Fisher v. Waldrop

• Decision Date: 20 April 2006
• Docket Number: No. 100443.,100443.
• Citation: 849 N.E.2d 334
• Parties: Vincent FISHER, Appellee, v. Jill WALDROP, Appellant.
• Court: Illinois Supreme Court

849 N.E.2d 334

Vincent FISHER, Appellee, v. Jill WALDROP, Appellant.

No. 100443.

Supreme Court of Illinois.

April 20, 2006.

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Kelli E. Hillis, Howard W. Feldman, of Feldman, Wasser, Draper & Benson, Springfield, for appellant.

Gregory A. Scott, of Scott & Scott, P.C., Springfield, for appellee.

Justice FREEMAN delivered the judgment of the court, with opinion.

This appeal involves amendments to the Illinois Parentage Act of 1984 (750 ILCS 45/1 et seq. (West 2002)) concerning removal of children from Illinois.

BACKGROUND

Vincent Fisher and Jill Waldrop¹ never married, but were involved in a relationship for several years. They had a child, Callie, who was born in February 1998. In August 2000 Fisher and Waldrop ended their relationship, and in May 2001 Fisher filed a petition to establish the parent/child relationship. Waldrop admitted that Fisher was Callie's father, and in December 2002 the circuit court of Sangamon County entered an order to that effect. The court awarded custody of Callie to Waldrop, but also set forth an extensive and detailed visitation schedule for Fisher. In its order, the court "decline[d] to impose geographic restrictions on Jill's choice of residence." In its order disposing of both parties' motions for reconsideration, the court specified that "[i]n the event [Waldrop] decides to move from her present residence, whether that move be intrastate or interstate, the issue of visitation between [Fisher] and Callie will be re-visited based upon the circumstances that exist at that time."

In December 2003, approximately a year after the order establishing paternity, Fisher filed a petition for temporary and permanent injunction pursuant to section 13.5 of the Parentage Act (750 ILCS 45/13.5 (West 2004)). In that petition Fisher alleged that Waldrop had notified him that she planned to move to Indiana with Callie and her new husband in 2004. Fisher asserted that Waldrop had not sought permission from the court to remove Callie from the state, as he contended she was required to do, and argued that to permit Waldrop to remove Callie from Illinois would cause irreparable harm to his relationship with Callie and would not be in Callie's best interests. Fisher asked the court to enjoin Waldrop from removing Callie from Illinois.

Shortly thereafter, Waldrop filed a petition pursuant to section 609 of the Illinois Marriage and Dissolution of Marriage Act (the Marriage Act) (750 ILCS 5/609 (West 2004)) for leave to remove Callie from Illinois. In the petition Waldrop noted that she had remarried and her new spouse had found employment in Indiana despite having been unable to do so in Illinois. Accordingly, she argued, it would be in Callie's best interests to permit Waldrop to remove her from Illinois. However, approximately a week after filing her petition for leave to remove, Waldrop moved to dismiss the petition. In the motion to dismiss, Waldrop noted that she and Fisher were never married, and asserted that "750 ILCS 45/13.5 governs petitions for removal in paternity cases, and it is the Petitioner's burden of proof to show that injunction is appropriate."

The court held a hearing on Fisher's petition in June 2004. At the outset of the hearing the court ruled that as a legal matter, the burden was on the person objecting to removal—in this case, Fisher—to establish that removal would not be in the child's best interests. The hearing lasted several days. Not only did Waldrop and Fisher both testify, they also introduced numerous exhibits and expert testimony regarding the effect on Callie of the proposed move.

Shortly after the conclusion of the hearing, the court rendered its decision in a lengthy written order. The court found that both Waldrop and Fisher were responsible for their acrimonious relationship with each other, but also found that "[b]ut for their relationship with one another, both [Fisher] and [Waldrop] are good, loving, effective parents." Relevant to our disposition of this case is the following portion of the court's order:

