{ "id": 5704313, "name": "JOSEPH J. MULAY et al., Appellants, v. KATHERINE MULAY, Appellee", "name_abbreviation": "Mulay v. Mulay", "decision_date": "2007-03-22", "docket_number": "No. 102619", "first_page": "601", "last_page": "611", "citations": [ { "type": "official", "cite": "225 Ill. 2d 601" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "193 Ill. 2d 455", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 963718 ], "weight": 5, "year": 2000, "pin_cites": [ { "page": "474-75" }, { "page": "474-75" }, { "page": "473-76" }, { "page": "476" }, { "page": "476-80" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/193/0455-01" ] }, { "cite": "284 Ill. App. 3d 915", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1260360 ], "year": 1996, "pin_cites": [ { "page": "929" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/284/0915-01" ] }, { "cite": "224 Ill. 2d 172", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3607155 ], "weight": 7, "year": 2006, "pin_cites": [ { "page": "178", "parenthetical": "listing cases" }, { "page": "178-79" }, { "page": "178" }, { "page": "178" }, { "page": "178-79", "parenthetical": "listing cases" }, { "page": "178-79" }, { "page": "178-79" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/224/0172-01" ] }, { "cite": "362 Ill. 403", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2594243 ], "year": 1936, "pin_cites": [ { "page": "408" } ], "opinion_index": 0, "case_paths": [ "/ill/362/0403-01" ] }, { "cite": "214 Ill. 2d 253", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 8450970 ], "year": 2005, "pin_cites": [ { "page": "260" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/214/0253-01" ] }, { "cite": "530 U.S. 57", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 9413198 ], "weight": 3, "year": 2000, "opinion_index": 0, "case_paths": [ "/us/530/0057-01" ] }, { "cite": "218 Ill. 2d 428", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5736074 ], "year": 2006, "opinion_index": 0, "case_paths": [ "/ill-2d/218/0428-01" ] }, { "cite": "199 Ill. 2d 309", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 58935 ], "weight": 3, "year": 2002, "pin_cites": [ { "page": "321" }, { "page": "314-22" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/199/0309-01" ] } ], "analysis": { "cardinality": 745, "char_count": 17838, "ocr_confidence": 0.784, "pagerank": { "raw": 8.353981602617092e-08, "percentile": 0.48124813454375137 }, "sha256": "48a3b82e632e7d05fc58255d0e0523f3fe2d70a313a6de42d9b7562944b96c37", "simhash": "1:1bafe716476c51be", "word_count": 2821 }, "last_updated": "2023-07-14T20:39:04.970492+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JOSEPH J. MULAY et al., Appellants, v. KATHERINE MULAY, Appellee." ], "opinions": [ { "text": "JUSTICE KILBRIDE\ndelivered the judgment of the court, with opinion.\nChief Justice Thomas and Justices Freeman, Fitzgerald, Carman, Karmeier, and Burke concurred in the judgment and opinion.\nOPINION\nIn this appeal, the circuit court of Peoria County found that the statute governing grandparent visitation, section 607(a \u2014 5) of the Illinois Marriage and Dissolution of Marriage Act (Act) (750 ILCS 5/607(a \u2014 5) (West Supp. 2005)), is facially unconstitutional and dismissed the visitation petition. Prior to examining the propriety of that ruling, however, we must address the Attorney General\u2019s argument that the trial court improperly ruled on the constitutionality of the statute when nonconstitutional grounds were available. We agree with the Attorney General and accordingly vacate the trial court\u2019s decision, remanding the cause for further proceedings.\nI. BACKGROUND\nPeoria County deputy sheriff James Mulay was killed in May 2003. He was survived by his wife, Katherine (mother), two sons (grandchildren), Joseph, born in 1999, and Jacob, born in 2002, and his parents, Joseph J. and Rita M. Mulay (grandparents). According to their petition, the grandparents visited and helped care for their grandchildren on a nearly daily basis before and after the death of their son. In 2005, the mother began to limit the time the grandparents were permitted to spend with their grandchildren. In June 2005, Michael Stessman, the mother\u2019s boyfriend, told the grandparents that they could not come to their grandchildren\u2019s home any longer and that they could see their grandchildren only at T-ball games. Although the grandparents sought mediation on the visitation issue, no mediation was ever scheduled or conducted.