Appeal from the Circuit Court of St. Clair County; the Hon.
Richard A. Hudlin IV, Judge, presiding.
JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:
Respondent, Edward G. Jennings, appeals from a judgment of the circuit court of St. Clair County which modified a prior foreign custody judgment by reducing respondent's summertime visitation by a total of five days. On appeal, respondent contends: (1) that the circuit court was without jurisdiction to make a custody modification; (2) that the circuit court abused its discretion in denying respondent's motion for change of venue brought under section 2-1001(a)(2) of the Code of Civil Procedure (Ill. Rev. Stat. 1983, ch. 110, par. 2-1001(a)(2)); and (3) that the circuit court erred in granting the modification.
The parties hereto were divorced on June 15, 1983, by the district court of Johnson County, Kansas. Two children, Melissa, then age five, and Amanda, then age three, had been born of the marriage. The decree of divorce granted the parties "joint" custody of their children; however, the children were to reside with petitioner, while respondent was granted specific visitation rights. At the time the decree was entered, petitioner and the children had been residing in Illinois for over two months and have continued to reside in Illinois since that date.
On October 4, 1983, petitioner filed a motion in the district court of Johnson County, Kansas, seeking to have the visitation provisions of the June 15, 1983, decree of divorce modified, alleging that the current visitation interfered with Melissa's school calendar. On November 11, 1983, petitioner filed a motion to amend her previous motion in Johnson County, Kansas, so as to include the request that she be granted sole custody of the children. Subsequently, on November 17, 1983, petitioner filed a verified petition in the circuit court of St. Clair County, Illinois, for registration of the Kansas decree, together with a petition for modification of the custody provisions of that decree. The petition for registration made no mention of the Kansas modification proceedings and, in fact, alleged "[t]hat subsequent to the entry of the divorce decree, no legal proceedings have affected this decree."
On December 22, 1983, respondent filed his special appearance in the circuit court of St. Clair County, in which he disclosed to the court the existence of the Kansas proceedings and disputed the jurisdiction of the court. In an order entered March 2, 1984, the circuit court of St. Clair County denied respondent's motion to quash the proceedings and held that it had jurisdiction to hear petitioner's petition to modify.
In the circuit court, and now again on appeal, respondent has argued that pursuant to section 7(a) of the Uniform Child Custody Jurisdiction Act (Ill. Rev. Stat. 1983, ch. 40, par. 2107(a) (hereinafter referred to as the UCCJA)), the circuit court was required to decline jurisdiction because of the modification proceeding pending in the Kansas court.
The UCCJA has been adopted by both the States of Illinois and Kansas. Section 7(a) of the Act provides as follows:
"(a) A court of this State shall not exercise its jurisdiction under this Act if at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this Act, unless the proceeding is stayed by the court of the other state because this State is a more appropriate forum or for other reasons."
It is undisputed that at the time petitioner instituted these proceedings in the circuit court of St. Clair County there was another proceeding concerning the custody of the children pending in the district court of Johnson County, Kansas, and that proceeding had not been stayed. It is our opinion, therefore, that if the Kansas court was exercising jurisdiction substantially in conformity with the UCCJA, the St. Clair County circuit court improperly purported to exercise jurisdiction under such act.
By virtue of section 601 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1983, ch. 40, par. 601), section 4 of the UCCJA (Ill. Rev. Stat. 1983, ch. 40, par. 2104) governs jurisdiction of the court to make a child custody determination. The law in force at the time these proceedings were commenced in Illinois provided:
"Sec. 4. Jurisdiction. (a) The circuit courts have jurisdiction to make a child custody determination by initial or modification judgment if:
(i) is the home state of the child at the time of commencement of the proceeding, or
(ii) had been the child's home state within 6 months before commencement of the proceeding and the child is absent from this State because of his removal or retention by a person claiming his custody or for other reasons, and a parent ...