Appeal from the Circuit Court of Du Page County. No. 94--D--860 Honorable C. Stanley Austin, Judge, Presiding.
The opinion of the court was delivered by: Justice Kapala
Defendants, Ralph and Sondra Hruby, appeal from an August 22, 2005, order holding them in indirect civil contempt of court for failing to obey a June 15, 1995, order providing for grandparent visitation, and from a June 8, 2005, order denying their motion to dismiss plaintiff's, Geraldine Felzak's, petition to enforce the June 15, 1995, order. We affirm in part and vacate in part.
Ralph Hruby and Deborah Hruby were married in 1977 and had three children together: Greg, born November 25, 1983; Jeffery, born August 4, 1985; and Katie, born July 22, 1989. Shortly after Katie was born, Deborah died of a cerebral hemorrhage. On July 16, 1992, Ralph was married to Sondra Hruby. Soon after her marriage to Ralph, Sondra adopted the Hruby children on November 1, 1993. On April 6, 1994, plaintiff, Deborah's mother, filed a petition for grandparent visitation with the Hruby children pursuant to section 607(b) of the Illinois Marriage and Dissolution of Marriage Act (the Act) (750 ILCS 5/607(b) (West 1992)).
In her petition for grandparent visitation, plaintiff alleged that despite her continued involvement in the Hruby children's lives after the death of her daughter, defendants would no longer permit her to have visitation with the Hruby children. Plaintiff alleged that after the death of her daughter, she provided regular care for the children, bought them clothes and shoes, and arranged birthday and holiday celebrations for them. However, plaintiff alleged that soon after defendants married, defendants refused to allow plaintiff visitation with the children. In their answer, defendants claimed that during her visitation with the children, plaintiff continually made disparaging remarks to the children about Sondra, and that the visitation was harming the Hruby children and detracting from defendants' attempts to nurture and build their family. The parties agree that plaintiff's visitation with the two boys ended on December 25, 1993. In their answer, defendants contended that the boys did not want to visit with plaintiff and that defendants would not force the boys to continue to visit with plaintiff. Defendants also claimed that plaintiff continued overnight visitation with Katie on alternating weekends until April 1994. Defendants' answer to plaintiff's petition for grandparent visitation included an affirmative defense that the provisions of section 607 of the Act pertaining to grandparent visitation were unconstitutional.
On April 29, 1994, the court entered an agreed conciliation order referring the parties to Dr. Daniel Hynan for conciliation counseling on the issue of visitation. Dr. Hynan interviewed plaintiff, defendants, and the Hruby children and administered psychological tests. On October 28, 1994, Dr. Hynan recommended that it was in the best interest of the children to continue visitation with plaintiff. As a result of Dr. Hynan's recommendations, defendants decided to agree to visitation. Before the court ruled on defendants' affirmative defense, the parties entered into an agreed order on December 16, 1994, allowing plaintiff visitation with the three Hruby children one day per month for six hours and allowing telephonic visitation with the children for up to 30 minutes once per month. In exchange, plaintiff withdrew her claims for grandparent visitation. As part of their agreement, the parties also provided that if disputes arose over the agreed order, they would return to counseling to mediate the dispute before submitting the dispute to a court. The order also provided that the court retained jurisdiction to enforce the order.
On April 10, 1995, plaintiff filed a petition for further conciliation and other relief, alleging that defendants had failed to provide any visitation with Greg and Jeff pursuant to the December 16, 1994, agreed visitation order, asking that the court order the parties to return to counseling, and requesting overnight visitation with Katie. Following a pretrial conference on April 10, 1995, the court entered an interim order allowing plaintiff to write to Greg and Jeff, and requiring defendants to encourage them to respond. The interim order also provided that the parties should attempt to resolve overnight visitation between plaintiff and Katie. On May 24, 1995, the court entered an order setting plaintiff's petition for hearing on August 1, 1995.
