In re Marriage of Findlay

May 27, 1998

No. 3--97--0586
_________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
_________________________________________________________________

In re MARRIAGE OF ) Appeal from the Circuit Court
) of Du Page County.
TRACY L. FINDLAY, n/k/a )
Tracy L. Ostrem, )
)
Petitioner-Appellee, ) No. 96--D--334
)
and )
)
TIMOTHY J. FINDLAY, ) Honorable
) Robert J. Anderson,
Respondent-Appellant. ) Judge, Presiding.
_________________________________________________________________

JUSTICE DOYLE delivered the opinion of the court:

In this postdissolution proceeding, respondent, Timothy
Findlay, appeals the dismissal of his complaint for a preliminary
injunction against petitioner, Tracy Findlay, n/k/a Tracy Ostrem.
Respondent sought to enjoin petitioner from removing the parties
children, of whom she has residential custody, from Naperville to
Marshall, Illinois. The trial court ruled that it lacked
jurisdiction to restrain petitioner s intrastate relocation.
On appeal, respondent argues that the parties settlement
agreement, incorporated into the dissolution judgment, authorizes
the court to decide where the children are to reside if the parties
cannot resolve that issue by agreement or conciliation. Respondent
maintains that the court must preserve the status quo until it
decides whether petitioner may remove the children to Marshall.
We hold that the trial court erred in dismissing the complaint
for a preliminary injunction. We decide only that the court erred
in deciding as a matter of law that it lacked jurisdiction over the
complaint. Therefore, we reverse the dismissal order and remand
the cause so the trial court may decide (1) whether petitioner s
planned move is a matter the settlement agreement leaves for
judicial resolution; and (2) if so, whether respondent should
receive the preliminary injunctive relief he requests.
The dissolution judgment, entered November 12, 1996, gives the
parties joint legal custody of their two children; petitioner has
residential custody and respondent visitation custody. Article II
of the settlement agreement addresses matters directly involving
the children, including the allocation of custody. Paragraph 2 of
article II states:
Each party will *** make day to day decisions regarding
the children while they are in that party s custody. The
parties will jointly decide matters of substance regarding the
children, including, without limitation intended, important
questions of education, religion, and elective medical care.
In the event the parties are unable to agree on important
decisions regarding the children, the parties shall first
attempt to resolve the issue through conciliation ***. In the
event the parties are unable to resolve the issue through
conciliation *** the matter shall be resolved by a Court of
appropriate jurisdiction.
The agreement does not otherwise address whether or when either
party may move intrastate.
On June 3, 1997, respondent filed his complaint for a
preliminary injunction, alleging the following facts. After the
dissolution judgment, petitioner and the children lived in
Naperville. Respondent consistently fulfilled his custody
obligations. In March 1997, petitioner told him that she intended
to move with the children to Terre Haute, Indiana, apparently to
attend college. After respondent refused to consent to the move,
petitioner told him she intended to move herself and the children
to Marshall, just across the border from Terre Haute, by July 1,
1997. Marshall is a 3« hour drive from Naperville and a 4« hour
drive from respondent s office. Respondent again objected, and
conciliation failed.
According to respondent, petitioner s threatened move would
violate the settlement agreement by disrupting respondent s
relationship with the children, thus undermining the joint custody
arrangement. Respondent alleged that the dispute was a matter of
substance directly involving the children, triggering the dispute
resolution procedure of article II, paragraph 2. As conciliation
had failed, the trial court was to decide whether petitioner could
relocate the children as she wished.
Petitioner moved to dismiss the complaint for failure to state
a cause of action (see 735 ILCS 5/2--615(a)(West 1996)) and for
lack of subject matter jurisdiction (see 735 ILCS 5/2--
619(a)(1)(West 1996)). According to petitioner, the complaint was
legally insufficient because nothing prevented her from moving
intrastate as long as she did not do so intending to frustrate
respondent s visitation rights. She asserted the court could not
grant the requested relief, which would amount to an impermissible
modification of custody (see 750 ILCS 5/610 (West 1996)).
Without hearing evidence, the trial court dismissed the
complaint, agreeing with petitioner that it had no authority to
prohibit petitioner s move. Respondent timely appealed.
Petitioner has not filed an appellate brief, but, as the record is
relatively simple, we elect to decide the merits of the appeal.
See First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133 (1976).
Respondent argues that the trial court erred in dismissing the
complaint because article II, paragraph 2 of the settlement
agreement authorized it to decide whether petitioner could make the
children reside relatively far from their former residence and from
respondent. Respondent reasons that, even if a custodial parent
does not normally need the court s permission to move within the
state, she may bargain away that freedom by consenting to such a
restriction in a marital settlement agreement. He asserts further
that petitioner here did so, because her intended relocation is one
of the important decisions regarding the children that she agreed
could be subject to the court s review.
We agree with respondent that the settlement agreement could
confer such a review power on the court. However, whether the
