In re Marriage of Findlay
State: Illinois
Court: 2nd District Appellate
Docket No: 3-97-0586
Case Date: 05/27/1998
May 27, 1998
No. 3--97--0586
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
In re MARRIAGE OF ) Appeal from the Circuit Court
) of Du Page County.
TRACY L. FINDLAY, n/k/a )
Tracy L. Ostrem, )
)
Petitioner-Appellee, ) No. 96--D--334
)
and )
)
TIMOTHY J. FINDLAY, ) Honorable
) Robert J. Anderson,
Respondent-Appellant. ) Judge, Presiding.
_________________________________________________________________
JUSTICE DOYLE delivered the opinion of the court:
In this postdissolution proceeding, respondent, Timothy
Findlay, appeals the dismissal of his complaint for a preliminary
injunction against petitioner, Tracy Findlay, n/k/a Tracy Ostrem.
Respondent sought to enjoin petitioner from removing the parties
children, of whom she has residential custody, from Naperville to
Marshall, Illinois. The trial court ruled that it lacked
jurisdiction to restrain petitioner s intrastate relocation.
On appeal, respondent argues that the parties settlement
agreement, incorporated into the dissolution judgment, authorizes
the court to decide where the children are to reside if the parties
cannot resolve that issue by agreement or conciliation. Respondent
maintains that the court must preserve the status quo until it
decides whether petitioner may remove the children to Marshall.
We hold that the trial court erred in dismissing the complaint
for a preliminary injunction. We decide only that the court erred
in deciding as a matter of law that it lacked jurisdiction over the
complaint. Therefore, we reverse the dismissal order and remand
the cause so the trial court may decide (1) whether petitioner s
planned move is a matter the settlement agreement leaves for
judicial resolution; and (2) if so, whether respondent should
receive the preliminary injunctive relief he requests.
The dissolution judgment, entered November 12, 1996, gives the
parties joint legal custody of their two children; petitioner has
residential custody and respondent visitation custody. Article II
of the settlement agreement addresses matters directly involving
the children, including the allocation of custody. Paragraph 2 of
article II states:
Each party will *** make day to day decisions regarding
the children while they are in that party s custody. The
parties will jointly decide matters of substance regarding the
children, including, without limitation intended, important
questions of education, religion, and elective medical care.
In the event the parties are unable to agree on important
decisions regarding the children, the parties shall first
attempt to resolve the issue through conciliation ***. In the
event the parties are unable to resolve the issue through
conciliation *** the matter shall be resolved by a Court of
appropriate jurisdiction.
The agreement does not otherwise address whether or when either
party may move intrastate.
On June 3, 1997, respondent filed his complaint for a
preliminary injunction, alleging the following facts. After the
dissolution judgment, petitioner and the children lived in
Naperville. Respondent consistently fulfilled his custody
obligations. In March 1997, petitioner told him that she intended
to move with the children to Terre Haute, Indiana, apparently to
attend college. After respondent refused to consent to the move,
petitioner told him she intended to move herself and the children
to Marshall, just across the border from Terre Haute, by July 1,
1997. Marshall is a 3
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