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09/17/87 In Re Marriage of Carol Louise Weishaupt

September 17, 1987

IN RE MARRIAGE OF CAROL LOUISE WEISHAUPT, F/K/A CAROL


APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

Louise Hutchens, Plaintiff-Appellee, and DANIEL L.

HUTCHENS, Defendant-Appellant

514 N.E.2d 788, 160 Ill. App. 3d 563, 113 Ill. Dec. 6 1987.IL.1363

Appeal from the Circuit Court of Calhoun County; the Hon. Alfred L. Pezman, Judge, presiding.

APPELLATE Judges:

JUSTICE McCULLOUGH delivered the opinion of the court. LUND and KNECHT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

On February 17, 1978, plaintiff, Carol Louise Hutchens, and defendant, Daniel L. Hutchens, were granted a judgment of dissolution of marriage by the circuit court of Calhoun County. On July 7, 1986, plaintiff filed a petition for child support. Defendant thereafter filed a special limited appearance challenging the jurisdiction of the Illinois court, and moved to quash service of process, which had been effectuated in Shelby County, Tennessee. The circuit court denied defendant's motion to quash, but certified the issue for interlocutory appeal pursuant to Supreme Court Rule 308. 107 Ill. 2d R. 308.

Upon review, we must determine whether the court has the requisite in personam jurisdiction to impose monetary obligations upon the defendant. Jurisdiction is allowed to exist pursuant to the Illinois long-arm statute, specifically section 2-209(a)(5). (Ill. Rev. Stat. 1985, ch. 110, par. 2-209(a)(5).) We reverse and remand.

Initially, we note that the plaintiff has not filed a brief on appeal. Consequently, we will address the issue presented under the standards established in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 345 N.E.2d 493.

The judgment of dissolution was entered in the circuit court of Calhoun County, Illinois, in 1977. Jurisdiction was based on plaintiff's presence in the State for more than 90 days preceding the filing of a dissolution proceeding (Ill. Rev. Stat. 1985, ch. 40, par. 401(a)). The defendant was served by publication and did not appear. The petition alleged that defendant was guilty of extreme and repeated physical and mental cruelty. The judgment order granted custody of the minor child of the parties to plaintiff. In granting the petition, the court retained "jurisdiction of the cause for the purpose of enforcing all the various provisions of this judgment for dissolution of marriage."

On July 7, 1986, plaintiff filed a petition for child support in the circuit court of Calhoun County, Illinois, and served defendant, a member of the United States Navy, at his duty station in Memphis, Tennessee. Jurisdiction was alleged to be perfected pursuant to 2-209(a)(5) of the long-arm statute. (Ill. Rev. Stat. 1985, ch. 110, par. 2-209(a)(5).) The defendant objected to the jurisdiction of the court alleging that because he was a nonresident at the time the original judgment of dissolution was entered, and has had no minimum contacts with the State of Illinois since the judgment was entered, the court lacks in personam jurisdiction.

On January 29, 1987, the circuit court denied the defendant's special and limited appearance to contest the jurisdiction of the court, but certified the question of law involved for interlocutory appeal.

The execution of a judgment ordering payment of child support requires in personam jurisdiction. (In re Marriage of Schuham (1983), 120 Ill. App. 3d 339, 343, 458 N.E.2d 559, 562, citing Kulko v. Superior Court (1978), 436 U.S. 84, 56 L. Ed. 2d 132, 98 S. Ct. 1690.) Prior to the imposition of a monetary obligation, due process requires that a nonresident defendant have certain minimum contacts with the forum State so as not to offend the traditional notions of fair play and substantial Justice. People ex rel. Mangold v. Flieger (1985), 106 Ill. 2d 546, 550, 478 N.E.2d 1366, 1367, citing International Shoe Co. v. Washington ...


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