agreement here did so is a factual issue that cannot be resolved
without evidence of the parties intent. Therefore, we hold that
(1) the trial court erred in concluding as a matter of law that it
lacked the authority to decide the dispute over petitioner s
relocation; (2) whether the agreement authorizes the court to act
here depends on the meaning of the settlement agreement, an issue
that must be decided on the available evidence of the parties
intent rather than by a motion to dismiss.
Generally, a custodial parent need not seek the court s
permission to remove the children to a location within the state.
In re Marriage of Wycoff, 266 Ill. App. 3d 408, 416 (1994).
However, we are aware of no authority holding that the court lacks
the jurisdiction to decide whether an intrastate move is in the
children s best interests, where a valid settlement agreement calls
for the court to decide the issue. If the parties have agreed to
submit their dispute to the court for resolution, one party may
hardly avoid what she bargained for as long as the agreement does
not compromise the court s obligation to hold paramount the best
interests of the children.
Parents may not bargain away the best interests of the
children or bind the court to their own resolution of custody or
support issues. Blisset v. Blisset, 123 Ill. 2d 161, 167-68
(1988); In re Marriage of Sheetz, 254 Ill. App. 3d 695, 698 (1993).
However, that is not what the parties did here. They simply left
it for the court (if need be) to decide what action would better
serve the children s interests. The settlement agreement the court
approved simply requires it to decide a matter of substantial
interest to the children. This requirement may be enforced as may
any other valid agreement term relating to support, custody,
education, or other matters affecting the children.
Respondent could thus ask the court to decide a matter of
substance regarding the children. Respondent has not actually
filed such a petition, but he has requested that the court enjoin
petitioner from moving until the court decides whether to allow her
to do so. Petitioner did not assert, and the trial court did not
find, that respondent could not invoke the court s continuing
jurisdiction over the case to obtain preliminary injunctive relief
in anticipation of seeking permanent relief, viz., a decision on
whether petitioner may move to Marshall. Therefore, we see no
reason the court may not enforce article II, paragraph 2 of the
agreement by deciding an issue it covers.
The issue remains whether petitioner s planned move is the
sort of issue the agreement subjects to judicial determination. To
sustain the dismissal of respondent s complaint without an
evidentiary hearing, we would have to conclude that, as a matter of
law, the agreement does not give the court the power to decide
whether to allow the move. However, we could so hold only if we
determined that article II, paragraph 2 of the agreement
unambiguously excludes this matter from judicial resolution. We
cannot so conclude; rather, we believe the agreement is ambiguous
and that the court must receive evidence of the parties intent.
A marital settlement agreement is a contract to which ordinary
rules of contract interpretation apply. In re Marriage of Wenc,
294 Ill. App. 3d 239, 243 (1998). The principal rule is that a
court must ascertain and effectuate the parties intent. Marriage
of Wenc, 294 Ill. App. 3d at 243. The language the parties used is
the best guide to their intent. In re Marriage of Frain, 258 Ill.
App. 3d 475, 478 (1994). If contract language is ambiguous, parol
evidence of the parties intent is admissible. Quake Construction,
Inc. v. American Airlines, Inc., 141 Ill. 2d 281, 288 (1990).
Whether contract language is ambiguous is a question of law.
Frydman v. Horn Eye Center, Ltd., 286 Ill. App. 3d 853, 858 (1997).
We believe that article II, paragraph 2 of the settlement
agreement is ambiguous as applied here. Respondent observes that
relocating the children some distance from their present home,
even if still within Illinois, could substantially affect his
relationship with them. Thus, he asserts that the proposed move is
a matter of substance regarding the children. Certainly, even a
move within Illinois could substantially affect respondent s
ability to fulfill his joint custody obligations. Also, the
parties did submit the matter to the conciliator, although this may
have only represented petitioner s view of what was practically
necessary rather than a preexisting understanding that conciliation
was required. There is a plausible argument that the dispute over
the planned move triggers article II, paragraph 2.
However, there are plausible reasons to conclude otherwise.
Unlike decisions about the children s education or medical care,
petitioner s relocation directly involves her own career and
lifestyle. Although the parties could easily have addressed this
contingency directly, the agreement does not explicitly override
the established presumptions that a custodial parent need not seek
the court s permission to move intrastate and that '[c]ustodial
parents should not be expected to give up careers for the sake of
remaining in the same geographical location. Wycoff, 266 Ill.
App. 3d at 416, quoting with approval In re Marriage of Good, 208
Ill. App. 3d 775, 778 (1991).
In these unclear circumstances, we believe the trial court
erred in ruling as a matter of law that it could not entertain
respondent s complaint. Thus, we reverse its judgment and remand
for further proceedings. If the court concludes that the parties
intended the agreement to embrace the controversy here, it may then
decide the complaint on its merits.
The judgment of the circuit court of Du Page County is
reversed, and the cause is remanded for further proceedings.
Reversed and remanded.
GEIGER, P.J., and McLAREN, J., concur.