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11/07/88 In Re Marriage of Marie M. Grabarek

November 7, 1988

IN RE MARRIAGE OF MARIE M. GRABAREK, N/K/A MARIE M.


APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

Leifheit, Petitioner-Appellant, and WILLIAM C.

GRABAREK, Respondent-Appellee

530 N.E.2d 680, 175 Ill. App. 3d 1045, 125 Ill. Dec. 522 1988.IL.1624

Appeal from the Circuit Court of Kane County; the Hon. Timothy Q. Sheldon, Judge, presiding.

APPELLATE Judges:

JUSTICE REINHARD delivered the opinion of the court. LINDBERG, P.J., and NASH, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REINHARD

Petitioner, Marie M. Grabarek, n/k/a Leifheit, filed a post-dissolution of marriage petition in the circuit court of Kane County to increase child support against her former husband, respondent, William C. Grabarek. Respondent's motion to dismiss the petition on the basis that a joint parenting agreement provided for binding mediation was granted, and petitioner appeals.

Petitioner raises two issues on appeal: (1) whether the circuit court erred in finding that an order incorporating a joint parenting agreement superseded the child support provisions of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, pars. 510, 511); and (2) whether the circuit court erred in failing to enforce discovery.

The marriage of the parties was dissolved by a judgment of dissolution of marriage entered March 4, 1986, which also included resolution of all property, custodial, and support rights pursuant to a written marital settlement agreement of the parties. Simultaneous with the entry of the judgment, the circuit court entered an "Agreed Order/Parenting Agreement" (Joint Parenting Order), signed by the parties, which provided, inter alia, for joint custody of the parties' three minor children and binding mediation through James B. Weaver of Fox Valley Counseling, St. Charles, Illinois, should a disagreement arise and a party request use of a mediator on any of the terms of the joint parenting agreement, the marital settlement agreement, or "any area concerning the children."

On October 2, 1987, petitioner filed a "Petition to Modify Judgment of Dissolution to Increase Child Support" seeking an increase in child support from respondent because of a substantial change in circumstances for the two minor children residing with petitioner. Respondent moved to strike and dismiss the petition on the basis that the Joint Parenting Order provided for binding mediation of the subject matter of the petition, with which petitioner had failed to comply. On January 4, 1988, an order was entered striking and dismissing the petition, finding that the Joint Parenting Order had not been followed because mediation had not been sought by the parties and that the Joint Parenting Order was binding on the parties. On that same day, petitioner filed a notice to produce pursuant to Supreme Court Rule 214 (107 Ill. 2d R. 214) and, on January 27, 1988, petitioner filed a motion for sanctions for failure to comply with discovery. On February 18, 1988, the circuit court denied both the motion for sanctions and a motion to reconsider the order dismissing the petition to increase child support. In denying the motion to reconsider, the court expressed the view that mediation under the Joint Parenting Order was only a first step in the process and that a party disagreeing with the mediator's recommendation could seek relief in the courts.

Petitioner first contends that the circuit court erred in finding that the Joint Parenting Order, in pertinent part, supersedes the modification of child support sections of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1987, ch. 40, pars. 510, 511). She contends that the language of section 602.1 of the Act providing for joint parenting agreements and orders (Ill. Rev. Stat. 1987, ch. 40, par. 602.1) is intended to allow agreements for the personal care of minor children, but does not control modification of the financial obligations of child support, which is contained in sections 510 and 511 of the Act. Respondent replies that petitioner has not attacked the validity of the Joint Parenting Order as being a result of fraud or duress, or in variance with public policy and, therefore, it should be enforced as the order was entered by agreement of the parties. While petitioner also advances several other bases for reversal, that the court below misconstrued the language of the Joint Parenting Order and that the agreement and order is against public policy, we resolve the question before us on the first contention advanced and, therefore, need not consider the alternative arguments.

The primary rule of statutory construction is to ascertain and effectuate the legislature's intent. [ Stewart v. Industrial Comm'n (1987), 115 Ill. 2d 337, 341, 504 N.E.2d 84.] A court should first look to the statutory language itself to determine the legislative intent. (County of Du Page v. Graham, Anderson, Probst & White, Inc. (1985), 109 Ill. 2d 143, 151, 485 N.E.2d 1076.) If the language is clear, the court must give it effect as written and not ...


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