In re Parentage of M.M.W.

No. 2--97--0612
_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
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In re PARENTAGE OF M.M.W., a ) Appeal from the Circuit Court
Minor ) of McHenry County.
)
) No. 93--FA--217
)
(Marci Marie Webber, )
Petitioner-Appellant, v. ) Honorable
Robert Leslie Thompson, ) Haskell M. Pitluck,
Respondent-Appellee). ) Judge, Presiding.
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JUSTICE THOMAS delivered the opinion of the court:

The petitioner, Marci Marie Webber, appeals from various
orders of the circuit court of McHenry County that (1) denied her
petition to terminate the parental rights of the respondent, Robert
Leslie Thompson, to the parties' minor daughter, M.M.W., and allow
the adoption of the child by the petitioner's husband, Linus
Liubinskas; (2) transferred temporary custody of the child to the
respondent; and (3) transferred permanent custody of the child to
the respondent. We affirm in part and reverse in part.
The record shows that on June 9, 1993, the petitioner filed a
petition to declare the respondent the father of her child, M.M.W.,
who was born on August 21, 1992. The parties were never married.
The petition also sought to terminate the respondent's parental
rights alleging, inter alia, that the respondent was an unfit
person as shown by his failure to make a good faith effort to pay
a reasonable amount of the expenses related to the birth of the
child pursuant to sections 1(D)(n) and 8(a)(1) of the Adoption Act
(750 ILCS 50/1(D)(n), 8(a)(1) (West 1996)).
On March 17, 1994, the trial court entered an order granting
the respondent temporary visitation. On April 28, 1994, the court
established a support obligation on the part of the respondent and
enjoined the petitioner from removing the child from the state of
Illinois without an order from the court. On January 11, 1995, the
trial court entered an order establishing the respondent's
paternity. On March 20, 1995, the petitioner filed an amended
petition to allow her husband to adopt M.M.W. On April 12, 1995,
the trial court dismissed the petitioner's petition to adopt. The
cause remained before the court on a petition to increase child
support brought by the petitioner, an attorney fees petition
requesting sanctions pursuant to Supreme Court Rule 137 (155 Ill.
2d R. 137) brought by the respondent, and various rules to show
cause brought by the respondent in relation to the petitioner's
lack of compliance with the court's visitation order. On May 30,
1995, the trial court held the petitioner in contempt of court for
violations of visitation occurring in October and November 1994.
Sometime after the trial court dismissed the petitioner's
petition to adopt, she moved to the state of Ohio. On July 24,
1995, she filed an action in Ohio under the Uniform Child Custody
Jurisdiction Act (750 ILCS 35/1 et seq. (West 1996)), alleging that
M.M.W. had indicated that the respondent had sexually abused her.
On July 25, 1995, the Ohio court entered an order suspending the
respondent's visitation. As part of the Ohio action, the
petitioner falsely filed an affidavit indicating that she had been
a resident of the state of Ohio for the six months preceding the
filing of the action. On that same day, the respondent filed a
petition in the circuit court of McHenry County to transfer
custody, alleging that custody should be modified because the
petitioner had interfered with his visitation rights and removed
herself and the minor child from the jurisdiction without proper
leave of court.
On July 26, 1995, the trial court found that the petitioner
had willfully and contemptuously taken the child to the state of
Ohio. Without conducting an evidentiary hearing, the court
transferred temporary custody of the child to the respondent. On
July 27, 1995, the Ohio court vacated its prior order and
recognized that the McHenry County court had jurisdiction over the
matter.
On September 3, 1996, the McHenry County trial court entered
an order transferring permanent custody to the respondent. The
court continued the case for a hearing on the issues of visitation
and support. In reaching its decision to permanently transfer
custody to the respondent, the court found that section 602 of the
Illinois Marriage and Dissolution of Marriage Act (the Marriage
Act) (750 ILCS 5/602 (West 1996)) was the appropriate standard to
apply in considering the petition to transfer custody rather than
the standard enunciated in section 610 of the Marriage Act (750
ILCS 5/610 (West 1996)), which applies to petitions to modify
custody orders within two years of a prior custody order. The
court found that the petitioner was unwilling to facilitate a
continuing relationship between the minor and the father as shown
by the numerous rules to show cause filed in the case for
violations of prior visitation orders and her temporary move to the
state of Ohio.
