People ex rel. Farina v. Sensor

No. 2--97--1141

_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

_________________________________________________________________

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS ex rel. JENNIFER ) of McHenry County.
FARINA, )
)
Plaintiff, )
) No. 95--FA--64
v. )
)
SAMUEL S. SENSOR, )
)
Defendant )
)
(Dale Sensor, Petitioner- ) Honorable
Appellant; Jennifer Farina, ) Sharon L. Prather,
Respondent-Appellee). ) Judge, Presiding.
_________________________________________________________________

PRESIDING JUSTICE GEIGER delivered the opinion of the court:

The petitioner, Dale Sensor, appeals the order of the circuit
court of McHenry County that dismissed her petition for visitation
with her granddaughter, Kayla Marie Farina. The petitioner
contends that the trial court erroneously determined that the
doctrine of res judicata (res judicata) barred the petition. We
reverse and remand for further proceedings
This case began when the State filed a complaint on behalf of
Kayla's mother, Jennifer Farina (the respondent), to establish
Kayla's paternity. The defendant, Samuel Sensor, admitted
paternity. Thereafter, the court entered various orders for child
support.
The petitioner, Samuel Sensor's mother, first sought visita-
tion with Kayla on July 19, 1995. Pursuant to an agreed order, the
petitioner was granted temporary visitation and the trial court
subsequently made it permanent.
On April 17, 1996, the court entered an agreed order providing
that the petitioner's visitation was "terminated." However, the
order also provided for extensive visitation with Samuel Sensor and
specifically provided that the visitations were to occur at the
petitioner's home. It appears that Samuel Sensor was residing with
the petitioner at that time.
On July 23, 1997, the petitioner filed a petition for
visitation, alleging that Samuel Sensor had moved out of her home
and that the respondent refused to allow her any contact or
visitation with Kayla. The respondent moved to dismiss the
petition, alleging that it was barred by res judicata because the
April 17, 1996, order terminated the petitioner's visitation. The
court granted the motion. After the court denied her motion to
vacate, the petitioner filed a timely notice of appeal.
The petitioner contends that the trial court erred in
dismissing her petition on the basis of res judicata without
conducting an evidentiary hearing. She contends that the April 17,
1996, agreed order was not a final disposition on the merits but
merely "abated" temporarily her separate visitation because it was
not then necessary. She also argues that res judicata should not
be rigidly applied in custody and visitation cases because such
orders are always subject to modification and the overriding
consideration is the child's best interests.
The trial court presumably dismissed the petition pursuant to
section 2--619(a)(4) of the Code of Civil Procedure (735 ILCS 5/2--
619(a)(4) (West 1996)). For purposes of a section 2--619 motion a
defendant admits all well-pleaded facts. We review a dismissal
pursuant to section 2--619 de novo. Sassali v. Rockford Memorial
Hospital, 296 Ill. App. 3d 80, 83 (1998).
Res judicata precludes an action between parties when a
judgment on the same claim or cause of action was previously
rendered against the same party in an earlier proceeding. In re
Marriage of Weaver, 228 Ill. App. 3d 609, 617 (1992). Here, the
April 17, 1996, order simply was not a final determination on the
merits that visitation with her grandmother would not be in the
child's best interests. Although the use of the word "termination"
was perhaps unfortunate, the order as a whole reflects that the
petitioner would continue to see Kayla at her home and that the
petitioner's separate visitation was being suspended only because
it was not then necessary. These facts were confirmed by the
uncontradicted affidavit of the petitioner's counsel, which was
attached to her response.
In any event, it is well established that res judicata should
not be applied strictly in custody and visitation matters. In re
Marriage of Fields, 283 Ill. App. 3d 894, 901-02 (1996). The doc-
trine should not be applied to bar evidence when the most important
consideration is the child's best interests. Weaver, 228 Ill. App.
3d at 616. Moreover, visitation orders may be modified at any time
whenever modification would serve the child's best interests. 750
ILCS 5/607(c) (West 1996). A court's order regarding custody or
visitation is res judicata only to facts which existed at the time
the order was entered. Fields, 283 Ill. App. 3d at 902. Here, the
new petition alleged that Samuel Sensor had lived with the
petitioner but had recently moved out. The petition at least
arguably alleges changed circumstances sufficient to warrant a
hearing.
The respondent also contends that the trial court's order may
be affirmed on the basis that the petitioner never had a right to
