Opinion
4-23-1578
05-21-2024
ELIJAH M., Petitioner-Appellee, v. HANNAH M., Respondent-Appellant.
This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Knox County No. 23FA27 Honorable Curtis S. Lane, Judge Presiding.
LANNERD JUSTICE delivered the judgment of the court. Presiding Justice Cavanagh and Justice Zenoff concurred in the judgment.
ORDER
LANNERD JUSTICE
¶ 1 Held: The trial court did not err as a matter of law when it denied respondent's motion to dismiss for lack of jurisdiction, and its decision to deny respondent a right of first refusal was not against the manifest weight of the evidence.
¶ 2 Petitioner, Elijah M., filed a petition for allocation of parenting time and parenting decisions with respect to E.M. (born December 2022), a child he shares with respondent, Hannah M. Following a bench trial, the trial court awarded the parties equal parenting time and declined to grant a right of first refusal. Respondent appeals. We affirm.
¶ 3 I. BACKGROUND
¶ 4 On May 5, 2023, petitioner filed a petition for allocation of parenting time and parenting decisions. Petitioner stated he was married to respondent, and they had one child, E.M. On December 26, 2022, respondent left the marital residence in Knoxville, Illinois, to reside in Peoria, Illinois. Petitioner claimed respondent allowed him limited contact with E.M. and unreasonably controlled his access to E.M. Petitioner also stated he and respondent were undergoing marital counseling and he did not want to file for divorce.
¶ 5 A. Motion to Dismiss
¶ 6 On June 2, 2023, respondent filed, inter alia, a pro se combined motion to dismiss (735 ILCS 5/2-619.1 (West 2022)). The motion provided, pursuant to sections 2-615 and 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615, 2-619 (West 2022)):
"Respondent moves to dismiss the petition because the statute states that a proceeding for allocation of parenting responsibilities must be filed in the County, in which the child resides. 750 ILCS 5/601.2(b)(2) [(West 2022)]. This is jurisdictional and the Court must immediately dismiss. The child has not resided in Knox County since December 26, 2022."
¶ 7 On June 12, 2023, petitioner filed a response to respondent's motion. He argued there has been no determination about E.M.'s permanent residence as it was currently at issue. He argued, in the event the trial court found it lacked jurisdiction, the appropriate action would be to transfer the case rather than dismiss it (735 ILCS 5/2-619(a)(1) (West 2022)).
¶ 8 On June 27, 2023, respondent filed a reply, wherein she reasserted the arguments in her motion and emphasized this was a matter of jurisdiction and not venue. She argued the trial court did not have the authority to transfer the case, it was clear E.M. resided in Peoria County, the case must be commenced in Peoria County, and the court must dismiss the case.
¶ 9 On June 30, 2023, the trial court held a hearing on respondent's combined motion to dismiss. Petitioner was represented by counsel and respondent appeared pro se. Following arguments, the court denied respondent's motion. The court found a child can have multiple residences and the case was properly in Knox County. The court advised respondent she could request to transfer the case to Peoria County, but her motion to dismiss was not proper.
¶ 10 On July 12, 2023, respondent filed a petition for leave to appeal before this court (appellate court case No. 4-23-0615) pursuant to "[Illinois Supreme Court Rule] 306(a)(5) [(eff. Oct. 1, 2020)] and/or [Illinois Supreme Court Rule] 306(a)(4) [(eff. Mar. 8, 2016)]" (eff. Oct. 1, 2020). We denied the petition.
¶ 11 B. Parenting Time and Right of First Refusal
¶ 12 On August 23, 2023, the trial court entered an order for temporary relief. At this time, respondent was represented by counsel. The order provided respondent with the majority of parenting time and granted petitioner parenting time on Tuesday evenings, alternating Wednesday evenings, and alternating weekends with overnights. The parties were referred to mediation and reached an agreement as to most issues but requested a trial as to a parenting time schedule and a right of first refusal. Petitioner requested an equal parenting time schedule where E.M. would be allowed to attend day care during his parenting time while he was at work. He also requested a right of first refusal if either party was going to be absent for an overnight period. Respondent requested (1) to be designated as the parent with the majority of parent time, consistent with the order for temporary relief, and (2) a right of first refusal to have E.M. when petitioner was unavailable to care for E.M. during his parenting time.
¶ 13 On December 4, 2023, the trial court conducted a bench trial where petitioner and respondent testified. Petitioner testified he was 25 years old and lived in Knoxville. He worked for a landfill near Wataga, Illinois, and it took him approximately 15 to 20 minutes to get to work. He worked Monday through Friday from 7:45 a.m. to 4:15 p.m. Per the temporary order, petitioner met respondent in Brimfield, Illinois, to exchange E.M., which was about 20 to 25 minutes away from his home and 40 minutes from his work. If the court granted him parenting time during the day, he would arrange for E.M. to be at an at-home day care operated by someone he knew well and trusted to watch E.M. The day care was located in Galesburg, Illinois, and on his way to work in the morning.
