Appeal from the Circuit Court of Lake County. No. 00-D-853 Honorable Donna-Jo Vorderstrasse, Judge, Presiding.
The opinion of the court was delivered by: Justice Birkett
JUSTICE BIRKETT delivered the judgment of the court, with opinion. Justices McLaren and Bowman concurred in the judgment and opinion.
¶ 1 Respondent, Alan Friedman, who was divorced from petitioner, Jill Golden, in August 2000, appeals from the judgment of the trial court denying his motion to compel arbitration pursuant to an arbitration clause in the parties' parenting agreement. The trial court reasoned that respondent failed to show the existence of an actual controversy for the arbitrator to settle. We hold that a controversy did exist, and we therefore reverse the trial court's judgment.
¶ 3 As a threshold matter, we address a motion by respondent to supplement the record. The appendix to respondent's opening brief included a copy of the trial court's April 27, 2012, order denying his motion to compel arbitration. After petitioner noted in her response brief that the April 27 order was not included in the record, respondent moved to supplement the record with the order. Petitioner has filed no objection. We hereby grant the motion to supplement.
¶ 4 The August 2000 divorce decree designated petitioner as "primary
residential custodian" of the parties' two children and established a
"joint parenting agreement." The parenting agreement set forth a
detailed "parenting scheduling" dividing the parties' time with the
children. The record contains two subsequent amendments to the
parenting schedule. The first amendment, in December 2006, gave
petitioner sole physical custody of the children and severely limited
direct contact between the parties. The December 2006 amendment also
modified the parenting schedule. The second amendment, dated April 30,
2010, instituted the use of a parenting coordinator and required the
parties to communicate with each other exclusively through the
coordinator "except if the child or children [are] in the hospital or
are on their way to the hospital for a medical emergency."*fn1
The April 2010 amendment also contained a parenting schedule that
superseded all prior schedules. The schedule provided for "regular
parenting time," "holiday parenting time," and "additional parenting
time for [respondent]." Parenting time was to be coordinated through a
virtual calendar called "our family wizard." Each parent had the right
of first refusal regarding parenting time that the other
parent was willing to relinquish. Additionally, the amendment
contained the following provision concerning arbitration:
"The matters of camp, medical decisions and the regular parenting time schedule are the only matters which shall be arbitrated."
¶ 5 On January 13, 2012, respondent filed his motion to compel arbitration. Respondent alleged that petitioner had forfeited 53 days of her regular parenting time in 2011 and 14 of 18 days of regular parenting time so far in January 2012. Respondent also alleged that petitioner had already forfeited dates after January 2012. Respondent argued that "one parent's regular forfeiture of at least one-third or more of her regularly schedule[d] parent time over the course of a year and 80% of her regularly scheduled time in one month (January 2012) affects 'the regular parenting time schedule' referred to in the April 30, 2010, [o]rder requiring arbitration." Respondent recounted that, pursuant to the arbitration clause, he "requested numerous times to [petitioner] through the arbitrator and the parenting coordinator that the parties meet to discuss his concerns about the current [p]arenting [s]chedule." According to respondent, arbitrator Sally Lichter informed him on January 5, 2012, that petitioner reported that she would not attend arbitration because she saw no conflict between the parties.
¶ 6 Respondent's motion attached the following e-mails between (1) him; (2) Lichter; (3) Lichter's paralegal, Patti Siedelmann; (4) Joyce Shatney, who apparently was the parenting coordinator under the April 2010 amendment; and (5) petitioner:
(a) Respondent to Shatney, August 29, 2011: "Joyce, please send to Jill: You just surrendered another 9 days of your parenting time on the [f]amily [w]izard. This comes on the heels of many other forfeitures of your parenting time. I have records of all your absences going back many years. I am very concerned about the amount of absent time on your part from the children at a time when they need supervision in their lives, especially Emily[,] and the impact on the children. You are supposed to be the 'primary residential parent.' The issue of the 'regular parenting time' is a matter to be discussed in arbitration AND we also have a child's rep[.] appointed in order [sic] regarding the welfare of the children. I think it[']s time to have a visit to discuss my concerns about the children's welfare regarding all of your absences as [I] clearly cannot keep the children as often as you are leaving them. It appears obvious to me that the children are not your first priority in relationship to your quite frequent vacations. Please advise, Alan Friedman."
(b) Respondent to Lichter, November 12, 2011: "Hi Sally, please forward this email to Jill to inform her of my reasons and concerns for our children. I am requesting arbitration to address Jill's almost 70 absences from the regular parenting schedule this year. Our parenting agreement says we go to arbitration for matters of camp, medical, and 'the regular parenting schedule.' There is no 'regular parenting schedule' any longer as Jill continually disrupts it with very regular absences from the children in California. She is a stay away mother, not a stay at home mother. *** Her regular offering of the right of first refusal is not the issue I want to address. I want to address the fact that she is disrupting the schedule so often that there is no regularity[,] which is not good for our children ***. This provision was purposely written into our parenting agreement for arbitration so can you offer us both dates in Dec[.] *** to see you to discuss my concerns?"
(c) Siedelmann to petitioner, November 14, 2011: "Please see the following e-mail which Mr. Friedman has requested that we forward to you. As I am copying Mr. Friedman on this e-mail, please note that Ms. Lichter does have time the afternoons of December 8, 2011[,] and December 12, 2011. Please advise as to your response."
(d) Lichter to petitioner, December 7, 2011: "Alan has requested arbitration regarding the regular parenting schedule in terms of Monday nights as well as the regularity with which he states you are absent during your regular parenting schedule to see if there is a better schedule to minimize absences and if not to stick with what is current. Do you agree to meet in January and do you agree to arbitrate? If so my assistant will forward dates in January[,] if not let us know."
(e) Lichter to petitioner, December 13, 2011: "Jill, Alan states he would still like to arbitrate regarding the parenting schedule. You stated the two of you came to a resolution and he states the conversation was not complete. Do you agree to arbitration and if so Patti will provide dates in January if not we will let Alan know."
(f) Lichter to petitioner, December 13, 2011: "Jill, [A]lan wants to have a meeting to discuss if you expect your 2012 away schedule will be similar to 2011 and if so he wants to discuss how to handle the absences and how to handle the children this summer ***."
(g) Lichter to petitioner and respondent, December 15, 2011: "In review of the Illinois Uniform Arbitration Act a party has the right to bring an attorney to any and all Arbitration sessions. However there is [sic] no preconditions to arbitration. Alan has set forth the topic of arbitration[;] he does not have to set forth an exact proposal. Therefore the two of you can contact my office to say yes or no to arbitration. Attorneys may attend and there is [sic] no preconditions. I hope this answers both of your concerns."
(h) Lichter to petitioner, December 30, 2011: "Jill, I have not heard from you from my e-mail of December 15, 2011. Alan has set up a tentative arbitration session on January 16, 2012, from 2:00 to 4:00. Please let my office know if you plan on attending."
(i) Siedelmann to respondent, January 5, 2012: "Jill has responded that based on the existing orders and no clearly defined conflict, she will not be attending arbitration."
¶ 7 The other correspondence of note was a letter dated February 3, 2012, and sent from respondent's attorney to petitioner's attorney. The letter first appeared as an attachment to petitioner's March 2, 2012, response to the motion to compel. The letter begins by referencing a court ...