I l-12-01 RK. Anorney CodeNo. 25521

INTHE CIRCUIT COURT OFCOOK COUNTY,ILLINOIS. COUNTY DEPARTMENT-DOMESTIC RELATIONS

IN RE; THE MARRIAGE OFJA HlJ W€'

Petitioner

JANE DEqs D lasl

Respondent

MOTTON r.OR SUMMARY JUpGMENT

NO\il COMES rhe Respondent herein, -! ANE m6 ,,by and through her

attomey, Lt ^fDfr

CPfrll/,"tdWrsuant toand otherstatutorybasisrecited herein, and in support

thereof, states as follows:

l- A Judgment for Dissolution of Marriage (hereinafter rcferred to as JUDGMENT)

which incorporared a MARRIAGE SETTLEMENT AGREEMENT into the

JUDGMENT entered on January 10, 1996.

Z. Prior to the entry ofrbe Judgmenr, an AGREED JOINT PARENTING

AGREEMENT AND ORDER was enlered by the Court in July, l995.which was

incorporatcd into the Jutlgment ent€red on January 10, t 996.

3. The two minor children, Petitioner and Respondent each resided in Cook County,

Illinois at the time that the JUDGMENT was entered.

4. ThenamesandagesofrhetwominorchildrenareDANIEL D€ Uon gltSftt

and now t0yearsoldandA||DREWDO€ |lrlnelr-p{ nowage 6 yearc

old.

5' The Petitioner, on or about December 28, I 999, aoer three years of co-parenting

1

53

the two minor children in accordance with the JLJDGMENT, withour nolice to the

Respondent and an Order of courl illegally and in violation of statule, removed the

minor children from their peer groups, schools and lhe daily contact with the

Respondent, in Cook County, Illinois and commenced a permanent residency for

himself and the children in San Anlonio, Texas, where he now resides..

6. The Preamble ro the Joint Parenting Agreement and order drafled by rhe

Petitioner's attorney, and accordingly, based upon contractual construction is

construed as his work product, recites as follows:

I. PreambleAs porents, we wish to secure lhe maximam involvemenl and cooperation of both of

ourselvesconcerningthephysicalrmentel,moral,andemotionalwell-beingofourchildren. Thisinvolvemenl and cooperation, hre agree, is in the best interests of out children. ll/e wish to sharein decisions; ond by thk agreement produce sn undcrstanding ofour rights and responsibilitiesconcerning lhe personal care of our children. In so doing, we wkh to continue to develop in theminds of our children thefeeling of comfort, securig,love, warmth, and olfeclion thot arises in.our children's realizalion that both ofus, as their parenls, are pafiicipating in their upbringing.lle wish to giv,e our children the clear message that theJ, are loved end wsnted by eaci oyu{ *atthqr can love us and be with us, that they hove a sense of importance in our fomily - nowreconstituled in two hoaseholds. We want our children to have the knowledge that we wil! useour best efforls to joinlly care for them and thal our children will have physical access to both ofus, All of thcsefoctors we consider to bc imporlml lo the developmcnt of their se$-esteem and tofulfill theb potentiol as ,hEt grow to adulrhood Wc wish to maximize the inwlvement of eachof us in all. aspects ollhe growth and development of oar children. From the care, upbringing,and nunaring of our children, the boruling b*eeen each of us and our children will grow. Informulating our voluntary agreemenl herein, it is our intention to be flaiblc in arriving atresolations to serve the developmental needs ofour children and to cchieye thc purposes we hovcstoted

7. The JPA rccites"Theporent hoving day to daypossession cav mslrc lecisions of a moment effeaing the

chlldren. Substantial decisions of a longcr tcttn conseqxences inclading but nol timited toeducation, religion, cultural snd srtktic training and general welfare will be resolved by theconsensus of the percnls. Howeter, if lhe partics are unable lo reach consensus regording anyofthe aforementioned issucs father shail heve theJinal decision,'JPA Par. 3

8. This cause of action is being filed in conformiry with 28 USC Sec. l7j8A.

56

9. Illinois has sole jurisdiction over the subject matter and rhe

Partieq JOI+rr/ b1d .'a JAUE DA{ '.,andrherwo

minor chitdren,. DANIEL AND ANDREW'DO€..

