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In re Marriage of Duffy

September 16, 1999

IN RE MARRIAGE OF MICHELE DUFFY, PETITIONER-APPELLANT,
AND
PHILLIP J. PILNY, RESPONDENT-APPELLEE.



Appeal from the Circuit Court of De Kalb County. No. 98--D--261 Honorable Wiley W. Edmondson, Judge, Presiding.

The opinion of the court was delivered by: Justice Hutchinson

IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS

JUSTICE HUTCHINSON delivered the opinion of the court:

Petitioner, Michele Duffy, f/k/a Michele Pilny, and respondent, Phillip J. Pilny, were married on September 4, 1994. During their marriage, one child was born. The parties separated on June 10, 1997, and petitioned for dissolution of the marriage on August 17, 1998. The trial court entered an order dissolving the marriage which incorporated a joint parenting agreement. However, the trial court modified the dispute resolution provision of the joint parenting agreement and ordered that the parties mediate any child custody problems that arise. Petitioner appeals, arguing that the trial court lacked the authority to modify the joint parenting agreement. We affirm.

The parties' joint parenting agreement provided, in pertinent part: "[The parties] agree that in the event that they cannot agree on the major decisions affecting the education, health, or religion of [their child] or any other issue related to this Joint Parenting Agreement, [the parties] may enter into mediation in an attempt to resolve said dispute prior to proceeding to hearing in a court of competent jurisdiction. Use of mediation shall be encouraged, but not required of either party. *** Either party may opt out of mediation if said party does not feel said mediation shall be effective."

In granting the judgment of dissolution of the marriage, the trial court made the following statement regarding the joint parenting agreement:

"Folks, if you can make the language of this agreement a reality that will be a wonderful thing for your child. I think with one exception *** the joint parenting agreement you've negotiated is clearly in you child's best interests, and therefore, you are hereby awarded joint legal custody of [the child], with [petitioner] having the situs of the child's primary residence. The one provision I don't agree with and will not approve is the provision that says that you're not required to engage in mediation. I feel that litigation, hiring lawyers, going to court, examination, cross-examination, opening statements, closing arguments, spending the child's future college funds on legal fees and court costs, is contrary to the child's best interests, so I will be entering an order saying notwithstanding the agreement you are required to, except in emergency, to go to mediation."

The trial court further clarified its order and indicated that financial matters related to child custody, such as child support and medical expenses, were not subject to its order. The trial court entered its order and judgment for dissolution on September 11, 1998, and this timely appeal followed.

We first note that respondent, as appellee, has failed to file a brief in this matter. However, we may decide the issue presented in accordance with the guidelines of First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976).

Petitioner argues that the trial court abused its discretion because it lacked the authority to modify the parties' agreement regarding custody. In custody cases, a presumption arises favoring the trial court's order. In re Marriage of Hahin, 266 Ill. App. 3d 168, 173 (1994). The trial court is in the best position to evaluate the credibility of the witnesses, the evidence, and the best interests of the child. In re Marriage of Melton, 288 Ill. App. 3d 1084, 1088 (1997); Hahin, 266 Ill. App. 3d at 173. In custody proceedings, the trial court must determine the best interests of the child and its decision will not be disturbed on appeal absent an abuse of discretion. Hahin, 266 Ill. App. 3d at 173-74; Thomas v. Thomas, 56 Ill. App. 3d 806, 807 (1978).

Section 502(a) of the Illinois Marriage and Dissolution of Marriage Act (the Act) encourages parties to enter into dissolution agreements. 750 ILCS 5/502(a) (West 1998); see also In re Marriage of Ingram, 259 Ill. App. 3d 685, 689 (1994). Section 502(b) of the Act provides as follows:

"The terms of the agreement, except those providing for support, custody and visitation of children, are binding upon the court unless it finds *** that the agreement is unconscionable." (Emphasis added.) 750 ILCS 5/502(b) (West 1998).

Although the Act encourages agreement, the State maintains an interest in protecting the marriage relation and the welfare of society, and is often referred to as a "third party" to a dissolution action. In re Marriage of Ealy, 269 Ill. App. 3d 971, 975 (1995), citing Collins v. Collins, 14 Ill. 2d 178, 184 (1958). Consequently, the parties to a dissolution proceeding may not enter into an agreement that affects the interest of their children without obtaining the approval of the court. Ingram, 259 Ill. App. 3d at 689, citing Blisset v. Blisset, 123 Ill. 2d 161, 167-68 (1988). Parents may not bargain away the interest of their children and the court is not bound by an agreement that does not protect the best interest of the children. Blisset, 123 Ill. 2d at 170; Ealy, 269 Ill. App. 3d at 975.

Petitioner apparently concedes that under section 502(b) of the Act the trial court is not bound by agreements governing child custody or support. See 750 ILCS 5/502(b) (West 1998). However, petitioner argues that the mediation provision of the joint parenting agreement is not a custody provision and therefore the trial court is bound by the parties' agreement regarding mediation. We disagree. By its own terms the mediation provision addresses disagreements between the parties on "major decisions affecting the education, health, or religion" of their minor child. The right to make decisions regarding a child's upbringing, including decisions regarding a child's education, health care, and religious training, is clearly within the authority granted a custodial parent under the Act. See ...


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