¶ 14 Petitioner testified he received various time-off benefits at work and intended to use them to be with E.M. as needed. Otherwise, his parents were able to help. Petitioner stated respondent worked during their marriage and she had a child from a previous relationship, A.S., who was around five years old. When the parties lived together, respondent worked in East Peoria, Illinois, and petitioner would typically take A.S. to day care and preschool on his way to work and pick him up after work.
¶ 15 On cross-examination, respondent's counsel asked petitioner if he thought it would be better for E.M. to be with a day-care provider or with her parents. Petitioner stated he believed it would be better for E.M. to be with her parents, depending on the situation. Respondent's counsel then asked if petitioner was aware respondent currently worked as a day-care provider, which would allow respondent to be with E.M. during the day. Petitioner stated he understood the situation, but maintained it would present a timing issue because transporting E.M. to respondent on these days would cut into his time with E.M.
¶ 16 Respondent testified she was 25 years old and lived with her parents in Peoria. She worked as a nanny throughout the week, from around 7:30 a.m. to 4:30 p.m. Her work was approximately eight minutes from her home. She watched four children and could take E.M. to work with her. She took A.S. with her when he was out of school. She did not have any objections to petitioner having E.M. but disagreed with his plan to take E.M. to a day care. She stated studies supported the importance of consistency and the role of parents in a child's life. However, she approved of an at-home day care rather than a traditional day care setting. In reference to exchanging E.M. in the morning before work, respondent explained:
"I've generically thought about it because he suggested it previously in the past, and I just thought that it wasn't reasonable because I think that it causes everybody, including two children, to wake up at 4:00 a.m. And I think that it would also-you know, I have to get kids out the door for the bus. He'd have to get up, get [E.M.] ready enough, get her in the car, drive her 30 minutes. Then I've got to put her- take her out of a car, put her in another car, drive for another 30 minutes, be back to get my son on the bus, and then [E.M.'s] cranky. We're probably-nobody's eaten breakfast, and then I need to get to work; he's got to return to work. If one of us messes up at all or if we sleep through the alarm, then it's the other person's issue. So if he arrives at work late at 8:00 o'clock, I think that that's an issue. Just like I have people relying on me to get to work when I said that I would get to work. So I think that in terms of being practical, it doesn't make much practical sense. I would wake up at 4:00 a.m., however, though, if it meant that she didn't have to spend nine hours at a day care."
¶ 17 Next, the trial court heard closing arguments. Petitioner noted respondent moved from the established marital residence in Knoxville to Peoria, the parties previously utilized day care with respect to A.S., and petitioner should be able to utilize day care with E.M. to see her more. He argued petitioner's objection to day care was her attempt to try and control the situation and not let him have this additional time. Respondent disagreed and contended it made more sense for a one-year-old child to be with a parent rather than in day care. She previously placed A.S. in day care because it was necessary, but it was no longer necessary with her current employment. She asked the court to continue the order, make the temporary schedule as a permanent schedule, and place a right of first refusal if a parent was unavailable for four to six hours.
¶ 18 The trial court considered the evidence as applied to each of the best interests factors. It noted the evidence showed the parties both loved E.M., wanted to be with E.M., and wanted to provide E.M. with the best life. The court found: (1) the parties previously utilized day care with respect to A.S. where petitioner, as A.S.'s stepfather, was picking up and dropping him off for day care and the same principles should apply to E.M., (2) respondent's convenience of keeping the schedule under the temporary order was outweighed by the interest both parents had in spending equal time with E.M., (3) an equal parenting time plan allowed both sides of E.M.'s family to have visitation, and (4) there was no evidence either parent was doing anything wrong. Therefore, the court found equal parenting time was warranted, including equal daytime parenting time. The court ordered a schedule providing for alternating weeks, with equal time during the day, night, and weekends. The court declined a right of first refusal, explaining:
"The right of first refusal is another story, though. I-the mother-I don't think I could have put it better that depending on the time or what the schedule is, I don't believe they have the ability to drop what they're doing, make arrangements at 3:00 or 4:00 in the morning, get the children up to do a right of first refusal. The Court will not grant a right of first refusal for either party's proposal as both of you requested it. I do not find that to be in the child's best interests especially with the age and again you don't live in the same cities."
¶ 19 This appeal followed.
¶ 20 II. ANALYSIS
¶ 21 On appeal, respondent appears pro se and argues (1) the trial court did not have jurisdiction over the case, and, in the alternative, (2) the court's denial of a right of first refusal was against the manifest weight of the evidence. Petitioner contends the court's rulings were proper based on the plain language of the applicable statute and the facts of the case.
