Appeal from the Circuit Court of Adams County; the Hon. David
K. Slocum, Judge, presiding.
JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
These consolidated appeals arise from a dissolution of marriage proceeding in the circuit court of Adams County between petitioner, Lisa L. Spangler, and respondent, Kim A. Spangler. In case No. 4-83-0507, petitioner appeals from that portion of an order entered by that court on April 7, 1983, awarding custody of the parties' children to respondent. Subsequent to petitioner's timely filing of notice of appeal from that order, petitioner filed a petition under section 610 of the Illinois Marriage and Dissolution of Marriage Act (IMDMA) (Ill. Rev. Stat. 1983, ch. 40, par. 610) on August 31, 1983, seeking modification of the custody order. On September 21, 1983, the trial court dismissed that petition for want of jurisdiction. The appeal in case No. 4-83-0717 is by petitioner and from that order. We affirm the April 7, 1983, order and reverse the order of dismissal entered on September 21, 1983.
The order dismissing the petition to modify presents a unique question upon which no direct authority has been presented or discovered. Accordingly, we consider that question first.
The petition to modify was filed after the notice of appeal from the order of custody had been filed and while that appeal was pending. One of the reasons that the trial court held that it had no jurisdiction was the familiar, general rule that a trial court has no jurisdiction to change the substance of an order during the pendency of an appeal from that order. (In re Marriage of Legge (1982), 111 Ill. App.3d 198, 443 N.E.2d 1089.) On the surface, it appears that the instant petition to modify seeks the very relief which the foregoing rule holds to be beyond the power of the court to grant. However, a close analysis of the nature of the procedure to modify custody pursuant to section 610 of the IMDMA persuades us to the contrary.
Section 610 states in part:
"Modification. (a) Unless by stipulation of the parties, no motion to modify a custody judgment may be made earlier than 2 years after its date, unless the court permits it to be made on the basis of affidavits that there is reason to believe the child's present environment may endanger seriously his physical, mental, moral or emotional health.
(b) After the expiration of the 2 year period following a custody judgment specified in subsection (a) of this Section, the court shall not modify a prior custody judgment unless it finds by clear and convincing evidence, upon the basis of facts that have arisen since the prior judgment or that were unknown to the court at the time of entry of the prior judgment, that a change has occurred in the circumstances of the child or his custodian, or in the case of a joint custody arrangement that a change has occurred in the circumstances of the child or either or both parties having custody, and that the modification is necessary to serve the best interest of the child." (Emphasis added.) Ill. Rev. Stat. 1983, ch. 40, par. 610.
• 1 A grant of section 610 relief by a trial court during the pendency of an appeal from a prior custody order differs in a significant aspect from other situations where a trial court is requested to "modify" a prior order pending its appeal. Section 610 retains the common law rule enunciated in Nye v. Nye (1952), 411 Ill. 408, 105 N.E.2d 300, that a final custody order is res judicata as to facts presented to the court at the time of the entry of that order. (See Ill. Ann. Stat., ch. 40, par. 610, Historical & Practice Notes, at 93 (Smith-Hurd 1980).) Thus, the original custody order stands as the judgment of the court as to the circumstances before the court at the time of entry and that judgment is not changed by a grant of relief under section 610. Although the granting of such relief is said to "modify" the judgment of custody, actually, a new judgment is entered based on new facts and circumstances. As the procedure requires the giving of res judicata effect to the original custody determination, the new custody judgment is one that could be entered even if the original custody judgment is affirmed.
Our conclusion that the trial court had jurisdiction to enter the order of modification here is consistent with that of the Second District in the case of In re Marriage of Petramale (1981), 102 Ill. App.3d 1049, 430 N.E.2d 569. That court held a trial court to have jurisdiction to hear a petition to modify an award of child support filed pursuant to section 510 of the IMDMA while appeal from the original order of support was pending. That court made a somewhat different analysis than ours, basing its decision on the rule that support orders are always subject to modification and that the court has jurisdiction to modify such orders without reserving jurisdiction. The court also noted that "the duration of the appellate process requires that petitioners have a forum available at all times in which support matters may be determined." 102 Ill. App.3d 1049, 1053, 430 N.E.2d 569, 573.
• 2 In order to obtain relief under either section 510 or section 610, a petitioner must show a change in circumstances from the situation which existed at the time the original order was entered. In both cases, relief may be necessary while an appeal is pending. The appellate court cannot grant such relief because its only power to change the effect of the judgment on appeal is that to stay the enforcement of the judgment. (87 Ill.2d R. 305.) Suggestion has been made that proceedings to change custody pending appeal from a custody order might be had in a dire emergency under the provisions of the Juvenile Court Act. (Ill. Rev. Stat. 1981, ch. 37, par. 701-1 et seq.) Such a procedure would be most cumbersome. It is questionable if the Juvenile Court Act would cover all instances where modification of custody is highly desirable.
If the trial court hears the section 610 petition while the original order is on appeal and denies relief, the appeal would not suffer interference. If the trial court granted relief, the original appeal may become moot. The Petramale court recognized this, but was not deterred from upholding the trial court's jurisdiction. We agree. The mooting of the question on appeal is not an interference with the appeal as would be the case if the record upon which the appeal is based was changed by the trial court after a notice of appeal was filed. The cause of justice is usually served rather than obstructed when a dispute is mooted. Because of the res judicata effect that the trial court must give to the original order on appeal, the authority of the reviewing court to pass on the propriety of the original order, if necessary, is not infringed upon by the trial court.
• 3 In taking the position that the trial court lacked jurisdiction to hear the petition, both the trial court and respondent have relied upon the theory that the intent of section 610 of the IMDMA, which is to encourage stability and continuity as to child custody, would be defeated if a trial court could do so. However, the provisions of the IMDMA encourage stability and continuity regardless of whether the petition is heard pending appeal or otherwise. Not only is a change in circumstance required for any relief under section 610, but where, as here and typically when the original order is on appeal, less than two years have elapsed since the prior order, the petitioner must support the petition with affidavits showing that there is reason to believe the child's present environment may "endanger seriously his physical, mental, moral or emotional health." When the stringent requirements of section 610 are met, relief may be necessary, regardless of whether the original order is on appeal.
In reversing the order dismissing the section 610 petition we are holding that the pendency of the appeal from the original custody order did not deprive the court of jurisdiction to hear the petition to modify. We are not passing on any other aspect of that request for relief.
We now address the issue raised by petitioner in case No. 4-83-0507. Petitioner maintains on appeal that the trial court's order entered on April 7, 1983, awarding permanent custody of the parties' two minor daughters to ...