{ "id": 3598928, "name": "In re MARRIAGE OF TIMOTHY C. PURCELL, Petitioner-Appellant, and MICHELLE R. PURCELL, n/k/a Michelle R. Moore, Respondent-Appellee", "name_abbreviation": "In re Marriage of Purcell", "decision_date": "2005-03-08", "docket_number": "No. 4\u201404\u20140926", "first_page": "851", "last_page": "857", "citations": [ { "type": "official", "cite": "355 Ill. App. 3d 851" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "673 N.E.2d 461", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1996, "pin_cites": [ { "page": "469-70", "parenthetical": "Knecht, J., dissenting" } ], "opinion_index": 0 }, { "cite": "284 Ill. App. 3d 950", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1260429 ], "year": 1996, "pin_cites": [ { "page": "961", "parenthetical": "Knecht, J., dissenting" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/284/0950-01" ] }, { "cite": "354 Ill. App. 3d 790", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3218293 ], "year": 2004, "pin_cites": [ { "page": "798", "parenthetical": "Schmidt, J., dissenting" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/354/0790-01" ] }, { "cite": "159 N.E. 250", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1927, "pin_cites": [ { "page": "254" } ], "opinion_index": 0 }, { "cite": "328 Ill. 321", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5197818 ], "year": 1927, "pin_cites": [ { "page": "330" } ], "opinion_index": 0, "case_paths": [ "/ill/328/0321-01" ] }, { "cite": "805 N.E.2d 1177", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2004, "pin_cites": [ { "page": "1180" } ], "opinion_index": 0 }, { "cite": "209 Ill. 2d 52", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5461572 ], "year": 2004, "pin_cites": [ { "page": "57" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/209/0052-01" ] }, { "cite": "820 N.E.2d 392", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 2004, "pin_cites": [ { "page": "398-99" }, { "page": "399" }, { "page": "399-400" } ], "opinion_index": 0 }, { "cite": "213 Ill. 2d 105", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 8448318 ], "weight": 4, "year": 2004, "pin_cites": [ { "page": "114" }, { "page": "114" }, { "page": "115-16" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/213/0105-01" ] }, { "cite": "345 N.E.2d 493", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "pin_cites": [ { "page": "495" } ], "opinion_index": 0 }, { "cite": "63 Ill. 2d 128", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5426498 ], "year": 1976, "pin_cites": [ { "page": "133" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/63/0128-01" ] }, { "cite": "769 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 2002, "opinion_index": 0 }, { "cite": "199 Ill. 2d 309", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 58935 ], "year": 2002, "opinion_index": 0, "case_paths": [ "/ill-2d/199/0309-01" ] } ], "analysis": { "cardinality": 691, "char_count": 14263, "ocr_confidence": 0.69, "pagerank": { "raw": 5.12982294956584e-08, "percentile": 0.3226686189040365 }, "sha256": "37644134d14e3a4b2dda02fa93b18096efb568580df2585ad7b84219b7f89667", "simhash": "1:9b0af2253f4fdfa4", "word_count": 2292 }, "last_updated": "2023-07-14T21:57:27.413698+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "In re MARRIAGE OF TIMOTHY C. PURCELL, Petitioner-Appellant, and MICHELLE R. PURCELL, n/k/a Michelle R. Moore, Respondent-Appellee." ], "opinions": [ { "text": "JUSTICE KNECHT\ndelivered the opinion of the court:\nPetitioner, Timothy C. Purcell, appeals the order of the circuit court of Champaign County denying his petition for declaratory judgment as to his right to custody and visitation to Cody Purcell, n/k/a Cody Fitzsimmons. For the reasons that follow, we reverse.\nI. BACKGROUND\nTimothy and respondent, Michelle R. Purcell, n/k/a Michelle R. Moore, were married on March 25, 1991. On February 22, 1996, the circuit court entered a judgment of dissolution of the marriage. According to the judgment of dissolution and the marital settlement agreement incorporated therein, two children were born to the parties: Heather, born August 25, 1992; and Cody, born December 24, 1994.