Fleckles v. Diamond

2015 IL App (2d) 141229, 35 N.E.3d 176

• Court: Appellate Court of Illinois
• Decided: June 23, 2015
• Docket: 2-14-1229
• Status: Unpublished

Opinion

2015 IL App (2d) 141229 No. 2-14-1229 Opinion filed June 23, 2015 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

JAMES S. FLECKLES, ) Appeal from the Circuit Court ) of Du Page County. Plaintiff-Appellee, ) ) v. ) No. 14-F-571 ) DANIELLE J. DIAMOND, ) Honorable ) Linda E. Davenport, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices Zenoff and Birkett concurred in the judgment and opinion.

OPINION

¶1 In this permissive interlocutory appeal pursuant to Illinois Supreme Court Rule 306(a)(5)

(eff. July 1, 2014) (appeals from interlocutory orders “affecting the care and custody of

unemancipated minors”), plaintiff, James S. Fleckles, petitioned pursuant to the Illinois

Parentage Act of 1984 (750 ILCS 45/1 et seq. (West 2014)) to establish paternity and obtain joint

custody and visitation with his yet-unborn child. 750 ILCS 45/7 (West 2014); see also 750 ILCS

5/601 (West 2014). Defendant, Danielle J. Diamond, moved to strike and dismiss the petition

(735 ILCS 5/2-619(a)(1) (West 2014)), arguing that the trial court did not have subject matter

jurisdiction pursuant to the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA)

(750 ILCS 36/101 et seq. (West 2014)), because, under that statute, Colorado, where the child 2015 IL App (2d) 141229

was ultimately born and where defendant lived with the child, was his “home state” (750 ILCS

36/201 (West 2014); see also 750 ILCS 36/102(7) (West 2014)). The trial court denied

Danielle’s motion, and we granted her petition for leave to appeal. We affirm in part, reverse in

part, and remand the cause with directions for the trial court to dismiss the custody portion of

James’s petition.

¶2 I. BACKGROUND

¶3 On July 30, 2014, James petitioned under the Parentage Act to establish paternity and

obtain joint custody and visitation. He alleged that he and Danielle had engaged in a continuous

sexual relationship since December 2001, that Danielle became pregnant in December 2013 with

an anticipated due date of September 21, 2014, and that he was the unborn child’s father. He

also alleged that the couple had resided together in Elmhurst since September 2011.

¶4 On September 24, 2014, Danielle moved to strike and dismiss James’s petition (735

ILCS 5/2-619(a)(1) (West 2014)), arguing that the court did not have “subject matter

jurisdiction” over the matter because: Danielle resided in Colorado, the court did not have

jurisdiction over an unborn child (as of the date James filed his petition), and the child was born

(on September 15, 2014) in Colorado. Danielle further alleged that, on September 2, 2014, she

had filed a paternity petition in Colorado (which she attached to her motion) and served James

with the petition on September 11, 2014. She also alleged that it was her intention to

permanently reside in Colorado. Danielle argued that, pursuant to the UCCJEA, a child’s “home

state” is the state in which the child has lived with a parent since birth; accordingly, because her

child was born in Colorado and still resided there with her, Illinois did not have jurisdiction over

him.

-2- 2015 IL App (2d) 141229

¶5 In his response, James argued that the trial court did have subject matter jurisdiction

because: (1) Danielle resided in Illinois, not Colorado (as she had lived there only since July 27,

2014, and would not have been considered a resident for purposes of obtaining a driver’s license

there until she had resided there for 90 days); (2) the Parentage Act allows an action to be

brought to determine paternity before the birth of the child (750 ILCS 45/7(e) (West 2014) (“If

an action under this Section is brought before the birth of the child, all proceedings shall be

stayed until after the birth, except for service or process, the taking of depositions to perpetuate

testimony, and the ordering of blood tests under appropriate circumstances.”)); and (3) paternity

did not hinge on the UCCJEA, because, when the proceedings commenced, there was no “home

state” of the child, because both actions commenced before his birth and, thus, the court must

look to the “significant connection” standard to determine jurisdiction, and under that standard

neither party had a significant connection to Colorado (750 ILCS 36/201(a)(2) (West 2014)

(UCCJEA significant-connection provision)).

¶6 As to Danielle’s Colorado pleading, James moved to strike and dismiss it or,

alternatively, requested a judicial conference. On October 16, 2014, James moved for the child’s

return to Illinois.

¶7 A. Hearing

¶8 On December 1, 2014, a hearing was held on Danielle’s motion to dismiss James’s

petition.

