In re Marriage of Lasky
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NOTICE: Under Supreme Court Rule 367 a party has 21 days after the filing of the opinion
to request a rehearing. Also, opinions are subject to modification, correction or withdrawal at
anytime prior to issuance of the mandate by the Clerk of the Court. Therefore, because the
following slip opinion is being made available prior to the Court's final action in this matter,
it cannot be considered the final decision of the Court. The official copy of the following
opinion will be published by the Supreme Court's Reporter of Decisions in the Official
Reports advance sheets following final action by the Court.
Docket No. 81572--Agenda 14--January 1997.
In re MARRIAGE OF CYNTHIA LASKY, n/k/a Cynthia Brandeis,
Appellee, and JAMES LASKY, Appellant.
Opinion filed March 20, 1997.
CHIEF JUSTICE HEIPLE delivered the opinion of the court:
This litigation arises out of the separate petitions of
appellee Cynthia Brandies (formerly Cynthia Lasky) and appellant
James Lasky, the divorced mother and father of Michael. Each sought
to modify the existing joint custody award entered pursuant to
their divorce.
The order dissolving the marriage of James and Cynthia Lasky
was filed on January 31, 1990. Incorporated into the dissolution
order was the parties' joint parenting agreement, under which the
parties agreed to joint custody of their minor child, Michael, born
March 3, 1987. Pursuant to the agreement, Cynthia served as
Michael's primary physical custodian and James had regularly
scheduled visitation. On April 16, 1992, Cynthia filed her petition
for modification of joint custody, and on July 2, 1992, James filed
his own petition for modification of custody. Each sought sole
custody. Prior to trial, the parties stipulated that a substantial
change in circumstances had arisen that made it necessary to modify
joint custody. The trial court accepted the stipulation and
determined that the only issue before the court was the best
interests of the child. After a hearing, the court awarded James
sole custody of Michael on that basis.
Cynthia appealed. She asserted, first, that the trial court
had employed the wrong standard of proof in making its custody
determination and, second, that the trial court's decision to award
James sole custody of Michael was against the manifest weight of
the evidence. The appellate court reversed based on Cynthia's first
contention. No. 2--95--0185 (unpublished order under Supreme Court
Rule 23). It ruled that the stipulation and the petitions to modify
custody were insufficient, standing alone, to establish changed
circumstances so as to warrant a modification of the custody
decree. Rather, the appellate court ruled that the trial court
still had the duty to determine by other clear and convincing
evidence whether the requisite change in circumstances had been
established that justified a termination of the joint custody
agreement. The appellate court vacated the custody order on that
basis and did not address Cynthia's argument that to award James
sole custody of Michael was against the manifest weight of the
evidence. For the reasons expressed below, we reverse.
The relevant sections of the Illinois Marriage and Dissolution
of Marriage Act (750 ILCS 5/101 et seq. (West 1994)) (the Act) are
as follows.
Section 602.1:
"(b) Upon the application of either or both parents,
or upon its own motion, the court shall consider an award
of joint custody. *** In such cases, the court shall
initially request the parents to produce a Joint
Parenting Agreement. *** In the event the parents fail to
produce a Joint Parenting Agreement, the court may enter
an appropriate Joint Parenting Order ***.
(c) The court may enter an order of joint custody if
it determines that joint custody would be in the best
interests of the child[.]" 750 ILCS 5/602.1 (West 1994).
Section 610(b):
"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, or in
that case of a joint custody arrangement that a change
has occurred in the circumstances of the child or either
or both parties having custody, and that the modification
is necessary to serve the best interest of the child. In
the case of joint custody, if the parties agree to a
termination of a joint custody arrangement, the court
shall so terminate the joint custody and make any
modification which is in the child's best interest. The
court shall state in its decision specific findings of
fact in support of its modification or termination of
joint custody if either parent opposes the modification
or termination." (Emphasis added.) 750 ILCS 5/610(b)
(West 1994).
The districts of the appellate court have disagreed on whether, in
the absence of other evidence, parties can agree to terminate joint
custody or whether, despite their agreement, they must prove by
other clear and convincing evidence that circumstances have changed
so as to warrant a modification of joint custody. See, e.g., In re
Marriage of Burke, 185 Ill. App. 3d 253 (2d Dist. 1989) (requiring
that the parents must show by clear and convincing evidence that a
change in circumstances has occurred); In re Marriage of Wycoff,
266 Ill. App. 3d 408 (4th Dist. 1994) (ruling that parties need not
show a change in circumstances when they file cross petitions to
modify joint custody).
