's original jurisd=
iction, but it may create new justiciable matters (Gebis, 186 Ill. 2d at=
192). When the legislature has created a new justiciable matter, it may=
limit or preclude the circuit court's authority as it determines. Gebis=
, 186 Ill. 2d at 192-93. Subject matter jurisdiction in some divorce and=
juvenile actions has been limited to the statutory powers given to the =
court, because these powers never existed at common law and were created=
solely by the legislature. In re M.M., 156 Ill. 2d 53, 63 (1993); In re=
Marriage of Roe, 352 Ill. App. 3d 1155, 1163 (2004). However, the equit=
able powers of the court over grandparent visitation existed at common l=
aw prior to and independent of the enactment of section 607(b) of the Ac=
t. Chodzko v. Chodzko, 66 Ill. 2d 28, 33 (1976); Hawkins v. Hawkins, 102=
Ill. App. 3d 1037, 1039 (1981); Boyles v. Boyles, 14 Ill. App. 3d 602, =
604 (1973). As a result, the court's jurisdiction over grandparent visit=
ation was not created by the legislature, and therefore it did not disap=
pear with the statute. See M.M., 156 Ill. 2d at 67-68, citing In re Adop=
tion of Scraggs,125 Ill. 2d 382 (1988); Sullivan, 342 Ill. App. 3d at 56=
3.
|
| [40] | We note that in M.M.D. our supreme court chose not to address the=
common law governing a court's right to grant grandparent visitation. M=
.M.D., 213 Ill. 2d at 116-17. The M.M.D. court held that the principles =
of common law determining the court's authority to grant grandparent vis=
itation were not at issue, because the court did not impose grandparent =
visitation in that case but, rather, enforced the visitation agreement v=
oluntarily entered into by the parent. M.M.D., 213 Ill. 2d at 117. Unlik=
e the court's ability to enforce specific provisions of a consent decree=
, the court's ability to enter an order cannot be conferred by the parti=
es. Chrobak, 349 Ill. App. 3d at 897. Power of the court to enter an agr=
eed order was not at issue in M.M.D. In the case at bar, although the pa=
rties agreed to grandparent visitation, subject matter jurisdiction hing=
es on the court's general authority to grant such relief. See Radke, 287=
Ill. App. 3d at 760. As a result, this is a case where the state of com=
mon-law grandparent visitation must be confronted. Therefore, we next ex=
amine whether, in the absence of the provisions of section 607(b) allowi=
ng the court to grant grandparent visitation, the court had subject matt=
er jurisdiction to hear plaintiff's petition at common law.
| =
| [41] | Under the common law that existed prior to the statute, courts ha=
d subject matter jurisdiction to award grandparents visitation with thei=
r grandchildren when special circumstances were shown. Bush v. Squellati=
, 122 Ill. 2d 153, 156 (1988) ("Special circumstances sufficient to gran=
t visitation rights to grandparents have been found where the natural fa=
ther was inducted into the armed forces and he had petitioned the court =
to allow his parents to visit with his child during his absence (Solomon=
v. Solomon (1943), 319 Ill. App. 618), and where the natural father had=
died and had named his parents trustees of a fund which was for the ben=
efit of his child (Lucchesi v. Lucchesi (1947), 330 Ill. App. 506). In B=
oyles v. Boyles (1973),14 Ill. App. 3d 602, the appellate court [also] f=
ound it to be error to deny the natural grandparents' petition for visit=
ation as a matter of law where the child had just lost his mother and wa=
s extremely close to his grandparents by virtue of the fact that prior t=
o his mother's death, the child had visited with the grandparents every =
day"); see also Chodzko, 66 Ill. 2d at 32. Defendants cite several cases=
since Wickham that have refused to apply the common law, because the sp=
ecial circumstances test applied the best interests standard. In re Marr=
iage of Ross, 355 Ill. App. 3d 1162, 1169-70 (2005); Beurksen v. Graff, =
351 Ill. App. 3d 148, 150 (2004); Langman v. Langman, 325 Ill. App. 3d 1=
01, 107-08 (2001). Defendants note that in Wickham, our supreme court he=
ld that a best interests standard, which allowed a judge to independentl=
y decide if a child should visit with his grandparents, violated the fou=
rteenth amendment because it allowed a judge to infringe on the decision=
s of fit parents merely because a "better" decision could be made and to=
do so absent a presumption that the parents acted in the child's best i=
nterests. Wickham, 199 Ill. 2d at 320. Defendants contend that because t=
he common law in existence prior to section 607(b) used the same standar=
ds ruled unconstitutional in Wickham, the common-law standard of special=
circumstances is also unconstitutional. We do not disagree. However, in=
the civil context opinions are usually presumed to be given both retroa=
ctive and prospective effect. Oak Grove Jubilee Center, Inc. v. City of =
Genoa, 347 Ill. App. 3d 973, 980 (2004). Therefore, the common law we ap=
ply to determine whether the trial court had subject matter jurisdiction=
at the time plaintiff filed her petition is not the common law that exi=
sted at the time section 607(b) was enacted, but the common law that has=
evolved from the supreme court's findings in Wickham. As such, we consi=
der what impact the findings of Wickham have on the common-law right to =
grandparent visitation that exists in the absence of sections 607(b)(1) =
and (b)(3).
|
| [42] | In Wickham, the court held that the state cannot interfere with p=
arents' fourteenth amendment rights to the care, custody, and control of=
their children unless it does so to protect the health, welfare, or saf=
ety of the children. Wickham, 199 Ill. 2d at 317. A fit parent is presum=
ed to act in the best interest of her child, and consequently, any inter=
ference with parental decision making must begin with this presumption. =
Wickham, 199 Ill. 2d at 318. As a result, the Wickham court held that wh=
en ruling on a petition for grandparent visitation, a trial court must a=
ccord some special weight to a fit parent's determination of her child's=
best interest. Wickham, 199 Ill. 2d at 320. Because sections 607(b)(1) =
and (b)(3) failed to accord this weight to a parent's decision, they sig=
nificantly interfered with parents' liberty interests under the fourteen=
th amendment. Wickham, 199 Ill. 2d at 320. Furthermore, the Wickham cour=
t found no compelling interest in that case that would justify such an i=
ntrusion on these rights. Wickham, 199 Ill. 2d at 317. While the court r=
ecognized that the state may interfere with a parent's right to the care=
, custody, and control of her child to protect the health, safety, or we=
lfare of the child, it found that the parent's decision to prevent grand=
parent visitation presented no such threat. Wickham, 199 Ill. 2d at 317.=
Therefore, in that case, the court found that no compelling state inter=
est existed to overcome the parents' fourteenth amendment rights to limi=
t grandparent visitation. Wickham, 199 Ill. 2d at 317.