¶9 Danielle, who appeared telephonically, testified that she has lived in Arvada, Colorado,

since August 2014. She rents a townhouse and lives there with her son, and she signed a one-

year lease on it in August 2014. Danielle has a Colorado driver’s license, her vehicle is

registered in Colorado, and she is registered to vote in Colorado. She moved to Colorado

-3- 2015 IL App (2d) 141229

because that is where her work is and where she has a family support system—two sisters, a

brother-in-law, two nephews, and a niece, all of whom live in Arvada within two miles of

Danielle’s residence.

¶ 10 Danielle’s son was born in Denver, Colorado, on September 15, 2014. His doctors are in

Arvada, and he has never “dealt with” any Illinois doctors. Danielle learned that she was

pregnant in March 2014, while she lived in Tucson, Arizona (since February 2014). She saw

doctors in Arizona.

¶ 11 Danielle has worked for the Socially Responsible Agriculture Project (SRAP) since the

fall of 2009 as the southwest regional coordinator, addressing agricultural aspects of

environmental issues, including policy and community advocate work. Her area includes

Arizona, New Mexico, Utah, and Colorado. When she was hired, she was required to move to

her area. Initially, she moved to Tucson, renting a condominium from James’s father with

James, who was already living there due to his employment with American Express. Both James

and Danielle furnished the condo.

¶ 12 Danielle met James in 2000 or 2001 while they were in law school at Northern Illinois

University. Danielle graduated in 2003 and became licensed in 2004. James became licensed in

2013.

¶ 13 In early 2011, the couple got engaged. Danielle lived in Arizona and paid taxes there

(and James had a driver’s license and was registered to vote there) until September 2011, when

she and James moved to Illinois because James wanted to take care of his ill grandmother. The

couple left their belongings in Arizona and continued paying association dues and utilities on the

condo. They intended to return to Arizona because that is where their jobs were. While in

-4- 2015 IL App (2d) 141229

Illinois, James took a leave of absence from American Express. Danielle transitioned so she

could work her job from Illinois, but she traveled back to the southwest “continually.”

¶ 14 Danielle stayed in Illinois from September 2011 to December 2012. She went to Utah to

be with her sister and to work from there. James did not join her. Danielle stayed in Utah,

renting a room from a friend, until June 2013, when “we” went to Arizona and then Illinois.

After she was back in Illinois, Danielle and James had disagreements about where they would

live. James wanted to stay in Illinois, but Danielle’s work was in the southwest. They agreed

that, once James obtained his law license, he would start a law practice with his father in

Arizona. (However, he never opened the law practice.)

¶ 15 In February 2014, Danielle left Illinois and went to Colorado for work. She stayed with

her sister from February 8 to 22, 2014. Afterward, she went to Tucson for work and stayed there

until May 24 or 25, 2014. In March 2014, while in Tucson, she was surprised to find out that she

was pregnant. Danielle stayed at the condo, and James joined her there in April for one week.

The couple fought “quite a lot.” Danielle wanted to stay in Tucson and had found a house that

she showed James. James wanted her to return to Illinois.

¶ 16 In late May 2014, Danielle returned to Colorado to stay with her sister for about one

week, until June 4, 2014. She contemplated moving there because she was fighting with James

in Tucson and she and her son would have a support system in Colorado.

¶ 17 On June 4, 2014, Danielle returned to Illinois to try to work things out with James. They

did not reach an agreement. James wanted to stay in Illinois. Danielle, whose work was still in

the southwest (and who was the primary breadwinner and had insurance through her work),

presented to James a written proposal that, if he obtained full-time employment with benefits,

she would stay in Illinois for one year; otherwise, they would move to the southwest.

-5- 2015 IL App (2d) 141229

¶ 18 On July 26, 2014, Danielle’s parents hosted a baby shower. James did not attend, but his

family attended. One day after the shower, even though she and James spoke the evening before

and had made plans to meet the following day, Danielle left for Colorado. She testified that

before leaving she had not decided to move to Colorado, even though she had already purchased

a plane ticket. Danielle did not take her belongings from the Elmhurst residence the couple

shared.

¶ 19 Addressing her job, Danielle testified that she was hired to work in the southwest. A

letter from SRAP dated October 30, 2014, stated that it was “expected” that Danielle would

relocate for her job, although another version stated that it was “requested.” Danielle offered no

explanation for the discrepancy. Danielle was able to work for SRAP while residing in Illinois,

including from 2012 through 2014. Danielle also currently works quarter-time for Northern

Illinois University, performing her duties remotely from Colorado for about 10 hours per week.

In 2012 and 2013, she filed tax returns in Arizona and Illinois; in 2014, she would file in Arizona

and Colorado.

¶ 20 On August 12, 2014, Danielle obtained a Colorado driver’s license and registered her car

there. Before that, she had an Illinois driver’s license. Her mother and father currently live in

Illinois, but her mother plans to retire in Colorado with her husband. In addition, two of

Danielle’s sisters live in Colorado; another sister lives in Wisconsin, and her brother lives in

Illinois. Danielle testified that she owned property in Woodstock but sold it to her brother before

she moved to Arizona. However, she also testified that the mortgage might still be in her name,

although her brother makes the payments.