Cynthia urged this court to follow the reasoning of the
appellate court below. It found, citing Burke, that the second
sentence of section 610(b), which provides for the termination of
joint custody where the parties so agree, had been impliedly
repealed by legislative amendments found in Public Act 84--795.
Pub. Act 84--795, 1, eff. January 1, 1986. In Public Act 84--795
the legislature repealed former section 603.1 of the Act, which
provided for joint custody only where both parties agreed. The
legislature also enacted section 602.1, which grants the trial
court the discretion to impose joint custody over the objections of
the parties.
James countered that an agreement to terminate a joint
custody, by its very nature, constitutes a substantial change in
circumstances. He further asserted that the second sentence of
section 610(b) had not been impliedly repealed and that the
parents' agreement to terminate joint custody then shifted the
focus of the inquiry to the best interests of the child. 750 ILCS
5/610(b) (West 1994).
As a general rule, a repeal by implication is not favored.
Lily Lake Road Defenders v. County of McHenry, 156 Ill. 2d 1, 9
(1993). Courts assume that the legislature will not draft a new law
that contradicts an existing one without expressly repealing it,
and that the legislature intends a consistent body of law when it
amends or enacts new legislation. Jahn v. Troy Fire Protection
District, 163 Ill. 2d 275, 279-80 (1994); Lily Lake, 156 Ill. 2d at
9. Therefore, courts construe statutory provisions in a manner that
avoids inconsistency and gives full effect to each provision
wherever reasonably possible. Lily Lake, 156 Ill. 2d at 9. The
favored interpretation is the one that allows both statutes to
stand. Jahn, 163 Ill. 2d at 280. To help determine whether a
statute has been repealed by implication, the courts look for
indications that the legislature intended the latter to supersede
the former. See Goodknight v. Piraino, 255 Ill. App. 3d 738, 741
(1993). Implied repeal results only when the terms and operation of
a later statute are so repugnant to the terms and operation of an
earlier one that both cannot stand. Lily Lake, 156 Ill. 2d at 9;
Jahn, 163 Ill. 2d at 280. In such circumstances, the subsequently
enacted statute will repeal the former by implication, since it is
presumed that the legislature would not enact contradictory laws.
Lily Lake, 156 Ill. 2d at 9.
We do not agree that the second sentence of section 610(b) has
been repealed by implication through enactment of section 602.1. We
note that the legislature added to section 610(b) at the same time
it enacted section 602.1. See Pub. Act 84--795, 1, eff. January 1,
1986. The sentence added provides that "[t]he court shall state in
its decision specific findings of fact in support of its
modification or termination of joint custody if either parent
opposes the modification or termination." 750 ILCS 5/610(b) (West
1994). This directive, immediately following the sentence allowing
the termination of joint custody if both parties agree, indicates
that the legislature anticipated a comprehensive scheme whereby a
joint custody arrangement may be terminated either by the wishes of
the parties or by an order of the court. The fact that the
legislature added to section 610(b) without altering the second
sentence, despite an obvious opportunity to do so, is further
indication that the legislature intended for the second sentence to
stand.
Furthermore, we do not find a clause allowing parties to
terminate joint custody repugnant with another that authorizes the
court to impose joint custody. Section 602.1 gives the court the
authority to impose joint custody if it determines that such an
arrangement would be in the best interests of the child. Section
602.1(c) directs the court to consider several factors in deciding
to award joint custody, including "the ability of the parents to
cooperate effectively and consistently in matters that directly
affect the joint parenting of the child." 750 ILCS 5/602.1(c)(1)
(West 1994). Such circumstances may exist to support a court's
initial award of joint custody, but they no longer exist when both
parties petition to terminate joint custody. Given their agreement,
it would be pointless and redundant to require the parties to prove
by other clear and convincing evidence the same element that their
agreement makes manifest.
When, as here, both parties seek to terminate joint custody
and stipulate that a change in circumstances has occurred, it is a
given that a change in circumstances has occurred. At that juncture
the court should move directly to consider what custody
modification is in the child's best interests.
Accordingly, we reverse the judgment of the appellate court
and remand this cause to the appellate court to consider the
remaining issue, that is, whether the decision to award James sole
custody of Michael was against the manifest weight of the evidence.
