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05/23/88 Deborah Smith, v. Kelly Smith

May 23, 1988

DEBORAH SMITH, PLAINTIFF-APPELLANT

v.

KELLY SMITH, DEFENDANT-APPELLEE



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

525 N.E.2d 137, 170 Ill. App. 3d 681, 121 Ill. Dec. 331 1988.IL.803

Appeal from the Circuit Court of Madison County; the Hon. George Filcoff, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE HARRISON delivered the opinion of the court. CALVO and LEWIS, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARRISON

Plaintiff, Deborah Smith, appeals from an order of the circuit court of Madison County denying a petition for post-judgment relief which she brought against defendant, Kelly Smith, pursuant to section 2-1401 of the Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 2-1401). In that petition, plaintiff asked the circuit court to vacate a previous order, filed on August 29, 1986, which had granted a motion by defendant to modify custody and given him sole custody of the parties' daughter, Jennifer. On this appeal, plaintiff argues that the circuit court erred in denying her petition because she was out of State when the hearing on defendant's motion to modify was conducted and she did not have adequate notice of it. For the reasons which follow, we affirm.

The marriage between plaintiff and defendant was dissolved in October of 1984, and plaintiff was given custody of Jennifer subject to visitation rights by defendant. The circuit court subsequently modified the visitation schedule, by order dated May 10, 1985, after plaintiff remarried and moved to Kentucky. In its order of May 10, the court specified, inter alia, that defendant was to be allowed to have visitation with Jennifer between December 26, 1985, and January 1, 1986. When that time came, however, plaintiff refused to allow defendant to see Jennifer. Defendant thereupon sought an injunction to compel plaintiff to abide by the May 10 order, and he petitioned to have plaintiff held in contempt of court for violation of that order. Because plaintiff had apparently moved back to Illinois from Kentucky by this time, defendant also asked the court to review the visitation schedule it had established.

On December 31, 1985, the circuit court ordered plaintiff to deliver Jennifer to defendant immediately for a period of visitation which was to last until January 5, 1986. At the same time, the court set a hearing date of January 22, 1986, for defendant's contempt petition and petition for review of the visitation schedule. Pending that hearing, plaintiff was directed to keep Jennifer within this State.

Thereafter, the January 22 hearing date was continued at the request of plaintiff's attorney, but in allowing the continuance, the circuit court specified that defendant was to have visitation with Jennifer every weekend until the new hearing date. When plaintiff refused to abide by this requirement, defendant once again petitioned to have her held in contempt of court.

The record suggests that plaintiff did not want defendant to have contact with Jennifer because she feared that he suffered from herpes. On April 16, 1986, the circuit court took defendant's second contempt petition under advisement and ordered him to furnish medical evidence that he was not infected by that disease. Pending receipt of such evidence, the court ordered plaintiff to deliver Jennifer to defendant's mother in Madison, Illinois, for a period of visitation commencing on April 19, 1986. Once evidence was received establishing that defendant did not have herpes, defendant was to be given visitation every other weekend, two weeks each summer, plus an extra week in the summer of 1986 to make up for the visit he was denied the previous December.

Defendant submitted test results to the court which proved that plaintiff's concerns about herpes were unfounded. Accordingly, on April 29, 1986, the court issued an order providing that the visitation schedule established in the April 16 order was to take effect immediately and that defendant was to be allowed to take Jennifer during the coming weekend, May 2-4. Plaintiff still refused to comply. Once more defendant was forced to seek injunctive relief and a contempt of court citation against plaintiff. Once more the court ruled that defendant should be allowed to exercise his visitation rights. In an order filed on May 9, the court directed that defendant was to have visitation with Jennifer from noon that day until 7 p.m. on May 11 and that the remaining issues would be heard on May 14.

Incredibly, plaintiff persisted in disobeying the circuit court. Her attorney then moved to withdraw from the case. Although substitute counsel appeared for her at the May 14 hearing, plaintiff herself did not show up. After hearing evidence, the court concluded that plaintiff had willfully failed and refused to comply with its previous orders on visitation, despite admonishment, and ordered the sheriff to take custody of plaintiff and bring her before the court.

Unknown to defendant or the court was that plaintiff had already fled the jurisdiction to prevent visitation by defendant. She ultimately relocated to Washington State. There, she enrolled Jennifer in school under a fictitious name, identified herself as one "Lynn Tellor," and told school officials that Jennifer's father was deceased. Plaintiff's second husband did not accompany her. Indeed, plaintiff testified that she had not seen him since shortly after they were married.

On May 30, 1986, defendant petitioned the court to modify custody and to grant custody of Jennifer to him. A copy of the petition, brought pursuant to section 610 of the Illinois Marriage and Dissolution of Marriage Act (Ill. Rev. Stat. 1987, ch. 40, par. 610), was duly served on plaintiff's substitute counsel, who had by this time entered a formal appearance on her behalf. On July 3, 1986, counsel ...


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