In Re Marriage of Diaz

845 N.E.2d 935, 363 Ill. App. 3d 1091, 301 Ill. Dec. 70, 2006 Ill. App. LEXIS 223
CourtAppellate Court of Illinois
DecidedMarch 17, 2006
Docket2-05-1061
StatusPublished
Cited by44 cases

This text of 845 N.E.2d 935 (In Re Marriage of Diaz) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re Marriage of Diaz, 845 N.E.2d 935, 363 Ill. App. 3d 1091, 301 Ill. Dec. 70, 2006 Ill. App. LEXIS 223 (Ill. Ct. App. 2006).

Opinion

JUSTICE HUTCHINSON

delivered the opinion of the court:

Petitioner, Katharine L. Diaz, appeals the trial court’s order dismissing for lack of subject matter jurisdiction the child custody portion of the dissolution petition she filed against respondent, Scott A. Diaz. The trial court granted Scott’s motion to dismiss for lack of subject matter jurisdiction (735 ILCS 5/2 — 619(a)(1) (West 2004)), finding that Illinois was not the home state of the parties’ minor child, Madalyn, pursuant to the Uniform Child-Custody Jurisdiction and Enforcement Act (the UCCJEA) (750 ILCS 36/101 et seq. (West 2004)). The trial court also denied Katharine’s request to find that temporary emergency jurisdiction existed. We reverse and remand.

Katharine and Scott were married in Illinois in March 2003. The record reflects that the parties lived in Illinois until August 2003, when Scott moved to Michigan. Katharine remained in Illinois until October or November 2003, and then moved to Michigan. Katharine and Scott lived together in Michigan until December 2003 or January 2004, when Katharine returned to Illinois to live with her mother, Diane Roisland, in Lake Zurich. The record further reflects that, over the next few months, Katharine moved back and forth between Michigan and Illinois. On May 22 or 23, 2004, Katharine returned to Illinois to live with Roisland in Lake Zurich.

Madalyn was born in Lake County on October 22, 2004. Katharine and Madalyn lived in Lake Zurich with Roisland until December 19 or 20, 2004, when Katharine and Madalyn moved to Michigan to live with Scott. Katharine, Scott, and Madalyn lived together in Michigan until May 26, 2005, when Katharine and Madalyn returned to Illinois to live with Roisland.

On June 7, 2005, Katharine filed a petition for dissolution of marriage in the circuit court of Lake County. In her petition, Katharine sought sole custody of Madalyn. On July 21, 2005, Scott filed a motion to dismiss pursuant to section 2 — 619(a)(1) of the Code of Civil Procedure (the Code) (735 ILCS 5/2 — 619(a)(1) (West 2004)). In his motion, Scott argued that the trial court lacked subject matter jurisdiction under the UCCJEA to make an initial child custody determination, because Illinois was not the home state of Madalyn. Instead, Scott argued that Michigan had subject matter jurisdiction over the initial child custody determination. In support of his motion, Scott attached his own affidavit, in which he averred that Illinois had not been Madalyn’s home state for more than six months.

On August 8, 2005, Katharine filed a response to Scott’s motion to dismiss. In her response, Katharine argued that Illinois did have subject matter jurisdiction under the UCCJEA because Illinois was the home state of Madalyn. Katharine attached to her response two affidavits and a letter. In her own affidavit, Katharine averred that, during her pregnancy, Scott had terminated her medical insurance and that, after Madalyn’s birth, Scott had not devoted time to the care and rearing of Madalyn. Katharine also averred that she had been Madalyn’s primary caregiver since her birth. Katharine further averred that, on more than one occasion, Scott told her to leave the Michigan residence and return to Illinois to five with her mother because he did not want her there anymore.

Katharine also attached the affidavit of her mother, Diane Roisland. In the affidavit, Roisland averred that Katharine and Madalyn lived with her in Lake Zurich and that Katharine was Madalyn’s primary caregiver. Roisland also averred that she assisted Katharine with the care, feeding, and medical needs of Madalyn. Roisland averred that she has assisted Katharine in obtaining medical aid and food supplements from Illinois state agencies for Katharine and Madalyn and that she provided financial assistance for them.

Also attached to Katharine’s response was a July 19, 2005, letter written by Suma Karandikar, who was a clinical director of a counseling center located in Palatine. In the letter, Karandikar stated that, since June 16, 2005, Katharine had regularly attended weekly counseling sessions, had signed up for parenting classes, was working toward gaining training as a hair stylist to increase her earning capacity, and was seeking housing opportunities so that she and Madalyn could live independently.

Within her August 8, 2005, response to Scott’s motion to dismiss, Katharine requested the trial court to assume temporary emergency jurisdiction over child custody pursuant to section 204 of the UCCJEA (750 ILCS 36/204 (West 2004)).

On October 3, 2005, the trial court conducted a hearing on Scott’s motion to dismiss for lack of subject matter jurisdiction. Following the arguments of the parties, the trial court found that Illinois was not the home state of Madalyn at the time Katharine commenced the action, and it granted Scott’s motion to dismiss. The trial court also denied Katharine’s request to exercise temporary emergency jurisdiction, finding that neither Madalyn nor Katharine was subjected to or threatened with mistreatment or abuse. The trial court also made a finding pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)) that there was no just reason to delay enforcement or appeal of the order. Katharine subsequently filed a timely notice of appeal. 750 ILCS 36/314 (West 2004); 155 Ill. 2d R. 304(a).

On appeal, Katharine essentially presents two issues for review: (1) whether the trial court erred when it granted Scott’s motion to dismiss for lack of subject matter jurisdiction the child custody portion of the proceeding, and (2) whether the trial court abused its discretion when it denied her request for temporary emergency jurisdiction.

Scott’s motion to dismiss was brought pursuant to section 2 — 619(a)(1) of the Code (735 ILCS 5/2 — 619(a)(1) (West 2004)). Under section 2 — 619(a)(1) of the Code, a party may raise the trial court’s lack of subject matter jurisdiction as a defense to the proceedings. 735 ILCS 5/2 — 619(a)(1) (West 2004). When a party files a motion to dismiss pursuant to section 2 — 619, all well-pleaded facts and reasonable inferences are accepted as true. In re Marriage of Sullivan, 342 Ill. App. 3d 560, 562 (2003). Conclusions of law, however, are not accepted as true. Sullivan, 342 Ill. App. 3d at 563. As we stated in Sullivan, “[a] reviewing court should conduct an independent review of the propriety of dismissing the complaint and is not required to defer to the trial court’s reasoning.” Sullivan, 342 Ill. App. 3d at 563. Thus, the standard of review for a dismissal based on section 2 — 619 of the Code is de novo. In re Marriage of Morreale, 351 Ill. App. 3d 238, 240 (2004).

Scott asserts that we should apply an abuse-of-discretion standard to review the trial court’s decision and cites Gagliardo v. Caffrey, 344 Ill. App. 3d 219, 225 (2003), in support thereof. The issue in Gagliardo concerned a review of the trial court’s ruling on a motion to disqualify counsel.

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Cite This Page — Counsel Stack

Bluebook (online)
845 N.E.2d 935, 363 Ill. App. 3d 1091, 301 Ill. Dec. 70, 2006 Ill. App. LEXIS 223, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-marriage-of-diaz-illappct-2006.