author: PRESIDING JUSTICE UNVERZAGT

text:
      In re CUSTODY OF CATRINA MARIE BOZARTH (Cheryel McKerr, Petitioner-Appellant, v. Elmer Bozarth, Respondent-Appellee).
    Second District
    No. 2—88—0776
    Opinion filed May 4, 1989.

      Robert W. Brown, of Dunlap & Brown, Ltd., of Libertyville, for appellant.
    Charles E. Rapin, of Law Offices of Howard M. Lang, of Libertyville, for appellee.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

The petitioner, Cheryel McKerr, appeals from the judgment of the trial court which dismissed her petition seeking custody of her granddaughter, Catrina Marie Bozarth, pursuant to the Uniform Child Custody Jurisdiction Act (the Act) (Ill. Rev. Stat. 1987, ch. 40, par. 2102 et seq.). The petitioner asserts that the trial court erred in determining that the superior court of the State of Washington properly exercised jurisdiction in accordance with the Act. The petitioner further urges that the trial court erroneously deferred to the judgment of the Washington court and found that it was compelled to abide by such judgment pursuant to sections 7 and 14 of the Act (Ill. Rev. Stat. 1987, ch. 40, pars. 2107, 2114). We agree with the petitioner’s contentions and reverse the judgment of the trial court and remand the cause.

The following review of the record is pertinent to our consideration of the petitioner’s appeal. The respondent, Elmer Bozarth, is a resident of the State of Washington and is the father of the minor child, Catrina Marie Bozarth. Catrina was born to the respondent and Wendy Kay Overman on February 6, 1984, in Tacoma, Washington. Overman, who was 16 at the time of Catrina’s birth, and the respondent never married. Approximately five months after Catrina’s birth, Overman abandoned the child and the respondent, and her whereabouts were and are unknown. The respondent voluntarily relinquished custody of Catrina to his mother, petitioner Cheryel McKerr, on October 4, 1984, when the child was approximately eight months old. The petitioner, an Illinois resident, returned to the State of Illinois with the child, where they have continuously resided through the date of the instant appeal. Thus, Catrina, now five years old, has resided with her paternal grandmother in the State of Illinois since infancy.

On October 6, 1987, respondent filed an amended petition to determine paternity accompanied by an affidavit and a motion for order to show cause in the superior court of Washington for Pierce County in the State of Washington. The affidavit, signed by the respondent’s Washington counsel, stated:

“That Petitioner’s [Elmer Bozarth’s] mother, CHERYL [sic] McKERR, currently has custody of the minor child, CATRINA MARIE BOZARTH. That she has had custody for approximately three years. That she took the child from the Petitioner and proceeded to take the child out of the state. *** That I believe that Petitioner’s [respondent’s] mother, CHERYL [sic] McKERR should be ordered to bring the child back into this state and turn the custody over to Petitioner [respondent] pending the outcome of this action.”

The Washington court issued an order to show cause on October 6, 1987, ordering the petitioner to appear in court in Tacoma, Washington, on December 4, 1987, to show why temporary custody of Catrina should not be granted to the respondent.

On November 13, 1987, the petitioner filed a petition for custody pursuant to the Act, alleging that she was a “contestant” within the meaning of the Act and asserting that the circuit court for the Nineteenth Judicial Circuit, Lake County, had jurisdiction over her petition pursuant to section 4 of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 2104). The petitioner further alleged that Catrina had resided in the State of Illinois in excess of six months, that there was available in the State of Illinois substantial evidence concerning her present and future care, protection, custody, training, and personal relationships, and that the child had a significant connection with the State of Illinois. The petitioner further disclosed to the court the pendency of Bozarth’s paternity action in the superior court of the State of Washington.

The petitioner appended to her petition a sheriff’s return of service in which Ronald Rauch, a deputy sheriff in Pierce County, Washington, certified that he had effected personal service on the respondent on November 30,1987.

On December 4, 1987, the Pierce County superior court issued a paternity decree declaring Elmer Bozarth the natural father of Catrina. In its findings of fact and conclusions of law, the Pierce County superior court declared that jurisdiction was obtained over Catrina “by service of Summons and Petition on the Respondent [Catrina Marie Bozarth] by certified mail.” The court found Bozarth and Wendy Kay Overman to be “fit and proper persons to have the care, custody and control of the minor child,” and, from these findings, the court concluded that Bozarth and Overman should be awarded joint custody of the child, with physical custody being awarded to Bozarth.

There is no indication in the Washington court’s findings and conclusions, nor anywhere else in the record before us, that the respondent in this action, Elmer Bozarth, informed the Washington court that there was a custody proceeding pending in the State of Illinois at the time it issued its decree. It is also apparent that although the Washington court appointed a guardian ad litem for Catrina on August 21, 1987, the guardian’s report was not submitted to the court until December 23, 1987, some 19 days after it had issued its paternity decree and custody award.

The guardian’s report reveals that it was based upon two interviews, one with Elmer Bozarth, and the other with Toni Pollock, who the guardian indicates is Bozarth’s wife. (We note that a pleading Bozarth submitted to this court states “he was getting married.”) Both of these interviews took place on October 5, 1987. The guardian’s report includes in its findings that McKerr, the paternal grandmother of Catrina, had had temporary custody of the child for nearly three years, outside the State of Washington; that Wendy Kay Overman, Catrina’s natural mother, was 16 years old at the time Catrina was bom; that she never married Catrina’s father; and that “[s]hortly after Catrina’s birth, [she] went to work for the Job Corps somewhere in Oregon and has had next to no interaction with Catrina *** [and her] whereabouts are unknown.” The guardian further reported that she was unable to interview McKerr “and has only hearsay information on which to base any opinion as to her appropriateness as a custodian of Catrina.” The guardian’s report concluded that, “In the best interest of this child, this Guardian ad litem [recommends that] custody be awarded to Elmer Bozarth, natural father and petitioner herein.”

On December 18, 1987, the respondent filed his response to McKern’s petition in the Illinois circuit court. In his response, he admitted that the child was currently located in the State of Illinois and that he had voluntarily relinquished custody of Catrina to his mother on October 4, 1984. He asserted that until December 4, 1987, the date of the Pierce County superior court paternity decree, “I had [no] rights with regards to Catrina as there was nothing showing me to be the father.” (We note that in a later pleading filed in the Illinois circuit court, Bozarth attached a photocopy of a “Certificate of Live Birth” for Catrina received by the registrar of the State of Washington Department of Social and Health Services, on February 28, 1984, naming him as the father of the child.) Finally, the respondent asserted that the Illinois court should give full faith and credit to the decree of the Washington court which awarded him physical custody of the child.

On February 2, 1988, the respondent filed a motion to contest the jurisdiction of the Illinois court, claiming that section 7 of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 2107) prohibited the court from exercising its jurisdiction. The respondent further asserted that the Illinois court was required to recognize the Washington court’s order of December 4, 1987, pursuant to section 14 of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 2114). The circuit court for the Nineteenth Judicial Circuit, Lake County, permitted the respondent to file his motion contesting jurisdiction on February 2, 1988, and allowed the petitioner to file a response, which she did on March 8,1988.

The respondent filed a reply March 30, 1988, in which he alleged that Catrina had lived in the State of Washington the first year of her life and that her mother had always resided in the State of Washington. He further alleged that he and Overman never relinquished their rights as parents and that McKerr had no legal rights to the child nor standing to bring any action. He claimed that “the Court of the State of Washington has already litigated the issue of custody of the minor child having obtained personal jurisdiction over CHERYEL McKERR and other parties through service of process.” He further claimed that through the Washington Parentage Act (Wash. Rev. Code Ann. §26.26.010 et seq. (1986)), the State acquired the jurisdiction over the parties over the issue of custody of the minor child.

In a letter dated May 2, 1988, the trial court informed the parties that it was granting the respondent’s motion contesting jurisdiction as it found that the Washington court’s custody order was entered pursuant to the Act. The trial court thus concluded that section 14 of the Act compelled it to recognize the Washington decree. The court further noted that the petitioner had notice of the Washington proceedings and failed to object to that court’s exercise of jurisdiction.

The petitioner filed a timely motion to reconsider, contending that the Illinois court had the right and obligation to assume jurisdiction over her petition for custody of Catrina. The trial court denied the motion. It found that although both States could assert jurisdiction, it was “too late, however, for Ms. McKerr to argue that Illinois is the more appropriate forum in light of the fact that Washington has already made a custody determination.” The petitioner’s timely appeal ensued.

The record before us clearly establishes the interstate nature of the custody actions concerning Catrina Marie Bozarth as filed by the parties in the courts of the States of Illinois and Washington. Thus, the matter must be resolved by either court according to the provisions of Uniform Child Custody Jurisdiction Act, which has been enacted in both States (Ill. Rev. Stat. 1987, ch. 40, par. 2101 et seq; Wash. Rev. Code Ann. §26.27.010 et seq. (1986)). A review of both States’ enactments reveals each has adopted the Act as drafted by the National Conference of Commissioners on Uniform State Laws with essentially no substantive changes. See generally 9 U.L.A. 123 et seq. (1988).

Among the stated purposes of the Act are the promotion of cooperation with courts of other States so that custody judgments may be rendered in the State which may best decide the case in the interest of the child and the assurance that litigation concerning the custody of the child will take place ordinarily in the State where the child and his family have the closest connection (Ill. Rev. Stat. 1987, ch. 40, pars. 2102(2), (3); see also Wash. Rev. Code Ann. §§26.27.010(1)(b), (1)(c)). The Act further encourages Illinois courts to decline jurisdiction in matters where a child and his family have a closer connection -with another State and to exchange information and other mutual assistance with the courts of other States concerning matters about the same child (Ill. Rev. Stat. 1987, ch. 40, pars. 2107, 2108; see also Wash. Rev. Code Ann. §§26.27.060, 26.27.070).

The Act provides the following definitions which are relevant to the dispute before us:

“§3.01. ‘Contestant’ means a person, including a parent, who claims a right to custody or visitation rights with respect to a child.” Ill. Rev. Stat. 1987, ch. 40, par. 2103.01.
“§3.04. ‘Home state’ means the state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as parent, for at least 6 consecutive months ***.” Ill. Rev. Stat. 1987, ch. 40, par. 2103.4.
“§3.08. ‘Physical custody’ means actual possession and control of a child.” Ill. Rev. Stat. 1987, ch. 40, par. 2103.08.
“§3.09 ‘Person acting as parent’ means a person, other than a parent, who has physical custody of a child and who has either been awarded custody by a court or claims a right to custody.” Ill. Rev. Stat. 1987, ch. 40, par. 2103.09.