seek visitation with Kayla in the first place. The respondent
points out that this case arose under the Illinois Parentage Act of
1984 (the Parentage Act) (750 ILCS 45/1 et seq. (West 1996)).
Section 14(a)(1) of the Parentage Act provides that any judgment
entered shall contain or explicitly reserve provisions concerning,
inter alia, custody and visitation, "which the court shall
determine in accordance with the relevant factors set forth in the
Illinois Marriage and Dissolution of Marriage Act" (the Marriage
Act). 750 ILCS 45/14(a)(1) (West 1996), citing 750 ILCS 5/101 et
seq. (West 1996). In Department of Public Aid ex rel. Gagnon-Dix
v. Gagnon, 288 Ill. App. 3d 424, 428 (1997), the Appellate Court,
Fourth District, stated that section 14(a)(1) of the Parentage Act
incorporates section 602 of the Marriage Act (750 ILCS 5/602 (West
1996)), governing custody determinations, but not section 607 (750
ILCS 5/607 (West 1996)), governing visitation. The respondent
contends that because provisions for grandparent visitation are
found only in section 607, a separate order for grandparent
visitation is unavailable in a case brought under the Parentage
Act. We disagree.
First, such a conclusion is not supported by the plain
language of the relevant statutes. Presumably the Parentage Act's
reference without qualification to the Marriage Act means all of
it. Nothing in the Parentage Act expressly excludes section 607.
Moreover, section 607 itself provides that a court "may grant
reasonable visitation privileges to a grandparent, great-
grandparent, or sibling of any minor child" if certain conditions
exist. (Emphasis added.) 750 ILCS 5/607(b)(1) (West 1996). None
of the listed conditions refers to the marital status of the
minor's parents.
Where the language of a statute is clear and unambiguous, it
should be given its plain and ordinary meaning. Sassali, 296 Ill.
App. 3d at 83. A court is not justified in reading into a statute
exceptions and limitations that the legislature did not intend.
Lemont-Bromberek Combined School District No. 113(a) v. Walter, 279
Ill. App. 3d 847, 850 (1996).
The cases that the respondent cites do not support her conten-
tions. Gagnon involved a petition for visitation by the putative
father. Although the appellate court affirmed the order granting
the father visitation, it expressed its concern that in a case
under the Parentage Act a father who had been otherwise uninvolved
with the child but was forced to accept responsibility for her
might use the visitation provisions merely to harass the mother or
disrupt the child's life. Gagnon, 288 Ill. App. 3d at 428.
These considerations do not apply with the same force when the
petitioner is a grandparent and has been seeing the child virtually
since her birth, and nothing in Gagnon shows an intention to
preclude grandparent visitation. In fact, Gagnon relies on
Weybright v. Puckett, 262 Ill. App. 3d 605 (1994), which the
respondent also cites. A close reading of Weybright, however,
actually supports the petitioner's position.
In Weybright, the mother and the putative father were never
married, but the minor's paternity was "legally established,"
presumably through the Parentage Act. Weybright, 262 Ill. App. 3d
at 606. The appellate court affirmed the order denying grandparent
visitation because the evidence supported the trial court's con-
clusion that such visitation was not in the child's best interests.
Weybright, 262 Ill. App. 3d at 609. The court never said that the
grandmother was legally barred from bringing the petition, and had
that been the case there would have been no need to consider the
evidentiary issue.
Finally, construing the statutes as the respondent suggests
might well render them unconstitutional. We have a duty to
construe a statute, if possible, so that it is constitutional.
R.W. Dunteman Co. v. C/G Enterprises, Inc., 181 Ill. 2d 153, 163
(1998). Construing the statute as the respondent suggests would
create an arbitrary distinction between classes of grandparents
based on their children's marital status and, indirectly, upon the
legitimacy of their grandchildren. The Supreme Court has held that
distinctions based on legitimacy must be rationally related to a
legitimate state interest. Trimble v. Gordon, 430 U.S. 762, 768-
69, 52 L. Ed. 2d 31, 38, 97 S. Ct. 1459, 1464 (1977). The re-
spondent does not even suggest a rational basis for discriminating
against illegitimate children and their grandparents by providing
a statutory mechanism for the grandparents of legitimate children
to obtain visitation while denying a corresponding right in the
case of illegitimate children. The plain language of the statute
does not create such a distinction, and we decline to render the
statute constitutionally suspect by reading one into it.
The judgment of the circuit court of McHenry County is
reversed, and the cause is remanded for further proceedings.
Reversed and remanded.
BOWMAN and RAPP, JJ., concur.