| =
| [43] | The holdings of Wickham narrowed the earlier common-law doctrine =
that grandparent visitation could be granted under special circumstances=
, by eliminating a judge's power to make a decision in the child's best =
interest without the presumption that the parent acted in the child's be=
st interest (see Chodzko, 66 Ill. 2d at 34; Boyles, 14 Ill. App. 3d at 6=
04). Consequently, the findings of Wickham severely limited the circumst=
ances in which courts could grant grandparent visitation under the commo=
n law. Wickham, 199 Ill. 2d at 320. However, in Wickham, our supreme cou=
rt made no determination as to whether a court can grant grandparent vis=
itation when the presumption that parents act in the best interest of th=
eir children is overcome, or when a grandparent can show that visitation=
must occur for the health, well being, or safety of a child. Therefore,=
the court's right to grant grandparent visitation under the common law,=
while severely limited, was not completely eliminated. As a result, tri=
al courts of this state had subject matter jurisdiction to hear cases co=
ncerning grandparent visitation, at the time plaintiff filed her case.*fn2
|
| [44] | However, defendants argue that because plaintiff filed her petiti=
on pursuant to section 607(b) of the Act, and not pursuant to the common=
law, the common law cannot now be used to invoke jurisdiction. Defendan=
ts contend that application of the common law would be unfair because th=
e case was filed and settled under the terms of section 607(b). We disag=
ree.
|
| [45] | In order to invoke the subject matter jurisdiction of the circuit=
court, a plaintiff's case, as framed by the complaint or petition, must=
present a justiciable issue. Belleville Toyota, Inc., 199 Ill. 2d at 33=
4. The test for the presence of a justiciable issue is found in the natu=
re of the case as made by the pleading and the relief sought. Sullivan, =
342 Ill. App. 3d at 563. However, the nature of the case is not determin=
ed strictly by the statute or statutes invoked, but by the issues presen=
ted by the facts of the pleading and the relief requested. See People ex=
rel. Scott v. Janson, 57 Ill. 2d 451, 460 (1974).
|
| [46] | Because the nature of a case is more than the statute invoked, co=
urts have looked beyond the statute listed in the pleading to determine =
the nature of the case for the purposes of subject matter jurisdiction. =
Most notably, in Janson, 57 Ill. 2d at 460, our supreme court defined th=
e nature of a case broadly, holding that the plaintiff's filing of its p=
etition pursuant to provisions of the Environmental Protection Act (Ill.=
Rev. Stat., 1970 Supp., ch. 111*, par. 1001 et seq.) did not prevent th=
e circuit court from having subject matter jurisdiction under common-law=
principles. In Janson, the Attorney General of Illinois and others file=
d an action seeking an ex parte emergency injunction, a hearing, and a p=
ermanent injunction to enjoin the defendant's use of land as a commercia=
l garbage dump, citing provisions of the Environmental Protection Act (I=
ll. Rev. Stat., 1970 Supp., ch. 111", par. 1001 et seq.). Janson, 57 Ill=
. 2d at 454. The circuit court granted the plaintiffs' petition for an e=
x parte injunction, but later dismissed the ex parte injunction, finding=
that there was no extreme emergency required by the Environmental Prote=
ction Act. Janson, 57 Ill. 2d at 454. The defendant then filed a motion =
to dismiss the case. Janson, 57 Ill. 2d at 454. However, the circuit cou=
rt denied the defendant's motion to dismiss the case. Janson, 57 Ill. 2d=
at 454. The parties then entered into a stipulation in which the defend=
ant agreed to clean up the site and abide by the Environmental Protectio=
n Act guidelines. Janson, 57 Ill. 2d at 454. Thereafter, the defendant f=
ailed to abide by the provisions of the stipulation. Janson, 57 Ill. 2d =
at 455. The circuit court fined the defendant and later held him in cont=
empt for failing to cooperate with the court's assessment of his assets.=
Janson, 57 Ill. 2d at 455; see also People ex rel. Scott v. Janson, 10 =
Ill. App. 3d 787, 790 (1973), rev'd, Janson, 57 Ill. 2d 451. The defenda=
nt appealed, claiming that the stipulation was void because the trial co=
urt had no subject matter jurisdiction over the case after the petition =
for emergency relief was dismissed, as the Environmental Protection Act =
authorized the circuit court to rule only on a petition for emergency re=
lief and reserved the other rulings for administrative action. Janson, 5=
7 Ill. 2d at 453.
|
| [47] | The appellate court agreed with the defendant, holding that the t=
rial court lacked jurisdiction over the subject matter of the proceeding=
s after the dissolution of the ex parte injunction, because the complain=
t specifically invoked the procedure and relief granted by the Environme=
ntal Protection Act, and not other statutes or laws, and the Environment=
al Protection Act did not authorize the other relief the plaintiffs soug=
ht in circuit court. Janson, 10 Ill. App. 3d at 795. Our supreme court r=
eversed, holding, first, that the Environmental Protection Act allowed t=
he plaintiffs to bring an action in the circuit court. Janson, 57 Ill. 2=
d at 459. However, in addition, our supreme court defined the nature of =
the case much more broadly than the rights invoked by the statute, and i=
nstead looked at all the issues raised in the complaint and the relief t=
he plaintiffs requested to determine if the trial court had subject matt=
er jurisdiction. Janson, 57 Ill. 2d at 460. Our supreme court held that =
the nature of the case was generally "to restrain pollution violations" =
and that, although the Environmental Protection Act was specifically ref=
erred to, the issues of pollution raised in the complaint also invoked t=
he circuit court's common-law jurisdiction to abate public nuisances. Ja=
nson, 57 Ill. 2d at 460. Because the complaint outlined pollution violat=
ions and sought injunctive relief, jurisdiction existed under the common=
law as well as the Environmental Protection Act even though the common =
law was not specifically invoked. See Janson, 57 Ill. 2d at 460.
