Fleckles v. Diamond

• Decision Date: 23 June 2015
• Docket Number: No. 2–14–1229.,2–14–1229.
• Citation: 35 N.E.3d 176
• Parties: James S. FLECKLES, Plaintiff–Appellee, v. Danielle J. DIAMOND, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

35 N.E.3d 176

James S. FLECKLES, Plaintiff–Appellee

v.Danielle J. DIAMOND, Defendant–Appellant.

No. 2–14–1229.

Appellate Court of Illinois, Second District.

June 23, 2015.

Phyllis J. Perko, of Law Offices of Harlovic & Perko, West Dundee, for appellant.

Robert G. Black, of Law Offices of Robert G. Black, Naperville, for appellee.

OPINION

Justice JORGENSEN

delivered the judgment of the court, with 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 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.

¶ 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 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 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.

¶ 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,...