10. 750 ILCS 5/609 states in part:

Sec- 609. Leave to Remove Chiklren. (a) The court ma!.granl leave, before or afteriadgmenl to ony perty hoving custody of any minor child or childien to remove such child orchildren from lllinois whenever such opproval is in the best interests ofsuch child_or children.The burden ofproving thot such removal is in the best interests ofsach ihild or children is on theparty seeking the removsl

(b) Before a minor child is temporarily rcmovedfrom lllinois, the porent responsibleforthe removal shall inform lhe other patent, or the other porentts attorney, of theiddress indlelephone numbcr where the child may be rcached daring the peiod of temporary removol, andthe date on which the chill shall return to lllinois.

The Statc of l0inois retains jarisdiaion when the minor child is absent from rhc Ststepursuanl lo this subsection.

I l. Case law cites certain criteria wHch tbe Petitioner must meet to seek (not

approvg post faeto, rernoval), lo wit:

ThelllinoisSupreme Court identiliedfivefaclorslorthe courrto considerin determiningwhelher a proposed removal is in the b*t interests of the child sought to be removed. Thefactorsro be considered ore (1) the likelihood lha! the move *ill enhonce the general qaality of ldc forboth lhe custodialparentandthe child; Q) the motivet ofthccustodialparent in seehing thi moveto determine whelher the removol is macly a rase intended lo defeat orfrustrste visitation; (3)lhe motives of thc noncustodial prrcnt in resisting the removal; (1) the visitation ights of thenoncastodisl parent; and (5) whaher a rcalislic and reasonable visitotion schedule csn bcreoched if thc move is aUowed- In re Branham. 24E IIL Apo. 3d EgE. I!7 IIL Dec. 596. 61 7 N.E.2IIl1I7 H DisL 1993|.

l2- Pelitioner has caused to b€ filed a pleading entitled:

.PETITION FOR COI.TRTAPPROVAL OFREMOVAL OF MINOR

CHILDREN;" in essence, asking this Corut lo violate 750 ILCS 5/609, and

to "approve" a post facto act oftbe Petitioner, without legal authority.

- l3' Paragraph 2 of the Petitioncr's pleading acknowledges that the Petirioner *failed

to petition this Conrtfor removal of thc childran.o

JI

summary judgment is appropriate when there are no genuine issues of materiat

fact and the moving party is entitted to judgment as a matrer of law. purtill v-

Hess. I I I lll. 2d 229- 24O. 489 N.E.2d 862. 95 il. Dec,305 (19861.

There is no genuine issue of the material fact that the petilioner removed rhe two

'minor children from Illinois without an order of court granting the relief of

"removal".

16' Petitioner admits in a verified pleading that he remoyed himself and the two

minor children from Illinois to permanently reside in tbe State ofTexas without

filing any pleading pursuant to applicable statute.

17. Iltinois is a fact pleading State,

Illinois is a fact pleading state- This means that although pleadings are ,o be liberalty

conslrued andformal or technical allegalions sre nol necessary, a comploint must, nevertheless,

contain facts to stqle a couse of action. Tru-Linh Fence Co. v. Eeuben H. Donnellsy eoryr-. 104

Ill. Apo. 3d 745. 6O IIL Dec. 289. 132 N.E.2d I IEE (l Dist I9E2t.

19. $ ?35 ILCS 5f2-1005 nrakes provision for. Summary Judgments

Slatute text:Sec. 2-100L Summary judgmmts. (a) For plointitfr, Any tiwc afier the opposire parer has

appeared or afier thc time within which he or she is required to appear hos apired, a plaintillmoy move wilh or wilhout sxppoaing alftdevits for a summary judgment in his or her lavor forall or ony part of the reliclsought

(b) For defendanL A defendont ms!, at eny time, move with or wirhont supportingafJidavits for a summory judgment in his or her fovor os to all or any part of the relief soughtagalnst him or her.

