In re Marriage of O'Hare

2017 IL App (4th) 170091, 79 N.E.3d 712

• Court: Appellate Court of Illinois
• Decided: May 9, 2017
• Docket: 4-17-0091
• Status: Unpublished

Opinion

FILED

May 9, 2017

Carla Bender

2017 IL App (4th) 170091 4th District Appellate

Court, IL

NO. 4-17-0091

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In re MARRIAGE OF ) Appeal from

THERESA O’HARE, ) Circuit Court of

Petitioner-Appellee, ) Sangamon County

and ) No. 09D386

RONALD G. STRADT, ) Respondent-Appellant. ) Honorable

) Jennifer M. Ascher,

) Judge Presiding.

JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Justices Holder White and Appleton concurred in the judgment and opinion.

OPINION

¶1 In March 2010, the trial court dissolved the marriage of petitioner, Theresa

O’Hare, and respondent, Ronald G. Stradt. In its dissolution order, the court granted Stradt

parenting time with the parties’ minor child (born August 31, 2006) on every other Tuesday

evening and every other Wednesday evening through Friday morning.

¶2 In August 2016, Stradt filed a motion to modify parenting time, seeking to forego

parenting time on Tuesdays in exchange for parenting time on every Wednesday and Thursday,

which represented a 6% increase in his parenting time. In response, O’Hare filed a motion to

dismiss pursuant to section 2-615 of the Code of Civil Procedure (Civil Code) (735 ILCS 5/2­

615 (West 2014)). Following a September 2016 hearing, the trial court granted O’Hare’s motion and dismissed Stradt’s motion to modify parenting time. Specifically, the court found that

Stradt’s request was not a “minor modification” as contemplated by section 610.5(e)(2) of the

Illinois Marriage and Dissolution of Marriage Act (Dissolution Act) (750 ILCS 5/610.5(e)(2)

(West Supp. 2015)), which the legislature had recently modified.

¶3 Stradt appeals, arguing that the trial court erred by granting O’Hare’s motion to

dismiss. Specifically, Stradt contends that the court (1) failed to “accept as true all well-pleaded

facts, and all reasonable inferences that may be drawn from those facts,” when considering

O’Hare’s motion to dismiss, and (2) did not properly apply the rules of statutory construction

when interpreting what Stradt characterizes as the “ambiguous” term “minor modification.” We

affirm.

¶4 I. BACKGROUND

¶5 In May 2008, O’Hare and Stradt married, and the parties had a minor child. Their

marriage was dissolved in March 2010, and pursuant to the dissolution order, Stradt was

allocated the following parenting time:

“(1) *** alternat[ing] weekends *** beginning from Friday

afternoon until Monday morning at 9:00 a.m. ***

(2) *** [Stradt] shall be entitled to mid-week visitation on the

Tuesday nights before his weekend visitations from 4:30-5:00 p.m.

until Wednesday morning *** no later than 9:00 a.m. ***

(3) during the weeks in which he does not have weekend visitation,

[Stradt] shall have visitation on Wednesday from 4:30-5:00 p.m.

until *** no later than 9:00 a.m. on Friday.”

-2­ Holidays and school breaks were reasonably and equally divided between the parties. The

arrangement allocated 56% of the parenting time to O’Hare, while Stradt was allocated the

remaining 44% of the parenting time.

¶6 In December 2015, Stradt filed his first motion to modify parenting

responsibilities, seeking “sole custody” of the parties’ minor child, subject to O’Hare’s

reasonable visitation. In January 2016, O’Hare filed a motion to increase Stradt’s child-support

obligations, citing a substantial increase in his income as the basis for the motion. The trial court

ordered the parties to mediate these issues and scheduled a March 2016 hearing. The mediation

was unsuccessful. (O’Hare’s January 2016 filing is not at issue in this appeal.)

¶7 In March and April 2016, the parties filed individual parenting plans. Stradt

sought, inter alia, sole decision-making responsibilities and parenting time on alternating

weekends and every Monday and Tuesday evening. O’Hare urged the trial court to find that no

legal basis was shown for a modification to the original parenting plan and requested that the

original plan remain in place. O’Hare also filed a motion to dismiss Stradt’s December 2015

motion to modify parental responsibilities.

¶8 At a May 2016 hearing, the trial court granted Stradt leave to file an amended

motion to modify parental responsibilities, which Stradt filed immediately thereafter. Stradt’s

amended motion sought sole decision-making responsibilities and equal parenting time,

characterizing his request as a “minor modification” pursuant to section 610.5(e)(2) of the

Dissolution Act. In response, O’Hare filed a motion to dismiss Stradt’s amended motion, arguing

that (1) the parenting plan had been modified within the preceding two years, and therefore, it

could not be modified absent a stipulation between the parties; and (2) Stradt’s motion failed to

-3­ set forth a legal basis for a modification to the parenting plan. O’Hare characterized Stradt’s

amended motion as follows:

“[T]he entire Amended Motion to Modify Parental Responsibilities

does nothing more than confirm previous Orders of this Court that

[Stradt] continues to argue over minutia to the extent of causing

disruption in the working relationship of the parties resulting in

extreme difficulties for [O’Hare] to address and deal with [Stradt]

on child-related matters.”

