Felzak v. Hruby

• Decision Date: 20 September 2007
• Docket Number: No. 103755.,103755.
• Citation: 876 N.E.2d 650,226 Ill.2d 382
• Parties: Geraldine FELZAK, Appellee, v. Ralph HRUBY et al., Appellants.
• Court: Illinois Supreme Court

876 N.E.2d 650

226 Ill.2d 382

Geraldine FELZAK, Appellee, v. Ralph HRUBY et al., Appellants.

No. 103755.

Supreme Court of Illinois.

September 20, 2007.

Carl F. Schroeder, Wheaton, for appellants.

Emily R. Carrara, Maureen Sullivan Taylor, of Sullivan Taylor & Gumina, Wheaton, for appellee.

OPINION

Justice BURKE delivered the judgment of the court, with opinion:

In this case we are asked to revisit our decision in In re M.M.D., 213 Ill.2d 105, 289 Ill.Dec. 616, 820 N.E.2d 392 (2004), and again address whether Wickham v. Byrne, 199 Ill.2d 309, 263 Ill.Dec. 799, 769 N.E.2d 1 (2002), which held unconstitutional Illinois' grandparent visitation statute, invalidated a preexisting agreed order for grandparent visitation. However, because the minor who was the subject of the agreed visitation order at issue here has turned 18 during the pendency of this appeal, the case has been rendered moot. We vacate the judgments of the courts below and remand the cause with instructions to dismiss.

Background

Ralph and Deborah Hruby were married in 1977 and had three children: Greg, born November 25, 1983, Jeff, born August 4, 1985, and Katie, born July 22, 1989. Shortly after Katie's birth, in October of 1989, Deborah died of a cerebral hemorrhage.

In 1992, Ralph married Sondra. Sondra Hruby adopted Ralph's three children in November of 1993.

Geraldine Felzak is the mother of Deborah Hruby. In the spring of 1994, Geraldine filed an amended petition for grandparent visitation in the circuit court of Du Page County pursuant to section 607(b) of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/607(b) (West 1992)). In the petition, Geraldine alleged that, following the death of her daughter, she had cared for and maintained close contact with Greg, Jeff and Katie. Geraldine further alleged that, in December of 1993, Ralph and Sondra had informed her that she would no longer be permitted to have visitation with the children. Geraldine sought an order establishing reasonable visitation privileges.

Ralph and Sondra filed an answer to Geraldine's amended petition for grandparent visitation. Included in their answer was the affirmative defense that section 607(b) of the Illinois Marriage and Dissolution of Marriage Act, commonly known as the grandparent visitation statute, was unconstitutional under both the federal and state constitutions. In support of this contention, Ralph and Sondra maintained, among other things, that the statute permitted "undue interference with the fundamental right of parents to raise children and conduct family life * * * in the absence of a compelling State interest." Ralph and Sondra sought dismissal of Geraldine's petition.

On April 29, 1994, the circuit court referred the parties to a psychologist for conciliation counseling. In October of 1994, the psychologist submitted a "Psychological Evaluation/Conciliation Report," which recommended that visitation between Geraldine and the children continue.

On December 16, 1994, the parties entered into an agreed order in "full and complete settlement of all pending petitions and responses thereto." Pursuant to recommendations contained in the conciliation report, the parties agreed that Geraldine would be permitted visitation with her grandchildren one day a month for six hours, and would be permitted to visit over the phone with the children for up to 30 minutes, once a month. The parties further agreed that, in the event of a dispute regarding the terms of the order, they would meet with a conciliator to mediate the disagreement, before proceeding to court.

Some four months later, in April of 1995, Geraldine filed a "Petition for Further Conciliation and Other Relief." In this petition, Geraldine alleged that, since the entry of the December 16, 1994, agreed order, she had not had any visitation with Greg or Jeff. Geraldine also alleged that Katie, while visiting with her, had requested additional visitation time, including overnight visitation. Geraldine requested that the court direct Ralph and Sondra to participate in further conciliation to resolve these issues.

Geraldine's petition was set for hearing in August of 1995. Prior to that date, however, on June 15, 1995, the parties entered into a second agreed order. In this order, the parties agreed to increase Geraldine's visitation with Katie from 6 hours per month to a total of 10 hours per month, with the terms of the first agreed order otherwise remaining in effect. In addition, Geraldine agreed to withdraw her pending petition for further conciliation and other relief.

