No. 2--03--0080				

__________________________________________________________________

	IN THE

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

___________________________________________________________________

In re MARRIAGE OF			  )	Appeal from the Circuit Court 

MARY PETERS SULLIVAN,		  )	of Du Page County.

n/k/a Mary Peters,			  )

						  )

	Petitioner-Appellee,  	  ) 

						  )

and						  )	No. 94--D--79

						  )		

EUGENE SULLIVAN,			  )	Honorable

						  )	Brian R. McKillip,

	Respondent-Appellant.	  )	Judge, Presiding.	

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	JUSTICE GILLERAN JOHNSON delivered the opinion of the court:

	The respondent, Eugene Sullivan, appeals from the January 13,

2003, order of the circuit court of Du Page County dismissing his

petition to allow his family to visit with his son while he iwas

serving on active military duty. We reverse and remand for

additional proceedings.

	The parties' marriage was dissolved on October 24, 1997. 

Custody of the parties' one child, Samuel, born on August 13, 1993,

was awarded to the petitioner, Mary Peters.  Eugene was awarded

visitation rights.  On September 13, 2002, Mary filed petitions

seeking to modify child support and to adjudicate Eugene in

indirect civil contempt for failing to maintain medical insurance

for Samuel.  During these postdissolution proceedings, Eugene filed

a petition to permit his family to have continued visitation with

his son while he wais on active military duty.  Eugene's petition did not specify the statutory basis for his request for relief. 

Eugene's petition alleged that he was a member of the armed

services and that he was being ordered to active military duty in

October 2002 for a one- or two-year period.  His petition further

alleged that while he was deployed on active duty, it would be in

the best interests of his son to continue his visitation schedule

with Eugene's family.  The petition alleged that Mary would prevent

Samuel from visiting with Eugene's family while Eugene was on

active military duty.  Eugene's petition therefore requested the

trial court to order that Samuel be permitted to visit with

Eugene's family members on Eugene's scheduled visitation days as

long as Eugene was away on military duty.

	On October 22, 2002, Mary filed a motion to dismiss Eugene's

petition pursuant to sections 2--619(a)(1) and (a)(4) of the Code

of Civil Procedure (735 ILCS 5/2--619(a)(1), (a)(4) (West 2002)). 

She argued that, based on Wickham v. Byrne, 199 Ill. 2d 309 (2002), the trial court lacked subject matter jurisdiction to grant Eugene

the relief he requested.

	On January 6, 2003, the trial court entered its written

findings and dismissed Eugene's petition on subject matter

jurisdiction grounds.  The trial court explained that Eugene was

essentially requesting grandparent visitation or treating

visitation as a chose in action which he could assign, neither of

which was permissible.  On January 13, 2003, the trial court

entered an order consistent with its written findings.  The trial

court also found that pursuant to Supreme Court Rule 304(a) (155 Ill. 2d R. 304(a)), there was no reason to delay enforcement of the

order.  Eugene thereafter filed a timely notice of appeal.

	On appeal, Eugene argues that the trial court erred in

granting Mary's section 2--619 motion to dismiss his petition to

allow his family to visit his son while he was away on active

military duty.  Specifically, Eugene contends that the trial court

erred in determining that it lacked subject matter jurisdiction to

grant him the relief that he requested.  Eugene argues that, under

the common law, the trial court was permitted to award his family

visitation rights upon the showing of special circumstances.

	At the outset, we note that Mary argues that Eugene has waived

his contention as to whether jurisdiction for his petition existed

under the common law because he failed to raise that issue before

the trial court.  However, because parties cannot waive an issue of

subject matter jurisdiction (Currie v. Lao, 148 Ill. 2d 151, 157 (1992)), we will consider the merits of his contention.

