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Lee v. Fosdick

Court of Appeals of Illinois, Fourth District

March 20, 2014

JUNE A. LEE, Petitioner-Appellant,
v.
URIAH N. FOSDICK, Respondent-Appellee

Appeal from Circuit Court of Vermilion County. No. 07F112. Honorable Michael D. Clary, Judge Presiding.

Reversed and remanded.

SYLLABUS

In a custody dispute between a young girl's father and her maternal grandmother after the girl's mother died and both the father and grandmother sought custody, and then the trial court, after awarding custody to the father and ultimately dismissing the count of the grandmother's amended pleading seeking custody, made a finding under Supreme Court Rule 304(a) allowing an immediate appeal and certified a question under Rule 308(a) as to whether the grandmother had to reestablish her standing in order to modify the trial court's custody order where the trial court had previously found she had standing when it granted her temporary custody following the mother's death and then granted her substantial visitation when it awarded the father permanent custody, the appellate court answered the certified question in the negative and the cause was remanded for further proceedings.

Kristen H. Fischer and Emelia J. Hanson, both of Fischer & Wozniak, P.C., of Urbana, for appellant.

PRESIDING JUSTICE APPLETON delivered the judgment of the court, with opinion. Justices Knecht and Harris concurred in the judgment and opinion.

OPINION

APPLETON, PRESIDING JUSTICE.

[¶1] Petitioner, June Lee, is the maternal grandmother of S.L., born on October 27, 2004. Respondent, Uriah N. Fosdick, is S.L.'s father. S.L.'s mother, Miranda Richards, is deceased.

[¶2] After Richards died, Lee filed a petition seeking custody and guardianship of S.L. She thereafter amended her petition. We construe her amended petition as a motion for modification of custody, since, between the time she filed her original petition and the time she filed her amended petition, the trial court awarded custody to Fosdick. See 750 ILCS 5/610 (West 2012).

[¶3] Fosdick moved to dismiss the amended petition on the ground that Lee lacked standing. It is unclear whether his motion was pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2012)) or section 2-619(a)(9)

Page 187

(735 ILCS 5/2-619(a)(9) (West 2012)), but in any event our standard of review is de novo ( Water Tower Realty Co. v. Fordham 25 E. Superior, L.L.C., 404 Ill.App.3d 658, 662, 936 N.E.2d 1127, 344 Ill.Dec. 370 (2010); In re Custody of M.C.C., 383 Ill.App.3d 913, 918, 892 N.E.2d 1092, 323 Ill.Dec. 100 (2008)).

[¶4] The trial court granted Fosdick's motion for dismissal as to count I of Lee's amended petition, the count in which she sought custody of S.L. (in the other count, she sought guardianship). While dismissing count I, the court did two additional things. First, the court made a finding pursuant to Illinois Supreme Court Rule 304(a) (eff. Feb. 26, 2010). Second, the court certified the following question for interlocutory review pursuant to Illinois Supreme Court Rule 308(a) (eff. Feb. 26, 2010): " As a matter of law, is the Petitioner [(Lee)] required to re-establish standing in order to modify a custody order where the Court previously found she had standing, ordered temporary custody to her, and granted substantial visitation when permanent custody was awarded to the child's father?"

[¶5] Lee appeals under Rule 304(a). Also, we granted her leave to appeal under Rule 308(a). As we will explain, the correct answer to the certified question is no. Therefore, we reverse the trial court's judgment, and ...


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