(c) Proccdara The opposilc paQt may priorto or o, the time of the heaing on the motionJile counlerouidtvtts. Thc Jadgmcnt sough, shall be rcndered withotrt delay if the pleadings,depositions, and sdmissions on tile, ,ogether with the allidaviq if any, show that there is nogenuine lssae as to any mol*tal facl and thol the moving party is entirlcd to a judgment as amatter of law. A summaryjudgment, interlocutory in choracler, moy he rendered on the issue ofIiability alone althongh there is a genaine issue as to the amouil of lamages.

(d) Summary determinstion ol major issues- If the cortrt determines that there is no

14.

15.

58

Senuine issae of mot*iol fact as to one ot more of thc major issua5 in the case, but ,hatsubstontiol controvers!, exists wilh respect to other major issucs, or if a pargr moves for osummary determination of one or more, bnt less thon all, of the major issaes in the

"or", oid lh"

coufitindsthat thaeisnogenuineissue of moterialfacl asrothat issueotthose issues, the conrrshall lhereupon drowan orderspecifyingthemojorissue orissaesthat appearwilhoutsubfrantialconlroverql, and direcling suchfurtherproceedings upon the remaining undetermined issues asoreiust. Upon the tial of lhe ease, lhefacts so specilied shall be deemed established, and the rrialshall be conducted occordingly.

(e) Form ofolfidavits' Theform ond contents ofand proceilure relotingto affdovits anderthis SeAion shall be as provided by rule.

$ Alfidavits made in badfaith. If it appears to lhe salisfoction of the court at any time thatony afJidavil presenled pursuant to this Section is presented in bodfoith or solelyfor the purposeof delay, the court shall without delay order the party employing it to pay to the other party theamount of the reosonable expenses which thertfng of the allilIavit caused him or her to incur,including reasonable aflornqt'sfees, ond uy olfendingpqrty orattornqt moybe adjudged guiltyof conlempt.

(g) Amendment of pleading. Before or after the entry olo summary judgment, the courtshall permit pleadings to be amended upon jusl ond reasonable terms.

There is no dispuie as to the applicarion of the law applicable to removal, to

wit:?50 ILCS 5/609, nor the statutory requironent that the acr of removal cannot

be "condoned" by a litigant fiting a pleading seeking the Court's approval for rhe

violation of said stalute, as a condition subsequent to the action of "removal".

21. There is no dispute as lo the material fact that no cause of action exists, as a

matterof law, to approve a violation of thestatutory requiremenls which must be

mel in order for a parent to seek and obtain an order of removal from this

jurisdiction.

There is no dispute as lo lhe matcrial fact that Petilioner removcd the two minor

children from lllinois for perm-"nt residency in Texas wilhour compliance wil

750ILCS 5/6{8.

WIIEREFORE, Movanl .L l,/D * CPOth! ,prays rhar this tlonorable Courr granr theLrr l-'

20.

22.

59

following relief:

A. That this court grant nmrnaryiudgrncnt upon rhe staternent of material

fact that the Petitioner, JW/ N/ , removed rhe trvo minor children are DANIEL

D0(. -.,w* 'Vf 6fi1 .no t'o", l0 years otd and AIDREW M ut gllz@afi now ase i6

years old from Illinois for permanent residency in Texas without any Order of Courr allowing said

"removal" and without liling a pleading seeking removal pursuant to 750 ILCS 516O9,in viotation

of the provisions of the Parenting AgreemenVOrder and statute.

B- For such oiher and further relief as is deemed eguitable in rhe premises.

Rcspeeltully Sgbpiuedf

BY: ---...------.-.-----.---_.-:: LrNDA Cffitlili**t

As atlorney for Re4bndent

laila LrohrAttornev for Resnondent

lzz4'Natn'€lreelCHICAGO,ILLINOTS 60640-n3-gL{L-ssq{

60