                            2018 IL App (2d) 180091 

                                 No. 2-18-0091

                           Opinion filed August 2, 2018

_____________________________________________________________________________

                                            IN THE


                             APPELLATE COURT OF ILLINOIS


                              SECOND DISTRICT

______________________________________________________________________________

In re MARRIAGE OF JESSICA MILNE,       ) Appeal from the Circuit Court
                                       ) of Lake County.
      Petitioner-Appellee,             )
                                       )
and                                    ) No. 17-D-1179
                                       )
DAVID MILNE,                           ) Honorable
                                       ) Elizabeth M. Rochford,
      Respondent-Appellant.            ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE JORGENSEN delivered the judgment of the court, with opinion.
       Presiding Justice Hudson and Justice Birkett concurred in the judgment and opinion.

                                           OPINION

¶1     In this interlocutory appeal under Illinois Supreme Court Rule 306(a) (eff. Nov. 1, 2017),

respondent David Milne appeals from the trial court’s denial of his motion to dismiss petitioner

Jessica Milne’s petition for dissolution of the parties’ marriage. David argues that (1) the trial

court erred in determining that Illinois is the parties’ children’s home state under the Uniform

Child-Custody Jurisdiction and Enforcement Act (UCCJEA) (750 ILCS 36/101 et seq. (West

2016)), (2) he was deprived of due process when the court temporarily allocated parental

responsibilities to Jessica without notice and an opportunity to be heard, and (3) Jessica’s

unclean hands precluded a remedy in her favor. We affirm.

¶2                                     I. BACKGROUND
2018 IL App (2d) 180091


¶3     The parties were married in Lake County on July 3, 2014. David is a Canadian citizen

and attended college in the United States under several visas. Jessica, a United States citizen,

had a child from a previous marriage (M.N.M., born in July 2009), whom David adopted in July

2014. The parties initially lived in and rented a house in Lake County, and M.N.M. attended

preschool there from 2011 through August 2015.

¶4     In June 2015, Jessica applied for permanent residency in Canada for herself and M.N.M.

Also that month, the parties purchased a home in East Gwillimbury (Newmarket), Ontario. In

July 2015, in Lake County, the parties had a second child (L.T.M.), who has dual citizenship. 1

¶5     In August 2015, the parties relocated to Canada, and David worked as a hockey referee

and as an agent for Allstate. Jessica began work as a sales representative for Beauty Counter,

and M.N.M. was enrolled in first grade. The parties moved their assets to Canada and opened

bank accounts there. In December 2015, Jessica’s and M.N.M.’s applications for permanent

residency in Canada were approved, and they were granted permanent residency in February

2016. They received Ontario health care cards and social insurance numbers. Also, L.T.M.

received an Ontario health care card (as a natural born child of a Canadian citizen).

¶6                       A. 2016 Dissolution Petition and Consent Order

¶7     On July 31, 2016, the parties and their children traveled from Ontario to Lake Forest,

Illinois. They had purchased tickets for all of them to return to Canada on August 14, 2016.

However, while in Lake County, Jessica informed David that she and the children would not

return to Canada and, on August 22, 2016, she petitioned for dissolution of the parties’ marriage



       1
           The trial court found that L.T.M. was born in November 2014.         This appears to be

incorrect but has no bearing on our analysis.



                                                -2­
2018 IL App (2d) 180091


(case No. 16-D-1536). David returned to Canada, and, on September 7, 2016, he petitioned in

the Northern District of Illinois to return the children to Canada (case No. 1:16-cv-8716).

¶8     On November 2, 2016, a consent order was entered in the federal case. 2 The parties, who

were each represented by counsel, agreed that the children “shall return on a temporary basis to

Ontario, Canada” (emphasis added), with the parties within two days before the start of school in

January 2017. Both parties “shall accompany the minor children back” to their home in Ontario,

and the children shall reside there “until the beginning of July 2018, and the [parties] shall have

equal access to the minor children.” (Emphasis added.) David agreed to vacate the home, unless

Jessica obtained a new residence, and the parties agreed to participate in marriage counseling in

Canada, starting in January 2017. Also, the order provided that, “by agreement of the parties,

the children’s habitual residence is the United States of America.” (Emphasis added.) The

parties agreed that Jessica could “take reasonable vacations and holidays” to the United States

with the children and that, upon the children’s return to Canada, Jessica “shall promptly file a

notice” in the federal court that the children have returned.        Further, “upon the filing of

[Jessica’s] notice[,] this matter shall be DISMISSED WITH PREJUDICE,” and Jessica will

dismiss with prejudice, by November 9, 2016, any claims filed in Lake County. David agreed to

dismiss with prejudice by the same date all claims filed in the Superior Court of Justice in

Ontario.