	The primary purpose of section 2--619 is to afford a means of

obtaining, at the outset of a case, a summary disposition of issues

of law and of easily proved questions of fact.  Clay v. Kuhl, 297 Ill. App. 3d 15, 19 (1998).  Under section 2--619(a)(1), a

defendant may raise the trial court's lack of subject matter

jurisdiction as a defense to the action.  735 ILCS 5/2--619(a)(1)

(West 2002).  When the defendant files a motion to dismiss pursuant

to section 2--619, all well-pleaded facts and reasonable inferences

are accepted as true for purposes of the motion; conclusions of

law, however, are not accepted as true.  Evans v. General Motors Corp., 314 Ill. App. 3d 609, 614 (2000).  A reviewing court should conduct an independent review of the propriety of dismissing the

complaint and is not required to defer to the trial court's

reasoning.  Clay, 297 Ill. App. 3d at 19.

	Subject matter jurisdiction refers to the power of the court

to hear and determine cases of the general class to which the

proceeding in question belongs.  Belleville Toyota, Inc. v. Toyota Motor Sales U.S.A., Inc., 199 Ill. 2d 325, 334 (2002).  With the exception of the circuit court's power to review administrative

action, which is conferred by statute, a circuit court's subject

matter jurisdiction is conferred entirely by our state

constitution.  Ill. Const. 1970, art. VI, §9; In re Lawrence M., 172 Ill. 2d 523, 529 (1996).  Thus, in order to invoke the subject

matter jurisdiction of the circuit court, a plaintiff's case, as

framed by the complaint or the petition, must merely present a

justiciable issue.  Belleville Toyota, 199 Ill. 2d at 334; see also  People v. Western Tire Auto Stores, Inc., 32 Ill. 2d 527, 530 (1965) (the test of the presence of subject matter jurisdiction is

found in the nature of the case as made by the complaint and the

relief sought).

	The record reveals that Eugene's petition was essentially a

request for a modification of his visitation rights.  Section

607(c) of the Illinois Marriage and Dissolution of Marriage Act

(the Dissolution Act) provides that a "court may modify an order

granting or denying visitation rights of a parent whenever

modification would serve the best interests of the child."  750

ILCS 5/607(c) (West 2002).  Thus, the issue becomes whether the

trial court could grant Eugene's requested relief and allow his family to exercise his visitation rights when he was serving

overseas in the military.

	Issues pertaining to child custody and visitation were

governed by common law prior to the enactment of any statutory

scheme regulating these areas of law.  In re Visitation With C.B.L., 309 Ill. App. 3d 888, 890 (1999).  At common law, courts were permitted to award visitation to a parent's family members

when special circumstances were shown.  Bush v. Squellati, 122 Ill. 2d 153, 155 (1988); Solomon v. Solomon, 319 Ill. App. 618, 621-22 (1943).  In Solomon, the father petitioned the trial court to permit his parents to have visitation with his child while he was

on active military duty in World War II.  The reviewing court

determined that the granting of visitation was not improper based

on the father's special circumstances.  Solomon, 319 Ill. App. at 621.  The court found that if the father had not been called into

the armed services, he would have had the right to visit with his

son on weekends and allow his son to visit with the grandparents

regularly.  Solomon, 319 Ill. App. at 621.  The court further found that, while the father was serving in the military, he should not

be forced to unnecessarily worry about existing relationships at

home.  Solomon, 319 Ill. App. at 622.  The court explained that under the provisions of the Soldiers' and Sailors' Civil Relief Act

of 1940 (the Soldiers' Relief Act) (50 U.S.C. app. §521 et seq.  (2000)), courts were empowered to remove every inhibition that

would interfere with a soldier's full devotion to his important

task of service for his country.  Solomon, 319 Ill. App. at 622.  The court therefore suggested that the best way to ensure that  contact would continue between the father and his child, and that

the father would not worry about his existing relationships at

home, was to allow the child to visit with his grandparents while

the father was away.  Solomon, 319 Ill. App. at 621-22.

	Like the father in Solomon, Eugene is a soldier entitled to the protections afforded by the Soldiers' Relief Act.  See

generally In re Marriage of Brazas, 278 Ill. App. 3d 1, 3 (1996) (the Soldiers' Relief Act confers substantial rights and should be

liberally construed).  Thus, under common law and the Soldiers'

Relief Act, based on his service in the military overseas, Eugene

would have had the right to petition to have his family visit his

son in his absence.  See Solomon, 319 Ill. App. at 621-22.  

