In re Marriage of Engelkens

• Decision Date: 28 December 2004
• Docket Number: No. 3-03-0842.,3-03-0842.
• Citation: 821 N.E.2d 799,354 Ill. App.3d 790,290 Ill.Dec. 487
• Parties: In re MARRIAGE OF Donald L. ENGELKENS, Jr., Petitioner-Appellant, and Jerri Engelkens, n/k/a Jerri Burden, Respondent-Appellee.
• Court: United States Appellate Court of Illinois

821 N.E.2d 799

354 Ill. App.3d 790

290 Ill.Dec. 487

In re MARRIAGE OF Donald L. ENGELKENS, Jr., Petitioner-Appellant, and

Jerri Engelkens, n/k/a Jerri Burden, Respondent-Appellee.

No. 3-03-0842.

Appellate Court of Illinois, Third District.

December 28, 2004.

K.O. Johnson (argued), DeKalb, for Donald L. Engelkens, Jr.

Michelle B. Buckwalter-Schurman (argued), Weinstine, Shirk & Buckwalter-Schurman, Morris, for Jerri Englekens.

Justice McDADE delivered the opinion of the court:

Petitioner, Donald L. Engelkens, appeals the order of the circuit court for the Fourteenth Judicial Circuit, Whiteside County, Illinois, denying his request to terminate the visitation of respondent, Jerri L. Engelkens, n/k/a Jerri Burden, with Donald's son, Jacob Engelkens. For the reasons that follow, we reverse.

BACKGROUND

Donald and Jerri married in July 1995. In February 1998, the circuit court entered a judgment of dissolution of the marriage. According to the judgment of dissolution and the marital settlement agreement incorporated therein, one child, Tommy L., was born to Jerri during the marriage. The settlement agreement stated that Donald agreed to permit Jerri a reasonable opportunity to visit Jacob Engelkens, Donald's son from a previous relationship. In November 2000, Donald learned he was not Tommy's biological father. In March 2002, Donald and Jerri entered a temporary agreed order stating Jerri's visitation with Jacob was to occur every other Saturday or Sunday between noon and 7 p.m. In March 2003 Donald petitioned the court to terminate his support for Tommy and to terminate Jerri's visitation with Jacob. The petition argued that the statute granting visitation to stepparents had been found unconstitutional. The issue of support was not part of the hearing below and is not part of this appeal.

In April 2003, at the hearing on the petition to terminate visitation with Jacob, only Jerri testified. Donald and Jerri lived together before they were married. Jacob came to live with them when he was approximately four weeks old. Jerri testified that, after the divorce and approximately one year before the date of the hearing, she noticed marks or bruises on Jacob's body. The marks were on Jacob's back and appeared to have been made by a belt. Jerri made a report to the state. Jerri also noticed two bruises on Jacob's legs and knees approximately six months before the hearing and a bruise by his eye. Jerri notified Jacob's school. Jerri also testified she had confronted Donald regarding "mental abuse" of Jacob in that when Jerri had bought gifts for Jacob, Donald would "cut up" the item in front of him or make Jacob "cut it up." Specifically, a snowboard and a deck of "Uno" cards. Jerri testified that while the parties' divorce was pending, Jacob lived with Jerri for a six-month period. Jerri testified she voluntarily provided Jacob with health insurance continuously beginning in May 1998. Jerri never adopted Jacob. Jerri reported the suspected abuse to the state and Jacob's school, making seven reports over a 2 1/2 year period.

Following argument, the trial court stated "the parties' agreement * * * is based wholly or in part on [the] statute." In its written order, the trial court found as follows:

"1. [A] prior agreement for stepparent visitation was entered into by the parties on March 21, 2002.

2. The previous agreement of the parties [does not] defeat the unconstitutionality of the statute regarding stepparent visitation.

3. [T]here has been presented unrebutted evidence of [Donald's] physical and mental abuse of the minor child, Jacob.

4. [Donald] is unfit in this forum as it relates to this Petition brought before this Court.

5. Due to the unfitness of [Donald], this matter and the agreement of the parties falls within the narrow exception to the unconstitutionality of the statute.

6. The statute in these circumstances is constitutional. Therefore, the agreement entered into by the parties is based upon a constitutional statute.

7. The court does not find any substantial change in circumstances has been shown which would warrant a modification of the previous agreement of the parties."

The court ordered that the petition to terminate visitation was denied. This appeal followed.

