In re: Marriage of Means

Case Date: 04/30/2002
Court: 4th District Appellate
Docket No: 4-01-0924 Rel

NO. 4-01-0924

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

 

In re: the Marriage of ) Appeal from 
DAVID L. MEANS, ) the Circuit Court of 
                    Petitioner-Appellee,  ) Sangamon County
                    and ) No. 00D399
LORI S. MEANS,  )
                    Respondent-Appellant. ) Honorable
) Steven H. Nardulli,
) Judge Presiding.

 



JUSTICE COOK delivered the opinion of the court:

Respondent, Lori S. Means (Lori), appeals the order ofthe trial court denying her motion to modify the visitation ofpetitioner, David L. Means (Dave), so as to accommodate her moveto McHenry, Illinois. We conclude that the joint-parentingagreement executed by the parties did not restrict the right ofthe primary physical custodian to move inside the State ofIllinois. Accordingly, we reverse and remand.

Lori and Dave were married May 5, 1990, in SangamonCounty. They have two children, a son Michael, born January 8,1991, and a son Matthew, born February 1, 1995. A judgment ofdissolution of marriage was entered September 6, 2000. Thejudgment incorporated a joint-parenting agreement, and theparties were awarded joint custody of their children, with Lorihaving primary physical custody. The agreement provided that"the parties shall jointly decide all major issues concerning thechildren's education, religious training, and extraordinaryhealth care." In the event the parties were unable to agree onany issue requiring a joint decision, they agreed to enter intomediation.

On March 27, 2001, a mediator's report was filed withthe court, stating that mediation had been terminated becauseafter an initial assessment it was determined there was norealistic likelihood that a mediated agreement as to the disputedchild custody/child visitation issues could be achieved. OnApril 3, 2001, Lori filed a "Motion to Modify Visitation,"reciting that she was originally from McHenry, Illinois, and thatshe desired to relocate there with the children. On April 11,2001, Dave filed a "Petition to Modify Judgment of Dissolution ofMarriage," seeking an increase in his periods of physical custody.

On July 2, 2001, the trial court entered an orderdetermining that "Lori has not met her burden to establish that amodification of the custodial schedule is in the children's bestinterests." The trial court denied Dave's petition, except thateach party was allowed to have the children on the party'sbirthday, a Christmas custody schedule was set, and Thanksgivingwas declared to be a four-day holiday. The court found that Davehad overnight custody on alternate weekends and holidays and twoweeks during the summer; that a practice had developed of Davekeeping the boys overnight on Tuesday and Thursday although thatpractice was suspended by agreement in April 2001; and that Davespent other time with the boys and "spends nearly as much timewith the boys as does Lori." The court, applying an analysissimilar to that found in the leave-to-remove provisions ofsection 609 of the Illinois Marriage and Dissolution of MarriageAct (Act) (750 ILCS 5/609 (West 2000)), determined that McHenryCounty is a 3 1/2-hour drive from Springfield and that Lori'sfinancial circumstances would be improved only slightly, if atall. See In re Marriage of Eckert, 119 Ill. 2d 316, 326-27, 518N.E.2d 1041, 1045-46 (1988) (identifying factors to be consideredunder section 609). After her motion to modify visitation wasdenied, Lori timely filed a notice of appeal.

On appeal, Lori argues that "[i]t is not necessary fora custodial parent, or a parent with the primary physical custodyof a child, to obtain permission from a court before moving toanother location in Illinois." In re Marriage of Wycoff, 266Ill. App. 3d 408, 416, 639 N.E.2d 897, 904 (1994). It is truethat section 609, requiring leave to remove, does not apply tointrastate transfers. Wycoff, however, was a case where jointcustody had been terminated and the question before us waswhether the question of custody should be addressed under section602, dealing with initial awards of custody, or under section610, dealing with modification of custody awards, and whether theformer primary physical custodian should have any preference inreceiving custody. Wycoff did not address the issue presented inthis case, whether the parties may enter into a joint-parentingagreement which restricts the right of the primary physicalcustodian to move within the state and whether the agreement hereincorporated such a restriction.

This case involves an issue of statutory constructionand our review is de novo. In re Marriage of Kates, 198 Ill. 2d156, 163, 761 N.E.2d 153, 157 (2001).

A joint-parenting agreement may properly deal with"each parent's powers, rights and responsibilities for thepersonal care of the child and for major decisions such aseducation, health care, and religious training." 750 ILCS5/602.1(b) (West 2000). There are limits, however, to what theparties may agree to. Even though child support may have aneffect on education, health care, or religious training, modification of a child support obligation is a judicial function. Ajoint-custody agreement or order cannot supersede or modify anyof the child support sections of the Act. In re Marriage ofGrabarek, 175 Ill. App. 3d 1045, 1048, 530 N.E.2d 680, 682(1988). Petitions to remove a child from Illinois are governedby section 609 of the Act, despite any provisions in a joint-parenting agreement purporting to limit the right of removal. Inre Marriage of Yndestad, 232 Ill. App. 3d 1, 7, 597 N.E.2d 215,219 (1992). The converse is probably not true; the parties couldagree that the primary physical custodian could remove the childfrom the state without seeking judicial permission to do so.