¶ 21 Addressing medical care, Danielle testified that she had two pregnancy-related visits in

Arizona, and three in Illinois. She also received seven weeks of medical care in Colorado before

-6- 2015 IL App (2d) 141229

her child’s birth. She testified that she spent the majority of her pregnancy in Arizona and

Colorado.

¶ 22 James testified that, when he learned that Danielle was pregnant in early March 2014, he

went to Tucson. He remained there until May and attended Danielle’s doctor’s appointments

with her. Danielle went to Colorado for one week in May, and James met her there to drive her

back to Elmhurst, where they returned on June 4, 2014. James testified that he attended at least

four of Danielle’s medical appointments in Illinois.

¶ 23 In November 2013, James became a licensed Illinois attorney. He works for his father’s

firm in Lombard. He has resided at the same address in Elmhurst since September 2011. He

does not have any connection with Colorado.

¶ 24 The trial court denied Danielle’s motion to strike and dismiss for lack of subject matter

jurisdiction, finding that Danielle was a permanent Illinois resident (from September 2011 to

July 27, 2014). The trial court noted that, even though she took trips to Utah, Colorado, and

Arizona, Danielle kept coming back to Illinois. The court also noted that she held an Illinois

driver’s license before she left for Colorado, she had family in Illinois, her law license was from

Illinois, and she still owned property in Illinois. Her only contacts with Colorado, the court

noted, were that she has been there since July 27, 2014, and she happened to deliver her child

there. The court stated that the fact that her child was born in Colorado does not mean that

“every other component and requirement under the UCCJEA is required to fall away.” Also, the

court noted that, from a “clean hands” perspective, the fact that Danielle left Illinois the day after

the baby shower did not reflect well on her in the jurisdictional analysis. The court determined

that James filed his action first and did so in Illinois before the child’s birth. Therefore, Illinois

courts had jurisdiction over the matter. Danielle appeals from this ruling.

-7- 2015 IL App (2d) 141229

¶ 25 B. Colorado Proceedings

¶ 26 On December 2, 2014, one day after the Illinois court denied Danielle’s motion to strike

and dismiss, a Colorado magistrate dismissed Danielle’s paternity petition and declined to

exercise jurisdiction over the matter, based on the Illinois court’s exercise of jurisdiction. (James

had filed, on October 17, 2014, a motion to dismiss Danielle’s petition, based on his filing the

paternity petition in Illinois. Also, on November 21, 2014, the magistrate had held a phone

conference with the Illinois judge over the pending petitions; no significant decisions were

made.)

¶ 27 Danielle sought review of the magistrate’s order, and, on February 21, 2015, the

Colorado district court denied Danielle’s petition for review. The district court found that the

magistrate did not err in dismissing the petition without a hearing on “home state” jurisdiction

and without making additional findings that Danielle alleged were necessary. The district court

determined that the magistrate properly: communicated with the Illinois judge; declined to

exercise jurisdiction after learning that the Illinois court had exercised jurisdiction over the initial

custody determination; and, since no state had explicitly exercised “home state” jurisdiction,

followed the first-in-time rule. The district court further found that the magistrate did not err in

failing to make a finding as to whether Illinois had jurisdiction under the UCCJEA, as Colorado

law did not require such a finding. The Illinois court’s action prevented the Colorado court from

exercising jurisdiction over the initial custody determination, because, under the statute, the court

that has made the initial custody determination generally retains exclusive, continuing

jurisdiction until the child and both parents leave the state or no longer have significant

connections with it. Colo. Rev. Stat. Ann. § 14-13-202(1) (West 2014). Finally, the court found

that the magistrate did not err in failing to find that Colorado was an inconvenient forum, as that

-8- 2015 IL App (2d) 141229

concept was inapplicable because Colorado was not the state with exclusive, continuing

jurisdiction.

¶ 28 II. ANALYSIS

¶ 29 Danielle argues that the trial court erred in denying her motion to strike and dismiss for

lack of subject matter jurisdiction. Unlike her position in the trial court, wherein she argued that

James’s entire petition should be dismissed, Danielle prays on appeal that we reverse and remand

with directions that only the portion of James’s petition pertaining to custody be dismissed,

because the trial court lacked jurisdiction to determine custody or because, as she asserts

elsewhere in her brief, the court’s order was “erroneous for lack of compliance with the

requirements of the UCCJEA”). For the following reasons, we agree that the trial court erred in

denying her motion with respect to custody.

