APPEAL from the Circuit Court of Madison County; the Hon.
GEORGE J. MORAN, JR., Judge, presiding.
MR. JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:
Plaintiff, Angela Pierson, brought a habeas corpus action in the Circuit Court of Madison County to compel the return of her daughter from the custody of defendant, Kathleen Bloodworth. Prior to the hearing, the trial court granted defendant leave to amend her pleadings in response to the petition so as to place before the court the issue of the custody of plaintiff's son. At the close of proceedings the trial court granted the custody of both children to defendant. Plaintiff appeals from this order, contending that the trial court had no jurisdiction of the subject matter with respect to the son's custody and that it erred in awarding custody of the children to defendant.
During the marriage of plaintiff and Gary P. Bloodworth, Sr., two children were born, Carol E. Bloodworth and Gary P. Bloodworth, Jr., both of whom are the subject of these proceedings. A decree of divorce, filed on April 17, 1968, in the Circuit Court of Madison County, dissolved the marriage and, among other things, granted custody of Carol to plaintiff herein. Gary was not born until October 25 of that year. In December 1968, the children began to reside with their father in Granite City, Illinois. Subsequently, the father married defendant, who is plaintiff's natural sister. On March 16, 1970, a nunc pro tunc order was entered which modified the divorce decree by awarding custody of the children to the father, with whom they remained until his death on June 3, 1978. The children continued to live with defendant until August 19, 1978. On this day, plaintiff took the children to her home in Virden, Illinois, ostensibly for a visit of a few days duration. However, at the scheduled end of the visit plaintiff refused to return them. Plaintiff, who has since remarried and has two children by her second husband, stated that it was her intention to have the children live with her and her new family. Carol developed appendicitis during her stay with plaintiff and required hospitalization. Defendant arrived at the hospital on September 23, 1978, and obtained the child's release to her. She returned Carol to Granite City where Carol has resided prior to the commencement of this action.
On October 17, 1978, plaintiff filed a petition for writ of habeas corpus requesting that Carol be returned to her custody. The writ issued and a hearing was set for November 13, 1978. On the day of the hearing, defendant filed and served upon plaintiff a pleading styled "The Return of Kathleen Bloodworth," apparently contemplating such pleading to be the return required by section 12 of the act relating to habeas corpus proceedings (Ill. Rev. Stat. 1977, ch. 65, par. 12). In addition to answering the petition, defendant's return raised the issue of Gary's custody. Gary accompanied plaintiff to court on the day of the hearing; however, plaintiff was unaware that Gary's custody would be litigated on that date. Over plaintiff's objection, the trial court agreed to hear the issue of Gary's custody on the basis of defendant's return. However, both parties were granted leave to file appropriate pleadings after the hearing in order to bring the issue of Gary's custody before the court. At the close of the hearing, the court announced that it would award custody of both children to defendant and allow plaintiff reasonable visitation rights. A formal written opinion was filed on November 22, 1978; and seven days later defendant filed an amended return in response to the writ of habeas corpus, a cross-petition for writ of habeas corpus relating to Gary and a petition for guardianship of the children.
Plaintiff initially urges that the trial court's order be reversed, insofar as it affects the custody of Gary, for the reason that the court did not acquire jurisdiction of the subject matter of this issue. She contends (1) that defendant's original return failed to state a cause of action with respect to Gary under the statute governing habeas corpus proceedings (Ill. Rev. Stat. 1977, ch. 65, par. 1 et seq.); and (2) that the trial court erred in granting defendant leave to amend her return and file other appropriate pleadings in an effort to bring this matter before the court.
The question before us is not whether a circuit court has the power to assume subject-matter jurisdiction over a child custody dispute in a habeas corpus proceeding. The power of the courts> in this State to render custody decisions in such proceedings is undisputed. (People ex rel. Lehman v. Lehman (1966), 34 Ill.2d 286, 215 N.E.2d 806; Faris v. Faris (1966), 35 Ill.2d 305, 220 N.E.2d 210.) Instead, we must determine on the basis of the pleadings whether this issue properly was placed before the court.
1 Section 3 of the act relating to habeas corpus proceedings (Ill. Rev. Stat. 1977, ch. 65, par. 3) requires that any petition for relief under the act shall identify the person in whose behalf the writ is applied for. Conversely, the return required by section 12 of the act does not permit the person upon whom the writ is served to place matters before the court which were not included in the petition. The proper vehicle by which to raise an additional custodial question would be a cross-petition for habeas corpus. Since the only mention of Gary's custody was made in the return, the issue therefore was not properly placed before the trial court on the basis of the original pleadings.
Plaintiff next asserts that section 37 of the act relating to habeas corpus proceedings (Ill. Rev. Stat. 1977, ch. 65, par. 36.1) barred the trial court from permitting defendant to file the amended return or the cross-petition for writ of habeas corpus seeking the return of Gary from plaintiff. This section states in part:
"Where relief is sought under this Act and the Court determines, on motion directed to the pleadings, or on motion for summary judgment or upon trial, that the plaintiff has pleaded or established facts which entitle him to relief but that he has sought the wrong remedy, the Court shall permit the pleadings to be amended, * * * and the Court shall grant the relief to which plaintiff is entitled on the amended pleadings or upon the evidence. * * *"
Plaintiff argues that defendant's return was not subject to amendment because by its very nature the return was incapable of stating a cause of action entitling defendant to relief.
2 By implication, plaintiff contends that amendments to pleadings in habeas corpus proceedings are governed exclusively by section 37. However, plaintiff fails to take into account section 20 of the act (Ill. Rev. Stat. 1977, ch. 65, par. 20) which provides:
"The return, as well as any denial or allegation, may be amended at any time by leave of the court or judge."
We do not find section 37 to be controlling in this case. The purpose of this section is to have the remedy sought comport with the proof at trial or with the allegations of fact in the petition in the case of a hearing on a motion directed toward the pleadings. This legislative purpose is apparent because it is the remedy sought, and not the allegations of fact, which may be amended. Since the function of section 37 of the act relating to habeas corpus proceedings is to permit a change in the remedy sought to conform with the proofs or allegations of a pleading against which a motion is directed or which is the subject of a motion for summary judgment, we hold that it does not apply to amendments to pleadings which are made prior to a hearing on a petition or prior to hearing on such motions. Accordingly, defendant's amendment to her return and her cross-petition were not barred by section 37 of the act.
Section 20 of the act relating to habeas corpus proceedings governs the amendments to defendant's pleadings in this case. In ascertaining the propriety of the trial court's order in granting defendant leave to amend and leave to file her cross-petition, we are mindful that section 32 of the act (Ill. Rev. Stat. 1977, ch. 65, par. 32) states that the provisions of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 1 et seq.) shall apply to habeas corpus proceedings. Under section 46 of the Civil Practice Act, permission to file an amendment rests within the sound discretion of the trial court, and its decision ought not to be disturbed on review unless there is a showing that the court abused its discretion. (Hastings v. Abernathy Taxi Association, Inc. (1973), 16 Ill. App.3d 671, 306 N.E.2d 498.) The test to be applied in determining whether there has been an abuse of discretion is whether the order permitting the amendment of the pleadings furthers the ends of justice. (Hastings v. Abernathy Taxi Association, Inc.; O'Neill v. Chicago Transit Authority (1972), 5 Ill. App.3d 69, 283 N.E.2d 99.) ...