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In Re Marriage of Levy




Respondent appeals from two orders entered pursuant to the Uniform Child Custody Jurisdiction Act (UCCJA) in one of which the court declined to exercise jurisdiction over the subject matter of custody of the parties' minor child, vacated and dissolved a temporary injunction enjoining petitioner from proceeding in New York, denied injunctive relief, and struck other portions of respondent's motion for rehearing and his supplemental petition in regard to the minor's visitation.

The trial court, in a judgment of dissolution of marriage entered in January 1980, provided for joint custody of a 10-year-old minor child (minor) but granted physical custody to petitioner pursuant to a marital settlement agreement approved and adopted by the court. The agreement also provided that there should be reasonable visitation rights for respondent; that petitioner would not change the minor's residence from the Chicago area without the prior consent of respondent or order of the court; and that, if asked for a permanent change in the minor's residence, respondent's response would be based only on his views as to the minor's best interests.

In February 1980, petitioner married Ronald Friedland, president of an organization headquartered in New York and India called Sidia Yoga Dham Ashram Foundation whose head is an Indian guru known as "Baba." Although it is undisputed that in 1979 Friedland established a residence in New York, he testified at hearings before the trial court that due to health problems he could not spend winters in a cold climate and that his position as president of the foundation had a bearing on where he lives throughout the year.

After her remarriage, petitioner resided in Chicago with the minor until she moved to New York in April 1980. The minor remained with respondent in Chicago until he completed school in June 1980, when he and his belongings were moved to New York. Petitioner testified that in December 1979 or January 1980 she told respondent that she would be moving to New York in the spring; that respondent suggested that the minor remain in Chicago to finish the school year; and that, when her remarriage was discussed, he made no objection to her moving to New York with the minor. Respondent testified that petitioner told him at that time she did not believe she would marry Friedland or leave Chicago; that the minor would continue to reside in Chicago and stay in the same school; that he never assented to moving the minor's residency to New York; and that in April 1980 he learned from petitioner of her intention to go to New York to be with Friedland and her guru until the latter's next stop on his world tour.

During the summer of 1980, the minor spent between 5 and 7 weeks in New York and the remainder in Chicago with respondent. From September 1980 to May 1981, petitioner, the minor, and Friedland resided in California because of the latter's health problem and also to be near "Baba." During that period, the minor was enrolled in a California school system.

Petitioner testified that during the summer of 1980, she had discussions with respondent concerning her intention to spend the winter in California with Friedland and the minor, but there was no understanding that the minor would return to Chicago in the fall. Respondent testified that during their discussions, he reminded her of her promise that she would not remove the minor from Chicago and that he did not commence court action before the California move because "he couldn't bear to inflict the pain on [the minor] when he asked him not to." He also stated that while petitioner was in California she told him that "Baba" was going to India and she planned to follow him there with the minor, and when he (respondent) objected she agreed that while she was in India he could return to school in Chicago; that the minor came to Chicago in April 1981 and was interviewed at the school for readmission; and that subsequently, during a telephone conversation, the minor said he would be leaving his California school before the end of the term to be in New York for "Baba's" birthday.

Petitioner returned to New York with the minor and two weeks later petitioned there to modify the Illinois separation agreement for permission to remove the minor to India and to reside with the minor in New York and other parts of the United States and/or the world, with reasonable rights of visitation and temporary periods of custody in Chicago.

On June 8, 1981, respondent filed a petition here requesting, in pertinent part, an injunction to prevent petitioner from continuing the action in New York; a finding that New York is an inappropriate forum; a modification of the original judgment to change the minor's resident to respondent's home; and an order requiring petitioner to show cause why she should not be held in contempt for disregarding orders of the Illinois court. After petitioner moved to strike and dismiss, the court temporarily enjoined petitioner from proceeding in the New York action.

In a hearing on respondent's petition, the court identified the issues to be whether (a) it should exercise subject matter jurisdiction over a modification of the original judgment and (b) it should issue an injunction restraining petitioner from continuing her action in New York. The court then found that Illinois was not the home State of the minor under the UCCJA; that the minor no longer had significant connections with Illinois — not having been a resident for over one year; and that substantial evidence regarding the minor's well-being is available in another State. Based upon those findings, it entered an order declining to exercise jurisdiction over the subject matter of custody, vacating the temporary injunction, denying further injunctive relief, and striking portions of respondent's petition to custody and injunctive relief. Respondent's motion for rehearing and a supplemental petition to permit visitation were denied on July 27.

Respondent appealed the July 20 and July 27 orders under Supreme Court Rule 304(a) and (b) and, subsequently, filed an amended notice of interlocutory appeal under Supreme Court Rule 307.


It is essentially the contention of respondent that the court erred in its application of the provisions of the UCCJA.

We first consider the question of our jurisdiction to consider this appeal. The record shows that on July 27, 1981, petitioner filed a notice of appeal from the July 20 and July 27 orders of the trial court under Supreme Court Rule 304 (Ill. Rev. Stat. 1979, ch. 110A, par. 304). An amended notice of interlocutory appeal subsequently was filed on August 21 under Supreme Court Rule 307 (Ill. Rev. Stat. 1979, ch. 110A, par. 307) from the same orders. Respondent argues that this appeal is before us under Rule 307 and thus, that the scope of our review is limited to a determination of whether it was within the discretion of the trial court to deny injunctive relief, and that a discussion of the trial court's jurisdictional analysis relating to the UCCJA is proper only under Rule 304. We are of the opinion that the appeal is before us under Rule 307, which provides for an appeal as of right from an order refusing to grant an injunction; but that, in any event, the issue is the same under either rule as, in determining whether the trial court properly refused to enjoin petitioner from proceeding in the New York courts>, we must necessarily determine whether the trial court here had jurisdiction under the UCCJA.

The statutory authority relevant to the court's determination of its jurisdiction over this custody matter is contained within the provisions of UCCJA as adopted in Illinois (Ill. Rev. Stat. 1979, ch. 40, par. 2101 et seq.), the stated principal purposes of which are to avoid conflict with courts> of other States, to protect the best interests of the child, and to discourage forum shopping (Ill. Rev. Stat. 1979, ch. 40, par. 2102).

Section 4 of the UCCJA (Ill. Rev. Stat. 1979, ch. 40, par. 2104) provides, in relevant part:

"(a) The circuit courts> have jurisdiction to make a child custody determination by initial or ...

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