In re Marriage of Walker

                                        FOURTH DIVISION
                                        MARCH 27, 1997           
                         






1--95--3282
In re MARRIAGE OF                 )  Appeal from the Circuit
                                  )  Court of Cook County
JOSEPH M. WALKER,                 )
                                  )
     Petitioner-Appellant,        )
                                  )   
               and                )  No. 90 D 581
                                  )
JEANNE M. WALKER,                 ) 
                                  )  Honorable Richard 
     Respondent-Appellee.         )  Kelly, Judge 
                                  )  Presiding.
     
     
     JUSTICE CERDA delivered the opinion of the court:           
     Petitioner, Joseph M. Walker, appeals from the order of the
circuit court of Cook County granting the motion of respondent,
Jeanne M. Walker, for Illinois to concede jurisdiction over the
child-custody proceeding to Minnesota.  We affirm.
      The parties were married on September 29, 1979, and their
child, Joseph, was born on October 23, 1986.  On January 16,
1990, petitioner filed a petition for dissolution of his
marriage.  On August 22, 1991, a judgment of dissolution of
marriage was entered, incorporating a marital settlement
agreement.  The parties were awarded joint legal and physical
custody of the child, who would reside 50% of the time with each
parent.  Beginning in September 1992, the child was to reside
with petitioner each summer.  The child was also to reside with
petitioner during Easter and alternating Christmas vacations. 
Respondent was given the right to move with the child to
Minnesota.
     Paragraph 2.11 of the settlement agreement stated in part:
     "Parties further agree that upon the minor child attaining
     the age of twelve (12) he shall have a right to express a
     preference in determining which parent he would desire to
     reside with ***.  In the event the parties are unable to
     reach an accord, nothing in this paragraph shall prohibit a
     party from filing a Petition for Modification of Residence
     or Visitation, all in accordance with Chap. 40, Ill. Rev.
     Stat."  (Emphasis added.)
Paragraph 2.17 stated:
     "In the event the parties are unable to agree to the
     specifics necessary to carry out the intentions of Article
     II [captioned 'Child Custody and Visitations'] of this
     Agreement, any dispute shall be submitted to a court of
     competent jurisdiction upon proper notice, petition and
     hearing for determination."  (Emphasis added.)
Paragraph 14.5(G) stated:
          "This Agreement shall be construed under the general
     laws of the State of Illinois, irrespective of the later
     domicile or residence of the HUSBAND or the WIFE."  
     (Emphasis added.)
     On December 29, 1994, petitioner filed a petition seeking to
become the primary residential custodial parent.  Petitioner
alleged that there had been substantial changes of circumstances
that caused the child's primary living environment to jeopardize
his well being.  Petitioner alleged that the child had behavioral
problems and challenged the respondent's parenting.  
     Petitioner also filed a motion for a Supreme Court Rule
215(a) mental examination of the child by Dr. Robert E. Bussell,
a psychiatrist in Illinois.  134 Ill. 2d R. 215(a).  Petitioner
argued that he believed that the child was currently under
psychotherapeutic care and that a psychiatric evaluation would
determine the fitness of both parents and the mental and
emotional state of the child.  On May 10, 1995, the trial court
ordered that respondent and the child meet with Dr. Bussell so
that he could prepare a custody evaluation.  
     On April 17, 1995, respondent filed a motion for the court
to concede jurisdiction of the custody proceeding to a Minnesota
court.  Respondent argued that Illinois was an inconvenient forum
and that Minnesota was a more appropriate forum.  
     At the June 1995 hearing on respondent's motion, petitioner
testified that from September 1991 until the fall of 1992, when
the child started school, the child spent 6 out of 11 months with
him.  There were substantial periods of time that the child was
in a day-care center.  There were two teachers from the day-care
center who could testify about the child.  Petitioner's present
wife was involved with various activities.  The child had friends
in the neighborhood, and the parents of the friends had observed
petitioner with the child.  The child's cousin lived a few miles
away.  Petitioner had an adult daughter and son in Wisconsin who
saw the child when they visited.  The child had seen the court-
appointed psychiatrist twice, and the third visit was scheduled
soon.  Petitioner had seen the psychiatrist at least six times. 