       2
           The order specifies that it was entered pursuant to article 7c of the 1980 Convention on

the Civil Aspects of International Child Abduction (the “Hague Convention”) and the

International Child Abduction Remedies Act, 22 U.S.C. 9001 et seq. (Supp. II 2015), along with

the parties’ express consent and agreement.



                                                -3­
2018 IL App (2d) 180091


¶9     The consent order further provided that Jessica would support David’s application to

become a permanent resident of the United States. The parties also agreed that David “shall not

have sexual relations with any third parties from the entry of” the order “through the period of

the temporary relocation to Canada.” (Emphasis added.) If he did have such sexual relations,

Jessica “shall be permitted to return to Illinois immediately with the minor children.” Finally,

the order provided that it was “not a determination of the merits of any custody issues within the

meaning of Article 19 of the Hague Convention.”

¶ 10   Between July 2016 and January 2017, Jessica and the children remained in Lake County,

and then they returned to Canada. On November 8, 2016, Jessica’s dissolution petition was

voluntarily dismissed.

¶ 11                              B. 2017 Dissolution Petition

¶ 12   On July 11, 2017, while Jessica and the children were in Lake County for a two-week

vacation (according to David), Jessica petitioned there for dissolution of the marriage. David

was served in Canada on July 14, 2017, and Jessica returned to Canada with the children on July

20, 2017.

¶ 13   On August 11, 2017, David moved to strike and dismiss the dissolution petition for lack

of jurisdiction or forum non conveniens. 735 ILCS 5/2-619(a)(9) (West 2016). He asserted that

Illinois was not the children’s home state under the UCCJEA and that the court had no personal

jurisdiction over him because he had no contact with Illinois except for Jessica’s temporary

presence in the state. He also asserted that Jessica could not meet the residency requirements of

the Illinois Marriage and Dissolution of Marriage Act (Dissolution Act) (750 ILCS 5/101 et seq.

(West 2016)). Finally, David asserted that the court should decline to exercise jurisdiction,




                                              -4­
2018 IL App (2d) 180091


based on the doctrine of forum non conveniens, because the parties, their children, and their

assets were in Canada, not Lake County.

¶ 14    On September 18, 2017, David filed an application for dissolution of marriage in Canada,

and Jessica was served.

¶ 15    On January 9, 2018, the trial court conducted a hearing on the motion to strike and

dismiss, consisting solely of the attorneys’ arguments, and it took the matter under advisement

and set it for ruling on January 30, 2018.

¶ 16    On January 12, 2018, Jessica filed in Lake County an emergency motion for temporary

jurisdiction and to enforce the November 2, 2016, consent order, permitting her to return to

Illinois (due to David’s alleged violation of the infidelity provision 3). Jessica asserted that she

reasonably feared that David would seek to have the children returned to Canada and that, if she

and the children returned to Canada, David would not allow them to return to Illinois despite the

consent order’s terms. The trial court entered an accelerated briefing schedule and it accelerated

its ruling to January 18, 2018. On January 16, 2018, Jessica also filed in Lake County a verified

petition for a temporary restraining order and/or a preliminary injunction, enjoining David from

seeking the children’s return during the trial court’s home-state determination.

¶ 17    On January 17, 2018, David filed in Lake County an emergency motion for the

immediate return of the children to Canada and for other relief, asserting that Jessica had

withheld parenting time and had absconded to Illinois with the children on January 10, 2018. He

noted that the parties had lived in Ontario since August 2015 with the exception of five months

in 2016 after Jessica filed her first dissolution petition.

        3
            She alleged that she attached to her motion an “investigative report of Haywood Hunt &

Associates dated January 9, 2018.” The report is not contained in the record on appeal.



                                                  -5­
2018 IL App (2d) 180091


¶ 18    On January 18, 2018, after a pretrial hearing with counsel (but no evidentiary hearing),

the trial court issued its ruling on the pending matters. The court ruled that, based on the totality

of the facts and circumstances and considering the consent order, the children’s presence in

Canada was temporary and their home state under the UCCJEA was Illinois. It specifically

found that, although the consent order’s habitual-residence provision was not conclusive on the

home-state issue, it “cannot be ignored.”           Habitual residence, the court noted, “goes to

establishing a last shared intent of the parties,” but it is not the same as the home state. Further,

strict physical presence was not the sole consideration for the home-state determination. Rather,

the court “must consider whether and to what extent there was a temporary absence,” a factual

determination. The court found that the consent order “confirmed the [United States] as the

children’s habitual residence, but also clarified the return to Canada as temporary.” The court

noted that, “in determining the nature of the absence from Illinois,” it placed great weight on the

consent order’s use of the term “temporary.” The court rejected David’s argument that the

consent order’s failure to include language addressing the home state was fatal to Jessica’s

argument. The court determined that the fact that lack of such language did not limit the court’s

ability to consider the language that was included in the consent order. “This Court rejects the

argument that these minor children have lost their roots in Illinois, established their identity in

Canada[,] and that a return to Illinois would be damaging and not in their best interests because

there is no evidence to support it.” It further found that it had personal jurisdiction over David

on the bases that he engaged in conduct that resulted in the conception of a child in Illinois and

that he entered into a contract (i.e., the consent order) in Illinois.

