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In re Marriage of Houghton

November 16, 1998

IN RE: THE MARRIAGE OF RHONDA K. HOUGHTON, PETITIONER, AND WALTER W. HOUGHTON, RESPONDENT-APPELLANT, AND MAURINE KAY WINKLER, INTERVENOR-APPELLEE.


The opinion of the court was delivered by: Justice Steigmann

Appeal from Circuit Court of Adams County No. 94D371

Honorable John C. Wooleyhan, Judge Presiding.

In March 1995, the trial court entered a judgment dissolving the marriage between petitioner, Rhonda K. Houghton, and respondent, Walter W. Houghton, and granting Walter sole custody of their daughter, Destiny. In May 1996, pursuant to an agreement between Walter and Rhonda, the court granted Rhonda sole custody of Destiny. In December 1997, following Rhonda's death, the trial court granted the petition of intervenor, Maurine Kay Winkler (Kay), Rhonda's mother, to modify custody and to make Kay Destiny's custodian.

Walter appeals, arguing that (1) Kay lacked standing under section 601(b)(2) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/601(b)(2) (West 1996)) to file a petition to modify custody; (2) the trial court's order was void because Kay never filed a petition to modify custody; and (3) the court erred by (a) granting Kay's petition to modify custody, and (b) restricting Walter's visitation with Destiny. We agree with Walter's first argument and reverse.

I. BACKGROUND

Because the parties are familiar with the evidence presented during the hearing on Kay's petition, we discuss it only to the extent neces- sary to put Walter's lack of standing argument in context.

Walter and Rhonda were married in April 1991. During their marriage, they had one child, Destiny, born March 21, 1994. In June 1994, Walter began serving a two-year prison sentence for obstructing a police officer. Kay testified that while Walter was in prison, Destiny stayed at Kay's home. Kay stated that "[o]nce in awhile[,] Rhonda would come and get her, but not very often."

In October 1994, Rhonda filed a petition for dissolution of marriage, and in November 1994, Walter filed a cross-petition for dissolution of marriage. In December 1994, Walter was released from prison. Immediately upon his release, Walter picked up Destiny from her baby-sitter, and Destiny once again began living with Walter. During that same month, Rhonda dismissed her dissolution petition because she and Walter had reconciled. However, Walter proceeded with his cross- petition, and in March 1995, the trial court entered a judgment dissolving the marriage and granting Walter sole custody of Destiny.

Following their divorce, Walter and Rhonda reconciled and lived together off and on. From the time of the dissolution judgment in March 1995 until May 1996, Walter was Destiny's sole legal custodian. Throughout most of that time, Destiny also lived with him. Kay testi- fied that in February 1996, Walter dropped off Rhonda and Destiny at Kay's home, and he did not pick them up until May 1996. Walter disputed this, claiming that he took Rhonda and Destiny to Kay's home because Rhonda wanted to move out. He agreed that Rhonda could keep Destiny with her for two weeks. When Rhonda refused to bring Destiny back to him at the end of the two-week period, Walter asked the Adams County sheriff's department to retrieve Destiny for him, and it did.

In May 1996, Walter and Rhonda agreed that Rhonda could have sole custody of Destiny, and they filed a joint petition to modify custody accordingly. Pursuant to their agreement, the trial court granted the petition and awarded Rhonda sole custody of Destiny. Walter testified that he agreed to transfer custody of Destiny to Rhonda because he and Rhonda were going to remarry and "Rhonda basically wanted that as *** some sort of a nail in the wall to hold our relationship together." Between May 1996 and March 1997, Walter and Rhonda lived together off and on. Although Destiny usually lived with Rhonda during that time period, Kay testified that Walter sometimes had "physical custody" of Destiny as opposed to Rhonda.

On March 9, 1997, Rhonda died in an automobile accident. Later that same day, Walter located Destiny, who had been staying with some nonrelatives, and took her to live with him. On March 25, 1997, Walter filed a petition to re-establish his custody of Destiny, which the trial court granted. From the time of Rhonda's death until the trial court's granting of Kay's petition to modify custody in December 1997, Destiny lived with Walter and visited with Kay every other weekend, pursuant to an agreement between Walter and Kay.

In November 1997, the trial court conducted a hearing on Kay's petition. In December 1997, the court granted the petition, awarded Kay custody of Destiny, and granted Walter restricted visitation with Destiny. This appeal followed.

II. ANALYSIS

A. The Petition To Modify Custody

Initially, we note Walter's argument that the trial court's December 1997 order was void because Kay never filed a petition to modify custody in these proceedings. Kay concedes that the record here does not contain a copy of her petition to modify custody that had been file-stamped by the clerk of court. Nonetheless, she contends that the record indicates that she actually filed her petition. Specifically, she points to the following: (1) a June 1997 written order specifically mentioned a "[p]etition to [m]odify filed by M. Kay Winkler"; (2) in August 1997, Walter filed a motion to continue which stated that "[t]here is currently pending before this [c]court a [m]otion to [c]hange [c]ustody of the ...


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