His present wife had a townhome in Minnesota, and he went there
every two or three months.  The child also had visited there.  
     Respondent testified at the hearing that she was born in
Minnesota and that she resided in Minnesota her entire life prior
to her marriage.  She did not reside in Minnesota from March 1988
to September 1991.  The child lived in Minnesota from 1986 until
March 1988 and moved back to Minnesota with her in the fall of
1991.  In the past year, the child spent the two-week Christmas
holiday, the one-week Easter holiday, and the summer vacation
with petitioner in Illinois.  
     The child was diagnosed with attention deficit hyperactive
disorder (ADHD) and with developmental delays.  Respondent
intended to call to testify each of the 25 witnesses referenced
in her motion to concede jurisdiction.  She testified about the
contacts and knowledge of the following potential witnesses, who
were located in Minnesota: the director of the day-care center
where the child attended from 1991 until 1994; the assistant
director at that day-care center; the principal of the child's
kindergarten school, who worked with respondent on the child's
ADHD; the child's kindergarten teacher; the principal of the
elementary school where the child attended first grade and with
whom respondent had had several consultations concerning the
child's behavior; a social worker at the elementary school, who
met for a period during first grade with the child once a week or
once every other week; the child's first-grade teacher; the
principal of the child's second-grade school, with whom
respondent discussed the child's ADHD and who headed up a task
force of professionals at the school to help the child's
developmental delays; the social worker when the child was in
second grade; the child's psychologist, who had been treating the
child since the fall of 1994; a tutor who began working with the
child in February 1995 and assessed the child's developmental
delays; the child's pediatrician; respondent's father, who saw
the child at least every other week; respondent's mother;
respondent's grandmother; respondent's five brothers and sisters
and their spouses; the child's cousins; respondent's fianc; the
assistant director at the day-care center from 1991 to 1993 who
babysat the child twice in 1995 for one-week periods; and
teachers at a YMCA before-and-after-school program that the child
attended in 1994 and 1995.
     On July 18, 1995, the court granted the motion to concede
jurisdiction, finding the following.  The Minnesota evidence was
far more significant than the Illinois evidence in the case.  The
case could not be decided properly without extensive Minnesota
evidence.  Aside from the agreement of the parties that Illinois
would be the forum state, and aside from the application of In re
Marriage of Hilliard, 178 Ill. App. 3d 620, 533 N.E.2d 543
(1989), the agreement of the parties on the forum should not be
allowed to govern the choice of forum in a custody contest when
the court is significantly handicapped in making the proper
decision and in determining the best interest of the child.
     Petitioner filed a notice of appeal.

                                 ANALYSIS
     Respondent has moved to dismiss the appeal because
petitioner failed in his appellate brief to provide a
jurisdictional statement, a table of contents to the record that
contained dates of filing or entry, and a complete record.  We
deny the motion because we are able to decide the issues
presented.  See Luttrell v. Panozzo, 252 Ill. App. 3d 597, 600,
625 N.E.2d 695 (1993) (failure to provide a jurisdictional
statement is not fatal because not a necessary component of
jurisdiction); Dubey v. Abam Building Corp., 266 Ill. App. 3d 44,
46, 639 N.E.2d 215 (1994) (incomplete record does not preclude
reviewing court from determining whether trial court's findings
or rulings are correct where that determination can be made from
incomplete record presented).  
     Petitioner argues on appeal that the trial court erred in
conceding jurisdiction because the parties had agreed in their
marital settlement agreement that post-decree proceedings would
be filed in Illinois.  Petitioner relies on (1) the provision
that permitted the parties to file petitions to modify residency
or visitation in accordance with the Illinois Marriage and
Dissolution of Marriage Act (750 ILCS 5/101 et seq. (West 1994));
and (2) the provision that the agreement would be construed under
Illinois law.  
     A forum-selection clause is prima facie valid and should be
enforced unless enforcement would contravene a strong policy of
the state.  English Co. v. Northwest Envirocon, Inc., 278 Ill.
App. 3d 406, 410, 663 N.E.2d 448 (1996).  Good policy dictates
that true forum-selection clauses should be clear and specific. 
