Find Legal Information

JUSTICE McCULLOUGH delivered the opinion of the court:

Petitioner Susanna M. Lange, n/k/a Susanna M. Wassill (Susanna), appeals an order of the circuit court of Edgar County denying her petition to move the parties' minor children, Anna Louise Lange, born October 16, 1990, and James Albert-Galen Lange, born October 15, 1992, from Indiana to Texas. Susanna had custody of the children pursuant to a judgment of dissolution of her marriage to respondent Gayle A. Lange (Gayle), entered January 21, 1994. The only issue raised on appeal by Susanna is whether the trial court's findings were against the manifest weight of the evidence or, in the alternative, the trial court improperly considered the "necessity" of Susanna's move to Texas. We affirm.

The parties and this court are familiar with the facts, and only those facts necessary to an understanding of this court's disposition will be discussed.

Although no court from another state has asserted jurisdiction and the parties have never challenged the trial court's jurisdiction or that court's authority to enter an order regarding removal of the children from Indiana to Texas, the dissent addresses the issue, necessitating that this question be addressed. See In re Estate of Steinfeld, 158 Ill. 2d 1, 12, 630 N.E.2d 801, 806 (1994) (an order or judgment is void if the trial court lacked (1) jurisdiction of the subject matter or over the parties or (2) the inherent power to make or enter the order); In re Marriage of Fields, 288 Ill. App. 3d 1053, 1056-57, 681 N.E.2d 166, 169 (1997). The judgment of dissolution awarded custody to Susanna, subject to visitation agreed to in the marital settlement agreement. The judgment recited that Susanna resided in Terre Haute, Indiana, and Gayle resided in Metcalf, Illinois. The judgment further stated, "This court retains jurisdiction of this cause for the purpose of enforcing the terms of this Judgment of Dissolution of Marriage." The marital settlement agreement did not specify the visitation rights of Gayle except to say that he was entitled to "reasonable visitation *** with the restriction that no overnight visitations will be allowed without first acquiring approval of" Susanna. The testimony of the parties established that, by agreement, Gayle's visitation immediately following the dissolution of marriage was exercised weekly at Susanna's house. Sometime in 1996, after Susanna felt the children could handle overnight visitation, Gayle exercised visitation on Saturday and Sunday every other week, although he had requested the children from 5 p.m. Friday to 6 p.m. Sunday. The only periods of "extended" visitation exercised by Gayle were two 4-day periods in the summer of 1997; 10 days during the Christmas season in 1997 when Susanna visited her friend in Houston, Texas; and 11 days in July 1998 when Gayle and his fianc