	In 1977, the legislature enacted the Dissolution Act.  C.B.L., 309 Ill. App. 3d at 890.  As part of the Dissolution Act, the

legislature enacted section 607(a), which provided that a parent

not awarded custody of his child was entitled to reasonable

visitation rights with his child.  750 ILCS 5/607(a) (West 2002). 

Section 607(b) provided that a court may grant grandparents

reasonable visitation privileges to their grandchildren.  750 ILCS

5/607(b) (West 2000).  Section 607(b)(1)(D) provided that

grandparents or certain other relatives could seek visitation with

the child or children at issue if one of the parents joined in the

petition.  750 ILCS 5/607(b)(1)(D) (West 2000).  Thus, under this

provision, the trial court had authority to award visitation rights

to a parent's family if the parent himself requested that such

visitation be awarded.  The effect of the Dissolution Act was to supersede and replace the common law with regard to the subject

matter it addressed.  See C.B.L., 309 Ill. App. 3d at 894. 

	However, in 2002, the Illinois Supreme Court determined that

sections 607(b)(1) and (b)(3) of the Dissolution Act, which

authorized grandparent visitation, were unconstitutional.  See

Wickham v. Byrne, 199 Ill. 2d 309, 322 (2002).  The court held that the statute was unconstitutional because it contravened the

traditional presumption that parents are fit and act in the best

interests of their children.  Wickham, 199 Ill. 2d at 320.

	When a court determines that a statute is unconstitutional,

the statute is void ab initio.  People v. Gersch, 135 Ill. 2d 384, 390 (1990).  It is as if the statute never existed from its

inception.  People v. Zeisler, 125 Ill. 2d 42, 46 (1988).  In fact, the legal effect of declaring a statute unconstitutional is to

regullegate the parties to such rights as obtained prior to the

enactment of the unconstitutional statute.  Geneva Construction Co. v. Martin Transfer & Storage Co., 4 Ill. 2d 273, 277 (1954).  Accordingly, as sections 607(b)(1) and (b)(3) are unconstitutional,

the effect is that it returns the law returns to how it was before the

enactment of the statute.  As discussed above, the state of the law

prior to the enactment of sections 607(b)(1) and (b)(3) would have

allowed Eugene to receive the relief that he was seeking:  to have

his parents visit his child in his absence.  See Solomon, 319 Ill. App. 3d at 621-22.  We therefore hold that the trial court erred in

dismissing Eugene's petition on subject matter jurisdiction

grounds.

	In so ruling, we note that Mary's reliance on Wickham is misplaced.  Unlike Wickham, the present case does not involve grandparents filing petitions in their own capacity seeking to

visit their grandchildren.  Rather, this case involves a father

petitioning to modify his visitation rights so that his family can

visit his son while he is serving in the military overseas.  As

such, unlike Wickham, this case does not involve a judge deciding what is in the best interest of a child between a fit parent and a

nonparent.  See Wickham, 199 Ill. 2d at 320-21. Instead, this case involves the trial court's weighing of the wishes of two fit

parents to determine what is in the child's best interests.  Under

section 607(c) of the Dissolution Act, the trial court has the

authority to make such a determination.

	Finally, we note that Mary contends that because she is the

child's custodial parent, she has the right to determine with whom

her child associates.  Although this argument is not without some

merit, it does not affect whether the trial court had jurisdiction

to consider Eugene's petition.  Rather, this argument should be

considered in the context of a best interest hearing pursuant to

section 602 and section 607(c) of the Dissolution Act (750 ILCS

5/602, 607(c) (West 2002)) to determine if modifying Eugene's

visitation rights in the manner he requests is appropriate. 

Furthermore, beyond considering the relevant factors under section

602, the trial court should also consider the policy annunciated in

Solomon as to the importance of maintaining a bond between a child and his parent serving in the armed forces. 

	For the foregoing reasons, the judgment of the circuit court

of Du Page County is reversed and remanded with directions that the

trial court conduct a hearing in accordance with sections 602 and

607(c) of the Dissolution Act to determine if it is in the child's

best interests that Eugene's visitation rights be modified to allow

Eugene's family to visit with the child while Eugene is serving in

the military overseas.

	Reversed and remanded with directions.

	GROMETER and BYRNE, JJ., concur.