In re Marriage of Findlay
Case Date: 05/27/1998
Court: 2nd District Appellate
Docket No: 3-97-0586
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No. 3--97--0586 _________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT _________________________________________________________________ In re MARRIAGE OF ) Appeal from the Circuit Court ) of Du Page County. TRACY L. FINDLAY, n/k/a ) Tracy L. Ostrem, ) ) Petitioner-Appellee, ) No. 96--D--334 ) and ) ) TIMOTHY J. FINDLAY, ) Honorable ) Robert J. Anderson, Respondent-Appellant. ) Judge, Presiding. _________________________________________________________________ JUSTICE DOYLE delivered the opinion of the court: In this postdissolution proceeding, respondent, Timothy Findlay, appeals the dismissal of his complaint for a preliminary injunction against petitioner, Tracy Findlay, n/k/a Tracy Ostrem. Respondent sought to enjoin petitioner from removing the parties children, of whom she has residential custody, from Naperville to Marshall, Illinois. The trial court ruled that it lacked jurisdiction to restrain petitioner s intrastate relocation. On appeal, respondent argues that the parties settlement agreement, incorporated into the dissolution judgment, authorizes the court to decide where the children are to reside if the parties cannot resolve that issue by agreement or conciliation. Respondent maintains that the court must preserve the status quo until it decides whether petitioner may remove the children to Marshall. We hold that the trial court erred in dismissing the complaint for a preliminary injunction. We decide only that the court erred in deciding as a matter of law that it lacked jurisdiction over the complaint. Therefore, we reverse the dismissal order and remand the cause so the trial court may decide (1) whether petitioner s planned move is a matter the settlement agreement leaves for judicial resolution; and (2) if so, whether respondent should receive the preliminary injunctive relief he requests. The dissolution judgment, entered November 12, 1996, gives the parties joint legal custody of their two children; petitioner has residential custody and respondent visitation custody. Article II of the settlement agreement addresses matters directly involving the children, including the allocation of custody. Paragraph 2 of article II states: Each party will *** make day to day decisions regarding the children while they are in that party s custody. The parties will jointly decide matters of substance regarding the children, including, without limitation intended, important questions of education, religion, and elective medical care. In the event the parties are unable to agree on important decisions regarding the children, the parties shall first attempt to resolve the issue through conciliation ***. In the event the parties are unable to resolve the issue through conciliation *** the matter shall be resolved by a Court of appropriate jurisdiction. The agreement does not otherwise address whether or when either party may move intrastate. On June 3, 1997, respondent filed his complaint for a preliminary injunction, alleging the following facts. After the dissolution judgment, petitioner and the children lived in Naperville. Respondent consistently fulfilled his custody obligations. In March 1997, petitioner told him that she intended to move with the children to Terre Haute, Indiana, apparently to attend college. After respondent refused to consent to the move, petitioner told him she intended to move herself and the children to Marshall, just across the border from Terre Haute, by July 1, 1997. Marshall is a 3 |