2022 IL App (1st) 211014 -U

No. 1-21-1014 

March 14, 2022

First Division

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the 

limited circumstances allowed under Rule 23(e)(1).

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

______________________________________________________________________________ 

IN RE THE MARRIAGE OF

DAVID HEDDLESTON, 

Petitioner-Appellant, 

 v. 

MARY KOSINSKI, 

 

 Respondent-Appellee. 

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Appeal from the Circuit Court 

of Cook County, Illinois 

No. 20 D 5334

The Honorable 

David Haracz

Judge Presiding. 

JUSTICE WALKER delivered the judgment of the court, with opinion. 

Justice Pucinski and Justice Coghlan concurred in the judgment. 

ORDER

Held: A marital settlement agreement that requires future negotiation on the exact time for parental 

visits imposes on both parties an enforceable duty to negotiate in good faith. Where a petition did 

not allege facts that could support a finding one parent negotiated in bad faith, the circuit court 

properly dismissed, without an evidentiary hearing, a claim for abuse of allocated parenting time.

¶ 1 The circuit court denied David Heddleston’s motion for a finding that his ex-wife, Mary 

Kosinski, abused allocated parenting time. Heddleston contends the circuit court’s order makes 

the marital settlement agreement (MSA) unenforceable. We find the settlement agreement 
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includes an enforceable promise that both parties will negotiate in good faith to arrange 

Heddleston’s parenting time. We also find that Heddleston’s motion did not allege facts that could 

support a finding that Kosinski violated her duties under the MSA. Accordingly, we affirm the 

circuit court’s judgment. 

¶ 2 I. BACKGROUND

¶ 3 Kosinski married Heddleston in 2011. They had two children: Theodore, born in 2014, 

and Reagan, born in 2016. A Virginia court entered a judgment dissolving the marriage in 2020. 

The judgment incorporated the parties’ MSA. Kosinski and the children moved to Illinois and 

Heddleston moved to Florida. An Illinois court enrolled the Virginia judgment in January 2021.

¶ 4 The MSA anticipated the parties’ moves, as it provides:

“Regular Weekly Schedule When Parents Live More than Fifty (50) Miles From 

Each Other: The parties shall mutually agree to a regular custodial schedule. ***

*** [T]he non-custodial parent will typically visit the children one weekend a 

month. *** The primary custodial parent agrees to be flexible with the noncustodial parent.”

¶ 5 On January 27, 2021, Heddleston filed a “Motion for Finding of Abuse of Allocated 

Parenting Time,” pursuant to 750 ILCS 5/607.5 (West 2020). He alleged:

“In August 2020, the Respondent refused to allow Petitioner to spend birthday 

parenting time with the parties’ daughter, to celebrate his own birthday with the 

children, or to exercise his one weekend each month with the children. The 

Petitioner offered to forego an entire weekend with the children in order to ensure 

that both parents would be able to celebrate their daughter’s birthday in close 

proximity to such. The Respondent insisted that the Petitioner quarantine for 14 
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days after travelling to Illinois. Notwithstanding Respondent’s position on 

Petitioner’s travel, Respondent took the children to visit her two aunts and 

grandmother in Indiana. This took place on August 8, 2020. It is unknown, what 

if any, precautions Respondent took for herself and the children.

*** The Respondent finally ‘allowed’ the Petitioner one hour of supervised 

parenting time on the front lawn of her residence provided that the children and 

Petitioner wear masks and avoid physical contact.

*** In January 2021, the Respondent failed to make the children available for 

parenting time ***. The Petitioner advised the Respondent on December 30, 2020, 

of his intent to spend parenting time with the children January 15-17. The 

Respondent initially stated that she would not make the children available for 

January 15-17 *** and instead offered the weekend of January 22-24. The 

Petitioner offered to truncate parenting time and instead visit from January 15-16 

***. The Respondent then required that the Petitioner first would need to provide 

proof of a negative COVID test. When the Petitioner explained that such proof was 

not a condition of the MSA, the Respondent then stated that the Petitioner could 

not visit with the children January 15-16 ***.

*** The Petitioner traveled to [Kosinski’s home] on January 15 and advised the 

Respondent that he was prepared to pick up the children at 6 p.m. that day. *** 

However, the Respondent continued to demand the Petitioner to furnish a negative 

COVID test before the Respondent would make the children available for the 

Petitioner’s parenting time.
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*** On January 15, 2021, the Petitioner drove to and parked in front of the 

Respondent’s residence on the public street. *** The Petitioner then sent an e-mail 

[to] the Respondent and her counsel. The Petitioner then sent the Respondent a text 

message stating he was present at the residence and ready to pick up the children. 

The Respondent sent the Petitioner a text message noting that ‘[b]oth my lawyer 

and I have requested a negative COVID test if you are flying.’ *** 

*** In e-mail correspondence, the Petitioner questioned the Respondent and her 

counsel as to the underpinning concerns given the Respondent’s own conduct 

relative to COVID safety. For instance, from December 27, 2020, to January 2, 

2021, the Respondent and her spouse, after dropping off the children with the 

Petitioner for his holiday parental visitation, stayed in three different hotels ***. 