See also Wash. Rev. Code Ann. §§26.27.020 (1), (5), (8), (9) (1986).

The Act sets forth the following jurisdictional requirements:

“§4. Jurisdiction, (a) The circuit courts have jurisdiction to make a child custody determination by initial or modification judgment if:
1. this State
(i) is the home state of the child at the time of commencement of the proceeding, or
(ii) had been the child’s home state "within 6 months before commencement of the proceeding ***; or
2. it is in the best interest of the child that a court of this State assume jurisdiction because
(i) the child and his parents, or the child and at least one contestant, have a significant connection with this State, and
(ii) there is available in this State substantial evidence concerning the child’s present or future care, protection, training, and personal relationships; or
* * *
4. (i) it appears that no other state would have jurisdiction under prerequisites substantially in accordance with paragraphs 1., 2., or 3., or another state has declined to exercise jurisdiction on the ground that this State is the more appropriate forum to determine the custody of the child, and
(ii) it is in the best interest of the child that this court assume jurisdiction.” (Ill. Rev. Stat. 1987, ch. 40, par. 2104.)

(See also Wash. Rev. Code Ann. §26.27.030 (1986).) This section of the Act provides that while the physical presence of the child in the State is desirable, it is not a prerequisite for jurisdiction; additionally, such presence is not sufficient without more to confer jurisdiction. Ill. Rev. Stat. 1987, ch. 40, par. 2104(c), (d); see also Wash. Rev. Code Ann. §§26.27.030(2), (3) (1986).

Section 7 of the Act proscribes the courts of this State from exercising jurisdiction if, at the time a petition is filed under the Act, a custody proceeding concerning the same child is pending in a court of another State exercising jurisdiction substantially in conformity with the Act. (Ill. Rev. Stat. 1987, ch. 40, par. 2107(a); see also Wash. Rev. Code Ann. §26.27.060(1) (1986).) This section directs a court of the State of Illinois to communicate with the courts of other States when it believes that proceedings are pending elsewhere “to the end that the issue may be litigated in the more appropriate forum.” Ill. Rev. Stat. 1987, ch. 40, par. 2107(c); see also Wash. Rev. Code Ann. §26.27.060(3) (1986).

In the event that more than one State satisfies the jurisdictional requirements of the Act, section 8 provides authority whereby Illinois courts may decline jurisdiction on the ground of forum non conveniens. (Ill. Rev. Stat. 1987, ch. 40, par. 2108; see also Wash. Rev. Code Ann. §26.27.070 (1986).) This section sets forth the factors the court should consider in determining whether it is an inconvenient forum and authorizes the court to communicate with the courts of other States and to exchange pertinent information regarding the assumption of jurisdiction by either court “with a view to assuring jurisdiction will be exercised by the most appropriate court.” Ill. Rev. Stat. 1987, ch. 40, par. 2108(d); see also Wash. Rev. Code Ann. §26.27.070(4) (1986).

Lastly, section 14 of the Act requires Illinois courts to recognize and enforce initial or modification custody judgments of courts of other States under certain conditions, namely, when a court of another State has “assumed jurisdiction under statutory provisions substantially in accordance with this Act or [made its judgment] under factual circumstances meeting the jurisdictional standards of the Act.” Ill. Rev. Stat. 1987, ch. 40, par. 2114; see also Wash. Rev. Code Ann. §26.27.130 (1986).

The authority for the filing of a child custody petition is found in section 601 of the Illinois Marriage and Dissolution of Marriage Act, which provides that a nonparent may file such a petition only if the subject child is not in the physical custody of one of her parents. (Ill. Rev. Stat. 1987, ch. 40, par. 601(b)(2).) Thus the initial consideration faced by the trial court in the instant matter is whether the petitioner had standing to file her custody petition regarding Catrina. Given that Catrina’s natural father voluntarily surrendered her care and custody to the petitioner while the child was still an infant, and the petitioner’s care and custody continued uninterrupted for approximately three years, we conclude that Catrina was not in the physical custody of her natural father. Additionally, the record clearly establishes that Catrina’s natural mother abandoned the child while she was an infant. Thus we determine that the petitioner, Cheryel McKerr, Catrina’s paternal grandmother, has standing to initiate custody proceedings. See Montgomery v. Roudez (1987), 156 Ill. App. 3d 262; see also In re Custody ofMenconi (1983), 117 Ill. App. 3d 394.

We next consider whether the courts of Illinois have jurisdiction pursuant to the Act. The facts alleged by both parties establish that the child has resided with the petitioner in this State since approximately October 4, 1984. Having previously concluded that the child is not in the physical custody of either of her parents, we believe it logical to find that the child is in the physical custody of the petitioner, who is clearly a “person acting as parent” within the meaning of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 2103.09). Thus, we determine that Illinois is Catrina’s “home state” as she has resided in this State for at least six months immediately preceding the initiation of McKerr’s petition, with the petitioner, who is a “person acting as parent,” thus satisfying the requirements of section 3.04 of the Act (Ill. Rev. Stat. 1987, ch. 40, par. 2103.04).

The determination that Illinois is Catrina’s home State dictates that the courts of Illinois have jurisdiction to make a child custody determination concerning her pursuant to section 4 (a)(1)(i) of the Act. (Ill. Rev. Stat. 1987, ch. 40, par. 2104 (a)(1)(i).) Even though it is manifest that the State of Illinois is Catrina’s home State (see In re Marriage of Miche (1985), 131 Ill. App. 3d 1029), the courts of Illinois would likewise be eligible to assume jurisdiction pursuant to the “best interest” test set forth in section 4(a)(2) of the Act, which requires a two-part showing that (1) the child and a parent or contestant have a significant connection with the State; and (2) substantial evidence concerning the child’s present or future care, protection, training and personal relationships is readily available in the State (Ill. Rev. Stat. 1987, ch. 40, pars. 2104(a)(2)(i), (a)(2)(ii)). Catrina has resided in Illinois over three years with her paternal grandmother, a contestant in the instant action; these two individuals undeniably have a significant connection with the State (see Jennings v. Jennings (1985), 133 Ill. App. 3d 753, 756). We think it clear that, under these circumstances, there is available in this State substantial evidence concerning Catrina’s present and future care, etc. (See Hollo v. Hollo (1985), 131 Ill. App. 3d 119, 125; see also In re Marriage of Levy (1982), 105 Ill. App. 3d 355, 362.) Thus, with regard to Catrina, the courts of Illinois have jurisdiction to make a child custody determination pursuant to both major bases set forth in section 4 of the Act. Ill. Rev. Stat. 1987, ch. 40, pars. 2104(a)(1), (a)(2)). See generally 9 U.L.A. Comment, at 144-45 (1988).

Although the Illinois court’s jurisdiction regarding Catrina’s custody determination is unquestioned, such jurisdiction may not be exercised if, at the time the petitioner filed her petition, a similar custody proceeding was pending in another State, as provided in section 7 of the Act. (Ill. Rev. Stat. 1987, ch. 40, par. 2107.) The trial court in the instant matter made such a determination and found that it was prohibited from exercising jurisdiction as a similar proceeding was already pending in the superior court of the State of Washington in Pierce County. We believe that the trial court’s finding that the Washington court was operating under the provisions of the Act when it entered its paternity decree and custody award on December 4, 1987, was in error. There is no indication in the Washington pleadings contained in the record on appeal that the Washington court ever considered the jurisdictional requirements set forth in section 4 of the Act (see Wash. Rev. Code Ann. §26.27.030 (1986)). It is further made apparent by these pleadings that the Pierce County court was fully informed that the child in question was not a Washington resident and had not been for some time. Plainly Washington was and is not Catrina’s “home state.” (Wash. Rev. Code Ann. §26.27.030 (1)(a) (1986).) The Washington court was made aware of the interstate nature of the case as of October 6, 1987; yet in its findings dated December 4, 1987, it declared that it had obtained jurisdiction over Cheryel McKerr, the petitioner in the instant matter, “by service of Summons and Petition *** by certified mail.” Such a finding of jurisdiction is not authorized by the Act. See generally Wash. Rev. Code Ann. §26.27.030 (1986); see also Ill. Rev. Stat. 1987, ch. 40, par. 2104.

The Washington appellate court has considered child custody matters which are initiated in other than the child’s home State and has relied upon the principles for determining jurisdiction as set forth in the “best interest” test contained in section 26.27.030(1)(b) of the Washington Revised Code Annotated (compare Ill. Rev. Stat. 1987, ch. 40, pars. 2104(a)(2)(i), (a)(2)(h)) in In re Marriage of Steadman (1983), 36 Wash. App. 77, 671 P.2d 808, and Hudson v. Hudson (1983), 35 Wash. App. 822, 670 P.2d 287. In Steadman, the Washington court concluded that it, rather than the Maine court, had jurisdiction to decide a custody dispute over an infant where neither State was the child’s “home state.” It held that the presence of the mother’s family members in Washington established a “significant connection” for her and upheld the trial court’s finding that the infant had a significant connection with the State, and it determined that substantial evidence existed within the State concerning his best interests. The court concluded:

“Thus, the requirements of RCW 26.27.030(1)(b) have been met: both [mother and child] have a ‘significant connection’ with Washington, and the evidence necessary to determine the elements of custody is available to the court. Jurisdiction was properly accepted.” 36 Wash. App. at 80, 671 P.2d at 810.

In Hudson, decided the same year as Steadman, the Washington appellate court interpreted the “best interest” test as found in section 3 of the Uniform Child Custody Jurisdiction Act as enacted in Indiana and stated, “Under this test, the state with jurisdiction is the one which has maximum access to relevant evidence regarding the child’s ‘present or future care, protection, training, and personal relationships.’ ” (Emphasis added.) 35 Wash. App. at 830, 670 P.2d at 292.) The Hudson court recognized that the most significant evidence concerning these facts “will have to come from the parents themselves, [or] from other persons who might be entrusted with the care of the child.” (Hudson, 35 Wash. App. at 830, 670 P.2d at 292, quoting the commentator, Bridgitte M. Bodenheimer, in The Uniform Child Custody Jurisdiction Act: A Legislative Remedy for Children Caught in the Conflict of Laws, 22 Vand. L. Rev. 1207 (1969).) The Hudson court concluded that as the facts established the child had a significant connection with the State of Indiana, the court was mandated to recognize the Indiana custody award.

