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Sommer v. Borovic





Original petition for mandamus or prohibition.


This is an original action brought by Dr. Robert Sommer for the issuance of a writ of mandamus (58 Ill.2d R. 381) to expunge certain orders entered in the circuit court of Du Page County enjoining the petitioner from engaging in further proceedings in the circuit court of Lake County regarding the modification of the child-custody provision of a divorce decree entered in the Du Page court.

Dr. Robert and Helene Nadine Sommer were the parents of four minor daughters at the time the circuit court of Du Page County entered their decree of divorce on March 20, 1967. The custody of the daughters was awarded to Mrs. Sommer. Subsequently, Dr. Sommer moved to Lake County and Mrs. Sommer, who had married John Lowenthal, moved to New Jersey with her new husband and the four daughters.

In 1974 the employment of Mr. and Mrs. Lowenthal required them to go to South Africa, and Mrs. Lowenthal and Dr. Sommer agreed that he might have custody of the youngest daughter, Rachel, during Mrs. Lowenthal's stay in South Africa. (Rachel is the only daughter now concerned in this dispute. The other daughters have reached the age of majority.) Upon Mrs. Lowenthal's return to the United States she asked Dr. Sommer for the return of Rachel, but he refused.

On January 29, 1975, Dr. Sommer petitioned the circuit court of Lake County for an order transferring the custody of the children to him. He filed a complaint asking that the Du Page County divorce decree be registered as a "foreign judgment," attaching a copy of the decree to the complaint. He served notice on Mrs. Lowenthal of the filing of the proceeding, and she filed an answer stating that custody should remain with her. She also filed a counterclaim for back child-support payments and for an increase in future child-support payments. After a hearing the circuit court of Lake County ordered that custody of the children be awarded to Dr. Sommer.

Mrs. Lowenthal then removed Rachel from Illinois to New Jersey, and she was declared to be in contempt of court by the Lake County court. She instituted an action in the New Jersey courts> asserting a right to Rachel's custody. Dr. Sommer appeared in New Jersey and sought to enforce the Lake County order giving custody of Rachel to him and to dismiss the New Jersey proceedings. When the New Jersey court refused to dismiss its proceedings, Dr. Sommer removed Rachel from New Jersey and returned her on March 3, 1976, to Lake County. It was said in oral argument that Dr. Sommer had, without the mother's knowledge, picked up Rachel on her way from school. On March 11, 1976, Mrs. Lowenthal filed an "emergency petition for change of child custody" in the Lake County court, and on May 3, 1976, she moved to vacate the order giving custody to Dr. Sommer and challenged that court's jurisdiction to have entered the order. She alleged that any proceeding to modify the original divorce decree should have been brought in the circuit court of Du Page County.

The Lake County court denied the motion to vacate on June 9, 1976. In the meantime, Mrs. Lowenthal had filed a petition for a rule on Dr. Sommer to show cause why he should not be declared in contempt of court in the circuit court of Du Page County. On April 30, 1976, that court entered an order enjoining him from removing Rachel from Illinois, and on May 11 the court entered an order placing Mrs. Lowenthal "under protective order" of the court, and declaring the contempt order of the Lake County court to be void. The Du Page County circuit court also enjoined the sheriffs of Lake and Du Page counties from attempting to enforce the contempt order of the Lake County court against Mrs. Lowenthal. On June 15, Dr. Sommer moved to dismiss the petition for rule to show cause, alleging the Lake County order of June 9 denying Mrs. Lowenthal's motion to dismiss had made the question of jurisdiction res judicata. His motion was denied, and the Du Page court enjoined him from further proceedings in Lake County. Dr. Sommer then filed a motion for leave to file a petition for a writ of mandamus in this court, which we allowed.

The circuit court of Lake County was without authority to exercise jurisdiction over the subject of the custody of the children involved here. The general rule is stated in the annotation at 146 A.L.R. 1153 (1943). There it is said that the rule supported by the greater weight of authority is that jurisdiction acquired by a court in a divorce proceeding over the custody and maintenance of children of parties to the suit is not only continuing but is also exclusive and precludes any other court in the State where the custody proceedings were held from later acquiring or exercising jurisdiction over the same subject. All proceedings relating to the maintenance and custody of such children of the divorced parents must thereafter be brought in the same court in which the original decree on that question was rendered. 146 A.L.R. 1153 (1943) and cases cited therein.

Nelson on Divorce and Annulment states the rule:

"While there is some authority to the contrary, a general rule obtains in the majority of states that where a court grants a divorce and awards the custody of a minor child of the parties, the court retains jurisdiction to determine questions of custody of the child until it attains majority, to the exclusion of all other courts> of the same state * * *." 2 Nelson on Divorce and Annulment sec. 15.55 (2d ed. 1961).

The rule is understandable, for an order awarding custody of a child is, by its nature, an interlocutory order and not a final one. Kusick v. Kusick (1943), 243 Wis. 135, 9 N.W.2d 607, illustrates the general rule. There a wife brought a divorce proceeding in Marquette County. The court dismissed the divorce action but awarded custody of the children to the wife and ordered the husband to make monthly payments for the support of the children. The wife later commenced an action of divorce in Dane County. The Supreme Court of Wisconsin held that the court in Dane County had no jurisdiction to increase the allowance for the support of the children, as "`[a]pplication to change or vacate a judgment should be made in the action in which it was entered and to the court that rendered it.' [Citation.]" (243 Wis. 135, 138, 9 N.W.2d 607, 608.) The court stated:

"A stipulation of the parties could not confer jurisdiction on the circuit court for Dane county, where power to act is involved. [Citation.] The circuit court for Dane county could not properly assume jurisdiction of the custody and support of the minor children in this action. The effect of the amended judgment herein, if upheld by this court, would nullify the Marquette county judgment providing for the support of these minor children, and interfere with the exclusive power of that court to enforce its judgment and modify it as the condition of the parties or the needs of the children might require. Such interference by one circuit court with the judgment and exercise of power by another circuit court cannot be approved.

`On principle a court of concurrent jurisdiction should not take jurisdiction of a matter which is properly involved in a proceeding then pending in another court which is competent to render adequate relief in the premises.' [Citation.]" 243 Wis. 135, 138, 9 N.W.2d 607, 608-09.

Our divorce act provides in part: "The court may, on application, from time to time, terminate or make such alterations in the * * * care, education, custody and support of the children, as shall appear reasonable and proper." (Ill. Rev. Stat. 1975, ch. 40, par. 19.) The decretal court retains jurisdiction of a divorce proceeding at all times to enforce, adjust or modify the original decree in regard to the custody and care of children as changing circumstances may warrant. (Nye v. Nye, 411 Ill. 408, 416; Kelley v. Kelley, 317 Ill. ...

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