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In re Marriage of Milne

Court of Appeals of Illinois, Second District

August 2, 2018

In re MARRIAGE OF JESSICA MILNE, Petitioner-Appellee, and DAVID MILNE, Respondent-Appellant.

          Appeal from the Circuit Court of Lake County. No. 17-D-1179 Honorable Elizabeth M. Rochford, Judge, Presiding.

          JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Presiding Justice Hudson and Justice Birkett concurred in the judgment and opinion.



         ¶ 1 In this interlocutory appeal under Illinois Supreme Court Rule 306(a) (eff. Nov. 1, 2017), respondent David Milne appeals from the trial court's denial of his motion to dismiss petitioner Jessica Milne's petition for dissolution of the parties' marriage. David argues that (1) the trial court erred in determining that Illinois is the parties' children's home state under the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA) (750 ILCS 36/101 et seq. (West 2016)), (2) he was deprived of due process when the court temporarily allocated parental responsibilities to Jessica without notice and an opportunity to be heard, and (3) Jessica's unclean hands precluded a remedy in her favor. We affirm.

         ¶ 2 I. BACKGROUND

         ¶ 3 The parties were married in Lake County on July 3, 2014. David is a Canadian citizen and attended college in the United States under several visas. Jessica, a United States citizen, had a child from a previous marriage (M.N.M., born in July 2009), whom David adopted in July 2014. The parties initially lived in and rented a house in Lake County, and M.N.M. attended preschool there from 2011 through August 2015.

         ¶ 4 In June 2015, Jessica applied for permanent residency in Canada for herself and M.N.M. Also that month, the parties purchased a home in East Gwillimbury (Newmarket), Ontario. In July 2015, in Lake County, the parties had a second child (L.T.M.), who has dual citizenship.[1]

         ¶ 5 In August 2015, the parties relocated to Canada, and David worked as a hockey referee and as an agent for Allstate. Jessica began work as a sales representative for Beauty Counter, and M.N.M. was enrolled in first grade. The parties moved their assets to Canada and opened bank accounts there. In December 2015, Jessica's and M.N.M.'s applications for permanent residency in Canada were approved, and they were granted permanent residency in February 2016. They received Ontario health care cards and social insurance numbers. Also, L.T.M. received an Ontario health care card (as a natural born child of a Canadian citizen).

         ¶ 6 A. 2016 Dissolution Petition and Consent Order

         ¶ 7 On July 31, 2016, the parties and their children traveled from Ontario to Lake Forest, Illinois. They had purchased tickets for all of them to return to Canada on August 14, 2016. However, while in Lake County, Jessica informed David that she and the children would not return to Canada and, on August 22, 2016, she petitioned for dissolution of the parties' marriage (case No. 16-D-1536). David returned to Canada, and, on September 7, 2016, he petitioned in the Northern District of Illinois to return the children to Canada (case No. 1:16-cv-8716).

         ¶ 8 On November 2, 2016, a consent order was entered in the federal case.[2] The parties, who were each represented by counsel, agreed that the children "shall return on a temporary basis to Ontario, Canada" (emphasis added), with the parties within two days before the start of school in January 2017. Both parties "shall accompany the minor children back" to their home in Ontario, and the children shall reside there "until the beginning of July 2018, and the [parties] shall have equal access to the minor children." (Emphasis added.) David agreed to vacate the home, unless Jessica obtained a new residence, and the parties agreed to participate in marriage counseling in Canada, starting in January 2017. Also, the order provided that, "by agreement of the parties, the children's habitual residence is the United States of America." (Emphasis added.) The parties agreed that Jessica could "take reasonable vacations and holidays" to the United States with the children and that, upon the children's return to Canada, Jessica "shall promptly file a notice" in the federal court that the children have returned. Further, "upon the filing of [Jessica's] notice[, ] this matter shall be DISMISSED WITH PREJUDICE," and Jessica will dismiss with prejudice, by November 9, 2016, any claims filed in Lake County. David agreed to dismiss with prejudice by the same date all claims filed in the Superior Court of Justice in Ontario.

         ¶ 9 The consent order further provided that Jessica would support David's application to become a permanent resident of the United States. The parties also agreed that David "shall not have sexual relations with any third parties from the entry of" the order "through the period of the temporary relocation to Canada." (Emphasis added.) If he did have such sexual relations, Jessica "shall be permitted to return to Illinois immediately with the minor children." Finally, the order provided that it was "not a determination of the merits of any custody issues within the meaning of Article 19 of the Hague Convention."