\nThe grandparents petitioned in the circuit court of Peoria County under the version of the grandparent \u2022visitation statute in effect on January 1, 2005 (750 ILCS 5/607(a \u2014 5) (West Supp. 2005)) for reasonable and liberal visitation similar to the visitation they had allegedly enjoyed in the past. The grandchildren were then ages two and five.\nThe mother filed a combined motion to dismiss pursuant to section 2 \u2014 619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2 \u2014 619.1 (West 2004)), alleging defects under both section 2 \u2014 619(a)(9) (735 ILCS 5/2\u2014 619(a)(9) (West 2004)) and section 2 \u2014 615 (735 ILCS 5/2 \u2014 615 (West 2004)) of the Code. The section 2 \u2014 619 portion of the motion alleged that section 607(a \u2014 5) of the Act unconstitutionally interfered with the mother\u2019s fundamental liberty interest as a fit parent in the care, custody, and control of her children and was unconstitutionally vague. The section 2 \u2014 615 portion of the motion claimed that the petition was inadequate as a matter of law because it contained conclusory allegations unsupported by specific facts and did not allege that the mother was an unfit parent or that her visitation decisions were harmful to the children\u2019s physical, mental, or emotional health.\nThe grandparents filed a motion to amend their petition, accompanied by the proposed amended petition, and a response to the mother\u2019s motion to dismiss. The mother filed a memorandum of law supporting her motion to dismiss. The trial court subsequently entered an agreed order, granting the grandparents leave to file an amended visitation petition. In their amended petition, the grandparents alleged that the mother\u2019s decision to allow them to see their grandchildren only at T-ball games constituted an unreasonable denial of visitation and was \u201charmful to the children\u2019s mental, physical, or emotional health.\u201d The petition contained no additional facts to support these allegations.\nThe grandparents also filed a memorandum of law responding to the constitutional challenges in the mother\u2019s motion to dismiss, and the mother filed a motion to reassert her prior motion to dismiss and supporting memorandum of law against the amended petition. The trial court asked the parties to submit joint answers to three factual questions. In response, the mother\u2019s attorney submitted a letter stating that: (1) James and the children\u2019s mother were married at the time of James\u2019 death; (2) a petition for dissolution had been filed and then dismissed approximately 15 months prior to James\u2019 death; and (3) no orders other than the voluntary dismissal of the dissolution petition had been filed before the grandparents filed their visitation petition.\nAt the trial court\u2019s request, the parties submitted briefs addressing two constitutional questions: (1) \u201c[wjhether the Illinois Supreme Court in Wickham [v. Byrne, 199 Ill. 2d 309 (2002),] held that third party visitation simply is not of a compelling interest to ever warrant state intervention when parents are fit\u201d; and (2) \u201c[w]hether the Illinois Supreme Court in [In re] R.L.S.[, 218 Ill. 2d 428 (2006),] is interpreting Troxel [v. Granville, 530 U.S. 57, 147 L. Ed. 2d 49, 120 S. Ct. 2054 (2000),] and thus *** third party intervention into a fit parent\u2019s decision making if and only if there is [a] standing requirement that presumes fitness.\u201d\nIn a written order granting the mother\u2019s motion to dismiss, the trial court did not address the section 2 \u2014 615 portion of the motion. Instead, the court analyzed the section 2 \u2014 619 claims, finding that the strict scrutiny standard applied to the constitutional questions because they implicated fundamental parental rights. The court acknowledged the statutory presumption that a fit parent\u2019s visitation decisions do not harm the child, but concluded that the statutory factors were not sufficiently narrow and deferential to a parent\u2019s superior rights to pass constitutional muster. The court also criticized the statute\u2019s failure to consider parental visitation preferences and the parent\u2019s physical and mental health, stating that parental health affected the ability to make daily decisions, \u201ci.e. fitness.