=
|
| [48] | Similarly, in Rochon v. Rodriguez, 293 Ill. App. 3d 952, 954 (199=
7), and Maddox v. Williamson County Board of Commissioners, 131 Ill. App=
. 3d 816, 822 (1985), although the plaintiffs filed their complaints pur=
suant to provisions of the Administrative Review Law (735 ILCS 5/3-- 112=
(West 1992)), the First and Fifth Districts, respectively, found that s=
ubject matter jurisdiction existed under the common law. In both Rochon =
and Maddox, the plaintiffs filed their complaints pursuant to the Admini=
strative Review Law, which was inapplicable in those cases. Rochon, 293 =
Ill. App. 3d at 954; Maddox, 131 Ill. App. 3d at 822. However, in Rochon=
, the First District held that although the complaint was not reviewable=
pursuant to the Administrative Review Law set forth in the complaint, t=
he circuit court had subject matter jurisdiction to consider the complai=
nt because the pleading set forth a justiciable question of whether the =
defendants had breached sections of the Chicago Municipal Code. Rochon, =
293 Ill. App. 3d at 956. Similarly, in Maddox, the Fifth District held t=
hat although the complaint was pursuant to the Administrative Review Law=
, where the Administrative Review Law was inapplicable, the trial court =
had subject matter jurisdiction to grant relief under common-law certior=
ari even though the common law was not specifically referenced. Maddox, =
131 Ill. App. 3d at 822.
|
| [49] | Similar to Janson, Rochon, and Maddox, in this case, plaintiff pe=
titioned the court pursuant to a specific statute, section 607(b) of the=
Act, under which the court had no subject matter jurisdiction (Wickham,=
199 Ill. 2d at 320-21). Just as the Janson court considered the nature =
of that case to be "to restrain pollution violations" rather than to spe=
cifically grant relief pursuant to the Environmental Protection Act, we =
believe that the nature of plaintiff's case was to obtain grandparent vi=
sitation and not solely grandparent visitation as provided by section 60=
7(b) of the Act. Plaintiff's petition, entitled "Petition for Grandparen=
t Visitation," set forth facts alleging that she had not received grandp=
arent visitation, and requested such relief. The court did have subject =
matter jurisdiction pursuant to the common law to decide the issues set =
forth in the petition and to grant the specific relief asked for in the =
petition. Therefore, we do not believe that the recitation of the uncons=
titutional statute in the petition, or the failure to specifically invok=
e the common law, eliminated the court's subject matter jurisdiction und=
er the common law that grants the same relief.
|
| [50] | We note that in this case, as in Janson, Rochon, and Maddox, the =
court had subject matter jurisdiction to grant the same relief asked for=
in the petition pursuant to different authority from that cited by plai=
ntiff. This is significantly different from when a court grants relief t=
hat has not been requested in the petition. See Ligon v. Williams, 264 I=
ll. App. 3d 701, 707 (1994). Because the complaint frames the nature of =
the case and circumscribes the relief requested, a court does not have s=
ubject matter jurisdiction to grant relief not requested in the complain=
t simply because it could have granted such relief if it had been reques=
ted. Ligon, 264 Ill. App. 3d at 707. For example, in Ligon, the plaintif=
f filed a petition requesting that the court find a parent-child relatio=
nship between the defendant and the child, and that the defendant pay ch=
ild support. Ligon, 264 Ill. App. 3d at 702. When the plaintiff failed t=
o appear for a hearing on these issues, the court awarded custody of the=
child to the defendant. Ligon, 264 Ill. App. 3d at 703. In reviewing th=
e trial court's custody decision, the First District held that the trial=
court lacked subject matter jurisdiction to grant custody to the defend=
ant, because no petition had requested such relief. Ligon, 264 Ill. App.=
3d at 707-08. Therefore, although the court had the power to grant cust=
ody generally, it did not have the subject matter jurisdiction to grant =
relief not requested in the petition before it. Ligon, 264 Ill. App. 3d =
at 707.
|
| [51] | The case at bar is distinguishable from Ligon because in this cas=
e the circuit court did not grant any relief different from that request=
ed in plaintiff's petition and, therefore, never varied from the nature =
of the case as framed by the petition. Here, the relief considered by th=
e court, grandparent visitation, was the same as the relief requested in=
the petition. Although the statute cited in plaintiff's petition may no=
t have given the court authority to grant that relief, the subject matte=
r jurisdiction to grant the relief circumscribed by the petition existed=
under the common law. Where a petition defines a case for grandparent v=
isitation and asks for the relief of grandparent visitation, and a court=
has subject matter jurisdiction over cases requesting grandparent visit=
ation, the court has subject matter jurisdiction over that petition. Bec=
ause subject matter jurisdiction is determined by the type of cases and =
not the individual case itself, it does not matter if the petition fails=
to state a cause of action, but merely if it states facts and asks for =
relief that creates a type of case the court decides. Belleville Toyota,=
Inc., 199 Ill. 2d at 340. We believe that despite invoking section 607(=
b), plaintiff's petition framed a case for grandparent visitation, and b=
ecause the court had subject matter jurisdiction over cases concerning g=
randparent visitation pursuant to the common law, the court had subject =
matter jurisdiction over plaintiff's petition.
|
| [52] | Subject matter jurisdiction is merely the door through which part=
ies enter the courtroom. In this case, defendants argue that the door wa=
s shut to plaintiff as soon as the provisions of section 607(b) providin=
g for grandparent visitation were found unconstitutional. We disagree. P=
laintiff's petition sought grandparent visitation. Under the common law,=
which we have determined includes Wickham, the court maintained jurisdi=
ction to hear and determine whether grandparents were entitled to visita=
tion with their grandchildren. Wickham greatly limited the courts' abili=
ty to grant this relief, but did not eliminate it. The validity of plain=
tiff's individual petition is not at issue. Belleville Toyota, Inc., 199=
Ill. 2d at 340. The issue is whether the court had the power to grant t=
he type of relief that the petition requested. Belleville Toyota, Inc., =
199 Ill. 2d at 340; Health Cost Controls, 307 Ill. App. 3d at 587. We be=
lieve it did. Whether defendants chose to litigate the issue of grandpar=
ent visitation once in the courtroom was their decision. M.M.D., 213 Ill=
. 2d at 116. When parents agree to grandparent visitation, the courts ha=
ve an obligation to uphold that agreement, except under very limited cir=
cumstances, such as when the agreement is void for public policy (M.M.D.=
, 213 Ill. 2d at 114), or if the court lacks subject matter jurisdiction=
(see Radke, 287 Ill. App. 3d at 760). In this case, defendants did not =
challenge whether the agreement was void for public policy, and we hold =
that the consent decree entered into by defendants is not void for lack =
of subject matter jurisdiction. As a result, the parties' agreement for =
grandparent visitation is enforceable. We next consider whether the June=
15, 1995, visitation order is void on other grounds.
|
| [53] | B. Consideration
|
| [54] | Defendants contend that because plaintiff's petition, filed pursu=
ant to section 607(b) of the Act, had no basis in law, the forbearance o=
f her claim provided no consideration for the agreement for visitation. =
Defendants argue that because the agreement was void for lack of conside=
ration, the June 15, 1995, order embodying the agreement was unenforceab=
le. As a result, defendants maintain that the trial court erred when it =
denied defendants' June 8, 2005, motion to dismiss plaintiff's petition =
to enforce the June 15, 1995, order, and when it entered its August 22, =
2005, order holding defendants in contempt for violating the June 15,199=
5, order. None of the parties dispute the facts as to this matter. There=
fore, our review is de novo. See AC &S v. Industrial Comm'n, 304 Ill. Ap=
p. 3d 875, 879 (1999).