¶ 19    In its written order, the court first denied David’s motion to strike and dismiss Jessica’s

dissolution petition, finding that Illinois had asserted jurisdiction pursuant to the UCCJEA and



                                                  -6­
2018 IL App (2d) 180091


that the court had personal jurisdiction over David. Second, the court ordered that M.N.M. be

immediately enrolled in school in Lake County and that David be entitled to parenting time there

every other weekend. It also ordered Jessica to transport the children to Canada during all three-

day United States holiday weekends and that David have the weekend immediately following the

end of the school year, the first week immediately thereafter, and the week of spring break. It

also ordered that each party may Skype or FaceTime with the children while they are in the

other’s care, every day by 8 p.m. for up to 20 minutes. Third, the court denied both parties’

emergency motions for temporary jurisdiction and it noted that Jessica’s verified petition for a

temporary restraining order and/or a preliminary injunction was resolved elsewhere in its ruling.

¶ 20   Jessica moved to clarify the trial court’s order concerning parenting time and to set

parenting-exchange parameters. On February 15, 2018, the trial court clarified certain aspects of

the parties’ parenting time and set exchange parameters. David subsequently petitioned for leave

to appeal to this court (Ill. S. Ct. R. 306(a)(5) (eff. Nov. 1, 2017)), and on February 22, 2018, we

granted his petition.

¶ 21                                      II. ANALYSIS

¶ 22   David argues that (1) the trial court erred in determining that Illinois is the parties’

children’s home state under the UCCJEA, (2) he was deprived of due process when the court

temporarily allocated parental responsibilities to Jessica without notice and an opportunity to be

heard, and (3) Jessica’s unclean hands precluded a remedy in her favor. He requests that we

reverse the trial court’s determination that Illinois is the children’s home state or, alternatively,

deem that Illinois should decline to exercise jurisdiction. David also requests that, because he

was denied due process, we vacate the trial court’s January 18, 2018, order with respect to the




                                                -7­
2018 IL App (2d) 180091


children and we order that they be returned to Canada on a date certain. For the following

reasons, we reject his arguments. 4

¶ 23                                       A. Home State

¶ 24   David argues first that the trial court erred in finding that Illinois is the children’s home

state. He asserts that, for the six months preceding the filing of Jessica’s dissolution petition

(i.e., January to July 2017), the children resided entirely in Canada. David contends that the

objective facts in the record (not the parties’ subjective intent), including the consent order,

reflect that Jessica moved to Canada shortly after the birth of L.T.M. (in August 2015) and filed

for (and was granted) permanent residency there. The parties bought a home in Canada and

moved their bank accounts and furniture there, and Jessica and M.N.M. received social insurance

numbers and Ontario health care cards. Further, both David and Jessica obtained employment in

Canada, Jessica received child tax benefits there, M.N.M. attended Canadian schools, and the

       4
           We also decline David’s request to strike Jessica’s statement of additional facts, which,

he asserts, contains argument and misstates the record, thereby violating Illinois Supreme Court

Rule 341(h)(6) (eff. July 1, 2017). When an appellant’s brief improperly includes argument,

conclusions, or inappropriate record citations, we may, in our discretion, strike those portions of

the brief. Hubert v. Consolidated Medical Laboratories, 306 Ill. App. 3d 1118, 1120 (1999).

However, where the violations are not “so flagrant as to hinder or preclude review,” striking a

brief in whole or in part may be “unwarranted.” (Internal quotation marks omitted.) Id. Here, to

the extent that Jessica’s statement of additional facts is improperly argumentative or provides

improper citations, it is nevertheless not so misleading as to hinder our analysis. The properly

asserted facts are sufficient to permit our review of this appeal. We will not strike the statement

of additional facts, but we will simply disregard any portions that we believe violate Rule 341.



                                                -8­
2018 IL App (2d) 180091


children saw Canadian healthcare providers. Even after the consent order (in November 2016),

David notes, Jessica returned to Canada with the children, leased property there, and resided

there. Thus, according to David, before Jessica commenced court proceedings (in his view, they

were commenced in August 2016 when Jessica filed her first dissolution petition), the parties’

intent was to leave the United States and permanently reside in Canada. David notes that,

although in the consent order the parties agreed that the children’s “habitual residence” was the

United States, they never defined their “home state.” The “habitual residence” designation was

for purposes of resolving David’s petition for the children’s return. The reference to Illinois in

the consent order relates only to the infidelity provision. He proposes that the trial court should

have looked back to the parties’ last prelitigation action, namely, when they moved to Canada in

2015 and (allegedly) intended to permanently locate there. Further, in David’s view, the parties

and the children were required to reside in Canada until at least July 2018. The trial court, he

urges, should have determined that Ontario was the children’s home state and declined to

exercise UCCJEA jurisdiction. For the following reasons, we reject David’s arguments.