¶ 30 Danielle’s motion was brought pursuant to section 2-619(a)(1) of the Code of Civil

Procedure (735 ILCS 5/2-619(a)(1) (West 2014)). A motion to dismiss pursuant to section 2-619

admits the legal sufficiency of the complaint, but asserts certain defects, defenses, or other

affirmative matters that act to defeat the claim. Relf v. Shatayeva, 2013 IL 114925, ¶ 20. In

ruling on a section 2-619 motion, all pleadings and supporting documents must be construed in

the light most favorable to the nonmoving party, and the motion should be granted only where no

material facts are in dispute and the defendant is entitled to dismissal as a matter of law.

Sandholm v. Kuecker, 2012 IL 111443, ¶ 55. “The purpose of a section 2-619 motion to dismiss

is to dispose of a case on the basis of issues of law or easily proved issues of fact.” Hertel v.

Sullivan, 261 Ill. App. 3d 156, 160 (1994). We review de novo a trial court’s ruling on a motion

to dismiss based on section 2-619. In re Marriage of Diaz, 363 Ill. App. 3d 1091, 1094 (2006).

Similarly, we review de novo questions of statutory construction (Price v. Philip Morris, Inc.,

-9- 2015 IL App (2d) 141229

219 Ill. 2d 182, 235 (2005)) and subject matter jurisdiction (McCormick v. Robertson, 2015 IL

118230, ¶ 18).

¶ 31 James filed his petition pursuant to the Parentage Act. He sought to establish paternity

and obtain joint custody and visitation. The purpose of the Parentage Act is to “further the

public policy of Illinois to ‘recognize[ ] the right of every child to the physical, mental,

emotional and monetary support of his or her parents,’ without regard to the parents’ marital

status.” In re the Parentage of John M., 212 Ill. 2d 253, 263 (2004) (quoting 750 ILCS 45/1.1

(West 2002) and citing 750 ILCS 45/3 (West 2002)). An action to determine the existence of a

father-child relationship may be brought by “a man presumed or alleging himself to be the father

of the child or expected child.” (Emphasis added.) 750 ILCS 45/7(a) (West 2014). However,

“[i]f an action under this Section is brought before the birth of the child, all proceedings shall be

stayed until after the birth, except for service or process, the taking of depositions to perpetuate

testimony, and the ordering of blood tests under appropriate circumstances.” (Emphasis added.)

750 ILCS 45/7(e) (West 2014). The Parentage Act also provides that custody and visitation shall

be determined “in accordance with the relevant factors set forth in the Illinois Marriage and

Dissolution of Marriage Act [(750 ILCS 5/101 et seq. (West 2014))] and any other applicable

law of Illinois.” 750 ILCS 45/14(a)(1) (West 2014). The Illinois Marriage and Dissolution of

Marriage Act, in turn, provides that a “court of this State competent to decide child custody

matters has jurisdiction to make a child custody determination in original or modification

proceedings as provided in Section 201 of” the UCCJEA. 750 ILCS 5/601(a) (West 2014). The

Parentage Act’s jurisdictional provision states that a “circuit court[] shall have jurisdiction of an

action brought under this Act. In any civil action not brought under this Act, the provisions of

this Act shall apply if parentage is at issue. The Court may join any action under this Act with

- 10 - 2015 IL App (2d) 141229

any other civil action where applicable.” (Emphases added.) 750 ILCS 45/9(a) (West 2014). As

to venue, the statute provides, in relevant part, that a parentage action “may be brought in the

county in which any party resides or is found.” 750 ILCS 45/9(b) (West 2014).

¶ 32 We turn next to the UCCJEA. The UCCJEA, which became effective in Illinois on

January 1, 2004, “was promulgated to end custody jurisdictional disputes between states, to

promote cooperation between states in determining custody issues, and to enhance the ability of

states to enforce custody orders expeditiously.” In re Joseph V.D., 373 Ill. App. 3d 559, 561

(2007). To end forum shopping by parents, the statute gives a state exclusive continuing

jurisdiction once a state makes an initial child custody determination. Crouch v. Smick, 2014 IL

App (5th) 140382, ¶ 19. Thus, the UCCJEA provides state trial courts with a method to resolve

jurisdictional questions that arise in interstate child custody disputes, and the statute gives

priority to the state that is the child’s “home state.” Diaz, 363 Ill. App. 3d at 1096.

¶ 33 Sections 201(a), (b), and (c) of the UCCJEA provide:

“(a) Except as otherwise provided in Section 204 [i.e., temporary emergency

jurisdiction], a court of this State has jurisdiction to make an initial child-custody

determination only if:

(1) this State is the home state of the child on the date of the

commencement of the proceeding, or was the home state of the child within six

months before the commencement of the proceeding and the child is absent from

this State but a parent or person acting as a parent continues to live in this State;

(2) a court of another state does not have jurisdiction under paragraph (1),

or a court of the home state of the child has declined to exercise jurisdiction on

- 11 - 2015 IL App (2d) 141229

the ground that this State is the more appropriate forum under Section 207 or 208,

and:

(A) the child and the child’s parents, or the child and at least one

parent or a person acting as a parent, have a significant connection with

this State other than mere physical presence; and

(B) substantial evidence is available in this State concerning the

child’s care, protection, training, and personal relationships;

(3) all courts having jurisdiction under paragraph (1) or (2) have declined

to exercise jurisdiction on the ground that a court of this State is the more

appropriate forum to determine the custody of the child under Section 207 or 208;

or

(4) no court of any other state would have jurisdiction under the criteria

specified in paragraph (1), (2), or (3).

