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11/16/88 In Re Marriage of Marilyn Lenhardt

November 16, 1988

IN RE MARRIAGE OF MARILYN LENHARDT, PETITIONER-APPELLEE,


APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

and JACK E. LENHARDT, Respondent-Appellant

531 N.E.2d 123, 176 Ill. App. 3d 429, 125 Ill. Dec. 944 1988.IL.1663

Appeal from the Circuit Court of Madison County; the Hon. Wendell Durr, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LEWIS

This appeal arises out of proceedings under the Illinois Domestic Violence Act of 1986 (Ill. Rev. Stat. 1987, ch. 40, par. 2311-1 et seq.). The respondent, Jack E. Lenhardt, appeals from an order denying his special and limited appearance and from a subsequent order granting child support and compensation for counselling. The respondent maintains on appeal, contrary to the court's ruling, that his appearance was special and limited rather than general; therefore, he argues, the court did not have jurisdiction to enter the interim order providing for counseling and payment of support. Petitioner, Marilyn Lenhardt, maintains that the respondent entered a general appearance; thus, the court had jurisdiction to enter the interim order.

The parties were divorced in 1978. An order was entered in 1982, pursuant to stipulation, granting custody of their minor son to respondent.

The petitioner filed a petition to modify custody on February 11, 1985. That petition was ultimately denied. On July 29, 1987, a petition for change of custody was again filed by the petitioner and a summons was issued, returnable October 20, 1987. That summons was returned showing service on August 13, 1987. On August 12, 1987, petitioner filed for an order of protection pursuant to the Domestic Violence Act and, on that same date, an emergency order of protection was entered by the circuit court.

On August 21, 1987, several documents were filed on behalf of the respondent. Among them was a document entitled "special and limited appearance" which addressed the merits of certain aspects of the domestic violence matter. Respondent's counsel also filed a motion to strike a portion of the petition for change of custody; a motion to quash petitioner's demand for production of documents; a request for inspection of real estate; interrogatories directed to petitioner; a demand for production pursuant to Supreme Court Rule 214 (107 Ill. 2d R. 214); a response to the petition for change of custody, and a request to admit facts. The special and limited appearance filed on August 21 was set for hearing on August 25, 1987, on motion of respondent.

The court, on August 25, 1988, heard arguments on the special and limited entry of appearance and found respondent's appearance to be general in nature. It then proceeded to a hearing on the request for an interim order of protection and ultimately granted the request. Later, on September 10, 1987, the court entered a written order which, in part, states:

"The Court first hears the Defendant's Special and Limited Appearance and finds that proper summons regarding the Emergency Order of Protection was not issued and therefore the Emergency Order of Protection is hereby striken [ sic ]. The Court further finds, however, that the Defendant has made a general appearance by virtue of some of the numerous documents that he has filed herein since some of said documents apply not only to the Petition for Change of Custody, but apply to the issues concerned in the Petition for Domestic Violence Order of Protection as well; the Defendant's Special and Limited Appearance is therefore denied."

The respondent maintains on appeal that the documents filed on August 21, 1987, excluding the special and limited entry of appearance, all related to the petition to modify custody and not the petition for an order of protection under the Domestic Violence Act. Therefore, he argues, those documents did ...


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