dissenting:
I respectfully dissent. When these parties divorced in 1994, petitioner was given permission to remove the children from Illinois to Indiana. Petitioner now seeks permission to remove the children from Indiana to Texas. It is my opinion that the trial court lacked both the subject-matter jurisdiction to hear this matter and the statutory authority to enter an order approving or denying the request. In the alternative, if the majority is correct in its contention that the trial court could consider this matter under the guise of a motion to modify visitation, the case should be remanded for consideration under the standards applicable to modification of visitation'rather than the standards applicable to removal.
The majority first asserts that the trial court had jurisdiction over this matter pursuant to the Illinois Act.' However, the Illinois Act, by title-and definition-, ’ is applicable only to matter’s involving child custody disputes. 750 ILCS 35/1, 2 (West 1996). The Illinois Act’s only application to removal matters is to “deter abductions and other unilateral removals of children undertaken to obtain custody awards.” 750 ILCS 35/2(a) (5) (West 1996); see also Breyley, 247 Ill. App. 3d at 494, 617 N.E.2d at 429. The instant case does not involve a dispute concerning the custody of the parties’ children. Therefore, the trial court cannot find authority for its actions under the Illinois Act.
The majority apparently looks to the Illinois Act for the trial court’s authority because it recognizes that the authority cannot be found in the Illinois statute concerning the actual issue in this case— the interstate removal of children. Section 609(a) of the Marriage Act bestows upon a court the authority to determine whether a party having custody of a minor child may remove the child “from Illinois.” 750 ILCS 5/609(a) (West 1996). This is the sole grant of authority to Illinois courts with regard to removal issues. To illustrate the limitations of this language, assume a custodial mother has received leave of court to remove her children from Illinois to North Carolina. Several years later, she decides to move to South Carolina. Nothing in section 609(a), or elsewhere in the Marriage Act, would require the mother to seek an Illinois court’s permission before making such a move. More important, nothing in the Marriage Act would give an Illinois court the authority to determine whether the mother may move her children from North Carolina to South Carolina. A move from Indiana to Texas involves different geographic locations, but the same legal principles.
The majority relies on Kitchen, 126 Ill. App. 3d 192, 467 N.E.2d 344. However, unlike the instant case, Kitchen was a custody dispute that involved the Illinois Act. Moreover, in Kitchen, a pending petition was filed by the custodial parent in an Illinois court seeking leave to remove the children from Illinois to Nebraska, when the noncustodial parent took the children from Nebraska to Texas without permission from the court. Kitchen is therefore inapposite.
The majority also cites Ballegeer, 236 Ill. App. 3d 941, 602 N.E.2d 344. While factually similar to the instant case, Ballegeer does not directly address the issue under consideration here. Ballegeer involved a petition to remove children from Iowa to Colorado. However, Ballegeer does not discuss the court’s authority to allow or deny the move. As in the instant case, it appears the parties and the court simply assumed such authority existed. Ballegeer is an example of a court doing what the trial court did in the instant case. Unfortunately, however, it does not provide us with any guidance on whether the court actually had the authority to decide the issue.
Similarly, this.court’s .recent decision in Arulpragasam is not dis-positive of the issue in the instant case with regard to Illinois law, as it concerned both custody and removal questions, was brought under the Illinois Act, and involved removal from Massachusetts to Illinois. Arulpragasam, 304 Ill. App. 3d at 143-44, 709 N.E.2d at 728-29. Therefore, it offers no guidance on situations in which Illinois is neither the current residence of the children nor the state to which permission for removal is sought. However, the procedural history of the parties in the Massachusetts court, as outlined in our decision in Arulpragasam, is instructive. The Massachusetts court found that it could exercise jurisdiction over the matter pursuant to the Illinois Act. However, because the facts of the case did not satisfy the requirements of the Massachusetts removal statute, the court decided it was without authority to either grant or deny the mother’s request for, permission to remove the children permanently to Illinois. Arulpragasam, 304 Ill. App. 3d at 143, 709 N.E.2d at 728. Similarly, Illinois courts lack statutory authority to rule on this particular removal issue.
I focus on statutory authority because the specific grant of statutory authority must be identified in dissolution actions. Dissolution of marriage and collateral matters are entirely statutory in origin and nature. In re Marriage of Henry, 156 Ill. 2d 541, 544, 622 N.E.2d 803, 805 (1993). No common law governs dissolution. In re Support of Josic, 78 Ill. App. 3d 347, 350, 397 N.E.2d 204, 207 (1979). The circuit court’s jurisdiction in dissolution matters is conferred only by statute. The court may not rely on general equity powers. Ottwell v. Ottwell, 167 Ill. App. 3d 901, 908, 522 N.E.2d 328, 332 (1988).
Statutory considerations extend not only to the authority of the court to enter the order entered below, but also to the court’s subject-matter jurisdiction. Where the legislature has intended a particular requirement to serve as a limitation on the authority of the court, failure to comply with the statute is an action outside the subject-matter jurisdiction of the court. In re Marriage of Vernon, 253 Ill. App. 3d 783, 788, 625 N.E.2d 823, 827 (1993); In re Marriage of Florence, 260 Ill. App. 3d 116, 121, 632 N.E.2d 681, 685 (1994). The issue of subject-matter jurisdiction cannot be waived by the parties. Currie v. Lao, 148 Ill. 2d 151, 157, 592 N.E.2d 977, 979 (1992).
The majority also attempts to support the trial court’s authority by viewing the proceedings below as an action to modify the visitation granted in the original dissolution order. This characterization of the proceedings is difficult to reconcile with the record. The petition was brought as a petition to remove pursuant to section 609(a) of the Marriage Act. The evidence, and arguments of counsel were-tailored to the requirements of section 609(a). The order of the .trial court cited section 609(a) and specifically- addressed the elements to be considered in removal cases under section 609(a) as identified by the supreme court in Eckert, 119 Ill. 2d at 326-27, 518 N.E.2d at 1045-46. In fact, the majority relies upon the Eckert elements in its review of the merits of the trial court’s decision. The Eckert “plus” standards applied by this court create a near-insurmountable obstacle to overcome and unnecessarily impair and infringe upon the custodial parent’s discretion to choose where he or she wants to work and live and raise the children.
Moreover, the question of visitation was merely tangential to the removal question litigated below. However, if the trial court’s authority to decide this case was based on its authority to modify visitation, this matter should be remanded. Upon remand, the parties can litigate the visitation issue pursuant to visitation statutes and standards rather than having a visitation issue decided on the removal statute and stringent removal standards.