Section 602.1(b) lists three examples of major decisions concerning the child which may be dealt with in the joint-parenting agreement: education, health care, and religioustraining. 750 ILCS 5/602.1(b) (West 2000). The list is notexclusive, but without specific language in the agreement it isunlikely an agreement will be extended outside those areas. Theremarriage of either parent may have a profound effect on thechildren, but it is unlikely the courts would ever construe ajoint-parenting agreement to require mediation and court reviewof a parent's decision to remarry. (Dave has remarried andsuggests in his brief that Lori wants to move to McHenry becauseshe has met a gentleman from that area.) The same is true of aparent's decision to take a better job, which may reduce the timewhich the parent spends with the children, or a parent's decisionto change religions, which of course may affect the children'sreligious training.

The parties may address the question where the childrenwill reside, both in sole-custody agreements and in joint-custodyagreements. Parental agreements or court orders may imposereasonable limitations upon the custodian's choice of residences. In re Marriage of Manuele, 107 Ill. App. 3d 1090, 1096, 438N.E.2d 691, 695 (1982) (limitation to Sangamon County unreasonably restrictive). "Except as otherwise agreed by the parties inwriting at the time of the custody judgment or as otherwiseordered by the court, the custodian may determine the child'supbringing ***." 750 ILCS 5/608(a) (West 2000). Two aspects ofthat language are significant in this case: (1) the custodianhas broad power to determine the child's upbringing, includingthe residence of the child; and (2) the parties may agree otherwise or the court may order otherwise.

The joint-parenting agreement in In re Marriage ofFindlay, 296 Ill. App. 3d 656, 657, 695 N.E.2d 548, 549 (1998),contained broad language, that "'[t]he parties will jointlydecide matters of substance regarding the children, including,without limitation intended, important questions of education,religion, and elective medical care.'" The trial court inFindlay dismissed a complaint for injunction seeking to preventan in-state move, concluding as a matter of law that it had nojurisdiction to prevent the move. The appellate court reversed,concluding that the quoted language was ambiguous, and theproposed move could be construed to be "a matter of substanceregarding the children," triggering the provisions requiringmediation and if that were not successful, resolution by thecourt. The cause was remanded to determine whether the partiesintended to address intrastate moves in their agreement. Seealso In re Marriage of McGillicuddy, 315 Ill. App. 3d 939, 942,735 N.E.2d 1028, 1031 (2000) (agreement specifically requiredreconsideration of residential parent if residential parent movedfrom McDonough County).

The Findlay court noted, however, there was a strongargument against interpreting the agreement to cover intrastatemoves.

"Unlike decisions about the children's educa- tion or medical care, petitioner's relocation directly involves her own career and lifestyle. Although the parties could easily have addressed this contingency directly, the agreement does not explicitly override the established pre-sumptions that a custodial parent need not seek the court's permission to move intra-state and that '"[c]ustodial parents should not be expected to give up careers for the sake of remaining in the same geographical location."' [Citation.]." Findlay, 296 Ill.

App. 3d at 660, 695 N.E.2d at 551.

The language of the joint-parenting agreement in thepresent case is more limited than the language in Findlay. Inthe present case the "major issues" to be "jointly decided" arelimited to those "concerning the children's education, religioustraining[,] and extraordinary health care." Education, religion,and medical care were mentioned in Findlay, but those specificreferences were to be "'without limitation intended.'" Findlay,296 Ill. App. 3d at 657, 695 N.E.2d at 549. Beyond that, theparties were to jointly decide all "'matters of substance regarding the children.'" Findlay, 296 Ill. App. 3d at 657, 695 N.E.2dat 549.

The trial court found that although Dave did not havemuch overnight visitation, he "spends nearly as much time withthe boys as does Lori." In Wycoff, we suggested that the legislative presumptions in favor of stability and the present custodian might not apply in those unusual cases where the childspends approximately equal time with each parent. Wycoff, 266Ill. App. 3d at 411, 639 N.E.2d at 901. If there are two primaryphysical custodians, it will not be possible to give one of thema preference. It would be unusual, however, for the presumptionnot to apply. Section 610 (which strongly favors stability andthe present custodian) by its specific terms applies to joint-custody cases. 750 ILCS 5/610(b) (West 2000). The joint-parenting agreement here designated Lori as the primary physicalcustodian. For the most part, Lori, not Dave, had the childrenovernight. Even in some-sole custody cases, the parents spendapproximately the same amount of time with the children. Weconclude that the fact that Dave spends nearly as much time withthe boys as does Lori does not prevent the application of thepresumption that continuation of the existing custodian is in thebest interests of the child.

We conclude that the language in this joint-parentingagreement did not affect the general rule, expressed in section602, that the custodian of a child may move anywhere in the Stateof Illinois without seeking the permission of the court. Thetrial court in this case erred in refusing to modify visitationin order to accommodate Lori's move.

Reversed and remanded.

MYERSCOUGH and KNECHT, JJ., concur.