In re MMD

• Citation: 820 N.E.2d 392,289 Ill.Dec. 616,213 Ill.2d 105
• Decision Date: 18 November 2004
• Docket Number: No. 97537.,97537.
• Court: Supreme Court of Illinois
• Parties: In re M.M.D., a Minor (Christopher R. Johnson, Appellant, v. Christopher Duncan, et al., Appellees).

820 N.E.2d 392

213 Ill.2d 105

289 Ill.Dec. 616

In re M.M.D., a Minor (Christopher R. Johnson, Appellant, v. Christopher Duncan, et al., Appellees).

No. 97537.

Supreme Court of Illinois.

November 18, 2004.

Linda S. Groezinger and Kevin Lowe, of Lowe & Groezinger, P.C., West Peoria, for appellant.

John R. Pusey, of Vonachen, Lawless, Trager & Slevin, Peoria, for appellees.

Justice RARICK delivered the opinion of the court:

At issue in this case is whether Wickham v. Byrne, 199 Ill.2d 309, 263 Ill.Dec. 799, 769 N.E.2d 1 (2002), which declared Illinois' grandparent visitation statute to be unconstitutional, invalidated a preexisting agreement approved by the circuit court of Peoria County granting visitation rights to a child's grandparents. The circuit court held that it did not. On a permissive interlocutory appeal brought under Supreme Court Rule 308 (155 Ill.2d R. 308), the appellate court reached the same conclusion and affirmed. 344 Ill.App.3d 345, 279 Ill.Dec. 543, 800 N.E.2d 831. One justice dissented. We granted leave to appeal from the appellate court's judgment. 177 Ill.2d R. 315. For the reasons that follow, we now affirm.

The facts are not in dispute. Roxanna L. Duncan died on September 30, 1996, while giving birth to her daughter, M.M.D. M.M.D. survived. Roxanna's parents, Christopher and Sue Duncan (the Duncans) subsequently petitioned the circuit court of Peoria County to be appointed M.M.D.'s guardians. While the guardianship proceedings were pending, the circuit court entered an interim order pursuant to section 11a-4 of the Probate Act of 1975 (755 ILCS 5/11a-4 (West 1996)), granting the Duncans temporary guardianship of M.M.D. and giving them temporary custody of her.

Several months after M.M.D.'s birth, Christopher Johnson brought an action in the circuit court of Peoria County under the Illinois Parentage Act of 1984 (750 ILCS 45/1 et seq. (West 1996)) to establish that he was her father. In April of 1999, when M.M.D. was approximately 2½ years old, the circuit court entered an agreed order declaring that Johnson was M.M.D.'s father. With consent of the parties, Johnson's parentage action was then consolidated with the Duncans' guardianship proceedings, which remained pending. Johnson requested and received the right to visit M.M.D. At the same time, he was ordered to pay 20% of his income to the Duncans for child support.

M.M.D. is not Johnson's only child. According to the record, Johnson is also the father of C.T.J., born three months after M.M.D.; C.J., born March 11, 1991; C.K.J., born July 18, 1990; B.F., born March 3, 1986; and Nakeitha Tyler, born May 9, 1983. M.M.D. was likewise not Roxanna's only child. Roxanna also had a son, I.N.D., by a man named Gaylord Ford. Following Roxanna's death, the court granted temporary guardianship of I.N.D. to Ford.

C.T.J., C.J., and C.K.J. all resided with Johnson and his wife, Roshawn. The family's financial circumstances were strained. According to a financial affidavit filed by Johnson in this matter, his monthly income was less than $2,300. His monthly expenses, including health insurance, housing, food, child-care and other costs, and payments stemming from bankruptcy exceeded $7,400.

Faced with this imbalance, Johnson failed to make the child support payments to the Duncans ordered by the circuit court. On Christopher Duncan's motion, the court ordered Johnson to show cause why he should not be held in contempt of court. Johnson's attorneys then sought and obtained leave to withdraw from the case. The reason for their withdrawal was that Johnson had not paid them.

Johnson retained replacement counsel. In April of 2000, Johnson's new lawyer filed a petition on his behalf asking that he be awarded custody of M.M.D. and that the Duncans' guardianship of her be terminated. Johnson's motion was opposed by the Duncans, who argued that permanent custody of M.M.D. should be awarded to them.