On November 25, 1996, the trial court entered an order setting
a visitation schedule. On April 15, 1996, the court set the
petitioner's support obligation and continued the case to May 12,
1997, for a ruling on the respondent's motion for sanctions.
The petitioner had filed three petitions for rules to show
cause against the respondent for his violation of the court's
visitation order. On May 12, 1997, the court found the respondent
in contempt of court on the first petition for rule to show cause
and then dismissed the other two petitions. The court further
discharged the contempt order that had been entered against the
petitioner and dismissed the petitions for rule to show cause that
had been filed against her. On that same day, the trial court also
entered an order granting the respondent's petition for sanctions
pursuant to Supreme Court Rule 137, and it ordered the petitioner
to pay $8,371 in attorney fees. The order provided that it was a
final order in the case but did not contain Supreme Court Rule
304(a)'s language that there is no just reason for delaying
enforcement or appeal (155 Ill. 2d R. 304(a)).
As a preliminary matter, we must address the respondent's
contention that this court lacks jurisdiction to entertain the
petitioner's appeal because the order from which she appeals, that
of May 12, 1997, was not final.
An appellate court's jurisdiction is confined to reviewing
appeals from final orders or judgments (155 Ill. 2d Rs. 301, 303,
304), unless the particular order or judgment falls into an
enumerated category permitting interlocutory appeals. See 155 Ill.
2d Rs. 307, 308. A final order disposes of the rights of the
parties, either upon the entire controversy or upon some definite
and separate part thereof. See Village of Niles v. Szczesny, 13 Ill. 2d 45, 48 (1958). In a paternity action, once parentage is
established and custody, visitation, and support are determined,
ancillary or incidental issues reserved for future consideration
such as the enforcement of a support order or an increase in the
amount of support do not render a final judgment nonfinal. See
Franson v. Micelli, 172 Ill. 2d 352, 356 (1996).
Here, when the trial court entered its May 12, 1997, order,
the rights of the parties with respect to the matters raised in the
petitioner's petition to establish parentage and adopt and the
respondent's petition to transfer custody had been disposed of by
previous orders of the court. The trial court established
parentage, transferred custody to the respondent, set a support
obligation and a visitation schedule, and then finally ruled on the
respondent's motion for Rule 137 sanctions. The court's May 12,
1997, order ruling on the respondent's motion for sanctions was the
final order in the case. See Gaynor v. Walsh, 219 Ill. App. 3d
996, 999-1002 (1991). Although the petitioner had motions pending
to modify and clarify visitation and to obtain a restraining order
against the respondent's spouse, these matters were ancillary and
incidental to the orders transferring custody and establishing a
support obligation and a visitation schedule. See Franson, 172 Ill. 2d at 356. Because we find the May 12, 1996, order to be
final, we conclude that this court has jurisdiction to hear the
petitioner's appeal. We turn now to the merits of that appeal.
The petitioner first argues on appeal that the trial court
erred in dismissing her and her husband's petition for adoption.
She contends that the respondent failed to pay a reasonable amount
of the expenses related to the birth of the child and therefore his
parental rights should have been terminated pursuant to sections
1(D)(n) and 8(a)(1) of the Adoption Act (750 ILCS 50/1(D)(n),
8(a)(1) (West 1996)).
Section 8(a)(1) of the Adoption Act provides that consents or
surrenders to adoption are not required in cases where the person
whose consent or surrender would otherwise be required is found by
the court to be an unfit person as defined in Section 1 of this
Act, by clear and convincing evidence. 750 ILCS 50/8(a)(1) (West
1996). Section 1(D)(n) of the Adoption Act lists one of the
grounds that would support a finding of unfitness as follows:
Evidence of intent to forego his *** parental rights ***
as manifested by the father's failure, where he and the mother
of the child were unmarried to each other at the time of the
child's birth, *** to make a good faith effort to pay a
reasonable amount of the expenses related to the birth of the
child and to provide a reasonable amount for the financial
support of the child, the court to consider in its
determination all relevant circumstances, including the
financial condition of both parents ***. 750 ILCS 50/1(D)(n)
(West 1996).