ANALYSIS

Donald argues the circuit court lacked jurisdiction to enforce stepparent visitation because the statute governing stepparent visitation is unconstitutional. Jerri asserts that Donald "fails to recognize the authority of the trial court to utilize the narrow exception, delineated by the cases in the grandparent arena, when a stepparent can rebut the presumption that a parent acts in the best interest of his child." Jerri also argues that no court has declared section 607(b)(1.5) of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/607(b)(1.5) (West 2002)) facially unconstitutional and that statutes carry a strong presumption of constitutionality. The trial court has broad discretion in fashioning the terms of visitation and those terms will not be overturned absent proof that the court has abused its discretion. In re Marriage of Roberts, 151 Ill.App.3d 65, 67, 104 Ill.Dec. 806, 503 N.E.2d 363, 364 (1986). Whether the circuit court has subject matter jurisdiction is a question of law, which we review de novo. In re Marriage of Chrobak, 349 Ill.App.3d 894, 897, 285 Ill.Dec. 369, 811 N.E.2d 1248, 1252 (2004).

The legislature codified grandparent and stepparent visitation rights in sections 607(b)(1) and 607(b)(1.5) of the Illinois Marriage and Dissolution of Marriage Act (Dissolution Act) (750 ILCS 5/607(b)(1), (b)(1.5) (West 2002)), which read as follows:

Grandparent provisions:

"(b)(1) The court may grant reasonable visitation privileges to a grandparent, great-grandparent, or sibling of any minor child upon petition to the court by the grandparents or great-grandparents or on behalf of the sibling, with notice to the parties required to be notified under Section 601 of this Act, if the court determines that it is in the best interests and welfare of the child, and may issue any necessary orders to enforce such visitation privileges. Except as provided in paragraph (2) of this subsection (b), a petition for visitation privileges may be filed under this paragraph (1) whether or not a petition pursuant to this Act has been previously filed or is currently pending if one or more of the following circumstances exist:

(A) the parents are not currently cohabiting on a permanent or an indefinite basis;

(B) one of the parents has been absent from the marital abode for more than one month without the spouse knowing his or her whereabouts;

(C) one of the parents is deceased;

(D) one of the parents joins in the petition with the grandparents, great-grandparents, or sibling; or

(E) a sibling is in State custody." (Emphasis added.) 750 ILCS 5/607(b)(1) (West 2002).

Stepparent provisions:

"(1.5) The Court may grant reasonable visitation privileges to a stepparent upon petition to the court by the stepparent, with notice to the parties required to be notified under Section 601 of this Act, if the court determines that it is in the best interests and welfare of the child, and may issue any necessary orders to enforce those visitation privileges. A petition for visitation privileges may be filed under this paragraph (1.5) whether or not a petition pursuant to this Act has been previously filed or is currently pending if the following circumstances are met:

(A) the child is at least 12 years old;

(B) the child resided continuously with the parent and stepparent for at least 5 years;

(C) the parent is deceased or is disabled and is unable to care for the child;

(D) the child wishes to have reasonable visitation with the stepparent; and

(E) the stepparent was providing for the care, control, and welfare to the child prior to the initiation of the petition for visitation." (Emphasis added.) 750 ILCS 5/607(b)(1.5) (West 2002).

Applying the plain language of section 607(b)(1.5) Jerri presented no evidence to support a conclusion Donald is unable, by reason of his alleged acts of abuse, to care for Jacob, or that Jacob wishes to have visitation with Jerri. Jerri merely states there is no evidence Jacob does not want visitation with her. However, the parties entered into an agreed order granting Jerri visitation. Therefore, the issue is not whether the statute is applicable to Donald and Jerri, but whether the court had the authority to enforce or to modify the parties' agreement. The court found the agreement was based, "wholly or in part," on the statute. Accordingly, we must determine whether the statute provides appropriate guidelines or adequate justification for the court's interference with Donald's parenting decision. To do so requires us to address the constitutionality of the stepparent visitation provisions of the statute.

In Wickham v. Byrne, 199 Ill.2d 309, 320, 263 Ill.Dec. 799, 769 N.E.2d 1, 7-8 (2002), the Supreme Court of Illinois held that section 607(b)(1) on grandparent visitation contained a flaw similar to one noted by the United States Supreme Court in the Washington statute it addressed in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). Specifically, it found that, in every case, the statute placed the parent on equal footing with the party seeking visitation rights. In Troxel, the Court found "[t]he judge's comments suggest that he presumed the grandparents' request should be granted unless the children would be `impact[ed] adversely.' In effect, the judge placed on Granville, the fit custodial parent, the burden of disproving that visitation would be in the best interest of her daughters." (Emphasis in original.) Troxel, 530 U.S. at 69, 120 S.Ct. at 2062, 147 L.Ed.2d at 59. Our supreme court stated as follows: "The Washington statute undermined the parent's fundamental right to make decisions regarding the care and custody of her child because the parent's decision regarding...