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In re Custody of Ayala

November 12, 2003

IN RE CUSTODY OF JESSICA AYALA
(LUIS AYALA, JR., PETITIONER-APPELLEE,
v.
WANDA LOZADA, RESPONDENT-APPELLANT).



Appeal from the Circuit Court of Cook County Honorable Allan W. Masters, Judge Presiding.

The opinion of the court was delivered by: Justice Karnezis

UNPUBLISHED

Petitioner Luis Ayala, Jr. (Luis), and respondent Wanda Lozado (Wanda) are the unmarried parents of Jessica Ayala (Jessica) and are engaged in a custody battle over Jessica. In 1998, the court awarded temporary custody of Jessica to Luis and visitation rights to Wanda. In June 2001, Luis was convicted and jailed for conspiracy to sell drugs. That same month, the court entered four orders in the parties' custody case which, among other findings and directives, joined Luis's wife and parents as parties to the proceedings and granted them joint custody of Jessica with Luis. Pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2000)), Wanda moved to vacate the four orders as void ab initio and immediately turn Jessica over to Wanda (motion to vacate). The court denied the motion, finding that no section 2-1401 petition was before it and that Wanda's motion to vacate was untimely filed. Wanda appeals pursuant to Supreme Court Rule 304(b)(3) (155 Ill. 2d R. 304(b)(3)), arguing that the court erred in denying her motion to vacate and in failing to interpret it as a petition filed pursuant to section 2-1401. She requests that we (1) reverse the court's June 14, 2002, order denying her motion to vacate and (2) find void and vacate the court's June 20, 2001, orders joining Luis's wife and parents as additional parties and awarding them joint co-custodial care of Jessica. Luis and his parents filed a motion to dismiss the appeal, arguing that the court's order denying Wanda's motion to vacate was not a final order and, therefore, the case is not ripe for appeal. Taking the motion to dismiss with the case, we find that we have jurisdiction to consider the appeal. We reverse and remand.

BACKGROUND

In April 1995, Luis filed a verified paternity complaint stating that he was Jessica's father and requesting joint legal custody of her. On August 21, 1998, the court awarded temporary custody of Jessica to Luis and visitation rights to Wanda. In June 2000, Luis was arrested for conspiracy to sell drugs. In July 2000, Wanda filed an emergency petition requesting that the court grant her temporary and permanent care and custody of Jessica given Luis's arrest. The court struck the petition. Wanda then apparently filed an amended petition requesting the same relief because, although the record does not contain a copy of that petition, it does contain Luis's September 11, 2000, response to it. The court ordered the parties to present an agreed order regarding custody. On April 12, 2001, when the parties could not come to agreement regarding custody, Wanda filed a pro se motion for modification of custody due to the significant change in circumstances occasioned by Luis's now imminent incarceration.

On May 2, 2001, Luis filed a petition for diverse relief requesting leave to join his wife and parents as additional parties to the proceedings, leave to file custody interrogatories in excess of 30 questions, that the court sua sponte declare that Illinois is Jessica's home state, and that Wanda be required to pay child support. Luis asserted that Wanda was an unfit custodial parent who had abandoned Jessica to his parents' custodial care on multiple occasions; Jessica had been in the de facto custody of his wife and parents and his legal custody, as an extended family unit, for the past two years; joinder of his wife and parents as additional parties was warranted because they had been acting as parents and the court needed to have jurisdiction over them; and his incarceration was an insufficient change in circumstances to warrant modifying Jessica's custody.

On May 7, 2001, the court declared Illinois to be Jessica's home state; granted Luis leave to file the custody interrogatories; granted Wanda 28 days in which to respond to the interrogatories and Luis's petition for diverse relief; reserved ruling on the joinder issue; and continued the case for status to May 30, 2002.

