No. 2--06--0796 Filed 3/8/07

______________________________________________________________________________ IN THE AP PE LLATE COU RT OF ILLIN OIS SECOND DI STRICT

______________________________________________________________________________ In re MARRIAGE OF ) Appeal from the Circuit Court AMANDA B OEHMER, ) of Lak e C ou nt y. n/k/a Amanda Stafford, ) ) Petitioner-Appellee, ) No. 02--D--1164 ) and ) ) MATTHEW R. BOEHMER, ) Honorab le ) Diane E. Winter, Respondent-Appellant. ) Judge , Pres idin g.

______________________________________________________________________________ JUSTICE KAPAL A deliver ed the opi nion of the

court: Responde nt, Matthew R. Boehmer, appeals from an orde r of the circuit court of La

ke County adopting the part

ies' pr evious private agreement to allow the removal of the parties' minor child from the State of Illinois. We reverse and re mand. I. BACKGROUND Peti tio ner, Amanda Boehmer, n/k/a Amanda Stafford, a nd respondent were married on November

22, 1997. D

uring th eir marr

iage th ey had one c

hild, Cay lee Ann, born Apr

il 12, 2001. OnMay 29, 2002, petitioner filed a petition for dissolution of marriage. The trial court entered the judgment of dissolution of marriage on A pril 11, 200 3, resolving all property issues between the parties and incorporating the parties' joint parenting agr eement. The agreement provide d that the parties would hav e joint leg al custod y of Cay lee, with petitione r as res idential c

ust odian, and

allowedNo. 2--06--0796

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respondent

"alternate residential care " of Cay lee on alternate weekends, one weeknig ht per week, and alternate holiday s and specified vacations. OnOctober 18, 2005, with out court approval or participation, the parties entered into a writtenagreement

entitled, "The visitation agreement for Caylee

Ann Boehmer to move to Louisiana with her mother Amanda Ly

nn Stafford." Both parties signed the a greement and their signa tures

were notarized. The agreement provided new visitation timesfor respondent to see Cay lee, which included the months of December 2005, February 2006, and April 2006, as well as most vacations

once Caylee starte d

school in A

ugust 2006. The

parties a lso agr eed that responde nt would vis it with Caylee at least one weekend per month. Petitioner agreed to pa y for half of

the expenses to transport Caylee between Louisiana

and I llinois. The agreement stated that responde nt would "stop paying Child Suppor t as of Oc tober 25, 2005," and also provided for "$384.52 child support to be reimbursed

to [respo ndent] on the 25th of every month." Finally

, the ag reemen t stated that "[t]his agreement shall be terminated if any thing is not

followed and

Caylee shall move ba

ck to Illinois." OnJanuary 6, 2006, respondent filed an "eme rgenc y pe titio n [to] enjoin re

moval of c

hild fromIllinois and for modification of res identia l custody." Respondent alleged that petitioner had repudiated

the parties' Octobe r 18, 2 005, agreement in that she failed to reimburse child supp ort, failed to pa y her portion of trave l expenses , and thre atened t o keep Ca

yle e from re spondent. Respondent

also alleged that petitioner neglected Caylee' s dental care. Respondent alleged that he had a close and nurturing relat ionship wi th Caylee and that Cay lee would be disrupted and irrepa rably harmed if petiti oner were allowed to remove her f rom Illinois. Respondent asked the court for both a temporary

and a permanent

injunction to prohibit petitioner from removing Cay lee fromIllinois. Respondent also requested an order giving him residential custody of Caylee.No. 2--06--0796

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Respondent

alleged that modification of custody was necessary

because petitioner's life since the divorce had been unstable and unsettled. OnJanuary 6, 2006, the trial court found tha t respondent's pe tition t o enjoin removal and modify custody was not an emergency . The court noted that petitioner intended to comply with the parties' "side notarized agreement" and gave petitioner 21 day s to respond to respondent's petition. OnJanuary 10, 2006, p eti tioner fi led a motion to dismiss r esponde nt's pet ition to enj oin remov al. Petitioner alleged that respondent could not show a likelihood of success on the merits, because he had previously ag

reed that petitioner could remove Cay lee. OnJanuary 30, 2006, petitioner filed a motion for the entry

of the parties' October

18, 2005, agreement

as an order of the court

. The trial court's ruling on this motion is the subject of respondent's appeal. OnMay 16, 2006, the trial court entered an order in which it stated that respondent's "original motion to modify custody filed on or about 1/6/06 has been disposed by prior