(b) Subsection (a) is the exclusive jurisdictional basis for making a child-custody

determination by a court of this State.

(c) Physical presence of, or personal jurisdiction over, a party or a child is not

necessary or sufficient to make a child-custody determination.” 750 ILCS 36/201 (West

2014).

¶ 34 The definition of “home state” is provided in section 102(7) of the UCCJEA:

“ ‘Home state’ means the state in which a child lived with a parent or a person

acting as a parent for at least six consecutive months immediately before the

commencement of a child-custody proceeding. In the case of a child less than six months

of age, the term means the state in which the child lived from birth with any of the

- 12 - 2015 IL App (2d) 141229

persons mentioned. A period of temporary absence of any of the mentioned persons is

part of the period.” (Emphasis added.) 750 ILCS 36/102(7) (West 2014).

¶ 35 This provision’s reference to “lived from birth” has been construed to mean the place

where the child occupies a home. In re D.S., 217 Ill. 2d 306, 317 (2005). The statute does not

define the term “commenced.”

¶ 36 The statute defines a “child” as “an individual who has not attained 18 years of age.” 750

ILCS 36/102(2) (West 2014). The UCCJEA, however, does not “authorize jurisdiction over a

child custody proceeding concerning an unborn child.” Waltenburg v. Waltenburg, 270 S.W.3d

308, 316 (Tex. App. 2008); see also In re Marriage of Skelton, 352 Ill. App. 3d 348, 352 (2004)

(under prior statute—Uniform Child Custody Jurisdiction Act (750 ILCS 35/4 (West 2002))—

definition of “child” did not include fetuses).

¶ 37 Again, the UCCJEA’s jurisdictional provision states that section 201(a) therein “is the

exclusive jurisdictional basis for making a child-custody determination by a court of this State.”

(Emphasis added.) 750 ILCS 36/201(b) (West 2014). The statute defines a “child-custody

determination” as “a judgment, decree, or other order of a court providing for the legal custody,

physical custody, or visitation with respect to a child. The term includes a permanent,

temporary, initial, and modification order. The term does not include an order relating to child

support or other monetary obligation of an individual.” 750 ILCS 36/102(3) (West 2014). 1

1 It defines a “child-custody proceeding,” in contrast, as “a proceeding in which legal

custody, physical custody, or visitation with respect to a child is an issue. The term includes a

proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity,

termination of parental rights, and protection from domestic violence, in which the issue may

appear. The term does not include a proceeding involving juvenile delinquency, contractual

- 13 - 2015 IL App (2d) 141229

¶ 38 A. Subject Matter Jurisdiction

¶ 39 We turn first to subject matter jurisdiction. Although on appeal Danielle now concedes

that subject matter jurisdiction, strictly speaking, is not at issue, we briefly address it to avoid

confusion and because Danielle’s motion to dismiss was brought pursuant to section 2-619(a)(1)

of the Code, the provision under which a party may raise a lack of subject matter jurisdiction.

We agree that the trial court has constitutionally-derived subject matter jurisdiction over James’s

¶ 40 In McCormick, our supreme court recently reiterated several longstanding principles.

The court noted that, with the exception of circuit courts’ power to review administrative

decisions, which is conferred by statute, circuit courts’ subject matter jurisdiction is conferred by

our state constitution. McCormick, 2015 IL 118230, ¶ 19. Pursuant to section 9 of article VI of

the Illinois Constitution, the jurisdiction of circuit courts extends to all “justiciable matters

except when the Supreme Court has original and exclusive jurisdiction relating to redistricting of

the General Assembly and to the ability of the Governor to serve or resume office.” Ill. Const.

1970, art. VI, § 9. “[A] matter is considered justiciable when it presents ‘a controversy

appropriate for review by the court, in that it is definite and concrete, as opposed to hypothetical

or moot, touching upon the legal relations of parties having adverse legal interests.’ ”

McCormick, 2015 IL 118230, ¶ 21 (quoting Belleville Toyota, Inc. v. Toyota Motor Sales,

U.S.A., Inc., 199 Ill. 2d 325, 335 (2002)).