|
| [55] | A consent decree is based upon the agreement of the parties and i=
s contractual in nature. M.M.D., 213 Ill. 2d at 114. Once a decree has b=
een entered, it is binding on the parties and cannot be amended or varie=
d without the consent of each party. M.M.D., 213 Ill. 2d at 114. Like an=
y other agreement, an agreed order is subject to the law of contracts. A=
dvance Iron Works, Inc. v. ECD Lincolnshire Theater, L.L.C., 339 Ill. Ap=
p. 3d 882, 887 (2003). As a result, consent decrees have been set aside =
upon a showing that the order resulted from the fraudulent misrepresenta=
tion, coercion, or incompetence of one of the parties, gross disparity i=
n the position or capacity of the parties, or newly discovered evidence.=
Majcher v. Laurel Motors, Inc., 287 Ill. App. 3d 719, 729-30 (1997). De=
fendants cite no case holding a consent decree void for lack of consider=
ation. However, because we believe there was proper consideration for th=
e parties' agreement in this case, we give no opinion as to whether lack=
of consideration voids a consent decree.
|
| [56] | Formation of a contract requires an offer, acceptance, and consid=
eration. La Salle National Bank v. Vega, 167 Ill. App. 3d 154, 159 (1988=
). Any act or promise that benefits one party or disadvantages another i=
s sufficient consideration to support the formation of a contract. De Fo=
ntaine v. Passalino, 222 Ill. App. 3d 1018, 1028 (1991). A promise to fo=
rgo the pursuit of a legal claim is generally adequate consideration to =
support formation of a contract. Kalis v. Colgate- Palmolive Co., 337 Il=
l. App. 3d 898, 901 (2003). In this case, defendants are mistaken as to =
which legal claims plaintiff agreed to forbear as a result of the partie=
s' June 15, 1995, agreement. On June 15, 1995, plaintiff and defendants =
entered into an order in which plaintiff agreed to withdraw her petition=
for further conciliation and other relief in exchange for defendants al=
lowing plaintiff to visit with her granddaughter, Katie, twice a month f=
or five hours each visit. Defendants contend that consideration for thei=
r June 15, 1995, agreement was plaintiff's forbearance of her right to s=
ue under section 607(b) of the Act, which never existed. Wickham, 199 Il=
l. 2d at 320. However, in the agreement of June 15, 1995, plaintiff agre=
ed to forgo her claims pursuant to the parties' previous agreement of De=
cember 16, 1994, and not the rights given to her by section 607(b). In t=
he agreement of December 16, 1994, defendants agreed to allow plaintiff =
to visit with the older children and Katie once a month for six hours an=
d allow telephonic communication between plaintiff and the Hruby childre=
n in exchange for plaintiff withdrawing her petition for grandparent vis=
itation. When defendants breached this agreement, plaintiff filed a peti=
tion to enforce the terms of the agreement, which included returning to =
counseling. Therefore, in the agreed order of June 15, 1995, plaintiff c=
onceded a legal claim to enforce her contract rights, and not a claim un=
der section 607(b). We now examine if plaintiff's forbearance of her con=
tract rights under the December 16, 1994, agreement was proper considera=
tion for the parties' June 15, 1995, agreement.
|
| [57] | Defendants rely on two older supreme court cases, Mulholland v. B=
artlett, 74 Ill. 58 (1874), and Heaps v. Dunham, 95 Ill. 583 (1880), to =
support their position that plaintiff's forbearance of her claims provid=
ed no consideration for the parties' agreement. A brief discussion of th=
e law regarding consideration as it relates to the forbearance of a clai=
m that is in doubt is helpful. Although a promise to forgo the pursuit o=
f a legal claim is generally adequate consideration to support formation=
of a contract (Kalis v. Colgate- Palmolive Co., 337 Ill. App. 3d 898, 9=
01 (2003)), there are exceptions (Mulholland, 74 Ill. at 63). In 1851, o=
ur supreme court decided McKinley v. Watkins, 13 Ill. 140, 143-44 (1851)=
, in which it held that forbearance of a legal claim was valid considera=
tion for a contract if the claimant "honestly supposed that he had a goo=
d cause of action." The McKinley court further opined that it is immater=
ial which party would ultimately prevail on the merits, unless the claim=
is wholly unfounded and is a mere pretense to extort money. McKinley, 1=
3 Ill. at 144.
|
| [58] | After McKinley, our supreme court decided Mulholland, in which it=
discussed the McKinley decision and concluded that, although forbearanc=
e of a claim is valid consideration, the claim forgone must have been su=
stainable at law or in equity. Mulholland, 74 Ill. at 62-63. In Mulholla=
nd, while the defendant was traveling far from home, a debt collector co=
nfronted the defendant with a debt of a partnership. Mulholland, 74 Ill.=
at 61. The defendant had never been connected to the indebted partnersh=
ip and informed the collector that he was not a member of such partnersh=
ip. Mulholland, 74 Ill. at 63. Although he agreed to pay the debt in exc=
hange for the collector not immediately filing suit, the defendant state=
d in the settlement agreement that he had no association with the partne=
rship. Mulholland, 74 Ill. at 59-60. The Mulholland court held that forb=
earance of the suit was no consideration for the contract because the de=
fendant had no reasonable ground for making such a promise. Mulholland, =
74 Ill. at 62. The Mulholland court noted that circumstances affect case=
s and pointed out that the defendant had few options other than to agree=
to the settlement or be detained, possibly incarcerated, in a place far=
from home, defending a frivolous suit with few resources. Mulholland, 7=
4 Ill. at 63-64. Unlike in McKinley, in Mulholland our supreme court did=
not focus its analysis of consideration on the good-faith belief of the=
claimant but, rather, judged the forbearance of the claim in light of w=
hether the facts supported the claim brought against the defendant. See =
Mulholland, 74 Ill. at 63-64. The Mulholland analysis blurred the distin=
ction between a claim that is in doubt and a claim utterly without found=
ation. See Mulholland, 74 Ill. at 63-64.