order of the cou rt." OnMay 24, 2006, responde nt filed an amended petition for modification of custody. I

n his amended petition, responde

nt alleg ed that pe

titioner' s life sinc e the divorce had been uns table an

d th at h er relation ship with her

present husband had

caused d isruption a

nd stress to Cay lee. Resp ondent al so alleged that there was a fire in petitioner's home on Apr il 16, 2006, render

ing peti tioner' s home uninhabi tab le. Responde nt alleg ed that Ca

yle e share s a bedro om with her t wo half- brother s at petit ioner 's residence in Louisiana. Responde ntalso alleged that petitioner had habitually interfer

ed withhi s contact with Cay lee and t hat Cay lee's e xtended fa

milies ar e both in I

llinois. Re sp onden t asserted that it wa s in Cay

lee's b e st interest to award him residential custody . On May 30, 2006, petitioner filed a

motion to dismiss respondent's amended petition to modify custody, arg

uing thatNo. 2--06--0796

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respondent

failed to allege a substantial chang e in circumstances. On June 15, 2006, the trial court gr an te d p et it io ne r' s m ot io n t o d is mi ss re sp on de nt 's am en de d p et it io n f or mo di fi ca ti on of

cu st od y. OnJuly 17, 2006, the trial court allowed respondent to adopt his amended petition to modify residential custody as his re sponse to petitioner's motion for entry of the parties' October

18, 2005 agreement

as an or de r. On th at sa me da y, the trial court granted petitioner's motion and entere d the agreement

as an ord er, with t he except ion of thr ee provi sions. The

trial cou rt held that it could not enforce the provision that stopped respondent's pay ing child support or

the provision that required petitioner to reimburse respondent for support. The trial court also excluded the provision stating that the agreement shal l terminat e "if a nyt hing is no t followe d and Cay lee shal l move bac

k to Illinois." The trial court provided that the agreement, as approved, was effective as of October 18, 2005. Respondent

now appeals the t rial cou rt's July 17, 2006, order inc orporat ing the p arties' Octo ber 18, 2005, agreement and asks that we re verse the order and remand the ca se for furthe r procee dings. II . DISCUSSION Onappeal, respondent

argues that the trial court erre d when it entered the parties' October 18, 2005, ag

reemen t as an or der witho ut deter mining whether Ca

yle e's re moval to Louisiana

was in her best interests. Respondent advances two contentions on appeal. First, respondent contends that section 502 of the Illinois Marriage and Dissolution of Marriage Act (the Act) (750 I LCS 5/5 0 2 (West 2004)) implicitly

require d the tria

l court to ma ke an indep enden t dete rmina tion of Caylee's best interest s prior to a

pproving the part ies' ag reemen t. Second , resp ond ent contends that section 609(a) of the Act (750 I

LCS 5/609(a) (West 2004)) required the trial court to conduct a hearing onNo. 2--06--0796

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Caylee's best interests prior to entering the agr eement as an order. Whether the trial c ourt had t o independent ly

consider Cay lee's b est inter

ests prior to enter ing the a greement as an

order is a question of lawwe review de novo . See AC & S v. Ind ustri al Com m'n , 304 Ill. App. 3d 875, 879 (1999). We initially note that, although petitioner did not fi le a bri ef in this appeal, the record and issues are si mple e nough that we c an addre ss the issues raised on appeal. See First Capit ol Mo rtgage Corp. v. Talandis Construction Corp. , 63 Ill. 2d 128, 133 (1976). Section 502 of the Act states that to promote amicable settlement of disputes between par ties to a marriage attendant upon the dissolution of

their marriage, the parties may enter into a written

or ora l agree ment. 750 I

LCS 5/5 02(a) (

West 2004) . The ter

ms of the a

greement, exce

pt those providing for the s

upport, c ustody , and visit

ation of c hildren, are bind

ing upon the cour t unless it finds that the agreement is unconscionable. 750IL CS 5/502(b) (West 2004). Moreover, unless the agreement

states otherwise, its terms shall be incorporated into the judgment. 750 IL CS 5/502(d) (West 2004). This court has extend ed the pr ovis ions of se ction 502 t o postdec ree ag reemen ts, holding that when

the part ies agr ee to set t le a postd ecree property dispute by modify

ing the underlying

judgment or marital settlement agreeme nt, section 502 requires the trial court to enforce the new agreement unless it is unconscionable. In re Marriag e of Adamson , 308 Ill. App. 3d 759, 765 (1999). Respondent

argue s that bec ause section 502 does not bind the tr ia l c ou rt to pa rt ie s' cu st od y, visitation, and support agr eements , it i mp li ci tl y requires the trial court to make an independent determination

of best interests prior to entering such ag reements as orders. I

n construing a statute,

our primary goal isto determine the intent of the legislature. Wisniewski v. Kownacki , 221 Ill. 2dNo. 2--06--0796

