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In Re Marriage of Bussey

OPINION FILED OCTOBER 3, 1985.

IN RE MARRIAGE OF KENNETH BUSSEY, APPELLANT, AND JEANNE BUSSEY, APPELLEE.


Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Champaign County, the Hon. Arthur Nicol, Judge, presiding.

JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:

Petitioner, Kenneth Bussey, appealed from an order of the circuit court of Champaign County increasing his child-support payments and ordering him to pay 90% of his former wife's attorney fees. Petitioner contended that the circuit court was without jurisdiction to modify the original decree because the decree was issued in Indiana and was not properly enrolled in Illinois. Petitioner also contended that the circuit court abused its discretion by increasing the child-support payments and by awarding attorney fees. The appellate court rejected petitioner's contentions and affirmed the circuit court's decision. (128 Ill. App.3d 730.) We granted leave to appeal pursuant to our Rule 315 (94 Ill.2d R. 315). We now affirm the circuit court of Champaign County.

Petitioner and his former wife, respondent Jeanne Bussey Fincher, were divorced in Marion County, Indiana, in 1976. The divorce decree awarded the custody of the couple's two children, Brent, born March 3, 1971, and Kimberly, born August 8, 1973, to the respondent. The divorce decree also ordered petitioner to provide child support.

In January of 1981 respondent requested petitioner to take physical custody of the children. Since the record of the subsequent change-in-custody proceeding is not before this court, we will not speculate as to the reasons for this request or the contemplated length of the requested change in physical custody.

On August 18, 1981, petitioner instituted the present action by filing a petition for a change in custody in the circuit court of Champaign County, Illinois. The verified petition referred to the Indiana divorce decree and requested that it be modified to give custody to petitioner. A certified copy of the decree, sworn to be true and correct, was attached to the petition.

The respondent opposed any change in custody. On January 18, 1983, the circuit court of Champaign County, after hearing testimony and arguments, denied petitioner's motion to modify the custody provisions of the divorce decree and reawarded permanent custody of both children to Mrs. Bussey. The court reserved ruling on child support. No appeal was taken from the denial of Dr. Bussey's petition for change in custody.

On March 13, 1983, respondent filed her own petition in Champaign County requesting that the original decree in the matter be modified to provide an increase in child support. Respondent's petition referred to the original decree as having been "enrolled in the circuit court of Champaign County," presumably by petitioner's change-in-custody petition. Respondent's attorney also filed a petition for attorney fees.

A hearing was held on respondent's modification-of-support petition, and written arguments were submitted. On August 19, 1983, the circuit court modified petitioner's child-support obligation under the decree to provide that he pay $900 per month per child; all medical, dental, orthodontic and other physical health care expenses of the children; one-half of all expenses incurred for counseling, testing or other sources relating to the mental or emotional health of the children up to a maximum of $1,500 per year per child; and one-half of the tuition for any private school for either or both children up to a maximum of $300 per month per child. The circuit court also ordered petitioner to pay 90% of respondent's attorney fees.

Petitioner now contends that the circuit court of Champaign County was without subject matter jurisdiction to modify the Indiana divorce decree because the decree was not properly enrolled in Illinois. We disagree because the change-in-custody petition filed by the petitioner was sufficient to enroll the decree. As noted in the appellate court opinion, the question of subject matter jurisdiction was not raised in the trial court. 128 Ill. App.3d 730, 731.

Section 511 of the "Illinois Marriage and Dissolution of Marriage Act" provides in part:

"A judgment of dissolution or of legal separation or of declaration of invalidity of marriage may be enforced or modified by order of court pursuant to petition.

(a) Any judgment entered within this State may be enforced or modified in the judicial circuit wherein such judgment was entered or last modified by the filing of a petition with notice mailed to the respondent * * *.

(b) In any post-judgment proceeding to enforce or modify in one judicial circuit the judgment of another judicial circuit of this State, the moving party shall commence the proceeding by filing a petition establishing the judgment and attaching a copy of the judgment as a part of the petition. The parties shall continue to be designated as in the original proceeding. Notice of the filing of the petition shall be mailed to the clerk of the court wherein the judgment was entered and last ...


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