\nThe marital settlement agreement included a joint-parenting agreement in which the physical and legal custody of the children would be shared jointly by Timothy and Michelle, with Timothy being designated as primary residential parent. The parties agreed to alternate major holidays and that Timothy would have the children on Father\u2019s Day and his birthday, with Michelle getting the children Mother\u2019s Day and her birthday. They agreed to share the children\u2019s birthdays. The parties further agreed Michelle would have rights of reasonable and liberal visitation as worked out between the parties. Because the parties had cooperated in working out maximum visitation, they desired no set or formal visitation hours and dates be designated in the agreement. The issue of child support was reserved, and Timothy agreed to carry the children as dependents under his major medical hospitalization insurance coverage.\nOn April 28, 1998, Michelle filed a motion to modify custody and support. The parties appeared in court and represented the motion to modify had been settled and the cause was continued for filing of settlement documents, which were never filed. On September 18, 1998, an order was entered requiring Timothy to pay support for both children.\nOn July 6, 1999, Michelle filed another petition for modification of child support and custody. On August 6, 1999, the trial court heard and approved an oral stipulation of the parties modifying the joint-parenting agreement so Michelle would be designated the primary custodial parent for both children \u201csubject to time[-]sharing agreement which has been entered into by and between the parties. Written modified custody order to be entered.\u201d Timothy tendered to the court documentation as to his health/hospitalization coverage for both children. Michelle\u2019s counsel moved to continue the hearing to investigate the insurance information provided by Timothy. The court allowed the motion. No written order was ever entered as to the modification to the joint-parenting agreement.\nOn September 10, 2001, Michelle filed a pro se petition to modify, suspend, or abate orders for support. The prayer of the petition requested \u201cthat the said order for support and/or arrearage/ reimbursement satisfaction be modified, suspended[,] or abated.\u201d She alleged a substantial change in circumstances:\n\u201cTimothy and I agreed on Cody being raised by Timothy Purcell even though the child might not be his. The suspected father passed away back in June and the parents of the suspected father wanted to see if the child was the suspected father\u2019s. So I consulted Tim about this[;] he agreed. The DNA showed [Cody] to be the [biological son of the man] that passed away. [Decedent] had SSD and the family wants Cody to get it. So I was wanting Tim to stop paying so Cody can get the benefits from his biological father.\u201d\nAt the October 4, 2001, hearing on the petition, neither party appeared, and the matter was continued generally. However, that same day, the trial court entered an order of abatement. On October 11, 2001, again, as appears in the record, apparently without the appearance of either party, the court entered an amended order of abatement. Both orders state they were prepared by the \u201cChild Support Enforcement Alliance\u201d and recite the State, representing the Illinois Department of Public Aid, has no objection to entry of the order. The amended order of abatement states:\n\u201c1. That the [Respondent is not the natural father of the minor, Cody C. Purcell, DOB: December 24, 1994, pursuant to genetic testing.\n2. That said testing proves the father to be Thomas Fitzsimmons with a Combined Paternity Index of 358,761 to [1].\n3. That the [Respondent is still required to pay support for the minor, Heather Purcell, DOB: August 25, 1992, as previously ordered.\u201d\nThe order was silent as to custody, visitation, or any other issue.\nAfter the entry of the abatement order, Michelle started referring to Cody as \u201cCody Fitzsimmons,\u201d but Timothy\u2019s visits with Cody continued as they had been. There were occasional disputes over holiday visitation. Although the exact details are unclear from this record, in August 2003, following an incident at Michelle\u2019s house, Timothy filed for some sort of protective order. He also filed a motion to modify custody as to Heather. In response to Timothy\u2019s motion to modify custody, the parties entered a stipulation in which, for the first time, Timothy was given specific dates and times for visitation as to Heather only. In regard to Cody, the stipulation provided:\n\u201cThe parties acknowledge that Cody Fitzsimmons, a child born during the parties\u2019 marriage, is not the biological child of the [petitioner. By signing this stipulation, the [p]etitioner is not waiving his claim, if any, for visitation with Cody Fitzsimmons.. The [Respondent, however, objects to [petitioner's having standing to seek visitation with Cody in light of the fact that he is not Cody\u2019s biological father.