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08/01/88 In Re Marriage of Robin Santa Cruz

August 1, 1988

IN RE MARRIAGE OF ROBIN SANTA CRUZ, N/K/A ROBIN CROSON,


APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

Petitioner-Appellee, and NOEL SANTA CRUZ, Respondent

(Judith Rea, n/k/a Judith Wolff,

Intervenor-Appellant)

527 N.E.2d 131, 172 Ill. App. 3d 775, 122 Ill. Dec. 759 1988.IL.1185

Appeal from the Circuit Court of Du Page County; the Hon. Francis W. Faris, Jr., Judge, presiding.

APPELLATE Judges:

JUSTICE UNVERZAGT delivered the opinion of the court. LINDBERG, P.J., and WOODWARD, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE UNVERZAGT

Intervenor, Judith Rea, n/k/a Judith Wolff, appeals from the judgment of the circuit court of Du Page County finding she did not have standing under section 601 of the Illinois Marriage and Dissolution of Marriage Act (the Act) (Ill. Rev. Stat. 1987, ch. 40, par. 601(b)(2)) to petition for custody of her granddaughter, Judith Christianne Rea.

The marriage of petitioner, Robin Santa Cruz, F/K/A Robin Rea and n/k/a Robin Croson, and defendant, Noel Santa Cruz, was dissolved in September 1985. Petitioner was four months' pregnant with the couple's only child at that time. The judgment of dissolution explicitly reserved the issues of child support and visitation; no award of custody was included in the judgment. Christianne was born on January 28, 1986, while petitioner was residing in Wheaton with her mother, the intervenor here, and Norman Wolff, whom intervenor married in August 1986.

These parties continued to reside together there until February 27, 1987, when petitioner left the residence after an argument with the intervenor. On March 6, 1987, the intervenor filed a petition for custody of Christianne, and emergency temporary custody of Christianne was awarded to intervenor on that date. An emergency ex parte order of protection also entered that day restrained the petitioner from "striking, threatening, harassing, or interfering with the personal liberty" of either intervenor or Christianne. These same restrictions were included in a subsequent agreed order of protection entered on March 25, along with the provisions that petitioner remove her automobile from intervenor's premises, that the intervenor would provide petitioner with her personal belongings from the residence at 2 p.m. on that date, that the petitioner could enter the premises for no purpose other than to remove her automobile, and that the petitioner was directed to return Christianne's two baby books which contained her medical records.

Pursuant to intervenor's petition, an order of default was entered against petitioner on April 28. Inter alia, the court's order recited it found intervenor had standing to pursue custody of Christianne and granted intervenor permanent custody of Christianne to the exclusion of petitioner and respondent. This default order was later vacated as to respondent, Noel Santa Cruz, pursuant to his motion. He filed an emergency petition for temporary visitation and was given leave to file a petition for custody or visitation. The cause was set for hearing on July 1, but respondent's counsel was allowed to withdraw on June 23, and the record reflects no further action on defendant's petition.

Petitioner also moved to vacate this default order and subsequently filed a motion to dismiss intervenor's custody petition pursuant to section 2-615 of the Civil Practice Law (Ill. Rev. Stat. 1987, ch. 110, par. 2-615) on the ground intervenor did not have standing. After review of the parties' memoranda of law, the court found intervenor's petition was sufficient to state a cause of action inasmuch as the allegation that intervenor was in "sole custody" of Christianne allowed the inference that neither one of her parents was in custody of her.

Petitioner filed her answer, and, over petitioner's objection, the court granted intervenor's petition for an order of conciliation and ordered the petitioner and intervenor to participate in conciliation. The court also ordered intervenor to have Christianne available within seven days for supervised visitation with the petitioner on a weekly basis.

Following receipt of the conciliator's report, intervenor moved that the parties submit to a mental examination at intervenor's expense. The motion was denied, as was intervenor's motion for reconsideration, and the court issued intervenor a rule to show cause why she should not be held in contempt for her failure to have Christianne available for supervised visitation with petitioner as previously ordered. Intervenor's subsequent motion to allow an interlocutory appeal pursuant to Supreme Court Rule 308 (107 Ill. 2d R. 308) and for change of venue was denied.

When the cause came on for trial on October 23, the court determined that proof of intervenor's standing to pursue the cause was lacking, and it scheduled a hearing as to that issue for November 6.

On that date, the court vacated its prior default judgment against petitioner, and an evidentiary hearing on the matter of intervenor's standing was held. At the Conclusion of the hearing, the court found the intervenor did not have standing to pursue custody of her granddaughter under section 601 of the Act. (Ill. Rev. Stat. 1987, ch. 40, par. 601(b)(2).) It ordered custody of Christianne be given to petitioner as soon as possible and denied intervenor's motion for stay pending appeal. On November 19, this court granted intervenor's motion for stay, and, according to petitioner's petition for custody filed on November 23, Christianne was removed from petitioner's custody by intervenor on November 21 and, as far as may be ascertained from the record, presently continues to reside with intervenor.

At the evidentiary hearing on standing, the intervenor testified that she was 46 years old and that she was petitioner's mother and the grandmother of 21-month-old Christianne. Christianne had lived with her in her home in Wheaton since birth; petitioner and Norman Wolff lived there as well.

Intervenor testified that on February 27, she and petitioner argued about why petitioner had been out so late. The argument lasted only a few minutes, and intervenor stated she told petitioner to calm down and went to take a shower. When she got out of the shower, intervenor found petitioner was gone. Intervenor later saw petitioner outside with a small bag which she assumed contained some of petitioner's personal belongings. Petitioner stood at a neighbor's driveway; intervenor called to her, but got no response. As intervenor crossed the yard toward petitioner, a car came up; petitioner got in ...


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