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In Re Marriage of Weinstein



APPEAL from the Circuit Court of Cook County; the Hon. ALBERT S. PORTER, Judge presiding.


Susan Weinstein (hereinafter the mother) appeals from the trial court's judgment awarding custody to her former husband, Larry Weinstein (hereinafter the father), of the two minor children of their marriage, Noah and Jason. The issues raised are whether the trial court lacked subject matter jurisdiction or alternatively was an inconvenient forum, and whether the judgment appealed from was manifestly unjust to the mother. For the reasons given below, we affirm and remand with directions.

The mother and father, both reared in Illinois, were married here in 1971; Noah was born in 1974 in Illinois, and Jason was born in 1976 in Montana. The first four years after they wed the parties lived in DeKalb, Illinois, where both obtained degrees from Northern Illinois University. In September of 1975, they moved to Bozeman, Montana, and a year later, into a house situated on farm property about 12 miles outside Bozeman. The father and mother discussed divorce in December of 1977. They agreed that he would spend two weeks with the boys at his parents' home in Skokie, Illinois, before returning to Montana to file for divorce. On March 14, 1978, the mother accompanied them to the airport, where the father purchased round-trip tickets. He and the boys flew to Illinois. On March 28, 1978, the day before their scheduled return, he telephoned the mother to tell her they were not returning to Montana, and that he intended to file for divorce in Illinois.

On April 3, 1978, the father filed an action in the circuit court of Cook County for dissolution of the marriage and custody of Noah and Jason. Two days later the mother filed a parallel action in Gallatin County, Montana, seeking the same relief. The father was served with summons in the Montana proceeding on May 12, 1978, but did not appear; service was not had upon the mother in the Illinois action, though the father represented to the trial court that it was attempted. On April 7, 1978, the Montana court gave temporary custody of Noah and Jason to the mother, an award that was renewed on April 24, 1978, and made permanent by the decree of June 5, 1978, which also dissolved the parties' marriage. Neither the decree of dissolution nor any other documents from the Montana proceeding made part of the record indicate the Montana court was aware of a pending Illinois action; a recitation in the order of April 24 that the father was claiming custody may permit that inference.

Meanwhile, the Illinois court awarded temporary custody of the children to the father on April 14, 1978. The mother appeared specially on May 2, 1978, and moved for dismissal of the proceedings and vacatur of the April 14 order, arguing that Illinois lacked subject matter jurisdiction to determine custody because Montana was the children's home State and that no other jurisdictional prerequisite obtained. On September 15, 1978, this action was consolidated with the mother's concurrent petition to register and enforce the Montana decree. On September 26, 1978, the parties appeared before the court, which, in conjunction with counsel for both the mother and the father, determined that it would proceed to a custody hearing prior to ruling on the mother's aforesaid motions in order to apprise itself of the "factual basis" on which disposition of the motions would turn. Ruling on the jurisdictional issues was therefore deferred "[u]ntil such time as the Court has sufficient facts," and evidence was received on the custody issue on September 26 and October 2 of 1978.

The evidence revealed that the Montana home of the parties had five rooms and two bedrooms, one of which was shared by Noah and Jason. Four neighbors lived within one mile of them. Driving time to Bozeman was about 15 or 20 minutes, where the nearest public library was located. The closest store was two miles away. Noah was to attend a school about 10 or 12 minutes distant by bus. At the time of the hearing, the mother had added improvements in the form of a refrigerator and a separate bed for Noah. An irrigation ditch near the house but separated from it by a fenced garden contained water for most of the summer, but the children were not allowed to play near it. For a six-week period in 1978 the water system at the house had not been functioning, during which time the parties obtained water from their neighbors; thereafter a new well was installed and at the time of trial there was running water.

Montana neighbors Jack Alberda, his wife Margery and Pamela Rock testified for the mother. Alberda's home was one-half mile from that of the parties, whom he saw between 1976 and 1978 about once or twice a week. He owned pigs and a horse which were penned about 25 feet from the Weinstein home; if snow made the road from the house one-half mile from the highway impassable, his son could get through with his fourwheel drive truck. He described the father's treatment of Noah and Jason as "very lenient." Margery Alberda had seen the mother and children nearly every day during the two-year period; she described the mother as very loving and gentle with them and the parties' home as well kept up and clean. The father played with Noah and Jason when they were at the Alberdas' home. Ms. Rock saw the mother with the children in December of 1977 and described her as having a loving relationship and "very good rapport" with them. She saw the children on four or five occasions after March 1978 in Illinois; they appeared healthy, but she noticed a change in Noah's behavior.

