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In re Marriage of Breyley

July 19, 1993

IN RE THE MARRIAGE OF ERIKA B. BREYLEY PETITIONER-APPELLANT (JAMES K. BREYLEY, RESPONDENT-APPELLANT CASES).


The opinion of the court was delivered by: Presiding Justice McCUSKEY

The petitioner, Erika B. Breyley (Erika), appeals from an order of the trial court which vacated the child custody and child support provisions of a judgment of dissolution of marriage. The judgment dissolved her marriage to the respondent, James K. Breyley (James). Erika also appeals from an order which determined that the issue of child custody would be decided in Illinois. We granted Erika's petition for leave to appeal pursuant to Supreme Court Rule 306 (134 Ill.2d R. 306).

Erika raises three issues on appeal: (1) whether the trial court abused its discretion in granting James' petition to vacate portions of the judgment of dissolution pursuant to section 2-1401 of the Code of Civil Procedure (Code) (Ill.Rev.Stat.1991, ch. 110, par. 2-1401); (2) whether the circuit court of Illinois has jurisdiction to decide the custody issue; and (3) whether the trial court abused its discretion in declining to transfer the cause to Texas based upon forum non conveniens. We affirm.

The parties were married in Arizona in December 1989. They moved to New Jersey in April 1990. The only child of the parties, James K. Breyley IV, was born in New Jersey on November 26, 1990. Erika and the child moved to Illinois in February 1991. James moved to Illinois in March or April 1991 following his discharge from the military service. The parties then purchased a home in Macomb, Illinois.

Erika filed her petition for dissolution of marriage on December 18, 1991. A judgment of dissolution, which incorporated a written marital settlement agreement, was entered on December 30, 1991. The agreement provided that the parties would have joint custody of the child pursuant to a joint parenting agreement. The joint, parenting agreement stated Erika would hive actual physical custody and James would have reasonable visitation. The agreement also provided that James would pa 1v 15% of his net take home pay as child support: According to a document tiled with the court the same day, Erika was represented by an attorney, while James was not represented by counsel.

Subsequent to the entry of the judgment, James retained counsel. Through his counsel, James filed a petition pursuant to section 2-1401 of the Code (Ill.Rev.Stat.1991, ch. 110, par. 2-1401) on March 12, 1992. He sought to vacate those portions of the judgment of dissolution related to child custody and child support. In his supporting affidavit, James stated that he and Erika met with an attorney in December 1991 regarding a simple and inexpensive dissolution of marriage. He and Erika told the attorney they wanted joint custody of the child and agreed that each party would have the child approximately one-half of the time. James stated that the attorney did not advise him regarding the legal consequences of a written judgment stating that 'Erika had physical custody of the child. In fact, the attorney told them that either of them could go into court and change the custody arrangement if they were not satisfied. The attorney did not explain the burden of proof which must be met to change a custody order within two, years of the original judgment.

James also stated that, after the judgment was entered, he had physical custody of the child until January 20, 1992. At that time, he delivered the child to Erika's mother in Texas where Erika was attending school. Erika thereafter refused to allow him visitation with the child. James additionally stated the parties had agreed that his obligation to pay child support would be deferred until he completed his college education.

Erika, through new counsel, filed a motion to dismiss James' petition. Later, on June 8, 1992, she filed a petition for leave to remove the child from the State. She stated in the petition that she moved to Texas immediately after the entry of the judgment and desired to make a permanent home in Texas. James' response to this petition stated that he took the child to Texas in January pursuant to an agreement with Erika. The agreement was that Erika would be in Texas only until March 1992 when she would finish an Emergency

Medical Technician (EMT) training program.

On June 26, 1992, Erika filed her response to James' section 2-1401 petition, She attached an "opposing affidavit." She denied agreeing to allow James to have physical custody of their child approximately one-half of the time. However, she also admitted:

"[The attorney] explained to [Erika] and [James] the joint custody arrangement and the consequences of [Erika] having physical custody of the child and al, though he said that if [Erika] and [James] failed to agree, they could go t court to have their differences resolved, he never discussed the requirement of showing endangerment of the child in order to modify the custody order within the first two years."

In an additional verified pleading, Erika admitted she agreed to a deferment of child support while James completed college. She stated, however, that she was later informed that such an agreement was against public policy and therefore unenforceable.

A hearing was held on July 1, 1992. Following argument by counsel for both parties, the trial court denied Erika's motion to dismiss James' section 21401 petition. The court then granted James' petition. The court found that an evidentiary, hearing was not necessary because of the admissions made by Erika.

A formal written order was subsequently entered on July 14, 1992. The order stated: that those portions of the judgment relate to child custody and child support were vacated pursuant to James' motion. The,', trial court's order also stated that, by agreement of the parties and without prejudice to either party, Erika was to have temporary custody of the child in Texas. James was granted visitation with the chip in Illinois. Trial on the. issues of custody; and child support was set for October 1992.:;

On August 12, 1992, Erika filed a motion. seeking a determination of the trial court's jurisdiction to decide the custody issue and ,``' in the alternative, a forum non conveniens motion seeking transfer . of the cause to Texas. The trial court denied the motions in a written order dated October 28, 1992. The court found that the child custody determination should be made in Illinois. The order specifically noted that permitting Erika to transfer the cause to Texas would be contrary to one of the purposes of the Uniform Child Custody ...


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