As in Steadman and Hudson, Washington was clearly not the “home state” at the time Elmer Bozarth initiated his paternity action and sought custody of Catrina. Therefore, the superior court in Pierce County was required to apply the “best interest” principles set forth in section 26.27.030(1)(b) of the Washington Revised Code Annotated in order to determine whether it could properly assume jurisdiction. It is apparent on the face of the pleadings from the Washington court that no such findings of significant connections and availability of substantial evidence were ever made.

More recently, the Washington appellate court has again applied the “best interest” test as well as the “home state” test provided in section 3 of the Uniform Act (see also Wash. Rev. Code Ann. §§26.27.030(1)(a), (b) (1986)) in In re Custody of Thorensen (1987), 46 Wash. App. 493, 730 P.2d 1380. There the Washington court held that it had jurisdiction flowing from both criteria to modify a Florida decree, and it was not precluded from assuming such jurisdiction by the already pending action in Florida because the Florida action was not in compliance with the Uniform Act’s jurisdictional requirements. The court stated:

“[W]e find that the exercise of jurisdiction by the Washington court serves one of the major purposes of the UCCJA of assuring that litigation take place in the state with the closest connection with the child and where the most significant evidence concerning the child’s care, protection, training, and personal relationships is available. RCW 26.27.010(1)(c). *** [T]he best interest of the child is served if the forum for the litigation is the state having the best access to relevant evidence.” Thoren son, 46 Wash. App. at 507, 730 P.2d at 1388.

The Thorenson court recognized, as had the Hudson court, that the Act requires maximum rather than minimum contact in order to satisfy the mandate of “significant connections.” (Thorenson, 46 Wash. App. at 507, 730 P.2d at 1388; Hudson, 35 Wash. App. 830, 670 P.2d at 292.) This requirement has been similarly interpreted and applied by the courts in Illinois, where it has been further stated that the “substantial evidence” requirement is not intended to be used as a substitute for “some evidence” but clearly requires a high degree of connection and access to evidence. See In re Marriage of Miche (1985), 131 Ill. App. 3d at 1032; In re Marriage of Levy (1982), 105 Ill. App. 3d at 361-62.

We think it clear on the face of the record before us that no facts supporting a finding, of significant connections exist between Catrina, the petitioner, and the State of Washington. Likewise, the facts fail to support a finding that substantial evidence concerning Catrina’s present or future care, protection, training, and personal relationships is readily available in the State of Washington. Thus we conclude the superior court of the State of Washington in Pierce County did not properly assume jurisdiction, and when it issued its decree of paternity and custody award December 4, 1987, it failed to exercise jurisdiction substantially in conformity with the Act.

In view of our conclusions above, we hold that the trial court was not compelled to recognize and enforce the custody order of the Washington court pursuant to section 14 of the Act, as it is plain that that court had not properly assumed jurisdiction under the Act, nor was its order made under factual circumstances meeting the jurisdictional standards of the Act. But see In re Marriaqe of Dagher (1986), 145 Ill. App. 3d 379.

At the risk of belaboring the jurisdictional requirements set forth in the Act, we note that the trial court erroneously concluded that the Washington court had jurisdiction regarding the instant custody dispute because the petitioner herein received notice and failed to object to that court exercising jurisdiction. In its later order denying the petitioner’s motion to reconsider, the trial court found that Washington had a basis for asserting jurisdiction concurrent with the State of Illinois, but concluded that it was too late for the petitioner to argue that Illinois was the more appropriate forum as the Washington court had already made a custody determination. These findings of the trial court are patently in violation of the jurisdictional requirements set forth in section 4 of the Act as it is enacted in both the States of Illinois and Washington. (See Ill. Rev. Stat. 1987, ch. 40, par. 2104; Wash. Rev. Code Ann. §26.27.030 (1986)). A contestant’s failure to act does not vest an inappropriate court with jurisdiction, nor does the fact that one court has succeeded in issuing a custody order sooner than another court endow it with jurisdiction if it does not meet the requirements of the Act. In short, McKerr’s failure to object to the paternity action in Washington and that court’s haste in issuing an unsupported custody order do not satisfy either the “home state” or “best interest” criteria essential for the establishment of jurisdiction under the Act.

The judgment of the circuit court of Lake County is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

DUNN and McLAREN, JJ., concur.


source: Caselaw Access Project

author: JUSTICE McLAREN

license: Public Domain

text:
    TRI-G, INC., Plaintiff-Appellant, v. ELGIN FEDERAL SAVINGS AND LOAN ASSOCIATION, Defendant-Appellee.
    Second District
    No. 2—88—0897
    Opinion filed May 4, 1989.

      Timothy K. Mahoney and Charles E. Nave, both of McNamee & Mahoney, Ltd., of Dundee, for appellant.
    William R. Ketcham and Daniel E. Compton, both of Brittain, Ketcham, Strass, Terlizzi, Flanagan, Weir & Johnson, P.C., of Elgin, for appellee.
   JUSTICE McLAREN

delivered the opinion of the court:

The plaintiff, Tri-G, Inc., appeals the trial court’s order denying its motion to reconsider the dismissal of its complaint and the imposition of sanctions pursuant to section 2 — 611 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 611) in the amount of $1,500. On appeal, the plaintiff contends that the trial court’s dismissal of its complaint, based on the doctrine of res judicata, was error because the complaint’s predecessor had never been adjudicated on the merits; rather, the trial court had dismissed the earlier complaint for want of prosecution which allowed the plaintiff to refile its suit within one year. The plaintiff further contends that the trial court’s imposition of section 2 — 611 sanctions was improper because the wealth of case law supports the plaintiff’s refiling of the complaint, thus establishing its good faith. We affirm.

On May 11, 1988, the plaintiff filed a complaint, case No. 88 — L— 0132, against the defendant alleging the existence of oral construction loan contracts between the parties, numerous breaches by the defendant of said contracts and fraud. Shortly thereafter, the defendant filed motions seeking the dismissal of case No. 88 — L—0132 and the imposition of sanctions pursuant to section 2 — 611. The defendant alleged that the complaint was a duplicate of an earlier action filed by the plaintiff against the defendant in Tri-G, Inc. v. Elgin Federal Savings & Loan Association, No. 81 — L—0284, said complaint having been adjudicated on the merits on May 11, 1987. The defendant’s motions further alleged that case No. 81 — L—0284 had been appealed by the plaintiff to this court, which appeal was dismissed on November 13, 1987, for failure to abide by the rules of the appellate court. Thus, defendant claimed that the plaintiff’s case No. 88 — L—0132 was barred by res judicata.

The trial court ordered the plaintiff’s complaint dismissed on July 8, 1988, and further granted the defendant’s motion for sanctions against the plaintiff and its attorneys in the amount of $5,000. The plaintiff timely filed a motion to reconsider the dismissal and imposition of sanctions. The trial court denied the motion to reconsider and modified the sanctions against the plaintiff and its attorneys to $1,500. The plaintiff’s timely appeal ensued.

This appeal presents two issues: (1) whether the plaintiff’s refiling of its complaint was barred by the trial court’s adjudication of the plaintiff’s earlier complaint; and (2) whether the trial court’s imposition of sanctions against the plaintiff and its attorneys pursuant to section 2 — 611 was an abuse of discretion.

Addressing the plaintiff’s first contention, we note that although the plaintiff’s brief contains correct statements of the law with regard to dismissals for want of prosecution and voluntary dismissals, these principles have no applicability to the instant facts. As a general proposition, a dismissal for want of prosecution is not an adjudication on the merits and is to be granted without prejudice, thus preserving a plaintiff’s absolute right to refile his action within statutory limitations. (See Flores v. Dugan (1982), 91 Ill. 2d 108, 112-13; Fanaro v. First National Bank (1987), 160 Ill. App. 3d 1030, 1035; O’Reilly v. Gerber (1981), 95 Ill. App. 3d 947, 950.) Similarly, a plaintiff may voluntarily dismiss his case without prejudice “at any time before trial or hearing begins” (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1009), thus retaining the right to refile the action. See Kahle v. John Deere Co. (1984) , 104 Ill. 2d 302, 305-06; Davis v. International Harvester Co. (1985) , 139 Ill. App. 3d 264, 266-67.

In Flores, the parties appeared for trial, and the plaintiffs sought a continuance because a medical witness was unavailable. The trial judge refused to grant a continuance and gave the plaintiffs a choice of immediate trial, voluntary dismissal, or dismissal for want of prosecution. The plaintiffs chose to be dismissed for want of prosecution and proceeded with an appeal. The supreme court stated that a dismissal for want of prosecution without prejudice is not a final and appealable order as the plaintiff has an absolute right to refile his action within statutory limits. (Flores, 91 Ill. 2d at 112-13.) A final order, on the other hand, is res judicata and prevents the plaintiff from relitigating the same issues in a later lawsuit. 91 Ill. 2d at 113-14.

In O’Reilly, the plaintiff moved for voluntary dismissal but specifically requested that the dismissal be granted without costs. The trial court denied the motion and granted the defendant’s motion to dismiss with prejudice. On review, the appellate court held that the denial of the plaintiff’s motion was proper as the statute allowing voluntary dismissal requires the plaintiff to tender costs (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1009), and the trial court’s dismissal pursuant to the defendant’s motion was also proper as the court has the inherent power to dismiss cases for want of prosecution. (O’Reilly, 95 Ill. App. 3d at 949-50.) However, the appellate court found no authority for the trial court to dismiss the case for want of prosecution with prejudice as such a dismissal is not an adjudication on the merits, and a dismissal with prejudice “denotes an adjudication on the merits and is res judicata.” 95 Ill. App. 3d at 950.