|
| [59] | The court's reasoning in Mulholland was later cited in Heaps. Hea=
ps, 95 Ill. at 592. However, the Heaps decision reinforced the idea that=
there is a distinction between the forbearance of a claim with doubtful=
facts and a claim made with no basis in law. Heaps, 95 Ill. at 590-91. =
In Heaps, the plaintiff, a 16-year-old girl who alleged that the defenda=
nt had seduced and impregnated her, agreed to compromise two suits again=
st the defendant, for bastardy and seduction, for $1,050. Heaps, 95 Ill.=
at 591. When the defendant challenged the settlement of both claims, th=
e court first held that the bastardy claim was rightfully settled becaus=
e, even though the fact of the girl's pregnancy was doubtful, the defend=
ant could have challenged the facts asserted and, instead, chose to sett=
le the suit. Heaps, 95 Ill. at 591-92. However, the court next held that=
there was no valid consideration for the settlement of the seduction cl=
aim, because only the girl's parent could file a claim for seduction, an=
d she had no right to bring this claim. Heaps, 95 Ill. at 592. The Heaps=
court's disparate treatment of these two claims conveyed that so long a=
s a party has a legal right to bring a claim, his forbearance of the cla=
im provides proper consideration even if his claim would be unsuccessful=
on the merits. See Heaps, 95 Ill. at 590.
|
| [60] | As long ago as 1913, the distinction was made between claims the =
claimant has no right to assert and claims the evidence may not support.=
Pyle v. Murphy, 180 Ill. App. 18 (1913). In Pyle, 180 Ill. App. at 25- =
26, the Fourth District Appellate Court offered an insightful analysis a=
s to whether the forbearance of a claim that is in doubt can serve as co=
nsideration for a contract. The Pyle court reasoned, in light of Heaps, =
that in order for forbearance of a claim to provide valid consideration,=
the person making the claim must have a right to assert such a claim; h=
owever, if the claimant has a legal right to assert that claim and belie=
ves in good faith that he can prove such a claim, his forbearance of the=
claim provides proper consideration even if his claim would fail when t=
ried on the merits. Pyle, 180 Ill. App. at 26.
|
| [61] | The Pyle court distinguished Mulholland from other cases concerni=
ng forbearance of a claim that was in doubt, because the Mulholland cour=
t stressed the duress under which the defendant settled the claim and st=
ated that circumstances very much affect cases. Pyle, 180 Ill. App. at 2=
5. Unlike Pyle, in Mulholland, our supreme court reviewed whether the fa=
cts of the case supported the claim at issue, not whether the claimant h=
ad a legal right to bring the suit. Mulholland, 74 Ill. at 64. Despite a=
ny differences that exist between Pyle and Mulholland, the fact remains =
that Heaps, decided by our supreme court after Mulholland, is consistent=
with the Pyle analysis. Heaps similarly distinguished the forbearance o=
f claims where the evidence may not support them from the forbearance of=
claims made without a legal basis. Heaps, 95 Ill. at 590-91. As noted b=
y Pyle, the Heaps court's treatment of the bastardy claim supports the c=
onclusion that the forbearance of a claim that is in doubt may provide p=
roper consideration. Pyle, 180 Ill. App. at 26.
|
| [62] | Moreover, the Pyle analysis of the Heaps decision is consistent w=
ith the most recent appellate court cases discussing the forbearance of =
a claim as consideration. Interestingly, despite the existence of the ho=
ldings of our supreme court in Heaps and Mulholland, these modern appell=
ate decisions evolved from the Fifth District's opinion in LeMaster v. A=
msted Industries, Inc., 110 Ill. App. 3d 729 (1982), rev'd on other grou=
nds by Wilson v. Hoffman Group, Inc., 131 Ill. 2d 308 (1989). The LeMast=
er court held that the forbearance of a claim that is not valid*fn3 may serve as consideration for a contra=
ct as long as the claim is not " 'entirely without foundation.' " LeMast=
er, 110 Ill. App. 3d at 736. Similarly, in In re Estate of Herwig, 237 I=
ll. App. 3d 737, 741 (1992), this court held that the compromise of a di=
sputed claim is sufficient consideration for the formation of a contract=
even if that claim is not valid, as long as that claim is made in good =
faith. In addition, both the First and Fifth Districts have held that ev=
en where the evidence never supported a party's potential claim, if the =
forbearing party enters the agreement to forbear the claim in good faith=
and never knew or should have known he could not recover at the time of=
the agreement, then the forbearance of his suit is sufficient considera=
tion. F.H. Prince & Co. v. Tower Financial Corp., 275 Ill. App. 3d 792, =
801 (1995); Keller v. State Farm Insurance Co., 180 Ill. App. 3d 539, 54=
6 (1989).
|
| [63] | This modern trend of appellate court cases is consistent with the=
Heaps decision because all of the claimants in the cases discussed abov=
e had a legal basis to bring their claims, even if their claims were in =
doubt. These claims were, therefore, not entirely without foundation, be=
cause there was a foundation in the law for the parties to bring their c=
laims before the court to be litigated. These decisions are therefore co=
mpatible with the Heaps court's analysis of the plaintiff's bastardy cla=
im in that case, that although the evidence of the claim may be weak or =
unsupportive, the settlement of a claim brought in good faith with a rig=
ht to bring such an action will serve as good consideration. See Heaps, =
95 Ill. at 591-92; Pyle, 180 Ill. App. at 26. Consequently, these cases =
support the Pyle conclusion that the forbearance of a cause of action, r=
egardless of the merits of the claim, can provide valid consideration fo=
r a contract. See Pyle, 180 Ill. App. at 26. However, this does not chan=
ge the corresponding tenet that where a person has no legal right to bri=
ng a claim against another, the forbearance of such a claim does not ser=
ve as consideration. Heaps, 95 Ill. at 592. This is a just policy becaus=
e where a claim may be legally asserted, even if the facts alleged in th=
e claim are in doubt, by settling the dispute, the opposing party reaps =
the benefit of not having to litigate the suit at all. See Kalis, 337 Il=
l. App. 3d at 901. However, where a party merely forbears a claim he has=
no legal right to bring, the opposing party should never have had to de=
fend such a suit in the first place, and therefore, the settlement of su=
ch a claim does not provide a benefit to the defendant. For this reason,=
merely avoiding the litigation necessary to determine that the claimant=
has no legal right to bring a suit does not provide proper consideratio=
n for a settlement contract.
