APPEAL from the Circuit Court of De Witt County; the Hon. JOHN
L. DAVIS, Judge, presiding.
MR. PRESIDING JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
Plaintiff Arthur Blankenship appeals from an order of the circuit court of DeWitt County (1) finding him in contempt of court for violation of a court order with regard to the custody of his minor son Kenneth, (2) sentencing him to 30 days in jail as punishment for the contempt, (3) ordering him to pay $300 as partial attorneys' fees for his divorced wife, defendant Linda Blankenship Chapman, and (4) dismissing for want of equity his petition for change of custody.
Plaintiff had been granted a divorce from defendant on September 14, 1971. Kenneth, their only child and then 10 years old, was placed in their joint custody. Various proceedings took place concerning custody and support payments. On February 19, 1975, the court order as to custody was further modified to provide that the defendant had custody of Kenneth subject to reasonable visitation by the plaintiff (1) during the school year and (2) for the entire first half of the summer school vacation. Defendant was to have reasonable visitation with Kenneth while he was visiting plaintiff in the summer. That order remained in force at all subsequent times pertinent.
On June 18, 1977, Kenneth went to Minnesota to visit plaintiff and plaintiff's wife and family. Shortly after he arrived, he went with them to Missouri when they moved to a farm near Buffalo in that State. Kenneth had not returned to his mother's home in Clinton by August 31, 1977, at which time she filed a petition seeking a rule on plaintiff to show cause why he should not be held in contempt and asking for attorneys' fees. Hearing on the petition was not held until January 13, 1978, subsequent to which the order appealed was entered on February 2, 1978.
At the hearing, plaintiff testified that he had talked with Kenneth several times about Kenneth's returning to his mother and that Kenneth told him that he was unhappy with his mother, preferred to be with his father, refused to go back, and said that he would run away if forced to do so.
Plaintiff argues that he was not in contempt because (1) he did nothing to encourage Kenneth not to return, (2) he took no affirmative step to prevent Kenneth from doing so, and (3) he was not required to force Kenneth to return or even to encourage him to do so in view of the boy's stated frame of mind and the dire consequences that would likely result. Defendant contends that if we overturn the contempt finding, the precedent will permit a non-custodial parent who has children with him during periods of visitation to extend the periods of visitation and harass the custodial parent by taking no affirmative action to return the child when the child expresses displeasure at returning. We do not address these questions because we conclude that questions of procedure are dispositive of the contempt issue.
1 One method of classifying contempt proceedings is upon the basis of whether they are civil or criminal in nature. Those which are civil are instituted to coerce obedience to a court order. Those which are criminal are instituted to vindicate the authority of the court. Recent definitive explanations of the difference between these types of proceedings as applied to the enforcement of orders in matrimonial cases are contained in the opinions of the appellate court in People v. Marcisz (1975), 32 Ill. App.3d 467, 334 N.E.2d 737, and of the supreme court affirming that portion of the decision that is material here and reversing the other part (Marcisz v. Marcisz (1976), 65 Ill.2d 206, 357 N.E.2d 477). Those opinions point out that although it is not always easy to determine which type of relief a contempt petition requests, if the vindication of the court's authority is sought, the respondent is entitled to the following constitutional protections enjoyed by an accused in criminal cases: (1) notice, (2) reasonable opportunity to defend, (3) assistance of counsel, (4) a reasonable doubt standard of proof, and (5) the privilege against self-incrimination. See also People ex rel. Chicago Bar Association v. Barasch (1961), 21 Ill.2d 407, 173 N.E.2d 417.
2 The Marcisz opinion also explains that in criminal contempt proceedings, the court may impose a punishment which the respondent must undergo regardless of whether he later complies with the order, but in civil proceedings the order imposing the sanction must provide that the sanction abate if the respondent purges himself by compliance. Here the unconditional imprisonment imposed upon plaintiff was a criminal sanction. Although the petition of defendant upon which the contempt finding was entered asked that a rule be entered upon plaintiff to show cause why he should not be held in contempt of court for refusing and neglecting to comply with the court's previous order, the petition did not allege that plaintiff had willfully and contumaciously refused to return Kenneth to defendant. Rather the petition merely alleged that plaintiff had taken the boy from the State. The petition was heard together with a petition to modify the custody order. The plaintiff (who was respondent to the contempt petition) was called to testify by defendant pursuant to section 60 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 60). These procedures would have been impossible in a criminal contempt proceeding. We conclude that the proceeding was civil in nature and not criminal and that the court erred in imposing the incarceration regardless of whether plaintiff had been in contempt.
3 As Kenneth had been delivered into court at the time of the hearing, plaintiff was not in civil contempt of court regardless of the validity of his reasons for not doing so sooner.
The new Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, pars. 101 to 802) became effective October 1, 1977. That act controlled the proceedings as to the ruling on plaintiff's request for a change in custody (Ill. Rev. Stat. 1977, ch. 40, par. 801). Section 610 of the Act provides in part:
"(b) The court shall not modify a prior custody judgment unless it finds, upon the basis of facts that have arisen since the prior judgment or that were unknown to the court at the time of entry of the prior judgment, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interest of the child. In applying these standards the court shall retain the custodian appointed pursuant to the prior judgment unless:
(1) the custodian agrees to the modification;
(2) the child has been integrated into the family of the petitioner with consent of the custodian; or
(3) the child's present environment endangers seriously his physical, mental, moral or emotional health and the harm likely to be caused by a change of environment is outweighed by its advantages ...