The litigation continued for over a year. Finally, on July 17, 2001, Johnson and the Duncans reached an agreement under which the Duncans' temporary guardianship of M.M.D. was to terminate and Johnson was to obtain permanent custody of the child. The agreement further provided that the Duncans were to receive specific and detailed visitation rights, telephone access to the child, information about the child's education and medical care, and authorization to speak with the child's teachers, school personnel, counselors and physicians regarding her progress and circumstances. This agreement was executed by the parties, their attorneys and the child's guardian ad litem, and incorporated into an order filed by the court.

In October of 2001, the circuit court found that Johnson owed Christopher Duncan $1,961.61 in arrearages and ordered him to pay that sum in installments of $400 per month. Less than two months after that, Christopher Duncan petitioned for a rule to show cause why Johnson should not be held in contempt for violating the terms of the July 17, 2001, visitation agreement incorporated into the order filed by the circuit court.

An order to show cause was entered by the circuit court on December 6, 2001. On April 18, 2002, this court filed its opinion in Wickham v. Byrne, 199 Ill.2d 309, 263 Ill.Dec. 799, 769 N.E.2d 1 (2002). Wickham involved two consolidated cases in which a child had lost a parent and the deceased parent's parents (the child's grandparents) were granted visitation by the court, over the objection of the surviving parent, pursuant to the so-called grandparent visitation statute set forth in section 607(b) of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/607(b) (West 2000)).

Section 607(b) stated, in pertinent part:

"(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) * * * 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.

* * *

(3) When one parent is deceased, the surviving parent shall not interfere with the visitation rights of the grandparents." 750 ILCS 5/607(b) (West 2000).

The surviving parents in the two consolidated cases in Wickham challenged the constitutionality of the foregoing provisions, arguing that they impermissibly infringed on a parent's fundamental right to make decisions concerning the care, custody and control of his or her children. After considering relevant authority from the United States Supreme Court and from this court, we found the surviving parents' arguments to be meritorious. We wrote:

"Section 607(b)(1) exposes the decision of a fit parent to the unfettered value judgment of a judge and the intrusive micromanaging of the state. Because we can conceive of no set of circumstances under which section 607(b)(1) of the Act would be valid, we hold that it is unconstitutional on its face. For the same reasons, we hold that section 607(b)(3) is facially unconstitutional." Wickham, 199 Ill.2d at 320-21, 263 Ill.Dec. 799, 769 N.E.2d 1.

Four months after we decided Wickham, Johnson petitioned the circuit court to modify the grandparent visitation agreement reached by the parties on July 17, 2001, and incorporated into the court's order. Johnson predicated his petition on section 607(c) of the Illinois Marriage and Dissolution of Marriage Act (750 ILCS 5/607(c) (West 2002)), which authorizes a court to "modify an order granting or denying visitation rights of a parent whenever modification would serve the best interest of the child."¹

As grounds for seeking modification of the visitation agreement, Johnson claimed that after the agreement was reached, the Duncans "continually and repeatedly interfere[d] with [his] ability to establish and maintain a parent child relationship." Fourteen specific examples were alleged. Among these were an insistence by the Duncans that M.M.D. refer to them as "mom" and "dad"; calling the principal of M.M.D.'s school in an attempt to obtain her school records; coming to Johnson's house when M.M.D. missed school to inquire as to the reason for her absences; constantly questioning M.M.D. regarding the Johnson's household procedures; and "repeatedly and continually" questioning Johnson and M.M.D. regarding M.M.D.'s clothing. Johnson's motion asked that the Duncans be restrained from referring to themselves as M.M.D.'s parents; that they be prohibited from calling and harassing Johnson, his family and M.M.D.'s schools; that they not be allowed to take M.M.D. without his express permission; and that their visitation be curtailed to one weekend per month.

In addition to seeking modification of the visitation agreement, Johnson's petition argued, in the alternative, that the visitation agreement should be terminated. Johnson based that argument on this court's decision in Wickham. Although the visitation agreement between Johnson and the Duncans did not invoke the provisions of the grandparents visitation statute struck down in Wickham, Johnson asserted that Wickham and the authorities on which Wickham was based rendered the agreement void and unenforceable as a matter of law.

Johnson's petition was heard December 2, 2002....