Towne v. Cole

• Decision Date: 17 May 1985
• Docket Number: No. 2-84-0669,2-84-0669
• Parties: , 88 Ill.Dec. 404 Joan P. TOWNE, Plaintiff-Appellant, v. Steven COLE and Barbara Cole, jointly and severally, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 895

478 N.E.2d 895

133 Ill.App.3d 380, 88 Ill.Dec. 404

Joan P. TOWNE, Plaintiff-Appellant, v. Steven COLE and Barbara Cole, jointly and severally Defendants-Appellants.

No. 2-84-0669.

Appellate Court of Illinois,

Second District.

May 17, 1985.

Julian R. Wilheim, Lake Forest, for plaintiff-appellant.

Hinshaw Culbertson Moelmann Hoban Fuller, Stephen R. Swofford, Michael F. Henrick, Peter D. Sullivan, Chicago, for defendants-appellants.

UNVERZAGT, Justice:

In this case, a grandmother brought suit against her son and his wife seeking a court order granting her visitation with their daughter, her only grandchild. The grandmother also sought money damages against her son and his wife for the serious mental and emotional distress caused by their denial of her visitation with her granddaughter. The son and his wife are the natural parents of the grandchild, are not involved in a dissolution of marriage proceeding, and no prior custody or adoption matters are involved.

The circuit court of Lake County dismissed the grandmother's suit and this appeal was taken.

Joan P. Towne is the plaintiff. Defendant, Steven Cole, is plaintiff's natural born son, and defendant, Barbara Cole, is Steven's wife, who lives with him at the marital residence in Highland Park, along with their daughter, two-year-old Lauren Ashley Cole. Lauren Cole is plaintiff's only grandchild.

Plaintiff's complaint alleges the following:

That plaintiff is the natural mother of defendant Steven Cole and the mother-in-law of defendant Barbara Cole and the paternal grandmother of defendant's natural daughter born on April 20, 1983. She also alleges that, despite her requests to defendants since the birth of such granddaughter, who is her first and only living grandchild, for the privilege of reasonable visitation rights with the grandchild, defendants have denied and continue to deny any visitation or relationship with her grandchild, all without provocation on plaintiff's part and depriving such grandchild of any relationship with the plaintiff to the detriment of the grandchild. Plaintiff also alleges that she is a happily married woman of excellent reputation and substantial financial means.

Count I seeks equitable relief by way of a court order directing defendants to permit plaintiff to have and enjoy reasonable visitation privileges with her grandchild.

In Count II, plaintiff alleges that, since the birth of her first and only grandchild, defendants, jointly and severally, have inflicted and continue to inflict intentionally on plaintiff extreme emotional distress by wilfully and maliciously depriving her of any visitation or relationship with the grandchild. Plaintiff further alleges that, without any justification on either of their parts or provocation on her part, the defendants have shown and continue to show anger and hostility toward her, threatening to cut off and cutting off any relationship of plaintiff with the grandchild and threatening to deprive and depriving the grandchild of a warm relationship with her paternal grandmother, all to the detriment of the grandchild's best interests. She also alleges that she has suffered and continues to suffer from her loss of visitation and companionship with her first and only living grandchild and her consequent mental and emotional stress and anxiety resulting therefrom, all to her severe and irreparable damage for which she has no adequate remedy in equity. Count II, pleading an action in tort, seeks compensatory and punitive damages.

Defendants filed a motion to dismiss pursuant to section 2-615 of the Civil Practice Law asserting that the complaint failed to state a cause of action. Ill.Rev.Stat.1983, ch. 110, par. 2-615.

The trial court ruled that it lacked jurisdiction to adjudicate Count I and that Counts I and II failed to state a cause of action.

Three issues are presented for review: (1) whether in light of the well-pleaded facts in plaintiff's complaint, the trial court erred in determining that it lacked jurisdiction to grant the relief sought in Count I of the complaint and in granting defendants' motion to dismiss the complaint with prejudice; (2) whether in light of the well-pleaded facts in plaintiff's complaint, the trial court erred in determining that Count I of the complaint failed to state a cause of action and in granting defendants' motion to dismiss the complaint with prejudice; (3) whether in light of the well-pleaded facts in plaintiff's complaint, the trial court erred in determining that Count II of the complaint failed to state a cause of action and in granting defendants' motion to dismiss the complaint with prejudice.

