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Moseley v. Goldstone





APPEAL from the Circuit Court of Cook County; the Hon. ROBERT C. BUCKLEY and the Hon. JOHN C. CROWN, Judges, presiding.


This case presents the somewhat bizarre circumstances of a natural mother and putative father being deprived of custody of their four children by virtue of a series of court orders entered in the States of Florida and Illinois which initially gave to and thereafter continued custody of the children with the maternal grandparents. The mother, and her husband, whose parental relationship to the children was questioned by the grandparents, appear to have married in March or April of 1978, although the oldest of the four children was born in 1966 and the youngest in 1973. The appeal is taken from an order dismissing the petition of the mother and her husband filed in Illinois, which sought custody based upon an alleged change of circumstances, and from an order denying vacatur of the dismissal order.

The mother and her husband raise as issues the denial of their rights of visitation; the applicability to their situation of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1979, ch. 40, pars. 601, 610) (Marriage Act); and the propriety of the order denying their motion to vacate the dismissal order after they sought to comply with court orders and the statute. For reasons hereinafter set forth we reverse and remand for further proceedings.

The verified petition filed by the mother, Rebecca E., and the husband, Robert T. Moseley ("mother and husband" or "petitioners"), on June 6, 1979, invoked the jurisdiction of the circuit court of Cook County under section 601 of the Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 601). It alleged that in February 1978, Rebecca took their four children on a planned visit with the mother's parents, Norval (who since died) and Jeannette Goldstone ("grandparents") then living in Florida. Thereafter, Robert flew to Florida, spent a few days there with the mother, and returned with her to Chicago, leaving the children with the grandparents and intending to return and pick them up in two weeks. Before the two weeks elapsed, the petition states, the school-aged children were enrolled in Florida schools. Petitioners went back to Florida and subsequently assented to allowing the children to remain there until completion of the spring school term.

In March 1978, according to the petition, the grandparents initiated an action in Florida seeking custody of the children. In April 1978, petitioners retained Florida counsel and traveled there to oppose the action and retrieve the children. The Florida court entered temporary custody orders and directed the investigation of the respective environmental situations of the mother and husband, and of the grandparents, in making a determination of which home would serve the best interests of the children. It also directed that petitioners submit to psychiatric examinations pursuant to further order of court. No subsequent order on either subject appears to have been entered. Not mentioned in the petition was the filing by the mother and husband in Florida of a response and counterpetition for a writ of habeas corpus seeking custody of the children, which was denied on May 2, 1978, an exemplified copy of which is attached to appellee's brief.

Meanwhile, during the summer of 1978, the petition asserts, the grandparents returned to the Chicago area with the children and petitioners filed an action in the circuit court of Cook County for a writ of habeas corpus, which was denied on August 7, 1978, setting forth as grounds that there was a prior custody proceeding pending in the State of Florida and that the local court was without jurisdiction to grant the relief sought. Thereafter, the grandparents returned to Florida with the children and refused to allow any communication to take place between the latter and petitioners. The grandparents filed a motion for summary judgment, which alluded to "* * * testimony adduced at the temporary hearing and the report of the Division of Family Services all show[ing] that the best interest of the minor children will be served by being placed in the * * * [grandparents'] custody." No transcript of testimony or report was attached to the motion. On February 13, 1979, an order was entered by the Florida court awarding to the grandparents "* * * the permanent care, custody and control of the minor children," and permitting the grandparents to remove the children from the jurisdiction of the Florida court subject to further orders. The order noted that counsel for the mother and husband had represented to the court that they would not appear for a final hearing in the cause. In February 1979, the grandparents left Florida and returned permanently to the Chicago area with the children, who were thereafter enrolled in local schools.

The petition alleged that since the February 1979 Florida ruling there had been a substantial change in circumstances involving the grandparents' illnesses and that the present environment of the children seriously endangered their physical, mental, moral and emotional health. No affidavits accompanied the petition. A motion to strike and dismiss the petition filed by the grandparents was denied, and they were given leave to respond, which they did on June 28, 1979. The verified response denied that Robert was the father of the children and disputed the authenticity of the birth certificates attached to the petition as exhibits, claiming that they were reregistrations and that the children were actually fathered by a different person. The response questioned the Cook County court's jurisdiction of the petition in view of the Florida proceedings and by reason of the provisions of section 610 of the Marriage Act. Ill. Rev. Stat. 1979, ch. 40, par. 610.

