APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
C. BUCKLEY, Judge, presiding.
MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied August 29, 1978.
Plaintiff brings this interlocutory appeal from the dissolution of a temporary restraining order which had prohibited defendant from removing their minor children from Illinois. She presents the following issues for review: (1) whether the trial court abused its discretion by dissolving the restraining order in the absence of proper notice and the opportunity to answer; (2) whether the trial court erred in giving full faith and credit to an interlocutory decree rendered by a sister State without subject matter jurisdiction; and (3) whether due process of law was denied by the trial court's failure to hold a hearing on the best interests of the children.
It appears that after their marriage in 1968, the parties resided in Cook County, Illinois, until 1972 when they took up residence in Texas up to the time that plaintiff left the marital home and returned to Cook County with their two children on January 20, 1976. On January 23, 1976, she filed a complaint for separate maintenance in Cook County in which she alleged that she and her children were residents of Illinois. In this action she sought to enjoin defendant from filing suit for divorce in Texas and to obtain custody of their two children, separate maintenance, child support, attorney fees and costs. Defendant was personally served in Texas on February 6, 1976, but failed to appear and was in default when, on February 25, 1976, plaintiff was granted temporary custody of the children with $2,000 per month support, and he was enjoined from proceeding with any matrimonial action in Texas until the separate maintenance action here was finally adjudicated.
In the meantime, on February 10, 1976, defendant filed a petition for divorce in Texas. He alleged that the children's legal residence was in Texas and sought appointment as the children's temporary and permanent managing conservator. Under Texas law, the managing conservator retains all the rights, privileges, duties and powers of a parent except that during periods of visitation the possessory conservator (non-custodial parent) exercises such rights, privileges, duties and powers. Tex. Fam. Code §§ 14.02, 14.04 (1975).
On April 7, 1976, plaintiff appeared in the Texas proceeding and moved to stay it on grounds that she had previously filed a suit for separate maintenance in Illinois; that she and the children are Illinois domiciliaries; that Illinois obtained jurisdiction of the marital status and the status of the children; and that Illinois is the most appropriate forum to resolve the rights of the parties arising out of and with respect to their marriage. The Texas court denied her motion but awarded her temporary managing conservatorship (with visitation rights accorded to defendant) and $1,800 per month child support.
Thereafter, on April 9, plaintiff answered defendant's Texas suit and filed her own petition for divorce alleging that she is an Illinois domiciliary; that Illinois had acquired jurisdiction over the parties and the children; that Illinois had granted her temporary custody of the children; and that an award of permanent custody to her would be in the best interests of the children. In this regard, she sought appointment by the Texas court as permanent managing conservator of the children, permanent support, and an injunction restraining defendant from interfering with her possession of the children.
The issue of custody was tried in the Texas proceeding before a jury which found it in the best interests of the children that defendant be appointed as managing conservator and plaintiff as possessory conservator with unlimited visitation rights. On July 5, 1977, the Texas court entered an order to that effect; however, the order was interlocutory in nature as the issue of the appropriate division of marital property was left to be decided.
On August 12, 1977, plaintiff's motion for a stay pending appeal was denied by the Texas court and she was ordered to deliver the children to defendant. On that same day, she filed a petition here for a temporary restraining order, alleging that the children have resided in Illinois since January 1976; that defendant resides in Texas; that the Circuit Court of Cook County has jurisdiction over all matters and questions relating to the children; that it is in the best interests of the children to remain in Illinois and to have their sole care, custody and control entrusted to her; that defendant was in default regarding her separate maintenance suit; that subsequent to the filing of such suit, defendant filed for divorce in Texas; that she filed an answer in defendant's Texas suit only because at that time she did not meet the residency requirement for an Illinois divorce; that the Texas court granted plaintiff temporary care, custody and control of the children; that thereafter she requested that the Illinois case be placed on the dormant calendar; that defendant had informed her that he was coming to Illinois to remove the children; that such removal would cause irreparable injury; that defendant is not entitled to notice since he is in default; that the Texas order awarding defendant managing conservatorship is interlocutory and therefore does not supersede the Illinois order; and that, as she is exercising her right of unlimited visitation under the Texas decree, the children should remain with her until a final judicial determination is made.
The same day, August 12, 1977, the trial court here, without notice to defendant, entered a temporary restraining order enjoining him from removing the children from Illinois until further order of court and, in addition, ordered that plaintiff continue to have care, custody and control of the children until the final determination of the cause of action pending in Texas.
On August 14, defendant came to Cook County with his attorney for delivery of the children pursuant to the Texas order and, when the children were not delivered he presented a motion here to dissolve the August 12 temporary restraining order. The motion was heard on August 16 and, although plaintiff did not appear, her attorney who was served with notice of the motion on August 15 did appear on her behalf. An objection was made to the motion on the grounds that one day's notice was insufficient in the absence of an emergency and that plaintiff should be given the opportunity to answer the motion. The court found that an emergency existed and gave plaintiff the opportunity to answer.
During the hearing, plaintiff's attorney admitted that his client was not an Illinois resident at the time of the filing of her separate maintenance action and stated that there was no question that both plaintiff and defendant were fit to have custody of the children. Counsel further said that it was plaintiff's desire to maintain the status quo; i.e., her retention of custody until either she or defendant prosecutes an appeal in Texas as to the final determination of the order entered there. It was also argued that as the Texas decree was not final, it was not entitled to full faith and credit in Illinois. The trial court, however, after noting that plaintiff submitted herself and the children to the jurisdiction of the Texas court by answering defendant's action and by filing her petition, made the following statement: "She chose her forum, she went there, she lost. Her appeal rights are there, not here. I'm not sitting as any Appellate Court on an action in Texas." The court then dissolved the temporary restraining order and ordered the children be delivered instanter to defendant.
The following day, August 17, plaintiff petitioned to vacate the dissolution of the temporary restraining order, alleging that it was entered without giving her an opportunity to file an answer; that defendant failed to allege that returning the children was an urgent matter; that it was in the best interests of their school age daughter to remain in an Illinois school; that the temporary restraining order was dissolved without a best interests hearing; that proof of the best interests of the children was not allowed; that full faith and credit was given to an interlocutory decree of Texas; and that the Texas court did not have jurisdiction over the children "since they have resided continuously in Illinois since prior to the filing of the Illinois and Texas litigation."
On the same date, defendant petitioned here for a writ of habeas corpus alleging that plaintiff was unlawfully detaining the children; that the children are in need of his care; that he was able to care for them; and that he had a right to custody based upon the order of August 16 here and the Texas decree. Defendant also petitioned for a rule to show cause and a writ of attachment. Plaintiff again appeared by counsel whose request for a custody hearing was denied, but the court stated it would consider plaintiff's reasons for not delivering the children should she personally appear in court. However, she did do so and the court, after finding that the cause was an emergency matter and that the Texas decree was entitled to ...