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453, 460 (2006). The best indication of the intent of the legislature is the lang uage of the statut e , which must

be give n its plain and ordinary

meaning. Wisniewski , 221 I ll. 2d at 46 0. If plain and unambig uous, the la ngu age must be read without exception, limitation, or condition. Village of Chathamv. County of

Sangamon , 216 Ill. 2d 402, 429 (2005) . The plain language of sec tion 502 states on ly t ha t p ar ti es ' a gr ee me nt s r eg ar di ng cu st od y, visitation, and support are not binding on the court. 750 IL CS 5/502(b) (West 2004). Section 502 does not require any independent determ inations by t

he trial c ourt whe

n approving par

ties' a greements conc erning

these sub

jects. Thus, while the

court isnot bound

to accept parties' ag

reements concerning custody , visitation, and support, the plain language of section 502 does notprohibit the court from accepting ag reements as to these matters without further inqu iry. There fore, w e rejec t resp onden t's contention that section 502 required the trial court to make an independent determination as to Cay lee's b est inter

ests prior to its entry of the par

ties' agreement as an or

der. Respondent

next arg ues that d espite the parties' agreement, section 609 of the Act (750 I LCS 5/609 (West 2004 )) requ

ired the trial c ou rt to hear evidence as to Cay lee's best interests. Section 609(a) s tates: "The court may grant leave, b efore or after

judgmen t, to any party

having custody

of any minor chil d or child

ren to re move such

child or c

hildren f rom I llinois w henever such approval is in the best interests of such child or children. The burden of proving that such removal is in the best interests of such child or children is on the party see

king the removal." 750 IL CS 5/609(a) (West 2004).No. 2--06--0796

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Our supreme court has held that section 609 requires court

approval where minor children subject to the jurisdiction of the court are to be removed permane ntly from the State. Fisher v. Waldrop , 221 Ill. 2d 102, 115 (2006). The par amount que stion in

a removal action

is whether the move is in the best int erests of the child. In re Marriag e of Johnson , 352 Ill. App. 3d 605, 612 (2004 )

. Ac co rd in gl y, our supreme court has identified several factors that should be considered to determine if removal is in a child's best interests. In re Marriag e of Eckert , 119 Ill. 2d 316, 326-27 (1988). The issue in this case is whether, in a postdec ree env ironment, section 609 required the trial court to independently consider factors concerning Cay

lee's best interests prior to enter i ng as an order the parties' agree

ment to removal. In Inre Marriage of Ay ers , 82 Ill. App. 3d 164, 171 (1980), the Third Di strict considere d a similar question i

n rega rd to sec tion 602 of

the Act. I

n that case , upon di ssolution o f their ma rriag e, the pa

rties ag reed tha t the mothe

r would ha

ve custod y of th e coupl e's daughter and the father would have custody of their son, and

the court awarded custody of the children pursuant to these terms. Ayers , 82 Ill. App. 3d at 171. On appeal, the fa ther argued that the trial cou

rt erre d in awar

ding cu sto dy of

the parties' daughter to the mother, be cause it did not consider each of the best interest factors required by section 602 of the Act (Ill. Rev. Stat. 1977, ch. 40, par. 602) (n ow 750 IL CS 5/602(a) (West Supp. 2005))

. Ayers , 82 Ill. App. 3d at 170. The appella te court noted that

because of the parties' ag reement, they

presented scant evidence on many of the factors outlined

in section602, and therefore, the trial court could not make any findings on thesefactors. Ayers , 82 Ill. App. 3d at 171. However, a lthough the trial court did not consider each factor, the appellate court affirmed the cus tody de termination, stating: "We do not find that the Marri age and