¶ 25   We review de novo questions of statutory construction, as well as a trial court’s ruling on

a motion to dismiss pursuant to section 2-619 of the Code of Civil Procedure. Fleckles v.

Diamond, 2015 IL App (2d) 141229, ¶ 30.

¶ 26   Turning first, for context, to the Hague Convention, we note that it is not intended to

settle custody disputes but is designed to ensure that such disputes are presumptively litigated in

the child’s country of habitual residence. Ortiz v. Martinez, 789 F.3d 722, 728 (7th Cir. 2015).

The Seventh Circuit has explained:

       “ ‘The Hague Convention is an anti-abduction treaty.’ Redmond v. Redmond, 724 F.3d

       729, 739 (7th Cir.[ ]2013). It was designed ‘to deter parents from absconding with their



                                               -9­
2018 IL App (2d) 180091


       children and crossing international borders in the hopes of obtaining a favorable custody

       determination in a friendlier jurisdiction.’ Walker v. Walker, 701 F.3d 1110, 1116 (7th

       Cir.[ ]2012). To this end, the Convention employs a ‘remedy of return,’ Khan v. Fatima,

       680 F.3d 781, 783 (7th Cir.[ ]2012) (internal quotation marks omitted), which ‘entitles a

       person whose child has wrongfully been removed to the United States in violation of the

       Convention to petition for return of the child to the child’s country of “habitual

       residence,” ’ [Norinder v. Fuentes, 657 F.3d 526, 529 (7th Cir. 2011)]. A court’s role in

       enforcing the Convention is not to settle a custody dispute between the parties, ‘but rather

       to restore the status quo prior to any wrongful removal or retention.’ Redmond, 724 F.3d

       at 739.” Id.

The Hague Convention does not define “habitual residence,” and courts have “understood the

inquiry to be a ‘practical, flexible, factual’ one that ‘accounts for all available relevant evidence

and considers the individual circumstances of each case.’ ” Martinez v. Cahue, 826 F.3d 983,

989-90 (7th Cir. 2016) (quoting Redmond v. Redmond, 724 F.3d 729, 732 (2013)). The focus is

on the place where the child has made a home and “identifies the country whose courts should be

entrusted with determinations such as custody and support.” Id. at 990. The two most important

factors are parental intent and the child’s acclimatization to the proposed home jurisdiction. Id.

¶ 27   The UCCJEA, in turn, which is at issue here and became effective in Illinois on January

1, 2004, “ ‘was promulgated to end custody jurisdictional disputes between states, to promote

cooperation between states in determining custody issues, and to enhance the ability of states to

enforce custody orders expeditiously.’ ” Fleckles, 2015 IL App (2d) 141229, ¶ 32 (quoting In re

Joseph V.D., 373 Ill. App. 3d 559, 561 (2007)). Once a state makes an initial child custody

determination, the statute gives the state exclusive continuing jurisdiction. Id.; see 750 ILCS



                                               - 10 ­
2018 IL App (2d) 180091


36/202(a) (West 2016). “As used in the [UCCJEA], *** ‘jurisdiction’ must be understood as


simply a procedural limit on when the court may hear initial custody matters, not a precondition 


to the exercise of the court’s inherent authority,” which “emanates solely from article VI, section


9, of our constitution (Ill. Const. 1970, art. VI, § 9).” McCormick v. Robertson, 2015 IL 118230, 


¶ 27. 


¶ 28      Section 201 of the UCCJEA states, in part:


                 “(a) Except as otherwise provided in Section 204 [i.e., temporary emergency

          jurisdiction], a court of this State has jurisdiction to make an initial child-custody

          determination only if:

                         (1) this State is the home state of the child on the date of the

                 commencement of the proceeding, or was the home state of the child within six

                 months before the commencement of the proceeding and the child is absent from

                 this State but a parent or person acting as a parent continues to live in this State;

                         (2) a court of another state does not have jurisdiction under paragraph (1),

                 or a court of the home state of the child has declined to exercise jurisdiction on

                 the ground that this State is the more appropriate forum under Section 207 or 208,

                 and:

                                   (A) the child and the child’s parents, or the child and at least one

                         parent or a person acting as a parent, have a significant connection with

                         this State other than mere physical presence; and

                                   (B) substantial evidence is available in this State concerning the

                         child’s care, protection, training, and personal relationships;




                                                   - 11 ­
2018 IL App (2d) 180091


                         (3) all courts having jurisdiction under paragraph (1) or (2) have declined

                 to exercise jurisdiction on the ground that a court of this State is the more

                 appropriate forum to determine the custody of the child under Section 207 or 208;

                 or

                         (4) no court of any other state would have jurisdiction under the criteria

                 specified in paragraph (1), (2), or (3).

