In re Marriage of Dobbs, 5-03-0644.

Decision Date07 June 2005
Docket NumberNo. 5-03-0644.,5-03-0644.
Citation831 N.E.2d 1154
PartiesIn re MARRIAGE OF Hyla Jane DOBBS, Petitioner-Appellant, and Alva Lee Dobbs, Respondent-Appellee.
CourtIllinois Supreme Court

Joshua M. Bradley, Law Offices of Harvey & Bradley, LLC, Mt. Vernon, for Appellant.

Hallin B. Burgan, Timothy R. Neubauer, Neubauer, Hanson & Overstreet, P.C., Mt. Vernon, for Appellee.

Justice GOLDENHERSH delivered the opinion of the court:

Petitioner, Hyla Jane Dobbs, appeals from an order of the circuit court of Jefferson County holding her in indirect civil contempt for her interference with visitation between her Down's syndrome daughter, Jodi, age 38, and respondent, Alva Lee Dobbs, in violation of the parties' 1991 divorce decree, and requiring that Jodi continue visitation with respondent. On appeal, petitioner argues (1) the trial court lacked subject matter jurisdiction to order visitation between Jodi and respondent because Jodi was an adult at the time the visitation order was entered in 1991 and (2) the trial court erred in holding petitioner in indirect civil contempt. For the following reasons, we agree with petitioner and reverse the order of the circuit court.

FACTS

The parties were married on January 1, 1955. Two children were born during the marriage, Janalee and Jodi. Jodi was born with Down's syndrome on January 29, 1967. A judgment of the dissolution of the marriage was entered on April 29, 1991. At the time the judgment of dissolution was entered, Jodi was 24 years old. The judgment of dissolution incorporated a marital settlement agreement, dated April 25, 1991, in which the parties agreed that petitioner would have primary physical custody of Jodi and that respondent would have reasonable visitation.

No guardian has ever been appointed for Jodi. While petitioner filed a petition for a guardianship and a petition for the appointment of a guardian ad litem for Jodi, the circuit court has yet to act on these petitions. Also, Jodi has not been declared a disabled adult pursuant to the Illinois Probate Act of 1975 (Probate Act) (755 ILCS 5/1-1 et seq. (West 2002)). Respondent testified that Jodi's verbal skills are very good but that she operates at about kindergarten level. Petitioner testified that Jodi cannot make financial decisions on her own.

Petitioner lives in Illinois, while respondent is retired and lives in Florida for most of the year. Respondent spends his summers in Illinois, and he has taken Jodi to Florida for winter vacations. On December 4, 2000, petitioner filed an emergency motion for a modification of child visitation in which she requested that respondent's December visitation with Jodi be rescheduled. On December 6, 2000, respondent filed an emergency petition for the enforcement of visitation and an answer to petitioner's motion for a modification. On February 20, 2001, the trial court entered a judgment against petitioner for costs and attorney fees incurred by respondent in attempting to exercise his December 2000 visitation.

Subsequent visitations were also denied. On August 18, 2003, respondent filed a petition to enforce the visitation as agreed to by the parties at the time of their divorce, after Jodi failed to participate in visitations as scheduled. The trial court entered a rule to show cause why petitioner should not be held in direct civil contempt for her failure to comply with the previous orders of the circuit court regarding visitation. A hearing was held, at which time petitioner testified that Jodi no longer wants to visit with respondent. According to petitioner, she has not done anything to discourage Jodi from participating in visitation and would like Jodi to maintain a relationship with him. She testified that she is willing to make Jodi available for visitation anytime Jodi wishes to visit with respondent but that she does not want to force Jodi to do so.

After hearing all the evidence, the trial court found that petitioner's denial of visitation was wilful and without cause or provocation. The trial court entered an order requiring visitation to occur, finding petitioner in indirect civil contempt for failing to allow respondent visitation with Jodi as agreed, and ordering petitioner to pay respondent's attorney fees. Petitioner now appeals.

ANALYSIS

Petitioner first contends that the trial court lacked subject matter jurisdiction to enter a visitation order pursuant to the Illinois Marriage and Dissolution of Marriage Act (Marriage Act) (Ill.Rev.Stat.1991, ch. 40, par. 101 et seq. (now see 750 ILCS 5/101 et seq. (West 2002))) because Jodi was no longer a minor at the time the visitation order was entered. Respondent replies that the trial court in the domestic-relations case had jurisdiction to adjudicate all justiciable matters, including visitation between respondent and his Down's syndrome daughter, and that petitioner cannot challenge for the first time on appeal the trial court's jurisdiction where she accepted the benefits of the divorce decree. Respondent further replies that a lack of subject matter jurisdiction is not an appropriate basis for setting aside an agreement reached between the parties.

