In re Marriage of Walker
Case Date: 03/27/1997
Court: 1st District Appellate
Docket No: 1-95-3282
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MARCH 27, 1997 1--95--3282 In re MARRIAGE OF ) Appeal from the Circuit ) Court of Cook County JOSEPH M. WALKER, ) ) Petitioner-Appellant, ) ) and ) No. 90 D 581 ) JEANNE M. WALKER, ) ) Honorable Richard Respondent-Appellee. ) Kelly, Judge ) Presiding. JUSTICE CERDA delivered the opinion of the court: Petitioner, Joseph M. Walker, appeals from the order of the circuit court of Cook County granting the motion of respondent, Jeanne M. Walker, for Illinois to concede jurisdiction over the child-custody proceeding to Minnesota. We affirm. The parties were married on September 29, 1979, and their child, Joseph, was born on October 23, 1986. On January 16, 1990, petitioner filed a petition for dissolution of his marriage. On August 22, 1991, a judgment of dissolution of marriage was entered, incorporating a marital settlement agreement. The parties were awarded joint legal and physical custody of the child, who would reside 50% of the time with each parent. Beginning in September 1992, the child was to reside with petitioner each summer. The child was also to reside with petitioner during Easter and alternating Christmas vacations. Respondent was given the right to move with the child to Minnesota. Paragraph 2.11 of the settlement agreement stated in part: "Parties further agree that upon the minor child attaining the age of twelve (12) he shall have a right to express a preference in determining which parent he would desire to reside with ***. In the event the parties are unable to reach an accord, nothing in this paragraph shall prohibit a party from filing a Petition for Modification of Residence or Visitation, all in accordance with Chap. 40, Ill. Rev. Stat." (Emphasis added.) Paragraph 2.17 stated: "In the event the parties are unable to agree to the specifics necessary to carry out the intentions of Article II [captioned 'Child Custody and Visitations'] of this Agreement, any dispute shall be submitted to a court of competent jurisdiction upon proper notice, petition and hearing for determination." (Emphasis added.) Paragraph 14.5(G) stated: "This Agreement shall be construed under the general laws of the State of Illinois, irrespective of the later domicile or residence of the HUSBAND or the WIFE." (Emphasis added.) On December 29, 1994, petitioner filed a petition seeking to become the primary residential custodial parent. Petitioner alleged that there had been substantial changes of circumstances that caused the child's primary living environment to jeopardize his well being. Petitioner alleged that the child had behavioral problems and challenged the respondent's parenting. Petitioner also filed a motion for a Supreme Court Rule 215(a) mental examination of the child by Dr. Robert E. Bussell, a psychiatrist in Illinois. 134 Ill. 2d R. 215(a). Petitioner argued that he believed that the child was currently under psychotherapeutic care and that a psychiatric evaluation would determine the fitness of both parents and the mental and emotional state of the child. On May 10, 1995, the trial court ordered that respondent and the child meet with Dr. Bussell so that he could prepare a custody evaluation. On April 17, 1995, respondent filed a motion for the court to concede jurisdiction of the custody proceeding to a Minnesota court. Respondent argued that Illinois was an inconvenient forum and that Minnesota was a more appropriate forum. At the June 1995 hearing on respondent's motion, petitioner testified that from September 1991 until the fall of 1992, when the child started school, the child spent 6 out of 11 months with him. There were substantial periods of time that the child was in a day-care center. There were two teachers from the day-care center who could testify about the child. Petitioner's present wife was involved with various activities. The child had friends in the neighborhood, and the parents of the friends had observed petitioner with the child. The child's cousin lived a few miles away. Petitioner had an adult daughter and son in Wisconsin who saw the child when they visited. The child had seen the court- appointed psychiatrist twice, and the third visit was scheduled soon. Petitioner had seen the psychiatrist at least six times. His present wife had a townhome in Minnesota, and he went there every two or three months. The child also had visited there. Respondent testified at the hearing that she was born in Minnesota and that she resided in Minnesota her entire life prior to her marriage. She did not reside in Minnesota from March 1988 to September 1991. The child lived in Minnesota from 1986 until March 1988 and moved back to Minnesota with her in the fall of 1991. In the past year, the child spent the two-week Christmas holiday, the one-week Easter holiday, and the summer vacation with petitioner in Illinois. The child was diagnosed with attention deficit hyperactive disorder (ADHD) and with developmental delays. Respondent intended to call to testify each of the 25 witnesses referenced in her motion to concede jurisdiction. She testified about the contacts and knowledge of the following potential witnesses, who were located in Minnesota: the director of the day-care center where the child attended from 1991 until 1994; the assistant director at that day-care center; the principal of the child's kindergarten school, who worked with respondent on the child's ADHD; the child's kindergarten teacher; the principal of the elementary school where the child attended first grade and with whom respondent had had several consultations concerning the child's behavior; a social worker at the elementary school, who met for a period during first grade with the child once a week or once every other week; the child's first-grade teacher; the principal of the child's second-grade school, with whom respondent discussed the child's ADHD and who headed up a task force of professionals at the school to help the child's developmental delays; the social worker when the child was in second grade; the child's psychologist, who had been treating the child since the fall of 1994; a tutor who began working with the child in February 1995 and assessed the child's developmental delays; the child's pediatrician; respondent's father, who saw the child at least every other week; respondent's mother; respondent's grandmother; respondent's five brothers and sisters and their spouses; the child's cousins; respondent's fianc |