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People v. Sensor

October 06, 1998

THE PEOPLE OF THE STATE OF ILLINOIS EX REL. JENNIFER FARINA, PLAINTIFF,
v.
SAMUEL S. SENSOR, DEFENDANT (DALE SENSOR, PETITIONER-APPELLANT; JENNIFER FARINA, RESPONDENT-APPELLEE).



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

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

Appeal from the Circuit Court of McHenry County.

No. 95--FA--64

Honorable Sharon L. Prather, Judge, Presiding.

The petitioner, Dale Sensor, appeals the order of the circuit court of McHenry County that dismissed her petition for visitation with her granddaughter, Kayla Marie Farina. The petitioner contends that the trial court erroneously determined that the doctrine of res judicata (res judicata) barred the petition. We reverse and remand for further proceedings

This case began when the State filed a complaint on behalf of Kayla's mother, Jennifer Farina (the respondent), to establish Kayla's paternity. The defendant, Samuel Sensor, admitted paternity. Thereafter, the court entered various orders for child support.

The petitioner, Samuel Sensor's mother, first sought visita-tion with Kayla on July 19, 1995. Pursuant to an agreed order, the petitioner was granted temporary visitation and the trial court subsequently made it permanent.

On April 17, 1996, the court entered an agreed order providing that the petitioner's visitation was "terminated." However, the order also provided for extensive visitation with Samuel Sensor and specifically provided that the visitations were to occur at the petitioner's home. It appears that Samuel Sensor was residing with the petitioner at that time.

On July 23, 1997, the petitioner filed a petition for visitation, alleging that Samuel Sensor had moved out of her home and that the respondent refused to allow her any contact or visitation with Kayla. The respondent moved to dismiss the petition, alleging that it was barred by res judicata because the April 17, 1996, order terminated the petitioner's visitation. The court granted the motion. After the court denied her motion to vacate, the petitioner filed a timely notice of appeal.

The petitioner contends that the trial court erred in dismissing her petition on the basis of res judicata without conducting an evidentiary hearing. She contends that the April 17, 1996, agreed order was not a final Disposition on the merits but merely "abated" temporarily her separate visitation because it was not then necessary. She also argues that res judicata should not be rigidly applied in custody and visitation cases because such orders are always subject to modification and the overriding consideration is the child's best interests.

The trial court presumably dismissed the petition pursuant to section 2--619(a)(4) of the Code of Civil Procedure (735 ILCS 5/2-- 619(a)(4) (West 1996)). For purposes of a section 2--619 motion a defendant admits all well-pleaded facts. We review a dismissal pursuant to section 2--619 de novo. Sassali v. Rockford Memorial Hospital, 296 Ill. App. 3d 80, 83 (1998).

Res judicata precludes an action between parties when a judgment on the same claim or cause of action was previously rendered against the same party in an earlier proceeding. In re Marriage of Weaver, 228 Ill. App. 3d 609, 617 (1992). Here, the April 17, 1996, order simply was not a final determination on the merits that visitation with her grandmother would not be in the child's best interests. Although the use of the word "termination" was perhaps unfortunate, the order as a whole reflects that the petitioner would continue to see Kayla at her home and that the petitioner's separate visitation was being suspended only because it was not then necessary. These facts were confirmed by the uncontradicted affidavit of the petitioner's counsel, which was attached to her response.

In any event, it is well established that res judicata should not be applied strictly in custody and visitation matters. In re Marriage of Fields, 283 Ill. App. 3d 894, 901-02 (1996). The doc-trine should not be applied to bar evidence when the most important consideration is the child's best interests. Weaver, 228 Ill. App. 3d at 616. Moreover, visitation orders may be modified at any time whenever modification would serve the child's best interests. 750 ILCS 5/607(c) (West 1996). A court's order regarding custody or visitation is res judicata only to facts which existed at the time the order was entered. Fields, 283 Ill. App. 3d at 902. Here, the new petition alleged that Samuel Sensor had lived with the petitioner but had recently moved out. The petition at least arguably alleges changed circumstances sufficient to warrant a hearing.

The respondent also contends that the trial court's order may be affirmed on the basis that the petitioner never had a right to seek visitation with Kayla in the first place. The respondent points out that this case arose under the Illinois Parentage Act of 1984 (the Parentage Act) (750 ILCS 45/1 et seq. (West 1996)). Section 14(a)(1) of the Parentage Act provides that any judgment entered shall contain or explicitly reserve provisions concerning, inter alia, custody and visitation, "which the court shall determine in accordance with the relevant factors set forth in the Illinois Marriage and Dissolution of Marriage Act" (the Marriage Act). 750 ILCS 45/14(a)(1) (West 1996), citing 750 ILCS 5/101 et seq. (West 1996). In Department of Public Aid ex rel. Gagnon-Dix v. Gagnon, 288 Ill. App. 3d 424, 428 (1997), the Appellate Court, Fourth District, stated that section 14(a)(1) of the Parentage Act incorporates section 602 of the Marriage Act (750 ILCS 5/602 (West 1996)), governing custody determinations, but not section 607 (750 ILCS ...


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