\u201d Based on this analysis, the trial court believed that the revised statute contained some of the same flaws outlined in Wickham, 199 Ill. 2d at 321. In both statutes, the court believed the factors considered only affected the best interests of the child and allowed judges to usurp the role of parental decisionmaker.\nFinally, the court stated that the statutory requirement that the denial of visitation be \u201cunreasonable, even if it is not harmful,\u201d was \u201cvague.\u201d The court added that reasonableness was determined by application of the statutory \u201cbest interest factors\u201d and believed that the use of those factors in the prior version of the statute was found to be unconstitutional. Accordingly, the court found section 607(a \u2014 5) facially unconstitutional and granted the mother\u2019s motion to dismiss.\nThis court granted the grandparents\u2019 direct appeal (210 Ill. 2d R. 302(a)), as well as the request of the Attorney General (State) for leave to intervene (735 ILCS 5/2 \u2014 408(c) (West 2004)).\nII. ANALYSIS\nBefore we may consider the constitutionality of section 607(a \u2014 5), we must first address a preliminary issue raised by the State. The State contends that the trial court prematurely reached the merits of the constitutional issue raised by the mother because the case could have been decided on nonconstitutional grounds. See In re Application of the County Treasurer, 214 Ill. 2d 253, 260 (2005). The State asserts that the trial court should have considered the sufficiency of the grandparents\u2019 petition as a matter of law under section 2 \u2014 615, as argued in the mother\u2019s combined motion to dismiss, prior to addressing the constitutional questions raised under section 2 \u2014 619 of her motion.\nIn Bohnert v. Ben Hur Life Ass\u2019n, 362 Ill. 403, 408 (1936), this court declined to address the constitutional questions raised, explaining that \u201cinasmuch as we have concluded that the complaint did not state a cause of action it becomes unnecessary to pass upon the constitutional questions or the validity of the statute.\u201d Since that time, we have repeatedly cited the general principle that courts will address constitutional issues only as a last resort, relying whenever possible on nonconstitutional grounds to decide cases. In re E.H., 224 Ill. 2d 172, 178 (2006) (listing cases). We strongly reaffirmed the continuing vitality of that principle in In re E.H., 224 Ill. 2d at 178-79.\nHere, the record shows that the mother filed a motion to dismiss the grandparents\u2019 original petition for visitation, alleging both constitutional grounds under section 2 \u2014 619 and the petition\u2019s legal insufficiency under section 2 \u2014 615. In her section 2 \u2014 615 claim, she argued that the petition was, on its face, \u201csubstantially insufficient as a matter of law\u201d because it was \u201creplete with conclusory allegations without supporting factual allegations as required to state a claim.\u201d (Emphasis added.) The mother next generally noted that conclusions of fact or law not supported by specific factual allegations are not admitted. In paragraph seven, she applied this principle, asserting that the \u201c[pjetition fails to allege any specific factual allegations that Respondent is an unfit parent,\u201d and in paragraph 8, she argued that the \u201c[pjetition fails to allege any specific factual allegations that [the mother\u2019s] actions and decisions regarding visitation times are harmful to the children\u2019s mental, physical, or emotional health.\u201d\nIn response, the grandparents filed a motion to amend their petition, and the trial court granted that motion \u201c[u]pon stipulation and agreement of the parties.\u201d The mother then filed a motion seeking to have her original motion to dismiss and its supporting memorandum of law \u201cadopted, reasserted and realleged\u201d against the grandparent\u2019s amended visitation petition. In her motion, the mother noted the parties\u2019 agreement to allow the filing of the amended petition. She then stated that \u201c[b]y further agreement of the parties, [her] Motion to Dismiss *** and [her] Memorandum of Law in Support thereof, would be adopted *** for [her] Motion and Memorandum of Law attacking the amended Petition for Visitation.