The grandparents' response alleged further that in January 1978 the eldest child, a female, ran away from the home in which she resided with the mother and husband. This action was precipitated by certain alleged misconduct by the husband toward her, as reported to police some two years prior to January 1978, and another incident which occurred just prior to the time she ran away. We deem it unnecessary and inappropriate to memorialize in this opinion the specific allegations made. She refused to return home and was taken to the home of one of the mother's sisters. During the night, the mother called the grandparents, said that she was in fear of her life and wanted to come to Florida with the children, which they did that night. Two weeks later Robert came to Florida. Without anything being said, the response asserts, the mother departed Florida with Robert and abandoned the children to the grandparents.

The response further maintains that the grandparents enrolled the children in school in February 1978 because they received no word from the mother concerning their future. In March 1978, the mother, claiming that she was leaving Robert, came to Florida with one of her sisters. Two weeks later Robert again appeared in Florida and took the mother back to Chicago with him, again abandoning the children to the grandparents. The grandparents several weeks later received a letter from the mother and Robert stating that they had gotten married in Georgia in the interim. Because of the antecedent events, the grandparents applied to the Florida court for custody of the children. The response denied any change in circumstances except for the fact that the children were now present in Illinois and that the mother and her husband were not fit and proper to have custody of the children by virtue of the mother's condonation of the unnatural acts of her husband towards the oldest child and the fact that the husband had inflicted on the children severe physical abuse including beatings with a rubber or vinyl hose from which the oldest child still bore scars.

The Illinois hearings on the petition began on June 28, 1979. The eldest child was interviewed in chambers by the court in the presence of a court reporter and attorneys for both sides. That examination was undertaken for the purpose of determining whether visitation by petitioners of the children should have been allowed as temporary relief. The 13-year-old girl testified that she did not want to see her mother and father because her "* * * mother has hurt her too many times * * *." She then testified about the improper conduct of the husband toward her, which was the same conduct set forth in the grandparents' response, to which we have alluded in the paragraph previous to the one preceding this one. Thereafter, the court directed that an investigation be undertaken by the Department of Supportive Services of the homes of petitioners and of the grandparents. No report of the results of such an investigation appears in the record, nor do the parties refer to any such report. The mother and husband were prohibited from communication with or attempting to see the children until further order of court.

A series of motions followed, seeking to vacate earlier orders and for temporary custody or visitation, without disposition until January 21, 1980. On that date the trial court denied motions to vacate prior orders of temporary custody and other relief, in consideration of the petition, motions and response, as well as arguments of counsel and of the mother and husband, now appearing pro se. On February 8, 1980, the court directed, among other things, that the mother, only, be allowed to visit with the children at the present place of residence each Sunday, but denied to the husband any rights of visitation. The cause was continued until ultimately assigned to another judge for trial.

On March 25, 1980, the new court found that the mother and husband's petition for permanent custody was insufficient because it failed to include affidavits in support thereof as required by section 610(a) of the Marriage Act (Ill. Rev. Stat. 1979, ch. 40, par. 610(a)) and directed that the petition be dismissed unless such affidavits were filed before April 21, 1980. It was petitioners' contention pro se that affidavits were not required by section 610(a), and on April 21 they filed motions for a continuance and for a change of venue based upon their understanding of the law. On April 25, 1980, these motions were denied and the permanent custody petition dismissed with prejudice for failure to comply with orders of court and with section 610(a). On May 22, 1980, petitioners filed a motion to vacate the dismissal to which were attached two affidavits in an effort to comply with the court's previous orders and to bring their petition within the requirements of section 610(a). That motion was denied, the trial court observing that petitioners had been given a "substantial length of time to file these affidavits * * * [but that they] have refused to comply." The trial court found no basis upon which it was authorized to vacate the previous order of dismissal.

Petitioners appeal only from the dismissal order of April 25 and the vacatur denial of May 22, ...

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