¶9 On July 8, 2016, the trial court determined that the parenting plan had not been

modified within the preceding two years, but it found “merit in [O’Hare’s] contention that many

of the allegations contained in [Stradt’s] Amended Motion to Modify Parental Responsibilities

[had] been previously litigated or constitute[d] conduct that [did] not affect either parent’s

relationship to the minor child.” Following the court’s order, Stradt’s attorney, Adam Giganti,

sought leave to withdraw, citing “irreconcilable differences *** concerning the representation”

of Stradt. At a July 18, 2016, hearing, the court granted Giganti’s motion to withdraw, and

Stradt, a licensed attorney, stated his intention to proceed pro se. The court then granted Stradt

leave to file an amended motion to modify the parties’ parenting plan.

¶ 10 At an August 2016 hearing, Stradt made an oral motion to withdraw all previous

motions to modify the parenting plan, which the trial court granted. At that time, Stradt filed the

motion to modify parenting time that is the subject of this appeal. Specifically, Stradt sought to

change his parenting time from every other Tuesday evening and every other Wednesday

evening through Friday morning to every Wednesday evening through Friday morning. The

-4­ modification would increase Stradt’s parenting time by 6% and would result in Stradt and

O’Hare sharing parenting time equally, 50% apiece.

¶ 11 In September 2016, O’Hare filed a motion to dismiss the motion to modify

parenting time, alleging that (1) Stradt failed to allege a change of circumstances and (2) the

modification sought was not a minor modification as contemplated by section 610.5(e)(2) of the

Dissolution Act. Later that month, the trial court granted O’Hare’s motion to dismiss, finding

that “an additional overnight every 14 days is not a minor modification as contemplated by 750

ILCS 5/610.5(e).”

¶ 12 This appeal followed.

¶ 13 II. ANALYSIS

¶ 14 A. Standard of Review

¶ 15 We review de novo a trial court’s dismissal pursuant to section 2-615 of the Civil

Code. Blumenthal v. Brewer, 2016 IL 118781, ¶ 19, 69 N.E.3d 834.

“Such motions challenge the legal sufficiency of a pleading based

on defects apparent on its face. [Citation.] In ruling on a section 2­

615 motion, a court must accept as true all well-pleaded facts and

all reasonable inferences that may be drawn from those facts.

[Citation.] It is well understood that the critical inquiry is whether

the [factual] allegations of the complaint, when construed in the

light most favorable to the plaintiff, are sufficient to establish a

cause of action upon which relief may be granted.” Id.

Stradt’s argument also requires us to interpret section 610.5(e) of the Dissolution Act, which

-5­ presents a question of law that we likewise review de novo. In re N.C., 2014 IL 116532, ¶ 50, 12

N.E.3d 23.

¶ 16 B. Stradt’s Motion To Modify Parenting Time

¶ 17 In January 2016, the Illinois General Assembly amended section 610.5 of the

Dissolution Act to allow modification of parenting time absent a substantial change in

circumstances in limited situations. See Pub. Act 99-90, § 5-15 (eff. Jan. 1, 2016) (adding 750

ILCS 5/610.5). The amended section provides, in relevant part:

“The court may modify a parenting plan or allocation judgment

without a showing of changed circumstances if (i) the modification

is in the child’s best interests; and ***

***

[(ii)(2)] the modification constitutes a minor modification

in the parenting plan or allocation judgment[.]” 750 ILCS

5/610.5(e) (West Supp. 2015).

¶ 18 Stradt’s motion alleged, in relevant part,

“5. That increasing [Stradt’s] parenting time by 6% constitutes

a minor modification of parenting time in that [Stradt] seeks the

following change to the parenting times as provided in the

Judgment for Dissolution:

From: every other Tuesday and every other

Wednesday/Thursday

To: every Wednesday/Thursday.

-6­ 6. That said minor modification is in the minor child’s

best interest, provides greater stability, and maximizes the child’s

relationship and access to both parents as intended by 750 ILCS

602.10(g).”

¶ 19 1. Presumption Regarding a Section 2-615 Motion To Dismiss

¶ 20 Stradt contends that the trial court failed to “accept as true all well-pleaded facts,

and all reasonable inferences that may be drawn from those facts,” when considering O’Hare’s

motion to dismiss. O’Hare responds that Stradt failed to provide a factual basis for his motion

and, instead, asserted various conclusions. We agree with O’Hare.

