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In Re Marriage of Robert Lee Coulter

September 20, 2012


The opinion of the court was delivered by: Justice Garman

JUSTICE GARMAN delivered the judgment of the court, with opinion.

Chief Justice Kilbride and Justices Freeman, Thomas, Karmeier, Burke, and Theis concurred in the judgment and opinion.


¶ 1 The parties are the divorced parents of three minor children. After the mother, Amy Trinidad, informed the father, Robert Lee Coulter (Lee), of her intention to move to California with the children as permitted by their joint parenting agreement, he sought a preliminary injunction barring her from removing the children from Illinois. Amy thereafter filed a petition for temporary removal. After a hearing, the circuit court of Will County denied the injunction. The appellate court reversed and remanded. 2011 IL App (3d) 110424-U. This court allowed Amy's petition for leave to appeal pursuant to Supreme Court Rule 315 (Ill. S. Ct. R. 315 (eff. Feb. 26, 2010)). For the reasons that follow, we reverse the judgment of the appellate court.


¶ 3 The parties were divorced on May 8, 2008. They had previously entered into a joint parenting agreement (JPA), which the circuit court incorporated into the judgment of dissolution. The parties agreed to joint custody, with Amy exercising primary residential custody. The JPA expressly contemplated that Amy and the children would move to California. Lee agreed to the removal, provided that certain conditions were met. Specifically, the removal provision of the JPA stated:

"Each party agrees that so long as Lee is a resident of Illinois the children shall not be removed from the State of Illinois for a period of twenty-four (24) months subsequent to the entry of a Judgment herein. The parties further agree that in the event the Mother wishes to remove the children to the State of California, more particularly, Southern California or Orange County, she shall provide the Father with her notice of intent to do so. As stated hereinabove, no removal shall take place in the first twenty-four (24) months[;] however, during the next twelve (12) months, the parties agree to mediate and/or discuss a removal to Southern California and if the parties reach an agreement then the removal shall be allowed.

If the parties do not reach an agreement between the twenty-fourth and thirty-sixth month after the entry of a Judgment herein then the Mother will be free to remove the children and herself to Southern California without any contest from the Father as to a removal. In the event the parties do not work out an agreement between the twenty-fourth and thirty-sixth month the mother is then allowed to remove the children, the Father shall still have the right to have the Court determine the parenting schedule even though he has no further right to contest the issue of removal.

The provisions with respect to removal set forth hereinabove pertain only to the Mother's desire and/or intent to remove the children to Southern California. [If] [t]he Mother desires to remove the children to an out of state location other than Southern California then these provisions shall not apply and the Mother shall be subject to the statutory provisions of Section 609 of the [Illinois Marriage and Dissolution of Marriage Act]."

¶ 4 On May 3, 2010, five days short of the second anniversary of the entry of the judgment of dissolution, Amy's attorney gave Lee's attorney written notice of her intent to relocate to California in accordance with the terms of the JPA. The letter specifically requested that Lee's attorney respond to the notice. Lee neither responded, either directly or through his attorney, nor initiated mediation or discussion with Amy regarding the planned removal.

¶ 5 On March 3, 2011, two months before the expiration of the 12-month period for discussion or mediation, Lee filed an emergency petition seeking to enjoin Amy from removing the children to California. He alleged that Amy had not requested mediation. In addition, he alleged that the removal provision in the JPA contained "insufficient evidence to support a finding that removal is in the children's best interest" and that a substantial change in circumstances had occurred such that he should be given sole custody of the children.

¶ 6 Amy responded by filing a petition for temporary removal on May 4, 2011. In her petition, she noted that the removal was expressly allowed by the JPA.

¶ 7 On June 13, 2011, the circuit court denied Lee's petition for an injunction. Although the court did not specifically state that it was allowing Amy's petition for temporary removal, it did state that it would be necessary to modify the visitation schedule because the children would be moving to California.

¶ 8 Amy filed a petition for permanent removal on July 20, 2011.

¶ 9 Lee took an interlocutory appeal. The appellate court found that the circuit court abused its discretion by denying the preliminary injunction. The order noted the existence of the JPA, but did not mention that the JPA had been incorporated into the judgment of dissolution or consider whether that judgment should be given effect. Rather, the appellate court stated that granting a preliminary injunction would "preserve the status quo" and would "do no more than prohibit respondent from an act which she is already lawfully prevented from doing." The court concluded that Lee had sufficiently demonstrated the four elements required for preliminary injunctive relief and remanded the matter to the circuit court.

ΒΆ 10 On remand, the circuit court ordered Amy to return the children to Illinois pursuant to the mandate of the appellate court. This court entered a stay of that order ...

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