On June 15, 1995, however, plaintiff and defendants entered into an agreed order that, in lieu of the previously ordered six hours per month of visitation with the three Hruby children, allowed plaintiff to visit with Katie twice per month, between 3:30 p.m. and 8:30 p.m. on days to be agreed upon by the parties. The order further provided that plaintiff would withdraw her pending petition for conciliation and other relief.
On February 24, 2005, plaintiff filed a petition to enforce the agreed order of June 15, 1995. In that petition, plaintiff alleges that for nine years following the June 15, 1995, agreed order, she visited with Katie and Katie never missed a visit. Both parties later testified that during this time, they agreed outside of court that plaintiff would have one 10-hour visitation with Katie per month instead of two 5-hour periods, because this was more convenient for both parties. In her February 2005 petition, plaintiff alleges that in May 2004, two months before Katie's fifteenth birthday, defendants stopped plaintiff's visitation with Katie completely. Sondra Hruby testified that this was because Katie returned home crying after her April 2004 visit with plaintiff, and that Katie did not want to go on any more visits with plaintiff. Plaintiff alleges that defendants did not ask the court to modify the visitation order prior to stopping visitation and that she requested defendants to abide by the June 15, 1995, agreed order on several occasions in the months after her visitation with Katie ceased. Ralph wrote plaintiff on February 3, 2005, stating that because the Illinois grandparent visitation statute (750 ILCS 5/607(b) (West 1992)) had been found unconstitutional, he believed that the June 15, 1995, agreed order granting plaintiff visitation with Katie was void and unenforceable.
In response to plaintiff's February 24, 2005, petition to enforce the June 15, 1995, agreed order, defendants filed a motion to dismiss pursuant to section 2--619 of the Code of Civil Procedure (the Code) (735 ILCS 5/2--619 (West 2004)), which was later superseded by a May 2, 2005, amended motion to dismiss, also pursuant to section 2--619 of the Code. The amended motion to dismiss alleged that because section 607(b) of the Act, the grandparent visitation statute upon which plaintiff brought her petition, was held unconstitutional, the court had no subject matter jurisdiction and no authority to enter the June 15, 1995, agreed order for visitation.
On June 8, 2005, the court denied defendants' amended motion to dismiss and held that the agreed order of June 15, 1995, was still in full force and effect. In denying defendants' amended motion to dismiss, the court held that this case was controlled by In re M.M.D., 213 Ill. 2d 105, 114-15 (2004), because in that case our supreme court held that agreed orders for grandparent visitation were not void as unconstitutional and should be enforced. At the time the court denied defendants' amended motion to dismiss, counsel for defendants informed the court that defendants would not abide by the order to enforce the visitation order of June 15, 1995, and requested that the court enter an order holding defendants in indirect civil contempt to enable them to appeal the question of jurisdiction. The court refused this suggestion and instructed counsel for plaintiff to prepare a petition for rule to show cause.
On June 10, 2005, plaintiff requested visitation with Katie, and on June 17, 2005, defendants informed plaintiff that they would not permit visitation. Then, on June 30, 2005, plaintiff filed a petition for a rule to show cause and other relief. In response, defendants asked the court to deny plaintiff's petition and to reconsider its June 8, 2005, denial of defendants' motion to dismiss. Defendants cited a recent Fifth District opinion, In re Marriage of Dobbs, 358 Ill. App. 3d 308, 310 (2005), which held that a court did not have subject matter jurisdiction to enter an agreed order allowing a parent visitation with his adult child. On July 6, 2005, the trial court granted plaintiff's petition for a rule to show cause and ordered defendants to appear on August 16, 2005, to show cause as to why they should not be held in civil contempt for failing to obey the court's June 15, 1995, visitation order.
