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In Re Marriage of Schuham

OPINION FILED DECEMBER 20, 1983.

IN RE MARRIAGE OF MYRNA IDA SCHUHAM, PETITIONER-APPELLEE, AND ANTHONY IRVING SCHUHAM, RESPONDENT-APPELLANT.


Appeal from the Circuit Court of Cook County; the Hon. Allen F. Rosin, Judge, presiding.

JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:

Respondent Anthony Schuham (Anthony) appeals from an order of the circuit court modifying a divorce judgment rendered in Missouri and registered in Illinois. The order increased his monthly child-support payments prospectively. Petitioner Myrna Schuham (Myrna) cross-appeals the order's prospective effect. This appeal and cross-appeal are consolidated with Anthony's subsequent appeal from an order awarding Myrna attorney fees for the preceding action.

The issues raised on appeal and cross-appeal are whether the circuit court: (1) had in personam jurisdiction over Anthony; (2) had jurisdiction over the subject matter of the action; (3) erred in excluding evidence of Anthony's current wife's business expenses; (4) erred in applying Missouri law to determine the age of emancipation of the parties' children; (5) erred because the increase in Anthony's support obligation was against the manifest weight of the evidence; (6) incorrectly failed to apply the support increase retroactively to the date of the initial petition; and (7) erred in ordering Anthony to pay all of Myrna's attorney fees.

Anthony and Myrna were divorced on July 26, 1976, pursuant to a decree entered by the circuit court of St. Louis County, Missouri. Myrna was granted custody of their four minor children; Anthony was ordered to pay $208.33 monthly per child for support; and Anthony was given certain visitation rights. In 1977 Myrna's petition for increased child support was denied by the Missouri court after a hearing. On May 2, 1979, the Missouri court on Myrna's petition allowed the three youngest children to live with her in Chicago and gave custody of the oldest child to Anthony, who remained in Missouri. In a supplemental order of the same date, the Missouri court expressly retained exclusive jurisdiction over the parties' minor children and any subsequent modification of the dissolution decree.

Myrna filed, on October 6, 1980, a petition in the circuit court of Cook County to register the Missouri divorce decree and supplemental order as foreign judgments in Illinois and for an order granting an increase in child support, a modification of Anthony's visitation rights, directing payment of certain arrearages for child support, and for a rule to show cause. Under notice provisions of the Uniform Child Custody Jurisdiction Act (UCCJA), Anthony was served by mail with a copy of the petition and a notice to appear at a hearing in Chicago on October 21, 1980. (Ill. Rev. Stat. 1979, ch. 40, par. 2106 (b)(3).) On October 21, 1980, an agreed order was entered wherein Anthony's attorney was given leave to file an appearance on Anthony's behalf, Anthony was directed to "file his response within 28 days," and the case was continued until December 10, 1980. Anthony filed a special and limited appearance on November 19, 1980, which prayed the court to find that it did not have in personam jurisdiction over him because he is not an Illinois resident, and that it further lacked subject matter jurisdiction in that the Missouri court had reserved exclusive jurisdiction over child support and visitation in the supplemental order. An order entered on December 10, 1980, by the circuit court of Cook County, among other things, allowed Myrna to register the foreign decree and expressly found jurisdiction over the parties and the subject matter, and gave Anthony leave to file his general appearance and his response, or otherwise plead, to the modification petition.

On January 9, 1981, Anthony filed a motion to dismiss, again alleging lack of personal and subject matter jurisdiction as well as a bar to Myrna's petition based on section 610 of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) in that the petition was brought within two years of the previous custody order. (Ill. Rev. Stat. 1979, ch. 40, par. 610(a).) This motion was orally denied at a January 22, 1981, hearing and a written order entered on January 23, 1981, provided that the special and limited appearance of Anthony's attorney would stand as a general appearance, gave Anthony time to file a reply to Myrna's modification petition, transferred the matter to the presiding judge for setting of a hearing on the merits of the petition, and denominated the order a "final appealable judgment." Anthony's interlocutory appeal to this court was dismissed, as fully discussed at 99 Ill. App.3d 48, 425 N.E.2d 29.

