In re Marriage of Skelton

Case Date: 09/01/2004
Court: 5th District Appellate
Docket No: 5-04-0262 Rel

                   NOTICE
Decision filed 09/01/04.  The text of this decision may be changed or corrected prior to the filing of a Petition for Rehearing or the disposition of the same.

NO. 5-04-0262

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT


In re MARRIAGE OF

JEFFREY D. SKELTON,

          Petitioner-Appellant,

and

ALESHA M. SKELTON,

          Respondent-Appellee.

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Appeal from the
Circuit Court of
Madison County.



No. 04-D-116

Honorable
Lewis E. Mallott,
Judge, presiding.




JUSTICE KUEHN delivered the opinion of the court:

Jeffrey D. Skelton (Jeffrey) appeals from the trial court's April 19, 2004, orderdenying a portion of his request for a temporary and permanent injunction and reserving itsruling on all matters pertaining to the Skeltons' unborn child.

Jeffrey and Alesha M. Skelton (Alesha) were married in Texas on June 13, 2002. Following the marriage, the Skeltons resided in Madison County. Jeffrey and Aleshaseparated on or about January 9, 2004. At that time, Alesha was two months pregnant. Apparently, while Jeffrey was at work and without his advance knowledge, Alesha movedout of the marital home, returning to Texas.

Jeffrey filed a petition for a dissolution of the marriage on February 3, 2004, inMadison County. In this petition, he requested custody of the unborn child. In response,Alesha filed a special and limited appearance denying that the State of Illinois had subjectmatter jurisdiction relative to her unborn child and his or her future custody. In hersupporting affidavit, Alesha averred that she planned to give birth to and raise this child inTexas.

Thereafter, on April 13, 2004, Jeffrey filed a motion for a temporary and permanentinjunction, asking the court for the following relief:

1. To order Alesha to move back to Illinois until the unborn child's deliveryand until a temporary custody determination can be made.

2. To order Alesha to provide advance notice of the location and time of thedelivery.

3. To restrict Alesha from naming the unborn child until a determination couldbe made regarding Jeffrey's rights to name the unborn child.

4. To enjoin Alesha after the child's birth from bringing the child around heraunt and uncle.

5. To order Alesha to provide Jeffrey with all relevant information regardingthe pregnancy and her personal contact information.

On April 19, 2004, the trial court held a hearing on this motion and on Alesha's previouslyfiled special and limited appearance in response to the dissolution petition. At the hearing,Alesha's attorney argued that the court could not make rulings relative to the unborn childbecause the court lacked subject matter jurisdiction. The trial court determined that it hadjurisdiction over the parties to the dissolution proceeding-Jeffrey and Alesha-and over themarital property. Turning to the matter of the unborn child, the court noted that the State ofIllinois does not consider an unborn child as a child for purposes of the relative maritaldissolution statutes. Consequently, the court ordered Alesha to file an answer to the petitionfor dissolution regarding all matters except the issues involving the unborn child. The courtstated that it would retain jurisdiction over the child custody matter when it became ripe foradjudication. Specifically addressing the request for injunctive relief, the court denied therequest to order Alesha to move back to Illinois. In so ruling, the court noted that we nowlive in a mobile society and that there was no basis upon which it could order her return. The court reserved its ruling with respect to all the remaining matters, finding that in thissituation the State of Illinois simply did not recognize the unborn child as a child. In soruling, the court acknowledged that, after the birth, some of the matters raised by Jeffreywould probably not be relevant.

From the transcript of this hearing, we know that the baby's due date was July 27,2004. From a motion filed after the case was argued on appeal, we know that the Skeltonbaby boy was born in Fort Worth, Texas, on July 15, 2004.

Jeffrey appeals.

At issue is whether the courts of the State of Illinois have subject matter jurisdictionover an unborn child in the context of a future child custody matter or other maritaldissolution issue.

Before we address the issue, we must initially decide Alesha's motion to dismiss thiscase on the basis that, because the baby has now been born, this court no longer has subjectmatter jurisdiction to render an opinion. We agree with Alesha that the issues raised byJeffrey on appeal are moot. However, as we recently said in In re Linda W., "[S]ince thiscase involves an event of short duration that is capable of repetition yet evades review, wewill address the issues raised ***." In re Linda W., 349 Ill. App. 3d 437, 442, 812 N.E.2d49, 53 (2004) (citing In re Robert S., 341 Ill. App. 3d 238, 247, 792 N.E.2d 421, 427(2003)). We deny Alesha's motion to dismiss and turn to the merits of this appeal.

The standard of review on an appeal from the trial court's decision relative to a requestfor temporary or permanent injunctive relief is whether or not the trial court abused itsdiscretion. Young v. Mory, 294 Ill. App. 3d 839, 844, 690 N.E.2d 1040, 1043 (1998)(permanent injunction); C.D. Peters Construction Co. v. Tri-City Regional Port District, 281Ill. App. 3d 41, 46-47, 666 N.E.2d 44, 48 (1996) (temporary restraining order).

Jeffrey cites to an Illinois statute affording a man who is both the father of a viableunborn child and the spouse of the pregnant mother certain rights relative to the mother'splans to abort the child. 735 ILCS 5/11-107.1 (West 2002). He asks this court to extend therights granted to a husband under this statute, arguing that our legislature has recognized thatmatters related to a pregnancy may require intervention prior to the child's birth. He alsopoints out that in dissolution actions, the courts are often required to make rulings inanticipation of future events, as in the case of making determinations about thepostsecondary education of minor children.

While we appreciate the concern that Jeffrey had relative to his unborn child, we mustagree with the position taken by the trial court-Illinois courts simply lack jurisdiction in thistype of situation over an unborn child. Virtually everything about a dissolution of a marriageis statutory, and a deviation from these statutory guidelines typically results in a ruling thatthe trial court's determination was erroneous. See, e.g., In re Marriage of Waller, 339 Ill.App. 3d 743, 791 N.E.2d 674 (2003). While our state recognizes an unborn child as a childfor purposes of criminal prosecutions (see, e.g., 720 ILCS 5/9-1.2 (West 2002)) andwrongful-death actions (740 ILCS 180/2.2 (West 2002)), those situations are statutory innature. And the appellate court has refused to intervene on behalf of an unborn child whosemother planned to refuse certain medical treatments on religious grounds. See In re Brown,294 Ill. App. 3d 159, 689 N.E.2d 397 (1997). Wisconsin statutorily authorizes the filing ofa paternity suit prior to a child's birth but states that except for initial pleadings anddepositions for the purpose of preserving testimony, "all proceedings shall be stayed untilafter the birth." Wis. Stat.