In re Adoption of A.W.

Case Date: 09/04/2003
Court: 2nd District Appellate
Docket No: 2-03-0208 Rel

No. 2--03--0208


IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT


In re ADOPTION OF A.W., J.W., ) Appeal from the Circuit Court
and M.W., Minors ) of Lake County.
)
)
) No. 99--AD--141
)
  )

Honorable

(R.H., Petitioner-Appellant; )

Victoria L. Martin,

E.W., Petitioner-Appellee). )

Judge, Presiding.


JUSTICE KAPALA delivered the opinion of the court:

Appellant, R.H., appeals from an order of the circuit court ofLake County denying her petition under section 2--1401 of the Codeof Civil Procedure (the Code) (735 ILCS 5/2--1401 (West 2002)) tovacate the trial court's order of April 5, 2002, which dismissedthe adoption petition filed by her and her domestic partner, E.W.,to adopt A.W., J.W., and M.W., E.W.'s biological children. R.H.also appeals from the denial of her motion for visitation, amediation referral, and other relief. For the reasons that follow,we affirm in part and vacate in part.

FACTS

The facts are uncomplicated. E.W. is the biological mother ofthree minor children conceived through artificial inseminationduring the period of time when R.H. and E.W. cohabited as femaledomestic partners who had never been married in anotherjurisdiction to each other. On September 22, 1999, they jointlyfiled a verified petition for the related adoption (750 ILCS 50/1et seq. (West 1998)) of the minor children born during theircohabitation. On October 8, 1999, the trial court appointed aguardian ad litem. On November 5, 2001, E.W. and R.H. filed theiramended verified petition for adoption. The amended petitionalleged that E.W. "[c]onsents to the adoption of the minor [sic] by[p]etitioners herein, and her consent is evidenced in writing bythe mother signing her name to this [p]etition for [a]doption."

The next entry in the record is an order dated April 5, 2002, written by the trial court, which recited:

"This matter coming on for hearing on motion of [E.W.], who is present in open court and the court being fully advised inthe premises: IT IS HEREBY ORDERED: This matter is dismisseddue to [E.W.'s] refusing to consent to the adoption by [R.H.], and the [sic] there being no consent by the biological mother,the petition for adoption is withdrawn and the case closed."

On October 30, 2002, R.H. filed a section 2--1401 petition tovacate the dismissal of the adoption petition. In it, she averredthat, at the time each child was born, she and E.W. were domesticpartners and co-parents of the three children and together hadcared for the children since each child's birth. She furtheralleged that on November 5, 2001, she, E.W., their attorney, andthe children appeared in open court "for the presentation of the[v]erified [p]etition and entry of appropriate [o]rders." At thesame court appearance, R.H. averred, she, E.W., and the childrenwere taken into the trial court's chambers where the trial judgebrought out toys for the children "and waved a 'magic wand' for thechildren, indicating verbally that the adoption was final." R.H.stated her belief that the adoption was final at that time. Therecord, however, contains no final order of adoption for that orany other date.

In approximately August 2002, E.W. informed R.H. that theadoption had never been made final. On October 30, 2002, R.H.filed a section 2--1401 petition seeking to vacate the orderdismissing the cause. In her petition she alleged she did notreceive notice that E.W. was going to appear in court ex parte andwithdraw her consent to the adoption. R.H. also prayed forreinstatement of the adoption petition. On December 13, 2002, R.H.filed a motion for visitation and other relief. On January 28,2003, the trial court denied all relief. The trial court in itsorder specifically stated that R.H. lacked standing to bring themotion for visitation and that, as E.W.'s right to withdraw herconsent to the adoption was absolute, no notice of the dismissal ofthe proceedings was necessary. R.H. timely filed this appeal.

DISCUSSION

R.H.'s first contention is that the trial court abused itsdiscretion when it denied her section 2--1401 petition to vacatethe dismissal of the adoption petition and for reinstatement. Thetrial court found that, since E.W. had the absolute right towithdraw consent, no notice was necessary. We disagree. R.H. wasa party and was entitled to notice. Rule 2.01(g) of the NineteenthJudicial Circuit requires that written notice of the hearing of allmotions shall be given by the party requesting the hearing to allparties who have appeared and who have not been defaulted. 19thJud. Cir. Ct. R. 2.01(g) (eff. January 2, 1997). Supreme CourtRule 104(b) provides that papers required to be filed with theclerk shall be filed with a certificate of service with proof thatcopies have been served on all parties who have appeared and arenot in default. 134 Ill. 2d. R. 104(b).