The mother testified that she prepared all the children's meals and read to them in the evening. She had begun to teach Noah the alphabet and numbers, and saw to it that they were able to play with other children in the area. At the time of the hearing she had enrolled Noah in a preschool program at Wilson College in Bozeman. If given custody, she intended to remain home with the boys for about eight weeks in order to ease adjustment to their father's absence and thereafter to seek employment, in anticipation of which she had already hired as a babysitter one Cathy Batson, who lived three or four miles away. Believing Montana to be a better place than Illinois to raise the children, she did not desire or intend to leave there and relocate in Illinois. She did not use drugs or alcohol. Jason, who was 26 months old at the time of trial, would occasionally cry severely, hold his breath and lose consciousness. The mother first noticed this behavior when he was nine months old and had him examined by a pediatrician, who diagnosed no damage but prescribed medication. She testified that the father was "not interested" in Jason during the first six months of his infancy; he was not home much during that period and did not help her with Jason.

Lawrence Sikkema and Larry Sikkema, the mother's father and brother respectively, who live in Illinois, also testified on her behalf. Lawrence had visited the parties' Montana residence on three occasions, and found it a "comfortable country home." He last saw the mother and children together at his home in Lyndon, Illinois, during Christmas of 1977, at which time she attended and cared for them very well. Larry had visited the Montana home for a week in January of 1977; the mother had prepared the meals and disciplined the children. He did not approve of the father's behavior toward the children in that he was seldom home and too involved in personal affairs.

At the time of trial the father and children were living with his parents, Bernard and Sylvia Weinstein, at their Skokie, Illinois, home. Bernard Weinstein's house had three bedrooms, one of which was shared by the father and the boys. He was employed as a sales representative by a real estate firm and had flexible work hours. He visited the parties' Montana home in November of 1977, describing it as a "shack type of structure" and the boys' room as tiny. Sylvia Weinstein testified that she took care of Jason during the day while the father was at work; Noah attended a Montessori school five days per week. Her husband was home by 11 a.m. or noon every day, and one of them attended to Jason until the return of the father, who took care of the children most evenings and weekends.

The father testified that he was employed as a systems representative and picked up Noah at school after work. He intended to continue living at his parents' home. Noah will attend school two blocks away; Jason was not yet toilet trained. The parties had mutually decided to live at the Montana house, where the dirt road leading to the highway was occasionally closed in the winter. Pigs from adjacent farms would occasionally come onto the property and flies and mice were seasonally present in the house. He acknowledged seeing insects around his parents' Skokie home.

The trial court found both mother and father "more than suitable" as custodians of the children, the determinative consideration being their future environment. In that regard it perceived "nothing wrong with area of Bozeman" but weighed the prospective situation there, with the mother working and the children in the custody of "someone the Court knows nothing of" against the Skokie home of the grandparents, "who normally would be considered more desirable than some third party to take care of the children"; it also expressed concern about "what may happen to the children in the case of an emergency, if one were to arise in Bozeman." Custody of the children was then orally awarded to the father.

Pursuant to her pretrial jurisdictional motion to dismiss heard on December 18, 1978, the mother argued that Illinois lacked subject matter jurisdiction under the criteria set forth in section 601 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1977, ch. 40, par. 601) (hereinafter Illinois Act). Reviewing the evidence adduced at the custody hearing, the court found that it did under section 601(a)(2), in view of "[the] testimony concerning the present and future protection, or care, and training, and personal relationships of the child." It denied the mother's petition for rehearing and entered a written "Judgment for Custody," expressly incorporating its ruling on the father's petition for custody and its denial of the mother's petition to register the Montana decree. Reciting that it had jurisdiction over the parties and the subject matter and that the parties agreed "[it] should decide the question of permanent custody of the minor children of the parties based upon what is in the best interests of the children," the court found both parties were fit and proper to have custody; the father was a resident of Skokie, Cook County, ...

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