Relying on Flores and O’Reilly, the plaintiff contends that the trial court’s order entered in case No. 81 — L—0284 on May 11, 1987, was a dismissal for want of prosecution without prejudice, thus guaranteeing the plaintiff’s absolute right to refile its action within one year. The record does not support this contention. When case No. 81— L — 0284 came up for trial on May 11, 1987, the plaintiff refused to proceed, claiming that it could not try the case in the absence of a witness it considered indispensable. Unlike the trial court in Flores, the trial court in case No. 81 — L—0284 did not offer the instant plaintiff any alternatives to proceeding to trial on the merits. The plaintiff does not argue, however, that the trial court was required to offer it the menu of choices available in Flores. Furthermore, the instant plaintiff failed to request a voluntary dismissal or a continuance, choosing instead to simply resist proceeding to trial. In its appellate brief, the plaintiff states, “[h]ad the Plaintiff pursued an appeal of that order [in No. 81 — L—0284] and not re-filed this case within the one (1) year statutory period, Plaintiff would have been forever barred from bringing this case to the merits. *** The substance of the order being a dismissal for want of prosecution, the Plaintiff had no alternative but to re-file the Complaint within the statutory period.” These assertions are contradicted by the facts. The plaintiff did appeal the trial court’s order in No. 81 — L—0284, thus treating the order as a final and appeal-able judgment. Further, our review of the May 11, 1987, proceedings clearly reveals that the trial court adjudicated the matter on the merits and issued an order in favor of the defendant. Thus, the teachings of Flores and O’Reilly are not relevant.

In view of the plaintiff’s failure to request a voluntary dismissal pursuant to section 2 — 1009 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2 — 1009), we disregard the remainder of its argument which is based upon cases in which this section plays a pivotal role. (See Kahle, 104 Ill. 2d 302; Davis, 139 Ill. App. 3d 264.) We determine that the trial court’s order in case No. 81 — L—0284 was an adjudication on the merits and, as such, is res judicata and prevents the plaintiff from relitigating the same issues in case No. 88 — L—0132, from which this appeal ensued. Accordingly, we affirm the trial court’s denial of the plaintiff’s motion to reconsider in case No. 88 — L—0132.

With regard to the sanctions assessed against the plaintiff and its attorneys pursuant to section 2 — 611 of the Code, we note that the initial burden of proving an entitlement to such sanctions is on the movant who seeks them. (Geneva Hospital Supply, Inc. v. Sanberg (1988), 172 Ill. App. 3d 960, 966.) A trial court’s decision to grant a motion for sanctions pursuant to., this section will not be overturned absent a showing of abuse of discretion. (Geneva Hospital, 172 Ill. App. 3d at 966.) The plaintiff urges us to reverse the trial court’s sanctions order, relying upon its legal arguments in support of the claimed right to refile its complaint to demonstrate its good faith. Inasmuch as we have already determined that the plaintiff’s reliance on the cited case law is misplaced and the principles set forth therein are inapplicable to the facts at bar, we are unpersuaded that the plaintiff’s refiling of its complaint was made in good faith. Furthermore, the plaintiff’s appeal in the prior case is evidence of bad faith. If the plaintiff truly believed the dismissal was for want of prosecution there would have been no need to appeal a nonfinal, nonappealable order. The plaintiff’s actions in this case, rather than its words, indicate bad faith in refiling a suit that had previously been disposed in favor of defendant on the merits. Thus, we determine that the trial court’s imposition of sanctions was not an abuse of discretion.

The judgment of the circuit court of McHenry County is affirmed.

Affirmed.

DUNN and LINDBERG, JJ., concur.


text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIE COLLINS, JR., Defendant-Appellant.
    Second District
    No. 2 — 87—0811
    Opinion filed May 4, 1989.

      G. Joseph Weller, Theodore A. Gottfried, and Robert E. Davison, all of State Appellate Defender’s Office, of Springfield, for appellant.
    Thomas F. Baker, State’s Attorney, of Woodstock (William L. Browers and Colleen M. Griffin, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE McLAREN

delivered the opinion of the court:

Defendant, Willie Collins, Jr., appeals from a conviction of murder (Ill. Rev. Stat. 1987, ch. 38, par. 9 — 1). Collins argues that the trial court erred in denying his motions to quash his arrest and suppress certain evidence. We affirm.

Cornelius Murphy was stabbed to death on the evening of March 23, 1987. Collins was known to be Murphy’s friend. On March 24, 1987, Collins received a phone call from a police officer. The officer asked Collins to come down to the police station and answer some questions. Collins arrived at the station and spoke with the police in the lobby. Collins was not informed of his Miranda rights. Collins made an exculpatory statement and left the station.

The next day, March 25, Collins was again contacted by the police. Police detectives went to defendant’s home at approximately 11 a.m. Collins’ roommate answered the door and informed the officers that defendant was sleeping. She went upstairs and woke the defendant. The officers asked Collins if he would come to the police station to answer some questions and be fingerprinted. Collins agreed to accompany the officers to the station. Collins rode with the officers in a police car. Collins was never frisked or handcuffed by the officers.

Collins arrived at the station at approximately 11:15 a.m. Collins agreed to be fingerprinted and photographed and was then escorted to an interview room. Collins was advised of his Miranda rights at approximately 11:40 a.m. and orally waived them. Collins repeated the exculpatory statement he had given the previous day, stating he was not at the victim’s home on March 23.

At approximately 1:15 p.m., the detectives stepped out of the interview room to speak with another officer. The detectives were informed that defendant’s fingerprint matched one found at the scene of the crime. The detectives informed Collins of this fact. Collins then admitted that he had been at the victim’s home and stated that Ben Glover stabbed the victim. Defendant’s first written statement was prepared, and Collins signed it at approximately 5:30 p.m. At 6 p.m., the officers provided defendant with some pizza and soft drinks.

At approximately 6 p.m., the two detectives met with other officers who had interviewed other witnesses, including Ben Glover. The detectives were informed that Ben Glover stated that Collins stabbed the victim. Collins was again advised of his rights, and he signed a waiver form. The officers then informed Collins that Glover had indicated that it was Collins who stabbed the victim. Collins then admitted that he did in fact stab the victim. A second statement was prepared and Collins signed it at approximately 8:15 p.m. On several occasions throughout the questioning, Collins left the interview room, unaccompanied by police, to use the rest room down the hall.

The case proceeded to trial as a stipulated bench trial. Defendant made motions to quash the arrest and to suppress any evidence obtained pursuant to this arrest. These motions were denied. The court found that the defendant was not under arrest until after his first written statement and before his second and, therefore, the evidence was properly obtained and admitted. Defendant was convicted of murder and sentenced to 20 years’ imprisonment.

Defendant contends on appeal that he was subjected to an illegal arrest. Specifically, defendant argues that he was arrested without a warrant and in the absence of probable cause. Therefore, any evidence derived thereafter is tainted and should have been suppressed. Defendant’s arguments on appeal regarding the motions to suppress are premised on the fact that an illegal arrest took place. Therefore, the issue on appeal is focused on the trial court’s findings regarding defendant’s arrest and surrounding circumstances.

Defendant alleges that he was subjected to a custodial detention that was indistinguishable from a traditional arrest. Defendant also argues that this arrest did not take place after his first statement but occurred sometime prior to the statement in the absence of probable cause. Defendant does not state specifically when he believes the arrest took place.

A trial court’s ruling on a motion to quash an arrest and suppress evidence will not be overturned unless it is manifestly erroneous. (People v. Stoica (1987), 163 Ill. App. 3d 660, 668.) An arrest occurs when a person is actually restrained or submits to police custody. (People v. Scarpelli (1980), 82 Ill. App. 3d 689, 694, citing People v. Ruffolo (1978), 64 Ill. App. 3d 151, 156; see also Ill. Rev. Stat. 1987, ch. 38, par. 107 — 5.) An arrest is a seizure, and a seizure occurs within the meaning of the fourth amendment only when a reasonable person, innocent of any crime and in view of all the circumstances surrounding the incident, would believe that he was under arrest or not free to leave. (People v. Longoria (1983), 117 Ill. App. 3d 241, 248-49, citing United States v. Mendenhall (1980), 446 U.S. 544, 554, 64 L. Ed. 2d 497, 509, 100 S. Ct. 1870, 1877.) In the absence of a threatening presence of officers, display of a weapon, a physical touching, or use of language or tone of voice which indicates compliance with the officer’s request might be compelled, a seizure has not taken place. (People v. Sanders (1981), 103 Ill. App. 3d 700, 709.) The officer’s intent and the understanding of the arrestee are two essential elements in the definition of arrest. (People v. Wipfler (1977), 68 Ill. 2d 158, 165.) The accepted test of understanding is not what the arrestee thought, but “ ‘what a reasonable man, innocent of any crime, would have thought had he been in the defendant’s shoes.’ ” Wipfler, 68 Ill. 2d at 166, quoting Hicks v. United States (D.C. Cir. 1967), 382 F.2d 158, 161.

In the case at bar, defendant was asked to accompany the officers to the police station. The officers testified that they would not have forced defendant to accompany them had he refused. The officers allowed defendant to wash and have some juice before leaving his home. Defendant was not handcuffed at any time. There was no display of weapons or physical contact of any kind. The record does not indicate that the language used by the officers or their tone of voice was suggestive of an arrest. The officers’ testimony indicates that their intention in questioning defendant was not to gain admissions on which to predicate probable cause and arrest the defendant. Their intent was to question a friend of the deceased to see if he might be able to provide some leads.

Furthermore, a reasonable man, innocent of any crime, would not have thought he was under arrest or not free to leave. Defendant was able to leave the interview room on several occasions to use the rest room. He was never escorted by an officer. As previously stated, defendant was not handcuffed at any time. Defendant argues that since he was fingerprinted, photographed and read his Miranda rights, all indicia of arrest, a reasonable person would not have felt free to leave. However, when looking at the totality of the circumstances, we conclude that the trial court was not manifestly erroneous in determining that defendant was not arrested until after his first statement.

Defendant contends that our supreme court’s decision in People v. Townes (1982), 91 Ill. 2d 32, is dispositive of this case. In Townes, the defendant was taken to the police station for questioning. The defendant’s name was on a list of suspects. He was interrogated repeatedly over a 12-hour period. He was read his Miranda rights prior to each interview. He was asked to accompany the officers to a hospital to get head and pubic hair samples and fingernail scrapings. The court, citing Dunaway v. New York (1979), 442 U.S. 200, 212, 60 L. Ed. 2d 824, 836, 99 S. Ct. 2248, 2256, stated:

“Further, as in Dunaway, the seizure of defendant without probable cause had an improper ‘ “quality of purposefulness,” ’ in that it appears to have been an ‘ “expedition for evidence.” ’ (442 U.S. 200, 218, 60 L. Ed. 2d 824, 839, 99 S. Ct. 2248, 2259, quoting Brown v. Illinois (1975), 422 U.S. 590, 605, 45 L. Ed. 2d 416, 428, 95 S. Ct. 2254, 2262.) The circumstances indicate that the officers interrogated the defendant in the hope of obtaining sufficient information upon which to predicate the probable cause necessary for an arrest.” Townes, 91 Ill. 2d at 37-38.

