In re A.S.

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In re A.S.

State: Illinois

Court: 5th District Appellate

Docket No: 5-09-0205 Rel

Case Date: 09/21/2009

Preview:NO. 5-09-0205
NOTICE Decision filed 09/21/09. The text of this decision may be changed or corrected prior to the filing of a Peti tion for Rehearing or th e

IN THE APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ________________________________________________________________________ In re A.S., a Minor (Jon Sobieralski, Petitioner-Appellee, v. Michelle Aldworth, ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Clinton County.

disposition of the same.

No. 07-F-19

Honorable Kathleen P. Moran, Respondent-Appellant). ) Judge, presiding. ________________________________________________________________________ JUSTICE GOLDENHERSH delivered the opinion of the court: Respondent, Michelle Aldworth, the biological mother of A.S., appeals from an order of the circuit court of Clinton County granting primary physical custody in favor of petitioner, Jon Sobieralski, the biological father. The issues raised in this appeal are as follows: (1) whether the trial court erred in denying respondent's motion for a change of venue and (2) whether the trial court erred in granting primary physical custody to petitioner. We reverse and remand with directions. BACKGROUND Petitioner and respondent met while attending college at Southern Illinois University Carbondale. Petitioner is originally from Albers, a small town in Clinton County, and respondent is from Hinsdale, a suburb of Chicago. Respondent got pregnant, and A.S. was born on October 4, 2003. Petitioner and respondent signed a voluntary acknowledgment of paternity on October 5, 2003, in Carbondale. At the time of A.S.'s birth, the parties were living together. They never married and ultimately broke up in April 2004 but continued to

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reside together in Carbondale until the end of the semester. In June 2004, respondent and A.S. moved to Hinsdale and lived with her parents, while petitioner remained in Carbondale to finish his degree. Petitioner completed his degree and moved back to Albers in August 2004. Petitioner remained in Albers until January 2005, at which point he moved to Chicago and lived with a friend. During this time, petitioner did not pay child support but began paying one-half of the day-care expenses ($115 per week) for A.S. in October 2004. Petitioner also tried to give respondent a little money for food and diapers. There was no set schedule for visitation, but petitioner did see A.S. when he moved to the Chicago area. At times, petitioner saw A.S. once a week, and other times he saw A.S. four times a week. In June 2005, petitioner got his own apartment in La Grange, another suburb of Chicago, and the parties agreed to an alternating custody arrangement of every other day and every other weekend. This arrangement worked well for the parties until petitioner lost his job in June 2006. Petitioner informed responden t that he was going to have to move back to Albers. Respondent told petitioner she would expect him to start paying child support. For the two weeks before petitioner moved back to Albers, A.S. stayed at his apartment because neither party could afford day-care expenses. Petitioner brought up the idea of A.S. moving with him to Albers. The parties discussed this as a temporary

arrangement for one year, which would allow respondent the opportunity to finish her degree. Initially, respondent was against the idea, but she ultimately realized that by allowing A.S. to move with petitioner back to Albers for one year, she would be able to finish her college degree, secure employment, and move out of her parents' house. In June 2006, petitioner and A.S. moved back to Albers. Respondent visited on alternating weekends and called every night to talk to A.S. Respondent sometimes stayed

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at petitioner's parents' house during her visits, but there was no longer a romantic relationship between the parties. In January 2007, petitioner informed respondent that he wanted a new arrangement in which A.S. would live with him permanently. The relationship between the parties became somewhat frosty at that point; however, respondent did not do anything to change the status, because she was without means to hire a lawyer and felt that it was in A.S.'s best interest to stay with petitioner while she finished school. Petitioner returned A.S. to respondent on June 19, 2007, for an agreed-upon visit. Unbeknownst to respondent, however, petitioner had filed a petition to establish a parentchild relationship and for custody and other relief on June 6, 2007, in Clinton County. Respondent was not served until June 25, 2007. On July 11, 2007, respondent filed a motion for a change of venue to Cook County on the basis that A.S. was a permanent resident of Cook County. After a hearing, the trial court denied respondent's motion for a change of venue. On July 30, 2007, a temporary order was entered in the circuit court of Clinton County granting petitioner and respondent temporary custody of the minor child for alternating two-week periods beginning August 4, 2007. On December 7, 2007, a final hearing was conducted. The evidence showed that petitioner is employed as a tunnel contractor and resides with A.S. at his parents' home in Albers. Petitioner works four days a week for 10-hour shifts, for 40 hours per week. Petitioner was gone from home on Monday through Thursday from 5 a.m. until 5 p.m. When the weather is warm, petitioner works 50 hours per week. Petitioner's 17-year-old sister gets A.S. up each morning at 6:30 a.m. and takes A.S. to day care. Petitioner plans to purchase a home on a bond for deed and move out of his parents' home. He has already chosen a house. He anticipates that when he moves out of his parents' house, he will take A.S. to day care at 5 a.m. on his way to work. Respondent testified that she completed her degree in political science in August