[N]either the Respondent nor her spouse furnished or alluded to any negative 

COVID test prior to accepting the children despite their travels the preceding week. 

*** 

*** Petitioner has been fully vaccinated for COVID-19.” 

¶ 6 Heddleston asked the court to enter an order (1) finding that Kosinski abused allocated 

parenting time; (2) awarding him court fees and travel expenses; and (3) modifying the MSA to 

restrict Kosinski’s right to reject the weekends Heddleston prefers for his visits. 

¶ 7 The trial court heard arguments on July 20, 2021. No court reporter recorded the hearing. 

The court heard no testimony and received no documents into evidence. The court denied 

Heddleston’s motion, explaining that the parties never agreed to any particular weekend in January 

2021 for Heddleston’s visit, and the court could not find that Kosinski had violated the MSA. 

Heddleston now appeals.
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¶ 8 II. ANALYSIS

¶ 9 Heddleston argues that the circuit court misconstrued the MSA, and the court’s 

interpretation makes the MSA unenforceable. The order denying Heddleston’s motion resolved 

the last issue pending in the case. As the order “terminates the litigation between the parties on 

the merits [and] disposes of the rights of the parties,” (R.W. Dunteman Co. v. C/G Enterprises,

Inc., 181 Ill. 2d 153, 159, 692 N.E.2d 306 (1998)) it constitutes a final judgment. Supreme Court 

Rule 303 gives this court jurisdiction to consider the appeal. Ill. S. Ct. R. 303 (eff. July 1, 2017).

¶ 10 The circuit court denied Heddleston’s motion for a finding that Kosinski abused parenting 

time without hearing any evidence on its allegations. “A hearing is not automatically required 

whenever a parent seeks modification of a custody order.” Williams v. Reid, 187 A.D.3d 1593, 

1594, 133 N.Y.S.3d 152, 153 (2020). The court may dismiss the petition without an evidentiary 

hearing when the allegations, if proven, would not show grounds for granting the relief the 

petitioner seeks. Id.

¶ 11 The circuit court found Heddleston’s allegations insufficient to show an abuse of allocated 

parenting time. We review de novo the dismissal of a claim on grounds of insufficient allegations. 

Van Meter v. Darien Park District, 207 Ill. 2d 359, 368 (2003). The dispute here requires 

interpretation of the MSA, which we also review de novo. Blum v. Koster, 235 Ill. 2d 21, 33, 919 

N.E.2d 333 (2009).

¶ 12 The parties entered the MSA in Virginia, and a Virginia court approved it and made it part 

of a judgment of dissolution. Neither party addresses the issue of whether Virginia law might 

control its interpretation. Fortunately, we find no significant difference between Virginia law and 

Illinois law on the issues in this case. Both states apply rules of contract construction to MSAs. 

Id.; Plunkett v. Plunkett, 271 Va. 162, 166, 624 S.E.2d 39, 41 (2006). The MSA here leaves open 
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for subsequent negotiation the resolution of which weekend each month the non-custodial parent 

will have visitation. In both Illinois and Virginia, “a party vested with contractual discretion [must] 

exercise that discretion reasonably, not arbitrarily, capriciously, or in a manner inconsistent with 

the reasonable expectation of the parties.” Northern Trust Co. v. VIII South Michigan Associates, 

276 Ill. App. 3d 355, 367 (1995); Stoney Glen, LLC v. Southern Bank & Trust Co., 944 F. Supp. 

2d 460, 465-66 (E.D. Va. 2013).

¶ 13 To state a claim for violation of the MSA, Heddleston needed to allege facts that could 

support a finding that Kosinski failed to negotiate in good faith in the parties’ dispute concerning 

visitation for January 2021. The court could properly consider the parties’ agreements for 

visitation in other months and for extended visits. See In re Custody of McIntyre, 97 Ill. App. 3d 

777, 780 (1981). Heddleston contends Kosinski violated the MSA by refusing to let him visit the 

children on the weekend of January 16, 2021. “The covenant of good faith and fair dealing does 

not enable a guarantor to read an obligation into a contract that does not exist.” Northern Trust, 

276 Ill. App. 3d at 368. The MSA does not require Kosinski to make the children available for 

visits on the weekends Heddleston prefers. Heddleston’s allegations do not support a finding that 

Kosinski refused to negotiate with Heddleston about the January 2021 visit or that she acted in bad 

faith. Because Heddleston has failed to state facts that could support a finding of a violation of 

the MSA or an abuse of parenting time, we affirm the dismissal of his motion.

¶ 14 III. CONCLUSION

¶ 15 The MSA required both parties to negotiate in good faith to arrange times for Heddleston 

to visit his children. Heddleston has not alleged facts that could support a finding Kosinski acted 

in bad faith in negotiation for Heddleston’s visit in January 2021. Accordingly, we affirm the 

judgment dismissing Heddleston’s motion for finding an abuse of allocated parenting time.
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¶ 16 Affirmed.