E.W. contends that she gave notice of her intent to withdrawher consent to the parties' attorney, who failed to convey thisinformation to R.H. She does not indicate whether she advised herattorney orally or in writing. Nevertheless, E.W. argues, herstatement of intent to her attorney constituted notice to R.H. E.W. cites no authority for this proposition, and we find no basisto conclude that legally sufficient notice was given. A merestatement of her intent is not notice of court action.

In any event, E.W. did not give written notice as contemplatedby the local rule, nor did she file a certificate of service asrequired by Rule 104(b). We have combed the record and find nonotice of motion or other document that could be construed to havegiven R.H. legally sufficient notice that the adoption petitionwould be dismissed. Therefore, we agree with R.H. that she did notreceive notice.

The effect of the lack of notice was to render the orderdismissing the petition void. See In re Estate of Gustafson, 268Ill. App. 3d 404, 409 (1994). Prior to entry of a new order, aparty must give notice that a motion will be presented to thecourt. Maras v. Bertholdt, 126 Ill. App. 3d 876, 881 (1984). Anorder entered without notice is void. Maras, 126 Ill. App. 3d at881. See also Vortanz v. Elmhurst Memorial Hospital, 179 Ill. App.3d 584, 589 (1989). "At a minimum, procedural due process requiresnotice, an opportunity to respond, and a meaningful opportunity tobe heard." Gustafson, 268 Ill. App. 3d at 409. While R.H. doesnot challenge this order on precisely this basis, "courts have anindependent duty to vacate and expunge void orders and thus may suasponte declare an order void." Daniels v. Industrial Comm'n, 201Ill. 2d 160, 166 (2002). A void order or judgment may be attackedat any time or in any court either directly or collaterally andwithout any showing of diligence or meritorious defense. Dec v.Manning, 248 Ill. App. 3d 341, 347 (1993). Therefore, we need notaddress R.H.'s arguments made pursuant to section 2--1401. Accordingly, we vacate the trial court's order of April 5, 2002.

We are aware that the First District of the Appellate Courthas questioned the validity of our decisions in Maras and Vortanz. See Mortimer v. River Oaks Toyota, Inc., 278 Ill. App. 3d 597, 602(1996) ("We view the decisions in these cases as questionable inlight of the specific holdings of our supreme court that onlyorders entered by a court lacking jurisdiction over the person ofa party or the subject matter of the litigation are 'void' "). TheFifth District in Hartman v. Pittsburgh Corning Corp., 261 Ill.App. 3d 706, 727 (1994), commented on the divergence of cases onthis subject and declined to hold void an order editing adeposition where objections to the edited portions of thedeposition were not served on the defendant. However,significantly, Hartman pointed out that the defendant had knowledgethat both of the other parties were filing motions objecting toportions of the deposition, and there was no surprise or prejudiceto the defendant. Hartman, 261 Ill. App. 3d at 727. The ThirdDistrict in In re Parentage of G.D.M., 220 Ill. App. 3d 182 (1991),dismissed an appeal from an order the State argued was void forlack of service of notice because the effect of the order was toleave the original action pending and, the court reasoned, therewas no final and appealable order from which it could obtainjurisdiction. G.D.M., 220 Ill. App. 3d at 183. But the dissentnoted that the majority accepted the determination that the orderwas void "without question." G.D.M., 220 Ill. App. 3d at 184.

We remark in passing that the Seventh Circuit Court of Appealshas taken the view that a judgment rendered without notice is void. "A judgment may be deemed void if the court that rendered thejudgment acted in a manner inconsistent with due process of law. [Citation.] Generally, due process requires that all litigants begiven notice and an opportunity to be heard. [Citation.]" Grun v.Pneumo Abex Corp., 163 F.3d 411, 423 (7th Cir. 1998). QuotingMullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 94L. Ed. 865, 873, 70 S. Ct. 652, 657 (1950), the court observed," 'An elementary and fundamental requirement of due process in anyproceeding which is to be afforded finality is notice reasonablycalculated, under all the circumstances, to apprise interestedparties of the pendency of the action and afford them anopportunity to present their objections.' " Grun, 163 F.3d at 423.

The opinions of any branch of the appellate court are bindingon all circuit courts across the state, but not on the otherbranches of the appellate court. Garcia v. Hynes & Howes RealEstate, Inc., 29 Ill. App. 3d 479, 481 (1975). We are obliged tofollow the precedents of our supreme court. People v. Goebel, 284Ill. App. 3d 618, 624 (1996). However, it is required of us toexamine our supreme court's opinions carefully to determine theirbreadth or narrowness of applicability in the context of othercases bearing on the subject and the factual situation in the casepending before us. See Application of County Treasurer, 130 Ill.App. 2d 296, 297 (1970).