Defendants' motion to dismiss plaintiff's complaint pursuant to section 2-615 of the Civil Practice Law (Ill.Rev.Stat.1983, ch. 110, par. 2-615) requires this court, as well as the trial court, to accept all facts well pleaded as true and to draw all reasonable inferences therefrom in favor of the plaintiff. (Buzzard v. Bolger (1983), 117 Ill.App.3d 887, 73 Ill.Dec. 140, 453 N.E.2d 1129.) The purpose of such a motion is to raise an issue of law as to the legal sufficiency of the allegations of the complaint. Ostendorf v. International Harvester Co. (1982), 89 Ill.2d 273, 280, 60 Ill.Dec. 456, 433 N.E.2d 253.

The parties agree that the trial court dismissed the complaint in the belief that it had no jurisdiction of the cause of action because the defendants were not involved in dissolution of marriage proceedings, there was no custody proceeding instituted, nor was an adoption proceeding involved.

It is the plaintiff's contention that her complaint states a cause of action for child visitation under the plain language of section 607(b) of the Illinois Marriage and Dissolution of Marriage Act. Ill.Rev.Stat.1983, ch. 40, par. 607(b).

Effective January 1, 1982, section 607 was amended by inserting a new subsection (b), as follows:

"(b) The court may grant reasonable visitation privileges to a grandparent or great-grandparent of any minor child upon the grandparent's or great-grandparent's petition to the court, 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. * * * "

Effective September 17, 1982, section 607(b) was further amended by adding a final sentence, as follows:

"Further, the court, pursuant to this subsection, may grant reasonable visitation privileges to a grandparent or great-grandparent whose child has died where the court determines that it is in the best interests and welfare of the child."

The plaintiff argues that section 607(b) confers jurisdiction on the trial court and that the well-pleaded facts in Count I meet the substantive requirements of that section of the statute.

We have looked to the legislative history of the two amendments to section 607(b), effective during 1982 to seek aid in determining their meaning.

Our supreme court stated in People v. Boykin (1983), 94 Ill.2d 138, 141, 68 Ill.Dec. 321, 445 N.E.2d 1174:

" 'The cardinal rule of statutory construction, to which all other canons and rules are subordinate, is to ascertain and give effect to the true intent and meaning of the legislature.' [Citations.] In determining the legislative intent, courts should consider first the statutory language. [Citation.] As noted by the State, where the language is clear 'it will be given effect without resorting to other aids for construction.' [Citations.] Where the language is ambiguous, however, it is appropriate to examine the legislative history. [Citation.]" 94 Ill.2d 138, 141, 68 Ill.Dec. 321, 445 N.E.2d 1174.

We believe it is not clear from a reading of section 607(b) as to whether it applies to grandparent visitation where there is no dissolution action pending, no adoption proceeding and no custody proceeding and no death of a parent.

The first amendment to section (b) was made by H.B. 64 which was enacted as P.A. 82-344, to be effective January 1, 1982. Its sponsor in the House, Representative Matijevich, explained to the House that the amendment would grant reasonable visitation privileges to grandparents. He stated: "The legislation will help assure that close grandparent-child ties and relationships will not be severed by divorce." (Ill. House of Representatives, Transcription of Debate, p. 146, May 6, 1981.) Although most of the discussion concerned the pros and cons of opening the door to visitation battles by parents and grandparents after a divorce, Representative Brummer pointed out that in his view the bill would allow grandparent visitation even where there is no divorce or separation. Illinois House of Representatives, Transcription of Debate, p. 154.

On the Senate side, the co-sponsor, Senator Geo-Karis, introduced the bill and commented:

"Wisconsin was the first State to pass a law granting grandparents the right to petition the court for visitation privileges when there is a divorce in the family. And since then, twenty-six States have enacted similar Statutes. I ask for favorable consideration." (Ill. Senate Proceedings, June 18, 1981, p. 87.) There was no other debate.

We also note that the second amendment to section 607(b) would not have been necessary if we were to accept the plaintiff's reading of the original amendment to section 607(b).

The second amendment was H.B. 2039, enacted by P.A. 82-1002, effective September 17, 1982. That amendment added this to subparagraph (b):

"Further, the court, pursuant to this subsection, may grant reasonable visitation privileges to a grandparent or great-grandparent whose child has died where the court determines that it is in the best interests and welfare of the child."

It is obvious this provision was inserted to provide a remedy for grandparent visitation when there was no dissolution proceedings but where one of the parents had died....