¶ 41 Addressing compliance with statutory requirements, the court stated that this “involves

an altogether different set of values. *** [H]owever, the fact that the litigants or the court may

emancipation, or enforcement under Article 3.” (Emphases added.) 750 ILCS 36/102(4) (West

2014). Again, section 201 does not contain the term “child-custody proceeding.”

- 14 - 2015 IL App (2d) 141229

have deviated from requirements established by the legislature does not operate to divest the

court of jurisdiction.” (Emphasis added.) Id. ¶ 22. The court added:

“Similarly, while the General Assembly may create new justiciable matters

through legislation that create rights or duties that have no counterpart in common law or

at equity, our court has made clear that the establishment of a new justiciable matter

neither extends nor constrains the court’s jurisdiction. It could not, for except in the area

of administrative review, the jurisdiction of the circuit court flows from the constitution.

[Citation.] So long as a claim meets the requirements for justiciability, it will be

sufficient to invoke the court’s subject matter jurisdiction, even if the claim is defectively

stated. [Citation.] The only consideration is whether it falls within the general class of

cases that the court has the inherent power to hear and determine. If it does, then subject

matter jurisdiction is present.” (Emphases added and omitted.) Id. ¶ 23.

¶ 42 Addressing section 201 of the UCCJEA, which speaks of jurisdiction, the supreme court

explained that, as used therein, “jurisdiction” means “a procedural limit on when the court may

hear initial custody matters, not a precondition to the exercise of the court’s inherent authority.

It could not be more, for as we have held, that authority emanates solely from article VI, section

9, of our constitution.” (Emphasis added.) Id. ¶ 27. “Once a court has subject matter

jurisdiction over a matter, its judgment will not be rendered void nor will it lose jurisdiction

merely because of an error or impropriety in its determination of the facts or the application of

the law.” (Emphases added.) Id. ¶ 28. 2

2 In McCormick, the parties entered into a joint parenting agreement after the father filed

an action under the Parentage Act. Two years later, the father, who lived in Illinois, sought sole

custody, and the mother, who had moved with the child from Missouri to Nevada, moved to

- 15 - 2015 IL App (2d) 141229

¶ 43 Strictly construing Danielle’s motion as one asserting a lack of subject matter

jurisdiction, we conclude that the trial court had subject matter jurisdiction over James’s petition.

James’s petition presented claims for paternity, custody, and visitation under the Parentage Act

and the UCCJEA. These are justiciable matters, to which the trial court’s constitutionally

granted jurisdiction extends. Id. Further, even if James’s petition defectively stated his claims,

the trial court would not have been deprived of subject matter jurisdiction. Id. ¶ 22; see

Belleville Toyota, 199 Ill. 2d at 340.

¶ 44 Thus, we agree that the trial court had constitutionally derived subject matter jurisdiction

over James’s petition.

¶ 45 B. The Parentage Act and the UCCJEA

¶ 46 Next, turning to the dispositive issue in this case, Danielle asserts that her motion to

strike and dismiss is clearly based on the UCCJEA: custody determinations in Parentage Act

cases, she asserts, are subject to the UCCJEA, which requires that courts exercise their

jurisdiction consistently with that statute. Here, she argues, the trial court did not follow the

UCCJEA’s requirements and, thereby, erred in denying her motion to strike and dismiss with

respect to custody matters. She requests that we reverse that portion of the trial court’s order and

remand for the court to dismiss that portion.

vacate the prior judgment and dismiss the Illinois proceedings, arguing that, under the UCCJEA,

the Illinois court lacked subject matter jurisdiction. The trial court found its prior order void for

lack of subject matter jurisdiction. The supreme court held that the trial court erred in

invalidating its initial parentage determination, as the child-custody action was a justiciable

matter within the court’s jurisdiction (as conferred by the constitution). Id.

- 16 - 2015 IL App (2d) 141229

¶ 47 Construing Danielle’s motion to strike and dismiss as brought pursuant to section 2-

619(a)(9) of the Code of Civil Procedure (735 ILCS 5/2-619(a)(9) (West 2014) (claim asserted

“is barred by other affirmative matter avoiding the legal effect of or defeating the claim”)), we

conclude that the trial court erred in denying that portion related to custody.