In the case at bar, unlike in Townes, the officers did not suspect defendant committed the crime under investigation. This is not a case where officers are fishing for evidence that would be sufficient to establish probable cause to arrest the defendant. The officers were simply questioning a friend of the deceased to determine if he could shed some light on the investigation. There is no evidence that the officers suspected defendant until he was named as the murderer by a third party. This is the time that the trial court concluded an arrest had occurred. We find the facts in Townes to be distinguishable.

Defendant also contends that the fact that he was questioned informally on March 24 has a bearing on whether he was under arrest on March 25. We disagree. The intentions of the officers did not change from the 24th to the 25th. There is no evidence that defendant was in any way a suspect when the officers arrived at his home on March 25. The fact that prior informal questioning took place may have an impact on whether a reasonable person thought he was free to leave. However, in this case, we feel the totality of the circumstances still establishes that a reasonable man would not have thought he was not free to leave.

Defendant’s next argument is that he was subjected to an illegal custodial interrogation that amounted to an arrest. As in determining whether an illegal arrest occurred, determining whether an illegal custodial interrogation took place is based upon whether a reasonable person, innocent of any crime, would believe he was not free to leave. (See People v. Finklea (1983), 119 Ill. App. 3d 448, 452.) The factors to be considered are the same in both analyses. Therefore, we need not discuss all the cases cited by defendant. The factors set forth by defendant have been reviewed in our analysis as to whether an arrest occurred. This analysis is equally applicable to whether defendant was subjected to an illegal custodial detention or an unlawful arrest.

We find that the trial court was not manifestly erroneous in determining that defendant was not arrested until after his first statement.

For the above reasons, we affirm the judgment of the circuit court of Winnebago County.

Affirmed.

DUNN and LINDBERG, JJ., concur.


author: JUSTICE NASH

text:
    THE CITY OF DE KALB, Plaintiff-Appellant, v. INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS, LOCAL 1236, Defendant-Appellee.
    Second District
    No. 2—88—0743
    Opinion filed May 5, 1989.

      Richard L. Turner, Jr., of Sycamore, for appellant.
    James R. Donnelly, of O’Malley & Donnelly, of De Kalb and Long, Rabin & Young, Ltd., of Springfield (Wayne M. Klocke, of counsel), for appellee.
   JUSTICE NASH

delivered the opinion of the court:

Plaintiff, the City of De Kalb (De Kalb), a home rule unit, appeals from an order dismissing its amended complaint in which De Kalb sought to vacate and set aside an arbitrator’s award made to certain city firemen who were members of defendant, the International Association of Fire Fighters, Local 1236 (the Union). De Kalb contends that its complaint was erroneously dismissed because the arbitrator’s award violated public policy as set forth in the Illinois Pension Code (Ill. Rev. Stat. 1985, ch. 108½, par. 1 — 101 et seq.) and should be vacated.

Plaintiff and defendant entered into a collective bargaining agreement in July 1980, which included the following provisions:

“ARTICLE XV. DISABILITY PAY
Section A. A member of the Fire Department who is incapacitated from injury in the course of his employment with the City shall be entitled to a maximum of six (6) calendar months leave on account of the disability with full pay if granted by the Police and Fire Commission according to Chapter 24, Section 10 — 2.1—23 of the Illinois Revised Statutes. This six (6) month period may be extended by the City Manager with the approval of the City Council.
Section B. A member who is receiving benefits under Workmen’s Compensation Act, Workmen’s Occupational Disease Act, or Illinois Pension Code will be paid the difference between base pay and the aforementioned benefits for the applicable period of his disability.”

Subsequent collective bargaining agreements entered between these parties contained the same provision. In 1982, fire fighter Charles Siebrasse was injured and commenced receiving 65% of his regular base pay as a fire fighter’s disability pension awarded by the Board of Police and Fire Commission of the the City of De Kalb pursuant to section 4 — 110 of the Illinois Pension Code (Ill. Rev. Stat. 1985, ch. 108½, par. 4 — 110). An additional 35% of his base salary was also paid by De Kalb pursuant to the disability provision of article XV of the collective bargaining agreement. In February 1986, De Kalb discontinued paying the 35% differential pay provided for in the agreement after being advised by a representative of the State of Illinois Department of Insurance that the additional disability payments were contrary to the Illinois Pension Code. Fire fighter John Hiland became disabled on June 27, 1985, as a result of a heart attack and was awarded a disability pension. Hiland was denied differential pay under the agreement because he was receiving 65% of his pay from his disability pension pursuant to section 4 — 110.1 of the Pension Code.

In January 1987, De Kalb and the Union entered into a new collective bargaining agreement in which the disability period contained in article XV, section A, of the disability pay provisions was increased from 6 to 12 months and the language in article XV, section B, providing for payment of differential pay above any disability pension was deleted. A separate agreement entered into between the parties provided that if an arbitrator or court ruled that article XV, section B, of the collective bargaining agreement was legal, then that provision would control instead of the revised section B.

The Union filed a grievance on behalf of these firemen, pursuant to the terms of the collective bargaining agreement, after De Kalb declined to pay them the difference between their regular base pay and their disability pensions. De Kalb denied the grievance and it was referred to an arbitrator. After a hearing held in May 1987, the arbitrator sustained the grievance and ordered the City to pay Siebrasse and Hiland the differential pay as provided for in the collective bargaining agreement at the time of their injuries. The current agreement also provided that the decisions of an arbitrator on matters submitted to arbitration were final and binding.

The City of De Kalb then filed a complaint in the circuit court to vacate the arbitration award alleging that “[t]his action is brought in the nature of a request for a review of a certain arbitration award *** pursuant to the provisions of Section 8 of the Illinois Public Labor Relations Act, III. Rev. Stats. 1985, Ch. 48, par. 1608; and Section 112 of the Illinois Uniform Arbitration Act, Ill. Rev. Stats. 1985, Ch. 10, Par. 112.” (Emphasis in original.) An amendment to the complaint further alleged that the arbitrator’s award was in direct contravention of Illinois public policy contained in section 4 — 142 of the Pension Code (Ill. Rev. Stat. 1985, ch. 108½, par. 4 — 142), which prohibited a home rule municipality from providing an annuity benefit to a fire fighter other than as provided in the Illinois Pension Code. The Union filed a combined motion to dismiss pursuant to sections 2 — 615 and 2 — 619 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, pars. 2 — 615, 2 — 619) in which it alleged that the trial court did not have subject-matter jurisdiction to review the arbitrator’s award; that De Kalb’s complaint did not set forth any basis which would render the arbitrator’s decision unlawful; that De Kalb waived any objection to the arbitrator’s authority to decide the legality of the disputed compensation when it agreed to submit that issue to the arbitrator for a final and binding determination; and that De Kalb’s complaint failed to set forth facts to establish that the arbitrator was without or exceeded his powers, or that the award was the result of partiality, or was procured by fraud, collusion or some other unlawful means, as is required by section 12 of the Uniform Arbitration Act (Ill. Rev. Stat. 1985, ch. 10, par. 112).

The trial court granted the Union’s motion to dismiss, stating only that doing so “will permit the Appellate Court to expeditiously consider the ‘public policy’ argument of Plaintiff.” The judge did not specify on what legal or factual basis he granted the Union’s motion to dismiss, whether the dismissal was pursuant to section 2 — 615 or section 2 — 619 of the Code of Civil Procedure or give any indication he had made any effort to consider the merits of the issues presented to the circuit court for its determination.

De Kalb appeals, and we note it has not complied with Supreme Court Rule 341(e)(4)(ii), which requires that an appellant’s brief contain a statement of jurisdiction. (122 Ill. 2d R. 341(e)(4)(ii).) Failure to do so in the future will be at the risk of dismissal of an appeal.

De Kalb contends that the circuit court had proper subject-matter jurisdiction; that no other affirmative matter exists avoiding the legal effect of or defeating its claim under section 2 — 619; and that its complaint set forth sufficient facts and allegations to withstand a motion to dismiss under section 2 — 615 for failure to state a cause of action.

The Union asserts that the arbitrator’s award is final, that the collective bargaining agreement between the parties prevails over any conflicting statute, and that the disputed payments directed to be made by article XV of the agreement are continuing compensation payments, not annuity benefits which are prohibited under section 4— 142 of the Pension Code.

While De Kalb’s complaint stated that review of the arbitrator’s award was sought in the circuit court under section 8 of the Illinois Public Labor Relations Act (Ill. Rev Stat. 1985, ch. 48, par. 1608) (incorporates provisions of the Uniform Arbitration Act) and section 12 of the Uniform Arbitration Act (Ill. Rev. Stat. 1985, ch. 10, par. 112), an amendment to the complaint also alleged that the arbitrator’s award was in direct contravention of public policy considerations contained in section 4 — 142 of the Pension Code (Ill. Rev. Stat. 1985, ch. 108½, par. 4 — 142). Section 12 of the Uniform Arbitration Act provides that the provisions of that act for vacating, modifying, or correcting an arbitration award do not apply to awards “entered as a result of an arbitration agreement which is a part of or pursuant to a collective bargaining agreement; and the grounds for vacating, modifying, or correcting such an award shall be those which existed prior to the enactment of this Act.” (Ill. Rev. Stat. 1985, ch. 10, par. 112(e).) A court must thus look to the common-law ground which existed prior to the enactment of the Uniform Arbitration Act when considering vacating an arbitration award. Board of Education v. Chicago Teachers Union, Local No. 1 (1981), 86 Ill. 2d 469, 474, 427 N.E.2d 1199.

It is well settled that an arbitration award may not stand if it contravenes paramount considerations of public policy. (American Federation of State, County & Municipal Employees, AFL-CIO v. Illinois Department of Mental Health (1988), 124 Ill. 2d 246, 260, 529 N.E.2d 534.) A court’s refusal to enforce an arbitrator’s award on public policy ground is an application of the general common-law principle that a court may decline to enforce contracts that violate law or public policy, a doctrine which is rooted in the notion that a court will not aid one that bases a cause of action upon an immoral or illegal act. (United Paperworkers International Union, AFL-CIO v. Misco, Inc. (1987), 484 U.S. 29, 42, 98 L. Ed. 2d 286, 301, 108 S. Ct. 364, 373.) As it seems clear that the circuit court could properly entertain De Kalb’s complaint that the arbitrator’s award should be vacated on public policy ground, in the interest of judicial economy we will address the arguments made in the trial court and in the parties’ briefs on appeal whether the award in this case violates public policy of Illinois as set forth in the Pension Code.