In the present case, the petitioner testified that the medical
costs associated with the birth of the child were covered by
insurance. The only other expenses remotely associated with the
birth were the over-the-counter vitamins that the petitioner
purchased each month. She maintained that the respondent did not
reimburse her for the premiums for her health insurance. However,
the record indicated that one month after the birth of the child
the respondent began paying the petitioner $75 per week. The
petitioner also stated that she stayed at the respondent's home
during a portion of the three weeks following the birth of the
child and before she returned to school. Under the circumstances,
we find that it could not be properly concluded that the respondent
failed to make a good faith effort to pay a reasonable amount of
the expenses related to the birth of the child. Accordingly, we
find no error in the trial court's decision to dismiss the
petitioner's petition to adopt.
The petitioner next argues that the trial court's decision to
transfer temporary custody was made on the improper basis that she
removed the minor from Illinois to Ohio. She notes that, since she
was not married to the father, the removal provision of section 609
of the Marriage Act (750 ILCS 5/609 (West 1996)) was inapplicable
and prior approval for removal was not required. She also argues
that the trial court erred in transferring temporary custody
without the required evidentiary hearing. She further contends
that, with respect to the decision to transfer permanent custody,
the trial court erroneously applied section 602 of the Marriage Act
(750 ILCS 5/602 (West 1996)) instead of section 610 (750 ILCS 5/610
(West 1996)), which is the appropriate section to consider in
deciding upon motions to modify custody filed within two years of
a previous custody order.
Initially, we note that the Illinois Parentage Act of 1984
(the Parentage Act) (750 ILCS 45/1 et seq. (West 1996)) does not
contain any provision requiring that actions for removal be
resolved pursuant to section 609 of the Marriage Act, and section
609 of the Marriage Act is not implicitly incorporated into the
Parentage Act. In re Parentage of R.M.F., 275 Ill. App. 3d 43, 50
(1995). Thus, a custodial parent in a case where the parents were
never married is not required to file an action for removal prior
to removing the minor from the state. In re Parentage of R.M.F.,
275 Ill. App. 3d at 49-51.
Since the petitioner in the present case could properly take
the minor outside the state without filing a petition for removal,
we conclude that the trial court erroneously concluded that the
petitioner contemptuously took the child to Ohio. At any rate,
we note that courts of this state have consistently held that a
change of custody is an improper remedy to punish a custodial
parent's contumacious interference with visitation rights. In re
Marriage of Fox, 191 Ill. App. 3d 514, 522 (1989). Remedies for
visitation abuse other than a change of custody are provided in
section 607.1 of the Marriage Act. 750 ILCS 5/607.1 (West 1996).
While the petitioner may have violated visitation orders while
outside the state, section 607.1 of the Marriage Act sets forth the
procedures for the enforcement of visitation orders and the
remedies for visitation abuse (750 ILCS 5/607.1 (West 1996)).
That section lists among the relief that may be granted by the
court [o]ther appropriate relief deemed equitable. 750 ILCS
5/607.1(c)(5) (West 1996). However, this does not mean that the
court can modify custody under this provision absent a petition to
modify pursuant to section 602 or 610 of the Marriage Act. To hold
otherwise would nullify the procedures for modification listed in
sections 602 and 610. Moreover, the court in the present case
simply transferred custody without conducting an evidentiary
hearing. Section 607.1(c) requires that the court grant relief to
the aggrieved party only after hearing all the evidence. 750
ILCS 5/607.1(c) (West 1996).