Appellate court judgment reversed;
cause remanded with directions.
to request a rehearing. Also, opinions are subject to modification, correction or withdrawal at
anytime prior to issuance of the mandate by the Clerk of the Court. Therefore, because the
following slip opinion is being made available prior to the Court's final action in this matter,
it cannot be considered the final decision of the Court. The official copy of the following
opinion will be published by the Supreme Court's Reporter of Decisions in the Official
Reports advance sheets following final action by the Court.
Docket No. 81572--Agenda 14--January 1997.
In re MARRIAGE OF CYNTHIA LASKY, n/k/a Cynthia Brandeis,
Appellee, and JAMES LASKY, Appellant.
Opinion filed March 20, 1997.
CHIEF JUSTICE HEIPLE delivered the opinion of the court:
This litigation arises out of the separate petitions of
appellee Cynthia Brandies (formerly Cynthia Lasky) and appellant
James Lasky, the divorced mother and father of Michael. Each sought
to modify the existing joint custody award entered pursuant to
their divorce.
The order dissolving the marriage of James and Cynthia Lasky
was filed on January 31, 1990. Incorporated into the dissolution
order was the parties' joint parenting agreement, under which the
parties agreed to joint custody of their minor child, Michael, born
March 3, 1987. Pursuant to the agreement, Cynthia served as
Michael's primary physical custodian and James had regularly
scheduled visitation. On April 16, 1992, Cynthia filed her petition
for modification of joint custody, and on July 2, 1992, James filed
his own petition for modification of custody. Each sought sole
custody. Prior to trial, the parties stipulated that a substantial
change in circumstances had arisen that made it necessary to modify
joint custody. The trial court accepted the stipulation and
determined that the only issue before the court was the best
interests of the child. After a hearing, the court awarded James
sole custody of Michael on that basis.
Cynthia appealed. She asserted, first, that the trial court
had employed the wrong standard of proof in making its custody
determination and, second, that the trial court's decision to award
James sole custody of Michael was against the manifest weight of
the evidence. The appellate court reversed based on Cynthia's first
contention. No. 2--95--0185 (unpublished order under Supreme Court
Rule 23). It ruled that the stipulation and the petitions to modify
custody were insufficient, standing alone, to establish changed
circumstances so as to warrant a modification of the custody
decree. Rather, the appellate court ruled that the trial court
still had the duty to determine by other clear and convincing
evidence whether the requisite change in circumstances had been
established that justified a termination of the joint custody
agreement. The appellate court vacated the custody order on that
basis and did not address Cynthia's argument that to award James
sole custody of Michael was against the manifest weight of the
evidence. For the reasons expressed below, we reverse.
The relevant sections of the Illinois Marriage and Dissolution
of Marriage Act (750 ILCS 5/101 et seq. (West 1994)) (the Act) are
as follows.
Section 602.1:
"(b) Upon the application of either or both parents,
or upon its own motion, the court shall consider an award
of joint custody. *** In such cases, the court shall
initially request the parents to produce a Joint
Parenting Agreement. *** In the event the parents fail to
produce a Joint Parenting Agreement, the court may enter
an appropriate Joint Parenting Order ***.
(c) The court may enter an order of joint custody if
it determines that joint custody would be in the best
interests of the child[.]" 750 ILCS 5/602.1 (West 1994).
Section 610(b):
"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, or in
that case of a joint custody arrangement that a change
has occurred in the circumstances of the child or either
or both parties having custody, and that the modification
is necessary to serve the best interest of the child. In
the case of joint custody, if the parties agree to a
termination of a joint custody arrangement, the court
shall so terminate the joint custody and make any
modification which is in the child's best interest. The
court shall state in its decision specific findings of
fact in support of its modification or termination of
joint custody if either parent opposes the modification
or termination." (Emphasis added.) 750 ILCS 5/610(b)
(West 1994).
The districts of the appellate court have disagreed on whether, in
the absence of other evidence, parties can agree to terminate joint
custody or whether, despite their agreement, they must prove by
other clear and convincing evidence that circumstances have changed
so as to warrant a modification of joint custody. See, e.g., In re
Marriage of Burke, 185 Ill. App. 3d 253 (2d Dist. 1989) (requiring
that the parents must show by clear and convincing evidence that a
change in circumstances has occurred); In re Marriage of Wycoff,
266 Ill. App. 3d 408 (4th Dist. 1994) (ruling that parties need not
show a change in circumstances when they file cross petitions to
modify joint custody).