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2007. Respondent currently resides with her sister, a first-grade teacher, in Chicago in a three-bedroom home. Respondent admitted that over the course of the four years prior to the lawsuit, she lived in multiple places, including Carbondale, her parents' home, and various apartments. Respondent is employed part-time as a broker's assistant at the Chicago Board of Trade. She works five days a week from 9:30 a.m. until 1:15 p.m. Initially, she was an independent contractor, but ultimately she became a permanent employee of the Chicago Board of Trade and, thus, receives health benefits. Petitioner testified that respondent called A.S. every night while he resided in Albers. However, respondent testified that often her phone calls were not answered or the phone was hung up immediately after she spoke with A.S. Respondent said she did not speak with petitioner for weeks at a time. Respondent felt like petitioner was trying to cut her out of A.S.'s life. A guardian ad litem was appointed during the course of this litigation. In his report, the guardian found that each party is a good parent, and he did not make a recommendation of one party over the other to have primary custody. The report contains a history of A.S.'s residences. The report also states that the parties agree that petitioner lost romantic interest in respondent when she became pregnant. Respondent attempted to make the relationship work, but petitioner advised the guardian that he never had any intention of a permanent relationship with respondent. The guardian specifically stated: "I am concerned with [petitioner's] negative impressions of [respondent]. [Respondent] thinks that communication will improve when the custody issues are decided." The circuit court took the matter under advisement. On January 14, 2008, the circuit court entered an order granting primary physical custody of A.S. to petitioner. The final custody order was entered on October 3, 2008. Respondent filed a motion to vacate on October 28, 2008. On April 2, 2009, the trial court entered an order denying the motion to

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vacate. This appeal followed. ANALYSIS I The first issue we are asked to address is whether the trial court erred in denying respondent's motion for a change of venue. Respondent contends that venue was proper in Cook County because A.S. was a permanent resident of Cook County, not Clinton County. Petitioner responds that Clinton County was a proper venue because the record shows that the minor was in Clinton County when petitioner filed his action. consideration, we reluctantly agree with petitioner. In the instant case, there was no question that petitioner was the father of A.S., because the parties signed a voluntary acknowledgment of paternity the day after A.S. was born. Therefore, while there was some disagreement regarding under which statute venue should be determined, we agree with respondent that venue should be determined pursuant to the Illinois M arriage and Dissolution of Marriage Act (750 ILCS 5/601(b) (West 2006)), not the Illinois Parentage Act of 1984 (750 ILCS 45/6 (West 2006)). Section 601(b)(1) of the Illinois Marriage and Dissolution of Marriage Act (Act) specifically provides as follows: "(b) A child custody proceeding is commenced in the court: (1) by a parent, by filing a petition: (i) for dissolution of marriage or legal separation or declaration of invalidity of marriage; or (ii) for custody of the child, in the county in which he is permanently resident or found[.]" 750 ILCS 5/601(b)(1) (W est 2006). Petitioner asserts that the plain language of the statute established Clinton County as a proper venue because A.S. was in Clinton County when he filed the petition. Respondent's position at the venue hearing was that the parties had an agreement that After careful

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A.S. would live with petitioner in Clinton County for one year and then return to live with respondent in Chicago, thereby making A.S a permanent resident of Chicago. Petitioner denied the existence of the one-year agreement at the hearing on respondent's motion for a change in venue. Petitioner's attorney argued that if that agreement existed, his client would not have filed a petition to establish custody in Clinton County. The trial court accepted petitioner's contention that there was no one-year agreement to have A.S. reside with petitioner in Clinton County, and no testimony was taken on whether that agreement existed. In denying the motion for a change of venue, the circuit court specifically stated as follows: "If I can address one issue, the child has been living for over a

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