Public policy has no precise definition, and there is no absolute rule by which to test a contract to determine whether or not it is contrary to public policy. (Board of Trustees of Community College District No. 508 v. Cook County College Teachers Union, Local 1600, AFT, AFLIGIO (1979), 74 Ill. 2d 412, 425, 386 N.E.2d 47.) The public policy of the State can be found in its constitution and statutes and, when these are silent, in its judicial decisions. (American Federation of State, County & Municipal Employees, AFL-CIO v. Department of Mental Health (1988), 124 Ill. 2d 246, 260, 529 N.E.2d 534.) We conclude that the trial court erred in dismissing De Kalb’s amended complaint to vacate the arbitrator’s award as that award contravenes the public policy of Illinois as set forth in section 4 — 142 of the Pension Code (Ill. Rev. Stat. 1985, ch. 108½, par. 4 — 142), which provides:

“§4 — 142. Applicability of home rule powers. A home rule unit, as defined in Article VII of the 1970 Illinois Constitution or any amendment thereto, shall have no power to change, alter, or amend in any way the provisions of this Article. A home rule unit which is a municipality, as defined in Section 4 — 103, shall not provide for, singly or as a part of any plan or program, by any means whatsoever, any type of retirement or annuity benefit to a firefighter other than through establishment of a fund as provided in this Article as now or hereafter amended.” (Ill. Rev. Stat. 1985, eh. 108½, par. 4 — 142.)

Article 4 of the Pension Code specifically addresses a fire fighter’s eligibility for a disability pension and the amount thereof and was enacted to insure that Illinois firemen would receive uniform pension benefits. (Board of Trustees v. Mathias (1982), 109 Ill. App. 3d 894, 900, 441 N.E.2d 362.) In considering section 3 — 150 of the Pension Code, which applies to police officers but is identical in all other respects to section 4 — 142 of the Pension Code, the appellate court has held “that the prohibited changes, alterations, or amendments referred to in the first clause of section 3 — 150 are the provision of any type of pension or annuity other than as established in article 3 of the Illinois Municipal Code [sic].” Sanders v. City of Springfield (1985), 130 Ill. App. 3d 490, 494, 474 N.E.2d 438.

To “alter” something includes a change which increases or diminishes it, and an “amendment” includes a change or modification for the better. (Black’s Law Dictionary 71, 74 (5th ed. 1979).) Clearly, the additional payment by De Kalb of the difference between a fire fighter’s regular pay and his disability pension would be a supplemental pension benefit, rather than “continuing compensation” as the Union urges (cf. Paterson v. City of Granite City (1979), 78 Ill. App. 3d 821, 824, 397 N.E.2d 237 (the difference between a retired fire fighter’s compensation and disability pension paid pursuant to the city ordinance was an additional pension or pension supplement, contrary to the fire fighter’s argument that these payments were sick pay)), and is expressly prohibited by section 4 — 142 of the Pension Code. The Union argues that Paterson does not apply because the court there was considering the pre-home-rule powers of a municipality; however, this distinction would not act to change the definition of the benefit conveyed or the prohibition of section 4 — 142.

The Union also argues that if section 4 — 142 of the Pension Code were interpreted to prohibit “differential pay,” an irresolvable conflict would arise between that section and section 91 of “An Act to provide for the continuation of compensation for *** firemen who suffer disabling injury in the line of duty,” which provides:

“Whenever any *** fireman *** who is employed on a full time basis by *** any unit of local government *** suffers any injury in the line of duty which causes him to be unable to perform his duties, he shall continue to be paid by the employing public entity on the same basis as he was paid before the injury, with no deduction from his sick leave credits, compensatory time for overtime accumulations or vacation, or service credits in a public employee pension fund during the time he is unable to perform his duties due to the result of the injury but not longer than one year in relation to the same injury ***.
* * *
*** Any disabled person receiving compensation under the provisions of this Act shall not be entitled to any benefits for which he would qualify because of his disability under the provisions of the Illinois Pension Code ***.
This Act does not apply to any home rule unit.” (Ill. Rev. Stat. 1985, ch. 70, par. 91.)

The Union reasons that if “the continuing compensation under Article XV(B), is a ‘retirement or annuity benefit,’ then Chapter 108½, par. 4 — 142 would be in irresolvable conflict with Chapter 70, par. 91 because in the absence of the exercise of home rule powers, paragraph 91 would require payment of such compensation in the first year of disability while paragraph 4 — 142 would prohibit any such payment.” The Union acknowledges, however, that during the period in question in this case, section 91 did not apply to home rule units, as is the City of De Kalb, and we will not consider it further. (This provision was subsequently amended to apply to home rule units with a population of 1 million or under. (Pub. Act 85 — 1393, eff. Sept. 2, 1988).)

The Union also argues that section 15 of the Illinois Public Labor Relations Act (Labor Act) supersedes any application of other statutory provisions inconsistent with the Labor Act or a collective bargaining agreement entered into by a public sector employer and a union. The Union argues that, pursuant to the grievance procedure contained in section 8 of the Labor Act (Ill. Rev. Stat. 1985, ch. 48, par. 1608), the parties’ intent is to be determined by an arbitrator and then, pursuant to section 15(a) of the Labor Act (Ill. Rev. Stat. 1985, ch. 48, par. 1615(a)), the terms of the collective bargaining agreement will control over any conflicting law adopted by the legislature. Sections 15(a) and (b) of the Labor Act provide:

“§15. Act Takes Precedence, (a) In case of any conflict between the provisions of this Act and any other law, executive order or administrative regulation relating to wages, hours and conditions of employment and employment relations, the provisions of this Act or any collective bargaining agreement negotiated thereunder shall prevail and control. * * *
(b) *** [A]ny collective bargaining contract between a public employer and a labor organization executed pursuant to this Act shall supersede any contrary statutes, charters, ordinances, rules or regulations relating to wages, hours and conditions of employment and employment relations adopted by the public employer or its agents. Any collective bargaining agreement entered into prior to the effective date of this Act [July 1, 1984] shall remain in full force during its duration.” (Ill. Rev. Stat. 1985, ch. 48, pars. 1615(a), (b).)

The arbitrator apparently relied on section 15(b) of the Labor Act in making the award as his opinion states that “[t]he Arbitrator observes that the Act is explicit on its face. If there is a conflict between the law and a collective bargaining agreement relative to the matters listed in the Act, then the collective bargaining agreement takes precedence.”

We do not consider this argument as the definition of a public employee under the Labor Act excluded non-State fire fighters employed by fire departments and fire protection districts at the time fire fighters Siebrasse and Hiland suffered their disabling injuries. (Ill. Rev. Stat., 1984 Supp., ch. 48, par. 1603(m).) While the Labor Act was subsequently amended to include non-State fire fighters, that amendment was not effective until January 1, 1986. (Ill. Rev. Stat. 1985, ch. 48, par. 1603(n).) Unless the amendatory act expressly declares otherwise, an amendment is generally construed as prospective in its operation (Maiter v. Chicago Board of Education (1980), 82 Ill. 2d 373, 390, 415 N.E.2d 1034), and the law to be applied is that which existed on the date of the injury. (Kozmel v. Industrial Comm’n (1982), 88 Ill. 2d 512, 513, 431 N.E.2d 373 (workers’ compensation claim); Sellards v. Board of Trustees of Rolling Meadows Firemen’s Pension Fund (1985), 133 Ill. App. 3d 415, 417, 478 N.E.2d 1123 (disability pension benefits).) As firemen Siebrasse and Hiland were both disabled prior to January 1, 1986, the Labor Act had no application to them in this case.

In oral argument before this court the Union conceded that sections 15(a) and (b) of the Labor Act did not apply when the causes of action in this case arose, but argued that the collective bargaining agreement would nevertheless supersede any inconsistent law because the Labor Act provides, “[n]othing in this Act shall interfere with or negate the current representation rights or patterns and practices of labor organizations which have historically represented public employees for the purpose of collective bargaining, including but not limited to the negotiations of wages, hours and working conditions.” (Ill. Rev. Stat. 1985, ch. 48, par. 1609(c).) The Union, however, has not offered any reasoned argument or supporting case law which would permit this court to ignore the legislature’s clear exclusion of non-State fire fighters from the Labor Act prior to January 1,1986.

While we need not here decide whether, as the Union urges, a collective bargaining agreement between a public employer and a labor organization supersedes any contrary law, our supreme court considered a similar argument in City of Decatur v. American Federation of State, County, & Municipal Employees, Local 268 (1988), 122 Ill. 2d 353, 522 N.E.2d 1219. In that case, the court construed section 7 of the Labor Act which, in relevant part, provides:

“The duty ‘to bargain collectively’ shall also include an obligation to negotiate over any matter with respect to wages, hours and other conditions of employment, not specifically provided for in any other law or not specifically in violation of the provisions of any law. If any other law pertains, in part, to a matter affecting the wages, hours and other conditions of employment, such other law shall not be construed as limiting the duty ‘to bargain collectively’ and to enter into collective bargaining agreements containing clauses which either supplement, implement, or relate to the effect of such provisions in other laws.” (Ill. Rev. Stat., 1984 Supp., ch. 48, par. 1607.)

The supreme court noted that “[t]he interpretation adopted by the State Board in this case suggests that the duty to bargain set out in section 7 invariably overrides any contrary statutory command. That reading *** effectively eliminates any potential conflict between another statute and the bargaining duty prescribed by the Act; under that interpretation, no statute would ever limit the duty to bargain. We do not agree that section 7 may be read so broadly.” (City of Decatur, 122 Ill. 2d at 361-62.) The court also noted that section 7 of the Labor Act indicates that a bargaining duty may be limited by a law which provides for or prohibits a matter that would ordinarily be a mandatory subject of bargaining. City of Decatur, 122 Ill. 2d at 361-62.

The Union also argues that if De Kalb wished to preserve the issue of legality of the collective bargaining agreement for judicial review, it should not have submitted the issue to the arbitrator, citing American Federation of State, County & Municipal Employees, AFL-CIO v. Department of Mental Health (1988), 124 Ill. 2d 246, 529 N.E.2d 534. That case does not stand for the proposition that De Kalb waived its right to challenge in court that the disability pay provisions of article XV, section B, of the collective bargaining agreement violate public policy by submitting that issue to the arbitrator. Cf. Board of Trustees of Community College District No. 508 v. Cook County College Teachers Union, Local 1600, AFT, AFL/CIO (1979), 74 Ill. 2d 412, 424, 386 N.E.2d 47 (even when an arbitrator has considered public policy issues in construing a collective bargaining agreement, a court should not abdicate to the arbitrator the responsibility to protect the public interest at stake).