         ¶ 10 Between July 2016 and January 2017, Jessica and the children remained in Lake County, and then they returned to Canada. On November 8, 2016, Jessica's dissolution petition was voluntarily dismissed.

         ¶ 11 B. 2017 Dissolution Petition

         ¶ 12 On July 11, 2017, while Jessica and the children were in Lake County for a two-week vacation (according to David), Jessica petitioned there for dissolution of the marriage. David was served in Canada on July 14, 2017, and Jessica returned to Canada with the children on July 20, 2017.

         ¶ 13 On August 11, 2017, David moved to strike and dismiss the dissolution petition for lack of jurisdiction or forum non conveniens. 735 ILCS 5/2-619(a)(9) (West 2016). He asserted that Illinois was not the children's home state under the UCCJEA and that the court had no personal jurisdiction over him because he had no contact with Illinois except for Jessica's temporary presence in the state. He also asserted that Jessica could not meet the residency requirements of the Illinois Marriage and Dissolution of Marriage Act (Dissolution Act) (750 ILCS 5/101 et seq. (West 2016)). Finally, David asserted that the court should decline to exercise jurisdiction, based on the doctrine of forum non conveniens, because the parties, their children, and their assets were in Canada, not Lake County.

         ¶ 14 On September 18, 2017, David filed an application for dissolution of marriage in Canada, and Jessica was served.

         ¶ 15 On January 9, 2018, the trial court conducted a hearing on the motion to strike and dismiss, consisting solely of the attorneys' arguments, and it took the matter under advisement and set it for ruling on January 30, 2018.

         ¶ 16 On January 12, 2018, Jessica filed in Lake County an emergency motion for temporary jurisdiction and to enforce the November 2, 2016, consent order, permitting her to return to Illinois (due to David's alleged violation of the infidelity provision[3]). Jessica asserted that she reasonably feared that David would seek to have the children returned to Canada and that, if she and the children returned to Canada, David would not allow them to return to Illinois despite the consent order's terms. The trial court entered an accelerated briefing schedule and it accelerated its ruling to January 18, 2018. On January 16, 2018, Jessica also filed in Lake County a verified petition for a temporary restraining order and/or a preliminary injunction, enjoining David from seeking the children's return during the trial court's home-state determination.

         ¶ 17 On January 17, 2018, David filed in Lake County an emergency motion for the immediate return of the children to Canada and for other relief, asserting that Jessica had withheld parenting time and had absconded to Illinois with the children on January 10, 2018. He noted that the parties had lived in Ontario since August 2015 with the exception of five months in 2016 after Jessica filed her first dissolution petition.

         ¶ 18 On January 18, 2018, after a pretrial hearing with counsel (but no evidentiary hearing), the trial court issued its ruling on the pending matters. The court ruled that, based on the totality of the facts and circumstances and considering the consent order, the children's presence in Canada was temporary and their home state under the UCCJEA was Illinois. It specifically found that, although the consent order's habitual-residence provision was not conclusive on the home-state issue, it "cannot be ignored." Habitual residence, the court noted, "goes to establishing a last shared intent of the parties," but it is not the same as the home state. Further, strict physical presence was not the sole consideration for the home-state determination. Rather, the court "must consider whether and to what extent there was a temporary absence," a factual determination. The court found that the consent order "confirmed the [United States] as the children's habitual residence, but also clarified the return to Canada as temporary." The court noted that, "in determining the nature of the absence from Illinois," it placed great weight on the consent order's use of the term "temporary." The court rejected David's argument that the consent order's failure to include language addressing the home state was fatal to Jessica's argument. The court determined that the fact that lack of such language did not limit the court's ability to consider the language that was included in the consent order. "This Court rejects the argument that these minor children have lost their roots in Illinois, established their identity in Canada[, ] and that a return to Illinois would be damaging and not in their best interests because there is no evidence to support it." It further found that it had personal jurisdiction over David on the bases that he engaged in conduct that resulted in the conception of a child in Illinois and that he entered into a contract (i.e., the consent order) in Illinois.

         ¶ 19 In its written order, the court first denied David's motion to strike and dismiss Jessica's dissolution petition, finding that Illinois had asserted jurisdiction pursuant to the UCCJEA and that the court had personal jurisdiction over David. Second, the court ordered that M.N.M. be immediately enrolled in school in Lake County and that David be entitled to parenting time there every other weekend. It also ordered Jessica to transport the children to Canada during all three-day United States holiday weekends and that David have the weekend immediately following the end of the school year, the first week immediately thereafter, and the week of spring break. It also ordered that each party may Skype or FaceTime with the children while they are in the other's care, every day by 8 p.m. for up to 20 minutes. Third, the ...

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