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Pruitt v. Pruitt

Court of Appeals of Illinois, First District, Fifth Division

August 2, 2013

RUSSELL PRUITT, Petitioner-Appellant,

Appeal from the Circuit Court of Cook County No. 12 D 8451 Honorable Carole K. Bellows, Judge Presiding.

JUSTICE PALMER delivered the judgment of the court, with opinion. Justices Howse and Taylor concurred in the judgment and opinion.



¶ 1 Petitioner Russell Pruitt is the maternal grandfather of B.B., a minor child born on October 5, 2010. On September 5, 2012, Russell filed a petition to establish grandparent visitation pursuant to section 607(a-3) of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/607(a-3) (West 2012)), commonly referred to as the grandparent visitation statute. Respondents Stephanie Pruitt and Patrick Barrett, B.B.'s unmarried parents, responded with a motion to strike and dismiss the petition pursuant to section 2-619(a)(9) of the Illinois Code of Civil Procedure (the Code) (735 ILCS 5/2-619(a)(9) (West 2012)). The court granted respondents' motion to dismiss. Russell appeals the dismissal of his petition for grandparent visitation. We affirm.


¶ 3 Russell's petition alleged, inter alia, that from August 2010 until July 2012, Stephanie and B.B., upon B.B's birth, resided in Russell's household with him, his wife and his minor children. During this time, Russell and his family provided supervision and care as well as food, clothing and other support for B.B. and Stephanie. The petition further alleged that no order of parentage, support or visitation had been entered. The remainder of the petition, in essence, alleged that, despite Russell's attempts, he had been unable to negotiate a reasonable visitation schedule with respondents, to the detriment of B.B.'s mental, physical and emotional health.[1]

¶ 4 Russell's attempt to serve his petition upon both Stephanie and Patrick through the Cook County sheriff was unsuccessful. The sheriff's returns of service show that service was attempted at 1508 West Euclid Avenue, Arlington Heights, Illinois, on September 7, 2012, and that neither respondent was served. The officer who completed the returns of service added the notation, "Peggy Heimann states def. does not live at listed address" to each return.[2]

¶ 5 Subsequently, Russell was able to obtain service on respondents by special process server and sworn affidavits of service were filed with the court. One affidavit of service showed that Stephanie was personally served at the Euclid Avenue address on October 2, 2012. The other affidavit of service showed that Patrick was served by abode service at the same address, as follows:

"By leaving a copy at his/her usual place of abode with Stephanie Pruitt, a member of the household of the age of 13 years or upwards and informed that person of the contents thereof on October 02, 2012, and further mailed a copy of said documents in a sealed envelope with postage prepaid addressed to the defendant, Patrick Barrett, at his/her usual place of abode on October 03, 2012."

¶ 6 Respondents moved to dismiss the petition for grandparent visitation pursuant to section 2-619(a)(9). The gist of their motion to dismiss was that Russell's petition failed to satisfy any of the conditions precedent for allowing a grandparent to file a petition for visitation as set forth in section 607(a-5)(1) of the grandparent visitation statute (750 ILCS 5/607(a-5)(1) (West 2012)). Attached to the motion were the sworn affidavits of both respondents stating, as relevant to this appeal, that B.B. was born out of wedlock and respondents were living together at the Euclid Avenue address.[3]

¶ 7 On November 19, 2012, the trial court entered an order giving Russell an opportunity to respond to the motion to dismiss. The order further provided that, upon receiving the response, the court would determine if an evidentiary hearing was necessary.

¶ 8 On November 21, 2012, Russell filed his response. As pertinent to this appeal, Russell admitted that B.B. was born out of wedlock but denied that respondents lived together at "the stated address." He further alleged, "that the Cook County Sheriff was advised by the owner that the Respondents did not live at said address and that any contact with Respondents at said address has been after advance notice to them."

¶ 9 In the sworn affidavit that accompanied Russell's response, he stated the following:

"9. I do not know if my daughter is living with Patrick, someone else or somewhere else, but when I engaged the Cook County Sheriff to serve this petition on Stephanie and Patrick at the only address I knew ([the Euclid Avenue address]), ...

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