                 (b) Subsection (a) is the exclusive jurisdictional basis for making a child-custody

        determination by a court of this State.

                 (c) Physical presence of, or personal jurisdiction over, a party or a child is not

        necessary or sufficient to make a child-custody determination.” 750 ILCS 36/201 (West

        2016).

¶ 29	   Section 102(7) of the UCCJEA contains the definition of “home state”:

        “ ‘Home state’ means the state in which a child lived with a parent or a person acting as a

        parent for at least six consecutive months immediately before the commencement of a

        child-custody proceeding. In the case of a child less than six months of age, the term

        means the state in which the child lived from birth with any of the persons mentioned. A

        period of temporary absence of any of the mentioned persons is part of the period.”

        (Emphasis added.) Id. § 102(7).

The statute defines “Commencement” as “the filing of the first pleading in a proceeding.” Id. §

102(5). It also treats a foreign country as a “state.” Id. § 105(a).

¶ 30    The UCCJEA does not define “temporary absence,” but the comment to section 102 of

the uniform act states that “[t]he definition of ‘home State’ has been reworded slightly. No

substantive change is intended from the [Uniform Child Custody Jurisdiction Act (UCCJA) (the



                                                  - 12 ­
2018 IL App (2d) 180091


prior uniform act) (750 ILCS 35/1 et seq. (West 2002), repealed by Pub. Act 93-108, § 404 (eff.

Jan. 1, 2004))].” Uniform Child Custody Jurisdiction and Enforcement Act § 102 cmt. (Nat’l

Conf.    of    Comm’rs       on       Unif.   State      Laws   1997),   http://www.uniformlaws.

org/shared/docs/child_custody_jurisdiction/uccjea_final_97.pdf. Thus, we find helpful case law

interpreting the prior uniform act.

¶ 31    Illinois cases that have addressed temporary absences under the UCCJA are split on the

proper analysis. The First, Third, and Fifth Districts adopted a totality-of-the-circumstances

approach. See Richardson v. Richardson, 255 Ill. App. 3d 1099, 1102-04 (1993) (Third District

case under prior uniform act; rejecting the strict physical-presence test because an agreement for

extended out-of-state visits under that scenario “would be discouraged because of the potential

legal consequences to the custodial parent” and “such agreements should be encouraged as a

matter of public policy”; noting that absence intended to last a limited time can be temporary

absence regardless of length of time; to determine whether a state is the home state, court must

examine child’s physical presence in the state and “under what circumstances the child came to

and remained in the State”; holding that 11-month consensual visit to Illinois did not establish

home-state jurisdiction); see also In re Marriage of Howard, 291 Ill. App. 3d 675, 681 (1997)

(Fifth District case under prior uniform act; following Richardson and holding that a temporary

absence can be many months; court must examine circumstances under which the child came to

reside in the state); In re Parentage of Frost, 289 Ill. App. 3d 95, 102-04 (1997) (First District

case under prior uniform act; adopting Richardson’s approach to allow a court to consider the

parents’ agreement and intent in determining whether a child’s out-of-state absence was

temporary; holding that trial court on remand may consider parties’ agreement and intent in

determining whether out-of-state visit of greater than six months was sufficient to confer home­



                                                - 13 ­
2018 IL App (2d) 180091


state jurisdiction in that state).   The Fourth District, in contrast, adopted a strict physical-

presence test. See In re Marriage of Schoeffel, 268 Ill. App. 3d 839, 842-43 (1994) (under prior

uniform act, rejecting the relevance of a parent’s intent to the temporary-absence issue; noting

error in incorporating nuances of the concept of “domicile” into the definition of home state;

stating that “whether a State is a child’s ‘home state’ is primarily a question of time”:

specifically, “where has the child lived with a person acting as a parent for the last six months?”;

noting that it is “a mistake to allow parties to make agreements [that] control the operation of the

Act”; only absences of less than six months within the relevant six-month period can be

temporary; nine-month stay in New York was not temporary); see also In re Marriage of

Arulpragasam, 304 Ill. App. 3d 139, 148-49 (1999) (Fourth District case under prior uniform act;

following Schoeffel and applying strict physical-presence test).

¶ 32   The Frost court addressed the conflict within the districts of the appellate court, noting

that the strict physical-presence test was likely “propelled more as a matter of policy preference

than as a matter of literal or contextual statutory compulsion.” Frost, 289 Ill. App. 3d at 101.

The statute does not define “temporary absence,” and the strict physical-presence test, the court

noted, discourages agreements between parties and can result in certain inequities. Id. at 101-02.