On May 22, 2001, Luis, his wife and his parents filed a motion requesting leave to join his wife and parents as additional parties and that the court sua sponte declare Illinois to be Jessica's home state, reiterating the same arguments as in Luis's earlier petition for diverse relief. On May 30, 2001, the court sua sponte ordered that the continued care and possession of Jessica by Luis and the "proposed intervenors," his wife and parents, would "remain status quo" until further order with all prior orders to remain in full force and effect. The court granted Wanda 28 days to respond to the May 22, 2001, joinder petition and continued the joinder issue until July 24, 2001.

In June 2001, Luis was convicted and sentenced to 80 months' imprisonment for conspiracy to sell drugs. That same month, with Luis's permission, Wanda took Jessica to Wanda's home in Iowa for a visit. Wanda did not return Jessica to Illinois by the agreed date of June 10, 2001, requesting instead that Luis allow Jessica to remain in Iowa for a few more days. On June 12, 2001, Luis filed an emergency petition for an order of default for Wanda's failure to respond within 28 days to his interrogatories, petition for diverse relief, and joinder petitions; cessation of unsupervised visitation; petition for rule to show cause and visitation abuse; and a finding of indirect civil contempt.

On June 12, 2001, the court (1) ordered Wanda to return Jessica to Luis that day; (2) made the rule to show cause returnable instanter based upon a finding that Wanda removed Jessica to Iowa in violation of three prior court orders *fn1 and ordered Wanda to appear before the court on June 13, 2001, for a hearing on indirect civil contempt and sanctions; (3) enjoined Wanda from removing Jessica from Illinois without a specific order of court; and (4) continued all other matters pertaining to Luis's emergency petition to June 13, 2001.

On June 13, 2001, the court was unavailable and by "agreed order" continued all matters to June 20, 2001. Wanda was not present for the June 20, 2001, hearing. She asserts that she did not agree to the June 20, 2001, hearing date and that she called Luis's attorney and the court clerk on June 20, 2001, to explain that she could not attend the hearing that day.

On June 20, 2001, the court entered two orders. In the first order, entered pursuant to Luis's petition for joinder of additional parties, the court struck the July 24, 2001, date scheduled for a hearing on the joinder motion, granted Luis leave to join his wife and parents as additional parties instanter and declared Illinois to be Jessica's home state.

The court entered the second order pursuant to the prior return of the rule to show cause against Wanda for violation of the court's prior orders and failing to comply with the court's sua sponte order to return Jessica to Illinois within the time prescribed, failing to personally appear in court for the hearing on indirect civil contempt on June 13, 2001, and failing to appear on June 20, 2001. The court again ordered that Luis's wife and parents be joined as parties to the cause of action instanter and noted their stipulation to the court's jurisdiction over them. With Luis's agreement as Jessica's custodial caregiver, as an implementation of the court's order to maintain the status quo as to Jessica's residential care, education and activities, the court granted joint co-custodial care of Jessica to Luis's wife and parents until further order of the court. The court granted Wanda "reasonable" overnight visitation with Jessica in Cook/Du Page County, Illinois, during August 2001. The court entered an order of default against Wanda for failure to comply with orders as to filing of responsive pleadings within the time prescribed, found that she failed to answer custody interrogatories, and continued all pending matters to August 22, 2001, including sanctions for Wanda's failure to answer custody interrogatories.

On October 24, 2001, Wanda filed a motion for permanent custody of Jessica.

On December 13, 2001, Wanda filed a section 2-1401 motion to vacate the four orders entered on June 12, 2001, June 13, 2001, and June 20, 2001, arguing that the orders were void ab initio for, among other defects, lack of jurisdiction. In the motion, Wanda avers that she returned Jessica to Luis on the night of June 12, 2001, or the morning of June 13, 2001, and that she was in court on June 13, 2001. Wanda, who allegedly appeared pro se on June 13, 2001, asserts that Luis'ss counsel did not consult her prior to drafting and entering the "agreed" order continuing the case to June 20, 2001; she was unavailable on June 20, 2001; she did not agree to the June 20, 2001, date; she did not sign the agreed order; and, when she asked Luis's counsel to select another date, counsel allegedly ...


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