Cynthia urged this court to follow the reasoning of the
appellate court below. It found, citing Burke, that the second
sentence of section 610(b), which provides for the termination of
joint custody where the parties so agree, had been impliedly
repealed by legislative amendments found in Public Act 84--795.
Pub. Act 84--795, 1, eff. January 1, 1986. In Public Act 84--795
the legislature repealed former section 603.1 of the Act, which
provided for joint custody only where both parties agreed. The
legislature also enacted section 602.1, which grants the trial
court the discretion to impose joint custody over the objections of
the parties.
James countered that an agreement to terminate a joint
custody, by its very nature, constitutes a substantial change in
circumstances. He further asserted that the second sentence of
section 610(b) had not been impliedly repealed and that the
parents' agreement to terminate joint custody then shifted the
focus of the inquiry to the best interests of the child. 750 ILCS
5/610(b) (West 1994).
As a general rule, a repeal by implication is not favored.
Lily Lake Road Defenders v. County of McHenry, 156 Ill. 2d 1, 9
(1993). Courts assume that the legislature will not draft a new law
that contradicts an existing one without expressly repealing it,
and that the legislature intends a consistent body of law when it
amends or enacts new legislation. Jahn v. Troy Fire Protection
District, 163 Ill. 2d 275, 279-80 (1994); Lily Lake, 156 Ill. 2d at
9. Therefore, courts construe statutory provisions in a manner that
avoids inconsistency and gives full effect to each provision
wherever reasonably possible. Lily Lake, 156 Ill. 2d at 9. The
favored interpretation is the one that allows both statutes to
stand. Jahn, 163 Ill. 2d at 280. To help determine whether a
statute has been repealed by implication, the courts look for
indications that the legislature intended the latter to supersede
the former. See Goodknight v. Piraino, 255 Ill. App. 3d 738, 741
(1993). Implied repeal results only when the terms and operation of
a later statute are so repugnant to the terms and operation of an
earlier one that both cannot stand. Lily Lake, 156 Ill. 2d at 9;
Jahn, 163 Ill. 2d at 280. In such circumstances, the subsequently
enacted statute will repeal the former by implication, since it is
presumed that the legislature would not enact contradictory laws.
Lily Lake, 156 Ill. 2d at 9.
We do not agree that the second sentence of section 610(b) has
been repealed by implication through enactment of section 602.1. We
note that the legislature added to section 610(b) at the same time
it enacted section 602.1. See Pub. Act 84--795, 1, eff. January 1,
1986. The sentence added provides that "[t]he court shall state in
its decision specific findings of fact in support of its
modification or termination of joint custody if either parent
opposes the modification or termination." 750 ILCS 5/610(b) (West
1994). This directive, immediately following the sentence allowing
the termination of joint custody if both parties agree, indicates
that the legislature anticipated a comprehensive scheme whereby a
joint custody arrangement may be terminated either by the wishes of
the parties or by an order of the court. The fact that the
legislature added to section 610(b) without altering the second
sentence, despite an obvious opportunity to do so, is further
indication that the legislature intended for the second sentence to
stand.
Furthermore, we do not find a clause allowing parties to
terminate joint custody repugnant with another that authorizes the
court to impose joint custody. Section 602.1 gives the court the
authority to impose joint custody if it determines that such an
arrangement would be in the best interests of the child. Section
602.1(c) directs the court to consider several factors in deciding
to award joint custody, including "the ability of the parents to
cooperate effectively and consistently in matters that directly
affect the joint parenting of the child." 750 ILCS 5/602.1(c)(1)
(West 1994). Such circumstances may exist to support a court's
initial award of joint custody, but they no longer exist when both
parties petition to terminate joint custody. Given their agreement,
it would be pointless and redundant to require the parties to prove
by other clear and convincing evidence the same element that their
agreement makes manifest.
When, as here, both parties seek to terminate joint custody
and stipulate that a change in circumstances has occurred, it is a
given that a change in circumstances has occurred. At that juncture
the court should move directly to consider what custody
modification is in the child's best interests.
Accordingly, we reverse the judgment of the appellate court
and remand this cause to the appellate court to consider the
remaining issue, that is, whether the decision to award James sole
custody of Michael was against the manifest weight of the evidence.
Appellate court judgment reversed;
cause remanded with directions.
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