Dissolutio n of Marr

iage A ct requi

res that p arties e

nter into a child cus tody

battlewhenNo. 2--06--0796

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they have no desire to do so. Stipulated child custody settlements have long been recognized

in this State, unless cont rary to the best int erests of th e child." Ayers , 82 Ill. App. 3d at 172. The court then held that, although the

trial cou rt did not c onsider e ach best interest factor , th ere was no evidence that granti ng custo dy t

o the mothe

r was not i

n the best

in terests of

the child , and unde

r those circumst ances, a stipulated custody ag reement is consistent with the Act. Ayers , 82 Ill. App. 3d at 172. Similar

to the A yers

court's analy sis of section 602, we do not believe that section 609

nece ssarily

requires an independent examination of factors conce rning best interests when t he partie s agreeregarding the remova l of a chil d. Alt hough we acknowledge that a cour t considering removal should hear any and a ll evide nce rel evant to a child's best inter ests ( Eckert , 119 Ill. 2d at 326), an agreement

between the parents in itself evidences that the d ecision is in the bes t interes ts of the c hild ( In re Marriag e of Herron , 74 Ill. App. 3d 748, 751 (1979)). "[T]he virtues of parental agreeme nt are strong, and

the law appreciates them. [Citation.] The parents

obviously

know more

about the family than a jud

ge is lik ely to learn ina short, formal hearing. I

n a more or

less amic able diss olution, th e paren ts' natural desire to do what is best for their children gives any agreement about custody great weight as an indica tor of what is in the be st intere st of the c hildren. Moreove

r, amica ble settle m ent of custody arrang ements is a good

thing in i tself, for peace

betwee n the par ents must benefit the children ***." Herron , 74 Ill. App. 3d at 751. Thus, because parental agr eement itself indicates that a decision is in the child's best interests, when the parties agree to removal and there is no evidence that removal is not in the best interests of theNo. 2--06--0796

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child, the court does not violate its statutory duty under sec tion 609 by allowing r emoval without conducting a hearing

as to the child's best interests. See Ayers , 82 Ill. App. 3d at 172. That being sa id, the fa cts pres e nted in

this case do not concern an

uncontes ted agr

eement. Inthis case, on October 18, 2005, the par ties ag reed tha t petitione

r could r emove Ca

yle e to Louisiana. Neither party petitioned

the court for removal

at that time . On January 30, 2006, petitioner, citing section 502 of the Act (750 IL CS 5/502 (West 2004)), filed a motion to enter the parties' agreement as an order . Prior to the entry

of the order allowing removal, responde nt argued that despite the previous agreement, remova l was not in Caylee' s best interests. Respondent alleged that petitioner's existence in Louisiana was unsettled and unsta ble. Des pite resp ondent' s arguments, the trial courtentered the October 18, 2005, agr eement as an order on July 17, 2006. The order stated, in part, that the parties had entere d into "a signed and notarized contract." In its order, the trial cou rt made no indicat

ion that it c onsidere d any factor s other th an the ag

reemen t. Section 609 places on the party seeking removal theburden o f proving that removal is in the best interests of the child. 750 IL CS 5/609(a) (West 2004). Although, as discussed above, parental agree ment ge nerally indicate s that rem

oval is in the child's best i

nterests , in this ca se respo ndent 's argument that removal was not in Caylee 's best interests refuted any assumption of best interests that could be draw n from the

agree ment. A pa

rental a greem ent sy

mbolizes the

child's best inter

ests precise ly because both parents affirmatively support the decision. See Herron , 74 Ill. App. 3d at 751. Howeve

r, when one pare

nt argu es that the

terms of t

h e agree ment are not in the c

hild's be st interest s, the agreement does not provide the same w eight as to best intere sts and is not in itsel f enough to support a petitioner's burden under section 609 (see Eckert , 119 Ill. 2d at 325-26). For theNo. 2--06--0796

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same reason, the trial court's acknowledg ment here of

a contested agreement, without more, did not fulfill the cour t's oblig ation to c onsider Ca yle e's be st intere sts prior t o allowing removal. As a resu lt, because there is n

o indicat ion that the

trial cou rt consid ered an y f actors o ther tha

n the par ties' previous , now c onte sted, agreement, the trial court err ed when it allowed removal pursuant to section 609 of th e Act. Conseque ntly , we rev erse the order a nd reman d this cas e for the

trial cou rt to consider evidenc e as to wh ether r

emoval is i

n Cay lee's b est inter

ests. III. CONCL

USION For the fore going

reasons , we rev erse the

order of the circ uit cour t of Lake County and remand t he case for fur ther pro ceeding s. Reversed and remanded. BYRNE and GIL

LERAN JOHNSON, JJ., concur.