¶ 22 A. Motion to Dismiss
¶ 23 Respondent filed a combined motion to dismiss pursuant to section 2-619.1 of the Code (735 ILCS 5/2-619.1 (West 2022)). A combined motion to dismiss allows a movant to raise claims under section 2-615 (735 ILCS 5/2-615 (West 2022)) to test the legal sufficiency of the complaint and section 2-619 (735 ILCS 5/2-619 (West 2022)) to assert defenses or defects. Patrick Engineering, Inc. v. City of Naperville, 2012 IL 113148, ¶ 31. A combined motion "(1) must be in parts, (2) must 'be limited to and shall specify that it is made under' either section 2-615 or 2-619, and (3) must 'clearly show the points or grounds relied upon under the [s]ection upon which it is based.'" (Emphases in original.) Howle v. Aqua Illinois, Inc., 2012 IL App (4th) 120207, ¶ 73. Accordingly, a combined motion to dismiss must be carefully drafted to avoid commingling claims or creating unnecessary complications and confusion. Reynolds v. Jimmy John's Enterprises, LLC, 2013 IL App (4th) 120139, ¶ 21.
¶ 24 Here, respondent's combined motion was brought pursuant to sections 2-615 and 2-619, generally. Respondent failed to separate her motion in parts and specify the points or grounds relied on. Therefore, her motion failed to comply with section 2-619.1. See Howle, 2012 IL App (4th) 120207, ¶ 73. Although respondent appeared pro se at this stage in the proceedings, a pro se litigant is presumed to have full knowledge of the applicable court rules and procedures and must comply with them. Steinbrecher v. Steinbrecher, 197 Ill.2d 514, 528 (2001). Regardless of this defect, we may consider the merits of respondent's improper motion as if it had been brought pursuant to the proper section, so long as petitioner was not prejudiced by the error. See Mareskas-Palcek v. Schwartz, Wolf &Bernstein, LLP, 2017 IL App (1st) 162746, ¶ 22.
¶ 25 Respondent's motion stated she moved to dismiss the petition because the trial court lacked jurisdiction. Based on the substance of respondent's argument and the court's ruling on the motion, this claim was brought pursuant to section 2-619(1), which contends "[t]hat the court does not have jurisdiction of the subject matter of the action, provided the defect cannot be removed by a transfer of the case to a court having jurisdiction." 735 ILCS 5/2-619(1) (West 2022). We find petitioner suffers no prejudice with this interpretation, as he relied on section 2-619(1) in his reply to respondent's combined motion to dismiss when he asked the court to transfer the case if it found it lacked jurisdiction. We review a court's denial of a motion to dismiss pursuant to section 2-619(1) de novo. R.L. Vollintine Construction, Inc. v. Illinois Capital Development Board, 2014 IL App (4th) 130824, ¶ 23.
¶ 26 Respondent asserts the trial court lacked jurisdiction because the statute pertaining to the commencement of proceedings for the allocation of parental responsibilities provides the proceeding is initiated "by filing a petition for allocation of parental responsibilities with respect to the child in the county in which the child resides." 750 ILCS 5/601.2(b)(2) (West 2022). The parties address this issue extensively in their briefs, arguing this is a matter of statutory interpretation and the meaning of the word "resides." However, we decline to undergo this analysis because we find respondent's motion to dismiss was properly denied for a more obvious reason, supported by the record and respondent's own admissions. See Northwestern Illinois Area Agency on Aging v. Basta, 2022 IL App (2d) 210234, ¶ 33 ("[W]e may affirm the trial court's judgment on any basis in the record, regardless of the court's reasoning.").
¶ 27 We emphasize a section 2-619(1) motion contends "[t]hat the court does not have jurisdiction of the subject matter of the action,provided the defect cannot be removed by a transfer of the case to a court having jurisdiction." (Emphasis added.) 735 ILCS 5/2-619(1) (West 2022). Respondent argued in the trial court, as she does before this court, the court did not have jurisdiction over this case, and it must be heard in Peoria County, where E.M. resides. Even assuming, arguendo, the circuit court of Knox County did not have jurisdiction, respondent admits the case could be heard before the circuit court of Peoria County. Therefore, the alleged jurisdictional defect could be cured by a transfer of the case to a court alleged to have jurisdiction. The court informed respondent procedures existed for a transfer (see, e.g., In re A.S., 394 Ill.App.3d 204 (2009) (addressing a motion to transfer where the parties disputed the proper county in Illinois to bring the custody action)), but she insisted the case be dismissed. The plain language of section 2-619(1) and respondent's admissions defeat her motion to dismiss for lack of jurisdiction. Thus, the court did not err as a matter of law when it denied her motion.