|
| [64] | In this case, defendants argue that plaintiff had no legal right =
to assert a claim against them, because her rights guaranteed by section=
607(b) never existed. However, as we pointed out, the consideration for=
the June 15, 1995, agreement was not plaintiff's rights under section 6=
07(b), but plaintiff's right to enforce the parties' agreement of Decemb=
er 16, 1994. This is an important difference. A party to a contract may =
sue on the contract. See White Hen Pantry, Inc. v. Cha, 214 Ill. App. 3d=
627, 635 (1991). As a party to the December 16, 1994, agreement, plaint=
iff had a right to bring individual claims pursuant to that agreement. E=
ven if the December 16, 1994, agreement ultimately had no consideration =
because the rights guaranteed by section 607(b) never existed, which pro=
position is by no means clear, plaintiff had a right to litigate whether=
that agreement was valid and could be enforced. See Awotin v. Abrams, 3=
09 Ill. App. 421, 426 (1941). Plaintiff gave up that right on June 15, 1=
995, when the parties settled their dispute over the December 16, 1994, =
agreement. Therefore, when plaintiff agreed to forgo the right she may h=
ave under the December 16, 1994, agreement, she gave up a claim that was=
in doubt. Whether plaintiff, in fact, had proper consideration for the =
December 16, 1994, agreement is not material to this case, because even =
if plaintiff would not have prevailed on the merits of her claim pursuan=
t to the December 16, 1994, agreement, the forbearance of a claim is val=
id consideration if the party had a right to bring the claim and did so =
in good faith. See Heaps, 95 Ill. at 590; F.H. Prince & Co., 275 Ill. Ap=
p. 3d at 801; Keller, 180 Ill. App. 3d at 546. Defendants could have cha=
llenged the validity of the December 16, 1994, agreement they had made w=
ith plaintiff, but instead chose to settle plaintiff's claims. Defendant=
s benefitted from the settlement of plaintiff's claims under the Decembe=
r 16, 1994, agreement, because they did not have to litigate the merits =
of the agreement. This was a benefit received by defendants, even if the=
y ultimately could have successfully challenged the validity of the agre=
ement.
|
| [65] | In addition, all the facts indicate that when she entered the Jun=
e 15, 1995, agreement, plaintiff believed in good faith that she could e=
nforce the December 16, 1994, agreement. There is no indication that pla=
intiff had any way of knowing that her rights under the December 16, 199=
4, agreement may have been invalid. This is necessarily true since secti=
ons 607(b)(1) and (b)(3) were not held unconstitutional until eight year=
s after the agreement was entered. See Wickham, 199 Ill. 2d at 320. Ther=
efore, because plaintiff had a legal right to pursue her contract claims=
and asserted this right in good faith, the forbearance of her claims pr=
ovided valid consideration for the parties' June 15, 1995, agreement. Se=
e F.H. Prince & Co., Inc., 275 Ill. App. 3d at 801; Keller, 180 Ill. App=
. 3d at 546.
|
| [66] | Finally, defendants cite Hurst v. Capital Cities Media, Inc., 323=
Ill. App. 3d 812, 820 (2001), for the proposition that "contracts which=
depend on [an unconstitutional statute] for their consideration are voi=
d." In Hurst, the court did not have to address whether the forbearance =
of a claim made pursuant to an unconstitutional statute could provide co=
nsideration for a contract. In fact, Hurst did not concern contracts at =
all but, rather, discussed the effect of the ab initio doctrine on the r=
efiling of a claim after a voluntary dismissal. Moreover, neither the ca=
se Hurst cites for this proposition, Mills v. Peoples Gas Light & Coke C=
o., 327 Ill. 508, 535 (1927), nor the case cited by Mills, Board of High=
way Commissioners v. City of Bloomington, 253 Ill. 164, 176 (1911), conf=
ronts the issue of whether the forbearance of a claim pursuant to a stat=
ute later found unconstitutional is valid consideration for a contract. =
Therefore, we believe that whether the forbearance of an invalid claim i=
s consideration is better addressed by the long line of cases discussed =
above. Furthermore, because the consideration at issue in this case is t=
he forbearance of plaintiff's claims under the parties' December 16, 199=
4, agreement, and not the forbearance of her claims pursuant to section =
607(b) of the Act, the consideration for the June 15, 1995, agreement di=
d not depend on an unconstitutional statute, but rather on an agreement =
made between the parties.
|
| [67] | Because the June 15, 1995, agreed order is not void for either la=
ck of subject matter jurisdiction or lack of consideration, it remains i=
n effect. Therefore, we affirm the trial court's June 8, 2005, order den=
ying defendants' motion to dismiss plaintiff's petition to enforce the J=
une 15, 1995, grandparent visitation order, and the trial court's August=
22, 2005, order holding defendants in indirect civil contempt.
<=
/TD> |
| [68] | We next consider whether the trial court erred when, as part of i=
ts August 22, 2005, contempt order, it ordered the parties to refrain fr=
om speaking to Katie about the outcome of the case. C. Order Not to Comm=
unicate with Katie
|
| [69] | Defendants contend that the trial court erred when it limited def=
endants' communication with their daughter in its August 22, 2005, order=
. In ruling on plaintiff's petition for a rule to show cause and other r=
elief, the trial court, sua sponte, raised the issue of communications w=
ith Katie and held that the parties were not to communicate with Katie a=
bout the outcome of the case at this time. Defendants argue that the cou=
rt had no authority to prevent communications between fit parents and th=
eir child. Defendants maintain that the court lacked authority to enter =
such an order because courts may not intrude on parents' fourteenth amen=
dment rights to the care, custody, and control of their children. Where,=
as here, the question on appeal is limited to the application of the la=
w to undisputed facts, the standard of review is de novo. City of Champa=
ign v. Torres, 214 Ill. 2d 234, 241 (2005).
|
| [70] | Where an appellant has not challenged the constitutionality of a =
protective order before the trial court but, rather, presents his consti=
tutional argument for the first time on appeal, his argument may be cons=
idered waived. Zielke v. Wagner, 291 Ill. App. 3d 1037, 1040 (1997); Doe=
v. Lutz, 253 Ill. App. 3d 59, 66 (1993). In this case, defendants faile=
d to make any argument before the trial court that the order prohibiting=
them from telling their daughter the outcome of the case violated their=
fourteenth amendment rights. However, the application of the forfeiture=
rule is less rigid where the basis of the objection is the trial court'=
s own conduct. In re Maher, 314 Ill. App. 3d 1088, 1097 (2000), citing P=
eople v. Davis, 185 Ill. 2d 317 (1998). Therefore, we consider whether t=
he trial court had authority to enter an order prohibiting defendants fr=
om speaking to their daughter, Katie, about the outcome of the case, in =
light of defendants' fourteenth amendment rights to the care, custody, a=
nd control of their child.