Almost 10 years later, on February 24, 2005, Geraldine filed a petition pursuant to section 607.1 of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/607.1 (West 2004)), seeking to enforce the agreed order of June 15, 1995. By this time, the two older Hruby children, Greg and Jeff, had reached majority. Katie was 15. In the petition to enforce, Geraldine alleged that Ralph had willfully and without justification denied her visitation with Katie since May of 2004. Geraldine requested the court to direct Ralph to comply with the agreed order entered on June 15, 1995, and award makeup visitation time with Katie.

In response to Geraldine's petition, Ralph and Sondra filed an amended motion to dismiss pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 2004)). Ralph and Sondra argued in the motion that, because Wickham v. Byrne, 199 Ill.2d 309, 263 Ill.Dec. 799, 769 N.E.2d 1 (2002), had held the grandparent visitation statute unconstitutional on its face, the statute was void ab initio, and the circuit court had no subject matter jurisdiction to enter the agreed order of June 15, 1995. Thus, according to Ralph and Sondra, the June 1995 order was void and unenforceable, and Geraldine's petition to enforce that order should be dismissed.

In further pleadings, Ralph and Sondra also sought to distinguish this court's decision in In re M.M.D., 213 Ill.2d 105, 289 Ill.Dec. 616, 820 N.E.2d 392 (2004). In In re M.M.D., this court held that an agreed order establishing custody of a minor, which included a provision for grandparent visitation, was not invalidated by Wickham. In so holding, we stated that the agreed order for visitation was a consent decree. As such, the order was not a judicial determination of the parties' rights but, rather, a recording of their agreement. In re M.M.D., 213 Ill.2d at 114, 289 Ill.Dec. 616, 820 N.E.2d 392. We then explained that the agreement for grandparent visitation was not at odds with Wickham:

"The constitution prohibits the state from forcing fit parents to yield visitation rights to a child's grandparents when the parents do not wish to do so merely because a trial judge believes that such visitation would be appropriate. See Wickham, 199 Ill.2d at 320-22 [263 Ill.Dec. 799, 769 N.E.2d 1]. There is no corresponding constitutional prohibition against a fit parent's decision to voluntarily bestow visitation privileges on his child's grandparents. To the contrary the very constitutional principles that required us to strike down the grandparent visitation statute in Wickham require that a parent's voluntary visitation decision be honored. If fit parents have a fundamental right to make decisions regarding the care, custody and control of their children, as Wickham and the cases on which it was based held, they must likewise have the fundamental right to agree to visitation by the children's grandparents if they wish to do so. To hold otherwise would require us to fashion a rule under which a parent's right to choose the persons with whom a child associates somehow stops at the grandparents' front door. We can see no possible justification for imposing such a limitation. The constitutional protections afforded parenthood therefore obligate the courts to uphold voluntary visitation agreements made by fit parents, not declare them invalid. As a result, the circuit and appellate courts were correct to conclude that the voluntary visitation agreement into which Johnson entered with the Duncans was not void and unenforceable." (Emphasis in original.) In re M.M.D., 213 Ill.2d at 115-16, 289 Ill.Dec. 616, 820 N.E.2d 392.

Before the circuit court, Ralph and Sondra noted that the agreed order for grandparent visitation which was at issue in In re M.M.D. arose out of custody proceedings brought under the Illinois Parentage Act and the Illinois Probate Act. In this case, however, Geraldine's petition for visitation was brought solely under the grandparent visitation statute held unconstitutional in Wickham. From this, Ralph and Sondra maintained that, while subject matter jurisdiction was present at the time the agreed order was entered in In re M.M.D., it was lacking when the June 15, 1995, order was entered in the case at bar.

The circuit court denied Ralph and Sondra's motion to dismiss Geraldine's petition to enforce. In so ruling, the circuit court emphasized that Ralph and Sondra could have pursued their constitutional challenge to the grandparent visitation statute at the time Geraldine filed her petition for visitation but, instead, chose to settle. Because Ralph and Sondra "did not pursue [their] objection to the jurisdiction of the Court at the time [they] entered into the agreed order," the circuit court found this case controlled by In re M.M.D. The circuit court concluded, therefore, that the June 15, 1995, agreed order remained valid and enforceable.

Thereafter, Geraldine filed a petition for rule to show cause why Ralph and Sondra should not be held in contempt of court for failing to comply with the agreed order of June 15, 1995. Following a hearing, and based primarily on the reasoning offered in denying the motion to dismiss Geraldine's petition to enforce, the circuit court held Ralph and Sondra in indirect civil contempt for failing to comply with the June 15, 1995, order. The circuit court also ordered, sua sponte, th...