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10/11/96 PEOPLE STATE ILLINOIS EX REL. TAMMY GIBBS

October 11, 1996

THE PEOPLE OF THE STATE OF ILLINOIS EX REL. TAMMY GIBBS, AS PARENT AND GUARDIAN ON BEHALF OF RICHARD GIBBS, A MINOR, PLAINTIFF-APPELLANT AND CROSS-APPELLEE,
v.
KENNETH E. KETCHUM, DEFENDANT-APPELLEE AND CROSS-APPELLANT.



Appeal from Circuit Court of Champaign County. No. 91L1383. Honorable Donald R. Parkinson, Judge Presiding.

Petition for Rehearing Denied November 21, 1996. Released for Publication November 21, 1996. As Corrected January 2, 1997.

Honorable Rita B. Garman, J., Honorable Frederick S. Green, J. - Concur, Honorable John T. McCullough, J. - Concur. 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:

This is an appeal by plaintiff Tammy Gibbs of an order denying her motion to vacate certain orders entered by the trial court in connection with custody of her minor child and child support payments to be paid by the child's father, defendant Kenneth Ketchum. The basis of her attack on the orders was alleged lack of jurisdiction in the trial court to enter the orders. We now affirm.

The minor child of the parties was born on July 19, 1991. A paternity action was commenced by the State. Ultimately, defendant admitted paternity after blood tests were completed. A judgment of parentage was entered on May 7, 1992. An order for support was entered on the same date, ordering defendant to pay $126 biweekly for support of the child.

On December 4, 1992, defendant filed a petition seeking a reduction of his child support payments, alleging that he and plaintiff shared an approximately equal amount of time with the child. On January 26, 1993, counsel entered an appearance for defendant and made an oral motion to withdraw defendant's petition. The motion was allowed and the petition stricken. On March 10, 1993, a "STIPULATION TO SET CUSTODY AND JOINT PARENTING AGREEMENT" was filed, which had been signed by both parties. That document stated in relevant part: (1) the parties had decided it was in the best interest of the child to have a continuing, close relationship with both his parents, and they had decided to share joint legal and physical custody; (2) they would spend approximately equal amounts of time with him; (3) while plaintiff has physical custody, she may remove the child from the State of Illinois to the State of Ohio, where she anticipates living; and (4) defendant will continue to maintain health insurance on the child through his employer and pay all uninsured expenses. This stipulation was prepared by counsel for defendant. Plaintiff signed a "WAIVER" in which she acknowledged her right to obtain counsel and stated her election to proceed without counsel. On March 16, 1993, the trial court entered an order approving the stipulation which provided that (1) the parties have agreed they will share joint legal and physical custody of the minor child and have agreed to share an approximately equal amount of time with him; (2) the parties have agreed to abate child support payments; and (3) the court has reviewed the stipulation and finds the matters therein are fair, reasonable, not unconscionable, and in the best interest of the child.

On January 13, 1994, defendant filed a petition asking that plaintiff be held in indirect civil contempt, alleging that (1) since March 16, 1993, the parties had shared custody of the minor child on alternating weeks and that they had agreed to Christmas visitation with plaintiff on December 23 and 24, 1993; (2) the child was not returned to defendant by plaintiff at the end of that time; (3) defendant left for vacation on December 29, 1993, and, upon returning, was unable to locate plaintiff or the child; (4) in attempting to find plaintiff, defendant learned she had moved out of her trailer on December 24, 1993, without notice; and (5) when plaintiff did call defendant, she told him she intended to keep the child to "potty train" him and refused to tell defendant her whereabouts, although she did provide him with a telephone number in the Gays, Illinois, vicinity.

On September 12, 1994, a "STIPULATION TO MODIFY JOINT CUSTODY AND PARENTING AGREEMENT" was filed, signed by both parties and their respective counsel. It alleged that after a partial hearing on defendant's petition on February 16, 1994, the court ordered plaintiff to return the minor child to defendant and plaintiff requested a continuance to hire an attorney. The stipulation further provided that the parties agreed plaintiff is in indirect civil contempt and that the court should reserve the issue of sanctions. It also provided detailed custody arrangements and that defendant would be allowed to make up time lost with the minor child due to plaintiff's conduct. Plaintiff also agreed to pay defendant's attorney fees in the amount of $341. The stipulation concluded by saying that all other provisions of the March 16, 1993, order were to remain in full force and effect. An order was entered approving this stipulation on September 12, 1994.