|
| [71] | The fourteenth amendment to the United States Constitution provid=
es that no state shall "deprive any person of life, liberty, or property=
, without due process of law." U.S. Const., amend. XIV. The due process =
clause grants heightened protection against government interference with=
fundamental rights. Wickham, 199 Ill. 2d at 316. One of the fundamental=
rights protected under the fourteenth amendment is the right of parents=
to make decisions concerning the care, custody, and control of their ch=
ildren without unwarranted state intrusion. Wickham, 199 Ill. 2d at 316.=
Because a parent's decision regarding his child is entitled to great de=
ference (Wickham, 199 Ill. 2d at 318), the state cannot overcome a paren=
t's decisions in the care, custody, and control of his child simply beca=
use the court has a different opinion of the child's best interest (Wick=
ham, 199 Ill. 2d at 320). There is a presumption that fit parents act in=
the best interest of their children. Wickham, 199 Ill. 2d at 318. Howev=
er, the family is not beyond regulation. Prince v. Massachusetts, 321 U.=
S. 158, 166, 88 L.Ed. 645, 652, 64 S.Ct. 438, 442 (1944). The state may =
interfere with fundamental parental rights when the health, safety, or w=
elfare of a child is at risk. Wickham, 199 Ill. 2d at 317; see also Peop=
le v. R.G., 131 Ill. 2d 328, 353 (1989).
|
| [72] | In M.M.D., our supreme court, applying Wickam, found that a court=
's ability to enforce parents' agreements regarding grandparent visitati=
on was constitutional specifically because the parents were not ordered =
by the court to act and, therefore, the court had not interfered with th=
e parents' rights. M.M.D., 213 Ill. 2d at 114. Similarly, in this case, =
the court's involvement in defendants' decisions regarding the control, =
custody, and care of their child derived only from the court's obligatio=
n to enforce defendants' agreement. See M.M.D., 213 Ill. 2d at 114. A pr=
ovision prohibiting the parties from discussing the case with Katie was =
not contained in the June 15, 1995, agreement between the parties. There=
fore, the court's authority to forbid defendants from speaking to Katie =
was not derived from defendants' earlier consent. Consequently, we next =
consider if the trial court's order, addressing matters outside of the a=
greement, was an intrusion on defendants' parental rights.
| <=
/TR>
| [73] | Parents' protected liberty interests include the right to make de=
cisions about their children's education, religion, and general upbringi=
ng. Wickam, 199 Ill. 2d at 317. These interests are compromised when the=
state interferes in the family relationship on behalf of the child. R.G=
., 131 Ill. 2d at 344. Court proceedings concerning domestic relations c=
an, in themselves, be so disruptive of the parent-child relationship tha=
t the rights of the parent to make basic determinations about the child'=
s welfare are implicated. Lulay v. Lulay, 193 Ill. 2d 455, 474-75 (2000)=
. In this case, the trial court usurped defendants' power, as parents, t=
o decide whether to discuss the outcome of the case with their daughter.=
The topics of conversation barred by the trial court involved both Kati=
e's visitation with her grandmother and her parents' imprisonment, both =
of which concern her care and upbringing. As a result, we conclude that =
the court's order forbidding such discussion interfered with defendants'=
parental liberty interests as guaranteed by the fourteenth amendment. S=
ee Wickham, 199 Ill. 2d at 316. Such an intrusion will be justified only=
when the state has a compelling interest. See Lulay, 193 Ill. 2d at 475=
.
|
| [74] | Although the state may interfere with parents' liberty interests =
in order to protect the health, welfare, or safety of a child (Wickham, =
199 Ill. 2d at 317), defendants assert that nothing in the record indica=
tes that protection was the purpose of the trial court's order forbiddin=
g defendants' communication with Katie about the case. We agree. Upon it=
s order that neither of the parties have any communication with Katie as=
to the outcome of the case or its effect, the court stated that, "There=
is no reason, frankly, that she needs to know that her grandmother and =
her parents are at loggerheads with the possibility that somebody is goi=
ng to jail over it on this case." The court made no further findings abo=
ut why this order was entered. The trial court never heard argument from=
either party as to how Katie's knowledge of the case would affect her h=
ealth, safety, or well being. Moreover, throughout the proceedings on de=
fendants' motion to dismiss and plaintiff's petition for a rule to show =
cause, no evidence was offered to show that an order limiting defendants=
' disclosure of the outcome of the case was justified to protect Katie's=
health, safety, or well being. In fact, at the August 16, 2005, hearing=
, in which defendants were required to show cause, the trial court speci=
fically noted that it did not have sufficient evidence to determine Kati=
e's best interests. In addition, because the issue was raised sua sponte=
, the parties had no notice that argument or evidence on this point was =
warranted. Therefore, without anything in the record to indicate that su=
ch restrictions were necessary to protect Katie's health, safety, or wel=
l being, the court had no basis for intervening in defendants' decisions=
in regard to the care, custody, and control of their child beyond enfor=
cing defendants' agreement with plaintiff. See M.M.D., 213 Ill. 2d at 11=
4; Wickham, 199 Ill. 2d at 318. As a result, we find that the court erre=
d when it entered an order sua sponte that required defendants to refrai=
n from speaking to their daughter about the order of contempt.
|
| [75] | In their reply brief, defendants also contend that the order limi=
ting their communication with Katie violates their first amendment right=
s and that, because this was a law court and not an equity court, the co=
urt could not order the parties to do or refrain from doing anything bey=
ond the provisions of their June 15, 1995, agreement. However, these iss=
ues were not raised in the appellants' brief. Therefore, under Supreme C=
ourt Rule 341(e)(7) (Official Reports Advance Sheet No. 21 (October 17, =
2001), R. 341(e)(7), eff. October 1, 2001) these issues are waived and c=
annot be raised in the reply brief, in oral argument, or on petition for=
rehearing. In addition, defendants cite no authority for any of their a=
rguments in their reply brief. Rule 341(e)(7) also requires that the app=
ellant cite authority for his arguments. Official Reports Advance Sheet =
No. 21 (October 17, 2001), R. 341(e)(7), eff. October 1, 2001. Therefore=
, defendants' new arguments are waived for that reason also. See People =
v. Trimble, 181 Ill. App. 3d 355, 356-57 (1989).
|
| [76] | However, because we find that the trial court's order prohibiting=
defendants from speaking to Katie about the case unjustifiably infringe=
d upon their fourteenth amendment rights, we vacate this portion of the =
order.
|
| [77] | III. CONCLUSION
|
| [78] | After reviewing all of defendants' arguments on appeal, we hold t=
hat the trial court did not err when it entered its June 8, 2005, order =
denying defendants' motion to dismiss or when it entered its August 22, =
2005, order holding defendants in contempt, because its June 15, 1995, o=
rder was not void. We also hold that the trial court erred when, in its =
August 22, 2005, order, it directed defendants not to communicate with t=
heir daughter about the outcome of the case, and we vacate that portion =
of the order.
|
| [79] | Affirmed in part and vacated in part.
|
| [80] | BOWMAN, J., concurs.