Whirlpool Corp. v. Certain Underwriters at Lloyd's London, 278
Ill. App. 3d 175, 180, 662 N.E.2d 467 (1996).  A choice-of-law
provision is distinct from a forum-selection provision.  Maher & 
Associates, Inc. v. Quality Cabinets, 267 Ill. App. 3d 69, 76,
640 N.E.2d 1000 (1994).  
     We find that neither of the provisions relied upon by
petitioner constitutes a forum-selection clause.  The agreement
did not state that the parties would file all post-decree
proceedings in Illinois only.  The trial court erred in finding
that the parties made an agreement as to choice of forum.  The
provision that the agreement would be construed under Illinois
law was rather a choice-of-law provision.  The provision
referencing the Illinois Marriage and Dissolution of Marriage Act
did not prohibit one of the parties from requesting that the
court concede jurisdiction.  See Whirlpool, 278 Ill. App. 3d at
180 (fact that provision required party to accept Illinois law as
the law of the case did not mean the party was foreclosed from
claiming the forum was inconvenient).  Paragraph 2.17
contemplated that custody proceedings might be conducted in
another state, and it is noted in the judgment that the
respondent was permitted to move to another state. 
     Petitioner next argues that the trial court abused its
discretion in conceding jurisdiction because the trial court had
appointed an expert in Illinois to perform a psychiatric
evaluation of the parties' child, because Illinois-resident
petitioner had joint custody, and because there was substantial
evidence in Illinois.  
     Section 8(a) of the Uniform Child Custody Jurisdiction Act
provides:
          "A court which has jurisdiction under this Act to make
     an initial or modification judgment may decline to exercise
     its jurisdiction any time before making a judgment if it
     finds that it is an inconvenient forum to make a custody
     determination under the circumstances of the case and that a
     court of another state is a more appropriate forum."  750
     ILCS 35/8(a) (West 1994).
Section 8(c) of the same act provides factors for the trial court
to consider in determining if another state should assume
jurisdiction:
          "1.  if another state is or recently was the child's
     home state;
          2.  if another state has a closer connection with the
     child and his family or with the child and one or more of
     the contestants;
          3.  if substantial evidence concerning the child's
     present or future care, protection, training, and personal
     relationships is more readily available in another state;
          4.  if the parties have agreed on another forum which 
     is no less appropriate; and 
          5.  if the exercise of jurisdiction by a court of this
     State would contravene any of the purposes stated in Section
     2 of this Act."  750 ILCS 35/8(c) (West 1994).
"Home state" is defined in the Act to mean:
          "the state in which the child immediately preceding the
     time involved lived with his parents, a parent, or a person
     acting as parent, for at least 6 consecutive months, and in
     the case of a child less than 6 months old the state in
     which the child lived from birth with any of the persons
     mentioned, however, periods of temporary absence of any of
     the named persons are counted as part of the 6-month or
     other period."  750 ILCS 35/3.04 (West 1994).  
     The standard of review where a court has conceded
jurisdiction is abuse of discretion.  In re Marriage of Doehner,
215 Ill. App. 3d 570, 572, 574 N.E.2d 1380 (1991).  
     We do not find that the trial court abused its discretion in
conceding jurisdiction to Minnesota.  Although the parties had
joint custody of the child and petitioner lived in Illinois,
Minnesota was the child's home state, Minnesota had a closer
connection with the child and with respondent than did Illinois,
and there was substantial evidence in Minnesota.  Although
respondent had litigated in Illinois some post-decree motions,
Minnesota was a more appropriate forum to litigate a change in
child custody.  The bases argued in petitioner's motion to change
custody related to the behavior of the child or of respondent. 
Although the child lived part of the time with petitioner, there
was greater evidence concerning the child's behavioral problem in
Minnesota, where he attended school, than in Illinois.  The most
substantial witness that petitioner has is himself, and he can
testify in a Minnesota proceeding concerning the child's future
care.  Another expert could be appointed by a Minnesota court to
examine the child, or Dr. Robert E. Bussell may be allowed to
complete his examinations and render a written report.  
     The judgment of the trial court is affirmed.
     Affirmed.
     WOLFSON, P.J., and McNAMARA, J., concur.