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Donlon v. Miller

OPINION FILED SEPTEMBER 16, 1976.

EMILY DONLON, PETITIONER-APPELLEE,

v.

SUSAN JANE MILLER, A MINOR, ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of La Salle County; the Hon. JOHN DAVID ZWANZIG, Judge, presiding.

MR. PRESIDING JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:

Defendant Mary Kay Znaniecki appeals from a decree of adoption of Susan Jane Miller, her minor child (by petitioner Emily Donlon) entered in the Circuit Court of La Salle County.

At the time of the filing of the original petition to adopt on the 22nd day of August, 1974, Susan Jane Miller was 6 years of age. Defendant Znaniecki, the mother of the child, appeared specially and challenged the jurisdiction of the court as to her and, also, as to the child Susan Jane Miller. In her special appearance, it was shown that she was a resident of the State of Washington.

The trial court determined that it had jurisdiction of the subject matter and of the defendant Znaniecki, as well as the child Susan Jane Miller, and denied an accompanying motion to quash service of process, which was made personally on defendant in the State of Washington.

Major contentions on appeal made on behalf of defendant Znaniecki assert that the trial court lacked jurisdiction over defendant Znaniecki as well as over the child Susan Jane Miller and the subject matter of the adoption of this child, who was sought to be adopted based on the contention that neither the child nor Znaniecki were residents of Illinois nor were they in open court during the proceedings. A challenge was also made on the ground that the trial court failed to comply with the procedural requisites of the Illinois Adoption Act (Ill. Rev. Stat. 1975, ch. 4, par. 9.1-1 et seq.). In addition to other contentions made, the petitioner-appellee, Emily Donlon, initially argues that the appeal should be dismissed for the reason that notice of appeal was untimely filed. The decree of adoption was entered on August 14, 1975. On September 2, 1975, defendant Znaniecki filed the motion to vacate which was denied by the court on September 8. Notice of appeal was filed on October 8, 1975.

• 1 The notice of appeal was filed more than 30 days after the entry of the judgment, but only 30 days following disposition of the motion to vacate the judgment. The Supreme Court Rules of this State provide that an appeal must be filed within 30 days of the entry of the judgment, unless a post-trial motion is filed within that time, in which event, the notice of appeal is required to be filed within 30 days of disposition of the motion (Ill. Rev. Stat. 1975, ch. 110A, par. 303(a)). Under such provision we construe the motion to vacate as a post-trial motion and that the instant notice of appeal was filed in time.

Petitioner Donlon also points to section 20 of the Adoption Act (Ill. Rev. Stat. 1975, ch. 4, par. 9.1-20) which provides initially that the Civil Practice Act and the Supreme Court Rules shall apply in adoption proceedings, except where specifically otherwise provided in the Adoption Act. On this basis it is contended that no appeal may be taken more than 30 days after the judgment or decree has become final. Petitioner Donlon argues that the legislature thus demonstrated an intent to prohibit any appeal of an adoption decree other than within 30 days of the entry of the decree, irrespective of and other relief sought by a party following such entry of the decree.

• 2 We do not so interpret section 20 of the Adoption Act. While we are conscious of the desire to bring adoption proceedings to an end rapidly, on the premise that extended litigation might cause emotional harm to the child, we do not believe that the legislature by its language in section 20, meant to make an exception to the provisions of Rule 303(a) of the Supreme Court Rules which would otherwise be applicable. As we have indicated, we believe that the notice of appeal was, therefore, filed within time on the 30th day following the entry of the order disposing of the motion to vacate.

An understanding of the issues raised by defendant requires that we review the facts briefly. Susan Jane Miller was born on June 11, 1968, to Mary Kay Miller (now Mary Kay Znaniecki) a few months after her divorce from John Miller, the father of the child. By the terms of the divorce decree entered as between the parties, custody of the as yet unborn child was to be vested in the mother. A week after Susan was born, however, Mary Kay Znaniecki placed the child with Emily Donlon. Mrs. Donlon took care of and raised Susan for over six years. During this time, defendant visited the child only a couple of times, all in the first two years of her life, and thereafter only inquired a couple more times as to the well-being of the child. After a period of approximately six years had expired, defendant Znaniecki appeared at the Donlon home on July 6, 1974, and asked to take Susan to a christening. Mrs. Donlon agreed. The child was not returned to Mrs. Donlon, and a few weeks later Mrs. Donlon discovered that defendant had gone to Woodland, Washington, with the child. The petition to adopt was thereupon filed, approximately 45 days after Mary Kay Znaniecki left the State with Susan Miller. Service of process from the La Salle County circuit court was made personally by Washington law enforcement officials on the child and on her mother, defendant Znaniecki.

As we have previously noted, counsel for defendant Znaniecki appeared specially in court to challenge the jurisdiction of the court over the person of defendant under the terms of the Illinois statutes (Ill. Rev. Stat. 1975, ch. 110, par. 20). Following a hearing on this issue, the trial court determined that it had jurisdiction under the so-called "long-arm" statute (Ill. Rev. Stat. 1975, ch. 110, par. 17). It was contended that defendant had committed a tortious act within the State of Illinois, within the meaning of section 17(1)(b), as interpreted in Poindexter v. Willis (5th Dist. 1967), 87 Ill. App.2d 213, 231 N.E.2d 1.

Thereafter defendant filed a motion to dismiss the complaint. When that motion was dismissed, defendant filed an answer and an affirmative defense both of which were stricken. At the adoption hearing itself, counsel for defendant refused to participate, still maintaining that the court lacked in personam jurisdiction over Mrs. Znaniecki.

Though defendant Znaniecki was twice ordered to bring the child into court and twice was found in contempt for failure to do so, defendant Znaniecki did not appear at any of the proceedings, nor did the child, Susan Miller. A guardian ad litem appointed by the court to represent the child advised the court that he could not recommend adoption without having met the natural mother and having found out about her current situation. The trial court, nevertheless, granted the adoption, and, as we have indicated, the appeal to this court was made after a denial of defendant's motion to vacate the decree of adoption. We should note that the father of Susan Miller, John Miller, appeared at the hearing and consented to the adoption by the petitioner, Donlon.

The trial court, in answering the challenge to jurisdiction over defendant Znaniecki, observed that defendant had waived the issue of in personam jurisdiction by filing motions and responsive pleadings after the motion to quash service was denied. The Civil Practice Act, however, has a provision for special appearances and expressly states that such general appearances as have been made in this case, following an unsuccessful special appearance attacking jurisdiction, do not waive the fundamental issue of whether the party is amenable to process issued by an Illinois court. Ill. Rev. Stat. 1975, ch. 110, par. 20(3).

• 3, 4 Since defendant was a resident of the State of Washington and had made a special appearance to contest jurisdiction, this defense was not waived by the filing of a general appearance thereafter (Colony Press, Inc. v. Fleeman (1st dist. 1974), 17 Ill. App.3d 14, 20, 308 N.E.2d 78; Keats v. Cates (1st Dist. 1968), 100 Ill. App.2d 177, 183-84, 241 N.E.2d 645; Koplin v. Thomas, Haab & Botts (1st Dist. 1966), 73 Ill. App.2d 242, 246-47, 219 N.E.2d 646). Normally, Illinois courts would have no interest in, or jurisdiction over, an adoption petition which concerned a nonresident child and nonresident parents, none of whom have had any contact with the State of Illinois, even though the petition was filed by a citizen of the State of Illinois. Since it appears that defendant Znaniecki, the mother, and the child, Susan Miller, had moved out of Illinois (the child by act of the mother) at the time of the filing of the adoption petition, the exercise of jurisdiction over a particular ...


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