“The freedom to reach such agreements should not be hampered by fear that jurisdiction would

vest in another state if the out-of-state absence extends beyond six months. Any such fear would

have a chilling effect on the formation of any such agreements, and family bonds would suffer.”

Id. at 102. The court adopted the Richardson analysis “because it encourages settlement of

visitation issues and because it offers protection when the promise to return the child is breached

either because it was falsely made at the outset or because the parent decides at a later time not to

return the child.” Id.



                                               - 14 ­
2018 IL App (2d) 180091


¶ 33   We follow Richardson. We agree with Frost that agreements concerning custody should

be encouraged and that a strict reading of the statutory six-month period can lead to harsh results,

thereby discouraging family ties. We also agree with Richardson and the other cases that hold

that a temporary absence is not limited to a period of six months or less. Such a limit, again, can

lead to harsh results, most significantly in cases where a child temporarily moves to another state

to attend school, which, in most cases, encompasses nine months. Richardson presented such a

scenario and is otherwise factually analogous to this case.          In Richardson, a California

dissolution judgment awarded the parties joint custody of their daughter and further provided

that her primary residence would be with her father in California. The mother then moved to

Illinois, and, under a written agreement between the parties, the father allowed the daughter to go

to Illinois to live with her mother in order to attend fifth grade the following school year. While

the child lived in Illinois, the father moved to Arizona. Pursuant to the agreement, the child was

returned to the father at the end of the school year and continued to reside with him. The mother

then sought to enroll the California dissolution judgment in Illinois, and the father asserted that

Illinois lacked jurisdiction. The trial court dismissed the case. On appeal, the Third District

affirmed, holding that, when the child came to Illinois, the parties’ understanding was that she

would not remain in Illinois; her 11-month stay here was a temporary absence from California.

Richardson, 255 Ill. App. 3d at 1102-04 (rejecting the strict physical-presence test and the

concurring opinion’s position that a temporary absence cannot exceed six months).

¶ 34   This case presents similar facts. Jessica filed her dissolution petition on July 11, 2017, in

Lake County. David’s assertion that the proceedings commenced at an earlier time is incorrect

because the first dissolution petition was dismissed with prejudice pursuant to the consent order.

Jessica and the children had returned to Canada in January 2017 and the parties remained there



                                               - 15 ­
2018 IL App (2d) 180091


until she filed her second petition. Thus, they physically resided in Canada during the relevant

six-month period (January to July 2017).        Turning to the nature of the parties’ Canadian

residence during that period, the consent order memorialized their shared intent that their

Canadian residence was temporary and would last only until July 2018. Any intent otherwise

prior to the consent order is irrelevant because the order superseded it. Further, there is no

evidence that, after the order, the parties changed their intent that their residence would be

temporary.

¶ 35   David maintains that the trial court applied the “totality of the circumstances” test

incorrectly, where it considered solely the consent order rather than objective evidence that the

parties’ move to Canada in August 2015 was intended to be permanent. He points again to the

fact that the parties purchased real estate in Canada, moved their belongings there, applied for

and received permanent residency for Jessica and the children, paid taxes in Canada, and

relocated their bank accounts there. Also, David notes that L.T.M. has essentially spent his

entire life in Canada and that M.N.M., by the parties’ agreement, was to attend Canadian schools

for first through third grades. Finally, David notes that the trial court did not consider that the

parties were already involved in litigation in Lake County and Canada when the consent order

was entered. In his view, the trial court, which cited no case deeming an extended absence

temporary, erroneously relied on the fact that Jessica was free to leave Canada and return to

Illinois should David violate the consent order. He points out that the consent order required that

Jessica remain in Canada and keep the children enrolled in school there until at least July 2018

and did not mention where Jessica or the children should reside thereafter.

¶ 36   We disagree with David’s contention that the trial court focused exclusively on the

consent order. This assertion is clearly belied by the court’s explicit finding that the consent



                                              - 16 ­
2018 IL App (2d) 180091


order’s habitual-residence provision was not conclusive but was merely a relevant consideration.

The court also stated that the habitual residence “goes to establishing the shared intent of the

parties” but was not the same as the home state. The court determined that the consent order

“clarified that the return to Canada [was] temporary.” The order further provided that the

children would reside in Canada “until the beginning of July 2018” and that Jessica would

support David’s application to become a permanent resident of the United States. The order

specified that it was not a custody determination, and the court did not err in interpreting its

terms for purposes of ascertaining the parties’ intent. David’s suggestion that the court should

have looked further back in time, specifically to 2015, to find that their move to Canada was

permanent is not well taken. Even if that were their intent then, the parties later, in the consent

order, memorialized their (changed) intent that the return to Canada was temporary. We also

reject David’s argument that the three-year absence from Illinois was too long to constitute a

temporary absence under any reading of the UCCJEA. Richardson and the cases that follow it

reject this view. Again, the question is the parties’ intent and the objective circumstances during

the relevant period, January to July 2017.      One indication of the parties’ intent was their

agreement in the consent order that the children “shall return on a temporary basis to Ontario

