In re Marriage of Schoen

Overview

This Rule 23 order affirms the dismissal of both parties' dissolution petitions for lack of subject matter jurisdiction under 750 ILCS 5/401(a). The court held that neither spouse satisfied Illinois's 90-day residency requirement because both had permanently relocated to Texas before filing. The appellate court, while questioning the continued viability of the jurisdictional residency doctrine, found itself bound by McFarlin v. McFarlin and its progeny.

Key Facts

• Parties married in Illinois (2012), lived in Glenview with minor child J.S. until March 2022
• Both parties moved to Texas on March 21, 2022; child enrolled in Texas school late March 2022
• John filed dissolution petition April 18, 2022, alleging both parties were Illinois residents
• Michelle filed counter-petition May 5, 2022, also alleging Illinois residency
• Parties entered agreed Allocation Judgment (August 2022) acknowledging Texas residence and restricting relocation from Texas
• Parties signed a "Jurisdiction Agreement" purporting to confer exclusive jurisdiction on Cook County for financial matters
• John waited 18 months before denying Illinois residency and moving to dismiss

Procedural History

Appeal from Circuit Court of Cook County (No. 2022 D 3108), Judge Michael Forti presiding. First District Appellate Court, Fourth Division. Following evidentiary hearing on residency, trial court granted John's voluntary dismissal of his petition and dismissed Michelle's counter-petition for lack of subject matter jurisdiction. Michelle appealed.

Holdings

1. Primary holding: The residency requirement in Section 401(a) is jurisdictional under binding precedent (McFarlin v. McFarlin). Neither party satisfied the 90-day residency requirement. Standard: De novo review for subject matter jurisdiction and statutory interpretation.
2. Residency finding: Trial court's determination that Michelle abandoned Illinois residency by March 2022 was not against the manifest weight of the evidence. Standard: Manifest weight of the evidence.
3. Voluntary dismissal: John properly exercised his right under 735 ILCS 5/2-1009(a) to dismiss his own petition.
4. Jurisdiction Agreement: Unenforceable because parties cannot confer subject matter jurisdiction by contract.

Legal Principles

• 750 ILCS 5/401(a): Requires 90-day residency before filing; Section 403(a) explicitly labels this "jurisdictional"
• McFarlin v. McFarlin, 384 Ill. 428 (1943): Courts have no inherent divorce jurisdiction; power derives solely from statute
• Strukoff v. Strukoff, 76 Ill. 2d 53 (1979) and In re Marriage of Henry, 156 Ill. 2d 541 (1993): Reaffirm statutory nature of dissolution jurisdiction
• Maksym v. Board of Election Com'rs, 242 Ill. 2d 303 (2011): Residency requires physical presence plus intent to remain; abandonment determined by actions
• Court acknowledged tension with Belleville Toyota and McCormick v. Robertson (constitutional jurisdiction principles) but found itself bound by unreversed supreme court precedent

Practical Implications

• Verify residency thoroughly: Confirm client's 90-day Illinois residency before filing; document physical presence and intent
• Challenge residency early: Raise residency defects immediately—the court criticized John's 18-month delay
• Jurisdiction agreements are ineffective: Parties cannot contractually confer subject matter jurisdiction for dissolution
• Allocation judgments don't cure defects: Even agreed orders on parenting don't establish dissolution jurisdiction
• Watch for relocation timing: When clients relocate near separation, carefully document when residency shifted
• Potential counterargument: The court expressly "question[ed] the continued viability" of McFarlin—practitioners may preserve constitutional arguments for supreme court review

Limitations/Caveats

• Rule 23 order: Not precedent except under limited circumstances per Rule 23(e)(1)
• Significant dicta: The court's statement questioning McFarlin's viability post-Belleville Toyota is dicta but signals potential future change
• Duress finding not reviewed: Court declined to address alternative holding that Jurisdiction Agreement was signed under duress
• UCCJEA distinguished: This case addresses dissolution jurisdiction, not child custody jurisdiction under UCCJEA