¶ 48 When James filed his petition, the child was not yet born. His petition was brought

pursuant to the Parentage Act, which, unlike the UCCJEA, contemplates unborn children and

provides that, in such a case, the proceedings are stayed until after the child’s birth, “except for

service or process, the taking of depositions to perpetuate testimony, and the ordering of blood

tests under appropriate circumstances.” 750 ILCS 45/7(e) (West 2014). Here, the first issue the

trial court will likely address is paternity and, depending on its resolution, it might not need to

reach the custody and visitation issues. 3 Nevertheless, the Parentage Act’s jurisdictional

provision states that “circuit courts shall have jurisdiction of an action brought under this Act. In

any civil action not brought under this Act, the provisions of this Act shall apply if parentage is

at issue. The Court may join any action under this Act with any other civil action where

applicable.” (Emphasis added.) 750 ILCS 45/9(a) (West 2014). The Parentage Act also

provides that custody and visitation shall be determined pursuant to the factors in the Illinois

Marriage and Dissolution of Marriage Act and any other applicable law. 750 ILCS 45/14(a)(1)

(West 2014). The Illinois Marriage and Dissolution of Marriage Act, in turn, provides that a

“court of this State competent to decide child custody matters has jurisdiction to make a child

custody determination in original or modification proceedings as provided in Section 201 of” the

UCCJEA. 750 ILCS 5/601(a) (West 2014). Thus, clearly, a Parentage Act proceeding may have

3 It does not appear that paternity is greatly disputed here, but we recognize that, if James

is not found to be the biological father, our UCCJEA analysis will be rendered advisory.

- 17 - 2015 IL App (2d) 141229

joined with it a claim for custody pursuant to the UCCJEA. The question here is which state

may make the initial child-custody determination where an action requesting, inter alia, custody

is initiated before the child’s birth.

¶ 49 Here, James notes that the UCCJEA (in section 201, its jurisdictional provision) does not

identify a paternity ruling as constituting an “initial child-custody determination” within its

purview. It encompasses only: “a judgment, decree, or other order of a court providing for the

legal custody, physical custody, or visitation with respect to a child. The term includes a

permanent, temporary, initial, and modification order. The term does not include an order

relating to child support or other monetary obligation of an individual.” 750 ILCS 36/102(3)

(West 2014). However, James fails to note that the statute provides, with respect to custody

determinations, that it contains the exclusive provisions to make such determinations.

¶ 50 We find persuasive the foreign case law upon which Danielle relies, which supports her

position that James’s claims be bifurcated and the child-custody determination be made in

Colorado because that is the child’s home state due to his birth there. In Gray v. Gray, 139 So.

3d 802 (Ala. Civ. App. 2013), for example, the couple had lived in Alabama. The mother then

relocated to Michigan while she was pregnant. The father filed a divorce action in Alabama, and

the mother subsequently delivered the couple’s child in Michigan. The mother moved to dismiss

the father’s action, alleging that the Alabama court lacked jurisdiction to make a child-custody

determination under the UCCJEA. The trial court denied her motion, and the action proceeded

to trial. On appeal, the court chose to address subject matter jurisdiction, framing the first

inquiry as whether Alabama was the child’s home state under the UCCJEA. It noted that, when

the father commenced the divorce action, the child had not yet been born. Reviewing the

statutory definition of “home state,” the court first held that “an unborn child cannot have a home

- 18 - 2015 IL App (2d) 141229

state” and, thus, the UCCJEA does not provide a basis for jurisdiction over a child-custody

proceeding involving an unborn child. Id. at 806. The court further concluded that, because the

father had commenced the divorce action before the child’s birth, the home-state determination

“was necessarily deferred until its birth,” and, because the child had lived since birth only in

Michigan, Michigan was the child’s home state and the Alabama court lacked subject matter

jurisdiction to make an initial child-custody determination. (Emphasis added.) Id. at 808.

Furthermore, there was no other statutory basis for the exercise of subject matter jurisdiction. Id.

¶ 51 In a similar case, Waltenburg, 270 S.W.3d 308, a Texas reviewing court noted that the

commencement date is the date of the filing of the first pleading, but it held that a court cannot

have UCCJEA jurisdiction over a pre-birth custody claim in a state where the child had never

lived, because it would be contrary to the UCCJEA’s provisions prioritizing home-state

jurisdiction. Id. at 318. In Waltenburg, an Arizona couple separated while the mother was

pregnant, and she moved to Texas before their child’s birth. The father then filed for divorce in

Arizona, seeking custody of their unborn child. (Paternity was not at issue.) The child was born

in Texas and never lived in Arizona. After the child was born, the mother filed her own divorce

suit in Texas, also seeking custody. The Texas trial court dismissed the mother’s divorce action

in deference to the father’s pending Arizona action. The reviewing court first noted that

jurisdiction was determined as of the date on which the suit was filed in Texas and that the

child’s home state was determined as of the date of the commencement of the child-custody

proceeding, which was statutorily defined as the date of the filing of the first pleading in a

proceeding. Id. at 314. In that case, in which the child was less than six months old, the home

state was the state in which the child lived from birth with a parent. Id. The reviewing court

then held that the trial court erred in dismissing the Texas suit, because the “text of the UCCJEA

