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People Ex Rel. Hartshorn v. Hartshorn

APRIL 2, 1959.

PEOPLE OF THE STATE OF ILLINOIS, EX REL. ANNIE MAE HARTSHORN, PETITIONER-APPELLEE,

v.

GEORGE D. HARTSHORN, RESPONDENT-APPELLANT.



Appeal from the County Court of Du Page county; the Hon. WILLIAM C. ATTEN, Judge, presiding. Affirmed.

JUSTICE CROW DELIVERED THE OPINION OF THE COURT.

This is an appeal from an order of the County Court of Du Page County, entered in a proceeding under The Uniform Reciprocal Enforcement of Support Act, ch. 68, Ill. Rev. Stats. 1957, par. 50 ff., ordering the respondent, George D. Hartshorn, father of a minor child, Gary Hartshorn, born August 6, 1951, to pay $25 per week for the care and support of the child.

A verified petition for support under the Act was filed by Annie Mae Hartshorn in the Superior Court of Clayton County, Georgia, — Georgia being a State in which this or a substantially similar reciprocal law had been enacted, and Georgia being the "initiating State" thereunder, the State of domicile or residence of the petitioner, — in substance alleging that, par. 1, she is the former wife of George D. Hartshorn, the respondent, they were married July 4, 1948, and she resides at College Park, Georgia; that, par. 2, she is the mother and the respondent is the father of the dependent Gary Hartshorn, born August 6, 1951; that, par. 3, she and the child are in need of and entitled to support from the respondent under the Act; that, par. 4, the respondent on and subsequent to May 3, 1957, refused and neglected to provide fair and reasonable support for her and the child according to his means and earning capacity, his profession is mechanical engineering, his average income is approximately $10,000 annually, a divorce decree of 1953 included an order for $25 weekly support for the child, he reduced the payments to $15 weekly in January, 1957, the last payment was May 3, 1957, she lacks any means of support, she must have at least $25 weekly for the child whose health is poor and who cannot be provided proper medical attention, and she and the child are forced to depend on her brother for necessities as she is unable to work; and that, par. 5, the respondent resides or is domiciled at Hinsdale, Du Page County, Illinois. A pauper's affidavit subscribed by her is attached to the petition.

A Judge of the Superior Court of Clayton County, Georgia, executed a certificate under the Act to the effect, inter alia, that the petition set forth facts from which it may be determined the respondent owes a duty to support, that the Court in the responding State may obtain jurisdiction of the respondent or his property, and that in the opinion of the Judge the respondent should be compelled to answer the petition.

The respondent, by a verified answer, answered the petition in the County Court of Du Page County, Illinois, — Illinois being the "responding State" and copies of the petition etc. having been filed there pursuant to the Act, — admitting pars. 1, 2, and 5, that the petitioner is his former wife, that Gary Hartshorn is their son, born August 6, 1951, and that the respondent resides or is domiciled at Hinsdale, Du Page County, Illinois; and denying pars. 3 and 4, that the petitioner and the child are in need of and entitled to support from the respondent under the Act, and that the respondent on and subsequent to May 3, 1957 refused and neglected to provide fair and reasonable support for the petitioner and the child according to his means and earning capacity, etc. In connection with his answer as to par. 4, the respondent attached a purported copy of a decree for divorce of January 12, 1954 of the Circuit Court of Cook County, Illinois in George Hartshorn, plaintiff v. Anna Mae Hartshorn, defendant, No. 53C15902, reciting the defendant was served by publication, defaulted, and the complaint was taken as confessed. The decree found the defendant had wilfully deserted the plaintiff October 30, 1952, there was one child, Gary Hartshorn, the defendant had taken the child to Georgia without the plaintiff's consent, thereby depriving the plaintiff of his visitation rights, and reserved the questions of the plaintiff's visitation rights and of support for the child. His answer to par. 4 further states that the Decree of divorce did not include any order for $25 weekly support or any other sum. As a paragraph 6 of his answer the respondent alleges as a further defense that he has often requested visitation rights, the petitioner has refused, the petitioner is not affording the child a proper home, and the respondent has requested the child be returned to him so he may properly care for him and have his rights of visitation.

The petitioner filed an "affidavit" in response to the respondent's answer, setting forth the mother's version of the circumstances of the separation of the parties, certain of her legal opinions, denies refusing visitations, and denies paragraphs 4 and 6 of the respondent's answer.

The petitioner did not testify personally, or by deposition, or by interrogatories, at the hearing. The foregoing "affidavit" of the mother was offered in evidence on behalf of the petitioner. It was objected to by the respondent. We can find nothing, however, to indicate any ruling by the Court one way or the other on the objection, or whether the "affidavit" was or was not received in evidence. We will not search the record for possible error. Where the cause is heard by a Judge alone, without a jury, we will assume, in the absence of some contrary indication, that the Court, so far as evidence is concerned, considered only competent evidence and disregarded incompetent offers. The opening statement of counsel for the respondent indicates the respondent's chief concern at the trial was with establishing the fact of the prior decree for divorce of January 12, 1954, that it contained no provision for any child support, and that the petitioner had previously been mailed a copy of the decree.

A review of the testimony of the respondent at the hearing reveals, so far as material, that on October 30, 1952, his then wife, together with the minor child, went to Atlanta, Georgia, to visit her sick father; that he visited her and the child at least three times while she was in Georgia; that he asked her to return to Chicago, but that she refused; that he subsequently filed suit for divorce against her in Chicago, charging desertion; and ultimately there was the decree. The respondent's statement of facts in his brief herein recites, in part:

"For a time after the divorce respondent voluntarily paid $25.00 per week support, and in January, 1957, paid $15.00 per week until May 3, 1957, when he stopped paying. . . . he stopped because he many times asked her to come back and desired custody of the child in Illinois, where he had remarried, had a home and two other children by his new wife."

The respondent's earnings in 1957 were about $15,000, he said, though at the time of the hearing in March, 1958, he said he was then starting his own business and did not have much earnings.

The respondent's theory is that he was wrongfully deprived of visitation with his minor child, that he now offers to make a home for the child in Illinois, and that he should not be compelled to pay support in Georgia where the child was taken without his consent and against his wishes; and, further, that the court failed to follow the procedural rules set forth in the Reciprocal Act for proof necessary to be made by the petitioner once her petition was controverted.

As to the respondent's point concerning the procedural rules set forth in the Act, he urges that after the petition for support was controverted by him the Court had no jurisdiction to entertain the petitioner's affidavit as evidence and was duty bound to demand testimony or legally admissible proof from the petitioner in Georgia.

The Act provides, in part, Ch. 68, Ill. Rev. Stats., 1957, par. 55, that:

". . . It shall not be necessary for the petitioner or the petitioner's witnesses to appear personally at such hearing, . . . If at such hearing the respondent controverts the petition and enters a verified denial of any of the material allegations thereof, the judge presiding at such hearing shall stay the proceedings and transmit to the judge of the court in the initiating ...


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