\u201d (Emphasis in original.) Thus, the mother raised identical allegations in her motions to dismiss both the grandparents\u2019 original and amended petitions, attacking the legal sufficiency of the amended petition.\nIn its dispositive ruling on the mother\u2019s pending motion to dismiss, the trial court addressed only the constitutional claims under section 2 \u2014 619. It did not consider or reference the mother\u2019s section 2 \u2014 615 claim that the petition was facially insufficient as a matter of law for failing to allege facts to support the allegations. Thus, rather than deciding the constitutionality of the statute \u201conly as a last resort\u201d (In re E.H., 224 Ill. 2d at 178), the trial court decided the case without first evaluating the mother\u2019s nonconstitutional claims under section 2 \u2014 615.\nIn response to the State\u2019s argument that the trial court should have first ruled on the section 2 \u2014 615 motion to dismiss, the mother contends that the judge \u201cessentially denied [the section] 2 \u2014 615 motion and rendered it moot\u201d in the final order. She claims that the trial court could have believed that the defects alleged in the motion were cured in the amended petition. The record is silent on the trial court\u2019s intentions in ruling on the section 2 \u2014 619 motion prior to the section 2 \u2014 615 motion. Without any support in the record, we will not presume that the trial court implicitly denied the mother\u2019s section 2 \u2014 615 motion. In addition, the mother\u2019s claim does not address the legal effect of the particular defects claimed in her motion to dismiss.\nThe motion to dismiss argued that the petition was generally \u201creplete with conclusory allegations without supporting factual allegations as required to state a claim.\u201d (Emphasis added.) In addition, it specifically noted that the \u201c[pjetition fails to allege any specific factual allegations that [the mother] is an unfit parent\u201d or that her conduct and visitation decisions \u201care harmful to the children\u2019s mental, physical, or emotional health.\u201d (Emphases added.) See Dowd & Dowd, Ltd. v. Gleason, 284 Ill. App. 3d 915, 929 (1996). While the trial court\u2019s constitutional analysis included the conclusion that \u201cnothing in the statute addresses the parent\u2019s mental and physical health which is at the heart of a parent\u2019s ability to make and carry out the day-to-day child care decisions, i.e., fitness,\u201d that criticism was part of the court\u2019s strict scrutiny review. It cannot be reasonably construed to be an implicit denial of one of the mother\u2019s section 2 \u2014 615 claims.\nMoreover, the motion to dismiss cited the absence of any specific facts showing that the denial of visitation actually caused the children harm. The only pertinent change in the amended petition was the addition of the general allegation that the denial was \u201charmful to the children\u2019s mental, physical, or emotional health.\u201d This addition did not render moot the motion\u2019s section 2 \u2014 615 allegation that the petition was inadequately supported by specific facts. The order also does not support the contention that the trial court implicitly denied the section 2 \u2014 615 claim. The order does not mention the section 2 \u2014 615 allegations and does not determine the legal sufficiency of the grandparents\u2019 petition. Instead, it addresses only the facial constitutionality of section 606(a\u2014 5).\nAs we pointed out in E.H., this court has adopted Supreme Court Rule 18(c)(4) (210 Ill. 2d R. 18(c)(4) (eff. September 1, 2006)), requiring a court to include a written statement that the case could not be decided on a nonconstitutional ground before finding a statute unconstitutional. E.H., 224 Ill. 2d at 178. Although Rule 18(c)(4) was not in effect when the trial court entered its order, this court has long adhered to that principle. See In re E.H., 224 Ill. 2d at 178-79 (listing cases). It is that principle that mandates the ruling in this case.\nLastly, the mother briefly argues that her fundamental parental rights have been infringed because the grandparents\u2019 petition has forced her to come into court to oppose it. Although the mother does not cite this court\u2019s decision in Lulay v. Lulay, 193 Ill. 2d 455, 474-75 (2000), for this contention, she cites Lulay in a similar, although considerably more complete, argument on the merits of the constitutional issue. Thus, we will review the mother\u2019s argument by examining the relevant language in Lulay.