A contempt hearing was held on August 16, 2005. After hearing testimony from plaintiff and defendants, the court found defendants in willful contempt of court for failure to obey the court's order of June 15, 1995, and reasserted that M.M.D. controlled the case despite the holdings of Dobbs. The court ordered that each defendant be incarcerated on alternating weekends until defendants abide by the June 15, 1995, visitation order. The court held that defendants could purge themselves of the order of contempt by providing visitation with Katie to plaintiff for 10 hours a month to be held on one weekend day per month. The court further ordered sua sponte that neither party have any communication with Katie as to "the outcome of the Court case or any impact of that at this time." A written order holding defendants in indirect civil contempt of court was entered on August 22, 2005.
The trial court refused to stay defendants' incarceration pending this appeal, but entered a temporary stay for 30 days. On September 8, 2005, this court granted defendants' motion to stay the contempt judgment pending this appeal.
Defendants filed their notice of appeal on August 25, 2005, appealing both the trial court's August 22, 2005, order holding them in indirect civil contempt of court and forbidding communication with Katie about the case, and its June 8, 2005, order denying their motion to dismiss plaintiff's petition to enforce the June 15, 1995, order.
On appeal, defendants contend that the trial court erred both when it denied their amended motion to dismiss plaintiff's petition to enforce its June 15, 1995, visitation order and when it entered its August 22, 2005, order holding defendants in indirect civil contempt of court for failing to obey its June 15, 1995, visitation order. Defendants argue that the trial court cannot enforce the June 15, 1995, order allowing plaintiff grandparent visitation, because it is void for lack of subject matter jurisdiction. Defendants also argue that even if subject matter jurisdiction exists, the June 15, 1995, agreed order they entered into is void for lack of consideration. Furthermore, defendants contend that the trial court's sua sponte order at the August 16, 2005, contempt hearing, forbidding the parties from having communication with Katie about this case, violates their fourteenth amendment rights to the care, custody, and control of their child.
A. Subject Matter Jurisdiction
Defendants contend that the trial court lacked subject matter jurisdiction over plaintiff's claim for grandparent visitation, because plaintiff brought her petition for grandparent visitation pursuant to section 607(b) of the Act, which our supreme court declared unconstitutional in Wickham v. Byrne, 199 Ill. 2d 309, 320-21 (2002), on April 18, 2002. Defendants assert that this nullified any power the trial court had to enter an order in this case.*fn1 As a result, defendants urge that because the June 15, 1995, order is void, the trial court can neither enforce the order against them nor hold them in contempt for not obeying the order.
The parties disagree as to the standard of review in this case. Defendants argue that because subject matter jurisdiction is a question of law, our review is de novo. Plaintiff argues that we should reverse the trial court's order of contempt only if it is against the manifest weight of the evidence, because the final order entered by the trial court was an order of contempt. Plaintiff contends that whether noncompliance with a court order is willful or the alleged contemnor had a valid excuse is a question of fact, to which the manifest-weight-of- the-evidence standard applies. In support of her argument, plaintiff cites In re Marriage of Kneitz, 341 Ill. App. 3d 299 (2003), where this court applied a manifest-weight-of-the-evidence standard to analyze whether a Louisiana court order suspending visitation provided a valid excuse for the respondent's violation of an Illinois visitation order. Plaintiff argues that like the Louisiana court order, the trial court's alleged lack of subject matter jurisdiction must be examined as a valid excuse not to obey a court order.
Although we would generally review the court's June 8, 2005, order denying defendants' motion to dismiss under a de novo standard (Brennan v. Kadner, 351 Ill. App. 3d 963, 967 (2004)), and its August 22, 2005, order of contempt to see if it was against the manifest weight of the evidence (Kneitz, 341 Ill. App. 3d at 303), the primary issue is whether the trial court had subject matter jurisdiction over this entire action. Defendants do not argue that their willful violation of a court order was allowed because an affirmative matter excused the violation, but rather they argue that they never violated the June 15, 1995, court order because the order was void for lack of subject matter jurisdiction. Consequently, the issue on appeal is not whether the trial court erroneously found defendants' behavior contemptuous but, rather, whether the court had the authority to enter an order at all, regardless of the facts. Subject matter jurisdiction is a question of law that we ...