APPEAL from the Circuit Court of St. Clair County; the Hon.
KENNETH J. JUEN, Judge, presiding.
MR. PRESIDING JUSTICE CARTER DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 19, 1977.
Dolores Hinton Searles (hereinafter respondent) seeks review of an adverse order of the circuit court of St. Clair County confirming custody of respondent's two children in Benny R. Hinton (hereinafter petitioner), respondent's former husband. The issues presented for review are whether the trial court erred in holding that a prior Missouri custody decree was entered and founded upon proper jurisdiction, and whether the trial court properly granted custody of the two minor children to petitioner.
Petitioner and respondent were divorced in Bollinger County, Missouri on April 19, 1972, with respondent being granted custody of the parties' two minor adopted children. On November 22, 1974, petitioner was granted specific visitation rights but thereafter was denied those rights on two occasions by respondent on the grounds of alleged abuse of the children by petitioner. A contempt proceeding was had against respondent on March 3, 1975, in Bollinger County for failure to abide by the terms of the order of November 22, 1974. In that proceeding respondent was found in contempt of court and was sentenced to 45 days in jail, the sentence being suspended until March 15, 1975. On March 14, 1975, respondent moved to Alabama with the two children.
Harold Horsely, Jr., respondent's attorney of record at the contempt proceeding, was served with a notice of petitioner's petition to modify the custody decree. The petition was heard on June 16, 1975, in the absence of both respondent and the children. The Missouri court changed the custody to petitioner and relieved him of any further child support payments. The court denied respondent any visitation rights until such time as she applied to the court for a modification.
On December 23, 1975, respondent filed a petition in the Circuit Court of Escambia County, Alabama, seeking to retain custody of the children. Petitioner filed a cross-petition seeking full faith and credit of the June 16, 1975, modification in the Missouri court. The day before the hearing on the matter, respondent moved to Belleville, Illinois, and an order was entered by the court dismissing the cause. However, the Alabama court granted petitioner's request for full faith and credit of the Missouri modification, thus reaffirming custody in petitioner.
On October 5, 1976, petitioner filed in the Circuit Court of St. Clair County his petition for a writ of habeas corpus. Respondent replied, setting up four affirmative defenses. The trial court heard argument on all matters, then held that there had not been shown sufficient circumstances to justify a change in custody, and therefore the custody remained in the petitioner. The children were delivered to petitioner and respondent appealed.
In our opinion the trial court erred in confirming custody in petitioner.
Initially, we must ascertain what effect the orders of the Missouri and Alabama courts> have upon this jurisdiction. In its lengthy recitation of findings and conclusions at the close of the case, the trial court specifically followed the case of People ex rel. Bukovich v. Bukovich, 39 Ill.2d 76, 233 N.E.2d 382, in reaching its conclusion, with the trial judge stating:
"Now, as I have said, the primary consideration is to show a change or the primary burden is to show a change of circumstances and what changes of circumstances has [sic] been brought forth in this case which would require this Court to take custody from the father and give it to the mother, Mrs. Searles.
I think after all was said and done, that is really the heart of this particular case. As relates to Mr. Hinton, there was no evidence that there had been any changes in the circumstances either from July 76 or from June 75, and in reading this case, the Court is of the opinion that the parties seeking to, and I believe this is the law of the State of Illinois, that the party seeking to change custody has the burden of proof to show a substantial change in custody [sic]. * * * Mrs. Searles would have the burden of going forward and convincing this Court that there has been a substantial change in circumstances that would warrant the change of custody as set forth in the decree of the Missouri Court dated June 16, 1975.
Now, again, under the dictates of the Bukovich case, if this Court felt satisfied that that was a sufficient change of circumstances affecting the best interest [sic] of the children, what this court could have done was to grant the custody of these children to the mother. This Court had the power to do that, it had more than that, it had the duty to do that. This gets down to the very narrow factual decision by this Court as to whether that constitutes sufficient change of circumstances. This Court is of the opinion that it was not such a substantial change of circumstances to justify a change of custody in this proceeding."
At other times in its findings the trial court specifically stated that it had gone beyond the Missouri and Alabama decrees in reaching its conclusion and that it had not strictly adhered to the dictates of Bukovich. However, as the above quotation amply illustrates, it is apparent from the record that the trial court considered those factors subsequent to the earlier decrees and further treated the findings of the Missouri court in the June 16, 1975, order as binding and conclusive of issues to that date. But the trial court did hear evidence on the circumstances leading up to the contempt hearing in Missouri on March 3, 1975, and also allowed the respondent to fully develop the defenses she raised in her pleadings. In particular, the question of the harsh treatment of the children by their father was raised. This subject was developed by both the petitioner and respondent.
• 1, 2 We believe the facts of this case are controlled by the latest pronouncement by our supreme court on this subject in People ex rel. Strand v. Harnetiaux, 46 Ill.2d 424, 263 N.E.2d 30. In that case the court discussed the relevance of the full faith and credit doctrine as it relates to child custody matters. After a divorce in California the father, who was granted custody of the only child of the marriage, gained permission of the California court to reside in Illinois. The father was then killed in an accident and the paternal grandparents living in Illinois were appointed guardians of the child. The mother then obtained a court decree in California modifying the custody in her. The paternal grandparents were not served with process, but were notified of the suit by letter. An Illinois trial court granted the mother's request to give full faith and credit to the California order. The supreme court reversed, ordering a hearing to determine the best interests of the child. The court mentioned that the California court had neither the defendants nor the child before it when it made its ruling, and that such a situation created a "serious handicap" to the determination of the best interest of the child. (People ex rel. Strand v. ...