|
| [81] | JUSTICE McLAREN, dissenting in part and specially concurring in p=
art:
|
| [82] | I dissent in part because I believe that the majority has violate=
d a basic principle of procedural interpretation. The majority states th=
at the single count filed by plaintiff relates to a statutory cause of a=
ction found to be unconstitutional and void ab initio. The majority shou=
ld have stopped there and said that the only count pled does not give th=
e court subject matter jurisdiction, and the cause should be dismissed a=
s void.
|
| [83] | Unfortunately, the majority proceeds to reinterpret the statutory=
claim and determines that it is also a common-law claim. I submit that =
it is axiomatic that, if a count is a statutory claim, it cannot also be=
a common-law claim. Assuming, arguendo, that it were, it still should b=
e pled as a separate count as required by section 2--613(b) of the Code =
of Civil Procedure (735 ILCS 5/2--613(a) (West 2004)). The majority subv=
erts the rule of procedure that requires parties to plead "as many cause=
s of action *** as they may have, and each shall be separately designate=
d and numbered." 735 ILCS 5/2--613(a) (West 2004).
|
| [84] | Analogically, the majority has determined that the apple is not m=
erely an apple, it is both an apple and an orange. It accomplishes this =
feat of legerdemain by reviewing case law that is factually inapposite a=
nd applying the general statements of law contained therein without plac=
ing the statements in context. Not a single case cited by the majority i=
nvolved a complaint wherein the count or counts were all deemed to be vo=
id. Not one case interpreted a single count as properly (or improperly) =
containing multiple causes of action. Not one case allowed a plaintiff t=
o plead separate causes of action in a single count. Not one case allowe=
d the majority to do what it does in this disposition--to interpolate a =
common-law cause of action in a clearly statutory cause of action. An ex=
ample of the improper reliance upon inapposite case law is embodied in t=
he majority's reference to Belleville Toyota, Inc. v. Toyota Motor Sales=
, U.S.A., Inc., 199 Ill. 2d 325 (2002), as precedential authority. The c=
ase is not factually similar. Our supreme court therein rejected the def=
endants' argument that the limitations period in the Motor Vehicle Franc=
hise Act was a jurisdictional prerequisite to suit. The court reviewed t=
he complaint and determined that the allegations set forth in the compla=
int stated a cause of action independent of the statute of limitations. =
However, the court went on to say, "Thus, in order to invoke the subject=
matter jurisdiction of the circuit court, a plaintiff's case, as framed=
by the complaint or petition, must present a justiciable matter. See Pe=
ople ex rel. Scott v. Janson, 57 Ill. 2d 457, 459 (1974) (if a complaint=
states a case belonging to a general class over which the authority of =
the court extends, subject matter jurisdiction attaches) [citations]." B=
elleville, 199 Ill. 2d at 334. The court in Belleville reviewed the comp=
laint and did not parse words or find a cause of action at common law in=
tegrated into a void statutory cause. It did not even find the count voi=
d. It merely found that a limitations period in a particular statute was=
not jurisdictional.
|
| [85] | In conclusion, to interpolate a common-law cause of action as an =
integral part of a statutory count and allow the trial court to proceed =
without a separate common-law count vitiates the requirement to plead se=
parate counts and allows courts to "read between the lines" to establish=
that a count, no matter how defective, has been pled. Plaintiff argues =
that such relief existed at common law. That is true. However, subject m=
atter jurisdiction is not determined by whether or not a cause of action=
exists outside of a complaint. Subject matter jurisdiction is determine=
d by whether or not the complaint contains at least one count that alleg=
es a cause of action. Plaintiff had the right to plead more than one ver=
sion of her claim, but she chose not to do so. Because plaintiff failed =
to include a common-law count, the trial court lacked subject matter jur=
isdiction, and the orders appealed from are void.
|
| [86] | I specially concur as to the portion of the majority opinion that=
vacates the order prohibiting the parents from communicating with their=
daughter. I do not disagree with the analysis of the majority. However,=
the analysis contained in the partial dissent above establishes that th=
e trial court did not have subject matter jurisdiction and, therefore, h=
ad no jurisdiction to enter the order prohibiting communication in the f=
irst instance. See In re Adoption of Schumacher, 120 Ill. App. 3d 50, 56=
(1983) (petition for rule to show cause was properly dismissed because =
it was based upon the alleged violation of a void visitation order). I b=
elieve the same rationale applies here.
|
| |
|
| | Opinion Footnote=
s |
| |
|
| [87] | *fn1 In her April 6, 1994, p=
etition for grandparent visitation, plaintiff failed to specify which pr=
ovision of section 607(b) applied in her case. In Wickham, our supreme c=
ourt specifically declared sections 607(b)(1) and (b)(3) (750 ILCS 5/607=
(b)(1), (b)(3) (West 2000)), pertaining to grandparent visitation, uncon=
stitutional. Wickham, 199 Ill. 2d at 320-21. Because plaintiff petitione=
d the court for grandparent visitation under section 607(b), her petitio=
n implicitly invoked the specific provisions of section 607(b) that were=
held unconstitutional. We also note that although Wickham did not expre=
ssly address the remaining provisions of section 607(b), its holdings af=
fect the applicability of both those provisions. Section 607(b)(2) merel=
y restricts the right to grandparent visitation granted in sections 607(=
b)(1) and (b)(3), and therefore the decision in Wickham left nothing for=
section 607(b)(2) to regulate. Furthermore, section 607(b)(1.5) (750 IL=
CS 5/607(b)(1.5) (West 2002)), allowing for stepparent visitation, was d=
eclared unconstitutional in In re Marriage of Engelkens, 354 Ill. App. 3=
d 790, 795 (2004), pursuant to the holdings in Wickham.
|
| [88] | *fn2 Since plaintiff filed h=
er petition, the Illinois legislature enacted a new grandparent visitati=
on statute (Pub. Act 93--911, eff. January 1, 2005) providing that when =
a court reviews a petition for grandparent visitation there is a rebutta=
ble presumption that a fit parent's actions and decisions regarding gran=
dparent visitation are not harmful to her child's mental, physical, or e=
motional health, and that a grandparent seeking visitation has the burde=
n to prove that the parent's actions regarding visitation are harmful to=
the child's mental, physical, or emotional health.
|
| [89] | *fn3 While our analysis is i=
n accordance with these modern cases, we do not believe that their use o=
f the term "not valid" to describe a claim that may not prevail on the m=
erits is precise enough for our purposes. We prefer to describe claims t=
hat may not prevail on the merits, but whose forbearance may serve as pr=
oper consideration, as claims that are "in doubt." This distinguishes cl=
aims that may not succeed on the merits from claims that the claimant ha=
s no legal basis to bring.
|
20060728
© 1992-2006 VersusLaw Inc.; Pat. Pending
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