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09/25/96 MARRIAGE MARC A. BROWNFIELD PETITIONER AND

September 25, 1996

IN RE: THE MARRIAGE OF MARC A. BROWNFIELD, PETITIONER, AND JOAN M. MADRIGAL, F/K/A JOAN N. BROWNFIELD, RESPONDENT-APPELLANT, AND CYNTHIA A. BROWNFIELD, INTERVENOR-APPELLEE.


Appeal from Circuit Court of Champaign County. No. 89C575. Honorable Harry E. Clem, Judge Presiding.

As Corrected October 18, 1996. Released for Publication September 25, 1996.

Honorable Rita B. Garman, J., Honorable Robert W. Cook, P.j. - Special Concurrence, Honorable John T. McCullough, J. - Special Concurrence. Justice Garman delivered the opinion of the court.

The opinion of the court was delivered by: Garman

JUSTICE GARMAN delivered the opinion of the court:

In January 1995, intervenor Cynthia Brownfield (Cindy), stepmother of two minor children, Shane and Tanya Brownfield (born April 10, 1985, and October 20, 1987, respectively) brought a petition for custody in the underlying dissolution action after the children's father, Marc Brownfield, died. The circuit court found Cindy had standing to seek custody and awarded custody of both children to Cindy.

The children's natural mother, Joan Madrigal (f/k/a Joan Brownfield), appeals arguing the court erred in holding Cindy had standing to seek custody of the children under section 601(b)(2) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/601(b)(2) (West 1994)). We conclude that the children were not in Joan's physical custody when Cindy filed her petition for custody and, therefore, affirm the circuit court's judgment that Cindy had standing to seek custody under the Act.

Petitioner Marc Brownfield and Joan were married on November 29, 1981. Two children were born to the parties: a son, Shane, and a daughter, Tanya. The parties separated in April 1988 and, on May 19, 1989, the court entered a judgment of dissolution of marriage. The judgment incorporated the marital settlement agreement of the parties which provided that Marc would receive custody of Shane and Joan would receive custody of Tanya, subject to liberal visitation by each party with the child not in his or her custody.

In September 1989, Joan asked Marc to take custody of Tanya because Joan was experiencing physical difficulties and believed it would be in Tanya's best interest to live with her father and brother. Thus, on September 28, 1989, pursuant to a stipulation by the parties, the court entered an order modifying the judgment order of dissolution and awarding Marc the permanent care, custody and control of both children, subject to liberal rights of visitation with Joan. The court also ordered Joan to pay Marc $200 per month per child as child support, beginning in September 1989.

Intervenor Cindy and her daughter Emily moved into Marc's home in June 1990. Marc and Cindy were married on April 1, 1991. Marc, Cindy, Emily, Shane, and Tanya resided together as a family from June 1990 until Marc's death from cancer on January 10, 1995.

On January 10, 1995, Cindy filed a petition to intervene in the parties' dissolution action and a petition for temporary and permanent custody of Shane and Tanya. That day, the court entered an order indicating Cindy's petition to intervene should be allowed and awarding her temporary emergency custody of the children. Joan filed her answer to Cindy's petition on February 2, 1995, in which she requested permanent custody of the children. Joan raised no affirmative defenses to Cindy's petition for custody in her answer.

On March 1, 1995, a hearing on temporary custody was held, at the conclusion of which the court awarded Cindy temporary custody of the children and set the hearing on permanent custody for August 23, 1995. Then, on July 17, 1995, Joan filed a motion to dismiss Cindy's petition, asserting for the first time Cindy lacked standing to seek custody of the children under section 601(b)(2) of the Act. A hearing on the motion to dismiss was held on August 4, 1995, and, on August 17, 1995, the court denied the motion because it found the standing issue involved disputed issues of material fact which could not be resolved in a summary manner.

A full evidentiary hearing took place on August 23 and 24, 1995, on the issues of standing and permanent custody. On September 7, 1995, the court entered its order, finding the evidence established that Cindy had standing to seek custody of the children and that, based on the evidence presented as to the children's best interests, the presumption in favor of Joan as custodial parent under the superior rights doctrine had been overcome. Thus, the court awarded the permanent care, custody and control of the children to Cindy, subject to Joan's visitation rights which are detailed in the order.

Joan filed a motion to reconsider on September 20, 1995, asserting the court erred (1) in its determination of the standing issue, (2) in its best interests determination, and (3) in its determination the presumption in favor of Joan as to custody of the children had been overcome. The court denied the motion to reconsider on November 9, 1995, and this appeal followed.

As a threshold issue, Cindy argues Joan waived the issue of standing by not raising it either in a motion to dismiss, filed before her answer, or in her answer. Joan filed her answer in February 1995 and a temporary custody hearing was held in March 1995, yet she did not raise the affirmative defense of standing until she filed her motion to dismiss in July 1995.

Lack of standing is an affirmative defense to be raised within the time for pleading. 735 ILCS 5/2-619(a)(9) (West 1994). However, the trial court has discretion to allow parties to file late pleadings and may do so unless it can be demonstrated the opposing party would be prejudiced by the late filing. In re Custody of McCarthy, 157 Ill. App. 3d 377, 380-81, 510 N.E.2d 555, 557, 109 Ill. Dec. 687 (1987).

The record does not strongly suggest Cindy was prejudiced by the late presentation of the standing issue. The scope of inquiry is very broad at a best interests hearing and the facts brought out at such a hearing are frequently also relevant to the determination of standing. Because the court ruled on the motion to dismiss only after a full evidentiary hearing, at which Cindy was able to present substantial evidence on the standing issue, we conclude the court did not abuse its discretion in allowing Joan to raise the affirmative defense in her motion to dismiss filed July 17, 1995.

We next address the substance of Joan's contention that the circuit court erred in finding Cindy had standing to seek custody of the children under the Act. Section 601(b)(2) of the Act sets forth:

(b) A child custody proceeding is commenced in the court:

(2) by a person other than a parent, by filing a petition for custody of the child in the county in which he is permanently resident or found, but only if he is not in the physical custody of one of his parents. ...


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