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04/26/88 In Re Marriage of Jane Stafeil

April 26, 1988

IN RE MARRIAGE OF JANE STAFEIL, PETITIONER-APPELLEE, AND


Before a court can impose an affirmative obligation, such as the duty to pay child support, it must first possess and assert jurisdiction over the person. In re Marriage of Hostetler (1984), 124 Ill. App. 3d 31, 463 N.E.2d 955.

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

WALTER STAFEIL, Respondent-Appellant

523 N.E.2d 1003, 169 Ill. App. 3d 630, 120 Ill. Dec. 92 1988.IL.600

Appeal from the Circuit Court of Cook County; the Hon. William E. Peterson and the Hon. James L. Harris, Judges, presiding.

APPELLATE Judges:

JUSTICE BILANDIC delivered the opinion of the court. STAMOS and SCARIANO, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BILANDIC

The marriage between Jane Stafeil's (hereinafter the Wife) and Walter Stafeil (hereinafter the Husband) was dissolved on August 29, 1980, by judgment for dissolution entered by the circuit court of Cook County. The judgment awarded custody of the Stafeil's oldest child, William, born May 30, 1963, to the Wife, and their youngest child, Jeffrey, born December 16, 1969, to the Husband. The judgment provided that the Husband shall be permitted to reside in the State of Tennessee with Jeffrey. Thereafter, the Husband and Jeffrey resided in Tennessee and the Wife and William remained in Illinois. Pursuant to the judgment, the children visited with their other parent from time to time.

On May 31, 1986, Jeffrey, then 16 years old, came to Chicago to spend the summer with his mother. During that summer, he expressed a desire to live in the Chicago area with his mother. He was accepted as a prospective student at New Trier High School. The judgment for dissolution did not provide for any child support for Jeffrey during the summer visit with his mother. The Wife does not seek any support for this period.

On September 5, 1986, the Wife filed a petition in the circuit court of Cook County to modify the judgment entered approximately six years earlier on August 29, 1980. She sought permanent custody of Jeffrey and child support while Jeffrey attended New Trier and lived with her. The Husband was notified by certified mail. He acknowledges receipt of the notice and petition to be heard on October 7, 1986, but did not appear in person or by attorney. A hearing was held. Jeffrey (the minor child), the Wife and her attorney were present. The court found that it had jurisdiction over the parties and the subject matter; that Jeffrey resided with his mother in Illinois since May 31, 1986; that he is a full-time student at New Trier High School; and that it was in the best interests of the child that the judgment for dissolution be modified. It then awarded temporary custody to the Wife, ordered the Husband to respond, and reserved the right to enter a support order retroactive to the date of the filing of the petition on September 5, 1986.

Thereafter, the Husband filed a special and limited appearance, challenged the jurisdiction of the court over the subject matter and the jurisdiction of the court to enter personal judgment against him, and moved to vacate the October 7, 1986, order granting the Wife temporary custody of Jeffrey. After a hearing held on January 7, 1987, the trial court found that it had personal and subject matter jurisdiction, struck the Husband's special and limited appearance and converted it into a general appearance, and granted the Husband 21 days to respond to the Wife's petition to modify the judgment for dissolution as it deals with their child Jeffrey. A default order was entered against the Husband on February 10, 1987, for failure to respond to the petition.

It is undisputed that the Husband and his counsel were aware of the hearing scheduled for March 24, 1987, on the Wife's petition. Nevertheless, the Husband did not respond and did not appear in person or through counsel. The court heard testimony that Jeffrey had been residing with his mother since May 31, 1986, attended New Trier High School since September 1986, his grades are mostly A's, and heard the usual testimony dealing with the fitness of a parent seeking custody, the best interests of the child, and the ability of each parent to contribute to the support of that child. After being fully informed, the court entered an order awarding custody of Jeffrey to the Wife and requiring the Husband to pay child support in an amount no less than $781 per month retroactive to September 5, 1986, the date of the filing of the petition, through Jeffrey's graduation from high school on or about June 30, 1988.

The Husband never instituted any proceedings in Tennessee, did not invoke the jurisdiction of the Tennessee courts, and did not urge the Illinois court to yield jurisdiction to Tennessee.

The Husband's appeal challenges the propriety of the October 7, 1986, January 7, 1987, and March 24, 1987, ...


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