\u201d\nOn July 16, 2004, Timothy filed a \u201cPetition for Declaratory Judgment: Petitioner\u2019s Custody and Visitation Rights as to the Minor Child, Cody.\u201d In this verified petition, Timothy stated he had no objection to paying child support for Cody and further stated his failure to object to the order of October 11, 2001, was based on Michelle\u2019s representation that his nonsupport of Cody was required to permit her to receive social security benefits on Cody\u2019s behalf greater than Timothy\u2019s statutory obligations for two children. The petition requested an order stating Timothy retained parental rights as to both custody and visitation regarding Cody, requiring Michelle to comply with those rights, and confirming the existing visitation order as to Heather entered on May 6, 2004, was also applicable to Cody. The petition also requested a determination of Timothy\u2019s child-support obligations as to Cody.\nOn September 27, 2004, the trial court held a hearing on the petition. Timothy testified to the suspicions of the parties as to Cody\u2019s paternity at the time of dissolution, the original agreed order and amended order as to custody and visitation, the circumstances surrounding the order of October 11, 2001, abating child support, his regular visitations with Cody throughout the years, and the difficulties he recently encountered regarding that same visitation. Michelle did not testify, and Timothy\u2019s testimony was unrebutted. The trial court found the order of October 11, 2001, abating child support not only vacated Timothy\u2019s parental responsibilities (child support) to Cody but also his parental rights (visitation). The court stated the trial court in its order found Timothy was not Cody\u2019s biological father and, therefore, the natural implication was he had no visitation rights and could only receive them by agreement with Michelle. The court then relied on portions of Wickham v. Byrne, 199 Ill. 2d 309, 769 N.E.2d 1 (2002), which discussed a parent\u2019s right to determine visitation issues and right not to have unwanted visitation foisted upon him or her by a court.\nThis appeal followed.\nII. ANALYSIS\nTimothy contends the trial court erred in finding his visitation rights were extinguished by the order abating his child-support obligations in regards to Cody. While Timothy admits Michelle, as Cody\u2019s parent, has the right to decide visitation issues for him, he argues the agreed order as to custody and visitation entered by the court in this case was a binding agreement on the parties and is still in force.\nWe note first Timothy has filed an appellate brief and Michelle has not. A court of review is not compelled to serve as an advocate for an appellee and is not required to search the record for ways to sustain the trial court\u2019s judgment. On the contrary, where the record is simple, the claimed errors are such that if they can be decided based on the appellant\u2019s brief and the record supports such a finding, the trial court\u2019s judgment may be reversed. First Capitol Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133, 345 N.E.2d 493, 495 (1976). Accordingly, we proceed to the merits of this appeal.\nSince the trial court\u2019s order denying Timothy\u2019s petition for declaratory judgment, our supreme court has decided In re M.M.D., 213 Ill. 2d 105, 820 N.E.2d 392 (2004). In that case, grandparents (parents of the deceased mother) were given visitation rights by the father, and the trial court entered a consent decree to that effect. Later, the father tried to void the agreed visitation based on Wickham. The court found he could not do so. While the father could not be required to grant grandparent visitation, once he had agreed to such visitation and the agreement was preserved in a consent decree, he could not void the agreement because Wickham did not apply to consent decrees. M.M.D., 213 Ill. 2d at 114, 820 N.E.2d at 398-99.\nA consent decree is based on an agreement between the parties and is contractual in nature. It is a recordation of the parties\u2019 private agreement, not an adjudication of their rights. Once such a decree has been entered, it is generally binding on the parties and cannot be amended or varied without the consent of each party. M.M.D., 213 Ill. 2d at 114, 820 N.E.2d at 399. An exception exists where the contract is void as contrary to public policy. The agreement will not be held void as contrary to public policy unless it is \u201c \u2018clearly contrary to what the constitution, the statutes [,] or the decisions of the courts have declared to be the public policy or unless [it is] manifestly injurious to the public welfare.