An order entered by a court without subject matter jurisdiction is void. In re Estate of Steinfeld, 158 Ill.2d 1, 12, 196 Ill.Dec. 636, 630 N.E.2d 801, 806 (1994). A party cannot be held in contempt for violating a void court order. In re Marriage of Santa Cruz, 179 Ill.App.3d 611, 620, 128 Ill.Dec. 454, 534 N.E.2d 636, 642 (1989). Whether a court has subject matter jurisdiction is a question reviewed de novo. Keller v. Walker, 319 Ill.App.3d 67, 70, 253 Ill.Dec. 99, 744 N.E.2d 381, 383 (2001).

Respondent is correct that a trial judge sitting in the domestic relations division of the circuit court has the authority to hear all justiciable matters. In re Marriage of Wojcicki, 135 Ill.App.3d 248, 251, 90 Ill.Dec. 139, 481 N.E.2d 939, 941 (1985). However, in the instant case, the circuit court was purporting to act under the Marriage Act rather than the Probate Act. Therefore, the circuit court's authority with respect to granting visitation is governed by the provisions of the Marriage Act rather than the Probate Act. See In re Marriage of Casarotto, 316 Ill.App.3d 567, 570-71, 249 Ill.Dec. 731, 736 N.E.2d 1169, 1172 (2000) (Casarotto).

In Casarotto, a father moved to modify a dissolution judgment, requesting that he be granted visitation with his Down's syndrome adult son, Kevin. The trial court ordered visitation. On appeal, Kevin argued the circuit court lacked subject matter jurisdiction to enter a visitation order pursuant to the Marriage Act because he was no longer a minor at the time visitation was ordered. The Casarotto court determined that the circuit court lacked subject matter jurisdiction because under the Marriage Act a court does not have the authority to grant an order of visitation with regard to an adult disabled person. Casarotto, 316 Ill.App.3d at 571, 249 Ill.Dec. 731, 736 N.E.2d at 1172. In support of its determination, the Casarotto court first pointed out that under the Marriage Act a circuit court lacks jurisdiction to enter custody orders with respect to children who have attained the age of majority. Because visitation is a form of child custody, it therefore follows that the circuit court lacked jurisdiction to enter a visitation order against a person who had attained the age of majority. Casarotto, 316 Ill.App.3d at 571, 249 Ill.Dec. 731, 736 N.E.2d at 1173.

The Casarotto court also reasoned that because the legislature did not specifically set forth that the visitation provisions were to apply to disabled adults, the legislature did not intend that result:

"[I]f the legislature had intended the visitation provisions to apply to disabled adults, it would have been a simple matter to so specify. For example, section 513 of the Marriage Act (750 ILCS 5/513 (West 1998)) provides for the support of `non-minor children.' There is no similar language in either the custody or visitation provisions of the Marriage Act." Casarotto, 316 Ill.App.3d at 571-72, 249 Ill.Dec. 731, 736 N.E.2d at 1173.

Finally, the Casarotto court based its determination on the fact that the Marriage Act and the Probate Act apply different standards.

Under the Marriage Act, the applicable standard in determining custody decisions is "the best interest of the child" (750 ILCS 5/602 (West 2002)), and the noncustodial parent is entitled to visitation unless "visitation would endanger seriously the child's physical, mental, moral[,] or emotional health" (750 ILCS 5/607(a) (West 2002)). The Probate Act does not use the best interests standard, and the subject of a guardianship petition is afforded rights not afforded to minors. For example, the subject of a guardianship petition has the right to notification of the proceedings and the right to tell the judge whom he or she prefers to have as a guardian (755 ILCS 5/11a-10 (West 2002)). The purpose in appointing a guardian is to "assist the ward in the development of maximum self-reliance and independence" (755 ILCS 5/11a-17(a) (West 2002)), and when making decisions on the ward's behalf, the guardian is ordered to make reasonable efforts to discern the ward's preferences and make decisions in accordance therewith (755 ILCS 5/11a-17(e) (West 2002)). Casarotto, 316 Ill.App.3d at 572, 249 Ill.Dec. 731, 736 N.E.2d at 1173-74.

We are unconvinced by respondent's argument that Casarotto is distinguishable from the instant case and should not be followed on the basis that in Casarotto the visitation was ordered between a Down's...

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