Accordingly, the order of the circuit court dismissing the amended complaint to vacate the arbitrator’s award is reversed, and the cause is remanded for further proceedings consistent with this opinion.

Reversed and remanded.

UNVERZAGT, P.J., and WOODWARD, J., concur.


author: JUSTICE DUNN

text:
      In re MARRIAGE OF JANICE KUTINAC, Petitioner-Appellee, and THOMAS KUTINAC, Respondent-Appellant.
    Second District
    No. 2 — 88—0955
    Opinion filed May 5, 1989.

      Robert J. Long and Marcia A. Korducki, both of Law Offices of Robert J. Long, Ltd., of Antioch, for appellant.

      No brief filed for appellee.
   JUSTICE DUNN

delivered the opinion of the court:

Thomas Kutinac appeals from an order of the circuit court of Lake County granting the petition of his former wife, Janice, to remove their two minor children, Christopher and April, to Florida. On appeal, Thomas raises the following issues: (1) that Janice failed to set forth a prima facie case that removal was in the best interests of the children; (2) that the trial court’s decision to grant the petition for removal was against the manifest weight of the evidence; and (3) that the trial court erred by refusing to strike two letters attached to a conciliation services report. We reverse.

Janice has not filed a brief with this court. The record is brief, however, and the issues raised can easily be decided without the aid of the appellee’s brief. We shall therefore fully review the merits of this appeal. (First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 133, 345 N.E.2d 493, 495.) Furthermore, the interests of justice would dictate such a course since the interests of the children are at stake.

The circuit court entered a judgment dissolving the marriage of the parties on December 19, 1980. Under the terms of a marital settlement agreement incorporated into the judgment, Janice received sole custody of the children. On August 11, 1987, the trial court entered an agreed order modifying some of the terms of the judgment of dissolution. The agreed order stated that Janice and Thomas would have joint custody of the children, with Janice having physical custody. On August 31, 1987, Janice filed a petition for leave to remove the children to Florida. The parties attempted to resolve the matter through mediation but their efforts failed. The trial court held a hearing on the petition on August 31, 1988. At the time, April was 9 years old and Christopher was 10.

Ellen Wcislo testified that she was a program supervisor for the Lake County special education district. According to Wcislo, Christopher was in the special education program because of a learning disability and had been enrolled in the program since he was six or seven. Parents of children in the program were expected to come in for at least three meetings per year in order to review the progress of their child. Janice came in for more than three meetings per year while Thomas had only attended one meeting.

Dorothy Doerle testified that she was a friend of Janice and that Janice had epilepsy. According to Doerle, Janice did not own a car and did not have a driver’s license. Janice traveled by bicycle or bus and did not go out during winter if it was too cold.

Janice testified that she resided with her children in Grayslake. Between 1982 and 1987, Thomas, who resided in Ingleside, exercised his visitation rights about once every five weeks. After the joint custody order was entered, he only exercised his visitation rights once every 21k months. Thomas would also see the children briefly when he went to Janice’s home to drop off child support or insurance payments. According to Janice, Thomas seldom went with the children to activities such as soccer or religious education classes.

Janice wanted to move with the children to Clearwater, Florida. One of the reasons was that it would be easier to get around because of the climate. Her Illinois driver’s license had been taken away because she had been involved in three accidents. Janice did not wish to attempt to get a new license until she was positive her epileptic seizures were under control. Janice stated that she and the children did much of their traveling by bicycle, but it was very difficult to ride a bicycle during the winter months. She also traveled by bus sometimes, but had to travel over a mile to catch the bus. During winter, she had to get rides to the store from her sister and neighbors. If her children could travel to activities on their bicycles, they would do so, and Janice would often go with them. Otherwise, she would have to arrange rides for the children from neighbors or her sister. It would be easier to live in a warmer climate, according to Janice, because she could still ride her bicycle in the winter months. Janice also had been told by a Clearwater Chamber of Commerce representative that the town had excellent bus service.

Another reason for the move was to relieve stress. Janice had noticed that she tended to suffer seizures more often when she was aggravated or suffering from stress. She felt that moving to Florida would greatly resolve her transportation problems, causing her to suffer less stress. She stated that she was taking medication and had not had any seizures for the past 14 months.

Janice also testified that both of her children were hearing-impaired, with Christopher suffering a more serious impairment. She stated that Christopher frequently had ear infections, especially during the winter. Janice testified that he tended to suffer the infections when he went out in cold weather without having his ears covered. During the past winter, Christopher had suffered about two ear infections per month lasting approximately two to seven days apiece. Christopher’s ear problems were more serious in the winter than in the summer. He had an operation in May 1987 to have tubes inserted into his ears.

Janice stated that if she were permitted to move to Florida, she would do nothing to hinder Thomas’ visitation rights. She admitted on cross-examination that she had not investigated the availability of public transportation in nearby Illinois cities and counties. She also stated that she knew only three people in Clearwater, a friend named Bonnie Grosses and Grossos’ parents.

Thomas loved the children, according to Janice, but she did not understand why he was not willing to attend more activities with them. She stated that on some occasions when the children called Thomas to ask if they could spend the night with him, he told them he had more important things to do. Thomas did give the children presents on their birthdays and holidays. Janice testified that the children were generally excited about the proposed move, although Christopher did cry about it once after returning from his father’s home.

The trial court denied Thomas’ motion for a directed finding after Janice rested her case. Thomas testified that he saw the children almost every weekend during the past year. He also saw them often during the week. Thomas tried to help Janice and the children with transportation, although he could not always do so when he was assigned to work evening shifts. Thomas felt that he had a close relationship with the children. He stated that the children told him they did not wish to move because they would miss him and their friends in Grayslake.

Thomas testified that he had lived with Janice off and on for the past eight years. He stated that he lived with her and the children from November 1987 until February 1988 and lived with her off and on from October 1986 until March 1987. Thomas stated that he saw Janice have a seizure in late 1987 or early 1988. He also testified that he was on the phone with April about two weeks before the hearing and April told him that Janice was having a seizure. Janice testified on rebuttal that Thomas had not lived with her at any time during the past four years.

Irene Lee of Therapeutic Services for Human Development submitted a report to the court dated July 6, 1988, describing her efforts to mediate this matter. She also submitted an addendum to the report dated August 22, 1988. Neither Thomas nor Janice objected at the hearing to the consideration of the report or addendum by the trial court. At the end of the hearing, Thomas’ attorney did move, however, to have copies of two letters attached to the addendum stricken as hearsay.

The first letter was from Dr. Shaku Chhabria, Janice’s neurologist. The letter stated that, in view of the fact that her seizures were under control, the proposed move would not interfere with her ability to take care of her children or home. The second letter was from Dr. Alan Freint, an audiologist who treated Christopher and April. Dr. Freint’s letter stated that it would benefit both children greatly if they resided in a warmer climate since it would lessen the frequency of middle ear infections.

The trial judge stated that he would not strike the two letters since the report made reference to them. Referring to the attachments, the trial judge then stated, “whether I consider them as fact is another question, and I will only consider it as fact that which is presented to me from the witness stand.”

On September 2, 1988, the trial court issued an order granting the petition for removal. Under the order, the children would spend most of the summer with Thomas and one major holiday per year with him. Janice and Thomas were each required to pay half the necessary travel expenses.

Thomas contends that the trial court’s decision to grant the petition was against the manifest weight of the evidence. The party seeking removal has the burden of proving that removal is in the best interests of the children. (Ill. Rev. Stat. 1987, ch. 40, par. 609.) The mere desire of the custodial parent to move to another State is not sufficient to establish that the move is in the child’s best interests. (In re Marriage of Eckert (1988), 119 Ill. 2d 316, 325, 518 N.E.2d 1041, 1044.) Factors which should be considered by the trial court include the following: (1) the likelihood the proposed move will enhance the general quality of life for the children and the parent having physical custody; (2) the motives of the parent having physical custody in seeking to move; (3) the motives of the other parent in resisting removal; (4) the visitation rights of the parent without physical custody; and (5) whether a reasonable and realistic visitation schedule is possible if the move is approved. Eckert, 119 Ill. 2d at 326-27, 518 N.E.2d at 1045-46.

Additionally, our supreme court emphasized in Eckert that it is “in the best interests of a child to have a healthy and close relationship with both parents, as well as other family members.” (119 Ill. 2d at 327, 518 N.E.2d at 1045.) The court stated that the examination of a removal petition should be guided by the policy of the Illinois Marriage and Dissolution of Marriage Act in custody matters, which is to ensure the maximum involvement and cooperation of both parents in matters involving the physical, mental, moral, and emotional well-being of the children. 119 Ill. 2d at 328, 518 N.E.2d at 1046.

In Eckert, our supreme court rejected the holding of the appellate majority that a prima facie showing for removal is made when the custodial parent states a desire to move, establishes a sensible reason for the move, and makes a superficial showing that the move is consistent with the child’s best interests, stating that this standard improperly dilutes the burden of proof which the legislature has placed on the custodial parent seeking removal. (119 Ill. 2d at 326, 518 N.E.2d at 1045.) The petitioner in Eckert sought permission to remove a child to Yuma, Arizona, because a child from a previous marriage had asthma and because she had received an offer to teach in an accredited nursing program in Yuma. Petitioner’s teaching position with a nursing program in Belleville paid her a comparable salary, but the program was not accredited.

In holding that the circuit court correctly rejected the petition for removal, our supreme court noted that no evidence was presented on how the proposed move would affect the condition of the son suffering from asthma (119 Ill. 2d at 329, 518 N.E.2d at 1046) and that the evidence cast doubt on petitioner’s contention that the move was motivated in part by a desire to enhance her career (119 Ill. 2d at 328-29, 518 N.E.2d at 1046). In this context, our supreme court emphasized petitioner’s admission in her testimony that she was not looking for a new job at the time she received the Yuma offer and her failure to seek employment at an accredited program in the St. Louis area, stating that it was difficult to understand why it would be worthwhile to move from Belleville to Arizona to accept such a position but would not be worthwhile to move a much shorter distance from Belleville to the St. Louis area in order to do the same. 119 Ill. 2d at 329, 518 N.E.2d at 1046.

