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In re Marriage of Wiseman

October 03, 2000

IN RE MARRIAGE OF MELANIE C. WISEMAN, F/K/A MELANIE C. DORSHORST,
PETITIONER-APPELLANT,
AND
RONALD J. DORSHORST,
RESPONDENT-APPELLEE.



Appeal from the Circuit Court of Du Page County. No. 99--MR--0400 Honorable Rodney W. Equi, Judge, Presiding.

The opinion of the court was delivered by: Justice McLAREN

The petitioner, Melanie C. Wiseman, f/k/a Melanie Dorshorst, appeals the trial court's decision dismissing her motion to modify a custody and visitation judgment entered by a Wisconsin state court. We affirm.

The petitioner, Melanie C. Wiseman, f/k/a Melanie Dorshorst (mother), and the respondent, Ronald J. Dorshorst (father), were married in Wisconsin in 1986. They had two children, Trent, born in 1987, and Tara, born in 1990. The parties subsequently dissolved their marriage in Wisconsin in 1993. By agreement entered by the Dane County, Wisconsin, state court, the parties shared joint custody of the children, but the mother had primary physical placement and control of the children. The father had placement of the children on alternating weekends and holidays and for six weeks in the summer.

On June 2, 1997, the mother filed a request with the Wisconsin court requesting permission to move herself and the children to the north or west suburbs of Chicago, Illinois. The father filed a petition to prohibit removal. In response to the petitions, the Wisconsin court appointed a guardian ad litem for the children. On August 1, 1997, the mother and the children moved to Lisle, Illinois. On October 7, 1997, the Wisconsin state court entered an agreed revised judgment allowing the mother to move to Illinois with the children. The Wisconsin court also ordered the parties to attend co-parenting counseling in Wisconsin. Visitation was modified as follows: the mother continued to have primary physical placement of the children, and the father had physical placement on approximately alternating weekends, with adjustments made for holidays and other school breaks. The father also had physical placement for summer break through July. The agreed order provided that transfers of the children occurred:

"[A]t 5:30 p.m. at Belvidere, Illinois oasis directly off from [sic] Interstate 90. All driving shall be done by a parent, step-parent, grandparent, aunt or uncle, or another adult both parents have agreed is an acceptable driver."

On June 30, 1999, the mother filed a motion in Du Page County, Illinois, to modify visitation based on a substantial change in circumstances. The mother asserted that the transportation obligation was too burdensome because of her work schedule. It was difficult for the mother to drive the children 90 to 100 miles to the meeting place every other Friday by 5:30 p.m. because of her work schedule and the traffic. It was also too burdensome for the mother to pick the children up from Rockford, Illinois, approximately 120 miles from her Lisle home. The mother asserted that these arrangements prevented the children from fully participating in their chosen activities. The mother also alleged that the father slept in the same bed as Tara, their 10-year-old daughter, exposed both of the children to pornography, and failed to secure the children with safety belts while driving.

The father was served with a summons on July 23, 1999, and later made a special limited appearance on August 16, 1999, to contest jurisdiction. On August 13, 1999, the father filed a motion in the Wisconsin state court to modify the judgment as to physical placement and child support. The father also filed a rule to show cause and an attached affidavit alleging that the mother violated the judgment by failing to attend co-parenting counseling as previously ordered by the Wisconsin state court.

On August 25, 1999, in response to the mother's request, the Du Page County court entered the Wisconsin judgment of dissolution of marriage and the modification judgment.

On September 2, 1999, the Wisconsin state court wrote the mother requiring her to cooperate with co-parenting counseling with the Dane County, Wisconsin, family court counseling service and to attend a joint mediation session on September 8, 1999. The court advised the mother that both requirements were subject to penalties for contempt. The mother received this letter on September 7, 1999.

On September 9, 1999, the mother filed an emergency motion, requesting the Du Page County court to stay the proceedings initiated by the father in Dane County, Wisconsin. The mother alleged that she did not receive proper notice of the father's motions filed in Dane County, Wisconsin, beginning with the father's August 13, 1999, motion to modify judgment. The mother also alleged that the father failed to advise the Dane County, Wisconsin, court about the motions the mother had filed in Du Page County, Illinois.

On September 10, 1999, the mother filed a motion to amend and supplement her motion to modify to reflect the motions the father filed against her in the Dane County, Wisconsin, court. Again the mother alleged that she was not served with the pleadings the father filed in the Wisconsin court and that the father had failed to advise the Wisconsin court of the motion the mother had filed in Du Page County, Illinois. The mother also alleged that the children's medical records and potential witnesses were all located in the Du Page County and greater Chicago area.

On September 16, 1999, the father filed a motion in the Du Page County court to dismiss the mother's petition to modify visitation. The father asserted that the Du Page County court lacked jurisdiction and, alternatively, requested that the Du Page County court concede jurisdiction to the Wisconsin court pursuant to the Uniform Child Custody Jurisdiction Act (the Jurisdiction Act) (750 ILCS 35/15(a) (West 1998)) and the Parental Kidnapping Prevention Act of 1980 (PKPA) (28 U.S.C. §1738A (1994)). The mother filed a response, arguing that the Du Page County court had jurisdiction because it was the children's home state and the children had relocated to Illinois with the Wisconsin court's permission.

On September 23, 1999, after a discussion with the Dane County, Wisconsin, state court judge, the Du Page County court stated that the Wisconsin state court refused to decline jurisdiction and continued to exercise jurisdiction. The Du Page County court also stated that Illinois was the home state of the children. Consequently, pursuant to the PKPA, the Du Page County court granted the father's motion to dismiss, declined to exercise jurisdiction, and stayed the proceedings pending the outcome of the proceedings in the Wisconsin court. The Du Page County court also denied the mother's request for an evidentiary hearing on the issue of the children's best interest under the Jurisdiction Act and found no just reason to delay enforcement or appeal of its order. The mother filed her notice of appeal on October 22, 1999.

On appeal, the mother contends that the PKPA did not, under these circumstances, prevent the Du Page County court from exercising jurisdiction to modify visitation and that the Du Page County court erred by dismissing her petition to modify without considering the best interests of the children.

Dismissal based on the lack of jurisdiction is subject to de novo review when the facts are not in dispute. See Gaidar v. Tippecanoe Distribution Service, Inc., 299 Ill. App. 3d 1034, 1039 (1998). Further, a trial court's interpretation of a statute is also reviewed de novo. County of ...


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