{ "id": 2943120, "name": "In re MARRIAGE OF CONNIE DILE, f/k/a Connie Lundak, Petitioner, and FRANK LUNDAK, Respondent-Appellee (Daniel J. Krietemeyer et al., Intervenors-Appellants)", "name_abbreviation": "In re Marriage of Dile", "decision_date": "1993-08-02", "docket_number": "No. 5 \u2014 92\u20140331", "first_page": "683", "last_page": "686", "citations": [ { "type": "official", "cite": "248 Ill. App. 3d 683" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "384 N.E.2d 997", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "1002" } ], "opinion_index": 0 }, { "cite": "67 Ill. App. 3d 760", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3311897 ], "pin_cites": [ { "page": "766" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/67/0760-01" ] }, { "cite": "531 N.E.2d 102", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "pin_cites": [ { "page": "105" }, { "page": "105" }, { "page": "105" }, { "page": "105" } ], "opinion_index": 0 }, { "cite": "176 Ill. App. 3d 421", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3587935 ], "weight": 4, "pin_cites": [ { "page": "425" }, { "page": "425" }, { "page": "425" }, { "page": "427" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/176/0421-01" ] }, { "cite": "491 N.E.2d 1150", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "1152" }, { "page": "1152" }, { "page": "1152" } ], "opinion_index": 0 }, { "cite": "112 Ill. 2d 48", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5539137 ], "weight": 3, "pin_cites": [ { "page": "52" }, { "page": "53" }, { "page": "53" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/112/0048-01" ] } ], "analysis": { "cardinality": 410, "char_count": 8260, "ocr_confidence": 0.759, "pagerank": { "raw": 1.5023217790936578e-07, "percentile": 0.6658872775980376 }, "sha256": "e45db889a1fc384d2a67033020ea882e2f906e9e9790202d3d95152a6151a0ae", "simhash": "1:8e6b2174bba99551", "word_count": 1358 }, "last_updated": "2023-07-14T21:04:37.974036+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re MARRIAGE OF CONNIE DILE, f/k/a Connie Lundak, Petitioner, and FRANK LUNDAK, Respondent-Appellee (Daniel J. Krietemeyer et al., Intervenors-Appellants)." ], "opinions": [ { "text": "JUSTICE MAAG\ndelivered the opinion of the court:\nOn February 27, 1992, the circuit court of Madison County disnissed a petition for custody brought by intervenors, Daniel J. Krietemeyer and Juliann R. Krietemeyer, the maternal grandparents of AnIrea Lundak. The circuit court dismissed the Krietemeyer petition for justody under section 601(b)(2) of the Illinois Marriage and Dissolution of Marriage Act (Act) (Ill. Rev. Stat. 1991, ch. 40, par. 101 et seq.). The only question before us is whether the circuit court erred in lismissing for lack of standing the Krietemeyers\u2019 petition for custody.\nIn January 1982, the circuit court entered a judgment of dissolution of marriage between Connie Lundak and Frank Lundak. Subsequently, Connie was awarded custody of the only child of the parties, Andrea Lundak. Frank was ordered to pay child support and was awarded visitation, but no set schedule for visitation was provided.\nSubsequent to the divorce, Connie and Andrea lived with Connie\u2019s parents, the interveners, Daniel J. and Juliann R. Krietemeyer, until 1983. In 1987, Connie remarried, and Andrea resided with Connie and her second husband. Andrea attended Edwardsville schools.\nFrank maintained contact with Andrea after the divorce even after he moved to Chicago in January 1987 and subsequently to Georgia in November 1987. Frank\u2019s moves were necessitated due to job transfers. At times Connie resisted Frank\u2019s visitation with Andrea. Frank paid child support for Andrea, although at one point he became behind in this obligation during a period when he was unemployed.\nOn December 3, 1991, Connie threatened Andrea with a gun, then committed suicide. The Krietemeyers took Andrea to their home in Collinsville, enrolled her in Collinsville High School, and scheduled counseling for the child. Immediately after Connie\u2019s death, Frank came to Illinois to take Andrea back to his home in Georgia. The Krietemeyers refused to relinquish Andrea. It is undisputed by the parties that Frank left Andrea with the Krietemeyers because of the trauma the child had suffered as a result of Connie\u2019s suicide.\nOn July 5, 1991, the Krietemeyers filed their petition for custody, alleging that subsequent to Connie\u2019s death \u201cthe minor child has resided almost exclusively with the interveners.\u201d In their petition, they also allege that Andrea\u2019s best interests necessitate that she be placed with the Krietemeyers.\nOn December 10, 1991, Frank filed a motion to dismiss the Krietemeyers\u2019 petition for custody, premised upon the Krietemeyers\u2019 alleged lack of standing to seek custody of Andrea. A hearing was held on January 27, 1992, solely on the issue of standing. At said hearing, Juliann Krietemeyer testified that Frank had consistently made it known since Connie\u2019s death that he wanted custody of Andrea. Mrs. Krietemeyer further testified that she never believed that Frank would voluntarily give up his right to Andrea\u2019s legal custody. Mrs. Krietemeyer admitted that Frank left Andrea with the Krietemeyers only because of the trauma of Connie\u2019s death.\nOn February 27, 1992, the trial court entered an order finding that the Krietemeyers did not have standing to bring their petition, and the court granted Frank\u2019s motion to dismiss. Frank filed a petition for writ of habeas corpus on March 31, 1992, which was granted to become effective when Andrea\u2019s school year ended. The instant appeal ensued.