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Nelson v. Nelson

JANUARY 28, 1974.

ANN IRENE NELSON, PETITIONER-APPELLEE,

v.

PHILLIP MICHAEL NELSON, JR., RESPONDENT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ROBERT J. DEMPSEY, Judge, presiding.

PER CURIAM.

Respondent, Phillip Michael Nelson, Jr., appeals from an order entered under the provisions of the Revised Uniform Reciprocal Enforcement of Support Act (Ill. Rev. Stat. 1971, ch. 68, par. 101, et seq.) obliging him to pay to his former wife, the petitioner, Ann Irene Nelson, $100 per month for the support of their minor child. On appeal, respondent contends that the order should be reversed because (1) the county division, county department of the circuit court of Cook County improperly denied respondent's motion to transfer the case to the divorce division, county department of the circuit court of Cook County because a divorce action between the parties was pending in the divorce division; (2) the circuit court of Cook County should have refused to honor the petition and order of the Delaware court because the circuit court of Cook County had obtained personal jurisdiction over the petitioner in the divorce proceeding and she was "eluding" and "evading" the Illinois court through the device of a proceeding under the Uniform Reciprocal Enforcement of Support Act. A chronological review of the essential points in the record is set out:

December 31, 1971 (or sometime previous thereto): Respondent filed suit for divorce against petitioner in case No. 71D22992, Phillip M. Nelson, Jr. v. Ann Irene Nelson and Louis Borbor.

January 21, 1972: Ann Irene Nelson filed a petition against the respondent in the family court of Kent County, Delaware, alleging herself to be the "wife" of respondent, having been married to him August 28, 1968, and the mother of one child born to them on March 6, 1969, asking $150 per month for the support of the child. The petition was accompanied by a certificate of a judge of the family court of Kent and Sussex Counties, Delaware, finding that the respondent should be compelled to answer the petition.

June 23, 1972: The petition and certificate were filed in the circuit court of Cook County, county division.

July 3, 1972: Summons was served on the respondent by leaving a copy with his mother-in-law.

September 12, 1972: A decree of divorce was entered in the divorce division, reciting that the defendant, Ann Irene Nelson, "was personally served with Summons and was defaulted for failure to Appear and Answer", and "reserving" the issue of "care, custody, control and education of the child and also the question of the support for the child."

October 18, 1972: An order was entered in the county division granting leave to Anna D. Marek to withdraw as attorney for the respondent and finding respondent "responsible for the support of the minor child, that respondent is desirous of visitation privileges", that "commencing 12-1-72 the respondent contribute $100 per month for the support of the minor child, that petitioning jurisdiction advise present address of petitioner and child and arrange visitation."

November 15, 1972: Leave having been given, respondent, through his attorney, Anna D. Marek, presented a petition to vacate the October 18, 1972, order.

November 27, 1972: Respondent moved to dismiss the petition for support or have the petition transferred to the divorce division on the grounds:

"1. That the parties hereto are the same parties in the case known as Phillip M. Nelson, Jr. v. Ann Irene Nelson, and Louis Borbor, case number 71D22992, filed in the Circuit Court of Cook County, Chancery-Divorce Division.

"2. In said cause, Phillip M. Nelson, Jr. v. Ann Irene Nelson, and Louis Borbor, number 71D22992, the court entered a decree of divorce in favor of the plaintiff, Phillip M. Nelson, Jr. and reserved the question of support and custody of his child."

February 23, 1973: The court (county division) found it had jurisdiction of the parties and the subject matter under the Uniform Reciprocal Enforcement of Support Act and denied respondent's motion to dismiss the petition for support.

• 1 Defendant first argues that the divorce division had exclusive "jurisdiction" of the question of support of his minor child, that the county division, therefore, was without "jurisdiction" to enter the support order and should have transferred the case to the divorce division. However, in the recent case of Haas v. Pick Galleries (Gen. No. 58347), 12 Ill. App.3d 865, 299 N.E.2d 93, it was held that the actions of trial courts concerning the assignment or transfer of actions under General Order Number 1-3 *fn1 of the circuit court of Cook County are not "jurisdictional" and that, within broad limits, the trial court's discretion in such matters will not be reversed absent a showing of abuse. In that case, the reviewing court affirmed the refusal of the municipal division of the circuit court to transfer a case to the law division of the circuit ...


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