The couple's oldest child came to Illinois in October 1981, to live with Myrna. The Cook County circuit court granted Myrna temporary custody of this child on January 11, 1982.

Anthony's amended motion filed on October 14, 1981, with the Missouri court, seeking to hold Myrna in contempt of court and for a modification of the custody decree, among other things, was dismissed on Myrna's motion by the Missouri court on March 9, 1982.

Meanwhile, on October 21, 1981, Anthony was served personally by the sheriff of St. Louis County with copies of all initial pleadings in the instant action as well as a notice to appear in the circuit court of Cook County on November 5, 1981. Anthony's motion to quash this service of summons was denied on April 6, 1982, and a hearing on the merits began on that date, at which Anthony, Myrna, and Anthony's present wife, Rebecca, testified.

The circuit court of Cook County announced its findings orally on June 10, 1982, and in a written order entered on July 2, 1982, in which it awarded permanent custody of the oldest child to Myrna; modified the visitation provisions; increased Anthony's support payments effective June 10, 1982, to $1,600 per month, payable until emancipation as defined by Missouri law; denied Anthony's motion for attorney fees; and set for hearing the matter of Myrna's petition for attorney fees.

A hearing was conducted on October 8, 1982, and testimony was taken from Myrna, Myrna's trial attorney, the attorney who prosecuted her interlocutory appeal, and the latter attorney's law clerk. On December 7, 1982, the circuit court rendered its decision, which was incorporated into an order dated December 30, 1982, awarding Myrna fees of $15,975, of which $9,000 was for the prosecution of the case in chief, $5,575 for the interlocutory appeal and $1,400 for Anthony's noncompliance with discovery.

The appeals and cross-appeal followed.

Anthony contends that the circuit court of Cook County lacked in personam jurisdiction over him and was thereby precluded from ordering him to pay increased child support. Before a court can impose upon a defendant an affirmative obligation, such as a duty to pay money, it must first possess and assert jurisdiction over his person. (International Shoe Co. v. Washington (1945), 326 U.S. 310, 316, 90 L.Ed. 95, 101-02, 66 S.Ct. 154, 158; Pennoyer v. Neff (1878), 95 U.S. 714, 732-33, 24 L.Ed. 565, 572.) Judgments ordering support of children upon dissolution of marriage, as well as modifications of existing support judgments, constitute such personal obligations necessitating in personam jurisdiction. (Kulko v. Superior Court (1978), 436 U.S. 84, 91-92, 56 L.Ed.2d 132, 141, 98 S.Ct. 1690, 1696-97.) In Kulko the United States Supreme Court held that personal jurisdiction for purposes of child support requires of the obligor more substantial connections with the forum State than the mere presence in the forum of the obligor's children. (Accord, Boyer v. Boyer (1978), 73 Ill.2d 331, 383 N.E.2d 223.) In Boyer, our supreme court held that the "long arm" statute did not extend to impose personal jurisdiction over a non-custodial parent not domiciled in Illinois, where that parent's only contact with Illinois was the presence in this State of his children and ex-wife. See also Duncan v. Duncan (1981), 94 Ill. App.3d 868, 419 N.E.2d 700.

• 1 Under this precedent, the circuit court did not have in personam jurisdiction over Anthony, a domiciliary of Missouri with no assets in Illinois and whose only contact with this State is the presence here of his children and ex-wife. Neither was the method of service, by certified mail, in accordance with statutory requirements for the acquisition of personal jurisdiction over non-domiciliaries. (Ill. Rev. Stat. 1981, ch. 110, par. 2-203.) Apparently recognizing these problems, Myrna's argument on this issue focuses on Anthony's actions subsequent to the filing of her petition which she claims subjected him ...


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