We disagree with the First District's conclusion that oursupreme court has limited void orders to those entered withoutjurisdiction of the parties or the subject matter. Mortimer singledout two supreme court decisions, Buford v. Chief, Park DistrictPolice, 18 Ill. 2d 265 (1960), and Baker v. Brown, 372 Ill. 336(1939). Mortimer, 278 Ill. App. 3d at 602. The plaintiff in Bufordwas defaulted on a traffic ticket in the municipal court but fileda civil complaint attacking the Chicago Park District's authorityto enact the ordinance under which her car was seized for a parkingviolation. Buford, 18 Ill. 2d at 271. Our supreme court held thatthe civil suit amounted to an impermissible collateral attack on a default judgment entered in a criminal proceeding. Buford, 18 Ill.2d at 271. "Judgments by default, entered by the municipal court,and in a criminal proceeding, are protected against collateralattack." Buford, 18 Ill. 2d at 271. Buford did say, "A judgmententered by a court in which there is a total want of jurisdictionor which lacks inherent power to make or enter the particular orderinvolved is void and subject to collateral attack." Buford, 18 Ill.2d at 271. We do not read this to mean that orders are void only where there is a lack of jurisdiction. In Baker, our supreme courtgave full faith and credit to an Oklahoma judgment. Baker, 372 Ill.at 339-40. In that case the parties admitted that the Oklahomacourt had general jurisdiction of the subject matter of the suit andthat the court had jurisdiction of the person of the defendant bypersonal service. Baker, 372 Ill. at 340. The defendant arguedthat the Oklahoma court lacked jurisdiction for the reason that thepleadings were insufficient to support the amount of the judgment. Baker, 372 Ill. at 340. Our supreme court reiterated the generalrule that a judgment rendered by a court having jurisdiction of theparties and the subject matter, unless reversed or annulled in someproper proceeding, is not open to collateral attack. Baker, 372Ill. at 340. Neither Buford nor Baker considered the issue of aprocedural due process challenge to a judgment entered withoutnotice.

While the Fifth District in Hartman appears to have taken thesame tack as the First District, we simply point out that Hartmanis distinguishable from our case. There, the defendant knew thatthe other parties were filing objections to the deposition. Hartman, 261 Ill. App. 3d at 727. In our case, R.H. had noknowledge of the impending court action. Therefore, we continue tofollow our decisions in Maras and Vortanz.

R.H.'s second contention is that she has standing to bring themotion for visitation and a mediation referral because, she argues,she is a de facto parent or, in the alternative, she stands in locoparentis to E.W.'s three children. R.H. acknowledges that the FirstDistrict of the Appellate Court in In re Visitation with C.B.L., 309Ill. App. 3d 888, 894 (1999), decided these issues against herposition. She urges us to come to the opposite conclusion and todecline to follow C.B.L. R.H. instead relies on Faber v. IndustrialComm'n, 352 Ill. 115 (1933), and In re Parentage of M.J., 203 Ill.2d 526 (2003).

The question of standing here is a matter of law, which thiscourt reviews de novo. See Kankakee County Board of Review v.Property Tax Appeal Board, 316 Ill. App. 3d 148, 151 (2000).

We first will discuss C.B.L. The facts of that case are nearlyidentical to those in our case. In 1984, the petitioner met therespondent and a long-term lesbian relationship ensued. C.B.L., 309Ill. App. 3d at 889. In 1993, the respondent was artificiallyinseminated, which resulted in C.B.L.'s birth. C.B.L., 309 Ill.App. 3d at 889. The petitioner was dutifully involved in thepreparation for the birth and thereafter in C.B.L.'s care until herrelationship with the respondent ended in 1995. C.B.L., 309 Ill.App. 3d at 889. When the respondent refused the petitioner allcontact with C.B.L., the petitioner petitioned the circuit court togrant her visitation pursuant to section 607 of the IllinoisMarriage and Dissolution of Marriage Act (the Marriage Act) (750ILCS 5/607 (West 1998)). C.B.L., 309 Ill. App. 3d at 889. Therespondent moved to dismiss the petition for lack of standing. Thepetitioner answered, claiming that as a former lesbian life partnerof the respondent, she was a de facto parent or an individual inloco parentis to C.B.L. C.B.L., 309 Ill. App. 3d at 890. Theappellate court affirmed the trial court's dismissal of thepetition. C.B.L., 309 Ill. App. 3d at 889. The appellate courtconcluded that, over its many and complex amendments since itsoriginal enactment, section 607 of the Marriage Act is no longer a codification of prior common law, but is now to be understood andconstrued as superseding and supplanting the common law ofvisitation in Illinois. C.B.L., 309 Ill. App. 3d at 894. Therefore, the court reasoned, standing for visitation must be foundsolely within the specific provisions of section 607. C.B.L., 309Ill. App. 3d at 894. Since the petitioner conceded that section 607did not afford her standing, the petition for visitation wasproperly dismissed. C.B.L., 309 Ill. App. 3d at 894.