¶ 28 We note, in respondent's petition for leave to appeal (appellate court case No. 4-23-0615), she cited Rule 306(a)(4) as a basis for her appeal. The rule provides a party may appeal from an order of the trial court "granting or denying a motion for a transfer of venue based on the assertion that the defendant is not a resident of the county in which the action was commenced, and no other legitimate basis for venue in that county has been offered by the plaintiff." Ill. S.Ct. R. 306(a)(4) (eff. Oct. 1, 2020). Respondent maintained an inconsistent position throughout her case when she claimed the issue presented was one of jurisdiction, not venue, yet the basis for her initial appeal was for the denial of her motion for a transfer of venue. We clarify respondent did not file a motion for transfer of venue in this case, presents no venue arguments on appeal, and stresses in her reply brief this "is not a venue case."
¶ 29 B. Right of First Refusal
¶ 30 If the trial court awards parenting time to both parents, the court may consider, consistent with the child's best interests, whether to award a parent the right of first refusal to provide child care for the child during the other parent's parenting time. 750 ILCS 5/602.3(a) (West 2022). A right of first refusal means "if a party intends to leave the minor child or children with a substitute child-care provider for a significant period of time, that party must first offer the other party an opportunity to personally care for the minor child or children." 750 ILCS 5/602.3(b) (West 2022). A trial court's determination as to the best interests of the child, and whether to grant a right of first refusal, will only be reversed if they are contrary to the manifest weight of the evidence. In re Marriage of Whitehead, 2018 IL App (5th) 170380, ¶ 40. A decision is against the manifest weight of the evidence where the opposite conclusion is clearly apparent. In re D.D., 2022 IL App (4th) 220257, ¶ 28.
¶ 31 At the outset, respondent calls the trial court's best-interests determination into question because she believes the court treated her unfairly when handling the service of process and jurisdiction issues she presented. Specifically, she states the court "ignored the law, showed no interest in ascertaining the law, thought [it] knew the law, and decided what [it] wanted to do for reasons unrelated to the law, and then came up with a plausible enough sounding basis for a ruling to do what [it] wanted to do." We find this argument unpersuasive. We note respondent did not appeal the court's determination on the service-of-process issue. Accordingly, it is not properly before this court for consideration. We also already found the court correctly denied her combined motion to dismiss on jurisdictional grounds. More importantly, this court reviews the determination of the trial court, not its reasoning, and we may affirm for any basis in the record, regardless of whether the trial court relied on that basis or if its reasoning was correct. Vantage Hospitality Group, Inc. v. Q Ill. Development, LLC, 2016 IL App (4th) 160271, ¶ 54.
¶ 32 Respondent argues the trial court's denial of a right of first refusal was against the manifest weight of the evidence because it was based on its view equal parenting time was more important than spending time with parents when available. We disagree with this interpretation. The court declined to grant a right of first refusal based on respondent's testimony and E.M.'s age. Respondent testified as to her morning routine with two young children and explained how a morning exchange with petitioner "doesn't make much practical sense" and would cause complications with their sleep schedule, placing A.S. on the bus, breakfast, and the parties arriving to work on time. E.M. was almost one year old at the time of the hearing.
¶ 33 Respondent also points to petitioner's testimony where he "agree[d] that having E.M. with a parent is better than with an independent day care provider." This argument misconstrues petitioner's testimony. Petitioner stated it would be better for E.M. to be with her parents, depending on the situation. Petitioner explained placing E.M. in respondent's care during his parenting time while he was at work would decrease his overall time with E.M.
¶ 34 After careful consideration, we cannot conclude the trial court's determination was against the manifest weight of the evidence. Respondent failed to cite any legal authority, and our research reveals none, to support her position a court's decision to deny a right of first refusal is against the manifest weight of the evidence when a parent utilizes day care during their parenting time when the other parent is able and willing to care for the child. The evidence showed petitioner planned for E.M. to attend day care during his parenting time while he worked. Based on the equal parenting time schedule, this would amount to five days during a two-week period. The day care operated out of the home of a person he knew and trusted. There was no evidence presented indicating petitioner's proposed day care was unsuitable. The parties were previously comfortable with utilizing day care, as evinced by A.S. attending day care when the parties resided together, and petitioner primarily brought A.S. to day care and picked A.S. up after work. Despite the difficulty of a morning exchange, respondent testified she would still be willing to get E.M. in the mornings to prevent her from going to day care. This would be at a great expense to everyone else involved considering the distance between the parties, ages of the children involved, and work schedules. It would also interfere with petitioner's parenting time, and respondent does not disagree with the court's award of equal parenting time. We find the record demonstrates the court properly considered the statutory best interests factors and evidence when reaching its decision to deny respondent a right of first refusal. Thus, an opposite conclusion is not clearly apparent, and we cannot say the court's decision to deny a right of first refusal was against the manifest weight of the evidence.
¶ 35 III. CONCLUSION
¶ 36 For the reasons stated, we affirm the trial court's judgment.
¶ 37 Affirmed.