APPEAL from the Circuit Court of Du Page County; the Hon.
WILLIAM BAUER, Judge, presiding.
MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:
In this habeas corpus action the circuit court of Du Page County awarded the custody of Tina Lehman, now ten years old, to the petitioner, Arthur J. Lehman, the child's father. The respondent, Constance R. Lehman, the child's mother and the former wife of the petitioner, has appealed directly to this court. The issue that is now before us concerns the orderly allocation of jurisdiction among the circuit courts of this state.
When the parties were divorced in South Carolina in 1963, the Domestic Relations Court of Sumpter County, South Carolina, awarded custody of the child to her mother. In March of 1964, however, the court ordered the child's custody transferred to her father, and adhered to that determination in its order of September 8, 1964. On November 21, 1964, while the child was in the care of her mother under visitation privileges granted by the court, the mother took the child from South Carolina in violation of the court's decree. She brought the child to Illinois, her own former home, and enrolled the child in school in Bensenville in Du Page County. Shortly thereafter, the father followed them to this state.
On December 14, 1964, the mother filed an action in the circuit court of Cook County, asking that the child's custody be transferred to her. Her complaint alleged that she and the child were residents of Cook County and that the requested change in custody was justified by circumstances that had arisen after the most recent order of the South Carolina court. On December 15, 1964, the circuit court of Cook County issued an ex parte temporary injunction, forbidding the father from interfering with the child's custody until further order of the court. On December 17, 1964, copies of the temporary injunction were mailed to the father's attorneys, both in Illinois and in South Carolina.
On December 30, 1964, summons in the Cook County action was served upon the father. On December 29, 1964, the habeas corpus action that is now before us was filed in the circuit court of Du Page County. The writ was returned on December 30, the same day that the summons was served in the Cook County proceedings. The record does not reveal in which lawsuit service of process was first effected. The mother filed a motion to dismiss the habeas corpus petition on the ground that a prior action was pending between the parties, (Ill. Rev. Stat. 1963, chap. 110, par. 48(1)(c),) but the circuit court of Du Page County denied the motion. After hearing evidence, that court found that the allegations of residence in the Cook County complaint were false and fraudulent; that when the action was filed in Cook County the mother and child were residents of Du Page County; "and that therefore the circuit court of Cook County had no jurisdiction to enter said order and the same is hereby declared to be null and void." The court ordered that custody of the child be relinquished to the father. The central issue presented on this appeal is whether the circuit court of Du Page County was correct in overruling the motion to dismiss, or whether the action in DuPage County should have abated because of the pendency of the Cook County action.
In the trial court the Cook County proceeding was disregarded solely because the allegations of residence in the complaint filed in that court were found to be false and fraudulent. To support the judgment upon appeal, the further contention is advanced in this court that the Cook County proceeding was "not recognized nor sanctioned by any law of this state." We turn first to a consideration of that contention, which is based upon Thomas v. Thomas, 250 Ill. 354, decided by this court in 1911. The court there held that a cross-bill which sought only that the court determine the custody of minor children whose parents were still married could not be maintained. In the course of its opinion, the court used language which strongly implied that apart from actions of habeas corpus, jurisdiction with respect to matters of child custody was limited to that granted by statute.
A reading of the Thomas case without regard to the procedural situation before the court would, however, render it inconsistent with the prior case of Cowles v. Cowles, 8 Ill. 435, in which this court permitted a custody suit between parents who had been divorced. It is true that the Cowles opinion does not reveal whether the trial court had issued the original divorce decree, so that its jurisdiction might have been sustained under the Divorce Act. (Rev. Laws of 1827, par. 6, p. 182; Ill. Rev. Stat. 1963, chap. 40, par. 19.) Rather than base its decision on the statute, the court declared that the Divorce Act had added nothing to the ancient power of courts of equity to determine custody cases. It upheld the decree of the trial court on the basis of "the power of the court of Chancery to interfere with and control, not only the estates but the persons and custody of all minors within the limits of its jurisdiction * * *." 8 Ill. at 437.
The present contention is that statutory authority to resolve custody disputes in actions for divorce, actions for separate maintenance, and actions under the Family Court Act, (Ill. Rev. Stat. 1963, chap. 40, par. 19; chap. 68, par. 22; chap. 23, par. 2006,) coupled with the power to hear habeas corpus actions, represents the full extent of the judicial power of this state in custody matters. If this contention were correct, a parent who retained control over his child and who therefore could not bring habeas corpus, would lack any judicial means for establishing his right to custody in two important situations: first, when his marriage had been terminated by annulment rather than divorce, and second, when the divorce decree was entered in another state. Yet child custody is an area in which emotions of the most basic sort are deeply involved; in such an area, the social reasons for the creation of the courts have their clearest application.