Canada” with the parties in January 2017, that the children would reside in Ontario “until the

beginning of July 2018,” and that Jessica would support David’s application for permanent

residency in the United States. Nothing occurred afterward to reflect that the parties agreed that

their Canadian residency would be anything other than temporary. We also find David’s reliance

on foreign cases to be misplaced, because they do not involve written agreements concerning the

parties’ temporary residence. See Baxter v. Baxter, 2015-0085 (La. App. 4 Cir. 6/24/15); 171

So. 3d 1159; Chick v. Chick, 596 S.E.2d 303 (N.C. Ct. App. 2004).



                                              - 17 ­
2018 IL App (2d) 180091


¶ 37   We also reject David’s argument that the trial court ignored substantial objective

evidence that the parties’ Canadian residency was intended to be permanent. He notes that

certain objective factors under the totality-of-the-circumstances test, such as driver’s license

registration, receipt of government benefits, payment of taxes, and home ownership, point to

Ontario as the home state. See Andrea Charlow, There’s No Place Like Home: Temporary

Absences in the UCCJEA Home State, 28 J. Am. Acad. Matrim. Law 25, 34-35(II)(B)(3) (2015)

(noting that “[t]he ‘totality of the circumstances’ test is commonly used to determine if an

absence is temporary” and that courts will consider the following: intent, duration, nature, and

purpose of presence outside of state, applications for driver’s licenses and public benefits,

payment of taxes, home ownership or lease, school registration, presence as related to the receipt

of medical care, and presence for parental educational or job opportunities). We cannot quarrel

with this general proposition.     However, here, the parties memorialized their intent in an

objective piece of evidence, namely, the consent order. Thus, under these circumstances, the

trial court correctly placed the most significant weight on this objective factor.

¶ 38   We also find unavailing David’s assertion that the trial court’s ruling must be reversed

because the court failed to conduct an evidentiary hearing. In our view, the trial court correctly

found that “[t]he facts are generally undisputed” and that, therefore, no hearing was required. Cf.

Frost, 289 Ill. App. 3d at 103 (“an evidentiary hearing must be held to determine whether the

parties had agreed that Michael would return to Illinois at the conclusion of his visit to California

and whether the petitioner knew more than six months before he filed his petition that Michael’s

residence in California was permanent”).

¶ 39   Because we conclude that Illinois is the children’s home state, we need not reach David’s

alternative argument that, even if Canada is not the children’s home state, Illinois is not their



                                                - 18 ­
2018 IL App (2d) 180091


home state either and the trial court should have declined to exercise jurisdiction after conducting

a proper statutory analysis. See 750 ILCS 36/201(a)(2) (West 2016) (Illinois has jurisdiction

where a court of another state does not have jurisdiction and the child and at least one parent

have a significant connection to Illinois other than mere physical presence and there is

substantial evidence in Illinois concerning the child’s care, protection, training, and personal

relationships).

¶ 40                                      B. Due Process

¶ 41   Next, David argues that he was denied due process, where the trial court, sua sponte and

without a hearing, temporarily allocated parental responsibilities to Jessica. He concedes that the

trial court did not rule on Jessica’s emergency motion to enforce the consent order, but he

contends that its ruling essentially granted her every part of the relief she sought in that motion.

Implicit in its ruling, David argues, was that Jessica was allowed to remain in Illinois with the

children, choose the school in which to enroll L.T.M., and make all daily decisions concerning

the children’s care, and that David’s parenting time (as compared to the “equal access” he

enjoyed under the consent order) was dramatically reduced. He maintains that the trial court

enforced a clause barred by public policy and stripped David of his parental rights without notice

and a hearing.    See 750 ILCS 5/603.5(a) (West 2016) (a temporary allocation of parental

responsibilities “shall be made in accordance with the standards set forth in Sections 602.5 and

602.7 [of the Dissolution Act]: (i) after a hearing”); see also In re Custody of G.L., 2017 IL App

(1st) 163171, ¶¶ 24-25 (deferential standard applies to findings concerning allocation of parental

responsibilities); In re Marriage of Heindl, 2014 IL App (2d) 130198, ¶ 21 (due process

violation presents legal question, subject to de novo review). David requests that we vacate the

January 18, 2018, order and that the children be returned to Canada.



