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01/10/89 In Re Marriage of Craig A. Hilliard

January 10, 1989

IN RE MARRIAGE OF CRAIG A. HILLIARD, PETITIONER-APPELLEE,


APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

and CYNTHIA R. HILLIARD, n/k/a Cynthia R. Long,

Respondent-Appellant

533 N.E.2d 543, 178 Ill. App. 3d 620, 127 Ill. Dec. 671 1989.IL.12

Appeal from the Circuit Court of Tazewell County; the Hon. J. Peter Ault, Judge, presiding.

APPELLATE Judges:

JUSTICE HEIPLE delivered the opinion of the court. STOUDER, P.J., and WOMBACHER, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HEIPLE

This appeal arises from a trial court order denying the appellant's motion to transfer jurisdiction of the underlying cause to California. The appellant contends the court should have declined to exercise jurisdiction because Illinois is an inconvenient forum. We affirm.

Craig and Cynthia Hilliard were married on December 12, 1980, and continued to reside in Tazewell County, Illinois, thereafter. Two children were born of the marriage: Callie Rae was born on June 12, 1981, and Casie Lynn was born August 6, 1984. In July 1985, Cynthia moved to California and took the children with her. She filed for legal separation in California on October 8, 1985. On October 30, 1985, Craig filed a petition for dissolution of the marriage in Tazewell County. He also filed a petition for a temporary restraining order and other relief, seeking to enjoin Cynthia from maintaining any custody proceedings in California. The trial court granted the requested relief and enjoined Cynthia from proceeding with any custody or related proceedings in California unless ordered by the court.

On January 24, 1986, Cynthia filed a motion in the circuit court of Tazewell County requesting the court to decline jurisdiction and alleging that Illinois was an inconvenient forum. The court denied the motion. On February 27, 1986, the court entered a judgment for dissolution of marriage which incorporated the terms of an agreement reached by Craig and Cynthia regarding custody, visitation, and support of the children, as well as the parties' property and indebtedness. The parties agreed that they would have joint legal custody of the children and that Cynthia would have physical custody of them during the school year, while Craig would have physical custody during the summer. Additionally, the parties agreed Craig would have physical custody of the children during the 1986 Christmas vacation, and each alternate year thereafter. The final provision of the agreement incorporated into the decree which is relevant to this appeal states:

"The parties agree that, provided [Craig] is residing in Illinois, any further post-decree proceedings with respect to the rights and duties of the parties herein, including custody, support, property, indebtedness, or modification thereof, or otherwise, shall only be filed in Illinois."

On January 27, 1988, Craig filed a petition in the circuit court of Tazewell County to modify the judgment of dissolution. He alleged that Cynthia refused to divulge her address and telephone number and he could not contact the children, and that Cynthia purported to enroll the elder child in a calendar-year school program which would substantially diminish his physical custody of the child. On February 19, 1988, Cynthia filed a motion to transfer jurisdiction of the pending petition to the California court. In support of her motion, Cynthia stated that the children had resided in California since July of 1985 and that the children's school records, friends, and acquaintances were located in California. The court denied Cynthia's motion to transfer. On April 4, 1988, Cynthia filed a motion to reconsider and requested that the court decline to hear the case on grounds of forum non conveniens . The court denied the motion, and this appeal followed. 107 Ill. 2d R. 306.

Cynthia contends that the trial court failed to consider the best interests of the children and abused its discretion by giving undue weight to the forum selection clause in the parties' settlement agreement. She further argues that the Uniform Child Custody Jurisdiction Act (Ill. Rev. Stat. 1987, ch. 40, par. 2101 et seq.) demands a different result. We disagree.

We find that the trial court's order refusing to transfer jurisdiction is correct because the parties' settlement agreement, which was incorporated into the dissolution judgment, provides that any further post-decree proceedings shall only be filed in Illinois, provided Craig resides in Illinois. The rules regarding the interpretation of settlement agreements are the same as those which apply to contracts generally, and the primary objective is to give the agreement its plain and ordinary meaning according to the intent of the parties. (In re Marriage of Reidy (1985), 134 Ill. App. 3d 534.) A forum selection clause is prima facie valid and should be enforced unless the opposing party shows that enforcement of the clause would be unreasonable under the circumstances and would essentially deprive him of his day in court. (Calanca v. D & S Manufacturing Co. (1987), 157 Ill. App. 3d 85.) If both ...


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