\nThe only issue raised by the Krietemeyers is whether the trial court erred in granting Frank\u2019s motion to dismiss their petition for custody of Andrea for lack of standing.\nSection 601(b)(2) of the Act provides that \u201c[a] child custody proceeding is commenced in the court *** by a person other than a parent, by filing a petition for custody of the child in the county in which he is permanently resident or found, but only if he is not in the physical custody of one of his parents.\u201d Ill. Rev. Stat. 1991, ch. 40, par. 601(b)(2).\nThe Illinois Supreme Court has held that nonparents proceeding under section 601(b)(2) must first satisfy a standing requirement before the court may consider them for the legal custody of a child. (In re Custody of Peterson (1986), 112 Ill. 2d 48, 52, 491 N.E.2d 1150, 1152.) As this court has previously held, the meaning of the term \u201cstanding\u201d as used in Peterson is distinct and involves the threshold issue of whether a nonparent has custody of a child for purposes of satisfying the requirements of section 601(b)(2). In re Custody of McCuan (1988), 176 Ill. App. 3d 421, 425, 531 N.E.2d 102, 105.\nTo satisfy the standing requirement under section 601(b)(2), the nonparent must show that the child is \u201c \u2018not in the physical custody of one of his parents.\u2019 \u201d (McCuan, 176 Ill. App. 3d at 425, 531 N.E.2d at 105, quoting Peterson, 112 Ill. 2d at 53, 491 N.E.2d at 1152.) When the nonparent meets this requirement, the court may then consider the nonparent\u2019s claim for the legal custody of the child under the \u201c \u2018best interest of the child\u2019 \u201d standard. McCuan, 176 Ill. App. 3d at 425, 531 N.E.2d at 105, quoting Peterson, 112 Ill. 2d at 53, 491 N.E.2d at 1152.\nOur supreme court\u2019s decision in Peterson clearly supports Frank\u2019s contention that the Krietemeyers did not have custody of the child on July 5, 1991, and thus did not have standing to bring an action under section 601(b)(2). In Peterson, the divorced mother of an infant child resided in her parents\u2019 home with the child. The mother died after a lengthy illness. During this illness, the maternal grandparents provided most of the care for the child. After the death of the mother, the maternal grandparents and the natural father both sought custody of the child. The father moved to dismiss the grandparents\u2019 petition for modification of custody on the grounds that the grandparents lacked standing to pursue the action under the statute.\nThe Illinois Supreme Court held that the maternal grandparents did not have standing under section 601(b)(2). The court found that when the mother died, the father gained legal custody of the child, even though he did not have physical custody. The grandparents\u2019 refusal to give the father physical custody of the child did not confer custody on the grandparents.\nNonparents must show that the parent has relinquished \u201clegal custody\u201d of the child, rather than merely physical possession, before satisfying the standing requirement of section 601(b)(2). (McCuan, 176 Ill. App. 3d at 427, 531 N.E.2d at 105.) In the case before us, the Krietemeyers have based their allegation of standing solely on the fact that Andrea resided with the Krietemeyers after her mother\u2019s death until the filing of the Krietemeyers\u2019 petition in July 1991. There is absolutely no dispute that Frank consistently made it known that he wanted physical custody of Andrea after Connie\u2019s death. Mrs. Krietemeyer admitted that she believed that Frank would never voluntarily relinquish his right to Andrea\u2019s legal custody and that he left Andrea with the Krietemeyers only because of the trauma of Connie's death. It is apparent from the record that Frank agreed that the Krietemeyers maintain \u201ctemporary care\u201d of Andrea, rather than that he agreed to relinquish legal custody. The Krietemeyers\u2019 refusal to allow Andrea to move to Georgia with Frank and Frank\u2019s agreement to allow the child to remain temporarily with the Krietemeyers did not confer custody with the Krietemeyers.\nA court of review will not disturb an order of the trial court in a custody dispute unless the order is against the manifest weight of the evidence or unless a manifest injustice will result. (De Franco v. De Franco (1978), 67 Ill. App. 3d 760, 766, 384 N.E.2d 997, 1002.) Since it is manifest from the record that Frank did not relinquish custody to the Krietemeyers for purposes of satisfying section 601(b)(2), we affirm the trial court\u2019s order dismissing the custody petition.\nAffirmed.\nLEWIS and GOLDENHERSH, JJ., concur.", "type": "majority", "author": "JUSTICE MAAG" } ], "attorneys": [ "James M. Drazen, of Troy, for appellants.", "Margaret J. Walsh, of Wimmer, Stiehl & Montalvo, P.C., of Belleville, for appellee." ], "corrections": "", "head_matter": "In re MARRIAGE OF CONNIE DILE, f/k/a Connie Lundak, Petitioner, and FRANK LUNDAK, Respondent-Appellee (Daniel J. Krietemeyer et al., Intervenors-Appellants).\nFifth District\nNo. 5 \u2014 92\u20140331\nOpinion filed August 2, 1993.\nJames M. Drazen, of Troy, for appellants.\nMargaret J. Walsh, of Wimmer, Stiehl & Montalvo, P.C., of Belleville, for appellee." }, "file_name": "0683-01", "first_page_order": 703, "last_page_order": 706 }