                                               - 19 ­
2018 IL App (2d) 180091


¶ 42   Jessica responds that David’s constitutional rights were not violated by the court’s

temporary allocation of parental responsibilities and setting of a temporary parenting-time

schedule, where his parental rights remain intact and the court simply acted to ensure a

reasonable status quo for the short term. On the last point, she notes that the transcript of the

January 18, 2018, hearing reflects that the court, “sua sponte without prejudice pending

resolution of any appeals,” simply ensured that M.N.M. would attend school and that David

would have regular parenting time in both Illinois and Canada. The court also, Jessica notes, set

a very prompt status date, for less than six weeks hence. Thus, contrary to David’s claims, the

court did not make any substantive custody determinations. We agree with Jessica and find no

error with the court’s order maintaining the status quo pending appeal. The transcript of the

January 18, 2018, hearing reflects that David suggested imposing a stay on any substantive

issues pending appeal. The court then ordered that M.N.M. be immediately enrolled in the

school she had previously attended, noting that the order would be without prejudice and

temporary. The court further noted that it was “extremely concerned about parenting time for

David while this litigation is pending and during the course of the appeal, so I will be entering a

specific order in regard to [a] parenting time schedule for David.” David did not object or

request a hearing. Next, Jessica requested that the order allow her to enroll L.T.M. in preschool,

so long as she provided David with prior notice, and the court agreed.          David voiced no

objection.

¶ 43   David next focuses on the consent-order clause that allows Jessica to leave Canada if

David has sexual relations with a third party. He argues that the clause is against public policy

and unenforceable. Thus, in his view, Jessica’s removal of herself and the children without

notice violated the consent order. Jessica responds first that the trial court did not grant her



                                              - 20 ­
2018 IL App (2d) 180091


emergency motion and did not even hear the motion on January 18, 2018; the motion was merely

discussed in a pretrial conference. Thus, she reasons, because the court did not enforce the

infidelity provision in the consent order, David cannot now claim that his due process rights were

violated. Second, she contends that, even if the infidelity provision is properly before this court,

the provision is not against public policy. She notes that the consent order does not grant her

custody upon David’s infidelity, but, rather, allows an earlier return to Illinois than the

previously agreed-to July 2018 return date.

¶ 44      We reject David’s argument. Contrary to his assertion, the trial court made no findings

concerning the infidelity clause, and we need not reach it. Further, we find unavailing his

argument that the only means by which the trial court could have determined on January 18,

2018, that Jessica should remain in Illinois was by determining that the infidelity clause had been

violated.    The trial court’s findings (on David’s motion to dismiss for lack of UCCJEA

jurisdiction) were based on its analysis of home-state jurisdiction; it did not rule on the infidelity

clause.

¶ 45                                      C. Unclean Hands

¶ 46      David’s final argument is that, due to Jessica’s unclean hands in removing the children

from Canada, this court should vacate the trial court’s order asserting jurisdiction over the

children. He asserts that Jessica provided false itineraries during the winter holiday, claiming

that she would return the children to Canada in January 2018. In fact, he urges, she was seeking

to gain advantage in the Lake County litigation. The trial court, he asserts, failed to consider

Jessica’s bad faith in absconding with the children.

¶ 47      “In Illinois, misconduct on the part of a plaintiff that will defeat recovery in a court of

equity under the doctrine of unclean hands must have been conduct in connection with the very



                                                - 21 ­
2018 IL App (2d) 180091


transaction being considered or complained of and must have been misconduct, fraud[,] or bad

faith toward the defendant making the contention. [Citation.] The doctrine is not a judicial

strait-jacket that will prevent a court of equity from doing justice[,] and its application is not

favored by the courts.” Paul L. Pratt, P.C. v. Blunt, 140 Ill. App. 3d 512, 521-22 (1986).

Application of the doctrine is within the trial court’s discretion. La Salle National Bank v. 53rd­

Ellis Currency Exchange, Inc., 249 Ill. App. 3d 415, 437 (1993).

¶ 48    We reject David’s argument. He asserts that Jessica was due to return to Canada from

Florida with the children on January 7, 2018, but, instead, texted him from Lake Forest on

January 10, 2018, to ask if his attorneys had received her emergency motion filed that day. In

our view, the trial court could have reasonably declined to invoke the unclean-hands doctrine.

David’s position is that Jessica returned to Illinois with the children in order to establish

jurisdiction for the dissolution petition that she had filed here. We agree that this is the type of

conduct that the statute is designed to prevent. Even so, Jessica alleged in her emergency motion

for temporary jurisdiction that David violated the consent order’s infidelity provision, which, if

true, would have allowed her to immediately return to Illinois. Although we do not reach the

issues of the provision’s validity or the truthfulness of Jessica’s allegation, we believe that the

court could have reasonably declined to find that she had unclean hands where she asserted a

potentially valid reason for returning to Illinois.

¶ 49                                     III. CONCLUSION

¶ 50    For the reasons stated, the judgment of the circuit court of Lake County is affirmed.

¶ 51    Affirmed.




                                                 - 22 ­
