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In Re Custody of Holman

OPINION FILED OCTOBER 30, 1979.

IN RE CUSTODY OF AUDREY PATRICIA HOLMAN ET AL. — (PATRICIA ANN HOLMAN, PETITIONER-APPELLANT,

v.

CHARLES HOLMAN, RESPONDENT-APPELLEE.)



APPEAL from the Circuit Court of Livingston County; the Hon. CHARLES E. GLENNON, Judge, presiding.

MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

The petitioner wife appeals from the order of the trial court which dismissed her petition filed pursuant to section 601 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 601) directed against the respondent husband for custody of three children.

This proceeding by the wife was filed on January 18, 1979. The order of the trial court found that the children had been born in California and that the parties had resided in Texas for six years prior to August 23, 1978; that the parties had separated in that month and that on that date the wife brought the children to Illinois.

It was further found that the husband resided in Texas; that he had filed suit for divorce in Texas on November 2, 1978, and that a copy of the complaint and summons was personally served on the wife on December 5, 1978.

An authenticated copy of complaint for divorce filed in Texas contains allegations that the wife took the children surreptitiously and that at the time of such complaint the whereabouts of the children were unknown to the husband. The divorce complaint alleged that it was in the best interests of the children, aged 7 through 12 years, that custody be awarded to him with visitation in the wife. There were additional allegations praying division of community property.

Although otherwise argued in the trial court, upon appeal the wife concedes that Illinois was not the "home state" of the children within the meaning of section 601(a)(1) of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 601(a)(1)). It is, however, argued that the Illinois court had jurisdiction by reasons of the provisions of section 601(a)(2), which provides that the court has jurisdiction if:

"(2) it is in the best interest of the child that a court of this State assume jurisdiction because the child and his parents, or the child and at least one contestant, have a significant connection with this State, and there is available in this State substantial evidence concerning the child's present or future care, protection, training and personal relationships; or * * *."

With regard to such provision, the trial court found that:

"[W]hile there exists some evidence here in Illinois as to the mother's ability to care for said children, the bulk of the substantial evidence concerning both parents' ability to provide for the future care, protection and training, exists in the State of Texas and the State of Texas is an appropriate form [sic] to make the determination of the question of custody of the minor children."

The wife argues that the fact that Illinois is not the "home State" does not preempt jurisdiction in Texas; that she and the children have resided in Illinois for some months and that she tendered affidavits of several members of her family, a neighbor, and a school teacher that they had observed the children during the span of months. Presumably, they would testify as to observations relevant to the "best interests." It is argued that the latter facts are sufficient available evidence for the Illinois court to take jurisdiction. She argues that the trial court erroneously presumed that there was more substantial evidence in the State of Texas upon that issue, and that the trial court was not permitted to make such presumption absent the tender of evidence by the husband. We note as an element in the court's determination of jurisdiction, the provision of section 601(a)(4) of the Act that:

"(4) no other state has jurisdiction under prerequisites substantially in accordance with paragraphs (1), (2) or (3), or another state has declined to exercise jurisdiction on its determination that this State is the more appropriate forum to determine custody of the child; and it is in the child's best interest that the court assume jurisdiction." (Emphasis added.)

Using such language, the wife argues that the order of the court is insufficient for the reason that it fails to find that Texas is "the more appropriate forum to determine custody of the child."

It is apparent that the elements of personal jurisdiction of the parties and subject matter are present in Texas. The finding that Texas is "an appropriate forum," together with the substantive effect of the order, makes implicit the finding that Texas is "the more appropriate forum to determine the ...


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