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Boyer v. Boyer

OPINION FILED JANUARY 23, 1978.

CARMA LYNN HUME BOYER, PLAINTIFF-APPELLANT,

v.

JOHN CARL BOYER, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Madison County; the Hon. A.A. MATOESIAN, Judge, presiding.

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

This is an appeal by plaintiff, Carma Boyer, from an order entered by the circuit court of Madison County dismissing the action upon a finding that the court lacked in personam jurisdiction over the nonresident defendant, John Carl Boyer.

On December 15, 1971, plaintiff and defendant were divorced pursuant to a Georgia divorce decree which awarded custody of the parties' two minor children to plaintiff and visitation rights to defendant. The decree further required defendant to pay plaintiff alimony and child support in accordance with a written agreement between the parties which was attached to the decree. Subsequent to the divorce plaintiff and the two minor children moved to Illinois and have since resided in this State for three years prior to bringing the instant action. Defendant remained in, and is presently a resident of, the State of Georgia. On September 14, 1976, plaintiff brought the instant action in the lower court on a "complaint to establish and enroll [a] decree of divorce from the State of Georgia and for other relief." The complaint alleges that defendant was three months in arrears on his obligation to make child support payments amounting to $660 and that he was also three months in arrears on alimony payments amounting to $315. It further alleges that there exists certain changes in circumstances requiring a modification in the child support payments and the visitation rights provided for in the Georgia divorce decree. With regard to child support, plaintiff charges that defendant is gainfully employed and is now earning more money than he was at the time of the divorce; that plaintiff has had to expend more to clothe, feed and house the minor children; that the cost of living generally has increased; and that the children are in need of psychological testing and counseling. With regard to visitation rights, plaintiff charges that in April 1976 defendant refused to return the children from Georgia following a visitation period thus requiring plaintiff to bring legal proceedings in Georgia to cause their return; that in May 1976 defendant attempted to entice the children to go to Georgia, in contravention of the provisions of the divorce decree; and that plaintiff has not the funds to pay for transportation costs to and from Georgia for purposes of visitation and that the decree makes no provision for such costs. The complaint requests that the court establish the Georgia decree as an Illinois judgment; enter an order requiring defendant to pay the alimony and child support arrearages; order defendant to pay an increased amount of child support and to pay for all medical costs of the children; and finally order defendant to pay all transportation costs of visitation and to post bond to secure their return from such visitation.

Defendant was served with a summons and a copy of the complaint in Meriwether County, Georgia. He appeared specially, filing a motion to challenge the jurisdiction of the court and to quash the service of process. Following a hearing, the court granted defendant's motion and dismissed the complaint upon the findings that:

"(1) The defendant is not now in the State of Illinois;

(2) The defendant has not submitted to the jurisdiction of the State of Illinois;

(3) There is no `in personam' jurisdiction over the defendant in Illinois;

(4) That the `Long Arm' statute by its own terms does not apply;

(5) That any service over the defendant by virtue of the case is illegal and improper;

(6) That there exists no other factors which confer jurisdiction to the Illinois Courts> over John Carl Boyer."

In this appeal, as in the court below, defendant does not dispute the jurisdictional facts alleged in the complaint (see Nelson v. Miller, 11 Ill.2d 378, 394, 143 N.E.2d 673), nor is the validity of sections 16 and 17 of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, pars. 16, 17) questioned. Rather, at issue is whether section 17(1)(b) provides for jurisdiction under the facts of this cause.

Section 16 of the Civil Practice Act provides that personal service of summons may be made upon any party outside the State and that as to nonresidents who have submitted to the jurisdiction of our courts>, such service has the force and effect of personal service within this State. Section 17(1)(b) further provides that a nonresident submits to the jurisdiction of our courts> "as to any cause of action arising from * * * [t]he commission of a tortious act within this State."

• 1, 2 On appeal plaintiff contends that defendant committed "tortious" acts within the meaning of the statute and he thereby submitted himself to the jurisdiction of our courts>. Defendant responds by contending that no such acts were committed "within this State" and consequently the prerequisite minimum contact between Illinois and him ...


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