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In Re Marriage of Miche

OPINION FILED MARCH 29, 1985.

IN RE MARRIAGE OF THOMAS A. MICHE, PETITIONER-APPELLEE, AND BIBIAN MICHE, RESPONDENT-APPELLANT.


Appeal from the Circuit Court of Lake County; the Hon. Alphonse Witt, Judge, presiding.

JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:

In this dissolution of marriage action, respondent, Bibian Miche, appeals from an order of the circuit court of Lake County which retained jurisdiction over the issue of custody of the couple's three minor children and awarded temporary custody of the two eldest children to petitioner, Thomas Miche. The sole issue in this interlocutory appeal (87 Ill.2d R. 306) is whether the circuit court has jurisdiction over the minor children pursuant to the Uniform Child Custody Jurisdiction Act (hereinafter referred to as the Act) (Ill. Rev. Stat. 1983, ch. 40, par. 2101 et seq.). We reverse.

Thomas and Bibian Miche were married on October 17, 1973, in the Philippines. In 1974, the couple moved to California, where they continued to reside until August 1983. As a result of the marriage, the couple had three children: Michelle Sherry, age 10 at the time of trial; Steven Thomas, age nine; and Merry Jean Gloria, age six.

On August 16, 1983, Thomas Miche and his two eldest children, Michelle and Steven, moved to Illinois. Subsequently, on November 18, 1983, the petitioner filed suit for dissolution of marriage in the Lake County circuit court. Prior to entry of the judgment for dissolution of marriage, the respondent filed a petition for dissolution of marriage in California, requesting that she be granted custody of the children. Shortly thereafter on February 13, 1984, the trial court in Illinois entered a judgment, by default, for dissolution of marriage and awarded the petitioner custody of the two eldest children.

On February 17, 1984, the respondent filed a special and limited appearance and a motion to vacate the judgment for dissolution of marriage. The motion contested the Illinois trial court's jurisdiction to determine child custody. The trial court vacated that portion of the judgment awarding custody of the two eldest children, Michelle and Steven, to the petitioner. However, it awarded the petitioner temporary custody of the two eldest children and retained jurisdiction to make a final custody determination. Respondent's subsequent motion to reconsider was denied, and timely petition for interlocutory appeal followed.

On appeal, respondent contends that jurisdiction is lacking because Illinois is not the "home state" of the minor children within the meaning of section 4(a)(1)(i) of the Act (Ill. Rev. Stat. 1983, ch. 40, par. 2104(a)(1)(i)), and because it would not be in the best interest of the children for Illinois to assume jurisdiction (see Ill. Rev. Stat. 1983, ch. 40, pars. 2104(a)(2), 2108(c)). We agree.

Section 4(a) of the Uniform Child Custody Jurisdiction Act (Ill. Rev. Stat. 1983, ch. 40, par. 2104(a)) sets forth the circumstances under which Illinois courts have jurisdiction to make a child custody determination. That section provides, in relevant part:

"(a) The circuit courts have jurisdiction to make a child custody determination by initial or modification judgment if:

1. this State

(i) is the home state of the child at the time of commencement of the proceeding, or

2. it is in the best interest of the child that a court of this State assume jurisdiction because

(i) the child and his parents, or the child and at least one contestant, have a significant connection with this State, and

(ii) there is available in this State substantial evidence concerning the child's present or future care, protection, training, and personal relationships; * * *." Ill. Rev. Stat. 1983, ch. 40, par. 2104(a).

• 1 We find persuasive respondent's first contention that Illinois is not the "home state" of the minor children. "Home state" is defined in the Act, for purposes of this appeal, as "the state in which the child immediately preceding the time involved lived with his parents, a parent, or a person acting as parent, for at least 6 consecutive months * * *." (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 40, par. 2103.04.) The "time involved" in the instant action is the "time of commencement of the proceeding." (Emphasis added.) (Ill. Rev. Stat. 1983, ch. 40, par. 2104(a)(1)(i).) "Custody proceeding" is ...


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