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No. 2--03--0080

JUSTICE GILLERAN JOHNSON delivered the opinion of the court:

The respondent, Eugene Sullivan, appeals from the January 13,2003, order of the circuit court of Du Page County dismissing hispetition to allow his family to visit with his son while he wasserving on active military duty. We reverse and remand foradditional proceedings.

The parties' marriage was dissolved on October 24, 1997. Custody of the parties' one child, Samuel, born on August 13, 1993,was awarded to the petitioner, Mary Peters. Eugene was awardedvisitation rights. On September 13, 2002, Mary filed petitionsseeking to modify child support and to adjudicate Eugene inindirect civil contempt for failing to maintain medical insurancefor Samuel. During these postdissolution proceedings, Eugene fileda petition to permit his family to have continued visitation withhis son while he was on active military duty. Eugene's petitiondid not specify the statutory basis for his request for relief. Eugene's petition alleged that he was a member of the armedservices and that he was being ordered to active military duty inOctober 2002 for a one- or two-year period. His petition furtheralleged that while he was deployed on active duty, it would be inthe best interests of his son to continue his visitation schedulewith Eugene's family. The petition alleged that Mary would preventSamuel from visiting with Eugene's family while Eugene was onactive military duty. Eugene's petition therefore requested thetrial court to order that Samuel be permitted to visit withEugene's family members on Eugene's scheduled visitation days aslong as Eugene was away on military duty.

On October 22, 2002, Mary filed a motion to dismiss Eugene'spetition pursuant to sections 2--619(a)(1) and (a)(4) of the Codeof Civil Procedure (735 ILCS 5/2--619(a)(1), (a)(4) (West 2002)). She argued that, based on Wickham v. Byrne, 199 Ill. 2d 309 (2002),the trial court lacked subject matter jurisdiction to grant Eugenethe relief he requested.

On January 6, 2003, the trial court entered its writtenfindings and dismissed Eugene's petition on subject matterjurisdiction grounds. The trial court explained that Eugene wasessentially requesting grandparent visitation or treatingvisitation as a chose in action which he could assign, neither ofwhich was permissible. On January 13, 2003, the trial courtentered an order consistent with its written findings. The trialcourt also found that pursuant to Supreme Court Rule 304(a) (155Ill. 2d R. 304(a)), there was no reason to delay enforcement of theorder. Eugene thereafter filed a timely notice of appeal.

On appeal, Eugene argues that the trial court erred ingranting Mary's section 2--619 motion to dismiss his petition toallow his family to visit his son while he was away on activemilitary duty. Specifically, Eugene contends that the trial courterred in determining that it lacked subject matter jurisdiction togrant him the relief that he requested. Eugene argues that, underthe common law, the trial court was permitted to award his familyvisitation rights upon the showing of special circumstances.

At the outset, we note that Mary argues that Eugene has waivedhis contention as to whether jurisdiction for his petition existedunder the common law because he failed to raise that issue beforethe trial court. However, because parties cannot waive an issue ofsubject matter jurisdiction (Currie v. Lao, 148 Ill. 2d 151, 157(1992)), we will consider the merits of his contention.

The primary purpose of section 2--619 is to afford a means ofobtaining, at the outset of a case, a summary disposition of issuesof law and of easily proved questions of fact. Clay v. Kuhl, 297Ill. App. 3d 15, 19 (1998). Under section 2--619(a)(1), adefendant may raise the trial court's lack of subject matterjurisdiction as a defense to the action. 735 ILCS 5/2--619(a)(1)(West 2002). When the defendant files a motion to dismiss pursuantto section 2--619, all well-pleaded facts and reasonable inferencesare accepted as true for purposes of the motion; conclusions oflaw, however, are not accepted as true. Evans v. General MotorsCorp., 314 Ill. App. 3d 609, 614 (2000). A reviewing court shouldconduct an independent review of the propriety of dismissing thecomplaint and is not required to defer to the trial court'sreasoning. Clay, 297 Ill. App. 3d at 19.

Subject matter jurisdiction refers to the power of the courtto hear and determine cases of the general class to which theproceeding in question belongs. Belleville Toyota, Inc. v. ToyotaMotor Sales U.S.A., Inc., 199 Ill. 2d 325, 334 (2002). With theexception of the circuit court's power to review administrativeaction, which is conferred by statute, a circuit court's subjectmatter jurisdiction is conferred entirely by our stateconstitution. Ill. Const. 1970, art. VI,