On March 29, 1995, defendant filed a pro se petition for a rule to show cause, alleging that plaintiff failed to pay the attorney fees she had been ordered to pay. On March 29, 1995, the court issued a rule to show cause and ordered plaintiff to appear on May 31, 1995. On April 28, 1995, counsel for plaintiff filed a motion to vacate the March 16, 1993, order and discharge the March 29, 1995, rule to show cause. The motion alleged that (1) the March 10, 1993, stipulation contained no agreement to abate child support, although the March 16, 1993, order approving the stipulation made such a finding; (2) prior to entry of the order, there was no pleading on file asking for abatement of defendant's child support payments since defendant's pro se petition for reduction of child support had been stricken; (3) in the absence of a stipulation between the parties to abate child support and of a pleading asking for such relief, the trial court lacked subject-matter jurisdiction and "inherent power and authority" to enter theMarch 16, 1993, order abating child support and, therefore, the order is void; (4) since the record must stand as if the March 16, 1993, order was never entered, the March 29, 1995, rule to show cause must be discharged; and (5) since the March 16, 1993, order abating defendant's child support is void, his original child support obligation is still in effect and he is liable for arrearage and for current support.

On October 13, 1995, defendant filed a motion to modify or abate child support, asking the court (in the event its orders of March 16, 1993, and September 12, 1994, are found to be void and are vacated) to reduce or abate defendant's child support, alleging a substantial change in circumstances had occurred in regard to the split-custody arrangement.

On October 18, 1995, plaintiff filed anamended motion to vacate, in which she also alleged the trial court was without jurisdiction to modify the custody of the minor child in its March 16, 1993, order. On that point, she alleged (1) there was no explicit order of custody when the judgment of parentage was entered and, pursuant to section 14(a)(2) of the Illinois Parentage Act of 1984 (Parentage Act) (750 ILCS 45/14(a)(2) (West 1992)), custody was thereby granted to plaintiff, since the order established defendant's child support obligation; (2) the stipulation entered into (March 1993) was therefore a stipulation to modify custody, rather than set initial custody; (3) sections 601 and 610 of the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/601, 610 (West 1992)) require that modification of custody proceedings be initiated by a petition to modify, and the court must find by clear and convincing evidence that a change of circumstances has occurred and modification is necessary to serve the best interest of the child; (4) no such petition was filed, and no findings were made by the trial court in its March 16, 1993, order; and (5) therefore, the court lacked subject-matter jurisdiction and "inherent power and authority" to enter the order modifying custody.

Defendant submitted a request to admit facts to plaintiff which asked her to admit that (1) on March 9, 1993, she met with defendant and his attorney and reviewed the stipulation and signed it; (2) plaintiff reviewed the draft order signed by the court on March 16, 1993, which provided that the parties had agreed to abate child support payments; and (3) after the March 16, 1993, order, she stopped receiving child support payments from defendant and never informed him she believed he was improperly withholding the payments from her. Plaintiff filed objections to some of the questions, based upon the parol evidence rule.

Defendant filed a memorandum of law in response to plaintiff's amended motion to vacate, in which he set forth a statement of facts, alleging that (1) he and plaintiff met in his attorney's office in March 1993, and they reviewed the stipulation and the draft order entered by the court on March 16, 1993; (2) plaintiff had orally agreed that defendant's child support should be abated and understood the issue was to be submitted for the court's approval; (3) in doing so, plaintiff authorized defendant's attorney to submit the stipulation and draft order reflecting the abatement of child support; (4) at no time after March 16, 1993, did plaintiff request or demand that the abated child support payments be resumed; and (5) the omission of the agreement on abatement of child support from the March 1993 stipulation was by inadvertence, and the draft order of March 16, 1993, accurately reflected the parties' agreement. The memorandum also alleged that should the trial court decide that its March 16, 1993, order was void, plaintiff should be estopped from enforcing any provision of the prior order for support or custody, arguing that defendant relied upon plaintiff's agreement to the terms of custody and support by ceasing all child support payments, providing for the child when he has physical custody, and continuing to provide medical insurance for him. The memorandum also argued that if the court vacated its March 16, 1993, order, the September 12, 1994, order should remain in effect because of the language in ...


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