- 19 - 2015 IL App (2d) 141229

precludes its application to unborn children” and, thus, the Arizona court never properly obtained

jurisdiction over the father’s custody claim in his divorce action, which was filed before the child

was born. Id. at 317. Texas was the child’s home state on the date the mother filed the Texas

suit. Id. at 315. When the father filed his suit in Arizona, Arizona did not have jurisdiction over

the custody claim. Id. at 318. Alternatively, the Waltenburg court held that, “[e]ven if we

determined the Arizona court’s jurisdiction as of the date [the child] was born—instead of the

date Father filed suit—our conclusion that the Arizona court lacked jurisdiction over Father’s

custody claim does not change,” because Texas immediately became the child’s home state when

the child was born. Id. The UCCJEA, the court noted, does not authorize jurisdiction over a

custody claim before a child’s birth. Id. Because the UCCJEA does not apply to unborn

children and because the statute is the exclusive jurisdictional basis for making a child-custody

decision, “a court in a state that has adopted the UCCJEA cannot exercise jurisdiction over a

custody claim asserted regarding an unborn child” and, thus, comity did not require that Texas

recognize any Arizona custody determination not made in conformity with the UCCJEA. Id.;

see also In re Custody of Kalbes, 2007 WI App 136, ¶ 10 (the husband filed for divorce in Idaho

before the child’s birth; the wife, who had moved to Wisconsin, gave birth to their child in

Wisconsin and filed for custody afterward; the father then moved for custody in the Idaho action;

the reviewing court held that Wisconsin was the child’s home state because the child was born

there and lived there from birth; Wisconsin had jurisdiction over the custody proceeding); cf.

Berwick v. Wagner, 336 S.W.3d 805, 815-16 (Tex. App. 2011) (limiting Waltenburg to its facts

and holding that, where a “pre-birth suit and the ‘home state’ of the child are one and the same,

*** UCCJEA petitions can be filed pre-birth with the jurisdictional analysis reserved for post-

birth”). But see Barwick v. Ceruti, No. 02A05-1407-DR-350, 2015 WL 2183723, at *5 (Ind. Ct.

- 20 - 2015 IL App (2d) 141229

App. May 11, 2015) (pregnant wife moved to Canada from Indiana, and husband filed for

divorce in Indiana and moved to preserve jurisdiction over parentage and custody issues; child

was born in Canada; reviewing court held that, waiver aside, trial court did not abuse its

discretion in finding that Indiana had jurisdiction over unborn child’s custody; where the petition

was filed pre-birth, the child did not have a home state when proceedings commenced and no

other state had jurisdiction; further, although Canada later became the child’s “home state,”

Indiana did not lose jurisdiction but could have either continued jurisdiction or deferred it to

Canada).

¶ 52 The foregoing cases are persuasive, and we agree with their reasoning that a home-state

determination must be deferred until the child’s birth and that, upon the child’s birth, the birth

state—here, Colorado—becomes the home state. The trial court erred in assessing the case

under section 201(a)(2)’s significant-connection analysis and the factors thereunder, such as

Danielle’s residence and intent. As Danielle notes, foreign cases recognize that UCCJEA

“jurisdiction” does not exist prior to a child’s birth and conclude that the issues in cases such as

this be bifurcated and decided by different states’ courts. See In re Sara Ashton McK., 111

A.D.3d 474, 475 (N.Y. App. Div. 2013) (citing Waltenburg, 270 S.W.3d at 316-17); Gray, 139

So. 3d at 808 (determination must be deferred until child’s birth); see also In re Dean, 393

S.W.3d 741, 747 (Tex. 2013) (whether a Texas divorce action is filed is not relevant in

determining jurisdiction over child custody because the two proceedings involve different issues;

“one state may have jurisdiction over custody even if the divorce is decided by another state’s

court”); DeWitt v. Lechuga, 393 S.W.3d 113, 118 (Mo. Ct. App. 2013) (“analysis may well result

in bifurcated adjudications, where one state adjudicates paternity and child support and another

state adjudicates custody and parenting time”). The UCCJEA was enacted by most states

- 21 - 2015 IL App (2d) 141229

pursuant to a federal kidnapping-prevention act, which, in turn, sought to “avoid jurisdictional

competition and conflict between State courts” by extending full faith and credit to custody

decrees entered by sister state courts. (Internal quotation marks omitted.) Thompson v.

Thompson, 484 U.S. 174, 177 (1988). To hold here that Illinois may make an initial child-

custody determination, we believe, would ignore this goal and ignore that the UCCJEA gives

priority to the jurisdiction of the child’s “home state” (Diaz, 363 Ill. App. 3d at 1096), which for

a child less than six months old is defined as the birth state.

¶ 53 III. CONCLUSION

¶ 54 For the reasons stated, the judgment of the circuit court of Du Page County is affirmed in

part and reversed in part, and the cause is remanded with directions that the custody portion of

James’s petition be dismissed.

¶ 55 Affirmed in part and reversed in part; cause remanded with directions.

- 22 -