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In re Marriage of Tracy L. Findlay

May 27, 1998

IN RE MARRIAGE OF TRACY L. FINDLAY, N/K/A TRACY L. OSTREM, PETITIONER-APPELLEE,
v.
TIMOTHY J. FINDLAY, RESPONDENT-APPELLANT.



The opinion of the court was delivered by: Justice Doyle

Appeal from the Circuit Court of Du Page County.

No. 96--D--334

Honorable Robert J. Anderson, Judge, Presiding.

In this post-dissolution proceeding, respondent, Timothy Findlay, appeals the dismissal of his complaint for a preliminary injunction against petitioner, Tracy Findlay, n/k/a Tracy Ostrem. Respondent sought to enjoin petitioner from removing the parties' children, of whom she has residential custody, from Naperville to Marshall, Illinois. The trial court ruled that it lacked jurisdiction to restrain petitioner's intrastate relocation.

On appeal, respondent argues that the parties' settlement agreement, incorporated into the dissolution judgment, authorizes the court to decide where the children are to reside if the parties cannot resolve that issue by agreement or conciliation. Respondent maintains that the court must preserve the status quo until it decides whether petitioner may remove the children to Marshall.

We hold that the trial court erred in dismissing the complaint for a preliminary injunction. We decide only that the court erred in deciding as a matter of law that it lacked jurisdiction over the complaint. Therefore, we reverse the dismissal order and remand the cause so the trial court may decide (1) whether petitioner's planned move is a matter the settlement agreement leaves for judicial resolution; and (2) if so, whether respondent should receive the preliminary injunctive relief he requests.

The dissolution judgment, entered November 12, 1996, gives the parties joint legal custody of their two children; petitioner has residential custody and respondent visitation custody. Article II of the settlement agreement addresses matters directly involving the children, including the allocation of custody. Paragraph 2 of article II states:

"Each party will *** make day to day decisions regarding the children while they are in that party's custody. The parties will jointly decide matters of substance regarding the children, including, without limitation intended, important questions of education, religion, and elective medical care. In the event the parties are unable to agree on important decisions regarding the children, the parties shall first attempt to resolve the issue through conciliation ***. In the event the parties are unable to resolve the issue through conciliation *** the matter shall be resolved by a Court of appropriate jurisdiction."

The agreement does not otherwise address whether or when either party may move intrastate.

On June 3, 1997, respondent filed his complaint for a preliminary injunction, alleging the following facts. After the dissolution judgment, petitioner and the children lived in Naperville. Respondent consistently fulfilled his custody obligations. In March 1997, petitioner told him that she intended to move with the children to Terre Haute, Indiana, apparently to attend college. After respondent refused to consent to the move, petitioner told him she intended to move herself and the children to Marshall, just across the border from Terre Haute, by July 1, 1997. Marshall is a 3½ hour drive from Naperville and a 4½ hour drive from respondent's office. Respondent again objected, and conciliation failed.

According to respondent, petitioner's threatened move would violate the settlement agreement by disrupting respondent's relationship with the children, thus undermining the joint custody arrangement. Respondent alleged that the dispute was a matter of substance directly involving the children, triggering the dispute resolution procedure of article II, paragraph 2. As conciliation had failed, the trial court was to decide whether petitioner could relocate the children as she wished.

Petitioner moved to dismiss the complaint for failure to state a cause of action (see 735 ILCS 5/2--615(a)(West 1996)) and for lack of subject matter jurisdiction (see 735 ILCS 5/2--619(a)(1)(West 1996)). According to petitioner, the complaint was legally insufficient because nothing prevented her from moving intrastate as long as she did not do so intending to frustrate respondent's visitation rights. She asserted the court could not grant the requested relief, which would amount to an impermissible modification of custody (see 750 ILCS 5/610 (West 1996)).

Without hearing evidence, the trial court dismissed the complaint, agreeing with petitioner that it had no authority to prohibit petitioner's move. Respondent timely appealed. Petitioner has not filed an appellate brief, but, as the record is relatively simple, we elect to decide the merits of the appeal. See First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976).

Respondent argues that the trial court erred in dismissing the complaint because article II, paragraph 2 of the settlement agreement authorized it to decide whether petitioner could make the children reside relatively far from their former residence and from respondent. Respondent reasons that, even if a custodial parent does not normally need the court's permission to move within the state, she may bargain away that freedom by consenting to such a restriction in a marital settlement agreement. He asserts further that petitioner here did so, ...


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