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Hall v. Melton

May 30, 2000

IN RE PARENTAGE OF BREMEN HALL MELTON LYNN M. HALL
PETITIONER-APPELLANT,
V.
BRACE L. MELTON,
RESPONDENT-APPELLEE).



The opinion of the court was delivered by: Justice McNULTY

Appeal from the Circuit Court of Cook County Honorable Melvin J. Cole, Judge Presiding

The Illinois Parentage Act of 1984 (Parentage Act) (750 ILCS 45/1 et seq. (West 1996)) expressly refers to the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (750 ILCS 5/101 et seq. (West 1996)). We must decide whether by such reference the Parentage Act conferred on the court all the powers conferred by the Marriage Act. We hold that it did not. In particular, in proceedings under the Parentage Act the court lacks the power to enjoin a party from removing the child from the state.

Lynn Hall gave birth to a son, Bremen Melton, on May 13, 1997. On April 22, 1998, she filed a petition to establish parentage, naming Brace Melton as Bremen's father. She sought permanent custody and child support. The trial court entered an agreed order on April 12, 1999, temporarily awarding Hall child support and custody, and granting Brace supervised visitations at the home of Hall's father, in Oak Park, Illinois, every Tuesday and Thursday. Although the court titled it a temporary order, it does not provide for the termination of any of its provisions.

Hall then petitioned for leave to remove Bremen from Illinois to reside with her in Vermont. On April 27, 1999, the court entered an order enjoining her from removing the child from Illinois, and changing the visitation to Mondays and Wednesdays. Hall moved to vacate the injunction, arguing that the court lacked authority to enter it. After a hearing at which the parties presented some evidence, the court denied the motion to vacate and continued the matter for mediation. The court expressly held that section 501.1 of the Marriage Act (750 ILCS 5/501.1 (West 1996)) applied to the parentage proceedings and authorized the injunction. Hall appeals.

Because the trial court refused to dissolve an injunction, we have jurisdiction over the appeal pursuant to Supreme Court Rule 307(a)(1). 166 Ill. 2d R. 307(a)(1).

Section 14 of the Parentage Act provides that in parentage proceedings:

"The judgment shall contain or explicitly reserve provisions concerning any duty and amount of child support and may contain provisions concerning the custody and guardianship of the child, visitation privileges with the child, the furnishing of bond or other security for the payment of the judgment, which the court shall determine in accordance with the relevant factors set forth in the Illinois Marriage and Dissolution of Marriage Act and any other applicable law of Illinois, to guide the court in a finding in the best interests of the child. In determining custody, joint custody, or visitation, the court shall apply the relevant standards of the Illinois Marriage and Dissolution of Marriage Act. Specifically, in determining the amount of any child support award, the court shall use the guidelines and standards set forth in *** the Illinois Marriage and Dissolution of Marriage Act ***." 750 ILCS 45/14(a)(1) (West 1996).

The court may use its contempt powers to punish any failure to comply with its orders just as the court could in proceedings under the Marriage Act. 750 ILCS 45/15(b) (West 1996). And according to section 16:

"The court has continuing jurisdiction to modify an order for support, custody or visitation included in a judgment entered under this Act. Any custody or visitation judgment modification shall be in accordance with the relevant factors specified in the *** Marriage Act." 750 ILCS 45/16 (West 1996).

The Parentage Act does not incorporate the entire Marriage Act. In re Parentage of R.M.F., 275 Ill. App. 3d 43, 50, 655 N.E.2d 1137 (1995). Section 14 expressly adopts "the relevant factors set forth in the *** Marriage Act" (750 ILCS 45/14(a)(1) West 1996)) for judgments, especially "the guidelines and standards" set forth in the Marriage Act for determining child support. The Parentage Act also expressly directs the court hearing a petition regarding parentage to "apply the relevant standards" of the Marriage Act for determining custody, joint custody, and visitation. Section 16 of the Parentage Act expressly adopts "the relevant factors" of the Marriage Act for modifying any order for support, custody or visitation.

While the Parentage Act adopts some of the factors, guidelines and standards stated in the Marriage Act, the Parentage Act does not incorporate the procedures of the Marriage Act and it does not broadly confer on the court the same powers conferred on the court in actions under the Marriage Act. Section 15(b) of the Parentage Act incorporates the contempt powers provided by the Marriage Act, but otherwise the Parentage Act confers all applicable powers directly on the court, without reference to the Marriage Act. In particular, the Parentage Act nowhere confers on the court the power to enjoin parents from removing the child from the state, or any of the other powers conferred by section 501 or 501.1 of the Marriage Act.

Like divorce under the Marriage Act, proceedings under the Parentage Act are "entirely statutory in origin and *** the court's authority is limited thereby." In re Marriage of Cohn, 93 Ill. 2d 190, 206, 443 N.E.2d 541 (1982); Ehorn v. Podraza, 51 Ill. App. 3d 816, 817, 367 N.E.2d 300 (1977). The court has no inherent powers in parentage cases or divorce actions. In re Marriage of Milliken, 199 Ill. App. 3d 813, 817, 557 N.E.2d 591 (1990). Because the Parentage Act does not give the court the power to enjoin a party from removing the child from the jurisdiction, the trial court lacked authority to enter the injunction. That part of the court's order is vacated.

To avoid possible confusion, we will clarify the import of our holding. Vacation of the injunction will have little practical effect in this case. The trial court entered an agreed order awarding Brace visitation with Bremen. Section 14 of the Parentage Act expressly confers on the court power to grant the non-custodial parent visitation. The orders for visitation remain in effect until the trial court issues an order denying visitation for Brace or altering the place for that visitation. See In re Marriage of Ingram, 259 Ill. App. 3d 685, 690, 631 N.E.2d 386 (1994).

The court also has the power to impose contempt sanctions, under section 15(b), for any failure to comply with its orders. Hall does not contend she could fully comply with ordered visitations in Illinois every Monday and Wednesday if she moves to Vermont with Bremen. Therefore, the court must modify visitation before Hall moves to Vermont or she will disobey the order and thereby commit ...


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