At the hearing on the petition for removal, Janice mentioned the following reasons in support of the move: (1) the availability of better public transportation in Florida; (2) potential health benefits to her as a result of reduced stress; and (3) potential health benefits to Christopher. With regard to the first reason, Janice admitted that she never checked available public transportation in nearby Illinois towns and counties. This casts considerable doubt upon her contention that the transportation needs of the family were a primary motivating factor for the move. The only evidence that the move would benefit Janice’s health is her testimony that the move would alleviate her transportation problems, causing a reduction in stress which would benefit her epileptic condition. This testimony is entirely speculative and was not supported by any other evidence, including expert medical testimony. It would appear equally reasonable to presume that the stress resulting from moving her two children a long distance to an unfamiliar area could produce stress that would exacerbate her epileptic condition.

Janice also argued in the trial court that the proposed move would benefit Christopher’s health. She testified that Christopher suffered ear infections more frequently in the winter than the summer. Dr. Freint’s letter, which was attached to the conciliation report, stated that the proposed move would greatly benefit the health of both children by reducing the frequency of middle ear infections. Thomas objected to any consideration of this letter by the trial court on the basis that it constituted hearsay evidence.

A letter is hearsay as to its contents and is not admissible unless it falls within one of the exceptions to the hearsay rule. (In re Marriage of Morrisroe (1987), 155 Ill. App. 3d 765, 772-73, 508 N.E.2d 464, 470.) Since Janice cited no such exceptions to the trial court and it appears none is applicable, we agree that the letter constituted inadmissible hearsay.

In Morrisroe, the petitioner sought a modification of child support. The trial court permitted petitioner to introduce several letters from doctors into evidence over respondent’s hearsay objection. The basis for the trial court’s ruling was that the court had great leeway because the welfare of a child was at stake. (Morrisroe, 155 Ill. App. 3d at 772, 508 N.E.2d at 470.) This court subsequently reversed the trial court’s ruling, determining that the letters constituted inadmissible hearsay. 155 Ill. App. 3d at 773, 508 N.E.2d at 470.

The rule against hearsay is a fundamental rule of evidence, not a technical one. (Eastman v. Department of Public Aid (1989), 178 Ill. App. 3d 993, 996, 534 N.E.2d 458, 460.) The rule exists primarily because of the importance and necessity of cross-examination. (Grand Liquor Co. v. Department of Revenue (1977), 67 Ill. 2d 195, 199, 367 N.E.2d 1238, 1240.) In cases such as the one at bar in which the interests of children are at stake, it is vital for the trial judge to have as complete a picture of the facts as possible in order to determine what course is in the best interests of the children. Relaxation of the rule against hearsay is therefore not appropriate in proceedings involving the interests of children.

In Eckert, as we have noted, the petitioner failed to present any evidence concerning the effect of the proposed move on the condition of the son suffering from asthma. (Eckert, 119 Ill. 2d at 329, 518 N.E.2d at 1046.) The only evidence presented by Janice concerning the effect of the proposed move on Christopher’s ear condition was Dr. Freint’s letter, which was inadmissible. While Janice stated sensible reasons for moving to Florida, she failed to introduce any evidence that the move would be in the best interests of the children. Under the Eckert holding, Janice failed to meet her burden of proof with regard to the petition for removal. The trial court abused its discretion in granting the petition.

Accordingly, the judgment of the circuit court of Lake County is reversed.

Reversed.

UNVERZAGT, P.J., and McLAREN, J., concur.


author: JUSTICE WOODWARD

text:
    AMERICAN FAMILY INSURANCE COMPANY et al., Plaintiffs-Appellants, v. VILLAGE PONTIAC-GMC, INC., et al., Defendants-Appellees.
    Second District
    No. 2—88—0760
    Opinion filed May 5, 1989.

      Roger A. Bixby, William G. Potratz, and Nancy Murray, all of Bixby, Lechner, Yamaguchi & Potratz, of Chicago, for appellants.
    Hugh C. Griffin, L. Anthony Lehr, and John T. Williams, all of Lord, Bissell & Brook, of Chicago, for appellee General Motors Corporation.
    Sarah Hansen Sotos, Jay S. Judge, and Edwin Cummings, all of Judge & Knight, Ltd., of Park Ridge, for appellee Village Pontiac-GMC, Inc.
   JUSTICE WOODWARD

delivered the opinion of the court:

Plaintiffs, American Family Insurance Company (American), Farmers Insurance Company (Farmers), and William and Nancy Gill, appeal from a judgment of the circuit court of Du Page County dismissing the strict product liability counts from their complaint against defendants, Village Pontiac-GMC, Inc., and General Motors Corporation. On appeal, plaintiffs contend that the trial court improperly dismissed the counts as being filed outside the applicable statute of limitations. For the reasons set forth below, we reverse and remand for further proceedings.

On November 9, 1981, a fire began in an automobile owned by the Gills. This fire damaged the Gills’ home and personal property, and the claim was for property damage only. The insurance companies paid the Gills pursuant to their insurance policy.

American and Farmers originally filed suit against defendants on October 31, 1986, and the Gills filed suit on November 7, 1986. These cases were later dismissed for want of prosecution. The insurance companies refiled the complaint within one year and amended it to in-elude the Gills as coplaintiffs. This complaint included two counts based on strict product liability, as well as counts based on breach of warranty and negligence. Defendants moved to dismiss the strict product liability counts from the complaint, arguing that they were time barred by section 13 — 213 of the Code of Civil Procedure (the Code) (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 213). Specifically, defendants argued that section 13 — 213(d) of the Code required all strict product liability actions to be brought within two years of the time plaintiff becomes aware of the injury or damages, and because plaintiffs did not file within two years, the suit was not timely. The trial court agreed with defendants and dismissed the product liability counts. This appeal ensued.

The fundamental issue in the present case is whether section 13— 213(d) of the Code bars plaintiffs from suing defendants on a strict product liability theory. Section 13 — 213 provides in pertinent part:

“(b) Subject to the provisions of subsections (c) and (d) no product liability action based on the doctrine of strict liability in tort shall be commenced except within the applicable limitations period and, in any event, within 12 years from the date of first sale, lease or delivery of possession by a seller or 10 years from the date of first sale, lease or delivery of possession to its initial user, consumer, or other non-seller, whichever period expires earlier ***.
* * *
(d) Notwithstanding the provisions of subsection (b) *** if the injury complained of occurs within any of the periods provided by subsection (b) ***, the plaintiff may bring an action within 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, of the existence of the personal injury, death or property damage, but in no event shall such action be brought more than 8 years after the date on which such personal injury, death or property damage occurred.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 110, par. 13-213.

When construing a statute, our primary purpose is to effectuate the legislature’s intent. (Stewart v. Industrial Comm’n (1987), 115 Ill. 2d 337, 341.) To determine the legislature’s intent, we should turn first to the language of the statute itself. (County of Du Page v. Graham, Anderson, Probst & White, Inc. (1985), 109 Ill. 2d 143, 151.) If the language of the statute is clear, we will give that language effect as it is written and not resort to outside sources to construe its meaning. Graham, Anderson, Probst & White, Inc., 109 Ill. 2d at 151.

Defendants ask us to apply the reasoning used by the Appellate Court for the First District in McLeish v. Sony Corp. of America (1987), 152 Ill. App. 3d 628, and Calumet Country Club v. Roberts Environmental Control Corp. (1985), 136 Ill. App. 3d 610, in deciding this case. Calumet Country Club and McLeish conclude that section 13 — 213(d) places a two-year statute of limitations on bringing a strict product liability suit after plaintiff knew of his injury or damage. (McLeish, 152 Ill. App. 3d at 630; Calumet Country Club, 136 Ill. App. 3d at 614.) However, despite explicit references to section 13— 213(b) of the Code in section 13 — 213(d), the McLeish and Calumet Country Club courts held that the two-year limitation period applied to property damage claims, as well as personal injury claims; it did not analyze the interaction of the two clauses. After construing the statute as a whole, we respectfully decline to follow the McLeish and Calumet Country Club holdings.

Section 13 — 213(b) sets up a two-part test for determining if a strict product liability suit has been timely filed. The suit must be filed within the time periods of the statute of repose (12 years from first delivery by a seller or 10 years from the date of first sale to initial consumer) and the “applicable limitations period.” (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 213(b).) Nowhere in section 13 — 213 is the phrase “applicable limitations period” defined. However, it cannot mean the period set out in section 13 — 213(d), because section 13— 213(b) is subject to the exception set out in 13 — 213(d). Therefore, the phrase “applicable limitations period” must be construed to mean the two-year period for personal injuries (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 202) and the five-year period for property damage (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 205). Section 13 — 205 was interpreted in Edward Hines Lumber Co. v. Vulcan Materials Co. (N.D. Ill. 1987), 669 F. Supp. 854, 857, as follows:

“Thus, the adoption of par. 13 — 213 did nothing to alter the existing limitations periods for different types of injuries, so that a personal injury suit premised on strict product liability must be brought within two years, Ill. Rev. Stat. ch. 110, par. 13— 202 (1985), and a similar suit for damage to real property must be filed within five years, Ill. Rev. Stat. ch. 110, par. 13 — 205 (1985).” 659 F. Supp. 857.

This interpretation is borne out by a close examination of the language of 13 — 213(d). The section begins with the phrase “Notwithstanding the provisions of subsection (b).” “Notwithstanding” means “in spite of.” (Webster’s Third New International Dictionary 1545 (1986).) Thus, section 13 — 213(d) provides an exception to the general rule set out in section 13 — 213(b). This exception is that, even if a suit is not commenced within the applicable limitations period and the statute of repose, a suit may be brought if the injury occurred within the statute of repose, and the suit is filed within two years after plaintiff knew or should have known of the injury. The use of the word “may” in section 13 — 213(d) provides a clear indication that the section is providing an extra right to plaintiffs, not limiting their actions. Section 13 — 213(d) is only meant to apply to situations where the injury is not immediately discoverable. Elliott v. Sears, Roebuck & Co. (1988), 173 Ill. App. 3d 383, 395.

In the present case, the injury complained of was immediately discoverable. Thus, the exception set out in section 13 — 213(d) is not applicable to this case. As such, the trial court erred in dismissing the case as not being filed within the time period set out in section 13— 213(d).

The judgment of the circuit court is reversed, and the cause is remanded for further proceedings.

Reversed and remanded.

NASH and INGLIS, JJ., concur.