In opposition to C.B.L., R.H. advances two theories. First, she urges us to apply Farber. Farber is a 1933 case construing theWorkmen's Compensation Act (Ill. Rev. Stat. 1933, ch. 48, par. 138et seq.). The issue was whether the claimant, who raised thedeceased but was no blood relation and had not adopted him, waseligible to receive compensation for his accidental injuries arisingout of and in the course of his employment. Farber, 352 Ill. at116-17. Our supreme court held that the claimant was so entitledbecause she stood in loco parentis to the deceased for purposes ofthe Workmen's Compensation Act. Farber, 352 Ill. at 120. Farberdecided only that the petitioner was entitled to the deceased's compensation because she was dependent on him for her support at thetime of his death, which occurred at a time and place and undercircumstances that rendered his death compensable under theWorkmen's Compensation Act. Farber, 352 Ill. at 123. "Under thesecircumstances," Farber concluded, the holding that the petitionerwas entitled to compensation was affirmed. Farber, 352 Ill. at 123. We do not believe that Farber dictates a result different from thatreached in C.B.L. It does not present the issue of standing tobring a petition for visitation, and it was limited to the factsthere presented.

R.H.'s second theory is that more recently, and since C.B.L., our supreme court has examined the relationship of couples tochildren conceived through artificial insemination in such a manneras to invalidate the holding in C.B.L. In M.J., our supreme courtinterpreted the Illinois Parentage Act (the Parentage Act) (750 ILCS40/1 et seq. (West 1998)). Specifically, the court addressed twoissues: (1) whether the husband's consent to artificial inseminationmust be in writing as a prerequisite for invoking the protectionsof the Parentage Act (M.J., 203 Ill. 2d at 535); and (2) whether,where there is no written consent for the procedure, the ParentageAct precludes common-law claims for child support (M.J., 203 Ill.2d at 540).

M.J. involved a heterosexual unmarried couple, Raymond andAlexis, who could not conceive children. M.J., 203 Ill. 2d at 530. By agreement, Alexis was artificially inseminated and twin boys wereborn to the couple. M.J., 203 Ill. 2d at 531. When therelationship ended, Raymond stopped supporting the children. M.J.,203 Ill. 2d at 531. Alexis brought common-law claims for childsupport as well as for support under the Parentage Act. M.J., 203Ill. 2d at 531. Because Raymond did not execute a written consent for the artificial insemination procedure, our supreme courtdetermined that the Parentage Act did not pertain and refused to decide whether the Parentage Act applies to unmarried persons. M.J., 203 Ill. 2d at 537. Alexis's common-law claims for support were recognized, however, even in the absence of a legally declaredparent-child relationship, because of the high court'sresponsibility and duty to ensure that the rights of children areadequately protected and to prevent children born by artificialinsemination from becoming charges of the state. M.J., 203 Ill. 2d at 539-41. M.J. did not touch upon visitation issues. The crux ofthe holding in M.J. was that "[r]egardless of the method ofconception, a child is born in need of support." M.J., 203 Ill. 2dat 541. M.J. is not a sweeping revamping of Illinois law and doesnot speak to the issues raised here. It certainly does not extendde facto or in loco parentis status to one in R.H.'s situation. InM.J., our supreme court stated, "Our holding is limited to theunique circumstances of this case." 203 Ill. 2d at 542.

We agree with the holding in C.B.L. that, if standing forvisitation is to be found, it is within the provisions of section607 of the Marriage Act. R.H. does not argue that she has standingunder that section. We decline to go where the legislature has notled. Accordingly, the trial court did not abuse its discretion indenying her petition for visitation and mediation referral.

The judgment of the circuit court of Lake County is affirmedin part and vacated in part.

Affirmed in part and vacated in part.

HUTCHINSON, P.J., and McLAREN, J., concur.