¶ 21 In his brief, Stradt alleges that the trial court failed to accept as true his allegation

that “increasing [his] parenting time by 6% constituted a minor modification of parenting time.”

However, this allegation is a legal conclusion—not a fact. The court was not required to accept

this allegation as true and was at perfect liberty to disregard Stradt’s interpretation of the statute.

¶ 22 Stradt also alleges that the trial court failed to accept as true “reasonable

inferences,” such as “said minor modification is in the minor child’s best interest, provides

greater stability, and maximizes the child’s relationship and access to both parents.” The

determination that the modification was in the child’s best interest is, again, a legal conclusion

that the court was free to accept or reject. The allegations that the proposed modification would

provide greater stability and maximize the child’s relationship and access to both parents are

factual conclusions that are unsupported by specific factual allegations and are, again,

conclusions the court was free to accept or reject. See Patrick Engineering, Inc. v. City of

Naperville, 2012 IL 113148, ¶ 31, 976 N.E.2d 318 (courts are not required to accept as true

-7­ conclusory factual allegations unsupported by specific facts).

¶ 23 Simply put, Stradt failed to allege any specific facts supporting his motion, but,

instead, alleged various conclusory statements that the trial court was free to accept or reject. We

conclude that the trial court did not err by declining to accept as true the conclusory allegations

set forth in Stradt’s motion.

¶ 24 2. Interpretation of Section 610.5(e) of the Dissolution Act

¶ 25 Stradt contends that the trial court did not properly apply the rules of statutory

construction when interpreting what Stradt characterizes as the “ambiguous” term “minor

modification.” We disagree.

¶ 26 As previously stated, section 610.5(e) of the Dissolution Act states that a trial

court may modify parenting time in cases where (1) the modification is in the best interests of the

child and (2) the modification is minor. 750 ILCS 5/610.5(e) (West Supp. 2015). “The

fundamental goal of statutory construction is to ascertain and give effect to the legislature’s

intent, best indicated by giving the statutory language its plain and ordinary meaning.” N.C.,

2014 IL 116532, ¶ 50, 12 N.E.3d 23. We “enforce clear and unambiguous statutory language as

it is written, and we will not read into it exceptions, conditions, or limitations not expressed by

the legislature.” Id.

¶ 27 Stradt’s argument rests on his assertion that the term “ ‘minor modification’ is a

term susceptible to differing subjective interpretations.” We disagree. Without having to resort to

any authorities beyond the plain language of the statute, it is commonly known that the term

minor is synonymous with “small” or “inconsequential.” Stradt’s request would change the

parenting plan from one parent serving as the primary custodial parent to both parents having

-8­ equal parenting time. We decline to interpret such a change as constituting a minor modification

within the meaning of section 610.5(e) of the Dissolution Act.

¶ 28 This interpretation is consistent with the language of the statute in its entirety,

which, though amended to ease the ability to modify parenting plans in certain situations,

maintains a policy favoring the finality of the order outlining the parenting plan. Excepting

section 610.5(e), a party seeking a modification must still show a substantial change in

circumstances to request a modification pursuant to section 610.5(c) of the Dissolution Act (750

ILCS 5/610.5(c) (West Supp. 2015)). This provision evinces a desire to maintain continuity in

parenting plans, which is a policy this court has long favored. See In re Marriage of Wycoff, 266

Ill. App. 3d 408, 409-10, 639 N.E.2d 897, 900 (1994).

¶ 29 Stradt cites section 102 of the Dissolution Act (750 ILCS 5/102 (West Supp.

2015)), which sets forth the purposes of the Dissolution Act and states the statutory language

should be liberally construed to effectuate the stated purposes. Such purposes include promoting

children’s rights to “strong and healthy relationship[s] with parents” and to “secure the

maximum involvement and cooperation of parents” (750 ILCS 5/102(7)(A), (D) (West Supp.

2015)), which are phrases Stradt used in his motion. Stradt argues that his proposed

modifications effectuate these purposes. However, this argument is misguided. The fact that a

proposed modification might effectuate a statutory purpose does not automatically mean that the

proposed modification is minor within the meaning of section 610.5(e).

¶ 30 In sum, we conclude that (1) the plain language of the statute supports the trial

court’s interpretation of the term “minor modification,” and (2) the court did not fail to adhere to

the rules of statutory construction. We commend the trial court for its thoughtful, patient

-9­ resolution of the arguments raised by Stradt and for the concise reasoning outlined in its written

order.

¶ 31 III. CONCLUSION

¶ 32 For the foregoing reasons, we affirm the trial court’s judgment.

¶ 33 Affirmed.

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