\nIn Lulay, a grandmother sought visitation with her grandchildren under a prior version of the statute at issue in this case. This court noted that filing a visitation petition required the parents to hire counsel and to present evidence defending their visitation decisions, necessarily diminishing their authority over the children and interfering with their decisionmaking rights. Lulay, 193 Ill. 2d at 474-75. Importantly, this court made that statement while analyzing the disputed issue of whether the constitutional challenge was reviewable under the rational basis or strict scrutiny tests. Lulay, 193 Ill. 2d at 473-76. This court did not categorically forbid any litigation that required a parental response because it constituted significant interference with the fundamental rights of parents. We merely recognized that due to the inherent burden that litigation over nonparental visitation places on parents\u2019 fundamental rights, strict scrutiny was the applicable test. Lulay, 193 Ill. 2d at 476.\nIn neither Lulay nor in Wickham did this court ever indicate that the burden imposed on parental rights by litigation over these issues was so great that the mere filing of a visitation petition was forbidden. Indeed, in each case this court conducted a full analysis despite the significant interference with parental rights caused by the extensive litigation. Wickham, 199 Ill. 2d at 314-22; Lulay, 193 Ill. 2d at 476-80. Finally, there is no hint in either case that our long-standing guideline that constitutional questions are considered only when the case cannot be disposed of on alternative grounds is inapplicable in nonparental visitation cases. We reject the mother\u2019s contention that the application of that guideline in this case impermissibly interferes with her parental rights.\nIt remains the mandate of this court that constitutional issues be considered only when the case may not be decided on nonconstitutional grounds. In re E.H., 224 Ill. 2d at 178-79. Here, the trial court prematurely examined the constitutional question raised in the mother\u2019s section 2 \u2014 619 motion to dismiss before resolving the nonconstitutional issue in her section 2 \u2014 615 motion. See In re E.H., 224 Ill. 2d at 178-79. Accordingly, we vacate the trial court\u2019s order and remand the cause for further proceedings to consider the nonconstitutional issues raised in the pleadings.\nIII. CONCLUSION\nWe hold that the mother\u2019s section 2 \u2014 619 motion to dismiss based on the constitutional invalidity of section 607(a \u2014 5) of the Act cannot properly be considered prior to the trial court\u2019s ruling on the nonconstitutional grounds raised in her section 2 \u2014 615 motion to dismiss. For this reason, the judgment of the circuit court of Peoria County is vacated and the cause remanded for further proceedings.\nVacated and remanded.", "type": "majority", "author": "JUSTICE KILBRIDE" } ], "attorneys": [ "Karen L. Kendall, of Heyl, Royster, Voelker & Allen, Drew L. Parker, of Parker & Halliday, and Gerald W. Brady, Jr., of Brady & Flanagan, all of Peoria, for appellants.", "Lisa Madigan, Attorney General, of Springfield (Gary Feinerman, Solicitor General, and Paul Racette, Assistant Attorney General, of Chicago, of counsel), for intervenorappellant.", "David L. Wentworth II, Charles J. Urban and Emily R. Vivian, of Hasselberg, Williams, Grebe, Snodgrass & Birdsall, of Peoria, for appellee." ], "corrections": "", "head_matter": "(No. 102619.\nJOSEPH J. MULAY et al., Appellants, v. KATHERINE MULAY, Appellee.\nOpinion filed March 22, 2007.\nRehearing denied May 29, 2007.\nKaren L. Kendall, of Heyl, Royster, Voelker & Allen, Drew L. Parker, of Parker & Halliday, and Gerald W. Brady, Jr., of Brady & Flanagan, all of Peoria, for appellants.\nLisa Madigan, Attorney General, of Springfield (Gary Feinerman, Solicitor General, and Paul Racette, Assistant Attorney General, of Chicago, of counsel), for intervenorappellant.\nDavid L. Wentworth II, Charles J. Urban and Emily R. Vivian, of Hasselberg, Williams, Grebe, Snodgrass & Birdsall, of Peoria, for appellee." }, "file_name": "0601-01", "first_page_order": 613, "last_page_order": 623 }