The court in In re Parentage of R.M.F. noted that the
Parentage Act does contain a provision whereby a noncustodial
parent can bring a petition to modify custody or visitation. In re
Parentage of R.M.F., 275 Ill. App. 3d at 50. All actions to modify
custody or visitation brought pursuant to the Parentage Act are
governed by the standards contained in the Marriage Act. 750 ILCS
45/16 (West 1996); In re Parentage of R.M.F., 275 Ill. App. 3d at
50. In actions to modify visitation, a court is to apply the same
provisions of the Marriage Act as are applicable to custody
determinations. In re Parentage of R.M.F., 275 Ill. App. 3d at 50.
Section 610(b) of the Marriage Act provides:
The court shall not modify a prior custody judgment
unless it finds by clear and convincing evidence, upon the
basis of facts that have arisen since the prior judgment or
that were unknown to the court at the time of entry of the
prior judgment, that a change has occurred in the
circumstances of the child or his custodian *** and that the
modification is necessary to serve the best interests of the
child. 750 ILCS 5/610(b) (West 1996).
Section 610(a) of the Marriage Act (750 ILCS 5/610(a) (West 1996))
requires that, in order to modify custody in cases arising less
than two years after an order setting custody, the trial court must
find that the child's environment places him in serious danger. In
re Marriage of Noble, 192 Ill. App. 3d 501, 508 (1989).
Section 14(a)(2) of the Parentage Act states:
If a judgment of parentage contains no explicit award of
custody, the establishment of a support obligation or of
visitation rights in one parent shall be considered a judgment
granting custody to the other parent. If the parentage
judgment contains no such provisions, custody shall be
presumed to be with the mother ***. (Emphasis added.) 750
ILCS 45/14(a)(2) (West 1996).
In the present case, a support obligation and visitation
rights were established in the respondent as of April 28, 1994,
along with a prior judgment of parentage on January 11, 1994.
Thus, when the respondent filed his petition to transfer custody on
July 25, 1995, it should have been treated as motion to modify
custody within two years of a prior custody award under section 610
of the Marriage Act. Instead, the trial court simply transferred
custody without an evidentiary hearing and later determined the
matter as if it were an initial custody determination pursuant to
section 602 of the Marriage Act. That section requires the court
to determine custody in accordance with the best interests of the
child considering all relevant factors, including eight factors
specifically enumerated in that section. 750 ILCS 5/602 (West
1996). Unlike section 610(a), it does not require the trial court
to find that the child's environment places him in serious danger,
and, unlike section 610(b), it does not require that the court
shall not modify a prior custody judgment unless it finds by clear
and convincing evidence *** that a change has occurred in the
circumstances of the child. See 750 ILCS 5/602, 610 (West 1996).
Here, the trial court erred in applying the wrong statutory section
in deciding the respondent's petition to transfer custody. The
trial court also failed to take into consideration that, at the
time it heard evidence and made its permanent ruling deciding that
issue, the condition alleged as the main basis for transferring
custody no longer existed since the petitioner had long since
returned to Illinois and apparently had no plans to return to Ohio.
In conclusion, we find that the trial court applied the wrong
statutory section in determining the petition to transfer custody
and then proceeded to make its determination based upon improper
reasons. While we are mindful of the fact the petitioner exhibited
some difficulty in honoring the respondent's visitation rights, we
are not convinced based on the record before us that a change of
custody was warranted. We find no evidence in the record that
would support the conclusion that clear and convincing evidence
existed indicating that a change in circumstances of the child or
the petitioner had occurred and that modification was necessary to
serve the best interests of the child.
Accordingly, we affirm the judgment of the circuit court of
McHenry County that dismissed the petitioner's petition to adopt
and to terminate parental rights. However, we reverse the
judgments of the circuit court of McHenry County that transferred
temporary and permanent custody of M.M.W. to the respondent.
Although we find no evidence of bias or prejudice on the part of
the trial judge, we remand the cause for further proceedings
before a different judge. The further proceedings conducted on
remand are to be in a manner consistent with the views expressed in
this opinion. Our resolution of the foregoing issues renders moot
the remaining issues raised by the parties on appeal.
Affirmed in part and reversed in part; cause remanded.
DOYLE and COLWELL, JJ., concur.