"If the court were only to consider what is in the best interests of Callie Fisher, the court would conclude that it is not in the best interests of Callie that she be removed from the State of Illinois. The move from Springfield, Illinois to Richmond, Indiana will separate Callie from a parent with whom she has a close, loving relationship; she will be removed from the home in which she has been raised since shortly after her birth; her contact with her extended family, with whom she has a close relationship, will be substantially curtailed; she will move to a location where she has no extended family or friends; she will be subjected to a difficult commute in order to visit her father and other extended family members; she is moving to a community that does not have the resources that Springfield has; and strained communications between two parents (which the court attributes to each parent) will become almost impossible. The court also has substantial concern about how Callie will be cared for in Richmond when [Waldrop] is away from home for her craft shows which are her livelihood. The court has substantial concerns about the nature of the relationship between Callie and [Waldrop's new husband]. By virtue of this Order Callie will have to go through a period of adjustment with a new step-parent in her home as well as a period of adjustment to a new community, in a new school, meeting new friends, all of which will have to be accomplished without her father or her extended family with whom she is very close and on whom she relies for emotional support. These problems were foreseeable when [Waldrop] elected to marry a man who had not lived in Illinois prior to the marriage and who planned to move the family to Georgia after marriage. It is a finding of this court that one of [Waldrop's] motives to marry and move away from Springfield was to separate herself from [Fisher]. The court also finds that [Fisher] is partly responsible for this result based upon his conduct towards [Waldrop].

* * *

The court concludes from the evidence that indirect benefits to Callie require the court to deny the Complaint for Injunctive Relief and thereby permit [Waldrop] to remove Callie to the State of Indiana. [Waldrop's new husband] was not able to find employment in Illinois. The job he has found in Indiana is a well paying job. [Waldrop] is pregnant, so that if the court allows the Injunction the unborn baby will be separated from his father, balanced against a granting of the injunction which will result in Callie being separated from [Fisher]. No matter what the court orders one child will lose contact with a parent. In this circumstance the benefit to [Waldrop] that indirectly benefits Callie is sufficient to warrant the denial of the Complaint for Injunctive Relief."

Fisher appealed. In proceedings before the appellate court, Waldrop's appellee brief was due on December 9, 2004. That date passed without Waldrop having filed a brief. Approximately two weeks later, on December 27, Waldrop's new counsel filed a motion requesting additional time to file Waldrop's appellate brief. Although Fisher made no objection, the appellate court denied Waldrop leave to file a late brief. In its opinion disposing of the case, the appellate court noted that Waldrop had "failed to file a brief," but stated that "the claimed error is such that we can decide this appeal on the merits without the aid of [Waldrop's] appellee brief." 355 Ill.App.3d 1130, 1137, 291 Ill.Dec. 365, 823 N.E.2d 657, citing First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill.2d 128, 133, 345 N.E.2d 493 (1976).

The appellate court reversed and remanded, directing the circuit court to grant Fisher a permanent injunction. 355 Ill.App.3d 1130, 291 Ill.Dec. 365, 823 N.E.2d 657. The court noted that the legislature had amended the Parentage Act in 2003 to deal with removal, and found that the amendments were intended to achieve two ends: to give never-married noncustodial parents a way to forestall removal while custody issues were pending; and to incorporate section 609 of the Marriage Act into the Parentage Act, "thereby requiring custodial parents to seek leave to remove a child from the state under the standards set forth in section 609." 335 Ill.App.3d at 1139, 270 Ill.Dec. 531, 783 N.E.2d 106. The court held that the custodial parent had the burden of proving that removal was in the child's best interests in Parentage Act proceedings, just as they would in Marriage Act proceedings pursuant to section 609, and the circuit court erred by placing the burden of proof on Fisher, the noncustodial parent. The court further ruled that the circuit court's order denying the injunction was against the manifest weight of the evidence because the court had found that removal was not in Callie's best interests. 335 Ill.App.3d at 1139-40, 270 Ill.Dec. 531, 783 N.E.2d 106. Finally, the appellate court held that the circuit court had erred in granting Waldrop permission to remove Callie from Illinois, because there was no petition for removal pending before the court.

Justice McCullough dissented. 335 Ill. App.3d at 1142-43, 270 Ill.Dec. 139, 782 N.E.2d 333 (McCullough, J., dissenting). He agreed with the majority that section 609 of the Marriage Act controlled, but did not believe that the circuit court had evaluated Callie's best interests for purposes of making a section 609 determination. He would have remanded for the circuit court to perform such an evaluation rather than ordering the circuit court to grant a permanent injunction.

We granted Waldrop's petition for leave to appeal. See 155 Ill.2d R. 315(a).

ANALYSIS

Waldrop raises two arguments before this court. She argues first that the appellate court violated her due process rights when the court refused to allow her to file a late appellate brief. In the alternative, she argues that the appellate court's...