\u2019 \u201d H&M Commercial Driver Leasing, Inc. v. Fox Valley Containers, Inc., 209 Ill. 2d 52, 57, 805 N.E.2d 1177, 1180 (2004), quoting Schumann-Heink v. Folsom, 328 Ill. 321, 330, 159 N.E. 250, 254 (1927).\nThe court in M.M.D. found that while the constitution prohibited the state from forcing parents to give visitation rights to grandparents because a judge deemed it to be appropriate, nothing prohibits a parent\u2019s voluntary decision to bestow visitation privileges on his child\u2019s grandparents. In fact, the principles enunciated in Wickham require that a parent\u2019s voluntary visitation decision be honored. If parents can restrict visitation, they can also grant it, and the courts are obligated to uphold voluntary visitation agreements made by parents. M.M.D., 213 Ill. 2d at 115-16, 820 N.E.2d at 399-400.\nWe agree with Timothy the principles enunciated in M.M.D. should be applied here. Because Michelle agreed to visitation and this agreement was memorialized in the joint-parenting agreement and its later voluntary modification on August 6, 1999, it should be enforced as a contract unless Michelle can show a contractual reason for voiding or rescinding it. She has not done so. The record indicates both Michelle and Timothy may have had questions about his paternity in regard to Cody when they entered into the joint-parenting agreement in 1996, but Michelle still voluntarily entered into the agreement. Nothing was done to determine Cody\u2019s actual paternity until 2001 when Michelle wanted to gain more \u201cchild support\u201d for Cody.\nThe order abating child support entered by the trial court on October 11, 2001, did not address Timothy\u2019s agreed-upon visitation rights with Cody. Nor did the finding of paternity recited within it automatically terminate those rights. Thus, Timothy\u2019s agreed-upon visitation rights as to Cody are still intact and enforceable. Michelle had superior knowledge of Cody\u2019s paternity when she not only agreed to joint parenting with Timothy but, in the original order, agreed Timothy should be Cody\u2019s primary custodial parent. If there was uncertainty as to paternity at the time of dissolution, it should have been resolved then and appropriate custody, visitation, and support orders entered.\nWe note the petition for declaratory judgment requested that a determination be made not only as to visitation but also as to custody and support. We reverse the trial court\u2019s denial of Timothy\u2019s petition for declaratory judgment as to visitation only. If further proceedings ensue in this case, issues of custody and support may require further consideration by the court.\nIn the event of further proceedings on visitation, where an agreement as to visitation has been reached and there is presumed parentage, any later dispute over visitation should be resolved under a best-interest standard, not in a poorly drafted order designed solely to get greater economic benefits for the child. The best interest of the child should be the determinative factor even in the case of stepparent visitation. See In re Marriage of Engelkens, 354 Ill. App. 3d 790, 798 (2004) (Schmidt, J., dissenting). \u201cFatherhood requires more than biol ogy,\u201d and parenthood is a social, psychological, and intentional status. In re Parentage of Unborn Child Brumfield, 284 Ill. App. 3d 950, 961, 673 N.E.2d 461, 469-70 (1996) (Knecht, J., dissenting). A decade after Cody\u2019s birth, Timothy seeks to continue the status he chose to accept long ago.\nIII. CONCLUSION\nWe reverse the trial court\u2019s judgment denying the petition for declaratory judgment insofar as it relates to visitation. We express no opinion on the other issues raised in the petition.\nReversed.\nSTEIGMANN and APPLETON, JJ., concur.", "type": "majority", "author": "JUSTICE KNECHT" } ], "attorneys": [ "Holly W Jordan, of Mahomet, for appellant.", "No brief filed for appellee." ], "corrections": "", "head_matter": "In re MARRIAGE OF TIMOTHY C. PURCELL, Petitioner-Appellant, and MICHELLE R. PURCELL, n/k/a Michelle R. Moore, Respondent-Appellee.\nFourth District\nNo. 4\u201404\u20140926\nOpinion filed March 8, 2005.\nHolly W Jordan, of Mahomet, for appellant.\nNo brief filed for appellee." }, "file_name": "0851-01", "first_page_order": 869, "last_page_order": 875 }