The Thomas case involved the peculiar fact that the parties to the action were still married. The court emphasized that the Divorce Act confers jurisdiction to award custody "when a divorce shall be decreed" (Ill. Rev. Stat. 1963, chap. 40, par. 19,) and the court's holding was repeatedly phrased in terms of the inability of a husband and wife to litigate over the upbringing of their children. In view of this language in the Thomas case, the precedent existing when it was decided, and the necessity for some judicial remedy in custody disputes between divorced parents, or those whose marriage has been annulled, it is not surprising that the appellate courts have held the Thomas decision inapplicable to situations in which the parties to a custody suit were no longer married. Cardenas v. Cardenas, 12 Ill. App.2d 497; Parker v. Parker, 335 Ill. App. 293; People ex rel. Crofts v. Wait, 243 Ill. App. 367.
It does not appear from the documents before us which court's process was served first, but for the purpose of this case we shall assume that personal jurisdiction over both litigants was first secured in the Du Page County action. We shall further assume that without personal jurisdiction of the parties, the Cook County court would have been unable to grant the relief that the mother sought. (See May v. Anderson, 345 U.S. 528, 97 L.ed. 1221.) Even under these hypotheses, however, we do not agree that the court in Du Page County could ignore the pendency of the Cook County action between the same parties.
Section 48 of the Civil Practice Act provides for the dismissal of an action upon motion upon the ground that "there is another action pending between the same parties for the same cause." (Ill. Rev. Stat. 1963, chap. 110, par. 48(1)(c).) The purpose of the provision is to foster orderly procedure by preventing a multiplicity of actions. The pendency of an action might be determined by the date upon which the complaint is filed, the date upon which summons is issued, or the date upon which the court acquires jurisdiction over the parties. None of these alternatives is entirely satisfactory, but so long as both actions are brought in Illinois the choice between the competing rules was made in section 13 of the Civil Practice Act which provides: "Every action, unless otherwise expressly provided by statute, shall be commenced by the filing of a complaint." (Ill. Rev. Stat. 1963, chap. 110, par. 13.) If the plaintiff fails to show reasonable diligence to obtain service of process, Rule 4 of the Rules of this court provides for dismissal of the action upon motion of a defendant or on the court's own motion. (Ill. Rev. Stat. 1963, chap. 110, par. 101.4; see Department of Public Works and Buildings v. Lanter, 413 Ill. 581, 594; Vukovich v. Custer, 415 Ill. 290, 294.) We are aware of no provisions of statute or rule that would indicate that the pendency of an action is to be determined otherwise than by the filing of the complaint.
The circuit court of Du Page County disregarded the Cook County action. It held that "the circuit court of Cook County had no jurisdiction" and that its order awarding temporary custody to the mother was "null and void." It did so on the ground that the mother's allegations of residence in Cook County were false and fraudulent. As we have held, jurisdiction over the mother's action did not depend on the Divorce Act, whose venue provisions declare that actions must be brought in the county where either the plaintiff or the defendant resides. (Ill. Rev. Stat. 1963, chap. 40, par. 6.) It rested instead on the long-standing power of courts of equity to resolve child custody disputes. But we are of the opinion that even if the mother's residence in Cook County was a material element of the equitable action which she brought, (cf. Ill. Rev. Stat. 1963, chap. 110, par. 5,) the objections to the Cook County complaint should have been presented to the Cook County court.
In People ex rel. Bradley v. McAuliffe, 24 Ill.2d 75, a divorce action was filed in the circuit court of Williamson County. The defendant was served, but did not appear. Instead she filed an action for divorce in the village court of Maywood. The Williamson County court granted a divorce. and its decree found that the husband was a resident of Williamson County. Thereafter he moved to dismiss the action pending in the village court of Maywood. That court heard evidence concerning his residence, denied his motion, and entered an order vacating and setting aside the decree of the circuit court of Williamson County. The plaintiff brought an original mandamus action in this court to compel the judge of the village court of Maywood to expunge his order.
This court awarded a writ of mandamus which directed the respondent judge "to vacate the order purporting to vacate and set aside the decree of the circuit court of Williamson County, and to dismiss the divorce proceeding * * * now pending before him." We said: "The village court of Maywood, on collateral attack of the Williamson County decree, was bound by the record of the circuit court and had no authority to go behind the ...